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Illinois party leaders: Unlimited candidate contributions for me, but not for thee

by Tony Glosson

A recent lawsuit filed by Illinois-based Liberty Justice Center poses an interesting question for campaign finance law: Should legislators be allowed to exempt their own party committees and leaders from limitations placed on contributions to candidates? The complaint, filed on behalf of Illinois Liberty PAC and amended to include a private citizen, alleges that Illinois Public Act 96-832 “…treats Illinois Liberty PAC and other nonparty speakers differently from similarly situated political parties” and that “this disparate treatment burdens Illinois Liberty PAC’s First Amendment rights to free speech and equal protection guaranteed by the Fourteenth Amendment…” Continue reading

Voter ID squabbles continue in Pennsylvania

by Patrick Genova

Starting this November voters in Pennsylvania will face stricter ID requirements at polling stations. A new law requires a voter to present an ID from a list of approved forms of identification each time before casting a ballot. Proponents of the new law, such as PA’s Republican Governor Tom Corbett, say the law will reduce fraud, but the new push for voter ID has many opponents asking about ulterior motives.

An Arizona State University, Walter Cronkite School of Journalism study found that voter impersonation occurred at a rate of only 1 in 15 million for in-person voting. By comparison, the PA Department of State and Transportation estimates that 9% of Pennsylvania’s eligible voters do not meet ID requirements. Analysts at the Brennan Center also point out that a five year prison sentence and $10,000 fine for each count of voter fraud makes it “a singularly foolish way to attempt to win an election.” Continue reading

Dispelling the Major Legal Arguments Against the National Popular Vote Compact

by Jessica Heller of FairVote

The National Popular Vote Compact (NPVC) guarantees election of the presidential candidate who earns the greatest number of votes in all 50 states and the District of Columbia. The NPVC does not dispense with the Electoral College, and is not a constitutional amendment. Rather, it is based on two clear powers given to the states under the Constitution: the power under Article 2 Section 1 to choose how to allocate its presidential electors, and the power under Article 1 Section 10 to enter into interstate compacts.

NPVC is an interstate compact, a binding contract entered into by state law. Once the states that enact these laws exceed the threshold of a majority of electoral votes (270 out of 538), the compact will take effect. Even where states choose not to participate in the NPVC, the votes from those states will be incorporated on an equal basis into the total national popular vote, which in turn determines which candidate earns the electoral votes in NPVC states.

Currently eight states and the District of Columbia have enacted laws to join the NPVC. The NPVC is now at its halfway point, meaning that states that have entered into the interstate compact make up 132 electoral votes, or 49% of the 270 electoral votes needed. Even with this milestone in sight and polls consistently showing strong support in states across the U.S. polls consistently showing strong support in states across the U.S., the NPVC faces individual opposition as well as specific legal challenges to its effectiveness.  This article seeks to address and respond to some of the major legal arguments that have been made against the NPVC, and reaffirm the constitutionality of the NPVC.  Of those arguments, we specifically address particularly compelling arguments put forward by:

David Gringer, Why the National Popular Vote Plan is the Wrong Way to Abolish the Electoral College, 108 COLUM L. REV. 182 (2008).

Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 ELEC. L. J. 372, 391 (2007).

Norman Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change, 100 GEO. L.J. 173, 227 (2011).

I. The Compact Clause

Various scholars have challenged the constitutionality of the NPVC by asserting that it violates the Compact Clause of the Constitution. The relevant part of the Clause reads, “No State shall, without the consent of Congress…enter into any Agreement or Compact with another State.” U.S. CONST. art. I, § 10, cl. 3. Compact Clause arguments generally fall into one of two categories: (1) the NPVC is unconstitutional without consent from Congress, or (2) the NPVC’s adverse impact on non-compacting states violates the Clause under prevailing jurisprudence. Part I will address each of those arguments in turn.

