The Thicket at State Legislatures

Seeing the States through Photographers' and Writers' Eyes

by Pam Greenberg

Beach visitors watch the sunset in Dauphin Island, Alabama, on August 22, 2012. (AP Photo/Dave Martin). The Atlantic.com

The Atlantic magazine’s new photography blog, In Focus, last week featured “America: 50 States in 50 Photos.” The photos from mid 2012 "… are simply interesting, noteworthy, beautiful, or otherwise caught my eye.” says the collection’s editor, Alan Taylor.

The photos may not represent the whole of any state, as Taylor says, but luckily for us, some photographers and writers in recent years have attempted to collect a bit of the character of our states. The 50 States Project, which ran January through September in 2009, featured images from 50 photographers from across the U.S. The photographers were asked to produce images that represented their own style and the states’ “people, habitat, landscape, industry, and entertainment.”

Another 50-state collection, the book “State by State: A Panoramic Portrait of America,” features essays of 50 writers from 50 states. Editors Matt Weiland and Sean Wilsey explain the idea behind the book:

This book started with a hunch and a conviction. The conviction was the easy part: that despite drive-time radio and the nightly news and the Sunday paper, despite all the books and blog posts, the documentaries and songs, America and the lives lived here remain strangely and surprisingly underdescribed.”

 They go on to explain that the fifty states “…bound together today as tightly as any confederation on earth—somehow stubbornly resist blending into a single undifferentiated whole.”

Each state’s essay seems to affirm that theme, including the the Texas piece, with reflections about the state’s politics, capitol building, and reputation as “a state more independent than the rest.” The South Carolina essay begins with the famous quote of state legislator James Louis Petigru, who opposed secession in 1860, saying: “South Carolina is too small for a sovereign nation and too large for an insane asylum.”

Time for an armchair road trip?

Readers Debate the Merits of Post-election Audits

by Wendy Underhill

The September issue of NCSL's elections newsletter, The Canvass, addressed what I thought was a sleepy topic: post-election audits. (As a way to double-check that the procedures, voting equipment and vote-counting software yielded the correct result, election officials run a post-election audit by hand-counting the ballots from a random set of precincts or machines.)

So I was surprised that this issue received more responses than politically-charged and publicly debated issues, such as those on Voter ID or Voter Registration.

A professor of state and local government affairs, wrote, "I had never heard of "post-election audits" or the idea that such things might be mandated by state law.  I would guess a lot of legislators have never heard of such things either. "

Kim Alexander, president and founder of The California Voter Foundation, wrote, "I really appreciated the list of reports and studies featured in the newsletter relating to PEA's." And she added a report that I had missed: Post-Election Audit Standards Working Group Report, from California's Secretary of State.

And then there was one full-on critique. I quote here from Frank Sampsell, a former election official in Berrien County, Michigan:

I don't necessarily condemn post-election audits, at least not in principle.  I see the validity of audits as spot checks for performance or procedural issues.  However, I know there has been a call placed by our colleagues in the election community to begin drumming up data on all things elections.  I would ask legislators to demand this data before enacting laws which may eventually produce virtually no return. 

In the case of post-election audits, I think this data would be relatively easy to develop, especially as some states already have these audits on the books.  How long does the audit of a single precinct take?  How much does that practice cost?  What percentage of these audits yield a significant issue?  What types of issues are found?  How often do these issues endanger the legitimacy of the election outcome? 

At some point, the field of elections administration really does need to consider the least popular of all questions:  Which is a greater danger to our republic?  Fractions of 1 percent of our population being disenfranchised due to error, or hundreds of millions of dollars being spent across the country to clean up those errors?  Patriotically and ideologically speaking, there is something un-American about accepted the first option, but economically and administratively, there is legitimate credibility to the second point--if we already get it right 99.5% of the time, how much is that last .5% worth?  Moreover, if that last drop in the bucket is caused by human error (as would likely be caught by an audit), will it ever be eradicated by the addition of any new procedure?  

Besides, if there is any one lesson the past decade has taught us, it is that virtually any significant election that finishes within 1 percent in the tally is eventually going to be decided by the Judicial branch.  

His final comment is an excellent segue. The October issue of The Canvass will address election law and the courts. If you have thoughts on either post-election audits or election law challenges—or if you would like to receive a copy of Frank's full comments, please let us know.

Does Colorado Have a Republican Form of Government?

by Karen Shanton

Tucked into Article IV, §4 of the U.S. Constitution is the following promise: "The United States shall guarantee to every State in the Union a Republican Form of Government." This obscure and tricky-to-interpret promise – known as the Guarantee Clause – could upend a two-decade-old constitutional amendment in Colorado.

