The Voting News Weekly: The Voting News Weekly for August 25-31 2014

afghanistan260The Federal Election Commission has deadlocked along party lines more than 200 times in the past six years that the commission has split votes, but instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups. Marc Ambinder considered the dangers of the electronic transmission of voted ballots and Dan Tokaji weighed the arguments in the Tenth Circuit Court hearing involving Arizona, Kansas and the Election Assistance Commission. Testimony was heard in a Maryland case concerning the security of a proposed online ballot marking tool. A special circuit court in Mississippi dismissed Chris McDaniel’s lawsuit challenging his primary runoff defeat. Wisconsin’s Governor and Attorney General have asked a federal court to reinstate Wisconsin’s voter ID law. Both Afghan Presidential candidates have pulled their observers out of a ballot audit meant to determine the winner

Voting Blogs: The Iowa Case and the Question of Paid Political Endorsements | More Soft Money Hard Law

Mr. Kent Sorenson was indicted and now has pled guilty in a matter involving falsified campaign finance reports. One campaign paid him to switch his support from another, and the compensation was routed through other vendors to the campaign to conceal money paid for his changed candidate preference. His guilty plea covers the federal reporting violation and the obstruction of justice committed when he denied publicly that he had been paid for his switch in allegiance and asserted that anybody who doubted him could simply consult the campaign’s reports where they would not find any such compensation. As a straightforward reporting offense, Mr. Sorenson’s case is of limited interest. But another question, presented squarely by the comments of the senior FBI official, is whether the criminal laws reach compensated political endorsements that are openly disclosed. Is it true, as this official suggests, that it is a crime to “exploit the political process for personal gain” in this way? Or that it should be?

National: Federal Election Commission Enacts Policies by Not Acting | New York Times

The three Republican and three Democratic appointees of the Federal Election Commission had reached yet another deadlock: They would issue no advisory opinion on whether the Conservative Action Fund could accept contributions of Bitcoin, the online currency created to be untraceable. But a ruling of sorts emerged nonetheless in the hearing, held late last year, when one of the Republican commissioners, Lee E. Goodman, suggested that the group could essentially do as it pleased. The fund “has a clear statutory right to give and receive in-kind contributions regardless of what we say here today,” Mr. Goodman said. The case was just one of the more than 200 times in the past six years that the commission has split votes, reflecting a deep ideological divide over how aggressively to regulate money in politics that mirrors the partisan gridlock in Congress. But instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.

Editorials: Why internet voting is a very dangerous idea | Marc Ambinder/The Week

Unless you’re one of those ornery folks who believe that only politically engaged Americans should vote, there aren’t many good reasons to oppose efforts to expand access to the ballot. Voter fraud is quite rare, and voting fraud — an organized effort to illegally disrupt elections — is hard to organize. So you might think that any restriction on the way someone can vote will unfairly marginalize potentially legitimate voters. That’s true, with one big exception: internet voting. No doubt — nationwide internet voting has an intuitive appeal. It would decrease the costs of elections. It would dramatically increase turn-out. It would allow marginalized communities to avoid harassment at polling sites. It would speed the vote count. A majority of voters regularly endorse the idea. There are two main reasons, though, why internet voting is, at best, a dream best realized 20 years in the future — if ever. The internet is not secure. It does not matter whether results are sent to an air-gapped system, because there’s plenty of technologies that jump air-gaps, and we know that big governments (like ours) use them to spy.

Voting Blogs: What’s the Matter with Kobach? | Dan Tokaji/Election Law Blog

By “Kobach,” I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do. Kobach involves a narrow but important issue, left unresolved after the U.S. Supreme Court’s decision last year in Arizona v. Inter Tribal Council of Arizona. That case involved Arizona’s attempt to impose a proof-of-citizenship requirement for voter registration, an issue that has been percolating for many years. Arizona law requires would-be voters to provide documents proving their citizenship when they register, documents that some eligible citizens don’t have. But the National Voter Registration Act (NVRA) requires states to “accept and use” the national voter registration form, commonly known as the “federal form.” And that form’s instructions don’t require documentary proof of citizenship.  In Arizona, the Supreme Court said that states must register voters who used the federal form, even without these documents. But the Court allowed Arizona to ask the U.S. Election Assistance Commission (EAC) to add the state’s proof-of-citizenship requirement to the federal form. That’s exactly what Arizona, along with Kansas, sought to do. But there’s a problem. The EAC had no sitting commissioners – hasn’t had any for years, in fact, due to gridlock in Congress. With no Commissioners to vote on the states’ requests, they went to federal court to force the commissioner-less EAC to incorporate their proof-of-citizenship requirements on the federal form’s instructions.

