Election reform is one of the most important issues facing our country and our world right now, even if it doesn’t get the coverage of torture or abortion. The way that we run our elections and initiative processes determines who makes policy, the type of policy made, and the tone of our political discourse. If we ignore it or take advantage of the electoral system, we our doing ourselves and our republic a disservice.
This week: The results to last week’s poll, a lawsuit to ban electronic voting, “The Myth of Voter Choice in a Two-Party Tyranny,” online voting in Honolulu, the Progressive Party makes progress, photo ID laws, Sotomayor’s election law history, the disappearance of secretaries of state, and more.
But first, I want to say something about Prop 8 and the recent court ruling. It is outrageous that gay people in California now do not have equal rights, but the court ruling was more on how the initiative process works, and how Prop 8 fits into the state constitution than it was about gay rights. There has been a lot of oversimplification of the issues of the court ruling and the initiative process, so I’d like to dispel some of that (as much as an amateur election reform activist can…). Please follow me below the fold.
Crossposted at Dailykos.com, Opednews.com, and Congressmatters.com
First, there is the court ruling. Adam B of Daily Kos has a good analysis of it here and Rick Hasen has a good one here. Seneca Doane of Daily Kos wrote about the narrow scope of this decision. I don’t think much of it is objectionable legally, because the justices were upholding their states laws, if I understand correctly. However, I’m not sure how I feel about the state supreme court ruling that an initiative can legally abridge peoples’ rights (for my source, read the link to Rick Hasen’s analysis).
That brings me to my next subject – the initiative process and the laws of California. Both need to be changed. First, the state law. I believe that if there are rights in the California state constitution’s Declaration of Rights that are declared “inalienable,” the should truly be inalienable. Apparently, the state supreme court disagrees, but that is honestly beyond my understanding.
More importantly, I believe that the initiative process needs some serious reform in California and nationwide. I have recently had two diaries about initiative reform in California – the one about Prop 8 from yesterday (that you can still rec until about 9 PM!) is here and the one about Bill Maher and improving the initiative process is here. What they say holds true:
Ballot initiatives…are a great tool in government. They really do give the people a voice – and what that actually means is that citizens can address a problem if the legislature doesn’t. For example, in 2008 the penalties for carrying marijuana were lessened in both Michigan and Massachusetts by ballot initiative. And it’s not like Michigan is some kind of liberal haven.
From what I’ve seen, the problem in California (and most other places with ballot initiatives) is that the implementation of the process is not as good as it should be. It’s just like representative government. Congress has given us or allowed such things as the war in Iraq, torture, the Patriot Act, the Vietnam War, segregation, slavery, and a genocide against natives, amongst other things. But with representative government we know not to throw the baby out with the bathwater. We know that what is needed is reform.
If you don’t understand what I am saying, consider this – Prop 8 was a constitutional amendment. It passed with only about 52.3 percent of the vote. Voter turnout for the initiative was about 79.4 percent. Since 52.3 percent of 79.4 percent is about 41.5 percent, that means that only 41.5 percent of California voters approved this amendment to their state constitution.
Let me say that again – 8.5 percentage points less than a majority of registered voters passed Prop 8, a constitutional amendmnet.
In those diaries I went on to call for significant reforms of the initiative process, and that is exactly what I still think is needed. For a good model, look at the proposed National Initiative for Democracy (aka NI4D), an effort to get a very reformed ballot initiative process on the national level:
NI4D is modeled on direct initiative as practiced in many states, but also introduces three key reforms: (a) NI4D outlaws corporate contributions to campaigns for or against an initiative, reversing the Supreme Court decision in First National Bank of Boston v. Bellotti (1978). (b) In existing direct initiative procedures, initiative language is finalized prior to signature collection. There is no informed deliberation, no consensus-building, and no compromise. To address this procedural weakness, NI4D incorporates a public hearing and deliberative committee (a.k.a. citizen jury). The committee has the power to rewrite the initiative, incorporating feedback from all stakeholders. (c) NI4D includes an option to qualify initiative proposals by polling. In large jurisdictions, polling is less expensive and more accurate than signature collection.
