At some point next year, the U.S. Supreme Court is likely to face a major First Amendment question: whether to overturn what remains of the 2002 McCain-Feingold Act. This measure prohibited political parties from raising “soft money”—unlimited funds that wealthy individuals, corporations, and labor unions could give to parties, thanks to a loophole in the post-Watergate campaign-finance laws. Such a ruling would allow political parties once again to take millions of additional dollars from donors who, as the Supreme Court found in 2003, use soft money to ingratiate themselves to election officials and secure access to them. How the Court rules is likely to determine whether the wealthiest donors will have an easier path to secure that access—and whether the rest of the country will suffer as a result. A special three-judge federal district court has been convened in Washington, D.C., to consider the law in light of recent campaign-finance rulings by higher courts. The suit, brought by the Republican Party of Louisiana, is being litigated by Jim Bopp, the attorney who successfully navigated Citizens United and other related cases to the Supreme Court. A key argument in the suit is that cases like Citizens United have called into question the constitutionality of the “soft-money” ban. Chief Justice John Roberts, in the 2014 McCutcheon case, seemed to invite such a challenge, raising the possibility that money given to strengthen parties deserves special First Amendment protection.
A week after a federal judge upheld sweeping changes in North Carolina voting laws, The New York Times reported that studies focused on the centerpiece of the changes – the requirement of a photo ID to vote – have found that more than 1 in 10 adult Americans lack a government-issued ID and “compared with whites, the share of minorities without photo IDs is far higher.” The Times story focused on elections in Texas where a voter ID law adopted in 2013 continues in effect pending appeal despite being struck down by courts three times. The story cites the campaign of former U.S. Rep. Pete Gallego, who lost his seat by a narrow margin that may well have reflected the effects of the photo ID law. “It’s tremendously undemocratic in a democratic society when you deliberately disenfranchise thousands of people,” he said. “Turnout is good for the system.”
Republican legislators in Virginia are threatening to sue Gov. Terry McAuliffe to block his executive order restoring voting rights to more than 200,000 residents who have completed their felony sentences. The lawmakers have no good legal case, and worse, such a suit would be affirming Virginia’s racist history. Virginia is one of just four states — along with Iowa, Florida and Kentucky — that continue to impose a lifetime voting ban on people convicted of felonies. In recent years, both Democratic and Republican governors have worked to lift this burden, either by streamlining the application process for individuals or trying to restore rights to specific classes of people, like those convicted of nonviolent felonies.
The intent of Virginia’s ban on voting by convicted felons was to weaken the political power of black people, whose electoral clout was abhorrent to the racists who enacted the prohibition a century ago. Today, Virginia Republicans, who have done their utmost to dilute minority voting by enacting arbitrary voter-ID requirements, are animated by the same idea. Determined to block any surge in African American electoral participation in November, which would mainly benefit Democrats, they are planning litigation to challenge Gov. Terry McAuliffe’s executive order that restores voting rights to more than 200,000 former convicts who have finished serving their felony sentences. When Richmond’s GOP leaders embarked on their campaign to tighten voter-ID laws, they could cite no widespread or credible problem with fraud at the polls. Today, similarly, they can point to no constitutional language preventing Mr. McAuliffe, a Democrat, from restoring voting rights to ex-convicts — something that takes place routinely in most states.
The usual “voter identification law” proponents merely cherry-pick others’ empirical data that specifically lend credibility to their arguments, and often they reject even the proper context. For years, Hans von Spakovsky (a former federal election commissioner and U.S. Justice Department official, currently a Heritage Foundation senior legal fellow) has juxtaposed the Pew Center’s numbers with a 2000 Atlanta Journal-Constitution investigation of Georgia voting records. That newspaper reported initially having exposed 5,400 instances of the deceased being recorded as having voted. Von Spakovsky has used this source repeatedly to support his argument and has proffered that this article’s findings are “substantial to me.” Consistent with von Spakovsky’s routine, Jane Mayer, a New Yorker investigative journalist, noted he did not mention in their interview that the article’s findings were revised. Mayer’s investigation found that the Journal-Constitution ran a follow-up article after Georgia’s secretary of state’s office indicated the vast majority of those cases appeared to reflect clerical errors. The newspaper admitted that even its lone specific example of a deceased voter casting a ballot did not prevail. A living voter’s ballot was credited to a dead man whose name was almost identical.
