Archives for the month of: November, 2011

Steve Bousquet, the long-time St. Petersburg Times Tallahassee reporter, has a must read column on the 11 Republican state lawmakers who have been issued subpoenas in a federal lawsuit involving four provisions of Florida’s controversial election law, HB1355. The lawsuit deals with the question of whether the US Justice Department should “preclear” the changes for five Florida counties, as required under Section 5 of the Voting Rights Act.

According to Bosquet, “The lawmakers, most of whom supported the legislation, are ordered to produce by Dec. 14 ‘all documents’ related to the four major election law changes at issue in the case.”

The most interesting comment in the story, I think, is from Representative Jimmy Patronis, a Republican from Panama City,who chaired the House Government Operations Subcommittee, which first considered HB1355.

Patronis, who supported HB1355, admitted to Bousquet that Bay County Supervisor of Elections, Mark Andersen, had urged him not curtail the number of early voting days, saying that Andersen, “told me how much the constituents love early voting.” Of course, these also happen to be Patronis’ constituents. But Patronis obviously had broader Republican Party interests in mind–and not his own constituents’–when he curtailed convenience voting in Florida.

[Incidentally, Bousquet gets it wrong when he says HB1355 keeps the total number of early voting hours at 96. It doesn't. Under the new law, Supervisors of Elections need only offer a minimum of six hours of early voting a day over the shortened eight day early in-person voting period, for a total of 48 hours, as Politifact Florida points out].

Anyway, the subpoenas from the GOP 11 should produce some interesting reading.

One of my favorite nonprofits, National Institute on Money in State Politics, has a new report out, “Independent Spending in Florida, 2006-2010,” by Kevin McNellis.

The report finds an “increasing use of independent spending in Florida allowing both large donors and candidates to circumvent the state’s contribution and public financing limits, but poor disclosure laws inhibit analysis of the impact this spending had on the outcome of elections.”

Of course, SCOTUS’ Citizens United v. FEC decision from 2010 is not to blame, as porous disclosure laws in the Sunshine State have been in place for decades.

I’ve written a considerable amount on the topic, including this 2005 article with Beth Garrett,  “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” published in Election Law Journal, and a 2006 coauthored book chapter with Ray La Raja and Susan Orr on party financing in Florida published in the 3rd edition of The State of the Parties, “Surviving BCRA: State Party Finance in 2004.”

Ashley Lopez does a nice job summarizing the report in her column for The Florida Independent. It’s worth the read, as is the full report.

The high court has rejected (once again) efforts by gay marriage foes to block the release of signatures gathered on Referendum 71 petitions.  As I argued in my amicus brief in support of the State of Washington’s long-standing Public Disclosure Act, signatures on petitions to qualify ballot measures should be in the public domain.

The Court’s order is here. Not surprising, Justice Alito favored a stay, again putting him at odds with the other justices.

A DVD of the 138,000 individuals who signed Referendum 71 costs $15 (plus shipping costs). It can be purchased through the State Archives, which can be reached at (360) 586-1492 or research@sos.wa.gov.

I’ve coauthored this paper, forthcoming in Political Behavior, which uses signatures on ballot petitions in Arkansas and Florida to measure the effect of signing a ballot petition on voter turnout. I have another coauthored paper in the works that examines who actually signs ballot petitions.

 

The Orlando Sentinel reports.

“Florida teachers no longer are the only ones accused of violating the state’s controversial new voting laws.  According to documents released today by the Florida Department of State (see below), administration officials have opened a total of six cases against individuals suspected of running afoul of new rules that give voter groups just 48 hours to submit paperwork to the state. (The old deadline was 10 days.)”

 

The new registration rules and 48 hour deadline for third parties conducting voter registration has not received preclearance from the US Justice Department, and is being reviewed by a DC federal court.

 

After the huge defeat of the so-called “personhood” ballot initiative in Mississippi yesterday, combined with the defeats in Colorado the past midterm and general elections, there’s good reason for Democrats to be giddy about the possibility that  Personhood USA and its state affiliates might actually qualify similar extreme ballot measures in more states for the 2012 general election.

