The Thicket at State Legislatures

Implications for Other States of the Supreme Court’s Decision on Arizona Voting Rights Case

By Wendy Underhill

Yesterday the U.S. Supreme Court struck down an Arizona requirement, enacted in 2004, that new voters show proof of citizenship at the time of registration. The ruling may impact other states as well: Alabama, Georgia, Kansas and Tennessee also have laws on the books that require proof of citizenship, although the details vary.

This is a perennial source of legislation. This year, at least Massachusetts, Missouri, Nevada, Oklahoma, Oregon (H 2364 and H 3428) South Carolina, Texas and Virginia considered bills. (None has been enacted yet.)

The Supreme Court did not weigh in on whether non-citizens should be on voter rolls; the law is clear on this point-- only citizens can vote. And it didn't address whether the proof of citizenship requirement is an undue burden on citizens as they become voters. Instead, the opinion "drew a distinction between Congress's broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states," according to Rick Hasen, an elections law expert. The ruling spells it all out.

In no way, though, does the ruling change the fact that states have an obvious interest in ensuring that only citizens get on the voter rolls. We already see other state approaches developing.

For instance, some states are beginning to compare their voter rolls to various data lists that may shed light on citizenship. (The U.S. has no comprehensive list of citizens.) Colorado and Florida each did this before the 2012 general election. In both cases, they compared their lists to the Systematic Alien Verification for Entitlements (SAVE), from the Department of Homeland Security. While these attempts may not have netted many noncitizens who were attempting to vote (and sparked controversy in Florida), they can be viewed as pilot efforts that can be improved on in the future.

As for legislation, at least two states have bills in the hopper this year that approach the citizenship question without following the Arizona model. In California, AB 301 would require that state courts transmit to state election authorities information about citizenship gained through the juror selection process. And, in Washington, SB 5380 would have required the state to determine citizenship through the driver's license process and provide that information to the secretary of state for voter registration purposes. The Washington bill did not pass.

Supreme Court: NCSL Amicus Brief Persuasive in Supporting Maryland Law on Police Taking Suspects’ DNA

By Susan Parnas Frederick

In a 5-4 decision on Monday, the United States Supreme Court ruled that when officers make an arrest for a serious offense based on probable cause and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swap of the arrestee’s DNA is reasonable under the Fourth Amendment.  The Court likened the DNA swap to other legitimate booking procedures such as fingerprinting and photographing. 

The decision reversed the Maryland Court of Appeals ruling that the Maryland DNA Collection Act as applied to arrestees, violated the 4^th Amendment as an unconstitutional warrantless search which violated the suspect’s right to privacy. The State and Local Legal Center, representing NCSL and six other national associations of state and local governments and a national law enforcement association, filed an amicus brief in this case supporting the Maryland law. [Previous sentence corrected 6/10/13]

The Court acknowledged that the use of DNA technology is critical to law enforcement, medicine and science.  Twenty-nine states and the federal government have arrestee DNA laws similar to Maryland’s.  The Court also ruled that Maryland’s law contained sufficient safeguards to protect arrestees.  The State and Local Legal Center's amicus brief was persuasive in arguing that the use of DNA by state and local police has documented successes in solving crime and that the government’s interest in solving crime with the proper safeguards outweighs an arrestee’s right to privacy in those circumstances. 

Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office. 

Unusually High Levels of Straight Ticket Voting in 2012

By Karl Kurtz

Writing in Sabato's Crystal Ball, Kyle Kondik notes that almost all congressional seats in the country were won by the same party that carried the presidential vote in that district:

One needs little more than just fingers and toes to count the number of House members who represent districts won by the other party’s presidential candidate in 2012. ...[J]ust 25 House members--nine Democrats and 16 Republicans--hold such “crossover” districts. Compare that to 2004, when there were 59 such seats, or 2008, when there were 83.

Although the historical data are incomplete, the 25 crossover seats are probably the fewest number after a presidential election in nearly a century. The group includes some of the longest-serving members of the House, who have established deep roots that have allowed them to fend off challengers and build strong identities in their districts. In many of these districts, the challenging party simply must play a waiting game, hoping for a retirement that creates an open seat contest.

I don't have the data to compare these congressional results to state legislative races, but I noticed something similar in looking at party control of legislatures at the legislative chamber level. In the 26 states that President Obama won, Democrats control 38 of the 52 legislative chambers. And in the 23 states that Gov. Romney won (excluding Nebraska and its nonpartisan unicameral legislature) an even more remarkable margin of chambers (44-3) went in favor of Republicans.

In all states not listed above, the majority party in the legislature also carried the state's presidential vote.

Like Kondik, I don't know if this is a record, but I suspect that it is at least close to one. In a forthcoming article in State Legislatures magazine, I go more deeply into the causes (and consequences) of this more polarized political landscape. But in the meantime, the always pithy Larry Sabato has a simple explanation, "The electorate itself does what the straight party levers in voting machines used to do."

