Archive | Election Law

When Will We Know How Ohio Votes?

The Cleveland Plain Dealer reports that the outcome of the Presidential election in Ohio may not be known until mid-November. This is because state election officials will not count provisional ballots until at least ten days after the election. Given the large number of provisional ballots in Ohio — a number that could increase due the large number of absentee ballots expected to be cast this year — such ballots may make the difference, and legal wrangling on which ballots to count could drag things out even more. This is why the Cincinnati Enquirer called this a potential “nightmare voting scenario.” [...]

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The Popular Vote and Presidential Legitimacy

Recent polling results present the possibility that Mitt Romney could win the popular vote but lose the electoral vote. Would this matter? It shouldn’t. We’ve seen this before, and it is not at all unusual for a President to be elected with less than 50 percent of the popular vote, as some voters support third-party candidates. Should President Obama be re-elected, there’s no question some GOP partisans will complain and right-leaning pundits will dredge up old quotes from Democratic politicians calling for replacing the Electoral College with a national popular vote system. But Barack Obama would still be the president, and he would be no less “legitimate” than if he had won the popular vote as well.

Does the Electoral College system allow for the election of a president who does not enjoy majority (or even plurality) support? Yes, but it would be a mistake to assume that a candidate’s failure to get a majority of the popular vote on election day means that the candidate does not enjoy majority support. One consequence of the Electoral College system is a distortion of popular vote totals, particularly in electoral strongholds. So the “winner” of more popular votes cast under the Electoral College system would not necessarily have won under a national popular vote system.

The electoral college encourages attention on winning contested states, not maximizing turnout nationwide. Each candidate focuses turnout efforts in states with closely divided populations, devoting fewer resources to “safe” states. This means the Romney campaign has no incentive to trawl for every vote in Texas, and the Obama campaign can take it easy in states like New York. (Under a national popular vote system, however, the incentives would be quite different, as every vote would count.) Because some of these “safe” states have large populations and are [...]

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Could Obama Benefit from Bush v. Gore?

Rick Hasen writes in Slate how Bush v. Gore‘s equal protection holding could benefit President Obama’s reelection effort, especially in Ohio.

For years, voting rights advocates have tried to make lemonade from lemons, arguing that the Equal Protection holding of Bush v. Gore should apply more broadly to require equality and uniformity in conducting elections. Until recently, these attempts have mostly met with failure, with courts reading the case’s holding narrowly. Some argued that at most the opinion would apply to require uniform rules for conducting election recounts. So poorly had Bush v. Gore fared in the lower courts—the Supreme Court has never cited it for any purpose since it was decided—that I declared Bush v. Gore’s untimely death in 2007.

But in the last few years the opinion has been resurrected by the United States Court of Appeals for the 6th Circuit, the federal appellate court that includes Ohio.  In one recent case, a federal judge required Ohio to restore the last weekend of early voting, relying in part on Bush v. Gore’s equal protection principles. The judge suggested that once Ohio had added the early voting days, it couldn’t take them away, or at least couldn’t take them away from everyone except military voters.

The 6th Circuit appeals court agreed. One of the appellate judges went so far as to say that the reason Ohio could not take the early voting days away is because the state had a bad history of long lines at the polls in 2004, and the early voting in 2008 seemed to clear up this problem. That was an incredibly broad extension of equal protection principles, well beyond even generous readings of the Bush v. Gore precedent.

For more on how Bush v. Gore has encouraged federal courts [...]

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And Sometimes the Framers Erred

Let’s set aside the controversy about whether to have an Electoral College; instead, let’s ask: What happens if no candidate gets a majority vote?

Well, under the original Constitution, the plan was very badly busted: Under art. II, § 1, cl. 3, each elector was supposed to cast two votes, without indicating which was for President and which was for Vice-President; the candidate who got the most votes would be President (assuming he got at least enough votes to account for a majority of electors), and the first runner-up would be Vice-President. But say that, today, each Republican elector casts a vote for Romney and a vote for Ryan, and each Democratic elector casts a vote for Obama and a vote for Biden. Whichever party wins, there would be a tie, either a Romney-Ryan tie or an Obama-Biden tie. No-one would get the most votes, so you’d need to do a weird tiebreaker (more on that below) through the House of Representatives.

Indeed, in 1800 this is what happened, with Jefferson (the Presidential candidate of the Democratic-Republicans) and Burr (the Vice-Presidential candidate) ending up tied, and zaniness ensuing. What’s more, the 1796 election had by then already produced a Federalist President (Adams) and a Democratic-Republican Vice-President (Jefferson), which itself wasn’t very good. The result was the Twelfth Amendment, enacted in 1804, just 15 years after the original Constitution, that was meant to fix these problems.

