The Thicket at State Legislatures

Election Laws Challenged in Only State to Act Since Supreme Court Ruling on Voting Rights Act

By Wendy Underhill

The Department of Justice announced on Sept. 30 that it is filing suit against North Carolina for its new elections law, enacted in July.

“In challenging this law, the Justice Department will present evidence of racially discriminatory effect resulting from these changes – based on the state’s own data,” said Attorney General Eric Holder, in a press release.  He cites the new photo voter ID requirement; the reduction in the number of days for early voting; the elimination of the option to register to vote and cast a ballot on the same day during early voting; and how provisional ballots are handled when they are cast in the wrong precinct but within the right county.

In response, the bill’s sponsor, Representative Harry Warren, called the lawsuit “frivolous.” Specifically referring to the early voting hours, he said “It’s actually more equitable. What we’re doing is requiring all early voting precincts to be open uniformly and equally.” As for the photo voter ID provision, he points out that other states already have similar requirements, and have survived court challenges.

North Carolina Gov. Pat McCrory added, “I think it’s obviously influenced by national politics, since the Justice Department ignores similar laws in other blue states throughout America.

The outcome of the case will be watched nationally.

In the meantime, the New York Times’ coverage of the new DOJ suit says, “Republican-controlled states have rushed to impose new limits on voting” since the Supreme Court’s June ruling in Shelby County v. Holder.  (That’s the case that invalidated a portion of the Voting Rights Act of 1965, the part that put some states and local jurisdictions under Section 5, which obligated them to have any changes to voting procedures “pre-cleared” by federal authorities before they could be implemented.)

If the “Gray Lady” is referring to the passage of new legislation such as North Carolina’s, it’s too early to say there’s a “rush.” We simply don’t know yet how the “formerly Section 5 states” will respond.

Here’s why. The Supreme Court ruling came on June 25, and at that point fewer than a dozen states were still in session; most states had adjourned for the year. And, among those still in session (California, Illinois, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Wisconsin) only North Carolina was covered by Section 5 in a significant way. Come 2014 legislative sessions, we’ll be able to report if there is a trend.

For more on North Carolina’s bill—including provisions besides those mentioned in this lawsuit and how it compares to Colorado’s major election overhaul bill this year—see NCSL’s elections newsletter, The Canvass. 

Wendy Underhill is program manager of NCSL's elections team.

Recalling a Little History

By Karen Shanton

Last night's episode of The Rachel Maddow Show included a segment on the history – and possible political future – of state legislative recall elections (segment starts at 2:00).

The segment was interesting but there are a couple of points in it that call out for clarification. Early on in the piece, Maddow suggests that recalls used to be deployed primarily against officials who were convicted of crimes and refused to leave office. But that's not really the case. As I mentioned in a previous post, the vast majority of legislative recalls are politically motivated. And that's been true almost since the beginning. Following California Senator Marshall Black's recall for embezzlement in 1913, there wasn't another misconduct recall until the mid-1980s. The intervening recalls were all political.

Maddow also suggests that recall elections tend to favor Republicans. Whether or not that's borne out in the future, it hasn't been the case historically. Republicans have faced significantly more recall elections than Democrats and survived a smaller percentage of the recalls they've faced. Of the 38 total legislative recall elections, 14 were against Democrats while 24 were against Republicans. Democrats survived eight of their recalls to the Republicans' nine, for respective win-loss records of 57-43 percent and 38-63 percent.

And the proportion of Republican recalls has actually increased in the past couple of years. Before the wave of recall elections in 2011, 12 recalls were aimed at Republicans while nine targeted Democrats. Since then, Republicans have fielded 12 recalls to the Democrats' five. That puts the pre-2011 D-R split at 43-57 percent and the 2011-2013 split at 29-71 percent.

Most recall elections are politically motivated

By Karen Shanton

Both of the Colorado state lawmakers facing recall lost their seats on Tuesday. As followers of this story are aware, the recall efforts were politically motivated. Senate President John Morse and Senator Angela Giron, both Democrats, were targeted over their votes for gun contro

Though some states reserve recall power for reining in incompetent or unethical officials, few recalls are actually launched over misconduct – at least not at the state legislative level. Rather, like the Colorado recalls, most are political. Thirty-eight state lawmakers have faced recall elections since the first states, Michigan and Oregon, adopted the recall in 1908. Of those 38 recall efforts, 35 were politically motivated.

(An interesting exception to the general trend of political recalls is recall pioneer, Oregon, where two of the state’s three legislative recalls were over misconduct.)

