July 2, 2015

I. In Focus This Week

SCOTUS ruling has broader impact than just redistricting
Ruling impacts elections administration in two key ways

By Edward B. Foley, Director, Election Law @ Moritz
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law

What does this week’s U.S. Supreme Court decision in the Arizona redistricting case mean for the world of election administration?

We know it gives a green light to the use of ballot referenda and initiatives to create the kind of nonpartisan redistricting commission that Arizona and California have, and that is potentially a huge development in the world of redistricting itself.

We know, too, that the jurisprudential debate between Justice Ruth Ginsburg opinion for the Court’s five-member majority (including the all-important swing vote, Justice Anthony Kennedy) and Chief Justice John Roberts for the four dissenters has the potential for overarching theoretical significance concerning the nature of appropriate judicial interpretation of the U.S. Constitution—as I’ve already touched on elsewhere.

But in terms of the rules and institutions for administering the voting process itself, is this week’s decision of particular significance?

Yes. For two reasons.

First, more narrowly, a variety of voting-related rules were potentially threatened if the decision had gone the other way. As had been raised during the litigation of the case, and as specifically mentioned by Justice Ginsburg in her opinion for the Court, several states had used the procedure of ballot initiatives to make changes to their voting rules.

For example, Oregon had used the initiative to shorten the deadline to register to vote to only 20 days. If the Supreme Court had adopted a literal reading of the U.S. Constitution, as Chief Justice Roberts and the three other dissenters urged, then this Oregon rule (and others like it) would have been invalid.

The relevant provision of the U.S. Constitution — Article One, section 4 — says that the “Manner” of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” unless Congress itself decides to set these rules. The claim in the case was that “Legislature” means “Legislature,” the body of representatives elected to enact the laws of the state, and thus does not mean the electorate itself acting by initiative.

It was a powerfully straightforward argument, one made even more so by the fact that elsewhere the same Constitution clearly used the word “Legislature” to mean “Legislature,” and not the electorate — as when the original Constitution specified that U.S. Senators would be “chosen by the Legislature” of each State, not elected by the citizens, as would be the members of the U.S. House of Representatives.

There needed to be a Seventeenth Amendment to undo this particular use of the word “Legislature” in the original Constitution. Why, then, Chief Justice Roberts asked, was a constitutional amendment not necessary to undo the word “Legislature” in the particular provision of the U.S. Constitution concerning enactment of procedural rules for congressional elections?

Justice Ginsburg’s response for the Court was, essentially, “We don’t absolutely have to interpret the word ‘Legislature’ literally; it could be interpreted, with a stretch, to encompass the electorate itself in a lawmaking capacity through the use of the initiative; and since we don’t have to be literal, we won’t, since being literal, at least in this context, would lead to really bad consequences.” Some of those bad consequences concerned gerrymandering specifically. But other bad consequences would have included the potential invalidation of a whole host of election administration rules.

As Justice Ginsburg observed, at risk were not only those election administration rules adopted through the use of initiatives and referenda; also vulnerable to invalidation were any rules applicable to congressional elections contained in a state’s constitution, rather than enacted through ordinary legislation. These included absentee ballot rules in a state’s constitution, or secret ballot rules.

Chief Justice Roberts himself cited a nineteenth century contested election in Michigan, where the outcome had turned on whether the Michigan statute or the Michigan constitution prevailed. The statute would have permitted absentee voting by soldiers, whereas the state’s constitution would not. The Chief Justice suggested that a literal interpretation of the word “Legislature” in the Constitution would require the Michigan statute to prevail over the Michigan’s constitution in this context.

Although Chief Justice Roberts resisted the conclusion that the consequences of this literalism would be dire, at the very least it would have been deeply destabilizing.

All that concern, however, has now been avoided by the majority opinion for the Court. Going forward, states can adopt their rules for administering elections — including congressional elections — by whatever lawmaking method they chose, whether ordinary legislation enacted by the state’s conventional Legislature, “direct democracy” legislation enacted by ballot initiative, or constitutional amendment adding a new provision to the state’s constitution.