A. The NPVC does not qualify as a compact that traditionally requires congressional consent

The lead advocates of NPVC are quite clear that they have every intent of seeking congressional consentat the time when congressional consent of compacts is typically sought: that is, after enough states have adopted it for it to go into effect.  But in the event that Congress were not to provide consent, there is an argument that the compact still could be enacted. .

On its face, the Compact Clause does ostensibly prohibit any compact between states lacking congressional consent. However, the Supreme Court has definitively stated that “not all agreements between States are subject to the strictures of the Compact clause.” U.S. Steel Corp. v. Multistate Tax Comm’n, 98 S.Ct. 799, 469 (1978). Rather, the prohibition is only directed “to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” Id at 468, quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893). Therefore, if the NPVC does not infringe upon federal supremacy, it does not require congressional consent. By that logic, the NPVC is certainly valid as it stands.

In forming the NPVC, states are exercising a power expressly granted to them by the Constitution. Article I provides state legislatures with enormous flexibility in deciding how to choose its electors. In fact, “literally any method within the scope of federal equal protection law can be chosen.” Bradley Tuflinger, Fifty Republics and the National Popular Vote: How the Guarantee Clause Should Protect States Striving for Equal Protection in Presidential Elections, 45 VAL. U. L. REV. 793, 824 (2011). Since the states have plenary power, the NPVC does not implicate any federal powers.

Additionally, Bradley Tuflinger has posited that another clause of the Constitution, the Guarantee Clause, would make it unconstitutional to require that Congress consent to the NPVC. Id. The Guarantee Clause provides that, “The United States shall guarantee to every state in this Union a Republican Form of Government.” U.S. CONST. art. IV, § 4. What exactly the Founders meant by “Republican” government has been lost to history, but the Supreme Court attempted to clarify the implications of the Guarantee Clause inNew York v. United States, in which the Court “set out two criteria by which the federal government may violate the Guarantee Clause: (1) if the state loses the ability to set their legislative agendas, and (2) if state government officials can no longer remain accountable to the local electorate.” Tuflinger, supra at 820. Thus a “claim based on a congressionally imposed limitation upon the power of the state should be actionable under the Guarantee Clause.” Id. Electors are chosen by the state, and are therefore state, rather than federal officials. The states’ plenary power to choose its electors goes to the heart of a republic government, a government whose leader is chosen by the people. Requiring congressional approval would directly infringe on that power, meaning that any claim that the Compact Clause would require such approval for the NPVC would put the Compact Clause and the Guarantee Clause in direct conflict with one another.

B. NPV does not threaten the sovereignty of non-compacting states

The second Compact Clause argument against the NPVC is that because the compact affects the interests of non-compacting states, it is unconstitutional. Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 ELEC. L. J. 372, 391 (2007).  The governing case for Compact Clause litigation is U.S. Steel v. Multistate Tax Commission. In that case, the Supreme Court held that the compacting states may take any action they would have been entitled to take without the compact, as long as the compact does not infringe upon the sovereignty of non-compacting states. Because of the states’ constitutional right to determine the method by which it chooses its electors, no one argues that the NPVC involves any action that each state could not have taken independently. Rather, arguments against the NPVC have focused on the second element of the U.S. Steel test, asserting that the compact involves “one group of compacting states obtain[ing] political power at the expense of non-compacting states.” Muller, supra at 391.

However, that assertion misses the point of the NPVC. The NPVC “seizes principle rather than power, and it shares power with the non-participating states.” Jennifer Hendricks, Popular Election of the President: Using or Abusing the Electoral College? Univ. Tenn. College of Law Legal Studies Research Paper Series 83, 13 (2009). Each state’s votes would still be counted, and each state would have an equally important role in choosing the President. Nothing in the NPVC would alter non-compacting states’ sovereign right to choose its electors. Therefore, any Compact Clause challenge to the NPVC should fail.

II. Article II of the Constitution

National popular vote opponents such as Sean Parnell, Daniel Lowenstein, and Mark Scarberry have argued in public and private communications that the NPVC is unconstitutional as based on Article II Section 1 of the Constitution. The second clause of this section states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .”

