In reading Michael Ignatieff’s recent political autobiography, Fire and Ashes: Success and Failure in Politics, about his six-year foray into electoral politics, I came across an important account of the breakdown of Canada’s system of publicly-financed elections, in ways that could easily be anticipated and that all pubic financing systems have to confront.
Canada, like most countries with public financing, imposed caps on election spending by the political parties during what is called “the election period,” a defined period of time triggered by the Governor General’s announcement of the election. That period varies from around 1-2 months. But if political party spending is limited during the election period, an obvious alternative is for the parties to spend unlimited amounts of money before the formal election period begins.
On Ignatieff’s account, that strategy is what successfully destroyed his effort, as the leader of the Liberal Party, to challenge the incumbent Conservative Party government, led by Stephen Harper, in the 2011 elections. For two years leading up to the 2011 election, before the formal election period commenced, the Conservative Party ran two perfectly legal ads “over and over in what turned out to be the largest single campaign in Canadian history outside of an election period.” The ads featured two phrases that became widely known: “Michael Ignatieff. Just Visiting.” And “Michael Ignatieff. He Didn’t Come Back For You.” Ignatieff says the effect of these ads was immediate and devastating (though he accepts having other problems of his own); his poll numbers slid and his political colleagues viewed these ads as a “mortal blow.” The Liberal Party didn’t have the money to respond and, as well, Ignatieff says, it wasn’t clear what kind of response would make the situation better rather than worse.
Why didn’t parties spend like this in the pre-election period before this most recent election? Why did it take until 2009 before the permanent campaign came to Canada, in other words. No reason, except that it just wasn’t done. Yet once political actors, including parties, believe this approach will work and have the funds to implement it, they naturally escape campaign spending limits by shifting spending to the pre-election period. And this kind of pressure is one public-financed systems similar in structure to the Canadian system — which is how most public-financing systems in Europe work — are going to be confronting more and more now. These systems depend upon stringent regulation during “the election period,” a bounded and relatively short period of time, and then no regulation on spending outside that period. If pre-election spending can dramatically shape election outcomes, though, will public financing with election-period spending limits remain viable?
Ignatieff, not surprisingly, concludes more regulation is necessary: “I would advocate a ban on party advertising outside of election times” (he also advocates libel laws to punish “the worst lies” in election ads). But once regulation moves outside of something clearly defined as a discrete “election period,” the issues become much murkier: does Ignatieff advocate banning all party spending in support or against candidates at all times? Or does he envision such a ban starting only a certain number of years after the most recent election, say 2-3 years, in anticipation of the next general election? Keep in mind that these Conservative Party opposition ads starting running two years before the 2011 election.
I raise all this not to criticize public financing, which I believe remains the most plausible option for those seeking to limit the role of large disparities of wealth in elections. But proposals for public financing have to recognize realities about how money will inevitably be spent outside the regulatory system, or what the costs of extending that system further and further in time and scope would be. And I wonder whether this recent experience in Canada will be a precursor to the unraveling of public-financing systems in other countries.
By the way: Michael Ignatieff is back teaching full-time at Harvard University.
A new lawsuit has been filed directly in the Kansas Supreme Court seeking to force the Kansas Democratic Party to name a replacement for Chad Taylor to run in the the U.S. Senate race for Kansas. Democrats don’t want to name a replacement, believing their best chance is to have voters voter for independent Greg Orman over incumbent Republican Pat Roberts. The suit was filed by the son of a campaign official for Brownback.
I have reviewed the memorandum filed in support of the writ of mandamus, and it is very barebones and straightforward. It points simply to a state statute which says that when a candidate withdraws the party “shall” name a replacement. It asks the Kansas Supreme Court or order a replacement. There are a few reasons to believe the Court won’t do so.
1. There’s a textual argument that “shall” means may and not must. The Kansas Supreme Court put everything into a narrow textualist argument in the Kobach v. Taylor case and they could easily do so here, especially if the Justices are otherwise inclined to rule against this. There are other textual arguments too which I may get into later.
