State of Elections

William & Mary Law School | Election Law Society

Election Law Society

Fox News Wants You to Know They Didn’t Support a Democrat

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The intersection of copyright law and elections is growing to be an important new area of study and litigation.  The Center for Democracy and Technology has documented and analyzed at least a dozen recent instances where video hosting sites like YouTube have removed political campaign videos pursuant to the Digital Millennium Copyright Act’s requirement that such sites comply with take-down requests submitted by copyright owners.  Indeed, in the run-up to the 2008 presidential vote, the John McCain campaign asked YouTube to more carefully scrutinize political videos for fair use or non-infringement before removing them pursuant to take-down requests.  (YouTube’s response noted that such special treatment was not only logistically impractical, but also might push the site out of the safe harbor protection afforded it by the DMCA for compliance with the “blind” take-down regime).

A related copyright/campaign controversy grabbed particular attention during the recent election cycle.  In September, Fox News filed a copyright infringement suit against the campaign of Robin Carnahan, the Democratic then-candidate for Missouri’s U.S. Senate seat.  (Carahan was eventually defeated at the polls by Republican Roy Blunt.)  The complaint alleged that Carnahan’s campaign “usurped proprietary footage from the Fox News Network to made it appear – falsely – that [Fox News] and Christopher Wallace, one of the nation’s most respected political journalists, are endorsing Robin Carnahan’s campaign.”  The ad (which you can watch here) consists almost entirely of footage taken from Wallace’s interview of Blunt on Fox News earlier this year.  In addition to copyright infringement, the complaint alleges invasions of Wallace’s privacy and publicity rights. [Read more…] about Fox News Wants You to Know They Didn’t Support a Democrat

Committees and Campaigns: South Carolina Federal Court Tightens Definition and Loosens Regulations

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In the wake of last year’s Citizen’s United ruling, there’s been much deliberation, speculation, and anticipation about how the world of federal campaign finance will be changed – and now the states are getting into the mix.  Decisions in Colorado, New Mexico, North Carolina, and Utah paved the way for Judge Terry Wooten of the United States District Court for South Carolina to rule that the state’s definition of “committee” is unconstitutional in South Carolina Citizens for Life v. Krawcheck.  Granting partial summary judgment in favor of South Carolina Citizens for Life (SCCL) on their constitutional claim that the South Carolina Ethics Commission was overbroad in defining “committee,” Judge Wooten may have opened the door to influential campaign contributions from organizations whose primary purpose is not to influence elections. [Read more…] about Committees and Campaigns: South Carolina Federal Court Tightens Definition and Loosens Regulations

Can a Tempest, a Tea Party Make?

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The teapot is still boiling briskly in the City of Falls Church, a Northern Virginia suburb of Washington, D.C., over recent changes in the regulations governing municipal elections. By a 4-3 vote in January 2010, the then Mayor and City Council was successful in changing city elections from even-numbered years in May to odd-numbered years in November. Appropriately, the City submitted the change to the United States Department of Justice, Civil Rights Division, for review and clearance as required by the Voting Rights Act of 1965. The Department subsequently reviewed and approved the change. The result is that, during the transition years, Council-Member terms will be shortened by six months. Then, in the May 2010 election, a major shakeup in the government occurred. The new Mayor, Nader Baroukh, a former City Council member who opposed the change, along with re-elected City-Council-members who were also opponents, is making efforts to “undo” the changes and to submit the matter to the citizens of the City in a referendum. Predictably, many residents of the City are hopping mad.  [Read more…] about Can a Tempest, a Tea Party Make?

Some will Win, Some will Lose, Some States are Born to Sing the Blues: The Coming Battle Over Reapportionment

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The stakes are incredibly high, reapportionment is looming, and recent data from Election Data Services shows that neither Democrats nor Republicans will be too pleased come next year. States which have been recently labeled as ‘safe Republican’ in Presidential elections will gain seats, but in more Democratically inclined areas. States recently labeled as ‘safe Democrat’ in Presidential elections will lose some seats. The biggest gain will be in Texas. Texas can expect to gain four House seats, at least some of which will be placed in locations more favorable to Democratic candidates. Meanwhile, New York, a state typically labeled as ‘safe Democrat’ in Presidential elections, will likely lose two House seats. In terms of multi-district moves, Florida will likely gain two seats and Ohio will likely lose two seats. Arizona, Georgia, Nevada, South Carolina, Utah and Washington will all likely gain a seat while Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey and Pennsylvania will all likely lose a seat.

Reapportionment is becoming a problem not only for certain Presidential candidates but also state and federal candidates, especially candidates in the Midwest where rapid population flight is decimating the electoral landscape. The close electoral math is mapping onto reapportionment strategy. Democrats and Republicans are locked in a mortal struggle to gain control of state houses and governor’s mansions across the nation, in anticipation of being able to influence the composition of both state legislatures and Congress over the next decade. [Read more…] about Some will Win, Some will Lose, Some States are Born to Sing the Blues: The Coming Battle Over Reapportionment

Want to Be a Senator, but Hate Those Pesky Elections? Just Become a ‘Temporary’ Appointee

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The legal controversy over the appointment of a replacement to the Senate seat previously held by President Barack Obama is likely drawing to a close.  In the process of resolving the controversy, the U.S. Supreme Court also clarified their interpretation of a key portion of the Seventeenth Amendment regarding vacancies in Senate seats.  This topic has been relevant lately, particularly following the 2008 election cycle.  When Senator Obama was elected President, his incoming administration including numerous sitting Senators including Vice President Joe Biden, Secretary of State Hillary Clinton, Secretary of the Interior Ken Salazar, and, of course, himself.  Despite its seemingly straight-forward language, the Seventeenth Amendment required a certain amount of parsing to ensure these senatorial appointments would fulfill its procedural requirements.

The Seventeenth Amendment, ratified in 1913, in addition to providing for the direct election of senators, altered the procedure for filling vacancies in that office.  The amendment provides that, in the event of a vacancy, the governor must issue a “writ of election” to hold an election for a permanent replacement to fill the seat.  The state legislature may empower the governor to make a temporary appointment, but the appointee may only serve until the special election is held to fill the vacancy.  A date for a special election must be set by the governor, but the amendment does not specify when exactly it must be held. [Read more…] about Want to Be a Senator, but Hate Those Pesky Elections? Just Become a ‘Temporary’ Appointee