Votelaw, Edward Still's blog on law and politics: January 2007 Archives

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January 29, 2007

Cashing in the draft committee

The Washington Post reports: After months of work, the momentous day for Peter Feddo and his colleagues at the "draft Hillary" movement had finally arrived: Sen. Hillary Rodham Clinton's formation of an exploratory committee meant a presidential run was imminent.

So what now?

Draft committees are a peculiar political animal; they exist to start building excitement for a presidential candidate who hasn't even decided to run. They launch Web sites, collect names of potential supporters and raise money in anticipation of a presidential bid. ...

Under federal election rules, a draft committee can spend the money on behalf of a politician, as long as it doesn't coordinate efforts with that candidate. But the committee can donate no more than the individual contribution limit of $2,300 for the primary and $2,300 for the general election, according to Michelle Ryan, an FEC spokeswoman. -- When a Draft Group's Candidate Announces, What Comes Next? -

Father Robert Drinan -- R.I.P.

I had the good fortune to meet Father Drinan a few times while I worked in Washington. He will be missed. The New York Times story begins:
The Rev. Robert F. Drinan, a Jesuit who served in Congress for 10 years until stepping down in response to a papal order, died Sunday. He was 86 and lived here in housing for the Georgetown University Jesuit community. -- Rev. Robert Drinan, Ex-Congressman, Dies at 86 - New York Times

And the Washington Post says: The Rev. Robert Drinan, 86, the Roman Catholic priest who played a unique and historic role in American public life as a lawyer, law school teacher, opponent of war and advocate of human rights and as a congressman who recommended the impeachment of President Richard M. Nixon, died Jan. 28 at Sibley Memorial Hospital.

Father Drinan, who had taught at Georgetown University law school since ending his 10 years as a Democratic member of the House of Representatives from Massachusetts, had been suffering from pneumonia and congestive heart failure. He lived at the Jesuit residence on the Georgetown campus.

Last year, Father Drinan was one of four former members of the House to be honored with the Congressional Distinguished Service Award. In 2004, the American Bar Association called him amazing and "the stuff of which legends are made" in awarding him the ABA Medal. ...

When Father Drinan took office, he said he would continue to wear clerical garb. "It's the only clothes I have," he said. -- Rev. Robert Drinan; Congressman, GU Law School Teacher

January 26, 2007

Mississippi: DOJ calls Brown as a witness

The Commercial Dispatch reports: The U.S. Justice Department finished grilling Noxubee County Democratic Party Chairman Ike Brown on the stand Wednesday as the federal government tries to prove he diluted whites' votes and kept their candidates out of local government.

The first voting-rights trial of its kind resumed today in the second week of witnesses appearing before U.S. District Judge Tom Lee.

Lee is being asked by the Justice Department to impose measures for ensuring Noxubee County's black Democratic Party leaders are fair to white voters and candidates.

Brown was called up Tuesday by the Justice Department to testify as an adverse witness to answer allegations he's politically stifled whites in violation of the Voting Rights Act.

The charges include recruiting a black lawyer with a fake Noxubee County residence to try to defeat white County Attorney Ricky Walker, threatening to keep some whites out of Democratic Party meetings and defying a court order to hold a new sheriff's election after black incumbent Albert Walker had defeated the white-favored challenger. -- Commercial Dispatch Online

January 25, 2007

Alabama: political consultant arrested for false ad

Wheeler at Alablawg writes about a story I read but forgot to post: Basically, Troy King’s office is prosecuting a political consultant named Rick Spina because, prior to the last election, Spina allegedly took out an ad in the B’Ham news that included false and damaging information about Jim Carns, a candidate for the JeffCo commission. -- Troy King Thinks Roy Moore Is Political Poison « The Alablawg

Funny stuff.

Virginia: redistricting commission proposal passes committee

AP reports: A bipartisan commission would draw congressional and legislative district boundaries based on population, not politics, under a constitutional amendment that cleared its first hurdle Tuesday.

Though the measure passed the first obstacle, there's a long way to go before the partisan way district lines are drawn could change. Sen. Creigh Deeds, D-Bath, has introduced the same proposal since 2002 without success, and on Tuesday, it advanced with the support of just one Republican. ...

The amendment would change Virginia's constitution to put redistricting in the hands of a 13-member commission made up of two appointments each by Senate and House leaders, the minority leaders of each house and the state Democratic and Republican party chairmen. The 12 partisan members then select the 13th member, and if they can't agree, the Supreme Court make the choice.

The "radical" part of the bill, according to Deeds, is that the only demographic consideration that can be made in drawing district lines is population. -- Amendment would let bipartisan commission draw district lines

Texas: annonymous gifts to presidential libraries questioned

The Dallas Morning News reports: The big names on campus – all thanks to big dollars – are emblazoned across SMU: the Meadows Museum, Cox School of Business, Moody Coliseum, Gerald J. Ford Stadium, Bob Hope Theater.

There's even the Laura Bush Promenade – a walkway financed by a $250,000 gift eight years ago from George W. Bush to his wife's alma mater.

Colleges routinely offer naming rights to encourage donors. But public recognition is voluntary. Private schools don't have to identify financial supporters, and neither do presidential libraries, such as the one Mr. Bush may place at Southern Methodist University.

Watchdog groups have warned of potential abuse when presidents building endowments for their libraries are allowed to accept unlimited, anonymous gifts from corporations, federal contractors, even foreign governments. Seeking more openness, the Senate last week voted to require disclosure of donations of $200 or more to presidential libraries or inaugural committees – but only from registered lobbyists. -- Dallas Morning News | News for Dallas, Texas | News: Local News

Colorado: bill to regulate 527s pending in House

The Fort Collins Coloradoan reports: A bill requiring so-called 527 political advocacy groups to identify financial donors passed the Colorado House Committee on State, Veterans and Military Affairs by a 9-1 vote on Thursday.

It will now head to the full House for a vote.

The bill, aimed to identify financial donors that have flooded both state and federal elections with millions of dollars that mostly fund political attack ads, will bring more fair rules to campaign finance laws, said Rep. Morgan Carroll, D – Aurora. -- The Coloradoan - - Ft. Collins, CO.

Montana and South Dakota: Baucus forms joint committee for himself and Johnson

The Billings Gazette reports: Sen. Max Baucus, D-Mont., recently opened a special joint fundraising account to raise cash for himself and for the possible 2008 re-election bid of hospitalized Sen. Tim Johnson, D-S.D.

The paperwork has been filed and organizers plan to hold a "big, signature event" in February, said Jim Messina, Baucus' chief of staff. All money will be evenly split between the two senators. ...

Baucus, who also is up for re-election in 2008, had $1.4 million cash on hand as of Sept. 30, according to the most recent Federal Election Commission reports. Johnson, who only narrowly won his last re-election battle, had $651,000.

Messina said organizers have been "pleasantly surprised" by how many people have already expressed interest in contributing. -- :: Baucus to assist ailing senator

Michigan: Feiger sues AG

The Detroit News reports: Southfield attorney Geoffrey Fieger filed a federal lawsuit today against U.S. Attorney General Alberto Gonzales and the Federal Election Commission, alleging a grand jury investigation of Fieger and his law firm is unlawful.

A federal grand jury has been investigating more than $50,000 in political donations made to Democrat John Edwards by Fieger and Fieger associates when Edwards was a candidate for his party's 2004 presidential nomination. ...

In his lawsuit, Fieger alleges such a matter can only be referred to the attorney general after an investigation and referral by the FEC. Fieger alleges such a referral never happened. He asks the court for a declaration that the grand jury investigation is unlawful. -- Fieger sues U.S. Attorney General

Will white, male candidate X appeal to white males?

Why are articles with titles like this, Obama's Appeal to Blacks Remains an Open Question, even considered newsworthy?

The election turns on the votes of all the people -- or of the Supreme Court.

Big states frontloading the primaries

The New York Times reports:
As many as four big states — California, Florida, Illinois and New Jersey — are likely to move up their 2008 presidential primaries to early next February, further upending an already unsettled nominating process and forcing candidates of both parties to rethink their campaign strategies, party officials said Wednesday.

The changes, which seem all but certain to be enacted by state legislatures, mean that the presidential candidates face the prospect of going immediately from an ordered series of early contests in relatively small states in January to a single-day, coast-to-coast battlefield in February, encompassing some of the most expensive advertising markets in the nation.

