We invite you to read From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States, a retrospective review primarily of the 2008 elections in five key Midwestern states – Illinois, Michigan, Minnesota, Ohio, and Wisconsin. This study is a sequel to From Registration to Recounts, the widely-acclaimed comprehensive study of the election systems of these states, in which the authors set out to study how five key Midwestern states had responded to the Help America Vote Act of 2002, and to the increased attention that matters of election administration had received in the wake of the 2000 disputed presidential election. This retrospective study, like the original, makes clear that election reform remains an uncompleted task more than two full presidential election cycles after Bush v. Gore.

It was natural for the authors to return to the field during and after the 2008 presidential election to observe how election administration had continued to evolve in the five bellwether states in the two years since the original study. This sequel presents the results of that return to the field, analyzing changes that have occurred and making recommendations for improvement in states that have historically played pivotal roles in national politics, and in the early 21st century remain broadly representative of the U.S. as a whole.

This new book focuses on the four areas that have generated the most material for discussion since the prior book: institutional arrangements; voter registration and databases; what we are now calling “convenience voting,” and formerly called “early and absentee voting”; and post-election processes. The authors retain the framework from the previous book, including the three core values we believe every elections system should promote: access, integrity, and finality. This book treats each of the five states separately, before offering a set of overarching conclusions. The authors reaffirm the importance of independent electoral institutions and, informed by Minnesota’s Coleman-Franken contest – make new recommendations, including that post-election processes must be fair, unambiguous, and managed in a professional and organized way so as to ensure a swift and definitive conclusion.

As was true of the original book, this follow up study also was funded by a grant from the Joyce Foundation (http://www.joycefdn.org/).

By Donald B. Tobin

Many political operatives are setting up 501(c)(4) social welfare organizations as a platform to engage in independent political campaign activities. Section 501(c)(4) organizations are attractive as campaign vehicles because contributions to 501(c)(4)s are generally not subject to disclosure, and therefore donors can keep their contributions anonymous. Traditionally, 501(c)(4)s are organizations created to promote social welfare, and, campaign intervention is not considered a social welfare activity. Social welfare organizations are, therefore, not designed to be the mechanism for significant campaign activities. However, since political organizations under section 527 of the Code are subject to disclosure provisions, there has been a significant movement toward the use of 501(c)(4) organizations as campaign vehicles.

Earlier in the year, I commented that those advocating the use of 501(c)(4) social welfare organizations as ideal campaign vehicles might not be as clever as they thought. I noted that one problem with using 501(c)(4)s is that contributions over $13,000 to (c)(4)s from individuals might be subject to gift tax. The New York Times and Politico are now reporting that some contributors to 501(c)(4) organizations have received letters from the IRS asking about the payment (or lack thereof) of gift tax on contributions to 501(c)(4)s. This commentary explains the gift tax rules, existing regulations, and the impact of these rules in the 501(c)(4) context.

Understanding the Tax Code

Section 2501 of the Internal Revenue Code provides that the donor of a gift must pay tax on gifts in excess of $13,000. Donors currently have a lifetime gift/estate tax exemption of $5,000,000, so a donor can either pay gift tax, or not pay gift tax and use up some of the lifetime gift-tax exemption amount. Since the amount of the gift tax and estate tax exemption are in flux, it is unlikely that most donors will want to use their gift tax exemption.

Section 527 organizations and section 501(c)(3) organizations are specifically exempted from the gift tax provisions. (See § 2501 (exempting 527 organizations), §2522(a)(2)(providing a credit against gift tax for charitable contributions)). Section 2522 also exempts associations operating under a lodge system but only “if such gifts are to be used exclusively for religious, charitable, scientific, literary, or educational purposes…”

The tax code, therefore, clearly sets out the contours of the tax. The donors of gifts are subject to gift tax unless those contributions are to 501(c)(3) or 527 organizations, or some other organizations but only to the extent those contributions are made for charitable type purposes. There is no exception in the Code for contributions to 501(c)(4) organizations.

The standard for determining whether a contribution is a gift for gift tax purposes is whether the transfer was made for “money or money’s worth.” See 2512(b). Section 2512(b) explains that gift tax is paid on the “amount by which the value of the property exceeded the value of the consideration . . .”

The IRS’ Position on Political Gifts

The IRS has consistently taken the position that payments to political or social welfare organizations are subject to gift tax absent a specific exemption in the code. As early as 1959, the IRS explained that individuals who make contributions to a political party or candidate in excess of the exemption amount were required to pay gift tax. Rev. Rul. 59-57. (This ruling may be why there is now a specific exemption in section 527). In 1972, following a case in the Fifth Circuit, discussed later, the Service restated its view that “political campaign contributions [are] taxable gifts.” Rev. Rul. 72-583. (See also, Rev. Rul. 72-355 “Since the enactment of the present gift tax in 1932, it has been the position of the Internal Revenue Service that contributions to a political campaign are taxable transfers for purposes of the gift tax.”)

