Category Archives: Elections

Who’s Calling the Shots in State Politics? Corporations playing politics with ballot measures

Source: Liz Essley Whyte, Center for Public Integrity, September 2, 2015

….The Center for Public Integrity reviewed 55 publicly traded companies and top corporate givers to ballot measures and found nine instances of curious positions — positions taken even when the companies’ policies emphasize their business interests as the overriding criteria in doling out political contributions. The areas of interest were fairly diverse, but most seemed to focus on social issues or were aimed at fundamental changes to how state government operates….

….Some of the contributions that don’t line up with company policy appear to be aimed at building corporate political clout in the states. Companies are keen to make governors and legislatures as friendly as possible to business, according to Paul Kelly, a board member of the Association of Government Relations Professionals, which represents lobbyists. Sometimes that means contributing to issues that control how those politicians are elected…..

The Racial Equity Impact of Secret Political Spending by Government Contractors

Source: Naila Awan & Liz Kennedy, Dēmos, 2015

From the summary:
….Many have called for measures that would pull back the curtain on corporate political spending. Greater transparency of such spending is particularly needed with respect to government contractors, who are given taxpayer dollars to do the people’s business. These contractors often turn around and engage in political spending to influence policies that preserve their profits at the public’s expense, or affect contracting decisions. Government contractors often heavily advocate for, and profit when the federal government adopts, policies that disproportionately harm people of color and other traditionally disenfranchised populations. An executive order requiring government contractors to disclose their political spending would help the public hold government contractors accountable for political spending that benefits their bottom lines while entrenching structural racism in our country…..

Race, Federalism, and Voting Rights

Source: Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer, Duke Law School Public Law & Legal Theory Series No. 2015-24, May 28, 2015

From the abstract:
In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated “basic principles” of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter at all to the federalism debate. In this Essay, we ask three basic questions in response to Shelby County. First, what does the Court mean by “federalism costs,” and why have these costs undermined the constitutionality of the VRA? Second, does the failure to discuss Reconstruction and the Reconstruction Amendments undermine the Court’s decision in Shelby County? And third, we ask how should we understand the utility of federalism in the context of race and voting. We suggest that if one purpose of federalism is that it enables minorities to engage in self-rule, we should ask whether federalism enables racial minorities to engage in self-rule.

Voting Rights at 50

Source: Samuel Issacharoff, New York University School of Law, Public Law Research Paper No. 15-26, July 23, 2015

From the abstract:
The fiftieth anniversary of the Voting Rights Act comes at a difficult juncture. The Supreme Court’s decision in Shelby County dismantled the core preclearance provisions of what had been the most successful civil rights law in American history. At the same time, the right to cast a ballot free of unnecessary legal encumbrances is more contested than it has been in generations. Yet, the story is more complex. The landscape of voter discrimination today bears little resemblance to the formalized Jim Crow barriers to the black franchise. Even before Shelby County, the Voting Rights Act struggled to keep up with the new voting challenges, which have evolved from exclusively Southern obstacles defined by race to nationwide electoral modifications with at best limited evidence of direct racial motivation. The narrow geographic confines of Section 5 of the Voting Rights Act were largely supplanted by other legal protections of the right to vote, well before Shelby County.

This Article turns to other legal tools that have been invoked since 1965 to address voting claims outside the purview of Section 5. The claim is that more generalized protection of the franchise can better respond to the more fact-laden challenges presented by more contemporary voting rights claims. The Article draws on personal experiences with four voting cases that rely on tools ranging from Section 2 of the Voting Rights Act to the Constitution to the common law to address claims that fall outside the domain of Section 5. These cases illustrate the way in which a more general framework for voting rights protection can be used to tackle electoral schemes that were neither subject to Section 5’s technical scrutiny, nor were Southern, racially specific, or even institutional in nature.

Red Rural, Blue Rural: Rural Does Not Always Equal Republican

Source: Dante J. Scala, Kenneth M. Johnson, University of New Hampshire, Carsey School of Public Policy, National Fact Sheet #30, Summer 2015

From the summary:
Political commentators routinely treat rural America as an undifferentiated bastion of strength for Republicans. In fact, rural America is a deceptively simple term describing a diverse collection of places encompassing nearly 75 percent of the U.S. land area and 50 million people. Voting trends in this vast area are far from monolithic. Republican presidential candidates have generally done well in rural America, but there are important enclaves of Democratic strength there as well. In “battleground” states, these rural differences may have a significant impact on tightly contested elections. …

Key Findings:
– Rural America is not the undifferentiated Republican bastion depicted by commentators.
– Republican presidential candidates do best in rural counties dominated by farming.
– Democratic presidential candidates do well in rural counties dominated by recreation.
– In “battleground” states, these rural differences may impact tightly contested elections. ….


Political Campaigns Comb Data, But What is it Worth?

