Vote by Mail: Wave of the Future?
November 18, 2009
In 1998 Oregon voted by a wide margin to expand its experimental vote-by-mail system to all primary and general elections in the state. Oregon was followed by Washington, which with the exception of a single county, has adopted a similar vote-by-mail system. The typical voting procedure in these states is that 
three weeks to a month before the election the state mails ballots to all registered voters who fill them out and have until the night of the election to return them via mail or by dropping them off at a county office. Now, in 2009, the model pioneered by the northwest is being tested in the east, as New Jersey is moving towards its own version of the vote-by-mail system. New Jersey has allowed voters to vote absentee without restriction since 2005, but the off-year elections in November 2009 were the first test of a new system that more fully embraced the vote-by-mail concept, by removing any pretense to the ballot being for absentee purposes. This system differs from that embraced by Oregon and Washington in that voting by mail is not mandatory, it’s just another option in addition to more traditional polling systems. New Jersey embraced the program for the same reason that states like Oregon and Washington did, in an attempt to boost voter participation by making voting more convenient. The New Jersey Secretary of State touts the new program as removing any excuse for Jerseyites not to vote, and Oregon boasts of an 86 percent voter turnout in the 2004 Presidential Election and a 70 percent turnout in the 2006 midterms.
It remains to be seen, however, whether the vote-by-mail model is truly successful in driving up voter participation. The change to New Jersey’s early voting law in 2009 was likely a response to the lack of success from its 2005 expanded absentee voter law. According to numbers tabulated by the New Jersey Secretary of State, in every statewide primary and general election from 2003 to the 2008 primaries, absentee voting never amounted to more than .05 percent of ballots cast. Even Oregon and Washington, the two states that have implemented mandatory vote-by-mail systems, the results may not be as remarkable as advertised. (more…)
MA Legislature Flirts with Unconstitutionality in Compromise Regarding Appointed Senator
November 18, 2009
The 17th Amendment to the U.S. Constitution is known best for establishing direct election of senators, but it also allows state legislatures to empower the governor to appoint a replacement to complete the term of any vacancy due to death, resignation, or expulsion. While many states have used this provision to fill their vacancies, the Amendment does not clarify whether this replacement is permitted to run for the seat in the next election. It is presumed that any legislation specifically forbidding this may be unconstitutional.
Senator Edward Kennedy’s death on August 25th, 2009 created a vacancy in the Senate. Pursuant to MA GL ch. 54, § 140, Governor Deval Patrick set a special election date for January 19th, 2010. On September 19th, 2009, in accordance with the 17th Amendment, the Massachusetts House passed a bill allowing the governor to appoint an interim senator to represent the state until the special election takes place in 2010. On September 22nd, the MA Senate also approved the bill, and the General Court with both houses gave final approval the following day. On September 24th, the governor signed the bill into law. Patrick then appointed Paul G. Kirk, Jr. as interim US senator. His appointment will expire after the special election on January 19th, 2010. Governor Patrick chose Kirk under the condition that he not run in the special election, in response to both the MA House and Senate passing resolutions requesting that the selectee not run in the special election. (more…)
Virginia’s Off-Off-Year Elections
November 16, 2009
It’s like a quick fix for the electoral junkie who didn’t quite get enough the last go around. Every four years on the odd-numbered year after the presidential elections, Virginia and New Jersey hold elections for Governor (Virginia also elects its Lieutenant Governor and Attorney General as well). They are the only states to hold such elections at this time. These are called “off-off-year” elections because they occur two-cycles off the presidential election cycle (presidential election years being the “on” year elections, mid-term election years being the “off” year elections, and odd-year elections being the “off-off” year elections).
While odd election cycles might point to Machiavellian political games designed to enhance the electoral fortunes of one faction or another, the reason for Virginia’s unique place on the electoral calendar is really rather benign and has more to do with shifting populations, and arguments over proportional representation, and Virginia’s strong adherence to tradition than anything else.
After the census of 1840 was taken, it became apparent to everyone that the white population of the Western half of Virginia (the half that is now the state of West Virginia) far exceeded the white population of the rest of the state. Noting the disproportionate representation in the General Assembly favoring the 
Eastern half of Virginia, Westerners began calling for a constitutional convention to solve the problem, and the General Assembly soon complied. Delegates to the convention convened in Richmond in early October, 1850 and met for nearly a year.
In March 1851, while the constitutional convention was meeting, the Virginia General Assembly elected a new governor, as it had for the past 75 years for a three-year term. The newly elected governor Joseph Johnson was to take office on January 1, 1852, but in the ensuing months Virginia voters approved the new constitution which among other things expanded suffrage to all white male citizens 21 years or older who had been residents for at least two year and required the governor to be popularly elected to a four-year term. The constitution also prohibited the governor from serving successive terms, a prohibition that is still in place today.
Redistricting Reform in Virginia
November 16, 2009
Redistricting Reform Part 1:
Where We Begin
Before we begin, a word about me: I’m a political professional. I run my own company, and my career has been split between political campaigns and advocacy organizations. Unlike most people writing on this blog, I’m not a lawyer or a law student or a professor. And while I have a pretty strong understanding of this issue, my review of relevant case law may seem less than expert – my apologies.
So why would I be writing about redistricting reform? Simple: A few years ago, I was approached to manage an effort to reform Virginia’s redistricting process. It is that experience, as Executive Director of the Virginia Redistricting Coalition, which gives me my particular knowledge on the topic. As someone who had never previously worked on the issue, I was now to run an organization, develop legislation, devise a legislative strategy, and build a coalition around this topic. Now, I’d done all of these things before, to some extent, in other positions. Having previously cofounded and run a non-profit advocacy organization, I knew what I was getting into.
But to get all that done in 6 months, well that’s a bit more difficult. So I bring to this discussion the benefit of a crash course in redistricting, reform, and Virginia’s brand of the process. This blog series will be about what I learned while I ran this organization and advocated for redistricting reform.
Welcome to the Wild West
Let’s begin where I started when I got the job: The Constitution of Virginia, Article II, Section 6 (emphasis added):
Members of the House of Representatives of the United States and members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly. Every electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district. The General Assembly shall reapportion the Commonwealth into electoral districts in accordance with this section in the year 2011 and every ten years thereafter.
Any such decennial reapportionment law shall take effect immediately and not be subject to the limitations contained in Article IV, Section 13, of this Constitution.
(Note: Article IV, Section 13 deals with enactment dates of new laws)
The key words are in bold. In Virginia, reapportionment is handled as if it were any other law. Let that one sink in: Any other law. (more…)
Welcome from Dean Douglas
November 16, 2009
Today, the William & Mary’s Election Law Society launches a conversation about how we vote in America, with particular focus on issues that arise out of state and local elections.
This ambitious project reflects the tremendous interest in election law among William & Mary law students. My hope is that this blog will become a valuable venue for conversation involving law students, election law scholars, and election law practitioners from across the nation on a range of important state and local election issues. I hope that you will join me in becoming part of the StateofElections.com dialogue.
Thank you for your interest in and support of this innovative student effort.
Davison Douglas, Dean of William & Mary Law School
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It’s Our First Day – Welcome!
November 16, 2009
Thanks for visiting us on our first day at State Of Elections. We’re posting stories every Monday, Wednesday, and Friday to cover the moving pieces in state election law. To learn more about us, click over here. To join our effort, click over here.
Your readership and comments are important to us, so please jump into the conversation. If you’d like to receive regular email updates about our posts, or have suggestions for how we can improve, email us.
– Editors
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