“Could Prop. 49 be Prop. 140 redux?”

David Ettinger:

Which raises the question of how the Supreme Court’s order will affect inter-branch relations and brings to mind the court’s action almost a quarter century ago on another ballot measure, Proposition 140.  That measure was definitely not placed on the ballot by the Legislature.  Instead, it was a citizens’ initiative that imposed term limits on legislators and cut the Legislature’s budget.  After its approval by 52 percent of the vote in 1990, the Legislature challenged its validity.  But the Supreme Court mostly upheld the measure (Legislature v. Eu (1991) 54 Cal.3d 492), which greatly displeased the Legislature.

Former Chief Justice Ronald George, who had just joined the court as an associate justice at the time of the Prop. 140 case, recounts in his memoir how the court’s ruling soured relations between the legislative and judicial branches.  George says that the court’s decision — especially the inclusion in the opinion of some inflammatory language — caused “damage that persisted for years.”  According to George, “legislators view many court decisions . . . through a political prism” and “their immediate reaction . . . was to view the [Prop. 140] decision as something that would merit retribution on their part, or, as they put it more succinctly, ‘payback.’ ”  He also recounts a legislative leader saying to then-Chief Justice Malcolm Lucas, ” ‘After what you guys just did to us, we would look like a bunch of wimps if we didn’t do anything to you.’ ”


“‘Electoral Integrity,’ ‘Dependence Corruption,’ and What’s New Under the Sun”

I have posted this very short piece on SSRN (forthcoming, NYU Law Review Online).  Here is the abstract:

This short symposium piece is a response to Justin Levitt’s comments on Dean Robert Post’s concept of “electoral integrity,” which Dean Post recently described in his book, Citizens Divided. It argues that eminent constitutional scholars such as Dean Post and Professor Lawrence Lessig have repackaged interests to support campaign finance laws already rejected by the Supreme Court in an attempt to circumvent those earlier Supreme Court precedents. Should a future liberal Supreme Court rethink cases such as Citizens United, it would be far better from the point of view of coherent doctrine and sound policy for the Court to transparently and forthrightly relate these new arguments to the old, and to explain where the Court went wrong before and what path it should take going forward.


“White House reverses part of lobbyist ban”

Politico: “The White House is poised to reverse a key part of its ban on registered lobbyists serving in government. The Office of Management and Budget will release a new rule on Wednesday expected to allow registered lobbyists to participate in policymaking deliberations in an advisory role.”

This rule was part of an early Obama White House attempt to limit the power of lobbyists in the White House.  I discuss and critique those rules in Lobbying, Rent Seeking and the Constitution (Stanford Law Review).

Craig Holman comments on the OMB reversal.


CA Supreme Court Removes Anti-Citizens United Advisory Opinion from Ballot, Leaving Option of It Appearing on a Future Election Ballot

Via At the Lectern comes news of this order.  The concurring opinion of Justice Goodwin Liu is quite interesting.  I have placed both Justice Liu’s concurring opinion and Chief Justice Cantil-Sakauye’s interesting response below the fold.  Justice Liu talks about the purpose of the initiative process, and how allowing the people to vote on advisory opinions put on the ballot by the legislature would blur the lines of accountability between the people and legislature. In response the Chief writes: “ By the majority’s action today, the Legislature will be deprived of knowing in a timely manner where the voters stand on the issue, perhaps influencing what further steps the Legislature will take and how much effort it would invest in the underlying endeavor. The stay also deprives the voters of the ability to express their views on the subject at the time when the issue is being hotly debated, as opposed to two years from now, on the ballot of 2016.”

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“Proposal could create more voting districts anchored by minorities”


Minority groups seeking more influence in local government would have a potentially powerful new tool at their disposal under a proposed expansion of the California Voting Rights Act.

The way Los Angeles County — among others jurisdictions — has drawn districts for elected officials could face a legal challenge in California if a bill, introduced by state Sen. Alex Padilla (D-Pacoima), becomes law.