The U.S. Supreme Court case of McPherson v. Blacker, 146 U.S. 1 (1892), is instructive for interpreting this aspect of Article II Section 1 of the U.S. Constitution. In McPherson, petitioners challenged Michigan’s law to allocate electoral votes by congressional district. The Court found that though a state is a collection of people, a state acts through its political agencies. The Court stated that “[i]t has never been doubted that the representatives in Congress thus chosen represented the entire people of the State acting in their sovereign capacity.” Thus, the phrase, “as the legislature thereof may direct” is not a limitation of the state’s power, but merely an expression of the state’s action.

The Court viewed the legislature and the State as interchangeable, unless the power or duty is expressly committed to another political agency of the state, or directly to the citizens of the state. Furthermore, the Court stated that “the appointment and mode of appointment of electors belong exclusively to the State under the Constitution of the United States.” 124 U.S. at 35. If the Court believed that the two powers belong to separate entities – that the power to appoint belongs to the State and power to direct belongs to the legislature – it could have said as much, but it never did. In fact, McPherson supports the argument that there is a presumption that the powers of a State reside with its legislature. So when the legislature acts, that in itself is an exercise of the sovereignty of the people, i.e., the State.

III. The Equal Protection Clause of the Fourteenth Amendment

Law professor Norman Williams has argued that because of disparities in voting laws laws among the states, the NPVC would violate the Equal Protection Clause of the Fourteenth Amendment.  Norman Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change, 100 GEO. L.J. 173, 227 (2011). For example, some states allow people convicted of certain crimes to vote in the presidential election, while people convicted of those same crimes in a different state would not be allowed to vote. NPVC detractors claim that “surely it would be unconstitutional for a state to agree to treat as valid the votes of individuals in other states who would not be entitled to vote in the original if they lived there.” Id at 227.

However, while that inconsistency is an argument that some backers of the goals of NPV make for congressional oversight of the NPVC, Vikram D. Amar, Response: The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, 100 GEO. L.J. 237 (2011), it does not qualify as a violation of the Equal Protection Clause. The Clause provides that, “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The NPVC would not change anything about the way states treat their own citizens. “No single state is treating any people who reside in any state differently than the other folks who live in that state.” Id at 250.  Since the NPVC would not entail any change in the treatment of citizens within a given jurisdiction, it should easily survive any Equal Protection claim.

Furthermore, even when Congress came close to passage of a constitutional amendment for direct election in 1969,with  81% of House Members (including such future Republican presidents as Gerald Ford and George H.W Bush), that amendment did not require uniform eligibility or national administration of elections. That discussion can take place quite separately from supporting a national popular vote for president; we suspect that once NPV is enacted, those supporting such national standards will include current opponents of NPV and those opposing such standards will include some proponents of NPV.

IV. The Voting Rights Act

Section 2 of the Voting Rights Act prohibits any action that results in the “denial or abridgement of the right of any United States citizen to vote on the account of race or color.” Voting Rights Act, 42 U.S.C. § 1973 (1965), meaning voting changes cannot improperly dilute minorities’ voting power. Opponents of the NPVC claim that it diminishes minority power, and thereby violates Section 2.  They also have suggested that it could be denied preclearance under Section Five of the Voting Rights Act, but the Department of Justice has already pre-cleared California’s’ adoption of the National Popular Vote plan.

However, in determining whether the NPVC is in violation, it would first be necessary to establish as a threshold issue whether or not Section 2 would even apply to a national election. The purpose of Section 2 is to ensure that minorities have an equal opportunity to be represented by candidates of their choice. But as the court in Butts v. City of New York pointed out, “There can be no equal opportunity for representation within an office filled by one person.” Butts v. City of N.Y., 779 F.2d 141, 148 (2d Circ. 1985). The court went on to say that as long as “the winner of an election for a single member office is chosen directly by the votes of all eligible voters, it is unlikely that electoral arrangements for such an election can deny a class an equal opportunity for representation.” Id. at 149.  Given that the entire purpose of the NPVC is to give every voter an equal vote in choosing the President, it seems clear that the logic of the Butts court applies, and Section 2 would not apply to the NPVC.

