Archive | Election Law

A Recount in Virginia?

CNN reports on a possible election recount in Virginia:

The Republican in Virginia’s attorney general race will request a recount after the official results released Monday showed state Sen. Mark Obenshain behind Democratic state Sen. Mark Herring by a razor-thin margin of about .007%.

Obenshain lost by 165 votes out of 2.2 million, marking the closest statewide race in Virginia’s history. . . .

If a candidate loses by less than 1% in Virginia, he or she is allowed to petition the Board of Elections for a recount after the votes are certified. And because the margin was less than .5%, the counties involved in the recount will cover the costs.

A three-judge court, sitting in Richmond, Virginia, will supervise the recount. It will also set the dates and terms of the recount, and confirm the officers of election and coordinators for the recount, according to Obenshain’s campaign.

Bring on the lawyers. […]

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Could VA AG Race Go to Federal Court?

The Virginia Attorney General’s race remains too close to call. At last count, Democratic State Senator Mark R. Herring had a slim lead over Republican State Senator Mark D. Obenshain. If the lead evaporates, will Democrats take the contest to federal court? Rick Hasen thinks they might. His article in Slate begins:

The race for Virginia’s attorney general is about as close as it gets in a statewide race: At the moment, about 100 votes separate the two candidates out of 2.2 million votes cast. When I started writing this article, Republican Mark Obenshain was leading Democrat Mark Herring, but that’s now reversed. County election boards are checking their math and deciding which provisional ballots to count. It is anyone’s guess who will be ahead when certification comes Tuesday night. In the meantime, Democrats are up in arms over what they see as a new rule the Republican-dominated state elections board put in place last Friday to make it harder to count provisional ballots in Democrat-leaning Fairfax County.

Unless Herring builds up a larger lead, Democrats’ best hope for winning the attorney general’s race probably lies in federal court, and the results there are uncertain and may take a very long time to work out.

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Posner’s “About Face” on Crawford Continues Turning About

Two weeks ago, Jonathan noted that in an interview with Mike Sacks of the Huffington Post, Judge Richard Posner said that he thought he’d been wrong to uphold Indiana’s voter ID statute in Crawford v. Marion County Election Board.

In more recent comments (here at The New Republic which are clarified here at the Wall Street Journal law blog) Judge Posner has now said that he was wrong to have said that he was wrong. His current position is that he “may well have” been wrong to uphold the statute, but that he does not know, because “we judges in the Crawford case did not have sufficient information about the consequences of an Indiana-type photo ID voter qualification law to make a reliable decision regarding its constitutionality.”

Rick Hasen argues that Judge Posner was right the second time. Ed Whelan, meanwhile, argues that “Posner’s vacillation and contradictions on the Indiana voter ID case provide further evidence that he is wrong to advocate an open-ended judicial approach in which it is desirable to have the soundness of a decision turn on the judge’s estimation of its ‘likely consequences.’” On this particular controversy, I think this is a good reminder not to give undue weight to one judge’s expressed views about judging, even when those views are autobiographical — and even if those views provide a good “hook” for legal bloggers.

As for the issue of voter ID more generally, I do not yet think we have reached common ground on the basic first principles. The text of the Constitution neither guarantees a general right to vote nor includes a general prohibition on partisan decisionmaking. At the same time, some of the Court’s decisions (including Crawford) suggest that the Constitution does regulate partisan burdens on voting, but it is not clear […]

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Judge Posner’s About Face on Crawford

In an interview Friday with HuffPostLive, Judge Richard Posner said he now believes the Supreme Court was wrong to uphold Indiana’s voter identification law in Crawford v. Marion County Election Board.  This is particularly noteworthy because, in Crawfordthe Supreme Court upheld a 2-1 decision by the U.S. Court of Appeals for the Seventh Circuit written by Judge Richard Posner.  Josh Gerstein has more here.
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Corsi’s Life of Political Crime

If you want to get together with friends to talk about politics, hear speakers on policy issues, and perhaps create a website promoting policy ideas, do you need to register as a political actin committee even if you don’t endorse candidates or get involved in elections?  In Ohio the answer can be “yes,” as Ed Corsi discovered after he set up the “Geauga Constitutional Council.”  Although Corsi only spent several hundred per year on the Council, the Ohio Elections Commission concluded it was required to register and report on its activities, and this conclusion was upheld in Ohio courts.  Now Corsi is seeking Supreme Court review, aided by the Center for Competitive Politics.

