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

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August 31, 2003

Rehnquist and the BCRA case

The Washington Post article, Rehnquist May Be Key for Campaign Finance, points out three aspects of the McConnell v FEC case on which Chief Justice Rehnquist may be key:

Normally a reliable member of a three-justice voting bloc on the right with Justices Antonin Scalia and Clarence Thomas, Rehnquist, 78, is much less predictable on campaign finance regulation. And McCain-Feingold supporters believe that, based on his record, the chief justice -- appointed to the bench by President Richard M. Nixon, whose Watergate excesses triggered campaign finance legislation -- could be their best friend in court.

Scalia, Thomas and a more moderate conservative justice, Anthony M. Kennedy, have written opinions suggesting that most of the current campaign finance law is unconstitutional. But Rehnquist was a member of the court majority in 1976 that permitted regulation of campaign fundraising, and since then, he has consistently supported the power of Congress to rein in corporate and union political spending.

At the same time, other parts of Rehnquist's record suggest that he may balk at those parts of the new law that arguably hobble political parties, including aspects of the soft-money ban.

In 2001, Rehnquist joined Scalia, Thomas and Kennedy in dissenting from a 5 to 4 ruling that upheld federal limitations on the amounts political parties may spend in coordination with the campaigns of their House and Senate candidates.

Seeing no possibility of parties corrupting their own candidates, Rehnquist reasoned that "parties are linked to candidates and . . . breaking this link would impose significant costs on speech."

"The fact that he might be going to sustain corporate and union limits doesn't mean he is going to sustain the rest of the statute," said Roy Schotland, who teaches campaign finance law at the Georgetown University Law Center.

Meanwhile, on campaign finance, O'Connor is "even more inscrutable than usual," Schotland said. Though she has participated in several key cases -- voting to uphold the party limits in the 2001 case, but to strike down the corporate limits in the 1990 Michigan case -- she has written relatively little about the issue.

Schotland suggested that both Rehnquist and O'Connor may be interested in arguments based on states' rights that have been advanced by Sen. Mitch McConnell (R-Ky.), the Republican National Committee and other opponents of the soft-money ban.

The opponents argue that the law's provisions, which prevent donations to state parties from being used in support of federal candidates, touch on areas traditionally regulated by state authorities, thus exceeding Congress's authority to supervise federal elections.

Rehnquist and O'Connor, along with Scalia, Kennedy and Thomas, have been part of a solid five-vote majority on the court that has sought to shore up state power in relation to Washington.

August 30, 2003

APSA

I have been at the American Political Science Association annual meeting since Wednesday. This is, I am told, the largest academic conference in the country. At any one time, there are probably 40-50 panels going on.

As usual, this has been a great time for me -- hearing papers on campaign finance, voting, redistricting, courts, etc. It has been particularly nice this year because a number of folks have come up to me to express their appreciation for my work on this blog. To them, I say again, "you're welcome."

And to all of you, I say, send me tips, documents, and links. Thanks to all those who have.

California recall election still faces Sec 5 case

AP report,

A three-judge federal panel heard arguments Friday in a case that could delay California's historic recall election, but said it would not make a decision until Sept. 5.

Civil rights groups are calling for the Oct. 7 election to be delayed, contending that the hurry-up timeframe is forcing counties to change their voting plans in ways that disenfranchise minority voters -- and that such changes require federal approval under the Voting Rights Act.

Under federal law, the Department of Justice must pre-clear any revisions to the voting process in Monterey and three other California counties with a history of low voter participation.

Unless federal lawyers approve Monterey County's plan to conduct the vote on short notice by consolidating some polling places, the judges could delay the election on whether to recall Gov. Gray Davis, perhaps until the March presidential primary.

Justice Department spokesman Jorge Martinez said the department was still weighing whether the government would sign off on Monterey County's plan and declined further elaboration. The department has already cleared Secretary of State Kevin Shelley's decision to set the election for Oct. 7.

County officials have scrambled to prepare for an election date that was set for less than 11 weeks after it was certified. Cash-strapped Monterey County, for example, plans to cut costs by reducing its usual 190 polling places to 86.

Civil rights groups sued, saying the Justice Department must first sign off on those and other changes to ensure that minorities won't be disenfranchised. Two weeks ago, U.S. District Judge Jeremy Fogel agreed -- and ordered Monterey and state election officials back to his courtroom under threats that the recall could get postponed.

The three judges overseeing Friday's hearing were Fogel, a President Clinton appointee, and two appointed by Republicans: U.S. District Judge Ronald Whyte and 9th U.S. Circuit Court of Appeals Judge Consuelo Callahan. Voting Rights Act claims are heard by a three-judge panel because, under that 1965 law, appeals skip the federal appellate level and go directly to the U.S. Supreme Court.

The panel heard two cases Friday.

In one, the Lawyers Committee for Civil Rights of San Francisco seeks to have the entire election delayed on grounds that the Justice Department has not approved Monterey County's proposed changes.

In the other, the Mexican American Legal Defense and Educational Fund is asking the judges to move Proposition 54 to the March ballot -- its original date, before the recall qualified. MALDEF charges that, among other things, a reduction in polling places in Monterey could keep minorities from voting on the proposition, which would prohibit state and local governments from tracking the race of their employees, students and contractors.

The "Perfect Storm" of Campaign Finance

The New York Times reports,

Just three years after Californians voted to impose controls on campaign financing, the unexpected recall election is turning into a spending frenzy without limits.

Six-figure contributions from labor unions are pouring into Gov. Gray Davis's anti-recall committee. Arnold Schwarzenegger jump-started his campaign with a $2 million donation of his own. Peter V. Ueberroth wrote his campaign a check for $1 million and expects to add $2 million more.

And the state's Indian tribes, flush with cash from casino operations, say they are planning to spend as much as $10 million on the recall campaign, mainly to benefit Lt. Gov. Cruz M. Bustamante, a Democrat, who has long supported their interests.

When it comes to the recall, experts say, California's complex campaign financing controls, a clutter of legislation, voter initiatives and court opinions, appear to be more loophole than law.

Proposition 34, a campaign financing initiative passed by the voters in 2000, limits fund-raising and spending by candidates for governor. But the individual contribution limit is so high — $21,200, more than 10 times the limit for a presidential contest — as to be almost meaningless, advocates of stricter campaign finance laws here argue.

August 28, 2003

When will the Supreme Court decide McConnell v FEC?

At the APSA today, I attended a panel about the BCRA case in the district and Supreme Court. Someone asked how quickly the Supreme Court will decide the case. Various members of the panel, including Rick Hasen of Election Law blog, made suggestions about the answer. I decide that we should have a little contest. Leave a comment with your prediction about the date on which the Supreme Court will decide the McConnell v. FEC case.

(Members of the Supreme Court and their staffs are not eligible. Entries must be received at least 14 days before the predicted date.)

Catching up on Texas

To catch up on the Texas 11, read The Austin Chronicle and the Star-Telegram.

Blogging light for a few days

I had computer problems yesterday and will be at the American Political Science Association annual meeting until Labor Day. I may not be able to blog much.

August 26, 2003

NYC non-partisan elections

The Brennan Center for Justice issued a Press Release on Friday responding to a New York City Charter Commission staff report attacking the Brennan Center's initial study on the effect of non-partisan elections. The release contains links to their studies and the report of the Charter Commission staff.

August 25, 2003

AO to DCCC

The Federal Election Commission has released Advisory Opinion Number 2003-19. This AO advises the Democratic Congressional Campaign Committee that it may "accept proceeds from the sale of used office equipment and furniture, without regard to the source or amount of those proceeds."

Florida fires elections records chief over backdating reports

AP in Florida is reporting,

The state's elections records chief was fired Monday after officials discovered evidence that she changed the dates on late-filed campaign finance reports in the 2002 election to make it look like they had been submitted on time.

Bureau of Elections Records head Connie Evans was fired after the alleged misconduct was found in an internal review, according to a release late Monday from Secretary of State Glenda Hood's office. It was unclear how many or which candidates were involved. Candidates are fined every day the records are late.

NYC Non-Partisan Elections Up the Voters

Tomorrow's New York Times
reports,

The Charter Revision Commission approved a measure last night to be placed before the voters in November that would end political primaries for municipal offices and establish nonpartisan elections. The move could pave the way for the most significant changes in New York City elections in nearly a century. With a vote by a majority of the 11 members of a panel created by Mayor Michael R. Bloomberg, the issue of nonpartisan elections will move to New York City's voters, as political forces on either side of the issue fight to win their support.

Nonpartisan elections are held in 41 of the 50 largest cities in the country, including Los Angeles, Chicago, San Francisco, Miami and Atlanta. If approved by voters, a move to nonpartisan elections in New York would end a system created in the early 20th century, when party primaries were created by reformers to wrest control of the political process from the hands of party bosses.

The commission's vote sets the stage for what is likely to be a contentious and highly partisan campaign.

The Charter Revision Commission website does not have the final text available yet, but staff reports are on the site.

Will New Mexico re-redistrict?

The Albuquerque Journal reports,

Gov. Bill Richardson said Friday he will call lawmakers back to the Capitol Oct. 27 for a special session to revamp the state's tax system and toughen sex crime laws. Richardson said it was "faintly possible" he also would put congressional redistricting on the agenda, although he's leaning against it.

NYC term limits and shortened terms

Newsday reports,

A federal judge has squelched an effort by former City Councilman Noach Dear to run for his old job this year.

Dear, forced from office by term limits in 2001, filed suit in an effort to reverse a July 31 finding by the city Board of Elections that he is ineligible to run.

Under term limits, council members and other elected city officials can only serve two full consecutive terms and must wait at least one full term before running again. Dear, a Brooklyn Democrat, will be eligible in 2005.

The decision is not on the court's website. If anyone has a copy of the decision, email it to me or email me for instructions on where to fax it. The email address is in the upper right corner of the page.

Texas: the week ahead

Tuesday, Special Session II ends. Wednesday, the Texas 11 will be in Laredo for their suit in federal court. Read about both in the Dallas Morning News.

August 24, 2003

When will the Texas 11 return?

The San Antonio Express reports on the ways in which the standoff might end.

Leaving may have been the easy part for 11 Texas Democratic senators who have been in Albuquerque, N.M., for nearly 30 days to stop GOP-driven congressional redistricting. Finding a way back to a normal Senate, with a quorum to do business, is the hard part — and not just for the Democrats, but for Republicans whose drive to install more GOP members of Congress is going nowhere as long as their colleagues stay gone.

