The Thicket at State Legislatures

Proof of Citizenship

By Wendy Underhill

Arizona and Kansas are teaming up to sue the federal government over voter registration requirements.

The issue is this: under the National Voting Rights Act of 1993, all states must accept voter registration applications that come via the National Voter Registration Form.  At the very top of the form, above the first numbered question, it asks, “Are you a citizen of the United States of America?” Next to this question are two boxes, one for “yes” and one for “no”. There is no requirement that an applicant must provide proof, and yet laws in four states (Arizona, Alabama, Georgia and Kansas) do require proof.

Alabama and Georgia have not yet implemented their laws, and Arizona’s 2004 law was struck down in June by the U.S. Supreme Court, in Arizona v. Inter Tribal Council of Arizona.

The Kansas law went into force in January 2013. So far at least 15,000 Kansans, many of whom registered to vote while at the Division of Vehicles, are in voting limbo because they haven’t provided proof of citizenship. Local election administrators are reaching out to them to “cure” these cases. 

The Arizona-Kansas suit announced this week asks a federal court to require the U.S. Election Assistance Commission (EAC) to modify the federal form to indicate that proof of citizenship is required in their states, per state law.  

From the federal side, making the change isn’t easy because the EAC has no sitting commissioners, and thus can’t enact policy changes. And why does it have no commissioners?  Because none have been appointed by the President. Why not? Because the process starts with recommendations from the majority and minority leadership in the U.S. Senate and House, and no recommendations have been made in recent years.  

The outcome of this new suit will be of interest to many state lawmakers, judging by the number of states (10) that had legislation introduced this year dealing with proof of citizenship for voters in one way or another. 

Legislative Pay Raises a Touchy Subject

By Morgan Cullen

Illinois House and Senate Leaders have sued Governor Pat Quinn, demanding that the state’s legislative salaries be immediately reinstated. Upset with the legislature’s inability to resolve the state’s pension crisis, Governor Quinn exercised his line item veto authority and eliminated the $13.8 million in the state budget reserved for legislator pay. While the current legal fight raises a number of constitutional questions in Illinois, it has also publicized the politically thorny issue of legislative pay in general.  

In most legislatures, it’s up to lawmakers to decide if they should raise their own salaries, making it almost impossible to do so. The issue is often too politically charged to touch.  Over the last five years, only 17 states have raised legislative pay and most of these were only modest increases. 

During the 2013 legislative session, only eight states raised pay for state legislators, mostly small incremental increases that barely kept pace with inflation. The Vermont legislature increased legislator salaries by $42.33.  North Dakota lawmakers saw their salaries increase by $5 per calendar day. And Oregon raised legislator pay by $324 annually. 

The only legislators that saw a significant increase in their salary came from states where the primary authority to increase pay doesn’t actually reside in the legislature.  In Idaho, the Citizen’s Commission on Legislative Compensation recommended an increase of $322 per year.  Delaware’s Commission, which previously reduced salaries by 2 percent for all state employees and elected officials to help balance the state’s budget, adjusted their salaries back up by $1,291 per year. 

In Pennsylvania, legislator salaries (one of the highest paid in the country) are actually tied to the consumer price index that adjusts automatically when the cost of living increases.  Lawmakers there saw their salaries increase over the past year from $82,026 to $83,801.  In Florida, legislator salaries are tied to the salary adjustments of state employees and they received a $10 increase. 

In Utah, lawmakers salaries actually doubled from $117/day to $273/day during legislative session. The justification for the salary increase was due to a change in how their per diem was allocated, moving from an unvouchered to a vouchered system. Legislators there will now have to submit receipts for the business expenses they incur during legislative session. By moving to a vouchered system, the salary increase is not expected to place an additional burden on the state budget. 

In two states legislator salaries were actually reduced this year. In Massachusetts, lawmakers salaries are tied to the state’s median household income which reduced salaries by $1,081. In California, the Citizens Compensation Commission voted to reduce salaries for all elected officials last December by 5 percent. California has the highest paid legislature in the country at $90,526 per year but they have also seen the largest salary reductions in recent years.  In 2009, the commission reduced salaries by 18 percent. Over the last five years, California legislators have seen their salaries cut by $25,682.

To help take the politics out of the issue, 19 states have created compensation commissions to provide independent and impartial recommendations. While a commission’s level of influence varies from state to state, they do provide a regular opportunity to review legislative salaries every couple of years to see if current salary levels should be raised or lowered. The type of legislative compensation methods in place in each state are illustrated on the map.

See NCSL’s 50 state table on legislature salary and per diem available here.

