Tenth Circuit Rules Against Lopsided Campaign Contributions In Colorado

United States Court Of Appeals For the Tenth CircuitEarlier this year, the Oklahoma Ethics Commission proposed a change in campaign contributions. Under their proposal, the family restriction would be removed. This is great improvement as current law means a married couple can only give half as much as their unmarried friends.

However, the other suggestion is something we can’t agree with. The other proposal is to change the current $5,000 per election cycle contribution limit to a $2,600 limit per election limit, meaning $2,600 for the primary, $2,600 for the run-off, and $2,600 for the general election. This proposal will create lopsided elections and disproportionately harm Independent candidates.

Thanks to Brian Altenhofel, we now learn about a 10th Circuit Court ruling that invalidates a similar law in Colorado (PDF). Any ruling from the 10th Circuit applies to Oklahoma as the state falls under its jurisdiction.

In Colorado, the law was that contributors could donate $200 to the campaigns of state candidates, but the law provided that major party candidates could get an additional $200 because they participated in a primary. However, the law was structured in such a way that the candidate doesn’t even have to participate in a primary. So even if a Republican or Democratic candidate was unchallenged in their party, they could still collect for the primary they didn’t participate in. However, the law provided no such additional contributions for minor party, unaffiliated or write-in candidates. This means the latter candidates could only get $200 per contributor while their Republican and Democratic competition could collect $400.

The district court did not question the fundamental nature of this right. Instead, the court reasoned that Colo. Rev. Stat. § 1-45-103.7 had not treated individuals contributing to Ms. Curry any differently than the individuals contributing to the Republican and Democratic candidates. This reasoning is incorrect. After the primary, a supporter of Ms. Curry could give her only $200. At the same time, others could contribute $400 each to the Republican and Democratic candidates, and the candidates could spend that money in the general election. In this way, the statute treated contributors differently based on the political affiliation of the candidate being supported. And by treating the contributors differently, the statute impinged on the right to political expression for those who support Ms. Curry or other nominees who are unable to obtain funds prior to nomination.

As a result, we conclude that the statutory classification impinged on a fundamental right.

Colorado had attempted to argue that such contribution limits were in place to fight corruption. However, the court did not see it that way.

The Defendants rely solely on the State’s interest in preventing corruption or the appearance of corruption. This interest is sufficiently important. See Buckley v. Valeo, 424 U.S. 1, 67-68 (1976) (per curiam). But this interest has little to do with Colorado’s statutory distinction among contributors.

In evaluating the connection to the statutory distinction, we must determine whether it is closely drawn to advance the State’s interest in preventing corruption or the appearance of corruption. We conclude that the means chosen are ill-conceived to advance these interests.

The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. But the Defendants have never made such a suggestion. In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest.

So if the law does not protect against corruption and results in hindering the ability of unaffiliated, minor party and write-in candidates’ to raise funds, then what is the purpose of the law? The court could find no reason.

We do not suggest that the constitution would forbid any contribution limits based on an election cycle. But here the State of Colorado has created different contribution limits for candidates running against each other, and these differences have little to do with fighting corruption. Indeed, even now, the Defendants have failed to articulate how the statutory classification advances Colorado’s interest in preventing corruption. Thus, we conclude that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination.

So under this ruling, Oklahoma should be very wary of making any changes to the contribution limits that would fall afoul of this court ruling. So we welcome the removal of the family restriction and would even welcome a lower cap. However, anything that creates lopsided elections as Colorado’s law and the Ethics Commission’s proposal do would be unconstitutional under this ruling.

“None Of The Above” Could Be On The Next Ballot If New Bill Is Passed

Representative Proctor, Democrat District 77Right now in Oklahoma, if you don’t like any of the candidates for an elected office, your only choices are to plug your nose and pick one or simply not vote in that election. This leaves a lot of people in a position where they feel like they have no way to express that dissatisfaction. However, that may change if new legislation is passed this year.

