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Executive Summary

In 2010, New Yorkers voted on electronic, optical-scan voting machines for the first time. Citizens went to their polling places on Election Day, filled out paper ballots and fed them into the brand-new optical scan machines.

But tens of thousands of their votes did not count. Specifically, about 20,000 voters in New York State did not have their votes for governor counted because the machines read their choices as “overvotes” — the invalid selection of more than one candidate. Even more votes were lost in other contests — 30,000 to 40,000 more. In a presidential year, with nearly twice the turnout, we expect that the number of votes lost because of overvoting would more than double, possibly resulting in more than 100,000 lost votes.

In modern history, New York has never seen so many lost votes due to overvoting. Unlike the new optical scan voting system, New York’s old lever machines did not allow overvoting. But even so, the numbers of lost votes due to overvoting in 2010 were far greater than they should have been. Overvotes are almost always unintentional. A well-functioning voting system, even one that includes optical scan equipment, should have overvote rates very close to zero.

A great irony of this new problem is that the federal mandate to purchase new machines was specifically meant to reduce overvotes nationwide. Tens of thousands of votes were voided as overvotes in 2000, in places like Florida on punch card and other voting systems. The Help America Vote Act (“HAVA”), passed by Congress in 2002, requires that new voting systems used in polling places in United States must:

(i) notify the voter [when she] has selected more than one candidate for a single office on the ballot;

(ii) notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office; and

(iii) provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.

The Brennan Center, NAACP New York State Conference and other civil rights and good government groups have argued that New York’s overvote protections did not satisfy these requirements and predicted in a lawsuit filed in 2010 that these inadequate protections would lead to such high overvote rates. Specifically, they pointed to a message voters would see if the machine could not discern the voter’s intent; the groups argued this message would confuse voters, making it more likely they would cast invalid votes, and less likely that they would correct their ballots to ensure they were accurately counted.

As we demonstrate in this paper, the lack of adequate overvote protections had a disproportionately negative impact on the state’s poorest communities. Lost votes due to overvoting occurred far more frequently in areas with higher populations of low-income residents, people of color, and immigrants.

Black and Hispanic voters were at least twice as likely to lose votes due to overvoting as non-Hispanic whites. Shockingly, in two Bronx election districts, nearly 40 percent of the votes cast for governor were voided as overvotes.

The good news is that the New York State Board of Elections has agreed to adopt a better overvote warning when a voting machine cannot discern voter intent, hopefully in time for the November 2012 election: such a warning will inform the voter of the problem in plain English (“you have filled in too many ovals”), and clearly explain the consequences of casting an overvote (“your vote will not count”).

This should significantly reduce the number of overvotes in 2012, but it will not eliminate the problem. There is more that our public officials, and especially our state legislators, could do. In this report, we discuss how commonsense solutions, like requiring boards of elections to publish precinct-level election results, can improve detection and correction of machine-related problems. Critically, we also explore how better ballot design requirements can reduce overvotes.

Finally, we examine the national implications of our findings in New York.

In the News

• Make sure every vote counts (Albany Times-Union 1/18/12)
• Avoiding the Florida Nightmare in 2012 (Roll Call 12/20/11)
• Board of Elections lost votes in the Bronx and doesn’t care (N.Y. Daily News 12/19/11)
• State Board of Elections lost thousands of votes (N.Y. Daily News 12/12/11)
• Study: Confusion with new voting system led to 60,000 uncounted votes (Elmira Star-Gazzette 12/10/11)
• Report: About 60,000 E-Votes Uncounted in NY Election Last Year (Wired 12/07/11)
• Report: NY State Voting Machines Really Suck (Mother Jones 12/07/11)
• There Were Some Snafus With Those Fancy New Voting Machines (New York Magazine 12/06/11) 
• Study: 60K bad votes tossed in N.Y. (Politico 12/06/11)
• New optical-scan voting devices confused New Yorkers and led to tossing of 60,000 votes (N.Y. Daily News 12/06/11)
• 100,000 New Yorkers' Votes May Not Count In Next Year's Election (Business Insider (12/06/11)
• Thousands of NY Votes Tossed Over Ballot Confusion (WNYC 12/06/11)
• New York Votes Tossed Out in 2010 (International Business Times 12/06/11)
• New Yorkers Throwing Their Vote Away With New Machines (CBS New York 12/06/11)
• Study: Many NY votes voided over ballot woes (Wall Street Journal 12/06/11)
• Study: 20K Votes for NY Governor Voided in 2010 Election (NBC New York 12/06/11)
• Confusion Led To Thousands Of Tossed Votes Across State, Study Finds (NY1 12/06/11) 
• Study Finds Voters Erred Often in Using New Machines (N.Y. Times 12/05/11)

About the Authors

Lawrence Norden is Deputy Director of the Brennan Center’s Democracy Program. He has authored several nationally recognized reports and articles related to voting rights, voting systems and election administration.

In April 2009, Mr. Norden completed his duties as Chair of the Ohio Secretary of State’s bipartisan Election Summit and Conference, authoring a report that recommended several changes to Ohio’s election administration practices and laws; the report was endorsed by most of the State’s voting rights groups, as well as the bipartisan Ohio Association of Election Officials. In June 2009, he received the Usability Professional Association’s Usability In Civic Life Award for his “pioneering work to improve elections.” Mr. Norden is the lead author of the book The Machinery of Democracy: Protecting Elections in an Electronic World (Academy Chicago Press) and a contributor to the Encyclopedia of American Civil Liberties (Routledge 2007).

Mr. Norden is an Adjunct Professor at the NYU School of Law, where he teaches the Brennan Center Public Policy Advocacy Clinic.

Sundeep Iyer is a Fellow with the Brennan Center’s Democracy Program. He provides statistical analysis supporting a range of ongoing work on voting rights and campaign finance. For his research on voting, he has received Harvard University’s Thomas Temple Hoopes Prize and Gerda Richards Crosby Prize. Mr. Iyer is a summa cum laude graduate of Harvard University, where he concentrated in Government and Statistics.

Design Deficiencies and Lost Votes

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Executive Summary

Four years into the economic downturn, massive numbers of families continue to face the prospect of losing their homes through foreclosure. For some, foreclosure may be inevitable. But for others, it can be avoided if they find the right help. Many borrowers have legitimate legal defenses to foreclosure that can only be raised with skilled legal advice and assistance. Likewise, lawyers can help homeowners more effectively negotiate the byzantine loan modification process.

Yet, most homeowners facing what will likely be the most significant legal event of their lives continue to do so without legal assistance. Many court systems – overwhelmed by the number of cases and number of unrepresented litigants – have set up mediation processes to give the two sides a chance to negotiate and perhaps find a way to refinance the mortgage. But these processes, too, suffer when lenders resist efforts to modify loans and homeowners lack representation to press the issue. The organized bar and civil legal aid groups have launched impressive efforts to train pro bono attorneys in foreclosure, but they cannot begin to meet the need.

As a result, most families facing foreclosure have no legal counsel representing them throughout the process. In some cases, homeowners are able get advice from loan counselors, legal aid groups, or pro bono programs before going to court appearances or mediation sessions. However, the data shows that most are not formally represented by counsel in their actual court cases or mediation sessions. For example:

• In New Jersey, defendants in 92.9 percent of foreclosure cases in 2010 had no attorneys on record.
• In Connecticut, defendants in 74.1 percent of cases in the state’s foreclosure mediation program did not have legal representation in 2010.
• In Franklin County, Ohio, homeowners in 87 percent of cases scheduled for mediation did not have legal representation in 2009 and 2010

The result is a process gone awry. In the 20 states in which foreclosure is done predominantly through the court system, what was supposed to be an adversarial legal proceeding has become a blowout, with effectively no one on the other side to act as a check on the way foreclosure cases are brought. In states in which foreclosure takes place without a court proceeding, unrepresented homeowners have even less of a chance to raise questions about the foreclosure. Finally, homeowners who are able to make future payments on their homes may miss their chance of getting the loan modification that they are entitled to if they do not have skilled counsel to help navigate the process.

In contrast, as our accompanying video series, Fighting Foreclosure: Why Legal Assistance Matters, shows, when homeowners are able to obtain legal assistance, it can make the difference between saving and losing a home. This Issue Brief complements the video series and provides additional background on the crisis in foreclosure legal representation and its consequences.

About the Author

Nabanita (Neeta) Pal joined the Brennan Center in July 2010 as a Research Associate in the Justice Program. She works with the Program’s initiatives to increase low-income communities’ access to the justice system, and improve the quality and availability of legal services. Neeta is a 2009 graduate of Brown University and a former Fulbright Scholar.

Facing Foreclosure Alone

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View on Scribd: The New Politics of Judicial Elections: 2009-10

Introduction

On Election Day 2010, for the first time in a generation, three state supreme court justices were swept out of office in a retention election when voters expressed anger over a single controversial decision on same-sex marriage. The special-interest campaign—which poured nearly a million dollars into Iowa to unseat the justices—was the logical culmination of a decade of rising efforts to inject more partisan politics into our courts of law.

Outside money continued its hostile takeover of judicial elections. More than ever, a small num­ber of super spenders played a dominant role in influencing who sits on state supreme courts. Much of this influence was exercised secretly.

But Election Day was only the beginning. Campaign leaders in Iowa issued a blunt warn­ing to judges around the country that they could be next. For the next half year, legislatures across the country unleashed a ferocious round of attacks against impartial justice.

More judges were threatened with impeachment than at any time in memory. Merit selection, an appointment system that has historically kept special-interest money out of high court selec­tion in two dozen states, faced unprecedented assault. Public financing for court elections, one of the signature reforms to protect elected courts in the last decade, was repealed in one state and faced severe funding threats in two others.

The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law. In its full context, the most recent election cycle poses some of the gravest threats yet to fair and impartial justice in America.

A total of $38.4 million was spent on state high court elections in 2009-10, slightly less than the last non-Presidential election cycle, in 2005-06. However, $16.8 million was spent on television advertising—making 2009-10 the costliest non-presidential election cycle for TV spending in judicial elections. Outside groups, which have no accountability to the candidates, continued their attempts to take over state high court elec­tions, pouring in nearly 30 percent of all money spent—far higher than four years earlier. Two states, Arkansas and Iowa, set fundraising or spending records in 2010, following a decade in which 20 of 22 states with competitive supreme court elections shattered previous fundraising marks.

Laced among these numbers were several wor­rying trends:

• In many states, small groups of “super spenders” maintained a dominant role, seeking to sway judicial elections with mostly secret money. Of the top 10 super spenders nationally, there was only one newcomer, the National Organization for Marriage. Unlike in 2007-08, when the biggest groups on the left and right established a rough parity, business and conservative groups were the top spenders in 2009-10.
• Spending also spiked on judicial reten­tion elections, which—with a hand­ful of notable exceptions—had been extremely resistant to special-interest encroachment before 2010. Retention elections accounted for 12 percent of all election spending—compared with just 1 percent for the entire previous decade. [See Chapter 1, The Money Trail]
• Costly television advertising remained all but essential to win a state supreme court election, while TV ads by non-candidate groups often resorted to rank character assassination against sitting judges. Even in states that lacked competitive races, such as Ohio and Alabama, candidates and groups poured millions of dollars into costly ad campaigns. [See Chapter 2, Court TV, 2009-10]
• Across the country, the 2010 judicial and legislative elections ignited an unprecedented post-election attack on state courts. This included challenges to merit selection systems for choosing judges, a campaign to roll back public financing, and threats to impeach judg­es for unpopular decisions. [See Chapter 3, Implications of the 2009-10 Elections]

About the Authors

Adam Skaggs is Senior Counsel in the Brennan Center for Justice’s Democracy Program, where he works on a range of judicial independence, voting rights, and election administration issues. Before joining the Brennan Center, he was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP. In 2003, Mr. Skaggs graduated summa cum laude with a J.D. from Brooklyn Law School, and was a member of the Brooklyn Law Review. He subsequently clerked for Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit and Judge Edward Korman, Chief Judge of the U.S. District Court for the Eastern District of New York. Mr. Skaggs received an M.S. in Urban Affairs from Hunter College of the City University of New York, and holds a B.A., awarded with distinction, from Swarthmore College.

Maria da Silva is a Research Associate in the Democracy Program where she focuses on the Center’s Fair Courts and Voting Rights and Elections campaigns. Ms. da Silva received her International Bacclaureate from the Armand Hammer United World College and then attended Brown University, where she majored in political science and served as a student coordinator for the university’s women’s center. Prior to joining the Brennan Center, Ms. da Silva worked in San Francisco at a civil rights and employment discrimination law practice. She has also worked with both the Public Defender Service of Washington D.C. and the Legal Aid Society of New York criminal defense practices in investigative and paralegal capacities.

Linda Casey is lead researcher at the nonpartisan, nonprofit National Institute on Money in State Politics. In addition to comprehensive research duties, she has focused on judicial elections since 2001. “High Court Contests: Competition, Controversy and Cash in Pennsylvania and Wisconsin,” “Diversity in State Judicial Campaigns, 2007-2008,” “Judicial Diversity and Money in Politics: AL, GA, IL, NM, NC, OH, PA, WA, WI.” Ms. Casey earned degrees in political science and sociology from Carroll College, in Helena, Montana. Before joining the National Institute in 1996, she worked for several nonprofit organizations and served as a financial officer for a number of statewide and legislative political campaigns in Montana.

Charles W. Hall is Director of Communications for the Justice at Stake Campaign. A career journalist, he worked for 20 years as a reporter and editor for the Washington Post, including extensive stints covering federal and local courts. Before joining Justice at Stake in 2008, Mr. Hall was manager of presidential communications for the American Bar Association. He also is active in civic affairs in Northern Virginia, and has had numerous commentaries published on regional land use policies. Mr. Hall can be reached at chall@justiceatstake.org.

The New Politics of Judicial Elections: 2009-10

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View on Scribd: Reducing Overclassification Through Accountability

Summary

The authority to classify documents exists to protect information that could threaten national security if it got into the wrong hands. It is one of the most important tools our government has to keep us safe. But many secrets “protected” by the classification system pose no danger to the nation’s safety.

On the contrary, needless classification—“overclassification”—jeopardizes national security. Excessive secrecy prevents federal agencies from sharing information internally, with other agencies, and with state and local law enforcement, making it more difficult to draw connections and anticipate threats. The 9/11 Commission found that the failure to share information contributed to intelligence gaps in the months before the September 11, 2001, attacks, cautioning that “[c]urrent security requirements nurture overclassification and excessive compartmentation of information among agencies.”

Overclassification also corrodes democratic government. Secret programs stifled public debate on the decisions that shaped our response to the September 11 attacks. Should the military and CIA have used torture to extract information from detainees in secret overseas prisons and at Guantánamo Bay? Should the National Security Agency have eavesdropped on Americans’ telephone calls without warrants? Even leaving aside the legality of these measures, whether to use torture or to forego the use of warrants are questions that, in a democracy, properly belong in the public sphere. Classification forced the nation to rely on leaked information to debate these questions, and to do so well after torture and warrantless surveillance programs were in place.

Overclassification is rampant, and nearly everyone who works with classified information recognizes the problem. In 1993, Senator John Kerry, who reviewed classified documents while chairing the Senate Select Committee on POW/MIA Affairs, commented, “I do not think more than a hundred, or a couple of hundred, pages of the thousands of [classified] documents we looked at had any current classification importance….” And two years later, Donald Rumsfeld, while noting that disclosure of truly sensitive information can put lives at risk, acknowledged, “I have long believed that too much material is classified across the federal government as a general rule.”

Government statistics bear out these assessments. When a member of the public asks an agency to review particular records for declassification (through a process called “mandatory declassification review”), 92 percent of the time the agency determines that at least some of the requested records need not remain classified. But the number of documents reviewed through this process pales in comparison to the universe of documents that, though they may not require classification, remain unreviewed—and thus classified—for many years.

A major theme of this report—and a source of frustration to those who have studied the classification system—is the persistent gap between written regulation and actual practice. Chief executives since Franklin Delano Roosevelt have issued executive orders on classification. Classification authority emanates primarily from these orders, which have long purported to impose common-sense limits, such as a ban on using classification to conceal embarrassing information about government officials. And the current order—Executive Order 13,526, which President Obama issued in December 2009—includes further limits, such as a requirement that records not be classified if significant doubt exists about the need for secrecy. In practice, however, such limits too often fall by the wayside. As a Senate Commission chaired by Daniel Patrick Moynihan found, “Any policy, including on classification and declassification, is only as good as its implementation.”

This report focuses on improved implementation, i.e., how to make sure that classifiers comply with existing criteria for classifying documents. It does not address ways in which the classification system could be improved by changing those criteria, such as revising agency classification guides—which govern many classification decisions—to eliminate classification categories that are outdated, unnecessary, or imprecise; requiring classifiers to weigh national security risks against the public interest in disclosure; or amending the National Security Act of 1947 to clarify that “intelligence sources and methods” may be classified only if their disclosure would harm national security. Measures to improve the substantive criteria for classification will form a critical piece of any successful reform effort, and their omission from this report should not be taken as an assessment of their relative importance. But the widespread failure of classifiers to comply with existing rules suggests that changing them will have little effect until we understand and address the persistent gap between rules and reality.

This report concludes that the primary source of the “implementation gap” is the skewed incentive structure underlying the current system—a structure that all but guarantees overclassification will occur. Numerous incentives push powerfully in the direction of classification, including the culture of secrecy that pervades some government agencies; the desire to conceal information that would reveal governmental misconduct or incompetence; the relative ease with which executive officials can implement policy when involvement by other officials, members of Congress, and the public is limited; the pressure to err on the side of classification rather than risk official sanctions or public condemnation for revealing sensitive information; and the simple press of business, which discourages giving thoughtful consideration to classification decisions. By contrast, there are essentially no incentives to refrain from or challenge improper classification. After all, classification is an easy exercise that can be accomplished with little effort or reflection; those who classify documents improperly are rarely if ever held accountable—indeed, there is no reliable mechanism in place to identify them; classifiers receive insufficient training in the limits of their authority; and those who have access to classified information are neither encouraged to challenge improper classification decisions nor rewarded for doing so.

In order to succeed, any effort to reduce overclassification must address this problem of skewed incentives. The final chapter of this report sets forth a reform proposal that would rebalance existing incentives, primarily by introducing accountability into the classification system. The proposal consists of six main parts:

• When classifying documents, officials would be required to complete short electronic forms in which they would provide explanations for their classification decisions.
• In each agency with classification authority, the Office of the Inspector General would conduct “spot audits” of classifiers, identifying those who exhibit serious tendencies to overclassify and subjecting them to periodic follow-up audits.
• Successive unsatisfactory audit results would result in mandatory escalating consequences for the individual classifier, agency management, and the agency itself.
• Agencies would be required to spend at least eight percent of their security classification budgets on training and to obtain approval of their training materials from the government office that oversees classification.
• Derivative classifiers (those who carry forward classification decisions made by others) would be “held harmless” if they failed to classify information whose status was ambiguous.
• Agencies would establish procedures to allow authorized holders of classified information to challenge classification decisions anonymously, and those who brought successful challenges would be given small cash awards.

