9th Circuit Panel Strikes Down Washington Disenfranchisement Law
April 5, 2010
The unending battle over felon disenfranchisement in Washington state has taken an interesting turn, as a three-judge 9th Circuit panel ruled 2-1 that Washington’s denial of voting rights to incarcerated felons is a violation of Section 2 of the Voting Rights Act.
This decision is directly counter to one issued just six months ago by a panel of 1st Circuit judges reviewing a case out of Massachusetts, Simmons v. Galvin, where that panel held 2-1 that Section 2 simply doesn’t apply to felon disenfranchisement. The glaring circuit split on this question makes this case a very strong candidate for en banc review at the 9th, and possibly ripe for a Supreme Court grant of certiorari thereafter (which would likely also address the very issue of whether the VRA applies to felon disenfranchisement at all, a question still very much unsettled).
The Washington case, originally filed in the mid-90s and now known as Farrakhan v. Gregoire, was brought by a convicted felon sentenced to a five-year term who objected to being denied the opportunity to vote in elections during his incarceration. The plaintiffs’ argument is based on the idea that the criminal justice system in Washington is itself racially biased in that “minorities are disproportionately prosecuted and sentenced,” and as such a deprivation of voting rights based on that allegedly biased system would violate the VRA. In 2003, during an earlier round of appeals, another three-judge panel held unanimously that the racial biases of a criminal justice system could be considered in a “totality of the circumstances” analysis of voting conditions. (Farrakhan v. Washington, 338 F.3d 1009, 1016, 9th Cir. 2003). On remand, the district judge did not consider the evidence to be sufficient to demonstrate a denial of the right to vote based on race, and Farrakhan appealed again. (more…)
Weekly Wrap Up
April 2, 2010
Every week, State of Elections brings you the latest news in state election law.
– A number of states are passing new legislation in an attempt to curb the influence of special interests on judicial elections.
– Wisconsin state Representative Jeff Stone is pushing for voter ID legislation in that state. The legislature had previously approved a bill that required photo ID at the polls, but the bill was vetoed by the Governor.
– The Maryland legislature is currently debating a bill that would allow 16 year olds to register to vote.
– In California, two candidates for state attorney general are preparing for a court battle over what titles they can attach to their names on the ballot. Titles and nicknames seem to be a particularly contentious issue lately. Check out this article from last week about Conrad “Colonel” Reynolds and “Porky” Kimbrell, and their efforts to put their nicknames on the ballot. Spoiler alert: Colonel = flagrant violation of election law, Porky = perfectly legal.
– Here’s an interesting post about the 2010 census and redistricting from the Balkinization blog.
Redistricting and Judicial Elections in Pennsylvania
March 31, 2010
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| Justice Joan Orie Melvin of the Pennsylvania Supreme Court |
With the census in full swing, Pennsylvania again looks forward to the decennial redistricting process, the back room dealing and eventual round of lawsuits. Under Pennsylvania Constitution Article II § 17, Democrats and Republicans in the State legislature each select two members of the five member Legislative Reapportionment Commission (LRC) which will conduct the redistricting. A fifth member who serves as Chairman of the Commission is selected by majority vote of the Commission or, in case of tie, by vote of the Pennsylvania Supreme Court.
Pennsylvania elects its Supreme Court and the issue of redistricting was a key party rallying point in elections last year. Justice Joan Orie Melvin prevailed in that election, giving Republicans a 4-3 majority on the Court. The race was the most expensive judicial election in the nation last year with over $5 million spent. The outcome will likely mean a second consecutive round of redistricting led by Republicans who controlled the 2000 process as well. Prior to the election Orie Melvin promised to put the good of the people first. “I am not a Republican judge; I am a judge of all the people. I have always followed the constitution – and will do so in redistricting.” (more…)
How I Learned to Stop Worrying and Love the People’s Veto
March 29, 2010
Like many other states, Maine allows for citizen initiatives, the process by which individual citizens and nongovernmental organizations directly propose legislation. Also like many other states, Maine’s initiative process attracts more than its fair share of bizarre characters and proposals, including this referendum to end the fluoridation of Maine’s drinking water. Considering the most famous attempt to end the fluoridation of drinking water ended in a nuclear war, I suppose that the initiative process is a vast improvement.
However, the occasional strange referendum isn’t the only thing that makes Maine’s initiative process interesting. In addition to allowing conventional initiatives, Maine also gives its citizens a “People’s Veto”, through which the voters can veto laws passed by the state legislature. The right to a People’s Veto is enshrined in Article IV, Section 17 of Maine’s Constitution, which also outlines the process by which a veto can appear on the ballot. (more…)
Weekly Wrap Up
March 26, 2010
Every week, State of Elections brings you the latest news in state election law.
