Votelaw, Edward Still's blog on law and politics: September 2005 Archives

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September 30, 2005

Ohio: opponents of independent redistricting show "purple" map

The Toledo Blade reports: Opponents of a proposed constitutional amendment overhauling how Ohio redraws congressional and legislative districts attempted to make their point yesterday that mixing Republican red and Democratic blue to create competitive purple on a map would have disastrous results for the state.

The Republican-dominated Ohio First Inc. said it created a congressional map by using the mathematical formula and ideals contained in Issue 4 set for the Nov. 8 ballot. Ohio First is the nonprofit organization quietly created in July to fight proposed constitutional reforms of Ohio's election system

The resulting map creates several narrow districts snaking nearly from Pennsylvania to Indiana and dividing numerous counties. -- - toledoblade.com -

I have not been able to find the map online. If you know where to find it, email me.

Georgia: DOJ preclears congressional plan

AP reports: The U.S. Justice Department gave Georgia the go-ahead Friday to use a new map drawn by Republicans for congressional elections next year. The map, drawn after Republicans gained control of the Legislature this year, replaces an earlier one crafted by Democrats when they held the power to redistrict.

The map significantly restructures the state's 13 congressional districts, eliminating oddly shaped districts which Republicans argued were purposefully designed by Democrats to punish Republicans and retard that party's growth. -- AccessNorthGa.com - North Georgia's Newsroom

Texas: NPR explains the charges against DeLay

Wade Goodwyn of NPR reports: Former House Majority Leader Tom DeLay has been charged with criminal conspiracy. The felony count alleges he conspired to violate Texas law by contributing corporate donations to legislative races in the state. [The audio for this story will available at 7:30 p.m. ET.) -- NPR : Detailing the Felony Charge Against DeLay

September 29, 2005

California: Rose Institute study claims Prop. 77 would make more competitive districts

The Los Angeles Times reports: The number of true tossup races for the Legislature and Congress would increase sixfold in California if voters passed Proposition 77, according to a new academic study of the initiative. But redistricting experts caution against expecting a dramatic shake-up of political power.

Retired judges rather than lawmakers would draw political boundaries under Proposition 77. The new districts probably would create competition in 10 congressional districts, seven Assembly districts and eight state Senate districts, according to research released Monday by Claremont McKenna College's Rose Institute of State and Local Government. ...

That would be a major increase in competitiveness, the researchers said. At present, there are no competitive congressional districts in California, three in the Assembly and one in the state Senate. ...

By ignoring the advantages of incumbent politicians — such as name recognition among voters — the Rose Institute report probably exaggerates the number of competitive districts the judges could draw, said Rob Richie, executive director of FairVote — the Center for Voting and Democracy in Maryland.

Politicians seeking reelection can count on a roughly 7% advantage over candidates trying to break into office, he said.

"That can move a district that looks competitive on paper to being uncompetitive," said Richie.

And in at least two states that use independent commissions to draw political boundaries — Arizona and Iowa — incumbents have still been reelected easily, Richie said. In Arizona, 15 of 16 congressional races have been won by margins of 20% or more since the independent redistricting commission plan went into effect.

Changing redistricting, Richie said, "still hasn't created any nirvana of competition." -- Modest Change Seen Under Prop. 77 - Los Angeles Times

Massachusetts: AG sues Sen. Wilkenson for campaign finance violations

A press release from the Massachusetts Attorney General reports: State Senator Dianne Wilkerson (D-Boston) has been sued for numerous campaign finance violations, including more than $26,000 in unreported contributions and more than $18,000 in unexplained personal reimbursements, according to a lawsuit filed today by Attorney General Tom Reilly and Office of Campaign and Political Finance (OCPF) Director Michael J. Sullivan.

The complaint, filed today in Suffolk Superior Court, alleges that Wilkerson, her political committee, and her former campaign treasurer Ajibola Osinubi, violated campaign finance laws in seven separate ways between 2000-2001. ...

The complaint seeks a court order forcing Wilkerson to amend her 2000 and 2001 OCPF reports to accurately account for all alleged discrepancies. It also seeks an order requiring Wilkerson to personally pay the Commonwealth for all contributions for which she is unable to properly disclose the contributor, and all reimbursements and expenditures for which she is unable to identify a legitimate campaign-related purpose, to pay civil penalties and investigative costs, and to be enjoined from taking further reimbursements from her campaign account. -- Massachusetts Attorney General: Full Article

Since Sen. Wilkinson was once my client, I will not offer any comments on this matter.

Virginia: mapping the money

AP reports: Campaign finance data isn't just for number-crunching politics nerds any more.

The Virginia Public Access Project's widely used Web site goes graphical on Thursday, using a locality-by-locality map to illustrate where candidates get their donations far better than tables of names and numbers.

"We'll be taking them on a visual journey of campaign finance where before they had to sort through columns and rows," said Aaron Kessler, deputy director of VPAP.

The VPAP Web site--vpap.org--for years has been an indispensable tool for political insiders, donors, interest groups, elected officials, journalists and campaign professionals.

Since 1997, the private, nonpartisan and nonprofit VPAP has gathered, fact-checked and coded State Board of Elections campaign finance report data, allowing the public to see how money influences the state's elections. -- Campaign finance organization goes graphical

Connecticut: Governor calls special session on campaign finance

AP reports: Gov. M. Jodi Rell is calling state legislators back to the Capitol next month to vote on a plan for reforming Connecticut's campaign financing system.

The special session is scheduled for Oct. 11. ...

A preliminary bill being offered by the Republican governor would create a system for publicly funding campaigns in Connecticut. It also would impose immediate bans on campaign contributions from lobbyists, state contractors and their political action committees.

Candidates also would be barred from using lobbyists, state contractors and their political action committees to solicit donations.

A Democrat-controlled working group, which spent this summer attempting to reach a compromise on campaign finance reform, could not find consensus on when to impose such bans. Many Democrats wanted to wait until the public financing system was up and running before cutting off other sources of money. -- The Advocate - Rell calls legislators into special session

Maryland: redistricting expert witness runs for Senate

WBAL reports: American University political historian Allan Lichtman announced his candidacy Wednesday for U.S. Senate, saying his upstart campaign for the Democratic nomination was a challenge to a tradition of Maryland Democrats anointing a front-runner in statewide races.

Speaking at his son's middle school in Bethesda, Lichtman compared himself to the late Sen. Paul Wellstone, a Minnesota political scientist who won a Senate seat in 1990 without ever holding elected office. And he challenged the record of Rep. Ben Cardin, D-Md., a leading candidate in the Democratic primary. ...

Although he has never held public office, Lichtman said he has considerable public policy experience. That includes testifying as an expert witness in voting rights and redistricting court cases, and commentary he has provided on national television.

While other candidates might have greater name recognition, Lichtman said "people recognize me when they see me and hear me." -- TheWBALChannel.com - News - Lichtman Joins Crowded Democratic Field For Senate

Alabama: former Mobile Co. commissioner acquitted

The Mobile Register reports: Former Mobile County Commissioner Freeman Jockisch shook his fists and exclaimed, "Praise the Lord!" when jurors acquitted him Wednesday of misusing campaign funds.

It was a bittersweet victory, however, because the ousted commissioner was taken back into custody after the trial to serve the remainder of a 33-month federal sentence at a federal work camp near Talladega.

Jockisch was convicted in 2004 of 19 charges of lying on tax returns and ethics forms. In that trial, jurors decided he had hidden income that he earned from his fire sprinkler company, which had worked on public schools in the county.

His state trial focused on whether he had illegally pocketed about $26,000 from his campaign account. State law limits how campaign funds can be spent and bars them from being converted to personal use.

During the 2½-day trial, the state attorney general's office pointed out discrepancies between Jockisch's campaign finance reports and his banking records. The prosecution argued that those forms showed that Jockisch paid himself money that he wasn't owed. -- Jockisch is found not guilty by jury

Texas: the indictment of DeLay puts RNC aide in an uncomfortable position

The New York Times reports: The indictment of Representative Tom DeLay on Wednesday put the Republican National Committee in an uncomfortable spotlight, saying a top political aide to President Bush was the funnel through which $190,000 in improper donations passed in 2002.

According to the indictment, Terry Nelson, the political director in the 2004 Bush re-election campaign, was the individual who received the $190,000 check, which was made out to a division of the R.N.C. That check is alleged to have included money illegally accepted from corporations.

Mr. Nelson, the indictment says, simultaneously received a list of Republican candidates for the Texas State Legislature for whom the money was intended. Under Texas law, it is illegal for state candidates to use corporate contributions.

Mr. Nelson has not been indicted, nor has any other official from the Republican National Committee been implicated. A spokeswoman for the committee declined to comment. -- How a Tested Campaign Tool Led to Conspiracy Charges - New York Times

The article has a graphic showing how the money flowed from corporations to TRMPAC to the RNC with a list of state candidates to whom checks should be written.

September 28, 2005

New York: Democratic leader convicted

The New York Times reports: Clarence Norman Jr., the leader of one of the largest Democratic party organizations in the nation, was found guilty today of soliciting illegal campaign contributions, representing a stark fall from grace for the son of a prominent Brooklyn minister who grew up to practice law and become the ultimate insider in New York's political system. ...

Mr. Norman was accused of soliciting contributions from Ralph Bombardiere, a lobbyist for 3,500 retail gas stations, totaling $7,423.30 in 2000 and $5,400 in 2002, knowing that those payments exceeded state limits. There was no accusation that the money had gone into Mr. Norman's pocket. Rather, it was used to pay expenses for the primary elections, like printing and shopping bags.

But the prosecution contended that Mr. Norman had tried to conceal the contributions, because he knew they exceeded the $3,100 allowed by state law, and made much of the fact that he was deputy speaker of the Assembly, "a favorite son of Brooklyn," who had, in the prosecution's words, "sacrificed his integrity" to win an election. -- Clarence Norman Is Guilty of Illegal Campaign Contributions - New York Times

Texas: DeLay indicted, "steps down" as majorty leader

Everybody is reporting, but this one is from Reuters: The second-ranking Republican in the House of Representatives, Majority Leader Tom DeLay, was indicted on Wednesday on a felony campaign-finance charge and temporarily stepped down from his post.

The powerful Republican, nicknamed "The Hammer" for his reputation as a tough party enforcer, could face up to two years in prison if convicted on the charge handed up by the Travis County grand jury in the Texas state capital, Austin.

DeLay was indicted on a single conspiracy charge tied to illegal fund-raising activities by Texans for a Republican Majority, or TRMPAC, a political action committee he created, the Travis County District Attorney's office said.

The indictment accuses DeLay and two alleged co-conspirators, John Colyandro and Jim Ellis, of engaging in a scheme to launder $190,000 in corporate donations through the Republican National Committee for distribution to Republican candidates for the Texas Legislature.

Texas law generally prohibits corporate money from being used for campaign activities. -- ABC News: Indicted DeLay leaves House leadership post

Findlaw has the indictment.


Wisconsin: US Supreme Court to hear challenge to state campaign finance law

The Washington Post reports: Campaign finance reform emerged as a major theme of the coming Supreme Court term yesterday, as the justices announced that they will rule on federal and state efforts to regulate campaign-season advertising by advocacy groups and to limit spending by candidates. ...

The first case is a challenge to provisions of the 2002 McCain-Feingold campaign law that prevent corporations or labor unions from buying ads with unregulated money about a specified candidate in the weeks just before an election.