We recommend that this proposal be implemented as a pilot project at one or more agencies. This could be accomplished largely if not exclusively through executive order and implementing regulation. The results of the project should be closely tracked and evaluated to assess both its benefits and its costs. If the proposal yields the expected dividends, it could be expanded through legislation. One thing is certain: the status quo is untenable. The classification system must be reformed if we are to preserve the critical role that transparent government plays in a functioning democracy.

In the News

• A Closed-Mouth Policy Even on Open Secrets (New York Times 10/5/11)
• Reducing Overclassification Through Accountability (Secrecy News 10/6/11)
• Secrecy: Making America Dumber and Less Democratic? (Harper's 10/7/11)
• The High Cost of Keeping a Secret (Washington Post 10/13/11)
• Obama and America's Culture of Secrecy (Reuters 10/14/11)
• Government Transparency Isn't About 200-Year-Old Books (Bloomberg 11/7/11)

About the Authors

Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program, which seeks to advance effective national security policies that respect constitutional values and the rule of law. Before coming to the Brennan Center, Ms. Goitein served as counsel to Senator Feingold, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee. As counsel to Senator Feingold, Ms. Goitein handled a variety of liberty and national security matters, with a particular focus on government secrecy and privacy rights. She also worked on matters involving immigration, juvenile justice, sentencing, prisoner re-entry, and First Amendment issues. Previously, Ms. Goitein was a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice. Ms. Goitein graduated from the Yale Law School in 1998 and clerked for the Honorable Michael Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit.

Ms. Goitein’s writing has been featured in major newspapers including The Washington Post, The Boston Globe, The San Francisco Chronicle, and The Philadelphia Inquirer, as well as prominent outlets such as Roll Call, The National Law Journal, and The Huffington Post. She has appeared on national television and radio shows including the PBS NewsHour and National Public Radio’s On the Media.

David M. Shapiro worked as Counsel in the Brennan Center’s Liberty and National Security Program, focusing on classification, government secrecy, and isolation conditions imposed on U.S. prisoners due to supposed connections to terrorist groups. Mr. Shapiro is currently a Staff Attorney at the ACLU’s National Prison Project, where he litigates cases and engages in advocacy regarding prison and detention conditions, including immigration detention, access to information about prison conditions, the right of prisoners to communicate with the outside world and to practice religion, and the freedom from arbitrary body cavity searches. Mr. Shapiro worked as an associate at Davis Wright Tremaine LLP, where he litigated First Amendment cases in federal trial and appellate courts, and served as a law clerk to Judge Edward R. Becker, United States Court of Appeals for the Third Circuit. Mr. Shapiro is a graduate of Harvard College and Yale Law School and studied in Moscow, Russia as a Fulbright Scholar.

Reducing Overclassification Through Accountability

This report is the first full accounting and analysis of this year's voting cutbacks. It details both the bills that have been proposed and the legislation that has been passed since the beginning of 2011.

Download the Report (PDF)

Download the Appendix (PDF), a compilation of potentially vote-suppressing legislation proposed in the 2011 legislative sessions.

Download the Overview (PDF), a four-page summary with key findings.

Read the Executive Summary

View the Report

Executive Summary

Over the past century, our nation expanded the franchise and knocked down myriad barriers to full electoral participation. In 2011, however, that momentum abruptly shifted.

State governments across the country enacted an array of new laws making it harder to register or to vote. Some states require voters to show government-issued photo identification, often of a type that as many as one in ten voters do not have. Other states have cut back on early voting, a hugely popular innovation used by millions of Americans. Two states reversed earlier reforms and once again disenfranchised millions who have past criminal convictions but who are now taxpaying members of the community. Still others made it much more difficult for citizens to register to vote, a prerequisite for voting.

These new restrictions fall most heavily on young, minority, and low-income voters, as well as on voters with disabilities. This wave of changes may sharply tilt the political terrain for the 2012 election. Based on the Brennan Center’s analysis of the 19 laws and two executive actions that passed in 14 states, it is clear that:

• These new laws could make it significantly harder for more than five million eligible voters to cast ballots in 2012.
• The states that have already cut back on voting rights will provide 171 electoral votes in 2012 – 63 percent of the 270 needed to win the presidency.
• Of the 12 likely battleground states, as assessed by an August Los Angeles Times analysis of Gallup polling, five have already cut back on voting rights (and may pass additional restrictive legislation), and two more are currently considering new restrictions.

States have changed their laws so rapidly that no single analysis has assessed the overall impact of such moves. Although it is too early to quantify how the changes will impact voter turnout, they will be a hindrance to many voters at a time when the United States continues to turn out less than two thirds of its eligible citizens in presidential elections and less than half in midterm elections.

This study is the first comprehensive roundup of all state legislative action thus far in 2011 on voting rights, focusing on new laws as well as state legislation that has not yet passed or that failed. This snapshot may soon be incomplete: the second halves of some state legislative sessions have begun.

In the News

• New State Rules Raising Hurdles at Voting Booth (New York Times 10/2/11)
• Study Predicts Voting Laws Will Change Political Landscape (Washington Post 10/3/11)
• Brennan Center: Millions Of Voters Impacted By New Photo I.D., Citizenship And Registration Laws (Huffington Post 10/3/11)
• Millions of legal voters face barriers, Brennan Center warns (The National Law Journal 10/3/11)
• Voter ID, Registration Laws May Affect 5 Million Americans in 2012 Election: Report (International Business Times 10/3/11)
• Study: New laws restrict voting for 5 million (USA Today 10/3/11)
• GOP War on Voting: New Laws Could Block Five Million From Polls (Rollingstone.com 10/3/11)
• Florida and other GOP-dominated states’ new elections rules could shut out 5 million voters next year (Palm Beach Post 10/3/11)
• The GOP's new voting laws: Disenfranchising 5 million Americans? (The Week 10/4/11)
• The Myth of Voter Fraud (New York Times 10/9/11)
• Why Isn’t Attorney General Holder Fighting GOP Efforts to Turn Back the Clock on Voting Rights (Foxnews.com 10/19/11)
• Voter ID, other initiatives follow GOP’s resurgence (Washington Times 10/23/11)
• Obama's Toughest Opponent: State Election Laws? (National Journal 10/20/11)
• New State Laws Could Impact 2012 Vote (WSJ 10/3/11)
• Study predicts voting laws will change political landscape (Washington Post 10/3/11)
• 2012 election: Disenfranchised voters, hacked machines? (CBSnews.com 10/3/11)
• Draconian laws could disenfranchise 5 million voters (The Bellingham Herald 10/3/11)
• Maine vote coalition: Study supports same-day law (Houston Chronicle 10/3/11)
• Study: Voter ID Laws Could Impact Millions (Commentary 10/3/11)
• Restrictions Could Keep Five Million Traditionally Democratic Voters From The Polls In 2012 (TPM 10/3/11)
• Report: New TX Voter Laws Reflect Major Nationwide Shift (Public News Service 10/11/11)
• Study Quantifies Impact of New Voting Laws (The Business Journal 10/3/11)
• The Pulse: The real mischief at the polls (The Philadelphia Inquirer 10/9/11)
• Democrats Launch Campaign To Counter Alleged GOP Voter Suppression (Huffington Post 10/5/11)
• Same-day Voter Registration at issue in Maine (Msnbc.com 10/9/11) 
• GOP Voting Laws Could Swing the 2012 Election (The Nation 10/3/11)
• The Republican "Voter Fraud" Fraud (The Guardian 10/31/11)
• Sen. Bill Nelson Wants Investigation of Election Law Changes (Orlando Sentinel 11/1/11)
• 5 Reasons Why You Should Care About New Restrictive Voting Laws (Colorlines 11/8/11)

Voting Law Changes in 2012

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Download Original Version (February 2011)

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Promoting Fair and Impartial Courts through Recusal Reform

Adam Skaggs and Andrew Silver[1]
Revised August 2011

[N]ow as never before, reinvigorating recusal is truly necessary to preserve the court system that Chief Justice Rehnquist called the “crown jewel” of our American experiment.

                                    The Honorable Thomas R. Phillips
                                    Retired Chief Justice, Supreme Court of Texas[2]

Reforming judicial disqualification practice in the states is necessary to combat mounting threats to public confidence in the judiciary.  In particular, recusal reform is needed to defeat the growing perception that judges’ decisions in the courtroom are influenced by partisan political concerns and — in the 39 states that elect judges — judicial campaign spending.  State and national surveys have repeatedly shown that large, bipartisan majorities are extremely wary of the role that money plays in judicial elections and believe that campaign funding support buys favorable legal outcomes.[3] 

In 2009, the U.S. Supreme Court recognized the corrosive effect that outsized judicial campaign spending can have on public perceptions of judicial legitimacy.  In Caperton v. A.T. Massey Coal Co.,[4] the Court concluded that it violated the Constitution’s guarantee of a fair, impartial tribunal when a judge who had benefitted from more than $3 million in campaign spending by the CEO of the Massey coal company — more than the total amount spent by all the judge’s other supporters, and by his own campaign committee — cast the tie-breaking vote to throw out a $50 million damages award Massey was appealing.  Recognizing that there was a “serious, objective risk of actual bias”[5] when the judge ruled on his principal benefactor’s case, the Supreme Court disqualified the judge.  At the same time, the Court emphasized that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires.[6] 

Two years after Caperton, although a handful of states have adopted promising new rules, the majority of state courts have failed to adopt any reforms that respond to the threats identified by the U.S. Supreme Court. 

The issue is, if anything, more relevant today than it was two years ago.  Judicial spending continues to spiral out of control.  Such spending in the decade between 2000 and 2009 more than doubled what was seen in the 1990s.[7]  In 2010, runaway spending in judicial elections reached uncontested retention elections in several states, introducing expensive and politically driven electioneering to races that had hitherto avoided the trends affecting contested judicial elections.[8]  And a highly politicized (if nominally non-partisan) 2011 supreme court election in Wisconsin shattered records for special interest spending on television advertising in a judicial contest.[9]  These trends show no signs of abating, making it imperative that state courts accept the Supreme Court’s invitation in Caperton and adopt strong recusal policies.

[1] Adam Skaggs is Senior Counsel in the Democracy program at the Brennan Center.  Andrew Silver is a graduate of NYU School of Law who worked with the Brennan Center’s Fair Courts project as a third-year law student.

[2] James Sample et al., Brennan Center for Justice, Fair Courts: Setting Recusal Standards 3 (2008), available at http://www.brennancenter.org/recusal_standards (“Setting Recusal Standards”).

[3] See, e.g., Adam Skaggs, Brennan Center for Justice, Buying Justice: The Impact of Citizens United on Judicial Elections 4-7 (2010), available at http://www.brennancenter.org/buying_justice (collecting survey data on national and state level data demonstrating that Americans believe, by significant margins, that campaign spending has an impact on judicial decision-making).  A recent national survey conducted by Harris Interactive showed widespread, bipartisan concern about the escalating influence of money in judicial elections and its potential to erode impartiality.  See Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), available at http://tinyurl.com/2c422fs.  Among the findings of the survey were the following:  71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. Id.  Only 23 percent of all voters believe campaign expenditures have little or no influence on elected judges. Id.  In addition, 82 percent of Republicans, and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election. Id.  Finally, 88 percent of Republicans, and 86 percent of Democrats, say that “all campaign expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking to elect each candidate. Id.

[4] 129 S. Ct. 2252 (2009).

[5] Id. at 2265.

[6] Id. at 2267 (quoting Republican Party of Minn. v. White, 536 U.S. 765, 794 (2002) (Kennedy, J., concurring)).

[7] See generally James Sample et al., The New Politics of Judicial Elections 2000-2009:  Decade of Change (2010), available at http://www.brennancenter.org/NPJE09 (“New Politics:  Decade of Change”).

[8] See Press Release, Brennan Center for Justice, 2010 Judicial Elections Increase Pressure on Courts, Reform Groups Say (Nov. 3, 2010), available at http://www.brennancenter.org/content/ resource/2010_judicial_elections_increase_pressure_on_courts_reform_groups_say/.

[9] See Press Release, Brennan Center for Justice, Special Interest TV Spending Sets Record in Wisconsin (Apr. 5, 2011), available at http://www.brennancenter.org/content/resource/ special_interest_tv_spending_sets_record_in_wisconsin/.

View the Guide

Download the Guide (PDF)

Foreword

Members of Congress, state legislators, and many city council and school board members are elected from districts. At least once per decade, the district lines are redrawn, block by block. The way in which district lines are drawn puts voters together in groups — some voters are kept together in one district, while others are separated into different districts. And in our system, whichever group has more votes within a district usually decides which representative wins.

The way the lines are drawn can keep a community together or split it apart, and can change whether a community has representatives who feel responsible for its concerns. The way the district lines are drawn can impact who wins an election. Ultimately, the way the lines are drawn can change who controls the governing body, and can also change which policies get passed into law.

The process for redrawing district lines is obscure, technical and varies from state to state. It is often done behind closed doors, far from the public eye. However, few decisions made by elected officials have as lasting an impact on the way we are governed. Secretive and unfair redistricting can have a huge impact on how decisions get made in local, state, and national policy. We all have an obligation to try to make the process more open and accessible.

This guide contains simple and accessible information on how each state manages the legislative and congressional redistricting process. We hope that you will use this resource to get involved in the redistricting process in your area.

50 State Guide to Redistricting

About the book: Erwin Chemerinsky, Dean of UC Irvine School of Law and author of The Conservative Assault on the Constitution:

“A brilliant collection of essays on one of the most important contemporary constitutional issues: when can and should the government be able to regulate campaign spending? … If there is to be a new jurisprudence in this area, this book is likely its foundation.”

About the conference that sparked the book: Stanley Fish, The New York Times:

“A-list First Amendment scholars … As a result of what had been said and proposed, something in the world might actually change.”

About the Brennan Center and Acknowledgements (pdf)

Table of Contents (pdf)

Foreword by Richard Leone

Preface by Michael Waldman

Introduction by Monica Youn (pdf)

The volume’s contributors include some of today’s most renowned constitutional scholars: Professor Mark Alexander, Professor Richard Briffault, Professor Deborah Hellman, Professor Frances Hill, Professor Samuel Issacharoff, Professor Burt Neuborne, Professor Richard Pildes, Dean Robert Post, Professor Geoffrey Stone, Professor Zephyr Teachout, and Brennan Center Senior Counsel Monica Youn.

Foreword

In the late 1990s, The Century Foundation and the Brennan Center for Justice at New York University School of Law collaborated to develop two publications focusing on the landmark Buckley v. Valeo campaign finance case. At the time, that 1976 decision, which pro­hibited caps on electoral spending, was viewed as the central obstacle to legislative reforms that could help to reduce the deleterious effects of money on democracy. One of those reports, titled Buckley Stops Here, conveyed the recommendations of a group of legal scholars for a strategic campaign to overrule or limit that decision. The follow-up edited volume, titled If Buckley Fell, was a collection of essays describing an alternative vision of a First Amendment that tolerates greater regulation of the flow of money into elections, without sacri­ficing any of the critical First Amendment moorings that are so criti­cal to a free society.

Last year, the Supreme Court reached an even more monu­mental decision in Citizens United v. Federal Election Commission, further inhibiting what Congress can do to regulate campaigns. That unwelcome development prompted the Brennan Center to join forces once again with The Century Foundation to publish a new collection of essays, this time focused on Citizens United. Although we are clearly fighting an uphill battle, to say the least, we remain convinced that the influence of money on American democracy denigrates the integrity of the republic. Rather than acquiesce to the ongoing judicial assault against campaign finance laws enacted by elected officials, both the Brennan Center and The Century Foundation remain deeply committed to finding ways to diminish the outsized clout of money in elections and governing.

We thank Michael Waldman, executive director of the Brennan Center, and his colleagues for working with us on this project. Perhaps one day down the road our efforts will lead to a campaign finance decision that we can celebrate together.

Richard C. Leone, President
The Century Foundation

Preface

The struggle for democracy is at the heart of our history. American politics has long been convulsed by scandal and reform. Results rarely are pretty. The line dividing private economic power and the public realm shifts and slides with the felt necessity of the times.

Then, in Citizens United v. Federal Election Commission, the U.S. Supreme Court abruptly erased and redrew that line again. Overturning decades of precedent and dozens of laws, five justices ruled that corporations and unions had a constitutional right to spend unlimited sums in elections. The ruling earned banner headlines, a sharp State of the Union rebuke, and public disapproval hovering near 80 percent in the polls. In the 2010 election, independent spend­ing spiked, much of it secret, with more to come. The decision ranks among the Court’s most controversial and consequential.

Yet Citizens United was no bolt out of the blue. It was the product of a decades-long legal drive to rethink doctrine and, ulti­mately, strike down the edifice of campaign law. This jurispruden­tial movement drew inspiration from the 1971 memo drafted by soon-to-be Justice Lewis Powell that urged corporate leaders to fund scholars and public interest legal groups to promote a “free market” approach in the courts. Former Federal Election Commission chair Bradley Smith bragged to the New York Times that Citizens United was the fruit of “long-term ideological warfare.” This effort was bold, strategic, and willing to rethink basic premises. It has been markedly effective.

Above all, it sought to advance a powerful but narrow notion of the First Amendment, focused on the rights of the speaker, espe­cially corporate speakers. Until 1976, courts rarely if ever applied the First Amendment to campaign finance laws. By 2010, claims of “free speech” were wielded to overturn campaign laws dating back decades at least. Nearly forgotten in the emerging jurisprudence were the interests of voters, of a workable government, or of democracy itself.

Even as the Court’s conception of democracy has continued to narrow, new strategies and technologies are shaking and remaking the world of politics. New media create the possibility for positive change, from the role of low-cost social media, to the small donor phenomenon, to the possibility of real-time transparency in cam­paign spending. These trends can be magnified by reforms such as multiple matching funds for small contributions. But these shoots of reform could be washed away by the tide of big money in the wake of Citizens United.

We cannot ask courts to craft the institutional mechanisms for an effective democracy, but we can insist that courts allow those mechanisms to be created. In short, we must build a new jurispru­dential movement, one that advances a vision of the Constitution as a charter for a vibrant democracy. This effort will call on the talents of the most powerful minds in law and the academy. The fight for democracy cannot be waged from an ivory tower: instead, such a movement can draw strength from a true dialogue between scholars and an active citizenry.

