SCOTUS denies cert in ProtectMarriage v. Padilla

The Supreme Court denies cert. in ProtectMarriage.com v. Padilla. A case regarding the disclosure of contributions to ballot initiative committees.

Here is a link to SCOTUSblog's description of the case and the filings.

Why voters shouldn't be electing judges

My latest op-ed was just published by the Los Angeles Times. In it I argue that we should do away with judicial elections.

What I did last summer (and the summer before that, and the one before that...)

For those of you who are interested in my lengthier pieces on election law topics, here is a link to my law review articles. You can read the abstracts ("show abstract") or simply download the pieces.

Or here are the links to the individual articles:

We the Corporations?: The Constitutionality of Limitations on Corporate Electoral Speech After Citizens United

The Original Sin of Campaign Finance Law: Why Buckley v. Valeo is Wrong

Taking the Initiative: How to Save Direct Democracy

Ballot Box Budgeting in California: The Bane of the Golden State or an Overstated Problem?

Timing is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections

Is the Party Over? Examining the Constitutionality of Proposition 14 as it Relates to Ballot Access for Minor Parties

 

Should Legal Immigrants Be Allowed to Work at Election Polls?

In my book, the majority of people who pass certain eligibility requirements and wish to serve as poll workers should be welcomed and thanked, not excluded and turned away. Working at the polls is important, often tedious and monotonous job. Election day is virtually guaranteed to be a long day for anyone serving at the polls.

There is now a bill headed to Gov. Jerry Brown that would let some legal immigrants to serve as poll workers. Which legal immigrants you may ask? Well, legal permanent residents who would be eligible to vote if they were citizens.

Assembly Bill 817 places a limit on the number of non-citizen poll workers in each district. Election officials would be able to appoint five non-citizen poll workers in each precinct.

Democratic Assembly member Rob Bonta (Alameda) introduced the bill. He and democrats have argued that the bill would increase the number of multi-lingual poll workers who could then help multi-lingual voters who are not proficient in English. Republicans, who oppose the bill, have countered that the increase in the number of multilingual poll workers would not be particularly helpful as poll workers are prevented from doing things like reading the ballot to voters, or helping the voters understand the content of the ballot. In addition, there appears to be some disagreement as to how many eligible voters are not proficient in English because naturalized citizens must pass a written and verbal English test.

Finish reading this post on KCET.org.

Proposition 32: Another Money Pit?

One of my least favorite things about the ballot initiatives process is the huge sums that those in favor and against these measures typically shell out during the election cycle. This is particularly true for the initiatives which, like bad pennies, just keep coming back every few election cycles. Proposition 32, the so-called "Paycheck Protection" initiative is no exception.

The measure, if approved, would prohibit union and corporate contributions to state and local officials (which may be only a minor problem for these groups because they can just make independent expenditures), prohibit contributions from government contractors to politicians who have a say over their contracts, and prohibit corporations and unions from using automatic payroll deductions for political purposes without their members' permission. That last prohibition will likely cut the legs out from under unions when it comes to their ability to raise and spend political funds. Under our current campaign finance system such a decrease in fundraising and spending ability correlates to a marked drop in political power.

If Prop 32 sounds familiar, it should. We've seen it before in 2005 and in 1998. In less than fifteen years we've seen the same idea on the ballot three times. And yet, here we are again -- fundraising, spending, and fighting.

Those against Prop 32 have raised more than $18 million. Opponents of the initiative are likely to outspend proponents. (See who's funding both sides of the issue here.)

It is somewhat difficult to predict how Prop 32 will fare. Spending against proposed measures is typically more effective than spending for those measures. That would indicate that this proposal is headed for its third defeat. However, voters are likely harboring greater anti-union sentiments than they were in the past few years.

One has to wonder whether those whose paychecks are funding the anti-Prop 32 war, the paychecks that measure would purportedly protect, would have preferred not to wage this battle at all.

Finish reading this post on KCET.org. 

Ballot Initiative Season Has Begun, and it's Not Exactly a Good Thing

Ready, set, go. Ballot initiative season is officially upon us. The 11 (yes, 11) ballot initiatives that we will be voting on in November now have numbers, which means the fundraising race will kick into high gear. Expect many advertisements via your television, radio, mailbox, and likely your computer screen as well.

We will be voting on tax increases (courtesy of Governor Jerry Brown, attorney Molly Munger, and billionaire Tom Steyer), changes to the budget process, how labor unions and corporations can spend money in elections, auto insurance rates, the death penalty,human trafficking, the three-strikes law, and the labeling of genetically modified food.

We are simply weighing in on too many decisions via a flawed process.

I've said it before, and I'll say it again: The ballot initiative process is riddled with problems. As it currently stands it does not provide citizens with a good process to make vitally important decisions about the laws that govern us.

The ballot initiative process asks voters to make crucially important decisions in isolation. Our government is too big and too complex to make decisions on a piecemeal basis.

