Votelaw, Edward Still's blog on law and politics: March 2003 Archives

« February 2003 | Main | April 2003 »

March 31, 2003

Mississippi redistricting case

Here is the AP story on the Branch v. Smith case.

Nina Totenberg on the BCRA case

Nina Totenberg had a report Saturday on NPR that the 2 district judges on the McConnell v FEC case are trying to write an opinion -- or at least the facts of the opinion -- after looking at Circuit Judge Henderson's draft. She says there is "frostiness" between Henderson and the other two judges. She also says that the opinion will probably be about 1,000 pages long. (Oh, goody, just how I needed to spend a week or so.)

Thanks to J.J. Gass of the Brennan Center for pointing this out to me.

Mississippi redistricting case decided in Supreme Court

Branch v. Smith has been decide by the Supreme Court. Contrary to my prediction (here), the Democrats have lost the case.

More when I have read the 65 pages of opinions.

March 29, 2003

Recalling the Gov. of California

The San Francisco Chronicle reports that the Secretary of State has approved the form of the petitions to recall Gov. Gray Davis. The proponents have 160 days to get 1 million signatures.

March 28, 2003

Kentucky lieutenant governor candidate withdraws

The candidate for Lt. Gov. who was disqualified for not being a "resident" for 6 years will not appeal, according to the Louisville Courier Journal:

Hunter Bates said yesterday that he's giving up his bid for lieutenant governor and won't appeal Wednesday's court decision disqualifying him as Republican U. S. Rep. Ernie Fletcher's running mate. Bates said he believed Oldham Circuit Judge Paul Rosenblum's ruling that he hasn't lived in Kentucky long enough to run was wrong, but that an appeal would continue to distract attention from issues in the May 20 primary.

More Counties Using Bilingual Ballots

Here is the AP story concerning the increased number of localities having to provide bilingual elections materials.

New Voting Systems Assailed (

The Washington Post reports today in "New Voting Systems Assailed"

As election officials rush to spend billions to update the country's voting machines with electronic systems, computer scientists are mounting a challenge to the new devices, saying they are less reliable and less secure from fraud than the equipment they are replacing. Prompted by the demands of state and federal election reforms, officials in Maryland, Georgia, Florida and Texas installed the high-tech voting systems last fall. Officials in those states, and other proponents of electronic voting, said the computer scientists' concerns are far-fetched.

March 27, 2003

Kentucky Lt. Gov candidate ruled ineligible to run

The Louisville Courier Journal reports that a circuit judge in Kentucky has ruled that Hunter Bates does not meet the state constitutional residency requirement because he lived in Alexandria, VA, while working for most of the last 6 years for Sen. Mitch McConnell.

The judge held that "residency" means "where you live," not where you say you live. While Bates voted and owned land in Kentucky, he paid taxes, registered his cars, and got a driver's license in Virginia. Bates said he was obeying Virginia law.

Having lived in Fairfax County, VA, adjacent to Alexandria, I know that many Capitol Hill employees have cars registered in their home states. I don't understand why Bates did not do likewise.

Cong. Ron Lewis requests Advisory Opinion from FEC

Rep. Ron Lewis (R-Ky 2) has requested an advisory opinion on whether he may sit as a member of the State Central Committee of the Republican Party of Kentucky. He says that NRCC attorneys say "no," but RPK attorneys say "yes."

draft FEC opinion to Socialist Workers Party

At its next meeting, the FEC will consider a draft Advisory Opinion granting the SWP a further partial exemption from having to report the names of its contributors.

The SWP's request and extensive documentation is here, here, and here.

FEC says PAC contributions up in 2002

The FEC's News Release today reports:

Financial activity by political action committees (PACs) increased during 2001-2002 when compared to the prior two-year period, according to figures compiled by the Federal Election Commission. From January 1, 2001, through December 31, 2002, PACs raised $685.3 million and spent $656.5 million, each up 13% over 1999-2000. Cash on hand as of December 31, 2002, for the 4,594 PACs totaled $184.3 million.

The press release contains links to 15 spreadsheets with more details.

March 26, 2003

More on the Cuyahoga Falls case

SCOTUSblog has a long and insightful post on the CUYAHOGA FALLS v. BUCKEYE COMMUNITY HOPE FOUNDATION case. Unfortuately, I can't link directly to it. Go to SCOTUSblog and look under Tuesday, 25 March.

GOP group and business group in Texas investigated

The Washington Post has a small article today about the Travis County, TX, district attorney investigating the campaign tactics of the Texas Association of Business. The DA's net has now ensnared the Texans for a Republican Majority because its campaign pieces looked similar to those of the TAB.

I had earlier reported on the TAB's campaign here. Here and here are two reports from the Fort Worth Star-Telegram on the probe. The second story reports that the ACLU has weighed in on the side of the TAB. The Houston Chronicle story is here. Finally, the Dallas News has a story here (free registration required).