Representative Proctor, Democrat District 77, has introduced HB2632 which would add a “None Of The Above” option to the ballot. That is it really. It simply adds that option to all election on the ballot. Unfortunately, the bill is missing quite a few aspects that would make such an option meaningful.

While adding the option provides an outlet for those who don’t like any of the candidates on the ballot, casting a vote for “None Of The Above” is meaningless on all fronts. Because it lacks the following things, it won’t make much difference in any election.

First, the bill does not require the votes for “None Of The Above” to be counted. Without being counted, there is no way to measure the dissatisfaction of voters toward the provided candidates. Without the votes for it being counted, a candidate may win an election with a minority of voters voting for them and we would never know. This may not change much from the current process as many people leave ballot lines blank.

Second, there are no provisions in the bill for when or if the “None Of The Above” option wins an election. So even if the votes are counted, if it wins, nothing happens. There are a lot of things that could be done in the case of “None Of The Above” winning, but most of them would probably result in a legal challenge by one or more candidate on the ballot.

The lack of any action on votes for “None Of The Above” has led Nevada into court in recent years. In that case, the plaintiffs argue that the votes for “None Of The Above” should be binding and that if it wins the election, then it counts as the seat being vacated and a special election being required. That case was eventually dismissed because the court ruled none of the plaintiffs had standing to challenge the law.

Finally, the law does not require that single candidate elections go to the ballot against “None Of The Above”. If this were required, it would provide a way for parties that failed to run a candidate and Independents to better gauge the political climate for the next election. They could look at the number of votes for “None of The Above” and judge whether a campaign in the next election would make sense.

Even if Oklahoma does not want to make the votes for “None Of The Above” binding, it should at the very least count and report the vote totals for that option for all seats. Had that option been available and counted in the last three presidential elections, where only two candidates were available, then we could have more easily seen the dissatisfaction of voters who were limited in their options.

This is one election law that would would welcome regardless.

New Legislation Would Require Fingerprints, Photo To Register To Vote

Representative Perryman, Democrat District 56In 2010, voters approved a ballot measure to require those voting to show proof of ID before being allowed to cast their ballot. A host of identification was listed as acceptable proof of identity with State issued drivers licenses, state issued ID cards and the voter registration card being among them. Yet, one Representative wants to take this a step further.

Representative Perryman, Democrat District 56, has introduced HB3150 that would require everyone who is a new voter or anyone seeking to change their registration to submit to both fingerprint imaging and photo in order to fully register. Under this legislation, these images would be stored in a database created and hosted by the State Election Board.

The legislation tries to sweeten the deal by making this imaging as an alternative to showing an ID card. So if you don’t want to show your ID or don’t have an ID card, then you can request your fingerprint to be scanned at the ballot box.

For those who are currently registered, the legislation states that the fingerprint and photo requirements are strictly voluntary, that is unless you move, change political affiliation or change your name. At that point, it is a requirement to get a new registration card.

For those who may be concerned about the privacy implications of this database, the legislation attempts to rectify this. The massive database of voter fingerprints, photos, birthdays, address and other personally identifiable information will only be made available to law enforcement if they have a “court order from a judge of competent jurisdiction.” We will be watching this bill closely.

Senator Coburn Resigns; Special Election Set For November

Senator Tom CoburnSenator Coburn has decided he will resign early from the Senate. He had previously expressed plans to not run again in 2016 but has decided to resign two years early.

Serving as Oklahoma’s senator has been, and continues to be, one of the great privileges and blessings of my life. But, after much prayer and consideration, I have decided that I will leave my Senate seat at the end of this Congress.

As a citizen, I am now convinced that I can best serve my own children and grandchildren by shifting my focus elsewhere. In the meantime, I look forward to finishing this year strong. I intend to continue our fight for Oklahoma, and will do everything in my power to force the Senate to re-embrace its heritage of debate, deliberation and consensus as we face our many challenges ahead.