National: How Candidates Communicate, Legally, With Super PACs | Bloomberg

When Republican Representative Cory Gardner of Colorado announced in March that he would run for the U.S. Senate, he knew he could count on backing from national Republican groups, including so-called super PACs. But he wasn’t allowed to talk to them directly. Federal election law prohibits campaigns from having contact with the super PACs and advocacy organizations that have come to dominate political spending since the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commission decision. Those rules were intended to put a wall between candidates, whose fundraising is constrained by federal limits, and special interest groups allowed to spend unlimited amounts of money promoting candidates and issues. In practice, campaigns have found ways to talk to super PACs while staying on the right side of the law. Gardner’s race illustrates how the system works. Within weeks of his declaring his Senate run, Americans for Prosperity, backed by billionaire brothers Charles and David Koch, told the Washington Post it would spend $970,000 on three weeks of television, radio, and online ads attacking incumbent Democratic Senator Mark Udall. That news was a signal that Gardner, who was unopposed in the primary, could hang back and focus on raising money—even as Democratic groups began running their own ads attacking him.

National: Study: Citizens United elected more Republicans | The Washington Post

The 2010 Supreme Court decision that helped usher in a new era of political spending gave Republicans a measurable advantage on Election Day, according to a new study. The advantage isn’t large, but it is statistically significant: The researchers found the ruling, in Citizens United v. FEC, was associated with a six percentage-point increase in the likelihood that a Republican candidate would win a state legislative race. And in six of the most affected states — Michigan, Minnesota, Montana, North Carolina, Ohio and Tennessee — the probability that a Republican would be elected to a state legislative seat increased by 10 percentage points or more. In five other states — Colorado, Iowa, Texas, Wisconsin and Wyoming — Republican candidates were seven percentage points more likely to win.

Editorials: What if Alabama elected multiple congressmen per district? A radical reform proposal | Brendan Kirby/

No one would dispute that Alabama is a Republican-leaning state, but an electoral reform group contends the current voting system distorts GOP dominance. Presently, six of seven members of the U.S. House of Representatives are Republican. But the state is not 85 percent Republican. The Maryland-based Center for Voting and Democracy, in an analysis of the upcoming 2014 election issued last month, puts the Republican percentage at 63 percent. In “Monopoly Politics 2014 and the Fair Voting Solution,” the center details how gerrymandered districts and winner-take-all elections have reduced the number of competitive districts across the country to a handful. The group also argues that the system encourages polarization and increases the number of voters with virtually no chance of electing representatives of their choice. “In contrast, fair representation voting systems provide nearly everyone with a real chance to elect a preferred candidate in every election and make it likely that large groups of like-minded voters (those who vote for similar candidates) will win seats in proportion to their share of the vote,” the report states.

Arizona: Flawed Cochise County election returns recounted | Tucson Sentinel

Primary election tallies from Cochise County have been updated, after being temporarily pulled from statewide totals because incorrect results were reported Tuesday night. “We’re still trying to figure out what exactly happened,” an election official said. The results uploaded Tuesday showed “unusually high” turnout in Cochise primaries, alerting county officials that something was wrong, said Jim Vlahovich, a deputy county administrator. The data showed “more than 60 percent of the total number of registered voters had turned in ballots,” he said Wednesday. The preliminary results were pulled down early Wednesday morning, he said. “We’re still trying to figure out what exactly happened,” he said Thursday.

