In the coming days, we are going to hear more and more about state Republican parties that require “loyalty oaths” to participate as a candidate in a party’s primary — loyalty oaths require a candidate to pledge that he or she will support in the general election the candidate who wins the party’s primary. In light of that, readers might enjoy reading about Justice Scalia’s encounter with these loyalty oaths, as a voter, nearly 20 years ago. This story is recounted in our book, The Law of Democracy:
In practice, many parties enforce “loyalty oaths” informally, as with controlling entry into the nomination setting in what are called “firehouse primaries” (a “firehouse primary” is a polling process conducted by a party without state supervision). In the mid-1990s, a news report indicated that Justice Antonin Scalia had “questioned the legality of the oath” required from Republican voters who sought to participate in a firehouse primary in Fairfax, Virginia, but had then signed the form “after getting an explanation from a party official.” Eric Lipton, Democracy Can Stop Traffic, Wash. Post, Jan. 8, 1995, at A1.
We end this excerpt with a question: Were Justice Scalia’s initial reservations well-founded?
The South Carolina Republican Party form that Donald Trump will have to make a decision about signing by the end of next month contains this language:
I hereby affirm that I generally believe in and intend to support the nominees and platform of the
Republican Party in the November 8, 2016 general election; that I will not knowingly violate any
election law or any law defining and prohibiting corrupt and fraudulent practices in campaigns and
elections in this state; that I will qualify for the office if elected thereto, including, but not limited to,
complying with any limitation prescribed by the Constitution of the United States; that I will fulfill all
filing requirements set by the South Carolina Republican Party, including but not limited to completion
of this form and payment of a non-refundable $40,000 filing fee; that I acknowledge if I have not jointly
submitted this form and the filing fee by the 5:00 P.M. September 30, 2015 filing deadline, my name is
not eligible to appear on the ballot; and that I understand that my name will appear on all ballots as
designated in this declaration.
If you wonder whether these oaths have any serious legal bite, South Carolina law gives the parties plenty of power to enforce the oaths. But it is important to understand that this law does NOT apply to the presidential primaries; I offer the law to illustrate how, outside the presidential context, state laws can attempt to give these loyalty oaths powerful legal bite:
SECTION 7-11-210. Notice of candidacy and pledge.In the event that a person who was defeated as a candidate for nomination to an office in a party’s primary election shall thereafter offer or campaign as a candidate against any nominee for election to any office in the ensuing general election, the state chairman of the party which held the primary (if the office involved is one voted for in the general election by the electors of more than one county), or the county chairman of the party which held the primary (in the case of all other offices), shall forthwith institute an action in a court of competent jurisdiction for an order enjoining the person from so offering or campaigning in the general election, and the court is hereby empowered upon proof of these facts to issue an order.
Of course, just because state law authorizes this does not mean the law is constitutional.
Josh Gerstein posted it.
Joining me on Episode 2 of the ELB Podcast is the nation’s leading First Amendment lawyer, Floyd Abrams. Floyd was one of the lawyers arguing in the Supreme Court in the 2010 case, Citizens United v. FEC, which freed corporate and labor union spending in elections.
Is more money in elections good or bad for our democracy? Would it be better to lift all limits on money in elections? What is the Supreme Court doing in the area of free speech? What of the new decision in Reed v. Town of Glibert? And what of academics and their views of the First Amendment?
I would love your feedback on this new endeavor!
News from New York.
Donald Trump must rule out a third-party bid before October if he wants to compete in South Carolina’s Republican primary, a crucial test in the nominating contest.
Trump has repeatedly refused to rule out a third-party candidacy, noting that he could use the threat of an independent bid as leverage, but he cannot appear on the South Carolina primary ballot unless he pledges to support the GOP nominee in the general election.
Trump said Tuesday when asked about the rule by reporters in Iowa that his campaign is “looking into it.”
Politico Playbook quotes from a Glenn Thrush article as follows:
To the annoyance of the Clinton campaign, Biden’s allies have strategically leaked his modest, noncommittal doings to the media, which have given otherwise ho-hum confabs with Elizabeth Warren and President Obama’s former counsel Bob Bauer bombshell treatment (Warren … offered her usual warning against bringing more Wall Street executives into the White House; the Bauer sit-down was a relatively dry give-and-take on state election laws and deadlines).
But the Thrush article itself [now] says:
To the annoyance of the Clinton campaign, Biden’s allies have strategically leaked his modest, noncommittal doings to the media, which have given otherwise ho-hum confabs with Elizabeth Warren and President Obama’s former counsel Bob Bauer bombshell treatment (Warren, according to a person with knowledge of the interaction, offered her usual warning against bringing more Wall Street executives into the White House; the talk with Bauer, an old Biden friend who worked with him closely in the White House, was intended to be an informal, personal check-in session that was leaked against the wishes of the participants).
