VIDEO: Was Citizens United Wrongly Decided?

A recent town hall meeting in Boston regarding election finance, and specifically, whether or not the Citizens United decision was a wrong one.

Two election experts, Anthony Johnstone and John McGinnis, debate the Supreme Court’s controversial decision at the event, and now that the video is available, we wanted to make sure to spotlight it here.

The even the pair spoke at was held at the John Adams Courthouse in Boston and featured a lively debate on the merits and drawbacks of the Citizens United decision. Jeffrey Rosen of the National Constitution Center moderated.

Need a primer on Citizens United? Here’s the long and short of it:

Citizens United is a U.S. constitutional law case dealing with the regulation of campaign spending by organizations. The United States Supreme Court held that the First Amendment prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.

Want to watch the entire video? It can be accessed here.

PA Magisterial Candidate Criticized for Campaign Obfuscation

A candidate running for district magistrate in Hampton – a suburb of Pittsburgh – is being accused of “campaign obfuscation” by Republican and pro-gun leaders.

The accusation against Michael McMullen, 44, who has cross-filed for the Hampton magisterial seat, stem from endorsements that were rescinded, yet still appeared on campaign literature, according to a story published this week in the Pittsburgh Post-Gazette newspaper.

The Post-Gazette noted that McMullen in 2014 was charged with a misdemeanor count of an election code violation, which was reduced to a summary violation in magisterial court.

That charge stemmed from a May 2013 incident.

Here’s what the PG’s Rich Lord reported:

In a criminal complaint, Allegheny County Police Detective Steven Dish wrote that in May 2013 Mr. McMullen sent out robocalls in such a way that recipients thought they came from Mr. Kress. As a result, according to the complaint, Mr. Kress got calls “from numerous people asking him why he had called them with an automated recording.”

Want to read the entire story? Click here.

Interested to read the entire Pennsylvania Election Code? Click here.

New Pew Report Details Trends in Online Voter Registration

The Pew Charitable Trust this week released a new report that sheds light on trends related to online voter registration in the United States.

Here’s an excerpt:

States across the country are increasingly adopting online voter registration to reduce costs, enhance government efficiency, and build more complete and accurate voter lists.

Results from a recent survey by The Pew Charitable Trusts identify growing trends and emerging issues in online voter registration. This brief examines the opportunities and challenges states face in building their systems including things like relationship building, technology innovations, security and data standardization.

Among the findings?

• Most states spent less than $300,000 implementing online voter registration systems
• Online platforms related to voter registration have remained secure
• Online voter registration opportunities increased over the past six years

The conclusion?

Online voter registration is becoming an ever more efficient, convenient, and popular tool for voters and election officials as states develop increasingly effective and inclusive processes. But states are still confronting some shortcomings and challenges as they upgrade and expand their systems. As more states adopt online registration, Pew will continue to research and document emerging best practices for design and implementation.

Want to read the entire 12-page brief yourself? Here you go.

Federal Lawsuit Filed Over Ohio Voting Restrictions

A federal lawsuit was filed this month against the state of Ohio over what the plaintiff is calling restrictive voter laws.

Here’s a great summary of what’s at issue in the suit, thanks to an MSNBC report that can be read in its entirety here.

The suit challenges cuts to Ohio’s early voting opportunities, the elimination of same-day voter registration (known in Ohio as “Golden Week”), restrictive procedures for obtaining absentee ballots, and new rules that could lead to longer lines at the polls by reducing the number of voting machines that counties are required to have on hand. All those policies have been put in place over the last two years by Ohio’s Republican administration or its Republican-controlled legislature.

Unless these changes are blocked under the Voting Rights Act, the suit warns, “hundreds of thousands of Ohioans will find it substantially more difficult to exercise” their right to vote.

Filed in U.S. District Court Southern District of Ohio’s Eastern Division, the lawsuit is 62 pages long and can be read or downloaded by clicking here.

New Study: Longer Presidential Campaigns Correlated With Contribution Limits

The Center for Competitive Politics, America’s largest non-profit working to promote and defend First Amendment rights to free political speech, assembly, and petition, today released a study showing that since the Federal candidate contribution limits were implemented in 1974, the average duration of Presidential campaigns by the eventual party nominee has increased dramatically – by nearly 200 days.

Lower limits means that potential candidates can no longer wait to declare their candidacies. For example, the late November 1967 entrance of Eugene McCarthy into the Democratic primary – launched with funding from only a few wealthy donors – was instrumental in forcing President Johnson from the race. Such an event would be unheard of in today’s highly regulated environment.

