Weekly Wrap Up
November 12, 2010
“I want to be your second (or third) choice!”: Jean Quan, Oakland’s mayor-elect, won under the city’s new ranked-choice system by concentrating on being voters’ second and third choice, if they were voting for someone else. The campaign manager for Don Pereta, the heavy favorite in the race, said Quan was “gaming the system” by asking people who supported other candidates to rank her second or third.
Too poor to vote: The ACLU is challenging a Sixth Circuit Court of Appeals 2-1 decision that Tennessee could bar three released felons who were behind on child support or restitution from regaining their voting rights. The ACLU is asking for the court to rehear the case en banc, arguing that the decision creates an unconstitutional poll tax.
Sound it out: In the Alaska Senate race, the Division of Elections has only accepted a few of Joe Miller’s challenges to the spelling of his opponent, Lisa Murkowski’s, name on the write-in ballots. The Director of the Division of Elections said that she was accepting minor spelling mistakes as long as she could “pronounce the name by the way it’s spelled.”
Pay no attention to the man behind the curtain: The spending from outside groups in this campaign season has reached record highs, climbing almost to the $300 million mark. Now, a new study has shown that nearly half of that money comes from groups which won’t reveal the money’s source. A few notable candidates who used a huge amount of their personal fortunes are Meg Whitman in California and Linda McMahon in Connecticut. They spent $140 million and $46 million respectively.
Fox News Wants You to Know They Didn’t Support a Democrat
November 12, 2010
The intersection of copyright law and elections is growing to be an important new area of study and litigation. The Center for Democracy and Technology has documented and analyzed at least a dozen recent instances where video hosting sites like YouTube have removed political campaign videos pursuant to the Digital Millennium Copyright Act’s requirement that such sites comply with take-down requests submitted by copyright owners. Indeed, in the run-up to the 2008 presidential vote, the John McCain campaign asked YouTube to more carefully scrutinize political videos for fair use or non-infringement before removing them pursuant to take-down requests. (YouTube’s response noted that such special treatment was not only logistically impractical, but also might push the site out of the safe harbor protection afforded it by the DMCA for compliance with the “blind” take-down regime).
A related copyright/campaign controversy grabbed particular attention during the recent election cycle. In September, Fox News filed a copyright infringement suit against the campaign of Robin Carnahan, the Democratic then-candidate for Missouri’s U.S. Senate seat. (Carahan was eventually defeated at the polls by Republican Roy Blunt.) The complaint alleged that Carnahan’s campaign “usurped proprietary footage from the Fox News Network to made it appear – falsely – that [Fox News] and Christopher Wallace, one of the nation’s most respected political journalists, are endorsing Robin Carnahan’s campaign.” The ad (which you can watch here) consists almost entirely of footage taken from Wallace’s interview of Blunt on Fox News earlier this year. In addition to copyright infringement, the complaint alleges invasions of Wallace’s privacy and publicity rights. (more…)
Committees and Campaigns: South Carolina Federal Court Tightens Definition and Loosens Regulations
November 10, 2010
In the wake of last year’s Citizen’s United ruling, there’s been much deliberation, speculation, and anticipation about how the world of federal campaign finance will be changed – and now the states are getting into the mix. Decisions in Colorado, New Mexico, North Carolina, and Utah paved the way for Judge Terry Wooten of the United States District Court for South Carolina to rule that the state’s definition of “committee” is unconstitutional in South Carolina Citizens for Life v. Krawcheck. Granting partial summary judgment in favor of South Carolina Citizens for Life (SCCL) on their constitutional claim that the South Carolina Ethics Commission was overbroad in defining “committee,” Judge Wooten may have opened the door to influential campaign contributions from organizations whose primary purpose is not to influence elections. (more…)
Can a Tempest, a Tea Party Make?
