Right-of-Way Electioneering: Who Can Remove Campaign Signs?

Campaign Signs

by: Brittany Crouch

Earlier tonight, we received an inquiry regarding the removal of illegally placed campaign signs on a public right-of-way, and the treatment of the signs after their removal.  It appears that this is generally at the discretion of the Kentucky Transportation Cabinet.

In addition to the well-known rule that any form of campaigning or electioneering cannot take place within 300 feet of a polling place–including verbal support and campaign signs–on public property, there are some restrictions on campaign signs positioned on public right-of-ways.  While the Transportation Cabinet mostly retains discretion on what constitutes misplacement on those right-of-ways, the Cabinet pointed to a number of sources asserting that signs deemed to be illegally placed will be removed by highway crews and taken to the highway garage in the county where they were removed.  The candidate or campaign can fill out a claim form and show identification to retrieve their signs, but this must happen fast.  After five working days, any unclaimed signs will be discarded. 

We could not find any Kentucky rules stipulating whether private individuals may remove campaign signs placed on public rights-of-way.  But, of course, general legal principles, such as property law, would likely apply.

Problems at the Polls Trigger Litigation in Tight Governor's Race

Long lines in CT

by: Chris Stewart

The atmosphere in some Connecticut polling places is not so pretty. In all 26 Hartford polling places, early morning voters faced delays and confusion because voter registration lists were missing. Without the registries, poll workers could not check off the names of individual voters. This is the second straight Connecticut gubernatorial election with difficulties on Election Day.

As a result, Governor Malloy's reelection campaign filed a motion in the Hartford Superior Court to extend polling hours. State Republican Party Chair Jerry Labriola stated that because the problems were resolved this morning, there is no need to extend polling hours. He went on to assert that no one will be disfranchised, and this motion is "an attempt to increase the polling hours and give Democrats more time for shenanigans."

Many expect the margin of victory in this election to be razor thin. According to the latest polls, the governor's race between Democrat Dannel Malloy and Republican Tom Foley is too close to call. In addition to the litigation in Hartford, President Obama weighed in, urging Connecticut voters to return to the polls if they had been turned away earlier. 

The Hartford Superior Court judge ruled after hours of testimony and arguments that two locations in Hartford must stay open for an additional half an hour until 8:30 PM.  Governor Malloy's campaign had requested a one-hour extension at several locations, but based on the testimony, the judge limited the extension to two precincts. Witnesses testified to the problems at the two locations where the judge granted an extension, but there was no eye-witness testimony supporting the claims of delays in the other polling places. The judge based his opinion on Connecticut law, as well as what he referred to as the “inherent power” of the court to preserve constitutional rights.

Finally, the judge issued two informal requests. First, he asked the state to investigate how and why the polling places were not ready for voters in such a well-publicized election. Second, the judge informally requested that the media not report the results from the polling places until after 8:30 PM.

Control of the Senate Might Not Be Decided Tonight

Georgia-Louisiana Race

by: Thomas Travis, Senior Editor

Most audiences are tuning into election return programs tonight on various cable and network outlets to see if control of the United States Senate will change hands. Currently, the Senate consists of 53 Democrats, 45 Republicans, and 2 Independents (who caucus with the Democrats). Republicans need to pick up a net six seats to gain control of the upper chamber.

Two state election law statutes may disappoint viewers, and control of the Senate may not be determined with finality until weeks after Election Night. Louisiana and Georgia, two states with highly competitive elections heading into Election Day, require a runoff if no candidate receives over 50% of the votes cast. The runoff in Louisiana would be scheduled for December 6, 2014, while the Georgia runoff would take place on January 6, 2015.

Democrat Mary Landrieu currently is the incumbent in Louisiana facing opposition from two Republican challengers.  The race in Georgia is an open election, after Republican Senator Saxby Chambliss announced  his retirement in 2013. Polling shows that both elections are expected to be very close, and it is possible that none of the candidates in either state will receive over 50% of the vote. We will keep a close eye on those states throughout the night, and if the returns remain close, we may continue watching for weeks to come.