Wisconsin antiabortion activists say their particular proposed ads are genuine efforts to express their views on an issue, not attacks on candidates disguised as issue ads -- or "sham" issue ads the law was meant to regulate.

A three-judge panel of the U.S. District Court in Washington ruled last year that the Supreme Court's 2003 ruling upholding McCain-Feingold precluded such a case-by-case effort to avoid the law's provisions. The Bush administration urged the Supreme Court to uphold that decision without a hearing, which the high court could have done if five justices had agreed.

McCain-Feingold was upheld 5 to 4 in 2003. Justice Sandra Day O'Connor was a member of that majority but will leave the court as soon as a successor is confirmed by the Senate.

"O'Connor was the swing vote" in that case, said Rick Hasen, a specialist in election law at Loyola Law School in Los Angeles. "This could provide the vehicle for a more conservative court . . . to reverse that aspect" of the 2003 decision.

The case is Wisconsin Right to Life, Inc. v. Federal Election Commission , No. 04-1581. -- High Court to Decide Campaign Finance Cases

Bob Bauer has more on both the Wisconsin and Vermont cases on More Soft Money Hard Law.

Vermont: US Supreme Court to review two campaign finance cases

The New York Times reports: The Supreme Court opened a new chapter in the long-running debate over the role of money in politics on Tuesday by agreeing to decide whether Vermont's strict limits on campaign spending and contributions are constitutional.

The court's action suggested, although it did not guarantee, that the justices might be ready to revisit their 29-year-old precedent, Buckley v. Valeo, which in equating money with speech has been widely interpreted as ruling out any restrictions on expenditures by candidates.

Vermont is the only state to have placed limits on candidates' spending. Its contribution limits, $400 to candidates for statewide office during a two-year election cycle and lower for other offices, are the tightest in the country. ...

A second new campaign finance case that the justices accepted on Tuesday challenges the application of another section of that law, asking the court to establish as exception for "grass-roots lobbying" to the ban on corporate funding of certain advertisements in the weeks before election day.

The Vermont law was enacted in 1997 as a direct challenge to the Supreme Court's campaign finance precedents, or as Vermont's secretary of state, Deborah L. Markowitz, put it in an official memorandum, with the "express legislative goal of giving the Supreme Court an opportunity to re-evaluate its decision in Buckley v. Valeo."

While the law's strict contribution limits were notable, its main departure was in restricting campaign expenditures. Candidates for governor, for example, are limited to spending $300,000 in a two-year election cycle, regardless of whether the cycle includes a primary election. -- Justices Take On Spending Limits for Candidates - New York Times

September 26, 2005

Redistricting is a hot topic in mid-decade

The Los Angeles Times reports: When California voters go to the polls Nov. 8 to decide whether to strip lawmakers of the authority to draw their own districts, so will voters in Ohio. Millions more are likely to follow in Massachusetts and Florida.

In these and more than a dozen other states, activists are busy concocting different solutions to the same problem. They are trying to find a less political way to draw districts for Congress and legislatures so voters have a better crack at actually deciding elections. ..

From California, where Proposition 77 would put redistricting in the hands of three retired judges, to Florida, where a circulating initiative would create a 15-member bipartisan redistricting commission, the usually arcane, once-a-decade process of redrawing districts to even out shifts in population is a hot political topic.

Besides ballot measures pending or in the works in California, Ohio, Florida and Massachusetts, bills to create independent or bipartisan redistricting commissions have been introduced in at least 12 state legislatures this year. In Congress, a Tennessee Republican introduced a bill to mandate independent commissions nationwide. -- Several States May Revisit Redistricting - Los Angeles Times

Ohio: how the redistricting proposal would work

A diary on RedState.org reports: For background: the current breakdown is 12 Republicans and 6 Democrats, a 2:1 ratio that is striking because Bush defeated Kerry in Ohio by only a few percentage points. There may be a number of reasons for this: poor Democratic performance in campaigns, poor Democratic candidates...but the one the mostly Democratic reformers chose to focus on was the gerrymandering of Ohio's districts. Taking the very rough standard of a margin of victory in 2000 (no data for 2004) of 10 points or more as uncompetitive, I found 7 uncompetitive R districts, 4 uncompetitive D districts, 6 competitive lean R districts, and 1 competitive lean D district. Each of those falls along party lines except District 6, represented by Ted Strickland (D).

Such a plan would not be adopted according to the rules set out in the amendment, and a new plan would almost certainly favor Democrats. Here's why.

The amendment has a "competitiveness" requirement that has the committee assign a score to each plan, based on the following formula: # of competitive districts leaning one way balanced by competitive districts leaning the other way x 2 + # of remaining competitive districts, minus # of uncompetitive districts for one side NOT balanced by an uncompetitive district for the other side x 2. Using the numbers above (again, very rough), the current map would earn a score of 3. That won't cut it, since the committee is required to consider plans with the highest score first. I put together a really rough plan without regard to benefitting Democrats or Republicans, and my plan got a 7. So I feel confident that somebody who does have all the data and expertise could make one with an even higher score. -- || RedState.org

September 25, 2005

Hong Kong: elections to be held for leader -- maybe in 2012

The Telegraph (UK) reports: All Hong Kong's citizens might be able to choose their own leader by 2012, a Chinese official has said, in a possible sign of greater openness among Beijing's hardline political apparatus.

Yang Wenchang, China's commissioner or senior representative in Hong Kong, told reporters that the government was debating when to introduce a democratic vote for the post of its chief executive. "Some are talking about 2012, some are talking 2017 and even some people, you know they are more conservative, are claiming 2022," Mr Yang said. The election is every five years. -- Telegraph | News | Hong Kong 'reform bid'

September 23, 2005

New Jersey: AG will oversee voter fraud investigation

Newsday reports: The state will oversee a county-by-county investigation into allegations of widespread voter fraud brought by Republicans, the Attorney General's Office announced Wednesday.

In a letter dated Wednesday and sent to lawyers representing the Republican State Committee, Attorney General Peter Harvey said the state would coordinate the probe and report its findings. However, the investigation must be conducted at the county level, he said, because that is where official voter registration records are kept.

New Jersey Republicans last week called on Harvey to review state election rolls, saying a four-month investigation by the party uncovered widespread irregularities. The GOP asked Harvey's office to conduct an investigation before Oct. 11, the last day New Jerseyans can register to vote before the Nov. 8 election.

More than 6,500 voters cast ballots in New Jersey and another state in last November's election, while 4,755 ballots were cast by deceased voters, according to Republican State Committee Chairman Tom Wilson. -- Newsday.com: Attorney general announces voter fraud probe

FEC dismisses complaint claiming GOP and Nader collusion

AP reports: The Federal Election Commission dismissed complaints that Republican and conservative groups improperly worked with Ralph Nader to get him on presidential ballots last year in New Hampshire and two other states.

The commission said it found no reason to believe that any of the groups had violated the law as Nader sought to qualify as an independent presidential candidate in Oregon, Michigan and New Hampshire.

The consumer advocate was on the ballot in 34 states last year. But he was much less of a factor than in 2000, when Democrats say he siphoned votes from the party's nominee, Al Gore, in Florida, New Hampshire and elsewhere, giving the election to Republican George W. Bush. -- FEC dismisses complaints against Nader, GOP in 2004 ballot bid - Boston.com

Virginia: insurance company seeks dismissal of GOP suit

The Daily Progress reports: A federal judge is set to decide this fall whether the Republican Party of Virginia’s lawsuit against its former insurance company should go to trial or be dismissed.

U.S. Magistrate Judge Dennis Dohnal heard arguments Thursday on a motion that the GOP’s lawsuit should be tossed out as groundless. Dohnal is expected to rule within weeks on motions for summary judgment from both sides in the lawsuit that an attorney for the insurance company called frivolous.

The GOP contends that the Union Insurance Co. of Lincoln, Neb., breached its contract by not covering the $750,000 the state party paid last December to 33 Virginia Democrats who sued over eavesdropping by a pair of top Republican officials on Democratic conference calls discussing redistricting.

The GOP lawsuit also seeks $200,000 for lawyers’ bills from RPV’s nine-month legal battle with Democratic legislators, who claimed the March 2002 eavesdropping violated their privacy rights. -- Judge hears motions on GOP eavesdropping suit

North Carolina: Libertarians sue over decertification

The Winston-Salem Journal reports: The Libertarian Party of North Carolina has filed a lawsuit in Wake County over its removal as an official state party, an action that could help two candidates for Winston-Salem City Council.

On Aug. 22, the State Board of Elections decertified the Libertarian Party, which failed to get 10 percent of the vote in last November's election.

As a result, Forsyth County elections officials removed Libertarians Richard Norman and Thomas Leinbach, candidates for the Winston-Salem City Council, from the Nov. 8 ballot.

Norman was able to get back on the ballot a as an unaffiliated candidate after gathering enough signatures for a petition. Leinbach is running as a write-in candidate.

The lawsuit, filed Wednesday, says that state laws make it too difficult for third parties to establish themselves in North Carolina. The lawsuit is trying to have North Carolina law on third parties overturned. -- Winston-Salem Journal | Libertarian Party files to regain ballot status

September 21, 2005

Missouri: Dems pay $110k file to FEC

AP reports: The Missouri Democratic Party said Wednesday it has agreed to pay a $110,000 fine to settle allegations that it violated federal campaign finance laws during the 2000 election.

According to the settlement, which still needs approval from the Federal Election Commission, the party received $159,500 in prohibited donations from corporations and labor organizations and did not report the transfer of the money to the party's non-federal campaign accounts.

The agreement also states that the party failed to disclose debts of $620,000 and did not report the receipt and transfer to non-federal accounts of $176,125 in contributions that were above federal limits. ...

Last year, the Missouri Republican Party paid $128,000 to settle an FEC investigation into its financial reporting for the 2000 elections. That investigation also revolved around whether Republicans had appropriately reported money as federal contributions and expenditures, as opposed to state ones. -- AP Wire | 09/21/2005 | Missouri Democratic Party to pay $110,000 fine

Florida: would it cost less to have a redistricting commission?

The Tallahassee Democrat reports: Taxpayers could save half the cost of redrawing Florida's political boundaries by taking that enormous power away from legislators and giving it to an independent commission, backers of the plan said Tuesday.

Attorney Mark Herron, a veteran elections-law lawyer and former head of the Florida Commission on Ethics, said it's impossible to know exactly how much the state spent on redistricting in 2001-02. But he told a special economic-impact task force that the current remapping process is "duplicative" as the House and Senate pass overlapping and conflicting plans for their own districts and congressional boundaries every 10 years - then cut deals to protect incumbents, divide seats between parties or open up new tracts for powerful bosses.

"There would be a cost for expenses of the commission, for commission staff, for computers," Herron said of the independent-commission plan. "But it would be approximately half of the cost now because there would not be duplication."

The House and Senate have separate reapportionment committees, each with its own staff of statisticians, demographers and legal experts. They also hire outside counsel to advise and represent the leadership during Justice Department review and in court, once legislative and congressional plans are adopted. -- Tallahassee Democrat | 09/21/2005 | Cost of redrawing boundaries panned

Alabama: How to fill a vacancy on the Mobile County Commission

The Mobile Register reports: Plaintiffs in a lawsuit over how to fill an upcoming vacancy on the Mobile County Commission want a judge to rule before Commissioner Sam Jones is sworn in as mayor of Mobile early next month, said attorney Cecil Gardner.

Three Democratic legislators sued Monday to block Republican Gov. Bob Riley from naming someone to fill Jones' commission post when he vacates it Oct. 3. Voters should elect someone to serve the more than three years remaining on Jones' term, they argued.

