State of Elections

William & Mary Law School | Election Law Society

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

Update: Nordstrom out, ELEC in, Lyon still unelected (for now)

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by Kevin Elliker

Charles Dudley Warner wrote, “Politics make strange bedfellows.” When a candidate who violated campaign finance laws is joined in a lawsuit by the agency in charge of enforcing against such violations, politics must be involved.

In November, I wrote about the debacle in the Republican primary election for freeholder in Morris County, New Jersey.  At that time, a Superior Court judge overturned 23-year-old Hank Lyon’s 6-vote victory over incumbent Margaret Nordstrom in the June primary election. Judge Weisenbeck found that Lyon violated New Jersey campaign finance laws when he failed to submit certain donations and expenditures to the New Jersey Election Law Enforcement Commission (ELEC), and voided the primary election in favor of a party convention to choose the nominee. The convention selected Nordstrom, who went on to victory in the November general election before Lyon’s appeal could be heard.

Just prior to the election, the Appellate Division granted ELEC permission to intervene as a respondent to the lawsuit. (Non-lawyers: this means the court allowed ELEC to join the pre-existing lawsuit as a party that can claim an interest in the case which will not undermine the original suit). ELEC argued that Judge Weisenbeck overstepped his jurisdiction and that the agency should resolve election disputes such as this. [Read more…] about Update: Nordstrom out, ELEC in, Lyon still unelected (for now)

Who is stuffing the politicians’ pockets: Alabama and PAC-to-PAC contributions

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by John Alford 

Alabama Legislatures are trying to clean up the state’s political landscape. The problem at hand is that money is being shifted around without a clear understanding of where the funds originated. Political action committees (“PACs“) are, essentially, groups that take in funds and redistribute contributions to candidates or to advocate particular issues. Prior to 2011, a PAC in Alabama could receive money from a donor and then transfer the funds to another PAC. The second PAC can then put funds into half a dozen other PACs, which use the money to help advocate issues. The identity of the individuals who originally donated the funds is lost in the mix. This means that people trying to influence, or even corrupt, politicians, can play this “shell game” and hide the money trail. Keep in mind, there are 859 PACs in Alabama.

An attempt to hide the money trail is exactly what happened when gambling interest groups began trying to increase their odds of success. The U.S. Justice Department wiretapped a session where this statement came to light:  “We’re gonna support who supports democracy. And the (expletive deleted) who doesn’t support democracy [should] get ready to get their (expletive deleted) (expletive deleted) busted.” Certainly this crass statement could be taken admirably, but chances are the gambling tycoon was not strictly supporting democracy given that statement is taken in the context of extortion, bribery, fraud, and conspiracy charges. Shifting money from PAC-to-PAC to hide the connection to gambling money, however, was perfectly legal. This confusion of contributions was an integral means of getting support for the gambling agenda since politicians did not need to fear disclosure. [Read more…] about Who is stuffing the politicians’ pockets: Alabama and PAC-to-PAC contributions