Fashion Frenzy: Passive Electioneering and the Right to Vote
April 4, 2012
On Election Day, after you have rushed to the polls, how would you feel to be turned away because of your apparel? The regulation of voter apparel posed a real issue for residents in Pennsylvania. Residents of the state were prohibited from voting because they were wearing T-shirts endorsing candidates for office in the polling place. Subsequently, the electioneering battlegrounds were drawn, and the effects on the right to vote involved passive electioneering. Passive electioneering refers to the method of influencing voters by wearing campaign t-shirts or carrying pamphlets to the voting location.
Section 1220(c) of the Pennsylvania election code prohibits electioneering but the state law does not define the term. Subsequently, defining the scope of the term has been left to the individual interpretation of the County Boards of Elections. Local counties have interpreted the term differently. Many Pennsylvania counties, including Philadelphia and Allegheny, have long allowed voters to vote wearing clothing, stickers, and buttons endorsing candidates and there have been no disruptions or significant problems. These counties follow the recommendations of the Pennsylvania Department of State. In a memorandum to the County Boards of Election the Commonwealth of Pennsylvania Department of State recommended that voters be allowed to electioneer by passive methods. The Department believes that as long as the voters take no additional steps to attempt to influence voters in the polling place the right of the franchise should not be denied.
The memorandum resulted in pending litigation. The result of the pending case, Kraft v. Harhut, should end the statewide debate. The American Civil Liberties Union of Pennsylvania (ACLU) seeks to join the Commonwealth in challenging any effort to enforce a statewide dress code for voters. The ACLU does not endorse a narrow interpretation of the term electioneering. The ACLU opined that sustaining a narrow interpretation would implicate the First Amendment free speech rights. The primary concern of the ACLU is not to turn a registered voter away from the polls as well as the possibility of the rule to be applied in a discriminatory fashion. Nevertheless Lawrence County observes a narrow interpretation. The county will not allow passive electioneering and has turned away voters dressed in party endorsing apparel.
The argument for the implementation of a statewide dress code will rest heavily on the lower court’s interpretation of the state law. Lawrence County does not wish to make a distinction for lesser forms of electioneering. Also the pending lawsuit claims that allowing voters to wear partisan–affiliated clothing would affect the health and safety of voters. These arguments certainly may pass muster. The Supreme Court has historically held that restricting free speech at a polling place may be necessary to make sure voters may freely exercise a right to vote for the candidate of their choice. It is also well–established that the state has the right to protect voters from any confusion and undue influence within the polling place.
Whether party-endorsing apparel promotes an unsafe environment for voters remains unanswered. How the court will strike a balance remains questionable.
Latisha Woodford is a second-year student at William and Mary Law.
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Total Recall: Great Movie, Dangerous Political Process
April 2, 2012
By Joe Figueroa
Fresh off of a convincing 52-46 electoral victory, a young, dynamic politician has recently come under fire for the passage of a bill that he considers to be a hallmark of his legacy.
And it is not President Obama.
True, the parallels between Wisconsin Governor Scott Walker and the 44th President are noteworthy. But unlike Mr. Obama, a quirky yet significant electoral procedure stands in the way of Governor Walker even completing his first term in office.
Following Wisconsin law, multiple public committees have been formed to gather the requisite number of voter signatures needed to hold a recall election of Governor Walker. One of those committees has already submitted a signature petition that is estimated to have twice the amount of the 540,000 signatures needed to hold an election.
The Wisconsin Government Accountability Board has yet to verify the signatures or officially call an election. But the day is coming. If there are a sufficient number of valid signatures, a recall election will be held in May (if only one or two candidates file) or June (if more than two file). (more…)
News Brief: Arkansas struggles with money in judicial elections
March 27, 2012
The consequences of the Citizens United decision have been felt across the country and have been widely reported, including by this blog. Some states are focusing specifically on the effect of unlimited campaign money on judicial elections, with advocates arguing that though money is not is not a true substitute for speech in any type of election, the differences between money and traditional speech are more pronounced in the judicial field.