And it did go a long way to fixing the problems, by having each elector vote separately for the President and the Vice-President. But what happens if no-one gets a majority of the electoral vote, either because three candidates split the electoral vote, because enough electors refuse to vote for the candidate that they were expected to vote for, or because the [...]

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Ohio’s Voting Wars

The Washington Post reports on the state of Ohio’s emergency application for a stay of a lower court injunction against recent changes in early voting rules, pending its petition for certiorari in this case.

The issue is whether Ohio may allow only military voters to take advantage of in-person early voting in the three days before the Nov. 6 election. A district judge and a panel of the U.S. Court of Appeals for the 6th Circuit said the state had not shown why it should differentiate among groups of voters.

“While there is a compelling reason to provide more opportunities for military voters to cast their ballots, there is no corresponding satisfactory reason to prevent nonmilitary voters from casting their ballots as well,” the appeals court said. About 105,000 voters had cast their ballots during the three days in question in 2008. . . .

Although the state has permitted early voting on the weekend before the election in the past — long lines on Election Day in 2004 prompted the change — the Republican-controlled legislature ended weekend voting this year, saying local boards of election needed the time to prepare. The state made an exception for military voters, who it said could be deployed at any time and thus miss the chance to vote.

Such decisions, Ohio says, are for each state to make. The 15 states supporting that position — all, like Ohio, have Republican attorneys general — told the court that the Constitution’s “genius” is to allow states “to consider and implement creative, novel efforts to widen the ability of citizens to vote.”

Rick Hasen provides some analysis here, here, and here. He thinks Ohio had a decent shot had he sought en banc review, but the state has gone straight to the [...]

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Court Preclears South Carolina Voter ID Requirement

A three-judge panel precleared South Carolina’s new voter identification requirement under Section 5 of the Voting Rights Act.  Judge Kavanaugh wrote the opinion for the court, and summarized the case as follows:

This case concerns South Carolina’s new voter ID law, Act R54. The question presented is whether that new state law is lawful under the federal Voting Rights Act. As relevant here, Section 5 of the Voting Rights Act bars state laws that have either the purpose or the effect “of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The effects prong of Section 5 of the Voting Rights Act measures a State’s proposed new voting law against the benchmark of the State’s pre-existing law.

For several decades, South Carolina has had a voter ID law. Under the version of the law in effect since 1988, a voter must show a South Carolina driver’s license, DMV photo ID card, or non-photo voter registration card in order to vote. Under that pre-existing South Carolina law, a voter with a non-photo voter registration card need not show a photo ID in order to vote. As we will explain, South Carolina’s new law, Act R54, likewise does not require a photo ID to vote. Rather, under the expansive “reasonable impediment” provision in Act R54 – as authoritatively interpreted by the responsible South Carolina officials, an interpretation on which we base our decision today – voters with the non-photo voter registration card that sufficed to vote under preexisting law may still vote without a photo ID. Those voters simply must sign an affidavit at the polling place and list the reason that they have not obtained a photo ID.

In addition, Act R54 expands the kinds of photo IDs that may be used

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Anonymity Granted to Catholic Donor Opposed to Marriage Amendment, But Amendment Supporters Object

In Minnesota, pro- and anti-gay marriage activists are fighting over political campaign disclosure laws, though this time the usual roles are reversed. On August 17, the Minnesota Campaign Finance and Public Disclosure Board ruled that the group working to defeat a constitutional amendment banning gay marriage does not have to disclose the name of a Catholic contributor to the “No” campaign.   “John Doe,” who works for a Catholic organization in Minnesota, gave $600 to Minnesotans United for All Families, the main group opposing the amendment.  (I serve as Treasurer of the group.)  He told the Board that he feared the Church would fire him if it knew he made the donation.  Under state law, he was entitled to exemption from itemized disclosure of his donation by Minnesotans United if he could demonstrate that he faced “loss of employment or other specified harms.” The Board determined he met that statutory standard. But supporters of the amendment, who have long claimed a need to shield the identity of their own donors, are saying that protection from harassment, intimidation, and retribution arising from amendment contributions should be a one-way street protecting only them.