The Mississippi ballot measure would have given legal “personhood” status to undeveloped zygotes. There’s goes our 7 billion population count…

But seriously, Democrats might think about encouraging Personhood USA co-founder Keith Mason to continue to blame the defeat of Proposition 26 Planned Parenthood and other progressive pro-choice organizations and elected officials. As Mason explained to the Huffington Post:

It’s not because the people are not pro-life. It’s because Planned Parenthood put a lot of misconceptions and lies in front of folks and created a lot of confusion.

Bryan Longworth, director of Personhood Florida, helpfully elaborated:

We’re not discouraged. It shows that the arguments that are being raised by Planned Parenthood, the scare tactics, and the second-guessing of Governor Haley Barbour did play a role.

Taking a page out of the RNC’s playbook when they helped to finance Proposition 209 in California in 1996, perhaps Democrats should actually encourage the qualification of personhood initiatives in Florida, Ohio, and other battleground states that permit direct democracy. Democratic candidates will have a clear wedge issue on which to run against Republicans. Wedge issues on the ballot have worked for Republicans in California and Colorado, as I write about in this 2001 article with Caroline Tolbert, “The Initiative to Party.”  Ballot measures can also have “educative effects” that help Democratic candidates, most notably, the minimum wage issues on the ballot in six states in 2006, as we analyze in our 2010 article, “Direct Democracy, Public Opinion, and Candidate Choice.”

As a scholar of direct democracy, the more initiatives on the ballot, the more to study.

Get Petitioning, Personhood USA!

 

…in Ghana (West Africa).

For all of you Floridaphiles (or Floridaphobes), don’t worry…I’m working on a paper examining the popular support for Amendments 5 & 6 in Florida.

And for those of you interested in nonpartisan election commissions and the allocation of parliamentary seats in Africa, by all means, plow ahead.

The Re-demarcation and Reapportionment of Parliamentary Constituencies in Ghana

Introduction

In February, 2011, the Ghana Statistical Service (GSS)
released provisional results of the 2010 Population and
Housing Census. All eyes are now on Ghana’s National
Electoral Commission (EC), as it is constitutionally required
to use the new census data to determine the allocation,
demarcation, and apportionment of parliamentary
constituencies in the country. In this essay, I attempt to
address—from an admittedly Americanist standpoint1—
questions pertaining to legislative representation in Ghana.
I argue that the EC is uniquely equipped to carry out its
constitutional duty to prescribe the boundaries of the
country’s parliamentary constituencies, as mandated under
Article 47 of the 1992 Constitution. Yet, as the EC embarks
upon its re-demarcation and reapportionment duties, there
is good reason for Ghanaians of all political stripes to be
concerned. The EC’s decision in 2003 to create 30
additional parliamentary constituencies based on the
boundaries of administrative districts is fraught with unsettling
representational and political ramifications, yet it has not
received the kind of critical scrutiny it deserves.

By no means is this essay an attack on the Electoral
Commission. Since the commencement of Ghana’s 4th
Republic, on a range of contentious issues—from the
maintenance of the voters’ register and distribution of voter
registration cards, to staffing polling stations and tabulating
and announcing the final vote, to current considerations of
overseas voting and biometric ID cards—the Chairman of
the EC, Dr. Kwadwo Afari-Gyan, and the EC staff have
continually stepped up to the challenge. Of course, the EC
is not without its critics. Nevertheless, the EC is the envy of
democracy advocates throughout the sub-region and
beyond, as outsiders recognize the many institutional benefits
of having a permanent, independent, nonpartisan elections
commission overseeing the electoral process.

As a scholar whose nonpartisan interests are informed
by democratic theory and questions of representation,
my concerns with the allocation and demarcation of
parliamentary seats in Ghana today remain as ardent as
when I first broached the topic a decade ago.2 I restrict
my comments here to the EC’s immediate task of
demarcating and apportioning parliamentary seats in
Ghana. I begin with comparative insights on the
redistricting process in the American states, discussing
the partisan task of drawing single-member legislative
districts. I then discuss the EC’s decision in 2003 to
apportion 30 new parliamentary constituencies, using
existing administrative districts—rather than the
“population quota”—as its guiding principle. In doing so,
I analyze how the EC’s rationale may be exacerbating
the problem of malapportioned parliamentary seats. I
use the GSS’s preliminary Census 2010 data, as well as
administrative district data across the 10 regions, to
conduct an analysis of the current distribution of
parliamentary seats in the country. My research reveals
the unequal allocation of parliamentary seats across the
country with respect to their populations. I conclude by
discussing some of the representational and political issues
stemming from the EC’s rationale to use administrative
districts to allocate parliamentary seats.