2. There seems to me to be a very strong First Amendment claim of the party not to choose a replacement. There are a number of races in KS where Democrats or Republicans are not choosing a candidate. To require a political party to pick a candidate when it doesn’t want to do so seems to interfere with the right of a political party. The memorandum does not address this point, but I expect any Democratic Party response will do so.
3. Further, this seems really self defeating. Why can’t the party just nominate Pat Roberts or Kris Kobach? Or is the claim that the Court must order the Democrats to choose a “serious” or “legitimate” candidate. Who is going to enforce that?
4. Finally, we are moving against the printing deadline and the federal MOVE Act which protects the ability of military and overseas voters to get their ballot on time. Kobach is now trying to stretch those deadlines, but if this drags on, there is a serious risk of disenfranchising military voters. It doesn’t seem the Court would want to do so. Nor does it seem politically good for Republicans to do so.
In short, I expect this case to be a loser, sooner or later.
From this important Brian Lowry report, the threat I see from Kobach if Dems don’t appoint is to go to the press, not the courts:
“This says ‘shall.’ I don’t know how anyone can read ‘shall’ to mean ‘may’,” Kobach said at a news conference after the court’s decision.
“Eight days is more than enough time. If the Democratic Party wishes to play games with our election laws and not nominate a replacement, then I encourage the members of the press corps to ask them why,” Kobach said.
And as expected Democrats look like they are going to do nothing:
“My position is until the court tells me to do something, I’m not going to anything,” Joan Wagnon, the chair of the Kansas Democratic Party, said earlier in the week, on Tuesday.
Thursday, Wagnon said in a statement that she applauded the court’s “decision to follow the law and stop Kris Kobach from undermining Kansas democracy.”
UPDATE: The updated version of the story makes it clear that Kobach said he will go to court if necessary. He’s also offering what appears to be a novel interpretation of the MOVE Act:
Kobach said federal law would allow him to postpone the mailing date of overseas absentee ballots as long as the ballots had a 45-day window to be counted.
You can read the opinion here. Here are my thoughts:
1. This is a unanimous, per curiam (unsigned) opinion from the Court holding that Democrat Chad Taylor’s name will not be on the ballot in the Kansas Senate race. This has political implications, as it will likely cause more Democrats to vote for independent Greg Orman instead of incumbent Republican Pat Roberts. It puts the seat, and perhaps the Senate, up for grabs. But there’s a wrinkle. There is still possible Court action now to force Democrats to name a new candidate to replace Taylor on the ballot.
2. The Court took the narrowest path to reach this decision. Despite many arguments offered by the parties, the court took a very narrow textual approach. It found that Taylor’s letter complied with the literal requirement of the statute, because he said he was withdrawing “pursuant to” the relevant section. The court concluded he “incorporated by reference” the standard that he was incapable of serving.
3. In ruling this way, the court avoided a messy factual dispute over whether Taylor was promised by election officials that his letter was sufficient. The court also sidestepped some uncertain legislative history as well as uncertain application of the doctrine of substantial compliance. It was about as simple and straightforward a way to decide the case as one could imagine. But…
4. If the court was going to issue such a simple, straightforward unanimous ruling, why did it take so long? No doubt more was going on behind the scenes than this simple ruling. We probably will never know what was going on in judicial chambers. A cynic suggested to me the court delayed so much so there would be no time to litigate over whether Democrats have to name a replacement on the ballot.
5. The big unanswered question is what happens to the other statute which appears to require Democrats to replace a withdrawn candidate on the ballot. The court totally sidesteps the issue, noting that “Nor do we need to act on Kobach’s allegation that a ruling for Taylor would require the Kansas Democratic Party State Committee to name his replacement nominee per K.S.A. 25-3905. The Kansas Democratic Party is not a party to this original action, and this court does not issue advisory opinions.”
6. This leaves the ball in Kobach’s court. He can sue the Democrats to try to force them to name someone. But how could he sue and have Democrats hold a convention within the day before ballots are to be printed. It will be hard for Kobach to say the printing can wait. In this way we have the ideal situation for the Democrats, what I’ve termed the “Reverse Torricelli:” Democrats get to have the candidate they want removed from the ballot without having to name a replacement. It is sure to infuriate Republicans.