“Independent Spending in State Elections: Vertically Networked Political Parties Were the Real Story, Not Business”

Campaign Finance Institute:

There has been a marked increase of debate in the months since the Supreme Court’s April 2014 decision in McCutcheon v. Federal Election Commission over the relationship between interest group spending and the power of political parties. A just-published article in THE FORUM: A JOURNAL OF APPLIED RESEARCH IN CONTEMPORARY POLITICS speaks directly to some of the assumptions underlying that debate. The article – entitled Independent Spending in State Elections, 2006-2010: Vertically Networked Political Parties Were the Real Story, Not Business – is based on a fresh analysis of data supplied by the National Institute on Money in State Politics. This analysis challenges public expectations about business power that were prevalent in the immediate period after Citizens United. It also challenges more recent assumptions that seem to see parties and interest groups as locked in a zero-sum battle for power.

The article’s co-authors are Keith E. Hamm, Edwards Professor of Government, Rice University; Michael J. Malbin, CFI’s Executive Director and Professor of Political Science at the University at Albany, SUNY; Jaclyn J. Kettler, Rice University; and Brendan Glavin, The Campaign Finance Institute.

A final pre-publication version can be read here. The article’s abstract appears below.

ABSTRACT: This article examines independent spending in state elections before and after the Supreme Court’s 2010 decision in Citizens United v. FEC. We find that the decision did not have much of a direct effect on business spending, despite public expectations…. [T]he major growth was not in the business or labor sectors, but in the networked organizations of political parties — and most particularly the national organizations of state elected and party officials. Contrary to some contemporary views, these developments cannot be understood as a displacement of within-state money from parties to interest groups. Instead, national party organizations were operating across state lines, deciding whether to contribute to formal party committees or their party allies as local circumstances might dictate. This complex movement of money belies any theorizing that would treat a decline in the proportional role of formal party spending as equivalent to a zero-sum increase in the power of non-party interest groups. Rather, we see the pattern of independent spending as part of a larger story of change in American political parties. These changes now include vertically networked parties operating across levels of jurisdiction, alongside the horizontal networks receiving attention in recent scholarship.


“The New Racism: This is how the civil rights movement ends”

Must read TNR cover story by Jason Zengerle on African American political power in Alabama and in the South.

Similarly, after a lawsuit was brought by the Alabama Democratic Conference and the Alabama Legislative Black Caucus, a three-judge federal court upheld the maps in a two-to-one ruling. Noting that several of the plaintiffs had been content with the majority-minority districts drawn by Democrats in 2001, the court’s majority opinion asked: “What has changed in the last few years to support the conclusion, from the perspective of the Black Caucus plaintiffs, that the new majority-black districts are unconstitutional when the old majority-black districts were constitutional? The answer is simple: The Republicans now control the Legislature instead of the Democrats.”

But the implications of this go far beyond partisanship. Because of increasingly racially polarized voting patterns in the South, party has become a stand-in for race. As University of California at Irvine law professor Rick Hasen recently wrote in the Harvard Law Review, “The realignment of the parties in the South following the Civil Rights movement of the 1960s has created a reality in which today most African American voters are Democrats and most white conservative voters are Republicans.” That means that, as Democrats have lost ground in statehouses in Alabama and elsewhere across the South, so have African Americans. According to research by David Bositis, in 1994, 99.5 percent of black state legislators in the South served in the majority. By 2010, the percentage had fallen to 50.5. Today, it’s a mere 4.8 percent.

Political scientists distinguish between descriptive representation and substantive representation. The former focuses on the number of, say, African Americans who are elected to a legislative body, while the latter focuses on the effect of those African American representatives on the legislation passed by that body. It was easy to see, by the early ’80s, that the Voting Rights Act had successfully achieved descriptive representation for African Americans in the Southern state legislatures. But, as time went on, it began to achieve substantive representation, as well. “There was a thirty-year period in the South, from about 1980 to 2010, where there really was biracial collaboration and cooperation in politics,” says Bositis. “And it was a genuine biracial politics—more genuine than in some northern states.” The political scientist David Lublin, who did pioneering research on the impact of the VRA, recalls making his first visit to Mississippi in the early 2000s and attending a legislative session in Jackson. “You walk down this long hallway lined with all the old legislature photos, and everyone in the pictures is white,” he says. “But then you enter the actual chamber and you watch people discussing things, and it’s a racial mixture, black and white politicians having a good and substantive debate. It felt like, ‘Wow, democracy!’ ”

But as any visitor to the Alabama statehouse in the past four years could tell you, those days of wonder are long gone—and they’re not likely to return any time soon. While the U.S. Supreme Court recently agreed to hear a pair of appeals of the Alabama redistricting decision, it’s doubtful that the conservative Roberts court—the same court, after all, that last year struck down a key provision of the VRA—will overturn the lower court’s decision. This, in turn, will affect far more than the politics of just Alabama and the region.


