State of Elections

William & Mary Law School | Election Law Society

Tag: First Amendment (page 2 of 3)

Robo-calls, in Montana and Elsewhere

By: Cameron Boster


Missoula, Montana, is a beautiful city. There are mountains in the distance, tall, deep-green trees everywhere, old buildings – and a rocky, white-swirling river moving through it. No reasonable person seeing Missoula for the first time would think to focus on the city’s current robo-call election law controversy.

This month, parents of students enrolled in Missoula’s schools received automated phone calls containing a message from Missoula’s mayor, John Engen. The content of the message is available on Youtube. In short, the message urges parents to vote on an upcoming bond, tells them where and how they can cast their ballot, and ends with this encouragement: “Thank you for everything you do to support your children, and to ensure a positive future for your family – and our wonderful community.”

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Lee v. Virginia Board of Elections: Wait, Virginians have to present a photo ID to vote?

By: Melissa Ryan

In 2013, Republican majorities in both houses of the Virginia General Assembly enacted a “voter ID law” that significantly restricts accepted forms of identification that voters must present before casting a ballot on Election Day. Now, officers at the election booths will require voters to present one of the following forms of photo identification: (1) a valid Virginia driver’s license; (2) a valid United States passport; (3) any photo identification issued by the Commonwealth, one of its political subdivisions, or the United States; (4) a valid student identification card containing a photograph of the voter and issued by any institution of higher education located in the Commonwealth; or (5) a valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer’s business. Any voter that is unable to present an acceptable form of photo identification at the polls will be offered a provisional ballot, but the voter must deliver a copy of a proper form of identification to the electoral board by noon of the third day after the election. Provisional voters may submit copies by fax, e-mail, in-person submission, timely United States Postal Service, or commercial mail delivery.

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Supreme Court hearing Maryland Redistricting Case is not “Frivolous” for Future of Election Law Procedure

By: Hayley A Steffen

The Supreme Court has famously asserted that the right to vote is “preservative of other basic civil and political rights.” Recognizing the right to vote is implicated in election law litigation, Congress enacted special procedures for adjudicating these claims under the Three-Judge Act of 1910. Now codified under 28 U.S.C. § 2284, one provision requires a three-judge district court to hear constitutional challenges to redistricting claims of any congressional or statewide legislative body. Although the statute reads that the single judge to whom the request for a three-judge panel is made “may determine that a panel is not necessary,” it is unclear under what standard the judge has the authority to do so. Next month, the Supreme Court will be called upon to clarify this standard in a case brought by a Maryland man challenging the state’s redistricting scheme.

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Why leave room for foul play? The 10-Foot Requirement

By Lance Woods:

Pennsylvania’s decision to continue to keep the press from entering polling stations draws an arbitrary line and leaves room for foul play by ensuring that the voting process is not as transparent as possible. Continue reading

The Primary Problem

By Staff Writer:

As the turmoil over the election season comes to a close, the battle between Thad Cochran and Chris McDaniel seems to have finally been put to rest. The Mississippi Supreme Court ruled in late October that McDaniel had missed the twenty day deadline to challenge the results of the primary runoff. However, as some conservative supporters were quick to point out, the Court never reached the merits of the case. McDaniel’s claims were dismissed based on court precedent, not black letter law, regarding timely filing. This lead some online news sources to question whether the law was properly applied or whether McDaniel might challenge Cochran’s seating in the Senate. However, despite the McDaniel campaign’s continued assertion that true justice has been denied, it appears that Thad Cochran will serve a seventh term as a U.S. Senator for Mississippi.    Continue reading

You Can Lie in Ohio: Federal Court Strikes Down Ohio Law Banning False Political Speech

By Sarah Wiley

A federal judge in Cincinnati struck down an Ohio law which criminalizes intentionally lying in campaign ads or statements, on the books for decades in early September on First Amendment grounds. The state filed an appeal in October. Continue reading

Lawsuit Challenges New Hampshire Ban on “Ballot Selfies”

By Sarah Graffam

In a recent lawsuit, the New Hampshire Civil Liberties Union challenged a law that prohibits the posting of photos of marked ballots on social media. The NHCLU states, “there is no more potent way to communicate one’s support for a candidate than to voluntarily display a photograph of one’s marked ballot depicting one’s vote for that candidate.” NH RSA 659:35(I) bans a person from displaying a photograph of a market ballot, including on the internet through social media platforms like Twitter, Facebook, and Instagram. A willful violation of this statute may be punishable by a fine up to $1,000. Continue reading

