State of Elections

William & Mary Law School | Election Law Society

Washington

Weekly Wrap Up

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Due to a loophole in Florida election law, a violation can go without any punishment. On September 30, a Florida District Court of Appeals ruled that because the statute allowed candidates to opt for an administrative hearing regarding their violations but didn’t give those courts the power to levy sanctions, candidates could violate election law and not be penalized. This was caused by a “glitch” in the legislation and was not intentional. Florida Election Commission Chairman says that it won’t affect the cases for this year’s elections because the legislature will have an opportunity to fix it before they’re heard.

According to the 9th Circuit, Washington doesn’t discriminate against minorities in prison. The Court ruled on October 7 that the Washington felon disenfranchisement law, which prohibits incarcerated felons from voting, does not constitute discrimination despite disproportionately affecting minorities. In January, a three-judge panel of the 9th Circuit held 2-1 that incarcerated felons should be allowed to vote. Sitting en banc to reconsider the decision, the Court unanimously upheld the law. The Court ruled that the felons must show “intentional discrimination” on the part of the state and not merely that the law does discriminate, something the prisoners failed to do in this case. [Read more…] about Weekly Wrap Up

Weekly Wrap Up

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Every week, State of Elections brings you the latest news in election law

– On Wednesday, the Supreme Court heard oral arguments in Doe v. Reed.  The plaintiffs argue that Washington’s Public Records Act, which makes the names of signatories to ballot initiatives a matter of public record, should be declared unconstitutional .  Members of a group called “Protect Marriage Washington”, who submitted petitions for a referendum to repeal Washington’s domestic partnership laws, have asked for an injunction against the publication of their names.  The signatories fear harassment from gay marriage proponents should their names be published, as required under the Public Records Act. Here’s a transcript of the oral arguments.

– The Supreme Court of New Jersey has agreed to hear a case involving an attempt by a Tea Party organization to recall Senator Robert Menendez.  The New Jersey constitution allows Senators to be recalled, but the U.S. Constitution is silent on the issue.  The appeals court previously ruled in favor of the Tea Party and allowed their recall efforts to continue.

– Merced County in California is seeking to remove itself from the restrictions of Section 5 of the Voting Rights Act.  Section 5 requires that certain states and municipalities “preclear” changes to their voting laws with the Attorney General.  Only four counties in California are subject to the additional restrictions imposed by Section 5.

– Here’s a very odd story out of Orange County California.  According to a local newspaper, dozens of voters were allegedly tricked into registering as Republicans.  Members of the Republican Party supposedly tricked passersby into thinking they were signing petitions for liberal causes, like legalizing marijuana, when they were actually signing voter registration forms that identified them as Republicans.  The California Republican Party offers an $8 dollar bounty for every new Republican registration, which apparently inspired this latest attempt to trick voters into registering as Republicans.

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9th Circuit Panel Strikes Down Washington Disenfranchisement Law

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The unending battle over felon disenfranchisement in Washington state has taken an interesting turn, as a three-judge 9th Circuit panel ruled 2-1 that Washington’s denial of voting rights to incarcerated felons is a violation of Section 2 of the Voting Rights Act.

This decision is directly counter to one issued just six months ago by a panel of 1st Circuit judges reviewing a case out of Massachusetts, Simmons v. Galvin, where that panel held 2-1 that Section 2 simply doesn’t apply to felon disenfranchisement. The glaring circuit split on this question makes this case a very strong candidate for en banc review at the 9th, and possibly ripe for a Supreme Court grant of certiorari thereafter (which would likely also address the very issue of whether the VRA applies to felon disenfranchisement at all, a question still very much unsettled).