Full essay available here

This Fox News report by Ed Henry (“State Ballot Initiatives Pose Key Tests for Obama Re-election Drive“) is one of the best I’ve read on the complex nexus of ballot measures and candidate races in off-year elections. I blogged recently about some of these off-year ballot measures here.

If you’re interested in learning more about the impact that ballot measures can have on candidate races, as well as how candidate races can sometimes affect ballot measures, and you aren’t able to enroll in my graduate seminar on the Politics of Direct Democracy for Spring 2012, feel free to check out some of these scholarly articles I’ve coauthored:

Stephanie Slade and Daniel A. Smith. 2011. “Obama to Blame? African American Surge Voters and the Ban on Same-Sex Marriage in Florida,” The Forum 9(2), Article 6.

Daniel A. Smith and Caroline J. Tolbert. 2010. “Direct Democracy, Public Opinion, and Candidate Choice,” Public Opinion Quarterly 74: 85-108.

Todd Donovan, Caroline J. Tolbert, and Daniel A. Smith. 2009. “Political Engagement, Mobilization, and Direct Democracy,” Public Opinion Quarterly 73: 98-118.

Todd Donovan, Caroline J. Tolbert, and Daniel A. Smith. 2008. “Priming Presidential Votes by Direct Democracy,” Journal of Politics 70: 1217-31.

Daniel A. Smith, Matthew DeSantis, and Jason Kassel. 2006. “Same-Sex Marriage Ballot Measures and the 2004 Presidential Election,” State and Local Government Review 38 (2): 78-91.

in Equatorial Guinea.

Now this is what “threats, harassment, and reprisals” look like when government regulations “seriously chill speech and association,” as attorney Jim Bopp and the plaintiff’s in Doe v. Reed failed to show when challenging the state of Washington’s public release of signed petitions for Referendum 71,  an effort by social conservatives to repeal the legislature’s bill granting same-sex civil union protections.

In fact, if the politically-motivated arrest of a supporter of Referendum 71 in Washington for suspicion of murder had occurred, U.S. District Court Judge Benjamin Settle likely would have supported an as-applied challenge to Washington’s Public Records Act.  But alas, as Settle noted, “… if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception instead of the rule.”

Justice Antonin Scalia wrote pointedly in his concurring opinion in Doe v. Reed why public disclosure is necessary, and how it can embolden citizens in the U.S.

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance…Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Rather than a threat to individual liberty, public disclosure is a bulwark against government oppression, as we’re seeing in Equatorial Guinea.

Last week, the U.S. District Court in Washington, DC, denied a complaint by Florida Secretary of State Kurt Browning  challenging sections of the Voting Rights Act.  The Florida Secretary of State was seeking an expedited hearing on whether HB1355, Florida’s controversial legislation overhauling voting rights and election administration in the state, complied with Section 5 of the Voting Rights Act, which requires federal preclearance for five Florida counties (Collier, Hardee, Hendry, Hillsborough, and Monroe).  Secretary of State Browning is requesting that the federal district court approve portions of the new law–specifically third party voter registration, out-of-­county address changes, petition signature verification, and early voting–rather than waiting for US Department of Justice’s preclearance.

Although on hold for the five counties awaiting US Justice Department preclearance, the Florida Division of Elections has been working with the Supervisors of Elections in the remaining 62 counties not covered by Section 5 of the VRA to implement the many new provisions under HB1355 (Chapter 2011-40) in anticipation of the January 31 Presidential Preference Primary.

However, under Florida law, the state must provide uniform standards for the proper and equitable implementation of the voter registration laws. It is the responsibility of the Florida Secretary of State, as unambiguously stated on the Florida Division of Elections website, “to ensure statewide uniformity in the interpretation of the election laws.”

But the uneven implementation of HB1355 continues, unabated.

