Tuesday, August 23, 2016

6th Circuit Allows Law Upholding Integrity of Elections in Ohio to Remain in Effect

Today, the 6th Circuit reversed a district court decision that had struck down Ohio's reduction in its early voting period from 35 days to 29 days, still a very long period:
The left-wing groups bringing the challenge claimed that Ohio was violating the Voting Rights Act of 1965 and violating the Constitution when it reduced its early voting period from 35 to 29 days. The change was part of Ohio’s attempt to reduce the chaos that had led to voter fraud in the 2008 election. At least two people had pled guilty to voting in Ohio illegally because they resided elsewhere.

The Sixth Circuit rejected the attack as a far-reaching application of the Voting Rights Act that would result in judges “micromanaging” state election rules, in the name of unfounded claims of discrimination. 
The court wisely recognized that the challengers and the district court had created a rule that was remarkable and unrealistic (emphasis added):
Ohio is a national leader when it comes to early voting opportunities. The state election regulation at issue allows early in-person voting for 29 days before Election Day. This is really quite generous. The law is facially neutral; it offers early voting to everyone. The Constitution does not require any opportunities for early voting and as many as thirteen states offer just one day for voting: Election Day. Moreover, the subject regulation is the product of a bipartisan recommendation, as amended pursuant to a subsequent litigation settlement. It is the product of collaborative processes, not unilateral overreaching by the political party that happened to be in power. Yet, plaintiffs complain that allowance of 29 days of early voting does not suffice under federal law. They insist that Ohio’s prior accommodation—35 days of early voting, which also created a six-day “Golden Week” opportunity for same-day registration and voting—established a federal floor that Ohio may add to but never subtract from. This is an astonishing proposition.  
Nearly a third of the states offer no early voting. Adopting plaintiffs’ theory of disenfranchisement would create a “one-way ratchet” that would discourage states from ever increasing early voting opportunities, lest they be prohibited by federal courts from later modifying their election procedures in response to changing circumstances. Further, while the challenged regulation may slightly diminish the convenience of registration and voting, it applies even-handedly to all voters, and, despite the change, Ohio continues to provide generous, reasonable, and accessible voting options to all Ohioans. The issue is not whether some voter somewhere would benefit from six additional days of early voting or from the opportunity to register and vote at the same time. Rather, the issue is whether the challenged law results in a cognizable injury under the Constitution or the Voting Rights Act. We conclude that it does not.
We will discuss this important decision more in the coming weeks, but it is refreshing to see a court properly applying constitutional standards and the Voting Rights Act and recognizing the realities that states face in administering and protecting their elections, instead of buying the extra-legal narrative presented by liberal advocacy organizations.

Monday, August 22, 2016

Overregulation of Political Speech in Connecticut

Connecticut is pursuing a campaign finance complaint against Republican State Senator Joe Markley and Republican State Representative Rob Sampson for mentioning the Democratic governor in two mailings criticizing the governor's destructive policies:
I’m learning that when government pays, political speech ceases to be free.  
Along with my friend and colleague, Connecticut state representative Rob Sampson, I’ve been charged with a violation of campaign-spending statutes by our state elections-enforcement authority. My misdeed was a single mention of Governor Dannel Malloy in each of two mailings we sent during the last state election.  
In one flyer, we used the phrase “Malloy’s Bad Policies”; in the other, “Malloy’s Tax Hike.” To my mind, “Malloy’s Tax Hike” is a designation like “Halley’s Comet,” the name by which a thing is known. But the state alleges that those references constituted a contribution to the campaign of Malloy’s Republican opponent, which would require disclosure and reimbursement — despite the fact that we neither mentioned said opponent nor urged the defeat of Malloy. 
Representative Sampson used exactly the same words in his 2012 campaign mailings, and doubtless will utter them again in his race this fall, as will I. According to elections enforcement, we will be within our legal rights to do so: We can state our opinion of the governor, but only so long as he’s not also on the ballot.
Yet again, campaign finance regulations are being used by regulators to stifle the political speech of those who would criticize government officeholders and their policies.  Sen. Markley suspects that his acceptance of public financing, an unfortunate reality for Republicans running in a solidly blue state, has contributed to the state's persecution of him:
Republicans face state-financed opposition all the time, with public employees pushing their liberal agenda to elected officials and to the citizens generally. But Democrats aren’t accustomed to having state money used against them, and it seems that they don’t like it.  
That, I think, is what this charge is all about: The ruling party wants to prevent conservative candidates from using public financing to speak out against progressive policies and liberal officeholders. For the establishment here, that’s just unacceptable.
Connecticut knows that "[s]uch a capricious restriction on explicitly political speech" is "unlikely to hold up in court" and has offered Sen. Markley and Rep. Sampson a settlement.  Instead of accepting it, they are bravely fighting the state regulators and standing up for the right of all citizens in Connecticut to speak freely, including criticizing government officials, without fear of government investigation and persecution.