NYT Op-Ed on Provisional Ballots

Polling station sign

by: Joshua A. Douglas, Associate Professor of Law

The New York Times has published my Op-Ed (co-authored with Prof. Ned Foley from Ohio State) on provisional ballots.  Here is a taste:

Millions of Americans will head to the polls today, and many of them will confront some of the most serious obstacles to voting in decades, including strict new photo ID requirements in several states. No voter, however, should be turned away without the opportunity to cast at least a provisional ballot. In an environment in which partisan legislatures aggressively curtail voting rights, the protections provisional ballots offer are especially vital.

The Grab for the Gavel: Are Judicial Races in Kentucky Headed Down the Road of Party Politics?

Judge's Gavel

by: Chris Stewart

On Wednesday, October 29, 2014, federal Judge Amul R. Thapar upheld the right of two Kentucky judicial candidates to associate with political parties in their campaigns. In doing so, Judge Thapar overruled three sections of the Kentucky Code of Judicial Conduct. The opinion is not clear as to whether this ruling applies to all judicial races, or only those of the named plaintiffs, Robert Winter and Cameron Blau. One thing is clear, however: since 2010, the federal courts have set into motion a process which will likely result in a head-on collision between right to free speech and the Kentucky State Constitution’s requirement of nonpartisan judicial elections.

The Supreme Court of Kentucky prescribes rules for judicial elections – which are nonpartisan positions – in its Code of Judicial Conduct. The canons Winter and Blau challenged prohibit candidates from campaigning as partisan party members or advertising their party affiliation in a way which might mislead voters.

Challenges to the judicial canon's ban on partisan campaigning date back to the 2010 case of Carey v. Wolnitzek. In Carey, a federal appellate court struck down a similar canon which prohibited judicial candidates from disclosing their party affiliation in any form of advertising as well as when speaking to a gathering. The court held that, while Kentucky has a compelling interest in preserving an unbiased judiciary both in fact and appearance, those exact canons were too broad under the First Amendment's guarantee of the right to free speech.

The Kentucky Supreme Court changed the rules to allow candidates to associate with political parties, but still prohibited candidates from campaigning as a party member. The distinction is subtle, and Judge Thapar noted it would be difficult for a candidate to know which potential statements were prohibited without first making the statements and potentially subjecting the speaker to sanction.

In this most recent challenge, Robert Winter, a candidate for circuit court judge in Kenton County, sent out mailers identifying himself as a Republican candidate and his opponent as a Democratic candidate. Afterward, the Judicial Conduct Commission received three complaints that Winter violated the new canon because his mailer made it appear that the election was partisan.  Judge Thaper then issued a ruling stopping the enforcement of the party affiliation rules in this election cycle. 

Given Judge Thapar’s opinion, and the clash between First Amendment rights and the goal of a nonpartisan judiciary, it seems that judicial elections in Kentucky are becoming more and more partisan.

(Special thanks to Courtney Bourne for invaluable assistance in the research phase)

How Close is Too Close: When Might Florida Returns Mean a Scott-Crist Recount?

Florida Gubernatorial Candidates

by: Lorran Hart

The Florida governor’s race between incumbent Republican Rick Scott and Republican-turned-Democratic challenger and former-Governor Charlie Crist is predicted to be a close one, and could easily fall within the difference necessary for a recount. Four years ago, Scott defeated Democrat Alex Sink by a 1.2% margin.  Despite the small disparity, it was not small enough to require a recount.  Might this year be different?

As a consequence of the 2000 presidential election, the word “recount” gained a negative connotation in Florida politics and around the nation. The retabulation of votes between George W. Bush and Al Gore lasted for weeks, and the results were not finalized until the Supreme Court ruled to end the recounting process. Bush was ultimately declared the victor in Florida by a margin of 537 votes, giving him the presidency.

The state abandoned the “hanging chads” that proved problematic during the 2000 election, when the state reformed its electoral processes. Florida replaced the punch-card system, which yielded the chad problem, by a touch-screen process. However, the state has since discarded that method as well, and currently relies on “optical scan ballots.” With this system, voters fill in a circle near the name of the candidate of their choice, and then the ballots are processed through an electronic voting machine. Florida officials retain the ballots after scanning in case a recount is necessary.