District Officials will in the coming months spend a lot of time and energy on a quest that even they realize is the longest of long shots: D.C. statehood. That doesn’t mean they are wrong to undertake the effort. It is important to keep reminding the American public and its leaders about the unjust treatment of people who live in the nation’s capital. D.C. Mayor Muriel E. Bowser (D) has announced a new front in the District’s long-running fight for equal rights. She proposed a three-part process that would allow the District to directly petition Congress for admission as a state. Statehood would give the District voting representation in the House and Senate as well as legislative and budget autonomy. The petition would be preceded by a November referendum and, if city voters favored statehood, a convention to draft and ratify a constitution. The new state would exclude a small federal enclave, thus making a constitutional amendment unnecessary.
Smartmatic says it’s 100 percent ready for Election Day. Ready to what, rig the results? Election automation experts cannot but be suspicious. The Venezuelan voting-machine seller has pulled off too many shady deals with the Comelec. It is tainting the credibility of Election 2016. The backdrops for the balloting on Monday are worrisome, to say the least. The Comelec official website has just been hacked. Sensitive personal data of 55 million voters, which the Comelec negligently included, have been dumped on the Internet. Cybercriminals likely have copied the fingerprints, photographs and signatures. Voters will fall prey to blackmail, extortion and cyber-fraud. Smartmatic is striving to dissociate itself from the Comelec fiasco. It claims that its automated election system is hack-proof. Experts have never disputed that. What they’ve been saying all this time is that Smartmatic’s machines are prone to internal manipulation.
Excited to participate in the presidential election, more than 22,000 people in Kansas applied to register to vote in a three-week period in February just days before the state presidential caucuses. It was a reassuring display of democracy — except that two-thirds of that group remain officially held “in suspense,” unregistered and unable to vote. This is because they have not met the draconian requirement of the state law, approved by the Republican Legislature, that they provide a passport, birth certificate or naturalization papers. This electoral limbo amounts to crude voter suppression, and no one seems certain whether all qualified citizens in Kansas will be allowed to vote in the primary election in August for state offices and in the November general election. Court challenges are underway, with the American Civil Liberties Union documenting what it calls the “chaos” wrought by the state law. It stands contrary to federal law, which allows people to register when they get a driver’s license or state ID and attest, under criminal threat of perjury, that they are citizens.
Editorials: Voter ID bill could sink Legislature’s last weeks, to no good end | St. Louis Post-Dispatch
For at least 10 years, the Republican-dominated Missouri Legislature has been trying to pass a law requiring voters to present photo identification before casting ballots. They actually succeeded in 2006, but the state Supreme Court threw out the voter ID law before it could take effect. The issue is back again this year, having passed the House only to run into a series of Democratic filibusters in the Senate. The eight Senate Democrats should stand firm. Senate Republicans should be honest: House Bill 1631 basically solves a problem that doesn’t exist — voter impersonation fraud — and would have a disproportionate effect on minority voters. Higher courts may well declare it unconstitutional. That being the case, the Senate’s Republican leaders must decide if they want to take the extreme step of shutting down debate to pass an unnecessary, punitive and highly partisan law that would deny some 200,000 Missourians their right to take part in the democratic process.
Editorials: Virginia Reinstates Voting Rights to Violent Felons—What States Will Be Next? | Pacific Standard
In a landmark executive order signed last week, Virginia Governor Terry McAuliffe restored the voting rights of more than 200,000 former felons, including violent offenders. Until now, former inmates needed to apply before they could re-gain the right to vote. Now, ex-convicts who have completed their parole requirements are automatically able to register to vote without a special petition. The ruling carries special weight among black communities—25 percent of African Americans living in Virginia who were barred from voting based on their past convictions will now get to vote. “Wow, this is incredible, I finally feel like a full human being.” Although McAuliffe has long been advocating for broader voting rights, the decision still came as a surprise to many. In fact, the New Virginia Majority, a community organization that focuses on civic engagement, have been working since 2007 to restore voting rights for ex-felons.