Bauer’s firm, through Bauer’s partner Marc Elias, represents Hillary Clinton’s campaign. It would not surprise me if there was pushback to the original writing, and it would not surprise me if that original reporting was inaccurate.
Derek Muller has posted this draft on SSRN (forthcoming, FSU Law Review). Here is the abstract:
Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment. Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative. But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.
The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.
This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.
Fascinating from the NYT:
With the tide flowing in President Obama’s favor on the Iran nuclear deal, the architect of legislation that gave Congress a say in its approval is none too happy about the possibility that the accord may never reach a final vote.
Senator Bob Corker of Tennessee, chairman of the Senate Foreign Relations Committee, said on Tuesday that it would be a travesty if Democrats filibustered any resolution disapproving of the accord between Iran and six world powers. The Senate this spring voted, 98 to 1, in favor of the Iran Review Act, which gave Congress the right to vote on a resolution of approval or disapproval of a final deal.
Sarah Binder: “GOP senators now fret Dems might filibuster Iran disapproval res. Did GOP overestimate Dem support when they devised rules for debate?…’Expedited procedures’ in Senate typically ban filibusters. That’s what makes them ‘expedited.’Why not this time?”
Fulton County, Georgia admitted to illegally disenfranchising and misleading voters in the 2008 and 2012 elections in a settlement this month. For more than two dozen violations of state law — including improperly rejecting eligible ballots and sending voters to the wrong precincts — the county will pay a fine of $180,000. To make sure the problems do not continue in the future, the county has promised to spend an additional $200,000 on new training software for their poll workers….The county, which includes Atlanta, has a heavily African American voting population and leans progressive, voting overwhelmingly for President Obama in 2008 and 2012. As detailed in the new settlement, county elections officials misinformed the precincts of who was coming to vote and when, failed to provide absentee ballots to voters who requested them, and failed to put voters who registered on time on the rolls, among other violations. The head of Fulton County’s elections office was fired last year, which she credits to her refusal to cover up the improper purging of voters in 2012.
Jack Shafer writes for Politico.
Campaigns and super PACs supporting four Republican governors running for president raised at least $2.5 million in legal donations from companies with state contracts or taxpayer subsidies, illustrating potential conflicts of interest that may emerge when candidates exit the primary and return home.
NYT (which still puts “Super PACs” in quotes):
But Mr. Sanders’s fund-raising strategy will test the prevailing notion in Washington that no candidate can successfully compete on the national stage without tapping into the many millions of dollars that have poured into super PACs since the Supreme Court’s Citizens United decision in 2010.
The United States Court of Appeals for the District of Columbia Circuit today left standing the Securities and Exchange Commission’s “pay-to-play” rule, which bars investment advisers from providing paid services to state and local governments when making certain political contributions to state and local officials.
The court rejected as time-barred a challenge to the rule that was brought by state Republican parties in New York and Tennessee. The court held that the state parties brought their suit in the wrong court and at the wrong time, saying that the Investment Advisers Act required the challenge to be brought at the circuit court level and within 60 days of promulgation. The SEC rule took effect in 2010; the state parties sued in federal district court in 2014.
Informed investment advisers maintain strict procedures to comply with the SEC rule, which affects some federal elections as well as many non-federal elections. Four incumbent governors currently seek the presidency: Chris Christie of New Jersey, Bobby Jindal of Louisiana, John Kasich of Ohio, and Scott Walker of Wisconsin. The court’s ruling leaves in place a barrier to fundraising in direct support of their campaigns.
The opinion in New York Republican State Committee v. SEC is available here.
Charles Koch hit back at criticism of “the Koch brothers” during President Barack Obama’s energy speech in Las Vegas earlier this week, saying he was “flabbergasted” by the attack and charging that Obama made the dig as a favor to Senate Minority Leader Harry Reid (D-Nev.), who appeared with him.
“It’s beneath the president, the dignity of the president, to be doing that,” Koch said during a phone interview Tuesday…
That’s not the American way. That’s not progress. That’s not innovation. That’s rent seeking, and trying to protect old ways of doing business and standing in the way of the future.”
Obama continued: “I mean, think about this. Ordinarily, these are groups that tout themselves as champions of the free market. If you start talking to them about providing health care for folks who don’t have health insurance, they’re going crazy: ‘This is socialism, this is going to destroy America.’ But in this situation, they’re trying to undermine competition in the marketplace, and choke off consumer choice, and threaten an industry that’s churning out new jobs at a fast pace.”
