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

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July 24, 2007

A semi-hiatus

You may have noticed I have not been blogging much lately. I have had a lot more to do because of an increase in personal responsibilities (after the death of my ex-wife) and work on a book. I can't say much about the book, but will announce its availability later at a suitable date -- at 12:01 a.m. while crowds of lawyers wait in line to be the first to receive it.

I expect this "surge" to continue into September, so I won't be spending much time blogging. Things that I stumble across (such as the Thompson case, in the post just below this one) might make it into pixels, if I have the time to write a note.

Florida: 11th Circuit holds (sort of) for plaintiffs in dilution case

The 11th Circuit released its opinion in Thompson v. Glades County Board of Commissioners, No. 05-10669, today. Here are the opening and closing paragraphs:

This is a vote dilution case. African American voters in Glades County, Florida, challenge the at-large method of electing members of the County Commission and School Board, claiming that it depreciates their right to vote on account of their race in violation of § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, and the Fourteenth and Fifteenth Amendments. Following a bench trial, the United States District Court for the Middle District of Florida denied relief. The Plaintiffs now appeal the court's judgment. We reverse and remand.
The district court clearly erred in finding that District One of the Plaintiffs' illustrative plan constitutes an influence district. Thus, the court committed error in concluding that the Plaintiffs failed to establish a § 2 remedy. Furthermore, the court failed to explain with sufficient particularity that the totality of the circumstances weakens the Plaintiffs' vote dilution claim. In making those determinations, the court did not properly apply the relevant legal principles and grounded its findings in inaccurate perceptions of the law. We therefore reverse the district court's holding that the Plaintiffs' proposed remedial plan is insufficient under the first prong of the Gingles test and remand to the district court for reconsideration of the totality of the circumstances test.

The opinion is available from the Court's website.

July 21, 2007

Voting machines: the good is the enemy of the great, or vice versa, depending on your point of view

The New York Times reports: Democrats in Congress who are trying to redesign the nation’s voting system generally share the same goals: an affordable, easy-to-use system with durable paper ballots that can be used by the disabled without help from poll workers.

But yesterday, as House leaders failed for a second day to reach agreement on the outlines of a new system, the tension reflected in those competing needs was clear. The desire to make every voting machine accountable is running head-on into other needs, from the desires of the disabled to the budgets of states and localities.

Given the tensions, voting analysts say, the decision disclosed Thursday by Democratic leaders to put off the most sweeping changes until 2012 — four years later than planned — was easy. Congressional leaders are reluctant to tell states to junk hundreds of millions of dollars of relatively new voting equipment until it is clear when better technology will emerge.

But questions also arose yesterday about other aspects of a proposed compromise now being negotiated. Voting experts criticized a stopgap proposal to add spool-like printers to thousands of computerized touch-screen machines for 2008 and 2010, saying it would not be feasible in some states. -- Accessibility Isn’t Only Hurdle in Voting System Overhaul

July 20, 2007

Paper trails delayed

The New York Times reports: Democratic leaders in the House and Senate are slowing their drive to revamp the nation’s voting systems, aides said yesterday.

Under pressure from state and local officials, as well as from lobbyists for the disabled, House leaders now advocate putting off the most sweeping changes until 2012, four years later than planned.

Overhauling voting systems before next year’s presidential election had once been a top Democratic priority, primarily to allow greater accountability and be certain that all votes registered on computerized touch-screen systems were counted. But state and local elections officials told Congress they could not make the changes in time for the balloting in November 2008, particularly in light of the extra workload involved in preparing for next year’s much-earlier presidential primary season.

Confronted by similar concerns, Senator Dianne Feinstein, Democrat of California and the chairwoman of the Senate Rules Committee, said she had already decided against seeking any major changes in voting equipment before 2010. -- Overhaul Plan for Vote System Will Be Delayed

July 19, 2007

Blog Survey

Please take my Blog Reader Project survey. The folks at Blogads have put together a survey of blog readers. I just took it -- some strange questions mixed in with lots of good information.