– ACORN, the controversial voter registration and activist group, is disbanding because of declining revenue.
– In the Arkansas Senate race, there’s some controversy over an obscure state law that prevents the use of professional or honorary titles on ballots. One Republican Senate candidate had hoped to put the title “Colonel” in front of his name on the ballot, but was refused by election officials. Nicknames, however, are perfectly legal. Just ask Harold Kimbrell, who will appear on the ballot as “Porky” Kimbrell.
– During last week’s election law Symposium at William & Mary, the panelists mentioned that census data can be skewed when large numbers of incarcerated felons are counted as “residents” of the state they are incarcerated in. Here a few editorials discussing that practice.
– More news on the California Redistricting Commission. Even though over 25,000 people filed the initial application to be on the Commission, less than 1,200 have completed the second step of the application process. For more general information on the Commission, see this post.
– Minnesota Governor Tim Pawlenty has signed a law that should make absentee voting easier in that state. The law will require election officials to send a replacement ballot, or notify the voter that he should cast a new ballot, if an absentee voter’s ballot is rejected.
– After much debate, the Florida Senate has passed an electioneering bill. An alternate version of the bill was ruled unconstitutional for requiring all organizations to register with the state and comply with financial reporting requirements if they even mentioned a candidate or political issue. The new version of the bill would still require certain organizations to register, but not those that focused only on issues.
Citizens United Against the Supreme Court
March 24, 2010
The recent Citizens United ruling by the US Supreme Court, which holds that First Amendment protections apply not just to individual speakers but also to corporations, is only the latest in a decades-long series of decisions by the Court that have expanded the scope of the First Amendment into realms never imagined by our Founding Fathers.
Beginning with Buckley v. Valeo in 1976, the Justices have embraced the concept that money is equal to speech, and that therefore any limitation on campaign spending violates the First Amendment. This week’s ruling simply expands this protection to cover corporations, which are by definition aggregators of money. So now corporate money will completely overwhelm individual money in the arena of political speech, and Madison’s conception of our government as a forum for the broadest possible public deliberation of issues will be rendered legally moot. (more…)
Weekly Wrap Up
March 22, 2010
This weekly wrap up is a little late, since we posted a summary of our Symposium on Friday instead of our typical weekly wrap up. To anyone who was waiting with bated breath for the latest news in state election law, I apologize.
Anyway, here’s a slightly belated summary of last week’s state election law news.
– According to a study by the Brennan Center, state judges are raising significantly more money for their campaigns than ever before. In the last decade, candidates for state judgeships have raised more than 206 million dollars, which is more than double the 83 million raised by candidates in the 1990s.
– Lawmakers in Maryland and Washington D.C. are considering abandoning their traditional September primary dates, as the requirements of the newly passed “Military and Overseas Voter Empowerment Act” make it impossible to hold a primary so late in the year.
– There’s some controversy in New Mexico over whether Joe Campos, Democratic candidate for lieutenant governor, qualified to appear on the primary ballot. Mr. Campos received 19.69% of delegate votes in that state’s pre-primary nominating convention. Under New Mexico law, a candidate must receive 20% of the vote to appear on the ballot, and for the last week, the New Mexico Democratic Party has been debating whether to round up to 20% and allow Campos’s name on the primary ballot. Luckily for Campos, the party eventually ruled that the law requires them to round up. Interestingly, a Republican candidate who received 19.5% of delegate votes was kept off the primary ballot for failing to reach the 20% threshold.
-The Democratic Party is considering launching a 20 million dollar campaign to maintain or take control of seventeen pivotal state legislatures, in anticipation of 2011 redistricting. The party that controls those state legislatures will have the power to redraw 198 congressional districts.
– The Election Assistance Commission now provides voter registration forms in five Asian languages, Japanese, Korean, Tagalog, Vietnamese, and Chinese.
– Chris Biggs has been appointed the new Kansas Secretary of State. The previous Secretary of State, Ron Thornburg, resigned his position on February 15th, forcing Governor Mark Parkinson to appoint a successor to serve the remainder of the term. Kansas elects its Secretary of State and some fear that being appointed interim Secretary will give Biggs an unfair advantage in the upcoming Secretary of State campaign. Essentially, Biggs gets all the advantages of incumbency, without having to win an election in the first place.
– Check out our Citizens United and the States page, which tracks the impact of the Citizens United decision on the states. The page has reached 72 links and more are being added everyday.
Great Symposium…or Greatest Symposium?
March 19, 2010
When future generations study American history, they will need to memorize all the important dates. July 4th 1776, the signing of the Declaration of Independence. June 6th 1944, the D-Day invasion. January 20th 2013, the inauguration of Sarah Palin.
