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Ballot Ordering: A Recurrent Controversy in Virginia?

By: Jacob Dievendorf

In at least the two most recent “big” elections in Virginia, the 2016 Presidential race, and the 2017 race for Governor, there has been some controversy over the method used to decide which order candidates appear on the ballot. In March 2017, the Corey Stewart campaign issued a press release accusing Ed Gillespie’s campaign of “manipulating the Virginia Board of Elections in a last-ditch, rule-breaking effort to have Ed’s name placed at the top of the [primary] ballot.” Virginia law provides that ballot order for primaries is determined by the time that a candidate files for the office, on a first come first served basis. If candidates file simultaneously, ballot order is determined by lottery. The Stewart campaign went so far as to camp out in front of the Board of Elections offices the night before in order to be first, but alleged that Gillespie’s campaign was pressuring the Board to consider their filings simultaneous.

Looking back just a bit further, Virginia’s ballot ordering rules also caused some controversy during the 2016 election cycle. In general elections, Virginia law provides that candidates from major political parties, that is, parties that receive more than 10 percent of the vote in two previous statewide elections, are listed on the ballot first, followed by candidates from minor parties, and lastly, the names of independent candidates. This law was challenged by a former minor party candidate for governor, Robert Sarvis, of the Libertarian Party, and eventually found its way up to the 4th Circuit. In June, 2016, a three judge panel of the 4th Circuit affirmed the district court’s dismissal of the case, based largely on a theory that the ballot ordering law does not harm minor parties.

It is hard to say whether this controversy will continue. Two data points hardly make a trend, but the issue has proved important enough to drive a gubernatorial campaign to literally camp out in front of the Board of Elections, and a third party candidate to fight a case up to the 4th Circuit. Why is ballot ordering even an issue? Surely voters are able to discern which candidate they prefer, no matter the order of names on the ballot.

Contrary to this notion, there is a body of evidence that suggests that order on a list does matter. It seems that when people make choices, there is some preference for selecting choices that are listed first, or higher, in a list of choices. Larry Sabato, writing for the University of Virginia Center for Politics, has looked at the political implications of this bias. His conclusions contain an interesting implication for ballot ordering in Virginia. While he concludes that races for major offices such as president and governor are not highly impacted by serial position effects, lesser offices and non-partisan races are especially susceptible. Therefore, many “lesser” elections in Virginia, where candidates are not associated with parties, may be especially influenced by this form of selection bias.

It is possible that ballot ordering controversies will go nowhere, and that the issues raised in 2016 and 2017 will be a fluke. On the other hand, in an increasingly polarized voting climate, where parties compete to eke out whatever advantages they can, perhaps the minor advantage gained by being listed first on a ballot will become increasingly attractive. Ballot ordering is a currently minor issue, but one with increasingly significant potential.

Why Go to Wisconsin?

By: George Nwanze

While Gil v. Whitford, the Wisconsin gerrymandering case presently before the Supreme Court, may be absorbing all the legal intrigue, one previously litigated issue involving Wisconsin’s elections has gone unnoticed. Particularly, the state’s voter identification laws and the suppressive effects it has had on voter turnout.

In the aftermath of the 2016 election, perhaps the most common retort of the electoral upset was, “Wisconsin should have gone to Hillary Clinton.” Wisconsin was typically viewed as a reliable Democratic state in presidential elections, as the last time Wisconsin went for a Republican for president was in 1984. However, this assertion was more of a visceral reaction to what many view as a poor political decision, rather than something that the data actual bears out. Fortunately, a recently released study by the University of Wisconsin-Madison (UWM), sheds some light on whether it actually mattered if “she went to Wisconsin.”

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A new school year has started, and with it comes a new web design! We are currently seeking blog posts, so please email us at wmstateofelections@gmail.com with ideas or articles.

Summer Hiatus

As school is out of session, the blog will be on summer hiatus until the start of the 2017-2018 academic year.

Defining “Compactness”: Meaningless Truism or Gerrymander Slayer?

By: Ben Williams 

This past week, an upstart election law reform organization in Virginia garnered national attention for a lawsuit that could redefine the legal strategies of anti-gerrymandering activists across the country. Per Article II, § 6 of the Virginia Constitution, “[e]very electoral district shall be composed of contiguous and compact territory…” (emphasis added). Virginia is not alone in requiring its districts to be compact—a majority of states have such a requirement. But while the word “contiguous” is easily defined (all parts of the district are connected in a single, unbroken shape), the political science community lacks a common understanding of what exactly contiguity is. As a threshold issue, there are two potential ways to measure a district’s compactness: spatially (the physical shape and area of the district) or demographically (calculating the spread of persons within a given district).  While many states do not define which of these measures should govern, or if one should be preferred over the other, the Virginia Supreme Court in Jamerson v. Womack said the language of Art. II (cited above) “clearly limits [the Article’s] meaning as definitions of spatial restrictions in the composition of electoral districts.” Thus, one of the key questions the Circuit Court judge and the attorneys in the case had to address was how to measure spatial compactness in Virginia?