7. This whole mess could have been avoided if Taylor would have done a better job with his letter, or if Kobach did not push the issue—and the evidence that his office had accepted non-complying letters before was damning to his case. The Court noted that Kobach submitted those letters after the deadline for filings, but seemed to praise him for doing it out of an “ethical obligation” to the court. In other words, if he just sat on letters his office just found which showed the inconsistent treatment of withdrawal letters in the past, it would have been deceptive to the court.
8. So what happens next depends upon Kobach’s next move. He has said he would sue Democrats to get them to name a replacement, but given the time frame now, and the fact that it may not be in Republicans’ political interests to let this fester any more, this may be the end. [Update: Byran Lowry reports: "Kobach says Dem chair has been informed that she has 8 days to select a replacement candidate. #ksleg #KSSen #kseln." It is not clear how the 8 days fits into the existing ballot printing timeframe.] [Second update: Kobach is moving the mailing to 9/27. What does this say about what he represented to court about deadlines? Wow wow wow.]
9, Addendum: If Democrats refuse to name or no candidate agrees to serve, then what? It seems like it would be a tough First Amendment claim to FORCE a party to name a replacement. Perhaps if Democrats do nothing Kobach will realize there’s not much he can do and drop the issue. We will see.
The court, however, was completely mistaken when it wrote that Wisconsin’s voter ID law is “materially identical” to the Indiana law upheld by the Supreme Court in Crawford v. Marion County Election Board. This is wrong in four ways.
First, Indiana’s ID law only applies to in-person voting, while Wisconsin’s applies to in-person and absentee ballots. In November 2012, 664,597 Wisconsin voters (21.57%) cast absentee ballots. Alabama is the only other state that requires photo ID from absentee voters; even Texas’s draconian voter ID law does not.
Second, Indiana accepts any photo ID that contains a name, bears an expiration date, and was issued by the U.S. or Indiana, while Wisconsin only accepts a Wisconsin driver’s license or ID card, military ID, U.S. Passport, certificate of naturalization which is no more than 2 years old, tribal ID, and certain student ID cards.
Third, Indiana permits indigent voters to sign an affidavit instead of presenting an ID.
Finally, Wisconsin only accepts student IDs if they contain a signature, an issuance date, and an expiration date no later than two years after the election. While the University of Wisconsin System has taken steps to have their schools issue separate voting IDs to students, it is unclear whether other private and technical colleges have taken similar steps. In Indiana, a student ID only needs to have an expiration date.
Not only is Indiana’s ID law more lenient than Wisconsin’s, but the Supreme Court’s decision in Crawford did not address the same legal issues. There was no Voting Rights Act claim in Crawford. Moreover, the Crawford plaintiffs’ counsel had assembled almost zero evidence of actual harm to voters, whereas the plaintiffs here have assembled an extensive record documenting ID-less voters who cannot vote or will experience great difficulty in obtaining this license to vote. What the record does not contain is any evidence that the DMV’s untested birth verification procedure will work. The plaintiffs needed to show copious evidence to win their injunction, but the state secured this win on the court’s blind faith.
Press release: “U.S. Sen. Kirsten Gillibrand (D-N.Y.) today introduced the Voter Registration Modernization Act, which would provide national standards for secure and accessible online registration and help bring America’s election system into the 21st century.”
Did I ever mention I went to law school with the Senator? I don’t think I’ve seen her since law school graduation (1991).
Craig Holman statement at Public Citizen.
Spencer Woodman writes for VICE.
This Electionline Weekly interview is sure to get some attention:
What was the most difficult time/issue you have faced (elections wise of course) as secretary?
As our states’ chief election officials, secretaries of state enforce election laws. We’re tasked with ensuring only eligible voters cast ballots, and the eligibility requirements are few: citizens, 18 or older, and Colorado residents. Instead of relying on a loose honor system, we decided to verify citizenship, just like we check against the other two requirements. But the gridlock, partisanship, and hysteria surrounding this issue is disappointing. Just getting the federal government to comply with federal law and provide us with the information we needed was a big challenge. We got the runaround from various levels of the federal bureaucracy for over a year before we finally worked out an agreement to verify citizenship data. This helped pave the way for other states to also verify data. But it amazes me that certain partisans continue to oppose enforcement of basic, uncontroversial laws that protect election integrity.
