Votelaw, Edward Still's blog on law and politics: March 2009 Archives

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March 27, 2009

Alabama: Evergreen election contest may affect all future city elections

The Mobile Press- Register reports: The outcome of an election challenge in this city of some 3,630 people could change the way municipalities conduct elections in Alabama, a circuit judge said Thursday.

In a hearing five months after a hotly contested runoff vote, rife with allegations of racism on both sides, specially appointed retired Mobile Circuit Judge Edward McDermott questioned why the Alabama secretary of state's office did not maintain a city registered voter list as outlined in a 2006 law.

The hearing is the latest in a months-long case pitting challenger Pete Wolff III, who is white, against Mayor Larry Fluker, who is black. Fluker won by two votes. Both sides claim illegal votes were cast for their opponent. -- Judge says Evergreen case could shape future city elections -

Disclosure: I represent Mayor Fluker in the case.

March 26, 2009

Alabama: House committee defeats non-partisan election of judges

The Montgomery Advertiser reports: A House committee voted Wednesday mostly along party lines to defeat two bills supporters said would take partisan politics out of Alabama's judicial elections, which have become among the nation's most costly.

Republicans, who currently hold 18 of 19 appellate court positions in Alabama, opposed the bills that would have created nonpartisan judicial elections and set limits on campaign contributions in those elections.

The House Constitution and Elections Committee defeated on a 6-5 vote the bill calling for nonpartisan judicial elections, while the bill limiting campaign contributions lost on a 5-5 vote. The votes mean that efforts to change the way judges are elected in Alabama are most likely dead for the current session.

The bills were supported by Alabama Chief Justice Sue Bell Cobb, the only Democrat on the appellate bench in Alabama. -- Judicial election bills defeated | | Montgomery Advertiser

March 25, 2009

Texas: veteran VRA lawyers file amicus brief in NAMUDNO

A group of veteran voting-rights attorneys lead by Julius Chambers, former director-counsel of the NAACP Legal Defense Fund, has filed an amicus brief with the Supreme Court in Northwest Austin Municipal Unitily District v. Holder. The attorneys argue:

In comparison to Appellant’s limited familiarity with elections, attorney amici collectively have more than 200 years of experience litigating voting rights cases in covered and non-covered jurisdictions throughout the country. This experience has led amici to recognize the persistent need for timely enforcement capable of deterring illegal voting schemes before they are implemented—a task for which caseby- case litigation under Section 2 is ill-suited, but for which Section 5 was designed.

Were Section 5 unavailable, there would be a significant increase in the number of discriminatory voting changes that voters and jurisdictions would be forced to address through litigation. But Section 2 cannot substitute for the prophylactic function of Section 5. In practice, amici have seen Section 2 and Section 5 operate in the complementary fashion that Congress intended. Where minority voters in covered jurisdictions cannot find a lawyer or afford to pay one, Section 5 provides the means to redress new violations of their rights. And where minority voters are able to get their day in court, Section 5 provides the assurance that their hard-won and expensive battles will not have been fought in vain if a jurisdiction repeats similar violations.

Too many discriminatory voting changes would remain unchallenged if Section 5 were invalidated. For individual minority voters, the cost and effort required to pursue Section 2 cases are great barriers to private enforcement, a problem made more acute by the small number of practitioners in covered jurisdictions who are willing and able to take such cases. This creates a perverse incentive—all too often realized—for officials to continue suspect practices because they know most voters cannot challenge them. In contrast, Section 5 serves as a deterrent to such practices.

Amici’s lengthy experience in the voting rights arena shows the importance of Congress’s considered decision to reauthorize Section 5. Without it, minority voters will fail to realize the full promise of the Voting Rights Act.

The amici include the following lawyers:James U. Blacksher, Armand Derfner, Anita Earls, Robert McDuff, Edward Still, and Ellis Turnage. The lawyers are represented by William D. Kissinger, Sujal J. Shah, Erin Shannon-Conroy, Perry M. Grossman, and Sarah L. Bishop of Bibgham McCutchen LLP.

Alabama: DOJ objects again to Calera redistricting

The Birmingham News reports: U.S. Department of Justice officials said Tuesday that they will not accept Calera's 2008 redistricting plan, which means the municipal elections were no good. ...

"Having reviewed these materials, I remain unable to conclude that the city of Calera has carried its burden of showing that the submitted changes have neither a discriminatory purpose nor a discriminatory effect," Loretta King, acting assistant attorney general, said in a letter Tuesday to the city's attorney, Frank "Butch" Ellis.

City leaders learned the day before the Aug. 26 election that the Justice Department would not approve the new districts, which city officials said were created to correct population imbalances stemming from the fast growth the city has experienced in recent years. Ellis said city officials did not have the authority to call off that election or the Oct. 7 runoffs.