District 1 is the commission's only majority-black district, and the Rev. Bobby Cunningham of Whistler said Riley could choose from several qualified black GOP backers there, despite the area's Democratic leanings. -- Quick ruling sought in suit over seat

September 20, 2005

FEC sues Club for Growth

The New York Times reports: The Federal Election Commission filed suit Monday against the Club for Growth, a well-funded Republican group, in an effort to force the organization to comply with limits on political contributions.

The suit is the first major enforcement case to involve a "527 committee," the independent political organizations that both Republicans and Democrats used to raise and spend hundreds of millions of dollars in the 2004 races. Commission officials describe it as a test case that could have a major impact on how future elections are financed. ...

The suit alleges that the organization failed to properly register with the commission as a political committee, which would subject the group to contribution limits and other regulations, and that it raised millions in excessive contributions in recent years. Officials at the club said they had done nothing improper.

The case stems from a complaint filed against the group by the Democratic Congressional Campaign Committee in connection with a television advertisement broadcast last year. The commission voted to file the suit Monday after talks between the two parties failed to reach an out-of-court agreement, according to the F.E.C. -- F.E.C. Sues Republican Group Over Political Contributions - New York Times

September 19, 2005

Georgia: suit against voter ID requirement

A consortium of voting rights advocates and private attorneys filed suit today in federal district court in Rome, Georgia, challenging House Bill 244, charging the law violates the state and federal constitutions, the 1965 Voting Rights Act, and the 1964 Civil Rights Act. -- ACLU :: Voting Rights Act :: News (links to the complaint)

Carter-Baker Commission Report

The report of the Commission on Federal Election Reform can be downloaded from this site.

Comment on the Carter-Baker report

Tova Andrea Wang of The Century Foundation writes: It is truly shocking how, given all the problems in the voting system and continued disenfranchisement, the terms of the debate have shifted to that of so-called "ballot integrity." It is reminiscent of how conservatives have misappropriated the concept of patriotism and the American flag, and used the power of language and messaging to distort the discussion, by using terms such as "partial birth abortion" or "death tax." The latest example of this is the just released report of the commission on election reform co-chaired by Jimmy Carter and James Baker.

The 2001 bi-partisan commission co-chaired by former President Carter and Gerald Ford, which The Century Foundation co-sponsored and I was on the staff of (and which had an entirely different membership), had a very different approach. There were differences about how best to implement the recommendations of the report. However, while we were concerned with accuracy and preventing fraud, we did not see that as a goal that was in conflict with ensuring the right to vote.

It was the 2001 commission that promoted the idea of statewide voter registration databases, so that we could both prevent fraud and ensure every registered voter was on the voting list the list and able to vote. We proposed the idea that any voter who comes to the polls and does not appear on the list be given a provisional ballot. We stated that when a felon completes his sentence, he should get his voting rights back. We enumerated several ways to ensure that "no individual, group or community [holds] a justified belief that the electoral process works less well for some than for others." We even recommended an election day holiday!

This stands in stark contrast to the entire tenor of the Carter-Baker report, which presumes that fraud committed by voters is the biggest problem confronting our election system. There is simply no strong evidence of this, and some of the remedies proposed will take us backwards in the fight to increase voter participation. -- Carter-Baker Report: Some Bad Fixes for the Wrong Problems

87 Ways to Leave a Lover (oops, wrong song ... to reform elections)

AP reports: Electronic voting machines should leave a paper trail of ballots cast and the government should provide free photo IDs to nondrivers to help check voting eligibility, a commission on election reform recommends.

The private commission, created to suggest ways to improve the electoral process, also favors four regional primaries to be held after the Iowa caucus and New Hampshire primary.

Also, states should develop registration systems that allow easy checks of voters from one state to another, according to the report by the bipartisan panel led by former President Carter and former Secretary of State James Baker. ...

The Commission on Federal Election Reform had to balance concerns about better access for voters and worries about preventing voter fraud. -- Newsday.com: Panel Recommends Ways to Improve Elections

September 16, 2005

announcement: Election Reform Conference

On October 7-8, the Center for Policy Alternatives, Demos and Common Cause will host an Election Reform Conference. This conference is designed to provide policy content, leadership development and networking opportunities for state legislators to advance an election reform agenda in their states. This conference, targeted to state legislators in the Midwest, has three strategic objectives:

* Raise the awareness of state policymakers of the electoral problems that need repair within their states while providing proposals and best practices that provide solutions to these challenges.
* Develop leadership capacity among policymakers and apply that capacity to effect change within their states.
* Connect these legislators to electoral policy experts, reform advocates and citizen organizers and facilitate the creation of action plans to move a reform agenda forward in their states.

This combination of strategic objectives - leadership, education and networks - has been successfully used to reform public policy and enrich democracy in America. -- CPA: Events: Election Reform Conference

Boston: DOJ settles suit against city

AP reports: The Justice Department said Thursday it has dropped its voting rights lawsuit against Boston after city officials agreed to provide voting materials in Chinese and Vietnamese, and to allow federal observers to monitor polling places.

The agreement comes six weeks after the federal government filed a lawsuit — part of what it said is a national initiative — alleging that Boston's election practices discriminate against Hispanic and Asian American voters who do not speak English. ...

The announcement Thursday said Boston agreed to provide ballots, registration notices and other forms in Spanish, Chinese and Vietnamese. Boston also agreed to provide more training to poll workers regarding the Voting Rights Act.

Also, Boston agreed to a court order appointing federal observers to monitor polling places through 2008, the announcement said. -- Justice Dept. Settles Voting Rights Suit - Yahoo! News

September 15, 2005

New Hampshire: Dems sue RNC and NRSC over phone-jamming

AP reports: The New Hampshire Democratic Party added more defendants Wednesday to a lawsuit over the jamming of its phone lines on Election Day 2002.

Repeated hang-up calls overwhelmed the party's get-out-the-vote phone banks and a ride-to-the-polls line for more than an hour that day. Former state GOP director Chuck McGee and Republican consultant Allen Raymond pleaded guilty to taking part in the scheme and James Tobin, a former regional director for the Republican National Committee, is scheduled for trial in December.

As those criminal cases proceeded in federal court, Democrats sued the state Republican Party, McGee and Raymond in Hillsborough County Superior Court seeking more information about the plan and reimbursement for its costs of setting up the phone banks.

On Wednesday, they expanded the civil lawsuit to include Tobin, former state GOP chairman John Dowd, the Republican National Committee and the National Republican Senatorial Committee. -- Democrats add defendants to phone-jamming lawsuit - Boston.com

Minnesota: Campaign board clears governor

The St. Paul Pioneer Press reports: Gov. Tim Pawlenty did not violate the state's gift-ban laws earlier this year when he drove and subsequently damaged an all-terrain vehicle during an ATV organization's spring convention, a state oversight agency announced Wednesday.

In dismissing all complaints against Pawlenty, the Campaign Finance and Public Disclosure Board determined that because nothing was provided to the governor that wasn't available to other members of the public, he did not accept any prohibited gifts.

The board said the convention was open to other members of the public, demonstration rides were available to others and Polaris Industries, the owner of the damaged ATV, had picked up the costs for machines damaged in other rides. -- St. Paul Pioneer Press | 09/15/2005 | Pawlenty cleared in gift-ban dispute

September 14, 2005

Graham and Roberts on the VRA

Senator Graham had this colloquy with Judge Roberts this afternoon:

GRAHAM: During your time of working with Ronald Reagan, were you ever asked to take a legal position that you thought was unethical or not solid?

ROBERTS: No, Senator, I was not.

GRAHAM: We talked about the Voting Rights Acts. Proportionality test in the Reagan administration's view was changing the Voting Rights Act to create its own harm. Is that correct?

ROBERTS: The concern that the attorney general had and the president was that changing Section 2 to the so-called effects test would cause courts to adopt a proportionality requirement, that if elected representatives were not elected in proportion to the racial composition in a particular jurisdiction, that there would be a violation shown that would have to be addressed.

GRAHAM: Do you think it would be fair to try to suggest that because you supported that position but you're somehow racially insensitive?

ROBERTS: No, Senator. And I would resist the suggestion that I'm racially insensitive. I know why the phrase, "Equal Justice Under Law" is carved in marble above the Supreme Court entrance. It is because of the fundamental commitment of the rule of law to ensure equal justice for all people without regard to their race or ethnic background or gender.

The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That's a commitment all judges make when they take a judicial oath.

GRAHAM: Knowing this will not this line of inquiry but, at least, trying to put my stamp on what I think we've found from this long discussion, basically, the Supreme Court decided in Section 2 that the intent test was constitutionally sound. Is that correct?

ROBERTS: That was its determination in Mobile against...

GRAHAM: And Senator Kennedy disagreed because he wanted a different test. And I respect him. He is one of the great -- first, he's not part of the Reagan revolution. I think we all can agree with that. So I don't expect him to buy into it.

But I respect him greatly for his passion about his causes. He took it upon himself to try to change a Supreme Court ruling, to go away from the intent test to the effects test, and he was able to reach a political compromise with the administration.

And I just want that to be part of the record; that to say that Ronald Reagan or Judge Roberts, by embracing a concept approved by the court, equates to that administration or this person being incensed at people of color in this country I think is very unfair and off base.

You said something yesterday that was very compelling to me. I asked you, could you express or articulate what you thought might be one of the big threats to the rule of law. And I believe you said, Judges overstepping their boundaries, getting into the land of making the law, putting their social stamp on a cause, rather than interpreting the law, because that could over time, in the eyes of the public, undermine the confidence in the court."

Is that a correct summary?

ROBERTS: Yes, Senator. -- Transcript: Day Three of the Roberts Confirmation Hearings

Grassley to Roberts: will you be fair to the VRA?

Senator Grassley had the following hard-hitting exchange with Judge Roberts:

GRASSLEY: Thank you.

Once again, I compliment you on how you've handled yourself at these hearings. You've done very well. It's going to be very hard for people to cast a "no" vote against you.

Judge Roberts, do you believe that every citizen who meets the qualifications set forth in the Constitution and our laws should have the opportunity to cast a free and unfettered vote?

And as a follow-up, will you, on the court, fairly apply the Voting Rights Act?

ROBERTS: I certainly agree that every citizen who meets the qualifications not only has a right to vote but should vote. I think it's a problem that we don't have more people voting. And any issues that come before me under the Voting Rights Act, I will confront those with an open mind and decide them after full and fair consideration of the arguments, in light of the precedents of the court and in light of the recognition of the critical role that the right to vote plays as preservative of all other rights. -- Transcript: Day Three of the Roberts Confirmation Hearings

Sen. Kennedy and Judge Roberts on the VRA again

Senator Kennedy questioned Judge Roberts again about the Voting Rights Act. (From Transcript: Day Three of the Roberts Confirmation Hearings)

KENNEDY: Thank you very much, Mr. Chairman.

Good morning.

ROBERTS: Good morning, Senator.

KENNEDY: I would like to, if we could, come back in the time that I have now, and perhaps in a follow-up round, to the issue on civil rights. Because as been mentioned here by others, it is the overarching issue, I think, for our country and our society.

I think our founders didn't get it right at the time of the drafting of the Constitution. We've had a Civil War. This country went through an extraordinary period of time, led by Dr. King in the 1950s, and then we had that extraordinary moment of Dr. King here at the Lincoln Memorial, which I think touched the conscience of the nation, people from all over the country.