One example of such a tactic is the recent effort in Arkansas to distinguish judicial elections from other democratic mechanisms. The Arkansas Bar Association’s Task Force on Judicial Election Reform has developed ways to reform judicial elections and to curb the corrosive effect of money on an elected judiciary. Justice Robert Brown, the Chairman of the Task Force, has warned of the danger in failing to distinguish the unique nature of judicial elections: “If they’re not different, it will indeed undermine the dignity and the respect for the courts.”
In early March, 2012, the Task Force delivered three reform ideas during a panel discussion at the Clinton Presidential Library. First, Arkansas may develop a response committee dedicated to publicly identifying false statements made in judicial races. Second, they may create a voter guide with factual information about all the candidates. Third, a non-profit may be formed to encourage candidates to run fair campaigns and to disavow any false statements made by third parties.
Critics charge that holding judicial elections to different standards than other races is dangerous because it would provide a slippery slope that would lead to an unconstitutional reduction in free speech. Moreover, critics say, all political elections should be conducted with integrity, making electoral distinctions between the branches irrelevant.
The problem (or advantage) of unlimited money in judicial elections is an issue debated across the country and will be specifically addressed on March 29, 2012 and William & Mary Law School during the annual Election Law Symposium.
Alli Handler is a first-year law student at William & Mary.
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Fifth Annual Election Law Symposium at William & Mary
March 23, 2012
The Election Law Society and the Election Law Program at William & Mary Law School announce the Fifth Annual Election Law Symposium to take place on Thursday, March 29. Featuring prominent state supreme court judges, political consultants, and scholars, the symposium centers on the topic “Money in Judicial Elections,” and evaluates the changing dynamics of state judicial elections in the post-Citizens United landscape. The event, which is free and open to the public, begins at 3:15PM and will be held in Room 124.
Panelists scheduled to participate include the Hon. Brent Benjamin, Justice on the West Virginia Supreme Court since 2005; James Bopp, Jr., General Counsel for the James Madison Center for Free Speech, former speech writer for presidential candidate Mitt Romney, and chief architect of the controversial Supreme Court case Citizens United, as well as more than 60 election-related cases; the Hon. Thomas Phillips, retired Chief Justice of the Supreme Court of Texas, current partner of the law firm Baker Botts, past President of the Conference of Chief Justices, and a member of the Carter-Baker Commission on Federal Election Reform; Bradley Smith, former Chairman of the Federal Election Commission, the Josiah H. Blackmore/Shirley M. Nault Professor of Law at Capital University Law School, and the Chairman of the Center for Competitive Politics; the Hon. Marsha Ternus, retired Chief Justice of the Iowa Supreme Court whose term expired after seventeen years of service after voters failed to retain her in the controversial 2010 retention election; and the Hon. Penny White, retired Tennessee Supreme Court Justice, and current Director of the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law. Lyle Denniston, renowned legal journalist and blogger who has reported on the Supreme Court of the United States for more than fifty years, will serve as moderator. He currently writes for the SCOTUSblog, which provides coverage and analysis of the Supreme Court. Denniston has also written for the Wall Street Journal, Boston Globe, and The American Lawyer.
“In the last decade, the massive influx of contributions by large donors, especially special interest groups, has changed the face of state judicial elections,” explained Election Law Society Co-President Anisa Somani ’13. “Our symposium draws together a panel of experts to discuss whether this radical evolution in judicial election expenditures should be regulated and whether money actually corrupts judicial independence,” noted Election Law Society Co-President Vladislava Soshkina ’13.
This annual event is possible with generous assistance from the William & Mary Institute of Bill of Rights Law and the National Center for State Courts.
Created in 2005 as a joint venture of the National Center for State Courts and the Law School, the Election Law Program seeks to provide practical assistance to state court judges in the United States who are called upon to resolve difficult election law disputes (see Program materials available at www.electionlawissues.org). The Election Law Society is the student organization created to generate interest in and educate students about this rapidly expanding and extremely important area of practice.
