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Election Law @ Moritz


The Amicus Briefs in the Indiana Voter Identification Case: I read... so you don't have to

Every day following an episode of American Idol, the television critic for the Washington Post, Lisa de Moraes, pens a column headlined: “We watch . . . so you don’t have to.” While the Indiana voter identification litigation, Crawford v. Marion County Board of Election, currently pending before the Supreme Court represents something much more important than a reality-TV show, the proliferation of amicus briefs, thirty-nine in all, makes it difficult for all but the heartiest of election law stalwarts to keep pace.

Well, I’ve now read every amicus brief filed in the case (available here). On the side of those challenging the Indiana law, most notably the Indiana Democratic Party and the American Civil Liberties Union, twenty-three amicus briefs were filed totaling 646 pages of argument. On the side of the State of Indiana, fifteen amicus briefs were filed totaling 418 pages. One amicus brief (sixteen pages) filed by Duke Professor Erwin Chemerinsky spoke to constitutional doctrine more generally and supported neither side. Having spent much of the Holiday Season reading these briefs, I am going to pull out a few of the more interesting tidbits presented.

Of course, this review of the amicus briefs calls for some up-front caveats. Due to limitations of time and space, it’s absolutely impossible to completely claim: “I’ve read . . . so you don’t have to.” There’s more than a thousand pages of argument and each of the amicus briefs provides unique insights, making it a fool’s errand to try to discuss every single brief and to do justice to every nuance of each brief. In addition, the fact that I have pulled an argument or fact out of a particular amicus brief should not be read as an endorsement of the argument or an endorsement of the fact presented as being true. Moreover, I’m going to completely ignore a couple of the amicus briefs penned by law professors—one by Loyola’s Rick Hasen and one that was a tag-team effort of UC-Davis’ Chris Elmendorf and Ohio State’s Dan Tokaji. It’s nothing personal, rather it’s just that several of the ideas presented in these briefs have already received some serious web-play in previous commentaries on this very site. See here and here. Finally, I’m going to assume most readers are familiar with the basics of the litigation. For those of you who want more on the basics, I highly recommend a preview of the case written for the Election Law Journal by Ohio State’s Ned Foley that you can access here.

First Things First: Partisanship and Standing

It’s a bit like herding cats to bring some order to the nearly forty amicus briefs filed, but perhaps the most logical place to begin is with the inception of the law itself. Of any subject related to election administration in a post Bush v. Gore world, laws requiring citizens to present government-issued photo identification in order to cast a ballot seemingly generate the most partisan fury. Unsurprisingly, Indiana’s photo identification law passed on a strict party-line vote; not a single Republican opposed the measure, not a single Democrat supported it, and the measure was signed by a Republican governor. The amicus brief of Historians and Other Scholars provides an interesting national perspective on the partisan divide, noting that Indiana’s law was one of at least ten photo identification bills introduced by Republicans in state legislatures between 2005 and 2007 and that if the legislative votes for all these bills is combined 95.3 percent of the 1,222 Republicans voting supported the bills while just 2.1 percent of the 796 Democrats voting supported the bills. A partisan divide indeed.

