Monthly Archives: July 2019

“‘Choice of the Manner in Which Thou Wilt Die’: The Australian Courts on Compulsory Voting”

Graeme Orr has posted this draft at SSRN (forthcoming, Matteo Bonotti and Paul Strangio (eds) ‘A Century of Compulsory Voting in Australia: Genesis, Impact and Future’ (subject to contract, Palgrave Macmilan). Here is the abstract:

Compulsion requires law: legislative parameters and institutional enforcement. Across Australia the compulsory voting regimes are similar. Electoral authorities administer infringement notices for failure to turnout (but rarely for failure to enrol) without a reasonable excuse. And legislation sets a graded penalty process, with a modest fee to expiate the infringement but a higher fine and risk of a recorded conviction if the notice is unsuccessfully contested.

To legal realists, the law is what the courts ultimately hold it to be. In that tradition, but also recognising the sometimes contested idea of compulsion, this paper focuses on the judicial norms of compulsory voting in Australia.

These norms derive from two classes of cases. The first are decisions, from courts elevated in the hierarchy, about why compulsory voting is constitutionally legitimate. These decisions have survived a turn from respect for parliamentary sovereignty over electoral law towards implied political rights and freedoms. Is this merely judicial pragmatism, given how entrenched and popular compulsion is in Australian electoral practice? Or does it reflect a justification of compulsion, a normative conception of what representative democracy ought involve?

The second class of cases involve (typically) lower courts reflecting on what amounts to a ‘valid and sufficient reason’ for not turning out to vote, including discretion to forgive an offence. Since compulsion is not just a high-level norm, but a practice, these cases too help us understand what the law imagines it is compelling electors to do or be, and why.

Ultimately the courts have been remarkably supportive of compulsion, albeit with a bleakly realist, rather than positive, vision of the role of compulsion in electoral democracy. That bleak conception is captured by behaviourist ideas of forcing choice amongst options where an elector may have no sincere preference. Voting becomes a matter of endorsing the lesser of a set of evils akin (in a literary phrase borrowed by the High Court) to choosing the manner of one’s death.

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In New Video, Kobach Claims He’s Not an Extremist

The Hill:

Kansas GOP Senate candidate Kris Kobach blamed his gubernatorial loss last year on “propaganda” and is vowing to take a new approach to his Senate bid.

“I’d failed to anticipate just how powerful the propaganda would be,” the former Kansas secretary of State said in a five-minute video released by his campaign.

“When someone is called a ‘racist,’ a ‘fascist,’ even a ‘white nationalist’ over and over on a daily basis, even Kansans will eventually doubt themselves.”

Kobach asserted that his views were more in line with voters than his critics had maintained.

“Democrats and their media allies had convinced many people, even Republicans, that I was an extremist,” he said. “If I were one, I would tell you, but I’m not.”

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Pleasant Grove, Alabama Voting Rights Lawsuit Settles with Cumulative Voting Remedy

A proposed settlement has been reached in the voting rights lawsuit filed against the city of Pleasant Grove alleging the rights of black candidates and voters had been violated by the city’s use of at-large voting.

Court documents filed late last week include a proposed settlement agreement, which if approved by the court, would change the city’s election method to cumulative voting. Under at-large voting, no black person has ever been elected to the mayor’s office or city council in Pleasant Grove.

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Chair of North Carolina State Board of Elections Resigns After Telling Inappropriate Sexual Joke to 600 People at Election Conference; Comes at Time When Board Has Rescinded Decision on New Voting Machines



State Board of Elections Chairman Robert Cordle is facing criticism after telling a joke about cows and sex to a gathering of some 600 local elections officials.
At the Monday morning opening of a state elections conference, Cordle told attendees from election offices across North Carolina a joke that ended by comparing a cow who refused to be impregnated to a woman.
Many of the officials at the meeting in Cary this week are women.


