Archive for the ‘Election Law’ Category
One Person, One Vote in Mississippi: Maybe Next Year . . .
posted by Michael Pitts
The decennial redistricting cycle always creates some interesting litigation. While it is still quite early in the cycle, one of the more interesting opinions issued thus far is Mississippi NAACP v. Barbour. Barbour involves the equal protection principle of one person, one vote that requires state legislative districts to have roughly equal population numbers.
Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this reason, the Barbour plaintiffs rather sensibly went to the district court and asked for relief that would require the elections this year to be held from districts that complied with one person, one vote.
If you had presented me with this situation in a law school hypothetical, I would have said the answer would seem to be fairly clear: on these facts, Mississippi needs to have a redistricting plan that complies with one person, one vote before it holds elections this year. It should come as no surprise, then, that three federal judges think the exact opposite and have decided to allow Mississippi’s legislative elections to go forward based on a plan that everyone agrees violates one person, one vote. Read the rest of this post »
June 6, 2011 at 9:48 am
Tags: Constitutional Law
Posted in: Election Law
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The Obama DOJ and the Voting Rights Act
posted by Michael Pitts
Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.
As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.
One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.
In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.
June 1, 2011 at 9:54 am
Tags: Civil Rights, Constitutional Law
Posted in: Civil Rights, Election Law, Politics
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Hellman on Confusing Restrictions with Incentives in McComish v. Bennett
posted by Danielle Citron
My colleague Deborah Hellman has kindly offered to share her thoughts on McComish v. Bennett. Our CoOp readers will remember our all-star symposium on Hellman’s important work Money Talks But It Isn’t Speech. Here is her post:
Imagine you are an advisor to Presidential candidate Sarah Palin in the next election. As you think about what she should say and when, you will no doubt consider the Tina Fey factor. How will Fey respond? Will a Fey sketch of Palin be too damaging? Fey’s impersonation of Palin could even cause Palin to self-censor or even speak less. Can we therefore conclude that Fey restricts Palin’s speech? Of course Fey herself has a right to speak, so Palin has no grounds to complain but still the claim that Fey is restricting Palin’s speech is patently ridiculous. But that is essentially the argument made by the Petitioners in McComish v. Bennett, the Arizona matching funds case argued yesterday in the Supreme Court. The Petitioners argued that the Arizona law at issue unconstitutionally restricts the speech of candidates who do not avail themselves of public financing because, for example, “Arizona Taxpayers (one of the PACs challenging the law) chose not to speak in opposition to a publicly financed candidate to avoid triggering matching funds to that candidate.” Surely it isn’t enough that the law creates incentives for the petitioners not to spend money and speak, otherwise there would be a good argument for the claim that Fey’s comedy restricts Palin’s speech, and there is not!
Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy. If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit. Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?
Of course, commercial speech is not political speech, but that’s beside the point. The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.
The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced. Chilling speech through sanctions is problematic; chilling speech by more speech is not. Read the rest of this post »
March 29, 2011 at 9:00 am
Posted in: Election Law, First Amendment, Symposium (Money Talks)
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Some Thoughts on DC Corruption
posted by Marvin Ammori
I’d like to thank the good folks at Concurring Opinions for inviting me to guest blog. The CoOp team has always been tremendously generous to me over the years–advising me on the teaching market (Dan, Frank), reading and commenting on draft law review articles (Dan), and reposting some of my thoughts (Danielle). And they’ve been kind enough to let me guest-blog for two months, as I was working through a law review article (grandly titled First Amendment Architecture–someone please publish it).
I tend to write about free speech and technology–like policies to ensure net neutrality, Internet access for all, or online innovation without permission. I am interested in media and the Internet because they are among our dominant means of speech, and speech is a basic input into all the decisions of our democracy. To the extent we design our speech systems more or less democratically, that affects all our policy decisions. I spent a few years in DC, working on media reform and network neutrality, among other issues.
I will write about technology soon. Today: corruption.
March 16, 2011 at 10:38 pm
Posted in: Corruption, Election Law, Uncategorized
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The Partisan Price of Judicial Elections
posted by Michael Kang
A major study of judicial elections released today reports that campaign spending in judicial elections doubled over the past decade and that “judicial elections are increasingly focusing not on competence and fairness but on promising results in the courtroom after election day.” The report was authored by the Justice at Stake Campaign, the Brennan Center for Justice, and the National Institute on Money in State Politics, with a foreword by Sandra Day O’Connor. It has already received extensive press coverage as the fall cycle begins to heat up.
My forthcoming article in N.Y.U. Law Review with my co-author Joanna Shepherd offers some important insights regarding the influence of campaign money on judicial decisions. Using a dataset of virtually every state supreme court decision in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with a statistically significant increase in the probability that the judges will vote for business litigants. Although Joanna and I study the period preceding this decade, from 1996 through 1998, our finding helps substantiate the concerns articulated by the Brennan Center report released today.