Indeed, according to the logic of the majority opinion, a state could even choose to delegate its legislative authority for enacting election administration rules to a special-purpose body, like the kind of independent Election Commissions that exist in Australia and other countries. In fact, Justice Ginsburg’s majority opinion in the Arizona case specifically sustained precisely that sort of delegation, since the initiative merely created Arizona’s redistricting commission; it was the redistricting commission itself that adopted the new map for the state’s congressional districts.

Thus, the first and most immediate significance of the Court’s decision in the Arizona case is to confirm the freedom of states to choose whatever method of enactment they wish for the adoption of their own election laws.   This freedom means that prior enactments, like Oregon’s concerning the voter registration deadline is no longer in jeopardy. It also means that, in the future, the citizens of each state can decide whichever legislative method is best for their particular circumstances.

The second and potentially broader significance of the decision stems from the Court’s underlying rationale for giving the states this freedom. The theme that underlies the Court’s reasoning is that partisan manipulation of the voting process is wrongful and has no redeeming virtue. The Court made this point, of course, specifically in the context of partisan gerrymandering, since that was the specific form of partisan manipulation at issue in the case.

But the Court’s disdain for partisan manipulation of the electoral process — changes in voting procedures designed to advance one party’s electoral interest at the expense of the other — would extend to partisan manipulation of electoral administration rules, whether involving voter identification, early voting, same-day registration, the counting of provisional ballots, or other issues.

The Court premised its flexible approach to constitutional interpretation on the fact that the Framers themselves abhorred partisanship in politics. In the Constitution, the Framers adopted specific provisions in an effort to thwart the rise of political parties and their pursuit of narrow partisan advantage at the expense of the general public interest. The Framers were not successful in this regard with respect to specific provisions they adopted, and the majority of the Court recognized this.

But the majority took from this historical lesson the implication that it should interpret the Constitution in order to advance the Framers’ own goal of thwarting partisan distortion of the political process, rather than interpreting the Constitution’s specific provisions literally when doing so would be counterproductive to the Framers’ own goals in this respect.

Thus, insofar as partisan manipulation of the voting process affects other cases that reach the Court in the future, the Court will look on that manipulation with an inquisitive eye. First of all, in light of the Arizona precedent itself, the Court will inquire about the extent to which the state undertook efforts at institutional reform to avoid such partisan manipulation. If a state’s traditional legislature or secretary of state have adopted rules that appear purely partisan, the Court may point out that the state now has the option of employing alternative lawmaking procedures in an effort to curb those partisan distortions. The extent of a state’s efforts — or lack of efforts — to pursue such institutional reforms may become a factor in the Court’s constitutional analysis (as it is likely to do in the gerrymandering context).

In addition, the Court’s hostility to pure partisanship in the context of making the rules for the electoral process may emerge whenever a state attempts to defend its rules on the ground that it is just “party politics” at play.

If in an Equal Protection or Voting Rights Act case, the Court asks a state why it adopted a voting rule, and the answer is “the effort of one party to obtain a partisan advantage over the other,” that answer may no longer fly.   While the Court used to consider pure partisanship an acceptable motive, the Arizona case is a signal that the Court may no longer do so.

It is still too early to tell, and one or more of the Voting Rights Act cases in the litigation pipeline might provide further indications on this point. But it is evident from the majority opinion in the Arizona case that the Court is well aware of the heightened partisan polarization that is presently afflicting the nation, and the Court appears ready to let its jurisprudence be affected by a desire to counteract this tendency, which it perceives as pernicious.

Of course, all these tentative judgments about the potential future direction of the Court’s jurisprudence are necessarily contingent on the composition of the Court in the future.

The Arizona case, to reiterate for emphasis, was 5-4, with Justice Kennedy playing his usual pivotal role. Whenever it comes that Justice Kennedy is no longer on the Court, or Justice Ginsburg, and depending on who their replacements are, the jurisprudential landscape could look very different.