It is plainly illegal for foreigners to contribute to American political campaigns. But reform groups are warning that the ban would be gravely undermined by a little-noticed bill advanced Thursday by Republicans on the House Ways and Means Committee. It would alter the current tax code provision that, while permitting the identity of donors to 501(c) “social welfare” groups to be kept firmly secret from the public, requires that the donors be privately identified to Internal Revenue Service officials responsible for enforcing the law. Politically oriented groups claiming dubious exemptions as “social welfare” nonprofits have proliferated in recent elections, allowing donors — including publicity-shy campaign backers — to work from the shadows.
On Monday, Judge Thomas D. Schroeder of Federal District Court in Winston-Salem, N.C., upheld legislation passed in 2013 that imposed far-reaching restrictions on voting across this state, including strict voter-identification requirements. Judge Schroeder justified his decision by claiming that robust turnout in 2014 proved that the law did not suppress the black vote. But in reality, his ruling defended the worst attack on voting rights since the 19th century. That attack began almost immediately after a 2013 Supreme Court decision, Shelby County v. Holder, which weakened Section 5 of the landmark Voting Rights Act. Section 5 required federal pre-approval of changes to voting laws in places with a history of discrimination, including parts of North Carolina. Within hours of that ruling, lawmakers in Raleigh filed H.B. 589, proposing some of the toughest voting rules in the country. Referring to Shelby, one sponsor expressed his relief that curtailing voting protections could move forward now that the “headache” of the Voting Rights Act had been removed. The Legislature passed the bill, and it was signed into law by Gov. Pat McCrory, a Republican.
There are 5.8 million Americans who will be barred from voting this year, because their home states deny felons that fundamental right. Lately, there have been efforts to reduce that absurd statistic. In Maryland, the legislature restored voting rights for felons who served their prison sentences by overturning their governor’s veto. And last Friday, by executive order, Virginia Gov. Terry McAuliffe restored suffrage for more than 200,000 people – a good start toward reinstating full citizenship to 47 percent of the American prison population serving time for non-violent drug offenses. Call it a liberating blast of fresh democracy – even though three states (Florida, Kentucky and Iowa) still bar felons from voting for life. Maine and Vermont occupy the other extreme, allowing felons to vote even as they serve their time. And many states, like New Jersey, restore suffrage only after felons have served their full sentences – including prison time, parole and probation.
Late Monday, a federal district judge upheld one of the most regressive and restrictive voting laws in the country — a 2013 North Carolina law that eliminated same-day voter registration and preregistration for 16- and 17-year-olds; cut back on early voting by a week; barred counting votes cast outside voters’ home precincts; and required voters to show identification at the polls. State lawmakers said these changes were necessary to reduce fraud and inefficiency in elections — though there is no evidence of voter fraud to combat or inefficiency to cure. The Justice Department, the American Civil Liberties Union, the N.A.A.C.P. and the Advancement Project, among others, sued on the grounds that the law illegally discriminates against minority voters.
Foreigners account for a quarter of the Swiss population, but they can’t vote in elections or referendums. Is this acceptable in a fully-fledged direct democracy? Swiss and German politicians are divided in their opinions.
“Swiss living abroad are also foreigners in their countries of residency. They often have a firm view of what’s happening in Switzerland, and at the same time they take part in political life in their adopted countries,” Walter Leimgruber, President of the Federal Migration Commission, pointed out at a recent event. Leimgruber’s conclusion is that the Swiss living abroad are citizens of two states, and living proof that political engagement is possible in two societies. In his view, they’re a good example of how foreigners can enjoy political participation wherever they live, regardless of nationality. Economic interdependence caused by globalisation, and the fact that 50% of marriages in Switzerland are bi-national, mean “political rights will have to be redefined,” argues Leimgruber, a professor of cultural studies at Basel University.