With no sign of compromise, the Democrats' return may come through the doors of the federal courthouse in Laredo, where arguments will be heard Wednesday on their lawsuit challenging the way Republicans are handling the redistricting effort.

The Dallas Morning News reported yesterday,

House Democrats met with Senate colleagues Saturday to discuss ways to block future moves in the GOP redistricting drive.

The senators met with Terri Hodge of Dallas, Lon Burnam of Fort Worth and Ruth Jones McClendon of San Antonio. The meeting comes just days before the Legislature's second special session on redistricting is set to end.

Republican Gov. Rick Perry is expected to call a third special session on redistricting, and House and Senate Democrats must determine how to block redistricting efforts for a fourth time.

"We have a lot of options," Ms. McClendon said. "We wanted to get together and discuss those options."

Some cash may help the Democrats stay away. Reuters reports,

The grass-roots Internet group MoveOn.org said Saturday it expected to raise $1 million to support 11 Texas Democratic senators who fled to New Mexico over a redistricting fight.

The liberal, Web-based group, which has helped raise millions of dollars for Democratic presidential hopeful Howard Dean, launched a campaign earlier this week that will produce television ads and radio spots to criticize a White House-backed plan to redraw Texas congressional districts.

"This is the single biggest fund-raising campaign we have done on a single issue," said Zack Exley, organizing director for MoveOn.

As of early Saturday, the group had received about $850,000, with the average contribution about $30, he said. The campaign started after one of the 11 senators posted a letter on the site Tuesday.

Alabama ex-felon voting bill may come back

The Mobile Register reports,

After meeting with Gov. Bob Riley on Saturday to discuss how to speed up restoration of voting rights for convicted felons, some black leaders in the Mobile area have decided to break their silence about Riley's tax plan and start aggressively campaigning for it.

The battle over felon voting rights boiled over last spring. Kennedy's bill made its way through the Legislature along with a Republican-backed measure that would require voters to show identification when they vote -- something black legislators have strongly opposed in the past.

Riley signed the voter ID bill but not the felon voting bill, causing an uproar from many black leaders. Some supporters of the bill said that legislators had made a deal to let each of the two bills pass with the expectation that they both would be signed. Riley said he never promised to sign the felon voting bill.

If it weren't for the Sept. 9 vote on Riley's $1.2 billion tax and government reform package, the felon voting rights issue might be dead until the Legislature's next regular session in February. But Riley's plan has been faltering with the public. Polls show that even some people who would get a tax cut don't support it.

Before Saturday's meeting, Riley spokesman David Azbell said Riley was "committed to sitting down and working out a compromise that would streamline the process, but I certainly don't think a quid pro quo is something he'd be comfortable with."

Johnson said Riley has agreed to work toward legislation that would be agreeable to the black leaders gathered there. The details, Johnson said, would be left to Kennedy and the governor's office.

Kennedy reiterated her commitment to the issue: "Somebody has to speak up for those who cannot speak for themselves," she said.

Polls show that Riley's tax plan is in trouble with the voters. Whether active campaigning by more black leaders will make difference remains to be seen. Whether Riley will follow through on his promise on voting rights also remains to be seen.

Jonathan Myrick Daniels

Yesterday, I was on a pilgramage to honor, celebrate, and remember Jonathan Myrick Daniels. There were over a hundred people, perhaps two hundred, in attendance at a service organized by the Episcopal Dioceses of Alabama and the Central Gulf Coast. We used a modification of the order of worship we use for Eucharist services on Sundays with the readings appointed for the commemoration -- for, you see, Jonathan is celebrated on the Episcopal calendar as a martyr. We did parts of the service on the Square in front of the Courthouse, at the Jail, at the site of the Cash Store (where Jonathan was killed), and in the courtroom of the Courthouse. Mixed in with our Bible readings were appropriate passages dealing with Jonathan's incarcertation and death from Outside Agitator, a book I have linked in the right column of the main page of this blog.

The following is from the website of the Episcopal Divinity School (formerly the Episcopal Theological School):

JONATHAN MYRICK DANIELS was a 26-year-old volunteer civil rights worker and student at EDS (then ETS) in the summer of 1965 when he was shot and killed by a deputy sheriff in Hayneville, Alabama. Jon’s last act was to thrust Ruby Sales, a young Black woman (and currently a student at EDS), out of the path of the gunfire that took his life and seriously wounded another civil rights worker.

Jon was gripped by the power for commitment and witness he experi­enced in a moment he later described as “decisive, luminous, and spirit-filled.” His response to this epiphany led him to join in the Rev. Dr. Martin Luther King’s famous march in Selma, Alabama. Initially reluctant, he decided to go to Alabama because he manifestly believed that it was what God want­ed him to do. Eventually, that conviction led him to Hayneville, prompting him to risk, and ultimately lose, his life. In the summer of 1994, the General Convention of the Episcopal Church officially rec­ognized Jonathan as a martyr, and gave huh his own liturgical day in the Church Calendar. And last summer, 32 years after Jon’s murder, it was possible at last to install a commemorative plaque in the town square of Hayneville, close to the site of the shootings.

Six years ago this week, I went to Hayneville, Alabama, for the dedication of the monument referred to above. The monument refers to Jonathan's work in Alabama: integration of churches and universal voter registration. As we stood around the monument at the corner of the Square, I looked over it to the center of the Square where the memorial to the Confederate dead from Lowndes County stood, and I thought this:

The past is like a big stone each of us has. Some carry their stone around and are burdened by it. Others use it as a platform upon which to proclaim their vision. Some chip away pieces and hurl them at others. And others use the stone as the cornerstone and build something new. How do you use your History?

All of us who practice voting rights law should remember Jonathan Myrick Daniels, a martyr for our cause.

August 22, 2003

Secrecy about free speech

The Fulton County Daily Report reports,

A debate over free speech in judicial elections is being kept secret in the Georgia Supreme Court.

The justices have refused to release recommendations made by the state Judicial Qualifications Commission that would change campaign rules that bar candidates from making misleading statements and personal fund-raising solicitations. Those rules were struck down last year by a federal appeals court as a violation of the First Amendment.

"What in the world are they thinking?" asked Lucy A. Dalglish, of the Arlington, Va.-based Reporters Committee for the Freedom of the Press, when told of the Georgia court's stance.

Want to make your opinion known?

Not Geniuses has come up with "Flood the Zone" Friday. The idea is to use the tools provided by GeorgeWBush.com to provide our own views of the bad points of the Bush Administration. Head on over to NotGeniuses.com, look at the talking points, compose your letter, and then click their link to the Bush site to get an idea of where to send your letter.

August 21, 2003

Federal judge nixes Bexar trix

San Antonio Express reports,

A federal judge has ruled that Bexar County’s plan to eliminate a justice-of-the-peace precinct is a violation of the Voting Rights Act. That means Precinct 5 Constable Ruben Tejeda may get a chance at re-election sometime next year.

Tejeda’s precinct was eliminated by Commissioners Court in 2001 as part of a redistricting plan that reduced the number of constables in Bexar County from five to four.

While he continues to draw his $55,724 in annual salary and automobile allowance until his term expires in December 2004, Tejeda has been without a staff since May 2002, when the U.S. Justice Department endorsed the county’s redistricting plan.

I quite often tell folks that preclearance by the DOJ is not necessarily the end of the struggle.

If anyone has a copy of the decision, email it to me or email me for instructions on where to fax it. The email address is in the upper right corner of the page.

Judge allows San Francisco to hold election without instant runoff voting

The San Francisco Chronicle reports,

A San Francisco Superior Court judge agreed with city elections officials Wednesday that they should not enact a new voter-mandated instant runoff system for the November election even though they will be violating the law.

Forcing the city to use instant runoff voting would endanger the integrity of the vote and therefore should not be done, the judge said.

"The ultimate election outcome would be jeopardized," said Judge James Warren, who issued his ruling from the bench.

San Francisco voters in March 2002 said instant runoff voting should be in place by this fall's election. However, in court documents, the city attorney said that putting the new system in place now would cause a "potential train wreck on Nov. 4."

The election includes races for mayor, district attorney and sheriff.

If anyone has a copy of the decision, email it to me or email me for instructions on where to fax it. The email address is in the upper right corner of the page.

DOJ preclears SC redistricting plan

AP reports, Justice Department approves redistricting plan for the South Carolina legislature.

The Bush-Cheney connection to the "Take Back Our Judiciary committee"

Daily Business Review has a wrap-up article on the recent slap on the wrist the Florida Elections Commission gave to "Palm Beach County Commissioner Mary McCarty, a Republican, headed a political action committee organized to threaten three Florida Supreme Court justices with election defeat in the midst of their critical deliberations over the presidential election recount." McCarty told investigators and the Commission that Roger J. Stone, Jr., had asked her to head up the committee and had secured the "loan" that paid the committee expenses. Who could possibly have been behind Stone?

Clerly these folks at the Fla.E.C. needed someone with the investigative skills of Sherlock Holmes, Mrs. Marple, or even Adrian Monk to help them crack this case. Usually the cops and prosecutors want to think about motive, means, and opportunity. Who could possibly have had a motive to want to discredit and intimidate several justices on the Florida Supreme Court in late 2000? I know that one has you stumped, too.

Well, let's look at what Stone was doing about the same time as he was setting up "Take Back Our Judiciary." Buried way down deep in this article is this tidbit:

The record does not identify who may have employed Stone to set up the Committee to Take Back Our Judiciary. But according to journalist and author Jeffrey Toobin, James A. Baker III, George W. Bush’s chief post-election strategist recruited Stone to help the Bush-Cheney post-election campaign in Florida.

“Shortly after Election Day, Stone received a call from Baker aide Margaret Tutwiler, who said, “Mr. Baker would like you to go to Florida,” Toobin wrote in “Too Close to Call,” his 2001 book on the presidential election meltdown.

Toobin also reported that on Nov. 22, 2000, Stone was a leader at a noisy protest outside the Miami-Dade County election division’s offices in the Stephen P. Clark Center in downtown Miami. The protesters were upset about the recount that was ordered to continue the day before by a unanimous Florida Supreme Court. The protest disrupted the recount.

“From a building across the street, Roger Stone communicated with his people on the ground by walkie-talkie,” wrote Toobin, who interviewed Stone for the book.

Mary McCarty has testified Stone initially telephoned her about the Committee to Take Back Our Judiciary between Nov. 13 and Nov. 16. On Nov. 23, Thanksgiving Day, he faxed her the text of a fund-raising letter to which she’d agreed to lend her name, she said.

I suppose it will always be a mystery why Stone would set up this committee. At least to the gumshoes at the Florida Elections Commission.