In 1992, Colorado voters added the Taxpayer's Bill of Rights (TABOR) to their state constitution via the initiative process. This amendment, which was sought by small government advocates as a check on government expansion, effectively shifted tax-levying powers from the state legislature to the electorate. Under TABOR, tax increases are limited to the rate of inflation plus population growth; heftier bumps must be okayed by voters.

TABOR's opponents argue that this shift has hamstrung Colorado's government. Without the ability to raise revenue, they argue, legislators can't fulfill their obligations to constituents – including a state constitutionally-mandated duty to provide a "thorough and uniform system of free public schools throughout the state."

This has prompted a bipartisan group of elected officials, educators and private citizens to bring suit against the measure. In their brief for Kerr v. Hickenlooper (2011), the plaintiffs contend that TABOR caused a "slow, inexorable slide into fiscal dysfunction" in the state. By preventing the legislature from functioning effectively, they argue, TABOR violates the Guarantee Clause and a closely-related clause in the Colorado Enabling Act of 1875. (The Colorado Enabling Act admitted Colorado to the Union on the condition that it form a constitution that was "republican in form.")

Photo credit: The Colorado Statesman, 5/27/2011

Historically, Guarantee Clause-based challenges have not fared well in the courts. In Luther v. Borden (1849), the U.S. Supreme Court dismissed a Guarantee Clause-based claim as a 'political question,' to be settled by Congress rather than the courts. With a few early exceptions [see, for example, Minor v. Happersett (1875)], this 'political question doctrine' has been the standard ever since. Justices routinely invoke the doctrine to rule Guarantee Clause cases 'nonjudiciable,' or not decidable by the courts.

Book Review: The Evolution of American Legislatures

by Karl Kurtz

...[T]he original state legislatures were the models for the Congress created by the Constitution. It is true that several of the most influenctial voices in the writing of the Constitution disparaged the existing state legislatures. Yet, in every elemental characteristic--number and name of houses and the relationship between them, the legislatures's ability to name its own leaders and adopt its own rules, and the power of the executive veto--the Congress under the Constitution closely resembled the original state legislatures. It bore no relationship at all to the Congress that existed under the Articles of Confederation, which was a unicameral chamber that fused legislative, executive and judicial powers, and granted each state, not each legislator, a vote....

This is a provocative paragraph from the introduction to University of Missouri Prof. Peverill Squire's new book, The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Squire goes on from this teaser to summarize two evolutionary lines of legislatures in the United States--one that was highly successful and adaptive and the other that was not--in this schematic drawing.

Evolutionary Line 1 encapsulates Squire's compelling case that the 13 colonial legislatures, themselves highly original institutions, shaped and influenced the Constitutional Congress and that these two models together evolved into the territorial legislatures and their successors, the state legislatures. Each of the boxes in this chart receives detailed analysis in Squire's book.

Historians, political scientists and serious legislative junkies will love this book. Drawing on mountains of obscure primary and secondary sources and a comprehensive review of secondary sources (the bibliography is 70 pages in length), it covers not only our modern 51 American legislatures but an approximately equal number of colonial, confederal, territorial, and even the most arcane provisional legislatures. There is no other comparable scholarly work that looks at institutional change in American legislatures on such a grand scale. It is impressive in both its broad brush strokes and its convincing detail.

This is primarily a scholarly work, but Chapter 7, "The Professionalizing of Legislatures Since 1900," should be required reading for anyone who wishes to understand the institutional characteristics of our state legislatures today.

For a More Compassionate Community, Look in the Mirror

by Karl Kurtz

In the wake of the tragic shooting in Aurora (not far from NCSL's Denver office), my colleague, Ed Smith, editor of ncsl.org, has written an eloquent, thoughtful, engaging guest commentary for the Denver Post, "Colorado needs an act of kindness."

If we want a more compassionate community, a place where those approaching the ragged edge of madness might be noticed and helped before it's too late, don't look at the statehouse or White House. Look in the mirror.

We have lost our sense of community, of oneness. Our deep partisanship over public policy issues — taxation, environmental regulation, and yes, gun control — is spilling over into a nation split into camps. Not only are the people we disagree with wrong about policy issues, they're wrong about life. They are the other.

The commentary concludes:

We can push back with a determined effort to be more compassionate, more considerate, more civil people. While we all quite naturally first think of the welfare of our own family, we can will ourselves to think of our larger community as family and treat them accordingly. Open a door for someone with an armload of groceries. Stop on the bike path and help change a tire. Stop judging someone solely on how they look or how they're dressed.