For the specific case of California, I would also advocate for something along these lines:
1. Do something about paid signature gatherers and per-signature paychecks, who are often paid by huge organizations to collect signatures, and sometimes make the initiative process less voter-oriented. I’m not sure that banning them outright is the solution, because there are a lot of legitimate signature gatherers out there. I think a better solution would be to expand the amount of time Californians have to collect signatures. It is currently only 150 days to collect about 700,000 signatures for a constitutional amendment and 430,000 for a law. Only some kind of huge organization can manage that, and it kind of takes some of the power away from the voters.
2. As I advocated in my Prop 8 diary, there should be stricter rules for how to amend the state constitution. Currently, the only difference between amending the constitution and changing a normal law is a few hundred thousand signatures. There are many different options about how to do this, including two separate elections (like they do in Nevada) or requiring a majority of registered voters rather than a majority of voters who turnout or some other method.
3. Make the initiative process more accessible to everyday citizens. If a law were easier to qualify for the ballot than it currently is (it needs over 430,000 valid signatures collected in 150 days), citizens might be more directly involved in the process, and there would be less monied interests, like the Mormon church, controlling the initiative process. This goes hand-in-hand with citizen deliberative committees and expanding the initiative process to other states and nationwide.
4. A word limit. The National Initiative for Democracy proposes a 5,000 word limit for initiatives, for instance. It keeps initiatives simple and understandable.
Those are my thoughts, based on a year or so of reading and discussion and today’s decision. What are yours?
And now, onto the news…
Sotomayor Has Very Good Record in Election Law – Richard Winger of Ballot Access News gives a good review of potential Supreme Court Justice Sotomayor’s election law opinions:
Judge Sotomayor was the first federal judge to rule favorably in a constitutional case involving write-in voting, after the 1992 U.S. Supreme Court decision that ruled against write-ins. Irving Gelb, a candidate for Bronx Borough President in 1995, was removed from the Democratic primary ballot, and thus became a write-in candidate. However, he discovered that New York city was not printing write-in space on absentee ballots, nor on sample ballots, nor was it obeying a state law that required pencils to be in the voting booth. He was a taxi driver, not an attorney, but he filed a pro se lawsuit in U.S. District Court, and drew Sotomayor.
Sotomayor’s decision in Gelb v Board of Elections in the City of New York is reported at 888 F.Supp. 509 (March 24, 1995). She refused to dismiss Gelb’s case. She noted on page 517 that the U.S. Supreme Court decision in Burdick v Takushi (which said that Hawaii was not required to provide write-in space) did not foreclose victory for Gelb. She wrote, “Burdick v Takushi reaffirmed the principle that states cannot structure elections in a manner that favors candidates of established parties.”
Although Gelb did not ultimately get any relief in this particular case, since the ultimate decision in this case was that the Board of Elections in the 1995 primary was not likely to continue to injure write-in candidates, in several later cases, Gelb prevailed. His lawsuits forced the city to begin printing write-in space on all primary ballots in which there are at least two candidates printed on the ballot in the same race, and he forced the city to put write-in directions on ballots, and to put write-in space on absentee ballots.
Sotomayor also ruled in favor of ballot access, in Lopez Torres v New York State Board of Elections, a case that involved difficult procedures for getting on a primary ballot for Delegates to Judicial Nominating Conventions. And she ruled favorably for voting rights in general in her dissent in Hayden v Pataki, 449 F 3d 305. The issue was whether the federal Voting Rights Act protects racial minorities in the area of the law concerning felon and ex-felon disenfranchisement.
Minnesota Legislature Passes Bill Moving Primary from September to August – The Minnesota legislature has passed a bill that moves the primary of ballot qualified parties from September to August, and moves the petition deadlines for independents and minor parties back one month as well. Ballot Access News.