March 25, 2003

FEC v Beaumont argument

The AP's Gina Holland reports that (despite the predictions that Rick Hasen and I made) the oral argument of this case seemed to go pretty well for the government. You can't always predict the outcome by the oral argument, but Sam Heldman may have called this one correctly.

Nina Totenberg had a report on NPR's All Things Considered this evening that was just as grim for the respondent. I will link to it when NPR puts the story on its audio archives (probably tomorrow).

Update: Here is Totenberg's story (audio file).

Supreme Court: case on damages for referendum process

In CUYAHOGA FALLS v. BUCKEYE COMMUNITY HOPE FOUNDATION, decided today, the Supreme Court has held that a City cannot be sued for calling a referendum on an ordinance in accordance with the facially neutral petition provisions of the City Charter. The case involved a referendum on an ordinance allowing a low-income housing project to be built; enough citizens had petitioned for a referendum on the ordinance that the City had to call one under its charter.

Comment on the NAHB request for FEC opinion

Earlier I reported the National Association of Home Builders asked for an Advisory Opinion on inviting federal office holders to its meetings. The Campaign and Media Law Center has now filed a comment on the NAHB request.

March 24, 2003

FEC v Beaumont

The Supreme Court hears arguments tomorrow in FEC v Beaumont. Here is the question presented (as framed by government):

The Federal Election Campaign Act of 1971, 2 U.S.C. 441b, prohibits corporations and labor unions from making direct campaign contributions and independent expenditures in connection with federal elections. The question presented is whether Section 441b's prohibition on contributions violates the First Amendment to the Constitution if it is applied to a nonprofit corporation whose primary purpose is to engage in political advocacy.

The briefs in the case can be found on FindLaw .

Sam Heldman has made his prediction here. Rick Hasen has given a much more professorial opinion.

Like Hasen, I think this is not a slam dunk case. I would give the edge -- but only slightly -- to Beaumont. I think the Court will be inclined to continue to carve out a special exception for ideological groups that form corporations just to limit liability.

Virginia Highlands Advancement Fund

The Virginia Highlands Advancement Fund has requested an Advisory Opinion from the FEC. The VHAF is a 527 organization connected an unnamed federal officeholder (I think it is Rick Boucher, D, VA-9, based on the return address of the Fund) which has closed down. It has received a tax refund and wants to refund the money pro rata to it contributors.

There is a series of letters. You must start at the back and work you way forward to get the questions right.

Arizona public funding challenge

The AP reports, "Supreme Court rejects challenge to public funding for Ariz. political campaigns."

The Arizona Supreme Court and Court of Appeals decisions are here and here, respectively.

Sen. Kerry and public financing of campaign

The Washington Post reports today that Sen. Kerry Not Banking on His Wife's Fortune (

Sen. John F. Kerry (D-Mass.) has effectively ruled out using any significant part of a family fortune estimated at $550 million in his campaign for the Democratic presidential nomination.

The senator's wife, Teresa Heinz Kerry, inherited the fortune from her first husband, Sen. H. John Heinz III (R-Pa.), after he died in a plane crash in 1991. Kerry and Heinz were married four years later, and her money has given Kerry -- at least on paper -- a potentially huge advantage in financing his campaigns.

Still no word from the court hearing the BCRA challenge

The Washington Post reported today,

More than six weeks after a special federal appeals court indicated it would rule on the nation's new campaign finance law, no decision has been handed down, and lawyers in the landmark case worry the Supreme Court will be hard-pressed to hear it this term, as originally planned.

With no ruling in sight from the three-judge panel in U.S. District Court in Washington, the Supreme Court's regular spring calendar is already full. From the beginning, it was agreed that the Supreme Court would promptly review the case, regardless how the three-judge panel ruled.

March 21, 2003

GOP raises more than Dems

In "GOP Outpaces Democrats in Fundraising With New Restrictions," Tom Edsall reports that the major GOP committees raised 4 times as much as the Democratic committees during the first two months of the year.

March 19, 2003

PSEG requests FEC advisory opinion

Public Service Enterprise Group, Inc. has requested an Advisory Opinion from the FEC about transferring its restricted class employees' contributions (via payroll deduction) from one PAC to another.

Parties' fundraising in 2001-02

The New York Timesreports

Republicans opened up the biggest fund-raising lead in history in the election cycle ending last year, even though Democrats did far better than ever before in a nonpresidential year.
Federal Election Commission statistics show that all national Republican committees raised $441.6 million, as against $217.3 million for the Democrats, in contributions subject to limits the so-called hard money that is the only kind now permitted to national parties under the McCain-Feingold law that took effect after Election Day 2002.