The Brennan Center for Justice at NYU School of Law is proud to play a leading role in launching such a movement. This volume and the symposium that produced it are among the first steps. We expect this thinking to play out in law reviews, briefs, and ultimately court decisions. For example, already many of these scholars have put their ideas into effect in amicus briefs in ongoing litigation, including the defense of public financing. These ideas do not advance in lock­step. Participants here disagree on many things (indeed, including the basic question of whether Citizens United was rightly decided). But all agree that constitutional interests are not hostile to our demo­cratic values—instead, strengthening democracy is the very core of our constitutional enterprise.

As Justice Robert Jackson once wrote, the Constitution is not “a suicide pact.” Similarly, the First Amendment is not a hostage note. Fealty to a narrow ideology of free speech ought not threaten democracy or workable governance. It is time to craft a constitution­al vision that allows “we the people,” directly and through elected representatives, to create our own democracy.

We are thrilled to publish this important volume with The Century Foundation. The newly created Brennan Center forged an important partnership with the Foundation nearly fifteen years ago, and we are glad to renew this collaboration now. We want to thank all of the contributors for pushing forward an ambitious jurispru­dential movement, and all at The Century Foundation who helped make this volume happen, including Richard Leone for his leader­ship, and Greg Anrig, Jason Renker, Carol Starmack, Christy Hicks, and Laurie Ahlrich for their excellent work on this project.

Michael Waldman, Executive Director
The Brennan Center for Justice at NYU School of Law

About the book

Money, Politics, and the Constitution: Beyond Citizens United
Edited by Monica Youn

Published by The Century Foundation Press & Brennan Center for Justice
Publication Date: April 28, 2011
ISBN: 978-0-87078-521-4
266 pages

For more information on Money, Politics, and the Constitution, please visit www.brennancenter.org, or call Jeanine Plant-Chirlin at 646-292-8322.

The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution— part think tank, part public interest law firm, part advocacy group—the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector.

The Century Foundation conducts public policy research and analyses of economic, social, and foreign policy issues, including inequality, retirement security, election reform, media studies, homeland security, and international affairs. The foundation produces books, reports, and other publications, and convenes task forces and working groups. With offices in New York City and Washington, D.C., The Century Foundation is nonprofit and nonpartisan and was founded in 1919 by Edward A. Filene.

The Brennan Center has a limited supply of posters -- are you an activist or community organization member who could really use this tool to educate your constituency on this crucial, once-per-decade event? Request your own copy. Also, scroll down or click here (PDF) to have a look at the final product:

Know Your Lines

Introduction

About the Authors

View the Full Report

Download Survey Questions and Results

_________________________________________

Introduction

In this year’s State of the Union address, President Obama called for “our generation’s Sputnik moment.” Before 43 million viewers, he rallied Americans to meet the new challenges of the global economy, particularly those posed by China’s and India’s growing economic power. The productivity of American workers is unmatchable, he argued, but their deficiency in science and math puts the nation at a severe disadvantage against the global economic competition. To overcome this, the President pledged government resources, including the training of 100,000 new science and math teachers.

Of course all of this is positive. We urgently need a public commitment to science and math education of the sort that propelled us to our space race victory, putting men on the moon along the way. But with this economic focus, the President did not con¬front an equally urgent educational need central to our democracy, one that is at the very heart of why Americans are falling behind: civic literacy. As former Harvard University President Derek Bok observed in 2002: “Civic education in the public schools has been almost totally eclipsed by a preoccupation with preparing the workforce of a global economy.” As multiple national studies and our findings in this report all demonstrate, few Americans have the requisite knowledge to engage in a democratic policy discussion. Few know anything about the three branches of government, their functions, or how an idea becomes a law. And even fewer would know how to effect the changes recommended by the President, or those called for in this report.

The findings of this report are based on a telephone survey conducted in the summer of 2010 of just over one thousand registered New York voters, conducted by Princeton Survey Research Associates for the Brennan Center for Justice. We polled a diverse sample of New Yorkers on their attitudes toward civic literacy and its necessity, and we tested their familiarity with prominent elected officials, governmental and legislative processes, and the U.S. Constitution itself. Against the backdrop of previous studies, our evidence shows that New Yorkers, like most Americans, know very little about their Constitution and their government.

Without civic literacy we cannot maintain a vigorous democracy. And our civic illiteracy will only get worse if we limit our race to the top to only math and science.

_________________________________________

About the Authors

Eric Lane is the Eric J. Schmertz Distinguished Professor of Public Law and Public Service at Hofstra University School of Law, where he has been teaching since 1976. He teaches courses relating to the structure and processes of government. He has co-authored two texts on legislation and statutory interpretation with the Honorable Abner J. Mikva. He also recently wrote a book with Michael Oreskes, who is the Senior Managing Editor of the Associated Press, titled The Genius of America: How the Consitution Saved Our Country — And Why It Can Again. Professor Lane is the Senior Fellow at the Brennan Center for Justice.

Meg Barnette, former Chief Operating Officer (COO) of the Brennan Center, is now Vice President of Strategic Initiatives for Planned Parenthood of New York City. Ms. Barnette was a Skadden Fellow at the Lawyers Alliance for New York and clerked for Judge Robert P. Patterson, Jr. of the U.S. District Court for the Southern District of New York. She received her J.D. from NYU School of Law, where she was a Root-Tilden Scholar, and a B.A. with honors from the University of Chicago.

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A Report Card on New York's Civic Literacy

Summary

About the Author

View on Scribd: Rethinking Radicalization

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Summary

Radicalization is complex. Yet a thinly-sourced, reductionist view of how people become terrorists has gained unwarranted legitimacy in some counterterrorism circles. This view corresponds with—and seems to legitimize—“counter-radicalization” measures that rely heavily on non-threat-based intelligence collection, a tactic that may be ineffective or even counterproductive. Only by analyzing what we know about radicalization and the government’s response to it can we be sure that these reactions are grounded in fact rather than stereotypes and truly advance our efforts to combat terrorism.

The government’s lead agencies to combat radicalization recognize the complexity of the radicalization process. However, they have not expressly repudiated theories suggesting it is possible to detect radicalization long before people take concrete steps toward violence.

Domestic law enforcement agencies, including the FBI and state and local police departments, have stepped into the breach, developing simplistic theories, such as the “religious conveyer belt” theory, of how American Muslims become radicalized. These theories suggest, contrary to empirical social science studies, that the path to terrorism has a fixed trajectory and that each step of the process has specific, identifiable markers, according to the report.

This accepted understanding of how someone becomes a terrorist influences the selection of investigative techniques. For example, according to the report, the assumed link between religiosity and terrorism encourages intrusion into mosques, traditionally considered off-limits to the government absent a specific connection to suspected criminal or terrorist activity.

This emphasis on intelligence collection about radicalization, much of which involves First Amendment-protected speech and activities, has undermined a much-touted prong of the government’s strategy—the attempt to engage American Muslim communities in the fight against terrorism.

“Many American Muslims believe their communities are treated as inherently suspicious by the government,” states the report. “As a result, while American Muslim communities have been invaluable partners in the government’s counterterrorism efforts, some American Muslims are becoming more guarded in their relations with law enforcement agencies. The obvious tension between the government’s various responses to radicalization is increasingly noted, but remains unaddressed: Can a community simultaneously be treated as suspect and also be expected to function as a partner?”

The report has specific recommendations for the federal government to recalibrate its approach to radicalization, including:

• Repudiating the unfounded theory of radicalization that is popular with law enforcement agencies;
• Establishing a mechanism to evaluate the effectiveness of the plethora of anti-radicalization measures that have been undertaken;
• Constituting the Privacy and Civil Liberties Oversight Board (already mandated by Congress) to analyze the civil liberties impact of counter-radicalization policies, particularly on American Muslims’ First Amendment freedoms;
• Increasing the transparency of law enforcement policies in this area; and
• Reconfiguring its outreach activities to Muslim communities to ensure sustained outreach at the local level accompanied by a serious policy dialogue at the national level.

________________________________________

ABOUT THE AUTHOR

Faiza Patel is Co-Director of the Liberty and National Security Program at the Brennan Center, focusing on civil liberties issues affecting Muslims in the United States. Before joining the Brennan Center, Ms. Patel worked as a senior policy officer at the Organization for the Prohibition of Chemical Weapons in The Hague. She clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia, and previously worked as an associate at Debevoise & Plimpton in Washington, DC.

Ms. Patel’s academic work is published in the American Journal of International Law, the Emory Journal of International Law, the European Journal of International Law, the Hague Yearbook of International Law, and the NYU Journal of International Law and Politics.

Ms. Patel is also a member of the United Nations Human Rights Council’s Working Group on the Use of Mercenaries. Born and raised in Pakistan, Ms. Patel is a graduate of Harvard College and the NYU School of Law.

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Introduction

About the Authors

View on Scribd: A Media Guide to Redistricting

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Introduction

Before it even began, this redistricting cycle promised to be very different from any before. Large population shifts from the Midwest and Northeast to the South and Southwest, significant growth in the Latino population, sweeping mid-term Republican victories, a new citizen’s redistricting commission in California, and technological advances that allow the public to play a more prominent role than ever before all mean this round of redistricting will create widespread curiosity and interest.

As is well known, redistricting often devolves into a naked bid for partisan advantage. At times of partisan stalemate, the two parties sometimes opt for safety, cutting deals in what NYU professor Samuel Issacharoff has labeled “political cartels.”1 This year, sharp swings to Republican control in numerous statehouses mean that this redistricting cycle may have a significant partisan impact going forward.

As the media explores these new and noteworthy events, there is an underlying story that merits telling: that redistricting has real consequences for communities and how they are represented in our government. We encourage the media to cover not just the drama of political infighting and territorial battles, but also to discover the public interest story of how district lines can embrace or divide the communities that make up our country, and determine whether and how communities have a cohesive voice in our democracy.

The process for redrawing district lines is obscure, technical and varies from state to state. It is often done behind closed doors, far from the public eye. We assume that this is inevitably the exclusive realm of party bosses and savvy operatives – and that it always has been, and always will be that way. Perhaps. But few decisions made by elected officials have as lasting an impact on the way we are governed. Secretive and unfair redistricting can tilt the terrain on which decisions get made. We all have an obligation to try to crack open the doors of the process. There is a tremendous story to be told, and the media can play a vital role in telling it.

We hope this Guide gives the media information and tools to open the doors and bring public awareness and, where needed, scrutiny to a process that is frequently obscure and opaque. The Guide offers a comprehensive yet comprehensible discussion of redistricting issues, information on how redistricting is conducted in each state, and comparison charts of various redistricting methods. Throughout the Guide, we suggest things to look for as you cover the issue.

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ABOUT THE AUTHORS

Erika L. Wood is the Deputy Director of the Brennan Center’s Democracy Program. She directs the Right to Vote project as well as the Center’s Redistricting & Representation project. Ms. Wood has designed and launched major reform campaigns around the country and provides legal counsel and strategic guidance to advocates, legislators and policymakers nationwide. She created the Brennan Center Law Enforcement and Criminal Justice Advisory Council as well as the Center’s Communities of Faith Initiative. Ms. Wood has authored several groundbreaking reports, numerous articles and legal briefs and is a frequent speaker and commentator on voting rights, criminal justice reform and racial justice issues. In 2009, Ms. Wood was awarded the Eric. R. Neisser Public Interest Award by Rutgers Law School in recognition of her efforts to carry forward the Law School’s mission of providing liberty and justice for all. Ms. Wood is an Adjunct Professor at NYU School of Law where she teaches the Brennan Center Public Policy Advocacy Clinic.

Myrna Pérez is Senior Counsel for the Democracy Program at the Brennan Center for Justice. Ms. Pérez works on a variety of voting rights related issues, including redistricting, voter registration list maintenance, and access to the ballot box. Prior to joining the Center, Ms. Pérez was the Civil Rights Fellow at Relman & Dane, a civil rights law firm in Washington, DC. A graduate of Columbia Law School and the Harvard Kennedy School of Government, Ms. Pérez clerked for the Honorable Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania and for the Honorable Julio M. Fuentes of the United States Court of Appeals for the Third Circuit. Ms. Pérez is the author of Voter Purges, a Brennan Center publication.

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Executive Summary

About the Author

View on Scribd: Transparent Elections after Citizens United

________________________________________

Executive Summary

Where do disclosure laws stand post-Citizens United? What does the 2010 U.S. Supreme Court ruling mean for state-based laws? And are disclosure laws constitutionally sound?
This report examines these questions and urges transparency through modest changes to state-based election laws. The report finds that recent Supreme Court decisions reaffirm the constitutionality of disclosure—and show an ongoing need to promote transparency in the money in politics realm.

The first part of the report offers a primer on campaign finance laws in 2011. In case after case, the U.S. Supreme Court has upheld the constitutionality of both disclaimers and disclosures for two types of political ads: (1) independent expenditures which expressly advocate for or against a candidate and (2) electioneering communications.

The second part of the report shows an urgent need for states to improve their disclosure laws in the wake of the Citizens United decision. In 24 states, new political players are now allowed into elections. Yet even in states that were not directly affected by the recent Supreme Court ruling, there is an urgent need to ensure that extant disclosure laws are in step with the way modern elections are conducted. Moreover, this report shows that states focus not only on spending by candidate committees and political parties, but also on outside spending by interest groups which is done independently of candidates or parties.

The third section explores the Constitutional interests states have in providing the voting public with robust disclosure of the sources of money in politics including:

• The Voter Informational Interest in Candidate Elections;
• The Anti-Corruption Interest in Candidate Elections;
• The Anti-Circumvention Interest in Candidate Elections;
• The Electoral Integrity Interest in Ballot Initiatives; and
• The Due Process Interest in Judicial Elections.

Policy suggestions are laid out in part four of this report. First, mimicking the campaign finance reporting that is required in federal elections, states should adopt laws to capture the funders of independent expenditures. Second, states should adopt disclosure for electioneering communications (or what are often known as “sham issue ads”). However, these disclosure laws should be crafted carefully to avoid capturing tiny political expenditures in state elections. Third, states can consider adopting disclosure laws that are more expansive than federal laws. For example, the federal law does not currently regulate electioneering communications that appear in print. But states may have many valid reasons for requiring disclosure of non-broadcast sham issue ads.

Given the expanded use of non-profits to veil political spending, states need to take a hard look at whether their current disclosure laws capture this type of spending adequately. Examples from California and Minnesota show how states might tackle this thorny issue through reporting requirements. An example from Connecticut also shows how states may achieve transparency through the use disclaimers which name top funders in the political ad itself.

Finally, this report encourages accountability for corporate political spending through modest changes to states’ corporate laws in addition to changes to their elections laws. These changes could include requiring companies to provide shareholders with a comprehensive list of political spending on a periodic basis and/or allowing shareholders the ability to vote on a corporation’s future political budget.

This report concludes that the Citizens United, Doe, and Caperton cases reaffirm both the constitutionality of disclosure and the continuing need for transparency around who is funding election battles. Consequently, states have wide latitude to require disclosures not only from classic political committees, but also any entity funding independent expenditures or electioneering communications in future state elections.

________________________________________

ABOUT THE AUTHOR

Ciara Torres-Spelliscy is Counsel for the Democracy Program at the Brennan Center, working on campaign finance reform and fair courts. She provides constitutional and legislative guidance to lawmakers who are drafting bills. In 2010, she testified before Congress about responses to Citizens United. Ms. Torres-Spelliscy earned her B.A. magna cum laude from Harvard. She earned her J.D. from Columbia Law School. She is the co-author along with Ari Weisbard of What Albany Could Learn from New York City: A Model of Meaningful Campaign Finance Reform in Action. Ms. Torres-Spelliscy has been published in the New York Times, New York Law Journal, U.S. News and World Report, Boston Review, Roll Call, Business Week, Forbes, Business Ethics Magazine, San Francisco Chronicle, The Hill, Huffington Post, The Root.com, Salon.com, CNN.com, and the ABA Judges Journal. 

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Introduction by Michael Waldman

Download the Collected Writings (PDF)

View the Collected Writings

Introduction

This January marked the one-year anniversary of Citizens United—the Supreme Court ruling that upended decades of law. We have only begun to see its impact on our politics. Plainly, it will worsen a political and governmental system that already is far too dysfunctional, far too divided, and far too paralyzed by special interests. This broken government helped cause the economic crisis, and now makes it far harder to meet the country’s long-term challenges of recovery and renewal.

But our democracy has never faced a challenge that could not be met by more democracy. We believe more passionately than ever that if we want to solve the problems facing ordinary Americans, we must fix our systems.

This volume is a sample of the Brennan Center’s work on all fronts in the fight for democracy and justice in 2010. We stepped forward to lead the legal defense in the wake of Citizens United, as an armada of lawsuits sought to destroy the rest of campaign fi nance law. We enlisted the nation’s top constitutional experts in a movement to develop and advance a new voter-centric legal doctrine. Our advocacy led seven states to implement parts of our Voter Registration Modernization plan, resulting in hundreds of thousands of new voter registrations with lower costs and reduced risk of fraud. And with Congress paralyzed, we focused on the Obama administration and state courts to press for improved access to justice, especially for racial and language minorities.

We are proud of our work and proud of how we do it. We write reports, draft legislation, litigate cases before the Supreme Court, provide Congressional testimony, publish op-eds, convene top thinkers, and build bipartisan coalitions. We are independent, nonpartisan, and fact-based.

We continue the fight in 2011. We will defend strong campaign laws, including the case before the high court considering the constitutionality of a public financing system for the first time in 35 years. Our experts will continue to develop innovative policy reforms to make government work better and more transparently. We will fiercely fight efforts to curb voting rights and access to justice. And we will engage in the broader public debate over the courts, the Constitution, and the role of government.

This time of contention can be a clarifying moment in the long drive toward a "more perfect union."

Democracy & Justice: Collected Writings, Vol. IV

In a difficult fiscal environment, citizens may reasonably question whether there are more pressing needs on which to spend their tax dollars than photo ID rules, and state legislators should seriously consider whether photo ID laws are worth their considerable costs. In doing so, legislators should consider the myriad other measures already in place in their states to guard against voter fraud—which have been very effective at deterring such fraud —as well as less expensive measures to increase the security of elections, including voter ID laws that allow voters who do not have photo ID to demonstrate their identities at the polls by other means. Legislators who still wish to pursue photo ID requirements for voting must ensure that the laws provide for free photo IDs, ensure that IDs are reasonably accessible to all eligible voters, and include sufficient voter education and outreach programs and poll worker training.

Download paper [pdf]

The Costs of Voter ID Laws

Letter to Gov. Cuomo (Download)

View the Report (Download)

About the Authors

NYT Editorial: Gov. Cuomo's Promised Reforms

Introduction

Rocked by scandal, Albany is both in dire straits and at the precipice of potentially positive change. In the coming months, as the State makes hard choices that will greatly impact every New Yorker, our elected leaders need to regain their standing with the public by reforming a system that far too many see as corrupt and lacking legitimacy.