Hawaii: State Supreme Court Dismisses ACLU Election Challenge | Honolulu Civil Beat

The Hawaii Supreme Court sided with the state today and dismissed an election challenge launched by the American Civil Liberties Union on behalf of Big Island voters who were unable to cast ballots on Aug. 9 due to Tropical Storm Iselle. According to the Thursday ruling, the high court said it did not have jurisdiction over the constitutional questions raised by the ACLU. The dismissal also noted that the ACLU’s lawsuit, filed Aug. 21, was admittedly ““not a typical ‘election contest.’”

Editorials: The skulduggery of ousting Illinois candidates | Chicago Tribune

We know, we know: Politics ain’t beanbag. But politics doesn’t have to be rotten and nefarious either. Yet oodles of people who run for office in this state will tell you of strong-arm tactics they endured, sometimes from their own party, to get their names on an Illinois ballot. It’s shameful. Sincere candidates who believe in public service spend months walking door-to-door collecting signatures — one of the purest elements of democratic elections — only to get kicked off the ballot through dishonest means. The latest allegation of skulduggery accuses Republican Party leaders of trying to remove Libertarian Party candidates from the Nov. 4 ballot, ostensibly to protect GOP candidate for governor Bruce Rauner. Rauner would compete more easily in a one-on-one race with Gov. Pat Quinn with no Libertarian candidate siphoning off votes. Rauner says he knew nothing of the alleged intimidation.

Kansas: Confusion over voter ID Law continues | KWCH

She’s voted in every election for nearly 70 years, until this year. “As far as I knew I needed to re-register and I needed a Kansas driver’s license,” said Elizabeth Gray of Winfield. “That’s what I thought.” Gray says confusion over the state’s Voter ID Law and problems with the DMV not accepting her paperwork kept her at home during the August primaries. From those who simply don’t have a birth certificate because they were born before it was common to issue one to others who misunderstand what kind of identification they need to vote, some say there’s still confusion about Kansas’s Voter ID Law.  “I’ve always voted,” said Gray. She’s lived all over the country but says she’s never had this much trouble making her voice heard at the polls. “And it really upset me,” she laughed. “I believe it’s our duty to vote. We can’t, we don’t have any right to complain if we don’t vote.”

Kansas: Family Bible saves voting day for 92-year-old woman | KFVS

Evelyn Howard, 92, has voted in 18 presidential elections. But her vote in the 2014 November elections was in jeopardy because of Kansas’ voter registration law. A family Bible saved the day. The Kansas Election Board has approved the voter registration for Evelyn Howard of Shawnee. This came after Howard and her daughter presented copies of U.S.  Census records and a page from a battered family Bible to prove she was born in the U.S. Howard had to do all of that because she didn’t have a birth certificate. Daughter Marilyn Hopkins said she was born in a midwife’s home in Minnesota in February 1922. Starting in 2013, Kansas requires new voters to provide a birth certificate or other proof of their citizenship when registering. Howard moved to Kansas from Missouri in 2013 and sought to register as a Republican voter earlier this month.

Kentucky: State Republicans question Libertarian U.S. Senate candidate’s ballot signatures | Lexington Herald-Leader

The Republican Party of Kentucky has asked the state’s county clerks to review and verify the signatures that Libertarian U.S. Senate candidate David Patterson filed to get on the ballot. State GOP chairman Steve Robertson told the Herald-Leader on Thursday that Republicans found “clearly fictitious and fabricated names,” citing an example of a signature belonging to a purported voter named “Ben Dover” who listed his address as an obscene phrase. In a letter to county clerks, Robertson asked the clerks to verify the names and addresses of people who signed a petition in favor of Patterson getting on the ballot with Democrat Alison Lundergan Grimes and Republican incumbent Mitch McConnell.

Mississippi: Judge mulls request to toss out election challenge | WAPT

Mississippi judge said he will carefully consider whether to dismiss a lawsuit that seeks to overturn a Republican primary victory by Sen. Thad Cochran. Attorneys for challenger Chris McDaniel want all of the election records from 47-counties shipped to Jones County by Friday. Judge Hollis McGehee heard arguments for more than an hour Thursday at the Jones County Courthouse. He said he could rule on dismissal as soon as Friday. Attorneys for state Sen. Chris McDaniel said current state law does not set a timetable for a candidate such as McDaniel to challenge an election loss. However, attorneys for Cochran said the Mississippi Supreme Court ruled in 1959 that a challenge for a multicounty election should be filed no later than 20 days after election results are certified. Election results were certified July 7 and McDaniel started his challenge nearly a month later with the state Republican Party.