Speaking of partisanship, let’s take a minute to consider the decision of the Bush Administration’s Justice Department to file an amicus brief in support of Indiana’s law. Without a doubt, the Justice Department brings a certain cache to the table and has some interest in the Indiana litigation at least so far as the litigation potentially implicates the Help America Vote Act. The Justice Department’s amicus brief also brings a unique perspective to the fore—arguing Indiana’s law should be sustained on a facial challenge but might still be unconstitutional as applied—an argument grounded in the apparent trend of the Supreme Court to prefer as applied rather than facial constitutional challenges. Even so, one has to question the judgment of the Justice Department in getting involved here. After all, rightly or wrongly, the Department has been accused of partisan enforcement of election law for several years running now—whether it be the decision to approve Texas’ re-redistricting of congressional seats or the U.S. Attorney’s scandal or some of the decisions involving enforcement of the Help America Vote Act. So perhaps a Bush Administration Justice Department led by a newly-minted Attorney General who seems intent on resuscitating the Department’s reputation should have sat this one out rather than take another position favorable to the Republican Party on an issue that generates so much partisan heat. In many respects, though, there’s a non-merits issue lurking behind the Justice Department’s contention that the facial challenge to Indiana’s law should be rejected—it’s standing. As the State of Indiana and the lower courts in this case have harped upon, those challenging Indiana’s law have not identified a specific person who will not be able to cast a countable ballot under Indiana’s administrative regime. This is because the Indiana law has a myriad of “work-arounds”—a few of which I will later discuss—that allow those without a photo identification to cast a ballot. Given these work-arounds and the inability of the law’s challengers to identify a specific person who will be totally disfranchised, some of the State’s amici urge the Court to dismiss the litigation for lack of standing. Indeed, standing in voter identification cases has bedeviled the lower federal courts; in similar litigation a Georgia federal district court found no standing while a New Mexico federal district court went in the opposite direction. It seems to me the standing issue here has the potential to break some new ground. To the best of my knowledge, in every single case involving a state statute that Duke Professor Erwin Chemerinsky describes in his amicus brief as “threaten[ing] to deny completely the right to vote to certain citizens” the challengers to the statute featured an actual, specific person who would be denied the right to vote. No doubt, compelling arguments exist to find standing here, but look for the possibility that the Court could punt the Indiana voter identification litigation on standing grounds.

Who is Burdened by Indiana’s Law?

On the merits, those challenging the Indiana law argue it will have a severe burden on voters, particularly on voters from certain readily identifiable groups—the elderly, the indigent, the disabled, racial minorities, and Democrats. Of all these groups, the elderly may be the one that has received the most attention from the challengers. In fact, the hurdles faced by older voters have often seemed to serve as the anecdotal center-piece for the challengers. Yet the State offers a work-around for voters aged 65 and over—they can avoid showing photo identification by casting an absentee ballot by mail. The issue, though, then becomes whether or not the forced use of an absentee ballot amounts to a severe burden for elderly voters who lack valid photo identification. Some obvious problems with mail-in ballots are the possibility of the ballot being lost in the mail and the fact that a voter casting a ballot by mail cannot take advantage of late-breaking information in the election. The American Association of Retired Person’s amicus brief, however, highlights an even more fundamental problem: on recent occasions in Indiana, absentee ballots have been defective and have not been counted at all. In November 2006 in Marion County, two candidates’ names were omitted from absentee ballots and a couple of hundred defective absentee ballots were mailed out to voters. In November 2004, the county did not even count its absentee ballots because the Election Board failed to deliver the absentee ballots to the polling places on time. Perhaps the most interesting aspect of the severe burden analysis will be how the Court handles the compelled use of mail-in absentee ballots.

Another group receiving a lot of attention throughout the course of the Indiana litigation is the indigent. The working assumption of many of the challengers’ amici is that the work-around developed for the indigent always necessitates two trips for an indigent person to cast a ballot that will be counted: one trip to a polling place on election day where a provisional ballot will be cast and a second post-election day trip to the local election office to fill out a waiver form. However, it appears two trips will not always be necessary. In Indiana any registered voter can cast an in-person “early” vote at the local election office starting 29 days before election day up until noon on the day before the election. Thus, if an indigent person chose to cast an early ballot at the local election office, the State says that person can vote and then sign the waiver form in a single trip. Of course, having to cast your ballot at the local election office may not be as easy at it sounds. To take one example, an indigent voter living in East Chicago in Lake County, Indiana, would have to travel about 25 miles to Crown Point, the Lake County seat, to take advantage of such “one-stop shopping.” In addition, the indigency waiver form provided by the State doesn’t exactly make clear the availability of this one-stop procedure. The form instructs the voter to insert the “date of election” and attest, under the “penalties of perjury,” that the voter is the “same individual who personally appeared before the precinct election board for the precinct named above on the election day listed above.” Thus, the form must be interpreted to allow for “election day” to encompass any of the 29 days prior to the election—a seeming stretch. Moreover, the form makes reference to the “precinct election board” rather than the “absentee voter board.” Nevertheless, the Indiana Secretary of State’s published guidance on the subject allows for an interpretation of the waiver form that permits the indigent to cast a ballot and sign the waiver all in one trip.

