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Saturday, April 25, 2015

The Constitutional Right to a Secret Ballot


Thanks to Richard Winger of Ballot Access News for this post.

On Friday, April 24, the U.S. Supreme Court considered whether or not to hear Citizen Center v Colorado Secretary of State, 14-998, over whether the U.S. Constitution protects secrecy in voting.  Citizen Center had sued the Secretary of State, and six county election officials, in 2012 because the ballot-counting equipment theoretically could have let election officials see how particular voters voted.

The U.S. District Court said there is no protection for secrecy in the U.S. Constitution.  On appeal, the Tenth Circuit said the election officials had mostly fixed the problem so most of the claims in the lawsuit are moot.  It is not likely that the U.S. Supreme Court will hear this case, because the election officials declined to file a response to the cert petition, and the U.S. Supreme Court did not then ask them to respond.

Here is how states handle this issue:

Louisville, Kentucky - In 1888 adopted a secret ballot to reduce fraud and intimidation.  The city was one of the first jurisdictions in the United States to adopt the secret ballot.  The Louisville law also prohibited anyone but voters or candidates from coming within 50 feet of the voting booth and forbade candidates or their agents who came inside the 50-foot zone from persuading, influencing, or intimating a voter as to the voter's selection.

Kentucky - In 1891, Article 147 of the Kentucky Constitution states, "All elections by the people shall be by secret official ballot."  Kentucky was one of the first states to adopt the secret ballot, also known as the "Australian ballot" after where it was first used.

32 states did the same by 1892, over the objections of machine politicians.  By the turn of the century, most of the country had changed the public spectacle of Election Day into a solemn occasion for curtained isolation.

The growth of mail voting is the most obvious conflict between the principle of a secret ballot and the actual conduct of elections in the United States.  Clearly, the voter may use a marked mail ballot as evidence of how they have voted.

This change has been widely debated among policy experts and in legislatures.  Mail ballots are a cause for debate because they undermine some of the safeguards of the in-person voting process.  Whenever a voting authority accepts a mail ballot, it forgoes the guarantees inherent in the process of in-person voting, including confirming the identity of the voter and assuring that the voter is afforded the anonymity of the voting booth.

The recipient of the blank mail ballot may give it to another person to complete or may fill it out under conditions that subject the voter to pressure.  Therefore, early or absentee voting by mail involves some undesirable trade-offs.  However, the desire of legislators, and the public, to make voting easier has outweighed their concerns about voter intimidation or the sale of votes. This is another reflection of the continuing evolution, in law and popular understanding, of the standards of voter rights and the secret ballot.  None of the states providing for mail ballots has abandoned the secret ballot.

The popular idea of the secret ballot, and the concept appropriate to contemporary conditions in America with a strong established democratic tradition, involves the "sanctity of the voting booth."  No one may observe you while you are voting.  After you have cast your ballot, hopefully no one can identify that it is yours.  That is the essence of the secret ballot.

You, the voter, alone decide whether to discuss how you voted, and what to say about it, if anything.











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How Judges Evaluated Reforms at Democracy Slam 2015



The afternoon session was moderated by NBC’s Chuck Todd

On April 22, 2015, FairVote teamed up with American University’s Washington College of Law (WCL) and the American Constitution Society for an action packed, one-day conference called “National Democracy Slam 2015.” Throughout the day, reformers, journalists, elected officials, and scholars explored 17 bold ideas for breaking partisan gridlock, ending gerrymandering, and improving America's elections and politics.

Reforms were presented, rebutted, and debated with live polling of the audience, including those watching online, I took part in the online voting, following each exchange.

The day culminated in a final “Democracy Slam” moderated by NBC’s Chuck Todd, in which an impressive panel of judges rated six reforms and their impact on congressional elections based on a set of five criteria.  Each reform was given a score of 1 (low) to 5 (high) for its impact on each of the following criteria:

a) Voter turnout and political participation

b) Fair representation of parties and political groups

c) Fair representation of racial minorities and women

d) Electoral competitiveness

e) Alleviating polarization in Congress

CLICK HERE to view the results of the voting.











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Friday, April 24, 2015

Nevada GOP in Favor of 2016 Primary


Thanks to David M. Drucker of the Washington Examiner for this post.

Republican leaders in Nevada are moving to junk their presidential caucuses and re-implement a standard primary election for 2016.

There are two bills pending in the Republican-controlled legislature, including one in the Assembly carried by Speaker John Hambrick.

If passed and signed by GOP Gov. Brian Sandoval, Nevada Republicans voting in the 2016 primary would pull the lever at the polls as they do in a general election, rather than caucusing in groups similar to how the primary is conducted in Iowa.