Kentucky: drug czar may have violated Hatch Act

The Lexington Herald-Leader reports: Last year, during a tight race between first-term Rep. Geoff Davis, R-Fort Mitchell, and former Democratic congressman Ken Lucas, the White House sent the national drug czar, John Walters, to Davis' district.

Congressional investigators are now looking into whether the White House designed such visits to boost the standing of vulnerable candidates in violation of campaign laws.

A "Drug Task Force Event" that Davis hosted Aug. 21 in Ashland was scheduled by Sara Taylor, then the White House director of political affairs. The trip was one of 20 events, paid for with tax dollars, that Taylor plotted in Republican congressional districts around the country for Walters or his deputies. Davis was the only Kentuckian on the list. He went on to defeat Lucas with 52 percent of the vote.

The list of Walters' pre-election events was released along with other documents yesterday by Rep. Henry Waxman, D-Calif., whose House Oversight and Government Reform Committee is investigating the possibility that federal agencies were used to help re-elect Republicans and defeat Democrats. -- | 07/18/2007 | Kentucky event part of inquiry

Michigan: state supreme court approves voter I.D. law

The Grand Rapids Press reports: A law requiring voters to show photo identification at the polls is sparking mixed reaction from local officials.

The Michigan Supreme Court's decision Wednesday upholds a 1996 state law, renewed in 2005, which requires voters to show photo ID to get a ballot. If voters don't have ID, they can sign an affidavit swearing to their identity and then vote.

The law never took effect, however, because former Democratic Attorney General Frank Kelley said it violated the equal protection clause of the 14th Amendment, which guarantees the right to vote. Republicans in the state House last year asked the Supreme Court for an opinion on the law's constitutionality. ...

The Supreme Court vote followed party lines. -- Renewed voter ID law spurs mixed reaction -

July 18, 2007

The Oldest blawg?

Robert J. Ambrogi asks on Inside Opinions, "Who was the first legal blogger?" In searchng for the answer he notes that he wrote a two-part column in December 2002 and January 2003 rounding up 62 blawgs then in existence and then notes that 24 are still publishing.

Votelaw is one of those 24. Gosh, it makes me old. And reminds me that I was so busy on Independence Day that I forgot to celebrate Votelaw's 5th birthday. -- - Inside Opinions: Legal Blogs

Mississippi: polarized politics may return with party registration

The New York Times reports: A federal court ruling in June that forces voters to register by party could return Mississippi to the days of racially polarized politics, as many white Democrats warn that thousands of white voters will now opt definitively for the Republican Party.

Republican-leaning voters in Mississippi have long been able to cross party lines in primaries, voting for centrist Democrats in state and local races while staying loyal to Republican candidates in national races. But political experts here say that by limiting these voters — almost all of whom are white — to Republican primaries, the ruling will push centrist Democratic candidates to the other party, simply in order to survive.

Most black voters in Mississippi are Democrats, and black political leaders have been pushing for years to prevent crossover voting in Democratic primaries. Black leaders say they want to end precisely what white Democrats here seek to preserve, a strong moderate-to-conservative voice in the Democratic Party, and in the process to pick up more state and local posts.

The ruling last month by Judge W. Allen Pepper Jr. of Federal District Court allowed the legal remedy sought by black leaders. Judge Pepper said the Democratic Party in Mississippi had a right to “disassociate itself” from voters who were not genuine Democrats. Most other Southern states also have open primaries. -- In Mississippi, Ruling Is Seen as Racial Split

July 13, 2007

Tennessee: state senator pleads guilty to taking a "gratuity"

AP reports: A veteran state senator pleaded guilty to bribery Thursday, admitting he took $3,000 in FBI money during a statewide corruption investigation.

Sen. Ward Crutchfield, 78, was one of five current and former state lawmakers charged in the FBI sting code-named Tennessee Waltz, and the only one to remain in office. His trial was scheduled to begin Monday.

In return for the Chattanooga Democrat's guilty plea, a more serious charge of extortion was dropped by federal prosecutors. ...

Defense attorney William Farmer characterized the money that Crutchfield admitted taking as a "gratuity" rather than a bribe.