“Campaigns that seem to go on forever are in part a consequence of campaign finance laws passed by incumbents to help protect incumbents. Because of regulations on political speech implemented in the 1970s, campaigns for President today are much longer than the Presidential campaigns of the 50s and 60s,” said CCP President David Keating. “LBJ’s 1964 campaign was less than 100 days long!

“The importance of fundraising – and of demonstrating one’s viability as a candidate through fundraising – combined with low contribution limits pushes candidates to declare earlier than they otherwise would. In a perfect world, candidates would be able to raise the resources they needed to get their message out quickly and decide whether to run later, something I’m sure most Americans frustrated by what seems to be permanent political campaigning would happily embrace.”

Interested in reading the entire thing?

The study is available at this link. Take a gander and let us know what you think.

Fair Elections Advocates Call on NC to Take Action Following Voter Registration Drop

Citing clear evidence that the state of North Carolina is failing its obligation to provide low-income residents with a meaningful opportunity to register to vote at public assistance agencies, today Democracy North Carolina, Action NC, and the A. Philip Randolph Institute (“APRI”) sent a pre-litigation notice letter to Kim Strach, Executive Director of the North Carolina State Board of Elections (“NCSBE”), as well as Dr. Aldona Wos, Secretary of the North Carolina Department of Health and Human Services (“DHHS”).

According to the letter, voter registration applications initiated at public assistance agencies have dropped dramatically since Gov. Pat McCrory took office. The number of applications originating from such agencies fell from an annual average of 38,400 between 2007 and 2012 to an average of only 16,000 in the last two years, a decline of more than 50 percent.

The notice letter—sent on behalf of the voting rights groups by attorneys from Dēmos, Project Vote, the Lawyers’ Committee for Civil Rights Under Law, and the Southern Coalition for Social Justice—gives the state 90 days to come into compliance with the requirements of the National Voter Registration Act of 1993 (“NVRA”) or face litigation.

Approximately 10 years ago, attorneys from Dēmos, Project Vote and the Lawyers’ Committee worked cooperatively with North Carolina to improve the voter registration practices at public assistance agencies. Successful implementation of the NVRA resulted in a dramatic increase in the number of voter registration applications generated by North Carolina public assistance agencies, reaching a peak of over 42,000 applications in 2011.

“A decade ago, we saw similar problems to what we see today and were able to cooperate with North Carolina officials to get results,” said Stuart Naifeh, Counsel at Dēmos. “We made a solid NVRA compliance plan together, and as soon as the state started to follow the law many more North Carolinians began to register to vote at public assistance agencies.  We hope to work together again.  But one way or another the state must do its part to help all eligible Tar Heel residents participate in the democratic process.”

The NVRA, commonly known as the “Motor Voter” law, requires that public assistance agencies, disability service agencies, and motor vehicle offices provide voter registration services. Public assistance agencies must provide these services whenever a client applies for benefits, renews or recertifies benefits, or changes her address with the agency, unless the client declines these services in writing. Affected programs include the Supplemental Nutrition Assistance Program (“SNAP”), Temporary Assistance for Needy Families (“TANF”), the Special Supplemental Nutrition Program for Women, Infants and Children (“WIC”), the Medicaid program, and the Children’s Health Insurance Program (“CHIP”).

“North Carolina thrives when all of our voices are heard,” said Bob Hall, Executive Director of Democracy North Carolina. “Helping every qualified person register to vote should be a top priority for the state.  It also happens to be the law.”

According to today’s letter, agency registration has markedly decreased over the past two years.  In 2014, a year when there were some highly contested elections in the state, only 13,340 voter registration applications were submitted.

“The sharp drop in voter registration applications coming from public assistance clients shows clearly that the state isn’t doing its job,” said Pat McCoy, Executive Director of Action NC.  “That forces civic groups like us to spend scarce resources picking up the slack.”

In addition to the dramatic drop in applications, the letter cites on-the-ground investigations the voting rights groups conducted last fall at 19 public assistance offices in 11 counties that reaffirmed that the North Carolina is failing to meet its obligations under the NVRA.  According to the letter, approximately three-quarters of the nearly 200 individuals interviewed after visiting public assistance offices indicated that they were not provided any opportunity to register to vote.

“The right to vote is fundamental. North Carolina should be doing everything in its power to provide low-income individuals the opportunity to register,” said Catherine M. Flanagan, Senior Counsel for Project Vote. “Public assistance agencies are a vital part of our voter registration system because they connect with Americans who are less likely to register through other means.”