Presidential Election Commission: It's Official

By Wendy Underhill and Karen Shanton

On Thursday, President Obama signed an executive order creating the Presidential Commission on Election Administration. This  isn’t a surprise, given that he mentioned it in February’s State of the Union speech.  It’s good, though, to see the details.  One especially good point:

The commission is “to be informed by, and shall strive to avoid duplicating, the efforts of other governmental agencies.”

In this regard, the work of the U.S. Election Assistance Commission, the Federal Voting Assistance Program and state election directors and local administrators should all be considered. 

We hope and expect that the extensive work done by organizations that are not, strictly speaking, governmental agencies will be considered as well.  Three that come to mind are the National Association of Secretaries of State, the Pew Charitable Trusts’ Election Initiatives and the CalTech-MIT Voting Technology Project.

As for NCSL, we have deep resources on most of the election administration issues that the commission will consider. We paraphrase those issues here, and provide links to a sample NCSL resource on each topic. For those areas where we don’t have research posted, you can be sure we’re working on it behind the scenes.

Polling place management

Poll worker recruitment and training

Assisting military and overseas voters

Managing voter rolls and poll books

Voting equipment and technology

Ballot design and Voter education

Voting accessibility for people with special needs

Provisional ballots

Absentee ballots

Election Day emergencies

We look forward to whatever the next steps may be for the commission. We imagine that the very next step will be appointing members (the co-chairs are Republican Ben Ginsberg and Democrat Bob Bauer). Because state lawmakers bear primary responsibility for shaping election laws, we hope they will have a voice on the commission.

States Study Elections

By Karen Shanton and Wendy Underhill

According to a New York Times report, the recently-announced Presidential Commission on Election Administration will spend at least six months gathering and assessing data before releasing "recommendations for state and local election officials to reduce waiting times at the polls and improve all citizens' voting experience."

As that project description implies, state and local officials bear the primary responsibility for election administration and policy. So, a good place to look for data on elections is the research that is coming out of the states. Election officials in many states routinely take steps to assess their election administration performance and address voting challenges. These reports, which are often bipartisan or nonpartisan, are an excellent source of state-specific data and practical innovation.

NCSL has compiled a chart of recent election administration research from state and local governments. The chart, State-Based Election Reports (2010-2013), includes entries in these three categories:

• After-action reports about the administration of particular elections
• Best practice innovations for improving election administration
• Systematic reviews of, and recommendations about, election processes

If we have missed a resource in your state, please let us know. We will update the chart as we learn of additional reports.

Sequestration and the States

By Jon Kuhl

Short of a surprise last-minute deal between the White House and congressional leaders, sequestration will go into effect beginning at midnight Thursday. 

Of the total $85 billion in across-the-board cuts, federal dollars going to the states will be reduced by an estimated $5.8 billion. Considering federal dollars account for 34 percent of total state spending, that’s a lot of money.

In reaction to the impending sequestration, on Tuesday NCSL released a statement highlighting two major state concerns:

1. As all states except Vermont have balanced budget requirements, the continued fiscal uncertainty from Washington makes the state budgeting process near-impossible. If states don’t know how much money is coming from the federal government, how can they plan their budgets for the next year? This is exacerbated by the fact that most states will be wrapping up their legislative sessions within the next few months. States need certainty, and they need it now.

    2.  If the federal government is going to cut the funds it gives to states, it has to give states more flexibility. How can states continue to meet the same standards and requirements with less funds? Reducing federal funds without greater flexibility forces states to cut other programs, increase revenue, or some combination of the two. Cutting funds without granting greater flexibility amounts to shifting the federal deficit onto the states.

Since the statement’s release, it has gotten considerable news coverage, including a Reuters article in The Chicago Tribune.

Earlier this week the White House released numbers on how sequestration will impact the country on a state-by-state basis. The Federal Funds Information for the States (FFIS) organization also has state-by-state breakdowns.

Proposals to Change the Allocation of Electoral Votes, Part 2

By Karen Shanton

In early 2013, legislative proposals to allocate presidential electoral votes by congressional district have drawn a lot of press. But another type of electoral vote change, the National Popular Vote (NPV) Compact, got more attention—and traction—in state legislatures in the last several years.

When a state joins the NPV Compact, it pledges to award all of its electoral votes to the winner of the popular vote nationwide, regardless of who wins the popular vote in the state. NPV differs from the other proposals for changing electoral vote allocation in a couple of important ways:

• It's not a change states make unilaterally. If Oklahoma or Washington approves the district system proposal it has pending, the change will go into effect—no matter what other states decide to do with their votes. NPV legislation, on the other hand, is only activated once states with a majority of electoral votes join the compact. Currently, states with electoral votes totaling 132 have signed on; another 138 electoral votes are required for the compact to take effect.
• It functionally sidesteps the Electoral College. Strictly speaking, NPV is a way of allocating electoral votes. Unlike other electoral vote allocation proposals, however, it effectively bypasses the Electoral College. Rather than allocating votes solely on the basis of votes in-state, it awards them to the national vote winner.