Montana Supreme Court leading the charge against Citizens United
March 21, 2012
Last month the Supreme Court issued a stay on Montana’s Supreme Court decision upholding corporate spending limits in state elections. It seems that the Court may be ready to reexamine Citizens United. What they’ll find is what many states have been saying all along: Citizens United is out of sync with the values of many states.
Montana was the first of many states to express disdain for unlimited corporate funding. Early last week 55 towns in Vermont passed resolutions proposing a constitutional amendment that would limit the rights of corporations. The Alabama legislature has also been seeking to stop PAC-to-PAC fund transfers that mask donors. Even some members of the Court seem eager to reexamine the effects of Citizens United. In response to the Montana decision, Justice Ginsburg referred to Justice Kennedy’s language in Citizens United decision saying, “Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” Meanwhile some panelists at the Federal Election Commission’s hearing last week urged the FEC not to wait for the Supreme Court to reverse Citizens United and to take regulatory action into their own hands. (more…)
Two Wisconsin Voter ID Cases Demonstrate the Need for the Right to Vote in the U.S. Constitution
March 19, 2012
by Guest Contributor Elise Helgesen of FairVote
On March 6th, the Wisconsin Circuit Court in Milwaukee Branch of the NAACP v. Walker, granted a temporary injunction preventing the state from enforcing a voter ID law in the upcoming primary election. Then, on March 13, a second Circuit Court judge struck down the same voter ID law in League of Women Voters v. Walker. The courts proceeded with similar, yet differentiated, analyses of the law in finding that Act 23, Wisconsin’s 2011 voter ID law, was unconstitutional based on the Wisconsin Constitution’s affirmative right to vote – a right unfortunately not found in the U.S. Constitution.
The holdings of these two cases are important in looking to other states’ voter ID laws. For courts to hold that the right to vote is fundamental, the right to vote must be stated unequivocally in each states’ constitution, and it must be explicitly protected from legislation trying to abridge that right. FairVote supports an amendment creating an affirmative right to vote in the U.S. Constitution. If the right to vote were incorporated not only into every state constitution, but also into the U.S. Constitution, governments would have to prove that such forms of voter ID laws are necessary to a compelling state interest. To justify restrictive voter ID laws that unduly burden qualified voters’ constitutional right to take cast their ballots the legislature would need to put forth a more narrowly tailored regulation – one which did not effectively disenfranchise eligible voters.
Both courts were clear that Act 23 was unlawful; however, both were also clear that voter ID laws could be upheld under different circumstances. The court in League of Women Voters v. Walker stated that, “this court does not hold that photo ID requirements under all circumstances and in all forms are unconstitutional per se. Rather, the holding is simply that the disqualification of qualified electors from casting votes in any election where they do not timely produce photo ID’s satisfying Act 23’s requirements violates Article III, Sections 1 and 2 the Wisconsin Constitution.” Likewise, NAACP v. Walker distinguished Act 23 from other voter ID laws because Act 23 was overly restrictive and did not allow for alternative means of proving identification or of casting a provisional ballot. (more…)
New York’s clock continues to count down
March 15, 2012
by Alex Custin
New York’s redistricting attempts continue to show little progress towards developing a plan that both the legislature and the governor will approve. The legislature continues to refuse to pass the redistricting commission bill that the governor proposed earlier this year. The governor in turn has continued to state that he will veto any redistricting plan that is not formed through an independent process. The governor has reminded the legislature that if they continue to insist upon using partisan methods to develop the redistricting plan, the courts will end up drawing the lines, and no one can truly predict what will happen if the courts get involved because of all of the changes that have to take place.