Republican insiders supportive of the legislation are expressing confidence that it will be enacted.

Nevada hosts the fourth nominating contest of the 2016 GOP primary and the first out west, making any change to how the contest is conducted potentially significant.

CLICK HERE to read his post.











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NY BOE Enforcement Office


In 2014, Gov. Cuomo added a new enforcement office in the Board of Elections (BOE), but some say it has not delivered.  Little has been heard from the BOE's enforcement unit headed by Cuomo appointee Risa Sugarman.  Cuomo and the Legislature installed Sugarman as the head of an office charged with finding violations of campaign finance law and bringing cases against violators.

Good government groups and election board members alike say that so far Sugarman's appointment has only caused a regression in the board's enforcement actions.

"The independent enforcement counsell is taking a very different approach to enforcement and has given much less focus to the routine enforcement work that was done before the independent office was created," Democratic Board Chair Douglas Kellerman said.

Kellerman says that Sugarman has failed to collect fines from those who were found delinquent before she took office in 2014 and has not issued notices to campaign committees that had not filed since the July filing deadline last year.  As of January 2015, Sugarman had also not begun assembling a report on the biggest violators of campaign contribution limits the board has traditionally issued.  Sugarman confirmed publically in board meetings with Kellerman that she had not sent the notices.

At a board meeting in January Sugarman argued she had found a number of bad addresses for previous filings.  She also said she was waiting for hearing officers to be hired.  Hearing officers were the Legislature's contribution to the enforcement unit and are seen by good government groups as an uncesscary hoop to jump through because cases against violators must also be presented in State Supreme Court.  Other commissioners pushed Sugarman to act because such a large backlog had been created.

"I guess my overall concern is that there were certainly lots of problems with the old enforcement unit," Kellerman said to Sugarman at the January meeting, "but there were lots of things that were getting done with the old enforcement unit that I'm concerned have now gone by the wayside with the transition and I hate to see us have a step backwards as opposed to forward on this.  The over-contribution report was one of those things."

BOE staffers and chairs have expressed frustration that Sugarman doesn't update them on her activities.  She has stressed her independence and ability to work on investigations with complete secrecy but some BOE members think the office is directionless and is looking to land big cases at the cost of basic enforcement.

Advocates share a lot of those concerns.  "It seems they are missing basic procedure, missing basic compliance that the board used to do such as filing reports and audits," said Fauss of Citizens Union.  "It is unfortunate that the board is not in a better position.  It is a shame that we don't even see enforcement of basic compliance."

Assembly Member Kavanagh said that he believes Sugarman's office has already accomplished a great deal: "We never had someone looking at filings beyond whether they were on time or not.  Without that it is hard to see how real enforcement happens.  Now we actually have someone scrutinizing them and I think that will have a great impact."

Asked whether Cuomo plans to continue to push for campaign finance reform during the rest of session Lever said: "Yes, the Governor has been and remains committed to campaign finance reform."

But today, the only one doing campaign finance enforcement in New York is United States District Attorney, Preet Bharara.

Bharara explained that he sees significant problems with New York law that are contributing to all of the state's political ethics issues.  He outlined the need for more regulation of lawmakers' ability to earn outside income in addition to their government salaries and the need for stricter disclosure rules and rules enforcement.

"After thinking about this for a long time, especially in recent months," he said, there is a "really serious problem" with "the influence of outside money and the way in which people can be associated with outside firms in a way that makes it very difficult to figure out what they're getting for that pay when they're otherwise legislators and supposed to be answering only to the people of their district and their state."

He went on to say there "should be a no-tolerance policy" regarding violations of disclosure requirements related to outside income and conflicts of interest.

"It is a very difficult thing for prosecutors like us and in other parts of the state to figure out what's illicit money and what's not illicit money," Bharara said.  "And on top of that, when you have a disclosure problem where people are not disclosing in a way that they should, I think that's a real problem that should worry everyone."











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NY LLC Campaign Finance Loophole Update



The New York LLC Loophole allows the use of LLC's to bypass campaign donation limits.  For example, a landlord with many buildings designates each building as a LLC.  The landlord can now donates for each building and multiply his donations.

The New York Board of Elections Commissioners failed to pass any type of fix on a 2 Democrats for and 2 Republicans against.  The Republicans indicated any fix was a State Legislature fix.

The State Senate Elections Committee is expected to vote Monday, April 27 2015, whether to advance a bill that would close the controversial loophole in state election law that allows wealthy donors to pour unlimited cash into campaign coffers through the use of multiple limited liability corporations, or LLCs.

Sen. Daniel Squadron, a New York City Democrat and the bill's sponsor, has maneuvered the bill to a committee vote despite major opposition from the Republican majority conference.  Monday's vote will come after reform groups and some legislators failed in an attempt to get the State Board of Elections to reverse its 1996 interpretation of state law that created the loophole.

