Sunday, October 21, 2012

Four Ways Ohio and Others Have Toughened Voting Rules

by Suevon Lee, ProPublica

Voter ID laws have received plenty of attention recently, but they're not the only controversial changes to election rules this year. Some states have made changes that critics say could impact individuals' ability to vote. Here are four.

Ohio won't count provisional ballots mistakenly cast in the wrong precinct.
Four years ago in Ohio, there were 200,000 provisional ballots cast among a total 5.7 million votes. This was the most among any state other than California. (Federal law requires states to use provisional ballots when a voter's eligibility is in question or if their registration doesn't reflect a new name or address.)
But Ohio requires county election boards to reject provisional ballots if the ballot doesn't correspond to the voter's assigned precinct — even if it was the poll worker's mistake. (A few other states have similar rules, but Ohio is fighting a lawsuit right now to preserve its approach.)
Such errors are bound to happen since 80 percent of Ohio's polling stations cover multiple precincts. In 2008, Ohio elections officials discarded 14,000 provisional ballots for this very reason. That number accounted for one-third of the total rejected provisional ballots that year.
In June, a group of labor organizations and advocacy groups sued Ohio to block enforcement of this requirement, arguing it could disenfranchise thousands of voters.
Ohio officials have argued the law is justified by the state's interest in "running elections fairly and efficiently."
"The argument is sometimes made that if states are required to count these ballots, more people would deliberately go and vote in the wrong precinct," said Wendy R. Weiser, director of the Democracy Program at the Brennan Center for Justice.
During oral arguments before a federal judge earlier this year, a lawyer for Ohio hinted at such a scenario when he challenged the strength of the plaintiffs' evidence. "Something else is going on that may not be poll-worker error," he said, as noted in a footnote to the judge's ruling.
In August, a federal judge ruled against Ohio's approach. The state's interest in fair and efficient elections, wrote U.S. District Judge Algenon Marbley for the Southern District of Ohio, "falls short of what is required to justify its inevitable disenfranchisement of thousands of qualified voters in the November 2012 election."
Ohio has appealed the decision, arguing that the rule helps with "counting only valid, legal ballots, in running a smooth election, and in minimizing post-election litigation." Allowing such provisional ballots to count, the state further argued, would make it "more difficult for elections officials to monitor and keep up with the voting process."
The Sixth Circuit Court of Appeals, which heard arguments in the case in early October, upheld the lower court's decision, concluding that the prohibition would "disqualify thousands of right-place/wrong-precinct provisional ballots, where the voter's only mistake was relying on the poll-worker's precinct guidance."
As of October 18, the Ohio Attorney General's Office told ProPublica it had not yet decided whether to appeal the ruling to the U.S. Supreme Court.
Ohio tried to shorten its early voting period — until a federal court ruled otherwise.
Ohio used to permit in-person early voting for registered voters in the three days prior to Election Day. (More than 30 other states have similar early voting options, mostly for those who can't make it on Election Day.) But last year, the Ohio General Assembly limited the window. Early voting, which began Oct. 2, was scheduled to end 6 p.m. the Friday before Election Day. (Members of the military and overseas voters were exempt from the narrowed time frame.)
Democrats have been proponents of early voting: An estimated 93,000 Ohioans voted early in 2008. A subsequent University of Akron study concluded that early voters were "more likely to be strong Democrats than election-day voters" — including women, older voters and lower-income individuals.
In defending the law, Ohio elections officials argued that administering early voting the weekend before Election Day for all registered voters would interfere with counties' Election Day preparation, and that military voters have a unique need for being exempt.
In July, Obama for America, the Democratic National Committee and the Ohio Democratic Party asked a federal court to block the new rule, arguing that "tens of thousands of citizens who would have otherwise exercised their right to vote during this time period, including Plaintiffs' members and supporters, may not be able to participate in future elections at all."
In August, U.S. District Judge Peter C. Economus in Ohio agreed to block the law, writing that creating two separate early voting deadlines would place more value on one person's vote over another's. On Friday, the U.S. Court of Appeals for the Sixth Circuit affirmed this decision. County elections officials, as in 2008, will still have discretion over whether to open up early voting to all.
Ohio Secretary of State Jon Husted appealed the decision to the U.S. Supreme Court. On October 16, the justices declined to take up the appeal, prompting Husted to issue an early voting directive to the state's county boards of elections. As the Nation reports, the order provides for a much narrower early voting window than what Ohio's largest counties offered in 2008.
Iowa has hired a criminal agent to investigate voter fraud allegations.
In July, the Associated Press reported that Iowa signed a two-year $280,000 contract with an investigator from the state Division of Criminal Investigation to handle suspected cases of voter fraud. The agent's duties, according to the AP, are "subpoenaing voting records, checking their citizenship status, and interviewing suspects as he builds cases."
Iowa's Secretary of State Matt Schultz has identified more than 1,000 names of potential non-citizens to investigate. (Schultz has not responded to requests for comment.)
The first few cases haven't exactly revealed massive fraud: Two Canadian citizens arrested and charged with felony election misconduct for voting in 2010 and 2011 said they mistakenly believed they could vote in non-presidential elections as legal residents. A third person arrested was a Mexico native whose U.S. citizenship was challenged by the state.
As we've noted before, studies show that voter fraud is actually quite rare.
Other measures taken by Schultz's office — such as allowing anonymous voter fraud online complaints and pursuing non-citizen purging — has prompted legal action from the ACLU.
Texas has notified (living) voters that they are "potentially deceased."
Last year, the Texas Legislature passed a bill to ensure dead people were kept off its voter rolls. States have long been required to maintain clean voter rolls, so such updating isn't new.
But Texas went further, giving the secretary of state authority to conduct voter roll purges using relatively loose criteria like shared names and birthdate.
The result is that live voters have received notice that if they don't respond within 30 days, they're assumed dead and will be removed from the voter rolls.
The state's largest voting district, Harris County, has sent such letters to about 4,000 "potentially deceased" voters.
"Several hundred responded that said, 'Yeah, I'm still alive,'" said Fred King, communications manager for the Harris County Voter Registrar and Tax Office.
Election experts say that's not surprising. "The problem is that there is a much higher incidence of sharing names and birth dates than people realize," said David Becker, director of election initiatives at the Pew Center on the States.
After a lawsuit from four quite live voters, Texas agreed last week to roll back the purge. "Potentially deceased" voters will still be flagged, but will only be removed from the rolls if there's a hard match. (Secretary of State Hope Andrade has said that's just a technical change.)
The purge had also been criticized for being started just months before the election. The new law mandating the controversial letters took effect a year ago in September 2011. Texas didn't start the purge until just this June.
"Most states recognize it's good policy to do this throughout the year rather than right before an election," says Becker of the Pew Center on the States.
So what explains Texas' decision to wait?
"We wanted to run the process with enough time between elections," Texas Secretary of State spokesman Richard Parsons told ProPublica. "Unfortunately repeated election delays, shifting deadlines and uncertainty all caused by ongoing redistricting litigation did not allow for this process to move forward any sooner."