The IRS more directly addressed the application of the gift tax to contributions to non-political organizations in 1982. In 1975, Congress amended the Code and provided that contributions to political organizations as defined by 527(e) would not be subject to the gift tax. The IRS then determined it would not contest the application of the gift tax to any contributions made to political organizations (even contributions made prior to the change in the law). In its explanation regarding non-enforcement of the gift tax for contributions to 527(e) organizations, the IRS specifically noted, “The Service continues to maintain that gratuitous transfers to persons other than organizations described in section 527(e) of the Code are subject to the gift tax absent any specific statute to the contrary, even though the transfers may be motivated by a desire to advance the donor’s own social, political or charitable goals.” The Service specifically noted as an example of such organizations, organizations “disqualified for exemption under section 501(c)(3) by reason of attempting to influence legislation and that do not participate in political campaigns.” Rev. Rul. 82-216.

The IRS’ position is not ambiguous. The IRS has consistently indicated that contributions to non-charitable organizations similar to 501(c)(4) organizations are subject to the gift tax. Due to a general feeling that the Service was not enforcing the gift tax in the (c)(4) context, practitioners asked the IRS to provide more guidance on this issue. The IRS has not provided further guidance since the 1982 Revenue Ruling. The Service’s decision not to provide further guidance, however, is not an indication that the Service’s position is ambiguous.

Lower Courts Weigh in

Although there have been very few cases addressing the applicability of the gift tax to donations to (c)(4) organizations, the reported decisions uniformly hold the gift tax applies. In Blaine v. Commissioner, 22 T.C. 1195 (1954), the court determined that contributions to a social welfare organization were subject to gift tax. Similarly, in DuPont v. United States, 97 F. Supp. 944 (1951), the court upheld the applicability of the gift tax to payments by Lammot DuPont to the National Economic Council, an organization formed to promote certain economic policies.

Some have argued that contributions to political and social welfare organizations are not subject to the gift tax, and at least in the political organizations context, two courts have determined that payments to a political organization were not subject to gift tax.[1] These two cases occurred before Congress amended the Code to provide an explicit exemption from the gift tax for 527 organizations.

Is the Contribution a “Gift?”

Arguments against the applicability of the gift tax are generally premised on the fact that the contributions to organizations are not subject to gift tax because they are arms-length transactions without donative intent. The assertion is that if a transaction is at arms-length and without donative intent the exchange must be for fair market value and therefore must be for “money or money’s worth.” Opponents argue that under Treasury Regulation §25.2512-8, a transfer of property “made in the ordinary course of business (a transaction which is bona fide, at arm’s length, and free from any donative intent), will be considered as made for an adequate and full consideration in money or money’s worth” applies to contributions to (c)(4)s. Under this logic, the parenthetical (a transaction that is bona fide, at arm’s length, and free from any donative intent) after “course of business” defines what course of business must mean. Thus, they argue as long as they can show that the transaction is bona fide, at arm’s length, and free of donative intent, then the transaction is for money or money’s worth and there would be not be a gift.

This argument, however, stretches the ordinary course of business rule very far and is completely inconsistent with the rest of the language in the regulation. The purpose of the regulation is to explain that if something is given without receiving fair value in exchange, it should be a gift for gift tax purposes.

Treasury Regulation § 25.2512-8 provides guidance when a transfer is for insufficient consideration. The regulation is designed to expand the definition of gift, not limit it. It starts by noting that gifts are not confined to those transactions without valuable consideration, thus indicating that transfers without consideration are gifts. Thus a transaction which is bona fide, at arm’s length, and free from donative intent, but made without consideration, would still be a gift.

The regulation further explains that it is addressing transactions in which consideration exists but the consideration is for less than full value. (The regulation embraces “sales, exchanges, and other dispositions of property… “) It then notes that if a sale or exchange is in the ordinary course of business, it will be made for adequate consideration. This is clearly designed to avoid valuation questions when there are bona fide business transactions. The regulation clearly does not apply in a non-business context, or when there is not a sale, exchange or other disposition of property.

Finally, the regulation specifically notes that “consideration not reducible to a value in money or money’s worth, as love and affection, promise of marriage, etc., is to be wholly disregarded…” In addition, the Service has consistently held, with regard to charitable contributions, that the intangible benefits received by a donor do not make the gift a quid pro exchange and do not provide consideration. See I.R.S. Priv. Ltr. Rul. 6812121000A (Dec. 12, 1968)(using example of contributions to a cancer fund ok); Rev. Rul. 68-432 (1968)(privileges such as being associated with the organizations or being known as a benefactor do not have monetary value for purposes of determining whether payment was gift); Treas. Reg. 53.4941(d)-2(f)(2)(naming rights only an incidental or tenuous benefit for purposes of determining self-dealing in the private foundation context). Thus any intangible benefits a contributor receives for donating to a social welfare organization, like the benefit of promoting an issue or candidate, cannot provide consideration or money’s worth for the donation.

Application of Gift Tax in Other Settings

Two cases involving the applicability of the gift tax to contributions to political organizations provide some support for the notion that the gift tax might not apply to contributions to (c)(4) organizations. Both cases, however, apply in a very different situation, and should not be read to defeat the clear text in §2503 indicating that the contributions are gifts.

