Archives for category: Direct Democracy

in Schuette v. Coalition to Defend Affirmative Action. The opinion is available here.

Here are the relevant passages….

Cite as: 572 U. S. ___ (2014)   19
SOTOMAYOR, J., dissenting

And the costs of qualifying an amendment are significant. For example, “[t]he vast majority of petition efforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.” Segura Brief 10; see also T. Donovan, C. Mooney, & D. Smith, State and Local Politics: Institutions and Reform 96 (2012) (hereinafter Donovan) (“In many states, it is difficult to place a measure on the ballot unless professional petition firms are paid to collect some or all the signatures required for qualification”);


SOTOMAYOR, J., dissenting

In 2008, for instance, over $800 million was spent nationally on state-level initiative and referendum campaigns, nearly $300 million more than was spent in the 2006 cycle. Donovan 98. “In several states, more money [is] spent on ballot initiative campaigns than for all other races for political office combined.” Ibid.


Gronke’s full report is available here

Of particular interest to ElectionSmith readers, this paragraph on page 12:

Two recent articles on the racial impact of voting law changes in Florida, one published in the Election Law Journal (ELJ)21 and the second published in Political Research Quarterly are particularly pertinent to this report. In the first, the authors examined the impact of a new Florida law passed in 2011 that truncated the state’s early voting period and eliminated voting on the last Sunday
before Election Day. The authors reported that “Democratic, African American, Hispanic, younger, and first-time voters were disproportionately likely to vote early in 2008 . . . We expect these types of voters to be disproportionately affected by the recent changes to Florida’s voting laws.”22 The second article followed up on the initial research conducted in the ELJ article. In this second
piece, the authors examine the racial and ethnic composition of the early inperson electorate in Florida using voter registration and voter history files. They show that Black early-in person participation dropped by four percentage points as a consequence of the cutback in early voting, while White early in-person participation dropped less than a percentage point. This difference is not due to changing composition of the electorate.23


22 Michael C. Herron and Daniel A. Smith, “Souls to the Polls: Early Voting in Florida in the Shadow of House Bill 1355,” Election Law Journal 11, no. 3 (2012): 331.
23 See Michael C. Herron and Daniel A. Smith, “Race, Party, and the Consequences of Restricting Early Voting in Florida in the 2012 General Election,” Political Research Quarterly (published online Feb. 24, 2014),, at Tables 2 & 3.

Want evidence? Start here:



I didn’t have a chance to blog SCOTUS’s decision not to grant cert. in the case, NOM v. McKee, which grew out of a an investigation launched by the Maine Ethics Commission in 2009 after the National Organization for Marriage (NOM) failed to disclose its donors in its effort to defeat Question 1, which overturned marriage equality in the state.

Here’s a link to a series of discussions about the case by Rick Hasen on his ElectionLaw blog.

Back in the spring of 2010, I provided some pro-bono assistance to attorneys in the Maine Attorney General, drawing on my work on campaign finance disclosure in similar lawsuits in California, Colorado, and Florida, and my Election Law Journal article with Beth Garrett, Veiled Political Actors.



Well, I had completely forgotten about this case.

The Initiative & Referendum Institute filed an initial lawsuit back in 2000, bringing a facial challenge to a 1998 ban by the US Postal Service on “soliciting signatures on petitions” on “all real property under the charge and control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1) Violators were subject to both a criminal fine and imprisonment. Id. § 232.1(p)(2).

[For the record, I sit on the “Board of Scholars” of the I&R Institute, although I have not received any communication for years from the Institute, now housed at the University of Southern California. Also, for the record, their website is terribly awkward, not to mention, outdated.]

Seemed at the time, a tad harsh. Not to mention, unconstitutional.

But lo and behold! After several iterations by the US Postal Service modifying its rule — and subsequent litigation — the U.S. Court of Appeals, D.C. Circuit, upheld the most recent (2010) Postal Service regulation that allows petition gatherers to solicit signatures while standing on interior postal sidewalks, but the physical act of signing a petition is not permitted on the interior sidewalk. Rather, those wishing to sign the petition must head to a designated “Grace” area to fill in the information on the petition.

But, as Judge Janice Rogers Brown, who signed the majority opinion but wrote separately in a Concurring Opinion, stated:

“…this half-a-loaf solution seems more persnickety than practical. The harms about which the Postal Service is concerned—the impeding of traffic and the appearance of
Postal Service endorsement, Majority Op. at 11–12—and, indeed, all of the harms I can imagine, accrue in the initial, permitted phase of a signature-gathering encounter: the

Look for this decision to be appealed to the Supreme Court of the United States.

Of course, you wouldn’t know that reading the completely misleading headline in the “AP NewsBreak” story rushed to publication by the Washington Post and numerous other outlets.

The real headline should be, “Florida Secretary of State Admits Identifying “Potential Noncitizens with ‘Outdated’ Data.”

The pending agreement with the Department of Homeland Security is hardly a “victory” for the GOP, as the Washington Post’s headline screams.