“Hawaii Primary Results: Hurricane Iselle Delays Force Brian Schatz, Colleen Hanabusa to Wait”

Roll Call:

The Democratic primary between Hawaii Sen. Brian Schatz and Rep. Colleen Hanabusa was too close to call early Sunday morning, and the race may not be decided for days.

Voting in two precincts on the Big Island, which was hit hardest by Hurricane Iselle, was postponed because of storm damage, KITV reported. Those Democrats will vote absentee and essentially decide the contest, though Hanabusa has some ground to make up.

Both campaigns told Civil Beat they will be heading to the Big Island before the crucial final ballots are cast.


Ohio Election Law 2014.2 Program

The following announcement arrived via email:

To: Board of Elections officials, Prosecuting Attorneys, County Political Parties, Candidates, and legal counsel :
The Academy of Continuing Legal Education program, “Ohio Election Law 2014.2″ will be presented August 27, 2014. This program has been approved by the Supreme Court of Ohio, Office of CLE, for 6.5 hours of attorney Continuing Legal Education, including 2.5 approved for the new-for-2014 mandatory “Professional Conduct”.
Application has been made for approval by the Secretary of State of Ohio for 4.0 hours of credit toward the mandatory Additional Instruction for Board of Elections members, directors, and deputy directors, for the portions of this program that are updates of the program that was prseented in March 2014, and approved by the Secretary of State. On July 23, the Secretary of State approved ONE hour of the requested four hours for Board of Elections credit. The Academy is sending this announcement so that folks who plan to attend for the purpose of learning about significant developments in Ohio Election Law, regardless of credit hours, may know that, with at least one credit hour approved, you may justify your attendance.
This program is of interest to county prosecuting attorneys involved in the election process, attorneys who are legal counsel to political campaign organizations, and attorneys who are themselves candidates, election officials, and political party officers. Non-attorney election officials, political party officers, active citizens, and candidates are welcome to attend.

This program is presented at the Richfield Conference Center in the Days Inn, formerly the Quality Inn, 4742 Brecksville Road, Richfield, Ohio 44286, on S. R. 21 at I-77 and I-80, between Cleveland and Akron.

Topics are:

“Court Decisions Affecting Ohio Election Law”. 1.5 hour discussing Federal and Supreme Court of Ohio decisions, including the June, 2014, Supreme Court of the United States decision in Susan B. Anthony List v. Dreihaus..  This section is presented by Timothy M. Burke, Esq., president of Manley Burke, a legal professional association; a member of the Hamilton County Board of Elections since 1993; and a United Nations International Supervisor of Elections in Bosnia in 1997. This section is approved for 1.5 hour general CLE.

“Legislation, Directives, and Advisories: Administering Ohio Election Law at the County Board of Elections“. 1.5 hour discussing 2013 and 2014 legislative amendments of Ohio Election Law, and Secretary of State Directives and Advisories, that will affect the 2014 election cycle, including voter registration, residency, and early voting, as interpreted by Ohio and Federal Courts, affecting the operation of Boards of Elections. This section is presented by Bradley L. Cromes, Deputy Director of the Portage County Board of Elections and an officer of the Ohio Association of Election Officials. This section is approved for 1.5 hour general CLE.
“Campaign Practices, Campaign Finance, and the Ohio Elections Commission”. 1.0 hour discussing Candidate, Political Action Committee, and Issue Committee, permitted and prohibited campaign practices, required disclosures on campaign written, printed, and electronic materials, Campaign Finance reporting, allowable contributions, and allowable expenses; what matters come before the Commission, how the Commission proceeds, what remedial acts the Commission can require, and what penalties the Commission may impose.  This section is presented by Philip Richter, Esq., Executive Director of the Ohio Elections Commission. This section is approved for 1.0 hour general CLE and approved for 1.0 hour of Board of Elections Additional Instruction.
These three sections will all be presented before the lunch break, so that attendees who do not have an interest in the attorney “Professional Conduct” presentation may leave at 1:30 PM.
In the afternoon, the 2014 mandatory “Professional Conduct” topic will be presented in two 75-minute sections presented by Linette M. Stratford, Esq., Chief Assistant Prosecuting Attorney of the Mahoning County Prosecutor. Ms. Stratford is also a member of the adjunct faculty of Youngstown State University, where she has taught Ethics for business students. Two topics will be discussed, “Disciplinary Issues for Attorneys Who Hold Public Office” and “Access to Justice”, each of which have been approved for “Professional Conduct” CLE and are not approved for Secretary of State Board of Elections credit.