The Public Employees Ethics Reform Act (PEERA) of 2007 was the only comprehensive modification to lobbying and ethics laws in New York State in more than 20 years.  The legislation was negotiated, drafted and adopted without public discussion or debate. While PEERA included a strict ban on honoraria, increased penalties, and reduced the allowable value of gifts, critical reforms were absent.  In particular, calls for an independent, bipartisan commission with jurisdiction over all public officials, including the executive and legislative branches and lobbyists, were ignored, and New York was left with the bifurcated and confusing system of ethics oversight that has largely stood by, mute, through a series of scandals on the legislative side.

As this study details, PEERA has in many ways been a complete failure. Since its passage, the number of scandals in the legislature has only increased, and the influence of special interest money seems to have gained even greater currency, corrupting government officials and cheating the people of the State.

The purpose of this report is to emphasize the core reforms that we believe are vital to fundamentally change Albany. Ultimately, the success of reform legislation will reside in the details, so we urge lawmakers to invite all stakeholders in this process, including our existing ethics overseers, law enforcement officials, the academy, good government groups, but especially the public, to have an opportunity to review and comment on their bill.

Letter to Gov. Andrew Cuomo with Executive Summary

Meaningful Ethics Reform for the "New" Albany

Download the report as a PDF.

About the Authors

Lawrence Norden is Senior Counsel with the Brennan Center’s Democracy Program. Mr. Norden has authored numerous articles and reports detailing the need to reform New York State's legislative process, and he manages and writes for the Brennan Center's blog on New York State, ReformNY. Mr. Norden is an Adjunct Professor at the NYU School of Law, where he teaches the Brennan Center Public Policy Advocacy Clinic. Mr. Norden is also a recognized expert on issues of voting technology and Director of the Brennan Center's Voting Technology Project.

Kelly Williams is Corporate General Counsel to the Brennan Center. In addition to serving as internal general counsel, she advises various programs at the Center on corporate, non-profit, tax, disclosure and ethics law matters and writes for our blog ReformNY.

John Travis is a Research Associate with the Brennan Center's Democracy Program. His work focuses on government accountability, voting rights and elections and he also writes for our blog ReformNY. Prior to joining the Brennan Center, Mr. Travis worked for the Lawyer Referral Service at the Bar Association of San Francisco. He graduated Phi Beta Kappa from U.C. Berkeley in 2008 with a degree in Political Science.

Introduction

Key Findings

Recommendations

About the Author

View on Scribd: Domestic Intelligence: New Powers, New Risks

Panel Discussion

________________________________________

Introduction

Successful domestic counterterrorism policy is vital to keep the homeland safe. In this effort, policymakers must resist the oft-exhibited tendency to overreact to the threats we face. This overreaction, time and again, takes a similar form: In the face of a perceived existential threat, we expand the scope of the government’s powers while simultaneously diminishing oversight of and accountability for the use of those powers. We fail to ensure that these powers will be employed in a manner consistent with our fundamental values. Civil liberties—such as privacy and freedom of expression, association, and religion—are often curtailed. In the wake of 9/11, government action exhibited this tendency across a wide range of counterterrorism policies.

To his credit, President Obama acknowledged this overreaction in several areas, implementing much-needed modifications to inherited policies, which improved procedural protections, guarded against civil liberties vio¬lations, and increased transparency. But in many respects, the Obama Administration’s counterterror efforts resemble those of the Bush Administration’s second term. This is especially true in the context of countering domestic terrorism threats.

One key example: The Obama Administration’s choice to rely upon rules drafted by its predecessor to increase the FBI’s authority for domestic investigations, including probes into terrorist threats. We believe these rules, known as the Attorney General’s Guidelines for Domestic FBI Operations, tip the scales too far in favor of relatively unchecked government power, allowing the FBI to sweep too much information about too many innocent people into the government’s view. In so doing, they pose significant threats to Americans’ civil liberties and risk undermining the very counterterrorism efforts they are meant to further.

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KEY FINDINGS

The Attorney General Guidelines’ Evolution

The Guidelines function as the primary constraint on the FBI’s operations. Initially implemented in response to perceived domestic-intelligence-collec¬tion abuses by the FBI, they represented an effort to reject the pre-guidelines practice of broad intelligence-collection activities unrelated to crimes or threats and instead to treat domestic threats as a facet of criminal law enforcement. The purpose of the original Guidelines was thus to constrain the FBI’s intelligence-collection role within acceptable bounds, to prevent it from interfering unduly in the lives of law-abiding groups or individuals, and to tether the FBI’s activities to the detection and prevention of crime.

But over time, and especially in the wake of perceived domestic intelligence and crime prevention failures, the lessons of history seem to have faded. Successive sets of guidelines, while expanding the breadth of their coverage, have loosened restrictions on FBI operations. This loosening is exhibited in four trends:

0. Expansion of the FBI’s domestic-intelligence-collection and analysis role;
0. Relaxation of the standards required needed to engage in investigative activity;
0. Reduction in both obligatory and discretionary limits on the intrusiveness of investigative techniques; and
0. Fewer oversight and supervisory approval requirements.

The Risks Created by Expanded FBI Authority

Lessons of the FBI’s history teach us that in our pursuit for security, the absence of sufficient oversight and limitations on intelligence-collection activities results in threats to civil liberties. There are four ways in which such threats are likely to manifest in light of the current Guidelines:

0. Increased intelligence-collection powers will likely lead to undue intrusions into the privacy of law-abiding Americans.
0. Anecdotal evidence suggests that the Guidelines already have chilled First-Amendment-protected activity, and they likely will continue to do so.
0. Perceived profiling by the FBI’s counterterrorism agents will alienate certain communities, thus rendering them less willing to cooperate with law enforcement.
0. The Bureau is unable to analyze effectively the information it has collected because there are such vast volumes of information unrelated to indications of wrongdoing or threat.

In the face of these possible adverse effects, the executive branch has yet to articulate persuasively any countervailing op¬erational considerations that would justify retaining the most recent changes to the Guidelines.

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RECOMMENDATIONS

Oversight Recommendations

Both Congress and the Justice Department should act to ensure vigorous oversight of the Guidelines’ use. There must be meaningful internal and external checks on the vast powers the FBI have been granted. The following recommendations would accomplish this goal:

0. Restore the requirements of prior approval for initiating, conducting, and continuing or extending investigations.
0. Require records of prior approval to be in writing and kept on record.
0. Implement a robust system of oversight and review of the Guidelines’ implementation and efficacy within the Justice Department.
0. Congress also should exercise vigorously its oversight powers—through oversight hearings or by tasking the General Accounting Office with responsibility for conducting audits of the FBI’s use of the Guidelines—to police the FBI’s use of its authorities.

Substantive Recommendations

0. Prohibit the FBI from using highly intrusive investigative techniques unless there is some basis in fact to suspect wrongdoing.
0. Require agents to use the least intrusive investigative technique that is likely to prove effective.
0. Prohibit improper consideration of race, religion, ethnicity, national origin, or First-Amendment-protected activity in investigative decisions.

Conclusion

The time to act is now—before the Guidelines result in widespread and unwarranted intrusions into Americans’ privacy, harmful religious and ethnic profiling, and the divergence of scarce resources to ineffective and indis¬criminate collection of information.

The changes recommended above will go a long way to reduce the risk of excesses that the current Guidelines permit. They would reinvigorate the substantive standards on which investigative activity should be predicated and would ensure that intrusive investigative methods are used only when necessary. And they would impose internal and external checks to guarantee the lawful, effective use of the powers conferred on federal agents. In short, they would safeguard Americans’ rights of privacy, free expression, association, and religion as well as help to focus investigative activity where there are indications of threats. The result will be a safer, more just America.

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ABOUT THE AUTHOR

Emily Berman is Counsel in the Liberty and National Security Program at the Brennan Center for Justice. She works through litigation, advocacy, and scholarship to promote rights-protecting and effective oversight of United States national security policy. Before joining the Brennan Center, Ms. Berman was at New York University School of Law pursuing her LL.M. in International Law. She clerked for Judge John M. Walker of the Second Circuit Court of Appeals and graduated magna cum laude from New York University School of Law (2005).

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________________________________________

The Brennan Center recently hosted a panel discussion on Capitol Hill about the FBI’s expanded domestic intelligence authority. Moderating the discussion was NBC’s Michael Isikoff. On the panel was Rep. Rush Holt and the Center’s Emily Berman.

A video clip from the panel is below. You can also view the entire video here.

Download the Report (pdf)

Forward

About the Editor

Foreword

Purpose. The Brennan Center for Justice at New York University School of Law has designed this manual for people who want to draft campaign finance reform legislation that is both appropriate for their community and sensitive to constitutional concerns. Because different laws may be appropriate in different states and localities, the handbook will not tell you what provisions to include in legislation you draft. In our view, people with ties to communities interested in reform are in the best position to determine what legislation is needed and achievable. We therefore do not provide model laws here, but we do identify organizations that can provide such models.

Rather than providing a blueprint for reform, we offer practical suggestions and legal analysis that will assist reformers in selecting and drafting appropriate campaign finance provisions. The handbook certainly should help drafters who wish to maximize the potential for avoiding a lawsuit or succeeding in court if their legislation is challenged, so that campaign finance reform can be implemented expeditiously. The manual also should be of use to activists who aim to push the envelope of permissible reform by drafting statutes or initiatives that can serve as the basis for test cases. Both groups of drafters must understand the state of current law to accomplish their purpose.

We focus primarily on the drafting of statutes or initiatives that will govern state elections. Our recommendations and analysis also apply, however, to local campaign finance laws. Special issues that must be faced when attempting to regulate municipal campaign finance are addressed briefly in the Epilogue.

Format. The main body of the handbook is divided into two Parts. Part One discusses areas of general concern to anyone who is engaged in drafting campaign finance laws. Part Two focuses on specific regulatory measures that are often considered by reformers at both the state and local level. We include four appendices—a chapter-by-chapter list of cases cited in the handbook; a table of the federal courts of appeals and the states within each circuit’s jurisdiction; a compilation of cited articles, books, and other resources; and a list of national organizations that collect data, provide assistance, or otherwise work on campaign finance issues.

For ease of use, the chapters in Part Two (Drafting Specific Campaign Finance Measures) separate our practical TIPS from our more technical LEGAL ANALYSIS. The TIPS are suggestions for drafters who do not necessarily have formal legal training. The LEGAL ANALYSIS section discusses the case law relevant to the  provision at issue, and other legal considerations, for lawyers who are participating in the drafting process and others interested in understanding the relevant  legal framework.

Warning. This handbook is only a beginning. Campaign finance is an extremely volatile area of the law. New initiatives and statutes are being drafted even as this book goes to print, and some, if not most, of those laws will be challenged in court. The decisions in those cases and others now pending throughout the  nation could radically alter the legal framework for reform.

We have therefore dated each chapter in the footer. We will periodically update the handbook and revise chapters to reflect new judicial decisions and evolving practical experience under different campaign finance systems. If you are unsure whether you have the current version of a chapter, do not hesitate to inquire. In addition, our analysis is limited to cases interpreting and applying federal constitutional law. In some states, the state constitution or state statutes may set additional limits on the types of reform that may be implemented.

In addition, opinions published by state Attorneys General and existing state regulatory requirements will influence the reform landscape. A careful legal analysis of any applicable state (and, where appropriate, local) law should always be completed before proposing any new campaign finance legislation—whether by  statute or initiative.

We therefore cannot emphasize too strongly how important it is to supplement this handbook with high quality legal advice. Look for attorneys who are experienced in the field, follow developments in the area, and can bring a critical perspective to proposals you may wish to consider. Even if lawyers in your community are helping you to draft legislation, it is advisable to invite outside counsel to review the proposal with a disinterested eye. Lawyers at the Brennan  Center may be consulted by telephone: 646-292-8310 or via e-mail: brennan.center@nyu.edu. Please include “Campaign Finance Question” in the subject line.

Writing Reform: A Guide to Drafting State and Local Campaign Finance Laws
Ciara Torres-Spelliscy, ed., Brennan Center 2010

Annotated Table of Contents
Foreword

Part One: Principles of General Concern
Chapter One: The Constitutional Framework: Buckley v. Valeo
Chapter Two: Drafting Laws to Survive Challenge

Part Two: Drafting Specific Campaign Finance Reforms
Chapter Three: Financing Candidates’ Campaigns
Chapter Four: The Financing of Political Organizations
Chapter Five: Limits on Campaign Spending
Chapter Six: Limits on Independent Expenditures
Chapter Seven: Campaign Advertising and Issue Advocacy
Chapter Eight: Reporting and Disclaimer Rules
Chapter Nine: Public Financing of Candidates' Campaigns
Epilogue: A Note on Local Legislation

Part Three3: Appendices
Appendix A: Chapter-By-Chapter Table of Cited Cases
Appendix B: Lay Person’s Guide to Federal Circuits 
Appendix C: List of Cited Articles and Books
Appendix D: Selected List of National Organizations Offering Resources for Campaign Finance Reformers

About the Editor

Ms. Torres-Spelliscy earned her B.A. magna cum laude from Harvard in 1997, specializing in Afro-American Studies. She earned her J.D. from Columbia Law School in 2001. Before joining the Brennan Center she worked at the law firm of Arnold & Porter LLP and was a staff member of Senator Richard Durbin. She provides constitutional and legislative guidance to lawmakers who are drafting bills. She researches and speaks publicly on campaign finance law as well as judicial selection. Ms. Torres-Spelliscy has testified before Congress as well as state legislatures.  For the Fall of 2010, she will teach Constitutional Law as an adjunct professor in Rutgers University’s Political Science Department.

Foreword

About the Authors

Over the last decade, Senate procedures have increasingly been used to prevent decision-making rather than to promote deliberation and debate. The threat of a filibuster – coupled with a 60-vote requirement to force any sub­stantive vote – has affected nearly every action in the Senate during the last several years, under both Republican and Democratic majorities. As a result, the Senate has effectively ceased operating as the majoritarian institution our founders intended for it to be.

Fortunately, the Senate’s Committee on Rules and Administration has held a series of hear­ings this year examining the filibuster’s history, its current impact on the functioning of the Senate, and proposals for reform. In addition to testifying in person at one of these hearings, the Brennan Center submitted four sets of written testimony. These are reproduced in edited versions in this report, which tries to illumi­nate the extent of dysfunction in today’s Senate and the ways our democracy is suffering as a result.

Foreword

By Susan Liss

When the history of the 111th Congress is written, the inability of the Senate to function as the deliberative body envisioned by the Founders will be at the center of any analysis. Time and again, the Senate failed to vote – or even deliberate – on bills that could address the serious issues facing our nation. Presidential appointees, federal judicial nominees, legislation addressing unemployment benefits, the environment, dis­closure of political campaign contributions, and myriad other critical issues have been stalled or shelved. Why? Because the arcane rules of Senate procedure have repeatedly prevented crucial issues like these from reaching the Senate floor.

In recent years, a minority of senators have used these rules to engage in relentless obstruction, imposing a de facto 60-vote requirement for all Senate business that brings the body far from its constitutional ideal. (As explained in the pages that follow, the Framers of our Constitution clearly did not intend for 60 votes to be the norm.) We are caught in a procedural arms race where stalemate often results. What has been ac­complished has been riddled with unprincipled concessions to appease filibustering senators that distend the final product.

The current situation is simply unsupportable. There can be no doubt that the anger and frustration ex­pressed by so many Americans about the inability of government to make their lives better can be directly attributed to the Senate’s repeated failure to act. To cite just one example, the DISCLOSE Act garnered strong public support, won the vote of 59 senators, but could not become law. No wonder that recent polls show that just 21% of Americans approve of how Congress is doing its job.[1]

The Brennan Center has not previously studied the filibuster or Senate procedure, and took no part in earlier debates about its use and abuse. We write at a time when control of the body by one party is diminished, and when no one knows who will have the majority two years from now. Now, when the partisan implica­tion of filibuster reform is unclear, is the ideal time to modernize Senate rules. For whichever party wields the gavel, our democracy is ill served by a Senate that is tangled in obsolete and easily-abused rules of its own making.

The Brennan Center has studied the history of the filibuster, and has examined in depth earlier efforts to change the Senate Rules in order to facilitate legislative action. This report summarizes our findings. We set forth in great detail the harms caused by the effective requirement for 60 votes imposed every time a filibuster is threatened. The report also describes the problems resulting from the abuse of “holds,” another obstructionist tactic. Most important, the report suggests a plan to change the Senate’s rules at the begin­ning of the next Congress, a plan that presents an opportunity to end the partisan gridlock and restore the Senate’s role in our democracy.

Only the Senate itself has the power to repair this aspect of our broken system. For the sake of our democ­racy, we urge the Senate to address the current state of dysfunction by amending its rules at the beginning of the next Congress. Our democracy and our citizens deserve no less.

About the Authors

Mimi Murray Digby Marziani serves as counsel for the Brennan Center’s Democracy Program where her work focuses on money in politics and legislative dysfunction. In this role, Ms. Marziani litigates campaign finance cases, plays an active role in the Brennan Center’s policy advocacy efforts concerning money in politics, and leads the Center’s filibuster reform efforts. As an expert on the filibuster and campaign finance reform, Ms. Marziani has contributed opinion editorials to U.S. News and World Report, The National Law Journal, Politico, The New York Law Journal, among others, and has been a featured speaker in a range of academic, media and political forums. Ms. Marziani also serves as an NYU adjunct professor, teaching undergraduate students about the Constitution and public policy at NYU’s Wagner School of Public Service. She is an honors graduate of Vanderbilt University and NYU School of Law, and a member of the Bar of New York.

Susan Liss is the Director of the Democracy Program, supervising the Center’s work on Voting Rights and Elections, the Right to Vote, Money and Politics, Fair and Independent Courts, Census and Redistricting, and New York State Government Accountability. In her 30-plus year legal career, Ms. Liss has worked for a number of constitutional, civil rights and women’s organizations. During the Clinton-Gore administration, she served at the Department of Justice as Deputy Assistant Attorney General for Policy Development and as Chief of Staff and Counselor in the Civil Rights Division. She also served as Chief of Staff to Mrs. Gore and Special Counsel to the Vice President. Prior to joining the Brennan Center, she was the Director of Federal Relations for the Commonwealth of Massachusetts. She is an honors graduate of the University of Michigan and Georgetown University Law Center, and a member of the Bar of the District of Columbia.