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Balancing Nonpartisan Judicial Elections with Candidates’ First Amendment Rights in Kentucky

 

By: Carrie Mattingly

In Kentucky, all state court judges are elected in nonpartisan elections. Kentucky’s Code of Judicial Conduct seeks to keep candidates on nonpartisan message. But the 6th Circuit Court of Appeals recently struck down some judicial campaign restrictions on First Amendment grounds.

One sitting and two aspiring Kentucky judges brought suit to stop the enforcement of these judicial canons against them. Robert A. Winter, Jr. distributed campaign literature identifying himself as a “lifelong Republican,” and he received a letter stating that this literature may have violated the canon prohibiting campaigning “as a member of a political organization.” Judge Allison Jones asked voters to “re-elect” her, even though she was initially appointed to her seat, and pledged to provide stiff penalties for heroin dealers if elected. She also received a letter stating that her “re-elect” statement may have violated the canon prohibiting “false and misleading statements” and that her “stiff penalties” comment may have been an impermissible “commitment” inconsistent with the impartial performance of judicial duties. Finally, Judge Cameron J. Blau wished to give speeches supporting the Republican Party, to hold Republican fundraisers, to seek and receive Republican endorsements, and to donate to candidates and to the party, but he refrained in fear of sanctions.

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Easy Reading? California’s 224-page Voter’s Guide

By: Tyler Sherman

As November 8—election day—drew closer and Californians geared up to cast their ballots, election officials mailed out the state’s Official Voter Information Guide. The guide listed and explained each of seventeen ballot propositions—the most to appear on a single ballot in sixteen years. But not only was the ballot replete with more propositions than in any election in nearly two decades, the Guide itself set the record of being the longest voter guide in California’s history, at an enormous 224-pages long.

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In a Battle Between the Delaware General Assembly and a Municipality, The Legislature Won: How A New Delaware Law Prevents Municipalities from Establishing Burdensome Registration Requirements for Municipal Elections

By: Ecker Owen

According to a fairly recent survey conducted by the United States government, some 25.7 percent of Americans traveled to the beach over the preceding twelve-month period.  Moreover, in the mid-Atlantic region of the United States, the beach season typically is considered to be between Memorial Day and Labor Day.  Therefore, many people from the surrounding areas and states take a week off of work in the summertime, travel to towns along the beach with their friends and families, and then go back to their normal existences after their vacations have concluded.  But in all of this seasonal transiency, there are several questions that the average vacationer would never even bother think about: what happens to beach communities during the other approximately nine months out of the year, and who continues to live in those places during that non-summer time period?  The fact remains that a sizeable number of individuals live in beach communities during non-peak months.  Furthermore, like other, more static communities, beach communities require the existence of local governments to provide services and write ordinances that protect their constituents.  Obviously, these municipal governments necessitate the presence of elected officials to execute the governing process.  However, problems arise over the question of whether individuals existing within these communities for short periods of time should have the right to vote in these municipal elections.
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Campaign Finance Woes in Connecticut: State Democratic Party, Governor Again Accused of Misusing Funds in 2014 Elections

By: Cris DeBlaise

When seeking reelection in 2014, Connecticut incumbent Democratic Governor Dannel Malloy was neck-and-neck in one of the closest gubernatorial races in the country. In a last-minute attempt to garner more support, Malloy and his team spent over $250,000 to send out a pro-Malloy mass mailing in the weeks leading up the election. Though the effort itself does not sound controversial, the way the election mailer was financed set off alarm bells at the state—and now federal—levels.

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Idealism vs. Realism: Alternative Paths to Redistricting Reform in an Anticompetitive World

By: Ben Williams

In my previous post for this blog, I compared the competitiveness of congressional races in various states which have enacted redistricting reform to one another—and to the nation as a whole—to discover if Iowa’s acclaimed redistricting reform lives up to the hype surrounding it. Since that post, the 2016 electoral map has changed significantly: several news outlets, such as poll aggregator RealClearPolitics, liberal news outlet Vox, and Nate Silver’s FiveThirtyEight are all suggested that—while unlikely—there was  at least a conceivable possibility that the Republican Party could lose the House of Representatives. The fact that the House would only be in play in a Democratic wave election speaks volumes about how successful the Republicans’ REDMAP project was in 2011. But this is a blog about election law, not politics.  The 2016 House races brought up several important questions: (1) Were House races truly competitive this year? (2) How did the states which have enacted redistricting reform compare to the national average? And (3) Which method of redistricting reform should reform advocates look to emulate in the non-reformed states?

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