We were stuck for months on the 1964 act, as you probably remember, and then with the action that was taken by Everett Dirksen that opened up the possibilities for reaching a compromise on the public accommodation provisions.

We spent eight hours, a number of us in the Judiciary Committee, with Nick Katzenbach over in the Capitol office, and had an agreement at that time there would be no amendments on the public accommodations; we could amend other provisions when the legislation went forward. And was monumental in its importance and consequence.

Then we came back and realized after that that the most important legislation that we could probably address -- we still had a ways to go on housing and employment; although employment was included in the '64 act, but not to a great extent -- was in the Voting Rights Act.

KENNEDY: And we had extensive hearings. And during the course of those hearings by this committee -- other committees, as well -- we listened to Attorney General Katzenbach, who had been working with Senator Dirksen -- really the architect, leadership of President Johnson, certainly, but the architect of the '64 act.

And he testified before this committee about the Section 2 provisions. And in his testimony on the Section 2 provisions, he said, "Section 2 applies to any voting practice or procedure if its purpose or effect was to deny or abridge the right to vote on account of race or color." So for many of us, including the civil rights community, believed that the effects test was operative at that time.

That bill passed the House by 333-85, 77-19.

The next thing that happened is we had the series of tests, as you recall. And the overarching test case was the Zimmer case, but we had a number of cases -- Zimmer v. McKeithen. And it was the 5th Circuit, en banc, that dealt with the whole range -- for the most part -- range of states where many of these challenges had existed, although I certainly recognize we have a long ways to go in my own state of Massachusetts.

But this court en banc effectively in the Zimmer case; it was the lead case on the effects test. And that was followed by a series of cases -- U.S. v. Post (ph), Kendrick v. Walder -- for a long period of time.

You're aware of this history?

ROBERTS: I'm remembering it from when we addressed this debate of 23 years ago.

KENNEDY: But it sounds familiar?

Then we went up to 1980 and we had the Mobile case which effectively put the intent test in.

KENNEDY: And after the Mobile case, as you well remember, the Justice Department dropped a whole series of cases that had been prepared under the effects test because they did not believe that they could make the case on the intent test: whole series.

And this sent a very powerful message to individuals across the South, other parts of the country, that the additional kind of a burden to demonstrate intention was going to be so substantial, it was going to make, in terms of resources, and to try and determine the intent of individuals that lived many years ago, to virtually be prohibitive.

That happened. The Justice Department dropped scores of cases.

And it was one of the important reasons that the civil rights community and many of us believed that it was so important at the time of the extension of the voting rights case in 1982 that we put the effects test in.

You believed, as I remember, and as we have gone over, that it should have been a restatement of the existing law, as you correctly stated yesterday, which was the intent test. Am I correct so far?

ROBERTS: That was the administration's position.

KENNEDY: The administration's position. I remember French Smith testifying before this committee to that effect. I remember at that particular time.

Every civil rights group in 1982 included the effects test. This is the NAACP Legal Defense, National Urban League, Lawyers Committee on Civil Rights Under Law, Conference on Civil Rights, Mexican- American Legal National Council of Raza, League of United Latin American Voters, League of Women Voters -- the list goes on -- Congressional Black Caucus.

KENNEDY: And the House went ahead and passed the legislation with the effects test by 389-24 -- 389-24.

And in that legislation, the legislation included language which reflected the concern of the administration about whether the intent test was going to lead to either proportional representation or to quotas.

That language was included in the House legislation that passed. And it included the fact that members of a minority group have not been elected in numbers equal to the group's proportion of the population, should not, and in and of itself a constitutional violation of this section.

This addressed, for all intents and purposes, the concerns that the administration, I thought, and most of us -- the civil rights community -- thought that they had with regard to the issue of proportional representation.

You roughly remember that or aware without...

ROBERTS: I certainly remember the provision in the House bill at the time.

KENNEDY: So we also, now, included that language in the Senate bill. Now, the House bill passed. The Senate bill had 61 co-sponsors prior to the time that we adopted the Dole amendment.

That legislation was on its way. That legislation was good as done, quite frankly.

The Dole amendment was effectively a restatement of what was in the House bill, and it had been included.

But the administration, after that, said: Well, if they're going to include that as the Dole amendment, we will let up in our opposition and we'll eventually support it.

Now, during the time after the passage of the House bill and prior to the passage of the Senate bill, you -- even though the House had passed it -- you still strongly maintained the administration's position, did you not?

ROBERTS: Well, I was still working for the administration, Senator.

KENNEDY: OK.

ROBERTS: President Reagan's position was to extend the act without change, as you mentioned. That was the attorney general's position. I was a special assistant to the attorney general and I was doing my best to implement their views and support their views.

KENNEDY: In your memoranda that was to the attorney general, Brad Reynolds, now -- the administration after the House bill, I think the history will show it, thought that the administration should alter its position.

Your memoranda said, "Brad Reynolds has expressed some reservation about circulating any written statement on the question to the Hill. My own view is that something must be done."

Maybe that's a staffer, but it's separating yourself from Brad Reynolds, who was the leader on this issue at the time.

Then you...

ROBERTS: Well, with respect, Senator, my understanding -- and I've looked at that memorandum recently -- is that the issue was whether or not to circulate something, explaining the administration position.

KENNEDY: OK.

ROBERTS: And I didn't think Mr. Reynold's view was: you shouldn't do that because you didn't support the position; it was a question whether or not to circulate something at that time.

ROBERTS: And my view was whether or not I thought if the administration was advocating its position, it ought to get the position out.

KENNEDY: Well, I think that's good. You're a good advocate and a strong believer in this.

The reason in this memoranda that you circled -- and I have it right here -- make what parts of it available to the record -- in this, in the last paragraph, you said, "On the issue of the effects standard nationwide, on the strength of the record, will be constitutionally suspect but also contrary to the most fundamental tenets of the legislative process, which the laws of this country are based."

"Constitutionally suspect" -- effects test.

The reason that I bring this up is to find out what you believed in then and what you believe today, because you, having raised in your memoranda that this is provision -- the effects test is constitutionally suspect -- is that still your position?

Because if it is your position on an issue as important as the Voting Rights Act that resulted in the elections of hundreds and thousands of local leaders of color in all parts of the country, representatives in the House of Representatives, and moved the whole democratic process forward, then I think the American people are entitled to know.

So, specifically, do you believe that the effects test in the Voting Rights Act, which is currently the law, is constitutional?

ROBERTS: Well, Senator, I don't know what the analysis -- you read a clause of a sentence -- and I would have to look at the whole memorandum to see exactly what the suggestion or the issue was in that case.

SPECTER: Senator Kennedy, would you make the memo available to him, please?

KENNEDY: Sure. Yes.

What I'm interested in doing is asking now whether you believe that the effects test is constitutionally suspect. I'm interested in today, quite frankly, more than what we had written before -- whether you believe that it is suspect today or whether you find that it is settled law.

It's fine if you want to, obviously, refer to it, but I'm interested in what's your view today, whether you...

ROBERTS: Well, we're referring to -- what I'm referring to in this paragraph is the court's determination -- if I'm looking at this correctly -- under Section 5, its determination -- the language you read notes the Supreme Court's conclusion under Section 5, which is the preclearance provision that applies to jurisdictions with a history of discrimination.

And what the court had said in that case was that requirement of preclearance was acceptable given the record that the Congress had established in the Voting Rights Act of 1965 of the practices in those jurisdictions.

And the concern was that if you extend the effects test nationwide, the record, which had been established only with respect to particular jurisdictions in the South, wouldn't apply nationwide, and that would be the basis for a constitutional challenge.

The application of the test under Section 2, which is -- as you know, we use the shorthand effects test. It's actually the totality of the circumstances test, and it lays forth a number of considerations. And I think there is some argument about how closely it tracks effects test under Section 5 or if it's a different totality of the circumstances approach.

ROBERTS: I'm not aware of any case that has questioned the constitutionality of the application of the totality of the circumstances case under Section 2.

And if an issue on that were to be presented to me on the Supreme Court, which it may be, given the pending extension of the Voting Rights Act, I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position.

And as a judge, I would come to the issue with an open mind and I would fully and fairly consider any arguments that might be presented. I don't know if an argument is going to be presented about the application of the totality of the circumstances test nationwide.

Again, I'm not aware of any challenges that have been presented to it since it was enacted. I don't know if any will be if or when the Voting Rights Act is extended again, but if it is I would confront that as a judge and not as a staff attorney for an administration with a particular position on that issue.

KENNEDY: Well, Judge, there hasn't been, at least that I know, in the legal circles, suspicion about the unconstitutionality of the effects test as it applies to Section 5. That's as grounded as it can be.

I'm asking the specific issue that was the -- really issue attention with the extension and really the most important part historically about the Voting Rights Act, whether you think that that provision is constitutionally suspect today.

KENNEDY: This is the backbone of effective voting in our country and our society.

And I think the American people are entitled to know whether you believe or suspect that that particular provision which, as passed just overwhelmingly by the House and the Senate, signed by President Reagan and has resulted in this extraordinary march to progress, is constitutionally sound?

That's what I'm asking.

ROBERTS: I have no basis. I'm not aware of any constitutional challenge that has been brought to Section 2 since it was enacted. And I have no basis for viewing it as constitutionally suspect and I don't.

If an issue were to arise before the Supreme Court or before the Court of Appeals, if I head back there, I would consider that issue with an open mind in light of the arguments.

I have got no basis for viewing it as constitutionally suspect today, and I'm not aware that it's been challenged in that respect since it was enacted. It may have been, but as I said, I'm not aware of it.

KENNEDY: I gather -- you've had an extensive answer -- that from that answer I did hear that it is not constitutionally suspect as far as your view today?

ROBERTS: Yes.

Hatch and Roberts on the VRA

Senator Hatch and Judge Roberts discussed the Voting Rights Act today. (From Transcript: Day Three of the Roberts Confirmation Hearings)

HATCH: OK.

Now let me just ask you a question that relates to some of the answers you gave yesterday regarding the voting rights.

Even as the hearing was unfolding, again, Democratic staffers of the committee issued a press release that said that you had missed an opportunity to distance yourself from what the release called your "earlier narrow positions on the reach of the Voting Rights Act."

Now, that is not what I heard you say nor do I believe that is what the public heard. The Democratic press release said that you had "resorted to vague generalities about the importance of voting."

Now, as I heard you, I heard you explain the vigorous debate that took place regarding reauthorization of the Voting Rights Act in the 1980s.

And, by the way, I was part of that debate. I felt very deeply that the effects test should apply to Section 5, to those states that had a history of discrimination.

HATCH: But I also felt very deeply at the time that the intent test should apply to all the other states in Section 2. Which was the position, I think, the administration took that you had to do some research on within the administration.

Now, I lost in committee. Now, I was arguing that all of the states that did not have a history of discrimination should not be burdened by the effects test, which basically says, "If the effects of what happens looks like discrimination, that therefore is, even if there was never an intent to commit discrimination."

Now, I lost. But I feel that the Voting Rights Act is the most important civil rights bill in history, and I felt it then. And I voted for the amended bill with the effects test language in Section 2 and have been a strong supporter ever since.

Would that be fair to describe your feelings about that?

ROBERTS: Well, yes, Senator.

The debate, as you remember, was over whether or not Section 2 should be extended without change, as interpreted by the Supreme Court in Mobile against Bolden, or whether it should be changed to incorporate the effects test and later the totality of the circumstances test.

The administration position at the time was to extend the Voting Rights Act for the longest period in history without change, and that was the position that I was working on at the time.