The first case, Stern v. United States, 436 F.2d 1327 (5^th Cir. 1971), follows the logic discussed above. The court read Treasury Regulation §25.2512-8 broadly and determined it could apply to contributions to political organizations. The case, however, concerned contributions to a political organization, which would be a section 527 organization, and involved a situation where the contributor maintained control over the contributions. In addition, the court noted that the transactions were “permeated with commercial and economic factors” and that “the contributions were motivated by appellee’s desire to promote a slate of candidates that would protect and advance her personal and property interests.” The court also noted that to insure that actions were consistent with her goals, the donors retained “control over the disbursement of their contributions.” Id at 1330. The court basically concluded that Stern received something, political ads advocating for her concerns, in exchange for her contribution.

In addition, Stern is a very fact-intensive case that relied on a type of contribution that does not exist in the current context. Moreover, in Stern the Service stipulated that the contributions were made without donative intent. Ms. Stern had a colorable argument in that regard because she maintained control of, and directed the contributions. The level of control she exercised strongly indicated a lack of donative intent.

This logic, however, does not apply in the (c)(4) context. Contributors to (c)(4)s do not maintain control over the contributions. In fact, if the donor maintained control, or indicated that the donation had to be spent on a certain campaign expenditures, the donation would likely be subject to disclosure obligations.[2] Thus, the more control and quid pro quo the contributor asserts, the more chance that the contributions will need to be disclosed. Here you have donations to organizations that are organized with both a social welfare and campaign purpose. Once contributions are made to the organization, the organization, not the donor, controls how the funds are spent. Funds are not returned to the donor after the campaign, nor are they generally designated to a specific candidate or commercial.

The second case dealing with whether the gift tax applies to contributions to political organizations is Carson v. Commissioner, 641 F.2d 864 (1981). The court in Carson took a different approach. It declined to rest its holding on the grounds that the contributor received adequate consideration. Instead, the court held that campaign contributions “when considered in light of the history and purpose of the gift tax, are simply not ‘gifts’ within the meaning of the gift tax law.” Id. at 866.

The Carson holding completely ignores the relevant law and merely holds that campaign contributions are not gifts. In light of the broad language in the Code regarding the gift tax, and Congress’s specific determination that taxpayers would not be subject to gift tax for contributions to section 527 and 501(c)(3) organizations, it is unlikely that a current court would apply the approach taken in Carson to 501(c)(4) organizations. If Congress did not believe that contributions to (c)(4) organizations should be subject to gift tax, it could clearly have said so, as it did with regard to section 527 and 501(c)(3) organizations.

Conclusion

We have seen a significant growth in the use of 501(c)(4) organizations in political campaigns. Fueling this growth, are large anonymous contributions to (c)(4) organizations. Had these large donations been made to section 527 political organizations, the contributions would not be subject to gift tax, but they would be subject to the disclosure rules in 527. By seeking to use 501(c)(4) organizations as a campaign vehicle, individuals may be able to avoid the disclosure rules in §527. As a consequence of attempting to subvert these disclosure provisions, large donors may find that their large contributions to 501(c)(4) organizations are subject to the gift tax.

[1] For an excellent analysis of the applicability of the gift tax to (c)(4) organizations See Barbara K. Rhomberg, The Law Remains Unsettled on Gift Taxation of Section 501(c)(4) Contributions, 15 Tax’n of Exempts 62, 65 (Sept.-Oct. 2003)(Rhomberg does not ultimately reach a conclusion regarding whether the gift tax would apply to (c)(4) organization but instead thoroughly explores the arguments on both sides.)

[2] See 11 C.F.R. § 104.20(c) (9)(“ If the disbursements were made by a corporation or labor organization pursuant to 11 CFR 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communications.”)

By Owen Wolfe

In this student paper, “Is Intent to Discriminate Required in Bush v. Gore Cases?” Owen Wolfe explores the relationship between Snowden v. Hughes’ requirement of intentional or facial discrimination and the apparent absence of such a requirement in Bush v. Gore. In what has become a particularly timely analysis, Wolfe situates his discussion in the context of the Hunter v. Hamilton County Board of Elections case, currently before the U.S. Supreme Court in an emergency stay application to Justice Kagan. (This stay application raises precisely the same issue as discussed in Wolfe’s paper.) After describing the two critical Supreme Court cases, Wolfe looks at lower court opinions, with particular focus on three 6th Circuit voting rights opinions and Minnesota’s Coleman v. Franken dispute. He wraps up with a look at arguments for and against the continued application of the intent requirement.

This student paper was written as coursework for a seminar on Disputed Elections. EL@M has posted it because we believe it has public value and adds to the discourse on this topic. It should be noted that the student has done prior work for attorneys representing one of the intervenors in the Hunter case as well as worked as a summer intern for the Ohio Democratic Party. However, this paper was prepared solely as part of course requirements. It represents the views of the student, not of the EL@M project or the individuals making up the project, and is posted solely to provide access to its analysis to the public.

By Daniel P. Tokaji

In 2004, Ohio became infamous for making it difficult to vote and have one’s vote counted.  Now, Ohio House Republicans are attempting to go further than former Secretary of State Ken Blackwell ever dared.  Although Ohio already has a tough voter ID law, the proposed bill (HB 159) would make the burden on eligible citizens more onerous, requiring that in-person voters present one of four specified forms of government-issued photo identification. This comment provides background on the problems with the bill, debunks the arguments in its favor, and anticipates the lawsuits that can be expected it the bill passes.