"They gave him a gratuity - thanks for all your help - long after he had already agreed to support this bill," Farmer said outside court. -- Tenn. Lawmaker Pleads Guilty to Bribery

Comment: I don't know which is worse -- taking the money or trying to explain it away as only a "gratuity."

Idaho: GOP'ers seek closed primary in federal suit

The blog Grassroots Idaho GOP reproduces this press release: 71 members of the Idaho Republican Party, including a number of members of the Idaho Republican Party State Central Committee and Executive Committee filed suit in the U. S. Federal Court in Boise, Idaho to require the State of Idaho and its Chief Election Officer, Ben Ysursa, Idaho Secretary of State, to honor the Rule adopted by the Idaho Republican Party on June 2, 2007.

Idahoans are still entitled to the basic protections and rights offered by the U.S. Constitution 220 years ago, including the right of association under the First Amendment. It is our intent to ask the court to restore those rights so that Idaho Republicans may stand together and pick their own nominees for political office, just as Idaho Democrats are allowed to stand together and pick their nominee for U.S. president. -- Grassroots Idaho GOP’ers file suit in Federal Court

Thanks to Steve Rankin for the link.

Alabama: candidate arrested for absentee voter fraud

The Mobile Press Register reports: Darren Lee Flott, a one-time candidate for Alabama House District 98, and Angie Corine Green, an activities director for a nursing home, were both arrested and charged with voter fraud Thursday, Mobile County District Attorney John Tyson Jr. announced.

The pair exploited a host of nursing-home patients, Tyson alleged in a news conference held in his offices at Mobile Government Plaza.

Those taken advantage of were elderly and infirm men and women, who, at the time the ballots were cast in their names, were either "comatose" or "otherwise unable to communicate" their voting preferences, Tyson said. ...

The charges stem from a July 2006 Democratic runoff election, in which Flott was first announced the winner of the Prichard area House seat.

But that was voided after the results were protested by now-sitting Rep. James Gordon. -- Former candidate faces charges of voter fraud-

Alabama: felony counts against Worley dismissed by judge

The Mobile Press-Register reports: A Montgomery Circuit Court judge Wednesday threw out felony charges against former Secretary of State Nancy Worley, saying the statute governing the use of office to influence elections is too broad.

The state Attorney General's Office, which brought the charges against Worley, said it would immediately appeal Judge Truman Hobbs Jr.'s decision. ...

The Attorney General's Office based the felony charges on a statute that makes it unlawful for an official to use his or her office to influence "the vote or political action of any person."

The letter Worley distributed included an envelope and a bumper sticker and said Worley would be "honored" if employees contributed time or money to her campaign, adding that there would not be payback if they chose not to do so.

Worley's attorneys argued the statute was so broad that any elected official could be charged with a felony by referring to their office during a political campaign. -- Worley felony counts tossed-

July 10, 2007

Alabama: judge questions felony charges against Worley

The Birmingham News reports: The circuit judge who will preside over the trial of former Alabama Secretary of State Nancy Worley questioned Monday whether she should face felony charges.

Montgomery County Circuit Judge Truman Hobbs Jr. said the law that Attorney General Troy King's office is using to bring felony charges against Worley is vague and overbroad.

"I'm real worried that this statute ... potentially criminalizes a lot of everyday conduct that happens all over the country," Hobbs said in a pre-trial meeting with defense attorneys and prosecutors. ...

The felony charges stem from another part of the same section of law, which says, "No person shall attempt to use his or her official authority or position for the purpose of influencing the vote or political action of any person." A violation is punishable by a $10,000 fine and two years in prison.

Hobbs said that under the section, a state official could face a misdemeanor charge for asking a subordinate for a $50,000 campaign contribution but face a felony charge for asking someone to put up a yard sign. -- Judge questions Worley charges-

July 9, 2007

The Brain: emotions, not reason, rule in politics

The Savannah Morning News reports: Despite probing news reports, spirited debates and thoughtful editorials, most voters make political decisions based on their emotions, according to a new book by an Emory University psychologist.

Drew Westen, described by his publishers as a "clinical, personality and political psychologist," begins "The Political Brain: The Role of Emotion in Deciding the Fate of the Nation" by recounting an experiment he and some colleagues conducted.