“The NVRA recognizes that low-income individuals move at greater rates and, as a result, need to update their registration more frequently in order to effectively participate in the democratic process,” said Allison Riggs, a senior attorney at Southern Coalition. “Thus, compliance with the NVRA is essential if we are to have a government that truly reflects the will of the people.”

“Politicians, regardless of party, tend to ignore the interests of non-voters, who disproportionately are low-income individuals,” said Melvin Montford, President of the North Carolina APRI. “Our work is focused on improving the quality of life for economically disadvantaged individuals, and ensuring that their voices are heard by the decision makers in our state and our nation. Effective enforcement of the NVRA helps realize these goals.”

In the past several years, lawsuits filed by voting rights groups have forced other states neglecting the NVRA into compliance, with dramatic results. For example, Missouri public assistance agencies received more than 500,000 applications in the four years following a 2008 court order to improve state compliance. Prior to court involvement, the state averaged fewer than 8,000 applications per year. Since 2007, NVRA enforcement efforts have resulted in approximately 2.5 million additional voter registration applications generated at public assistance offices nationwide.

“North Carolina has worked—independent of court involvement—to address NVRA violations occurring at public assistance agencies in the past,” said Dorian Spence, Associate Counsel at the Lawyers’ Committee for Civil Rights Under Law. “We hope that this trend continues, and look forward to working with the state to ensure all eligible North Carolina residents are provided the voter registration opportunities they have a right to under the law.”

Bill That Aims to Decrease Influence of Money in Presidential Elections Introduced

Congressman David Price (D-N.C.),Congressman Chris Van Hollen (D-Md.), and Senator Tom Udall (D-N.M.) announced that they have introduced legislation to reduce the influence of money in presidential elections by empowering candidates who decline support from wealthy special interests. With mega-donors exerting increasing influence on elections and increasing public disgust for out-of-control special interest electioneering, the Empowering Mass Participation to Offset the Wealthy’s Electoral Role (EMPOWER) Act would modernize the presidential public financing system to help publicly funded candidates compete. By increasing the government’s match for small donations to 6:1, increasing the ability of political parties to financially support candidates and taking other important steps, the bill would help restore the public’s trust that they — not a few wealthy donors — can affect the outcome of our presidential elections.

The presidential public financing system is one of the country’s most significant post-Watergate campaign finance reforms. It offers public matching funds to candidates who demonstrate their viability by raising small contributions. In exchange, participating candidates must abide by voluntary limits on private fundraising. Public financing has helped level the playing field for lesser-know presidential candidates, funding almost every presidential campaign for more than two decades. One of the original champions in Congress of public financing legislation was former U.S. Rep. Mo Udall (D-Ariz.), who ran for president in 1976. Several candidates have benefited, including President Ronald Reagan. But the program has not been updated since 1974, and it has become increasingly inadequate for modern, post-Citizens United presidential campaigns.

“Presidential public financing was a landmark post-Watergate reform, but the system needs modernizing for the Super PAC era, when a few wealthy donors outspend millions of ordinary citizens,” Price said. “Empowering small-dollar donations with a matching system would be an important first step in taking our elections back from billionaires and corporations.”

“With secret special interest spending reaching epic proportions in our electoral process, it is more important than ever to have a system that gives individual voters a voice,”Van Hollen said. “We will keep fighting to make our democracy more accountable to the American people, not well-heeled special interests.”

“With the 2016 campaign already getting started, we urgently need a comprehensive plan to roll back big money in politics, which is why I’m leading the push to amend the Constitution to overturnCitizens United. But meanwhile, Congress must act to fix the presidential campaign financing system so it works for today’s candidates and grassroots donors,” Udall said. “Our democracy should be built on the power of ordinary citizens, not a few billionaires with huge checkbooks. But when it comes to presidential elections, one look at recent headlines shows that’s no longer the case. By empowering voters to impact elections, we can restore faith in our democracy and encourage even more people to participate. My uncle Mo Udall was a champion for public campaign financing in the wake of the Watergate scandal, and I’m proud to follow in his footsteps by pushing for this reform.”