The changes would appear to benefit well-financed and already familiar candidates and diminish the prospects of those with less money and name recognition going into such a highly compressed series of contests early next year.

Associates of Senator Hillary Rodham Clinton, the New York Democrat, and Senator John McCain, the Arizona Republican, said that should either of them stumble early on, the respective party primaries in California and New Jersey — two states that would seem particularly hospitable to them — could offer an expensive but welcome firewall. -- Big States’ Push for Earlier Vote Scrambles Race - New York Times

January 24, 2007

Texas: court of criminal appeals hears arguments in DeLay conspiracy case

The Austin American-Statesman reports: Travis County prosecutors Wednesday urged the state's highest criminal appellate court to re-instate criminal conspiracy charges against former U.S. House Majority Leader Tom DeLay.

Lawyers for DeLay and two associates countered that lower courts were correct in dismissing the indictment because conspiracy did not apply to the 2002 election laws that DeLay is accused of violating.

They also raised the specter that if the Texas Court of Criminal Appeals rules against their clients it could raise the question whether the defendants had "fair notice" that they were committing a crime. ...

The issue before criminal appeals court Wednesday was whether DeLay and his associates, who had hands-on responsibility for the committee, can be charged with conspiring to violate that ban against corporate donations.

At the heart of the issue is whether criminal conspiracy applies to felonies listed in laws outside the penal code. -- Travis County seeks to reinstate conspiracy charge for DeLay

Alabama: Democrats may push mid-decade redistricting

The Mobile Press-Register reported on Sunday: Democrats in the Alabama Senate are exploring the possibility of redrawing districts in the state early in hopes of boosting their chances of winning more seats in the Legislature and Congress.

The senators, who said they got the idea from Republicans in Texas, approved rules this month that simplified passing redistricting bills in the Legislature's upper chamber before the 2010 Census. ...

Democratic Sens. Zeb Little of Cullman and Roger Bedford of Russellville said they do not have specific plans, but said they passed the new rules with the intention of keeping their options open. ...

Little, the Senate majority leader, said Democrats' goal would be to create districts in Alabama that were more favorable to their party. He said their main goal would be maintaining Democratic power in the 35-member Senate. -- Alabama Democrats exploring redistricting

House allows delegates to vote in Committee of the Whole

The Hill reports: In a move that left Republicans crying foul, the House voted Wednesday to change its rules and grant limited and mostly ceremonial voting rights to the five delegates representing the District of Columbia and four U.S. territories.

The resolution passed 226-191, largely along party lines. The voting rights for the District of Columbia, Guam, American Samoa, Puerto Rico and the U.S. Virgin Islands are largely symbolic and the rules change is designed to make sure that the delegates' votes cannot affect the fate of legislation.

Regardless, Republicans were fuming after the vote and labeled it "a power grab." Four of the five delegates are Democrats. ...

The rules change will allow the delegates to cast votes on amendments. However, they cannot vote on final passage of a bill, and, if the delegates tip the balance on any given amendment, the House will re-vote on that amendment without the delegates' participation. -- Delegates get limited voting rights, Republicans get angry

Mississippi: defeated candidate testifies against Ike Brown

The Commercial Dispatch reports: An unsuccessful candidate for sheriff testified Monday that Noxubee County Democratic Party Chairman Ike Brown's allies include the sheriff's department, which has been used as “the strong arm” to split the county along racial lines.

Sam “Tiny” Heard said the black-dominated Noxubee County Election Commission also works to shut whites out of politics.

“The ones who abuse their positions are the polarizing effect,” said Heard, a white who lost the 2003 election to black Noxubee County Sheriff Albert Walker. ...

The Justice Department alleges Walker and his deputy sheriffs are part of the “political machine” used to ensure Noxubee County whites lose elections. They've escorted Brown in patrol cars to Election Day precincts to aid his attempts to rig the vote, and they've intimidated witnesses with evidence against Brown, according to the claims. -- Commercial Dispatch Online

Arizona: FEC considers allowing Kolbe to use campaign funds for legal expenses

AP reports: Retired Rep. Jim Kolbe, R-Ariz., may use campaign funds for legal expenses racked up while the House ethics committee and the Justice Department were investigating his connection to a scandal involving House pages, the Federal Election Commission wrote in a draft advisory opinion made public Tuesday.

Kolbe, who retired last year, told the FEC that he incurred legal expenses after he became involved in the unfolding scandal over former Republican Rep. Mark Foley's salacious communication with former House pages. ...

FEC officials wrote that the legal fees count as "ordinary and necessary expenses" incurred in connection with holding federal office.

The commission will consider the case during a meeting Thursday. -- Kolbe gets green light on use of extra funds | ®

January 23, 2007

"Federal Election Integrity Act" introduced reports: Congresswoman Susan Davis (D-CA) has introduced the Federal Election Integrity Act (H.R. 101.) It would prohibit chief state election officials from engaging in political activity on behalf of federal candidates over whose elections the officials have supervisory authority. -- Election Integrity Bill Introduced in Congress

Mississippi: Noxubee County voter-intimidation case enters second week

The Jackson Clarion-Ledger reports: A black Noxubee County Democratic Executive Committee official said she was going to follow her own law in counting absentee ballots during a 2003 primary election, a white candidate's son testified Monday.

"I was not allowed to make challenges," said Richard Heard, whose father was a candidate for county sheriff.

In the first lawsuit of its kind in the United States, the Department of Justice is accusing black political leaders in majority-black Noxubee County of discriminating against white voters.

A trial on the lawsuit is in its second week in U.S. District Court in Jackson. District Judge Tom S. Lee will decide the case.

The Justice Department is still presenting its side. -- Absentee vote count questioned - The Clarion-Ledger

Connecticut: Secretary of State proposes earlier petition deadline

The Stamford Advocate reports: The secretary of the state is proposing a change that would force candidates to petition their way onto the November ballot weeks before a party primary.

The move would allow voters to know upfront that candidates who lose a primary collected enough signatures to be on the ballot on Election Day.

Secretary of the State Susan Bysiewicz said she is making the proposal after U.S. Sen. Joseph Lieberman collected signatures and formed his own party last summer after it looked likely he could lose the Democratic primary to Greenwich cable entrepreneur Ned Lamont. In the fall election, Lieberman ran as petition candidate and won. ...

Bysiewicz's proposal does not go as far as the "sore-loser" laws, found in more than 40 states, that force candidates to make a choice - either run in a primary or petition their way onto the ballot. ...

Edward Still, an Alabama elections attorney who maintains a Web site and blog called Votelaw, said that if Bysiewicz's new deadline passes, party leaders could establish their own rules preventing primary candidates from running simultaneously as petition candidates.

"That would prevent anybody from having two different choices (and) actually give the change in law some teeth," Still said. -- | Ballot Controls Proposed For Candidates

Alabama: Judge splits cases attacking election of state senators

The Montgomery Advertiser reports: A Montgomery judge split two lawsuits challenging the election of five Democratic state senators, ruling Monday the cases involving campaign finance reports are too different.

Circuit Judge Charles Price sent the suit challenging the election of state Sen. Larry Means, D-Attalla, to Circuit Judge Gene Reese to hear. Price still will handle the suit challenging the election of Democratic Sens. Lowell Barron of Fyffe, Zeb Little of Cullman, Roger Bedford of Russellville and Hank Sanders of Selma.

The suit against Means was filed by his write-in opponent in the Nov. 7 election, Jack Lowe Jr. of Gadsden. -- :: Judge splits suits challenging election

Public financing of presidential elections may soon be gone

The New York Times reports: The public financing system for presidential campaigns, a post-Watergate initiative hailed for decades as the best way to rid politics of the corrupting influence of money, may have quietly died over the weekend.

Senator Hillary Rodham Clinton of New York became the first candidate since the program began in 1976 to forgo public financing for both the primary and the general election because of the spending limits that come with the federal money. By declaring her confidence that she could raise far more than the roughly $150 million the system would provide for the 2008 presidential primaries and general election, Mrs. Clinton makes it difficult for other serious candidates to participate in the system without putting themselves at a significant disadvantage.