NPV's trajectory has also been different. Interest in the NPV Compact exploded just as enthusiasm for other electoral vote allocation proposals started to wane. Though introduction rates for both NPV and non-NPV bills have dropped since 2007-2008, NPV continues to be introduced at a significantly higher rate than other proposals.

It has also been entertained by more states—NPV legislation has been introduced in all 50 states (and the District of Columbia), compared to 35 states for other electoral vote allocation proposals—and met with more success. Eight states and DC have signed on to NPV. Post-2000, none have approved any of the other proposals.

Over the years, partisan support for the NPV Compact has changed. Initially, Democrats were much more likely than Republicans to be lead sponsors of NPV bills; about seven times as many states saw Democrat- as GOP-led legislation in 2006-2008. However, last session saw a jump in GOP backing. More than a third of the states that considered NPV in 2011-2012 saw bills with Republican primary sponsors. (All nine of the successful NPV efforts were passed by Democrat-controlled legislatures.)

Other types of proposals (e.g. proposals to allocate electors by congressional district), by contrast, have seen a decline in bipartisan backing. Historically, these proposals have tended to have a mix of Democratic and Republican sponsors; the partisan split in most biennia has hovered around 50-50. That changed this year. So far in 2013, non-NPV proposals have only been introduced by Republicans.

For more on NPV, see NCSL's National Popular Vote page.

The State of the Union and the State of Elections

By Karen Shanton and Wendy Underhill

When any Americans–no matter where they live or what their party–are denied [the right to vote] simply because they can't wait for five, six, seven hours just to cast their ballot, we are betraying our ideals… We can fix this, and we will. The American people demand it. And so does our democracy.

That's what President Obama had to say about elections in his State of the Union address last night. NCSL takes up this very topic with an article in the current issue of State Legislatures magazine.

The article makes a couple of points that should be part of any upcoming discussion of election administration:

1. Long lines are neither a universal challenge nor the only issue in elections. Many jurisdictions did not have problems with long lines in November. Some faced different challenges. Focusing too narrowly on lines could obscure other obstacles to – and opportunities for – improving election performance.
2. Election administration is local. The U.S. Constitution assigns responsibility for establishing election procedures and administering elections to the states. The federal government can play a role in setting standards and issuing recommendations, but the primary decision-makers on election law are state lawmakers.

These points suggest that the most effective strategies for bolstering election performance will be tailored to states. For this reason, state-specific election administration data, such as The Pew Center on the States' new Elections Performance Index and the Voting Technology Project's Survey of the Performance of American Elections, may be the best starting point for states that are interested in improving election administration.

For more on long lines at the polls–including thoughts about how to cut down on wait times–see the February 2013 issue of State Legislatures.

Heading to the Hill? State Legislators Running for Congress in 2012

By Alex Fitzsimmons

Every two years, hundreds of current and former state legislators run for U.S. Congress. Most are incumbents running for reelection, but some are seeking a seat for the first time.

With the election around the corner, NCSL compiled a comprehensive list of every candidate for Congress who has served in a state legislature.  In total, 305 current and former state legislators are running for Congress in 2012.

Not surprisingly, the vast majority of these candidates (272) are seeking a House seat, while the remaining 33 are running for Senate. Of the 272 House candidates, 73 are not currently in Congress. In 19 House races, both candidates have state legislative experience. Fifteen of these races pit an incumbent against a challenger, while the other four feature two candidates vying for an open seat.

On the Senate side, former state legislators are running in 24 of the 33 races. In nine of the races, both candidates have state legislative experience. But unlike the House, where more than 70 percent of the candidates are incumbents, 60 percent (20 of 33) of the former state legislators running for the upper chamber are not sitting senators.

In addition, eight current House members with previous state legislative experience are running for the Senate in 2012. Think you can name them all? If not, here’s the list: Rep. Todd Akin (R-Missouri), Rep. Tammy Baldwin (D-Wis.), Rep. Rick Berg (R-N.D.), Rep. Shelley Berkley (D-Nev.), Rep. Mazie Hirono (D-Hawaii), Rep. Connie Mack (R-Fla.), Rep. Chris Murphy (D-Conn.) and Rep. Dennis Rehberg (R-Mont.).

As is the case every cycle, Congress is losing a number of former state legislators to retirement.  Three  senators – Sen. Kay Bailey Hutchison (R-Texas), Sen. Joe Lieberman (I-Conn.), and Sen. Olympia Snowe (R-Maine) – and 21 House members will not be returning to Washington when the new Congress is sworn in. There are currently 42 former state legislators serving in the U.S. Senate, and 228 serving in the U.S. House.

Stay tuned for updates after the election for a complete list of current and former state legislators who will comprise the 113^th Congress. Also, check out NCSL's StateVote page on election night for up-to-the-minute state election results. Covering 280 federal races and more than 6,000 state races, NCSL is the definitive source for state elections.

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.