It is true that the Department of Homeland Security reached a pending agreement with the Florida Department of State to allow the Division of Elections to access the federal SAVE database — Systematic Alien Verification for Entitlements — so as to more accurately identify “potential noncitizens” who might be incorrectly registered to vote in Florida. (Lord knows, the Florida Secretary of State needs help in its endeavors, as I’ve recently documented elsewhere, extensively.

It is important to disassemble the AP’s misleading story regarding the Florida Secretary of State’s “victory.”

First, the pending agreement with Homeland Security prohibits the state of Florida from using only the name and birth date of registered voters when requesting SAVE data to verify whether registered voters are noncitizens. Second, the Division of Elections may only access the SAVE database if it provides a “unique identifier” — such as an “alien number” or a certificate number on a Certificate of Naturalization or Certificate of Citizenship — for those who it suspects may be ineligible to be registered to vote.  But the Secretary of State does not (rightly) collect such information on voter registration forms, and the driver’s license records that the Florida Department of Highway Safety and Motor Vehicles has provided to the Division of Elections are often inaccurate or outdated, leading to numerous false-positives when they are matched with the voter rolls.

In other words, if Florida Supervisors of Elections end up purging voters from the rolls using inaccurate or outdated information provided to them by the Division of Elections, they risk disenfranchising citizens, stripping them of their right to vote.

So, it is quite questionable how newly acquired access to the federal SAVE database will help ferret out “potential noncitizens,” as most citizens on the Florida voter rolls do not have a “unique identifier” that is included in the federal database.

What is not questionable from the pending agreement is that the Florida Secretary of State has admitted that it has been identifying “potential noncitizens” using ‘outdated’ information.

As Secretary of State Ken Detzner stated in a Letter to Supervisors Regarding SAVE sent to the 67 Supervisors of Elections on Saturday, July 14:

The process to identify potential non-citizens will include a carefully calibrated matching process between the Florida Voter Registration System and the driver’s license records of the Florida Department of Highway Safety and Motor Vehicles before any records are verified through SAVE. The existing file of potentially ineligible voters which was created months ago, is now outdated and will not be used as the basis for further action by the Department of State. It should be considered obsolete. (Emphasis in red, mine.)

One would hope that those individuals who are citizens and legally registered, and who were either incorrectly identified as “potential noncitizens” by the Florida Secretary of State, or worse, wrongly purged from the rolls by the Supervisors of Elections in early June because of the use of ‘outdated” or “obsolete” data, will be reinstated.

Clearly, any matching process between datafiles that are created for vastly different purposes may lead to wrongful ‘convictions,’ depriving individuals of the civil rights.

It remains to be seen whether, and how, the Florida Division of Elections will conduct a matching process with the federal SAVE database.  For the sake of the rights of all Floridians, let’s hope it is done more carefully and more transparently than the state’s feeble effort earlier this year.

In Illinois.

Attorney Dan Johnson on his blog, Progressive Advocacy, writes:

On July 6, Governor Pat Quinn signed into law SB 3722 (passed with exclusively Democratic votes) that contains two innovative and exciting provisions that will lead to more citizens voting this November. The first extends the period of time when citizens can register to vote and update their address until the Saturday before the election….I suspect more than 25,000 will be able to vote — who otherwise would have been turned away from their ballots because of government-imposed administrative deadlines — in November of 2012.

The second provision of the new law requires election authorities to offer early voting on the college campuses of the major public universities in the state. This requirement will ensure that college students (who often don’t have a car) won’t have to make their way to the obscure office of the county clerk off-campus in order to cast an early ballot, but instead will be able to go to a high-traffic area and cast their ballot during the few weeks before the election when early voting is offered.

Things couldn’t be more different in Florida. In May 2011, when they passed HB 1355, Republican lawmakers cracked down on voter registration drives, cut the days of early voting (and still prohibit it on college campuses), and made it more difficult for students and other transient populations to change their address and cast a regular ballot. And these actions preceded and were independent of Governor Scott asking his Secretary of State to strip eligible citizens of their voting rights through his bogus, systematic purge of the voter rolls.

While Illinois stands as a model for other states that want to expand the franchise, Florida returns to the days of Jim Crow, erecting barriers to prevent citizens from participating in the political process.

A good place to start is my 2005 Election Law Journal article, Veiled Political Actors, with Beth Garrett, and my 2010 Direct Democracy Scholars amicus brief in Doe v. Reed, which look at disclosure laws (and loopholes) in ballot issue campaigns.

I’ve written about disclosure in ballot issue campaigns elsewhere on these pages, and I think Justice Scalia articulated the necessity of transparency in a democracy his concurring opinion in Doe v. Reed, when he wrote:

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.

So, to think corporations will be cowed into submission, or be endangered by the “palpable” threat of “retaliation” and “reprisals,”in either ballot issue or candidate campaigns, as some critics of disclosure–such as former Federal Election Commission Chairman Bradley Smith now argue–I would only refer readers to Chairman Smith’s own writings. In his 2001 book, Unfree Speech, Smith grudgingly accepts a regulatory scheme grounded in disclosure. On p. 224 he admits:

Thus, there may be modest benefits to be had from a system that provides voters with information on the sources of campaign funds, through mandatory disclosure.

Indeed, disclosure not only provides “modest benefits,” it is the essential lifeblood of any democratic republic.