Though Section 2 should therefore not apply to the NPVC, if it were applied, the NPVC would not be in violation. Section 2 seeks to guarantee that racial majorities and minorities have an equal chance to elect the candidates they prefer. In the seminal Section 2 case, Thornburg v. Gingles, the Court pointed out that “courts and commentators agree that racial bloc voting is a key element of a vote dilution claim.” Thornburg v. Gingles, 478 U.S. 30, 55 (1986). Minorities would be denied their right to an equal opportunity to elect their preferred candidates in a situation “where minority and majority voters consistently prefer different candidates, [and] the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters.” Id at 48.

While the Gingles case was specifically addressing a dilution claim for a multimember district, its analysis can easily be applied to a national election. In most presidential elections, the vote is roughly split between the Democratic and Republican candidates, and there is no consistent winner, demonstrating that white voters do not vote in a bloc capable of consistently defeating the candidate preferred by minorities. On the contrary, given the growing number of minority communities, candidates will likely have to focus a great deal of attention on winning minority votes to win the national popular vote.  No one can make any legitimate argument that racial minorities protected by the Voting Rights Act would be unable to help elect a presidential election of their choice, even though of course there would be no guarantee that they would do so.

Others might argue that elections for president are not about electing presidents, but rather about electing a state’s group of electors. In California, for example, Latino voters protected under the Voting Rights Act strongly prefer the Democratic candidate who typically wins that state’s statewide vote and electors. That means in every election, they succeed in electing their “candidates of choice”: Democratic Party electors. Under a national popular vote, they might only help elect Democratic electors about half of the time.

But if this argument were true, then the many strongly Republican states with large racial minority populations would be liable to challenges under Section two of the Voting Rights Act. In 2008, for example, the African American vote for Barack Obama was likely more than 90% in several southern states that, due to statewide elections for electors and the strong preference of white voters for John McCain, only elected McCain electors. Anyone backing this critique of NPV would be elevating election of electors over elections of presidents – and should be ready to pursue Section 2 lawsuits in all the southern states now allocating their electoral votes on the basis of winner-take-all, statewide votes. Furthermore, those Latino voters helping to elect their candidate of choice must do so with a substantial share of white voters — that is, they would not be able to elect their presidential electors of choice on their own under California’s current statewide winner-take-all rule, and thus are not experiencing the kind of racially polarized voting that would deny them the ability to elect their candidate of choice.

Jessica Heller is a legal intern at FairVote and law student New York University School of Law.

Permalink: http://electls.blogs.wm.edu/?p=4370

 

 

Jimmy was growing bored trailing around europe look at this company with the elderly couple?

The constitutionality of the national popular vote: refuting challenges based on Article II, Section One

by Rob Richie and Elise Helgesen of FairVote

The National Popular Vote (NPV) plan guarantees election of the presidential candidate who earns the greatest number of votes in all 50 states and the District of Columbia. NPV does not dispense with the Electoral College, and is not a constitutional amendment. Rather, the plan is based on two clear powers given to the states under the Constitution: the power under Article 2 Section 1 to choose how to allocate its presidential electors, and the power under Article 1 Section 10 to enter into interstate compacts.

States in early U.S. history often exercised the power to change rules for allocating electoral votes. While today, 48 states and the District of Columbia award their electoral votes to the winner of that state’s popular vote, the founders did not originally contemplate this type of system, as James Madison explained in 1823.

NPV is an interstate compact, a binding contract entered into by state law. Once the states that enact these NPV laws exceed the threshold of a majority of electoral votes (270 out of 538), the plan will take effect. Even where states choose not to participate in the NPV compact, the votes from those states will be incorporated on an equal basis into the total national popular vote, which in turn determine which candidate earns the electoral votes in NPV states.