Senator Coburn’s current term isn’t due to to end until 2016. So that means that a special election is required to fill the remaining two years of his term. Thanks to the timing of Coburn’s resignation, Governor Fallin was able to set the special election to correspond with the November general election.

This puts Oklahoma in a position it doesn’t normally find itself in, that of electing two US Senators in a single year. While whoever is elected to fill Coburn’s term will only serve two years before being back up for reelection, it is still a unique experience for Oklahoma voters.

We will keep an eye on this special election as well as that for Senator Inhofe.

Total 2014 Voter Registrations Are Down From 2013

Total Voter Registrations from 1996 to 2014Every year on January 15th, the Oklahoma Election Board releases the voter registration data for Oklahoma. This is a county by county break down of the those registered by party. This year’s registration numbers (PDF) are very interesting. This year, Oklahoma has 1,978,812 people registered to vote in the state. This is 137,374 fewer registrations than it did in 2013.

This change in total voter registrations is primarily due to the voter purging that happened last year. The state purged 145,294 inactive voters from the rolls and we have seen less than 8,000 increase from then. This total number of registrations is the lowest the state has seen since 2004 in the lead up to George W. Bush’s election to his second term.

However, if we look at the data, we can see that election years always start off with fewer than expected numbers and then close out with a small spike. That spike is higher after Presidential elections, but still there for Governor elections. So this means that based on previous Governor elections, we will see a roughly 60,000 voter increase in 2015. That is, unless this election turns out to be more interesting than usual.

Even more interesting than the total registrations is the registrations by party. Here, there are a few interesting things to look at.

Voter Registration Numbers by Party From 1996 to 2014From the data available, the only party to actually gain numbers from the previous year is the Americans Elect party. Technically, it is a “political organization” and not a party, but people can still register as members of it. In 2013, it had only 1 registered member and this year it has 4. While that is nothing compared to the two major parties and Independents, it is still interesting to see that people are interested in registering under its name.

We can also see from these numbers, the gap between Democratic and Republican registrations has shrunk considerably. There is currently only a gap of 31,280 voters. Last year, that gap was 64,409. If that keeps up, registrations for the Republican party could surpass that of the Democratic party next year.

Despite the small drop in party registrations this year, the upward trend of Republican and Independent voters is still in effect. The Republican party has gained 26,072 voters since 2012 and Independents increased by 9,800 voters in the same time frame. If we have similar voter registrations this year as we did in late 2012, those numbers could increase by 69,406 and 27,380 respectively. If we instead base the projections off the 2010 Governor election we will see increases of roughly 36,174 and 15,248 respectively.

The future of the Democratic Party in Oklahoma looks considerably bleaker. Since 2012, Democratic registrations have dropped by 57,674 voters. That number only grew by 18,789 in 2013. There was virtually no change in registration numbers before and after the 2010 Governor election. If that trend, and the trend in Republican registrations shown above hold true for this year, then we will certainly see Republican registrations surpassing Democratic registrations the coming year.

Overall, Oklahoma is going to continue to increase in voter registration rates. It will be interesting to see how these registration numbers affect the coming election. We would certainly love to see a much larger spike in Independent voter registrations this year. We feel strongly that such a surge in Independents would help strengthen the position that we need serious ballot access reform in this state. We would also like to see a much larger number of Independents running for office this year as well. We will keep watching.

Oklahoma Libertarian Party Will Hold Convention In March

Oklahoma Libertarian PartyOn March 8, 2014, The Oklahoma Libertarian Party will be holding it’s state Convention. At this event, there will be several speakers on issues concerning those who lean Libertarian as well as other important issues for Independents in Oklahoma. The following people have already signed on to speak at the event.