Officials of the Federal Election Commission and advisers to several campaigns say they expect the two candidates who reach Election Day 2008 will raise more than $500 million apiece. Including money raised by other primary candidates, the total spent on the presidential election could easily exceed $1 billion.

People involved in the Republican primary campaign of Senator John McCain of Arizona say he, too, is beginning to seek private donations for the primary and general elections, albeit with the option of returning them. A longtime proponent of campaign finance change, Mr. McCain has recently removed his name as a co-sponsor of a bill to expand the presidential public financing program.

Former Gov. Mitt Romney of Massachusetts, another Republican primary contender, has already decided to forgo public financing for the primaries. Senator Barack Obama of Illinois, a rival to Mrs. Clinton for the Democratic nomination, declined to comment, as did spokesmen for several other candidates. -- Death Knell May Be Near for Public Election Funds - New York Times

January 22, 2007

"On the Electronic Campaign Trail"

The Washington Post reports (in print and via a video): By noon on Jan. 10, Matt Rhoades and Kevin Madden knew they had a problem.

The two men handle communications for former Massachusetts governor Mitt Romney's presidential exploratory committee and had been told about a video flying around the Internet that spliced clips from Romney's 1994 debate with Sen. Edward M. Kennedy (D-Mass.). In it, Romney (R), then running for the Senate in a losing campaign against Kennedy, voiced support for abortion rights and gay rights -- positions he has since renounced.

Romney's political inner circle, alerted to the threat, decided to strike back quickly. Less than eight hours after the attack appeared, a video of Romney rebutting the charges was being sent to his supporters and to Republican blogs.

"In a viral information age, a distortion of the record can quickly sink in as fact," Madden said. "It was very important to show that what was an anonymous attack eventually became a moment of strength for our campaign." -- On the Electronic Campaign Trail -

Mississippi: legislator to introduce National Popular Vote plan

AP reports: The movement to junk the Electoral College and choose a president by a nationwide popular vote has come to Mississippi.

Legislation has been filed here and in 46 other states this year to award a state's electoral votes to the candidate who wins the popular vote nationally.

Sen. Gloria Williamson, D-Philadelphia, filed the bill here. She said the effort, led by the National Popular Vote, is aimed at preventing a repeat of 2000, when Democrat Al Gore lost the electoral vote and, ultimately, the presidential race, despite getting more individual votes than Republican George W. Bush. -- | 01/22/2007 | Miss. lawmaker says presidential Electoral College system is outdated

District of Columbia: DC and territories' delegates may get voting rights in House

AP reports: When the bells ring announcing a vote, 435 members of the House stream out of their hearings and offices and head for the House floor. Five others, banned from voting, seldom bother.

That would change if the new Democratic majority succeeds in changing the rules this week to give partial voting rights to the delegates from the District of Columbia, Puerto Rico, American Samoa, Guam and the Virgin Islands. A vote is scheduled Wednesday on restoring the rule.

It was in effect in 1993 and 1994 _ the last time Democrats were in power _ but rescinded when Republicans took over Congress in 1995. ...

The rule that existed briefly a decade ago let delegates vote in what is called the "committee of the whole," a term for the procedures the House uses when debating and amending a bill before going to a final vote. But the rule also stipulated that if a delegate's vote has a decisive impact on the outcome, the committee of the whole disbands and the full House votes on the issue without delegate participation. -- House Delegates May Get Some Voting Rights

January 21, 2007

Viriginia: federal judge stays his ruling on closed primaries

The Richmond Times-Dispatch reports: A federal judge has stayed the implementation of closed nominating primaries in Virginia.

The stay has political implications because conservative Republicans hope to use closed primaries to nominate their candidates in the June 11 General Assembly primary.

State Sen. Ken Cuccinelli, R-Fairfax, representing those seeking to close the primaries, appealed U.S. District Judge Henry Hudson's stay order and asked the 4th Circuit Court of Appeals for an expedited hearing.

"We want a decision by Feb. 22, when the legislative district committees start considering their nominating procedures," Cuccinelli said yesterday. -- | Judge orders stay on closed nominating primaries in Va.

Note: For the earlier story on this case, click here.

Senate tables amendment to treat Indian tribes as corporations in campaign finance law

Indian County Today reports: In a Jan. 10 vote, the Senate dealt a setback to an amendment that sought to define tribes as corporations under the Federal Election Campaign Act. By tabling the amendment on a 56 - 40 vote, the chamber killed the amendment's chances of being attached to lobbying and ethics reform legislation.

But 40 senators voted in favor of keeping the amendment alive. For an amendment that did not make it out of the Rules Committee in the 2006 Senate session, according to Capitol Hill senior staff who spoke on background but not for attribution, 40 votes is a surprisingly strong showing. Unlike the House of Representatives, the Senate abides by no ''germaneness'' rules on amendments, meaning the amendment of Sen. David Vitter, R-La., can be offered to any bill, regardless of whether it is germane to its subject matter.

The Federal Election Campaign Act of 1971 actually leaves tribes out of account, like a bevy of laws from that era. In implementing and enforcing the law, the Federal Election Commission has made rulings on tribes in light of the 1971 enactment. Several leading results of the commission's rulings are that 1) tribes are defined for election purposes as ''persons'' but not as ''individuals,'' and so are not subject to any aggregate limit on their political contributions; 2) tribes are not political action committees ''because their major purpose is not to influence the election or defeat of candidates''; and 3) ''Because Indian tribes do not typically incorporate, are not labor organizations, and are not national banks, the prohibitions ... on these entities making contributions do not extend to Indian tribes.'' -- Vitter amendment killed in Senate vote : ICT [2007/01/19]

Alabama: sponsor predicts passage of PAC-to-PAC transfer ban this year

AP reports: State Rep. Jeff McLaughlin says he has felt like "Linus in the pumpkin patch" the last six years, watching time and again as his proposed ban on PAC-to-PAC transfers cleared the House with great fanfare only to quietly die in the Senate. ...

Here's how it works: A candidate's campaign finance report filed with the secretary of state's office shows he or she received a large donation from a PAC, usually with a name filled with initials that mean nothing to most voters. A check of the PAC's finance report finds a large donation from another PAC.

McLaughlin said it often takes at least several steps of going from report to report to find the actual source of the contribution. Even then, he said it can be impossible to know for sure because some PACS receive money from various sources. ...

Some legislators believe the recent change in Senate leadership - which lifted Sen. Hinton Mitchem, D-Union Grove, a friend of McLaughlin, to senate president pro tem - could mean easier sailing for the proposal. Also, it was endorsed during last year's campaign by Democrats, Republicans and Gov. Bob Riley. -- AP Wire | 01/20/2007 | Legislators predict 2007 may be year to pass PAC-to-PAC ban

The Racing Form (pt. 4)

With Sen. Sam Brownback's announcement, the Wall Street Journal's Circling the Oval Office has been updated.

Update: And for Gov. Bill Richardson's exploratory committee.

Second Update: CQ Politics has a list, the "2008 White House Derby: The Field So Far." The list was last updated on Saturday before Brownback and Richardson announcements.

If someone knows of a frequently-updated chart on the Internet with links to these candidates' websites, please let me know. I will link to it.

January 20, 2007

The Racing Form (pt. 3)'s "Circling the Oval Office" has been updated with the announcement of Sen. Hillary Rodham Clinton.

Supreme Court expedites WRTL campaign-finance case

The New York Times reports: The Supreme Court stepped back into the debate over campaign finance regulation on Friday, announcing an expedited review of a ruling last month that substantially narrowed the application of a major provision of the McCain-Feingold federal campaign law.

At issue is a section of the 2002 statute that imposes a blackout period before elections on television advertisements that meet the law’s definition of “electioneering communications” and that are paid for from the general treasuries of corporations or labor unions.

The question is how to reconcile that provision with the free-speech rights of groups that say they are engaged in grass-roots lobbying, the sort of genuine issue advertising the First Amendment protects.

The court heard the same case a year ago, shortly before Justice Samuel A. Alito Jr. took his seat last January. Faced with the prospect of a 4-to-4 deadlock in the absence of Justice Sandra Day O’Connor, who was days away from retirement and would not have been able to participate in a decision, the court then sent the case back to the lower court. -- Justices Revisit Campaign Finance Issue - New York Times

January 19, 2007

Ohio: prosecutor charges rigged recount

AP reports: Three county elections workers conspired to avoid a more thorough recount of ballots in the 2004 presidential election, a prosecutor told jurors during opening statements Thursday.