Indigent voters have received a lot of attention from the parties to the Indiana litigation, but young adults have received almost no attention. One of the perhaps surprising aspects of some of the recent empirical research on access to government-issued photo identification is how younger voters appear to lack identification at least when compared to those citizens who are middle-aged. The impact on young adults receives attention in an amicus brief filed by youth and student groups, such as Rock the Vote. One of the more interesting aspects here is how student identification issued by a number of Indiana’s public universities, such as Purdue, are not valid identification for voting purposes. For example, at IU-Indy School of Law (where I teach), each student is issued a photo identification. However, the IU-Indy student identification does not meet the requirements of the Indiana law because it lacks an expiration date. Indeed, after a recent election I heard an anecdotal story of a student who was turned away from the polls because she had nothing but her student identification with her. If the State eventually wins, look for one reaction to be pressure on public universities to adapt their student identification cards to comply with Indiana’s law.

Another group that has largely been neglected in this litigation is religious persons. The League of Women Voters of Indiana, which has been involved as amicus in this case from the beginning and which wrote one of the more interesting of the amicus briefs filed, spends some time focusing on the Amish and Mennonite, the two most sizeable religious groups likely to be impacted by Indiana’s law. Some members of these groups have a religious objection to being photographed and, indeed, Indiana law provides a religious exemption for photographs for driver’s licenses and state identification cards. However, when it comes to voting on election day, no such exemption exists unless a voter claiming the religious exemption, much like a voter claiming the indigency exemption, fills out a separate waiver form at the local election office. The League relates that there are around 20,000 “Old Amish Order” adherents in Indiana and that one estimate places their political participation at around 10%. This is an interesting and largely unexplored aspect of Indiana’s law, and after reading the League’s brief I was curious as to why the challengers to the law neglected to focus more on the burden on religious persons and why not a single religious advocacy group filed an amicus brief in the litigation.

Where Are the People Burdened by Indiana’s Law?

So the challengers to the law, bolstered by their amici, assert the Indiana voter identification law will severely burden and disfranchise some critical mass of citizens, but a question remains: Where are these citizens? The organizations that brought the challenge to the Indiana law have had trouble locating a single person who will not be able to cast a ballot in Indiana. One would suppose that these persons would be easier to track down in light of the fact that Indiana has held a few elections using the voter identification law, but these people apparently have not yet materialized at the polling places in any great number. As former Marion County Clerk Doris Anne Sadler notes in her amicus brief supporting the State, “she received no report of any individual unable to vote because he or she could not obtain the required identification or qualify for one of the law’s several exemptions.” Indeed, it’s been difficult to specifically identify totally disfranchised persons in other places where photo identification is required; as Georgia Secretary of State Karen Handel notes in her amicus brief, Georgia recently held elections in 246 jurisdictions in both large and small counties throughout the state and “a combined total of less than 50 registered voters” showed up at the polls without a photo identification.

Returning to Indiana, the brief filed by the Marion County Election Board—a defendant in the case that refused to argue in favor of the constitutionality of Indiana’s law—counters such assertions. The Marion County Election Board notes that at the November 2007 mayoral election at least thirty-four persons presented themselves at the polls without the appropriate photo identification. These thirty-four persons completed provisional ballots, but only two of these voters followed the casting of that provisional ballot with a return trip to the local election office to show their photo identification and have their provisional ballot counted. Yet former Marion County Clerk Sadler retorts that such a decision by a voter makes sense from a “cost-benefit” perspective because the margin of victory in the mayoral election exceeded 5,000 votes. In addition, Ms. Sadler notes the possibility that the thirty-two who did not validate their provisional ballots could have been persons engaged in fraud. In the end, though, statistics about provisional ballots cannot accurately account for those who didn’t bother to show up because they knew they could not meet the photo identification requirement nor can these statistics reflect those who showed up at the polling place, didn’t have an identification, and in the colorful words of Judge Richard Posner said “what the hell” and decided not to vote “rather than go home and get the ID and return to the polling place.” Moreover, the true test of the impact of any election regulation often comes during a general Presidential election and neither Indiana’s nor any other photo identification law has withstood the Presidential election test.