The Florida Secretary of State, who is appointed by the Governor, is in charge of procedures regarding recounts. According to Florida election law, if unofficial returns show a margin of difference of 0.5% or less of the votes cast for a federal, state, or multi-county office, the Secretary must order a recount. Recounts are not absolutely mandatory; the candidate with the losing percentage of the votes can request that the recount not occur.

Once the Secretary of State orders a recount, the first step is then for a machine recount, which essentially checks the previous totals. If the automated recount changes the margin of difference between the candidates to .25% or below, a manual recount is then required.  In particular the manual recount will include “undervotes” and “overvotes” that the machine may not have tabulated.  “Undervotes” occur when an elector does not choose anyone for the office.  “Overvotes” occur when a voter marks more than person for an office.  It is possible that undervotes are intentional if the voter does not want to choose anyone for the office, but manual counters will decide if the voter did try to vote and the machine just did not count it.

While opinions may vary on the possibility of such a close outcome, candidates for each side nonetheless have legal teams on stand-by in preparation.  Steve Geller, a Crist advisor, stated that, “We’re prepared."  He continued to remark that “there have been emails going back and forth among our teams . . . There’re already plans in place.” Additionally, George LeMieux, a Scott supporter and board member at the Gunster law firm said that Republicans, too, have a legal team prepared just in case returns fall within the recount margin.

In 2010, Florida had a voter turnout of just under 50%. With 12 million voters currently registered, a similar turnout this year would yield about 6 million votes. Such an anticipated turnout would require around a 30,000 vote difference between the two candidates to trigger a recount.

Ultimately, even if the margin of victory is above the .5% threshold, a victor may not be certain until long after Tuesday night. In 2010, the winner of the Florida governor’s race was not decided until the following morning. If a recount is required, it may not be until November 18th (the deadline for certifying the final results) that Floridians have a definite answer to who their chief executive will be for the next four years.                                         

Gumbo With a Side of The Law: How a Lexington Cajun Restaurant Could be Breaking Election Rules by Encouraging People to Vote

Bourbon 'N Toulouse Logo

By Chris Stewart

Most people realize that buying a person's vote is illegal under Kentucky and federal law. However, few realize how far Kentucky's vote buying statute actually goes.

Bourbon 'N Toulouse, a Lexington Cajun restaurant, is offering a $1 discount today for anyone wearing an "I voted" sticker.  The issue here stems from the language of KRS 119.205(1), which makes it a felony to offer an “expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate or public question.”  The law’s broad language includes any kind of payment.

Bourbon 'N Toulouse’s offer may just fall under the law. The restaurant is offering an “expenditure”—the discount— in exchange for the assurance (through an “I voted” sticker) that someone voted. The statute does not require that the offer be made for a vote for a specific candidate. Rather, it covers payments made for any vote cast.  A discounted price for an item likely qualifies as a payment to vote.

Bourbon 'N Toulouse is not the only company that could fall under this law.  In the 2008 election Ben & Jerry’s was going to offer a free cone to anyone with an “I voted” sticker until a law professor caught the problem. 

Increasing voter turnout and participation is always a good thing.  The question is how to determine the line between “vote buying” and community engagement in the election.  Bourbon & Toulouse’s discounted offer seems to violate Kentucky’s vote buying statute.

UPDATE: Doodles is also offering free beignets for anyone wearing an "I voted" sticker. Beignets would certainly also constitute something of value.

Note from the student editors: Do you agree with the statute?  Post your opinions below!

Will Rand Paul Have to Choose Between Running for the Senate and the Presidency?

Rand Paul

by: Aubrey Vaughan

The 2014 races are down to the wire, but many commentators are already looking ahead to a pinnacle question of 2016: Will Rand Paul run for President, reelection to the Senate, or both?

Kentucky law  explicitly prohibits a candidate from seeking two offices at once. Senator Paul is up for reelection to his Senate seat in 2016, which coincides with a presidential race for which Paul seems to be positioning himself.

Paul faces no issues running for president in any state except Kentucky, where he would theoretically hope to be on the ballot as both a senatorial and presidential candidate. The Republican-controlled Kentucky Senate passed a bill  in 2014 to allow federal candidates to simultaneously be on the ticket for President or Vice President and another office. However, it failed to pass in the Democrat-controlled House. This type of law is referred to as an “LBJ law” because Texas passed a similar statute in 1959 to allow Lyndon B. Johnson to simultaneously run for reelection to his Senate seat and seek the Office of the Presidency in 1960.