But for now, partisan manipulation of voting rules is suspect to deep suspicion, and the states have free rein to employ institutional innovation in an effort to combat this evil.


 II. Election News This Week

  • Tenafly, New Jersey’s planning board is considering tearing a building at 87 Country Road that has served as a hotel, a restaurant, a bowling alley and a saloon. But the building was also once a polling site and on November 2, 1880 Elizabeth Cady Stanton and Susan B. Anthony attempted to vote there but were turned away. The planning board will vote in July whether or not to tear the building down and The Record reports that residents, historians and political leaders are not happy about the idea. “Why would you destroy an historic building with local, state and national importance?” said Coline Jenkins, Stanton’s great-great granddaughter. “You have to save some fabric of this enormous evolution of human rights in America.”
  • According to The New York Daily News, in a closed-door session the New York City Board of Elections gave raises to about a dozen employees totaling about $202,000 annually. The BOE’s eight commissioners did not give themselves raises because their pay is set by statute.
  • They’ll always be two-stepping in Texas, just no longer when choosing a presidential candidate. This week the state Democratic Party announced plans to go with a straightforward primary vote for presidential candidates instead of a two-tiered process called the Texas Two-Step that combined polling and caucuses.
  • The Beaufort County, South Carolina board of voter registration and elections has set the special election to replace the Rev. Clementa Pinckney for Tuesday Oct. 20. The primary will be Sept. 1 and if a runoff is necessary that will occur Sept. 15.
  • Personnel News: Lafayette County, Florida Supervisor of Elections Travis Hart has received his Master Florida Certified Election Professional designation from the Florida State Association of Supervisors of Elections. Pattie Bender is retiring as the St. Joseph County, Michigan clerk/register of deeds. Joyce Slagle has announced her retirement as the Cocke County, Tennessee administrator of elections. Joanell Wilson is retiring at the Rapides Parish, Louisiana registrar of voters. She is being replaced by Lin Dyess Stewart. Cameron Quinn, head of the Fairfax County, Virginia elections department has submitted a letter to the county’s electoral board asking not to be reappointed to another four-year term. Longtime Williamson County, Texas election commission deputy Chad Gray it replacing Ann Beard as the county’s election administrator effective this week. Sid Leiken, a Lane County, Oregon commissioner has announced his intentions to run for secretary of state. Sabrina S. Lee has been appointed to the Covington County, Alabama board of registrars. Jonathan Washburn, Jamie Getty and Tom Pollard have been appointed to the New Hanover County, North Carolina board of elections.


 III. Research and Report Summaries
electionline provides brief summaries of recent research and reports in the field of election administration. The summaries are courtesy of the research staff of The Pew Charitable Trusts Elections Initiatives. Please email links to research to Sean Greene at Pew.

2014 Election Administration and Voting Survey, The U.S. Election Assistance Commission, June 30, 2015: For the first time, the EAC is presenting the information in one all-inclusive report that includes data on the ability of civilian, military and overseas citizens to register to vote and successfully cast a ballot. The 2014 survey is the sixth conducted by the EAC and covers the 2-year period from the November 2012 elections through the November 2014 elections. It is based on the results of a survey of all the states, the District of Columbia and four territories.

The report offers a number of observations and recommendations, cased on the data and experience of the states, regarding ways to enhance the efficiency with which elections are administered and to improve how data regarding those elections are reported to the EAC.

Broad Highlights

  • According to the data submitted, 81,133,122 individuals participated in the 2014 election;
  • Of the more than 81 million people who turned out to vote in 2014, more than 60 percent voted at the polls, 17.5 percent voted a domestic absentee ballot, and 10.7 percent voted early;
  • States reported counting 98.2 percent of the domestic absentee ballots submitted. The most common reason for absentee ballot rejection was a missed deadline for returning the ballot, followed by invalid signatures;
  • A total of 892,202 provisional ballots were submitted. 80.3 percent of those ballots were counted in whole or in part. Of the 171,443 that were not counted, the most common reason was because the voter was not properly registered; and
  • In 2014 states operated 178,636 precincts and more than 114, physical polling places. States employed almost 731,000 poll workers on Election Day. The larges number of poll workers ranged from 41 to 70 years of age.


