U.S. Supreme Court Wants Quick Response in Ohio Vote-Counting Case

Posted on by April 11, 2011
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On April 9, the Hamilton County, Ohio Board of Elections asked the U.S. Supreme Court to stay the order of the 6th circuit in the lawsuit over whether certain provisional ballots should be counted, in a November 2010 partisan local judicial race. The Court has asked for a response, to be submitted by Friday, April 15, 4 p.m. The case is Hamilton County Board of Elections v Hunter, 10A989. The Hamilton County Elections Board brief is 17 pages of text, plus 60 pages in which the lower court opinions are attached. It may not load if your computer uses Firefox, but it should load if it uses Explorer.

The brief points out that the 6th circuit decision, and also the U.S. District Court decision (both of which said that the disputed ballots should be counted) both cite Bush v Gore. The brief also points out that election law professor Ned Foley wrote recently that this case is the most significant instance so far in which a lower court has depended on Bush v Gore. Bush v Gore is the famous U.S. Supreme Court decision released on the evening of December 12, 2000, which stopped the Florida presidential recount. Bush v Gore says, “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”

The lower courts in the Hamilton County case depended on that language, and ruled that because the county counted some provisional votes in which the voter was not at fault, therefore it must count all the provisional ballots at which the voter was not at fault. The U.S. Supreme Court, in over ten years since Bush v Gore was decided, has never again mentioned that decision. Thanks to Thomas Jones for pointing out this news, and thanks to Scotusblog for the link to the Hamilton County brief.

Another California Bill for Badges for Petitioners

Posted on by April 11, 2011
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California Assemblymember Richard Gordon (D-Menlo Park) has introduced AB 481, to require all individuals who circulate an initiative, referendum or recall petition to wear a badge. If the circulator is being paid, the badge must say “Paid Circulator.” If the circulator is not being paid, the circulator’s badge must say “Volunteer Signature Gatherer.” The badge must be in at least 30-point type and must be worn on the chest, and must be visible. Here is the text of the bill.

The bill has a hearing in the Assembly Elections Committee on Tuesday, April 12, probably at 1:30 p.m. The bill also requires all petitions to be printed with a statement that tells if that sheet is being circulated by a paid circulator or a volunteer circulator. This makes petitioning more expensive, because the proponents would generally need to print two different versions of their petition.

This is a remarkably thoughtless bill. The bill makes no reference to whether the petition is being circulated in public, or not. Thus, under the literal terms of the bill, no one could go to a private meeting, as a volunteer, and ask individuals at that meeting to sign the petition, unless the circulator were weaing a badge. Many volunteers only collect a few signatures on any petition. Sometimes blank petitions forms are mailed to individuals, and the enclosed letter asks the recipient to please circulate the petition among family members or neighbors and return the petition in an enclosed envelope. Under the bill, even these individuals would be breaking the law if they didn’t wear a badge.

The bill is co-sponsored by Assemblymember Ben Hueso (D-San Diego), who had his own bill for badges for circulators, AB 651. However, that bill was amended to delete the badge requirement. As originally introduced, it would have required paid circulators to wear a badge identifying the person or company who was paying them.

All Briefs Filed, Hearing Set, in Lawsuit on Whether Foreigners Living Legally in U.S. May Donate to Campaigns

Posted on by April 11, 2011
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A 3-judge U.S. District Court will hear arguments in Bluman v Federal Election Commission on May 12, at 9:30 a.m., in Washington, D.C. The judges will be Brett Kavanaugh, Richardo M. Urbina, and Rosemary M. Collyer. The issue is whether foreign nationals who are living in the United States, and who are here legally but not permanently, may donate any money to candidates for federal office. The two plaintiffs are Canadian citizens. One, Benjamin Bluman, wants to donate to Democratic candidates, including President Obama. The other, Asenath Steiman, wants to donate to a Republican candidate, U.S. Senator Tom Coburn of Oklahoma.

Federal campaign finance laws do permit non-citizens to donate if they are admitted for permanent residence, but these plaintiffs do not have that status. The case is interesting because it explores the link between free speech and making a campaign contribution. Judge Kavanaugh is a U.S. Court of Appeals Judge. The other two judges are U.S. District Court Judges. Urbina is a Clinton appointee and the other two judges are Bush Jr. appointees. The losing side in this case will almost certainly appeal to the U.S. Supreme Court. Decisions of 3-judge U.S. District Courts on the constitutionality of federal campaign finance laws cannot be ducked by the U.S. Supreme Court. The Supreme Court must either affirm the lower court’s decision or hear the case itself.

Oregon Legislative Hearing Set on Bill to Ban "Independent Party"

Posted on by April 11, 2011
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The Oregon House Rules Committee will hold a public hearing on HB 2442 on Wednesday, April13. The bill makes it illegal for any qualified party to be named the “Independent Party.” Because Oregon already has a ballot-qualified party named the Independent Party, this bill raises serious due process concerns. It would have been one thing for Oregon to have passed a law like this if there were not already such a party, but quite another to tell an existing party that it must change its name. The bill does give the Independent Party an opportunity to choose a new name for itself.

The Independent Party became ballot-qualified in 2006. It has never had a presidential nominee. The impetus for the creation of the party was that in 2005, the Oregon legislature passed a very hostile bill, making it more difficult for independent candidates to get on the ballot. The 2005 bill said that primary voters could not sign an independent candidate’s petition. People who are protective of the right of independent candidates to get on the ballot then created the Independent Party, as a vehicle to help persons who might otherwise have desired to be independent candidates. The 2005 bill did not make it more difficult for new parties to get on the ballot. Fortunately, in 2009, the Oregon legislature repealed the 2005 bill.

In all U.S. history, no state has ever passed a law, telling a party that was already ballot-qualified that it had to change its name. The closest instance was in New York. After the American Labor Party had ceased to be ballot-qualified in November 1954, the legislature passed a law saying no party could have “American” in its name, but at least the New York legislature did wait until after the party was off the ballot. The New York law is still on the books, but is probably unconstitutional.