And Congress eventually decided -- Senator Dole and some other senators, developed a compromise position on Section 2, and that was enacted with the support of the administration.

And the one thing that was clear to me throughout those extended debates was that the people on both sides of the issue in good faith supported extension of the Voting Rights Act and recognized the importance of the Voting Rights Act in securing civil liberties for all Americans.

ROBERTS: It wasn't a dispute about the goal. It wasn't a dispute about the objective. It wasn't a dispute about the importance. It was a dispute about whether to extend the act without change or whether to make changes in the act. And that was what the debate was about.

HATCH: Well, and the difference was that the administration vehemently wanted to pass the Voting Rights Act as it existed that was somewhat difficult to pass originally when it was originally passed. And that was a decent, honorable position.

But when it was changed, through our democratic process up here on Capitol Hill, I felt for the worse at the time, but I feel like I was wrong at the time. Then we voted for it.

In fact, it was my friend Senator Kennedy who insisted that I come down to the White House as part of the bill-signing team, because he knew how deeply I felt about this.

But there was a legitimate reason to take the administration's position. And once the compromise was reached with Senators Dole and Kennedy, the administration accepted that as well and so did you.

And that's the point I just, kind of, wanted to make because I think it's important to realize that we can sometimes get to a point where we misconstrue the intentions of decent, honorable people. And I count myself one of those.

And even though I lost in committee -- I voted for this bill because to me it is the most important civil rights bill in history, albeit others are very important as well.

Now, I just want to tell you that, like I say, I've been here for 29 years and I've been through 10 of these -- I think 10, if I recall correctly. And in all of that time, we've seen some really sterling, brilliant, wonderful people before this committee. But I've never seen anybody who has done a better job of explaining himself than you have.

If people can't vote for you, then I doubt that they can vote for any Republican nominee.

You have made a very, very strong presentation here. And I hope the American people realize that, and I hope my colleagues on both sides of the aisle realize that.

And I look forward to seeing you as chief justice of the United States Supreme Court. And will do everything in my power to see that you are confirmed.

With that, I have eight and a half minutes left. I reserve the balance of my time.

Louisiana: mid-decade redistricting?

Roll Call reports on speculation that there might be a mid-decade redistricting in Louisiana: Still, there is a realization at the state Legislature in Baton Rouge that Louisiana may have to take action before the end of the decade. Marusak and Lowrey said state lawmakers have discussed holding a special session before they are scheduled to convene again in March 2006.

That recognition may stem from growing pressure in central and northern Louisiana congressional districts that have become a temporary home for thousands of newcomers renting houses, filling public schools and clogging local highways.

Baker spokesman Michael DiResto estimated that the 6th, which is northwest of New Orleans and encompasses Baton Rouge, may have twice as many people in it as most every other district in the nation.

Baker said that motels, hotels and public-housing and rental units are filled in Baton Rouge and surrounding communities. He added that some business owners had bought 20 or 30 houses to relocate their entire operations to the state capital.

The "ideal" district, Lowrey said, has 638,425 people. Officials in Baton Rouge said the 4th, 5th and 6th districts are each housing more than 1 million people. Bonner said Alabama had picked up 20,000 residents, including as many as 5,000 in his district. -- Hurricane may end up costing La. a House seat
[I don't have a link because I don't have a subscription to Roll Call]

Let's assume that most people from South Louisiana have moved to North Louisiana. Without a census, you can't tell how many people are where, so you can't draw a zero-deviation district as the Supreme Court requires for congressional districts, and probably can't draw +/- 5% legislative districts. On the other hand, the de-population of South Louisiana makes it pretty clearly unfair to leave things as they are. What do you do?

A modest proposal: Get Congress to amend the federal law requiring single-member congressional districts to allow an alternative voting system that allows all Louisianans to vote for the same candidates. Congress could authorize the state legislature to choose one of these (taken from the FairVote.org site):

* List System -- by far the most widely used form of full representation. The voter selects one party and its slate of candidates to represent them. Party slates can be either "closed" or "open," with open lists allowing voters to vote for individual candidates rather than political parties. If a party receives 30% of the vote, they receive 30% of the seats in the legislature, 10% of the vote receives 10% of the seats, and so on. A minimum share of the votes can be required to earn representation; typically a 3-5% threshold is used. This type of full representation is ideal for large legislatures on state and national levels. * Choice Voting -- the voter simply ranks candidates in an order of preference (1,2,3,4, etc...). Once a voter's first choice is elected or eliminated, excess votes are "transferred" to subsequent preferences until all positions are filled. Voters can vote for their favorite candidate(s), knowing that if that candidate doesn't receive enough votes their vote will "transfer" to their next preference. With choice voting, every vote counts and very few votes are wasted. Choice voting is ideal for non-partisan elections like city councils. This method is also called "Single Transferable Vote" or "STV".

A disaster the size of Katrina requires some creative thinking. Let's get to it.

Louisiana: What if they held an election and no one came?

The Shreveport Times reports: The exodus of Brumfield and others like her from southeast Louisiana because of Hurricane Katrina is raising perplexing questions in a state already known for its political eccentricities.

With congressional elections coming up in 2006 and statewide elections -- including positions in the state legislature -- set for 2007, the major population shift caused by the hurricane could have an enormous impact on Louisiana politics for years to come.

More than 133,000 residents from 13 parishes are living in 293 shelters across Louisiana and nine other states. Almost 60 percent of those evacuees are being housed out of state. And then there's all the people who left before the storm. In all, authorities estimate more than 1 million people have left southeast Louisiana, at least temporarily.

Political questions hang in the air like storm clouds:

How many residents displaced by Katrina will come back? Will they come back in time to participate in local, state or congressional elections? Are these people now residents of their new communities, or are they absentee voters? When will the hurricane-damaged parishes be capable of handling an election?

And the most complicated question of all -- will the elections be fair? -- Storm ravages state's political landscape

Democrats can carve out a pro-people position on Katrina

As I noted below, Rep. Artur Davis (whom I think of as "my" representative, even though he is in the adjoining district) has introduced three bills to provide relief and protection for Katrina survivors and evacuees. The Emergency Savings Relief Act of 2005 (HR 3733) will provide victims of Hurricane Katrina the ability to withdraw funds without penalty from their individual retirement accounts and certain other retirement plans. The Emergency Medicaid Relief Act of 2005 (HR 3735) will suspend proposed federal cuts to Medicaid budgets for 29 states - including Alabama, Mississippi, and Louisiana - which are scheduled to go into effect September 30. And the The Displaced Citizens Voter Protection Act of 2005 (HR 3734).

DavidNYC at DailyKOS reports:

While the Republicans are busy trying to find a way to pass their abhorrent bill to repeal the estate tax, Democrats on Capitol Hill are actually trying to propose some serious - and necessary - tax relief for the victims of Hurricane Katrina. Congressman Rahm Emanuel, the chair of the DCCC, and Sen. Barack Obama (both of Illinois), are sponsoring the "Hurricane Katrina Accelerated Tax Refund Act". (Dems Propose Tax Refunds for Katrina Victims )

I expect there are other such bills being introduced by Democrats. Now, if the Dems can work together to publicize these bills as a package, they can present a positive image of the party that cares for the people, as opposed to the other party that proposes tax cuts as the cure for every ill.

I commend Rep. Davis for his bill, but I urge him to go further. We need to expand his bill to provide a permanent right to an easy-to-obtain absentee ballot for all federal elections. Half the states set the reasons for absentee voting, according to the always-excellent Electionline.org A law that requires a reason means that there must be proof of that reason, and the possibility of a post-election contest or a pre-election challenge that may throw out that vote.

Let's expand the ability of our citizens to vote.

Rep. Artur Davis introduces Displaced Citizens Voter Protection Act

Congressman Artur Davis (D-AL7) has sent a press release concerning three hurricane-related bills he has introduced. One relates to voting rights: The Displaced Citizens Voter Protection Act of 2005 (HR 3734) ensures that victims of Hurricane Katrina have the right to vote by absentee ballot while temporarily displaced. Its provisions ensure that displaced citizens receive the same voting protections currently available to military and overseas voters. The absentee ballot voting provisions of the Act apply only to those individuals who certify that:

1) they are otherwise qualified to vote in their original place of residence; and

2) they intend to return to that residence in the near future.

The Act covers elections for federal office held through 2008 and provides that state agencies designated under the National Voter Registration Act of 1993 take steps to notify individuals of their absentee voting rights.

"Our displaced citizens should have the same rights as our soldiers, and for that matter our college students, to participate in their states elections while they are temporarily away from home. This bill would allow evacuees to assert by affidavit that they intend to return to Louisiana or Mississippi and to vote in the 2006 and 2008 federal elections by absentee ballot," Davis said.

A copy of the bill is here.


September 13, 2005

California: 2 campaign groups now supporting reidstricting reform

AP reports: A key supporter of Gov. Arnold Schwarzenegger's redistricting measure announced plans Tuesday to form an independent, nonpartisan campaign supporting Proposition 77 - largely over fears the measure will fail if tied directly to Schwarzenegger's other Republican-backed ballot initiatives.

Bill Mundell, a Southern California businessman who donated more than $300,000 to help qualify the redistricting measure for the ballot, said his new group would operate separately from the governor's California Recovery Team in support of the initiative.

The move comes on the same day the California Recovery Team announced that Steve Poizner, a Silicon Valley billionaire and Republican candidate for Insurance Commissioner next year, will head up the Schwarzenegger-backed committee also pushing Proposition 77.

The proposition, one of three "year of reform" initiatives that Schwarzenegger helped put on the ballot for a special election Nov. 8, would strip lawmakers of their power to draw Congressional and state legislative boundaries, handing the job to a panel of retired judges. -- AP Wire | 09/13/2005 | Redistricting proponents break with governor, form own campaign

Texas: 2 DeLay associates indicted

AP reports: Two associates of U.S. House Majority Leader Tom DeLay were indicted Tuesday on additional felony charges of violating Texas election law and criminal conspiracy to violate election law for their role in the 2002 legislative races.

The indictment was the latest from a grand jury investigating the use of corporate money in the campaigns that gave Republicans control of the Texas House.

In Texas, state law prohibits using corporate contributions to advocate the election or defeat of state candidates.

The two men indicted Tuesday, Jim Ellis, who heads Americans for a Republican Majority, and John Colyandro, former executive director of Texans for a Republican Majority, already faced charges of money laundering in the case. Colyandro also faces 13 counts of unlawful acceptance of a corporate political contribution.

The money laundering charges stem from $190,000 in corporate funds that were sent to the Republican National Party, which then spent the same amount on seven candidates for the Texas Legislature. -- AP Wire | 09/13/2005 | Grand jury indicts two DeLay associates

Sen. Feingold and Judge Roberts discuss the VRA

Senator Feingold questioned Judge Roberts about the Voting Rights. ( and this are from the AP transcript.)

FEINGOLD: Guess I'll have to move on.

Let's go to voting rights. I want to follow up to Senator Kennedy's questions about the Voting Rights Act and, in particular, about your opposition to amendments to that act in 1982 when you were an adviser to the attorney general in the Reagan administration's Justice Department.

In 1982, Congress voted overwhelmingly to amend Section 2 to reinstate the test for vote delusion that many lower courts had used prior to the City of Mobile case -- one that looked, as we talked about earlier, at the effects of an electoral scheme on the ability of minorities to elect candidates of their choice rather than on the intent behind the scheme.