Editorials: Demi Moore, George Wallace and Americans’ abused voting rights | David Horsey/Los Angeles Times
Back in 2012, prior to that year’s South Carolina presidential primary, I found myself in Charleston at a big rally for Mitt Romney. Sandwiched among voters waiting for their candidate to show up, I eavesdropped on an animated conversation between two vocally conservative men. One of them was happily detailing how various Republican-controlled legislatures were passing new voting restrictions that would hurt Democrats. The other man was trying to sound equally enthusiastic, but it was clear he felt some ambivalence. He wondered out loud if it was a good idea for government to be subverting the most fundamental right in a democracy. Then, realizing he was straying uncomfortably from the party line, he quickly dropped this errant thought and agreed with his friend that GOP legislators were right to stick it to the other team. It is a sad reflection on the state of our republic that the man in Charleston is far from alone in abandoning a sacred principle. Sometimes by nefarious design, sometimes through tired tradition and sometimes because of incompetence, political parties and state governments set up roadblocks to casting ballots instead of engaging as many people as possible in the political process.
Editorials: Bernie Sanders is right: poor people don’t vote and it’s a problem | Lucia Graves/The Guardian
Bernie Sanders said something he wasn’t supposed to say: that poor people don’t vote. Although it’s true that voter turnout is inversely correlated with income, all anyone wanted to comment on was that Sanders looked defensive and deflated on Meet the Press, where he made the statement on Sunday. Lost was the fact that this is a truth we should be struck by, ashamed of even, and should do more about. The impolitic remark came in response to a question about why the candidate had been losing so much in the places he should have been winning (he’s lost 16 of the 17 states with the highest levels of income inequality). The most straightforward thing for him to say would be to acknowledge that he hasn’t performed well with minority voters who tend to be less affluent. But he didn’t want to say that on television. Instead, he decided to talk about something else that’s actually more important than where he, personally, is up or down. He said: “Poor people don’t vote. I mean, that’s just a fact. That’s a sad reality of American society”. He also noted that “80% of poor people did not vote” in the 2014 election. On the airwaves he was chided for acting like an analyst rather than a candidate and for bringing his campaign down to reality in all the wrong ways. Fact-checkers immediately aimed to set the record straight only to discover that Sanders claim was “mostly true” or even, looked at comprehensively, totally correct.
Editorials: Why a Judge Ruled North Carolina’s Voter-ID Law Constitutional | David Graham/The Atlantic
A judge in Winston-Salem, North Carolina, ruled Monday night that the state’s strict new voting law is constitutional, delivering a major win for conservatives who have sought to tighten laws across the country, and dealing a blow to efforts to stop those laws. Judge Thomas Schroeder’s opinion—included in a massive, 485-page ruling—upheld the full swath of HB 589. Passed by the Republican-dominated General Assembly in 2013, the law changed a slew of North Carolina’s voting rules, including reducing early voting, eliminating same-day registration, banning out-of-precinct voting, and ending pre-registration for 16-year-olds. Perhaps most prominently, the bill instituted a requirement that voters show photo ID to cast a ballot.
At election time we inevitably hear earnest pleas for everyone to vote. Voter participation is a data point often cited in political studies, along with an assumption that the higher the percentage, the better: 100 percent participation is the goal. But we rarely question this belief, or objectively consider whether everyone who can vote ought to vote. Pleas for everyone to vote ignore the fact that not voting can itself be a way of voting. The trumpery of the current Republican primary campaign has led some of us to decide that they want no part of it and so will not vote. Not voting, then, can be a protest against all the available candidates. It’s hard, however, to distinguish such protest from mere apathy or forgetfulness, and we ought to provide a way of registering it in the polling booth. We might, for example, add as a ballot choice “No Acceptable Candidate.”
Editorials: After New York’s Disastrous Primary, It’s Time to Demand Better Voting Laws | The Nation
During this year’s presidential primary, New Yorkers across the state discovered something that voting-rights advocates have been saying for years: Despite the state’s progressive reputation, New York’s elections are a mess. Approximately 120,000 people were inexplicably purged from the voting rolls in Kings County. Others had their party affiliation switched without their knowledge—leaving them unable to vote in New York’s closed primary. Polling places didn’t open on time or closed early. And millions didn’t get to vote because they did not register with the Republican or Democratic Party—a decision they would have had to make by October 9, 2015, 193 days before the primary. All of this led to an embarrassingly low turnout: As Ari Berman pointed out at The Nation, with 19.7 percent of eligible voters casting a ballot, New York had the second-lowest turnout this primary season, second only to Louisiana.