Republicans still control the Kentucky Senate, and if they gain control of the House this week, Democratic Governor Steve Beshear will be a lame duck governor through 2015. Republicans could then reintroduce and pass an LBJ law – and Beshear could potentially sign it into law or let it pass into law without his signature.

If Beshear vetoes the legislation, but a Republican wins the Governor’s Mansion in 2015, the Governor-elect would be sworn into office on December 8, 2015, the General Assembly would begin on January 5, 2016, and the filing deadline for federal office would fall sometime at the end of January (in 2008, the last time Senate and Presidential elections coincided in Kentucky, the filing deadline for both was January 29 ).

Given this timeline, and assuming a Republican-controlled state government, an LBJ law could pass in time for Paul to run for his Senate seat and the presidency simultaneously, and the Secretary of State would have plenty of time to print enough ballots for Kentucky’s May 2016 primary.

If legislation fails, another course of action would be a legal challenge against Kentucky’s prohibition on seeking two offices at once. In U.S. Term Limits v. Thornton, the Supreme Court held that states may not impose additional candidate qualifications beyond those that exist in the US Constitution for candidates seeking federal office.

While courts have approved state laws prohibiting candidates from appearing on the ballot twice for the same office as the nominee of two different parties and from running for a state legislative office while holding another office, the qualifications for running for federal office are listed in the Constitution, and are limited to age, citizenship, residency, and, for the presidency, the number of presidential terms already served.

Paul could argue that Kentucky is imposing an additional qualification on him running for federal office—the qualification being that he may be a candidate for only one of those offices at a time. He would allege that Kentucky’s law may continue to prohibit a candidate from running for two state offices at once, or from running for a state office if the candidate is also seeking federal office, but the law may not prohibit a candidate from seeking two federal offices at once, which is governed by the US Constitution, not Kentucky law. 

Who Are All Those People at the Polling Places?

Vote sign

by: Joshua A. Douglas, Associate Professor of Law

Many people going to the polls today will encounter both poll workers and “challengers” at the polls.  Who are these challengers?  And are they allowed to be there?

Under Kentucky law, each political party may appoint up to two “challengers” at each precinct.  The parties must certify the list of challengers ahead of time, and they all must be registered voters in the county.  

Challengers may, well, challenge the eligibility of any individual to vote, on the grounds that the voter is not registered, is not a resident of the precinct, is a convicted felon, or is not who the person purports to be.  They provide a check on the election officials’ administration of the voting process.

But beyond challenging the eligibility of voters, the parties use challengers for more political reasons as well.  Anecdotal reports suggest that the challengers are checking off each voter on their own lists of registered voters when the voter arrives at the polling place.  This way, the parties know who has voted—and who has not.  Throughout the day and into the early evening, the parties can target their get-out-the-vote efforts on those supporters who they know have not yet voted, instead of wasting their time calling voters who have already showed up at the polls.

Some may think that “challengers” are at the polls are there to intimidate  voters.  And there is evidence that, sometimes, parties have put challengers in precincts that lean toward the other side so as to challenge the eligibility of the other party’s voters.  There have even been terrible reports previous years of political parties targeting minority communities with challengers.

But Kentucky law prohibits challengers from voter intimidation.  If they do their jobs, they should not be interfering with the voting process.  And they help the parties with their voter mobilization efforts in the process.

Texas Voter ID Law: After a 147-Page Opinion and a 5 am Order, Texas May Use Its Voter ID Law in 2014

Steps of Texas Capitol Building

by: Matt Dearmond

The controversial Texas voter ID law, Senate Bill 14 (S.B. 14), is in effect for the 2014 election as a result of a Supreme Court order on October 18.  The order came after a U.S. District Court issued a decision striking down the law because it infringed the right to vote, discriminated against minority voters, would operate like a poll tax, and violated the Voting Rights Act.

Texas Governor Rick Perry signed S.B. 14 into law in 2011.  The law is considered to be one of the strictest voter ID laws in the country.  It requires all voters to show one of a few specified forms of photographic identification when voting. Critics claim that Texas is discriminating against minorities, poor people, and students, all who tend to vote for Democratic candidates.