Source: Mike Cummings – Yale University, Futurity, August 19, 2015

… In a new book, Hacking the Electorate: How Campaigns Perceive Voters, Eitan D. Hersh, assistant professor of political science at Yale University, examines how political campaigns use data to target voters. Hersh argues that a core set of public records provides campaigns most of what they know about voters and that variations in open records laws across the country cause campaigns to perceive voters differently in different places. He discussed his theory with Yale University writer Mike Cummings….

The Color of Money: Early Presidential Fundraising Shows White, Wealthy Donor Base

Source: Every Voice Center, 2015

From the blog post:
Most presidential candidates—save Donald Trump, maybe—spent their campaign rollouts telling voters they understand the plight of everyday people, because they are everyday people too. They grew up in small towns, their parents had to work hard to make a life for their kids, and they themselves faced their own struggles before entering politics. Since those rollouts, though, as they race around the country picking up cash like they’re on a giant Monopoly board, they’ve been spending a lot of time with people who are decidedly not everyday people: wealthy political donors. In the age of super PACs, a lot of attention has focused on the mega-donors writing seven-figure checks. Also important, though, are the people who write checks for as much as $2700 directly to candidates. They get face time with candidates at fundraisers, and they get special attention from campaign staff. They may not get big headlines, but they are essential to winning the most powerful office in the world. And they are just as elite as million-dollar donors. Whether writing big checks to super PACs or candidates, generous donors dominate elections, and they usually live in the nation’s wealthiest and least diverse neighborhoods. Every Voice Center analyzed July fundraising reports filed with the Federal Election Commission by the candidate committees and affiliated super PACs of the 10 presidential candidates currently leading the money race, based on their current reporting. From top raiser Jeb Bush to tenth place Ben Carson, we analyzed large contributions from individual donors giving more than $200, which are itemized in FEC reports. For donors giving directly to candidates in particular, we cross-referenced U.S. Census data to learn more about them, using 33,120 zip code tabulation areas (which we call zip codes or neighborhoods in this analysis). Highlights of our analysis include the following, beginning with the “traditional” candidate committee filings: Half of the $74 million in large individual donations raised directly by these 10 candidates came from one percent of the country’s zip codes, representing about four percent of the voting age population. Donors from the 10 zip codes that gave the most direct money to candidates amassed $4.6 million in donations. That’s more than all donations from more than 3,400 middle-income zip codes in the entire country, or more than funds from a thousand racially diverse zip codes. The typical income level for the top 10 direct giving zip codes ($110,000) is twice the national average, and home values are five times higher on average ($890,000). Donors from the Upper East and Upper West sides of Central Park gave more to presidential candidates than all 1,200 majority African-American zip codes in the country. They also gave more than all 1,300 majority Hispanic or Latino zip codes in the country. Turning to the super PACs, it takes only one mega-donor giving more than $1.3 million to surpass the candidate donations from all majority black areas in the country. There were 19 such donors in our analysis. However, in New York City’s 2013 elections where small dollars are matched with public funding, donors from just 30 majority black zip codes in the city gave $2.1 million, more than presidential candidates raised from all majority black areas this past quarter.

Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists

Source: Richard L. Hasen, University of California – Irvine School of Law, UC Irvine School of Law Research Paper No. 2015-70, August 4, 2015

From the abstract:
The first decade of election law cases at the Supreme Court under the leadership of Chief Justice Roberts brought election law down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain federal permission before making a change in voting rules by proving that the change would not make minority voters worse off. In its wake, previously-covered jurisdictions have adopted a number of election changes which no doubt have made minority voters worse off. In Crawford v. Marion County Election Board the Court gave the green light for state voter identification laws, despite a lack of evidence that such laws are necessary to deter fraud or instill voter confidence. Republican states have increasingly tightened voting rules in Crawford’s wake. Finally, the Court will soon consider whether to place new restrictions on application of the one person, one vote rule which would hurt Latino representation and strengthen rural and Republican power. The Court took the case, Evenwel v. Abbott, despite having apparently resolved the legal question it presents in 1966.

Nonetheless, the Roberts Court, while dominated by a majority of five conservative Justices, has not gone as far right as it could have or as some, including I, had predicted. In the campaign finance arena, the Court has thus far refused to take cases to strike down the ban on direct corporate contributions to candidates, or to reopen the ability of political parties to take large “soft money” contributions. It has not eliminated individual contribution limits, even as Super PACs and other campaign groups undermine them. In the voting rights arena, the Court so far has declined cases which would further limit the scope of, or find unconstitutional, Section 2 of the Voting Rights Act, a key remaining protection for minority voters, and it has revived the racial gerrymandering cause of action in a way which can help minority plaintiffs fight Republican gerrymanders. Most recently, the Court surprisingly rejected the opportunity to use the Elections Clause to kill independent commission-based congressional redistricting and other electoral reforms, and it upheld against First Amendment challenge a rule barring judicial candidates from personally soliciting campaign contributions.

In this Essay I describe the path of election law jurisprudence in the Roberts Court and then consider two questions. First, what explains why the Court, while shifting in a strongly conservative direction, has not moved more extremely to the right? Second, what options has the Court left for election reformers who are unhappy with the strongly conservative, although not maximally conservative, status quo?