Examining the Legal Challenge to North Carolina's New Photo Voter ID Requirement

By Karen Shanton

Is North Carolina’s new photo voter ID requirement an unlawful additional qualification on the right to vote? That’s the central question in the lead argument of a state lawsuit filed against the requirement last Tuesday.

The answer could turn on whether North Carolina courts accept the plaintiffs’ framing of the ID requirement. North Carolina’s constitution sets out an explicit list of qualifications for voting. According to the plaintiffs, the photo ID law adds a new qualification to this list–which the state’s legislature doesn’t actually have the authority to do. So, the ID law is an impermissible legislative overreach.

If North Carolina’s courts sign on to this framing of the photo ID requirement, this argument could have legs. A Wisconsin circuit court judge accepted a similar reading of that state’s ID requirement and cited it as grounds for an injunction against the requirement.

However, other courts have resisted this way of thinking about voter ID requirements. Faced with a similar argument in a state constitutional challenge to its photo ID law, Indiana’s supreme court rejected the plaintiffs’ interpretation. Rather than a substantive qualification on voting, the court concluded, a photo ID requirement is merely a procedural regulation on the conduct of elections. And regulating elections is within the Indiana General Assembly’s power.

Wisconsin’s circuit court ruling was overturned by an appellate court that took much the same line. The appeals court interpreted the ID law as imposing a regulation on voter registration, which is a power explicitly granted to the Wisconsin Legislature by the state constitution.

The North Carolina General Assembly is also constitutionally-authorized to regulate voter registration. So, there’s an opening for this kind of ruling in the North Carolina case.

It isn’t the end of the legal line for North Carolina ID opponents if that happens–they can press the other arguments in this case (e.g. the equal protection claims) or turn their attention to other cases (e.g. the pending federal action)–but they’re obviously better off if it doesn’t. Other legal options aside, opponents of photo ID laws should cross their fingers for a plaintiff-friendly reading of North Carolina’s ID requirement.

Karen Shanton, Ph.D. is a legislative studies specialist and ACLS public fellow in the NCSL Legislative Management Program.

America is Depending on State Legislators

By Julie Lays

We are at a crossroads. The federal government is dysfunctional. Our problems appear intractable.

That’s the message David Gergen delivered to more than 1,000 state legislators, legislative staff and others at the closing session of NCSL’s 2013 Legislative Summit in Atlanta.

“Washington, D.C., is broken,” said Gergen, former adviser to four presidents, Harvard professor of public service, and political analyst for CNN. And the likelihood that the federal government will get its act together anytime soon is dim.

That’s why state lawmakers can make a huge difference in increasing the public’s confidence in politicians and government, Gergen said. Most good policy has come from the states, and “Americans are depending on state legislators” to make up for the poor leadership shown in our nation’s capital, to champion bipartisan cooperation, to keep the country’s governance vibrant, to stand up to the partisan ideological fights that end up hurting everyone, he said.

He recounted his days in the White House serving presidents from both parties. That generation, which served in World War II, placed their loyalty to America above their loyalty to party and ideological stances. “They were strong Democrats. They were strong Republicans. But above all they were strong Americans. They served not for ideological reasons, but to solve problems. They focused on bipartisan solutions.” You couldn’t tell the Ds from the Rs, he said.

He contrasted that kind of commitment to service with the divisiveness shown by today’s baby boomer politicians, who grew up in the tumultuous ’60 with a war that divided rather than united. Add to that all the social change of the time that divided people between those who held to the “old values" from those embracing the “new values” and it is no wonder this generation is dysfunctional and can’t compromise, he said.

Although his assessment of the current state of federalism was dismal, he cited some reasons for hope:

• The real possibility of achieving energy independence.
• The technological innovation of Americans that is second to none.
• The wonderful qualities shown by our nation’s youth, the “finest people since the WWII generation,” he said.
• The willingness of young veterans returning from current conflicts to ask, “How can we continue to serve our country here at home?”

Gergen’s remarks reflected the theme of the Summit: Build Strong States. After a standing ovation, those who heard Gergen’s talk appeared inspired to go home to lead and strengthen their own communities.

Drones: Eyes-in-the-Skies Raise Issues of Privacy, Profit

By Mark Wolf

Drones are among us, above us and watching us. They come in a variety of sizes, shapes and intended uses. They can watch oil pipelines and peep into private places.

They have been the subject of passed or introduced legislation in most states, much of it centered on the use of drones by law enforcement, with more certain to follow.

The pilotless, flying, remote controlled Unmanned Aerial Systems (UAS) - some large, some toy-sized - were the subject of an All About Drones session during NCSL's Legislative Summit.