"The evidence will show that this recount was rigged, maybe not for political reasons, but rigged nonetheless," Prosecutor Kevin Baxter said. "They did this so they could spend a day rather than weeks or months" on the recount, he said.

Jacqueline Maiden, the Cuyahoga County Board of Elections' coordinator, faces six counts of misconduct over how the ballots were reviewed. Rosie Grier, manager of the board's ballot department, and Kathleen Dreamer, an assistant manager, face the same charges. ...

Ohio law states that during a recount each county is supposed to randomly choose 3 percent of its ballots and tally them by hand and by machine. If there are no discrepancies in those counts, the rest of the votes can be recounted by machine. ...

Baxter said testimony in the case will show that instead of conducting a random count, the workers chose sample precincts for the Dec. 16, 2004, recount that did not have questionable results to ensure that no discrepancies would emerge. -- AP Wire | 01/18/2007 | Ohio elections workers on trial

District of Columbia: voting legislation re-introduced in U.S. House

The DCist blog reports: Last year ended on a bit of a sour note for District voting rights, but activists aren't letting a little bad news stop them.

After being stymied by Republican leaders in the closing weeks of the 109th Congress, Rep. Tom Davis (R-Va.) and D.C. Del. Eleanor Holmes Norton re-introduced legislation on January 9 to grant the District one voting seat in the House of Representatives. The legislation, known as the Fair and Equal House Voting Rights Act, is currently before the House Judiciary Committee, and voting rights activists hope to have it before the full House in February. In a press briefing last week on the matter, D.C. Vote Executive Director Ilir Zherka recognized that the legislation's re-introduction represented a "second chance to finish this marathon," also admitting, "we're in the last few miles...[they're] the most difficult." -- DCist: Voting Rights Bill Re-Introduced; Faces Challenges

Mississppi: Ike Brown's lawyer cross-examines DOJ government witness

AP reports: Attorneys for Noxubee County Democratic Party official Ike Brown continued a rigorous cross-examination of a government witness Thursday in an attempt to find flaws in the witness' testimony.

Theodore Arrington, a University of North Carolina political science professor testifying for the U.S. Justice Department, examined the politics of Noxubee County and found that Brown and the county's Democratic Executive Committee are disenfranchising white voters.

He took the witness stand early Wednesday morning and finished at 4 p.m. Thursday after sometimes heated exchanges with Brown's defense attorney. ...

Brown's attorney, Wil Colom, closely questioned Arrington on Thursday about his earlier testimony and his investigative documents. Of the six election complaints cited by Arrington, five were overturned. The one upheld was the only election that took place under Brown's supervision as head of the executive committee.

Colom asked Arrington, the former vice chairman of the Republican Party in Charlotte, N.C., to give specific proof of ballot fraud and that coercion took place at the polls. A clearly frustrated Arrington could not. -- The Sun Herald | 01/19/2007 | Expert cross-examined in voting trial

Virginia: 18 months for vote fraud

The Kingsport Times-News reports: Retired mail carrier Don Estridge was sentenced to 18 months in jail by Wise County Circuit Judge Tammy McElyea on Thursday for Estridge's role in an Appalachia election fraud plot.

The judge, however, balked at a recommended two-year jail sentence for former Appalachia Mayor Ben Cooper, considered the "kingpin" of a conspiracy to steal the 2004 town elections.

A jury found Estridge guilty on Oct. 12 on three of four counts, including conspiracy to prevent others from exercising their right to vote, conspiracy to steal absentee mail ballots, and aiding and abetting violations of Virginia's absentee ballot procedures.

Estridge, the only one of 14 original defendants to proclaim his innocence throughout what has been nearly a yearlong legal ordeal, did so before the court again on Thursday. All the other defendants - including Cooper - forged cooperation and plea agreements with the special prosecution team of Tim McAfee and Greg Stewart. -- Tri-Cities, Tennessee Personal News and Media Center

California: Monterey activists circulated petitions in English, not Spanish

The Monterey County Herald reports: Slow-growth advocates on Thursday trumpeted the first victory in their effort to head off enactment of the Monterey County general plan update.

In 10 days, the backers of a referendum challenging the county's new general plan have gathered more than 9,000 signatures, enough to qualify under election law. They said they plan to gather at least 15,000 signatures before submitting them to the county elections department Feb. 1. ...

Despite a lawsuit by Latino voting rights advocates challenging the circulation of earlier English-only petitions, the latest petition was not translated into Spanish. Fitz said he is convinced the latest petition is on solid legal ground, citing a recent court decision that he said protected privately circulated petitions from a translation requirement.

He added that petitioners were prepared to assemble a Spanish-language petition, but county officials said they couldn't translate the hulking general plan update documents into Spanish until the end of March. Mitchell added that some of the signature gatherers are Spanish speakers and were able to explain the issue to non-English speakers. -- Monterey County Herald | 01/19/2007 | Petition drive going strong

Kansas: proposal for voter I.D.

The Basehor Sentinel reports: The chairman of a committee that deals with election law has proposed a measure that would require voters to provide photo identification before their ballot would count.

"I am certain these integrity measures will enhance the confidence of the citizens of Kansas in our election process," state Sen. Tim Huelskamp, R-Fowler, said.

Huelskamp said he has heard from dozens of Kansans who are concerned that people who aren't allowed to vote, including illegal immigrants, are casting ballots. ...

Huelskamp's measure has a list of acceptable photo identification including driver's license, employment badge, credit card, neighborhood association, retirement center, school, military, buyer's club, passport, public assistance or from the state revenue department. -- Basehor Sentinel: Proposal would require photo I.D. to vote

Indiana: plaintiffs ask for en banc rehearing on voter I.D. case

The Indianapolis Star reports: Plaintiffs challenging Indiana's voter identification law filed a motion Thursday seeking a rehearing, saying they think a federal appeals court erred when it upheld the law earlier this month. ...

But the plaintiffs, who include Democrats and civil liberties activists, want the entire 12-judge court to weigh in. They argue there is plenty of evidence showing the law has caused voting problems. -- Plaintiffs seek rehearing on state's voter ID law |

January 18, 2007

The Racing Form (pt. 2)

Trapper John at DailyKos lists the GOP candidates for President. --
Daily Kos: GOP Cattle Call 2008: Week of 01/15/07

"Exploratory" committees ... explained

The Washington Post reports: It's this season's must-have political entity: the presidential exploratory committee. The legal equivalent of sticking one toe in the campaign waters, an exploratory committee allows prospective candidates to begin raising money for a campaign while they are still deciding whether to take the plunge.

Obama hand-delivered his committee paperwork to the Federal Election Commission on Tuesday morning, explaining that he would announce a formal decision Feb. 10. The five-page file reveals little beyond who's keeping the books and which bank the campaign is using (Citibank). But it puts his campaign on firm legal ground. Most candidates would prefer not to announce a candidacy this early, but given the massive sums they must raise to compete these days, they need all the time they can get. ...

The word "exploratory" is not in any FEC regulations. Instead, the phase is referred to as "testing the waters," and an exploratory committee is legally just a campaign committee with "exploratory" in its name. When a formal campaign is announced, the candidate usually changes the name of the committee -- for instance, from "Obama Exploratory Committee," as the senator named his new entity, to something like "Obama for President."

"If you want to just test the waters, assess your viability, you don't necessarily have to register a committee with us," said FEC spokesman Robert W. Biersack. "But in exchange, you cannot do certain things: create a war chest, actively campaign, generate material that says 'Vote for me.' " -- Before Running, Candidates Must Explore -

January 17, 2007

Civil Rights Commissions records coming online

Mary L. Dudziak writes on Legal History Blog: The U.S. Commission on Civil Rights and the Thurgood Marshall Law Library at the University of Maryland announce a joint project to make records of the Civil Rights Commission available on-line. The press release, below, refers to the Civil Rights Act (presumably meaning the Civil Rights Act of 1964), but of more value to researchers will be Commission reports, such as a 1961 report on voting rights, available here. While these documents should be available in libraries that are government document repositories, the website will make them much more accessible to a broader range of researchers. Some briefing papers are included, but the collection principally consists of published reports. Some materials are in Spanish. The Commission was established in 1957. The materials appear to range from the early 1960s to at least 2004. -- Legal History Blog

Alabama: principal briefs now filed in Gooden v. Worley appeal

The main briefs have now been filed in the State of Alabama v. Gooden appeal to the Alabama Supreme Court (this was Gooden v. Worley in the trial court). Click on the links to get the Appellants' brief (1711 kb) and the Appellees' brief (219 kb). For earlier posts about this case, go to the Voting archive page on my other website.

