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Archives for March 2012

News Brief: Arkansas struggles with money in judicial elections

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Alli Handler

The consequences of the Citizens United decision have been felt across the country and have been widely reported, including by this blog. Some states are focusing specifically on the effect of unlimited campaign money on judicial elections, with advocates arguing that though money is not is not a true substitute for speech in any type of election, the differences between money and traditional speech are more pronounced in the judicial field.

One example of such a tactic is the recent effort in Arkansas to distinguish judicial elections from other democratic mechanisms. The Arkansas Bar Association’s Task Force on Judicial Election Reform has developed ways to reform judicial elections and to curb the corrosive effect of money on an elected judiciary. Justice Robert Brown, the Chairman of the Task Force, has warned of the danger in failing to distinguish the unique nature of judicial elections: “If they’re not different, it will indeed undermine the dignity and the respect for the courts.”

In early March, 2012, the Task Force delivered three reform ideas during a panel discussion at the Clinton Presidential Library. First, Arkansas may develop a response committee dedicated to publicly identifying false statements made in judicial races. Second, they may create a voter guide with factual information about all the candidates. Third, a non-profit may be formed to encourage candidates to run fair campaigns and to disavow any false statements made by third parties.

Critics charge that holding judicial elections to different standards than other races is dangerous because it would provide a slippery slope that would lead to an unconstitutional reduction in free speech. Moreover, critics say, all political elections should be conducted with integrity, making electoral distinctions between the branches irrelevant.

The problem (or advantage) of unlimited money in judicial elections is an issue debated across the country and will be specifically addressed on March 29, 2012 and William & Mary Law School during the annual Election Law Symposium.

Alli Handler is a first-year law student at William & Mary.

permalink: http://stateofelections.pages.wm.edu/2012/03/26/arkansas-struggles

writing academic research papers

Fifth Annual Election Law Symposium at William & Mary

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by Christina Sumpio

The Election Law Society and the Election Law Program at William & Mary Law School announce the Fifth Annual Election Law Symposium to take place on Thursday, March 29. Featuring prominent state supreme court judges, political consultants, and scholars, the symposium centers on the topic “Money in Judicial Elections,” and evaluates the changing dynamics of state judicial elections in the post-Citizens United landscape. The event, which is free and open to the public, begins at 3:15PM and will be held in Room 124.

Panelists scheduled to participate include the Hon. Brent Benjamin, Justice on the West Virginia Supreme Court since 2005; James Bopp, Jr., General Counsel for the James Madison Center for Free Speech, former speech writer for presidential candidate Mitt Romney, and chief architect of the controversial Supreme Court case Citizens United, as well as more than 60 election-related cases; the Hon. Thomas Phillips, retired Chief Justice of the Supreme Court of Texas, current partner of the law firm Baker Botts, past President of the Conference of Chief Justices, and a member of the Carter-Baker Commission on Federal Election Reform; Bradley Smith, former Chairman of the Federal Election Commission, the Josiah H. Blackmore/Shirley M. Nault Professor of Law at Capital University Law School, and the Chairman of the Center for Competitive Politics; the Hon. Marsha Ternus, retired Chief Justice of the Iowa Supreme Court whose term expired after seventeen years of service after voters failed to retain her in the controversial 2010 retention election; and the Hon. Penny White, retired Tennessee Supreme Court Justice, and current Director of the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law. Lyle Denniston, renowned legal journalist and blogger who has reported on the Supreme Court of the United States for more than fifty years, will serve as moderator. He currently writes for the SCOTUSblog, which provides coverage and analysis of the Supreme Court. Denniston has also written for the Wall Street Journal, Boston Globe, and The American Lawyer.

“In the last decade, the massive influx of contributions by large donors, especially special interest groups, has changed the face of state judicial elections,” explained Election Law Society Co-President Anisa Somani ’13. “Our symposium draws together a panel of experts to discuss whether this radical evolution in judicial election expenditures should be regulated and whether money actually corrupts judicial independence,” noted Election Law Society Co-President Vladislava Soshkina ’13.

This annual event is possible with generous assistance from the William & Mary Institute of Bill of Rights Law and the National Center for State Courts.

Created in 2005 as a joint venture of the National Center for State Courts and the Law School, the Election Law Program seeks to provide practical assistance to state court judges in the United States who are called upon to resolve difficult election law disputes (see Program materials available at www.electionlawissues.org). The Election Law Society is the student organization created to generate interest in and educate students about this rapidly expanding and extremely important area of practice.

by Christina Sumpio

[Read more…] about Fifth Annual Election Law Symposium at William & Mary

Montana Supreme Court leading the charge against Citizens United

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by Patrick Genova

Last month the Supreme Court issued a stay on Montana’s Supreme Court decision upholding corporate spending limits in state elections. It seems that the Court may be ready to reexamine Citizens United. What they’ll find is what many states have been saying all along: Citizens United is out of sync with the values of many states.