"Leave drones out of your privacy laws," urged Eric Johnson, the Lockheed Martin associate professor of avionics integration at Georgia Tech. "If your privacy is being violated, do you care if there is a person in the aircraft or a person holding a camera or a hidden camera stuck to a tree?"

States are elbowing for a piece of a drone research windfall and R. Steven Justice, director ofthe George Center of Innovation for Aerospace, estimated drones would be responsible for 1,949 jobs, an economic impact of $379 million and $3.72 million tax impact in Georgia by 2017.

The "reasonable expectation of privacy" standard in the context of the Fourth Amendment to the U.S. Constitution, is "the worst possible model for state legislators who want to draft effective legisation (regarding drones)," said Morgan Cloud, a law professor at Emory University and a leading Fourth Amendment scholar.

Cloud said the privacy expectation "must be one society thinks is reasonable" which means itis ultimately defined by a majority of Supreme Court justices. "That means it changes over time. Reasonableness is a standard, not a rule. What is reasonable changes over time."

The recently-enacted Texas law, Cloud said, was a good example of using precise language: "The crime under the Texas privacy statute is that a person commits an offense if he uses an unmanned aircraft to capture images of people or property with the intent to conduct surveillance. I suggest to you that most private citizens, lawyers and even some judges can understand this."

Representative Lance Gooden, who authored the Texas law, said "people came out of the woodwork after I introduced it and the final product said if you're going to capture an image you can't do it with the intent to conduct surveillance." Law enforcement agencies opposed the bill, seeking an amendment to use drones "for legitimate law enforcement purposes," which lawmakers determined was too board.

"(Drone) manufacturers wanted an exemption for use during production and development but we said, 'What are you doing that requires an exemption from the intent to conduct surveillance," he said. Some exemptions were granted such as to utility companies to use drones to survey pipelines without bringing vehicles onto private land.

Rep. Shelley Hughes of Alaska sponsored a resolution establishing a task force to study the use of drones.

"I researched the activity that is being done (by drones) and decided a lot of good is being done," she said. "A tanker was guided by a UAS to get fuel to Nome. a downed aircraft was found by UAS. We were able to keep sea lions off the endangered species list because we were able to get an accurate count using drones," she said.

"We need to address privacy concerns but surveying is not the same as surveillance. Privacy became an issue when the first caveman stepped out of the cave. If an action is a crime it's the action itself, not the technology.

"I don't want a small helicopter hovering outside the bathroom window while I'm taking a shower but I also don't want to throw the baby out with the bath water."

Legal experts say gay rights new civil rights

By Mary Winter

Recent landmark rulings by the U.S. Supreme Court hint that, in the judicial sphere, gay rights may be the new civil rights, two legal experts told a gathering of state legislators Wednesday.

Lisa Soronen, executive director of the State and Local Legal Center in Washington, D.C., and Brian Johnson, deputy director of Senate research for the Georgia General Assembly, discussed four Supreme Court decisions affecting the 1965 Voting Rights Act, a University of Texas affirmative action case, the federal Defense of Marriage Act, and California’s Proposition 8. 

Soronen’s organization helps state and local governments with litigation before the U.S. Supreme Court. Since 1983 the SLLC has filed more than 300 amicus briefs in the Supreme Court.

Representative Tommy Reynolds of Mississippi introduced Soronen and Johnson at a session entitled “Supreme Court Key Cases” at the National Conference of State Legislatures’ annual Legislative Summit at the Georgia World Congress Center.

The court expanded gay rights in two separate rulings. In the United States v. Windsor, the court struck down a part of the federal Defense of Marriage Act that prevented same-sex couples from filing joint federal tax returns or from covering their spouses on their health care plans. The court said the provision was unconstitutional because it stepped on states’ rights and it denied gays equal rights. In the second case involving gays, the court dismissed a suit challenging an earlier ruling on California’s Proposition 8, in effect upholding that court’s ruling that the Constitution’s 14^th Amendment guarantees gays the right to marry.

 “Are gay rights the same as civil rights? That’s the big new question,” said Johnson. Expect courts to examine gay rights in light of the 14^th Amendment, the Reconstruction Era legislation that gave former slaves citizenship and equal protection rights, he said.  Johnson predicted “deep conversations” and debates will take place around the issue. States will also have to decide how they will allocate federal benefits such as Temporary Assistance to Needy Families to gay couples, he said.

SLLC’s  Soronen focused more on the court’s decision to strike down a key part of the 1965 Voting Rights Act requiring states with histories of discrimination to get federal permission before changing election laws. In explaining the 5-4 decision, Chief Justice John Roberts said the provision was outdated and violated state sovereignty.