UPDATE: As of Saturday, this bill was vetoed by Tim Pawlenty and that’s the end of it. Ballot Access News.
Illinois Bill, Restricting Nominations of Qualified Parties, Passes Senate – From Ballot Access News:
On May 15, the Illinois Senate unanimously passed HB 723, which requires qualified parties that nominate after the primary (by party committee) to submit a petition of approximately one-half of 1% of the last vote cast for that party in the last general election, for each nominee. The bill needs to go back to the House for another vote, since the Senate version differs from the House version. The House version was worse; it required petitions of 5% of the last vote cast.
Federal Lawsuit to Ban All Electrionic Voting – Facing Jury Trial (by Daily Kos user innereye) – The We The People Foundation has filed a lawsuit in the state of New York that, if successful, would apparently outlaw most or all electronic voting machines. The basis for the lawsuit is that the machines are too secretive in the way they count votes. And finally, innereye included a call to action:
We Need Expert Witnesses, Research & Legal Assistance
Now the hard part begins. Bob Schulz and John Liggett, are the lone remaining plaintiffs and are both representing themselves in a pro per capacity before the court (i.e., without attorneys).
Despite decades of hundreds of complex legal confrontations against experienced professional government attorneys battled in courts across numerous states including New York and the District of Columbia, proceeding all the way up to the steps of the U.S. Supreme Court, WTP Chairman Bob Schulz readily admits to only limited trial experience and virtually no experience with the particulars of conducting discovery or executing an actual trial, much less one of profound national significance such as the NCEL case.
Additionally, Schulz and co-Plaintiff Liggett openly acknowledge their lack of detailed familiarity with the technical issues, facts, personalities and body of knowledge in the fields of vote counting machines, election law and election fraud and in no way does their capacity in these areas approach the subject matter expertise and litigation experience possessed by the many activists who have advanced the election integrity movement for so long – and which will be required to achieve Justice.
Bob and John are going to need a lot of help, from a lot of people, if they are to prevail in the NCEL lawsuit.
Soon, we will have more to say on this case. In the meantime, we would appreciate receiving the contact information of each and every person who might be willing to assist in the planning and execution of both the discovery and trial phases of the NCEL case.
Please send your lawsuit related emails (only) to NCEL [at] GiveMeLiberty.org.
innereye at Daily Kos.
Oklahoma legislature makes progress on initiative process – Some significant reforms of the initiative process have passed the Oklahoma legislature. One bill makes it easier to qualify initiatives by extending the period to gather signatures and making the paper that signatures need to be gathered on 8.5×11 paper. The other bill is an interesting one – it makes it so that initiatives can be reviewed by the public and the state Supreme Court before they even make it onto the ballot. That could be a very significant reform, in that it makes the initiative process slightly deliberative, and might eliminate some more harmful or unconstitutional ballot initiatives that would have previously made it onto the ballot. Ballot Access News.
How to elect the president: A national debate – The Sand Diego Union-Tribune has ten essays on the electoral college, reform, and the National Popular Vote plan. Read them here. Via Ballot Access News.
Louisiana Bill to Deprive Small Qualified Parties of Ability to Nominate Has May 26 Hearing – An interesting story from Ballot Access News:
The Louisiana House Committee on the House and Government Affairs holds a hearing on HB 776 on Tuesday, May 26. This is the bill that eliminates the ability of a small qualified party to nominate a candidate for Congress. Currently, all qualified parties in Louisiana nominate by primary for Congress. The bill would eliminate the primary for small qualified parties and replace it with nothing. Therefore, although members of small qualified parties could continue to run for Congress by paying the filing fee, if two members of the same party both ran for the same seat, both would appear on the general election ballot in November. The party itself would be unable to choose one of them. Thanks to Sam Gallo for this news.