Missouri: Protest turns to voter registration | St. Louis American

If Ferguson residents want a diverse police force that reflects the community, they need to elect someone who makes inclusion a priority, said Michael McMillan, president and CEO of the Urban League of Metropolitan St. Louis. In Ferguson – where an unarmed black teenager was fatally shot by a white police officer on Aug. 9 – the police department has three black officers and 50 white officers. The town’s population is 67 percent African-American, yet Ferguson has a white mayor and five of the six-member city council members are also white. As the Post-Dispatch illustrated with a startling graphic on the front page of the Sunday paper, Ferguson is typical among county municipalities for its lack of representation of blacks in police and government. Several local leaders are encouraging protesters fighting for justice in the Michael Brown case to keep marching, but also register to vote. The Urban League, NAACP, ministers and politicians have all organized volunteers to educate residents on the voting process and register especially African-American voters. In 2013, only about six percent of the eligible black voters cast their ballot in Ferguson’s municipal election, compared to 17 percent of white voters. “The need for voter registration education and mobility has always been a cornerstone of the Civil Rights Movement,” McMillan said.

Kansas: Federal appeals court questions Kansas’ proof-of-citizenship rules | The Wichita Eagle

A federal appeals court on Monday expressed skepticism over Kansas Secretary of State Kris Kobach’s contention that a federal commission must make voters who register using a federal form provide proof-of-citizenship documents required under state law. Kansas and Arizona are trying to force the federal government to add their requirements to federal voter registration forms mandated by the National Voter Registration Act, also known as the motor voter law. Arguing the case before the 10th Circuit Court of Appeals, Kobach said the Election Assistance Commission is required to add the state-specific instructions to the federal form. But Judge Jerome A. Holmes interrupted: “Oh whoa whoa whoa, there’s a big jump there.” Holmes said when the U.S. Supreme Court decided a similar case from Arizona last year, it said states could “request” that the commission add state-specific requirements to the federal form.

South Dakota: Judge rules against Libertarian in ballot lawsuit | Associated Press

A federal judge ruled Thursday against the South Dakota Libertarian Party in an attempt to add its Public Utilities Commission candidate to the November general election ballot. U.S. District Judge Lawrence Piersol heard arguments and concluded Secretary of State Jason Gant followed state law last week in declaring Ryan Gaddy, of Sioux Falls, ineligible to run for the office because he didn’t change his party affiliation from Republican in time to be nominated at the Libertarian convention. “It seems to the court Secretary Gant had no alternative other than to deny the application,” Piersol said. He also deemed constitutional a state law requiring candidates to be members of the party that nominates them.

Virginia: Fairfax officials say some people may have crossed Va.-Md. line to vote twice in 2012 | The Washington Post

Tens of thousands of voters were registered to cast ballots in both Virginia and Maryland during the 2012 presidential election — and more than 150 appear to have voted twice, an advocacy group claims. Seventeen of those alleged instances were in Fairfax County, where election officials found the evidence so compelling that they have turned the information over to law enforcement. The situation sparked a strong reaction among some political leaders in Virginia, coming in the midst of a heated national debate over whether voter fraud is rampant or mere rhetoric.

Washington: Yakima may appeal voting rights ruling | Yakima Herald Republic

The Yakima City Council may yet appeal a federal court ruling that the city’s current election system violates the federal Voting Rights Act, but not for now. The council met in executive session for an hour Thursday morning with attorneys to discuss the city’s options. The city can either appeal the ruling, offer its own plan for a new elections system, or work with the American Civil Liberties Union, which filed the lawsuit, to attempt a compromise plan. After the closed-door meeting, which is allowed under state law to discuss legal action, Yakima Mayor Micah Cawley announced before gaveling the meeting to a close that the city would comply with the judge’s order. Cawley’s phrasing brought a stunned reaction from the small audience in attendance, who took it to mean the city would not appeal. Cawley later clarified that the city is still leaving its options open. “We’re not giving up any of our rights,” Cawley said after the meeting. “We’re going to comply with the judge’s order.”