Koch shot back: “I don’t know whether he knows what that phrase means, but ‘rent seeking,’ of course, is, in economic terms, is getting the government to rig the system in your favor. And that’s exactly what these so-called ‘renewable energy’ proponents are doing.”
I’m guessing that Obama, who taught at the University of Chicago, is familiar with the term “rent-seeking.”
The Sacramento County elections office published sample ballot booklets last year with a number of errors: Omitted were a statement from a Sacramento City Council candidate and a list of endorsed candidates from the Democratic Party. Included was an argument in favor of a Rancho Cordova tax measure – where the opponent’s argument belonged.
The same year, Galt City Council members up for re-election received incorrect information from the office about their ballot order. The incumbents, including one who lost by a razor-thin margin, used the information in campaign materials to tell voters how to select them.
LaVine, who was appointed by the Sacramento County Board of Supervisors in 2003, declined requests for an interview. In written responses, she said the number of mistakes last year was relatively small, “but even these few were not up to my standards. It was clearly a rough year.” She said the office has changed its procedures to prevent similar errors in the future, such as sending proofs to a larger group of people before printing.
In a 2014 paper, law professor David Schleicher observed that institutional differences between the US and Europe can end up obscuring underlying similarities in the development of party politics.
Some countries have proportional electoral systems that are quite friendly to small new political parties that can grab 5 or 10 percent of the vote. In those kinds of countries, there is an extremely strong incentive for newish political movements to found new parties to represent them.
The United States, by contrast, has political parties that are very “open.”
You don’t need to pay membership fees to vote in a Republican Party primary, and there’s no formal institution like a “shadow Cabinet” that officially speaks for the party while it is in opposition. The party is, instead, a loosely defined network of individuals and institutions that is collectively powerful and permeable. Combine that with first-past-the-post voting, and forming a new political party is a generally unappealing option. What you typically want to do is act entrepreneurially within the structure of existing party politics. This is why Black Lives Matter is pressing Hillary Clinton to disavow old Democratic Party positions rather than running its own candidates for office.
If the US had European-style political institutions, Trump would be leading a European-style “far-right” party. Since it doesn’t, he’s running a GOP primary campaign. But it’s gaining support for the exact same reason that populist parties in Europe are.
It concludes with a note on race and party:
In 2014, the first election since 1965 without the preclearance protections of the Voting Rights Act, voters in 14 states faced new voting restrictions adopted by mostly Republican legislatures, including a voter identification law in Texas and cutbacks on same-day registration and early voting in North Carolina. The Supreme Court allowed both laws to go into effect, over dissents from Justice Ginsburg. But because the new voting restrictions were arguably adopted to help Republicans rather than harm African-Americans, the Supreme Court may continue to uphold them on the grounds that the Constitution does not prohibit hyperpartisanship by legislatures. Berman notes that “the number of voters potentially affected by new barriers to the ballot box exceeded the margin of victory in close races for Senate and governor in North Carolina, Kansas, Virginia and Florida, according to the Brennan Center for Justice.”
“Give Us the Ballot” is an engrossing narrative history rather than constitutional analysis. Berman does not explore why justices who are devoted to the original understanding of the Constitution have repeatedly voted to narrow the scope of the Voting Rights Act with the argument that the equal protection clause of the 14th Amendment is colorblind. (In fact, as Justice John M. Harlan observed in his 1964 dissent from one of the original Supreme Court decisions regarding “one man, one-vote,” the framers of the 14th Amendment believed that the equal protection clause did not regulate voting or apportionment at all.) Still, Berman vividly shows that the power to define the scope of voting rights in America has shifted from Congress to the courts, a result that would have surprised the Reconstruction-era framers.
Hillary Rodham Clinton’s campaign has received commitments from four Democratic state parties, including in the crucial proving ground of New Hampshire, to enter joint fund-raising agreements with the campaign just as the nomination battle is beginning.
The four are a small fraction of the dozens of state parties that the Hillary for America campaign has asked to join such agreements. Many are still considering the request; some officials said they are working through how the arrangement would be put into effect while the nominating fight is underway.
Sunday’s headlines about Kentucky’s Republican presidential caucus almost looked very different.
And, the truth is, were it not for the efforts of U.S. Senate Majority Leader Mitch McConnell and his allies, Sunday’s conversation probably would have been about the rebuke Rand Paul received from in-state Republicans and the death blow they dealt to his struggling presidential campaign.