Thanks to Alfredo Garcia for the tip.

Texas 11 -- we catch up

I reported yesterday that the Texas 11 had amended their federal suit. I now have a copy of the amendment. The Dallas Morning News and the Austin American Statesman have articles on the amendment.

The Texas Lawyer reports on the case and its chances of success, as well as the more general problem of how the Senate may compel absent members to return.

The Austin Chronicle has three articles on the standoff -- here, here, and here.

The San Antonio Express reports that one of the sanctions is a particularly low blow:

When the Democrats said they would not pay, most remaining senators in Austin approved a series of sanctions to force payment of the fines..

Among the restrictions, the absent senators no longer are permitted to buy Texas flags that fly over the capitol building.

The flags, made by inmates of the state Department of Corrections, are paid for by the senators from their personal funds or campaign accounts and given to civic organizations, veterans and others who request them..

"This hits way below the belt for me," said Sen. Eddie Lucio Jr., D-Brownsville.

In the 1980s Lucio sponsored a bill prohibiting desecration of the flag.

"It's a slap in the face and something that I'll never forget."

The San Antonio Express has another article recounting the last time the Senate imposed sanctions on quorum-breakers -- in 1870.

August 20, 2003

FirstEnergy, first the campaign dough, then the energy don't

Does this surprise you? AP reports,

An Ohio utility at the center of investigations into last week's blackout is no stranger to Washington, giving more than $1 million to Republicans and Democrats in the last election and counting a top executive among President Bush's fund-raisers.

Roughly 70 percent of the donations from FirstEnergy and its employees to the national parties and congressional candidates in the last election season went to Republicans, figures compiled by the nonpartisan Center for Responsive Politics show.

Company officials are also active in the 2004 election. FirstEnergy chief executive H. Peter Burg helped organize a June 30 fund-raiser headlined by Vice President Dick Cheney in Akron, Ohio, which brought in $600,000 for the Bush-Cheney re-election effort.

Daily Kos is not surprised by the facts, just that somebody wrote about it.

According to OpenSecrets.org, FirstEnergy was number 6 on the list of electric utilities in contributions through its PAC and employees. But these folks gave some of the money to Democrats, don't forget -- hey, they ain't stupid. According to OpenSecrets, the company's largest soft money contributions in the 2002 cycle were to the DCCC (Democratic Congressional Campaign Committee) and the DSCC (Democratic Senatorial Campaign Committee).

Fair and Balanced PAC seeks to recall Bush

I laughed out loud when I saw this story.

AP reports,

A new committee called the Fair and Balanced PAC plans to launch its www.bushrecall.org Web site Thursday. The PAC's founders include Joe Lockhart, a press secretary to former President Clinton, and Mike Lux, a Democratic political consultant.

The Constitution provides no way to recall a president through a ballot initiative, as California voters have a chance to do to Democrat Gray Davis in October.

Instead, the PAC will work to defeat Bush in next year's election, building lists of supporters through a petition drive and raising money to run ads against the Republican, he said.

Allegheny County to post campaign reports on Internet

The Pittsburgh Post-Gazette reports,

County Council unanimously approved an ordinance last night that will give Internet users access to a database of campaign contributions and expenditures.

Council President Rick Schwartz's campaign finance bill does not require candidates to file their reports electronically. But those reports that are filed electronically will be posted on the county's Web site, effective April 1, 2005.

By Jan. 1, 2007, all reports will be posted on the site, regardless of whether candidates file them electronically or on paper.

(Disclosure: I have represented Schwartz and several other Democrats on the County Council in redistricting litigation.)

Texas seeks Section 5 preclearance of 2/3 rule change

In response to the suit filed in federal court in Laredo by the Texas, the state has requested preclearance for the rule change (dropping the usual 2/3 requirement for consideration of a bill in the Senate), according to the Austin American Statesman and the Houston Chronicle.

KERA is reporting that the Texas 11 have amended their suit to seek a ruling on whether the officers of the Senate or law enforcement can arrest them if they return to Texas.

Burnt Orange on Poltical State Report has a long post on how GOP Senator Ratliffe may have triggered the decision by the Lt. Gov. to drop the 2/3 rule.

If anyone has a copy of the amendment, email it to me.

Relief denied in punch card suit

US District Judge Stephen V. Wilson has denied a TRO and preliminary injunction in
Southwest Voter Registration Education Project v Shelley. The Court held against the plaintiffs on res judicata, laches, and substantive issues.

Here is the AP story.

Suit threatened over Prop. 54 donors

The Sacremento Bee reports Prop. 54 foes may sue over donors:

Pressing for disclosure of individual contributors to Ward Connerly's nonprofit group, which is largely bankrolling Proposition 54, six advocacy groups notified the Fair Political Practices Commission on Tuesday that they intend to sue unless the agency takes action. By law, the FPPC has 120 days to respond to the request by California Common Cause, the League of Women Voters of California, the Mexican American Legal Defense and Educational Fund, the Greenlining Institute, Californians for Justice and the Lawyers' Committee for Civil Rights.

Because voters are scheduled to cast ballots Oct. 7 on Proposition 54, which would restrict collection of race-based data by state and local government, the advocacy groups urged the FPPC to order the immediate release of names of donors to Connerly's American Civil Rights Coalition.

Ohio may re-redistrict

Not satisfied with the lines the Republican-controlled legislature drew 2 years ago, the Republicans in the Ohio legislature want to re-redistrict, according to the Washington Post.

August 19, 2003

National Committee for Tobacco Free Kids requests AO

FECA contains a prohibition on the use of contribution lists filed with the FEC by candidates and committees for "the purpose of soliciting contributions." The National Committee for Tobacco Free Kids has requested an Advisory Opinion about this provision. The Committee wishes to know if it can use contribution lists filed with the FEC to send informational mailings to persons on the lists. The initial communication would not include a request for a contribution, but subsequent communications might (if the person mailed back a card saying he or she wished to receive more information).

Bush loves bloggers; Dean may opt-out of public financing

The Washington Post has an article today with the news that Bush's new website will offer blogs the option to "get the latest campaign headlines and inside scoop posted instantly to your site through a live news feed from GeorgeWBush.com!"

The second part of the article quotes Howard Dean as saying he will stay with the public financing system. "Could we change our mind? Sure," Dean said. That indication of flexibility has earned Dean a stern talking-to by the Post's editorial.

OK, no more Mr. Nice Guy

In addition to the "you can't arrest us" suit and the suit alleging a violation of the Voting Rights Act, the Texas 11 have threatened another, according to the Dallas Morning News:

Absent Senate Democrats issued an ultimatum Monday to their Republican colleagues in Austin: Rescind the fines and other sanctions by Tuesday or face legal action.

The Houston Chronicle explains that it may be a criminal complaint:

The Democrats gave the Senate until 3 p.m. today to lift the sanctions.

Otherwise they threatened to take action under sections of the state Penal Code dealing with abuse of official capacity and official oppression, crimes that for some violations carry felony penalties including prison time.

The senators declined to say how they would present criminal complaints to a prosecutor or grand jury.

Albany County NY redistricting delays primary

Albany Times Union reports,

Primary elections for the Albany County Legislature cannot take place Sept. 9 with the county's other primaries because a federal judge has ruled that the county's current legislative map shortchanges minority voters and must be replaced.

The federal court has set a hearing for the day before the primary to consider the approval of a new plan. But the new plan is not a sure thing:

The new plan now moving forward in the County Legislature includes four minority districts, but NAACP President Anne Pope and Arbor Hill Concerned Citizens President Aaron Mair contend that it continues to dilute minority voting strength and fracture minority communities in at least two of those districts.

If that plan is presented to Homer, Pope said Monday, it is likely that those involved in the lawsuit will object. Mitchell Karlan of New York City law firm Gibson Dunn & Crutcher, one of the lawyers representing those who filed the lawsuit, said the group will be ready to participate in the Sept. 8 hearing.

"If we believe the new plan fails to solve the problems we complained about originally, we will be back in court, with witnesses if necessary," Karlan said.

August 18, 2003

Arguments in the punch-card suit

Washington Post reports, Court Hears Arguments For Delaying Election.

A federal judge said today he would rule by Wednesday on whether to postpone the recall election against Gov. Gray Davis (D) -- a move sought by Latino and black civil rights groups here that say the use of antiquated punch-card voting machines will recreate a Florida-style electoral fiasco.

U.S. District Judge Stephen V. Wilson said in court that postponing "this extraordinary election" required convincing evidence that the possible harm to some voters forced to rely on punch-card ballots outweighed the rights of all Californians to proceed with the historic recall.

DOJ approves California recall election

AP reports, "The U.S. Justice Department on Monday cleared the Oct. 7 election to recall Gov. Gray Davis."

(Thanks to Jeff Wice for the tip.)

Texas 11 roundup (no, just a story roundup)


\Charles Kuffner and The Gunther Concept at Political State Report: straight from the trenches have good summaries of the stuff happening over the weekend about the re-redistricting standoff in Texas.

Texas 11 file motion for preliminary injuction

The Texas 11 filed a suit under Section 5 of the Voting Rights Act about a week ago. They have now filed a motion for preliminary injunction and a memorandum in support.

Section 5 of the Voting Rights Act requires that states "preclear" any changes in election-related procedures before putting them into effect. The Texas 11 argue that Texas has violated Section 5 by making two procedural changes:

The State of Texas has never in its history undertaken congressional redistricting in mid-decade, absent a court order to do so, or upon a finding that its congressional districts are unconstitutional or unlawful. The State of Texas and these defendants are exercising their discretion to do so now, and to do so without having first obtained the necessary preclearance approval under the Voting Rights Act.

Further, it has been a long-standing tradition of the Texas Senate to require that a measure receive support of a supermajority (2/3) of the Senate before the full Senate will consider such legislation. The Texas Senate has used this practice or procedure, known widely as “the 2/3 Rule”, with one exception, in each occasion that it has convened during the last thirty years to enact or administer congressional redistricting legislation. In the last four decades, for example, the Texas Legislature has considered the issue of congressional redistricting in nine sessions of the legislature: the 1971 regular session, the 1981 regular session; the 1981 special session; the 1991 regular session; the 1991 special session; the 1997 regular session; the 2001 regular session; the 2003 regular session; and the 2003 first special session. Each time, with the exception of the 1981 session, the 2/3 Rule has been in place. See Exhibit 16 (Declaration of Brian Graham, attached to plaintiffs’ motion for a preliminary injunction).

The 2/3 Rule is an important protection. It permits at least a third of the senators to band together to block consideration of any bill being taken up in the Texas Senate.