In 2004, Ohio became infamous for making it difficult to vote and have one’s vote counted. Much of the criticism was directed at then-Secretary of State Ken Blackwell. Remember his directive to reject registration forms on less than 80-pound paper weight?

Now, Ohio House Republicans are attempting to go further than Blackwell ever dared. In an obvious attempt to gain an advantage in the 2012 presidential election, they are attempting to rush through a bill (HB 159) that would make it more difficult for eligible citizens to have their votes counted. Ohio already has a tough voter ID law, but the proposed bill would make the burden on eligible citizens more onerous, requiring that in-person voters present one of four specified forms of government-issued photo identification.

“Disenfranchisement” isn’t a word to be used lightly. But it is necessary to capture this bill’s purpose and impact. Passage of this bill would restore our state’s unfortunate reputation as the nation’s capital of vote suppression. Yet so far, it has gone completely under the radar. This comment provides background on the problem, debunks the arguments in favor of the bill, and anticipates the lawsuits that can be expected to follow if it passes.

The Problem

What’s so bad about voter ID? The basic problem is that many eligible citizens don’t have the types of ID that the bill would require. While it’s hard to say exactly how many will be discouraged from voting, we do know that some segments of the population will be especially hard hit – particularly young, elderly, disabled, and minority voters. These groups are much less likely to have the types of ID that Ohio’s new bill would mandate.

A bit of history is helpful, in clarifying why this bill will cause a great deal of harm while doing no good. In 2005, the majority-Republican Ohio legislature enacted a bill (Sub HB 3) that imposed stricter ID requirements than federal law. Specifically, it required in-person voters to present either photo ID or nonphoto ID with their name and current address. While there wasn’t much evidence that these requirements were needed, its vote-suppressive impact appears to have been modest. That’s because the vast majority of citizens have one of the permitted forms of ID, and because the law included an exception for the few who don’t.

Ohio’s ID law is still on the books, but it triggered several years of litigation over inconsistencies in its application, culminating in a consent decree last year in Northeast Ohio Coalition for the Homeless v. Brunner (NEOCH). If this new bill passes, it will destabilize the rules yet again – and undoubtedly result in several more years of litigation, just as election officials and poll workers have become familiar with the existing requirements, as clarified through the NEOCH case.

The Evidence

The claim that this bill is needed to ensure election integrity is belied by the facts. What’s remarkable is the utter lack of evidence that the new ID bill would address any real problem.

I’ve closely studied Ohio’s election system for the past eight years, and am not aware of a single proven incident of in-person voter impersonation fraud – that is, a voter going to the polls pretending to be someone he or she is not. If there are any incidents of in-person voter impersonation in Ohio, they are extremely rare. Yet that is the only type of fraud that a government-issued photo ID requirement can even hope to address.

The only documented case of impersonation I could find in recent Ohio elections involved absentee voting by a mother pretending to be her daughter. This isn’t surprising. The few people who attempt voter impersonation aren’t likely to risk criminal prosecution by showing up at the polling place; they are much more likely to vote by mail. The bill won’t do anything about mail voting fraud, double voting, people registered in the wrong place, or any other form of illegal voting.

Though its supporters may yell and scream about ACORN, the bill won’t do anything about the phony registration forms that this now-defunct group was accused of submitting. The proponents’ contrary argument blurs the distinction between registration fraud and voting fraud. Mickey Mouse’s name may have appeared on a registration form, but he didn’t show up to vote.

Put simply, the bill is a solution in search of a problem – and, as explained below, would make the problems with our election system much worse.

The Purpose

It’s obvious that the bill’s real purpose is to keep eligible Ohioans from voting. Its supporters’ suspect motivation is evident from their timing. The bill was just introduced Tuesday and, with no public fanfare, a committee hearing was quickly scheduled for tomorrow. Ohio is currently in the midst of a fierce debate over whether to pass a bill that would take away public sector employees’ collective bargaining rights (SB 5).

It takes no great political acumen to discern that the ID bill’s sponsors are trying to sneak it through the back door, while Democrats and progressive activists are otherwise occupied. Their apparent plan is to ram it through the committee, chaired by one of the bill’s sponsors, with little debate and even less factfinding.

A close look at the bill’s specifics paints an even uglier picture. The bill would require those who vote in person on election day to present one of four forms of government-issued ID: a driver’s license, a state ID issued by the registrar of motor vehicles, a military ID, or a U.S. passport.

Absentee voters are not bound by this requirement, with one big exception: Those who cast absentee ballots in person (which other states refer to as early voting) are required to present one of the required forms of ID. Students of election fraud will recognize that this is exactly backwards. While voting fraud is rare, most documented incidents involve mail-in absentee ballots. Of course, the real motivation for going after in-person voters is obvious. Democrats are more likely to cast in-person absentee ballots, rather than vote by mail, and those are the votes that the bill’s sponsors are seeking to suppress.