During the August election, Ernest Montgomery, the black incumbent from District 2, lost his bid for re-election by two votes to Eric Snyder, who is white.

Although city leaders have said that African-Americans have become a smaller percentage of the city's population over the years, voter registration and school data show otherwise, according to the letter sent Tuesday. -- U.S. Justice Department voids Calera, Alabama's redistricting plan, which throws out 2008 city elections -

Government lawyer claims right to censor political-campaign books paid with corporate funds

The New York Times reports: A quirky case about a slashing documentary attacking Hillary Rodham Clinton would not seem to be the most obvious vehicle for a fundamental re-examination of the interplay between the First Amendment and campaign finance laws.

But by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court’s 2003 decision upholding the McCain-Feingold campaign finance law, which regulates the role of money in politics.

Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.

Justice Anthony M. Kennedy said the government’s uncompromising position could have dire consequences for the McCain-Feingold law. -- Justices Consider Campaign Finance Law

NPR's report is here.

March 24, 2009

Vote to ask Pres. Obama, "Why Tuesday?"

Jacob Soboroff, Executive Director, Why Tuesday? wrote me:

Unbelievable! Because of you all, our question for President Obama about fixing America's broken voting system has shot onto the Ask The President front page in just half a day! We now need ONLY 750 votes to make it to the TOP SPOT so President Obama will be asked about election reform TONIGHT during his prime-time news conference!

Click here to give our question a thumbs-up so that President Obama will be asked about election reform TONIGHT!

If all of you vote, President Obama just might address how to fix America's broken voting system TONIGHT! You have the power!

March 14, 2009

Bill would require birth certificates from presidential candidates (bill linked)

TPM DC reports: Rep. Bill Posey, a freshman Republican from Florida, is now putting forward a bill that should be good news for a particular demographic that cares a whole lot about their issue: Those folks out there who insist that President Obama hasn't offered a birth certificate to prove he's a natural-born U.S. citizen.

CNN reports that Posey has submitted a bill to require all presidential candidates to submit a birth certificate -- which Posey says is needed in order to remove this issue as a reason to question any president's legitimacy. ...

Posey's spokesperson told CNN that Posey takes President Obama's word for it that he's a citizen: "This was not meant as an insult to the president. It is simply meant as a way to clarify future election laws and to dispel the issue so we can move on with doing business for the country." -- TPMDC | Talking Points Memo | GOP Rep Submits Bill To Require Birth Certificates From Prez Candidates

A copy of the bill is here.

Comment: Why doesn't Rep. Posey amend the bill to add candidates for Congress as well? What "other documentation" will be necessary to prove the other constitutional qualification of 14 years' residence in the United States?

March 12, 2009

Alabama: committee approves proportional division of electoral vote

The Birmingham News reports: Alabama, starting in 2012, would divide its nine electoral votes among presidential candidates based on the percentage of the popular vote they won in the general election, under a bill passed by a legislative panel Wednesday.

Alabama now awards all of its electoral votes to the presidential candidate who wins the most votes statewide. So do almost all other states.

Rep. Demetrius Newton, D-Birmingham, said he thinks the winner-take-all system discourages voting in Alabama. Republican presidential candidates have carried the state since 1980. Newton said some Republicans may have stayed home because they assumed a Republican win, and some Democrats may have stayed home for the same reason.

He said distributing Alabama's nine electoral votes in proportion to the candidates' popular votes would give both sides incentive to go to the polls. Newton noted that a third-party candidate, if he or she did well enough, also could get one or more of Alabama's electoral votes. "All of the winners and the losers have a voice" under a proportional system, Newton said. "Today, the losers have no voice." -- Alabama legislative panel passes plan to award Alabama's nine electoral votes proportionately, depending on the vote counts of the presidential candidates.) -

Here is the bill:

By Representatives Newton (D), Moore (M), Rogers, Dunn, Todd, Graham, Knight, Robinson (J), Curtis, Schmitz, Spicer, Black, Kennedy, Guin, Boothe, Baker (L), Thomas (J) and Vance
RFD Constitution and Elections
Rd 1 03-FEB-09

SYNOPSIS: Under existing law, nine presidential and vice presidential electors are nominated at large and statewide by the political parties.
This bill would provide for the election of presidential and vice presidential electors in direct proportional relationship to the popular vote beginning in the 2012 presidential election.


To amend Section 17-14-34, Code of Alabama 1975, relating to the election of presidential and vice presidential electors, to provide for the election of presidential and vice presidential electors in direct proportional relationship to the popular vote beginning in the 2012 presidential election.