In yesterday’s WSJ CCP Chairman and former Federal Election Commission Chair Bradley Smith wrote about the potential significance of the case:

It is inconceivable, however, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to  . . . complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.

The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics—the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. . . .

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee

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House Democrat to Challenge IRS Tax-Exemption Rules

The Washington Post reports that Rep. Chris Van Hollen (D-MD) will file suit today against the Internal Revenue Service’s regulations governing what organizations qualify for tax exempt status.

Current law says the organizations must engage “exclusively” in social welfare activities, but IRS tax code requires only that they are “primarily engaged” in such purposes. That discrepancy has led to confusion for application processors, who have struggled to determine what constitutes political activity and how much should disqualify groups from tax-exemption, according to agency officials.

“I don’t think the IRS should be in the business of determining whether the primary purpose of an organization is political or educational,” Van Hollen said in an interview Tuesday. “The statute is very clear they should not be in that business.”

Dean Patterson, an IRS spokesman, declined to comment on the planned suit but noted that the agency’s 2013-2014 work plan, released on Aug. 9, calls for new guidance on determining of 501(c)(4) eligibility. . . .

Three campaign-finance watchdog groups — Democracy 21, the Campaign Legal Center and Public Citizen — are joining Van Hollen in the lawsuit. They have scheduled a joint teleconference Wednesday to discuss the legal action.

Hat tip: Rick Hasen.

[Note: It’s been a sloppy day. I accidentally identified Van Hollen with an “R” in the body of the post.  It’s fixed now.] […]

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San Diego’s Recall Election and California Constitution Art. 3, Sec. 3.5

San Diego’s mayor, Bob Filner, has been accused of widespread sexual harassment (and even assault). He is the subject of a recall petition, and today marks the official beginning of the signature-gathering period. But San Diego’s laws governing recall are both somewhat confusingly-written, and remarkably stringent. The city attorney has already issued three legal opinions clarifying various aspects of the recall procedure:

1, declaring unconstitutional a legal requirement that voters can only vote for a replacement candidate if they voted on the recall question.

2, concluding that it is permissible to have multiple recall petitions circulating until a special election is scheduled, despite a confusingly-worded provision that led some to believe that a failed petition immunized the candidate from further recall efforts.

3, declaring unconstitutional a requirement that petition circulators be state residents.

And the Recall Elections Blog describes San Diego’s law as “a disaster, and it many ways it ranks among the worst recall laws in the country, if not the globe.” But there may be yet an additional lurking “disaster” in California law, which I have not yet seen discussed.

Article 3, Section 3.5(a) of the California Constitution says:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;

In 2004, the California Supreme Court noted that it was an open question whether this provision applies to local executive branch officials, but if it does, then it creates problems for the recall — it would mean that the city ought to be enforcing the unconstitutional voting requirement, and more importantly, the residency […]

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All the Senator’s Men

Over two dozen former aides to Senator Max Baucus are now tax lobbyists in Washington, D.C., Ezra Klein reports.  This is significant because Senator Baucus is Chairman of the Senate Finance Committee and any reform of the tax code will go through him.  This makes those with Baucus’s ear in high demand.  Access to politicians isthe key to successful lobbying, and personal relationships are far more effective in this regard than campaign contributions.  Notes Klein:

the point of hiring Baucus’s former aides isn’t that they can seamlessly insert any language they want into the final legislation. It’s that they have a direct line to Baucus, and to the people around Baucus, and that gives them a huge advantage. The fact is that human beings are more likely to find arguments convincing when they’re coming from friends rather than strangers or enemies.

That’s the key to most of the lobbying in Washington. It’s not about leveraging bribes so much as it’s about leveraging relationships — and that makes it harder to stamp out.

Klein seems to recognize that campaign finance reform does little to counter this effect, as the relationships between lobbyists and political figures are far more important than the cash.  But it’s worse than that, because traditional campaign finance regulation can actually make things worse.  Such regulations can actually increase  the relative influence of former legislative staffers and, as a consequence, further tilt the playing field in favor of large, established political interests by limiting other sources of money.