They had people read statements while hooked up to scanners so the scientists could see which areas of the brain were active. When the test subjects read statements by candidates they supported, they had trouble catching planted inconsistencies while they had no problems seeing the waffling of their opponents or neutral speakers like actor Tom Hanks.

Who hasn't spotted the same thing in friends while arguing politics at the water cooler?

What was interesting is Westen's observation of what parts of the brain energized. To evaluate the neutral speakers or the opponents, the test subjects' reasoning centers of the brain fired up. Smoking over the comments of a political favorite, though, lit up the part of the brain concerned with emotions, the amygdala, whether Republican or Democrat.

Put another way, no one likes to be wrong, and supporting a politician who flip-flops is merely proof of bad judgment. To avoid the conflict, our brain retreats from cold reasoning to the gooey province of emotions. -- Researcher suggests voters are led by emotions |

July 6, 2007

How I feel many days

cartoon from

Cartoon by Dave Walker. Find more cartoons you can freely re-use on your blog at We Blog Cartoons.

Michigan: 17-year olds may be allowed to vote in primaries

The Detroit News reports: The sponsor of a proposal to extend voting rights to some 17-year-olds in Michigan says he thinks chances of its passage are growing. ...

Under Caul's proposal, 17-year-olds would be allowed to vote in a primary if they'll turn 18 before the November general election. The 2000 Census found there were about 143,500 17-year-olds in Michigan.

The resolution, awaiting a vote in the House Ethics and Elections Committee, would have to be approved by a two-thirds vote in the House and Senate. If that happens, voters will decide the amendment in November 2008. -- Proposal would let some age 17 vote

Alabama: money appropriated for Selma-Montgomery March center

The Montgomery Advertiser reports: A second museum along the Selma-to-Montgomery Historic Trail received a $1 million boost from Congress on Thursday as Selma Mayor James Perkins Jr. pledged his support for a third interpretive center in Alabama's Capital City.

U.S. Rep. Artur Davis, D-Birmingham, drew loud applause when he said the $1 million House appropriation was one of the largest in the nation approved this year by the Department of the Interior. ...

The Montgomery County interpretive center is scheduled to be built on the property of the City of St. Jude, which served as the staging area for the final leg to the Capitol on March 25, 1965. Alabama State University supporters have proposed moving the center from St. Jude on Fairview Avenue to the ASU campus, but that decision likely will be made by the federal government. -- :: Selma gets $1 million for historic trail museum

Alabama: election finally called for Mobile County vacancy

The Mobile Register reports: Mobile County Probate Judge Don Davis on Thursday set an election schedule to fill the vacant District 1 commission seat, with party primaries taking place Aug. 28 and a general election no later than Nov. 20.

The County Commission seat, which represents the northern third of Mobile County, has been empty since May, when a panel of federal judges forced out Juan Chastang after ruling that his appointment in 2005 violated the federal Voting Rights Act of 1965.

Candidates have until 5 p.m. July 17 to qualify. Any runoff would take place Oct. 9, with the general election following on Nov. 20. If no runoffs are needed, the general election will be held Oct. 9. -- Election planned for Mobile County Commission seat-

Disclosure: I was one of the attorneys for the plaintiffs in the federal suit.

July 5, 2007

Alabama: 11th Circuit upholds restrictive ballot access law

Ballot Access News reports: On June 29, the 11th circuit upheld Alabama’s ballot access law for new and minor parties, and for non-presidential independent candidates. That law, first put into effect in 1998, requires a petition of 3% of the last gubernatorial vote. The decision was by Judge Frank Hull, who already had a bad record on ballot access. She had previously upheld Georgia’s district petition requirement of a petition signed by 5% of the number of registered voters, even though no minor party candidate has used that petition for U.S. House in 63 years.

The decision is Swanson v Worley, no. 06-13643. The decision does not mention that a law virtually identical to Alabama’s was declared unconstitutional law year in U.S. District Court in Arkansas. Nor does the decision mention the favorable ballot access in 2006 in Illinois and Ohio, in the 7th and 6th circuits. The decision does not mention the U.S. Supreme Court’s teaching in Storer v Brown, and in Mandel v Bradley, that ballot access laws that are seldom used are probably unconstitutional. -- 11th Circuit Upholds Alabama Ballot Access Law

The opinion is available here.