Ryan Haygood, Sam Spital, and I represent the plaintiffs in this action seeking to restore the voting rights of thousands of Alabamians who have wrongfully been denied the right to vote.

A group of clergy have filed an amicus brief (1362 kb) in support of the plaintiffs. We appreciate the work of the Brennan Center and the Birmingham firm of Whatley Drake & Kallas LLC in producing this brief.

The Racing Form

AP has a list of declared and thinking-about-it candidates for president. -- The 2008 presidential field at-a-glance - Yahoo! News

Update: The Wall Street Journal has a frequently-updated list of those who are running, those who are "mentioned," and those who were "mentioned" but have said they are not running, at Circling the Oval Office.

And don't overlook DailyKos's "Dem Cattle Call 2008" which he updates every week.

January 16, 2007

Alabama: Montgomery Mayor proposes King memorial

AP reports: Rev. Martin Luther King Jr. rose from being an obscure Baptist preacher to jump start the Civil Rights Movement as he led the Montgomery Bus Boycott more than 50 years ago, but there’s not a monument to King in the town where he rose to national prominence.

Montgomery Mayor Bobby Bright says it’s time to change that.

During a celebration of what would have been King’s 78th birthday Monday, Bright said he will help lead an effort to build a monument for King somewhere in Montgomery. He said the memorial might be near the Capitol steps where King spoke at the end of the 1965 Selma-to-Montgomery Voting Rights March and the small frame church across the street where he first preached his message of peace and love in the 1950s. -- Montgomery mayor seeks monument for King Jr.

New York: a proposal to ban at-large elections

The Hudson Valley News reports: Assemblyman Peter Rivera of the Bronx and community leaders, Monday unveiled a proposal that would ban at-large elections and force the 932 towns and 554 villages in the state to adopt a modern district elections system. ...

The proposed law would expand the federal Voting Rights Act by forcing communities that continue to rely on at-large elections to adopt district or ward elections by the fall of 2009. This move alone will allow minority communities and all communities in areas that use at large elections with greater access to the ballot, both as candidates for office and as voters, Rivera said. -- Hudson Valley News story

Got Slogan?

The Marine Corps Times reports: Got a catchy phrase that expresses your emotions about voting?

Enter it in the Federal Voting Assistance Program’s voting slogan contest. The deadline is April 9, after which a panel of independent judges will pick the most original entry that inspires citizens to vote.

The FVAP holds a slogan contest every two years as part of its efforts to promote interest in elections among citizens covered by the Uniformed and Overseas Citizens Absentee Voting Act. The 2005 winning slogan, submitted by Navy civilian employee Roy Clark of Jacksonville, Fla., was “Responsibility Has No Borders. Vote!”

What’s in it for the contest winner and runners-up? You’ll have the satisfaction of knowing that your slogan is being placed on the FVAP Web site, in the 2008-09 Voting Assistance Guide, on motivational posters, audiovisual materials and other FVAP publications and manuals worldwide. The winner also will receive a certificate of recognition. -- Feds take suggestions for ballot box battle cry - Marine News, Special Reports, Frontline Photos, This Week's Marine Corps Times - Marine Corps Times

Mississippi: Ike Brown trial starts today

The Washington Post reports: Over the years, Ike Brown has earned a reputation in rural Noxubee County as a wily political boss, and his election triumphs have time and again aroused suspicions of impropriety. But talk of his tactics never carried much farther than this small community of sawmills and catfish ponds.

Today, though, Brown, who is African American, is scheduled to go on trial in federal court in Jackson, where he will face charges from the Justice Department that he violated the political rights of Noxubee's white minority. It is the first time that the 1965 Voting Rights Act has been used to ensure white rights.

About two-thirds of the 8,700 adults in Noxubee County are black, and Brown, the local Democratic committee chief, has been criticized for urging people to "vote black" while engaging in an array of electoral shenanigans.

At issue is whether Brown, 52, has directed "relentless voting-related racial discrimination" against white voters and white candidates through fraudulent election tactics, as federal lawyers say, or whether he was merely operating aggressive political campaigns in a milieu that has long been split along racial lines. -- Alleged Voting Rights Violation With Twist Goes to Trial -

Money flows to Congress: what else is new?

The Washington Post has a large graphic: Sure, the Democrats have taken control of the Capitol. But corporate donors tend to be colorblind when it comes to giving away campaign cash. With big businesses backing both sides of the aisle, is the 110th really all that different from the 109th? -- Cash Flow: Congress Changes Hands -- or Does It? -

Thanks to jgilbert2000 for the link.

January 13, 2007

Alabama: suit over campaign disclosures to include 1/4 of legislature

AP reports: A lawsuit challenging the election of several Democratic state senators could grow to include one-fourth of the Legislature and may not be resolved by the time the new Legislature starts considering proposed laws. ...

Montgomery Circuit Judge Charles Price held a hearing Friday on two lawsuits filed over the 2006 elections. ...

Price directed [attorney Mark] Montiel to file court papers bringing into the suit all legislators who are similarly situated to the four senators.

Montiel said he considers the four unique because they spent large sums to try to defeat three other senators in the Democratic primary, and state law requires candidates to file campaign finance reports when they spend money to influence an election.

Democratic Party attorney Joe Espy said traditionally in Alabama, candidates for public office have not had to file reports during the primary campaign if they had no opposition in the primary election, and the four senators had no primary opposition. -- NewsFlash - Lawsuit challenging state senators to include more lawmakers

January 12, 2007

Florida: Coulter may have committed a third crime

The Palm Beach Post reports: When it comes to dealing with Palm Beach GOP vixen Ann Coulter — who, police now say, could end up facing two felonies and one misdemeanor — elections boss Arthur Anderson is starting to look like Don Quixote.

Nearly a year after Coulter allegedly voted in the wrong precinct in a town of Palm Beach municipal election, Anderson is looking desperately for a law enforcement agency willing to investigate.

In November, the gangly Anderson went to the town's police department. But Palm Beach's Finest weren't interested. ...

After Anderson asked the Palm Beach PD for help, the department issued a three-page report last month hinting at troubles ahead for the law-and-order Coulter. According to the report, she could end up charged with: one felony count for signing a voter form claiming she lived at her Realtor's Indian Road home instead of her Seabreeze Avenue homestead; one felony count for "unauthorized possession of a driver's license," also for providing the same wrong address when obtaining her license; and a misdemeanor for knowingly voting in the wrong precinct. -- Vote chief can't find lever to hook Coulter

Hat tip to BradBlog for the link. BradBlog also has copies of several documents in the case.

New York: paper or digital for voting machines?

Courier-Life Publications reports: The City Council is poised to make its voice heard on the controversial issue of which voting machines the Board of Elections should choose for New York City.

A resolution recommending that the Board of Elections select paper ballot optical scanners, was introduced earlier this year by City Councilmember Charles Barron and has 44 additional sponsors. The council will be holding a hearing on the matter in January, with the city’s election commissioners supposed to be making a decision in February.

In general terms, the choice the Board of Elections faces is between optical scanners and touch screen voting machines, also known as DREs (Direct Recording Electronic).

As the last state in the union not to have complied yet with the Help America Vote Act (HAVA), which was passed in 2002 in the wake of the controversial 2000 presidential election, New York is under orders from the federal Department of Justice to replace its old lever machines with machines that comply with HAVA’s requirements. -- Courier-Life Publications - Paper ballots vs. touch screens - NYC Council mulls over new way for Brooklynites to vote

Alabama: Theresa Burroughs describes her struggle to register in 1947

Theresa Burroughs spoke to the StoryCorps of NPR: In 1947, Theresa Burroughs was 18 years old and ready to vote. But in her Alabama town, it took two years of effort just for her to register.