November 8, 2010
The teapot is still boiling briskly in the City of Falls Church, a Northern Virginia suburb of Washington, D.C., over recent changes in the regulations governing municipal elections. By a 4-3 vote in January 2010, the then Mayor and City Council was successful in changing city elections from even-numbered years in May to odd-numbered years in November. Appropriately, the City submitted the change to the United States Department of Justice, Civil Rights Division, for review and clearance as required by the Voting Rights Act of 1965. The Department subsequently reviewed and approved the change. The result is that, during the transition years, Council-Member terms will be shortened by six months. Then, in the May 2010 election, a major shakeup in the government occurred. The new Mayor, Nader Baroukh, a former City Council member who opposed the change, along with re-elected City-Council-members who were also opponents, is making efforts to “undo” the changes and to submit the matter to the citizens of the City in a referendum. Predictably, many residents of the City are hopping mad. (more…)
Some will Win, Some will Lose, Some States are Born to Sing the Blues: The Coming Battle Over Reapportionment
November 3, 2010
The stakes are incredibly high, reapportionment is looming, and recent data from Election Data Services shows that neither Democrats nor Republicans will be too pleased come next year. States which have been recently labeled as ‘safe Republican’ in Presidential elections will gain seats, but in more Democratically inclined areas. States recently labeled as ‘safe Democrat’ in Presidential elections will lose some seats. The biggest gain will be in Texas. Texas can expect to gain four House seats, at least some of which will be placed in locations more favorable to Democratic candidates. Meanwhile, New York, a state typically labeled as ‘safe Democrat’ in Presidential elections, will likely lose two House seats. In terms of multi-district moves, Florida will likely gain two seats and Ohio will likely lose two seats. Arizona, Georgia, Nevada, South Carolina, Utah and Washington will all likely gain a seat while Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey and Pennsylvania will all likely lose a seat.
Reapportionment is becoming a problem not only for certain Presidential candidates but also state and federal candidates, especially candidates in the Midwest where rapid population flight is decimating the electoral landscape. The close electoral math is mapping onto reapportionment strategy. Democrats and Republicans are locked in a mortal struggle to gain control of state houses and governor’s mansions across the nation, in anticipation of being able to influence the composition of both state legislatures and Congress over the next decade. (more…)
Want to Be a Senator, but Hate Those Pesky Elections? Just Become a ‘Temporary’ Appointee
November 2, 2010
The legal controversy over the appointment of a replacement to the Senate seat previously held by President Barack Obama is likely drawing to a close. In the process of resolving the controversy, the U.S. Supreme Court also clarified their interpretation of a key portion of the Seventeenth Amendment regarding vacancies in Senate seats. This topic has been relevant lately, particularly following the 2008 election cycle. When Senator Obama was elected President, his incoming administration including numerous sitting Senators including Vice President Joe Biden, Secretary of State Hillary Clinton, Secretary of the Interior Ken Salazar, and, of course, himself. Despite its seemingly straight-forward language, the Seventeenth Amendment required a certain amount of parsing to ensure these senatorial appointments would fulfill its procedural requirements.
The Seventeenth Amendment, ratified in 1913, in addition to providing for the direct election of senators, altered the procedure for filling vacancies in that office. The amendment provides that, in the event of a vacancy, the governor must issue a “writ of election” to hold an election for a permanent replacement to fill the seat. The state legislature may empower the governor to make a temporary appointment, but the appointee may only serve until the special election is held to fill the vacancy. A date for a special election must be set by the governor, but the amendment does not specify when exactly it must be held. (more…)
William & Mary VOTEline
November 1, 2010
Students at William & Mary Law School are set to run the W&M VOTEline, a voter assistance hotline aimed at responding to difficulties local citizens face at the polls. This non-partisan voter assistance hotline will be operated by student members of the school’s Election Law Society (ELS) and other volunteers.
“Voting is an important civic duty,” Election Law Society President Ashleigh Casey ’12 said. “We want to ensure that all voters – young and old – who are properly registered to vote can do so. We will be manning the VOTEline phones on Election Day, Tuesday November 2nd, to answer any questions that might arise as voters arrive at a polling place to cast their vote.”
VOTEline is a response to outcries from William & Mary students who faced confusion at local election booths in the past. The Election Law Society has operated VOTEline since November of 2007. Any citizen who wants to vote in the local election may call the hotline at (757) 221-2890 from 8 A.M. to 8 P.M. to seek information regarding their rights at the polls.