Thanks to Richard Winger for the tip.

Michigan: Feiger airs TV ads attacking federal investigation of him

The Detroit News reports: Lawyer Geoffrey Fieger recently hosted a champagne and rock music gala, celebrating a 14,000-square-foot expansion to his law offices at a time when many in his position would lie low or even retrench.

Fieger faces a possible federal indictment over alleged campaign finance violations -- he has said he expects to be indicted -- and is in a protracted and acrimonious battle with four of the seven justices on the Michigan Supreme Court, where many of his cases end up.

As he expands his offices with extravagances such as outdoor fountains, bronze lions from the French Embassy in Morocco and the original bar from Southfield's Golden Mushroom restaurant, Fieger is ratcheting up his offensives against both the federal government and the Michigan justices he alleges are too biased against him to fairly hear his cases.

On the federal side, he is airing television ads critical of the investigation and alleges the FBI improperly used U.S. Patriot Act national security letters to obtain financial information about his employees. ...

The federal grand jury investigation of Fieger -- which is active, based on interviews and the fact five sealed documents have been filed in the case since June 7 -- centers on whether he illegally circumvented caps on political giving by reimbursing employees and associates for more than $50,000 in donations made to the 2004 John Edwards presidential campaign. Most of the donations were made on the same day.

Fieger has acknowledged paying bonuses to employees but denied doing anything illegal. -- Fieger fights back at legal woes

Northern Mariana Islands: court considers redistricting petition

The Saipan Tribune: The CNMI Supreme Court yesterday heard the petition to reapportion legislative seats prior to the November 2007 midterm election and placed the matter under advisement.

After listening to the arguments by parties involved in the petition, chief justice Miguel S. Demapan said the High Court recognizes that the issues presented are very critical to the Commonwealth, with a need to fast track the case.

“You will be expecting our decision very soon,” said Demapan, who presided over the petition with associate justices Alexandro Castro and John A. Manglona.

Sen. Maria Pangelinan and Tina Sablan filed the petition, asking the court to redistribute House seats based on the current number of eligible voters in the Commonwealth.

The petitioners propose to exclude the nonresident population from the computation and thereby reduce the House membership from 18 to 14. -- Justices place redistricting petition under advisement

July 3, 2007

Indiana: Dems and ACLU file cert petitions on voter I.D.

The Fort Wayne Journal Gazette reports: The Supreme Court will decide whether Indiana’s voter ID law is too much of a burden for some people, as the state’s Democratic Party argues, or is a prudent way to prevent voter fraud, as Republican lawmakers contend.

The Democratic Party and the American Civil Liberties Union of Indiana will file a request Monday asking the court to review the legal fight over the law. Voter ID has operated in two primaries and a fall election since the state legislature adopted a requirement that voters must produce photo identification at polling places.

The court will either agree to hear the case – ultimately choosing between the Indiana Democratic Party’s view and the state law – or refuse to consider it, which would be a victory for backers of the law. -- High court may review voter ID legal fight

Note: Rick Hasen has uploaded the Indiana Democratic Party's petition. The Indiana ACLU's petition is here. (Thanks to Bill Groth for sending the IDP petition to me.)

North Carolina: DOJ objects to 6-3 plan in Fayetteville

The Fayetteville Observer reports: The U.S. Department of Justice has rejected Fayetteville voters’ bid to create at-large City Council seats, according to council members.

The department called members of the council Monday afternoon to tell them a council with six single-member districts and three seats elected citywide — the 6-3 structure — was “not precleared.”

The proposed change was adopted in a referendum in February. The vote was split along racial lines, with whites largely favoring the new format and black voters opposed to the change. -- 6-3 proposal denied by Justice Department

The letter is here.

July 2, 2007

Mississippi: state judge hears suit challenging felon disfranchisement

The Jackson Clarion Ledger reports: A Hinds County chancery judge will hold a hearing before this year's elections on the ACLU's lawsuit accusing the state of denying voting rights to people convicted of certain felony crimes.

