The Battleground 2012: Uncapped in Missouri: Missouri’s “Lax” Campaign Finance Laws Generate Concerns of Fraud and Corruption
November 5, 2012
As the November Congressional and Presidential elections are just around the corner, Missouri, a key swing state, has come under the microscope for the state’s campaign finance laws, or lack thereof. In 2010, Missouri passed Senate Bill 844 to establish campaign finance restrictions on donations in state and congressional races. The law required that an officeholder/candidate report contributions over $500 within 48 hours of receipt and restricted campaign finance committees from contributing money to another committee. However, the Missouri Supreme Court overturned the law in February of this year, holding the statute violated a section of the state’s constitution “prohibiting legislators from amending a bill to change its original purpose.” Senate Bill 844 was initially proposed to address administrative contracting issues in statewide elections, but several amendments were added to address looming campaign finance concerns. This decision has left Missouri campaign donations relatively unchecked and the State’s campaign ethics laws “the most lax in the country.” (more…)
The Battleground 2012: Introduction
November 5, 2012
by Jacob Derr & Tony Glosson
During the next two days we’ll be posting a special series of entries under the banner “The Battleground 2012.”
Over the past decade, every major presidential campaign and many state campaigns have litigated state election law as a part of their races. Candidates spend money, time, and human capital fighting in courtrooms in states across the nation, especially if the vote looks close. This is not merely a luxury, but an election strategy itself.
We’ll be taking a look at some of the fights going on in several states considered “battlegrounds” this election cycle, where either the presidential race is close or there is a state race that is strategic to the national party. We will examine a campaign finance free-for-all in Missouri, attempts to shoehorn third party candidates onto the ballot in Oklahoma, and the aftermath and continued importance of the legal wrangling in Ohio this fall.
We hope you will enjoy this series, which aims to take us inside battles that, in an election cycle as contentious as this one, will continue in the courtroom long after election day.
Jacob Derr & Tony Glosson are the editors of the State of Elections blog. (more…)
It Takes Two: Washington State’s Primary System Divides Scholars, Unites Parties
November 4, 2012
by Devin Braun
As states like Arizona contemplate changes to their electoral primary systems, it’s important to give an update of how Washington State, one of the nation’s premier laboratories of the Top Two primary, along with Louisiana and California, has fared politically and legally since its overhaul in 2004. Washington’s system emerged from the wreckage of the Supreme Court’s rejection of blanket primaries in the 2000 case California Democratic Party v. Jones. In Washington, all eligible candidates list their party of preference, including but not limited to classics like the Employment and Wealth Party, and the top two vote-getters regardless of party advance to the general election. The logic behind such a model is that by opening up the primary to more candidates at one time, the likelihood will be greater of having to get the necessary support from closer to the political center. This would, in turn, produce more moderate politicians, activate greater interest among politically independent voters, and cut back against the corrosive influence of party machines. (more…)
Mail-In Ballot Fraud: Harvesting Votes in the Shadow of Texas’ Voter ID Controversy
November 4, 2012
Almost every American realizes that democracies are only as legitimate as their rules for counting the votes. Voter fraud is an unfortunate reality in this country that undermines citizens’ faith in the electoral franchise, but few agree on its pervasiveness. Recently, a number of states have moved to enact stricter voting laws based on a concern that voter fraud is a considerably underrated threat to our electoral system. Opponents of these laws maintain that lawmakers are engaging in partisan exaggeration to disenfranchise minority constituents, and numerous lawsuits have already been filed in both state and federal court. Texas is a salient example, and many predict that the recent ruling against its voter identification (ID) law will make its way to the Supreme Court in the near future. (more…)
DC Ballot Access Free-for-All?