The background to the Board’s decision provides some context for why John Doe sought anonymity.  In May 2011, the Minnesota legislature placed a constitutional amendment on the November 2012 ballot limiting marriage to opposite-sex couples. The Catholic Church hierarchy in Minnesota, led by Archbishop John Nienstedt of Minneapolis and St. Paul, has made passing the marriage ban a top priority.  So far, the Church has given more than $1 million to the “Yes” campaign, the largest donation on either side. But the Minnesota Church’s activism on the issue predates the campaign. In 2007, Nienstedt argued that those who “promote or encourage” homosexual acts cooperate in a “grave evil” and are “guilty of mortal sin.”  In 2010, on the eve of statewide elections, Nienstedt advocated a constitutional gay marriage [...]

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District Court Orders Restoration of Weekend Early Voting in Ohio

Have there been enough big election law decisions this week? Apparently not, as earlier today a federal district court in Ohio has held that a change in the Ohio Revised Code that ends in-person early voting the Friday before election day (for all voters other than overseas military personnel) is unconstitutional and issued an injunction ordering that such voting be allowed through the weekend. Here are the decision, local Ohio coverage, and (as usual) early analysis from Election Law Blog’s Rick Hasen. According to this report, Ohio Attorney General says he plans to appeal the decision to the U.S. Court of Appeals for the Sixth Circuit. [...]

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Can the Missouri GOP Pull a Torricelli?

Missouri GOP Senate candidate Todd Akin may have won the party primary, but his idiotic and offensive comments about rape and pregnancy have caused party leaders to question his candidacy. Republican National Committee Chairman Reince Priebus and Senate Minority Leader Mitch McConnell have both suggested that Akin step aside. But can he do that?

According to this Roll Call report, under Missouri law a party’s nominee may withdraw from the race before “5 p.m. on the 11th Tuesday before the election,” at which point the party would have 28 days to pick his replacement. The twist is that the 11th Tuesday before the election is tomorrow. Should Akin seek to withdraw at some point after tomorrow (but before September 25), however, he would need a court order and would have to pay for the cost of reprinting ballots. [...]

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ACS Panel on Citizens United

This morning I attended a panel at the American Constitution Society conference titled “Citizens United Two Years Later: Money, Politics and Democracy at Stake.” The panel was moderated by Democracy editor Michael Tomasky and featured University of Montana law professor Anthony Johnstone, Fordham law professor Zephyr Teachout, longtime campaign finance activist Fred Wertheimer, founder Democracy 21, Capital University law professor Bradley Smith, Brennan Center constitutional fellow Monica Youn, and Laurence Gold, Associate General Counsel, AFL-CIO. It was an interesting panel, and I’ve summarized the discussion below the fold. [...]

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No Democrat on November Congressional Ballot, Though Democrats Are the Largest Party in the District

So reports Richard Winger (Ballot Access News) about the effects of California’s open primary law, under which the top two vote-getters in the primary — regardless of party — compete in the general election. (The more common system, of course, is for the top vote-getters of each party to compete in the general.)

California’s 31st U.S. House district ballot in November 2012 will list two Republicans, Gary G. Miller and Bob Dutton. At the June 5, 2012 primary, Miller placed first with 26.9% of the vote, and Dutton placed second, with 25.1% of the vote.

However, the district has more registered Democrats than registered Republicans. The registration in the district is: Democratic 40.8%, Republican 35.3%, independent 19.3%, other parties 3.6%. The district is centered on San Bernardino County and had no incumbent running this year.

Four Democrats, but only two Republicans, ran in the June 5 primary. It is virtually certain that if fewer Democrats had run, Pete Aguilar, a Democratic candidate and Mayor of Redlands, would have placed among the top two. Aguilar placed third, with 22.5% of the vote. Democrats had been expecting to win this seat in November, but now it is impossible, because no Democrat is on the November ballot….

See more in this Inland Valley Daily Bulletin article. For whatever it’s worth, the district’s demographic breakdown seems to be 12% black, 7% Asian, 49% Hispanic, and 30% white, though Hispanics make up only 35% of the citizen voting age population (and of course many California Hispanics vote Republican, though generally most vote Democrat). The district went 56%-41% for President Obama, and 49%-41% for Governor Brown. [...]

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Divided D.C. Circuit Rejects Challenge to Voting Rights Act

This morning, in Shelby County, Alabama v. Holder, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to Section 5 of the Voting Rights Act. The 60+ page opinion for the Court by Judge Tatel (joined by Judge Griffith) begins:

: In Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain “covered jurisdictions” from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge district court in Washington that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm.

Senior Judge Williams dissented. His opinion begins:

Section 5 of the Voting Rights Act imposes rather extraordinary burdens on “covered” jurisdictions—nine states (and every jurisdiction therein), plus a host of jurisdictions scattered through several other states. See Voting Section, U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited May 9, 2012) (listing the covered jurisdictions). Unless and until released from coverage

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