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Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Social Initiatives on State Ballots

It is time to assess the effect of social initiatives on the November Presidential election. In 2004, eleven states had same-sex marriage bans on the ballot and many observers believed that they helped turn out the vote for incumbent President Bush in critical states.

The situation is cloudier this year.

First, the number of ballot initiatives is down significantly. There were 204 initiatives in 2006, a non-presidential year, and there are currently only 108 measures certified for state ballots. At most another ten or twenty that are in the certification process will be added. Moreover, a number of ballot issues are sponsored by Christian groups to affect John McCain, not Barak Obama. The groups want to force McCain to declare on social agenda questions on which McCain has otherwise been “weak.”

But a deeper look into the issues shows the same old story. The critical swing states are Indiana, Ohio, Michigan, Virginia, Colorado, New Mexico, Nevada, Missouri, Florida, and New Hampshire. The other states show clear leads for one candidate or the other. So what is happening in the swing states?

In several of the biggest swing states, well-publicized ballot issues would appear to energize people to vote who will also vote for McCain. To the extent that ballot issues get people to vote who otherwise might not vote, the higher turnout would seem to favor McCain.

Florida voters will face a marriage definition amendment, defining marriage as solely between one man and one woman. McCain is a clear supporter of the amendment. Colorado voters will face an amendment banning affirmative action, a “right to work” (anti-union) provision, and an amendment defining life as “beginning from the moment of fertilization.” McCain will support the first two but has yet to declare on the latter. Ohio has a measure to require companies with more than fifty workers to provide seven paid days of sick leave to employees. McCain will oppose the measure as will the Ohio business community. Missouri votes will decide on whether to declare English an official state language. McCain, despite, his ambivalence on the issue, may still benefit here.

In short, in the swing states, social ballot issues may still be very important in bringing out voters that will tend to support one candidate or the other. At present, I suspect that McCain will be the beneficiary. Of course, given Obama’s dramatic appeal to new voters, the young, and minorities, the ballot-issue related turnout advantage for McCain may just be a drop in the bucket.


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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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

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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