March 18, 2003

Indian Tribes and the FECA

The Washington Post reports in an AP story, Indian Tribes Enjoy Donor Advantage :
,BLOCKQUOTE>Some Indian tribes with gambling halls rivaled Las Vegas casino interests in their level of political giving in the last election.

The nation's new campaign finance law makes it easier for tribal casinos to make political donations than their gaming competitors. While companies are now banned from donating out of their treasuries, tribes can, and without an overall limit.

Neither the new nor the old campaign finance law specifically mentions Indian tribes.

Rather, their special status comes from the FEC, which views them as "persons" under the rules. Tribes must observe the same per-candidate and party committee contribution limits as individuals, but unlike individuals, they aren't bound by a $95,000-per-cycle cap on their total contributions.

The top donors are listed in this story.

March 16, 2003

Funding for HAVA

Federal Aid Helps States Fund Election Reform (

Congress's decision to appropriate $1.5 billion this year for election reform is providing crucial aid to states struggling to meet new federal voting standards in lean fiscal times, officials in several states say.

March 14, 2003

Georgia Republicans (more)

Jim Blacksher just pointed out to me that he was in the winning side in defeating such a claim in Alabama in Montiel v Davis, 215 F.Supp.2d 1279 (SD Ala 2002).

Georgia Republicans file suit to change district boundaries

The Atlanta Journal-Constitution reports,

Georgia Republicans sued in federal court Thursday to challenge the state's current legislative and congressional districts. The lawsuit complains that population differences across districts give some citizens a stronger voice in government than others and violates the one-person-one-vote doctrine of the U.S. Constitution.

(Thanks to SCOTUSblog for the link.)

In Marylanders for Fair Representation v Schaefer, 849 F.Supp. 1022, 1032 (D Md 1994), the court held

For these reasons, this Court holds that a plaintiff could, with appropriate proof, successfully challenge a redistricting plan with a maximum deviation below ten percent. To prevail, though, the plaintiffs have the burden of showing that the "minor" deviation in the plan results solely from the promotion of an unconstitutional or irrational state policy. Thus, the plaintiff must demonstrate, just as the defendants must demonstrate when the State has the burden of proving that the plan is constitutional, see infra, that the asserted unconstitutional or irrational state policy is the actual reason for the deviation. See Karcher, 462 U.S. at 740-44, 103 S.Ct. at 2663-67. In addition, the plaintiff must prove that the minor population deviation is not caused by the promotion of legitimate state policies.

If the Georgia federal court hearing this latest case applies the same standard, the Republicans are going to have a hard time winning the case.

Nat'l Ass'n of Home Builders requests FEC opinion

The National Association of Home Builders has requested an advisory opinion on whether federal officeholders, candidates, and their agents may attend, participate, and speak at NAHB meetings -- both those open to all NAHB members and those open only to firms making a certain level of contribution to the NAHB's "Voter Mobilization" fund.

The request and supporting materials are 66 pages long. The original request begins on page 62. Read that first to avoid being as confused as I was in going through the materials.

This request is related to the one a few days ago from Virginia state and local officeholders about whether federal officeholders and candidates could be involved in state and local campaigns.

March 11, 2003

Corporation seeks FEC opinion on contribution matching

Freeport McMoRan Copper & Gold Inc. has asked the FEC for an advisory opinion on its proposed incentive plan for PAC contributions. The plan would work this way: For each contribution to its PAC, Freeport would give an equal amount to a charity chosen by the PAC contributor. Freeport's request notes that the FEC has approved similar incentive plans in the past.

FEC advice sought by local candidates

Several Virginia state and local officeholders who will be up for election this year have asked the FEC for an advisory opinion on the amount and kind of involvement federal officeholders can have in their campaigns.

March 9, 2003

Election-related bills pending in the Alabama Legislature

The following bills were introduced on the first day of the Regular Session, 3 March.

HB 190 and SB48
SYNOPSIS: Under existing law, furnishing the appointing board with a list from which election inspectors and clerks are to be appointed, is discretionary with the chairs of the political parties. This bill would mandate that the chairs of the political parties furnish the appointing board with such a list

SYNOPSIS: Under existing law, certain election officials are required by law to perform certain duties relating to elections and may be fined for failure to perform the duties. This bill would excuse certain election officers from their regular employment on election day to fulfill the requirements of the positions to which they have been appointed.

SYNOPSIS: Under existing law, there are no provisions which allow the appointing board to provide for alternate election inspectors, clerks, or returning officers. This bill would allow the appointing boards to appoint alternate inspectors, clerks, and returning officers when the election officers are unable to perform their duties.