What is more, we find that this association between dollars and decisions disappears when we look at only retiring judges in their final term. Those judges, unburdened by campaign considerations for the future, seem not to decide in favor of their business contributors’ interests to the same degree. Although we offer only very tentative conclusions in this direction, this latter finding suggests that the association between dollars and decisions is the result of more than a mere selection effect in the election of judges, but instead hints at a potential biasing of incumbent judges by the expected need for campaign money in the future.
However, Joanna and I also find that holding nonpartisan elections, instead of partisan ones, seems to make a significant difference when it comes to the relationship between campaign contributions and later decisions. At least over our period of study, we find a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Numerous commentators have suggested that nonpartisan judicial elections are partisan in all but name, but our findings point to an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections that appears not the same under nonpartisan ones. Of course, there are many reasons to choose between nonpartisan and partisan elections on other grounds, but when it comes to an uncomfortably tight relationship between campaign money and judicial decisions, our article concludes that nonpartisan elections likely present fewer concerns.
August 16, 2010 at 3:23 pm
Posted in: Constitutional Law, Current Events, Economic Analysis of Law, Election Law, Empirical Analysis of Law, First Amendment, Law and Inequality, Politics
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Hellman on the fate of Arizona’s matching fund law
posted by Danielle Citron
Below Deborah Hellman (whose work we recently featured in an online symposium) offers her thoughts on the Supreme Court’s reinstatement of the injunction against Arizona’s matching fund law:
On Tuesday, the Supreme Court reinstated the injunction against the application of Arizona’s matching fund law. The law at issue in McComish v. Bennett provides matching funds for candidates accepting public funding whose opponents spend or benefit from independent expenditures which together exceed the initial grant of public funds. The District Court initially issued an injunction. The 9th Circuit vacated the injunction and the Supreme Court has now reinstated it. As the concurring opinion of Judge Kleinfeld of the 9th Circuit points out, the law at issue contains no spending or contribution limits. Why then is the First Amendment even implicated?
Speaking in response to a persuasive argument by an opponent is not a restriction on speech. The “remedy to be applied is more speech.” (Whitney v. California, Brandeis, J. concurring) While the Court has held that restrictions on contributions or spending are restrictions on speech and in that way equated money with speech, these decisions do not lead to the conclusion that public funding of candidates raises First Amendment problems. Rather, the Court has repeatedly approved of public funding as in line with the First Amendment. Even if money facilitates speech, clearly spending can be met with more spending without raising any First Amendment problems. Especially, as Judge Kleinfeld points out, “when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent.”
The plaintiffs argue that the fact that their opponents will qualify for matching funds if the plaintiffs spend more than a specified amount leads them sometimes to censor themselves. The 9th Circuit majority rejects this claim because it finds insufficient evidence to support it. But even this concedes too much. The fact that government action may cause me to censor myself doesn’t by itself establish that the government action restricts speech. It matters how the government action leads to self-censorship. When Congress enacted civil rights laws, it changed norms of behavior such that racist statements were no longer socially acceptable. In doing so, Congress may have caused some politicians to self-censor their racist remarks. Yet clearly the enactment of civil rights laws does not abridge the freedom of speech of those who self-censor in response. In order to raise a potential First Amendment issue, the state must act by restricting or punishing some speech or conduct. When the government speaks, as when it passes civil rights laws, any chilling of speech this causes raises no First Amendment problem. Similarly, if the government offers money to candidates whose opponents spend a lot of money, the fact that this may chill some spending and thereby some speech is, quite simply, irrelevant. Read the rest of this post »
June 10, 2010 at 5:49 pm
Posted in: Election Law, First Amendment, Symposium (Money Talks)
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Vice-Presidential Ticket Splitting
posted by Gerard Magliocca
The new British Government is the country’s first coalition since World War Two. This got me to thinking about whether something like that could happen here. Divided government (one party controls the White House, the other controls Congress) functions like a coalition, but what about divided government within the Executive Branch?
Try this one on for size. Suppose Indiana gave its citizens an independent vote for VP. In other words, instead of:
Obama/Biden, McCain/ Palin
You would have this:
Obama, McCain, Biden, Palin
As far as I can see, nothing in the Twelfth Amendment or federal law requires that the president and vice-president run on a single ballot. (Indeed, the Twelfth Amendment requires the electors to take separate votes for President and VP). Thus, any state could experiment with ticket-splitting. This would, of course, increase the likelihood that one party would win the presidency and the other the vice-presidency.
Now would this create a coalition? Well, sort of. A President in that split situation could sideline the VP, but that would be difficult for two reasons. First, the VP would have an independent electoral mandate. Second, federal law gives the VP certain responsibilities (a seat on the National Security Council, for example) that cannot be removed by the President unilaterally. States, of course, sometimes have separate votes for Governor & Lt. Gov. (though in most states the Lt. Gov. has no official function other than succeeding a Governor), and that may be a useful source of information. But it’s worth thinking about.