Currently eight states and the District of Columbia have enacted laws to join the NPV interstate compact. The states are California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, and Vermont. The NPV plan is now at its halfway point, meaning that states that have entered into the interstate compact make up 132 electoral votes, or 49% of the 270 electoral votes needed.

Even with this milestone in sight and polls consistently showing strong support in states across the U.S., the NPV plan faces individual opposition as well as specific legal challenges to its effectiveness. The concerns are answered effectively by the authors of Every Vote Equal, and supportive groups like National Popular VoteSupport Popular Vote, and FairVote.

This analysis addresses one particular challenge raised recently by NPV opponents such as Sean Parnell: that NPV is unconstitutional as based on Article II Section 1 of the Constitution. The second clause of this section states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .” Continue reading

New Mexico Supreme Court candidate disqualified

New Mexico Supreme Court Says Judicial Candidate was Properly Disqualified from Election and Fined for Violations of Public Campaign Financing Law

On April 12, 2012, the New Mexico Supreme Court found that candidate for a seat on the New Mexico Court of Appeals was properly disqualified from the election and fined. The case, Montoya v. Herrera concerned Dennis Montoya’s 2010 bid for a seat on the state appeals court. Judge Linda Vanzi was running to confirm the seat to which the governor had appointed her three years earlier and continue her job with the approval of voters. Montoya ran against her, and applied for public funding under the New Mexico Voter Action Act.

Then-secretary of state, Mary Herrera, “informed Appellant by letter that he was not qualified to receive public funding because he had violated the Act’s contribution limits and reporting requirements.” After a hearing, the action was upheld because Montoya was found to have exceeded the seed money limits of the New Mexico Voter Action Act and failed to comply with the secretary’s reporting requirements. Herrera imposed a $2,000 fine on Montoya for his violations.

Montoya appealed the disqualification and fine, which went straight to the highest court because he was running for a seat on the intermediate appellate court. The state supreme court considered whether he had violated the seed money regulations of the act, which impose a $5,000 limit on a candidate’s contributions to his own campaign. Montoya contributed over $8,000 to his own campaign, but argued they were for general expenses rather than seed money. The state high court rejected that argument, saying there is no such distinction in the wording of the law.

 

The New Mexico Supreme Court explained that, “when [Montoya] contributed more than $8,000 of his own money to the campaign, while simultaneously applying for public funds, he violated the Act.  Under the law, the Secretary had no choice but to disqualify him from public financing, and she did so.” It also dismissed Montoya’s First-Amendment claim because he choose to apply for public financing, when self-financing campaigns is allowed. This is a somewhat surprising outcome, as First Amendment claims have done well elsewhere.

The court upheld the fine as well, because the secretary of state was required by law to impose a civil penalty on anyone who violates the Act, regardless of his or her intent or knowledge of the violation.

New Mexico Supreme Court opinion

KOB local news

It was the www.buyresearchpapers.net/ last thing her hand had closed upon!

Election plans fail

by Timothy Huffstutter

At least one plan for selecting judges in Tennessee is now totally off the table. For my previous posts on the debate in the Tennessee General Assembly see here and here. Last week, the House Judiciary Committee voted 7-7 on Representative Glen Casada’s (R-Franklin) plan to elect judges and justices in contested elections. As a result of the tie vote, one vote shy of the majority needed to advance the bill, legislators now have only two proposals in front of them.

Casada was clearly displeased with the rejection of his proposal: “I’m disappointed to say the least.”  He went on to contend that “[t]he constitution governs how we do business and do public policy in the state. To be out of compliance is wrong. If you can’t comply with the most basic, how can you trust us to comply with other parts of the law as well?” Executive Director of the Tennessee Bar Association Allan Ramsaur was not convinced: “Let’s get away from this myth that what we have is not an elected system. We do elect judges, we just don’t have contests which lead to partisanship and big money influence.”