The Campaign Finance Free-For-All: How We Got to This Point

by Justin Elliott, ProPublica
In a forthcoming law review article, Richard Briffault of Columbia Law School argues that the rise of super PACs and unfettered contributions and spending this election cycle are "effectively ending the post-Watergate era of campaign finance laws."
To help understand what is shaping up as a watershed election cycle, I asked Briffault to explain the path that took the country from stringent post-Watergate contribution limits through Citizens United to today's multi-billion-dollar free-for-all.
Briffault has written extensively about the history of campaign finance law. He has filed amicus briefs in cases on the side of defending regulation. His article on super PACs will be published in the Minnesota Law Review.
Our conversation has been edited for length and clarity.

Can you explain how the 1976 Buckley v. Valeo case created the foundation of modern campaign finance law?
In the Buckley case the Supreme Court held that the First Amendment applies to campaign finance regulations, but it applies in different ways to different kinds of campaign finance activities. Contributions — that is, giving money to a group, a candidate, or a political party — are less protected. The court said that contributions raise the danger of corruption, that is, that candidates will feel indebted to their large donors, and also that contributions are less pure speech than expenditures.
The court said that an expenditure, which is money being spent on communications to the voters to persuade them how to vote, gets the highest level of protection. The court said that that kind of spending cannot be limited because it comes closer to pure speech and because it raises no danger of corruption.
A particularly difficult question involves what are called independent expenditures. Having reached the limit on the amount of money he is allowed to give a candidate, the donor might then just make an expenditure by taking out his own ads praising the candidate, or condemning the candidate's opponent. In Buckley, the court said that so long as such an expenditure is not formally coordinated with the candidate it will get the full constitutional protection of expenditures.

The first big loophole in the law that politicians exploited became known as "soft money." The symbol of the soft money era was Democratic donors sleeping in the Lincoln Bedroom under President Clinton. How did that happen?
As a result of some rulings by the Federal Election Commission, the political parties were allowed to accept unlimited donations and corporate and union money so long as the political party used the money not for direct candidate support, but for background activity, like voter registration and get-out-the-vote drives and certain kinds of advertising that avoided express advocacy of the election or defeat of candidates. Because the money did not go for direct support of candidates — although it certainly helped candidates — it was considered "soft money" not subject to the restrictions on the "hard money" used for direct support of candidates.
The parties and their donors started to figure out soft money in the late 80s and it really took off in the 90s, peaking in 2000 and 2002.
So the famous McCain-Feingold law passed in 2002 and was upheld by the Supreme Court in 2003. Explain the system that law created.
McCain-Feingold stopped the parties from collecting and using soft money. Many experts thought the parties would be hit hard by the soft money ban, but in 2004 they actually replaced all the lost soft money by redoubling their efforts to collect more hard money from individual donors.
However, there was an immediate effort to get around the soft money ban through so-called 527 committees, which were named after a section of the tax code and were in effect a kind of political committee. The idea was that they would act independently of candidates, and engage in issue advocacy that helped candidates but did not expressly support them. The theory of the 527 was that they're not working with the candidates and they're not working with the parties, and they're also not engaged in express electioneering. So they claimed that they could take unlimited individual, corporate, and union contributions.
How big a role did corporate money play in funding these 527s?
There wasn't actually very much corporate money in the groups, but you did see large individual donations to organizations like MoveOn and the anti-John Kerry Swift Boat group. For the first time since Watergate, you began to see the first real appearance of million‑dollar donations.
This is the last time the Federal Election Commission actually took any action. It brought enforcement actions against a number of the prominent 527s and several years later obtained significant multi‑hundred thousand dollar penalties from them. The commission said that a number of the 527s had crossed the line into regulated electioneering and should have abided by the rules limiting contributions and disclosing spending.