While you were in the Reagan Justice Department, you seemed to have done almost in your power to thwart that congressional effort. FEINGOLD: Your view was that the intent test should stand. This was the policy position of the Justice Department, which as you've indicated -- and you wholeheartedly supported at the time.

Your memos make that very clear. In one memo, you lamented that the House bill then under consideration would make it much easier to attack a, quote, such widely accepted practices as at-large voting, unquote.

Now those practices, of course, were among the most commonly used systems to prevent the election of any minorities to local government bodies.

We know that the effects test put into place in the 1982 amendments to the Voting Rights Act has been very successful in improving minority representation in Congress and at all levels of government.

Do you believe today that those gains have been good for the country?

ROBERTS: I think the gains under the Voting Rights Act have been very beneficial in promoting the right to vote which is preservative of all other rights.

The issue about how to extend the Voting Rights Act, again, my position was a member of staff in the Justice Department.

The administration position of extending the Voting Rights Act for the longest period in history as is without change was in no sense reflective of any disagreement with the proposition that the Voting Rights Act was extremely valuable in securing not just the right to vote but all other rights...

FEINGOLD: But what I'm trying to get at here, Judge, obviously, is this distinction between effects and intent. Let's follow up on the fact that you said that these gains have been good for the country. Do you believe that these gains we've seen in minority representation would have occurred if your review supporting the intent approach had prevailed in 1982?

ROBERTS: Well, I think some of them would have. I don't know if all of them would have. It's obviously impossible to tell, to go back and determine whether a particular application of a different approach would have had the same results or different results. I think that's very hard to...

FEINGOLD: Do you still believe that the intent test was the more appropriate standard by which to evaluate both dilution claims?

ROBERTS: Senator, my personal view of the Voting Rights Act is not somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

FEINGOLD: I'm not questioning what your view was then...

ROBERTS: I'm just saying...

FEINGOLD: ... I'm asking what you think now, having -- this is pretty settled area; I think you'd agreeing -- having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test was still the more appropriate standard by which to evaluate vote dilution claims?

ROBERTS: Senator, I haven't studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I'm in no position to make a judgment on that.

FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. Obviously, understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court's decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was.

African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn't elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost 100 years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act amendment. So why at that point did you want to make section two cases so difficult to prove? ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships.

I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the attorney general's view and the president's view on that issue. And that's what I was doing.

FEINGOLD: I recognize that. What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about whether you were right about -- or the department, let's say, since you were working for them -- whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

ROBERTS: Well, Senator, I haven't followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General's Office in which we were effective in proving violations under the Voting Rights Act.

Many of those cases arose under issues under Section 5 -- pre- clearance issues -- and not under Section 2. I, as a judge, had a case -- a three-judge district court case -- again arising under the pre-clearance provisions. But I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

FEINGOLD: Well, with all respect, and I realize I should move on to another topic, but it just seems how strongly you stated some of these memos -- and I understand you were doing your job -- I would think you'd have a view today whether or not those strong statements still make sense.

Senator Sessions and Judge Roberts on the VRA

Senator Sessions engaged in a colloquy with Judge Roberts on the Voting Rights Act and Mobile v. Bolden, a case I know something about because I was one of the attorneys for the plaintiffs. (This and this are from the AP transcript of the hearing.)

SESSIONS: With the question to the Grove City case, it was good that Senator Grassley -- I'm from Iowa, I knew about that. And I think he clarified that question well here.

With regard to Bolden v. City of Mobile, you and Senator Kennedy had an exchange.

Well, I'm from Mobile. I was not involved in the litigation but know something about that litigation.

And when the exchange ended, as I recall, Senator Kennedy was insisting that the Zimmer case was the established law and that a number of cases had said that effects test applied, whereas you are contending that at the time you took the position you did, that the Supreme Court had ruled that an intent standard was required and that Bolden set the decision on that.

.SESSIONS: And I guess the question for us today, who was right? You or Senator Kennedy?

ROBERTS: Well, I...

SESSIONS: I didn't want to ask you, but go ahead.

ROBERTS: No, I don't know if...

SESSIONS: I see the senator has returned.

ROBERTS: It was a renewal of a debate that was had between the administration and Senator Kennedy 20-plus years ago. And certainly, the issue of whether the Supreme Court had interpreted Section 2 and what it had said and whether or not it was correct was mooted.

Senator Kennedy's position eventually prevailed as a matter of legislation. Through the good offices of Senator Dole and others, the compromise was worked out and the totality of the circumstances test enacted under Section 2.

SESSIONS: Now -- but the truth is, is it not, that Bolden v. City of Mobile had been decided by the Supreme Court, and Bolden v. City of Mobile said that you had to show, when you consider a form of a local government, that before you could throw it out, create a new government for that city, you had to show that it was designed in a way to intentionally deny equal rights to the minority citizens?

ROBERTS: That was my understanding, and certainly the administration's understanding of Mobile and its interpretation of Section 2.

And as I said, the debate was largely mooted by the legislative change that was enacted.

SESSIONS: No, I'm just trying to get this thing straight because I don't want anybody to be misinterpreted.

Bolden v. City of Mobile quoted Zimmer. It was the final word on the matter. And it ruled that before the federal government could throw out a government of a city and require a new government to be established, there had to be an intent to discriminate. And that was consistent with the Voting Rights Act.

***

SESSIONS: And then when the Voting Rights Act came up for reauthorization, the legislature, the Congress, passed a law and changed the law that, in effect, said the effects test -- if it had the effect of discriminating or keeping African American citizens from being elected to office, that that could justify the removal of the existing form of government and establishing a new government.

ROBERTS: Well, that's right.

And it's in many areas -- well, certainly every area involving an interpretation of the statute, the final say is not with the Supreme Court, the final say on a statute is with Congress. And if they don't like the Supreme Court's interpretation of it, they can change it. And that's what happened in this case.

SESSIONS: Well, the Voting Rights Act, let me say, is a tremendously critical historical event. It transformed the South.

I think Senator Kennedy or others said that grandchildren and children today are being able to vote because of this right, and that's true. Not only are they being able to vote, they are being able to be judges who supervise elections, sheriffs, mayors, city councilmen, county commissioners.

Alabama has more elected African-American officeholders than any other state in America, and we're proud of that.

But this was a powerful act, and it did change the make-up of county commissions, city commissions, statewide boards all over Alabama, all over America, and it was a big step.

But the Congress made that, and you were correct when you said that your position was consistent with what the Supreme Court ruled at that time.

With regard to the question of comparable worth, I think Senator Feinstein was clear about this, but I'd like to make it a little bit clearer.

You have consistently favored equal pay for equal work, have you not, and did not President Reagan also favor that explicitly and openly?

ROBERTS: Absolutely.

Judge Roberts and Sen. Grassley on the VRA

Senator Grassley discussed the Voting Rights Act with Judge Roberts. This excerpt is from the AP transcript of the hearings.

GRASSLEY: Some outside groups have claimed that you're hostile to civil rights. Others have suggested -- in my view incorrectly -- that you have an off-the-mark view of the Voting Rights Act. I believe these allegations to be inaccurate and I'd like for you to set the record straight.

As you may know, I've long been a supporter of the Voting Rights Act. I appeared at a news conference with Senator Dole and Kennedy and some others in 1982 with that compromise that you've referred to. The Voting Rights Act has had very significant impact on racial discrimination, probably more than anything else that Congress has done since the adoption of the Civil War amendments. '

Your critics take issue with some of your memos which outline the arguments in the debate over whether Section 2 should have an effects test or an intent test.

Specifically, there was a debate in Congress over concerns that the effects test could lead to legal requirements that racial quotas be mandated for legislatures and other elected bodies.

Ultimately, the Voting Rights Act was reauthorized with a provision expressly prohibiting courts from requiring racial quotas. We were able to craft a good compromise that gave greater protection to minority voters while not requiring quotas.

Judge Roberts, could you tell us what your role was as an assistant to Attorney General Smith in developing the Reagan policy on the Voting Rights Act?

ROBERTS: Well, President Reagan's policy and the attorney general's policy was to support the longest extension of the Voting Rights Act in history without change.

Some in the Congress wanted to amend the Voting Rights Act, Section 2, to overturn the Supreme Court's decision in Mobile against Bolden.

And that's what the debate was about: whether it should be an intent test under Section 2 or an effects test. Everybody agreed that Section 5, the preclearance provision, which applied to jurisdictions with a history of discrimination, had an effects test and should continue to have an effects test. The debate was about Section 2 and whether it should be an intent test or an effects test.

But there was no disagreement among President Reagan, Attorney General Smith, those of us on Attorney General Smith's staff, like myself, that the protection of the right to vote was critical, that the Voting Rights Act had been extraordinarily effective in preserving that right and should be extended. The debate was solely over whether or not Section 2 should be changed.

And Senator Dole, working with other members of the Senate, crafted a compromise that resolved that dispute. As you said, it put an effects test in Section 2, put in additional language to guard against the sort of proportional representation that was certainly the concern of Attorney General Smith and President Reagan. And that was enacted into law with the president's support.

But there was no disagreement about the critical nature of the right to vote, the notion that it was preservative of all other rights. And the question was simply about how it should be extended, whether extended as is or extended with the change that was enacted under the compromise.

GRASSLEY: My time's just about out, so I'll ask a very short question.

During your tenure at the solicitor general's office, didn't you sign on to a number of briefs that urged the Supreme Court to adopt a broad interpretation of the Voting Rights Act, its new requirements, and to require expansive remedies when states violate the act? And didn't some of those briefs take the same side as the ACLU, the Mexican-American Legal Defense and Education Fund, and the Lawyers' Committee for Civil Rights Under the Law?

ROBERTS: Yes, it was the responsibility of the Justice Department and before the Supreme Court, of course, the Office of the Solicitor General, to enforce the civil rights laws, and particularly the Voting Rights Act, as vigorously as possible. And that's what we did.

GRASSLEY: Thank you.

Judge Roberts and Senator Kennedy on the VRA

Senator Kennedy engaged Judge Roberts on the Voting Rights Act. The text is "below the fold." (From the AP transcript of the hearings.)

KENNEDY: If we could move on. Now, the Brown decision was just the beginning of the historic march for progress toward equal rights for all of our citizens.

In the '60s and '70s, we came together as a Congress, Republicans and Democrats alike, and passed the historic civil rights legislation that signed by the president to guarantee equality for all citizens on the basis of race, then on gender, then on disability.

We passed legislation to eliminate the barriers to voting that so many minorities had faced in too many states in the country. We passed legislation that prevented racial discrimination in housing.

Those landmark laws were supported by Republicans and Democrats in Congress and they were signed into law by both Republican and Democratic presidents.

Intelligent and dedicated attorneys in the Justice Department and in the White House and on Capitol Hill devoted their extraordinary talents and imagination and perseverance to making these laws effective.

Every one of the new laws was tested in court, all the way to the Supreme Court.

And I'd like to find out, Judge Roberts, whether you'd agree that the progress we made in civil rights over the past 50 years is irreversible.

I'd like to find out whether you think that these laws are constitutional or whether you have any concerns or questions about them.

Do you have any concerns or reservations about the constitutionality of the 1964 Civil Rights Act that outlawed racial discrimination in public accommodations, employment and other areas?

ROBERTS: I don't think any issue has been raised concerning those.

I'm cautious, of course, about expressing an opinion on a matter that might come before the court. I don't think that's one that's likely to come before the court.

So I'm not aware of any questions that have been raised concerning that, Senator.

KENNEDY: So I'll assume that you don't feel that there are any doubts on the constitutionality of the '64 act. Do you have any doubts as to the constitutionality of the '65 Voting Rights Act?