I've been called a lot of things during a professional life in a newsroom and working in support of state government. Naïve is not one of them. But look at it this way: Even if an act of kindness doesn't change the world, you'll feel better about yourself.

Try it, Colorado. We've lost so much already. It can't hurt.

Ed also appeared on NPR's Talk of the Nation today to elaborate on his commentary and take listeners' questions.

Library of Congress Selects NCSL Website for Digital Archives

by Jon Kuhl

NCSL recently received some exciting news from the United States Library of Congress. Our website has been selected for inclusion in the Library’s historic collection of Internet materials related to public policy topics.

In their correspondence with us, the Library wrote, “We consider your website to be an important part of this collection and the historical record.” The Library explained the purpose of the digital archive, saying “Our web archives are important because they contribute to the historical record, capturing information that could otherwise be lost. With the growing role of the web as an influential medium, records of historic events could be considered incomplete without materials that were ‘born digital’ and never printed on paper.”

The Library’s web archives project was started in 2000 and is managed by a multidisciplinary team of Library staff who evaluate, select, collect, catalog, provide access to, and preserve the materials. The Library’s web archives are broken down by topic, with such themes as U.S. elections, the Iraq War, and the terrorist attacks on 9/11.

NCSL is a founding member of the Library of Congress’ National Digital Strategic Alliance project. This project works "to establish, maintain, and advance the capacity to preserve the nation's digital resources for the benefit of present and future generations.”

The archiving process of the NCSL site will take at least one year. We can’t wait to see the finished product!

Photo: Google Images

Announcing a New Online Resource for Recruiting Young People into Legislative Service

by Mike Sunseri

Baby boomers comprise about one-third of the national workforce, but nearly half of all legislative staff responding to a recent NCSL survey were 50 years of age or over. Replacing the institutional knowledge of those seasoned staffers as they retire will pose a major challenge to legislative staff directors and human resource departments. Attracting young people to work as legislative staff will be increasingly important in the coming years.

To address this problem, Nancy Cyr, director of the Nebraska Legislative Research Office, launched an effort during her tenure as NCSL Staff Chair to develop a website with a series of videos that describe the dynamic, rewarding world of legislative service.

After three years of work and the collaboration of hundreds of legislative staff around the country, the Legislative Careers website has now been launched. The site is designed to encourage college students, recent graduates and those looking for a career change to consider legislative service as a career. Colleges and universities will also find it useful in promoting legislative internship programs.

"In addition to demonstrating our love of legislative service, the goals of the website are to highlight the variety of professional opportunities available in state legislatures throughout the country; demonstrate the rewards and benefits of a career in public service; and spark interest and encourage young adults to participate in government and consider legislative service as a career," Cyr explained.

The Legislative Careers page features an introductory video that shows the depth and breadth of staff involvement in the legislative process. Visitors can then navigate to the Career Paths tab on the site to view video testimonials from young legislative staffers in 10 areas of specialization coinciding with NCSL's organizations of professional staff. The site also has a page with links to job openings in statehouses throughout the nation.

Staffers featured in the Career Paths videos include:

• Zach Twilla, California Senate
• Cory Stewart, Louisiana House
• Rashada Houston, Florida Legislature Office of Program Policy and Government Accountability
• Kelly Dudley, Kentucky Legislative Research Commission
• Matthew Lawrence, Oregon Senate
• Scott Grosz, Wisconsin Legislative Council
• Kristin Ford, Librarian, Idaho Legislature
• Ashley deMauro, Pennsylvania House Republican Caucus
• Jason Watts, Hawaii Senate
• Carlos Galvan, Texas Legislative Council

Mike Sunseri, photography director for the Kentucky Legislative Research Commission, organized and managed the development of the videos for the Legislative Careers website.

Polar Opposite States

by Karl Kurtz

In his column in the Sacramento Bee today, Dan Walters compares California and North Dakota. After contrasting the two states' very different populations, geography, topography, economy and politics, he concludes:

It's fair to assume that few Californians would abandon the state's scenery, weather, food and cultural amenities for North Dakota, despite the latter's vibrant economy. It's also fair to assume that few North Dakotans would opt for California's population density, cultural complexity, traffic congestion and struggling economy.

That said, Californians should admire North Dakotans for something they didn't do last week. More than two-thirds of the state's voters rejected a measure that would have abolished property taxes by tapping into a fat state surplus from the oil boom.