One Sentence May Fundamentally Alter Third Party Ballot Access in New Hampshire

By Sarah Graffam

A lawsuit pending before the New Hampshire Federal District Court could have serious impact on third party access to the ballot in future elections. House Bill 1542, which became law on July 22, 2014, added one sentence to RSA 655:40: “Nomination papers shall be signed and dated in the year of the election.” In a suit filed the same day, the New Hampshire Civil Liberties Union, on behalf of the Libertarian Party of New Hampshire, argued HB 1542 imposes onerous restrictions on third party access to the ballot which limits voter choice and stacks the deck against candidates who do not belong to a major party. Continue reading

Maryland & Indiana: A robocall showdown

How different states are handling political robocall controversies.

by Ashley Ward

What thought comes to mind upon hearing the word “Robocall”? For most, the thought conjures ideas of annoying telemarketing. However, for Democrats in the Baltimore and Prince George’s Counties, robocalls received on the 2010 election night added new thoughts to the definition: voter confusion and suppression. Before the polls closed for the 2010 Gubernatorial Race, residents received a call from an unnamed woman who said: “I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met…The only thing left is to watch it on TV tonight. Congratulations and thank you.” Listen Here

The message seemed to imply that the Democratic candidate had already won the election and therefore the residents’ vote would be excessive and not needed. This implication was ill-gotten because there was no way to know at that time which candidate won. Many confused and upset residents contacted Gov. O’ Malley’s campaign center to complain.  Further investigation proved that the governor and his team had nothing to do with the calls. In fact, investigators determined that the members of the Republican candidate, former Gov. Eurlich’s team were responsible for the calls that have been considered by many to be a tactic to discourage the African American vote.
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Alabama GOP Offers Teacher’s Union Political Rotten Apple

Alabama Republicans are back from the legislative wilderness after 136 years, and now it’s time for Dems to finally get their comeuppance—or is it simply ethics and campaign finance reform? Soon Republican Governor Bob Riley will likely sign into law several pieces of ethics reform legislation that his Republican-controlled legislature passed in last week’s special session. Senate Bill 2 amends Section 17-17-5 of Alabama Code to proscribe state employees from contributing to a political action committee or paying membership dues to any organization that uses any portion of its dues for political activity by payroll deduction or other payment.

To the chagrin of Alabama Democrats, SB 2 would disproportionately hurt public employee organizations and the Alabama Education Association, Alabama’s largest and most influential teacher’s union. According to figures from Bloomberg News, payroll deductions are a primary means for over 90 percent of Alabama teachers who wish to pay dues and support the AEA’s PAC. In the 2010 elections, AEA members’ contributions in excess of $8.6 million catapulted the teacher’s lobbying group as the state’s top spender. While SB 2 would still permit state employees to continue to use payroll deduction for any portion of membership dues not used for political activity, its certainly erects a new hurdle for AEA’s political fundraising efforts. Any Alabama Democrat mulling over a legal challenge would be wise to read the Supreme Court tealeaves by examining their decision in Ysursa v. Pocatello Education Association. In Ysursa, SCOTUS reversed the Ninth Circuit Court of Appeals by upholding Idaho legislation similar to that of SB 2 that prohibited state payroll deductions for political activities.

While acknowledging the constitutional implications of the restriction, the Court ultimately recognized no affirmative right for groups to use state payroll deductions to sustain political speech or expression. In further justifying their decision, Chief Justice Roberts wrote “. . . Idaho is under no obligation to aid the unions in their political activities. And the State’s decision not to do so is not an abridgement of the unions’ speech; they are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor.”

Furthermore, the Court cited Idaho’s interest in avoiding any appearance of combining government business and political activity. Pointing to precedent that upheld speech limitations to “avoi[d] the appearance of political favoritism,” and cases that found public confidence in government is susceptible to undermining through perception of political partiality, C.J. Roberts asserted “banning payroll deductions for political speech . . . furthers the government’s interest in distinguishing between internal governmental operations and private speech.”

Given Ysursa, any challenge by SB 2 opponents will likely be answered that the AEA has no affirmative right to gain access to potential political donors through government payroll operations. AEA donors may now easily write a personal check and even request payroll deductions for membership dues that will not go towards political activity. Questions of political motivations aside, it appears that the AEA and other Alabama organizations like it must recalibrate their operations in the face of increasing Republican capital and an ominous parallel decision from the Roberts Court.

Gregory Proseus is a second-year student at William & Mary Law School.


He was buried under a pile of stones college homework from in his philosophical garden
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