The Impact

The bill’s supporters claim that eight other states require photo ID, but that’s misleading. They’re apparently relying on the National Conference of State Legislatures website of states that require or request photo ID. A close look at those laws reveals that only two states – Indiana and Georgia – refuse to count the votes of those who lack photo ID, as Ohio’s bill appears to require. The other states allow voters to sign an affidavit declaring their eligibility and, absent contrary evidence, will count their ballots.

It’s difficult to say precisely how great a vote-suppressive impact this bill will have, if enacted. The many factors that affect turnout make it hard to pin down the precise impact of comparable laws in Georgia and Indiana. But the available evidence makes clear that its burden will not fall evenly on all citizens. Rather, it will strike hardest against those groups who are already underrepresented in the electorate – specifically, minority voters, people with disabilities, those who are elderly, and poorer citizens.

Studies from Georgia and Wisconsin have documented that African American and Latino voters are much less likely to have a driver’s license than White voters. This is probably because members of these groups, statistically speaking, are less likely to drive or own a car. Of course, these groups also tend to vote Democratic.

It’s also worth emphasizing the negative impact that this bill will have on younger voters. Ohio’s bill conspicuously leaves out student ID – even from a state university – as an acceptable form of voter identification. Again, the reason is self-evident: College students are more likely to vote Democratic, and these are among the votes that the bill’s sponsors are seeking to suppress.

The Lawsuits

We can expect years of litigation if this bill becomes law. In practical terms, a requirement of government-issued photo ID functions like the poll tax struck down by the U.S. Supreme Court in Harper v. Virginia Board of Elections. Although there’s a provision to provide free ID to indigent voters, many voters will not have the documents needed to get state ID handy – and may have to pay for them. There’s also the unnecessary burden that the law would impose on voters lacking ID, who will now have to stand in one line at the BMV only to stand in another at the polls on November 6, 2012. This amounts to a tax on the voter’s time, the functional equivalent of what the Supreme Court struck down in Harper.

The bill’s proponents can be expected to argue that it’s modeled on Indiana’s law, which the U.S. Supreme Court upheld in Crawford v. Marion County Board of Elections. But for several reasons, the sponsors of Ohio’s bill shouldn’t draw much comfort from Crawford. There was no majority opinion, and the lead opinion by Justice Stevens was extremely narrow. The decision only involved a facial challenge, leaving open the possibility that the law might be struck down as applied to specific voters or groups – like the nuns who were later turned away for having outdated IDs. Crawford’s lead opinion relied heavily on the fact that those challenging the Indiana law failed to come up with evidence showing a serious burden on voters.

If Ohio’s bill passes, the lawyers challenging it will surely do their homework and take the time to develop stronger evidence of its negative impact on eligible voters. It will help their case if the Republican-dominated legislature rushes the bill through with scant evidence of voter impersonation fraud, as appears to be their plan. These procedural defects, in addition to the history of vote suppression in Ohio, can also be used to distinguish Crawford and challenge the law on federal equal protection grounds.

There’s also the possibility of a state constitutional challenge to Ohio’s ID bill, if it becomes law. When Missouri passed a comparable photo ID law, that state’s supreme court struck it down under that state’s constitution. It’s true that Ohio Supreme Court justices are elected as nominees of their parties, that Republicans hold a 6-1 majority, and that the court has generally been sympathetic to Republican interests in election cases. But it’s hard to believe that the court could overlook the transparently partisan purpose behind Ohio’s proposed bill, particularly given the absence of evidence that in-person voter impersonation is a serious problem.

Yet another possibility is a race discrimination lawsuit under Section 2 of the Voting Right Act. Ohio’s proposed law is part of a phenomenon in recent years that I’ve dubbed the new vote denial. While the old vote denial involved practices like literacy tests and poll taxes, the new vote denial is much more subtle. Supporters of modern-day barriers to minority participation cite neutral reasons for their practices – most often, as with Ohio’s bill, voter fraud. But the Voting Rights Act doesn’t just prohibit intentional race discrimination, which is notoriously hard to prove. It also bars a voting law or practice that “results in” the denial or abridgement of voting rights based on race. Cases under Section 2 tend to be factually complicated, relying on a combination of statistical, historical, and anecdotal evidence of race discrimination. With some legwork, there’s a good chance that of a successful challenge to Ohio’s law under the Voting Rights Act.

Conclusion

This may be the first you’ve read about Ohio’s proposed voter ID law, but it probably won’t be the last. Should this bill pass, it will cast a shadow over the 2012 presidential election, in which Ohio is again likely to be pivotal. It will undoubtedly sow confusion for Ohio voters and poll workers alike, many of whom were just getting used to the current ID rules. It will surely result in a major increase in the number of provisional ballots cast, which will in turn increase the likelihood of post-election disputes over the result. It will increase both headaches and administrative costs for counties that run elections and the bureau of motor vehicles, at a time when they’re watching every penny. It will undoubtedly result in years of litigation.

Most important, the bill will make it more difficult for eligible citizens to vote. Sadly, this appears to be its only real purpose. Its passage would be yet another great embarrassment for our state.