On the first question, a combination of factors appears to explain the trajectory and speed of the Roberts Court’s election law decisions. The Roberts Court is fundamentally conservative, but for jurisprudential, temperamental, or strategic reasons Justices holding the balance of power appear to prefer incrementalism to radical change. Mandatory appellate jurisdiction appears the best way to force the Roberts’ Court’s hand, and it often but not always leads to a conservative result. Nearly half of the Roberts Court’s election cases came on mandatory jurisdiction. Progressives meanwhile have limited the number of cases they present for Court review to avoid adverse precedent. Finally, the five conservative Justices are not monolithic in their views and are capable of surprise, as evidenced by the recent Arizona redistricting decision, in which Justice Kennedy joined with the Court’s liberals, and the recent judicial elections case, in which Chief Justice Roberts joined with the Court’s liberals.

On the second question, the Court has left very limited space for reform in certain areas, such as campaign finance. Where the Court has greatly constrained choice, only minor improvements are possible absent a change in the Supreme Court’s personnel. In these areas, the problem is not that reformers have a “romanticized” vision of democracy; it is that the structural impediments erected by the Court have hobbled meaningful reform efforts. In contrast, in areas in which the Court has mostly left room for decentralized election law approaches, such as in the arena election administration, election fights are becoming both legal and political. Polarization and decentralization have led to the emergence of “red state election law” and “blue state election law,” with voting restrictions increasingly enacted in many Republican-leaning states but not Democratic-leaning states or states with mixed control.

Part I briefly describes the path of election law in the Roberts era across key election law areas including campaign finance, voting rights, and election administration. Part II explains why the Roberts Court is deeply conservative but not consistently maximalist. Part III considers the space for election reform in the Roberts Court era and beyond.

The Voting Rights Act, Changing Laws And 2016

Source: Diane Rehm Show, August 13, 2015

Two years ago, the Supreme Court overturned Section Five of the Voting Rights Act. The result was that certain states with a history of racial discrimination no longer had to get pre-clearance before making voting changes. The consequences in some states was immediate. Texas passed a photo ID requirement, and in North Carolina, a number of voter restrictions were also approved. The courts have taken up cases in both states, leading to many questions about how much power the Voting Rights Act still has. We look at new voting laws, court challenges and a call from President Barack Obama to fully restore the legislation.

• Spencer Overton professor, George Washington University Law School; president, Joint Center for Political and Economic Studies; author, “Stealing Democracy: The New Politics of Voter Suppression
• Bruce Fein principal, Bruce Fein & Associates; author, “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy
• Jim Rutenberg chief political correspondent, The New York Times Magazine
Nine Years Ago, Republicans Favored Voting Rights. What Happened?
Source: Jim Rutenberg, New York Times Magazine, August 12, 2015

Voting Laws Roundup 2015
Source: Brennan Center for Justice at NYU School of Law, June 3, 2015

The Texas Voter Photo ID Law and the 2014 Election: A Study of Texas’ Congressional District 23

Source: University of Houston Hobby Center for Public Policy and Rice University’s Baker Institute for Public Policy, August 2015

From the University of Houston press release:
This week marks the 50th anniversary of the Voting Rights Act. This week also marks a watershed ruling by a federal appeals court striking down the controversial Texas voter ID law as violating that landmark civil rights act.

A new study conducted by the University of Houston Hobby Center for Public Policy and Rice University’s Baker Institute for Public Policy examines the impact of the contested Texas law in U.S. Congressional District 23 (CD-23).

The study suggests that the most significant impact of the Texas voter photo ID law on voter participation in one particular district was to discourage turnout among registered voters who mistakenly believed they did not possess the correct photo identification.

“One of the most striking findings of this study is that potential voters who did not vote actually did possess one of the valid forms of photo ID,” said Jim Granato, professor and director of the Hobby Center for Public Policy. “An important issue to be explored is not just the voter photo ID law itself, but the actual education and outreach efforts to ensure all eligible voters understand what form of photo ID may be used to vote.”

Spanning a large geographic area in west and south Texas, CD-23 is a Latino majority district with Hispanics accounting for 65.8 percent of the district’s voting-age population and 58.5 percent of its registered voters. It is also widely considered to be the only one of the state’s 36 U.S. House districts that is competitive for both Democratic and Republican Party candidates. A telephone survey of 400 registered voters who did not vote in CD-23’s November 2014 election was conducted in English and Spanish by the Hobby Center for Public Policy’s Survey Research Institute.

The 5.8 percent of the CD-23 non-voters stated the principle reason they did not vote was because they did not possess any of the seven forms of photo identification required by the state. More than twice that many (12.8 percent) agreed their lack of any one of the seven photo IDs was a reason they did not vote. However, when further queried about the different forms of photo identification in their possession, the survey revealed that a much lower proportion (2.7 percent), in fact, lacked one of the seven needed to vote in person.

The study also found Latino non-voters were significantly more likely than Anglo non-voters to strongly agree or agree that a lack of photo ID was a reason they did not cast a ballot in the Nov. 4 contest.