Montana was the first of many states to express disdain for unlimited corporate funding. Early last week 55 towns in Vermont passed resolutions proposing a constitutional amendment that would limit the rights of corporations. The Alabama legislature has also been seeking to stop PAC-to-PAC fund transfers that mask donors. Even some members of the Court seem eager to reexamine the effects of Citizens United. In response to the Montana decision, Justice Ginsburg referred to Justice Kennedy’s language in Citizens United decision saying, “Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” Meanwhile some panelists at the Federal Election Commission’s hearing last week urged the FEC not to wait for the Supreme Court to reverse Citizens United and to take regulatory action into their own hands. [Read more…] about Montana Supreme Court leading the charge against Citizens United

Two Wisconsin Voter ID Cases Demonstrate the Need for the Right to Vote in the U.S. Constitution

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by Guest Contributor Elise Helgesen of FairVote

On March 6th, the Wisconsin Circuit Court in Milwaukee Branch of the NAACP v. Walker, granted a temporary injunction preventing the state from enforcing a voter ID law in the upcoming primary election. Then, on March 13, a second Circuit Court judge struck down the same voter ID law in League of Women Voters v. Walker. The courts proceeded with similar, yet differentiated, analyses of the law in finding that Act 23, Wisconsin’s 2011 voter ID law, was unconstitutional based on the Wisconsin Constitution’s affirmative right to vote – a right unfortunately not found in the U.S. Constitution.

The holdings of these two cases are important in looking to other states’ voter ID laws. For courts to hold that the right to vote is fundamental, the right to vote must be stated unequivocally in each states’ constitution, and it must be explicitly protected from legislation trying to abridge that right. FairVote supports an amendment creating an affirmative right to vote in the U.S. Constitution. If the right to vote were incorporated not only into every state constitution, but also into the U.S. Constitution, governments would have to prove that such forms of voter ID laws are necessary to a compelling state interest. To justify restrictive voter ID laws that unduly burden qualified voters’ constitutional right to take cast their ballots the legislature would need to put forth a more narrowly tailored regulation – one which did not effectively disenfranchise eligible voters.

Both courts were clear that Act 23 was unlawful; however, both were also clear that voter ID laws could be upheld under different circumstances. The court in League of Women Voters v. Walker stated that, “this court does not hold that photo ID requirements under all circumstances and in all forms are unconstitutional per se. Rather, the holding is simply that the disqualification of qualified electors from casting votes in any election where they do not timely produce photo ID’s satisfying Act 23’s requirements violates Article III, Sections 1 and 2 the Wisconsin Constitution.” Likewise, NAACP v. Walker distinguished Act 23 from other voter ID laws because Act 23 was overly restrictive and did not allow for alternative means of proving identification or of casting a provisional ballot. [Read more…] about Two Wisconsin Voter ID Cases Demonstrate the Need for the Right to Vote in the U.S. Constitution

New York’s clock continues to count down

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by Alex Custin

New York’s redistricting attempts continue to show little progress towards developing a plan that both the legislature and the governor will approve.  The legislature continues to refuse to pass the redistricting commission bill that the governor proposed earlier this year.  The governor in turn has continued to state that he will veto any redistricting plan that is not formed through an independent process.  The governor has reminded the legislature that if they continue to insist upon using partisan methods to develop the redistricting plan, the courts will end up drawing the lines, and no one can truly predict what will happen if the courts get involved because of all of the changes that have to take place.

Another issue continues to add pressure on the government to develop a plan soon: the need to hold the primary early enough to be able to send absentee ballots to overseas servicemen.  New York managed to get an exemption from this requirement in 2010 – it did not have to worry about it this year because it only applies to federal elections – but its chances of getting another exemption in 2012 appear to be quite slim.  This issue adds even more complexity to New York’s election process because it appears that the government plans on keeping the current date for state and local primaries, which would mean New York would have presidential primaries in April, congressional primaries sometime around August, and state and local primaries in September.  There was some consideration given to changing the state and local primaries to match the date of the congressional ones, but in an unsurprising result, the parties could not agree on a date to change it to.  This is kind of interesting when you think about what it will mean for the congressional primaries. Perhaps the date will be set by the judge deciding New York’s suit requesting another exemption to the timeline for military absentee ballots. [Read more…] about New York’s clock continues to count down