 IV. Legislative Updates

Alaska: The Anchorage Assembly is once again considering moving the city’s election date. In February 2014, the Assembly moved city elections from April to November in order to boost turnout, but now some members say the change is too complicated. Under a proposed ordinance, city elections would be held on the same day as state elections beginning in 2017.

Connecticut: Under a budget implementation bill, approved and signed into law this week, a monitor will oversee elections in Hartford through 2017 including the upcoming mayoral and city council primaries.

Missouri: Gov. Jay Nixon signed SB150 that was combined with SB34 and will make it easier for members of military and overseas voters to cast a ballot in local elections instead of just federal elections. The new law provides a consistent definition of who is allowed to register to vote by the military-specific deadline and apply it to state and federal elections.

New Jersey: Both branches of the New Jersey General Assembly have now approved the “Democracy Act” and the legislation has been sent to Gov. Chris Christie. The bill includes more early voting options, online voter registration and automatic voter registration. Democrats expect Christie to veto the legislation and are prepare to put some version of the legislation on the ballot in 2016.

Rhode Island: Under H-6312 and S-0999, both approved before the close of the legislative session, the secretary of state’s office and not the state board of elections will now have the authority to set the specifications for purchase and oversight of new voting machines.

 V. Legal Updates

Supreme Court of the United States: By a 5-4 ruling the nation’s highest court upheld Arizona’s use of an independent redistricting commission to draw Congressional maps. “So long as a State has ‘redistricted in the manner provided by the law thereof’ — as Arizona did by utilizing the independent commission procedure in its Constitution — the resulting redistricting plan becomes the presumptively governing map,” Justice Ruth Bader Ginsburg wrote in the majority opinion.

In addition to ruling on Arizona’s redistricting commission, SCOTUS also refused to take up the issue of proof-of-citizenship on voter registration forms. The justices upheld a ruling by the 10th Circuit Court of Appeals that said neither Arizona nor Kansas can demand the federal Election Assistance Commission add a proof-of-citizenship requirement to the federal registration form.

Georgia: A Douglas County man who was asked to remove is pro-NRA hat before entering a polling place has agreed to dismiss his lawsuit against county elections officials after officials agreed to a new policy. Under the new policy, the county board of elections and registration will not question clothing or other materials that refer to a person, organization or viewpoint on an issue that’s not currently on the ballot.

North Carolina: U.S. District Court Judge Thomas Schroeder has ruled that claims against the voter ID provision will be kept out of the July 13 trial and instead considered at a later date. The ruling follows changes the Legislature made to ID requirements last week.

Ohio: Secretary of State Jon Husted referred 14 cases of suspected illegal voting in the November 2014 election to prosecutors for further review and possible prosecution.

Pennsylvania: Municipal Court Judge Roger F. Gordon has dismissed witness-intimidation charges against the relative of four North Philadelphia election workers who are accused of adding votes to a voting machine after the polls closed in November 2014.

 VI. Opinions This Week

National Opinion: Election reform, II, III | Voting system | Voting Rights Act | Voting rights, II | Proof of citizenship

Arkansas: Voting machines

California: Voter registration | Election reform | Redistricting, II, III

Illinois: Beloit County

Kansas; SCOTUS decision, II, III, IV

Michigan: Voting barriers | Absentee voting, II

Missouri: Voter ID

New Jersey: Voter registration | Cost of elections | Election reform

New York: Automatic voter registration | State Board of Elections

North Carolina: Voter ID, II, III, IV

Ohio: Online voter registration | Voting access

Pennsylvania: Philly elections officials

Texas: Automatic voter registration

Virginia: Ex-felon voting rights

Washington: Yakima election | King County


 VII. Available Funding

U.S. Election Assistance Commission Grants
EAC Grants Management Division is responsible for distributing, monitoring, providing technical assistance to states and grantees on the use of funds, and reporting on requirements payments and discretionary grants to improve administration of elections for federal office. The office also negotiates indirect cost rates with grantees and resolves audit findings on the use of HAVA funds.