A Registration form with the complete program outline is attached.

Cost of enrollment in the 6.5-hour program is $215.00 for payments received by August 15, 2014..  Cost of enrollment in the program is $240.00 if payment is received after August 15, 2014, to offset the expense of printing additional materials at the price of expedited service.  For Elections Officials, Prosecuting Attorneys, and other employees of Ohio’s smaller counties, a small-county discount for EARLY registration is available, with details online at AcademyofCLE.com/Discount.pdf.  The small-county discount does not apply to registrations received after August 15, so register early. For attorneys attending from larger offices, the Academy will register five attendees from the same office for the cost of four.  As a special promotion to encourage bipartisanship, if all four members of a county Board of Elections register for this program, the four registrations will be accepted for the price of three.

A group discount rate is available for guest rooms at the program venue, the Days Inn Richfield, 4742 Brecksville Road, Richfield, Ohio 44286, (330) 659-6151.  The group rate is available under the name “Academy of CLE Seminar”.

You are encouraged to forward this announcement to any attorneys and elections officials to whom this may be of interest, including legal counsel to Boards of Elections, attorneys who are candidates for election themselves or are legal counsel to campaign committees, and attorneys who are county election officials or political party officers.  You are particularly encouraged to share this with colleagues in other counties who may not have participated in the Academy’s earlier programs. Information on this program will be updated online as information becomes available, along with information on other programs presented by the Academy of Continuing Legal Education, at http://AcademyofCLE.com. ;; Please contact me if you have questions, AcademyofCLE@ aol.com.

Truly yours,

Christopher J. Mallin

The Academy of Continuing Legal Education
Christopher J. Mallin, Esq., Academic Co-ordinator
367 North Cleveland Avenue, Mogadore, OH 44260-2101
tel. (330) 592-4513; fax (330) 628-5326
AcademyofCLE@ aol.com, http: //AcademyofCLE.com


“Topeka seniors shut out of primary by ID law, poll worker”

Topeka Capital-Journal:

The state’s voter identification law and a poll worker who didn’t fully understand it prevented elderly residents of a Topeka care facility from voting in Tuesday’s primary election.

Secretary of State Kris Kobach confirmed Thursday that some residents of Brewster Place in southwest Topeka who showed up to a polling place there without I.D.s were turned away without being issued provisional ballots, as required by law.


Breaking: Federal Court Denies Preliminary Injunction in North Carolina Voting Case – Analysis

You can read the 125-page ruling here.

I have now had a chance to quickly read the district court’s 125-page ruling in this case.  Here are my initial thoughts.

1. This is a careful, well-written and well-reasoned decision rejecting the U.S. and private plaintiffs’ Voting Rights Act and constitutional claims against some key provisions of strict North Carolina’s voting law passed last year. The opinion was only on a preliminary injunction, the court did not reach all the legal issues presented (and was tentative on some of the conclusions regarding some parts of the law) and it did not opine much on the voter id portion of the law. But this is an opinion in which the court expressed great skepticism about the use of either Section 2 of the Voting Rights Act or the U.S. Constitution’s equal protection clause to protect voting rights in a strong way. If this ruling stands, it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act, which the Supreme Court gutted in its Shelby County opinion from last year.