In a major executive order, Gov. Terry McAuliffe of Virginia on Friday restored voting rights to more than 200,000 people who have completed their sentences for felony convictions. Virginia was one of four states, along with Iowa, Kentucky and Florida, that placed a lifetime bar on voting for anyone convicted of a felony. All other states except Maine and Vermont impose lesser restrictions on voting by people with felony convictions. To people who have served their time and finished parole, Mr. McAuliffe said in a statement: “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes.” It is the largest restoration of voting rights by a governor, ever. Felon disenfranchisement laws, which currently block nearly six million Americans from voting, were enacted during the Reconstruction era in a racist effort to make it harder for newly freed African-Americans to vote — a reality Mr. McAuliffe acknowledged on Friday. “There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” he said. In Virginia, one in five blacks have until now been unable to vote because of a felony conviction.
The plan put forward by Prime Minister Shinzo Abe’s ruling coalition to reform the Lower House electoral system is only a partial step that shelves the fundamental overhaul needed to close the sharp disparity of votes across electoral districts, as proposed by a panel of experts advising the speaker of the chamber, for several more years. The bill to amend the Public Offices Election Law to cut 10 Lower House seats and redraw some electoral districts will likely clear the Diet during its current session on the strength of the Liberal Democratic Party-Komeito alliance. But the administration and the coalition still need to explain why voters have to wait longer for the more fundamental reform.
Molly McGrath is laser-focused on a job no advanced democratic society ought to require: Making sure properly registered voters do not lose their right to cast a ballot on election day because of new, stringent ID requirements they may not even know exist. McGrath is the national campaign coordinator for VoteRiders, a nonprofit founded by two Los Angeles attorneys that devotes itself to ensuring citizens are not tripped up by the voter ID laws, many of which are being introduced this year. Since last summer, McGrath and her team have been visiting food pantries, churches, university centers and high-end condo complexes in Wisconsin, one of the states with the strictest requirements. Some of the people the team helps are transient, poor or elderly; they not only may have no driver’s license or state-issued photo ID, but they also may have difficulty getting their hands on the underlying documentation required to get one.
Editorials: The Battle Over “One Person, One Vote,” Has Just Begun | Carl Klarner and Dan Smith/The American Prospect
After the Supreme Court’s politically consequential decision in Evenwel v. Abbott this month, supporters of the principle of “one-person, one vote” breathed a sigh of relief. The Court unanimously ruled that states may continue to draw legislative districts based on total population, instead of on a new standard—the number of registered or eligible voters—that would have excluded non-citizen immigrants, youth under 18, people who are or were incarcerated, and anyone else not registered to vote. The ruling stymied a challenge brought by conservative activists in Texas who set out to upend the practice of apportioning legislative districts based on population, which had been settled law for five decades. A ruling in the challengers’ favor could have triggered mass redrawing of legislative district lines around the country, most likely to the advantage of Republicans.
Editorials: Why is Ottawa still defending disenfranchisement of expats? | Semra Sevi & Gillian Frank/The Globe and Mail
Last week, the Supreme Court of Canada agreed to hear a case about whether Canadians living abroad should regain their right to vote in federal elections. Over the past four years, the Conservatives sought in the courts and through legislation to prevent expatriate Canadians from regaining their voting rights. The Liberals, however, promised a different path. “A Canadian is a Canadian is a Canadian,” Justin Trudeau repeatedly said during the 2015 election campaign when he repudiated the Conservatives’ narrow vision of citizenship and democracy. To understand what’s at stake, it’s necessary to understand the history of expat voting rights. According to a study by Asia Pacific Foundation, 2.9 million Canadian citizens – equivalent to 9 per cent of Canada’s population – study, live and work abroad.