Just in time for the upcoming redistricting cycle, our Citizen's Guide to Redistricting has been updated and expanded to include recent court decisions as well as the latest changes to state and congressional redistricting processes across the country. This Guide will provide engaged citizens with the knowledge and tools they need to get involved with this round of redistricting, and to work towards continuing reform in the decades to come. 

Why does redistricting matter?  Our representatives in local, state, and federal government set the rules by which we live. In ways large and small, they affect the taxes we pay, the food we eat, the air we breathe, the ways in which we make each other safer and more secure. Periodically, we hold elections to make sure that these representatives continue to listen to us. All of our legislators in state government, many of our legislators in local government, and most of our legislators in Congress are elected from districts, which divide a state and its voters into geographical territories. In most of these districts, all of the voters are ultimately represented by the candidate who wins the most votes in the district. The way that voters are grouped into districts therefore has an enormous influence on who our representatives are, and what policies they fight for. For example, a district composed mostly of farmers is likely to elect a representative who will fight for farmers’ interests, but a district composed mostly of city dwellers may elect a representative with different priorities. Similarly, districts drawn with large populations of the same race, or ethnicity, or language, or political party are more likely to elect representatives with the same characteristics.

Every so often, a state’s district lines—for both Congress and the state legislature—are redrawn, grouping different sets of voters together in new ways. Sometimes, the way that a particular district is redrawn directly affects who can win the next election. And together, the way that the districts are redrawn can affect the composition of the legislative delegation or legislature as a whole. Many believe that we would have different representatives, federal and state, if the district lines were drawn differently.

In addition to affecting large political trends, the way that district lines are drawn can have very specific consequences. For instance, in some cases, new lines may be redrawn to leave an incumbent’s house out of the district she used to represent, making it difficult or impossible for her to run for re-election to represent most of her old constituents unless she moves. Other times, lines may be drawn to include the homes of two incumbents in the same party, forcing them to run against each other or retire, and in either case, knocking one of them out of the legislature. Often, sitting legislators from the party controlling the legislature are also in control of drawing new lines, leaving them free to target challengers, or legislators from an opposing party.

Occasionally, the process of redrawing district lines gets a lot of attention. In 2003, there was a big controversy in Texas; one party tried to redraw the district lines for Congress after a court had already redrawn the lines just a few years before, and legislators in the other party actually fled the state—twice—to try to stop the redrawing.

More often, this “redistricting” gets much less attention in the press. But even when it does not make the front page, it is extremely important in determining which communities are represented and how vigorously—which is in turn extremely important to determining which laws get made.

There are many different ways to figure out which voters are grouped together to elect a representative. Whether the way that districts are currently drawn in any given state is good or bad depends on what you believe the goals of the process to be. Some stress objectivity; some independence; some transparency, or equality, or regularity, or other goals entirely. There is ample debate among scholars, activists, and practitioners about the role of political insiders, the nature of protection for minority rights, the degree of partisan competition or partisan inequity, and the ability to preserve established or burgeoning communities. But to date, this discussion has been inaccessible to most of the people directly affected.

This publication is intended to present the redistricting process for state and federal government, and for many local governments, in digestible parts. There are many moving components, complex issues that we attempt to describe in simple and straightforward fashion, piece by piece. This is a guide for the rules for drawing district lines—a description of how it works today, how it could work in the future, and what it all means. Consider it an owners' manual, for those who should own the process: we, the people.

About the Brennan Center's Redistricting Project

The Brennan Center is a leader in the fight for just and equitable redistricting procedures across the country. We counsel advocates, legislators and community groups across the country on how best to maximize the goals of diversity, accountability, and fairness through redistricting reform. Building on our extensive nationwide study of redistricting practices and reform initiatives, we offer legislative testimony, help draft legislation and work to educate the public to shape and advance the reform agenda. We have also filed friend-of-the-court briefs in many of the major cases addressing the use of redistricting for undue partisan gain or at the expense of minority voters.

Our publications and public advocacy have amplified the values of redistricting reform: counting the population and redrawing the district lines in a way that is equitable, fair, and sensitive to diversity. In anticipation of the round of redistricting following the 2000 Census, the Brennan Center offered The Real Y2K Problem, an accessible analysis of the technical and legal issues facing legislators and reform advocates in redrawing the nation’s legislative and congressional districts. Our publication Beyond the Color Line? focuses on the ramifications of redistricting, and the litigation that often results, for race and representation. We have created a variety of public education materials and presentations, as well as numerous articles and opinion pieces detailing the promises and challenges of redistricting in the public interest.

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About the Authors

Justin Levitt, associate professor of law at Loyola Law School – Los Angeles, was counsel at the Brennan Center for Justice from 2005 – 2008 and 2009 – 2010, with national expertise on redistricting, election administration, and other voting rights concerns. His work has included thorough research into the most pressing issues of election law and practice; publication of extensive studies and reports; assistance to federal and state administrative and legislative bodies with responsibility over elections; participation as amicus curiae in significant cases around the country; and litigation, when necessary, as counsel for parties seeking to compel states to comply with their obligations under federal law and the Constitution. He is the author or co-author of articles in both law reviews and peer-reviewed publications, and has also written many shorter commentaries for a more public audience. His Brennan Center monographs, including The Truth About Voter Fraud (2007) and Making the List (2006), have been cited extensively in national and local media, and recently, by the U.S. Supreme Court. Outside of the Brennan Center, in addition to work for a number of different civil rights and nonprofit voter engagement organizations, Mr. Levitt served as the National Voter Protection Counsel for a successful presidential campaign, and as in-house counsel to one of the nation’s largest voter registration and mobilization efforts.

Erika L. Wood is the Deputy Director of the Brennan Center’s Democracy Program. She directs the Right to Vote project as well as the Center’s Redistricting & Representation project. Ms. Wood has designed and launched major reform campaigns around the country and provides legal counsel and strategic guidance to advocates, legislators and policymakers nationwide. She created the Brennan Center Law Enforcement and Criminal Justice Advisory Council as well as the Center’s Communities of Faith Initiative. Ms. Wood has authored several groundbreaking reports, numerous articles and legal briefs and is a frequent speaker and commentator on voting rights, criminal justice reform and racial justice issues. In 2009, Ms. Wood was awarded the Eric. R. Neisser Public Interest Award by Rutgers Law School in recognition of her efforts to carry forward the Law School’s mission of providing liberty and justice for all. Ms. Wood is an Adjunct Professor at NYU School of Law where she teaches the Brennan Center Public Policy Advocacy Clinic.

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Download (PDF)

About the Authors

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Introduction

Actions the Governor can take to make New York government more open, accountable and democratic

Like all New Yorkers, we wish Governor-elect Cuomo good luck as he tackles the state’s enormous problems. In this report we offer eleven model executive orders for the Governor to use to promote more open, accountable and democratic New York State government. Our model orders have been endorsed by leading civic and public interest groups. They are pragmatic, innovative, and offer the governor an opportunity to show New Yorkers that rapid, positive, change is achievable.

Much of Governor Cuomo’s political energy will be spent grinding out a tough, probably frustrating, budget with the state Legislature. The fiscal crisis is not an accident. It is the direct result of New York having an unaccountable and often irresponsible state government. Few New Yorkers know what their government is doing. Even experts have trouble deciphering the convoluted budget, or keeping track of last minute legislation. That’s by design. Our ignorance is Albany’s bliss. We the people can’t hold our government accountable if we don’t know what it is doing. That has to change.

Governor-elect Cuomo has pledged to reform Albany. We hope he does. He can start by issuing the eleven model orders in this report. They are tools designed to empower the citizenry, and the Governor. Some orders use the internet to open up government information and track what agencies are doing; others create a more transparent budget process; and others reduce, barriers to voting. All of them are crafted to be cost-effective, and result in large public benefits.

We hope our report inspires both immediate action, and more innovative thinking about the significant potential of executive orders to promote better government. Along with the model orders, our report includes important new research by noted New York government scholar Gerald Benjamin. He documents the evolution of executive powers in New York, their modern use, and important findings on the limits on the Governor’s authority to use them to reorganize state agencies.

We urge Governor-elect Cuomo to use these model orders, and this report, as part of a wider public campaign to reinvent New York State government, and to make it more open, accountable and democratic.

Sincerely,
John Kaehny

Executive Director, Reinvent Albany

P.S. Special thanks to my co-authors for their hard work, innovative thinking, and tireless advocacy for New York.

________________________________________

Executive Summary

Eleven Model Orders Governor-Elect Cuomo Can Use To Launch His Reform Efforts

This report includes eleven model executive orders that Governor-elect Andrew Cuomo can use to open up New York State government, increase the accountability of state agencies and reduce barriers to voting. The orders are centered on the basic goal of empowering the citizenry with more and better information about what its government is doing, and how it is spending tax payer dollars. During his campaign, Governor-elect Cuomo pledged to make fundamental reforms to end the dysfunction in Albany. These model orders are specific, realistic actions he can use to launch his reform efforts.

The Governor Has The Power To Make Government More Open and Accountable

Executive orders are formal instructions and policies the governor can issue unilaterally to the state agencies under his control. As our report makes clear, under the New York constitution, the Governor has broad powers to use executive orders to make state government more open and cost effective. In particular, the advent of the Internet has created enormous opportunities to save money by making government more transparent to the public. Even within areas where the Governor’s authority is constrained by the Constitution, he can still use executive orders to create meaningful reforms. For instance, the Governor can make the budget process more transparent and rational. Broad as the Governor’s executive order powers are, there are clear constraints; among them, the Governor has a limited ability to reorganize state agencies established through legislation.

New Scholarship Which Describes The Evolution and Extent of Executive Order Powers

In addition to the eleven model orders, our report includes news scholarship by Gerald Benjamin which describes the evolution, recent use and limits of executive orders. Professor Benjamin recommends granting the Governor new reorganization authority using New Jersey as a model.

Extensive Resource Section with a Description of All Orders Dating to Rockefeller

The report also includes an extensive Resource section. Here, numerous tables and charts document and describe executive orders dating back to Nelson Rockefeller. This section provides valuable context for our proposed model orders, and suggest that innovative and energetic governors can use their executive order powers to great effect.

Executive Orders Which Promote Openness, Accountability, Ethics Reform, and Voting

Our report includes four chapters containing eleven executive orders. The chapters address the following issues:

• Open Up New York State Government Using the Internet

• Increase the Accountability of State Government

• Strengthen Ethics Reform

• Expand the Franchise and Improve the State’s Election Performance

The model orders are diverse in scope and intent. But all of them are intended to help the

citizenry better understand and participate in their government, and thus help bring about more open, accountable and effective government.

________________________________________

About the Authors

John Kaehny
Executive Director, Reinvent Albany

Before working at Reinvent Albany, John was a transportation policy consultant to environmental sustainability groups, and prior to that executive director of Transportation Alternatives. He has been immersed in freedom of information, environmental and transportation issues involving New York State government since 1990. Reinvent Albany was founded in the spring of 2010 to promote open, accountable New York State government, and is a tax-exempt (501c3) organization. Info@reinventalbany.org,

www.Reinventalbany.org

Gerald Benjamin
Director, Center for Research, Regional Education and Outreach, and Distinguished Teaching Professor, SUNY New Paltz

Gerald Benjamin is widely considered one of the leading authorities on New York State government. He has been involved in numerous efforts to reform state and local government in New York State and New York City and led the successful effort to adopt a charter-based government in Ulster County. He has written and commented extensively on state and local government and regional governance in New York and elsewhere. www.newpaltz.edu/ocm/experts/display.cfm?id=53

Blair Horner
Legislative Director, New York Public Interest Research Group, Inc. (NYPIRG)

Blair has worked with NYPIRG for over 30 years, the last 25 as legislative director. From March 2007 through March 2008, he worked as a special advisory on policy and public integrity for New York State Attorney General Andrew Cuomo. Founded in 1973, NYPIRG is a non-partisan, not-for-profit research and advocacy organization. NYPIRG’s principal areas of concern include consumer protection, environmental preservation and government accountability. www.nypirg.org

Lawrence Norden
Senior Counsel in the Democracy Program, Brennan Center for Justice at NYU School of Law

Larry coordinates the Brennan Center’s work on reforming New York State government. He has authored several reports and articles devoted to New York reform, and serves as editor-in-chief of the Brennan Center’s New York blog, ReformNY.blogspot.com. Larry also directs the Center’s Voting Technology Project. In the spring of 2009, he chaired the Ohio Secretary of State’s bipartisan Election Summit, and in June of that year received the Usability Professional Association’s Usability In Civic Life Award for his “pioneering work to improve elections.” Larry is an Adjunct Professor at the NYU School of Law and member of the New York City Bar Association’s State Affairs Committee. The Brennan Center for Justice is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. www.brennancenter.org

"Ballot security" is an umbrella term for a variety of practices that are carried out by political operatives and private groups with the stated goal of preventing voter fraud.  Far too often, however, ballot security initiatives have the effect of suppressing eligible votes, either inadvertently or through outright interference with voting rights.

There is nothing intrinsically wrong with investigating and preventing voter fraud, despite the fact study after study shows that actual voter fraud is extraordinarily rare.[1]  But democracy suffers when anti-fraud initiatives block or create unnecessary hurdles for eligible voters; when they target voters based on race, ethnicity, or other impermissible characteristics; when they cause voter intimidation and confusion; and when they disrupt the voting process. 

Unfortunately, historically and in recent elections, "ballot security" operations have too often had these effects.  One federal court recently found that ballot security operations planned or conducted in recent years have largely threatened legitimate voters.[2]  As the court found, not only have such initiatives often targeted eligible voters for disenfranchisement, but they also disrupt polling places, create long lines, and often cause voters to feel intimidated.[3]  These effects are disproportionately felt in areas with large concentrations of minority or low-income voters, where such operations have typically been directed.

This election season, there has been a marked increase in efforts to organize “ballot security” initiatives and otherwise to mobilize activists to police against voter fraud.  Political groups and activists across the country have been pouring substantial resources into such programs, and are encouraging and training their members and private citizens to serve as voter challengers or poll watchers and to take steps to deter or prevent voter fraud.  This is occurring to an extent we have not seen in years.[4]  Based on past experience, there is a significant risk that ballot security operations will result in vote suppression and voter intimidation during the November 2010 elections, regardless of whether or not this is their intended result.

This paper addresses four types of conduct that often accompany ballot security initiatives:

• Voter challenges: formal challenges lodged by political operatives or private citizens to the eligibility of persons presenting themselves to vote, either at the polls or prior to Election Day; 
• Voter caging: efforts to identify and disenfranchise improperly registered voters solely on the basis of an undeliverable mailing;
• Voter intimidation: conduct that intimidates or threatens voters into voting a certain way or refraining from voting; and
• Deceptive practices: the dissemination of misleading information regarding the time, place, or manner of an election.

Because this conduct has the potential to interfere with the lawful exercise of the franchise, it is important for everyone involved in the process to have a clear understanding as to what is permissible and what is not permissible conduct.  Specifically, voters should be armed with the knowledge that federal and state law afford protections against ballot security efforts when they are discriminatory, intimidating, deceptive, or when they seek to disenfranchise voters on the basis of unreliable information.  Those who participate in ballot security programs should take care to ensure that their initiatives do not encroach upon the rights of eligible voters and run afoul of state and federal laws.       

Voters who experience or witness any of the discriminatory, intimidating, or deceptive conduct discussed below should immediately report the problem to election authorities and, when appropriate, to law enforcement authorities.  Voters should also call 1-866-OUR-VOTE, a non-partisan voter protection hotline; trained volunteers will be able to provide assistance and take steps to ensure that you can exercise your right to vote.  Voters should also report the offensive conduct to the Voting Section of the United States Department of Justice by calling (800) 253-3931.

 [1] In fact, Americans are more likely to be struck by lightning than to commit voter fraud.  justin levitt, the brennan center for justice, the truth about “voter fraud” 3, 23 (2007), available at http://www.brennancenter.org/page/-/d/download_file_38347.pdf  (various studies of voter fraud in Missouri, New Jersey, and Wisconsin revealed voter fraud rates of 0.0003%, 0.0004%, and 0.0002%, respectively).

 [2] Democratic Nat’l Comm. v. Republican Nat’l Comm., 671 F. Supp. 2d 575, 610–13 (D.N.J. 2009) (“DNC v. RNC”) (comparing the effects of voter fraud and ballot security initiatives on the integrity of modern elections, and concluding “the risks created by poorly-designed ballot security initiatives, undertaken with the ostensible purpose of safeguarding against fraud, are a greater threat to the electoral process than the in-person fraud they are meant to prevent”); id. at 612 (“it is all but certain that anti-fraud initiatives . . . will result in the disenfranchisement of many individuals whose eligibility is not in question.”).

 [3] Id.

 [4] See generally “Ballot Security” Operations, Brennan Center for Justice (Oct. 10, 2010), http://www.brennancenter.org/content/resource/ballot_security_operations/.

About the Authors

________________________________________

Executive Summary

Many states are imposing new and often onerous “user fees” on individuals with criminal convic­tions. Yet far from being easy money, these fees impose severe – and often hidden – costs on com­munities, taxpayers, and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well to meet child support obligations.

This report examines practices in the fifteen states with the highest prison populations, which to­gether account for more than 60 percent of all state criminal filings. We focused primarily on the proliferation of “user fees,” financial obligations imposed not for any traditional criminal justice purpose such as punishment, deterrence, or rehabilitation but rather to fund tight state budgets.

Across the board, we found that states are introducing new user fees, rais­ing the dollar amounts of existing fees, and intensifying the collection of fees and other forms of criminal justice debt such as fines and restitution. But in the rush to collect, made all the more intense by the fiscal crises in many states, no one is considering the ways in which the resulting debt can undermine reentry prospects, pave the way back to prison or jail, and result in yet more costs to the public.

KEY FINDINGS

• Fees, while often small in isolation, regularly total hundreds and even thousands of dollars of debt. All fifteen of the examined states charge a broad array of fees, which are often imposed without taking into account ability to pay. One person in Pennsylvania faced $2,464 in fees alone, approximately three times the amount imposed for fines and restitution. In some states, local government fees, on top of state-wide fees, add to fee burdens. Thirteen of the fifteen states also charge poor people public defender fees simply for exercising their constitutional right to counsel. This practice can push defendants to waive counsel, raising constitutional questions and leading to wrongful convictions, over-incarceration, and significant burdens on the operation of the courts.

• Inability to pay leads to more fees and an endless cycle of debt. Fourteen of the fifteen states also utilize “poverty penalties” – piling on additional late fees, payment plan fees, and interest when individuals are unable to pay their debts all at once, often enriching private debt collectors in the process. Some of the collection fees are exorbitant and exceed ordinary standards of fairness. For example, Alabama charges a 30 percent collection fee, while Florida permits private debt collectors to tack on a 40 percent surcharge to underlying debt.