Controversial voter ID bill threatens walkout at Texas Capitol – Although unlikely, Texas House Democrats are considering walking out of the Capitol and preventing the House from reaching quorum, meaning they wouldn’t even be able to vote on a bill that would require ID in order to vote. A similar event happened in 2003 over redistricting. Keye TV via Election Law Blog.
Director’s Note: Would the Last One out Please Turn out the Lights? – The Pew Center notes that a lot of secretaries of states (on a statewide level they are in charge of a lot of election issues) will be stepping down for one reason or another before 2011, when redistricting and preparations for another presidential election will be taking place. They have a call to action, as well:
I have little doubt that the women and men who will step into the shoes of our current crop of state election officials are up to the task – but it will be incumbent on all of us who follow and care about elections in the United States to ensure that they have the tools and support they need to make our states’ election systems accurate, convenient, cost-effective and secure.
Change is coming – not just in how we cast our ballots, but in the ranks of people responsible for making sure the system works. Let’s start thinking now about the consequences of that change so that we’re not surprised when January 2011 rolls around.
Theresa Amato Launches Publicity Campaign for her Book, “Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny” – If you’re looking for an interesting read, this might be it. It is based heavily upon Amato’s experiences in Ralph Nader’s 2004 campaign when Democrats tried to push Nader off the ballot using some very unethical and, in some cases like in PA where about a dozen officials were indicted, illegal methods to throw Nader off the ballot. More info at Ballot Access News.
Hawaii injunction blocks use of voting machines until rules set – A judge in Hawaii has upheld a previous ruling that the contract for electronic machines that were going to be used in the 2010 elections in Hawaii be canceled due to the failure to adopt “administrative rules.” The contract was supposedly awarded “in bad faith,” and the machines were basically not safe to use. The lawsuit was brought by a group of citizens, including one who is calling for national adoption of paper ballots. Honolulu Advertiser via Electionline.org.
Colorado Bill Signed Into Law, Discourages Paying Initiative Circulators Per Signature – From Ballot Access News:
In May 15, Colorado Governor Bill Ritter signed HB 1326 into law. It does not outlaw paying initiative petitioners per signature, but it provides that no more than 20% of any circulator’s compensation may be based on how many signatures that circulator collected.
The bill also contains a creative idea concerning out-of-state initiative circulators. The bill says that out-of-state circulators tend to immediately leave Colorado after they have finished work on any particular initiative petition. Therefore, it requires that such circulators must agree to make themselves available for an interview, if their work is challenged, although “available” includes via a telephone call. If the circulator refuses, his or her work is disqualified. However, the bill says that if the circulator had died or become incapacitated, and therefore is not available to answer questions, that circulator’s work does not get automatically disqualified.
Senate Democrats release campaign finance reform proposal – Don’t get excited, it’s the Illinois Senate. They’re proposing a $5,000 limit for contributions from individuals and a $10,000 limit for political organizations, with no limit for leadership PACs, which are politicians’ way of donating to other politicians. This is a less stringent set of restrictions than was proposed by a recent committee on the subject, but it is better than Illinois’ current anything-goes policy. The Galesburg Register-Mail.
NAACP Asks U.S. Supreme Court to Revisit Photo-ID at Polls – From Ballot Access News:
The NAACP of Georgia is asking the U.S. Supreme Court to hear its case against Georgia’s law, requiring voters at the polls to show government photo-ID in order to vote. The case in the lower courts was called Common Cause/Georgia v Billups, but now it is called NAACP v Billups, no. 08-1231. Here is the brief filed with the U.S. Supreme Court.
The U.S. Supreme Court upheld Indiana’s photo-ID law on April 28, 2008, but the Indiana case had been filed with no voter-plaintiffs who lacked the needed ID. The Court said the law was constitutional on its face but left the door open to an as-applied challenge after the law had been used. By contrast, the Georgia NAACP case has two voter-plaintiffs who lack any government photo-ID. The Court hasn’t set a conference date yet, but is expected to set one in a few days.