2. This ruling is at odds with the other major ruling on the use of Section 2 in these vote denial cases, the Frank v. Walker case. That case was a voting rights plaintiffs lawyer’s dream, reading Section 2 of the VRA and the Constitution’s equal protection clause expansively to broadly protect voting rights. That case is currently on appeal to the Seventh Circuit. Today’s case could well be appealed to the Fourth Circuit.  Eventually one or more of these cases could make it to the Supreme Court. Given the current conservative orientation of a majority of the Supreme Court, it seems likely that a Court majority would be more attracted to the narrow reading of Section 2 offered in today’s ruling compared to the broad ruling in Frank v. Walker.

3. Under the old Section 5 of the VRA, the question was one of “nonretrogression:” one compared the conditions for minority voters under an old law and a proposed new law. If the state could not demonstrate that the proposed new law did not make minority voters worse off, then the law could not be put into effect. Today, the judge in North Carolina said that section 2 did not include a similar nonretrogression standard. Thus, in deciding whether a cutback from 10 to 7 days of early voting violated Section 2 of the Act, the question was not whether 7 was worse than 10, but whether 7 days standing alone made it much harder for minority voters to participate in the political process on the same basis as other voters. The court held that there were still ample opportunities to vote under even the truncated dates, and especially in a midterm election where turnout is not expected to be a big problem. The court also seemed to require more proof of causation in the section 2 context than the Frank v. Walker court believed is necessary.

4. Importantly, the court today rejected evidence offered that the North Carolina legislature passed its laws out of a racially discriminatory intent. The judge seemed to believe that some of it was motivated by partisanship, not race and held that this did not constitute proof of racial discrimination. (I have written about this issue and the difficulty of disentangling the two standards in Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, 127 Harvard Law Review Forum 58 (2014).)  But the big significance of a finding (at least preliminarily) of no intentional discrimination is that this means that DOJ will have a hard time getting North Carolina covered again under the preclearance provisions of the Voting Rights Act. Section 3 of the Act gives a court discretion to impose a preclearance regime on a jurisdiction found to have engaged in intentional discrimination in violation of the 14th or 15th amendments. Without such a finding, however, the state cannot be put back under preclearance.

5. The trial court refused to say much about the “novel” theory that the law violates the 26th amendment in discriminating against young voters (particularly in the elimination of the preregistration for 16 and 17 year olds. But the court did note that this claim was brought for 10 voters and not for all voters in this class, which could make it hard to prove that the law will hamper these particular voters from voting. My sense is that the court will likely sidestep the meaning of the 26th amendment here.

6. In sum, I had always thought that using section 2 of the VRA (or the Constitution’s equal protection clause) to challenge the elimination of same day registration, a cutback in the number of days of early voting, and similar provisions would be an uphill battle. This opinion proves today that this is correct. Unlike the wooden, unthinking opinion about voter id which we recently saw from the Wisconsin Supreme Court, this opinion rejecting the claim of voting rights plaintiffs is careful, considered and reasonable. While Frank v. Walker also presents a reasonable alternative way of reading the scope of voting rights protections after Shelby County, it is this opinion that is more likely to represent how the Supreme Court would view these issues if and when these cases make it to the Supreme Court.

[This post has been updated.]


“Virginia election board makes voter ID requirements more stringent”


Inflaming a contentious debate over voter identification laws, the Virginia State Board of Elections decided this week that, to cast a ballot, voters will have to present a current photo ID or one that expired within the past year.The Republican-controlled board voted 2 to 0 Wednesday — with the Democratic member absent — to narrow the definition of valid identification, a move that one board member said would streamline and simplify the rules.“We believe it’s a compromise and gives people a reasonable grace period,” said Donald Palmer, who was appointed to the board by then-Gov. Robert F. McDonnell (R).But Democrats and voting rights advocates said the new rule will confuse voters less than two weeks before a special election in which the rule is expected to apply.


