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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

Top 10 Election Issues

Issue #1 Corporate and Union Political Spending.

This year’s blockbuster decision in Citizens United v. Federal Election Commission gave corporations a First Amendment right to spend money from their treasuries to support and oppose political candidates.  In this election cycle, we’ve already seen controversies surrounding Congressional efforts to require greater disclosure, and campaign spending by Target Corporation.  What impact will Citizens United have on political campaigns?  Will we see a flood of new spending from corporations and unions, and will that spending make a discernible difference to voter behavior (including turnout levels)?  Are greater disclosure rules needed at the federal or state levels?

Issue #2 The Next Round of Redistricting.

Every ten years, after the new census data come out, every state is required to redraw its congressional and legislative districts.   In most states, this year’s elections will determine who controls that process throughout the next decade – and the power to draw the lines makes a big difference in determining who gets elected to office.  In whose hands will control over redistricting lie after this year’s elections?  Should this power be taken away from elected officials and transferred to bodies more insulated from partisan politics, as California has just done, like a handful of states before it? 

Issue #3 Absentee and Early Voting.

For decades, an increasing number of voters have chosen not to vote on Election Day, but instead to cast their ballots days or even weeks beforehand – through either mail-in absentee ballots or in-person early voting.   The Minnesota U.S. Senate recount in 2008 revealed that absentee ballot problems can throw a close election into doubt.   And this year, some Florida absentee voters had their ballots mistakenly “returned to sender” because of a problem with the return envelopes.  Will more elections be decided by absentee ballots in 2010?  How many votes won’t be counted because of mistakes made by voters or election officials? Is in-person early voting a better way to go?

Issue #4 Voting Rights Act Enforcement.

Congress enacted the Voting Rights Act (“VRA”) 45 years ago, and most recently renewed and extended key provisions in 2006.   Under Section 5 of the Act, the Department of Justice has the authority to prevent new electoral procedures from going into effect if the Attorney General determines that they will have an adverse effect on racial minorities.  In 2009, the Supreme Court avoided a decision on the constitutionality of this key section of the VRA, but other cases are percolating through the system. How aggressively will the Obama Administration exercise its power to enforce the VRA?  Will the Supreme Court strike down Section 5 if the Administration goes too far?

Issue #5 State Registration Lists.

The Help America Vote Act (“HAVA”) required every state to have a statewide registration database, replacing the local lists that used to be the norm.  Meeting this requirement has proven an enormous challenge.   Among the most controversial issues has been the “matching” of voter registration information against state motor vehicle records.  Should states be more aggressive in matching and purging voters, as a way of preventing illegal voting?  Or should states be more cautious, so as to ensure that eligible voters aren’t wrongly kept off the lists? Will litigation over registration practices be prevalent, and will such lawsuits be instrumental in determining winners and losers?

Issue #6 Provisional Ballots.

Could the issue of 2004 turn out to be the issue of 2010?   HAVA required that states offer provisional ballots to those who say they registered but whose names don’t appear on voting rolls.   Provisional ballots are also used for voters who don’t have proper ID or, in some states, for those who have moved.   A number of states, including Ohio, still generate large numbers of provisional ballots.  In a close election, provisional ballots can make the difference between victory and defeat.  Litigation may even ensue over whether to count them, as nearly occurred in the 2004 presidential election.   Do some states rely too heavily on provisional ballots?  Will they become an issue, and perhaps the subject of litigation, if there’s a close election? 

Issue #7 Military and Overseas Voting.

In 2009, Congress enacted the Military and Overseas Voter Empowerment Act (“MOVE”) as an amendment to the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”).  A major feature of MOVE is its requirement that all states send absentee ballots to UOCAVA voters at least 45 days before the election, unless a state has received a waiver of this requirement from the federal government.  In response to MOVE, a number of states have moved up their primary election date in hopes that they will be able to meet the 45 day deadline.  Will states generally meet this new deadline this year?  Meanwhile, nine states have sought a waiver, but not all requested waivers have been granted.  How will states that did not receive a waiver comply with MOVE?  What other issues will arise concerning the difficulties that military and overseas voters have in obtaining and casting a ballot?

Issue #8 Language Assistance and Bilingual Ballots.

The Voting Rights Act requires that certain language minorities – including Hispanic, Asian, and Native American populations – be provided with oral and written assistance if they constitute a significant portion of a voting jurisdiction.  And the Department of Justice recently reached an agreement with Cuyahoga County, Ohio, requiring the accommodation of U.S. citizens from Puerto Rico.  To what extent should states and local governments accommodate voters who aren’t proficient in English?   Will the Justice Department step in to enforce the VRA’s language assistance provisions in other parts of the country?

Issue #9 Registration at Public Assistance Offices.

The National Voter Registration Act of 1993 (“NVRA,” also known as “Motor Voter”) requires that states allow citizens to register at public assistance offices, as well as motor vehicle agencies.  With the economic downturn and increased attention to the NVRA’s requirements, some states have seen an increase in voter registration at public assistance offices.  Will the increase in public assistance rolls add new voters to the rolls?   And if so, will they turn out to vote?  

Issue #10 Partisanship and Litigation.

Since 2000, many states have witnessed a pronounced increase in lawsuits brought before Election Day, on such diverse topics as voting machines, voter ID, provisional voting, registration rules, challenges to voter eligibility, and early voting.  Some of this litigation is attributable to the fact that party-affiliated election officials run elections in most states.  At times, both Democrats and Republicans have alleged partisanship by secretaries of state affiliated with the opposing party.   Sometimes, these complaints have found their way to court, and federal courts have generally been willing to entertain these cases – if not always to grant relief.  Will we continue to see numerous lawsuits before Election Day?  Is it time to move authority for running elections away from party-affiliated officials to entities that are more insulated from politics?


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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