The North Carolina State Board of Elections plans to move forward with certifying new voting machines ahead of the 2020 elections after a member mistakenly voted Monday night to delay the process to create stricter requirements out of concern for cyber security.
The reversal of course came as a surprise to voting rights advocates and citizens who had praised Board members last night for postponing certification in the name of voter integrity.
Board members had voted 3-2 for the postponement in order to adopt more stringent requirements for digital voting systems at a later meeting in mid-August (a meeting for which they would have provided 15 days’ notice to the public).
However, another meeting notice sent out Tuesday by the Board stated that the group planned to consider a motion this Thursday morning to “rescind [the] decision to notice meeting to amend NC Election Systems Certification Program.”
“Board Member David Black said he misunderstood the motion of Board Secretary Stella Anderson and was not aware it would stop the present certification in its tracks,” said Board Chairman Bob Cordle in an email. “He did not realize that, so he wants to set that vote aside and move ahead with certification. Some board members believe it’s not fair to try to change the requirements at this late date — more than two and a half years after the process started.”

From former counsel to state board Josh Lawson:

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“Judge dismisses DNC suit against Trump campaign, Russia over email hack”


A federal judge has dismissed a lawsuit that the Democratic National Committee filed against the Trump campaign, the Russian government, WikiLeaks and various Trump campaign officials over alleged involvement in the hacking of Democratic Party email accounts during the 2016 presidential race.

U.S. District Judge John Koeltl rejected the central theory of the racketeering suit: that the Trump campaign, campaign aides and allies abetted the theft of the emails by encouraging WikiLeaks to publish the messages and by urging that they be released when they would be of maximum political benefit to then-candidate Donald Trump.

Koeltl said such actions were protected by the First Amendment when taken by people not involved in the actual hacking.

“Even if the documents had been provided directly to the Campaign [and] the Campaign defendants … they could have published the documents themselves without liability because they did not participate in the theft and the documents are of public concern,” the judge wrote in an 81-page opinion. “The DNC cannot hold these defendants liable for aiding and abetting publication when they would have been entitled to publish the stolen documents themselves without liability.”

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The Central Issue in the Constitutional Challenge to CA’s New Law Denying Ballot Access to Presidential Candidates Unless They Disclose Their Tax Returns

The Supreme Court has long recognized that laws regulating candidate access to the ballot implicate the First Amendment and associational rights of voters. After all, if a candidate cannot get on the ballot, voters cannot vote for that candidate. As a result, the Court has held that the constitutional right of voters are violated by various regulations that impose “undue burdens” on ballot access, including in the context of presidential primaries.

Indeed, in the one case perhaps closest on point to this new California law, the Supreme Court — in an opinion by Justice Stevens — has held that when such laws involve the presidential election process, the courts must be particularly careful to scrutinize such laws closely. The reasons, according to Justice Stevens for the Court in Anderson v. Celebrezze, 460 US 780 (1983), are these:

Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State’s enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders.Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party’s Presidential nominating convention, observed that such conventions serve “the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” Cousins v. Wigoda, 419 U. S. 477, 490 (1975).

There are no bright-line doctrinal rules here. The Court will weigh the “character and magnitude” of the burden the law imposes against CA’s legitimate justifications for it. But that process of analysis will include significant consideration of the issues that Anderson identified in striking down the Ohio ballot access law at issue there.

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More Charges Against #NC09’s McCrae Dowless

News and Observer:

A Republican political operative who worked for one-time congressional candidate Mark Harris in Bladen County faces felony charges in connection with the 2018 general election, an indictment revealed Tuesday by the Wake County district attorney shows.

Leslie McCrae Dowless was charged with two counts of felony obstruction of justice, perjury, solicitation to commit perjury, conspiracy to obstruct justice and possession of absentee ballot, the document showed.

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The Coming Constitutional Challenge to CA Requirement that Presidential (and Gubernatorial) Candidates Provide Tax Returns to Appear on the Primary Ballot: What’s Likely to Happen and When?

California Gov. Gavin Newsom has signed a bill requiring Presidential candidates (as well as gubernatorial candidates) to supply their tax returns if they want appear on the primary ballot. There is no question the Trump campaign or their allies, and possibly others, will file a constitutional challenge to this law in federal court. The key argument would be that this law imposes additional qualifications on presidential candidates in violation of Article II of the Constitution. I think such a challenge has a pretty good chance of succeeding, although nothing is certain.