But one date will be remembered more fondly than the rest, and that date is March 18 2010, the date of the Fourth Annual William and Mary Election Law Symposium.
Yes, the Symposium was a resounding success. The turnout was great, our speakers were insightful, and the cheese and wine reception was delicious.
We’ll link to a video of the Symposium as soon as it can be uploaded. Sometime shortly after that, we’ll post a full transcript. Until then, here’s a brief summary of the day’s discussion.
Our three speakers were Trevor Potter, Jessica Amunson, and J. Gerald Hebert. The discussion was moderated by John Hardin Young.
Trever Potter began the Symposium with a discussion of the history of redistricting in America. He pointed out that a mere 50 years ago, nobody would have thought to have a conversation about redistricting. Until 1962, the Supreme Court had ruled that how states arranged their districts (apportionment) was a political question, best left to the other branches of government.
But in Baker v. Carr and Reynolds v. Sims, the Court reversed its position and allowed judicial intervention in apportionment cases. The courts therefore had to establish standards by which the constitutionality of the district could be determined. Most notably, the Supreme Court declared the “one man, one vote” principle, which required that districts be drawn in such a way as to have relatively equal populations, so that no person’s vote “counted more” just because they were in a less populated district.
Gerry Hebert spoke next, about how legislators tackle the problem of redistricting and dividing populations into tidy little districts. Legislators get a great deal of information from the census and other sources, including individual voting histories and racial voting patterns. Since redistricting is so critical to protecting incumbency, legislators will spend hundreds of thousands to hire a professional redistricting team to ensure the creation of districts that will withstand legal challenges.
Finally, Jessica Amunson spoke about redistricting reform and the future of redistricting. She noted that over 41 states had redistricting related litigation last census, and she expects that number to rise in the coming year. Much of that litigation ended with the courts having to redraw the districts, using standards and goals that are often contradictory. For example, the courts have recognized that incumbency protection is valid justification for drawing a district a certain way (as incumbents get more important positions on legislative committees), but courts also recognize the importance of ensuring partisan fairness and competitiveness.
The three speakers then took questions from the audience on a wide variety of census and redistricting related topics.
Then everyone got to enjoy delicious wine.
All in all, everybody had a great time, and we hope that next year’s Symposium will be even better.
Check back next week for a video and full transcript of the Symposium.
Interview with Jessica Amunson, Symposium Panelist and Redistricting Expert
March 17, 2010
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| Jessica Amunson |
On Thursday, William and Mary will be hosting a Symposium entitled “Back to the Drawing Board: The 2010 Census and the Politics of Redistricting“. One of the panelists is Jessica Amunson, associate at the Washington, D.C., based firm Jenner & Block, where she is a member of the Election Law and Redistricting practice. Ms. Amunson agreed to speak with State of Elections regarding redistricting reform.
In your opinion, what is the biggest issue for the 2010 redistricting effort? What issue should states, legislators, and politicians be most attuned to?
The biggest issue is always who is going to control the process. For an idea of what is at stake, take a look at Karl Rove’s piece in the Wall Street Journal on March 4th, in which he describes how the Republican party is targeting certain state legislative seats in an attempt to ensure that Republicans will control the legislatures that will then redraw the lines. According to Rove’s piece, “Republican strategists are focused on 107 seats in 16 states. Winning these seats would give them control of drawing district lines for nearly 190 congressional seats. Six of these states are projected to pick up a total of nine seats, and five are expected to lose a combined six seats.” So right now, the issue that everyone is focused on are the state legislative races this fall. (more…)
Election Law Symposium this Thursday!
March 15, 2010
The William & Mary Election Law Symposium is this Thursday, March 18th. The Symposium is titled “Back to the Drawing Board: The 2010 Census and the Politics of Redistricting” and our expert panel will be discussing various topics related to the upcoming nationwide redistricting efforts.
The panelists include:
– Trevor Potter, John McCain’s General Counsel for the 2000 and 2008 campaigns, founding President and General Counsel of the Campaign Legal Center, and member of the Washington, D.C., based firm Caplin & Drysdale.
– J. Gerald Hebert, Executive Director and Director of Litigation at the Campaign Legal Center, and former adjunct professor at Georgetown University Law Center where he taught courses on voting rights, election law, and campaign finance regulation.
– Jessica Amunson, associate at the Washington, D.C., based firm Jenner & Block where she is a member of the Election Law and Redistricting practice.
The discussion will be moderated by John Hardin Young, noted election lawyer featured in the movie “Recount,” Adjunct Professor at William & Mary Law School, and member of the Advisory Committee to the William & Mary Election Law Program.