They heeded warnings from opponents, including business leaders, that passage would have unintended consequences, such as a loss of local control, and that their long-term interests would be best served by saving the windfall for future needs.

Now that's a real contrast to California's boom-and-bust mentality – tax cuts and lavish spending one year, followed by deficits and despair the next.

Have you got your own favorite polar opposite states? Because I'm interested in legislative institutional characteristics, I'm more likely to compare California and New Hampshire. Of course, because of its size, it's alway tempting to contrast California to almost any other state. What about some other pairings? Texas and Vermont, for example. Or among states of more similar size, Mississippi and Massachusetts.

Add a comment below or send me an e-mail with your favorite pair of contrasting states in reference to politicial, policy and institutional characteristics.

Maryland Becomes 40th State to Ratify 17th Amendment

by Karl Kurtz

My sharp-eyed colleague, Ron Snell, noticed a bit of federalism trivia that had previously slipped by us in the 90 Day Report, a summary of the work of the 2012 Maryland General Assembly: Maryland ratified the 17th Amendment to the Constitution--the direct election of U.S. senators--during its legislative session earlier this year. Thirty-seven other states--the required three-fourths majority of states in those days--had ratified the amendment in 1913. Alabama ratified it in 2002 and Delaware in 2010.

Florida, Georgia, Kentucky, Mississippi, Rhode Island, South Carolinia, Utah and Virginia are the eight states that have not ratified the amendment. Utah is the only state explicitly to have rejected the amendment, according to Wikipedia.

Judge Jay Bybee

In looking up this information, I was intrigued to read about a 1997 law review article, "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment," by Judge Jay Bybee in which he argues that the state legtislatures' ratification of the 17th Amendment, giving up the power to elect U.S. senators, led to a gradual "slide into ignominy" for state legislatures.

I don't buy the "slide into ignominy," but I agree with Bybee that the 17th Amendment significantly hindered the role of state legislatures in the federal system. Here are some colorful paragraphs from the abstract of that article:

The mechanism by which the states could most readily defend against federal encroachment was their representation in the Senate.... State legislatures stood to mediate between the national government and the people, both for the state's account and the account of the people. Accordingly, the Constitution entrusted to state legislatures the duty to elect the state's senators.

Legislator Teamwork in the Classroom

by Bruce Feustel

Sheridan, Wyo. state legislators in the classroom

Many legislators meet regularly with students, but the legislators from Sheridan and Johnson counties, Wyoming have a special twist on this practice: they hold a series of discussions with local high school students as a group, just as they do with their constituents. I recently had a chance to participate in three of these discussions with the Sheridan area state legislators as part of a Kettering Foundation-funded project on improving the bond between legislators and citizens.

The key partner for the legislators in the high school civics/government class discussions was the teacher, Tyson Emborg. An enthusiastic instructor, he appreciates the opportunity to get the legislative delegation in front of his students. This year, the delegation visited on the last day of classes, which seemed like a recipe for disaster. But Mr. Emborg prepped the students in advance and the discussion was lively from bell to bell.

Senator John Schiffer and Representatives Jon Botten, Rosie Berger and John Patton introduced themselves at the beginning of the class, and the teacher called on students for their questions. Many of the students focused on the merit-based Wyoming Hathaway scholarship program, which provides significant funding for Wyoming students to go to in-state schools. The questions related to curriculum requirements, in-state school and other eligibility criteria, and funding associated with this recently-established program. Some students wanted more flexibility in the program to obtain award based on expertise in marketable areas like photography or welding. The legislators would periodically focus the students by asking "what do you think?". At one point, Sen. Schiffer and one of the students brainstormed ways to open the requirements while still maintaining standards of proficiency.

The discussion benefitted from the lack of filters--questions ranged from legislators' personal opinions on gay marriage, balancing energy and environmental concerns, and shooting wolves. Why does legislation need to pass through two houses of the legislature, they wanted to know. What issues does Representative Botten face in his dual roles of legislator and a municipal judge? How does the death penalty apply in a particular fact situation?

The team approach allowed the legislators to answer the questions they felt most knowledgeable about, and showed the students the wide variety of backgrounds of citizen legislators. This delegation included a rancher, an attorney and two business operators. It gave the students a sense of the variety of personalities and approaches that lawmakers bring to the state capital. It also helped to create a link with the school as a whole as they toured the building during a break and talked with principal Dirleen Wheeler over lunch. Finally, the legislator team approach allowed the delegation to reflect together on what the students were saying and thinking and what that meant for next year's session in Cheyenne.