By Charles Stewart III
Kenan Sahin Distinguished Professor of Political Science
The Massachusetts Institute of Technology

The decision issued by the three-judge panel of the 6th Circuit Court of Appeals in the matter of Hunter v. Hamilton County Board of Elections contains a very interesting analysis of problems with Ohio’s law about counting provisional ballots when they are cast in “the right church, wrong pew” (RCWP) One of the things that makes the case so interesting and important is that it gives us a better idea about how Bush v. Gore will be applied in difficult election cases.

Another reason it has garnered such interest is that it grows out of what appears to be a state mandate that some voters be disenfranchised precisely because they have followed the directives of election officials. Close scrutiny of the numbers of ballots that were placed into a mind-numbing array categories reveals that the RCWP problem is a non-trivial one.

Not being an attorney, but an election geek political scientist, a third issue drew my interest — the pattern of use of provisional ballots and the patterns of their rejection. Among those interested in election law, election policy, and election administration, these patterns raise the question of whether provisional ballot policies will have disproportionate effects on particular types of voters.

Precisely this concern is raised in footnote 24 of the Hunter decision. The footnote, in full, reads, as follows:

It is also discomforting that Ohio’s rule that all provisional ballots cast in the wrong precinct must be excluded may fall—at least in this instance—unevenly on voters depending on where the Board directs them to vote. In single-precinct polling places there is less room for error than at the multipleprecinct locations that have caused so much difficulty in this case. As a result, fewer provisional ballots are likely to be counted in multiple-precinct polling places than in those that serve only a single precinct. This disparate impact might not be of constitutional significance everywhere in Ohio, but here Plaintiffs assert that “the polling places where most of the error-infected provisional ballots were cast are in African-American areas of Hamilton Country.” Plaintiffs 2d Br. at 3. It appears, then, that the exclusionary rule in this case may accrue to the detriment of a protected class. (Emphasis added)

The italicized sentence proposes a hypothesis that provisional ballots will more often be rejected in multi-precinct polling places than in single-precinct polling places, suggesting the possibility of the policy producing disproportionate effects in minority and non-minority communities.

Although the decision makes no mention of actual analysis along these lines that was presented at trial (and I would welcome learning if anyone has done it, or has the data that would allow it to be done), it is possible to gain some insight into whether provisional ballots are more likely to be used and to be rejected in multi-precinct polling places by use of the EAC’s 2008 Election Administration and Voting Survey (EAVS).

I have written a brief, nine-page memo on the subject that is available here. Let me summarize the gist of the analysis.

First, to be clear, the EAVS does not provide precinct-level data, which would be necessary to test the footnote 24 proposition directly. (Again, I hope someone out there has the data to share with me.) What it does have is a set of detailed statistics about quantities like turnout, the number of provisional ballots issued to voters, the number of provisional ballots rejected, and the reasons why the provisional ballots were rejected, all at the county level. In addition, it contains data about how many physical polling places were used in the 2008 election in each county, along with the total number of precincts. With these quantities for each county, we can test the proposition offered by footnote 24.

On the whole, the county-level evidence in Ohio for footnote 24 is weak. There is no evidence that counties with more multi-precinct voting locations issue more provisional ballots than those with few consolidated voting locations. The answer to whether counties with more multi-precinct voting locations reject more provisional ballots depends on how you set up the problem — what the denominator is for the rejection rate (all in-person voters or just the number of people issued a provisional ballot) and whether one weights by the number of voters in a county.

I utilized four different ways of examining the correlation between the rejection rate of provisional ballots and the average number of precincts at each polling location. In only one out of four analyses is there a correlation that would pass the traditional tests of statistical significance at the 95% confidence level. That is an analysis that compares the rejection rate, measured as the percentage of provisional ballots cast, with the average number of precincts in each polling place.

The accompanying graph illustrates this analysis.

The data tokens are in proportion to the number of provisional ballots issued in each county. Hamilton County’s location is also given.

Examination of this graph shows a couple of interesting patterns. First, notice that Hamilton County is on the low end of counties in the use of multi-precinct polling places. Second, notice that Hamilton County is close to the mean of Ohio in terms of provisional ballot rejection rates. Thus, if there are outliers in Ohio, in terms of provisional ballots and the RCWP problem, Hamilton County is not the first place to look.

Third, the data provide evidence that the amount of discretion employed by poll workers and election officials in the use of provisional ballots is quite high. Note the tremendous variation in the rejection of provisional ballots. The rejection rate as a percentage of provisional ballots cast ranged from 3.2% (Pike) to 38% (Lawrence). Lawrence County, with the highest rejection rate, is the data point at the top of the graph, almost directly above Hamilton County. So, it has the same degree of potential problems with the RCWP problem, with a rejection rate twice that of Hamilton County.

Looking at other data in the EAVS dataset, it does not appear that Hamilton County in 2008 had a particularly large RCWP problem. The percentage of provisional ballots rejected because they were cast by a registered voter who showed up at the wrong precinct was 21%, compared to the statewide average of 19%. The other two largest jurisdictions in Ohio, Cuyahoga and Franklin Counties, had similar reject rates for this reason, 25% and 18%, respectively. The counties with the highest RCWP problems were Lawrence (38%) and Adams (37%), which had the highest rejection rates overall.

In assessing this empirical analysis, it is important to keep in mind that it was done at the county level using data from the 2008 election. Things may have been different in 2010 (we will know when the EAC releases their 2010 data next fall), and they may have been different if we had done the analysis at the precinct level.