  • RJ Harris, candidate for Oklahoma Governor.
  • E. Zachary Knight, Oklahomans for Ballot Access Reform
  • Charles Key, former Oklahoma state representative
  • Dax Eubank, liberty activist

Like most party conventions, this will be a time for those who are registered Libertarians to vote on key issues the party will tackle in Oklahoma as well as elect officers to run the party. If you want to get an inside track on what Libertarians have to offer Oklahoma, this is a great time to do so.

Disclosure: I will be one of the Speakers and am a member of the Libertarian Party

Proposed Constitutional Amendments Attempt To Redefine The Legislature

State Seal of Oklahoma A number of constitutional amendments have been proposed this year that would shake up the Legislative Branch of the Oklahoma government. These proposals, if passed, would go to the people at the November election to be voted up or down. If they pass a vote of the people, they have the power to change what the Legislature is and how it functions.

The first set of these proposals deal with how often and for what purpose the Legislature meets. Three proposals from the Senate, SJR5, SJR37 and SJR39, would require the Legislature to only meet during odd years. This proposal if passed, would force the Legislature to consider all bills in a single session with no increase in session duration. This could potentially make the single session more confusing and rushed with a shorter amount of time to consider and debate bills. Of the two proposals, only SJR39 is the odd one out as it does not reduce Legislative pay.

An alternative proposal from the House, HJR1003, HJR1077 and SJR45, would change the type of bills considered by the Legislature. Under this proposal, the Legislature will only be allowed to consider appropriation bills during odd number years and all other legislation in even years. The appropriations and budget reached during the odd years would be for financing the duties of the government for a length of two years. This particular proposal has been successfully implemented in other states. It would allow the Legislature to focus more carefully on where the money comes from and where it goes.

The next proposal, SJR43, would reduce the Legislature to a single house rather than the two we currently have. It would remove the House of Representatives and leave only the Senate. It would not change the number of Senators. This one might be a tough sell to the people and other members of the Legislature, particularly the House. It would effectively remove a key check from the checks and balances provided by our current government. By having two houses with two different makeups and groups of voters, the strength of a single political party is reduced in the State. under this proposal, it would be far easier for a majority party to influence the direction of the state. This would make it far harder for minority opinions and issues to get heard.

The next proposal, HJR1015, is one that has been introduced nearly every year recently. It would change how the Legislature is paid. Currently there is a board that determines the pay of the Legislature. It meets regularly and sets the pay schedule. However, if this proposal is passed, it would get rid of the board and replace the pay schedule with a formula. It pay members of the legislature a salary that is equal to the average income of Oklahoma households. This could offer an incentive to pass smart legislation that increases the income earning potential of Oklahoma citizens.

The final proposal, HJR1012, would remove the Legislature entirely from the redistricting process. Currently, the House draws the House districts and the Senate draws the Senate districts. I don’t think it is hard to see why this might be a problem. This process allows for the majority party to muscle minor party Legislators out of their seats and protect the seats of friendly incumbents. Under the proposal, this power would be stripped from the Legislature and be replaced by a committee with a non-partisan makeup. The members will be chosen as follows: The House Speaker and the Senate Pro Tempore will pick two members each. The the minority leaders of each house will also pick two members each. The commission will then pick a ninth member by majority vote. This would make current redistricting process far more fair and less biased.

This are just a few of the many proposed Constitutional amendments. We will report of a few more and watch these very carefully.

Republican And Democratic Party Identification Continues To Lose Ground

gallup_party_identificationAccording to the latest Gallup opinion polls, people who identify themselves as Independent are continuing to increase in numbers in the US. This latest poll shows that in 2013 an average of 42% of people identify as Independent while those who identify as Democratic or Republican have fallen to 31% and 25%, respectively.

This growth in Independent identification has come at the expense of the Republican Party.