“I encourage William & Mary students and members of the Williamsburg community at large to call the VOTEline with any questions or concerns they may have at the polls on Election Day,” Casey said.
Students are also advised to bring a government issued form of identification to the polls on Election Day. Valid forms of identification include a voter identification card, a valid driver’s license, and a W&M ID card for certain voters.
For more information about VOTEline, call or e-mail Brian Rothenberg ’13, at (757) 209-1001 / brian.rothenberg@gmail.com.
Image is Everything: Is Disclosure an Effective Check on Corporate Political Donations?
November 1, 2010
In his January State of the Union address President Obama warned that the Supreme Court’s decision in Citizens United would result in American elections being “bankrolled by America’s most powerful interests, or worse foreign entities.” 
President Obama wasn’t alone in his disapproval of the Supreme Court’s decision. The Pew Center reports that a large majority—65%—of Americans also disapprove of the decision. However, the gubernatorial race in Minnesota is demonstrating that corporate donations are not completely unchecked. In fact, the biggest factor limiting a corporation’s exercise of this First Amendment right may be the First Amendment itself.
Minnesota’s upcoming gubernatorial election has become the focus of corporation’s contributions to political organizations because of a Minnesota law requiring organizations to publicly disclose contributions over $100. The law does not set any limitation on the amount of a donation, but if it is more than $100, the public and the press are going to know about it. According to two Minnesota political organizations, the disclosure requirements are unconstitutional. (more…)
Weekly Wrap Up
October 29, 2010
Is World Wrestling Entertainment political advertising? According to election officials in Connecticut, it is. They have told poll workers that they can ask voters wearing WWE gear to cover it up, fearing that it could be construed as political advertising for Republican Senate candidate Linda McMahon, who is also the former CEO of WWE. Officials said that McMahon is so closely associated with WWE that the gear could easily be considered a violation of rule banning political campaigning within 75 feet of a polling station. McMahon’s husband, Vince McMahon, said that this was a violation of WWE fans’ First Amendment rights and would deny them their right to vote. Connecticut Republicans are also up in arms, with the State Party Chairman calling the action “voter intimidation.” This is not unprecedented, however; a similar rule was in place in California, forbidding voters from wearing “Terminator” gear when Arnold Schwarzenegger was on the ballot.
The 9th Circuit struck down part of Arizona’s voter registration laws on October 27, holding that the provisions of the law requiring proof of citizenship conflicted with the federal law. The federal law only requires that applicants “attest their citizenship under penalty of perjury”, while the 2004 voter-approved initiative in Arizona required applicants to register to vote to show proof of citizenship by providing one of the documents on the approved list. The citizenship requirement was “an additional state hurdle” to registration, something the federal law was trying to prevent. The 9th Circuit appeals panel–which included retired Supreme Court Justice Sandra Day O’Connor–did not, however, overturn the requirement that voters show identification at the polls in order to vote. (more…)
An Amendment for One Man? Connecticut Amends the Citizens’ Election Program
October 29, 2010
Once again the citizens of the Constitution State are questioning the actions of their politicians. The bi-partisan ‘Clean Elections’ Act has been amended on party lines and sparked serious debate. With the upcoming Gubernatorial Election, both parties have much at stake, and immediate changes were necessary in light of the 2nd Circuit’s ruling that a part of the act was unconstitutional. But with the way these changes were adopted, the citizens of Connecticut are wondering if these adaptations are really just making their ‘Clean Elections’ Act dirty.
The original Citizens Election Program (“CEP”) was established under the ‘Clean Election’ Act’s passing in 2005 during a time of political turmoil in Connecticut. Governor John Rowland’s 2004 resignation amid controversy regarding inappropriate interactions with state contractors helped to contribute to the bill’s support. Its passage establishemaloyd public financing for all statewide races, banned contributions from contractors and lobbyists, and was widely considered to be a model system for publicly funded elections. Currently, Connecticut is also operating a pilot program for public financing of municipal elections, which is the first of its kind among the states. The CEP has been widely supported from both sides of the aisle in Connecticut and beyond. (more…)