The super PAC of today in many ways looks like these 527s from 2004 that were cited for breaking the rules. The difference is the super PACs seem to be acting within the rules. So how did we get from the 527 to the super PAC?
Part of the Federal Election Campaign Act of 1974 limited donations to all political committees, which are defined as organizations that give money to candidates or spend money in support of candidates. That law is on the books from 1974 onward and the Supreme Court upheld it. No one had focused on the idea that there might be some committees that only engage in independent spending, and do not give contributions to candidates, too.
But in the late 2000s, even before Citizens United, some independent committees began to argue "All we're going to do is engage in independent spending. If that's all we're going to do, we should not be subject to any restrictions on our donations."
The Citizens United decision is popularly known for allowing corporate spending in elections. But what did it say about this issue of independent spending?
In the course of striking down the ban on corporate and union independent spending, the Court also said that independent spending does not cause corruption and can't be limited. The solution to independent spending, the court said, is disclosure and the public reaction to candidates who do the bidding of independent spenders.
A D.C. Circuit Court of Appeals case called SpeechNow was moving through the system around the same time as Citizens United and the decision came down a couple months after Citizens United in 2010. The circuit court specifically cited Citizens United and said, in effect, "If there's nothing corrupting about independent spending, then there's nothing corrupting about donations to groups that engage in independent spending, and therefore these donations cannot be limited."
That's how we get the Super PACs.
The argument gets made that, before Citizens United and before SpeechNow, Sheldon Adelson or George Soros could have individually bought $100 million worth of ads. There was nothing stopping them from doing that.
That's right. But in reality it didn't happen. In theory, George Soros himself could have spent as much money as he wanted as long as it did not involve a committee. The ability to pool money into a super PAC turns out to be very significant.
On the issue of corporate and union expenditures, right now we're seeing 501(c)(4) and 501(c)(6) groups that don't disclose their donors spending a lot of money, and there are reports that at least some of that money is coming from corporations. These types of groups were active in previous elections but not to the extent they are now. How were they previously constrained by the law?
The 70s-era law said that corporations couldn't engage in independent spending in connection with an election. But "independent spending" was defined as express advocacy – that is, saying explicitly who to vote for. The McCain‑Feingold law redefined independent spending for corporations to include any broadcast message that mentions a candidate's name, within 30 days before primaries or 60 days before a general election. That greatly expanded the scope of the ban on corporate and union spending.
There was a 2007 Supreme Court case, Wisconsin Right to Life, that I think did most of the work that is attributed to Citizens United. It freed up groups funded by corporate or union money to do more in elections. Then Citizens United said that corporations and unions could also spend money on express advocacy. These groups can now contribute to 501(c) organizations that engage in electoral advocacy.
In your forthcoming article you argue, "More than a century after Congress enacted the first restrictions on contributions in federal elections, and thirty-eight years after the comprehensive post-Watergate contribution limits were adopted, we appear to be rapidly heading into an era in which those contribution limits have been rendered functionally meaningless." How did you come to this conclusion?
It will be interesting to see what the total numbers are when this cycle ends. But if it turns out that as much a significant fraction — perhaps one quarter to one third — of the spending promoting a candidate is being spent by outside groups, and funded by a very, very small number of very, very wealthy people, the candidates are going to know who they are.
The purpose of the law was to reduce the dependency of candidates on large donations, and reduce the danger that office holders will feel dependent on that and reduce the effect of those donations on policy and appointments. If a significant fraction of the money that's helping candidates is coming from a very small number of extremely wealthy people, that puts us back to where we were before.