Although there is, at best, limited evidence that multi-precinct polling places are causing provisional ballots problems in Ohio, the best data we have about provisional ballot uses and rejection illustrate a considerable amount of discretion being exercised locally. As an aside,

according to the EAVS dataset, 155 provisional ballots were partially counted in Stark County, which is hard to square with Ohio’s provisional ballot counting laws. Logan County reported 1 provisional ballot that was partially counted. All other counties reported either zero or did not report any number. Careful scrutiny of provisional ballot data may demonstrate other types of discretion that are not always apparent when we look at election administration one precinct at a time.

The Hamilton County case is a nice anecdote that illustrates a larger pattern that emerges when we examine nationwide data about election administration — local election officials do not always feel comfortable implementing election laws with Draconian effects. This leads to local officials — county boards and poll workers — making exceptions that are often well-meaning, but contrary to law, and potentially producing disproportionate effects. The degree to which this happens in practice is an important field of election administration that has been little researched, and therefore rarely addressed when laws are put in place. Research I have done with colleagues has suggested, for instance, that a similar level of discretion is being exercised locally in the implementation of voter identification laws — a small fraction of voters (often white women of a certain age) more easily get off without showing photo identification in states like Indiana and Georgia that have very strict identification requirements. At the same time, voters of all sorts are being demanded a photo identification in states that not only fail to require photo identification, but ban the use.

In an era in which policymakers are paying attention to the integrity of the polling place, something to caution against is passing laws and promulgating regulations that local officials will be unable, or unwilling, to enforce consistently. Hard evidence of voter fraud is difficult to come by. Hard evidence of poll worker discretion is easy to come by. If election administration were as data-driven as other areas of public administration, one would think that we would be tackling the problems related to polling place integrity we know to exist.

By Daniel P. Tokaji

Contrary to popular belief, the most significant aspect of last year’s Citizens United v. FEC was not its conclusion that corporations have free speech rights.  The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada’s example.

Contrary to popular belief, the most significant aspect of last year’s Citizens United v. FEC was not its conclusion that corporations have free speech rights. The Supreme Court actually settled this question long ago. Nor is the main problem the influx of anonymous corporate spending on federal elections. Citizens United may have exacerbated this problem, but it existed before – and, at any rate, identification of big spenders can be addressed through tougher disclosure and reporting laws.

The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada’s example.

Citizens United was correct to affirm that campaign-related expenditures – whether made by corporations or by individuals – have an expressive quality that warrants some degree of constitutional protection. Where the Court erred was in failing to recognize the consequences of the fact that money is essential to political participation. If effective electoral speech requires money, then those without money lack an equal voice in our democracy. The ultimate consequence is to skew political debate in favor of the wealthy, both in terms of who gets elected to office and the decisions they make once in office. This is anathema to a democracy committed to the principle of “one person, one vote.” In effect, the have-alots have a much greater say in our political system than the rest of us.

Students of American campaign finance law might note that Citizens United‘s rejection of equality is nothing new. That is partly true. Since Buckley v. Valeo (1976), the Court has purported to forbid campaign spending restrictions designed to promote equality. Buckley famously prohibited government from “restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others.” On this basis, the Court struck down limits on individual expenditures in federal campaigns.

Notwithstanding this proclamation, the Court subsequently allowed electoral equality as a rationale for spending limits. In Austin v. Michigan Chamber of Commerce (1990), the Court upheld a prohibition on corporate expenditures in candidate elections, to curb “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Although the Austin Court dressed its holding in the language of anticorruption, the reality is that equality lay at the heart of this decision. The notion of distortion rests on an alternative conception of what the political system should look like – namely, a system where political influence doesn’t depend on wealth. But if one accepts such an egalitarian rationale for regulating corporate expenditures, it should apply with the same force to individual spending. After all, individuals as well as corporations generate wealth through the help of the corporate form, not to mention other state and federal laws.

There was thus a fundamental inconsistency between Buckley and Austin. While the former rejected political equality, the latter embraced it. Citizens United resolved this conflict – but, unfortunately, did so precisely the wrong way, overruling Austin. Even more depressing for reformers, even the dissenting justices in Citizens United backed away from Austin‘s egalitarian rationale, as Rick Hasen has observed.

Though Austin was the most conspicuous Supreme Court decision to allow equality as a rationale for campaign finance regulation, it was not the only one. There have been other cases in which the Court has allowed equality to come in through the back door, disguised as an anticorruption rationale. In McConnell v. FEC (2003), the Supreme Court upheld key portions of the Bipartisan Campaign Reform Act (McCain-Feingold), ostensibly based on the anitcorruption rationale. In reality, McConnell relied on a form of equality rationale – specifically, a concern that big money donors would enjoy disproportionate influence on the back end of the political process, because members of Congress would feel beholden to them. Although the Court used the language of anticorruption, the ultimate concern was inequality when it comes to the outputs of the legislative process.