Friday, August 19, 2016

FEC Democrats Vote in Favor of Regulating the Internet...Again

We recently discussed how the three Democrats on the FEC voted to ignore the settled exemption from campaign finance regulations granted to internet communications in the complaint against Foundation for a Secure and Prosperous America:
Democratic Federal Election Commissioner Ann Ravel moved this week to deny a conservative nonprofit group legal protections that exempt most online political communications from federal political spending limits and disclosure laws. 
Experts say the move is an attempt to undermine the “internet exemption,” as the provision is known, without going through normal legislative and regulatory processes. In effect, they say, Ravel was denying legal protections to the group simply because she disagrees that those protections should exist.  
The FEC Democrats voted against applying the internet exemption in yet another complaint regarding internet videos:
The commission also split 3-3 in a recent case that asked if the Internet exemption also exempts a webcast of a discussion with political candidates that provides a link to contribute to candidates. The Republicans said it was exempt; the Democrats disagreed.  
Goodman, a Republican, said the decisions are likely to have a chilling effect on free speech. 
“Political speakers who are careful about what they do, and who are advised by lawyers, may be chilled from communicating on the Internet, in the light of a 3-3 divide on the commission,” he said. “There is definitely a chilling effect.”
As the FEC is currently constituted, the three Republican commissioners protect against the Democrat commissioners ignoring the law to regulate speech on the internet, but there are proposals to change the composition of the FEC:
Goodman said while the 3-3 split on the commission stalls any Internet regulatory push, he warned that if legislation in Congress passes to make the body a five-person body, it could give the Democrats the majority they need. 
“If the commission were to be reconstituted, I believe we’re looking at full-blown regulation of political speech on the Internet,” he warned.
We thank Chairman Petersen and Commissioners Goodman and Hunter for standing up for the rule of law and protecting free speech on the internet.

Thursday, August 18, 2016

Oklahoma AG Scott Pruitt on Supreme Court and Scalia Vacancy

Oklahoma Attorney General Scott Pruitt gave a speech earlier this summer about the importance of Justice Scalia's jurisprudence and replacing him with a conservative justice:
In thinking about the kind of person who should take his seat on the Court, it is worth reflecting on Justice Scalia’s principles of jurisprudence. One of the chief principles he championed, as a scholar and as a judge, is that the law, whether statutes or the Constitution itself, must be applied according to its text. In other words, judges should not apply the law based on what is good policy or what they suppose Congress may have intended (but did not express) in passing legislation. 
In addition, Justice Scalia believed that the words of the law should be understood as they were understood by the people when the law was enacted. . . . There are some who believe that the meanings of words change over time, untethered from any objective measure. Thus what is legal one day may be illegal the next without any textual changes to the law. Justice Scalia rejected this notion. He held fast to the idea that the meaning of laws is fixed by the meaning ascribed to their words at the time they were enacted. 
These two principles, textualism and originalism, are rooted in a third characteristic of Justice Scalia’s jurisprudence: an unwavering respect for the idea of popular government. Laws, including the Constitution, receive their legitimacy from the people. The Constitution is not an autonomously evolving document that spins out new “rights” and obligations to which the people have not given their consent. . . . 
Along with this opposition to creative interpretation of the Constitution, a fourth characteristic of Justice Scalia’s life work was a conviction that the rights actually guaranteed in the Constitution should be tenaciously defended, from the right of free speech to the rights of criminal defendants. Beyond these enumerated rights, Justice Scalia recognized that the Constitution’s primary protection of liberty is its structure of checks and balances between branches and its division of powers between the federal government and the states. 
General Pruitt discussed the important issues that the Supreme Court will decide in the coming years, concluding:
The next Supreme Court justice will not only decide the outcome in pending cases, he or she will also influence the type of cases that make it to the Court in the first place. Businesses are less likely to challenge exorbitant or unfair rulings against them knowing there is a majority of justices hostile to their interests. Conservatives will be less likely to put their time and resources into defending the Constitution if they know the Court won’t enforce it. Meanwhile, liberal groups will be emboldened to bring cases that attempt to roll back First Amendment and Second Amendment freedoms, among others. . . . 
The appointment of the next Supreme Court justice could be the most legally significant event for our country in a generation. If the next justice is in the mold of Justices Ginsburg or Sotomayor, the rulings of the Court will shift dramatically to the left. If the next justice shares the principles and philosophy of Justice Scalia, the ideologically balanced Court that we have grown accustomed to in the last quarter century will likely remain. As someone whose job it is to defend the rights of the people of Oklahoma, this turning point is very important to me. But as I hope I have explained, the next Supreme Court justice will make decisions that touch on the rights of every American and that may come to define the nature of our government and our society for many years to come.
As we are increasingly engaged in this year's Presidential election, it is important to remember one of the most important ramifications of who wins in November - the ability to nominate the replacement for Justice Scalia on the Supreme Court and likely several other justices as well.  Thanks to the leadership of Majority Leader Mitch McConnell and others, the American people are given a voice in that decision.