Tuesday, October 2, 2012

Crystal Castles- Live REVIEW, 9/27, Charlotte, NC

With their third full-length album (III) set for release in November, Crystal Castles began an exhaustive tour on September 27 at The Fillmore in Charlotte, NC.  Chronicling a live Crystal Castles show is a lot like attempting to accurately re-enanct mass hysteria, but this much can be certain- if you thought their live presence was electrifying on previous circuits, prepare yourself for the "steroid version" in 2012 and beyond.  Crawling across the stage on all fours Exorcist-style to the pulse of setlist opener "Plague" (one of the two new singles already released from III), Alice Glass sported a freakishly purple/blonde bob that caused her to resemble a cross between Heath Ledger's Joker and Effie Trinkett from The Hunger Games series.  It was one of the rare times that the essence of shock factor felt genuine and organic- it didn't hurt that what followed was a typically unpredictably shattering performance from the the increasingly legendary frontwoman (with no less than six crowd surf moments).  Not to be overlooked was Alice Glass' reliable partner in chaos, Ethan Kath, who radiated intensity as he lurked behind the Korg stage right.  One of the highlights of the evening was the duo disappearing behind the equipment to deliver an epic smorgasbord mashup of fan favorites "Vanished", "Crimewave", and "Untrust Us".

Bottom line- this is either your type of thing or not.  But if you're even remotely curious, jump at the opportunity to experience Crystal Castles when they come near.  It's obvious these guys are in the midst of honing their craft to another level and it would be a shame to miss it.  Now... bring on III.

1. Plague
2. Baptism
3. Suffocation
4. Wrath of God
5. Alice Practice
6. Black Panther
7. Celestica
8. Vanished/Crimewave/Untrust Us
9. Not in Love
10. Reckless
11. Yes No
12. (new song)
13. Intimate
14. Courtship Dating

  - Fr. Jones