State of Elections

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Election Law Society

Alabama sidesteps VRA § 5 preclearance status quo: I’ll see you in court

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by John Alford

As part of the mandated decennial redistricting, the Alabama legislature will change the lines for the State’s congressional and school board districts. Current and proposed maps can be found here. This redistricting will alter the political landscape of the State, but before Alabama can move forward on redistricting, the Federal Government has to approve of the new map as per the Voting Rights Act § 5 (“VRA”). Under the VRA § 5, there are two paths Alabama can take to get preclearance. It can seek approval through the Justice Department (DOJ) or through the U.S. District Court for the District of Columbia. (For more on the VRA § 5, particularly why and how states like Alabama get preclearance from the Federal Government, see here.) Alabama has opted to take the matter to court.

Like many other covered jurisdictions, Alabama is unhappy with the requirement that the Justice Department (DOJ) keep tabs on its election process. To wit, Shelby County recently filed suit challenging the constitutionality of the preclearance process, so far unsuccessfully (see more about this lawsuit here.) The opinion in Shelby County emanates from the same court from which Alabama is seeking preclearance on redistricting. But the ruling against Shelby County should not alter how the District Court views the issue here. Overturning VRA § 5 would be an extreme political move, essentially declaring that issues of race no longer disrupt the electoral process in states historically notorious for prejudicial practices. Granting preclearance to a redistricting plan, as routinely done in the past, is nowhere near as high a hurdle for Alabama to clear. [Read more…] about Alabama sidesteps VRA § 5 preclearance status quo: I’ll see you in court

Montana to vote on Supreme Court justice elections

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by Elderidge Nichols

On April 18, 2011, the Montana state legislature passed SB 268 which calls for a referendum vote to determine the future of elections for the Montana Supreme Court.  On June 5, 2012, on the 2012 Primary Election Ballot, voters in Montana will determine whether Montana will begin to elect Supreme Court justices by districts.

Although the Montana state senate passed SB 268 the Attorney General’s office and Secretary of State are statutorily obligated to approve of the language of the Statement of Purpose designed to explain the purpose of the referendum.  Andrew Huff, Assistant Attorney General of the state of Montana, passed along a copy of the accepted language. The Statement of Purpose reads:

The Montana Supreme Court is composed of seven justices, one of whom is Chief Justice. Under current law, the justices are elected statewide and each Montanan votes for all seven positions. LR-119 would change existing law so that each justice is elected from one of seven districts of approximately equal population, with the Chief Justice then chosen from the seven by majority vote of the justices. Only Montanans living in each district would vote for their district’s justice. Justices must reside in their district when initially elected. [Read more…] about Montana to vote on Supreme Court justice elections

A series of tubes: Transmitting ballots via the Internet

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by Anthony Balady

The Internet is a strange and unpredictable place, filled with cats playing keyboard and Rick Astley videos. It’s the kind of place you wouldn’t want your ballot floating around without protection. So, ever since the widespread adoption of electronic voting machines, voters and election administrators alike have feared for the safety of votes traveling through the Internet tubes.

Five voters in Hawaii, concerned about the accuracy and safety of electronically transmitted ballots, filed suit against Chief Election Officer Kevin Cronin to prevent the use of electronic voting machines in the 2010 elections. The suit, Babson v. Cronin, resulted from the Hawaii Office of Election’s decision to use Direct-Recording Electronic (DRE) voting machines in the 2010 elections. DRE voting machines eliminate the need for paper ballots by storing the vote electronically. In some DRE machines, the vote is stored on a physical device, like a flash drive, and then physically taken to a central vote tabulation machine.  In other DRE machines, like those used in Hawaii, the vote is transmitted electronically through an Internet style network. [Read more…] about A series of tubes: Transmitting ballots via the Internet

One party state: The closing of Idaho’s Republican primary

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by Nathan Pittman

Recently, Idaho Democrats reaffirmed their commitment to an open primary, which allows any elector to choose that party’s ballot (and only that party’s ballot) in the primary election. Any voter in Idaho may choose to participate in the Democratic Party’s primary. This means that Democrats and unaffiliateds may vote in the primary, because a Republican choosing to vote in the Democratic primary would forego their right to participate in the Republican primary under Idaho law. The Democratic Party’s commitment to an open primary is significant, because it means that Idaho has both a closed and an open primary.

The transition to this semi-open primary system has been rocky in the Gem State. It began in 2008 with a coup in the Idaho Republican Party. A plank was included in the platform that called for primaries to be closed. A closed primary, however, would require changes to Idaho law, which up until this summer had no provision for recording partisan registration. In order to force the state to make this change, the Idaho Republican Party sued the Republican Secretary of State, arguing that Idaho’s open primary laws violated the Constitution in an as-applied challenge.

In March of 2011 U.S. District Judge B. Lynn Winmill concluded that the Idaho open primary law violated the First Amendment right of association that the Idaho Republican Party enjoyed. Judge Winmill relied on the Supreme Court’s decision in California Democratic Party v. Jones, which held that blanket primaries, where individuals could vote in any primary election across party lines, were an unconstitutional infringement on the associational rights of political parties. The Court reasoned that a political party would be unable to effectively convey its message if that message was in part controlled by individuals not affiliated with the party.