Finally, one of the interesting sidelights of the “where are the people without identification” question has been a debate over how necessary a government-issued photo identification is to operate in American society today. Judge Posner asserted that “it is exceedingly difficult to maneuver in today’s America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one).” But as the amicus brief for the Lawyer’s Committee for Civil Rights points out, it’s quite possible to fly on a commercial airliner without showing photo identification—persons who lack such identification need only endure extra security screening. More interestingly, the amicus brief for the Cyber Privacy Project asserts that a phone call to the federal courthouse in Chicago—where Judge Posner sits—revealed that the courthouse accepts a broader range of photo identification than Indiana accepts for voting. In addition, the Cyber Privacy Project asserts that photo identification is not required to enter the federal courthouse in Boston nor is photo identification needed to enter the Supreme Court itself.

Is Voter Impersonation Fraud a Myth or Reality?

Whether or not Indiana’s voter identification law imposes a severe burden on voters, the State needs to justify the law and the primary argument the State has used to justify the law is the need to prevent election fraud. However, the challengers counter that the type of fraud Indiana’s law prevents—electoral identity theft or “voter impersonation fraud”—barely exists. So it comes as no surprise that a good number of the amicus briefs include a lot of back-and-forth as to the existence of fraud and, more specifically, the existence of electoral identity theft at polling places. Several of the amici on the side of the State, such as the several State Attorneys General, begin with statements about the existence of fraud in elections more generally, including the history of election fraud in the United States dating back to Tammany Hall and Lyndon Johnson’s 1948 election to the Senate. The amici for the State, such as the Evergreen Freedom Foundation, also often rely on a finding from 2005 by the Carter-Baker Commission that voter fraud exists and that voter identification provides one method to detect fraud. Finally, many of the amici for the State, such as the Republican National Committee, cite to anecdotal accounts involving recent instances of fraud—the most highly touted of which appears to be the State of Washington’s 2004 gubernatorial election. In response, a number of the amici for the challengers to the Indiana law, such as the Brennan Center for Justice, pick apart the anecdotal stories relied upon by the State’s amici and by the lower courts in the litigation, contending that in most of these instances the fraud committed was not voter impersonation fraud but some other type of fraud, such as absentee ballot fraud, that the Indiana law would do nothing to stop. There’s a lot of back and forth here and one almost would need to take several days to compile a scorecard of the allegations and counter-allegations about the existence or lack of existence of voter impersonation fraud leveled in all of the amicus briefs.

In the final analysis, many of the anecdotal stories may not withstand more detailed scrutiny than I can give them. That said, perhaps the most interesting anecdote of voter impersonation fraud that does not seem to be rebutted in any of the amicus briefs on the side of the challengers comes from the American Unity Legal Defense Fund who state that several voters at the November 2004 election in Albuquerque, New Mexico, were denied the right to vote because of voter impersonation. For example, the brief cites testimony before Congress involving a voter named Dwight Adkins who did not have his provisional ballot counted because someone else had a cast a ballot in his name on election day before Mr. Adkins appeared at the polling place. In addition, the brief cites testimony before Congress involving a voter named Rosemary McGee who arrived at her polling place at 3 pm only to learn that someone had voted in her name (and signed the poll book with Ms. McGee’s name mis-spelled) at 7 am. It’s unclear what sort of impact these anecdotes that have not been tested in this particular litigation will have on the Court. Moreover, it’s unclear from a cost-benefit perspective which is greater—the number of people disfranchised by Indiana’s law or the number of fraudulent votes prevented by the law. Regardless, no matter what the Court decides in the Indiana case, I would expect that groups supporting voter identification laws will continue to expand their hunt for more and more anecdotal stories of voter impersonation fraud.

A more theoretical way to look at the existence of voter impersonation fraud is to assess the potential benefit of such fraud in relation to its potential cost. On this score, the Brennan Center makes an interesting point by putting a different spin on one of the more controversial statements in Judge Posner’s opinion. In his opinion, Judge Posner discussed how voting has a very low instrumental value because a single vote rarely decides an election. The Brennan Center, however, turns that argument around on Judge Posner by accepting his premise—the low instrumental value of a single ballot—and using the premise to argue that it then makes sense very little voter impersonation fraud exists because the value of voter impersonation fraud is similarly low. In other words, if elections are rarely won by a single vote, why would someone take the risk of prosecution by casting a single fraudulent vote?