August 17, 2003

Scruggs' explanation for the Diaz loan

The Jackson (MS) Clarion-Ledger reports that Dickie Scruggs backed an $80,000 loan to state Supreme Court Justice Oliver Diaz Jr., not to influence Diaz, but to protect him:

In 2000, the U.S. Chamber of Commerce funneled about $1 million into advertisements supporting candidates, never disclosing where the money came from or reporting the contributions, prompting Secretary of State Eric Clark and Attorney General Mike Moore to sue.

The 5th U.S. Circuit Court of Appeals sided with the chamber, saying because the advertisements didn't say "vote for" a particular candidate, the ads weren't political and no disclosure was required.

"It was the first time a judge had encountered a media blitz by unknown parties. Frankly, it incensed me," Scruggs said. "It was a political race, and we were trying to prevent the Chamber of Commerce from buying the court."

So there's the distinction -- and probably the reason Scruggs was not indicted. Or maybe, it was that Scruggs cooperated with the prosecutors and cut a deal early. We will see when the trial comes along.

The AP has a similar story today, including this from the president of BIPEC (which somehow stands for Business and Industry Political Action Committee):

Wilcox said BIPEC and other politically active business groups have no qualms about informing voters if a candidate is being supported by the trial lawyers.

"That's part of the political process," he said. "The major political forces not only in Mississippi but in the country, tend to be the trial lawyers and their friends on the one side and the business and professional community on the other," Wilcox said. "What is not always clear to the public is where does the candidate fit into that picture."

Wilcox said corporations are limited in what they give candidates in Mississippi and turn to political action committees and political parties to get their voice to the voters. He said trial lawyers can dig into their personal wealth without limitation to support their candidates.

It's the money, stupid

The Washington Post carries the following letter, "No Fault of Redistricting," today:

The Aug. 11 front-page story "Democrats Unlikely to Retake House" implied that congressional redistricting dramatically reduced the number of competitive seats in the House in 2002. This is not true.

Based on presidential voting patterns, the number of potentially competitive House districts (those in which the Democratic share of the major party vote was between 45 percent and 55 percent) was almost unchanged: 118 before redistricting, 114 after redistricting.

Blaming redistricting for the lack of competition in House elections is an oversimplification. A more important problem is the huge financial advantage enjoyed by incumbents, which contributed to a record 99 percent reelection rate in 2002.

ALAN ABRAMOWITZ

Atlanta

The significance of the Texas 11

The Texas 11 are still in New Mexico. The Austin American Statesman has a lightweight piece on what the Senators do all day -- iron, exercise, meet, diet, change hotels.

Why are these Democrats willing to do this when others around the country has rolled over when Republicans pushed through a gerrymandered redistricting? I think for three reasons: the status quo can remain; the state Constitution allows them to; and their constituents will not punish them.

First, in mediation, there is a concept called BATNA -- best alternative to a negotiated settlement. In redistricting that takes place immediately after the Census figures are released, the alternative to a legislatively enacted plan is one adopted by a court. In the present situation, the current plan will remain in effect, so the Democrats certainly know what they are fighting for.

Second, the Texas Constitution sets a high number as a quorum, allowing a minority to break the quorum.

Third, the Democrats represent districts that are unlikely to be displeased by their efforts. As the San Antonio Express explains:

"For the first time in history," said Sen. Eliot Shapleigh of El Paso, "the minority 11 reflect a constitutionally protected class of voters."

All but one of the Democratic holdouts represent districts that are at least 61 percent minority, with three of them — Sens. Shapleigh, Royce West of Dallas and Eddie Lucio of Brownsville — in districts that are 79 percent minority or more. Sen. Gonzalo Barrientos of Austin, a Hispanic lawmaker, is the only one whose district is majority Anglo.

Each of the senators still at the Capitol serves a district that's 40 percent minority or less. Eleven of those districts are 28 percent minority or less, bottomed out by that of Sen. Craig Estes of Abilene at 16 percent.

Sen. Mario Gallegos of Houston said the possible minority gains look good on paper but said "the end result is a wash" because any map will dilute minority influence in other districts.

Republican Sen. Todd Staples of Palestine countered that the map endorsed by the Senate panel reduces minority influence in only two of nine districts now represented by Anglo Democrats.

Bottom line: the Democrats say "no deal" to gaining minority-dominant seats at the cost of Anglo Democratic incumbents whose voting records generally align with the League of United Latin American Citizens and the National Association for the Advancement of Colored People.

"How stupid do they think we are?" asked Sen. Rodney Ellis of Houston.

"In the not too distant future, the districts we represent will be much more reflective of the people of Texas than those of our colleagues," Ellis said. "At some point, the minorities of Texas will vote in numbers that reflect their percentage of the population."

The Houston Chronicle deals with the national and long-term impact of this fight:

And with each passing day, Democrats make it more difficult for Republicans to pass all the legal hurdles necessary before a new congressional redistricting plan can be used in the 2004 elections.

"The clock is ticking. The end game is: At what point does the clock run out on the Republicans' ability to pass a redistricting plan and have it in place for the next elections?" said Jeff Montgomery, a Democratic pollster unaffiliated with the boycotting Democrats.

Once a redistricting bill is approved by the Legislature, it must be reviewed by the U.S. Justice Department under the federal Voting Rights Act, a process that normally takes 60-90 days. The legislation also is subject to federal lawsuits under the act. When state legislative districts were redrawn in 2001, four months elapsed between the maps' adoption by the Legislative Redistricting Board and final federal court approval.

Democrats believe that if they can delay the close of this process beyond the Dec. 1 start of primary election candidate filing, a federal court will be unlikely to order the new plan used in 2004. That also will give them the chance to fight the redistricting plan all the way to the U.S. Supreme Court before the 2006 elections.

In an effort to thwart that Democratic game plan, House redistricting sponsor Rep. Phil King, R-Weatherford, already has filed legislation to delay the primary filing deadline past Jan. 2. Some Republicans also are talking about moving the congressional primary past its scheduled date in March 2004.

Jim Ellis, a political aide to U.S. House Majority Leader Tom DeLay, R-Sugar Land, said even if the Democratic strategy succeeded for 2004, the Republicans would win a victory for future decades. Noting that the GOP House majority now has a margin of just 12 seats, Ellis said the Republicans want to use gains in Texas as part of a plan to build a 30-40 seat majority such as the one that allowed Democrats to control the House for almost four decades.

"When you've got those kinds of margins, it's going to take a national tide to sweep you out," Ellis said. "We're looking to build a long-term majority."

August 15, 2003

"WE LEAD" requests AO

WE LEAD (Women Engaged in Leadership, Education, and Action in Democracy) has asked the FEC for an Advisory Opinion that it may accept contributions for the "presumptive nominee" of the Democratic Party (the candidate with enough pledged delegates to win) and turn the money over to the primary committee of the candidate just before the Democratic Convention.

Presidential candidate websites compared

AP has a quick review of the Web sites of Dean, other candidates.

Texas GOP Senators punish the Texas 11 even more

Depending on your point of view, the Texas Senate majority is either getting petty or serious. The Austin American Statesman reports,

A majority of the Senate's Republican members voted today to take away privileges — such as Capitol parking, cell-phone service and meeting space — from their boycotting Democratic colleagues and those senators' staffers if the 11 Democrats in New Mexico don't return and pay the fines assessed against them for leaving the state.

Along with cutting off Capitol parking and meeting space, the Senate Republicans said if the fines are not paid, the absent Democrats' staff would lose parking and access to the Senate floor. The Republicans also voted to eliminate all purchasing, travel, subscriptions, printing and cell phones for the absent Democrats and to limit their postage for constituent communication to $200 a month.

The San Antonio Express adds,

The Republicans didn't act on addtional sanctions listed in an email sent to Senate staffers under the heading "discussed but not yet acted on."

Those include denying floor and voting privileges to the senators, denying requests to renew offices in the senators' home districts, closing down the district and Capitol offices and cutting off office phones, staff salaries and computer access.

But San Antonio Sen. Leticia Van de Putte, who led the Democrat walkout, said penalties would "not deter our resolve. In fact, it only makes us stronger."

She then joked about the decision, asking: "When we come back, does this mean we won't have water fountains and don't get to use the bathrooms?"

The Republicans are discussing contingency plans, according to the Statesman:

The state's Republican leadership is looking into the possibility of postponing the March congressional primaries if the boycotting Democratic senators continue to delay the GOP effort to draw new districts.

In Albuquerque, the boycotting state Democrats — who have scoffed at Senate-imposed fines that kicked in Thursday — were equally dismissive about postponed primaries.

Sen. Gonzalo Barrientos, D-Austin, said such a move is not likely to succeed because a date change would have to be passed by the House and Senate.

"They don't have a quorum in the Texas Senate," Barrientos said.

California recall suits

A lot of stuff happened today in California on the recal front (while I was [a] trying to represent my clients and [b] blocked by Earthlink's unannounced change of servers for my blog). Take a look at the following blogs for more details: http://limitlogic.blogspot.com/2003_08_01_limitlogic_archive.html#106099310332540947, Election Law, and California Insider. Each of them has multiple posts on today's developments, so scroll down after you get to each.

Colorado Dems move to remand

I recently posted a news story about the Republicans removing the Democrats' case to federal court because the Dems had added two federal claims to their suit. The Democrats have now filed their motion to remand (in the original WordPerfect format or in my conversion to Word).

August 14, 2003

Politics in Margaritaville

I read this headline, Buffett Joins Schwarzenegger Campaign as Adviser, in the Washington Post and thought it was referring to Jimmy Buffett. I could support the Jimmy Buffett ticket: Cheese Burgers, Krispy Kremes, warm sand, and good music -- even if some denegrate it as "Geezer Rock."

I would have been surprised if Jimmy had jumped from Bob Graham to Arnold.

August 13, 2003

four Horsemen of Campaign Finance to Ride Again

The Washington Post reports

The nation's campaign finance law overhaulers are at work again. Now they are working on legislation to revamp the public financing system for presidential elections, calling for more funding and higher spending limits for primary campaigns. They hope to have a new system in place for the 2008 elections.

Details are being worked out, but the four lawmakers -- Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) and Reps. Christopher Shays (R-Conn.) and Martin T. Meehan (D-Mass.) -- have said they hope to introduce the bill before Congress adjourns this fall.