It also disappointing that people frequently throw common sense out the door when it comes to election integrity. During the 2012 election cycle, a reporter from Mexico City interviewed me. When he disapprovingly focused on election integrity issues like photo identification and citizenship, I told him that I merely wanted to implement something like the Mexican system in Colorado. Mexico has strong integrity protections, which have helped improve the fairness and integrity of its elections. But he thought that Hispanic voters were fundamentally different than Mexican voters, and that while photo identification was fine for Mexico, it was somehow terrible in the United States. I strongly disagreed — fair and honest voting systems are a universal aspiration, regardless of race, ethnicity, or country of origin.
Protecting the sanctity of our voter rolls shouldn’t be a wedge issue. In fact, what we’ve seen is that when voters trust the system and trust the results, turnout and participation improves. That should be our goal. If voters don’t trust the system, it makes little difference how easy it is to get a ballot.
Less than 1 percent of voter registration forms turned in by a Georgia group accused of voter fraud are actually fraudulent, the Georgia’s secretary of state’s office announced Wednesday.
There were 25 confirmed forgeries found in voter registration documents, Jared Thomas, spokesman for Secretary of State Brian Kemp (R), told The Washington Post. That’s out of more than 85,000 voter registration forms turned in by the New Georgia Project and Third Sector Development.
“We believe we’ve identified 25 felonies, and we take that very seriously,” Thomas said.
State Rep. Stacey Abrams (D) who heads New Georgia Project said the group flagged potential forms that were not completed, but was required by law to turn in every form someone worked on. “We don’t get to decide if something is good or bad,” she told The Post last week.
Important piece from Eliza Newlin Carney.
Andy Kroll for Mother Jones:
A milestone passed in late August: According to the Center for Responsive Politics, dark-money groups—nonprofits created under the 501(c)(4) and (c)(6) sections of the US tax code—had by then surpassed $50 million on elections. These groups, unlike political action committees and candidates’ campaigns, do not have to disclose their donors. So some of the key players looking to sway election results remain in the shadows. This was a new record and seven times the amount of dark money spent by the same point on House and Senate elections in 2010. And this week, dark-money spending for the 2014 cycle reached $63 million—just shy of the $69 million in dark money spent during the entire 2008 presidential election.
Matthew Fletcher has posted this draft on SSRN.
American Indians’ status as citizens of federal, state, and tribal nations has been riddled with ambiguity since the Founding of the American Republic. This short paper surveys the history and law of Native political rights in the American constitutional structure before concluding with a discussion about special problems in tribal elections.
Read from CCP.
Allen Dickerson has written this article for the Cato Supreme Court Review.
Politico: “Las Vegas casino mogul Sheldon Adelson has donated $10 million to a Karl Rove-backed outfit boosting Republican Senate candidates and promised a similar amount to an allied group focused on House races, POLITICO has learned.”
Doug Chapin comments on my new draft paper, When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting.
This is both a timely and very important contribution to a question that is increasingly of interest to election officials, policymakers and litigators alike. Thanks to Rick for drafting it as well as sharing it with the field. I would be willing to bet that this piece will end up being cited (approvingly and disapprovingly) by combatants in Ohio and elsewhere and may end up as one basis for court ruling on this subject in 2014 and beyond.
As Rick likes to remind me he said first, “stay tuned” …
A judge Wednesday ordered state elections officials to delete the word “independent” from the description and text of a proposition on November’s general election ballot that would create a new commission to oversee the redrawing of congressional and state legislative lines every 10 years.
Albany Supreme Court Justice Patrick McGrath (See Profile) said the commission would be a creature of the state Legislature, with its makeup dependent on which parties are in the majority in each chamber.
David Kimball, Brady Baybeck, and Ray Deppen have posted this draft on SSRN. Here is the abstract:
This paper is part of a larger project on the urban and rural dimensions of election administration. There is a dramatic skew in the distribution of voters across local jurisdictions. We enumerate the state associations of local election officials and examine how they aggregate their members’ preferences on election laws and procedures, with a focus on early voting policies. We hope that our findings will bring a much needed local focus to the nationalized discussion over election reform and highlight the nexus between politics and administration in a very important policy arena.