 When Governor Perry signed the law, Section 5 of the Voting Rights Act required states with a history of discrimination – which included Texas – to receive federal approval, or “preclearance,” before implementing changes to their voting laws, proving that the new law would not discriminate against minority voters.  On August 30, 2012, the D.C. District Court denied preclearance of S.B. 14 because Texas failed to show that the law lacked both a discriminatory purpose and effect.

While Texas’s appeal of the District Court’s opinion was pending in 2013, however, the Supreme Court issued its landmark decision in Shelby County, Alabama v. Holder, holding that the preclearance formula was unconstitutional because it applied 40-year-old facts to the present day. Without a preclearance formula, Section 5 was rendered inoperable, leaving previously covered states such as Texas free to institute changes to their election laws without federal pre-approval.  Within an hour of the Shelby County decision, Texas announced that it would put S.B. 14 into full effect.

From there, the Obama administration and various civil rights groups brought suit against Texas, alleging that S.B. 14 was unconstitutional and unlawful.

District Court Order Ruling Texas Voter ID Law Unconstitutional and Unlawful

On October 9, 2014, Judge Ramos of the U.S. District Court for the Southern District of Texas struck down S.B. 14 in a 147-page opinion.  The court held that the bill created an unconstitutional burden on the right to vote, imposed an impermissible discriminatory effect against Hispanics and African-Americans, and was enacted with an unconstitutional discriminatory purpose.  Based on the testimony and opinions of multiple experts, Judge Ramos’s opinion laid out a timeline of the state’s history of discrimination, which she explained, “permeated all aspects of life in Texas,” resulting in Hispanics and African-Americans making up a disproportionate number of people living in poverty.  Judge Ramos detailed evidence of Texas’s discriminatory history, citing redistricting decisions since 1970 that the state had lost and the previous denial of preclearance for this voter ID law based on its discriminatory effect. Simply put, Judge Ramous ruled that Texas could not use its voter ID law for this – or any – election because it would infringe the right to vote. 

Fifth Circuit Court of Appeals Issues Stay

With the final order of the District Court coming down just nine days before early voting began in Texas, and twenty-four days before Election Day, the Fifth Circuit Court of Appeals issued a stay of the district court’s decision.  The Fifth Circuit expressed concern about the impact the District Court’s judgment would have on the upcoming election.

The court’s concern for the preservation of the status quo immediately before an election derived from the Supreme Court’s decision in a case known as Purcell v. Gonzalez. Under the Purcell doctrine, courts should refrain from issuing an opinion too close to Election Day if it will cause voter confusion or otherwise upset the status quo.  Multiple court orders can create voter confusion, especially close to an election.  Moreover, granting immediate effective relief is particularly troublesome when a State’s election machinery is already in progress. The Fifth Circuit found that Texas had already begun training poll workers under the new system and would be unable to reprint and redistribute new election manuals throughout the state in response to the district court’s decision.

The U.S. Supreme Court Denies the Plaintiff’s Motion to Vacate and S.B. 14 Goes Into Effect

In a brief, one-paragraph order issued at 5:00 am on Saturday, October 18, 2014, the Supreme Court denied a motion to vacate the Fifth Circuit’s stay. As a result, S.B. 14 went into effect for this election. Justice Ginsburg, joined by Justices Kagan and Sotomayor, dissented from the order. She noted that this case was different from the others in which the Court had issued a stay under the Purcell doctrine because it involved a “permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot access discrimination by the State.” She would not “upset the District Court’s reasoned, record-based judgment, which the Fifth Circuit accorded little, if any, deference.”

The upshot is Texas will use its stricter voter ID for this election, even though a federal court, after an extensive trial and lengthy opinion, found that the law might infringe the right to vote of thousands of voters.  This temporary pause in the law, however, is only the latest development in a lengthy story of litigation over voter ID in Texas.  After the 2014 election, the DOJ is likely to seek to “bail in” Texas to the Voting Rights Act preclearance regime based on the finding of intentional discrimination, while the Fifth Circuit, and perhaps the Supreme Court, will weigh in the merits of the law.  

Voter ID is in force in Texas this year.  But this is likely just a prelude to continuing battles over voter ID leading up to the 2016 presidential election.