Ex-Fundraiser Hsu Is Guilty in Campaign-Finance Case – Political fundraiser and Ponzi schemer extraordinaire Norman Hsu faces 3 years in prison for breaking campaign finance laws with bundled donations to politicians including Hillary Clinton, Harold Ford, and Tammy Duckworth. He also faces 30 years in prison for unrelated charges. Bloomberg.
Vermont Bill Signed, Will Put Progressive Party on Apportionment Board – From Ballot Access News:
On May 12, Vermont Governor Jim Douglas signed S111. It changes the formula that determines which political parties may have a representative on the State Apportionment Board, the body that draws state legislative districts. The old law limited the Board to parties that had polled 25% for Governor in the last election. The new law includes all parties that had at least four state legislators in at least three of the preceding five legislative sessions. The change means that the Progressive Party will be included on the board. It elected six legislators in 2008, six in 2006, and six in 2004.
Although the party’s state chair ran for Governor in 2008 and placed second, his percentage was 21.8%. Also he ran as an independent, so even if he had polled as much as 25%, it wouldn’t have counted for the party, under the old law.
How Wannabe Govs Stand on State Constitution Do-Over – Calbuzz offers up a summary of how California’s gubernatorial candidates stand on a state constitutional convention. Via The Blockbuster Democracy Blog.
A vote for more votes in California – Blogger Joe Mathews, of The Blockbuster Democracy Blog, says that he thinks one solution to the governmental gridlock in California is to regularly schedule votes on initiatives or referendums, so that the schedule is less confusing to California voters (among other things). The Los Angeles Times.
Honolulu Hosts Nation’s First All-Digital Election – Honolulu has had the first election in the United States in which the only option was to vote online. It saved money and there were supposedly “few problems,” but security remains a concern, there is no paper trail, and there is the possibility of losing the secret ballot. FOX via Daily Voting News.
Rhode Island Senate Passes National Popular Vote Bill – From Ballot Access News:
On May 19, the Rhode Island Senate passed S161 by a vote of 26-9. This is the national popular vote plan bill. Last year, it passed the legislature but was vetoed by Republican Governor Donald Carcieri. Last year the vote in the Senate had been 27-10.
The five states in which the national popular vote plan has passed are Hawaii, Illinois, Maryland, New Jersey, and Washington.
Mississippi Secretary of State Will Try to Qualify an Initiative on Photo Voter-ID – Because I can rarely say as much in so few words as Richard Winger, here it is from Ballot Access News:
Mississippi’s Secretary of State, Delbert Hosemann, will try to get an initiative on the 2010 ballot to require voters at the polls to show photo-ID. Mississippi has had the initiative process since 1983, but in all those years, only one statewide initiative has ever qualified. Complicating the drive is the fact that the Mississippi Constitution requires an initiative to get a high percentage of the electorate in each of the “five” U.S. House districts. When the Constitutional provision for initiatives was written, Mississippi had 5 U.S. House districts, but now Mississippi only has 4. Hosemann’s initiative drive will gather signatures from each of the five districts that existed in the 1990’s, as though they still existed today.
Congressional Bill to Use Express Mail for Military Overseas Absentees – From Ballot Access News:
Congressman Erik Paulsen (R-Minnesota) introduced HR 2393 on May 19. It provides that absentee ballots sent to overseas members of the military should use Express Mail. Most U.S. military bases around the world receive an ordinary piece of Express Mail in four days, although there are exceptions, particularly for personnel serving in submarines and sometimes in ships, and for those on land, serving in very remote areas.
Elections director says instant runoff tallies could take weeks to count – A new instant runoff voting system in Minneapolis might leave election officials counting the votes from a recent local election for a few weeks. It is more complicated than traditional voting, especially in multi-seat districts. Voters approved IRV by referendum in 2006, and it was upheld by the state supreme court. The time spent counting is apparently no reflection on the accuracy. In Burlington, Vermont, an IRV election this year took only one night to count, but that is a much smaller city and there were no multi-seat districts. MPR via Daily Voting News.