I relied on this excellent piece in my new uniformity draft.
Zack Roth reports for MSNBC.
I am surprised that this court order gives Wisconsin so much time to respond. In the meantime, there will be a mad scramble to to try to comply with the law and getting id’s to everyone that needs them, which looks to be a very tall order indeed. And it may be all for naught.
I just wonder if things would have gone faster by going directly to the Supreme Court.
Bloomberg View editorial.
Sarah Haan has posted this draft on SSRN (forthcoming, Northwestern University Law Review). Here is the abstract.
This Essay assesses what the Supreme Court’s evolving campaign finance jurisprudence could mean for business executives, who continue to be among the most active campaign contributors, and for politically-motivated consumers. It argues that voters increasingly view their consumer activities, not their campaign contributions, as the most meaningful way to participate in politics. It points to the downfall of Mozilla’s Brendan Eich in April, and to a recent wave of politically-motivated boycotts of companies, as evidence that this practice will have a meaningful impact on campaign finance disclosure and, more broadly, on democratic participation. With some on the Court eager to expand campaign finance disclosure exemptions for “economic reprisal,” this Essay concludes that the Court should treat money as speech not only when wealthy individuals donate to political candidates, but also when consumers spend money at the cash register. The politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Court has failed to anticipate.
News from New Mexico:
Calling the 2012 general election in Sandoval County “a debacle,” a federal judge has ruled in favor of three Republicans who claimed actions by the Democratic county clerk and elections director deprived voters of the chance to cast ballots.
There were problems administering the election in Rio Rancho, which resulted in voters standing in long lines and waiting in some instances for more than five hours to exercise their right to vote, according to the order by District Judge William P. Johnson.
The Daily Kos report mentioned above points to conversations in the group’s public chat room, which appeared to suggest that Mayday had come up short in a promised $5 million in funds that were meant to match the group’s frenetic July fundraising drive. “The Daily Kos piece was incredibly misleading because it suggested we’d represented something that had turned out not to be true,” Lessig said. The implication was that the group had fallen short. Which, Lessig says, they never said they wouldn’t. The plan was: Raise a million dollars and match it from big donors. Then, raise another five — that July push — and Lessig would try to match that, too.
“I have from the very beginning said this was my objective,” Lessig said, “and I never once said we’d achieved the objective.” The original match was meant to inspire confidence in the system. The second Lessig is still working on, but wouldn’t provide details on how much had been raised or from whom, saying only, “I think I’m confident that we’re about halfway to getting the five together.” An important addition to that: “Right now we’re building a plan based on the assumption that we’re not going to get it.” If they don’t get it, they simply have different sticks with which to poke.
Republicans filed suit this morning in Waukesha County court challenging a redesigned ballot to be used for the November election, arguing it unfairly favors Dems.
[Insert obvious point here about how rolling out voter id in the middle of the election "will also cause confusion among voters and lead to undervotes."]
You can find the brief at this link (via Mike Scarcella). The brief makes a compelling case, relying on the Supreme Court’s opinion in Purcell v. Gonzalez and other cases, that implementing voter id in Wisconsin at the last minute is likely to cause electoral chaos—a point which should be compelling regardless of where you stand on the actual merits of WI implementing its voter id law in an organized way. From the introduction:
First, the panel decision involves a question of exceptional importance under Fed. R. App. P. 35(b)(1)(B) because it imposes a radical, last-minute change to procedures for conducting an election that is already underway. The risk of disenfranchisement from imposing such a last-minute disruption far outweighs the non-existent harm to the state of maintaining the status quo and not requiring photo ID for one more election. Supreme Court precedent and other Circuits uniformly caution against such eleventh-hour changes to the election laws, even where those courts have approved such changes for future elections. See Purcell v. Gonzalez, 549 U.S. 1 (2006).