Wisconsin: State covers touch-screen voting machine costs | The Journal Times

The state will reimburse Racine County municipalities about $42,000 for costs related to touch-screen voting machines. The Racine County Board unanimously approved a resolution authorizing the reimbursement in its meeting Tuesday. The money will extend maintenance agreements on the machines by three years and four months, County Clerk Wendy Christensen said. The county will apply for the reimbursement and then distribute the money to each of the 17 municipalities, Christensen said.

Editorials: Afghanistan’s disputed election: It takes two | The Economist

It seems everyone wants the Afghan presidential election to be over and done with. Except, maybe, for the two contenders. In the latest attempt to derail an audit of the votes, which was set in motion six weeks ago, Abdullah Abdullah (pictured above) declared on August 27th that he was leaving the process—less than a week before the next president is supposed to be inaugurated. Mr Abdullah, who claims his opponent, Ashraf Ghani, rigged more than 1m votes, has accused auditors of keeping fraudulent ballots in the tally. Faulting the United Nations for not taking his concerns seriously, he said the criteria for invalidating votes are not thorough enough to weed out all the fraud. Wednesday morning, August 27th, no observers from his team were to be found at the headquarters of the Independent Election Commission when the day’s audit began. Consequently, Mr Ghani also withdrew his observers.

Canada: Guelph case sees Election Canada pledge to make polling station accessible | The Record

Elections Canada will make sure all polling stations in the next federal election are barrier free after reaching a settlement with a Guelph man who filed a human rights complaint. The complaint was settled through mediation and will ensure all polling stations have either a power assisted door or someone there to help anyone with accessibility issues enter the polling station. “This will be a great step forward for all persons with disabilities in Canada,” said Matt Wozenilek of Guelph. Wozenilek, who is confined to a wheelchair due to a rare neurological disease, took Elections Canada to the Canadian Human Rights Tribunal after he went to cast his ballot in the 2011 federal election and found there was no automatic door opener or anyone to help him get into the polling station. A passerby eventually helped him into the polling station. Wozenilek felt this is a violation of his human rights and an act of discrimination.

Philippines: Comelec: No discrepancy between official tally, decrypted ballots in precinct recount | GMA

There was no discrepancy between the official tally transmitted by the Precinct Count Optical Scan (PCOS) machine and the votes in the decrypted ballots for defeated 2013 senatorial candidate Bro. Eddie Villanueva in one precinct in Nueva Ecija, according to the initial examination of the Commission on Elections. It took the Joint Congressional Oversight Committee on Automated Election at least four hours to decrypt or download the images of the ballots cast in clustered precinct 19 in Barangay Concepcion, Gapan, Nueva Ecija, then check, print, and count the votes for Villanueva. The committee did not touch the ballots from clustered precincts 29 and 30, as their supposed discrepancies were small, unlike in precinct 19.

United Kingdom: Scottish independence: Referendum votes ‘for sale’ on eBay | BBC

Police have launched an investigation after a number of people apparently tried to sell their votes in the independence referendum online. Votes for the 18 September ballot were listed on internet auction site eBay, which has since removed the items. The Electoral Commission said both the selling and buying of votes was illegal. One online listing offered buyers a “unique piece of British history”. The Glasgow-based vendor wrote that he was selling his vote – with a starting price of 99p – because he did not “give a flying monkeys [sic] about any of this”. He went on: “This is my very own unique piece of British History!

Maryland: Testimony ends in federal online ballot tool case | The Washington Post

A judge said Tuesday that he expects to rule “very quickly” on a lawsuit seeking to force Maryland officials to implement an online ballot-marking tool for the blind, a case that could impact other states that don’t use the tool. Lawyers for the National Federation of the Blind are hoping to have the tool in place in time for November’s elections. Their lawsuit, filed in U.S. District Court in Baltimore, contends that the state is in violation of the Americans with Disabilities Act for not using the technology, which they say would safeguard blind voters’ privacy. During three days of testimony that wrapped up Tuesday, Maryland Assistant Attorney General Dan Friedman argued that officials should not be forced to use something that has not been certified by the Maryland State Board of Elections. And another advocacy group for the blind, the Maryland chapter of the American Council of the Blind, said they think the tool could be vulnerable to hackers.