Politically-motivated recall efforts face an obstacle that misconduct-driven recalls don’t: the (often-not-insignificant) segment of the population that opposes using recalls for political purposes.

This is not a trivial obstacle. It may have been a factor in the wave of state senate recalls in Wisconsin in 2011 and 2012. Exit polling from the 2012 elections, which also included attempts to unseat the governor and lieutenant governor, suggested that 60% of recall election voters opposed deploying recalls for anything other than misconduct. And a correspondingly high proportion of the targeted senators – nine of 13 – survived their recalls.

But it’s also clearly not insurmountable. Counting the Colorado elections, political recalls have succeeded on 18 out of 35 tries. That may not be the perfect three-for-three that misconduct recalls have notched but it’s still (slightly) north of 50-50.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.

 

New Twist in Texas Voter ID Suit: Is the Law a Poll Tax?

By Karen Shanton

The federal suit against Texas’ photo voter ID law was recently updated with a few new complaints. Among the new claims: the requirement amounts to a poll tax.

Poll tax arguments have a long history in voter ID cases, starting with the earliest suits in Georgia and Indiana. Georgia’s voter ID law originally attached a $20 fee to voter identification cards. Plaintiffs in a 2005 suit against the law (Common Cause v. Billups) charged that this violated the U.S. Constitution’s Twenty-Fourth Amendment prohibition on poll taxes. The court seemed inclined to agree and the state’s legislature hastily revised the law to provide for free ID cards.

This neutralized the argument in that case; with the direct price tag for IDs snipped, the Georgia court rejected the poll tax argument. It also helped shape future legislation. Subsequent ID proposals have consistently included provisions for free ID cards.

But these developments didn’t sideline poll tax arguments in general. ID opponents just shifted the emphasis of their arguments from primary costs of ID laws, such as Georgia’s fees, to secondary costs like the inconvenience and expense of a trip to the DMV. This secondary costs version of the argument has become a mainstay of voter ID suits, coming before courts in Indiana, Michigan, Missouri, Tennessee, Wisconsin – and now Texas.

The secondary costs version of the poll tax argument can easily blur into another argument commonly levied against voter ID: ID laws unduly burden eligible voters’ right to vote (see, for example, the Missouri Supreme Court’s opinion in Weinschenk v. Missouri).

And, as it happens, Texas is a rather interesting case where this ‘undue burden’ argument is concerned. Specifically, it has some features that seem to make it more vulnerable to undue burden charges than other states where undue burden arguments have been tried (and failed). For example, Texas’ ID law is stricter – permitting fewer types of ID – than ID laws in, say, Georgia or Indiana. Its ID-issuing agencies can also be few and far between. According to recent court filings, some prospective voters face journeys of 200-250 miles roundtrip to get to an agency.

These features raised concerns about the burdensomeness of the law for a previous court. The coming months will tell whether they cause the current court similar concern.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.

 

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. 

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.

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.

Electoral Losses by President's Party Include State Legislatures

An interesting article in Sabato's Crystal Ball on how the president's party, from Truman through Obama, consistently loses seats in Congress and statehouses speculates about what state politics would look like today if Sen. John McCain had won the 2008 presidential election.

Again, let’s just imagine what would’ve happened if we hold all else equal in 2008, except that McCain wins instead of Obama. Not only do Democrats probably retain their state legislative power (they held total control of 27 states after 2008), but they also would probably have retained influence over redistricting in at least some of these aforementioned states. Again, Obama’s 2008 victory — and his subsequent rebuke in the 2010 midterm — has had long-term repercussions for Democrats. For example, it is possible that the 2010 election essentially ceded control of the U.S. House to the Republicans up through the year 2022, when the next redistricting takes effect — determined in good part by the outcome of the 2020 contests.

The article includes lots of historical political detail and justification for this hypothetical and a nice shout-out for NCSL's Tim Storey, who provided the state legislative data and some of the analysis.

Clever Political Ads

By Karl Kurtz

Sabato's Crystal Ball features "10 classic political ads that 2014 candidates should (or shouldn’t) copy". All of them are clever and engaging. A few were successful. My favorites (maintaining strict multi-partisanship) are "Fast Paced Paul" Wellstone's 1990 insurgent campaign ad against incumbent U.S. Sen. Rudy Boschwitz (R-Minn.), Republican challenger Florence Sullivan's ad depicting U.S. Sen. Daniel Patrick Moynihan riding a fence as "The Great Straddler" in 1982, and independent Jesse Ventura's "Action Figure" making fun of his own background as a professional wrestler in the 1998 Minnesota governor's race.