In Citizens United, the Court returned to a narrower conception of corruption. Specifically, it rejected the government’s argument that the prohibition on corporate expenditures was justified by the concern that they would “corrupt” the legislative process by giving corporations excessive influence. Instead, the Court suggests that corruption consists of an exchange of campaign cash for political favors – something that is very hard to prove. The anticorruption rationale has moved like an accordion, expanding in McConnell only to contract again in Citizens United.

There is zero chance that the current majority on the Supreme Court will suddenly see the error of its ways when it comes to equality as a rationale for campaign finance regulation. But the current Court will not sit forever. In the meantime, those who subscribe to an egalitarian vision of democracy have important work to do. We should outline a new jurisprudence, one that will recognize equality as a central democratic value without eclipsing other interests.

In doing so, American reformers should look to the example of Canada. The Canadian Parliament and Supreme Court have embraced an egalitarian vision of democracy with the same gusto that the U.S. Supreme Court has rejected it. An example is Harper v. Canada (2004), in which Canada’s Supreme Court upheld limits on outside spending to elect or defeat candidates. In a self-conscious rejection of Buckley, the Court declared that “the State can restrict the voices which dominate the political discourse so that others may be heard as well.” By doing so, it promotes a “level playing field” for all its citizens.

Canadian case law also shows that acceptance of the equality rationale is not a rubber stamp for any campaign finance regulation that the government adopts. In two previous cases, which I’ve described here, Canada’s Supreme Court struck down restrictions on campaign spending, without denying equality as a permissible rationale. In these cases, the Court reasoned that these restrictions had the effect of restricting outsider perspectives that would not otherwise be heard.

In addition, the Chief Justice of Canada’s Supreme Court dissented in Harper on the ground that the restriction on outside spending went too far. This is a plausible argument – and the right question to ask. But the Harper dissenters did not outright reject equality as a rationale, as the U.S. Supreme Court has done. In fact, all of the justices on Canada’s Supreme Court accept equality as a rationale for regulation; by contrast, none of the U.S. Supreme Court justices in Citizens United embraced the equality rationale.

Acceptance of equality as a rationale won’t make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.

By Josh Douglas
Assistant Professor of Law, University of Kentucky

One of the more fascinating aspects of the dispute involving whether Rahm Emanuel is eligible for the Chicago mayoral ballot is the procedural posture of the case. After the Illinois appellate court ruled that Emanuel did not meet the Illinois residency requirements, Emanuel asked the Illinois Supreme Court to review the decision on an expedited basis and reverse the lower court. The Illinois Supreme Court then agreed to hear the case, stipulating that it would decide the case without oral argument and based solely on the briefs the parties filed in the appellate court.

This is unprecedented. I am not aware of an instance in which a court agrees to hear a case but refuses to entertain any new arguments directed to that court. Further, this approach could very well call into question the procedural fairness of the Illinois Supreme Court’s decision.

To be sure, the Illinois Supreme Court finds itself in a precarious situation. It must decide this dispute as quickly as possible, as the Chicago Board of Elections needs to print the ballots and prepare for early voting, which begins on Monday. This case presents a clear example of the difficult circumstances a court faces in deciding a last-minute election law dispute. The Illinois Supreme Court obviously believed that one way it could speed up the process was to decide the case without hearing from the lawyers.

But that also means the court will render a decision without the valuable input from those who have the greatest stake in the dispute: the advocates in the case. Moreover, the parties might slightly alter or tailor their arguments based on the appellate court’s decision. If this were not the case, litigants would never see the need to file new briefs – or even hire specialized practitioners – for cases they wish to appeal after losing at the initial appellate court. Here, the parties had been arguing the case to the Illinois appellate court under the guise that Emanuel had won below; their arguments to that court reflected this procedural reality. Now, the roles are reversed. Emanuel must argue that the lower court’s decision was wrong. Yet the Illinois Supreme Court will be considering the brief he submitted to the appellate court, which was framed in the context of the trial court being correct. Put another way, the brief the Illinois Supreme Court will review said “The lower (trial) court was correct” even though now, he would want to say that “The lower (appellate) court was wrong.” Modified legal arguments, or at least approaches and emphases, would necessarily flow from these different starting points.

Of course, the standard of review mitigates this concern somewhat: the Illinois appellate court agreed with the lower court’s factual findings but reversed on a question of statutory interpretation, meaning that the Illinois Supreme Court will review the case de novo (or anew). Further, both Emanuel and the challengers submitted briefs to the Illinois Supreme Court on whether that court should even hear the case. In those briefs, the parties analyzed the lower court’s decision. But that still does not change the fact that the Illinois Supreme Court indicated that it would decide the merits using the briefs submitted to the lower court. The parties thus do not have an adequate means to respond to the lower court’s decision or tailor their arguments to the current posture of the case.

Courts no doubt face a daunting task when they must decide a last-minute election dispute that could alter the outcome of the election. Moreover, the Illinois Supreme Court cannot control how quickly a lower court decides a case. At the same time, however, courts should ensure that the parties have an adequate opportunity to make their best case. Here, the Illinois Supreme Court could have asked for expedited briefing, limited the length of any briefs, or even heard oral argument without briefs. Relying solely on briefs in which the parties made in essence the opposite argument (regarding the correctness of the lower court’s decision) to a different court could call into question the procedural fairness of the Illinois Supreme Court’s approach.