Back in 2017 in a Politico piece, I explained the main constitutional argument about qualifications, and how the state may try to get around it:

The idea of using ballot access to force politicians to do something they don’t want to do is not new—nor is the fight over the move’s constitutionality. The Supreme Court’s 1995 ruling in U.S. Term Limits v. Thornton held that Arkansas could not deny ballot access to congressional candidates who had served more than three terms or to Senate candidates who served more than two terms—measures the state had enacted to create congressional term limits. The Court held that the Constitution set the exclusive qualifications for running for federal office (including age and citizenship requirements), and that allowing individual states to impose addition qualifications “would erode the structure designed by the Framers to form a ‘more perfect Union.’” So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.

In light of such precedent, what could possibly be the basis for upholding a state law barring ballot access for presidential candidates who decline to release their tax returns? After all, Article II of the Constitution includes exclusive qualifications for the office of the president: The president must be a natural-born citizen who is at least 35 years old and has resided in the United States for at least 14 years.

The answer lies in another part of Article II—the part that received some important attention in Bush v. Gore, the Supreme Court decision that Democrats love to hate. Famously, the 2000 case between Republican nominee George W. Bush and Democratic nominee Al Gore effectively handed the election to Bush when it ended the Florida recount.

I also expect that there will be arguments based upon the First Amendment right of a political party to be able to object to conditions put on a party primary. Already cases hold that political parties can insist on closed primaries when a state wants them open to independent voters.

I expect that a lawsuit will be filed in federal district court soon. In addition to the complaint, there will be a request for a preliminary injunction or other emergency relief so that the issue can be decided, at least on a preliminary basis, in time for the upcoming election.

It would not be surprising for such a case to make its way through the Ninth Circuit and to the Supreme Court within a matter of months.

Stay tuned.

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“Modified sentences and ‘rocket dockets’ aim to ensure felons can still register to vote”


Florida judges and prosecutors are working with felons and public defenders to find ways to register former inmates to vote, a process approved by voters last year that Republican legislators have made more difficult.

To work around a law passed this spring, which requires individuals to pay all fines, fees and restitution before they can register, court officials in cities such as Miami and Tampa are modifying sentences and making plans to allow some debts to be converted to community service. In smaller towns, volunteers are holding fundraisers to pay off penalties for residents.

Voting rights activists applaud these efforts but say they’re worried that a patchwork of changes may confound hundreds of thousands of potential voters in the months leading up to the state’s March 17 presidential primary.

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“The Queens D.A. Race Has a Winner. Here’s Why It’s Still Not Over.”


The New York City Board of Elections on Monday certified Melinda Katz, the Queens borough president, as the winner of the June 25 Democratic primary for Queens district attorney, the culmination of a 34-day election battle that was one of the closest and most bitter in recent New York City history.

But the board’s certification does not end the contest: One of Ms. Katz’s opponents, Tiffany Cabán, has already filed a lawsuit challenging the results, which have her losing to Ms. Katz by a mere 60 votes.

Nor does it end the identity crisis that the race represented for the Democratic Party. Supporters of both campaigns have cast the outcome as a verdict on the future of the left, with backers of Ms. Cabán, a former public defender and democratic socialist, describing her candidacy as a rebuke to machine politics, and supporters of Ms. Katz, the favored candidate of top Democratic leaders, accusing the other side of aggravating the party’s polarization….

The recount process itself was painstaking and dull. But it unfolded against a backdrop of mistrust and mutual recrimination, as Ms. Cabán’s supporters hurled accusations of voter fraud and suppression. Ms. Katz’s supporters — including prominent elected officials such as Representative Gregory Meeks — suggested that Ms. Cabán’s backers were gentrifiers inconsiderate of nonwhite voters, many of whom supported Ms. Katz. (Ms. Katz is white, and Ms. Cabán is Latina.)
Ms. Cabán’s supporters have already pointed to the looming court battle, when Ms. Cabán’s lawyers plan to argue that elections officials improperly discarded dozens of ballots — more than enough to flip the election yet again if reinstated.

Many of those ballots were invalidated for technical reasons, such as an eligible Democratic voter showing up to the wrong polling site, or not writing “Democrat” on the ballot. Poll workers are responsible for ensuring that voters fill out affidavit ballots correctly, said Jerry Goldfeder, a lawyer for Ms. Cabán.

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