Section 1. Section 17-14-34, Code of Alabama 1975, is amended to read as follows:

"Within Beginning with the 2012 presidential election and continuing thereafter, within 15 days after the time for making the returns, the Governor, in the presence of the Secretary of State and Attorney General, or either of them in the absence of the other, must certify the returns, and ascertain which electors are elected, and notify them by proclamation by the total number of popular votes for each presidential and vice presidential candidate. The number of electors for each candidate shall directly correspond to the percentage of the popular vote received by that candidate. The Governor shall then notify by proclamation each presidential elector as elected."

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Pres. Obama supports continued Sec. 5 coverage

The Birmingham News reports: The part of the 44-year-old Voting Rights Act that requires states such as Alabama to get federal permission before making election-related changes is still a necessary protection for minority voters, President Barack Obama said Wednesday.

Obama, rebutting a sentiment in some Southern states that they no longer need Justice Department supervision, said the scrutiny remains important in places where blacks and whites and Hispanics are especially polarized in their voting patterns. The threat to minorities may no longer be as overtly discriminatory as refusing to register blacks to vote, he said, but may be that they won't have a real chance to elect their candidate of choice.

"There are probably some parts of the South that ... if you looked at the data, are no longer that polarized. There are other parts that are probably still very polarized," Obama said in an interview with 15 reporters from around the country, including The Birmingham News. ...

"Keep in mind that preclearance is just that: It requires before you make a change to go before the D.C. Circuit (Court) or the federal courts and show these changes aren't a problem. That's not such a huge hurdle to jump through," Obama said. "So I think it's legitimate to err on the side of caution before you started eliminating that requirement." -- Minority vote protections still needed in South, Obama tells regional reporters -

March 9, 2009

North Carolina: Scotus decides Bartlett v. Strickland

The Supreme Court has decided Bartlett v. Strickland, No. 07-689. The Justices divided 3-2-4.

The Three (Kennedy, C.J. Roberts, and Alito) "concluded that §2 does not require state officials to draw election-district lines to allow a racial minority that would make up less than 50 percent of the voting-age population in the redrawn district to join with crossover voters to elect the minority’s candidate of choice. ... This holding does not consider the permissibility of crossover districts as a matter of legislative choice or discretion. Section 2 allows States to choose their own method of complying with the Voting Rights Act, which may include drawing crossover districts. See Georgia v. Ashcroft, 539 U. S. 461, 480–482. Moreover, the holding shouldnot be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See, e.g., Miller v. Johnson, 515 U. S. 900. Such districts are only re-quired if all three Gingles factors are met and if §2 applies based onthe totality of the circumstances."

The Two (Thomas and Scalia) said "the text of §2 of the Voting Rights Act of 1965 does notauthorize any vote dilution claim, regardless of the size of the minor-ity population in a given district."

The Four (Souter, Stevens, Ginsburg, and Breyer) filed one dissent in which all joined and Justices Ginsburg and Breyer filed additional dissents. Justice Souter's opinion stated, "I would hold that ... a district may be a minority-opportunity district so long as a cohesive minority population is large enough to elect its chosen candidate when combined with a reliable number of crossover voters from an otherwise polarized majority."

Justice Ginsburg said, "Today’s decision returns the ball to Congress’ court. The Legislature has just cause to clarify beyond debate the appropriate reading of §2." [Can the introduction of a Voting Rights Act of 2009 be far?]

Justice Breyer's opinion asks, "Why not use a numerical gateway rule that looks more directly at the relevant question: Is the minority bloc large enough, is it cohesive enough, is the necessary majority crossover vote small enough, so that the minority (tending to vote cohesively) can likely vote its preferred candidate (rather than a consensus candidate) into office?" and proposes a a new test: "Suppose we pick a numeri-cal ratio that requires the minority voting age population to be twice as large as the percentage of majority crossovervotes needed to elect the minority’s preferred candidate.We would calculate the latter (the percentage of majoritycrossover votes the minority voters need) to take accountof both the percentage of minority voting age population in the district and the cohesiveness with which they vote."

March 8, 2009

Alabama: Montgomery Co. election director pushes for more voters, turnout

The Montgomery Advertiser reports: About 75 percent of Montgom­ery County's registered voters cast their ballots in the presi­dential election, but director of elections Trey Granger thinks there still is work to be done.

He continues looking to make improvements that will get more people out to vote, bring the community together and ed­ucate voters. ...

It's been four years since he took the position as director of elections, and he said the Mont­gomery Election Center finally is beginning to brand itself as a valuable community resource. ...

Right now, the Election Cen­ter is sending people out to com­munity centers, civic clubs and church groups throughout the county, Granger said.

"They don't know where they are supposed to vote, or who is on the ballot -- all those sorts of things that people put off until as late as the day of an election," Granger said. "Anything we can do proactively to help people be­gin to do that is something that is a priority for us." -- Granger: Election system still needs work | | Montgomery Advertiser

United Kingdom: 16-year olds will get the right to vote

Scotland on Sunday reports: THE voting age could soon be reduced from 18 to 16, in a move which could see students sitting their Highers being able to vote in the next Holyrood elections.