Accompanied by J.J. Simmons, a minister who would not let her back down, Burroughs went down to the Hale County Courthouse on the first and third Monday of each month.

"The white men," Burroughs says, "they would not let us register to vote."

The chairman of the board of registrars, remembered by Burroughs only as "Mr. Cox," posed questions meant to disqualify black voters, such as "How many black jelly beans in a jar? How many red ones in there?" -- NPR : 'Until the Building Falls Down': A Fight to Vote

Illinois: Chicago Heights' 20-year voting rights suit

Daily Southtown reports: Chicago Heights has spent 20 years and more than $3 million defending a voting-rights lawsuit that has become the oldest in the federal court system.

And that's just one of more than a dozen federal lawsuits the city of 40,000 residents will defend this year.

City attorney Thomas "TJ" Somer said he's optimistic a final ruling will come later this year on the voting-rights case filed in 1987 by Kevin Perkins, who is now an alderman in the city's 3rd Ward.

Perkins and others alleged the city's then-commission-style of government diluted the voting strength of black and Hispanic voters.

A $3 million legal bill seems large considering Chicago Heights has an annual budget of about $22 million. -- DAILY SOUTHTOWN :: News :: Chicago Heights has hands full with lawsuits

On this day in history -- Jan 12

AP reports: On this date: ... In 1915, the U.S. House of Representatives rejected a proposal to give women the right to vote.

In 1932, Hattie W. Caraway became the first woman elected to the U.S. Senate. -- AP Wire | 01/12/2007 | Today in history - Jan. 12

January 11, 2007

Paper trails to you, until we vote again*

Adam Cohen writes in the New York Times (available on Times Select): In the summer of 2004, I attended a national meeting of state election directors, and one of the biggest laugh lines was how activists were demanding that electronic voting machines produce a paper record of every vote cast.

An election official stood in front of the group, produced a roll of paper and started to unroll it while saying, to the delight of many in the audience, that the paper record would have to be mighty long to record all of the votes on a California ballot. Ha! Ha! Ridiculous!

The tinfoil-hat-wearing conspiracy nuts who hate electronic voting could complain all they wanted, the consensus in the room seemed to be, but paper records for electronic voting were impractical and unnecessary, and they were not going to happen.

What a difference two years makes.

Today, 27 states — including such large ones as California, New York, Illinois and Ohio — require electronic voting machines to produce a voter-verified paper trail. There is paper-trail legislation pending in a dozen more states. -- The Good News (Really) About Voting Machines - New York Times

*To be sung to the tune of Roy Rogers' theme song.

Iowa: congressman sues over multi-lingual voter information

AP reports: Iowa Congressman Steve King and hard-line immigration advocates are suing Gov.-elect Chet Culver for allegedly violating the state's official English law by distributing voter information in several languages while serving as secretary of state.

The lawsuit, filed Wednesday in state District Court, also names incoming Secretary of State Michael Mauro, charging he placed voter information on his official Web site in Spanish, Bosnian, Vietnamese and Laotian. ...

Culver aide Brad Anderson rejected the charges, saying that state election law requires officials to aid potential voters in registering and casting ballots. ...

The issue first surfaced last fall when King wrote a letter to Culver charging that the English-only law requires all government proceedings to be in English. He said Culver was breaking the law by posting voter registration forms in foreign languages on his Web site.

Attorney General Tom Miller -- the state's top law enforcement official -- later issued a statement siding with Culver. He said the secretary of state's actions were legal because the English-only law permits the state to help residents exercise their constitutional right to vote. In addition, bipartisan Voter Registration Commission rules allow materials to be distributed in foreign languages, Miller said. -- Sioux City Journal: King sues Culver over English-only law

Alabama: Jerome Gray retires from ADC

The Birmingham News writes about my friend Jerome Gray's retirement: When they were students at Conecuh County Training School, neither Joe Reed nor Jerome Gray foresaw a future in which they would team up to break barriers to black participation in Alabama politics.

But when they saw a chance for that future, they seized it with a vengeance. The evidence is in the numbers: Alabama has 870 black elected officials at all levels of government, more than in every state except neighboring Mississippi. The numbers of blacks in Alabama's state and local governing bodies generally mirror the percentage of blacks in the state and local populations.

"We have achieved ... parity or equity in virtually every chamber of government," Gray said recently.

A lot of people - lawyers and grass-roots activists among them - had a hand in achieving that result. But two of the primary players were Reed, as chairman of the black Alabama Democratic Conference, and Gray, as ADC field director. Now Gray, at 68, has decided that, after 27 years, his playing days are over. People who worked with him and against him are saying they may not see his like again. -- Voting rights powerhouse Gray lays aside `quiet work'

January 10, 2007

23 Senators introduce bill calling for electronic campaign reports in Senate races

Update: Here is the text of the bill. Thanks to John Morris for sending it.

Here's the heading of a bill just introduced: By Mr. FEINGOLD (for himself, Mr. COCHRAN, Mr. MCCAIN, Mr. DURBIN, Mr. ALLARD, Mr. LUGAR, Ms. LANDRIEU, Mr. LIEBERMAN, Mr. GRASSLEY, Mrs. HUTCHISON, Mr. LEVIN, Ms. MURKOWSKI, Mr. CORNYN, Mr. GRAHAM, Mr. KERRY, Mr. SALAZAR, Mr. OBAMA, Mr. DORGAN, Mr. WYDEN, Mr. ROCKEFELLER, Mrs. BOXER, Mr. REED, and Mrs. FEINSTEIN):

S. 223. A bill to require Senate candidates to file designations, statements, and reports in electronic form; to the Committee on Rules and Administration.

(When I get the text of the bill, I will upload it.)

Thanks to Brett Kappel for the tip.

Illinois: Speaker proposes early February primary to help Obama

Capitol Fax Blog reports: [Illinois] House Speaker Madigan has just proposed moving the 2008 IL primary to Feb. 5 to help Barack Obama's presidential candidacy. -- The Capitol Fax Blog » Madigan proposes moving primary

Thanks to Political Wire for the link.

Massachusetts: Finneran resigns from lobbying job

AP reports: Former House Speaker Thomas Finneran resigned on Tuesday night from his $416,000-a-year job as president of the Massachusetts Biotechnology Council, days after he pleaded guilty to obstructing justice during a voting rights redistricting lawsuit.

The council's board said it accepted his resignation, effective immediately, during an evening conference call, a day after it had met to discuss his future and it appeared he was losing support. ...

Finneran took the job with the council that represents the state's life sciences industry in 2004 after resigning his legislative position. He was seen as an effective lobbyist for the group, and the board had backed him after his federal indictment in 2005. -- Finneran Resigns From Bio-Tech Job - Politics

Louisiana: federal court dismisses suit on McCrery residency

The Shreveport Times reports: A federal judge has dismissed the lawsuit seeking to disqualify U.S. Rep. Jim McCrery, but challenger Patti Cox is not deterred.

"It's not over. It's called appeal," Cox said Monday.

In a one-page judgment, U.S. District Judge Tom Stagg said the U.S. House of Representatives is the only institution permitted by the Constitution to decide Cox's challenge to McCrery's qualifications.

Cox, one of three contenders who tried to unseat McCrery on Nov. 7, filed suit in state and federal court in November claiming McCrery was not a Louisiana resident when he won the election. McCrery sold his Shreveport home in 2004 and moved his family to McLean, Va. McCrery has said he maintained residency in Shreveport. -- The Shreveport Times

Florida: ES&S moves to strike letter from Rep. Millender

The Herald-Tribune reports: The maker of the voting machines used in Sarasota County's contested Congressional election wants a state appeals court to ignore a letter from a member of Congress.

Attorneys for Election Systems & Software filed a motion with the 1st District Court of Appeal in Tallahassee on Tuesday, urging the court to strike the letter from U.S. Rep. Juanita Millender-McDonald, D-Calif.

In her letter dated Jan. 4, Millender-McDonald, chairwoman of the House Committee on Administration, said she was disappointed when a lower court ruled against Democrat Christine Jennings' attempt to require ES&S to provide access to voting machine source codes.