In addition, it is entirely rational for each voter to vote in favor of more services and against revenue increases. The ballot initiative process does not require that voters weigh the consequence of their decisions. Further, voters are accountable only to themselves, not a group of constituents, so quite reasonably may make decisions for their benefit.

Finish reading this post on KCET.org.

The Lessons of the June 5, 2012 Primary Election

Last week Californians voted in primary elections for the president, federal and state representatives, judges, and proposed ballot initiatives. Actually, let me rephrase that: Last week a small percentage of eligible voters in California weighed in on various ballot questions. About one-in-four people who could vote, did vote, which may, in fact, be the lowest in recent history for a presidential primary.

Californians, or the few of us who mailed in ballots and went to the polls, were faced with two proposed ballot initiatives. First up, Proposition 28, the successful proposal to tinker with the state's term limit laws. Now, instead of being able to serve 6 years in the state assembly and 8 years in the state senate, for a total of 14 years of service, our state lawmakers can serve for a total of 12 years in either or both houses.

Does that sound like a relatively minor change? Well, it is. It will be hard to determine whether voters approved of Prop 28 because they thought they were shortening the amount of time lawmakers could serve as state representatives, or because they thought they were giving lawmakers more flexibility. In any event, this is not the type of large-scale reform that California needs.

While we may not know why voters approved of Prop 28, we do know that it faced little opposition. Few ads were taken out to opposed it. Negative advertising matters, particularly with respect to ballot initiatives.
That brings us to Proposition 29, which may be this cycle's poster child for showing why negative advertising matters. Prop 29 looks likely to fail. That proposal would have imposed a $1-a-pack tax on cigarettes and used the revenues for cancer research. There was a great deal of advertising against Prop 29. Unsurprisingly, tobacco companies were willing to shell out great sums to defeat the measure.

Finish reading this post on KCET.org. 

What is in a Ballot Designation?

California law provides that candidates for political office can list a ballot designation that tells voters something about themselves. Often -- perhaps too often -- that is all, or almost all, voters know about a candidate. The designation is sometimes the first and last impression voters get from candidates.

Ballot designations cannot be false or misleading. While this may sound straightforward, there could be a great deal of gray area here.

Assemblywoman Beth Gaines (R) is running for re-election -- she joined the Assembly last year when she won a special election to fill a vacant seat -- and identifies herself as a "small business owner" on the ballot. Assemblyman Bill Berryhill (R) has identified himself as a "farmer." These two are not alone. In fact, there are at least 10 legislators who are not listing their current positions on the ballot.

These examples are important not so much for what they say about these particular candidates, but what they indicate about legislators' views of how unpopular state representatives are. We now have sitting legislators figuratively running from their current positions as elected representatives. They must think we really dislike our representatives. In fact, they're right. Public approval ratings linger around historic lows.

Let's take a step back. We now live in a state where winning an election and obtaining a position that allows an individual to represent their fellow citizens are things to hide (or at least not highlight) from the voters.

Finish reading this article on KCET.org. 

Prop 29: Should I Vote for a Good Proposal or Against a Bad Process?

As readers of my commentaries know, I am no fan of the initiative process. I believe that the process that was designed to protect against the influence of special interests has now been hijacked by those same interests. What one needs to qualify a proposal for the ballot is not a good idea, but money. Money also doesn't hurt much in getting initiatives passed (meaning money is one of the key factors to success). When and if an initiative is successful, dollars to donuts that measure will end up in the courts. We often spend time and resources litigating the meaning and constitutionality of initiatives. And a good percentage of the time at least a portion of an initiative is tossed. In addition to all of these problems, initiatives bypass the (hopefully) deliberative process that occurs when laws are passed by the legislature.

So why am I considering voting for one of these dreaded initiatives? One of the measures on the June 5, 2012 ballot in California is Proposition 29, which is called the "Tobacco Tax for Cancer Research Act." Prop 29 would increase the sales tax on each pack of cigarettes from 87 cents to $1.87. The additional revenue, which the Legislative Analyst's Office estimates to be about $735 million per year, would go to funding cancer research and programs aimed at reducing smoking.

You can likely see my problem as that proposal sounds good to me. Here are two fairly uncontroversial things that I believe: First, fewer people should smoke since smoking can cause serious health risks; second, more money should go to cancer research. But here is a third, more controversial belief: The initiative process is deeply flawed (see above).

Finish reading this post on KCET.org. 

California's Addition to Direct Democracy Continues

My latest post on KCET.

Suit up. It is almost time for another election in California. We all know what that means: more ballot initiatives. (Insert sighs, grumbles and other sounds of disappointment here).

In June we will be asked to vote on a proposed cigarette tax. Opponents of the measure -- big tobacco companies, including Philip Morris and R.J. Reynolds Tobacco -- have raised almost $15 million to defeat the measure. But if you're looking for ads from them, it will be much easier for you to look for the committee they have funded, Californians Against Out-of-Control Taxes and Spending. (Note to California legislators, time to improve disclosure and transparency for ballot measure spending).
Proponents of the measure have raised almost $3.2 million. The committee receiving those funds is called Californians for a Cure.