Energy minister Ed Miliband, who is in charge of Labour's manifesto for the UK elections, used a speech to the Scottish Labour conference yesterday to reinforce his support for the move. ...

Prime Minister Gordon Brown has suggested he would give his backing to the idea, while Conservative leader David Cameron is also said to support the move.

Westminster MPs could legislate for the Scottish Parliament as well, meaning the Holyrood elections in 2011 could be among the first to be held under a new system, if the Government decides to press ahead. -- 16-year-old Scots set to get vote by 2011 election - Scotland on Sunday

March 5, 2009

11 Senators introduce anti-caging bill

TPM Muckraker reports: Eleven Democratic senators led by Sheldon Whitehouse of Rhode Island today introduced a bill designed to make GOP operatives think twice about launching indiscriminate challenges on people's right to vote. The bill would outlaw challenges to voting eligibility that are based on unreliable information.

The bill appears targeted at the GOP's "caging" tactic -- in one manifestation of which, Republicans in Michigan and other states considered challenging the eligibility of voters who were on a list of people whose homes were subject to foreclosure.

It would also appear to cover the GOP effort we reported on in New Mexico last fall, in which the state party publicly announced its intention to challenge 28 mostly Hispanic voters, based on a grab-bag of suspicions. All of those voters were later shown to be valid. ...

[From the press release:] The Caging Prohibition Act would mandate that anyone who challenges the right of another citizen to vote must set forth the specific grounds for that voter's alleged ineligibility and describe the evidence to support that conclusion, under penalty of perjury. Following allegations in 2008 that Republican Party officials in Michigan, Florida, Indiana, and Ohio were considering challenging the eligibility of voters who were on a list of people whose homes were subject to foreclosure, the sponsors updated last year's version of the Caging Prohibition Act to explicitly prohibit challenges based on the foreclosure status of a voter's residence. -- TPMMuckraker | Talking Points Memo | Dem Bill Would Crack Down On Voter Caging

Note: This year's bill is not on Thomas yet, but last year's bill is.

March 4, 2009

Alabama: Riley sez we don't need VRA Sec. 5

The Birmingham News reports: The section of the Voting Rights Act that requires Alabama to get federal approval for election-related changes is an unnecessary burden on a state that no longer needs supervision from Washington to ensure fair voting, Gov. Bob Riley contends in a brief filed with the U.S. Supreme Court.

By keeping Alabama on the Justice Department's watch list for discrimination against minority voters, "Congress wrongly equated Alabama's modern government, and its people, with their Jim Crow ancestors," lawyers for the governor wrote.

Congress in 2006 renewed the landmark voting rights law and the section that requires nine states, plus local jurisdictions in several other states, to prove that changes to election procedures, such as moving a polling place, do not disenfranchise black voters.

Alabama rightfully deserved its place on the list in 1965, but no longer, Riley argues in the brief, filed last week. Of the 3,279 times Alabama has asked for Justice Department "pre-clearance" for changes between 1996 and 2005, it received two rejections, the brief states. ...

Birmingham lawyer Ed Still, an advocate of the Voting Rights Act, said Riley's submission to the justices doesn't address whether the extension of the law is constitutional.

"This is just part of a campaign that Riley has had for a while now - he and his attorneys general, trying to cripple the Voting Rights Act any way they could. This is a whine," Still said Tuesday. "I suspect this is the governor's way of providing some war stories to the conservative justices who want to strike down Section 5." -- Alabama no longer needs voting rights supervision, Gov. Bob Riley says -

March 2, 2009

Alabama: felon-voting bill draws opposition

The Montgomery Advertiser reports: Two bills currently in the state Legislature could clear up the decades-old debate about whether felons should be allowed to vote, but advocates for felons' voting rights say the bills would be worse than the existing law.

The Rev. Kenneth Glasgow, founder of The Ordinary People Society, which is based in Dothan, said the bills would roll back gains made under the current law that gives felons who haven't committed crimes of "moral turpitude" a chance to vote. Last year Glasgow, with the backing of the NAACP Legal Defense Fund, sued the state Department of Corrections so he could provide voter registration information to incarcerated people who were eligible to vote. ...

The House Constitution and Election Committee advanced a bill during the second week of the session that would define moral turpitude and which crimes involve it.

The proposed bill would increase the number of crimes that involve moral turpitude from about 15 to more than 70 and revoke the voting rights of people who commit those crimes. The same committee also will decide the fate of a bill on Attorney General Troy King's agenda that would go even further than the moral turpitude bill, revoking the voting rights of anyone who commits a felony. -- Felons' voting rights back on agenda | | Montgomery Advertiser