Americans’ increasing shift to independent status has come more at the expense of the Republican Party than the Democratic Party. Republican identification peaked at 34% in 2004, the year George W. Bush won a second term in office. Since then, it has fallen nine percentage points, with most of that decline coming during Bush’s troubled second term. When he left office, Republican identification was down to 28%. It has declined or stagnated since then, improving only slightly to 29% in 2010, the year Republicans “shellacked” Democrats in the midterm elections.

gallup_party_identification_2013The numbers get more interesting when you look at the quarterly breakdown of the 2013 year. When viewed that way, you see an even stronger surge of Independents at the end of the year compared to Democrats and Republicans (46%, 29%, and 22%, respectively).

The percentage of Americans identifying as independents grew over the course of 2013, surging to 46% in the fourth quarter. That coincided with the partial government shutdown in October and the problematic rollout of major provisions of the healthcare law, commonly known as “Obamacare.”

The 46% independent identification in the fourth quarter is a full three percentage points higher than Gallup has measured in any quarter during its telephone polling era.

Personally, I would love to see a similar poll of Oklahomans. While Oklahoma’s Independent registrations have grown over the years, we don’t have registrations that reflect this opinion poll.

New Legislative Session And New Election Bills Are Upon Us

A new Legislative session is upon us. With this new session, two things are going to happen. The first major thing is that all bills that did not lose a vote in the 2013 Session are revived for this session. These bills will most likely pick up where they left off.

This means that both SB668 and HB2134 still have a chance to be heard in the House, and HB2134 could still be heard in the Senate. If the House chooses to hear and vote on SB668 and not HB2134, then SB668 will go to the governor’s desk, barring any amendments. If the House instead decides to hear HB2134 rather than SB668, then the Senate, based on recent history, would have to hold a vote on that legislation and would most like amend it to more closely resemble SB668.  This would require a conference to settle to difference. That would not be good as the last two conferences which should have reviewed passed Ballot Access Reform refused to address it.

Another bill that is still alive and very dangerous is SB76. This bill would double the fees paid by those seeking to run for office. While this bill, if passed would not change the rules for the 2014 election, it will make running for office in 2016 far more expensive. The House may still take this legislation up and if it votes to approve it, it will harm Oklahoma’s already poor election climate.

The second major thing that is happening this year is that a whole host of new bills will be introduced. Many have already come and are available to view on the Legislature’s website. We will be writing up many stories to highlight some of the worst and some of the best bills that are filed this year.

Regardless of what bills are introduced or carried over, the House and Senate both have deadlines to stick to. The major deadlines are as follows.

  • Introduction of bills: January 16
  • Bills to be heard in house of origin: March 13
  • Bills to be heard in opposite house: April 24

We will also be watching various House and Senate Committees as they review bills we are tracking.  We already have a list of all the bills that are carried over from the 2013 Session and we will be adding some bills introduced this session. We will be updating that page with notes of each bill’s path through the Legislature. We will also be reporting on those updates as well. So keep and eye out and your ears open.

Speaker Shannon Wants To Make Judicial “Reform” A Priority In 2014

Speaker TW ShannonOklahoma, much like the United States, is a Constitutional Republic. In that form of government, members of the government are elected by the people to perform the duties outlined in the governing constitution. Much like the US, Oklahoma’s government was organized with a series of checks and balances to protect the people from tyrannical rulers. In this system, we have a legislature that writes and passes laws, an executive that signs bills into law and is responsible for executing the laws, and a judiciary that determines whether those laws meet the standards laid out in the US and State constitutions.

However, there are some people who are not happy with those checks and balances. One particular person is Speaker T. W. Shannon. Earlier this year, the State Supreme Court overturned a tort reform law because that law failed to meet the State Constitution’s ban on logrolling, or the process of including more than one topic in a single bill. Because this law was overturned, Governor Mary Fallin called a special legislative session to reenact those laws properly. That same court also ruled against a bill that placed unconstitutional hurdles in the process of a women getting an abortion. These rulings are checks and balances in practice. However, Speaker Shannon is not happy with the court’s rulings claiming that they amount to “judicial activism”. Continue reading