Texas, oh well, oh hell

The GOP tried to stir up the Feds against the Texas 11 today, according to the San Antonio Express. The GOP complained to the Comptroller of the Currency that the Dems had flown to New Mexico on a jet owned by a national bank. The GOP claims that was a no-no (to use a technical term). The Dems say it was not a campaign contribution, so no harm no foul. The Comptroller said that office would not investigate; go the Federal Election Commission. Since this "contribution" was not related to federal elections, I doubt the FEC will do anything. This should blow over in a day.

The Governor says he will call as many special sessions as needed to get redistricting passed, according to the AP.

UPDATE: Kuffner, as usual, has more details and more local color than I do.

Suit to require IRV in San Francisco

Despite an initiative requiring the use of Instant Runoff Voting in city elections, San Francisco will not be using IRV in this year's city election. On Monday, several organizations filed suit. As AP describes,

A coalition of citizen groups filed a lawsuit Monday against San Francisco elections officials for not implementing an instant runoff voting system for the November elections.

The lawsuit alleges the city's failure to put an instant runoff system into place this fall violates a charter amendment adopted by San Francisco voters in March 2002 that allowed them to cast ballots for their top three choices in the races for mayor, district attorney and sheriff.

The plaintiffs, who include the San Francisco Labor Council, AFL-CIO, California PIRG and the Center for Voting and Democracy, are seeking a judicial order to stop the Elections Commission and director of elections from proceeding with a traditional December runoff.

But city officials said they had no choice after the secretary of state and a state panel that oversees elections rejected their proposal for putting the new system into place.

The San Francisco Chronicle tells us what happened in court:

A San Francisco Superior Court judge on Monday rejected a request to issue an immediate order that would force the city to start putting an instant runoff voting system in place for the Nov. 4 mayoral election.

Instead, Judge James Warren scheduled an Aug. 20 court date to take up the matter.

The Center for Voting and Democracy has provided me with a copy of the
complaint and the declaration of Steven Hill.

McCarty fined $2,000

AP reports, "Florida's Elections Commission fined Palm Beach County Commissioner Mary McCarty $2,000 on Wednesday for election law violations."

UPDATE: more details in this AP story.

Florida Elections Commission decides on McCarty fine today

The Sun-Sentinel reports on the possible $450,000 fine that could be imposed today on Palm Beach County Commissioner Mary McCarty for signing a false report on the finances of the "Committee to Take Back Our Judiciary."

Thanks to Alfredo Garcia for the link.

August 12, 2003

Escalating fines for the Texas 11

The Dallas Morning News has more details on the resolution to fine the absent Democrats:

Democrats will have 48 hours to come back to the Capitol. The fines start at $1,000 per senator on Thursday, increase to $2,000 on Friday, $4,000 on Saturday and then $5,000 per day until the end of the special session on Aug. 26. That would amount to $57,000 per senator by session's conclusion.

Sen. Jane Nelson, R-Lewisville, offered the resolution to impose the penalties, stating that the fines must be paid out of each senator's personal funds.

Asked how the Republicans plan to enforce the fines on balking Democrats, Mr. Dewhurst said the sanctions would be decided this week. Under consideration are actions to cut the office budgets of each senator and to temporarily revoke the right to be on the Senate floor when the body is in session.

OK, they fine the Dems till they come back and then revoke their right to be on the floor. How does that enforce the quorum call? Why don't they just declare that Democratic votes don't count whenever the Governor declares that he really, really wants something passed?

Will Gov. Riley make a deal on ex-felon voting?

Kyle Whitmire's column in the current issue of Birmingham Weekly has this suggestion for Gov. Bob Riley on how to kiss and make up with the Legislative Black Caucus:

An hour or two later, everyone [the Black Caucus and the Governor] walks outside for the big announcement: All non-violent felons who have served their complete sentence and proven their rehabilitation will have their voting rights restored. The subtle distinction here is between "punished" and "rehabilitated."

Felons will have two ways for offering proof. First, they can hold down a job for one year. Or, since the economy is in the tank and that dubious question on job applications doesn't do them any favors, felons can also serve 200 hours of community service as a way to make amends.

(Unfortunately, you can't read the whole article online. Just trust my typing.)

Texas Supreme Court order denying Gov's petition

This Advisory from the Texas Supreme Court contains the text of the order denying Gov. Perry's petition for writ of mandamus compelling the Texas 11 to return. At the foot of the Advisory are (1) the Governor and lieutenant governor’s petition; (2) their Motion seeking an expedited hearing; and (3) Respondent Senators' Response.

Thanks to Howard Bashman for the link.

Public Financing Rules published

The FEC has published in the Federal Register the final rules on public financing of presidential candidates and nominating conventions.

FEC to issue NPRM on candidate travel

On the agenda for Thursday's FEC meeting is a Notice of Proposed Rulemaking on reimbursement for candidate travel.

FEC to adopt new policy on deposition transcripts

On the FEC agenda for Thursday's meeting is a proposed policy statement on deposition transcripts in nonpublic investigations. According to The Hill, this is a Sign of Things To Come.

Candidates and witnesses deposed by the FEC’s general counsel will now get access to copies of their depositions rather than, as previously, being forced to read the transcripts at the agency and being banned from taking notes.

Commissioners hailed that minor step as an important sign that the agency is serious about reviewing and changing practices that have chafed for years.

Va. GOP chairman pleads guilty, resigns

The Washington Post reports

Virginia Republican Chairman Gary R. Thomson pleaded guilty in federal court today to a misdemeanor for his role in the GOP eavesdropping scandal that rocked state political circles during the past 17 months. Thomson was fined $2,000 and promptly resigned his party post.

Under a plea agreement reached with federal prosecutors and ratified by Dohnal, Thomson will be on supervised probation for two years. Thomson faced a maximum sentence of six months in jail and a $5,000 fine for pleading guilty to the misdemeanor of "aiding and abetting" the dissemination of the contents of an intercepted Democratic Party conference call in March 2002.

Last month, former Republican Party executive director Edmund A. Matricardi III was fined $5,000 and sentenced to three years probation after pleading guilty to one felony charge of listening in on the Democratic call.

In court today, Thomson's attorney, Howard C. Vick Jr., told Dohnal that on the morning after the intercepted call, Matricardi showed Thomson his notes of what Democrats had said about a politically important redistricting lawsuit. Matricardi had secretly recorded the call.

The AP story contains this nugget I had not heard before:

The investigation began after officials in the office of Attorney General Jerry W. Kilgore, a Republican, alerted the State Police to the transcripts.

Senate to fine Texas 11

KWTX-TV has a short report that the Texas Senate has voted to fine each of the Texas 11 $1,000 per day for each day of absence.

And the Inspector General of the US Department of Justice released a report today, "An Investigation of the Department of Justice’s Actions in Connection with the Search for Absent Texas Legislators." Nothing much wrong, the report says.

Alaska soft money case

The 9th Circuit has released its opinion in Jacobus v. State of Alaska. Here is the holding:

Party activists Kenneth P. Jacobus, Wayne Ross, and Scott A. Kohlhaas filed suit under 42 U.S.C. § 1983 to challenge the constitutionality of the new limitations on contributions to political parties. The district court ruled that Alaska’s $5,000 limit on individual contributions and its ban on corporate and labor union contributions were unconstitutional insofar as they applied to contributions that were not for the purpose of influencing the nomination or election of particular candidates (soft money). The district court also held unconstitutional Alaska’s $5,000 limit on the value of professional services that individuals might volunteer to political parties. Alaska appeals the district court’s grant of summary judgment against it.

We hold that these issues are still justiciable, despite recent changes in Alaska law, and we reverse the rulings of the district court holding Alaska’s limitations on soft money unconstitutional. As the Supreme Court’s recent opinion in FEC v. Colorado Republican Federal Campaign Committee (Colorado Republican II), 533 U.S. 431 (2001), suggests, soft money presents a danger of corruption and the appearance of corruption because political parties trade influence and access to candidates for soft money dollars, and candidates trade influence and access for the indirect benefits that they receive from soft money contributions to their party. In addition, candidates’ heavy involvement in soft money fundraising and the creation of “tallying”2 and other methods for tracking soft money contributions secured by particular candidates indicate that soft money is indeed used to circumvent hard money contribution limits. Because the limitations on soft money contributions imposed here reflect Alaska’s concern about these same dangers, we uphold the limits on soft money contributions.

We affirm, however, the district court’s ruling striking down as unconstitutional Alaska’s limit on the value of volunteer professional services that an individual may donate to a political party. By including donations of professional services in the definition of contribution that is subjected to the $5,000 limit, Alaska restricted First Amendment association rights in a way that was different in kind, not just different in degree, from the contribution limits that the Supreme Court found constitutional in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). Although this provision does not operate as an absolute bar to an individual’s association with a party through volunteering, we nonetheless hold that Alaska failed to demonstrate that there is an actual danger or appearance of corruption if contributions of volunteer professional services go unrestricted.

Proposed standards for Utah redistricting

The Salt Lake Tribune reports

Rather than bang their heads against a legislative concrete wall, members of a state constitutional review committee have given up on establishing an independent redistricting commission.

But they haven't entirely abandoned reforming Utah's controversial process for redrawing the boundaries of congressional and legislative districts, which takes place every 10 years after a new census.

Instead, the lawyers, lawmakers and judges on the Constitutional Revision Commission settled Friday on three basic criteria that could guide political mapmakers eight years from now: Districts should be contiguous, compact and drawn recognizing the "geographical integrity" of counties, cities, towns and "geographic regions."

Conn. lawyer arrested for absentee voter fraud

AP reports

A former state representative was arrested Monday morning and charged with violating absentee ballot laws during his failed 2002 primary.

Horton faces four counts of unlawful possession of another's absentee ballot and three counts of being present while an absentee ballot is executed. The charges are class D felonies, each punishable by up to five years in prison and a fine of up to $5,000.

The two-term former legislator was also charged with one misdemeanor count of making a false statement to the state Elections Enforcement Commission. He faces up to one year in jail and a fine of up to $2,000 on that count.

According to the arrest warrant, Horton took possession of completed absentee ballots during the September 2002 primary and was present when those ballots were being filled out. Horton ultimately lost the race to Rep. Kenneth Green, D-Hartford. The two incumbents faced one another because of redistricting in the 1st House District.

The Hartford Courant has more details.

Texas Senate may use self-help against the 11

San Antonio Express reports

The all-GOP Texas Supreme Court refused to order the return of 11 Democratic senators who fled Texas to stop Republican-led congressional redistricting, but Lt. Gov. David Dewhurst said he expects senators remaining here to consider ways today to force their colleagues to come back. Dewhurst wasn't specific. A source said among measures to be considered will be fines against the absent senators, who are holding out in an Albuquerque hotel.