Clearly, Florida’s dual election system is not treating all Floridians the same.  As the Brennan Center noted back in June:

  • The new voter registration regulations would be in force in some counties but not others, unfairly and unlawfully creating two separate sets of rules governing voter registration in different parts of the state.
  • Some counties would unfairly be left with a dramatically shorter early voting period than others, as the new law cuts the opportunity for early voting to fourteen days to eight
  • Floridians who moved recently would have varying difficulty voting depending on their new county of residence, as implementation of the new law would end Florida’s longstanding policy of allowing citizens who have recently moved to easily change their registration address on Election Day and vote normally at their poll site.

In denying the state’s request for an expedited hearing and decision, the federal district court’s decision to wait until May to hear oral arguments has virtually assured that the January 31 PPP will be conducted with two sets of election laws, which directly conflicts with existing Florida statutes. But of course, the blame doesn’t lie at the feet of the federal district court. It lies at the feet of the Republican-controlled legislature and the Office of the Secretary of State, who has a constituency of one: Governor Scott.

Again, the Brennan Center in a letter to Secretary Browning on behalf of several voting rights advocacy groups, nails it:

Under Florida statute § 97.012 and prior advisory opinions by the Division, the Secretary of State has a duty to ensure uniformity in the application, operation, and interpretation of the state’s election laws. Applying HB 1355’s extensive changes to the voting and voter registration process only in certain counties, but not in the five counties for which preclearance is required under the federal Voting Rights Act before implementing voting changes, clearly conflicts with this legal mandate.

We therefore request that you immediately advise all Supervisors of Elections that the provisions of H.B. 1355 are unenforceable until they can be applied uniformly in all Florida counties, as state law requires.

Of course, uneven implementation of voting and election laws also violates federal law.  In 2002, Congress passed and President Bush signed into law the Help America Vote Act of 2002 (HAVA). HAVA was Congress’s effort to clean up the mess in Florida resulting from the 2000 presidential recount.  In order for Florida and other states to receive the billions of dollars appropriated to improve the electoral process, state elections officials were required to implement numerous reforms mandated under HAVA.

Among its many provisions, HAVA requires that the states  “implement in a uniform and nondiscriminatory manner, a single, uniform, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the state level.” By most all accounts, Florida achieved by the January 1, 2006 federal deadline, with the Florida Voter Registration System (FVRS).  The implementation of HB1355 in 62 counties, but not the other 5, is clearly in violation of HAVA.

Bush v. Gore may be dead (or at least dormant), but Florida’s Dual Election System may breathe some new life into it.

November 3, 2011

Dear Attorney General Holder:

I have just written a letter to U.S. Sen. Richard Durbin of Illinois who chairs the Senate Judiciary subcommittee on the Constitution, Civil Rights and Human Rights. I have asked Sen. Durbin’s subcommittee to conduct a congressional investigation to see if Florida’s new election law is linked to the efforts to pass similar voting restrictions in 14 states so far this year.

The changes mostly involve new ID requirements, shorter early voting periods and new restrictions on third parties who sign up new voters. In Florida, the League of Women Voters considered these restrictions so egregious it abandoned its registration drives after 72 years, and teachers there are running afoul of the law for the way they sign up students to vote.

According to the first comprehensive study of the laws’ impact, just completed by The Brennan Center for Justice at New York University School of Law, these voting changes could make it significantly harder for more than five million eligible voters in numerous states to cast their ballots in 2012. Both The Washington Post and New York Times have reported such measures could keep young people and minorities away from the polls.

If the Brennan Center is correct in its assessment that five million voters could be disenfranchised, that would be more than the all the registered voters in any of 42 states in this country.

In short, indications are mounting of an effort to suppress the national vote. In Florida, the Justice Department continues reviewing how the voting law changes would affect certain voters, particularly minorities, pursuant to the Voting Rights Act. I believe more should be done.

The Justice Department should investigate whether new state voting laws resulted from collusion or an orchestrated effort to limit voter turnout. The Department needs to determine whether or not there was broad-based motivation to suppress the vote—and, if so, whether any laws were violated.

I look forward to your prompt response on this most serious of issues.

Sincerely,

 

Here’s the link to Sen. Nelson’s letter to Attorney General Holder.

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