November 3, 2012
Is it better to leave the legislative process entirely in the hands of the elite or should the public have input? Recently The Washington Examiner reported on the disparity between getting a candidate on the ballot and getting an initiative on the ballot. According to this article, candidates are required to produce less than 4,000 signatures to qualify for ballot entry while initiatives require approximately 23,300 to qualify. These standards are given in the DC election code. The candidate requirement is set at 2,000 signatures (for city wide board members participating in a primary)—limited to the political party of the candidate—or 1% of the political party, whichever is less. If the candidate is not participating in a primary election, then the number of signatures is set at 1.5% of the registered voters or 3,000 signatures, whichever is less. Instead of these set numbers, initiatives require signatures from 5% of registered electors, with this list containing at least 5% of the electors from 5 separate wards. (more…)
Who Draws the Lines? California Experiment Intact, For Now
November 3, 2012
by Nathan Yu and Chelsea Bobo
When American legislators sit down to redraw district lines it is difficult to disentangle this redistricting process from the evils of gerrymandering and other forms of partisan abuse. Perhaps the party members we elect should not be closely involved in determining what our electoral districts look like. This is the conclusion a slim majority of California voters reached four years ago with the approval of Proposition 11. Also known as the Voters FIRST Act, Proposition 11 set up the California Citizens Redistricting Commission (CCRC), an independent redistricting commission. (more…)
Bringing Elections Online in West Virginia
November 2, 2012
By Ian Mahoney
Every election has its challenges and West Virginia has seen its fair share as of late. In addition to the factors one would expect to impede an election (such as geography, complicated rules, and confused voters), the state is reeling from the recent conviction and sentencing of three Lincoln County officials for election fraud. The issues of voter fraud and election integrity have received national attention this election season, which has led some states to raise the standards that voters must meet in order to cast their ballot. As tensions mount over keeping elections honest, it is difficult to imagine a state moving in the opposite direction and opening up their election process. Yet even in the face of clear violations of the law, West Virginia has still found ways to improve their election operations by relying on technology for transparency and efficiency.
The task of administering an election comes down to the difficult balance between meeting the demands of both voters and the law. These two interests are not necessarily competing, but it can be hard for officials to fulfill their legal obligations and still have the resources to properly inform and serve voters. Technological advancements may make both tasks easier. On this premise, West Virginia’s secretary of state’s office has embraced incorporating technological tools to help them both meet the letter of the law and reach the citizenry.
Statutory requirements are often treated with the most reverence, and typically have the most rigid policies attached to them. But that does not mean that it is impossible to streamline those tasks and bring them online. A recent example is West Virginia’s online “provisional ballot app,” introduced in May. Jake Glance, spokesperson for the secretary of state’s office, explains that the new app helps the state comply with the Help America Vote Act. According to the law, there must be a way for voters to check on the status of their provisional ballot. In this circumstance a website is the ideal method of compliance. Provisional ballots are cast in substantial numbers—the Pew Center on the States notes that voters cast more than 2 million nationwide in 2008—but not everyone that uses a provisional ballot will want to follow up on their vote’s status. Moving to an online system means that the service will be there for those who desire it without draining state resources.
Online communication also provides for the opportunity to go beyond what is required by law. Any way that officials can open up the process of government or assist voters in successfully casting their ballots leads to a more efficient and effective voting process. Some of this work can be done internally. Since October 2011 West Virginia’s secretary of state’s office has circulated a weekly newsletter to inform election officials of important news and deadlines. Directing this newsletter specifically to election officials represents an effort to encourage discussion and distribute critical information and is likely to have a large payoff when critical decisions need to be made.
Externally the secretary of state’s office is streamlining the way it coordinates with voters. Some of these techniques (such as Facebook and Twitter) are obvious, almost standard, nowadays. But the state has also expanded its services online in ways that help foster the ability to vote. West Virginia was one of fifteen states named an “All Star State” by the Military Voter Project. They earned the distinction for their encouragement of the right of servicemen and women that are overseas or are otherwise unable to make it their polling place to have their ballot sent to them electronically. The voter can then print out the ballot, fill it out, and send it back, cutting down the overall transaction time of absentee voting for servicemen and women.
Officials in West Virginia have dealt with egregious violations of election laws in the last year but have still found ways to markedly improve how they prepare for and operate elections. Election officials around the country are embracing new technologies to varying degrees. The example of West Virginia’s experience demonstrates how beneficial these tools can be for both election staff and voters. Deploying tech tactics has become increasingly easier in the past two decades, These small improvements are poised to make a positive impact on Election Day.
“It’s the most pathetic thing I’ve ever seen in politics.”