These costly electoral campaigns hardly capture the public's imagination. If anything, they perpetuate the feeling that our government doesn't function well and instead every election we must endure endless battles over the fate of ballot initiatives. For the many who may not differentiate between legislatively-initiated ballot measures and citizen-initiated ballot measures, it just feels like another expensive political campaign.

Here is an idea that will never happen. Let's treat these ballot initiative campaigns like lawsuits. Instead of duking it out and either failing to pass an initiative only to bring it back in the next election, or passing an initiative which will end up being litigated well past the next election, let's try settling. In the case of the cigarette tax, both sides would donate the amount they are prepared to spend supporting or opposing the initiative to the end goal of the initiative. Of course this won't always work (or let's be honest, mostly it won't even be feasible). But in this particular case, this would mean $18 million for cancer research 3 months before the election. There is no doubt that number will rise.

Finish reading the post on KCET.org.

"Will California's Newly Drawn Senate Maps Stand?"

Here is a post on KCET.org about the work done by California's independent redistricting commission, and various challenges to the newly drawn maps.

"[A] cynic would say this is much ado about nothing but sour grapes. Republicans are rightly worried that they could lose their one-third minority membership in the State Senate. If Democrats are able to garner two-thirds of the upper legislative house, it could make it much easier to implement a number of policies, including tax and fee increases."

"Contributors to 'Yes on Proposition 8' Are Not Exempt from Disclosure Laws"

Jessica Levinson's post on KCET.org is here. 


Here is an excerpt:


"Democracy can sometimes be unpleasant. People disagree. They fight, they argue, and sometimes, they harass. Sometimes it is productive, sometime it is not. Sometimes we find our fellow voters and the causes they support or oppose -- with time or money -- to be repugnant. But our First Amendment stands as a protection for free discourse in a free society, particularly when political speech is involved. When behavior crosses the line, criminal prosecution is possible."

The Amazon Sales Tax, a Pipe Dream?

Jessica Levinson will be on KUCI at 9am PDT to discuss.

Democrats charged in faux tea party plan

"...23 questionable election filings across Michigan — eight of them in Oakland County — involved an effort to create the illusion of an Independent Tea Party and its candidates on November's ballot.
The goal was to woo away voters in local elections who might otherwise vote for other candidates, presumably Republicans, authorities allege."



The Detroit News and USA Today have more.

"L.A. Election Recap: Low Voter Turnout, Incumbents Stay Put, Most Measures Pass"

Jessica Levinson's latest post on KCET.org about the March 8th Los Angeles City elections is here.

Here is an excerpt:

"The City's dire fiscal situation clearly did not motivate Angelenos to head to the polls. The overwhelming majority of voters made a deafening statement, one of total silence. The one thing more than 88% of voters in Los Angeles could agree on is that they would not spend the time either at a voting booth or at their kitchen table with an absentee ballot to give an opinion on many issues facing our city's government. Though, of course, a failure to vote is a declaration in and of itself."

"City Council candidate turns to appeals court in bid to requalify for ballot"

"Citing 'an extreme need for preventative action,' the attorney for City Council candidate Michael Fletcher on Saturday asked a Missouri appeals court to requalify Fletcher for Tuesday’s election.
In the appeal, Fletcher’s legal team contends Jackson County Judge Ann Mesle erred Friday when she disqualified the 3rd District candidate for failing to meet residency requirements contained in Missouri law and the city’s charter."

The Kansas City Star has this report.

"I am a monkey, and other ballot designations"

Click here to view Jessica Levinson's post on the KCET website.

Here is an excerpt:

"Happy Chinese New Year. In honor of the recent holiday I looked up my Chinese zodiac sign. I am a monkey. Based on the description, I'll take it. Apparently, I am an erratic genius. I'm not sure how erratic I am, but if the erratic comes with the genius, I'll happily accept both descriptors and call it a day."

"Court Decision Could Stymie Props"

Jessica Levinson quoted in the Daily Journal about a California court's decision to prohibit the legislature from drafting ballot titles and summaries:

Here is an excerpt:

"The ruling is a big deal," said Jessica Levinson. "The way the ballot name and summary is phrased has an enormous impact on how people are going to vote ... What the Legislature has been doing has been trying to sell their ballot measures instead of just describing them."

The court's decision "will have an immediate impact on Brown's proposals to increase the temporary tax extensions," Levinson said, "because that would have been the next thing the Legislature would have written the language for, and now they won't."

"No More Love Letters from the Legislature: A California Court Tells the Legislature to Stop Writing Official Ballot Measure Language"

You can find Jessica Levinson's piece on the California court's recent ruling by clicking here.

Is access to the ballot too easy in New York?

Maybe. In the Bronx a dead man was on the 2010 ballot for State Senate.

Click here for more from the NYT.