The codes are key in determining whether voting machines malfunctioned on election day, and the state has already commissioned a contractor to examine them as part of an audit of Sarasota's touch-screen voting machines. -- ES&S urges court to ignore letter from congresswoman

Pennsylvania: Democratic whip proposes redistricting commission and robo-call blocking

The Pittsburgh Post-Gazette reports: [Democratic whip, Sen. Michael A. O'Pake] suggested a second idea that would need a constitutional change. He wants to have the new congressional districts redrawn, after the 2010 census, by a nonpartisan group called the Legislative Reapportionment Commission, which already redraws the state House and Senate district lines.

Currently, congressional district lines are redrawn by the majority party in the Legislature. The last time, after the 2000 census, Democrats complained that Republicans redrew the congressional lines to try to ensure re-election of GOP incumbents. The current system lets the majority party in the Legislature "redraw congressional districts with a partisan bias," Mr. O'Pake said.

A third idea wouldn't need a constitutional change. Mr. O'Pake wants to make it easier for state residents to block "robo-calls" by politicians seeking election -- the automated phone calls by office holders or their supporters urging people to vote for them. He would let people add such calls to the state's Do Not Call list, an idea first proposed last fall by Rep. Michael McGeehan, D-Philadelphia. He also is vowing to push for it again.

The changes to the constitution would first have to be passed in the 2007-08 session, which just started, and then again in the 2009-10 session in order to get on the November 2009 statewide ballot, at the earliest. -- Dem leader wants to reduce size of Pa. legislature

January 9, 2007

Alabama: 11th circuit affirms dismissal of challenge to legislative redistricting

The Eleventh Circuit today affirmed the dismissal of a partisan-gerrymander challenge to the legislative redistricting. The opinion is unpublished.

The case had been heard by a three-judge court in the Southern District of Alabama. It ruled that the plaintiffs were barred by claim preclusion (res judicata). When the plaintiffs appealed to the 11th Circuit, the defendants argued that the Circuit Court did not have jurisdiction to hear the appeal because the case should have been appealed to the Supreme Court. The Circuit Court rejected that argument.

On the claim preclusion issue, the court affirmed and held that the plaintiffs were virtually represented by different plaintiffs bringing similar suits a few years earlier.

Disclosure: Jim Blacksher and I represented Speaker of the House Seth Hammett, a defendant-intervenor in the case.

January 8, 2007

Alabama: DOJ objects to 2 court decisions

The Justice Department today objected (under the Voting Rights Act) to 2 decisions of the Alabama Supreme Court. What follows is probably more than you want to know about the background:

Since 1985, the state law applicable to filling vacancies on the Mobile County Commission has swung between gubernatorial appointment and special election.

In 1985, the Alabama Legislature adopted Act 85-237, a local act providing for the election of county commissioners whenever vacancies occurred on the Mobile County Commission. The Alabama Attorney General submitted Act 85-237 for preclearance on 15 April 1985. The U.S. Attorney General issued a “no objection” letter regarding Act 85-237 on 17 June 1985. At this point, Alabama law authorized a special election, and that was the only way to fill a vacancy consistent with the Voting Rights Act.

In the Spring of 1987, a vacancy occurred in the District 1 Commissioner position on the Mobile County Commission. Act 85-237 required a special election if more than one year remained in the term. Since there was more than one year remaining in the term, the election officials of Mobile County called a special election.

Sam Jones and another candidate qualified for the Democratic nomination, and Jones was nominated by the Democratic Party in a special primary. Jones also won the special general election over opposition.

Shortly after the vacancy occurred, a Mobile County voter filed suit to have Act 85-237 declared unconstitutional. The Circuit Court ruled in favor of the constitutionality of the law. On appeal to the Alabama Supreme Court, the Court held that the subject matter of Act 85-237 was subsumed by general law (Ala. Code § 11-3-6) and was therefore invalid under Ala. Const. Art. IV § 105. Stokes v. Noonan, 534 So.2d 237 (Ala. 1988).

Under Hathorn v. Lovorn, 457 U.S. 255 (1982), the State of Alabama or Mobile County should have submitted the Stokes v. Noonan decision for preclearance. Until such preclearance was obtained, neither Mobile County nor the State could legally enforce or administer the change made by Stokes v. Noonan. The State has stipulated that no such submission has occurred (prior to this one).

Gov. Guy Hunt gave Sam Jones a commission of appointment after the Stokes decision. Because the State never obtained preclearance for the Stokes decision before Gov. Hunt administered it by appointing Jones, Gov. Hunt’s action was unnecessary and illegal because Jones’s elected term on the Mobile County Commission had not been terminated.

In 2004, the Legislature adopted Act 2004-455 which amended Ala. Code § 11-3-6 to allow local laws providing methods other than gubernatorial appointment for filling vacancies. The Alabama Attorney General submitted Act 2004-455 for preclearance on 9 August 2004. The Attorney General of the U.S. issued a “no objection” letter regarding Act 2004-455 on 28 September 2004.

The submission of Act 2004-455 mentioned Stokes v. Noonan, but did not state explicitly whether the new Act would have any effect on the previously-precleared Act 85-237.

When Mobile County Commissioner Sam Jones was elected Mayor of the City of Mobile and made plans to resign from his position on the Commission, Reps. Kennedy, Buskey, and Clark filed suit in Montgomery County Circuit Court for relief including a declaration that the vacancy should be filled by special election. The plaintiffs took the position that Act 2004-455 had revived Act 85-237. Eventually, the Alabama Supreme Court decided that Act 2004-455 had a prospective effect only; that is, only local acts passed after the effective date of Act 2004-455 could take advantage of the proviso enacted by that Act.

The benchmark against which to judge the Riley v. Kennedy decision is the situation “in force and effect” immediately before it was decided. Abrams v. Johnson, 521 U.S. 74, 97 (1997); Section 5 Guidelines, 28 C.F.R. § 51.54(b)(1). The benchmark situation was the special-election requirement of Act 85-237 which had been precleared and administered in 1985-87 and reaffirmed by Act 2004-455 (which in turn had been precleared in 2004 and administered in other counties in 2004).

In summary, each time the Legislature has acted to provide for special elections to fill vacancies, the Alabama Attorney General has submitted the act and obtained preclearance. In contrast, the Alabama Attorney General has now belatedly submitted the Alabama Supreme Court decisions for preclearance – only after being ordered to do so by the District Court.

Disclosure: I am one of the attorneys for Reps. Kennedy, Buskey, and Clark.

January 7, 2007

A 6-way race for president in 2008?

Political Insider says: Independent candidacies for president have sometimes tipped the balance in numerous elections. In 1912, former Republican Teddy Roosevelt ran on the Bull Moose ticket, throwing the election to Woodrow Wilson (D). In 1992, Ross Perot ran as an Independent and captured nearly 20% of the vote, tipping many states in Bill Clinton's (D) favor. Most recently, Ralph Nader's 2000 candidacy made the difference in enough states to give George W. Bush (R) the presidency. The election of 2008 could soon be added to this list.

In this election, we could be facing as many as six major candidacies for president in the general election, two major party nominees and four big-name independent candidacies. While this prospect is far from a certainty, it remains likely that some of the independents from the following list will indeed throw their hats in the ring. Let's take a look at the possible contenders. -- Political Wire: Election 2008: A Six-Way Race?

Washington State: Davenport's suit to be heard by SCOTUS this week

AP reports: Former high school teacher Gary Davenport didn't have any particular problem with unions and even had a union job in college, but the man whose name is on an anti-union lawsuit to be heard next week by the U.S. Supreme Court says politics kept him from joining up when he got his teaching job in 1998.

"I decided I didn't want to become a member because of some of the political stances they take," said Davenport, 32, who was already on his way out of teaching when Davenport v. Washington Education Association was filed in state courts in 2000. ...

When the Evergreen Freedom Foundation contacted him and other nonmember teachers, who are still required to pay hundreds of dollars to the union each year to pay for contract negotiations, Davenport said their questions caught his attention.

He agreed to let the conservative think tank and longtime union adversary put his name on the lawsuit but now can't remember the details of the conversation. Davenport v. Washington Education Association has been combined by the Supreme Court with a similar lawsuit filed by the state of Washington against the union. Both cases involve the fees paid to the union by teachers who declined to join.

Under a series of Supreme Court rulings reaching back nearly 30 years, those workers can be charged a fee to pay for labor negotiations that affect them but can't be forced to pay for the union's political activism.