What is remarkable about Judge Winmill’s decision is how low the standard is for a plaintiff to show that their associational rights are being infringed. Judge Winmill relied on expert testimony to show that there was a roughly ten percent rate of crossover voting in Republican primaries. Judge Winmill acknowledged that these rates were lower than faced by the Court in Jones, but held that even lower rates of crossover voting would trigger grave Constitutional concerns. It is difficult to imagine, given Judge Winmill’s reasoning, any instance where a state could show that an open primary law could be considered constitutional in the face of a political party’s resistance to opening its nominating procedure. The Fourth Circuit seemed to agree with Judge Winmill when, in 2007, it struck down a similar open primary law in Virginia.

While the defendants in the Idaho case did not advance much in the way of a state interest that would provide a compelling justification for its open primary law, one of the interests advanced in Virginia has particular relevance for Idaho. The Fourth Circuit rejected an argument by the state that its open primary law was justified on the grounds that, in many instances, the primary was tantamount to the general election. The experts that Judge Winmill relied upon concluded that Idaho is the most single party state in the country, and that “voters do likely cross over; they have to in order to have any meaningful influence in elections and express their sincere preferences with regard to their own representation.”

In response to this decision, Idaho recently changed its primary election laws. The new law, which will govern this year’s elections, requires an elector wishing to vote in a partisan primary be registered with that party. Beginning this year, electors will register as members of a party. If an affiliated elector wishes to change affiliation, they must notify the Secretary of State by the last day that a candidate must file to run for the election. Unaffiliated voters may change affiliation on election day, though this is a commitment that will carry over to the next election. The law therefore makes it easy for unaffiliated voters to become affiliated, but makes it difficult for affiliated voters to switch their affiliation. The law builds in protections for affiliated voters who choose to vote in the Democratic primary, which allows unaffiliated voters to participate. If the unaffiliated elector chooses a partisan ballot when the party allows unaffiliateds to vote, then while the choice is noted they are not considered to be registered as a member of that party and may still quickly change their affiliation.

In a state like Idaho, a semi-open primary creates concerns. In no other state in the Union is a primary so closely tied to the general election. However, the Supreme Court, in the Jones and Tashjian cases, appears to have stripped states of the power to adjust primary processes to conditions within the state. It may be that Democratic complaints about growing radicalism among the Idaho GOP is just sour grapes, they have the misfortune of living in a state where the majority of people have rejected their party platform. But the fact remains that the only moderating influence on the Idaho GOP is the primary, because the Republican Party is assured dominance in the general. Judge Winmill, perhaps rightly, rejected the idea that growing radicalism could be a state interest that contravened the First Amendment. After all, it is the right of the Republican Party to be as radical as it wants, just as it is the right of voters to reject that Party if it is too radical for their tastes.

 

Nathan Pittman is a  third-year student at William and Mary Law. 

 

 

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Fashion Frenzy: Passive Electioneering and the Right to Vote

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by Latisha Woodford

On Election Day, after you have rushed to the polls, how would you feel to be turned away because of your apparel? The regulation of voter apparel posed a real issue for residents in Pennsylvania. Residents of the state were prohibited from voting because they were wearing T-shirts endorsing candidates for office in the polling place. Subsequently, the electioneering battlegrounds were drawn, and the effects on the right to vote involved passive electioneering. Passive electioneering refers to the method of influencing voters by wearing campaign t-shirts or carrying pamphlets to the voting location.

Section 1220(c) of the Pennsylvania election code prohibits electioneering but the state law does not define the term. Subsequently, defining the scope of the term has been left to the individual interpretation of the County Boards of Elections. Local counties have interpreted the term differently. Many Pennsylvania counties, including Philadelphia and Allegheny, have long allowed voters to vote wearing clothing, stickers, and buttons endorsing candidates and there have been no disruptions or significant problems. These counties follow the recommendations of the Pennsylvania Department of State. In a memorandum  to the County Boards of Election the Commonwealth of Pennsylvania Department of State recommended that voters be allowed to electioneer by passive methods. The Department believes that as long as the voters take no additional steps to attempt to influence voters in the polling place the right of the franchise should not be denied.

The memorandum resulted in pending litigation. The result of the pending case, Kraft v. Harhut, should end the statewide debate. The American Civil Liberties Union of Pennsylvania  (ACLU) seeks to join the Commonwealth in challenging any effort to enforce a statewide dress code for voters. The ACLU does not endorse a narrow interpretation of the term electioneering. The ACLU opined that sustaining a narrow interpretation would implicate the First Amendment free speech rights. The primary concern of the ACLU is not to turn a registered voter away from the polls as well as the possibility of the rule to be applied in a discriminatory fashion. Nevertheless Lawrence County observes a narrow interpretation. The county will not allow passive electioneering and has turned away voters dressed in party endorsing apparel.

The argument for the implementation of a statewide dress code will rest heavily on the lower court’s interpretation of the state law. Lawrence County does not wish to make a distinction for lesser forms of electioneering. Also the pending lawsuit claims that allowing voters to wear partisan–affiliated clothing would affect the health and safety of voters. These arguments certainly may pass muster. The Supreme Court has historically held that restricting free speech at a polling place may be necessary to make sure voters may freely exercise a right to vote for the candidate of their choice. It is also well–established that the state has the right to protect voters from any confusion and undue influence within the polling place.

Whether party-endorsing apparel promotes an unsafe environment for voters remains unanswered. How the court will strike a balance remains questionable.

 

Latisha Woodford is a second-year student at William and Mary Law. 

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