HB174 and SB 100
SYNOPSIS: Existing law provides the manner in which municipal elections are held including the regulation of polling places and poll watchers.
This bill would revise municipal election procedures. Among other things, the bill would provide the following: (1) For printing in certain notices of municipal elections the residency requirements for persons running for municipal office. (2) That municipalities using electronic vote counters would be exempt from the requirement that municipalities provide one voting machine or box per ward. (3) For the number of ballot boxes or voting machines required in certain municipal run-off elections. (4) That municipal election officials appointed to serve at a polling place other than their regular polling place would be permitted to vote by absentee ballot. (5) That municipalities may appoint additional election officials to receive, count, and record absentee ballots in municipal elections. (6) That municipalities operating on eastern time may designate that polling places open and close on eastern time. (7) That, in all elections, including municipal elections, poll watchers may not disturb or attempt to influence voters in any way. (8) That an official list of qualified voters be furnished to the absentee election manager at least 35 days before a municipal election. (9) For the method of petitioning for a recount in municipal elections.

HB113 and SB3 and SB 106
SYNOPSIS: Under existing law, there are no provisions for obtaining an automatic recount of votes cast in an election if the results of the election are very close. This bill would provide for an automatic recount of votes in a general election for any public office if a candidate is defeated by a difference of not more than one half of one percent of the total votes cast for the office.

SYNOPSIS: Under existing state law, there is no requirement that voting machines have the capability to recount the votes cast for candidates whose names are listed on the machines or on ballots counted by a machine.
This bill would require voting machines to have the capability to recount the votes cast for candidates whose names are listed on the machines or on ballots counted by a machine.

SYNOPSIS: Under existing law, a person is not required to present identification to polling officials before being authorized to vote. This bill would require each person registering to vote by mail after January 1, 2003, to provide identification prior to the first time he or she votes in an election which has a federal office on the ballot. The required voter identification could be in the form of a valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document showing the name and address of the voter.

SYNOPSIS: Under existing law, a person convicted of specified crimes is ineligible to vote. Any such person, upon pardon, may have his or her voting rights restored. This bill would require the state Board of Pardons and Paroles to restore the person's voting rights upon satisfactory completion of the sentence and conditions of the court of conviction or the board.

SYNOPSIS: Under existing law, there are various offenses relating to the election laws, including illegal voting, bribing voters, buying and selling votes, changing votes of electors, disturbing voters on election day, and intimidation and coercion of employee-voters. Currently, there is no uniform penalty for committing election crimes and each offense carries a different penalty. This bill would provide a uniform penalty of a Class C felony for the commission of each election offense.

SYNOPSIS: Under existing law, there is no requirement to maintain voter information for each person who voted in an election. This bill would require each judge of probate, within four weeks after an election to provide voter information for every person who voted in the election to the Alabama Voter Information Network. The bill would require the Alabama Voter Information Network to prepare a computer database that would retain and maintain the voter information.

March 8, 2003

Public financing of presidential primaries

The AP reports that five of nine Democratic presidential candidates have said that they will seek federal matching funds for their primary campaigns. The Washington Post has a story specifically on Sen. Kerry's appeal for funds to be used for matching.

March 6, 2003

Primary schedule

In Overhaul of 2004 Democratic Primaries Complicates Terrain, the New York Times discusses the pressure that "front loading" of the primary season (with as many as 12 states holding February primaries or caucuses) and the number of Democratic candidates (presently nine) will complicate the selection process and put much more emphasis on the raising of money, early money and lots of it.

New York City campaign finance

The New York Times praises Mayor Bloomberg's appointment of Frederick Schwarz Jr. in A Solid Choice for City Campaign Chief. What the Times does not mention is that Schwarz is the interim president of the Brennan Center, a non-profit organization involved in reform of the campaign finance system. One consequence of this appointment is that the Brennan Center will be conflicted out of some NYC campaign finance cases.

March 4, 2003

Federal Election Commission agenda for 6 March

The FEC's
agenda for the 6 March meeting is now online. The Commission will consider two alternative draft opinions about whether a non-connected PAC must pay for an annual "mission" to Washington to meet with members of Congress from its federal or non-federal account. I must be missing something because I don't see this as the "very close legal" question described by the Commission staff.

The other item of interest is the final rules and justification for the administrative fines rule.

Georgia redistricting case

The Georgia redistricting case continues to gather more wrinkles than an old coon dog. Gov. Sonny Perdue has sued the Attorney General Thurbert Baker over Baker's refusal to dismiss an appeal to the US Supreme Court. In the latest development, Perdue's lawyer has written to the Clerk of the Supreme Court asking the Court to "either to order the Georgia Supreme Court to decide whether Perdue or Baker was right; postpone the April 29 redistricting argument until that question is answered; or allow Perdue to file on behalf of the state of Georgia a motion to dismiss the case."

Why file a letter with the Clerk asking for an order by the Court? Pretty bizarre.