“Disclosing Disclosure: Lessons from a “Failed” Field Experiment”

Dick M. Carpenter,  David M. Primo, Pavel Tendetnik, and Sandy Ho have written this article for The Forum.  Here is the abstract:

In a recent issue of The Forum, Fortier and Malbin call for more research into the effects of disclosure requirements for campaign finance. In this paper, we report the results of a field experiment designed to assess whether such rules dissuade potential contributors due to privacy concerns. The paper is unique in that we explain why the field experiment never happened, and what we can learn from its “failure.” Specifically, we show that 2012 Congressional candidates were fearful about letting potential contributors know that their donations would be made available on the Internet, along with their address, employer, and other personal information. In trying to learn directly about whether contributors would be spooked by this knowledge, we ended up learning indirectly, through the actions of candidates, that privacy concerns may in fact limit participation in the political process, including among small donors.


“Fair Voting in California – Will Santa Barbara Join Santa Clarita?”

FairVote: “In July, the city of Santa Barbara became the most recent in a string of California cities being sued under the California Voting Rights Act for diluting the votes of their Latino population. After finding out about the case, FairVote promptly sent a letter to Mayor Helene Schneider of Santa Barbara, offering our expertise on election methods to them as they decide how to proceed.”


“New Hampshire candidate cashes in on campaign finance reform”


A dark horse in the New Hampshire race for the U.S. Senate who has been fighting big money in politics got a surprise boost last week from a like-minded group – to the tune of $2 million.

A new political action committee, Mayday PAC, is backing the candidate in the state’s Republican primary, former state Senator Jim Rubens, with TV, radio and Internet ads as a test case in reforming American political campaign financing.


“Bipartisan Policy Center to Continue Work of Presidential Commission on Election Administration”

Press release:

Building on the successful efforts of the Presidential Commission on Election Administration, the Bipartisan Policy Center’s (BPC) Democracy Project today announced that it will work to implement the commission’s recommendations.

Tammy Patrick, a former member of the commission and former Maricopa County election official, and Secretary of the Virginia Board of Elections Don Palmer have joined BPC to support this effort. The commission, led by Bob Bauer and Ben Ginsberg, released its report in January 2014. All former commissioners will advise BPC during the implementation phase.

“We are pleased with the positive reception the commission’s report has received in recent months,” said former Presidential Commission on Election Administration co-chair Bob Bauer. “However, implementation of the recommendations is key and we are we are eager to work with the Bipartisan Policy Center on this next chapter.”

Working with the commissioners, BPC will work with state and local election officials to educate the public and other stakeholders about the commission’s recommendations. BPC will also assess the states where there are opportunities and obstacles to implementing the commission’s recommendations and develop a plan to move discrete reforms in those jurisdictions.

”We are proud of the bipartisan and unanimous work of the commission,” said Ben Ginsberg, former Presidential Commission on Election Administration co-chair. “Our goal moving forward is to get the recommendations and best practices implemented by states and localities where there is a need.”

BPC will focus on these key recommendations in the year ahead: reducing polling place lines, addressing the imminent voting machine technology crisis; online registration; cross-state data sharing efforts; improving the Department of Motor Vehicles registration process; ensuring that schools can be used as polling places; and creating opportunities for voting before Election Day.

“We welcome the presidential commission’s work into our fold and will build on its recommendations to improve the voting process,” said John Fortier, director of BPC’s Democracy Project. “The Bipartisan Policy Center is well-situated to bridge the policy gap between election officials, legislators, academics and advocates as we have shown through our work with the separate Commission on Political Reform.”


“Tennesseans vote to retain Supreme Court justices”

The Tennessean:

in a major defeat for Lt. Gov. Ron Ramsey, voters on Thursday voted to keep all three Tennessee Supreme Court justices in retention elections.

Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee all survived to win new eight-year terms on the state’s highest court, maintaining a margin of about 57 percent to 43 percent. While the justices were able to overcome a vigorous opposition campaign by Ramsey and others, who accused them of being “liberal,” “soft on crime” and of helping Obamacare, their retention victories were by some of the smallest margins in recent history.


“Discovery Battle in Soft-Money Case Could Determine How Fast Court Rules”

Bloomberg BNA:

Lawyers for the Republican Party and the Federal Election Commission are battling over how quickly a federal court will consider a new challenge to the federal ban on unlimited “soft money” contributions to political parties, with the latest court motions focusing on the key question of discovery (Republican National Committee v. FEC,D.D.C., No. 14-853, opposition filed 8/6/14).