November 1, 2012
Whether hyperbole or not, Rep. Bill Pascrell had harsh words for his Democratic primary opponent Rep. Steve Rothman in their June 5, 2012 primary election contest. After redistricting, New Jersey lost a congressional seat and two sitting Congressional members faced head to head in the 9th Congressional district, which is comfortably Democratic. Rep. Pascrell won the primary 30,227 (61%) to 19,118 (39%)but there was an interesting maneuver by the Rothman campaign and their attorneys that raised the ire of Congressman Pascrell.
A lawyer for the Rothman Campaign complained about irregularities in the absentee voting process in a request to have 2,000 absentee ballots from Passaic County impounded. The Passaic County Superintendent of Elections felt that to protect the election process the ballots should be impounded Monday afternoon before the Tuesday election to give the parties time to review them. Judge Ernest M. Caposela later vacated the order. Judge Caposela ruled that the Rothman campaign could inspect the ballots, but required the ballots to be counted starting the next morning.
The initial impoundment was possible under N.J.S.A. 19:58-30. The statute reads “Specific power is hereby granted to the superintendent of elections in counties having a superintendent of elections and the prosecutor in all other counties to impound all such ballots whenever he shall deem such action to be necessary.” Superintendent Robert J. De Mers exercised this power in the face of possible irregularities. These irregularities included a Paterson storefront covered with signs for Rep. Bill Pascrell, telling passers-by they could fill out mail-in ballots inside and a Facebook wall post by a Passaic County Sheriff deputy that said he had a number of ballots he “collected for Bill. “
In reaching his decision to release the impoundment ballots, Judge Caposela, helped shine some light on why he considered the action “arbitrary, capricious and unreasonable.” Traditionally, [the Court] will not reverse an agency’s decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record. In re Taylor, 158 N.J. 644 (1999).
Judge Caposela looked to In re Absentee Ballots Cast by Five Residents of Trenton Psychiatric Hosp. 331 N.J. Super. 31(App. Div. 2000) for guidance on what the court considered reasonable in regards to impounding absentee ballots. The Judge in that case, similar to Supervisor of Elections De Mers reasoned “that the ‘safe approach’ was to segregate the ballots now, and only allow the ballots to be opened if the voter was later determined competent.”
The Appeals Court for the Psychiatric Hosp. case held, “(1) a challenge based on residency at the psychiatric hospital alone is illegal; (2) the voters were deprived of their fundamental right to vote because their ballots were segregated; and (3) the judge erred by not placing the burden on the challengers to show by clear and convincing evidence that the voters were ineligible to vote.”
These determinations were deemed applicable for the Rothman case as well. Judge Caposela considered the wholesale impoundment of ballots from a particular county disturbing in light of the evidence. There was definitely a strategic aspect to going after specifically Passaic County vote-by-mail ballots in a wholesale fashion. Pascrell overwhelmed Rothman 9-to-1 in his home county base, running up a 22,000-vote cushion that Rothman could not offset in parts of Bergen and Hudson counties that had sent him to Congress for eight terms before. A Facebook post and darkened windows were not considered “evidence” in the legal sense of the word according to Judge Caposela. With a fundamental right at stake, the action was considered “arbitrary, capricious and unreasonable.”
The impoundment statute, N.J.S.A. 19:58-30, vests significant discretion in the prosecutor or Superintendent of Elections to take action. Often in an effort to protect elections, these parties slow down the process to the detriment of one candidate or another. While there is recourse in the courts for these maneuvers, if the Superintendent of Elections’ actions were upheld, 2,000 people could have lost their voice until all the in-person votes were counted. Whether justified or not, these type of maneuvers raise significant questions on the vote by mail process. If the legislature is interested in upholding the integrity of the electoral process, it may want to reconsider the power it vests in the Superintendent of Elections and prosecutors to impound ballots.
Aaron C. Carter is a second-year student at William & Mary Law School.