Second, the panel‟s extraordinary decision to grant a stay pending appeal – which altered rather than maintained the status quo – ignored the four-factor test for such relief set forth by the United States Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009), and the Court‟s admonition against last-minute reversals of lower court election law rulings in Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). Specifically, the panel decision failed to consider that issuance of the stay and the consequent slapdash implementation of a complex law – which was designed to have a rollout period of 8 months before a primary and 16 months before a general election – “will substantially injure” the rights of voters without ID, and that “the public interest lies” strongly against fundamentally changing the rules of an election on the eve of the election, particularly where absentee voting is already underway. In addition, the panel decision failed to consider seriously one of the “most critical” factors. Defendants will not be “irreparably injured absent a stay,” Nken, 556 U.S. at 434, if the election proceeds without a photo ID requirement, as has been the case in all but one election in Wisconsin‟s history.
In this case, the district court found that approximately 300,000 voters do not have the most common form of ID that would now be needed to vote on November 4 (exactly 7 weeks from today), which is an unexpired driver‟s license or state-issued photo ID. See Frank v. Walker, No. 11–CV–01128, 12–CV–00185, 2014 WL 1775432, at *11 (E.D. Wis. Apr. 29, 2014). It is not only unreasonable, but also mathematically, logically, and physically impossible that by November 4, hundreds of thousands of voters will learn about the need for ID, especially given the total suspension of public information about the law for two and one-half years, collect multiple required documents, get to a DMV office, and obtain the ID suddenly required by staying the District Court‟s injunction last Friday afternoon. Doing so would require Wisconsin to issue some 6,000 photo IDs per day between now and the election.
What’s especially amazing to me is that the 7th Circuit panel’s order did not even address these issues in its very short order issued on Friday.
And in Wisconsin, where there is a very close race for governor (among other races), such a last minute change has the real potential to affect electoral outcomes.
It will be interesting to see if this case makes it to the Supreme Court, regardless of what the en banc 7th Circuit does.
Press release: “Congressional candidates running in the 2013-2014 election cycle received $1.1 billion and disbursed $766.7 million in the first 18 months of the cycle, according to campaign finance reports filed with the Federal Election Commission that cover activity from January 1, 2013 through June 30, 2014. During this period, political parties received $760.7 million and disbursed $573.4 million, and political action committees (PACs) received $1.5 billion and disbursed $1.3 billion. Filings submitted to the Commission in this 18-month period indicated that disbursements for independent expenditures and electioneering communications totaled $124 million and $925,101, respectively, in connection with congressional elections in 2013 and 2014.”
Roll Call: ”Residents of states with competitive House and Senate races may not believe it, but congressional candidate spending has decreased in 2014, according to a review by the Federal Election Commission released Tuesday.”
I agreed with this LAT editorial until the end. I think it is time to ditch residency requirements and realize that voters can figure out well enough if a candidate has enough ties to the community to represent the area well.
I have posted this short essay on SSRN, a work in progress which I will present at a November symposium for the University of Chicago Legal Forum. Here is the abstract:
Since Bush v. Gore, some Republican officials have insisted on uniformity of election administration in the name of equal protection. More specifically, they have enacted or advocated uniform early voting timetables and bans on Sunday voting throughout a state. But there is a fundamental flaw in the blanket calls for uniformity across counties (or electoral jurisdictions) in the name of equal protection principles from Bush v. Gore: uniformity across counties sometimes undermines the Equal Protection rights of voters because counties have different size populations. In this short Essay I argue that election administration rules premised on uniformity of counties violate Bush v. Gore or other equal protection principles whenever a rule of election administration treats differently populated counties the same but the relevant rule significantly affects the level of services provided to individual voters.
Indeed, even if Bush v. Gore ultimately has no precedential value (or no precedential value outside the narrow confines of a case involving statewide recounts of votes), uniform election law treatment across counties sometimes violates one person, one vote principles and is unconstitutional under the Equal Protection Clause. Using this analysis, I conclude that requirements of uniform early voting days and times across counties could well be unconstitutional, but a ban on Sunday voting would likely be constitutional so long as the number of hours offered to voters overall gives voters in different counties roughly the same opportunities to vote. Challengers to a statewide ban on Sunday voting, or to leaving the choice discretionary to counties, would have to raise a different Equal Protection theory.