Mississippi: Will McDaniel give up? | Clarion-Ledger

Chris McDaniel is taking the long holiday weekend to mull whether he’ll accept defeat from the June 24 GOP U.S. Senate primary, or continue his appeal to the state’s high court. “He wasn’t really ready to even accept (dismissal) was a possibility,” McDaniel attorney Mitch Tyner said Friday after a special circuit court dismissed his lawsuit challenging his primary runoff loss. “… This is a very costly litigation and so he wants to take the weekend to decide.” Attorneys for incumbent Sen. Thad Cochran said it’s time for McDaniel, a state senator from Ellisville, to give up. “This has been an ordeal for Sen. Cochran, for his staff, for the circuit clerks, for all the people whose votes have been challenged,” said Cochran attorney Mark Garriga. “… We hope this is the end. Not the beginning of the end, but the end. We urge Sen. McDaniel and his counsel to make that so.” A campaign spokesman said McDaniel will announce his decision at a press conference Tuesday. Judge Hollis McGehee on Friday approved Cochran’s motion to dismiss McDaniel’s lawsuit.

Wisconsin: Scott Walker, J.B. Van Hollen again ask court to reinstate voter ID | Journal Sentinel

Gov. Scott Walker and Attorney General J.B. Van Hollen are asking a federal court to reinstate Wisconsin’s voter ID law, but they have not finalized a plan to comply with a different court’s decision requiring the state to provide IDs to people who don’t have birth certificates. The state Supreme Court last month upheld the voter ID law, but the requirement to show photo ID at the polls remains blocked because a federal judge has found it violates the Voting Rights Act and U.S. Constitution. A new court filing suggests the voter ID law is unlikely to be put in place for the Nov. 4 election, when the GOP governor faces Democrat Mary Burke. She opposes the voter ID law. State officials say they need to know soon whether the law will be in effect so they can retrain poll workers and send out absentee ballots with the proper information. But the federal appeals court has said it won’t rule on reinstating the voter ID law until at least Sept. 12 — around the time absentee ballots will be mailed out. “I just can’t imagine that this could be implemented by the November election without creating a huge mess,” said Daniel Tokaji, an election law professor at Moritz College of Law at Ohio State University. “I think it would be imprudent to put it mildly to try to implement this law pursuant to an order issued after Sept. 12. I think that’s just asking for trouble.”

National: Ballot initiatives become pricey playgrounds of parties and corporations | The Washington Post

In a midterm election season when control of the United States Senate hangs in the balance, Democrats are increasingly turning to ballot measures to get otherwise reluctant voters to the polls. Big Business is, too: Some of the most expensive races in the country this year will be ballot measures written by, and for, major corporations. Some the hardest-fought ballot battles of 2014 won’t involve candidates at all. They’ll be questions that come with big implications for corporate bottom lines — or promise big benefits to political strategists, especially Democrats, looking to drive turnout for other races. For the first time in history, spending on the approximately 125 ballot questions facing voters in 41 states is likely to top $1 billion in campaign spending this year — and perhaps much more: Oil and gas companies in Alaska spent more than $170 for every vote they won in a successful campaign to reject higher taxes earlier this month.

Editorials: People hate politics. So why is nobody talking about campaign finance reform? | Jaime Fuller/The Washington Post

After more than a year of campaigning, New Hampshire Senate candidate Jim Rubens (R) has decided on his closing message: the “disconnect between voters in New Hampshire and politicians in Washington, D.C.” He was campaigning in Groveton, a small town of about 1,000 near the Canadian border, when he walked into a diner (as all candidates in New Hampshire inevitably do). “The entire room erupted,” the former state senator said. “People were ready to vent their frustrations. I’ve been involved with politics in this state for 20 years, and I’ve never felt the dissatisfaction more than I do now.” His anecdotal evidence is backed up by empirical data; when Gallup asked Americans what the top problem facing the nation was, many of the top answers have been variations on grumbling about the state of government today.