A few of the amici on the side of the State argue that Indiana’s voter identification law goes beyond just preventing voter impersonation fraud but also prevents undocumented, non-citizens from casting a ballot. The amicus brief from the Democratic and Republican Election Officials makes the argument that essentially runs as follows: proof of citizenship is not required to register to vote, thus an undocumented non-citizen can register without hindrance; however, an undocumented non-citizen cannot obtain an Indiana driver’s license or state identification card because such an individual does not have the type of documents (such as a birth certificate or U.S. Passport) necessary to get a state-issued identification; therefore, the photo identification requirement serves to either detect or deter undocumented, non-citizens from casting a ballot. Of course, considering Judge Posner’s instrumental value argument one wonders whether or not undocumented, non-citizens have much of an incentive to vote and whether or not such persons would take the risk of being detected in order to cast a single ballot. However, the argument does provide a potential additional wrinkle for the State.

This Just In . . . Some Empirical Evidence

One of the intriguing aspects of the voter identification debate that was presciently pointed out very early on by George Washington’s Spencer Overton (available here) is the lack of empirical evidence. More specifically, in addition to a lack of empirical evidence on the existence of voter impersonation fraud, there is also little empirical evidence as to who possesses government-issued photo identification and what impact such a law may have on turnout. The lack of empirical evidence has led to numerous researchers stepping up to the plate to try to examine these issues and since the close of the evidence in the district court there have been several empirical studies performed, a few of which have proved controversial.

Here, however, I want to briefly focus in particular on a couple of studies published within the last two months. The first is a telephone survey of Indiana residents conducted by the University of Washington’s Matt Barreto, UC-Irvine’s Stephen Nuño, and the University of New Mexico’s Gabriel Sanchez—the “Barreto Survey.” The Barreto Survey finds “strong and statistical differences with respect to access to valid photo identification that significantly reduces the opportunity to vote for minority, low-income, less-educated and young and old residents of Indiana.” I focus on the Barreto Survey for a few reasons. First, it is the research study involving access to identification most specifically connected to Indiana. Second, the survey received citation in seven of the twenty-three amicus briefs filed on the side of those challenging the Indiana law. Third, the survey was the first piece of recent voter identification research cited in an amicus brief filed by a group of prominent political scientists. Finally, both of the main challengers to Indiana’s law cited the survey in their reply briefs.

The second study is one measuring the effect the law has had on voter turnout in Indiana. This study was performed by the University of Missouri’s Jeffrey Milyo—the “Milyo Study”—and concluded that “photo id is associated with: i) an overall county-level turnout increase of almost two percentage points, ii) an insignificant increase in relative turnout for counties with a greater percentage of minority and poor population, iii) no consistent or significant impact on relative turnout in counties with a greater percentage of less educated or elderly voters, and iv) a significant relative increase in turnout for counties with a higher percentage of Democrat voters.” Again, the Milyo Study deserves special attention because it bears a direct nexus to Indiana. Moreover, the State of Indiana relied heavily on the Milyo Study in its brief to the Court—referencing it in the neighborhood of a dozen instances. Finally, the Milyo Study plays a prominent role in the amicus briefs filed in support of the State, receiving citation in six of the fifteen amicus briefs filed by those supporting the Indiana law.

But what should the Court do with these late-breaking studies? After all, neither study has withstood the test of litigation nor, it would seem, the rigors of peer review. Indeed, the lack of being tested in litigation makes for some amusing gymnastics on the part of some of the amici in this case. For example, the Justice Department’s amicus brief in one breath dismisses the late-breaking empirical evidence put forth by the challengers while in the next breath it champions the similarly untested Milyo Study. Although I’m not an empiricist, it seems like both studies have some obvious flaws at least as they relate to their usefulness for the currently pending litigation. For example, the Barreto Survey asked voters if the photo identification they possessed had a full legal name that matched their name on the voter registration records. But the Indiana law says the name on the identification only has to “conform” to the name on the registration list and, to take an example provided by the Indiana Secretary of State, the name “J. Crew” on a photo identification would “conform” to the name “Robert John Crew” on the registration list. Turning to the Milyo Study, it compares turnout from the 2002 general election (held before implementation of Indiana’s law) with the 2006 general election (held after implementation) and concludes that overall turnout has increased and turnout in Democratic counties increased. But there’s nothing surprising about these increases considering that of the nine congressional districts within the State of Indiana in the 2006 election, three (and one could argue more) districts featured extraordinarily hotly contested congressional races—all of which were won by Democrats. At the very least, one would expect the Milyo Study to mention this fact, but it does not. In the end, perhaps the untested nature of the empirical evidence presented might provide a background reason for the Court to dismiss the litigation on standing grounds.