The EMPOWER Act would modernize the public financing system by increasing public matching funds available to candidates and enhancing the role of donors who contribute $250 or less by increasing the match to 6:1 (from 1:1). The bill would also eliminate spending limits on participating candidates, require publicly funded candidates to agree to accept contributions of no more than $1,000, empower national parties to compete alongside Super PACs by allowing them to make unlimited expenditures for publicly funded candidates, ensure candidates have broad support to qualify for public financing by requiring them to first raise a minimum amount to qualify for the program, and increase funding for the program through the voluntary income tax “check-off.”

Several leading campaign finance reform organizations support the legislation, including Brennan Center for Justice, Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Issue One, League of Women Voters, People For the American Way, and Public Citizen. The New York Times editorial board has endorsed several ideas to reform the presidential public financing system, many of which are incorporated into the bill.

The bill:

– Eliminates spending limits on participating candidates: Candidate spending limits are no longer viable in the wake of Citizens United since outside groups can now make unlimited expenditures funded by unlimited contributions to oppose candidates. There would be a limit on the total amount of matching contributions available to a presidential candidate, to avoid draining public funds.

– Increases the amount of matching funds for participating candidates: The first $250 of contributions by individuals to presidential candidates would be matched with public funds at a 6:1 ratio, increased from the current  1:1 match. For example, a candidate participating in the system would receive $1,500 in public funds for a $250 contribution, and would end up with a total of $1,750. This would provide important new incentives for citizens to give and for candidates to seek small donations from supporters.

– Requires participating candidates to agree to accept contributions of no more than $1,000: The current individual contribution limit of $2,700 per donor, per election, would be reduced to $1,000 per donor, per election, for candidates who participate in the system. The present contribution limit would remain unchanged for candidates who do not participate in the system.

– Empowers national parties to compete alongside Super PAC dollars:In order to allow candidates to respond to a deluge of Super PAC dollars, national parties could make unlimited expenditures in coordination with candidates participating in the system, provided the unlimited expenditures were made from a pool of contributions raised by the party that was limited to $1,000 per donor, per year.

– Ensures candidates have broad support to qualify for public financing:To qualify for public financing, a presidential candidate would have to raise a threshold amount of individual contributions — totaling $25,000 in each of 20 states — counting only the first $250 of any individual contribution toward the threshold.

– Increases funding for the presidential campaign financing system: The bill would increase the current voluntary income tax “check-off” amount from $3 to $20 per individual and from $6 to $40 for a married couple, and index these amounts for inflation. Additionally, the bill would allow Americans, through their taxes, to donate to the public financing system fund.

Williams-Yulee Ruling Shows “Corrosive Effect” of Money in Judicial Campaigns

As we reported earlier this week, the U.S. Supreme Court recently handed down a ruling in Williams-Yulee v. The Florida Bar.

The case concerns the balance between the right to free speech and the compelling state interest in preserving public confidence in the courts.

The ruling determined candidates for judicial office do not possess a constitutional right to directly solicit campaign contributions from potential donors.

American Constitution Society‘s President Caroline Fredrickson issued the following statement:

“This ruling recognizes the corrosive effect money has had in judicial elections and helps to restore the image of state courts as fair and impartial. The Court’s decision will help stem the trend of politicization that has been occurring in the state courts.”

In her concurring opinion, Justice Ruth Bader Ginsburg cited the ACS report Skewed Justice. The report found the explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals For more information about the negative impact of judicial elections and unrestrained campaign spending, read the ACS reports Skewed Justice and Justice at Risk.

Ginsburg also cited, a Brief for Professors of Law, Economics, and Political Science. The group of scholars who signed this brief included Professors Joanna Shepherd and Michael Kang, the authors of Skewed Justice and an earlier ACS report, Justice at Risk, which the brief drew heavily.

Brennan Center: Williams-Yulee SCOTUS Decision is Major Victory for Fair Courts

In a 5-4 ruling last week, the U.S. Supreme Court, in Williams-Yulee v. The Florida Bar, upheld a Florida rule prohibiting judges and judicial candidates from personally soliciting campaign contributions.

“Today, the Supreme Court recognized the paramount importance of protecting the integrity of our courts,” said Matthew Menendez, counsel at the Brennan Center for Justice at NYU School of Law. “At a time of rising spending in judicial elections, rules that preserve the public’s confidence in the judiciary are more important than ever. As the Court found, campaign contributions can create an appearance and risk of favoritism. This decision allows states to protect the fairness of our courts.”