ROBERTS: Well, now, that's an issue, of course, as you know, it's up for renewal. And that is a question that could come before the court: the question of Congress' power.

Again, without expressing any views on it, I do know that it's going to be...

KENNEDY: Well, that's gone up and down the Supreme Court -- the 1965 act and again the 1982 act extension.

ROBERTS: Yes, and the issue would be...

KENNEDY: I'm just trying to find out, on the Voting Rights Act, whether you have any problem at all and trouble at all in terms of the constitutionality of the existing Voting Rights Act that was extended by the Congress.

ROBERTS: Oh. Well, the existing Voting Rights Act: the constitutionality has been upheld. And I don't have any issue with that.

KENNEDY: OK.

ROBERTS: There's a separate question that would be raised if the Voting Rights Act were extended, as I know Congress is considering. And those arguments have been raised about whether or not particular provisions should be extended or should not be extended.

And since those questions might well come before the court, I do need to exercise caution on that.

KENNEDY: But with regards to the act that we passed, the bipartisan act -- I'm going to come back to it -- and about your position on the 1982 act -- I know you had concerns and I'm going to come back to those -- but you're not suggesting that there's any constitutional issue with that.

ROBERTS: Well, I'm not aware of any constitutional issue that's been raised about it.

KENNEDY: All right.

ROBERTS: Again, I don't want to express conclusions on hypothetical questions, whether as applied in a particular case, where there would be a challenge in that respect. Those cases come up all the time and I do need to avoid expressing an opinion on those issues.

KENNEDY: Well, it seems that on voting rights, with all of its importance and significance, and with the extraordinary bipartisan balance that came together on that act -- I'm going to come back to it; I know you had some reservations about it, which we will come to -- but that, as I am wondering whether you are hesitant at all in saying that you believe that it's constitutional.

ROBERTS: My hesitancy, Senator, is simply this: that cases do come up. I had one in the D.C. Circuit concerning issues under the Voting Rights Acts. And I don't know what arguments parties will be raising in those cases.

So an abstract question you need to know, obviously, what's the claim, what's the issue, and decide it according to the rule of law.

KENNEDY: How about the constitutionality of the '68 fair housing legislation that outlawed racial discrimination in housing?

ROBERTS: Again, I think -- my understanding is it's been upheld. And I'm not aware of any issues that are arising under it.

I suppose if there's a particular claim presented under that statute, litigants make all sorts of arguments, and they may raise an argument that it's unconstitutional as applied in a particular case, and the court would have to decide that question.

KENNEDY: Well, I was, sort of, inhaling your answer to my friend Orrin Hatch about the power of the legislature and the deference that you're going to give when the legislature makes judgments and findings, particularly in the areas of voting that we spend such an extraordinary amount of time -- the chairman was so involved in that legislation.

Let's go to the Voting Rights Act. As you know, we've had a chance to go through many of the documents that you authored during the early and mid-1980s when you worked in the Department of Justice and in the White House.

I'm interested in your views today, let me point out, but because we don't have all the documents that we'd like to have, I'm working with the documents that we do. And I want to go through those, get your reactions and ask your views today. I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings.

In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society. It also seems that you were trying to undo the progress that so many people had fought for and died for in this country.

At the outset, I want to be clear that I do not think nor am I suggesting that you're a person who's in favor of discrimination. I don't believe that.

I am concerned, however, that at the time you were writing these laws and memoranda and notes, you simply did not grasp the seriousness of the impact of discrimination on our country as a whole.

Let's start with the Voting Rights Act.

Most Americans think that the right to vote is among the most important tools that they have to participate in our democracy. You do agree, don't you, don't you, Judge Roberts, that the right to vote is a fundamental constitutional right?

ROBERTS: It is preservative, I think, of all the other rights.

Without access to the ballot box, people are not in the position to protect any other rights that are important to them. And so I think it's one of, as you said, the most precious rights we have as Americans.

KENNEDY: And you will recall that in the '60s, millions of our fellow citizens denied access to voting booths because of race. And to remedy that injustice, Congress passed the Voting Rights Act of '65 that outlawed discrimination in voting.

Section 2 of that act is widely believed to be the most effective civil rights statute enacted by Congress.

In 1982, Congress took action to extend the Voting Rights Act and to make it clear that discriminatory voting practices and procedures are illegal if they are intended to be racially discriminatory or if they are shown to have a racially discriminatory impact.

It was this latter provision, the prohibition against voting practices that have a discriminatory impact, that provoked your heated opposition, Judge Roberts.

In our earlier discussion of Brown v. Board of Education, you agreed that the actual impact of racial segregation on public education and school children was perfectly valid for the court to consider. But when it came to voting rights, you rejected the consideration of actual impact.

You wrote that violations of Section II of the Voting Rights Act, and I quote, should not be made too easy to prove since they provide a basis for the most intrusive interference imaginable by federal courts, interstate and local processors.

You also wrote, and I quote, It would be difficult to conceive of a more drastic alteration of local government affairs. And, under our federal system, such an intrusion should not be too readily permitted.

And you didn't stop there. You concluded that Section II of the Voting Rights Act was, quote, constitutionally suspect and contrary to the most fundamental tenets of the legislative process on which the laws of this country are based.

So I am deeply troubled by another statement that you made at the time.

And I quote, There is no evidence of voting abuses nationwide supporting the need for such a change.

No evidence? I was there, Judge Roberts, in both the House and the Senate, had the extensive hearings. We considered details, specific testimony from affected voters throughout the country. But you dismissed the work of Congress out of hand.

Don't be fooled, you wrote, by the House vote or the 61 Senate sponsors of the bill. Many members of the House did not know that they were doing more than simply extending the act and several of the 61 senators have already indicated they only intended to support a simple extension.

Judge Roberts, Republicans and Democrats overwhelmingly supported this legislation. But you thought we didn't really know what we were doing.

Newt Gingrich, James Sensenbrenner voted for the House bill. Dan Quayle was an original Senate co-sponsor of the bill. We held extensive hearings, created a lengthy record. Yet, you thought there was no evidence of voting abuses that would justify the legislation -- your comment.

Do you believe today that we need the federal laws to assure that all our citizens have the equal access to the voting booth and do you basically support the 1982 Voting Rights Act that was signed by...

ROBERTS: Senator, you will recall, at the time -- this was 23 years ago -- I was the staff lawyer in the Justice Department. It was the position of the Reagan administration for whom I worked, the position of the attorney general for whom I worked, that the Voting Rights Act should be extended for the longest period of its extension in history without change.

The Supreme Court had interpreted in the Mobile v. Bolden case, Section 2, to have an intent test, not an effects test.

Keep in mind, of course, as you know very well, Section 5, the preclearance provision, had always had an effects test and that would be continued.

The reference to discrimination nationwide was addressing the particular point that effects test had been applied in particular jurisdictions that had a history of discrimination. And the question is whether or not there was a similar history of discrimination that supported extending the effects test in Section 2.

It was the position of the administration for which I worked that the proposal was to extend the Voting Rights Act without change. Your position at the time was that the intent test that the Supreme Court had determined was in Section 2 should be changed to the effects test, and that was the position that eventually prevailed.

There was no disagreement...

KENNEDY: Judge Roberts, the effects test was the law of the land from the Zimmer case to the Mobile case. It was the law of the land. That was the law of the land that court after court decided about the impact of the effects test. The Mobile case changed the Zimmer case.

ROBERTS: Well, Senator, you disagree...

KENNEDY: And what we were...

SPECTER: Let him finish his answer.

KENNEDY: OK. Well, I'd just like to get his -- whether the Zimmer case was not the holding on the rule of the law of the land prior to the Mobile case.

ROBERTS: Well, this is the same debate that took place 23 years ago on this very same issue. And the administration's position -- you think the Supreme Court got it wrong in Mobile against Bolden.

KENNEDY: No, that's not what -- I think it was wrong, but I also think the law of the land, decided by the Supreme Court in the Zimmer case, upheld in court after court after court after court, was the effects test.

ROBERTS: Well, the Supreme Court...

KENNEDY: That's...

SPECTER: Let him finish his answer, Senator Kennedy.

ROBERTS: The point is -- and, again, this is revisiting a debate that took place 23 years ago...

KENNEDY: Well, I'm interested today of your view. Do you support the law that Ronald Reagan signed into law and that was co- sponsored...

ROBERTS: Certainly.

KENNEDY: ... overwhelmingly...

ROBERTS: Certainly, and the only point I would make -- this was the same disagreement and the same debate that took place then over whether the court was right or wrong in Mobile v. Bolden.

And the point I would make is twofold, that those, like President Reagan, like Attorney General Smith, who are advocating an extension of the Voting Rights Act without change, were as fully committed to protecting the right to vote as anyone.

KENNEDY: Right. Could I...

SPECTER: Let him finish his answer, Senator Kennedy.

ROBERTS: And the articulation of views that you read from represented my effort to articulate the views of the administration and the position of the administration for whom I worked, for which I worked 23 years ago.

KENNEDY: Well, after President Reagan signed it into law, did you agree with that position of the administration?

ROBERTS: I certainly agreed that the Voting Rights Act should be extended. I certainly agreed that the effects test in Section 5 should be extended.

We had argued that the intent test, that the Supreme Court recognized in Mobile against Bolden -- I know you think it was wrong, but that was the Supreme Court's interpretation -- should have been extended. Again, as you said, the compromise that you and Senator Dole worked out was enacted into law and signed into law by President Reagan. And the Voting Rights Act has continued to be an important legislative tool to ensure that most precious of rights, which is preservative of all other rights. There was never any dispute about that basic proposition.

KENNEDY: Well, what I'm getting to is, after it was signed into law, overwhelmingly -- overwhelmingly by the House and the Senate -- we have the memoranda that you said the fact we were burned last year -- this is the following year -- we did not -- the fact we were burned last year because we did not sail in with the new voting rights legislation does not mean we'll be hurt this year if we go slowly on housing legislation.

What did you mean when you said that we were burned last year by not getting the Voting Rights Act?

ROBERTS: I think the legislative debate between those who favored extending the Voting Rights Act as is and those who favored changing the act because they disagreed with the Supreme Court decisions, the legislative judgment was that the administration's proposal didn't succeed because they had waited. Rather than coming out in favor of an extension right away, they waited for the Congress to come up with its proposals which turned out to be different than the administration proposals.

On the housing discrimination, I would note that the administration did get its ducks in a row and, in a matter of months after the date of the memo that you just read from, had its housing proposal there and submitted to Congress and it was enacted.

KENNEDY: The 1988 Housing Fair Housing Act.

Roberts dodges VRA questions

AP reports: Chief Justice-nominee John Roberts repeatedly refused to answer questions about abortion and other contentious issues at his confirmation hearing Tuesday, telling frustrated Democrats he would not discuss matters that could come before the Supreme Court.

"I think nominees have to draw the line where they are most comfortable," said Roberts, who also sidestepped questions about civil rights, voting rights and the limits of presidential power in a long, occasionally antagonistic day in the witness chair. ...

He twice rebuffed Democratic attempts to draw him into a discussion of his views on lawsuits under the Voting Rights Act - whether a showing of discrimination should be sufficient to prevail as opposed to a more difficult-to-establish intent to discriminate. -- AP Wire | 09/13/2005 | Roberts rebuffs Democrats' questions

September 12, 2005

Katrina may affect politics in places other than Louisiana

AP reports: Population shifts caused by the exodus of hurricane victims from the Gulf Coast could have ripple effects for years to come in Louisiana political races and perhaps beyond.