Because Paul was going to lose Saturday’s vote.
The 147 members of the Republican Party of Kentucky’s state central committee wanted to help Paul bypass a state law that prevents him from running for two offices on the same ballot, but they were not prepared to do so without some reassurances about the cost of holding a special presidential preference caucus.
And Paul had no plan to ease their concerns beyond a tone-deaf plea for Republicans to simply trust him.
Franita Tolson has posted this draft on SSRN (forthcoming, Alabama Law Review). Here is the abstract:
Section 2 of the Fourteenth Amendment, which allows Congress to reduce a state’s delegation in the House of Representatives if the state abridges the right to vote, has been ignored by both the courts and much of the scholarly literature. However, section 2, with its broad language unencumbered by references to race or color, allows Congress to legislatively address virtually any abridgment of the ballot through its section 5 enforcement power.
This Article contends that section 2 of the Fourteenth Amendment provides constitutional justification for section 2 of the Voting Rights Act, the validity of which has come under fire in recent years. Section 2 of the Voting Rights Act forbids any voting “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Critics argue that the statute’s use of race-conscious remedies and its focus on the discriminatory effect of various state laws unduly infringes the states’ sovereignty over elections. To avoid potential constitutional problems, these critics contend that the statute should be limited to only those instances in which states act with discriminatory intent.
The search for intent is not only futile in this context, but it is unnecessary. Section 2 is constitutionally sound because section 2 of the Fourteenth Amendment validates any statutory scheme that prevents abridgment of the right to vote, regardless of the presence or absence of discriminatory intent. This Article concludes that an effects only interpretation of section 2 of the Voting Rights Act is consistent with the broad authority that section 2 of the Fourteenth Amendment grants Congress to regulate and protect the right to vote.
Michael B. Mukasey, a former Attorney General of the United States (and former Chief Judge of the United States District Court for the Southern District of New York), has stated that if former Secretary of State (and former Senator) Hillary Clinton is convicted under 18 U.S.C. § 2071, then she is disqualified from holding the presidency. See Transcript, MSNBC MORNING JOE (Aug. 24, 2015, 06:45:25 AM), http://goo.gl/na0GM4. Likewise, a Washington, DC think tank has just published a white paper taking the same position. See Legal Analysis of Former Secretary of State Hillary Clinton’s Use of a Private Server to Store Email Records, CAUSE OF ACTION: ADVOCATES FOR GOVERNMENT ACCOUNTABILITY (Aug. 24, 2015), available at http://causeofaction.org/assets/uploads/2015/08/Hillary-Clinton-Email-Memo-8.24.15.pdf. Mukasey’s and Cause of Action’s position is fundamentally misconceived; indeed, neither puts forward any authority for the position that Section 2071 or any other federal statute creates or could create a disqualification in regard to any elected federal position, including the presidency.
Matea Gold for WaPo:
A Democratic legal watchdog group has filed a new Federal Election Commission complaint against 11 GOP presidential candidates, the Republican National Committee and several groups in the Koch political network, saying their participation in a data-sharing arrangement violates coordination rules.
In a complaint sent to the commission last week, the American Democracy Legal Fund seized on a new deal between Data Trust, which has an exclusive list-exchange agreement with the RNC, and i360, a company that manages its own database for groups in the Koch network and other political clients.
Peter Overby reports for NPR.
On Friday, August 21, lawyers for the NAACP Legal Defense Fund (LDF), and cooperating Louisiana attorney, Ronald L. Wilson, filed papers in Terrebonne Parish Branch NAACP, et al. v. Jindal, et al., a challenge under the Voting Rights Act and the U.S. Constitution to Terrebonne Parish, Louisiana’s discriminatory voting method for the 32nd Judicial District Court (32nd JDC).
On behalf of the Terrebonne Parish Branch NAACP and four black voters, LDF asked a Louisiana federal court to rule that at-large voting for the 32nd JDC discriminates against black voters in Terrebonne. “Our case demonstrates that the at-large electoral method for the 32nd JDC silences the voices of black voters. As recently as 2008, this structure resulted in a white judge’s reelection even after he was suspended for wearing blackface in an apparent parody of black criminal defendants,” says Leah Aden, an LDF attorney. “Louisiana adopted at-large voting for the 32nd JDC, after the enactment of the Voting Rights Act of 1965, to prevent black voters from electing their candidates of choice. Despite decades of advocacy against at-large voting in the district, Louisiana has continued to use this voting method and rejected numerous legislative proposals to change to district-based voting for the 32nd JDC,” continued Aden.