 VIII. Upcoming Events
Please email upcoming events — conferences, symposiums, seminars, webinars, etc. to mmoretti@electionline.org.

NASS 2015 Summer Conference — The National Association of Secretaries of State Annual Summer Conference is set for July this year. Planning is still in the early stages, but be sure to mark your calendar. Where: Portland, Maine. When: July 9-12. For more information and to register, click here.

NACo Annual Conference and Exposition— The 80th Annual Conference and Exposition of the National Association of Counties will be in Mecklenburg County (Charlotte), North Carolina. Registration opens February 9th. Where: Charlotte, North Carolina. When: July 10-13. For more information and to register, click here.

NCSL Legislative Summit 2015 — The National Conference of State Legislators will hold their 2015 Legislative Summit in August. Planning is still in the early stages, but be sure to mark your calendar. Where: Seattle. When: August 3-6. For more information when it becomes available and to register, click here.

Election Center 31st Annual Conference— The Election Center hold its 31st Annual Conference in Houston in August. Planning is still in the early stages, but be sure to mark your calendars now. Where: Houston, Texas. When: August 18-22. For more information and to register, click here.

NACRC Annual Conference— The Annual Conference of the National Association of County Recorders, Election Officials and Clerks is set for Houston in August. Planning is still in the early stages, but be sure to mark your calendar. Where: Houston, Texas. When: August 21-25. For more information and to register, click here.

MEOC Conference — The Midwest Election Officials Conference is back! Following a several-year hiatus, Brian Newby, Johnson County, Kansas election commissioner is bringing back the regional conference for elections officials. There are still a lot of details to work out, but if you’re an elections official in the Midwest, mark your calendars now! Where: Kansas City area. When: September 30-October 2. For more information, stay tuned to electionline and Brian Newby’s Election Diary.


 IX. Job Postings This Week
electionlineWeekly publishes election administration job postings each week as a free service to our readers. To have your job listed in the newsletter, please send a copy of the job description, including a web link to mmoretti@electionline.org. Job postings must be received by 5pm on Wednesday in order to appear in the Thursday newsletter. Listings will run for three weeks or till the deadline listed in the posting.

Statewide Coordinator, VoteRiders, Wisconsin — statewide coordinator will identify, reach out to and recruit Partner Organizations (POs). POs will in turn educate their constituents regarding voter ID on a one-to-one basis (e.g., door-to-door canvassing, phone calls, tabling). An ideal Statewide Coordinator will have a community organizing background in Wisconsin with experience in voter activities including voter registration and education as well as GOTV efforts and relationships with grassroots organizations with such focus. Salary: This is a contracted, part-time position. The Statewide Coordinator will be a paid consultant for VoteRiders and will receive $2,000/month, based on a 20-hour workweek, through November 2016. Application: For the complete job listing and to apply, click here.


 X. Marketplace
electionline provides no guarantees as to the quality of the items being sold and the accuracy of the information provided about the sale items in the Marketplace. Ads are provided directly by sellers and are not verified by electionline. If you have an ad for Marketplace, please email it to mmoretti@electionline.org

Voting equipment
There are still items available for purchase from Yavapai County Arizona’s previous Diebold system. Most notably, Accu-Vote Precinct Packages, which are $35.00 and include 1 Scanner w/ key, transfer case & power cord. This is good news for Jurisdictions who may be interested in AVOS central count machines, as vendors have indicated that they are still selling the EPROMS that turn AVOS precinct counters into central count machines (see vendor for details). Other items still available for purchase include: 128K Accu-Vote Memory cards ($25.00), 32K Accu-Vote Memory cards ($25.00), and TSx PCMCIA Memory cards ($25.00). Equipment is being sold as-is on a first come, first served basis until all items have been liquidated. Interested parties may send a request for more information to: web.elections@yavapai.us. Please be sure to include in your email: Contact Name, State, County, and phone number.