Now, Tennessee legislators are considering the two remaining plans in the rush before the legislative session ends at the end of April. Lieutenant Governor Ron Ramsey (R-Blountville) hopes that legislators will approve both plans and then come back in the next session to make a final decision. The first proposal amends the state constitution to explicitly provide for the current system—the so-called Tennessee Plan. The second proposal would mirror the federal judicial selection system (nomination by the executive with confirmation from the upper house of the legislature).

Legislators have to make a decision before the end of this legislative session. Should the Tennessee Senate approve both plans, then the new General Assembly, which will convene in January 2013, could pick up the stalemate. If the General Assembly fails to make any decision, then the debate will rage on into the next session.

For further coverage see the Knoxville News Sentinel and the Missouri News Horizon.

Timothy Huffstutter is a third-year student at William and Mary Law.

Permalink: http://electls.blogs.wm.edu/?p=4346

He was declared the father of barrys child http://www.pro-academic-writers.com and ordered to pay maintenance?

Fashion Frenzy: Passive Electioneering and the Right to Vote

by Latisha Woodford

On Election Day, after you have rushed to the polls, how would you feel to be turned away because of your apparel? The regulation of voter apparel posed a real issue for residents in Pennsylvania. Residents of the state were prohibited from voting because they were wearing T-shirts endorsing candidates for office in the polling place. Subsequently, the electioneering battlegrounds were drawn, and the effects on the right to vote involved passive electioneering. Passive electioneering refers to the method of influencing voters by wearing campaign t-shirts or carrying pamphlets to the voting location.

Section 1220(c) of the Pennsylvania election code prohibits electioneering but the state law does not define the term. Subsequently, defining the scope of the term has been left to the individual interpretation of the County Boards of Elections. Local counties have interpreted the term differently. Many Pennsylvania counties, including Philadelphia and Allegheny, have long allowed voters to vote wearing clothing, stickers, and buttons endorsing candidates and there have been no disruptions or significant problems. These counties follow the recommendations of the Pennsylvania Department of State. In a memorandum  to the County Boards of Election the Commonwealth of Pennsylvania Department of State recommended that voters be allowed to electioneer by passive methods. The Department believes that as long as the voters take no additional steps to attempt to influence voters in the polling place the right of the franchise should not be denied.

The memorandum resulted in pending litigation. The result of the pending case, Kraft v. Harhut, should end the statewide debate. The American Civil Liberties Union of Pennsylvania  (ACLU) seeks to join the Commonwealth in challenging any effort to enforce a statewide dress code for voters. The ACLU does not endorse a narrow interpretation of the term electioneering. The ACLU opined that sustaining a narrow interpretation would implicate the First Amendment free speech rights. The primary concern of the ACLU is not to turn a registered voter away from the polls as well as the possibility of the rule to be applied in a discriminatory fashion. Nevertheless Lawrence County observes a narrow interpretation. The county will not allow passive electioneering and has turned away voters dressed in party endorsing apparel.

The argument for the implementation of a statewide dress code will rest heavily on the lower court’s interpretation of the state law. Lawrence County does not wish to make a distinction for lesser forms of electioneering. Also the pending lawsuit claims that allowing voters to wear partisanaffiliated clothing would affect the health and safety of voters. These arguments certainly may pass muster. The Supreme Court has historically held that restricting free speech at a polling place may be necessary to make sure voters may freely exercise a right to vote for the candidate of their choice. It is also wellestablished that the state has the right to protect voters from any confusion and undue influence within the polling place.

Whether party-endorsing apparel promotes an unsafe environment for voters remains unanswered. How the court will strike a balance remains questionable.

 

Latisha Woodford is a second-year student at William and Mary Law. 

Permalink: http://electls.blogs.wm.edu/?p=4302

Total Recall: Great Movie, Dangerous Political Process

By Joe Figueroa 

Fresh off of a convincing 52-46 electoral victory, a young, dynamic politician has recently come under fire for the passage of a bill that he considers to be a hallmark of his legacy.

And it is not President Obama.