"Fine me," Sen. Leticia Van de Putte said. "Put me in cuffs. I'm representing my constituents regardless."

The Houston Chronicle has a similar report with the following reactions to the Supreme Court ruling:

"I am very disappointed that the Supreme Court did not resolve this pending constitutional crisis," Perry said. "The gravity of the situation is obvious. I believe a court resolution of this issue is critical to the future of our democratic process."

"The Republicans took their best shot. They picked the venue most likely to side with them, and the court said no," said Senate Democratic Caucus Chair Leticia Van de Putte, D-San Antonio. "The Texas Supreme Court acted with integrity."

The Dallas Morning News has more details on the Senate majority's possible actions:

In a statement, Mr. Dewhurst greeted Monday's ruling by the Supreme Court with disappointment, but he suggested the action means that the Senate needs to deal with its own absent members. He set the stage for remaining senators to take "appropriate measures" against the quorum-breakers Tuesday. "The court's denial of our writ clarifies that the issue is a legislative matter that only the Legislature can and should resolve," Mr. Dewhurst said.

One GOP insider said that action would probably take the form of fines, based on Senate rules and a part of the state Constitution that allows remaining members of either house to "compel the attendance of absent members, in such manner and under such penalties as" the lawmakers devise.

Such action apparently would break new political and legal ground. There's no historical precedent for such fines and no answer to how high they could be or how they would be enforced, according to the GOP insider.

Privacy Act collides with Georgia registration law

The 11th Circuit has released Schweir v. Cox. The plaintiffs were not allowed to register to vote without providing their Social Security Numbers(ssns), but they contended that the use of the ssn was a violation of the Privacy Act. Here is the conclusion of the Court of Appeals:

In summary, we hold that the rights conferred by the Privacy Act may be vindicated by a private suit under § 1983. We also hold that Congress did not exceed its authority in enacting the Privacy Act.

We remand to the district court the issues of whether Georgia qualifies for the “grandfather” exception of section 7(a)(2)(B) of the Privacy Act and whether Georgia’s Voter Registration Form complies with the notice requirements of section 7(b) of the Privacy Act.

We hold that the district court erred in finding that section 1971 of the Voting Rights Act does not provide for enforcement by a private right of action under § 1983. We remand to the district court the issue of whether the disclosure of a potential voter’s ssn is “material” in determining whether he or she is qualified to vote under Georgia law for purposes of section 1971 of the Voting Rights Act.

August 11, 2003

What, me worry?

The Washington Post has this article on the recent charges that computer-based voting systems can be hacked.

My earlier post on the study is here. You can find the Diebold rebuttal here (27 pages), here (2 pages), and here (3 pages).

Flash: Dems to lose the House

The Washington Post tells us, Democrats Unlikely To Retake House, in an article chock full of imagery:

"need a wave"

"have to draw a royal flush"

"tilling the same ground"

Decision in Hall v Virginia

Here is the decision of the US District Court for the Eastern District of Virginia in Hall v. Virginia. The plaintiffs alleged that the change in the 4th Congressional District of Virginia made it impossible for the black voters to have an effective voice in choosing the member of Congress. The Court dismissed the complaint.

Texas 11 file Section 5 suit

The Texas 11 have filed a complaint in US District Court for the Southern District of Texas alleging violations of Sections 2 and 5 of the Voting Rights Act. The complaint alleges in five counts ...

1. The abandonment of the 2/3 rule must be precleared under Section 5.

2. The abandonment of the 2/3 rule violates Section 2 of the VRA.

3. The abandonment of the 2/3 rule violates the 14th and 15th amendments.

4. The suit filed by the Gov. and Lt. Gov. in the Texas Supreme Court to force the 11 to return consitutes the "use [of] the judicial machinery of the State of Texas to solve a political and legislative problem is motivated by a racially discriminatory purpose and will have a racially discriminatory effect" in violation of the 1st, 14th, and 15th Amendments.

AP has the story on this and the related development that the Texas Supreme Court refused to get involved in the Perry-Dewhurst request.

Partnership for America's Families website

The Partnership for America's Families ("founded in 2003 to increase progressive voter participation in the electoral process") has opened its website. (Thanks to Lynn for the tip.)

August 10, 2003

Voting for prizes

The Arizona Republic reports that Mark Osterloh is pushing

two controversial initiative drives that could increase voter turnout (and fortunes) and radically increase state education funding, but possibly at the expense of other state services. Osterloh's Voter Reward Initiative would give one randomly drawn voter a $1 million lottery prize, including one in the 2004 election if the initiative passed. Later, voters would get two chances at the prize, one in the primary and one in the general, a carrot that Osterloh predicts will push voter turnout past 90 percent.

The second initiative would require lawmakers to fund education at the national average. Arizona ranks 49th in per pupil funding, so the initiative would require $2 billion at a time when lawmakers are possibly facing another $1 billion deficit.

Soros funding group to defeat Bush

AP reports George Soros has pledged $10 million to America Coming Together, a group that

plans a $75 million effort to defeat Bush and "elect progressive officials at every level in 2004," targeting Arizona, Arkansas, Florida, Iowa, Maine, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Mexico, Ohio, Oregon, Pennsylvania, Washington, West Virginia and Wisconsin.

Tom Edsall in the Washington Post explains that ACT will be running a "get out the vote" effort.

The organization, Americans Coming Together (ACT), will conduct "a massive get-out-the-vote operation that we think will defeat George W. Bush in 2004," said Ellen Malcolm, the president of EMILY's List, who will become ACT's president.

ACT already has commitments for more than $30 million, Malcolm and others said, including $10 million from Soros, $12 million from six other philanthropists, and about $8 million from unions, including the Service Employees International Union.

The New York Times also covers this story:

Political experts say the feelings of Mr. Bush's opponents are so strong that the early organizing efforts against him appear to be the most fervent in decades.

"I've never seen anything this early or this intense," said David Loebsack, a professor of political science at Cornell College in Mount Vernon, Iowa.

The committee founders said they intended to create grass-roots organizations in states they view as crucial to the election, including Michigan and Pennsylvania, which Al Gore won in 2000, and Ohio and Florida, won by Mr. Bush.

Mr. Rosenthal, former political director of the A.F.L.-C.I.O., said specific goals would be developed for each state, like increasing the share of the African-American vote in Ohio by two percentage points over the 9 percent share in 2000.

(Thanks to The Scrum for the link to the NYT story.)

August 9, 2003

Texas demonstration against re-redistricting

AP reports Thousands protest redistricting in Austin:

Thousands of sweat-drenched Texans braved stifling summer heat today to rally on the Capitol lawn in protest of a Republican push to redraw state congressional lines in their favor.

Despite the muggy temperatures, rowdy protesters -- some who came in busloads -- cheered on family members speaking in support of the 11 Democrats holed up in a New Mexico hotel to break the Senate's quorum.

August 8, 2003

Virginia 4th CD redistricting suit dismissed

The Virginia-Pilot reports

A federal judge has thrown out a lawsuit that challenged the 2001 Republican-drawn election boundary of the 4th Congressional District.

The suit claimed that the voting strength of blacks in the district was diminished when the new lines were drawn following the 2000 census.

U.S. District Judge Henry C. Morgan Jr. ruled that the nine voters who sued failed to show that blacks went from being a majority in the district to a minority, a standard set by the U.S. Supreme Court for determining that a redistricting was racially motivated.

The voters argued that state Sen. L. Louise Lucas, D-Portsmouth, was forced out of the 2002 congressional race after a ``critical number of African-American voters'' were removed from the district. Republican J. Randy Forbes won that race.

Blacks accounted for 39.4 percent of registered voters in the district before redistricting and 33.6 percent after. The district stretches from Chesapeake and Portsmouth to the area north and west of Richmond.

Texas: "sham" negotiations

The Dallas Morning News reports that the Dems in exile claim that the negotiations with the Republicans were a sham by the GOP so they could say they had negoiated before suing in the Supreme Court to require the Dems to return.

FEC to consider changes to rules on contributions and multi-candidate committees

The FEC General Counsel has circulated proposed regulations on multi-candidate committee status, annual contributions by persons other than multi-candidate committeess to national party committees, and bienniel contributions limits for individuals.

Draft AO's

The General Counsel of the FEC has circulated the following draft advisory opinions:

to the Democratic National Committee that it may sell used office furniture;

to Rep. Denise Majette that funds raised for her defense of a suit by former Rep. Cynthia McKinney's supporters are not "contributions" or "expenditures" subject to FECA;

to Providian National Bank approving its proposal to create affinity credit card programs with national party committees.

Re-redistricting in New Mexico

Luis at Political State Report reports on the idea of re-redistricting in New Mexico.

August 7, 2003

Texas: 2 suits filed

Charles Kuffner at Political State Report: straight from the trenches reports that the Dems have filed suit seeking to bar their arrest while the Gov. and Lt. Gov. have sued in the Supreme Court for a writ of mandamus ordering the Dems to return.

August 6, 2003

Diaz and others plead not guilty

The Biloxi Sun Herald reports

Mississippi Supreme Court Justice Oliver Diaz Jr., his ex-wife Jennifer, attorney Paul Minor and former judges Wes Teel and John Whitfield pleaded not guilty Wednesday to federal fraud and bribery charges.

My friend Rob McDuff is representing Justice Diaz.

The Jackson Clarion-Ledger has a slightly longer story.

Colorado Dems complain about move to federal court

The Rocky Mountain News reports that Democratic members of the Legislature are complaining that their lawyer (picked by the Republican majority) did not inform them that the notice of removal to federal court was being filed.

Light blogging till Sunday

I will be attending a legal conference for the next few days and may not be able to blog much -- or maybe I will if the conference gets boring, and I find a free wi-fi hotspot.

Texas, it just drags on

Charles Kuffner has the report at Political State Report.

California section 5 suit on recall date

The Lawyers' Committee for Civil Rights of the San Francisco Bay Area has filed suit in the US District Court for the Northern District of California on the failure of the Secretary of State to obtain preclearance for the date of the recall election. The Complaint in Word format is here. This is similar to the suit recently filed by MALDEF alleging that the Secretary of State has failed to preclear the date of the election on the (anti-)civil rights initiative.

Thanks to Brenda Wright for the document.

August 5, 2003

American Bankers Association request for AO

The American Bankers Association has filed a request for an advisory opinion

whether executives of member corporations are permitted to collect and forward contribution checks to the ABA BankPAC. This may include, but is not necessarily limited to, the executives manually collecting and forwarding the contribution checks themselves; using the member corporation's inter-office mail system to help collect the checks; and providing envelopes and postage in which contributors can send their contributions to ABA BankPAC.