After Indiana: Georgia and Arizona?

Assuming the Supreme Court provides a resolution on the merits in the Indiana case, one might think about the implications such a decision could have for other voter identification litigation. For instance, take Arizona’s voter identification law that in the first instance requires persons in Arizona to present satisfactory evidence of U.S. citizenship in order to register and, in the second instance, requires voters in Arizona to present identification at the polls in the form of either photo identification or two “secondary” documents, such as a utility bill or bank statement. The Mexican American Legal Defense and Educational Fund (MALDEF) currently has pending a challenge to the Arizona system, so, not surprisingly, they penned an amicus brief in support of those challenging the law. What’s most interesting, though, is what MALDEF asks of the Court. They ask that “even if this Court upholds the Indiana scheme, it should do so narrowly in order to permit lower courts to reject the discriminatory identification and registration schemes that exist in states such as Arizona.” MALDEF then goes on to present its case against the Arizona statute and to point out ways in which Arizona’s law is more restrictive than Indiana’s.

MALDEF’s brief raises two interesting points. First is whether the challengers to the Indiana law should have even bothered to petition the Supreme Court for review of the case following the Seventh Circuit’s adverse decision. I have heard some rumblings among persons generally opposed to photo identification laws that this was not the case to carry to the Supreme Court and that better vehicles existed to bring before the Justices the issue of requiring voters to present government-issued photo identification. The federal district court judge in the case, Sara Evans Barker, had harsh words for the advocacy presented by the challengers in the lower court, excluded evidence from the plaintiffs’ expert witness, and then used the plaintiffs’ own expert witness against them. Facing what most civil rights organizations view as a very conservative Court, these organizations fear the worst and MALDEF’s amicus brief is unique because it very honestly articulates this fear.

Second, MALDEF’s amicus brief—along with the amicus brief presented by present and former Democratic Secretaries of State, including Georgia’s former Secretary of State, shows just how contextual these voter identification cases could turn out to be. Arizona is different from Indiana which is different from Georgia. Arizona does not necessarily require a photo identification, two non-photo identification documents can serve as a substitute. Georgia allows for a wider range of documents, such as a Georgia local government employee photo identification card, to meet its requirement. Yet both Arizona’s and Georgia’s laws arose in more racially charged contexts. In some ways this reminds me of the early racial vote dilution cases that came before the Supreme Court in the 1970s. In the first case that came before the Court, strangely enough, a challenge to Indiana’s use of multi-member districts for its legislature, the Court rejected the plaintiffs’ vote dilution challenge. But just a couple of years later, the Court upheld a challenge to multi-member districts used by the Texas legislature. Indeed, election law decisions can still be highly contextual—look at how the racial gerrymandering cases started and ended in North Carolina. So I wouldn’t be at all surprised to see Indiana’s voter identification law be upheld and Arizona’s struck down. Or to see Indiana’s struck down and Georgia’s upheld.

A Closing Thought

Truth be told, I had never read thirty-nine amicus briefs for a single case. And in reading the amicus briefs one of the interesting things was that a number of them seemed to be primarily focused on other tangential battles. For example, the amicus brief filed by ACORN spends the vast bulk of its verbiage defending the organization against allegations, many of which appear to be baseless, that the organization has engaged in what might be termed “voter registration fraud.” This is all well and good, but the amicus brief seems to focus a bit too much on defending ACORN. I wouldn’t go so far as to say the amicus brief filed by ACORN is irrelevant, but the relevance seems to be at the margins. At the end of the day, though, when taken as a whole the amicus briefs in the Indiana voter identification litigation bring a lot of interesting ideas to the fore. Now we just have to wait a few months to see how the Court ultimately deals with these ideas.

Michael J. Pitts serves as an associate professor at the Indiana University School of Law – Indianapolis where he teaches and writes about election law. Thoughts, comments, and criticisms may be directed to mjpitts@iupui.edu.


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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. 

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