• Although “debtors’ prison” is illegal in all states, reincarcerating individuals for failure to pay debt is, in fact, common in some – and in all states new paths back to prison are emerging for those who owe criminal justice debt. All fifteen of the states examined in this report have jurisdic­tions that arrest people for failing to pay debt or appear at debt-related hearings. Many states also use the threat of probation or parole revocation or incarceration for contempt as a debt-collection tool, and in some jurisdictions, individuals may also “choose” to go to jail as a way to reduce their debt burdens. Some of these practices violate the Constitution or state law. All of them undercut former offenders’ efforts to reintegrate into their communities. Yet even though over-incarceration harms individuals and communities and pushes state budgets to the brink, states continue to send people back to prison or jail for debt-related reasons.

• As states increasingly structure their budgets around fee revenue, they only look at one side of the ledger. Strikingly, there is scant information about what aggressive collection efforts cost the state. Debt collection involves myriad untabulated expenses, including salaried time from court staff, correctional authorities, and state and local government employees. Arresting and incarcerat­ing people for debt-related reasons are particularly costly, especially for sheriffs’ offices, local jails, and for the courts themselves. For example, Brennan Center analysis of one North Carolina coun­ty’s collection efforts found that in 2009 the government arrested 564 individuals and jailed 246 of them for failing to pay debt and update address information, but that the amount it ultimately collected from this group was less than what it spent on their incarceration.

• Criminal justice debt significantly hobbles a person’s chances to reenter society successfully after a conviction. In all fifteen of the examined states, criminal justice debt and related collection prac­tices create a significant barrier for individuals seeking to rebuild their lives after a criminal conviction. For example, eight of the fif­teen states suspend driving privileges for missed debt payments, a practice that can make it impossible for people to work and that can lead to new convictions for driving with a suspended license. Seven states require individuals to pay off criminal justice debt be­fore they can regain their eligibility to vote. And in all fifteen states, criminal justice debt and associated collection practices can damage credit and interfere with other commitments, such as child support obligations.

• Overdependence on fee revenue compromises the traditional functions of courts and cor­rectional agencies. When courts are pressured to act, in essence, as collection arms of the state, their traditional independence suffers. When probation and parole officers must devote time to fee collection instead of public safety and rehabilitation, they too compromise their roles.

All of these policies are at odds with America’s growing commitment to reduce recidivism and over-incarceration, and to promote reentry for those who have been convicted of crimes. As states look to ways to shave their prison and jail budgets without compromising public safety, eliminating the debt-based routes back to jail – both direct and indirect – is an obvious choice for reform.

CORE RECOMMENDATIONS

In light of these findings, this report makes the following recommendations for reforming the use of user fees and the collection of criminal justice debt in state and local policy environments:

• Lawmakers should evaluate the total debt burden of existing fees before adding new fees or in­creasing fee amounts.

• Indigent defendants should be exempt from user fees, and payment plans and other debt collec­tion efforts should be tailored to an individual’s ability to pay.

• States should immediately cease arresting and incarcerating individuals for failure to pay criminal justice debt, particularly before a court has made an ability-to-pay determination.

• Public defender fees should be eliminated, to reduce pressures that can lead to conviction of the innocent, over-incarceration, and violations of the Constitution.

• States should eliminate “poverty penalties” that impose additional costs on individuals who are unable to pay criminal justice debt all at once, such as payment plan fees, late fees, collection fees, and interest.

• Policymakers should evaluate the costs of popular debt collection methods such as arrests, in­carceration, and driver’s license suspensions – including the salary and time spent by employees involved in collection and the effect of these methods on reentry and recidivism.

• Agencies involved in debt collection should extend probation terms or suspend driver’s licenses only in those cases where an individual can afford to repay criminal justice debt but refuses to do so.

• Legislatures should eliminate poll taxes that deny individuals the right to vote when they are un­able to pay criminal justice debt.

• Courts should offer community service programs that build job skills for individuals unable to afford criminal justice debt.

________________________________________

ABOUT THE AUTHORS

Alicia Bannon was a Liman Fellow and Counsel in the Brennan Center’s Justice Program at the time she conducted her work on this report. She is currently a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons P.C. Previously, Ms. Bannon clerked for the Hon. Sonia Sotomayor in the U.S. Court of Appeals for the Second Circuit and the Hon. Kimba M. Wood in the U.S. District Court for the Southern District of New York. She also previously worked at ICS Africa in Kenya and at the Center for Global Development in Washington, D.C. Ms. Bannon received her J.D. from Yale Law School and her A.B., summa cum laude, from Harvard College.

Mitali Nagrecha is currently at the City of Newark Office of Reentry working on policy and contracting in an effort to reduce recidivism and increase workplace participation by people with criminal records. At the time she worked on this report, Ms. Nagrecha was a Simpson Thacher Fellow in the Brennan Center’s Justice Program, working on access to justice issues. Prior to joining the Brennan Center, Ms. Nagrecha worked as a litigation associate at Simpson Thacher & Bartlett LLP. Ms. Nagrecha also served as a Fulbright Scholar in India, where she studied urban development and planning. She earned her B.A. at Cornell University and her J.D. cum laude from The University of Pennsylvania Law School.

Rebekah Diller is Deputy Director of the Justice Program at the Brennan Center. Ms. Diller coordinates litigation, policy research and advocacy to improve access to justice for low-income people and leads the Center’s work on legal financial obligations. Previously, she served as a staff attorney and then director of the New York Civil Liberties Union’s Reproductive Rights Project and as an attorney representing low-income clients in civil cases at Legal Services for the Elderly in Queens and Housing Works, Inc. She received her J.D., with high honors, from New York University School of Law, and her B.A., cum laude, from Rutgers College.

Updated for 2010- Voting After You Move: A Guide

A fifty-state survey, this Guide is designed to help voters navigate the various state laws governing voters who move. Our nation has an incredibly mobile population: according to U.S. Census figures, approximately twenty-nine million voting-age Americans-or one in six people-move each year. With the current economic climate and crisis in foreclosure, the number of movers will likely be even greater in some jurisdictions.

Click here to access the guide.

Updated for 2010- Legal Guide to Student Voting

This guide is is an online voter education resource designed to help students and advocates understand the diverse patchwork of state laws governing student voters.  Many students who leave home to attend college are often misinformed about where they are eligible to vote.  This resource explains the basic residency, registration, identification, and absentee voting requirements for student voters in each of the 50 states and Washington, D.C.

Click here to access the guide.

General Information for Voters

1. Be sure you are properly registered.  Most states require voters to register in advance of an election (although some allow voters to register on Election Day).  Deadlines range from 3 to 30 days before an election.  To find out if you are properly registered, ensure that your address is up to date, obtain a copy of a voter registration form, or learn about registration deadlines in your state, contact your local election officials or call 866-OUR-VOTE.  More information about registration rules in your state is available here, here, and here.  If you moved since registering, look here.
2. Be sure you go to the correct polling place.  In many states, if you vote at the wrong location, your vote will not be counted.  If you are unsure exactly where to vote, find your polling location by contacting your local election officials, calling 866-OUR-VOTE, or visiting this website.
3. Find out your options for convenient voting.  Many states will allow individuals to vote prior to Election Day, either in person or by absentee ballot.  Absentee voters typically must request an absentee ballot in advance.  To learn about the options in your state, including how to obtain an absentee ballot, call 866-OUR-VOTE or look online here, here, or here.    
4. Find out if you are required to show ID.  Every state has identification requirements for at least some categories of voters.  Find out the rules for your state by visiting these websites or calling 866-OUR-VOTE.
5. Review sample ballots and information about candidates and issues.
6. If you familiarize yourself with the layout and instructions of the ballot, you can prevent mistakes when you go to vote.  Some local election officials will provide you with a sample ballot if you request one.  Also, know who and what you’re voting for. You can research all candidates and ballot issues by contacting local civic groups or visiting this website. 
7. Assert your rights.  If you are an eligible voter in your state and you registered, you have the right to vote, whether or not a poll worker finds your name on the list or a political operative challenges your eligibility at the polls.  If there is any question about your ability to vote a regular ballot on Election Day, call 866-OUR-VOTE.  And know that even voters whose eligibility is in question are entitled to vote by provisional ballot.

If you have questions, concerns, or problems, call 1-866-OUR-VOTE.

Información en Español

Like many public financing systems, the New York City program provides money to candidates who accept expenditure limits and enhanced disclosure. However, the heart of the system, and what sets it apart, is the multiple match—a feature that boosts the impact of small donations by matching up to $175 of each contribution at a six-to-one ratio. By encouraging candidates to engage with voters early in an election campaign, fundraising and voter outreach efforts come together. The report includes a number of interviews with candidates who used the system and testify to its benefits.

Download the Report (pdf)

Foreword

About the Authors

Acknowledgements

Foreword

By Frederick A.O. Schwarz

Some eighty years ago, Supreme Court Justice Louis Brandeis reminded us:

A courageous city can do the same. This aptly describes the potential benefit to the country of New York City’s Campaign Finance Act.

The following Report demonstrates in detail how New York City’s voluntary small-donor matching fund system has benefits beyond simply limiting the size of campaign contributions and expenditures. As I know from first-hand experience, matching small donor donations changes how candidates campaign—in a way that betters democracy. Candidates have a much greater incentive to reach out to ordinary voters, everyday New Yorkers without deep pockets. In turn, being asked to contribute—even small amounts—increases citizen interest and participation in elections.

Based on my personal involvement in the development, defense and implementation of New York City’s matching fund system, I offer a few additional insights.

First, some history. The genesis of reform was a shared conviction that the existing political system was failing and frustrating voters. At the time, in the mid-1980s, the City was shattered by a major corruption scandal. Accompanying the corruption were shockingly large (but legal!) political contributions made to New York City officials under state law. I was then Corporation Counsel for Mayor Edward I. Koch. Koch was himself completely honest, but nonetheless devastated by the scandal and its impact on the City. My advice to the Mayor was to take advantage of the scandal by pressing for governmental reform, including, most importantly, campaign finance reform. To borrow Shakespeare’s words, I urged Mayor Koch to recognize that “sweet are the uses of adversity.”

Mayor Koch did so, and thanks to his efforts, good lawyering by my successor, Peter Zimroth, and the leadership of Peter Vallone, Speaker of the City Council at the time, the landmark City system became law in 1988.

It was passed overwhelmingly in the City Council. It was then enshrined in the City Charter by a very substantial majority voting by referendum—I had the honor to be Co-Chair of the Citizen’s Committee in support.3 Support for the law was bipartisan.

* From 2003 until 2008, Frederick A.O. (“Fritz”) Schwarz, Jr. was Chair of the New York City Campaign Finance Board. Before that, he was the 1988 Co-Chair of the Citizens Committee for support of the City Charter amendment establishing the City’s Campaign Finance Law. As City Corporation Counsel from 1982 through 1986, Mr. Schwarz pushed for radical reform of the City’s campaign finance system. Finally, while in private practice, Mr. Schwarz represented, on a pro bono basis, some forty candidates who intervened against (unsuccessful) efforts to prevent the City from offering a four-to-one match of public funds.

In 1989, at the first election that followed, all three Mayoral candidates, Koch and David Dinkins, both Democrats, and Rudolph Giuliani, a Republican, praised the new system—and participated in it. Since that first election, an overwhelming majority of candidates for all City offices have participated in the program.

Second, a word about the program’s administration. The City Campaign Finance Board (“CFB”) administers the law. A major reason for the CFB’s success is that it has had no partisan divides or partisan stalemates. In this way, the CFB is unlike the Federal Election Commission or the New York State Board of Elections.

In part, the CFB has avoided partisanship because of its appointment structure.4 But far more important have been the traditions established by the first Board members, led by Fordham University President Father Joseph O’Hare as the founding Board chair, and by the first Executive Director, Nicole Gordon. O’Hare served for three terms—fifteen years. Gordon served for eighteen years. By the time I became the CFB’s second Chair in 2003, it was crystal clear, internally and externally, that the CFB had no partisan agenda.

My third point is a related one. The CFB’s Board and staff are vigorous in policing the requirements of the law. All candidates are audited rigorously. Violations are publicized and punished with fines—and, in some extreme cases, by disgorgement of public funds. Some candidates may be vexed by the vigorous enforcement. But most conclude that forceful enforcement is appropriate. As it surely is. Among other things, vigorous enforcement weakens any public perception that public money is “wasted” on City elections.

Finally, and of great importance, the City system has continued to evolve over time. Indeed, continued improvement is part of the program’s fabric: the law requires the CFB, after each election cycle, to hold public hearings and then issue a written report on suggested improvements. City officials and public interest groups also occasionally suggest improvements.

In my judgment, the most important improvement has been twice lowering the matched amount and increasing the match ratio. Unlike other models that provide candidates with a lump sum grant, the New York City system matches contributions collected by candidates. The program started with a one-to-one match on $1,000 donations. For the 2001 election, this changed to a four-to-one match on $250 donations. Then, for the 2009 election cycle, a six-to-one match on $175 donations was implemented.5

The following Report shows what a dramatic difference this multiple match on small donations has made: it has led to more competition, more small donors, more impact from small contributions, more grass roots campaigning, and more citizen participation in campaigns. All this, while simultaneously reducing the influence of big money in general and corporate money in particular (only donations from living, breathing New Yorkers are matched).

In their understandable disgust with large contributions, many reformers missed a big point—and a big opportunity. Political contributions are not inherently tainted. Political contributions do not always raise the specter of corruption. Large ones may. But small financial contributions are a natural part of a healthy participatory democracy. New York’s system should be a model for reform nationwide.

About the Authors

Angela Migally serves as Counsel with the Brennan Center’s Democracy Program. As a litigator with the Brennan Center’s Money and Politics project, Ms. Migally defends campaign finance regulations against legal challenge in federal courts throughout the nation. She currently represents good government groups in defending the constitutionality of citizen-financed elections in Arizona, Connecticut and Wisconsin. This coming academic year, Ms. Migally has been selected to teach undergraduates in a course about the U.S. Supreme Court’s treatment of the relationship between Church and State at NYU’s new Abu Dhabi campus. Prior to joining the Brennan Center, Ms. Migally was a civil rights associate with the Law Firm of Omar T. Mohammedi, LLC. She also was a litigation associate at Hughes, Hubbard & Reed, LLP and served as a clerk for the Honorable Walter Herbert Rice of the United States District Court of Southern Ohio. Ms. Migally received her J.D. from the University of Pennsylvania Law School and a B.A. in Economics and Political Science from Oberlin College.

Susan M. Liss is the Director of the Democracy Program, supervising the Center’s work on Voting Rights and Elections, the Right to Vote, Money and Politics, Fair and Independent Courts, Census and Redistricting, and New York State Government Accountability. In her 30-plus year legal career, Ms. Liss has worked for a number of constitutional, civil rights and women’s organizations. During the Clinton-Gore administration, she served at the Department of Justice as Deputy Assistant Attorney General for Policy Development and as Chief of Staff and Counselor in the Civil Rights Division. She also served as Chief of Staff to Mrs. Gore and Special Counsel to the Vice President. Prior to joining the Brennan Center, she was the Director of Federal Relations for the Commonwealth of Massachusetts. She is an honors graduate of the University of Michigan and Georgetown University Law Center, and a member of the Bar of the District of Columbia.

Frederick A.O. Schwarz, Jr. is Chief Counsel of the Brennan Center, which he joined full time in 2002. Since graduation from law school in 1960, Mr. Schwarz has had an uncommon career, mixing the highest level of private practice with a series of critically important public service assignments. Mr. Schwarz’s private practice was at Cravath, Swaine & Moore, where he was a litigation partner with a broad and varied practice. From 1975-76 Mr. Schwarz was Chief Counsel to the Church Committee and was New York City Corporation Counsel under Mayor Edward I. Koch (1982-86). Then in 1989, he chaired the Commission that extensively revised New York City’s Charter, and from 2003-08 he chaired the New York City Campaign Finance Board. He currently chairs the board of Atlantic Philanthropies. For almost twenty years, he served as Chair of the boards of both NRDC and the Vera Institute of Justice, on whose boards he continues to serve. He also chaired the board of the Fund for the City of New York. At the Brennan Center, he has tried three cases, testified frequently before Congress, edited various reports, and written substantially. Mr. Schwarz received an A.B. magna cum laude from Harvard College in 1957 and a J.D. magna cum laude from Harvard Law School in 1960

Acknowledgements

Many people had a hand in this report. Special thanks to Brennan Center colleagues Monica Youn, Ciara Torres-Spelliscy, Mimi Marziani, Kelly Williams, Ali Hassan, and Jafreen Uddin for their assistance in turning the idea of this report into reality. Thanks as well to Elizabeth Daniel, who assisted with interviews of New York City elected officials, to legal interns Leah Morfin, Nicolas Riley, Dave Rochelson, Matt Robinson, and Jenny Shen, and to undergraduate intern Hannah Kieschnick. Thanks also to Joseph Ferris, Eric Friedman, and the Campaign Finance Board for their assistance with data analysis.

The authors are especially grateful to Fritz Schwarz, whose wisdom and expertise helped guide this study. Michael Waldman, who has committed much of his career to campaign finance reform, made invaluable contributions at each stage of this report. The authors are indebted to him for his command of these issues and his overall vision to put voters back at the center of our democracy.

The Brennan Center is grateful to Democracy Alliance Partners, the Ford Foundation, the Open Society Institute, Rockefeller Brothers Fund, Deborah and Louis Salkind, and the Wallace Global Fund for their generous support.

About the Author

News Coverage

________________________________________

Executive Summary

Failed voting machines, frustrated voters and lost votes: these have been a constant in news reports following every recent major election cycle. That should not be surprising. The voting systems1 used in the United States today are complicated machines; each runs on tens of thousands of lines of software code. As with automobiles and airplanes, automatic garage door openers and lawnmowers, occasional malfunctions are inevitable – even after rigorous product testing.

When it comes to system failures, however, voting machines are different from automobiles and airplanes, and other products, in at least one important respect: for the vast majority of voting systems in use today, (1) manufacturers are not required to report malfunctions to any government agency, and (2) there is no agency that either investigates such alleged failures or alerts election officials and the general public to possible problems (let alone requires voting system manufacturers to fix such problems).

As this report demonstrates, the consequence of this lack of oversight is predictable. Voting systems fail in a particular county in one election, and then again later, under similar circumstances, but in a different locale. These repeated failures disenfranchise voters and damage public confidence in the electoral system.

The Brennan Center reviewed hundreds of reports of problems with voting systems in the last eight years, and closely studied fourteen of them. Our study shows that election officials and the public are often completely reliant on the private companies that sell and service this voting equipment and related service contracts to voluntarily keep them aware of potential problems with those systems. As one election official we interviewed noted, “vendors are in the business of selling machines, and often don’t have an incentive” to inform present and future customers of certain problems with their systems.