Soronen said Associate Justice Ruth Bader Ginsburg delivered a “beautiful and intelligent” dissent from the bench, alluding to “shameful” current examples of voter discrimination in some states, including one in which a city council simply cancelled an election when an African-American slate decided to run.

Soronen called the Voting Rights Act ruling “the beginning of something huge and new.”  She predicted the country will see more lawsuits alleging voter discrimination and quicker response from the U.S. Department of Justice when states decide to implement new rules such as voter ID requirements, as Texas recently did.

The Fisher v. the University of Texas at Austin case involved a white student who applied for admission based on the state’s affirmative action law. When she was denied, she sued, claiming the school’s use of race in admissions decisions violated the Equal Protection clause of the 14^th Amendment. The Supreme Court remanded the case back to a lower court, but Soronen believes that in the future, affirmative action cases will be harder to win and that the recent decision was “a victory for those who want to take race out of the equation.”

The court’s recent path, she said, has some people wondering “if we’re seeing the end of the race-focused civil rights movement.”

Former President Jimmy Carter Captivates State Legislators

 

Credit: Realclearpolitics

"After my two terms in the Georgia state Senate, I went on to a couple of lesser offices," joked Jimmy Carter, 39th president of the United States and former governor of Georgia. He spoke yesterday to an audience of state legislative leaders, members of the NCSL Executive Committee and international delegates at the beautiful Carter Center in Atlanta during NCSL's Legislative Summit.

 

The audience listened with the reverence due to a former president and with admiration for his dedication to international diplomacy in the 33 years since he left office. Some disagreed with his interpretation of history, but there was universal respect for his outstanding public service.

The spry and lively 88-year-old former president summarized the work of the Carter Center: working with countries that do not have diplomatic relations with the United States but have critical human rights issues, monitoring elections in emerging democracies, treating neglected tropical diseases, and improving mental health programs (an initiative of First Lady Rosalynn Carter).

In regard to the election monitoring activities of the Carter Center--in 94 countries to date--President Carter emphasized the importance of volunteer election observers who spend six to eight days in country before and after an election and encouraged legislators and staff to volunteer. The Carter Center monitors elections only in countries where both the majority and the principal minority parties invite them to do so. He pointed out that the Carter Center's evaluation of the fairness of an election process carries considerable weight in the international community. When President Carter has called out putative election winners for cheating, those winners have often not been able to take office or have had to call new elections.

In a wide-ranging question and answer period, President Carter did not miss a beat as he touched on Canada-U.S. relations, energy policy, and American foreign policy toward North Korea, Cuba and Egypt. Commenting on American politics, he noted that in 1976 election he carried every southern state by a large margin--the last Democrat to do so. He regards the polarization of American politics today as the result of the infusion of money in politics, which is used by candidates on both sides to demonize their opponents, and increasingly sophisticated partisan gerrymandering.

For many in the audience, this session with the former president was undoubtedly a highlight of the 2013 Legislative Summit.

We're listening: Presidential Election Commission Gets an Earful

By Mark Wolf

Fixing the way America runs its elections its elections shouldn't be much of a challenge. Just come up with a national consensus on voter registration, eliminate long lines at polling places, provide more voting options, be wary of reforms that come with political agendas and if you're going to move towards all-mail voting, don't forget about the post office's role.

And get this all wrapped up by Dec. 17 so we have time for holiday shopping.

Three members of the Presidential Commission on Election Administration, which is charged with all that and more, held a 90-minute listening session at NCSL's Legislative Summit and heard from lawmakers, election officials and representatives of voting technology.

Delaware's demographics mirror the United States' almost exactly, which makes the state an excellent litmus test for various programs, said Representative Earl Jaques.

"We've kind of been stuck in the 1940s and 1950s procedures," said Jaques. "This past year we've finally addressed how we would conduct elections during natural disasters. We've just formed an election task force tring to encourage more people to vote because we're appalled at the low percentage of people who vote. We don't have early voting and we're learning how to do no-excuse absentee voting."

His colleague, John Kowalko, said he supported no-excuse absentee voting, "because with the combination of the busy lives of people and getting to that polling place on Tuesday, how difficult is it for poor people to take a day off from work and stand in line. I just heard the Australian election is coming up and they get fined if they don't vote. You can imagine the uproar if we tried to do that here but if we make it more accessible and easir for people I think people going to avail themselves of those opportunities. Any impediment to voting is just non-negotiable.

Erin Seiler of the Oregon Legislature's Committee Services Office, said the viability of the U.S. Postal Service is vital for her state, which votes exclusively by mail.