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What’s in a date? Moving school board elections in New Jersey
October 30, 2012
by David Noll, Staff Writer
The way that seemingly innocuous procedural matters can shape the outcomes of elections is quite frightening. This year, New Jersey’s school board elections will showcase this phenomenon. Towns in New Jersey are now allowed to move their elections from mid-April to November 6th. Most districts have made the change in order to capitalize on a lower cost to hosting the elections. Also, by moving the elections districts are allowed to increase budgets within the district’s tax levy. The state passed legislation allowing this in the hopes of producing higher voter turnout. This isn’t a new idea. Other states hold school elections along with the general elections and states like New York have talked about moving the election date for decades. So why would it matter to change the date?
In the past, estimates for school board election turnout ranged from 25% to under 15% of registered voters in the state. In 2010, 55.6% of New Jersey citizens were registered to vote; New Jersey had a total population of approximately 8.8 million people, meaning between 0.6 and 1.2 million people in Jersey care about school board elections enough to vote. The problem may be in putting the levers to vote in front of the 36.2% of New Jersey that goes to vote in the general election (or 3.2 million people). As long as the current school board voters are a more homogenous group then the total electorate, the outcomes and interests of school board elections will face pressure to shift.
Part of the incentive for districts to move their elections to Nov 6th is that by doing so they may increase their budget within the tax levy (~%2) without needing a vote on the budget. This was a good move by legislators. Without this provision, few districts would pass their budgets once the new voting body shows up on the 6th[P1] . The new school board election date is going to see a voting body closer to that of the state average in all demographics. If the old voting group had higher than average numbers of parents and grandparents in it, who may have been willing to increase school budgets, then the new voting group will, theoretically, be broader and less inclined to vote for increased taxes and school budgets.
By allowing the board to increase the budget for the coming year without a vote there is now a larger incentive for tax conscious voters to take an active role in school boards. When this is combined with a larger, less education-oriented voting group, the chance that voters will deny budget increases is higher.
This is bad for the schools but it is also bad from an electoral standpoint. America doesn’t have compulsory voting so that people that don’t want to vote or don’t care about electoral outcomes are free to abstain. A simple calculation using rational voter theory shows us that the voters who already turn out to school board elections benefit more. Those that will vote out of convenience only do so because their cost to voting, or their minimum required level of interest, is reduced.
This year’s elections won’t result in a large-scale change to school boards. Undoubtedly, some veteran board members will lose their seats to new faces that campaign to the full electorate better. And in the first year, budgets are going to increase as they have in the past. Keep in mind that the board from the year before writes the budget for the coming year. It is in the next few years that the change will be most evident. The broadening of the voting body and shifting of those voter’s goals means that candidates for school boards will change as well.
Because elections are an iterated game, as the voters and the candidates get a better feel for the new playing field the best campaigners will move away from the interests of schools and parents. Instead, their primary interest will be on the taxes that fund schools. If this newer group in the electorate realizes the power they have, then it is unlikely that veteran board members will get re-elected unless they move from their pro-education focus.
For districts that did choose to move elections to Nov 6th, they are ineligible to move the elections back into April for four years. This is a good length of a test period for an electoral change. The worry is that by the end of four years the board members will have been elected by the general voting body of New Jersey and not the original smaller body who had a motivating interest in the elections in the first place. Meaning that, like in all other elections, the man who won by the rules in place will be hesitant to change them.
David Noll is a first-year student at William & Mary Law School and a Staff Writer for the State of Elections blog.
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Is a “Top 2” Primary in Arizona on the Horizon?
October 30, 2012
by James Adam
Come November, voters in Arizona will have the opportunity to drastically alter their election law. If passed, Proposition 121, the “Open Elections/Open Government Act,” will constitutionally eliminate politically affiliated primary elections. The new scheme will allow primary voters to vote for any candidate they wish, regardless of party registration. Although not a requirement, this new law will give voters the option of writing on the ballot their party affiliation when they cast their vote. Currently Arizona has closed primaries, and voters are allowed to vote solely within their own registered party. If Proposition 121 passes, a primary between all the candidates will occur, and voters will be entitled to vote for whichever candidate they prefer. The two candidates acquiring the most votes will subsequently be placed on the general election ballot. Therefore, it is possible for a scenario where two Republicans gain the most votes in the primary, so both of their names appear on the final general election ballot. There would thus be no Democratic or third party options. Current examples of states using the top-two primary format include Washington and California. (more…)