Another issue continues to add pressure on the government to develop a plan soon: the need to hold the primary early enough to be able to send absentee ballots to overseas servicemen. New York managed to get an exemption from this requirement in 2010 – it did not have to worry about it this year because it only applies to federal elections – but its chances of getting another exemption in 2012 appear to be quite slim. This issue adds even more complexity to New York’s election process because it appears that the government plans on keeping the current date for state and local primaries, which would mean New York would have presidential primaries in April, congressional primaries sometime around August, and state and local primaries in September. There was some consideration given to changing the state and local primaries to match the date of the congressional ones, but in an unsurprising result, the parties could not agree on a date to change it to. This is kind of interesting when you think about what it will mean for the congressional primaries. Perhaps the date will be set by the judge deciding New York’s suit requesting another exemption to the timeline for military absentee ballots. (more…)
Update: Nordstrom out, ELEC in, Lyon still unelected (for now)
March 14, 2012
Charles Dudley Warner wrote, “Politics make strange bedfellows.” When a candidate who violated campaign finance laws is joined in a lawsuit by the agency in charge of enforcing against such violations, politics must be involved.
In November, I wrote about the debacle in the Republican primary election for freeholder in Morris County, New Jersey. At that time, a Superior Court judge overturned 23-year-old Hank Lyon’s 6-vote victory over incumbent Margaret Nordstrom in the June primary election. Judge Weisenbeck found that Lyon violated New Jersey campaign finance laws when he failed to submit certain donations and expenditures to the New Jersey Election Law Enforcement Commission (ELEC), and voided the primary election in favor of a party convention to choose the nominee. The convention selected Nordstrom, who went on to victory in the November general election before Lyon’s appeal could be heard.
Just prior to the election, the Appellate Division granted ELEC permission to intervene as a respondent to the lawsuit. (Non-lawyers: this means the court allowed ELEC to join the pre-existing lawsuit as a party that can claim an interest in the case which will not undermine the original suit). ELEC argued that Judge Weisenbeck overstepped his jurisdiction and that the agency should resolve election disputes such as this. (more…)
Who is stuffing the politicians’ pockets: Alabama and PAC-to-PAC contributions
March 12, 2012
by John Alford
Alabama Legislatures are trying to clean up the state’s political landscape. The problem at hand is that money is being shifted around without a clear understanding of where the funds originated. Political action committees (“PACs“) are, essentially, groups that take in funds and redistribute contributions to candidates or to advocate particular issues. Prior to 2011, a PAC in Alabama could receive money from a donor and then transfer the funds to another PAC. The second PAC can then put funds into half a dozen other PACs, which use the money to help advocate issues. The identity of the individuals who originally donated the funds is lost in the mix. This means that people trying to influence, or even corrupt, politicians, can play this “shell game” and hide the money trail. Keep in mind, there are 859 PACs in Alabama.
An attempt to hide the money trail is exactly what happened when gambling interest groups began trying to increase their odds of success. The U.S. Justice Department wiretapped a session where this statement came to light: “We’re gonna support who supports democracy. And the (expletive deleted) who doesn’t support democracy [should] get ready to get their (expletive deleted) (expletive deleted) busted.” Certainly this crass statement could be taken admirably, but chances are the gambling tycoon was not strictly supporting democracy given that statement is taken in the context of extortion, bribery, fraud, and conspiracy charges. Shifting money from PAC-to-PAC to hide the connection to gambling money, however, was perfectly legal. This confusion of contributions was an integral means of getting support for the gambling agenda since politicians did not need to fear disclosure. (more…)
How city and county councils are handling redistricting in the first state
March 8, 2012
Hurricane Irene was not the only thing to shake up Delaware this year. The 2010 Census has sent County and City Councils scrambling to create redistricting plans that reflect the changes in their districts’ populations and comply with regulations. According to Antonio Prado, Staff Writer for the Dover Post, the Dover Election Board sent a redistricting plan to the Dover City Council that complies with a 1988 consent decree that requires “a minority district with at least 65 percent black voters 18 years old and older.”
This consent decree settled a lawsuit between the NAACP and the city of Dover, in which “the NAACP successfully argued that Dover’s at-large system of council elections was detrimental to the equal representation of the city’s minority voters.” (more…)