The core thesis of this report is simple: we need a new and better regulatory structure to ensure that voting system defects are caught early, officials in affected jurisdictions are notified immediately, and action is taken to make certain that they will be corrected for all such systems, wherever they are used in the United States.

Based on our review of regulatory schemes in other industries, we are convinced that the focal point for this new regulatory system must be a clearinghouse – a national database, accessible by election officials and others, that identifies voting system malfunctions that are reported by voting system vendors or election officials. If this database is going to have any real benefit, voting system vendors must be required to report all known malfunctions and election officials must have full access to the database.

The Election Assistance Commission (EAC), the relatively new federal agency charged with the task of creating a testing program for new voting system has, within its limited federal mandate, made great strides in the last two years increasing quality control for some of the country’s newest voting systems. However, to fully address the problem of underreported and unaddressed voting system problems, the EAC or other federal agency should be given statutory authority and resources to fully implement the kind of database recommended in this report. Such a database would make our electoral system stronger. It would be easier for election officials and others to ensure that their equipment is as user-friendly and accurate as possible. It would also make voting machine vendors more accountable to public officials and taxpayers, incentivizing manufacturers to enhance internal controls. Given the billions of dollars spent by federal and local governments to purchase and maintain new voting equipment over the last several years, this is no small thing.

CORE FINDINGS

Three fundamental findings result from our study of past reported problems, review of current law and contracts for the use and regulation of voting systems, and interviews with election officials:

1. There is no central location where most election officials can find comprehensive information about problems discovered with their systems before each election.

• State and local election officials we interviewed tell us that they must rely almost exclusively on the voting system vendors for information about malfunctions, defects, vulnerabilities and other problems that the vendors have discovered, or that have occurred with their voting systems in other states.

• A change in election administrators can sometimes mean a loss of knowledge about all of the potential problems with a voting system as well as procedural safeguards necessary to prevent those problems.

• There are approximately 4,600 separate jurisdictions across the United States that administer elections.3

2. Vendors are frequently under no legal obligation to notify election officials or the public about problems with their systems.

• While purchase or service contracts sometimes bind election officials to inform vendors of malfunctions, vendors are not always similarly obligated to inform officials of problems reported to them.

• Voting system vendors are under no legal obligation to notify any federal agency of problems they discover with the vast majority of their systems in use in the United States today, despite the fact that hundreds of millions of federal dollars have been spent to purchase such equipment.

3. The same failures occur with the same machines, in one jurisdiction or another, election after election.

• Most of the election officials we interviewed in connection with our review of reported problems claimed to have had no prior warning of the issues we discuss. By contrast, in most cases, the vendors were (or should have been) aware of the problems – often because the same problem had been reported to them earlier by another election official.

• Frequently, these malfunctions – and their consequence, disenfranchisement – could have been avoided had election officials and/or public advocates known about earlier problems and had an opportunity to fix them.

CENTRAL RECOMMENDATION: CREATION OF A NATIONAL DATABASE FOR VOTING SYSTEM PROBLEMS

Given the nature and importance of voting systems to our democracy, we need a new regulatory structure to ensure that voting system defects are caught early, disclosed immediately, and corrected quickly and comprehensively. Accordingly, this new regulatory system must center around a mandatory national clearinghouse, administered by a federal agency empowered to investigate violations and enforce the law.

Based upon our interviews with election officials and regulatory experts, and our review of analogous regulatory structures in other important industries, we conclude that the clearinghouse must include four key elements to work effectively:

1. A Publicly Available, Searchable Centralized Database

Election officials, in particular, would benefit from a publicly available, searchable online database that includes official (i.e., election official-reported or vendor-reported) and unofficial (i.e., voter-reported) data regarding voting system failures, and vulnerabilities, and other reported problems and establishes criteria for the database’s contents and organization.

2. Vendor Reporting Requirements

Vendors must be required to notify the appropriate government agency of any known and suspected voting system failures and vulnerabilities, and other reported problems, including customer (i.e., election official) complaints, warranty claims, legal actions and/or actions taken by the vendor to satisfy a warranty or investigate a reported problem.

3. A Federal Agency with Investigatory Powers

The best way to ensure that vendors address potential problems in a timely manner is to empower the appropriate government agency to investigate all voting system failures and vulnerabilities listed on the database, grant the agency subpoena power to facilitate its investigations, and require vendors to, among other things, maintain records that may help the agency determine whether there are indeed voting system failures or vulnerabilities, and whether the vendor has taken appropriate action to address the failures or vulnerabilities.

4. Enforcement Mechanisms

The appropriate government agency must have the power to levy civil penalties on vendors who fail to meet the reporting requirement or to remedy failures or vulnerabilities with their voting systems.

We detail these recommendations more fully on pages 27 - 38 of this report.

ADDITIONAL RECOMMENDATIONS

While a national clearinghouse along the lines we suggest in this report is ultimately the best way to ensure that problems with machines are publicized and corrected throughout the country, there are important interim steps that county and state governments, in particular, can begin taking immediately to increase the chances that election officials are notified of problems with their voting systems and can avoid some of the kinds of problems detailed in this report:

1. Negotiate Better Contracts with Vendors

Provisions in many voting machine contracts make it much more difficult for election officials and the public to get detailed information about system problems reported in other parts of the country, or to hold vendors responsible for problems when something goes wrong. To increase voting system reliability and maximize vendor motivation to minimize the risk of such problems, counties and states should begin demanding certain key contract terms. Pages 39 - 40 of this report discusses these more fully.

This recommendation is particularly relevant to jurisdictions using Premier voting systems. ES&S recently purchased Premier, and pursuant to the proposed Final Judgment for the antitrust action brought by the Department of Justice in March 2010, customers using Premier equipment will have the option of choosing between ES&S and Dominion for future service of those machines.4 This will provide them with an opportunity to negotiate new contracts.

2. Implement Stronger State Regulation

The legislature in at least one state, California, has passed legislation requiring vendors selling systems within its borders to notify the Secretary of State and all local election officials using its systems of any “defect, fault or failure” within 30 days of discovery.5 As of the writing of this report, the legislation is currently awaiting a decision by the governor, who had vetoed an earlier version in 2009. In 2005, North Carolina passed a similar bill into law.6 The California model presents the best legislative attempt we have seen, to date, to address the problems we discuss in this report. We hope more states will adopt this model.

3. Create a Voluntary Database

The appropriate federal agency should create a searchable database to which election officials, vendors, and voters could voluntarily report problems. Absent action by the federal government, a non-governmental organization (like the National Association of Secretaries of State) or even a state government could create such a database.

There would be no way to force vendors to report to this database, or to provide election officials with whistleblower protections for making voluntary reports – two important suggestions for the mandatory clearinghouse detailed in this report – but it could still serve as a useful interim resource for election officials.

4. Pressure Vendors to Voluntarily Post Information on Their Own Sites This Year

One drawback of the three previous recommendations is that they probably cannot be implemented in time for this fall’s election. In contrast, vendors could create their own databases relatively quickly, significantly reducing the risk of embarrassing problems. Ideally, vendors would create a central, easily accessible and searchable site where election officials could review all previously issued product advisories, software patches and workarounds, election official complaints, warranty claims, and lawsuits about their systems (together with the result of any vendor investigation, explanations, and actions taken to address these complaints).

County and state officials can and should demand this voluntary action from vendors now, in time to make a difference for November’s election.

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About the Author

Lawrence Norden is Senior Counsel in the Brennan Center’s Democracy Program and director of the Brennan Center’s Voting Technology Project. He has authored several nationally recognized reports and articles related to voting rights, voting systems and election administration. In April 2009, Mr. Norden completed his duties as Chair of the Ohio Secretary of State’s bipartisan Election Summit and Conference, authoring a report that recommended several changes to Ohio’s election administration practices and laws; the report was endorsed by most of the State’s voting rights groups, as well as the bipartisan Ohio Association of Election Officials. Mr. Norden was the Keynote Speaker at the Sixth Annual Votobit International Conference on Electronic Voting (Buenos Aires, 2008), and the 2009 Electronic Voting Technology Workshop/Workshop on Trustworthy Elections (Montreal, 2009). In June 2009, he received the Usability Professional Association’s Usability In Civic Life Award for his “pioneering work to improve elections.” Mr. Norden is the lead author of the book The Machinery of Democracy: Protecting Elections in an Electronic World (Academy Chicago Press) and a contributor to the Encyclopedia of American Civil Liberties (Routledge 2007).

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News Coverage

Report Voting Machine Problems -- Op-ed by Lawrence Norden (Cleveland.com 10/20/10)

Our Votes are Counted Accurately -- Aren't They? (CNN.com 9/30/10)

Action: Support Accountability of Voting Machines in CA (DailyKos 9/26/10)

Every Vote Counts: Report, Legislation Seek More Accountability for Elections Equipment Manufacturers  (Times-Standard 9/26/10)

Study Recommends Reporting E-Voting Machine Defects to National Database (Computerworld 9/16/2010)

Why Your Toaster Works Better Than Your Voting Machine (The Atlantic 9/16/2010)

Report: Voting Machine Errors Highlight Urgent Need for U.S. Database (Wired 9/15/2010)

E-voting System Failures lead to Call for Public Clearinghouse (Federal Computer Week 9/15/10)

Officials in the Dark About Voting Machine Glitches (NPR 9/15/2010)

"This report, the latest in a series begun in 2000, provides a comprehensive review of the threat posed by money and special interest pressure on fair and impartial courts. . . .  We all have a stake in ensuring that courts remain fair, impartial, and independent. . . . For 10 years, the New Politics reports have played a leading role in documenting the growing threat to the credibility of our courts.  I applaud the authors . . . for working to protect the courts that safeguard our rights."
— Sandra Day O'Connor

Executive Summary

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About the Authors

Past Reports

Executive Summary

State judicial elections have been transformed during the past decade. The story of America’s 2000–2009 high court contests—tens of millions of dollars raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail—has become the new normal.

For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale. Unlike previous editions, which covered only the most recent election cycle, this fifth edition of the “New Politics of Judicial Elections” looks at the 2000–2009 decade as a whole. By tallying the numbers and “connecting the dots” among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation’s courts. These trends include:

➜➜The explosion in judicial campaign spending, much of it poured in by “super spender” organizations seeking to sway the courts;

➜➜ The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;

➜➜ The emergence of secretive state and national campaigns to tilt state Supreme Court elections;

➜➜ Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;

➜➜ Growing public concern about the threat to fair and impartial justice—and support for meaningful reforms.

The Money Explosion

The surge in spending is pronounced and systemic. Campaign fundraising more than doubled, from $83.3 million in 1990–1999 to $206.9 million in 2000–2009. Three of the last five Supreme Court election cycles topped $45 million. All but two of the 22 states with contestable Supreme Court elections had their costliest-ever contests in the 2000–2009 decade.

Special-interest “super spenders” played a central role in this surge. A study of 29 elections in the nation’s 10 most costly election states shows the extraordinary power of super spender groups. The top five spenders in each of these elections invested an average of $473,000, while the remaining 116,000 contributors averaged $850 each. In the most widely publicized case, one coal executive spent $3 million to elect a West Virginia justice. The disparity suggests that a small number of special interests dominated judicial election spending even before the Citizens United case ended bans on election spending by corporations and unions.

In 2007–08, five states felt the worst blast of the super spender phenomenon. When TV spending by political parties and special-interest groups is factored in, Pennsylvania broke the $10 million barrier, while spending reached $8.5 million in Wisconsin. Texas and Alabama each topped $5 million, and Michigan, which had just under $5 million in total spending, witnessed some of the cycle’s most brutal TV ads.

Partisan races drew the most cash, but that may be changing. Candidates in partisan Supreme Court elections raised $153.8 million nationally in 2000–09, compared with $50.9 million in nonpartisan elections (retention election candidates raised $2.2 million). But in some states, notably Wisconsin in 2007–08 and Georgia in 2006, nonpartisan races have been just as costly and nasty as their partisan counterparts.

Special-interest money sometimes comes with a cost. The candidate who raised the most money won 11 of 17 contested high court races in 2007–08. But three well-funded incumbent chief justices were defeated, perhaps in part because they were tied to special-interest patrons.

The trends continued in 2009. In Pennsylvania, Wisconsin and Louisiana, candidates and independent groups spent a total of about $8.7 million on 2009 elections. And in each race, candidates accused opponents of being ethically tainted.

Court TV: The Rise of Costly Attack Ads

Spending on TV ads has helped fuel the money chase. From 2000 to 2009, an estimated $93.6 million was spent on air time for high court candidate TV ads. That total includes TV spending in odd-numbered election years, which for the first time is included in the New Politics data.

New records were set in 2007 and 2008. Including costly 2007 elections in Wisconsin and Pennsylvania, the 2007–08 cycle was, at $26.6 million, the most expensive biennium ever for TV ad spending on Supreme Court races. Eight states set all-time records for spending on TV ads during the two-year period, and there were more ad airings than ever before in 2008.

Average spending on TV continues to surge. Continuing a trend seen in 2004 and 2006, in states where TV advertisements ran, an average of more than $1 million was spent on campaign ads. In 2008, in the 13 states where Supreme Court ads aired, the average was $1.5 million.

Outside groups played a critical role in the TV wars. Special-interest groups and party organizations accounted for $39.3 million, more than 40 percent of the estimated TV air time purchases in 2000–09. In 2008, special-interest groups and political parties accounted for 52 percent of all TV spending nationally—the first time that noncandidate groups outspent the candidates on the ballot.

Special-interest group ads are often harsher than candidate ads.
Independent groups remain the “attack dogs” of judicial TV ads. But in 2008, Wisconsin Judge Michael Gableman’s spot attacking Justice Louis Butler provoked lingering ethics and legal challenges. 

Who Played? Who Won?

Tort wars have become court wars. Judicial elections have become a multi-million-dollar duel, pitting business and conservative groups against plaintiffs’ lawyers and unions. High court justices know that their decisions could trigger support or retaliation in the next election.

The two sides bring starkly different profiles. The right has brought together big-name groups like the U.S. Chamber of Commerce and National Association of Manufacturers, leaders of corporate giants such as Home Depot and AIG Insurance, and political actors like Karl Rove. Bankrollers on the left tend to be wealthy plaintiffs’ lawyers, who often use state party organizations to hide the extent of their financial backing of a candidate.

Secret money dominates; players can give big sums with little publicity. In Alabama, the Montgomery law firm of Beasley Allen gave more than $600,000 to Judge Deborah Bell Paseur’s unsuccessful Supreme Court campaign, without ever appearing on her contribution records. This approach has been emulated in other states, including Texas.

Litigation: The Battle Inside the Courtroom

Federal courts have been increasingly pulled into state judicial election controversies, especially in the areas of campaign finance, candidate speech and recusal (when a judge avoids a case with potential ethical conflicts). Many of these cases are designed to strengthen or challenge rules that would insulate judges from special-interest pressure.

The U.S. Supreme Court declared that campaign spending could disqualify a judge from cases involving major supporters. The landmark Caperton v. Massey decision creates an incentive for every state to craft meaningful rules for when judges must step aside

Campaign finance laws face growing litigation challenges. North Carolina’s judicial public financing law was upheld by the federal courts. But a more recent Supreme Court case, Citizens United v. Federal Election Commission, overturned longstanding bans on election spending from corporate and union treasuries—posing a special threat in judicial elections.

A 2002 Supreme Court decision, Republican Party of Minnesota v. White, loosened restrictions on judicial campaign speech. Interest groups are using questionnaires to pressure judges into signaling courtroom decisions on the campaign trail. Professional norms are becoming more important in helping judicial candidates steer clear of special-interest pressures and political agendas.

The Public Takes Note, Decision-Makers Play Catch-Up

The new politics of judicial elections has made the public fear that justice is for sale. More than seven in ten Americans believe that campaign contributions affect the outcome of courtroom decisions. Nearly half of state judges agree. Former Justice Sandra Day O’Connor says, “In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.”

Reform efforts are making progress. After years of slow progress, reform gained steam in 2009. Wisconsin enacted public financing for court races, joining North Carolina and New Mexico, and in March 2010, West Virginia’s legislature also enacted a pilot public financing program. In Michigan, the Supreme Court adopted tough new recusal rules. Polls show continued strong public support for reform measures—such as public financing of judicial races, election voter guides, recusal reform and full financial disclosure for election ads.

Merit selection has gained momentum—and more organized opposition. In a pair of 2008 county-level ballot measures, voters in Kansas and Missouri opted for appointment systems over competitive elections for judges, while Nevada lawmakers put a merit selection measure on the 2010 ballot. Meanwhile, a cadre of groups has organized to challenge merit selection systems in several states. And in a significant revisiting of its position, the U.S. Chamber of Commerce cited one model of merit selection as fair and compatible with business interests. 

About the Authors

James J. Sample is an Associate Professor at Hofstra University School of Law.  From 2005-2009, Professor Sample served as Counsel at the Brennan Center for Justice, where he litigated and wrote on issues involving campaign finance, voting rights, and judicial independence. Previously, he worked on Montana Governor Brian Schweitzer’s 2004 campaign and clerked for the Honorable Judge Sidney R. Thomas of the U.S. Court of Appeals for the Ninth Circuit. Professor Sample is widely quoted by the national press on courts issues, and his articles have appeared in the Wall Street Journal, Slate, Politico, and the HuffingtonPost. Professor Sample’s recent scholarship includes “Caperton: Correct Today; Compelling Tomorrow” (Syracuse Law Review 2010), and “Court Reform Enters the Post-Caperton Era” (Drake Law Review 2010). While at the Brennan Center, he served as counsel on certiorari and merits stages briefs in support of the Petitioners in Caperton v. A.T. Massey Coal Co. Professor Sample received his JD from Columbia Law School, where he was a Harlan Fiske Stone and James Kent Scholar and a Notes Editor on the Columbia Law Review. Before law school he was a three-time Emmy Award winner for his work with NBC Sports. He can be reached at james.sample@hofstra.edu.

Adam Skaggs is Counsel in the Brennan Center for Justice’s Democracy Program, where he works on a range of judicial independence, voting rights, and election administration issues. Before joining the Brennan Center, he was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP. In 2003, Mr. Skaggs graduated summa cum laude with a J.D. from Brooklyn Law School, and was a member of the Brooklyn Law Review. He subsequently clerked for Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit and Judge Edward Korman, Chief Judge of the U.S. District Court for the Eastern District of New York. Mr. Skaggs received an M.S. in Urban Affairs from Hunter College of the City University of New York, and holds a B.A., awarded with distinction, from Swarthmore College.

Jonathan Blitzer is a former Research Associate with the Fair Courts program at the Brennan Center. He graduated from Columbia University, with a degree in English and Philosophy, in 2007.