Case Background

In Williams-Yulee v. The Florida Bar, the U.S. Supreme Court considered a First Amendment challenge to a Florida rule that prohibits judicial candidates from personally soliciting campaign contributions. The Brennan Center and others argued in an amicus brief that states have a duty to protect the integrity of their courts and that when judges personally solicit campaign funds, it creates the perception that they may favor a particular contributor in a future case or disfavor lawyers and litigants who choose not to contribute or are not solicited. Florida’s rule, which allows candidates to fundraise via a separate committee, the brief argued, is a reasonable and targeted response to the threat to judicial impartiality.

In the last 12 years, the Supreme Court has twice considered cases about judicial campaign activity. In 2002, the Court decided, 5-4, in Republican Party of Minnesota v. White, to strike down Minnesota’s “announce clause,” a canon of judicial conduct prohibiting judicial candidates from discussing disputed and controversial legal and political issues. In another significant case, Caperton v. Massey, the Supreme Court recognized that spending in judicial campaigns could create an appearance of bias, requiring a judge to recuse himself.

See the Brennan Center’s amicus brief here. See other briefs here.

Read The New Politics of Judicial Elections — by the Brennan Center, Justice at Stake, and the National Institute for Money in State Politics — which were cited by the Supreme Court in the Williams-Yulee opinion.

New Essay Explores Whether Racial Gerrymandering Has Returned

Election law expert Richard R. Hasen – publisher of The Election Law Blog – has posted a draft of his new essay titled, “Racial Gerrymandering’s Questionable Revival.”

The draft, posted May 1, is 21 pages long and is available for download here.

Hasen essay will soon be published in the Alabama Law Review‘s symposium on the 50th anniversary of the Voting Rights Act.

Here is the abstract, for those who’d like to check it out:

Like history, the racial gerrymandering cause of action has repeated itself, the first time as tragedy, the second time as farce.

In the 1990s, conservative members of the Supreme Court recognized a new cause of action, grounded in the Fourteenth Amendment’s Equal Protection Clause, of an “unconstitutional racial gerrymander.” The claim was not one, long recognized, for the intentional dilution of black votes through the manipulative drawing of district lines. Instead, it was a shaky, ephemeral claim based solely on appearances. Racial gerrymandering is an “expressive harm,” aimed at preventing jurisdictions from sending an impermissible “message” by separating voters on the basis of race without adequate justification. In practice, the cause of action helped limit attempts by the U.S. Department of Justice to force jurisdictions then covered by Section 5 of the Voting Rights Act to create more majority-minority voting districts which tended to vote Democratic. Sometimes doing so helped Democrats; at other times the concentration of reliable Democratic voters helped Republicans. Within a decade, however, racial gerrymandering claims seemed to wither away, as the Court used other methods to stop the Department from reading the Act too broadly.

In 2015, the Supreme Court revived racial gerrymandering claims. In Alabama Legislative Black Caucus v. Alabama, the four liberals on the Court and Justice Kennedy agreed with Democrats and minority voters that the state of Alabama engaged in an unconstitutional racial gerrymander when it passed a legislative districting plan which over-concentrated black voters in majority-minority districts in ostensible compliance with the Voting Rights Act. There was great irony in the use of the racial gerrymandering cause of action by minority voters who had rejected it in the 1990s, in its acceptance by liberal justices, and in the defense of race-based redistricting by Alabama Republicans and some conservative Supreme Court justices. While racial gerrymandering has for now become a useful tool for Democrats and minority plaintiffs to fight certain Republican gerrymanders, it is no more coherent or justified now than it was the first time the Court recognized it in the 1990s.

This Essay, written for an Alabama Law Review symposium on the 50th anniversary of the Voting Rights Act, proceeds in three parts. Part I briefly describes the emergence of the racial gerrymandering cause of action in the 1990s and the critiques made of it. Part II briefly describes the circumstances leading up to the 2015 Alabama case and Court’s questionable revival of the racial gerrymandering claim. Part III argues that the racial gerrymandering claim is no more defensible when used by Democrats or minority voters than by conservatives or Republicans. No doubt the Alabama legislature used compliance with the Voting Rights Act as a pretext to pack more reliable Democratic voters into a smaller number of districts to help Republicans in the state overall. But that behavior should be policed as either a form of impermissible racial vote dilution or as inappropriate partisan behavior. In the end, the Supreme Court has relied upon the incoherent racial gerrymandering claim because lacks the right tools to police certain political conduct which might be impermissibly racist, partisan, or both. Liberal and conservative scholars have long recognized that the Voting Rights Act’s enforcement and interpretation can have partisan implications and motivations. The same is now true for racial gerrymandering claims, especially given the great overlap of race and party categories in the South.