True, the parallels between Wisconsin Governor Scott Walker and the 44th President are noteworthy.  But unlike Mr. Obama, a quirky yet significant electoral procedure stands in the way of Governor Walker even completing his first term in office.

Following Wisconsin law, multiple public committees have been formed to gather the requisite number of voter signatures needed to hold a recall election of Governor Walker.  One of those committees has already submitted a signature petition that is estimated to have twice the amount of the 540,000 signatures needed to hold an election.

The Wisconsin Government Accountability Board has yet to verify the signatures or officially call an election.  But the day is coming.  If there are a sufficient number of valid signatures, a recall election will be held in May (if only one or two candidates file) or June (if more than two file). Continue reading

Two Wisconsin Voter ID Cases Demonstrate the Need for the Right to Vote in the U.S. Constitution

by Guest Contributor Elise Helgesen of FairVote

On March 6th, the Wisconsin Circuit Court in Milwaukee Branch of the NAACP v. Walker, granted a temporary injunction preventing the state from enforcing a voter ID law in the upcoming primary election. Then, on March 13, a second Circuit Court judge struck down the same voter ID law in League of Women Voters v. Walker. The courts proceeded with similar, yet differentiated, analyses of the law in finding that Act 23, Wisconsin’s 2011 voter ID law, was unconstitutional based on the Wisconsin Constitution’s affirmative right to vote – a right unfortunately not found in the U.S. Constitution.

The holdings of these two cases are important in looking to other states’ voter ID laws. For courts to hold that the right to vote is fundamental, the right to vote must be stated unequivocally in each states’ constitution, and it must be explicitly protected from legislation trying to abridge that right. FairVote supports an amendment creating an affirmative right to vote in the U.S. Constitution. If the right to vote were incorporated not only into every state constitution, but also into the U.S. Constitution, governments would have to prove that such forms of voter ID laws are necessary to a compelling state interest. To justify restrictive voter ID laws that unduly burden qualified voters’ constitutional right to take cast their ballots the legislature would need to put forth a more narrowly tailored regulation – one which did not effectively disenfranchise eligible voters.

Both courts were clear that Act 23 was unlawful; however, both were also clear that voter ID laws could be upheld under different circumstances. The court in League of Women Voters v. Walker stated that, “this court does not hold that photo ID requirements under all circumstances and in all forms are unconstitutional per se. Rather, the holding is simply that the disqualification of qualified electors from casting votes in any election where they do not timely produce photo ID’s satisfying Act 23’s requirements violates Article III, Sections 1 and 2 the Wisconsin Constitution.” Likewise, NAACP v. Walker distinguished Act 23 from other voter ID laws because Act 23 was overly restrictive and did not allow for alternative means of proving identification or of casting a provisional ballot. Continue reading

Update: Nordstrom out, ELEC in, Lyon still unelected (for now)

by Kevin Elliker

Charles Dudley Warner wrote, “Politics make strange bedfellows.” When a candidate who violated campaign finance laws is joined in a lawsuit by the agency in charge of enforcing against such violations, politics must be involved.

In November, I wrote about the debacle in the Republican primary election for freeholder in Morris County, New Jersey.  At that time, a Superior Court judge overturned 23-year-old Hank Lyon’s 6-vote victory over incumbent Margaret Nordstrom in the June primary election. Judge Weisenbeck found that Lyon violated New Jersey campaign finance laws when he failed to submit certain donations and expenditures to the New Jersey Election Law Enforcement Commission (ELEC), and voided the primary election in favor of a party convention to choose the nominee. The convention selected Nordstrom, who went on to victory in the November general election before Lyon’s appeal could be heard.

Just prior to the election, the Appellate Division granted ELEC permission to intervene as a respondent to the lawsuit. (Non-lawyers: this means the court allowed ELEC to join the pre-existing lawsuit as a party that can claim an interest in the case which will not undermine the original suit). ELEC argued that Judge Weisenbeck overstepped his jurisdiction and that the agency should resolve election disputes such as this. Continue reading

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