Linda Casey is lead researcher at the nonpartisan, nonprofit National Institute on Money in State Politics. In addition to comprehensive research duties, she has focused on judicial elections since 2001. “High Court Contests: Competition, Controversy and Cash in Pennsylvania and Wisconsin,” “Diversity in State Judicial Campaigns, 2007-¬2008,” “Judicial Diversity and Money in Politics: AL, GA, IL, NM, NC, OH, PA, WA, WI.” Ms. Casey earned degrees in political science and sociology from Carroll College, in Helena, Montana. Before joining the National Institute in 1996, she worked for several nonprofit organizations and served as a financial officer for a number of statewide and legislative political campaigns in Montana.

Charles W. Hall is Director of Communications for the Justice at Stake Campaign. A career journalist, he worked for 20 years as a reporter and editor for the Washington Post, including extensive stints covering federal and local courts. Before joining Justice at Stake in 2008, Mr. Hall was manager of presidential communications for the American Bar Association. He also is active in civic affairs in Northern Virginia, and has had numerous commentaries published on regional land use policies. Mr. Hall can be reached at chall@justiceatstake.org.

Executive Summary

More people travel though America’s criminal justice system than through any other justice system in the industrialized world, and, overwhelmingly, these people are from low-income, African-American and Latino communities. Yet there is but scarce funding available for local indigent defense systems. And legislators face little pressure to provide necessary support to this unpopular constituency.

Public disinvestment in social services has left growing segments of the population ill-equipped to address economic, emotional, physical and mental health problems that can precipitate contact with the criminal justice system when left unaddressed. As a result of these and other deficiencies, many indigent Americans are caught in a cycle of continuous encounters with the criminal and juvenile justice systems.

The Brennan Center founded the Community Oriented Defender (COD) Network to support defenders and their allies who seek more effective ways to carry out the defense function. Our goal is to enable defense counsel to engage community based institutions in order to reduce unnecessary contact between individuals and the criminal justice system.

Through national convenings, newsletters, informational forums and targeted reform projects, the COD Network pulls together innovative defender programs and helps replicate best practices and reform strategies. Begun as a small coalition of defender programs in 2003, the COD Network today includes over 50 defender programs. The COD vision of engagement with community based institutions has a proven track record, and although the challenges remain real, the COD model is gaining influence.

The Brennan Center, in partnership with leaders of the COD movement, developed the Ten Principles of Community Oriented Defense. These distill the three overarching advocacy strategies of the movement—whole client representation, community engagement, systemic reform—into ten concrete goals. We have provided a blueprint defender programs can use to reduce unnecessary contact between individuals and the criminal justice system, strengthen defender programs and improve policies that affect client communities.

In this report, we present each of the COD Ten Principles in the context of profiles of defender programs that are putting the various Principles into action. Those cited are but a few of the many defender programs incorporating the COD Ten Principles today and represent just some of the many creative ways we hope defender programs will begin to integrate these Principles into their own work.

Principle 1: Create a Client-Centered Practice

We aspire to employ a diverse group of attorneys, investigators, social workers and other advocates who respect their clients’ wishes and goals, and work together to ensure that the dignity of every client is honored.

The Neighborhood Defender Service of Harlem (NDS) organized DefensaNDS, a team of all-Spanish-speaking advocates, to deliver effec­tive representation to the program’s burgeon­ing Spanish-speaking client population.

Principle 2: Meet Clients’ Needs

We seek to promote the life success of every client by: identifying educational gaps, mental health issues, addiction, and other needs, and linking clients with resources, opportunities, and services to meet those needs.

Through its Defender Community Advocacy Pro­gram (DCAP), the Rhode Island Office of the Public Defender helps clients with addiction and mental health problems by sending a social worker to arraignment (along with the attorney) to identify treatment needs and to advocate for care. The result: healthier clients, better case out­comes and more productive relationships with judges and prosecutors.

Principle 3: Partner with the Community

We seek to maintain a local presence in the commu­nities we serve and to form relationships with com­munity members, community based organizations, and community institutions (e.g., courts, schools, government, health care providers and employers) to improve case and life outcomes for clients and to strengthen families and communities.

The BMAGIC and Mo’ MAGIC programs of the San Francisco Public Defender’s office address the root causes of youth contact with the criminal justice system by partnering with community organizations to deliver enhanced services for at-risk youth. These programs have a permanent, visible presence in the communities they serve, and they have enabled the Public Defender’s of­fice to expand its role in the community from courtroom advocate to fully-engaged commu­nity partner.

Principle 4: Fix Systemic Problems

We aspire to change policies that harm clients, families and communities (e.g., policing prac­tices that produce racial and ethnic disparities in arrest rates).

The Racial Disparity Project of The Defend­er Association in Washington operates the Law Enforcement Assisted Diversion Program (LEAD), a pre-booking diversion program, based in the community, that steers individu­als accused of low-level drug crimes out of the criminal justice system and into treatment, re­ducing the number of minority youth caught up in the system.

Principle 5: Educate the Public

We seek to describe the human impact of the crimi­nal justice system to policymakers, journalists, and others so that the public can better appreciate the cost to individuals, communities, and the nation of “tough on crime” policies.

The Louisiana Justice Coalition engages in sus­tained public education campaigns that have contributed to a comprehensive overhaul of Lou­isiana’s indigent defense system and continuing improvements to the delivery of indigent defense services in the state.

Principle 6: Collaborate

We aim to create partnerships with likely and unlikely allies, including prosecutors, victims, faith-based organizations, and national and state based legal aid organizations to share ideas, promote change, and support mutual efforts.

Los Angeles’ Homeless Alternatives to Living on the Street program, also known as the HALO program, is a multi-pronged, collaborative effort between the Los Angeles City Attorney’s Office and the Los Angeles County Public Defender’s Of­fice aimed at diverting non-violent homeless or near-homeless individuals with mental illness or addiction from jail and into treatment programs.

Principle 7: Address Civil Legal Needs

We seek to promote access to civil legal services to resolve clients’ legal concerns in such areas as housing, immigration, family court, and pub­lic benefits, occasioned by involvement with the criminal justice system.

Cognizant that “collateral consequences” flowing from a criminal conviction can be as severe (if not more severe) than a prison sen­tence, and aware that they can lead clients into a cycle of involvement with the criminal justice system, The Bronx Defenders has estab­lished a Civil Action Practice, providing legal representation to resolve a broad range of cli­ents’ civil legal problems.

Principle 8: Pursue a Multidisciplinary Approach

We aspire to engage not only lawyers, but also social workers, counselors, medical practitioners, investigators and others to address the needs of clients, their families and communities.

With delinquency attorneys, education attor­neys, social service advocates, a psychologist and a community liaison, the Youth Advocacy Department (YAD), in Massachusetts, relies on a team approach to get young clients not just “problem-free outcomes,” but positive de­velopmental outcomes and the achievement of real world goals.

Principle 9: Seek Necessary Support

We seek essential funding, professionally ap­proved workload limits, and other resources and structures sufficient to enable the COD model to succeed.

The North Carolina Office of Indigent Defense Services’ (IDS) Systems Evaluation Project—a data-driven performance measurement sys­tem—will enable IDS to gauge the quality and cost-effectiveness of its services. IDS can rely on the data to make the case for greater support for programs that continue to prove their worth.

Principle 10: Engage with Fellow COD Members

We are dedicated to sharing ideas, research and models to help advance the COD movement lo­cally and nationally in order to maximize its benefits for clients, families and communities.

Being an engaged member of the Community Oriented Defender Network means devel­oping and sharing creative problem-solving strategies for breaking the cycle of arrest and incarceration that have turned courthouse en­trances into revolving doors. There are myriad possibilities for engagement.

About the Authors

Melanca Clark was Counsel in the Justice Program and Director of the Community Oriented Defender Network when she conducted her work on this report. Ms. Clark, a former John J. Gibbons Fellow in Public Interest and Constitutional Law and a Skadden Fellow at the NAACP Legal Defense and Education Fund, also was an associate at Paul, Weiss, Rifkind and Garrison and clerked for Judge Joseph A. Greenway, Jr. of the U.S. District Court for the District of New Jersey. She received her J.D. from Harvard Law School, and her B.A. from Brown University.

Emily Savner is a Research Associate in the Brennan Center’s Justice Program. Ms. Savner assists the Access to Justice Project in its efforts to improve the quality and availability of legal services throughout the United States and protect the rights of non-profit organizations working with low-income communities. Ms. Savner received her B.A. from New York University in 2008.

Millions of Americans register to vote each year, and millions more update their registration information. Between 2006 and 2008, states received more than 60 million voter registration forms, most on paper. This labor-intensive paper system swamps election officials, burdens taxpayers, and creates a risk for every voter that human error—a misplaced form, a data entry slip—will bar her access to the ballot box.

A comprehensive national study found that registration problems kept up to three million people from voting in 2008. A paper-based system may be the best the 19th century had to offer, but it is out of step with the higher-tech approach in other spheres of American life, and the approach in other democracies.

Fortunately, paper-based voter registration has quietly begun to go the way of ticker tape. Now at least seventeen states electronically transfer voter registration data from Departments of Motor Vehicles (DMV) to election authorities; in some states, the process is entirely paperless; in others, officials use paper forms solely to obtain some information, like signatures.5 Secure online voter registration is now available in seven states, and is under development in at least five more. In the past two years alone, eleven states have developed paperless systems, and many others have begun to consider reform.

This report is the first in-depth survey of these registration innovations—"automated" voter registration, in which government offices like DMVs collect and transfer voter registrations electronically, and online voter registration, in which citizens submit voter registration applications over the Internet. Based on documentary research and interviews with election officials in fifteen states, this report explains how paperless voter registration works, reviews its development, and assesses its impact.

The bottom line: paperless voter registration yields substantial benefits for voters and governments alike.

KEY FINDINGS

1. Paperless voter registration is cost-effective and saves states millions of dollars each year

• It cost Arizona less than $130,000 and Washington just $279,000 to implement both online voter registration and automated voter registration at DMVs.
• Delaware’s paperless voter registration at DMVs saves election officials more than $200,000 annually on personnel costs, above the savings they reaped by partially automating the process in the mid-1990s. Officials anticipate further savings.Our paper-based voter registration system may be the best the 19th century had to offer, but it is out of step with the higher-tech approach in other spheres of American life.
• Online and automated DMV registrations saved Maricopa County, Arizona over $450,000 in  2008. The county spends 33¢ to manually process an electronic application, and an average of 3¢ using a partially automated review process, compared to 83¢ for a paper registration form.

2. Paperless voter registration is more accurate and reliable than paper forms

• Officials consistently confirm that paperless registrations produce fewer errors than paper forms and reduce opportunities for fraud.
• A 2009 survey of incomplete and incorrect registrations in Maricopa County, Arizona found that electronic voter registrations are as much as five times less error-prone than their paper-based counterparts.

3. Paperless voter registration increases voter registration rates

• DMV voter registrations have nearly doubled in Washington and Kansas, and increased by even more in Rhode Island.
• Seven times as many South Dakotans submitted voter registrations at DMVs after the state implemented an automated system.
• Registration rates among 18-24 year-old citizens rose from 28 to 53 percent after Arizona introduced online and automated registration.

Given the clear benefits, it makes sense that more and more states have begun to adopt paperless registration. Although Congress is currently considering reforms along these lines, this paper focuses on state-based reform efforts. The online provides additional state-by-state information. In a field often subject to partisan bickering, it is noteworthy that state voter registration innovations have earned praise from Republicans and Democrats alike, as well as from election officials and agency personnel. Paperless voter registration is the wave of the future.

Additional Appendices with Detailed State Profiles

• Arizona
• Delaware
• Florida
• Kansas
• Michigan
• North Carolina
• Oregon
• Pennsylvania
• Rhode Island
• South Dakota
• Washington

About the Author
Christopher Ponoroff is a Pro Bono Counsel in the Democracy Program, working on voter registration and election issues with the support of Shearman & Sterling LLP. He received his J.D. from Stanford Law School and his B.A. from Tulane University. He has worked as a language assistant at the Maison d’Education de la Légion d’Honneur, and as a summer associate at Shearman & Sterling.

About the Editor
Wendy Weiser directs the Brennan Center's work on voting rights and elections and is Deputy Director of the Democracy Program. She has authored a number of reports and papers on election reform; litigated ground-breaking voting rights lawsuits; and provided policy and legislative drafting assistance to federal and state legislators and administrators across the country. She is a frequent public speaker and media contributor on election reform and democracy issues. She has also served as an Adjunct Professor of Law at NYU School of Law. Ms. Weiser received her J.D. from Yale Law School and her B.A. from Yale College, and she clerked for Judge Eugene H. Nickerson on the United States District Court for the Eastern District of New York.

The Impact of Citizens United on Judicial Elections

In Citizens United v. FEC,[1] the United States Supreme Court struck down the long-standing federal ban on corporate independent expenditures in elections.[ii]  The transformational effect that unrestricted corporate and union spending will have on elections for legislative and executive offices has been widely denounced.[iii] But the most severe impact of Citizens United may be felt in state judicial elections. 

Just last year, the Supreme Court ordered a West Virginia judge disqualified from hearing the case of a campaign supporter who had spent extravagantly to elect the judge. It did so after concluding that, by refusing to step aside from hearing his benefactor’s case, the judge had violated the opposing party’s constitutional right to a fair hearing before an impartial court.[iv] Yet, by opening the door to expanded corporate spending in judicial races, Citizens United is likely to make this type of conflict of interest more common, and to increase pressures on judges who seek to remain independent and impartial. 

Equally important, heightened spending in judicial races will almost certainly exacerbate existing public concerns that justice is for sale to the highest bidder.  As Justice John Paul Stevens noted in dissent, the Citizens United decision came at a time “when concerns about the conduct of judicial elections have reached a fever pitch.”[v] And after Citizens United, if retired Justice Sandra Day O’Connor’s predictions are correct, “the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”[vi] 

This paper examines the damage that runaway spending in judicial elections is having on our state judiciaries, and offers several policy recommendations that states should consider in responding to the threat that outsized campaign spending poses to fair and independent courts. It first summarizes recent trends in judicial election spending and documents the impact that escalating spending is having on public confidence in the courts. Next, the paper highlights seven states in which Citizens United’s impact on judicial campaigns is likely to be significant, and explains why the decision is likely to spur increased special interest spending in judicial elections. The paper concludes with proposals for responding to our increasingly expensive judicial elections: public financing for judicial campaigns; enhanced disclosure and disqualification rules; and replacing judicial elections with merit selection systems in which bipartisan committees nominate the most qualified applicants, governors appoint judges from the nominees, and voters choose whether to retain the judges at the ballot box.

Introduction

Retired Justice Sandra Day O’Connor recently explained the risks that unlimited campaign spending poses to fair and independent courts — and the likelihood that Citizens United will intensify these risks:

If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.

[After Citizens United], we can anticipate labor unions’ trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.[vii]

The threat to our state courts is real — and serious. Thirty-nine states use elections to select some or all of their judges.[viii] According to the National Center on State Courts, nearly 9 in 10 — fully 87% — of all state judges run in elections, either to gain a seat on the bench in the first place, or to keep the seat once there.[ix] In a 2001 poll of state and local judges, more than 90% of all elected judges nationwide said they are under pressure to raise money in election years, and almost every elected judge on a state high court — 97% — said they were under a “great deal” or at least some pressure to raise money in the years they faced election.[x] 

Corporations and special interests are already major spenders in judicial campaigns. As repeat players in high-stakes litigation, these groups have strong incentives to support judges they believe are likely to favor their interests. This is particularly true on state high courts, where electing a majority or a crucial swing vote can make the difference in litigation involving multi-million dollar claims. As a result, business interests and lawyers account for nearly two-thirds of all contributions to state supreme court candidates. Pro-business groups have a distinct advantage: in 2005-2006, for example, they were responsible for 44% of all contributions to supreme court candidates, compared with 21% for lawyers.[xi] In 2006, pro-business groups were responsible for more than 90% of all spending by interest groups on television advertising in supreme court campaigns.[xii] 

This special interest spending has occurred in judicial elections despite the fact that approximately half the states previously banned or sharply restricted corporations from using treasury funds for campaign advocacy. None of these restrictions is permissible after Citizens United. The inevitable result will be increased corporate spending in judicial elections — and increased threats to independent and impartial courts.  

About the Author

As Counsel in the Brennan Center’s Democracy Program, Adam Skaggs works on a range of judicial independence, voting rights, and election administration issues. Before joining the Brennan Center, he was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP. In 2003, Mr. Skaggs graduated summa cum laude with a J.D. from Brooklyn Law School, where he was a member of the Brooklyn Law Review. He subsequently clerked for Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit and Judge Edward Korman, Chief Judge of the U.S. District Court for the Eastern District of New York. Mr. Skaggs received an M.S. in Urban Affairs from Hunter College of the City University of New York, and holds a B.A., awarded with distinction, from Swarthmore College.

[1] 130 S.Ct. 876 (2010).

[ii] Citizens United allows corporations and unions to make unlimited independent expenditures and electioneering communications in federal and state elections, including state judicial elections.  The federal ban on direct contributions from corporations and unions to candidates’ campaigns remains in effect after Citizens United.  Also, disclosure of independent expenditures and electioneering communications was upheld by Citizens United.

[iii] See, e.g., Editorial, Court's campaign ruling threatens the public interest, USA Today, Jan. 22, 2010; Erwin Chemerinsky, Op-Ed., Conservatives embrace judicial activism in campaign finance ruling, L.A. Times, Jan. 22, 2010, Lobbyists Get Potent Weapon in Campaign Ruling, N.Y. Times, Jan. 21, 2010;  Bob Edgar, Op-Ed., Supreme Court’s campaign ruling: a bad day for democracy, Christian Sci. Monitor, Jan. 22, 2010.

[iv] See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).

[v] Citizens United, 130 S.Ct. at 968 (Stevens, J., dissenting).

[vi] Adam Liptak, Former Justice O’Connor Sees Ill in Election Finance Ruling, N.Y. Times, Jan. 27, 2010.

[vii] Charlie Hall, O’Connor: Contributions ‘Can Poison the System,’ Gavel Grab, Jan. 26, 2010.

[viii]See American Judicature Society, State Judicial Selection.

[ix]See National Center for State Courts, Judicial Selection and Retention; see also Adam Liptak, Rendering Justice, With One Eye on Re-election, N.Y. Times, May 25, 2008.

[x]See Greenberg Quinlan Rosner Research, Justice at Stake – State Judges Poll [pdf], 2001 (“2001 Greenberg Quinlan Poll”).

[xi] See James Sample et al., The New Politics of Judicial Elections 2006 18 (2007) (“New Politics 2006”).

[xii] Id. at 7.