Because campaign funds must be raised in such small increments, it takes politicians far more time — more receptions, more phone calls, more meetings — to raise the amount of money necessary to mount a campaign.   Thus there’s less time to study issues, listen to constituents, meet with the […]

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The Virginia GOP’s Rotten Electoral Vote Plan

James Taranto is not persuaded by some of the arguments against the GOP plan to change Virginia’s method of awarding electoral votes from winner-take-all to allocating votes based on the winner of each congressional district and awarding the remaining two votes to the candidate who wins the most districts. Nonetheless, he opposes the plan because he believes it “would be likely to promote cynicism and confusion.” Larry Sabato goes farther, labeling the plan “a corrupt and cynical maneuver to frustrate popular will and put a heavy thumb — the whole hand, in fact — on the scale for future Republican candidates.” Even if, as Taranto notes, there’s no guarantee that the new plan would permanently benefit Republicans, there’s not even a pretense here that there is some principle independent justification for the switch — which is reason enough to reject it.

No proposal to reform election laws or procedures, however well reasoned, is authored behind a veil of ignorance as to its likely partisan effects. So it’s no surprise that partisan positions on the merits of individual reforms are inevitably influenced by partisan interests. This makes it difficult enough to push sensible election law reforms in today’s hyper-partisan environment. Naked power plays like that proposed in Virginia only make this problem worse. Republicans need to (re)learn how to win elections by appealing to voters, not rigging the rules in their favor. […]

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Citizens United and the Fall of the Roman Republic

In a recent Slate article, Rob Goodman and Jimmy Soni claim that the history of the fall of the Roman Republic strengthens the case against the Supreme Court’s decision in Citizens United, which ruled that the First Amendment protects corporate and union political speech against restriction by government. The influence of money in politics, they claim, was what brought down the Republic. Dubious analogies between the modern US and ancient Rome are all too common. This one has two serious flaws: the problematic use of money in ancient Roman elections involved outright bribery and corruption rather than merely spending on speech; and even that wasn’t really what caused the republic to collapse.

As Goodman and Soni recognize, the financial corruption that plagued ancient Rome was not spending on campaign speech, but flagrant bribery of voters and public officials:

Ancient politicians were just as skilled as modern ones at identifying and exploiting loopholes in election law. In Rome, the key loophole lay in the fuzzy distinction between ambitus (electoral bribery) and mere benignitas (generosity). Roman elections were often won on the strength of free food, drinks, entertainment, and sometimes hard cash offered directly to voters and financed by private fortunes. In fact, Roman campaign slogans were sometimes inscribed on the bottom of commemorative wine cups—you could drain the cup and find out whom to vote for. Most of the Roman elite relied on the gentleman’s agreement that the line between bribery and generosity would not be strictly patrolled. At worst, rank vote-buying was something your opponents engaged in; you, on the other hand, were simply being a good neighbor….

Politicians able to afford the massive bribes were usually able to afford protection after the fact. Worse, with no enforceable limits on spending and a heavy premium on one-upsmanship, the

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Posner Defends the Electoral College

The ever-iconoclastic Judge Richard Posner has a column in Slate defending the Electoral College. Although the Electoral College is somewhat undemocratic, in that a candidate may win the election without securing a majority of the popular vote, Posner identifies five practical reasons for keeping it in place. I am not sure I agree with all of them. For instance, however much I like my adopted state of Ohio, I am not convinced that we have the most “thoughtful” voters or that the focus on swing states improves the substance of the campaign. On the other hand, I do agree with him that the Electoral College is more likely to produce a certain outcome than the popular vote and, on the margin, does more to encourage candidates to appeal to multiple regions of the country (even if it also encourages pandering to some regional interests). He also notes the Electoral College produces a “majority” winner, whereas the winner of the popular vote often gets less than fifty percent of the vote. In the end, it’s also not much of an argument that the Electoral College is “undemocratic.”

No form of representative democracy, as distinct from direct democracy, is or aspires to be perfectly democratic. Certainly not our federal government. In the entire executive and judicial branches, only two officials are elected—the president and vice president. All the rest are appointed—federal Article III judges for life.

It can be argued that the Electoral College method of selecting the president may turn off potential voters for a candidate who has no hope of carrying their state—Democrats in Texas, for example, or Republicans in California. Knowing their vote will have no effect, they have less incentive to pay attention to the campaign than they would have if the president were picked by popular vote,

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Is it Unjust to Require Children to Pass a Knowledge Test to Vote, but Not Adults?