Wednesday, August 17, 2016

Fourth Circuit Turned Voting Rights into Political Weapon

In its decision on North Carolina's voter ID law last month, the Fourth Circuit acted like a trial court in determining new findings of fact, according to election law expert Christian Adams:
Legal analysts have given the opinion by the 4th U.S. Circuit Court of Appeals overturning North Carolina’s election reform law, including its voter ID requirement, mixed reviews. 
Both J. Christian Adams, president of the Public Interest Legal Foundation in Washington, and Rick Hasen, chancellor’s professor of law and political science at the University of California, Irvine School of Law, noted that it was highly unusual for the three-judge appeals panel to overturn a district court judge’s factual findings. 
While Hasen saw merit in the decision, Adams didn’t. 
“The 4th Circuit did what very few federal appeals courts do; they pretended they were a trial court,” Adams said. “One of the things they teach you in law school is trial courts deal with the facts and appeals courts deal with the law.” Hasen acknowledged that trial courts generally grant deference to the facts stated by a trial court.
Adams concluded that the Fourth Circuit found that the voter ID law and other election reforms were enacted with racially discriminatory intent because it was seeking any way to overturn the law for political reasons:
State elections officials and Republican leaders, however, have noted that in the 2014 election — the first federal election after the new voting provisions were enacted — turnout among black voters was higher than it was in 2010, the last nonpresidential election before the law passed. (The voter ID requirement was delayed until the 2016 primary and general elections.) 
Adams said the court “apparently wanted to set the law aside no matter what,” adding that the appeals court’s ruling turns voting rights into a political weapon. 
“Anything that the legislature ever passes and might affect blacks or Democrats ever so slightly more than whites or Republicans, these judges say it’s a voting rights violation,” Adams said. “That’s bad for the Voting Rights Act and for politics.”
On Monday, North Carolina filed a petition for emergency relief from the Supreme Court that would allow the voter ID law and other election reforms overturned by the Fourth Circuit to remain in effect for the November election.  We hope that the Supreme Court will stay the Fourth Circuit's decision until a less politically motivated court can evaluate the law.

Tuesday, August 16, 2016

Illinois Governor Rauner Vetoes Mandatory Voter Registration Bill

Last week, Illinois Governor Bruce Rauner vetoed a bill that would establish mandatory, or automatic, voter registration in Illinois:  
Gov. Bruce Rauner vetoed a bill aimed at making voter registration automatic in Illinois, citing concerns about potential voting fraud and conflicts with federal law. 
The first-term Republican governor said he wanted to continue negotiations with supporters to work out those issues, but groups backing the measure accused him of playing politics with his veto and said they would seek an override. . . . 
Under the legislation, starting in January 2018 people seeking a new or updated driver's license — or other state services — would automatically be registered to vote or have their registration updated unless they opted out. Currently in Illinois, motorists seeking services at secretary of state driver's facilities are asked if they want to register to vote or update their registration — an opt-in form of voter registration.
The bill was hastily passed at the end of session, and, in addition to being an unnecessary expense to a financially distressed state, the governor found that it would open the door to fraud and violate the NVRA:
"I strongly support efforts to encourage greater voter participation in our democracy and share the goals of this legislation," Rauner said in a statement. 
"Unfortunately, as currently drafted, the bill would inadvertently open the door to voter fraud and run afoul of federal election law. We will continue working with the legislature and key stakeholders on language that meets our shared goals while complying with federal law and preventing voter fraud," he said. 
In addition, Rauner said the measure does not follow federal law, which requires a voting applicant to "attest to meeting the qualifications to vote" or to sign an application. He said the measure also relies on the Illinois State Board of Elections to then screen out individuals who are not eligible to vote, even though it may not have access to needed information.
We thank Gov. Rauner for wisely recognizing that mandatory voter registration threatens election integrity and the accuracy of voter registration rolls and does not accomplish the goal of increased voter engagement and turnout.

Monday, August 15, 2016

ABA Tries to Suppress Lawyers' Speech, Even in Social Activities

The ABA recently adopted, by voice vote, an amendment to the model rules of professional conduct containing a speech code for lawyers.  Speech codes have become increasingly popular on college campuses, and when challenged in court, are unsurprisingly almost always found to violate the First Amendment (when enacted in a public college or university).  Eugene Volokh explains the meaning of the new model rule and its chilling implications:
The American Bar Association has adopted a new provision in its Model Rules of Professional Conduct — an influential document that many states have adopted as binding on lawyers in their state. . . . Here is the relevant text (emphasis added):
It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. . . . Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. . . . Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. . . .
So say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar . . . .
Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint. 
Again, you’ve engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action. 
Volokh concludes that the goal of the speech code appears to be suppression of speech with which the ABA disagrees:
Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. 
While this rule could likely be successfully challenged in court should any state bar or state courts adopt it, it will suppress speech merely by its existence.  Attorneys should not need to live in fear of an ethics complaint for expressing an unpopular view, any more than organizations should have to live in fear of government investigation for expressing politically incorrect views.