"As the focus continues on this critical ethics reform, it will be disappointing if Monday's Elections Committee vote breaks down along the same partisan lines that the recent budget and Board of Elections votes did," said Squadron.  "In light of the BOE's professed arguments, I'm hopeful that the Elections Committee will take a serious look at this issue to prevent unlimited sums of anonymous dollars from perverting our state government and the entire political process."

Assembly Member Brian Kavanagh, also a New York City Democrat, sponsors the same bill in the Assembly.  Kavanagh believes his conference is also ready to move on the bill and that he thinks Senate Republicans should be too.  "The Republican BOE chair said that he thought the Legislature was the appropriate place to address this.  And I know he isn't the only one who believes that."

The LLC loophole has become a major flashpoint in the battle for campaign finance reform because other efforts at reform failed in this year's budget negotiations and a pilot public financing program for last year's comptroller race never got off the ground.

Advocates acknowledge that while having a committee vote on the issue is a victory in itself it isn't exactly likely that the bill passes the Senate given that Republicans currently enjoy a narrow majority that could fall apart at any time due to indictment, illness, or retirement.  Their candidates are often bolstered by large donations from single individuals or industries that use the LLC loophole to their advantage.

Advocates admit that the vote may be the last gasp for campaign finance efforts this year.  "I think the real chance for reform this year is on the LLC loophole because there is more clear agreement on that," said Rachael Fauss of good government group Citizens Union.  "I think we will have to wait for another major push until the budget next year."

Kavanagh said he expects the LLC loophole to remain a major focus for the rest of the year with perhaps some room between the Senate Republicans and Assembly Democrats to negotiate further contribution disclosure rules, including, perhaps, requiring donors to list their employers.  Conversation and movement during this year's budget negotiations mostly revolved around legislators' outside income.

Republican Senators do tend to benefit more from the largesse of the real estate industry and corporations that use the LLC loophole to subvert the state's donation limits.  Republicans counter that Democrats benefit from massive union donations.

Advocates don't put responsibility entirely on Senate Republicans.  They look at the governor, saying Cuomo has failed to capitalize on major public outcry over scandal and not used his bully pulpit to push reform.  They point to budget negotiations last year when most thought Cuomo was in a position thanks to Moreland Commission and continuing pressure from the US Attorney to truly campaign for public financing of elections.

Instead Cuomo abruptly shuttered Moreland for what advocates call "meager" ethics tweaks and minimal campaign finance measures.  The two measures, a pilot program for public financing exclusively in the 2014 comptroller's race and a new enforcement office in the BOE, have not delivered.











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Texas Photo Voter ID Law Update


A federal appeals court will hear oral arguments on April 28, 2015, in a case that could have national implications for states that require voters to present government-issued forms of photo identification at the polls.

The issue at hand, Texas' contentious photo ID law, is expected to ultimately make its way to the Supreme Court.  But first a three-judge panel of the 5th Circuit Court of Appeals will hear the case.  There, voting rights advocates will argue that a federal judge's ruling from October, which called the law an unconstitutional "poll tax," intentionally discriminatory and an unconstitutional burden on the right to vote, should be upheld.  Critics of the law argued that hundreds of thousands of Texans lacked the correct form of identification, but the state's leadership has insisted that the law is meant to protect against voter fraud and is not an effort to make it more difficult for any demographic to vote.

In light of the imminent election in November 2014, the 5th Circuit stayed the federal judge's ruling.  The Supreme Court then declined an emergency request to prevent the law from going into effect.  This decision not to intervene, according to SCOTUSblog, "was the first time since 1982 that the Supreme Court has allowed a law restricting voting access to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities."

During November 2014 elections, a number of Texans weren't prepared for the new requirements.  As the Brennan Center for Justice has documented, voters whose driver's licenses had expired, or those who did not bring their licenses with them, were unable to vote and were forced to cast provisional ballots.  In many cases, those ballots were not counted because the voters couldn't follow up within six days of the election with the correct form of identification.

Voting rights experts have argued that Texas has a tough standard to overcome in arguing that the federal judge's decision made errors and was clearly wrong.

One of my issues with photo ID laws, it does not stop absentee ballot requests from people who should not get a ballot.  If their is any new laws, this is the issue that needs to be fixed.











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Wisconsin Rejects Automatic Voter Registration


Wisconsin legislature rejected a move by Democrats to automatically register to vote anyone who holds driver's licenses or other identification that can be used for voting.

On a positive note, approved a plan by Gov. Walker to allow those 65 and older to get state identification cards, but not driver's licenses, that do not expire.











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