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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

Alaska Supreme Court Issues TRO

The Alaska Supreme Court has temporarily stayed a temporary restraining order (TRO) that prohibited Alaska’s Division of Elections from displaying, distributing, or communicating write-in candidate lists at polling locations. Parties to the suit were required to submit briefs to the Supreme Court by 3:00 PM (7:00 PM EST) Thursday.

In mid-October, the Alaska Division of Elections began distributing write-in candidate lists that contained write-in candidate names, party affiliation, and registration status. Although the Division sought approval from the federal Department of Justice before distributing the lists, it never actually received that approval. Subsequent to that distribution, the Alaska Democratic Party [ADP] requested that the Division withdraw those lists from polling stations because 6 Alaska Administrative Code 25.070(b) prohibits write-in candidate information from being distributed within 200 feet of any polling station.

After the Division refused to withdraw those lists, the ADP filed this lawsuit. The Alaska Republican Party and Lisa Murkowski for US Senate Committee intervened.

In granting the Temporary Restraining Order, the judge required the ADP to “make a clear showing of probable success on the merits” instead of the much lower standard which only requires a showing of “serious and substantial questions going to the merits of the case.” According to the court, the heightened standard applies when the threatened harm is less than irreparable or if the opposing party cannot be adequately protected.

The court indicates that the Division has a serious interest in maintaining a “consistent and uniform election and in maintaining confidence in the validity of every vote cast.” Because this interest could not be adequately protected, the court applied the higher standard in the TRO decision. Despite the heightened standard applied by the court, the TRO was granted because the court agreed with ADP’s plain reading of 6 AAC 25.07(b).

Interestingly, the decision recognized that this TRO could impact the thousands of votes already cast under the Division’s disputed write-in procedure.

Perhaps reflecting anxiety about that insight, the State Supreme Court decided to stay this decision pending further review. Although the Division may, for the time being, continue to distribute write-in lists, the lists may not contain party affiliation for write-in candidates. Additionally, every ballot cast by a voter who reviewed a write-in list must be segregated for future appeals.

Notwithstanding segregation, this seems to complicate matters. If the TRO had been allowed to stand then there would only be two categories of ballots that would be involved in a potential challenge: those ballots cast without aid of a distribution list and those ballots cast with aid of a distribution list. The State Supreme Court decision adds a third, hybrid category: ballots cast with the aid of a distribution list that only contains party affiliation.

How this all plays out remains to be seen, but if Murkowski wins the election, either party might seek to challenge write-in votes on the basis of a 6 AAC 25.070(b) violation. At this point it is unclear whether courts in Alaska would entertain this challenge or whether they would disqualify votes for such administrative code violations.


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Tokaji and Strause release The New Soft Money: Outside Spending in Congressional Elections

Dan Tokaji and Renata Strause will release their report on independent spending, entitled The New Soft Money: Outside Spending in Congressional Elections on Wednesday, June 18.  The report includes interviews with former Members of Congress, such as Senators George Allen, Kent Conrad, and Ben Nelson, and Representatives Mark Critz, Tim Holden, Steve LaTourette, and Joe Walsh, as well as recent congressional candidates, campaign staff, political operatives, legislative staff, and representatives of outside groups. See here for details.

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