How big depends on how many people stay away, which ones stay away and where they end up putting down roots.

The early thinking is the evacuees least likely to return to their homes in Louisiana may be the poorest - and thus, Democrats for the most part. That would hurt the party in a state where Republicans already were making inroads.

If the lion's share of those leaving settle in Texas, that could work to the advantage of Democrats in President Bush's home state. -- Gainesville.com | The Gainesville Sun | Gainesville, Fla.

September 11, 2005

Louisiana: the political effects of Katrina

The Los Angeles Times reports: Government officials and legal experts have begun wrestling with an intriguing question posed by the evacuation of New Orleans: What happens to the politics of a region when a significant part of the electorate suddenly disappears?

The migration of hundreds of thousands of people from this urban center, many of them low-income and black, could have a dramatic effect on the political makeup of a state delicately balanced between the two major parties. If most of the evacuees choose not to return, Katrina's political legacy could be that it made Louisiana a more Republican state. -- Political Landscape May Shift on Displaced Voters - Los Angeles Times

The article also quotes me:

But political upheaval is already the second wave of Katrina's destruction. Rep. William J. Jefferson (D-La.), whose district, which includes New Orleans, was virtually leveled by the hurricane and floods, now has constituents living in other states.

"If Orleans Parish completely empties out and a lot of people don't move back — poor people especially — then the population of his district will go down, and [there will be] a disproportionate loss of black population," said Edward Still, a lawyer in Birmingham, Ala., who specializes in voting rights. "Poor people who don't own any property are less likely to come back. If every person who left and didn't come back was black, he could lose 230,000 from his district."

In Jefferson's 2nd District, which is more than 60% black, that would represent a loss of about one-third of the population.

Such a drop in black voters could inspire a challenge from a white candidate, Still said.

Texas: state lawyer fired for [seemingly] questioning Rove's eligibility to vote

The San Antonio Express-News reports: A state agency lawyer quoted in a nationally-circulated news story as questioning Karl Rove's eligibility to vote in Kerr County is out of a job and feeling twice burned.

Elizabeth Reyes said she was fired Tuesday as an attorney in the elections division of the Texas secretary of state's office because she appeared in a Washington Post story Saturday about the presidential adviser.

The article, which was reprinted in papers across the country, quoted Reyes as saying Rove's ownership of Kerr County property may not qualify him to vote there.

Reyes, a 30-year-old San Antonio native, is seeking reinstatement to the job she'd held since May.

She said she was dismissed on grounds of violating an agency policy that allows staff to respond to routine questions but directs them to refer controversial, sensitive or legal inquiries to their supervisors or a press officer. -- MySA.com: Metro | State

Thanks to Talking Points Memo for the link.

September 8, 2005

Washington State: appeals court voids law against lying in campaigns

AP reports: A law that bars political candidates from deliberately making false statements about their opponents violates the First Amendment right of free speech, an appeals panel has ruled.

The unanimous three-judge panel of the Washington state Court of Appeals on yesterday dismissed a $1,000 fine imposed by the Public Disclosure Commission on Marilou Rickert of Shelton, an unsuccessful Green Party candidate for the state Senate in 2002.

“Although the stated intent of the legislature was to ‘provide protection for candidates for public office against false statements of material fact sponsored with actual malice,’ the statute does not require any element of damage to the reputation of the maligned candidate,” Judge C.C. Bridgewater wrote for the appeals panel in Rickert v. Public Disclosure Commission.

The truth-in-campaigning law also allows candidates to falsely puff up their own records and backgrounds, further showing that it is “not narrowly tailored to the PDC’s interest in promoting integrity and honesty in the elections process and chills protected political speech,” Bridgewater wrote. -- Washington appeals panel tosses ban on campaign lies

New Jersey: 2 drop out of "clean money" campaign

AP reports: Two candidates for the state Assembly have pulled out of an experimental program to have the state fund their campaign, while two others are asking their supporters to help their struggling opponents raise the small donations needed to qualify for the state money.

William Flynn and Michael Dasaro, Democrats running in Monmouth County's 13th District are the first candidates to abandon the program. They said the task of collecting small donations to qualify for the state money was too cumbersome.

To qualify for the state funds, each candidate must collect 1,000 checks for $5 and 500 checks for $30 from registered voters in their districts by Sept. 21. The program is also being tested in the 6th legislative district in Camden County; including Flynn and Dasaro, a total of ten candidates had been taking part. -- New York City - AP New Jersey

Texas: Texans for a Republican Majority PAC and TAB indicted

The Austin American Statesman reports: The Texas Association of Business and Texans for a Republican Majority Political Action Committee have been indicted on charges of illegally using corporate money to help Republicans win control of the Texas Legislature in 2002.

The indictments, released publicly this morning, include 128 counts against the business group and two against the political action committee, which was created by U.S. House Majority Leader Tom DeLay, R-Sugar Land.

The Travis County grand jury that issued the indictments, however, took no action against the Texas Association of Business' president, Bill Hammond, or any other officials with the group today. ...

If convicted, the state's largest business group faces the threat of fines — up to $20,000 for each count. But the indictments also complicate the group's defense against civil lawsuits filed by losing Democratic candidates. Damages in those suits could be double the $1.7 million that the association spent on 4 million mailers to voters in 2002. -- Four indictments issued against TAB; one against TRMPAC

Thanks to DailyKOS for the link.

September 7, 2005

Kansas: former candidate indicted for home downpayment

The Kansas City Channel reports: A former Republican candidate for Kansas' 3rd District seat in Congress pleaded not guilty Wednesday in federal court to aiding and abetting wire fraud and converting campaign money for personal use.

Adam Taff, 40, who lost the 2004 Republican primary in a tight race against Kris Kobach, is accused of withdrawing $300,000 from campaign funds to cover a check for a down payment on a $1.2 million home owned by his boss, John D. Myers.

Myers, 48, of Leawood, also pleaded not guilty Wednesday to one count of aiding and abetting wire fraud. Myers is founder and chairman of National Mortgage Co. Inc., where Taff was employed.

According to the indictment, Taff signed a contract on Dec. 15, 2003, to buy Myers' home in upscale Lake Quivira. In January 2004, Taff signed a loan application showing that he had personal assets that included two bank accounts with balances of $61,746 and $250,000 - both of which were his campaign accounts, the indictment says. -- TheKansasCityChannel.com - Politics - Taff Pleads Not Guilty To Fraud, Campaign Charges

Oregon: former state republican

AP reports: Former state Rep. Dan Doyle said Wednesday he will plead guilty to filing false campaign finance reports, an offense carrying a possible prison term. He said he diverted campaign funds to personal use because he gave too much time to legislative duties and running for office to earn a living at his law practice.

Attorney General Hardy Myers' office announced that Doyle, a Salem Republican, will be charged with 11 counts of filing a false campaign finance report. He is to be arraigned Friday in Marion County Circuit Court.

Myers' spokesman Kevin Neely said the offense is a felony carrying a maximum prison sentence of five years and fine of up to $125,000 on each count. -- OregonLive.com: NewsFlash - Former lawmaker to plead guilty to false reports

Ohio: GOP challenges ballot initiatives

Reuters reports: An appeals court in the key electoral battleground of Ohio will hear on Thursday a challenge to ballot measures that would allow voters to strip the state's elected officials of control over electoral redistricting and how elections are run.

Republican-led opponents of four proposed constitutional amendments say they should not be on Ohio's ballot on November 8 on grounds that many people who collected the 330,000 voter signatures on petitions in support of the referendum were from outside Ohio. ...

Ohio law requires those circulating petitions to be from the state so they can be subpoenaed if there are challenges, said David Hopcraft, who represents Republicans challenging the referendum.

While the courts have made exceptions for petition gatherers working for individual candidates, the same exception does not apply to petition circulators backing issue referendums, Hopcraft said. -- Ohio electoral changes challenged by Republicans

September 6, 2005

Texas: to the Supreme Court again on the re-redistricting case

Two groups have filed a jurisdictional statement in the U.S. Supreme Court on the validity of the Texas redistricting case. The JS is here. The Questions Presented are:

1. Whether the Equal Protection Clause and the First Amendment prohibit States from redrawing lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage.

2. Whether Section 2 of the Voting Rights Act permits a State to destroy a district effectively controlled by African-American voters, merely because it is impossible to draw a district in which African-Americans constitute an absolute mathematical majority of the population.

3. Whether, under Bush v. Vera, 517 U.S. 952 (1996), a bizarre-looking congressional district, which was intentionally drawn as a majority-Latino district by connecting two far-flung pockets of dense urban population with a 300-mile-long rural “land bridge,” may escape invalidation as a racial gerrymander because drawing a compact majority-Latino district would have required the mapmakers to compromise their political goal of maximizing Republican seats elsewhere in the State.

Arizona: will legislator be removed for Clean Election law violations?

The Arizona Capitol Times reports: Legal experts see David Burnell Smith’s battle to hang onto his legislative seat taking two distinct courses.

The first is his stated intention to take his case against the Citizens Clean Elections Commission to Maricopa County Superior Court in an effort to show that he did not overspend his campaign in violation of state statute and therefore should not be removed from office.

The second in theory would have the Attorney General’s Office seek a special action before the Arizona Supreme Court to answer the question of whether the commission has the legal authority to order Mr. Smith to vacate his Seventh District seat.

Lawyers versed in constitutional law say the state has a good case and that authority to remove a legislator from office does not have to be spelled out in the Constitution. -- David Burnell Smith’s Battle To Remain In Office

New Jersey: clean money, but hard work

AP reports: A new kind of election system in New Jersey might be fair and clean, but candidates are finding it's harder work than they're used to.

After spending an hour knocking on two dozen doors yesterday, Amy Handlin and Sam Thompson had one $5 check to show for their efforts.

The two Republicans are running for Assembly seats in Monmouth County's 13th District, one of two districts where a state well known for dirty political dealings is testing using state money to pay for legislative races. The experiment is an effort to eliminate the possibility of the age-old exchanges of campaign cash for political favors.

To qualify for the state money, each candidate must raise $20,000 in $5 and $30 checks from people who live in their districts. -- Clean election system means hard work

New York City: mayoral candidate accused of overspending

WCBS-TV reports: With just a week until the democratic mayoral primary, a panel is meeting tonight to decide whether candidate Gifford Miller broke the city’s campaign finance rules.

Gifford Miller today brushed off the latest dispute over his campaign finances.

“This is the sort of insider issue not a big issue to New Yorkers," Miller said.

But with one week to primary day, the timing for him wasn't good. Today the campaign finance board refused to dismiss complaints by Miller's rivals that he flouted the law, spending over a million dollars more than he's allowed. -- Gifford Miller Accused Of Breaking Finance Rules

Georgia: groups to monitor elections for voter ID problems

The Atlanta Journal-Constitution reports: Several groups opposed to a new law requiring voters to show state-issued photo ID at the polls announced Tuesday plans to monitor local elections on Sept. 20.

The Rev. Joseph Lowery, head of the Coalition for the People's Agenda, said monitors will "make sure there's no abuse of citizens who want to exercise their right to vote."

Thirty-three Georgia counties and two cities are holding elections Sept. 20. Most are referendums for special purpose local option sales taxes, including one in Cobb County, but some include races for city council posts. Augusta voters will select a replacement for Democratic state Sen. Charles Walker, convicted earlier this year of federal fraud charges. -- Voter ID opponents to monitor elections | ajc.com