The impetus for this Request is the two recent settlements with national banks for "facilitating contributions" by their executives and employees. See my earlier posts here and here on this subject.

Colorado redistricting briefs

Luis at Political State Report has a post on the briefs filed in the Colorado Supreme court action brought by the attorney general.

Nassau Co NY redistricting suit dismissed

Newsday reports

U.S. District Judge Denis Hurley has struck down a Republican challenge to Nassau County's legislative districts, three months before election day.

Republican residents of the county had sued on state and federal grounds, accusing county Democrats of creating an arbitrary and uneven legislative map that split towns and villages for political gain. But Hurley, in the July 31 ruling, said the plaintiffs fell shor of proving that the Democrats violated the equal protection clause of the 14th Amendment of the constitution.

Thanks to Jeff Wice (counsel for some defendants) for the tip and link.

Rhode Island shows Texas the way

Reed Witherby of Boston sent me the link to this bit of history. In 1924, the Republican majority in the Rhode Island Senate fled the state for 6 months to break a Democratic filibuster on the issue of calling a constitutional convention.

August 4, 2003

MALDEF sues to keep Connerly initiative off the recall ballot

MALDEF has filed suit in US district court for the Northern District of California charging that the decision of the Secretary of State to put the Ward Connerly initiative on the same ballot as the gubernatorial recall violates Section 5 of the Voting Rights Act. The Metropolitan News-Enterprise reports:

The Mexican American Legal Defense and Educational Fund contends voters in Monterey County-one of four California counties subject to federal preclearance rules-did not get their ballot pamphlets 100 days ahead of the election as required.

According to the complaint filed in the U.S. District Court for the Northern District of California, San Jose Division, voters in the Monterey area will have 57 days to review the pamphlet.

“It’s too short a time frame to digest the proposition and what it means,” said Victor Viramontes, a staff attorney at the group’s Los Angeles headquarters.

Viramontes told the METNEWS that, in MALDEF’s view, “any deviation” in the statutory time period is a change that is subject to the preclearance provisions of the Voting Rights Act. The case will have to be heard by a three-judge panel, Viramontes said, adding that MALDEF will be asking this week for an expedited hearing.

The text of the MALDEF complaint is here.

Ex-felon Voting Rights

The Civil Rights Journal, published by the U.S. Commission on Civil Rights, has an article on restoration of voting rights to ex-felons by Marc Mauer in the Winter 2002 issue.

Charles Rhyne, RIP

Let us now praise famous men.

Charles Rhyne died last week at the age of 91. While many of his accomplishments are detailed in the obituraries in the
Washington Post and the New York Times, the most important by my lights is Baker v. Carr. It is hard to imagine the way America (or certain parts of it) would look if Rhyne had not convince the Supreme Court that citizens had a right to sue for equality in apportionment of their legislatures.

In the early 80's Rhyne was hired by the City of Pensacola and Escambia County, Florida, to fight a lawsuit brought by Jim Blacksher, Larry Menefee, and me. One of Rhyne's associates or younger partners tried the case, but Rhyne argued the case in the Supreme Court. It was not his best argument.

He was also a long-time member of the board of the Lawyers' Committee for Civil Rights Under Law, for which I also give him great credit.

Dinner at Galileo

According to the Washington Post article, Influence by Volume,

Every other week or so for the past few years, customers at the expensive downtown Italian restaurant Galileo might have bumped into Freddie Mac's chief lobbyist, R. Mitchell Delk, having dinner with powerful Republican House members and other lobbyists.

Face time with politicians over dinner at fancy restaurants has long been a staple of lobbying in Washington, and expanding the dinners into fundraising events has become common, too. Some restaurants near Capitol Hill, such as LaColline or the Capital Grille on Pennsylvania Avenue, say it's a significant part of their business.

But Delk plays the game on a larger scale, both in his focus on Rep. Michael G. Oxley (R-Ohio), chairman of the House Financial Services committee, which oversees Freddie Mac, and in his unusual discount arrangement with Galileo, which charges him just $500 -- $25 a plate for a three-course dinner, wine, drink, tax and tip for up to 20 dinners.

He held at least 50 fundraising dinners over the past 21/2 years, mostly for Republican members of Oxley's committee or the House leadership. At least 20 advertised an appearance by Oxley.

Let me tell you, Galileo is a great restaurant. It is in the same building with the firm I practiced with in DC. We had a discount arrangement with the eatery, but I don't remember it being this steep.

Gray Davis files suit in California Supreme Court

Findlaw has Gov. Davis'petition for a writ of mandate to the Secretary of State to delay the recall election to the March primary and to allow Davis to run as a candidate in the second part of the recall election -- the successor election. Warning, this is 91-page PDF.

KGO-TV has the text of the Attorney General's responses to the first four suits filed in the Supreme Court (Davis' is the fifth).

Texas

The Texas Lawyer has an article dealing with "legal questions about how far the Legislature can go to compel attendance of absent members."

Meanwhile, the Dems continue their exile in New Mexico. But the name calling continued, as the Democratic Senators came up with a song.

The Daily Texan reports that Gov. Richardson of New Mexico is considering a re-redistricting to balance what the GOP is trying in Texas. Richardson must have forgotten that New Mexico has 3 seats (2 R's and 1 D), and Tom DeLay's plan is to change 5 or 6 seats in Texas. But New Mexico can do its part, I suppose.

The Austin American Statesman has editorialized that Gov. Perry and Lt. Gov. Dewhurst has shown a lack of leadership in pushing "the cynical and unnecessary redistricting bills."

The Dallas Morning News reports

Lt. Gov. David Dewhurst, widely praised by Democrats and Republicans for his smooth running of the Senate in the regular legislative session this year, has seen his bipartisan image tarnished in the bitter fight over which party should have the most congressional seats in Texas.

What was Pryor Hiding? (2)

In my earlier post, I argued that Bill Pryor might have violated Alabama's campaign finance law by soliciting funds for a group he helped to set up. Today, I ran across a more recent opinion, No. 2000-16, issued during Pryor's tenure as AG. It makes clear that the prohibition on raising funds more than a year before the primary applies to candidates for state office, not just legislators.

Candidates for state office and their principal campaign committees are limited with respect to the time period during which they can solicit and/or accept contributions. ALA. CODE §17-22A-7(b) (Supp. 1998). Political committees other than principal campaign committees, however, are not subject to this limitation. This Office has previously held that a political committee that makes contributions to or expenditures on behalf of a member of the Legislature who assists in the establishment and operation of that political committee could violate these time period prohibitions but could avoid those prohibitions if the member of the Legislature participating in the establishment and operation of the political committee does not receive any contributions from the political committee and no expenditures are made by the political committee on behalf of that Legislator. Opinion to Honorable Seth Hammett, Member, House of Representatives, dated December 19, 1996, A. G. No. 97-00054. In the opinion to Seth Hammett, the Legislator participated in the creation of the political committee and had the authority to make decisions as to who would receive contributions from the committee.

Notice also the date on the letter -- 1 November 1999. During September through December of that year, Pryor was making calls to Alabama companies headquartered in Birmingham, such as the four largest banks, and to companies with significant operations in Alabama, such as International Paper, USX (now US Steel), and Southern Company (which owns Alabama Power). He was asking each for contributions to the Republican Attorneys General Association, a group he had helped to establish and was helping to operate.

August 3, 2003

Texas: name-calling day

Tthe Democrats and Republicans taunted each other across the Tex-NM state line, as reported in the Dallas Morning News and the Associated Press. My favorites:

Ms. Weddington [Republican Chair] also said salaries and benefits for the 11 [Democratic] senators would cost taxpayers $10,803 a month.

"Democrat senators rightly chose to forgo their per diem while they are ducking their duties because they know that Texans don't want their tax dollars rewarding irresponsible behavior," she said.

"To be fair to the people, the Democrats should also return the taxpayer money being spent on their salaries, health care benefits and retirement payments as long as they continue to refuse to show up for work."

Democrats have said they will not accept their $600 monthly salaries or daily stipends while in New Mexico.

###
"The difference was Bush was the great uniter. Perry and (U.S. House Majority Tom) DeLay are the great dividers," said Sen. Leticia Van de Putte of San Antonio, chairwoman of the Senate Democratic Caucus.

He's "not the brightest porch light on the block," Van de Putte said. But, "he really looks good in jeans."

What do they have to hide?

AP reported yesterday that a new group opposed to Gov. Riley's tax and accountability referendum:

Bob Russell, president of the new Alabama Public Policy Foundation, said the group wants to educate voters about the components of Riley’s tax plan and begin preparing to solve the issues facing the state if the referendum fails.

Voters don’t seem to understand that the formula for figuring property taxes would change and that the state sales tax would be applied to repair services, Russell said.

The group’s ads will not tell people how to vote Sept. 9, and because of that, it doesn’t come under the state’s campaign finance laws, said Rosemary Elebash, secretary of the foundation.

Alabama’s Fair Campaign Practices Act requires groups to disclose their contributors and their expenditures when they urge people to vote yes or no in a referendum like Sept. 9. The courts and the attorney general’s office have held that disclosure is not required when ads don’t urge a yes or no vote.

I have not been able to find an attorney general's opinion on this subject, but there was a decision from the U.S. District Court in Mobile holding,

The plaintiffs' motion for summary judgment is granted to the extent it argues that the registration, organizational and recordkeeping requirements of Sections 17-22A-3, 17-22A-5 and 17-22A-6 of the Alabama Code are unconstitutional as applied to [the Christian Coalition] and other persons whose major purpose is not to engage in election activity.

"Election activity" is urging others to vote for or against the referendum or candidate. Richey v. Tyson, 120 F.Supp.2d 1298 (S.D.Ala.,2000).

Today, the Birmingham News denounced the group in terms that show that it does not buy the distinction made by the federal court:

Unfortunately, the state's Fair Campaign Practices Act allows groups to run ads like this and not have to say who is paying for them because the ads don't expressly tell people how to vote. That's why we're seeing a new group, the Alabama Public Policy Foundation, which claims it formed to "educate voters and research budget solutions" regarding the state's fiscal crisis and Gov. Bob Riley's $1.2 billion tax and accountability plan.

Don't believe that for a second. The only educating of voters that will go on through the group's ad campaign before the Sept. 9 referendum will be to try to persuade them to oppose Riley's plan. Consider: The group's founder, Rosemary Elebash, heads the National Federation of Independent Business, which opposes Riley's plan. She also has attended meetings of and given money to the Tax Accountability Coalition, which has raised $1.8 million to fight Riley's package. The foundation's president is Bob Russell, former state chairman of the Christian Coalition of Alabama. Friday, the Christian Coalition, which vehemently opposes Riley's plan, was announcing by e-mail the foundation's formation.