"We're struggling with what to do if we lose rural mail delivery or even go to four-day delivery," she said. "It would prohibit voting in some rural areas. Washington (state) allows votes to be counted if they were mailed on election day, but we don't. Ours have to be received by election day."

Representative Gary Richardson of New Hampshire spoke in opposition to registration provisions that would force people to register their motor vehicles: "I think it's a way to try to stop college students from voting."

Representative G.A. Hardaway from Tennessee said he considered the lack of voter education to be the root problem with low election turnout: "You have to start with puttihg civics education back in every school and expand them to include of of the voting procedures, techniques, history and law."

Nate Persily, the commission's research director, urged states to forward any information they have dealing with turnout projections, calling accurate turnout predictions the "holy grail" of election administration.

The Two Sides of the U.S. Economy

By Ed Smith

What do you want first, the good news or the bad news about the U.S. economy?

Beth Ann Bovino, Standard and Poor’s chief  U.S. economist, offered plenty of both Wednesday morning at NCSL’s Legislative Summit in Atlanta.

Initially, she sketched out some of the grim economic news with which we’ve become all too familiar: persistently high unemployment, sequestration, policy gridlock in Congress, growing government debt and an aging population.

“If current debt and policy remains, government debt will be 415 percent of GDP by 2050,” Bovino said.

Want more bad news? American households lost 39 per of their family assets during the recession.

 “We lost 20 years of net worth in just two years. That loss made people stop spending,” Bovino said. “The middle class was hit the hardest. They lost more than 40 percent of their wealth because most of their assets were in real estate.”

But, she added, there’s good news, too. Europe’s problems are not as bad as was feared, China’s ills may not be escalating, there seems to be a growing consensus in Congress not to face off over the debt crisis, and cheap natural gas is spurring manufacturing.

“After four years of mending our financial houses,” she said, “housing is strong, the job market has improved and manufacturing is coming back because of all the natural gas production.”

And, she added, channeling Mark Twain: “News of the Fed's tightening is greatly exaggerated.”

Bovino also said to take a housing bubble off your list of economic concerns. “Bubbles are an issue but not yet,” noting prices are still 25 percent lower than 2006.

The energy area may be the most surprising development for anyone not following the sector in the past few years. The United States, Bovino pointed out, will pass Saudi Arabia in five years as the world’s largest producer of energy.

She said S&P now believes the threat of a new recession, recently 1-in-4, is now1-in-10.

The big surprise for most economists, she added, is how resilient the U.S. economy has turned out to be.

“We think the positives outweigh the risks.”

 And that’s good news.

Ed Smith is the director of digital communications for NCSL.

E-Voting: It May Be a While

By Ed Smith

When it comes to voting, there’s not an app for that and there’s not likely to be one anytime soon.

A group of lawmakers and elections officials debated the pros and cons of voting electronically Tuesday during a session on e-voting at NCSL’s Legislative Summit in Atlanta. While some on the panel were more bullish on electronic voting than others, everyone agreed “baby steps” were likely to dominate the process in the near future.

Senator Whitney Westerfield of Kentucky said his state has approved a first step in electronic voting – distributing ballots electronically – but expected it will be a while before the state would take the next step of allowing election officials to receive ballots electronically.

"We almost have no choice but to take these baby steps,” he said, but added that much of the concern about electronic voting stems from a lack of “knowledge of and comfort with the technology.”

Douglas Kellner, co-chair of the New York State Board of Elections, saw it quite differently.  He noted that proponents of electronic voting frequently point out that if banks can handle electronic transactions, election official should be able to do the same.

“There’s a reason why we can bank online but can't vote online,” Kellner said. “It’s mainly because in banking it's not secret and you can verify and audit the trail of the money.”

Kellner said he favored voting electronically or by fax only in rare circumstances, such as members of the military on the front lines and far from postal services.

“It is critical for confidence in the election process that one be able to verify the election process. There needs to be a trail where you can verify the voting process and that trail does not yet exist when voting by email or fax."

A third panelist, Delegate Jon Cardin of Maryland, said states would continue to study the issue with an eye toward allowing “every person who is eligible to register and vote efficiently and effectively and in a transparent way.”

There are reasons, however, to be concerned since the National Institute of Standards and Technology, the Department of Defense, Department of Homeland Security and the U.S. Election Assistance Administration all have expressed concerns about the security of the current technology.

One member of the audience, however, pointed out that maybe the officials were being too ethnocentric in surveying the electronic voting landscape. Jonathan Brill of SOE Software said electronic voting takes place in 18 developed countries without serious problems.

Ed Smith is the director of digital communications for NCSL.