State of Elections

William & Mary Law School | Election Law Society

Supreme Court strikes down corporate spending ban

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by Patrick Genova

Late last month the Supreme Court struck down Montana’s ban on corporate spending in elections. Montana was the first of many states to push back against the implications of Citizens United. In February the Montana Supreme Court upheld the ban saying that Montana had a rich history against corporate spending that rises to the level of a “compelling interest”, forcing the Supreme Court to take another look at its holding in Citizens United on appeal.

On the same day the Court ruled on the Affordable Care Act they also struck down Montana’s century old law banning corporate spending. The Court reiterated that corporate campaign donations are no different than contributions by any other citizen. Obama spokesman Eric Schultz said of the opinion, “Citizens United mistakenly overruled longstanding cases that protected the fairness and integrity of elections.” But Despite the mounting criticism the Court stands the same as in 2010 with the same five justices voting against the ban. James Bopp Jr., the attorney pushing for unlimited corporate spending, called the decision, “excellent”.

In deciding against Montana’s ban the Supreme Court has effectively shut down challenges that have sprung up since the Citizens United decision. But what will it mean for the future of Montana’s elections? For now it seems that corporate politics will begin to play a large role, whether its for good or bad. This does not mean that the fight against corporate spending is over. Governor Scweitzer said in response to the decision, “We’re going to overrule the Supreme Court with a constitutional amendment, to make it clear that we the people are in charge of America, not we the corporations. Here in Montana, we’re putting it on the ballot.” While the Court seems to be unwavering in their decision, the war against corporate spending is far from over.

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The constitutionality of the national popular vote: refuting challenges based on Article II, Section One

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by Rob Richie and Elise Helgesen of FairVote

The National Popular Vote (NPV) plan guarantees election of the presidential candidate who earns the greatest number of votes in all 50 states and the District of Columbia. NPV does not dispense with the Electoral College, and is not a constitutional amendment. Rather, the plan is based on two clear powers given to the states under the Constitution: the power under Article 2 Section 1 to choose how to allocate its presidential electors, and the power under Article 1 Section 10 to enter into interstate compacts.

States in early U.S. history often exercised the power to change rules for allocating electoral votes. While today, 48 states and the District of Columbia award their electoral votes to the winner of that state’s popular vote, the founders did not originally contemplate this type of system, as James Madison explained in 1823.

NPV is an interstate compact, a binding contract entered into by state law. Once the states that enact these NPV laws exceed the threshold of a majority of electoral votes (270 out of 538), the plan will take effect. Even where states choose not to participate in the NPV compact, the votes from those states will be incorporated on an equal basis into the total national popular vote, which in turn determine which candidate earns the electoral votes in NPV states.

Currently eight states and the District of Columbia have enacted laws to join the NPV interstate compact. The states are California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, and Vermont. The NPV plan is now at its halfway point, meaning that states that have entered into the interstate compact make up 132 electoral votes, or 49% of the 270 electoral votes needed.

Even with this milestone in sight and polls consistently showing strong support in states across the U.S., the NPV plan faces individual opposition as well as specific legal challenges to its effectiveness. The concerns are answered effectively by the authors of Every Vote Equal, and supportive groups like National Popular Vote, Support Popular Vote, and FairVote.

This analysis addresses one particular challenge raised recently by NPV opponents such as Sean Parnell: that NPV is unconstitutional as based on Article II Section 1 of the Constitution. The second clause of this section states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .” [Read more…] about The constitutionality of the national popular vote: refuting challenges based on Article II, Section One

New Mexico Supreme Court candidate disqualified

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New Mexico Supreme Court Says Judicial Candidate was Properly Disqualified from Election and Fined for Violations of Public Campaign Financing Law

On April 12, 2012, the New Mexico Supreme Court found that candidate for a seat on the New Mexico Court of Appeals was properly disqualified from the election and fined. The case, Montoya v. Herrera concerned Dennis Montoya’s 2010 bid for a seat on the state appeals court. Judge Linda Vanzi was running to confirm the seat to which the governor had appointed her three years earlier and continue her job with the approval of voters. Montoya ran against her, and applied for public funding under the New Mexico Voter Action Act.

Then-secretary of state, Mary Herrera, “informed Appellant by letter that he was not qualified to receive public funding because he had violated the Act’s contribution limits and reporting requirements.” After a hearing, the action was upheld because Montoya was found to have exceeded the seed money limits of the New Mexico Voter Action Act and failed to comply with the secretary’s reporting requirements. Herrera imposed a $2,000 fine on Montoya for his violations.

Montoya appealed the disqualification and fine, which went straight to the highest court because he was running for a seat on the intermediate appellate court. The state supreme court considered whether he had violated the seed money regulations of the act, which impose a $5,000 limit on a candidate’s contributions to his own campaign. Montoya contributed over $8,000 to his own campaign, but argued they were for general expenses rather than seed money. The state high court rejected that argument, saying there is no such distinction in the wording of the law.

 

The New Mexico Supreme Court explained that, “when [Montoya] contributed more than $8,000 of his own money to the campaign, while simultaneously applying for public funds, he violated the Act.  Under the law, the Secretary had no choice but to disqualify him from public financing, and she did so.” It also dismissed Montoya’s First-Amendment claim because he choose to apply for public financing, when self-financing campaigns is allowed. This is a somewhat surprising outcome, as First Amendment claims have done well elsewhere.

The court upheld the fine as well, because the secretary of state was required by law to impose a civil penalty on anyone who violates the Act, regardless of his or her intent or knowledge of the violation.

New Mexico Supreme Court opinion

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Election plans fail

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by Timothy Huffstutter

At least one plan for selecting judges in Tennessee is now totally off the table. For my previous posts on the debate in the Tennessee General Assembly see here and here. Last week, the House Judiciary Committee voted 7-7 on Representative Glen Casada’s (R-Franklin) plan to elect judges and justices in contested elections. As a result of the tie vote, one vote shy of the majority needed to advance the bill, legislators now have only two proposals in front of them.

Casada was clearly displeased with the rejection of his proposal: “I’m disappointed to say the least.”  He went on to contend that “[t]he constitution governs how we do business and do public policy in the state. To be out of compliance is wrong. If you can’t comply with the most basic, how can you trust us to comply with other parts of the law as well?” Executive Director of the Tennessee Bar Association Allan Ramsaur was not convinced: “Let’s get away from this myth that what we have is not an elected system. We do elect judges, we just don’t have contests which lead to partisanship and big money influence.”

Now, Tennessee legislators are considering the two remaining plans in the rush before the legislative session ends at the end of April. Lieutenant Governor Ron Ramsey (R-Blountville) hopes that legislators will approve both plans and then come back in the next session to make a final decision. The first proposal amends the state constitution to explicitly provide for the current system—the so-called Tennessee Plan. The second proposal would mirror the federal judicial selection system (nomination by the executive with confirmation from the upper house of the legislature).

Legislators have to make a decision before the end of this legislative session. Should the Tennessee Senate approve both plans, then the new General Assembly, which will convene in January 2013, could pick up the stalemate. If the General Assembly fails to make any decision, then the debate will rage on into the next session.

For further coverage see the Knoxville News Sentinel and the Missouri News Horizon.

Timothy Huffstutter is a third-year student at William and Mary Law.

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