June 1, 2010 at 7:19 pm
Posted in: Election Law, Uncategorized
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Baby Steps for Transparency in Voting Systems
posted by Danielle Citron
This country’s electronic voting systems remain black boxes with no means for the public to check their accuracy and security. To make matters worse, reports persist about election officials’ failure to protect those black boxes from mischief. Until recently, a warehouse storing thousands of Pennsylvania’s electronic voting machines kept its door propped open, leaving the machines vulnerable to manipulation.
The news is not all doom and gloom. To combat public concern about the reliability of its software, e-voting provider Sequoia has begun posting its code online, allowing the public to assess code that the company will put through the federal voting system certification process. The move is one that I called for in Open Code Governance: disclosing code of proprietary election systems to permit public inspection and feedback while keeping the vendor in charge of changes to the software. Sequoia, unfortunately, only controls a small portion of the e-voting market. About 80 percent of voters cast their votes on black box machines manufactured by ES&S (which recently acquired Premier formerly known as Diebold).
To be sure, open code wouldn’t solve all of our voting problems. As the recent conviction of Kentucky voting officials attest, voting manipulation can be low tech: there, voting officials trained workers to mislead voters into believing that they finished voting after punching an initial review screen when in fact voters need to verify the vote on a subsequent screen. This allowed workers to change individuals’ votes. Nonetheless, open code approach would facilitate greater transparency while likely enhancing the accuracy and security of systems given the feedback of interested experts.
Greg Miller of the Open Source Digital Voting Foundation recently shared his concerns about the potential for glass box voting technologies. He remarked: “When you’re a company who has a shareholder interest to maintain, and your competitive advantage is predicated on trade secrets and other intellectual property mechanisms, then you’re going to resort to black box technology to protect your competitive advantage . . . Well, black box technology doesn’t work in a world that demands ‘glass box’ technology, and when shareholder interests collide with public interest, that’s a train wreck.” If new legislation or administrative policy required open code, might that demand that vendors compete on other important grounds, such as the reliability of their hardware or the machines’ enhanced value to the visually impaired. Something worth discussing.
May 12, 2010 at 9:50 am
Posted in: Architecture, Culture, Current Events, Cyberlaw, Election Law, Technology
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Money Talks Symposium: Parsing the Questions
posted by Erwin Chemerinsky
It has been a pleasure to participate in this brief exchange about Professor Hellman’s excellent article. As I have read the posts, including in response to my earlier message, I think that there is a tendency to combine several distinct, though interrelated, questions.
One question is whether restrictions on spending money in election campaigns should be subjected to strict scrutiny. This was the holding of Buckley v. Valeo and 1976 and the assumed premise for the Court’s decision in Citizens United v. Federal Election Commission. It is this premise that Professor Hellman powerfully challenges. If spending money in election campaigns is regarded as conduct that communicates, then restrictions need meet only intermediate scrutiny, rather than strict scrutiny. Also, I don’t think that there’s been enough attention to arguing that restrictions on spending are content-neutral regulations that would need to meet only intermediate scrutiny. Professor Hellman makes an important contribution by suggesting that the relationship between spending money and constitutional rights is much broader than campaign spending or even than the First Amendment.
A second question is whether corporations should have the same rights as individuals. This, too, is a premise of Citizens United. Ironically, in 2006, in Garcetti v. Ceballos, Justice Kennedy, writing for the same majority as in Citizens United, said that the First Amendment protects only speech “as citizens.” More importantly, Citizens United’s protection of corporate speech rests on the earlier decision in First National Bank of Boston v. Bellotti. It protected corporate speech for the instrumental reason of better informing the public. But then that should open the door to allowing restrictions on corporate speech if it could be shown that such expression drowns out other voices in the electoral process.
A third question is whether restrictions on campaign spending meet strict scrutiny. My sense is that this is most likely to be shown in judicial elections or in elections in smaller communities. In each instance, the government is more likely to have a compelling interest, though one which may not persuade a majority of this Court.
All of these questions are important and all have been touched on in this exchange. But I also think that it is important for the sake of clarity to keep them separate.
May 6, 2010 at 6:11 am
Posted in: Constitutional Law, Election Law, First Amendment, Symposium (Money Talks)
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My Bad!: The Supreme Court’s Assault on Judicial Elections
posted by Sherrilyn Ifill
As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states. Judicial elections — especially for state Supreme Courts — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states. The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution. The Supreme Court has played a huge role in intensifying this problem – beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001. In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court. Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th. Yes, judicial candidates have free speech rights. But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal. Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial. O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.
But the decision by states to elect their judges was a deliberate, conscious choice. In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes. They sought a judiciary that would be accountable to the public. That same populist streak has kept judicial elections alive (in at least some form) in 38 states.
March 17, 2010 at 10:31 pm
Posted in: Election Law, Politics, Supreme Court
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