The Washington case, originally filed in the mid-90s and now known as Farrakhan v. Gregoire, was brought by a convicted felon sentenced to a five-year term who objected to being denied the opportunity to vote in elections during his incarceration. The plaintiffs’ argument is based on the idea that the criminal justice system in Washington is itself racially biased in that “minorities are disproportionately prosecuted and sentenced,” and as such a deprivation of voting rights based on that allegedly biased system would violate the VRA. In 2003, during an earlier round of appeals, another three-judge panel held unanimously that the racial biases of a criminal justice system could be considered in a “totality of the circumstances” analysis of voting conditions. (Farrakhan v. Washington, 338 F.3d 1009, 1016, 9th Cir. 2003). On remand, the district judge did not consider the evidence to be sufficient to demonstrate a denial of the right to vote based on race, and Farrakhan appealed again. [Read more…] about 9th Circuit Panel Strikes Down Washington Disenfranchisement Law

The Legislature Strikes Back: Citizen Initiatives in Washington State

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Initiative proponent/Dark Lord of the Sith Tim Eyman appears in front of the Washington Secretary of State’s Office

This past January, for the second time in two years, a bill has been filed with the Washington State legislature to amend the State Constitution, removing the provisions allowing for citizen initiatives and referendums.  If passed by the state legislature, the measure would be sent to the voters for their approval at the next general election.  Citizen initiatives are the process by which citizens and nongovernmental organizations can directly propose legislation. If the proposed legislature receives a certain number of signatures (a number equal to 8% of the voters in the previous gubernatorial election), the proposal is then voted on by the people of the state, completely bypassing the legislature. Referenda require fewer signatures, but the proposed legislation must still be voted on by the legislature.

The bill, proposed by state Senator Ken Jacobsen, would remove the entirety of Article II, Section 1 of the Washington Constitution, as well as other sections that acknowledge the initiative and referendum process.   The initiative process is constantly being challenged by lawmakers, and this bill is just the latest debate in a long battle in a number of states, mostly in the West, where the use of initiatives is common.  Proponents of citizen initiatives argue that they are vitally important to ensuring the people have a say in their own government, while opponents argue that they interfere with the functioning of the legislature and government.

The initiative process has often been seen as the purest form of direct democracy, giving the most voice to individual citizens. Tim Eyman, intuitive guru and anti-tax crusader, had harsh words for Jacobsen and his initiative, as well the sponsors of other bills that would regulate the signature-gathering and initiative-filing process. Eyman calls the bill a “legislative jihad”, and claims that Ken Jacobson “is the most honest elected official on this issue. He’s openly pushing to take our rights away from us. The sponsors of the other anti-initiative bills…hide their opposition and seek to impose unneeded, costly requirements on citizens so as to effectively repeal the initiative process with a stealth “regulate to death” strategy.” [Read more…] about The Legislature Strikes Back: Citizen Initiatives in Washington State

Weekly Wrap Up

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Every week, State of Elections brings you the latest news in state election law.

– New Orleans has experienced a record number of early voters for its municipal election.  About 16,600 ballots have been cast already, compared to 12,850 early votes in the 2008 presidential election.  Experts speculate that the rise in early voting is because the election is scheduled for this Saturday, just one day before the Saints play in the Superbowl.

– A measure that would allow overseas voters to send their ballots by email has passed the Washington House, and is headed to that state’s Senate.

– A judge in New Jersey has ordered a panel of experts to evaluate the security of New Jersey’s 11,000 voting machines.  Some have criticized the ruling for not requiring that the machines be retrofitted to produce a paper trail.

– A corporation has announced its candidacy for Congress!  Murray Hill Inc. plans on filing to run in the Republican primary in Maryland’s 8th Congressional District.  Feeling liberated by the Supreme Court’s decision in Citizens United, the corporation has decided to take the logical next step in their struggle for equal rights.  According to Murray Hill “It’s our democracy.  We bought it, we paid for it, and we’re going to keep it.”

– The California governor’s race has taken a bizarre turn.  Steve Poizner, a Republican candidate, has accused his rival Republican Meg Whitman of trying to bully him out of the race.   Poizner claims that an e-mail sent to him from Whitman’s office violates four federal and state election laws.  A copy of Poizner’s complaint, including a copy of the email, can be found here.

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