Maggie Haberman for the NYT:
Jeb Bush’s presidential campaign has asked various divisions to be mindful of their spending, in a reminder that despite his giant “super PAC” bankroll, campaign dollars are ultimately more valuable.
Campaign officials asked workers to tighten their belts a few weeks ago, according to two people briefed on the matter. In some cases, staff members’ paychecks shrank, these people said.
Really? Can we avoid the allegations of actual lynchings when there is no such threat?
The top election official in Kansas has asked a Sedgwick County judge to block the release of voting machine tapes sought by a Wichita mathematician who is researching statistical anomalies favoring Republicans in counts coming from large precincts in the November 2014 general election.
Secretary of State Kris Kobach argued the records sought by Wichita State University mathematician Beth Clarkson aren’t subject to the Kansas open records act and their disclosure is prohibited by Kansas statute. His response, which was faxed Friday to the Sedgwick County District Court, was made public Monday.
With Trayvon Martin on the back. Nice touch, Klan.
Carrie Johnson for NPR:
The Justice Department forcefully defended its prosecutors Monday against allegations of misconduct and perjury lodged by lawyers for Sen. Robert Menendez, D-N.J., and an eye doctor who served as one of his longtime donors.
Prosecutors said their “exhaustive, focused and disciplined investigation” ferreted out “a stream of bribes” the senator solicited and accepted from Salomon Melgen, including lavish trips to Paris and the Dominican Republic. In return, the government said, Menendez exerted his influence to advance the interests of his longtime donor in meetings with officials at the Department of Health and Human Services and elsewhere.
Chief Justice John G. Roberts, Jr., on Monday afternoon temporarily blocked the imprisonment of former Virginia Governor Robert F. McDonnell until the Supreme Court can consider further his plea to remain free while he appeals his corruption conviction. The Chief Justice’s order is here.
The Justice Department was told to file its views on McDonnell’s plea by 4 p.m. on Wednesday. A federal appeals court ruling upholding his conviction will be on hold until after there is further action either by the Chief Justice or by the full Court.
The National Organization for Marriage has filed its campaign finance report from its 2009 bid to overturn Maine’s marriage equality law, revealing its donors to the ballot initiative for the first time.
The report, released Monday, marks the culmination of a four-year-long battle between the country’s leading opponent of gay marriage and the Maine Ethics Commission.
The report shows that seven major donors gave NOM more than $2 million in 2009. The organization then funneled that money to Stand for Marriage Maine, the Maine-based political action committee that became the public face of the successful bid to overturn Maine’s marriage equality law.
Erik Eckholm for the NYT:
On Aug. 11, in a 42-page opinion that reviewed the history of ballot secrecy and voter intimidation, Judge Paul Barbadoro of Federal District Court in Concord struck down the law.
The state provided no evidence of “an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion,” Judge Barbadoro said.
“The new law is invalid,” he said, “because it is a content-based restriction on speech that cannot survive strict scrutiny,” the most stringent standard for judging infringements on fundamental rights.
Many constitutional scholars praised the decision. So heads snapped last week when Richard L. Hasen, a prominent elections expert at the School of Law at the University of California, Irvine, called Judge Barbadoro’s opinion misguided and said allowing voting-booth photography posed a real risk.
In “Why the Selfie is a Threat to Democracy,” an article posted last Tuesday by Reuters and on the Election Law Blog he edits, Mr. Hasen wrote that the court decision “might seem like a victory for the American Way.”
“But the judge made a huge mistake,” he continued, “because without the ballot-selfie ban, we could see the re-emergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others.”
The author of the disputed law, Representative Timothy Horrigan, a Democrat, noted that courts had upheld other restrictions on activity inside polling places, like a ban on campaigning.
Still, in a Twitter comment on Mr. Hasen’s article, Michael McDonald, a specialist in American elections at the University of Florida, said that “reality is nowhere near your hysteria.”
Erwin Chemerinsky, the dean of Mr. Hasen’s law school, said in an email that he disagreed with Mr. Hasen. The New Hampshire law, he said, “is a content-based restriction on speech, and I don’t think that there is sufficient evidence of harm to meet strict scrutiny.”
Support for Mr. Hasen’s position was voiced by Doug Chapin, the director of the program for excellence in election administration at the University of Minnesota. “I still think ballot selfies create a vulnerability in the election process that vastly outweighs any societal or personal benefit the selfie brings,” he wrote in an email. “Perhaps that’s generational, but I think it’s something worth thinking — and worrying — about going forward.”
Mr. Gardner, an ardent proponent of ballot-selfie controls, said he expected New Hampshire to appeal the ruling.
The latest from Bloomingburg.