At issue this next week is whether the union needs teachers to say "yes" before the fees can be used for political causes or whether teachers must specifically object to having a portion of the fees spent for that purpose. -- The Daily News Online

Georgia: legislature may try for voter I.D. a 3rd time

The Columbus Ledger-Enquirer reports: The 2007 session of the General Assembly begins Monday, and with it comes a consolidation of Republican power that began with Gov. Sonny Perdue's first election in 2002. Four years later, Perdue has returned to office, Republican Casey Cagle is the new lieutenant governor and some old legislation pushed by the GOP last year has again appeared on the horizon. ...

Legislation that would require photo identification at the polls could make a return. Republicans got a photo ID law passed, but a federal judge stopped its enforcement. The state currently requires voters to show one of 17 acceptable forms of identification.

"Apparently, it's going to be a big issue again," said Sen. Ed Harbison, D-Columbus. "I think you're going to get the same reaction. I've been quoted widely that it was voter constriction. It's obvious that would be a restriction."

Rep. Vance Smith, R-Pine Mountain, said the meetings he's attended on the issue lead him to believe federal requirements affecting a photo ID law would cost millions. "I don't know if we have the money to do that," he said. "We need a program, but we don't need to invade people's privacy. I want to slow it down a little bit." -- Ledger-Enquirer | 01/07/2007 | Health care, voter IDs top of list for new year

Florida: bill introduced for "none of the above"

AP reports: Voters would have the option of choosing "none of the above" under a bill proposed to avoid confusion over whether people mean to leave ballots blank.

State Sen. Mike Bennett, the bill's sponsor, wants the additional option to prevent a repeat of the congressional race between Republican Vern Buchanan and Democrat Christine Jennings. Buchanan was declared the winner by 369 votes, but more than 18,000 ballots didn't indicate a choice in the race.

Currently, it's impossible for elections officials to determine whether voters purposely meant to leave the race blank or if they, by accident, didn't make a choice. ...

He filed the bill (SB 494) Thursday, the day Buchanan was seated in Congress to represent Florida's 13th District. House leaders are investigating the race and have said Buchanan could be removed if they determine the results need to be changed. -- Possible ballot option: 'None of the above' - Orlando Sentinel : State News Possible ballot option: 'None of the above' - Orlando Sentinel : State News

January 5, 2007

Massachusetts: Finneran will plead guilty

AP reports: Former House Speaker Tom Finneran is expected to plead guilty today to obstruction of justice charges.

The once-powerful Beacon Hill Democrat is accused of lying during his testimony in a voting rights lawsuit. -- WHDH-TV - New England News - Source: Ex-House speaker to plead guilty in redistricting case

And the Boston Globe reports: As former House speaker Thomas M. Finneran heads this morning to federal court, where he is expected to plead guilty to obstruction of justice, he faces the almost certain loss of his $30,000-a-year pension because of a decision last year by the state Supreme Judicial Court.

The state's highest court ruled unanimously in March that Boston Juvenile Court Clerk-Magistrate John P. Bulger forfeited his pension when he admitted that he lied to two federal grand juries investigating the disappearance of his brother, fugitive mobster James J. "Whitey" Bulger.

Alden Bianchi, cochairman of a Boston Bar Association committee on pensions, said Finneran's case appears to be a more obvious violation of the Massachusetts law that bars employees from receiving a pension if convicted of a "criminal offense involving violation of the laws applicable to his office or position." -- Finneran faces loss of state pension

Louisiana: McCrery challenge is one of three the House will consider

The Shreveport Times reported yesterday: When Rep. Jim McCrery takes the congressional oath of office today, he'll be one of three Republican lawmakers whose elections to the House are still in dispute because of challenges filed by candidates they defeated.

All three elections may be scrutinized by the House Administration Committee, but in the meantime, McCrery and the other two House members will be allowed to serve.

Their challengers stand only a slim chance of victory.

More than 100 election challenges have been filed by losing candidates since 1933, but nearly all have been dismissed by the House. -- The Shreveport Times

Florida: Jennings asks appeal court to allow review of computer code

The Herald-Tribune reports: Arguing that her challenge of the outcome of the Congressional District 13 race will be “crippled” if she cannot review voting machine computer codes and hardware, Democrat Christine Jennings on Wednesday asked a state appellate court to overturn a judge’s decision denying her access to that information.

Jennings’ filing at the 1st District Court of Appeal in Tallahassee came the day before Republican Vern Buchanan is scheduled to be sworn in as the new representative for the congressional seat previously held by U.S. Rep. Katherine Harris, R-Longboat Key.

Buchanan has been declared the winner in the race by a 369-vote margin, although Jennings has legally contested the election outcome.

She contends that the fact that 18,000 voters in Sarasota County went to the polls but didn’t cast a ballot in the race is an indication that the electronic touch-screen voting machines malfunctioned. -- Jennings appeals ruling on voting machines

Indiana: 7th Circuit upholds voter I.D. law

AP reports: Republicans hailed a federal court ruling upholding Indiana’s voter ID law as a victory for voting reforms, while opponents of the law planned their next move.

The 7th U.S. Circuit Court of Appeals in Chicago ruled 2-1 Thursday that Indiana’s law, which requires voters to show a photo ID at the polls, has the potential to do more good than harm.

The Republican-controlled Legislature approved the law in 2005, saying it would help prevent voter fraud. But the Indiana Democratic Party and the American Civil Liberties Union say the law unfairly affects people who may struggle to obtain a photo ID.

Ken Falk, legal director of the ACLU of Indiana, said he was disappointed with the ruling by the three-judge panel.

“I have not spoken with my clients yet, but I’m going to recommend a rehearing before the entire 7th Circuit,” he said Thursday.

The three-judge panel questioned arguments that Indiana’s rule is unfair to poor, elderly, minority and disabled voters, and pointed out that opponents could not find anyone unable to cast a ballot under the new law. -- News-Sentinel | 01/05/2007 | Voter ID law upheld by federal court

January 4, 2007

SG supports fast consideration of WRTL case

SCOTUSblog reports: U.S. Solicitor General Paul D. Clement, representing the Federal Election Commission, on Thursday urged the Supreme Court to hear and decide during its current Term a significant new test case on a federal ban on election-season campaign ads. In a response to a motion to expedite filed last Friday, the SG suggested that the Court move swiftly to consider the Commission's appeal (and, presumably, a coming separate appeal by members of Congress who support the ad ban) so that the case is resolved well in advance of the 2008 election season. -- FEC supports fast review on campaign ads

Massachusetts: legislature gives first approval to anti-gay marriage amendment

Reuters reports: Massachusetts lawmakers approved a measure on Tuesday that could give voters a chance next year to ban gay marriage in the only U.S. state where it is legal and overturn a historic ruling by the state's highest court. ...

With hundreds of protesters on both sides of the emotionally charged issue chanting slogans outside the gold-domed Statehouse, 61 lawmakers voted to advance the proposed constitutional amendment to ban same-sex marriage -- more than enough needed under state law for such initiatives. ...

If it clears another legislative test expected by early next year, Massachusetts residents will vote on it in 2008. ...

Although a majority in the Democratic-controlled state legislature voted against it, the measure needed only 50 votes to pass. It also was backed by 170,000 Massachusetts voters who signed a petition along with social conservatives including Republican Gov. Mitt Romney, a probable White House contender. -- Massachusetts lawmakers approve gay marriage vote | Politics News |

Ciber, Inc., barred from e-voting machine testing

The New York Times reports: A laboratory that has tested most of the nation’s electronic voting systems has been temporarily barred from approving new machines after federal officials found that it was not following its quality-control procedures and could not document that it was conducting all the required tests.

The company, Ciber Inc. of Greenwood Village, Colo., has also come under fire from analysts hired by New York State over its plans to test new voting machines for the state. New York could eventually spend $200 million to replace its aging lever devices.

Experts on voting systems say the Ciber problems underscore longstanding worries about lax inspections in the secretive world of voting-machine testing. The action by the federal Election Assistance Commission seems certain to fan growing concerns about the reliability and security of the devices.

The commission acted last summer, but the problem was not disclosed then. Officials at the commission and Ciber confirmed the action in recent interviews. -- U.S. Bars Lab From Testing Electronic Voting - New York Times