Editorials: From the front lines: A Wisconsin poll worker dreads the job | Carrie Scherpelz/Milwaukee Journal-Sentinel
‘m a Wisconsin poll worker. I’ve come to dread my job. After four years of experience at my busy polling place, I was surprised to find myself dreading Wisconsin’s primary election. Sadly, running elections has grown more daunting with every new voting law passed by the state Legislature, especially the new photo ID requirement and voter registration rules. The April 5 high-turnout election put even more new guidelines in place — added in the two months since the Feb. 16 election. Not surprisingly, both voters and poll workers are confused. That makes my job much harder and far less rewarding. I want voters to have confidence in my knowledge of ever more complex procedures. I want to serve them well so they enjoy exercising their right to vote. I don’t want them to stand in long lines or feel scrutinized as if they are passing through an airport security checkpoint. Most of all, I hate telling students that their student ID is not an approved voter ID. When I inform students of their options, I apologize and say, “Please promise me you’ll get the proper ID and come back. I want you to be able to vote.”
The state of the nation’s underfunded, patchwork election system and obsolete balloting machinery may not arouse voters the way candidates can with charges of rigged elections. But voters in Arizona who lined up for the state’s presidential primaries last month learned just how difficult and unfair voting can be even without criminal malfeasance. Maricopa County, the state’s most populous, had slashed the number of polling places to 60, from 200 in 2012, claiming a need for budget savings and leaving thousands of voters waiting long hours into the night, with some giving up in despair. The Justice Department is investigating this electoral disaster, including charges that minority voters were particularly harmed. Critics blame the Supreme Court for weakening the Voting Rights Act, which used to subject regions with a history of discrimination, Maricopa County among them, to prescreening by the Justice Department before they could make major changes in voting procedures. Had that provision remained operational, the Maricopa fiasco might have been averted.
Editorials: Brian Newby and Kris Kobach are tangled in a web of voter restrictions | Steve Rose/The Kansas City Star
The Brian Newby I knew in the 11 years he served as Johnson County election commissioner thought the big deal about voter fraud was blown way out of proportion. We discussed this on several occasions. I knew he had to be careful what he said because his boss — the one who appointed him — was none other than Kansas Secretary of State Kris Kobach. Kobach has a national reputation as one of the most virulent crusaders for restrictive voting because, Kobach claims, he wants to stamp out voter fraud. There has been no indication in Kansas or anywhere else that voter fraud is a major issue. Kobach pushed for laws that require Kansans who want to register to vote to come up with documents like a passport or birth certificate, which tens of thousands of Kansans — mostly poor — don’t have, and therefore they cannot vote. (Note: This is not about showing a driver’s license at the time you vote, which is a reasonable request.) Newby told me that over his entire term he came across only a couple of instances of double-voting that could technically be defined as fraud. However, Newby was clear that he thought these were mistakes, not intentional fraud.
Each year on April Fools’ Day I intersperse some false but plausible news stories among the real ones on my Election Law Blog. Last year, I got a number of prominent election-law attorneys and activists to believe a false report that a federal court, relying on the Supreme Court’s controversial campaign finance decision in Citizens United v. Federal Election Commission, held that the First Amendment protects the right to literally bribe candidates. This year, among false posts, was one in which I had Donald Trump declaring that he would not abide by the results of the Electoral College vote if he was the popular vote winner. The made-up story had him plotting with his campaign manager Corey Lewandowski to seize power in the event of a popular vote/electoral vote conflict. Many people believed the post, and it even made aWashington Post list of debunked April Fools’ stories that people fell for. It’s not a surprise. Trump railed against what he perceived as the unfairness of the Electoral College when President Obama won re-election in 2012. And he has consistently whined about what he perceives as unfairness in the electoral process. Combine that with his inflammatory rhetoric, and the idea of a Trump coup is not so crazy.
Donald Trump has complained that the Republican primary process is a “rigged, disgusting, dirty system” that deprives people of the chance to vote for their preferred presidential candidate. He accuses the Republican Party of stealing delegates from him. If he thinks this system is complex, Trump should look to the GOP’s past primary elections. Now, those were complicated! As recently as 2012, for example, some states used a three-step voting process that often yielded two opposing outcomes. But the Republican National Committee worked with state parties to streamline and standardize the 2016 election to minimize confusing results. Some complexity remains because each of the 50 states can set its own rules. As the founding fathers devised, U.S. presidential elections are not national races. Rather, they occur state by state, which inevitably creates some complexity. But there are clear and now simpler rules. Candidates just need to read them.