Canadian legal blogger Leonid Sirota has posted an interesting response to my post advocating extension of the franchise to politically knowledgeable children. He argues that it is unjust to require children to pass a knowledge test for voting, but not adults. He would therefore prefer to lower the voting age to 16 instead:

Pour ma part, je pense que l’option du vote à 16 ans est préférable à celle d’un test. Au-delà problèmes d’administrabilité évoqués par prof. Somin, ce sont arguments qu’il apporte lui-même qui semblent militer contre l’instauration de tests pour les mineurs. S’il n’y a pas de bonne raison de traiter les jeunes différemment des adultes, et les arguments de prof. Somin pour dire qu’il n’y en a pas sont très convaincants, alors il est sûrement injuste d’instaurer un test pour les premiers mais pas pour les seconds. Si les connaissances du système politique devraient être un critère pour pouvoir voter, il n’y a pas de raison pour ne pas appliquer ce critère aux adultes.

Sirota’s post is in French, which I understand, but most of our US readers probably don’t. I would translate the key passage roughly as follows: “If there is no good reason to treat the young differently from adults, and Prof. Somin’s arguments that there isn’t one are very convincing, it is surely unjust to institute a test for the former, but not the latter. If knowledge of the political system should be a prerequisite to getting the right to vote, there is no reason not to apply that criterion to adults.” If I have gotten the translation wrong, I hope Sirota or one of our French-speaking readers will correct me.

I am not convinced by Sirota’s objection. It’s true that my proposal doesn’t eliminate all unequal treatment of children and adults. Children would […]

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Explaining Obama’s Victory

Beginning today, pundits are going to offer a wide range of explanations for Obama’s victory. But I think the simplest and most obvious is that he won because the economy had improved just enough since 2008 to give him the edge. As I pointed out back in September, standard models of presidential election outcomes based primarily on economic variables predicted, on average, that Obama would get 50.2% of the popular vote. Although late West Coast results will increase this total slightly, it looks like he actually got about 50.4%. That’s a very close match.

The econometric models generally assume a two party race. In reality, two third party candidates, Libertarian Gary Johnson (1 percent) and Jill Stein of the Green Party (0.3%) got statistically meaningful shares of the vote. If we plausibly assign most of Johnson’s vote to Romney and most of Stein’s to Obama, we end up with a roughly 51-49 split in a hypothetical “pure” two party race. We get a similar result if we throw out the third party votes and just look at Obama’s share of the 98.5% of the electorate who voted Democratic or Republican. Obama slightly outperformed economic expectations, but not by much. Republicans who thought that the state of the economy gave Romney a huge advantage forgot that voters care about the directional trend as well as the absolute situation.

In my view, much of the electorate gave insufficient weight to the possibility that Obama’s policies made the recovery weaker than it otherwise would have been, and they also likely gave him too much credit for at least some recovery that would have happened regardless of who was in the White House. Economist Casey Mulligan recently published an important book defending the former theory. If you believe that the TARP […]

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Suffer the Little Children to Vote

On this election day, as on most others, we will hear a lot about the need to increase turnout and the dangers of voter suppression. But few will even consider questioning the systematic exclusion of a huge part of our population from the franchise: children under the age of 18. We allow even the most ignorant and irresponsible adults to vote, but exclude even the most knowledgeable and insightful children. And to add insult to injury, we saddle them with a mediocre education system and trillions of dollars in public debt that they will someday have to repay.

For reasons I outlined during the last presidential election, this is both unjust and counterproductive. We should at least consider allowing children to vote if they are more knowledgeable than the average adult voter:

The main objection to giving children the vote is that they lack the knowledge to make informed choices. Of course the same is true of most of the adult electorate, who are rationally ignorant about politics and public policy, and often don’t know even very basic facts. Nonetheless, it’s probably true that the average child knows a lot less about politics than the average adult, and that may be a good reason to deny most children the franchise. But why deny it to all of them? If a minor can pass a test of basic political knowledge (say, the political knowledge equivalent of the citizenship test administered to immigrants seeking naturalization), why shouldn’t he or she have the right to vote? Such a precocious child-voter would probably be more knowledgeable than the majority of the adult population. Giving her the right to vote would actually increase the average knowledge level of the electorate and thereby slightly improve the quality of political decision-making. I’ve met twelve-year-olds with

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An Election Recount without Voter Registrations?

The North Dakota Senate election could be close — close enough to trigger a recount. Given that control of the Senate could be at stake, the party lawyers will no doubt descend ready for battle. But in ND there’s a twist: No voter registration. As Sasha Issenberg explains in Slate, North Dakota is the only state without voter registration rolls. Those who show up to vote without the required identification can sign an affidavit and have their vote counted, leaving no way to challenge potentially ineligible voters who cast ballots. […]

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