Chancery Judge William Singletary refused this month to dismiss the lawsuit filed last year by the American Civil Liberties Union of Mississippi on behalf of two residents with a felony conviction. ...

The plaintiffs, Leola Strickland and Michael Johnson, allege state and federal laws were violated when the number of felony crimes that disqualify a person from being able to vote was increased from 10 to 21 in 2004. Also, they claim the state's refusal to allow any individuals convicted of the original 10 crimes listed in the state Constitution from voting in federal elections for president and vice president is illegal. ...

The state submitted its answer to the lawsuit last week, stating that a mail-in voter registration form with the 21 disenfranchising crimes was submitted to the U.S. Attorney General in January 2005 and precleared in accordance with Section 5 of the Voting Rights Act. -- Judge will hear felons' claim that they should be allowed to vote -The Clarion-Ledger- Real Mississippi

Mississippi: Dem leaders claim Turnage filed motion without talking to clients

The Jackson Clarion Ledger reports: State Democratic Party leaders said Saturday they have not heard from their attorney since a federal judge ruled lawmakers must revamp party primaries and pass a voter ID policy.

Cleveland attorney Ellis Turnage filed a motion June 15 asking the judge to reconsider the voter ID provision without speaking with his clien, the Mississippi Democratic Party. ...

Committee members on Saturday questioned whether they should keep Turnage, file an appeal or let the judge's decision stand. The party executive committee lacked a quorum and could not take any action.

Some members want the voter ID provision removed from the judge's order. Others said they should start talking to legislators. -- Miss. Dems question attorney's work -The Clarion-Ledger- Real Mississippi

Republican National Lawyers Association and ACVR involved in Rove's scheme

McClatchy Newspapers report: A New Mexico lawyer who pushed to oust U.S. Attorney David Iglesias was an officer of a nonprofit group that aided Republican candidates in 2006 by pressing for tougher voter identification laws.

Iglesias, who was one of nine U.S. attorneys the administration fired last year, said that Albuquerque lawyer Patrick Rogers pressured him several times to bring voter fraud prosecutions where little evidence existed. ...

Rogers, a former general counsel to the New Mexico Republican Party and a candidate to replace Iglesias, is among a number of well-connected GOP partisans whose work with the legislative fund and a sister group played a significant role in the party's effort to retain control of Congress in the 2006 election.

That strategy, which presidential advisor Karl Rove alluded to in an April 2006 speech to the Republican National Lawyers Association, sought to scrutinize voter registration records, win passage of tougher ID laws and challenge the legitimacy of voters considered likely to vote Democratic. -- GOP links to vote-fraud push - 07/01/2007 -

Florida: re-shaping the 2008 primary season reports: The biggest political event over the past three months in the Democratic presidential race had nothing to do with the candidates, their fundraising prowess, their debates or their TV spots. In fact, it originated with the Republicans, though it had no direct connection to the Bush White House.

This epic moment in Democratic politics came May 21 when Florida Republican Gov. Charlie Crist signed legislation moving the Sunshine State's presidential primary to next Jan. 29.

After that dramatic drum-roll buildup, this one-state shift in the primary calendar may seem comically anticlimactic, especially since the move got little attention outside of Florida. But six weeks later, it is slowly becoming apparent that Florida destroyed the last vestiges of sanity in the 2008 presidential calendar by moving its primary. And for the Democrats, Florida potentially becomes Hillary Clinton's firewall state -- the primary in which she could launch a comeback even if she endures a string of early defeats. (A Jan. 29 Florida primary may also end up shaping the Republican race, but its implications are harder to decipher. Also, the Republican National Committee takes a more laissez-faire approach to the primary calendar, while the Democrats are constantly tinkering with their rules.)

The reason why the order of the caucuses and primaries is so important is that, historically, momentum (what an underdog Republican named George Bush called the "Big Mo" back in 1980) matters in choosing a nominee. In 2004, John Kerry romped to the Democratic convention largely because he won the Iowa caucuses and the New Hampshire primary. Similar back-to-back victories by Al Gore in 2000 left Bill Bradley on the canvas. -- Florida election mayhem for 2008