Michael at A Minority One is a little less restrained and more practical:

Who are they trying to protect here? Whose money is behind this? How much are they really spending? Why are they afraid to openly declare it? What have they got to hide? It's almost like this is some kind of money laundering operation. I thought only criminals engaged in money laundering, thieves, in particular. Can we trust the "Alabama Public Policy Foundation" any more than we can trust pack of thieves? I don't think so. Hiding in secrecy behind a loophole in Alabama's campaign laws does not do much to win my trust and it shouldn't win yours either.

Perhaps if the "electioneering communications" provisions of the Bipartisan Campaign Reform Act are upheld by the U.S. Supreme Court, the Alabama legislature may want to revisit this issue. I'm sure they will really want to. Yeah, right.

Justice Diaz gets a leave of absence

The Jackson Clarion-Ledger and the Biloxi Sun Herald report that Justice Oliver Diaz Jr. has been granted a leave of absence by the Mississippi Supreme Court two days after the state Judicial Performance Commission filed charges to have him suspended.

Last week I mentioned that the Sun Herald named Dickie Scruggs as "intermediary #2" in the indictment of Diaz and others. Scruggs complained that the paper was unfair, issued a press release, and bought an ad in the S-H. The Sun Hearld responded to "set the record straight," proving once again Mark Twain's advice not to pick a quarrel with someone who buys ink by the barrel. So Scruggs went them one better and made a speech the next day to a program of the Practicing Law Institute and the Sun Herald reported it:

"The extraordinary effort by big business and their friends in the Bush administration to shut trial lawyers down is the clear, hard evidence of our effectiveness," Scruggs said. "By packing the federal courts, by McCarthy-like investigations of lawyers and by mass marketing the occasional abuses of a few lawyers, big business and its allies are engaged in a campaign to steamroll over an unprotected public."

The Sun Herald did not seem to think that Scruggs was labelling the paper as a friend of big business because it went to the U.S. Attorney who is prosecuting Diaz for a comment.

August 2, 2003

The Democratic primary calendar

The Scrum has an updated 2004 Democratic Primary Calendar.

Ward Connerly's anti-affirmative action initiative on the ballot with the Recall of Gray Davis

The New York Times has a long article, Affirmative Action Foe's Latest Effort Complicates California Recall Vote, on Proposition 54.

The new ballot measure seeks to further promote Mr. Connerly's vision of a colorblind California by prohibiting state and local governments from "using race, ethnicity, color or national origin to classify current or prospective students, contractors or employees in public education, contracting or employment operations."

Proposition 54 is on the ballot with the recall of Gray Davis. This will probably have the effect of boosting minority turnout for the election.

For some Democrats, who were worrying whether the party's liberal base would bother showing up on Oct. 7, Mr. Connerly is viewed as a godsend. The belief is that minority and liberal voters will be so offended by the racial data ballot measure, known as Proposition 54, that they will not only flock to the polls to defeat it, but bail out Mr. Davis, a Democrat, while there.

Will we see "Vote NO on both" signs?

Rick Hasen reports that a suit has been filed against holding the initiative election on the same day as the recall election.

Rick Pildes on "GA v Ashcroft"

Rick Pildes has an op-ed, Less Power, More Influence, in today's New York Times. The main point is this:

When no blacks held office, getting elected was the overriding goal. But now, being part of an effective governing coalition has begun to matter even more. White Democrats, disciplined by party competition, agree. Such political maneuvering might seem crass, but it is a hopeful sign that race is becoming just one of many elements in the routine struggles of politics.

The Supreme Court was remarkably astute about the new South's new politics. The Voting Rights Act, it ruled, does not require the election of black candidates for their own sake. Its purpose is to ensure equal opportunities and meaningful political influence and participation. If that goal is best realized by designing democratic institutions that foster interracial coalitions, the court concluded, the law should not stand in the way.

One Colorado re-redistricting case removed to federal court

Denver Post reports

Attorneys for state Republican lawmakers and the governor filed documents Friday that will remove a congressional redistricting case from state district court to federal court, where they hope to get a more favorable ruling. Attorney Richard Westfall said the appropriate paperwork has been filed and that the case has effectively been moved to the U.S. District Court.

Republicans said they believe state judges tend to be biased in favor of Democrats and that they will receive more favorable treatment in federal court.

Westfall said in documents filed Friday that the request to remove the case to the federal courts came in response to the plaintiffs' filing of an amended complaint in Denver District Court on July 17, in which plaintiffs for the first time raised federal claims and questions.

Texas: 2/3, 11, and 0

The flight of the Texas Democratic Senators is all about those numbers. It usually takes 2/3 to bring up a bill in the Senate; the 11 Democrats in Albuquerque mean there can't be 2/3 for a quorum; which means the chance to do anything in the Senate is zero.

The Houston Chronicle reports on a letter from the Dems to the Lt. Gov. asking him to restore the 2/3 rule; efforts to bring a suit claiming that the abandonment of the 2/3 rule is a violation of the Voting Rights Act; and the apparent use of phone banks to call and hurl slurs against the Dems.

The Austin American Statesman compares this run to the flight of Killer D's (the House Democrats) in May and finds it "the been-there, done-that feel of an overhyped movie sequel that lacks the spontaneity, drama or energy of the original."

The Washington Post decribes the Texas 11 flight and fight from "what Leticia R. Van de Putte calls a 'momma's hunch'" to the real stakes of the battle.

Gary Scharrer writes in the El Paso Times about why Gov. Perry ought to be worried about the cost and conequences of his re-redistricting fight. The column includes this tidbit:

Here's what taxpayers may not know: They shelled out more than $800,000 two years ago to Andy Taylor and his law firm hired by then-Attorney General John Cornyn to defend the current congressional redistricting map. The Mexican American Legal Defense and Educational Fund, or MALDEF, and other groups challenged the congressional redistricting map.

And now taxpayers are paying Taylor $400 an hour to assault the very same map he defended.

August 1, 2003

This week at the FEC

I have been so busy this week, I have not looked at the FEC site till tonight. Here's a quick roundup.

Political Ads and Solicitations, July 2003 version, has been released.

On yesterday's agenda was this draft Advisory Opinion to the Michigan Democratic Party. It allows the party to treat fringe benefits like wages for purposes of allocation.

The AO's to James Treffinger and former Sen. Bob Smith have been released.

Representative Silvestre Reyes and the Hispanic College Fund, Inc. have requested an AO about a scholarship honoring Reyes with money raised by the Fund.

Lehman Brothers Inc. has requested an AO confirming that its PAC and that of a company 30% owned by it are not "connected."

Texas, in the doldrums

Charles Kuffner at Political State Report has his usual excellent analysis of the "Texas 11," as they are called now. Hint: they ain't in Texas.

Fundraising by making friends

The Washington Post has this article on "the basic anthropology of political financing" under McCain-Feingold.

Texas, round 3

Texas roundup: they're still gone ... but they are planning on coming back. The Austin American Statesman reports on Democratic plans:

The Senate members won't comment on their plan, but Austin lawyer Keith Hampton, who is allied with them, said a legal strategy is still evolving.

One possibility, he said, would be to seek a restraining order or injunction prohibiting the sergeants-at-arms of both the Senate and House from trying to round up absent legislators.

The legal argument, Hampton said, might be that compelling elected officials to attend the special session violates their right to independent political expression.

Dewhurst (who has ruled out using force to get his senators back) lashed out Monday at reports that the Democrats are looking for a federal judge willing to grant a restraining order, saying it "is beneath the dignity of the Texas Senate."

The El Paso Times reports on the Empire striking back:

[Democrats] also criticized Texas Republican leaders for preparing to launch what the Democrats contend will be a multimillion-dollar TV and radio campaign attacking them for spoiling efforts to redraw the state's 32 congressional districts. The Democrats contend redistricting would hurt minorities.

A spokeswoman for Gov. Rick Perry said there are no plans to buy media spots. A spokesman for Lt. Gov. David Dewhurst would neither confirm nor deny the report.

"I wouldn't be surprised at all if they try to use their millions to influence the thinking of average, everyday Texans," said Senate Democratic Caucus Chairwoman Leticia Van de Putte, D-San Antonio. "Our objective is clear and our conviction is pure. And, therefore, we don't have to fabricate a message or hire a public relations firm.

"All we have to do is tell the truth," she said.

The exiled Democrats said they are getting flooded with e-mails, phone calls, flowers, food and care packages from supporters. But some of the messages are laced with "extreme profanity, vulgarity and racial slurs to intimidate the 11 of us, our staffs and our family," Van de Putte, said. "I'm really disgusted."

Her office has received about 30 such calls and e-mails, she said. Other minority lawmakers are getting similar treatment.

NJ redistricting upheld

The New Jersey Supreme Court has upheld the legislative redistricting plan against a challenge that Newark and Jersey City had been divided among three districts rather than two, as required by the state constitution. Here is the basic holding from the syllabus of the decision:

HELD: The New Jersey Constitution’s political boundary requirement may not be validly enforced with respect to Newark and Jersey City without violating the Supremacy Clause.

The Star-Ledger reports:

Although a 1966 amendment says each city should be divided into no more than two districts, the court said that provision has never been enforced and may not now be applied to Newark and Jersey City because doing so would violate federal law protecting minority voting rights.

The New York Times says:

The New Jersey Supreme Court today put an end to Republicans' long-fought effort to force a redrawing of the state's legislative districts.

The court's 4-to-3 decision, released today, preserves current legislative boundaries until the next census, and it ensures that the election season now under way will not be disrupted. All 120 seats in the Legislature are contested this year.

The state was briefly thrown into confusion when an appellate court panel ruled in January that the map did not conform to requirements in the State Constitution. The Supreme Court stayed that order, however, while it reviewed the case.

Dems have "new information" on Pryor

The Mobile Register reports:

A Democratic investigation has turned up "new information" that raises fresh concerns about Alabama Attorney General Bill Pryor's fund-raising work for a Republican party organization, U.S. Sen. Ted Kennedy, D-Mass., said on the Senate floor Wednesday.

Not only does that information cast doubt on Pryor's candidness in earlier testimony to the Senate Judiciary Committee, Kennedy said, but it indicates that "his statements may have been intended to obscure facts that would raise extremely serious ethical or legal questions about" his activities.

Do you suppose this information could be related to the RAGA campaign fundraising I mentioned?