Convicted felon and California Senator Rod Wright has probably forfeited his seat

UPDATE II: Commenter reality czech notes, "Gov Code 9055 provides that a Legislator forfeits office upon conviction of a crime "defined in THIS ARTICLE." Rod Wright wasn't convicted of any crime specified in that article of the code, so I'm not sure why GC 9055 would be relevant." Um, excellent point. "This article," that is Article 3, "Article 3 – Crimes Against the Legislative Power," is very narrow in its scope. So automatic forfeiture would only apply to the commission of these limited crimes. If that's the case, then the legislature is within its right to expel Mr. Wright if it chose to do so--but the seat was not automatically vacated. Thanks for the important correction.

UPDATE: Crisis averted. Senator Wright has resigned.

California state Senator Rod Wright was recently found guilty of eight felonies, including voting fraud. The state Senate had suspended him (and continued to pay his salary), but his seat has not been vacated: he has not been expelled by the Senate.

That prompted some thoughts from Rick Hasen about the possibility that under California law Mr. Wright automatically vacated his office upon conviction. I expressed some skepticism.

But after further research, I think Rick has it right--albeit for slightly different reasons.

Here's what California Government Code 9055 says:

Every member of the Legislature convicted of any crime defined in this article, in addition to the punishment prescribed, forfeits his office and is forever disqualified from holding any office in the State.

That's slightly different from the provision that Rick cited in his post, which refers to public and executive officers--and that's the basis of interpretation in this 1977 California appellate decision.

The text suggests that forfeiture is automatic. Indeed, the court's interpretation of the analogous civil officer statute finds that forfeiture is automatic upon conviction.

This is, I think, a fairly unusual statute. It is highly unusual for a legislature to cede the power to remove its members to another authority, or to make it occur automatically by statute. The power to expel its own members is a valuable function of the legislature. But § 9055 appears to do just that--automatically result in a vacant seat upon conviction.

On what basis might the legislature do so? Initially, one may consider the California Constitution's section on "Public Officers and Employees," which states,

(a) Every person shall be disqualified from holding any office of profit in this State who shall have been convicted of having given or offered a bribe to procure personal election or appointment.
(b) Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office . . . .

(Query: this provision arises in Article VII, which is not Article IV, "Legislative," and it might well be the case that the "office of profit" or "office" described in this section do not extend to legislative offices--but that might be a question for another time.)

And the legislature went ahead and enacted § 9055, which appears to apply automatically upon conviction.

That would also comport with how the legislature treats expulsion of its own members. In 1905, the California Supreme Court affirmed that the legislature "has the implied power to expel a member for any cause which it may deem sufficient." French v. Senate of State of California, 146 Cal. 604 (1905). I suppose the legislature could also exclude a basis for expulsion as a statutory matter, even absent the constitutional authority cited above.

Further, the Senate Rules (PDF) include the responsibilities of the "Committee on Legislative Ethics," which sets forth a standard of conduct for members of the Senate. That committee handles complaints and addresses potential discipline for members, including expulsion. But the only thing related to a felony in those rules is a guideline that the committee may release records to the public if there is probable cause that a felony occurred. So, in a sense, it would make sense for there to be an automatic consequence for the conviction of an actual felony, one that didn't require the further step of expulsion.

I don't think it's true, as the California Senate leader suggested in an interview, that it would be "improper" to expel a member of the Senate charged but not convicted of a crime--that's certainly neither the inherent power of the legislature nor the standards set forth in the Senate's own rules. Nor, as "Senate officials" suggest, "only elected lawmakers can boot a fellow legislator from office." That's usually true, to a point--the legislature here, however, apparently ceded that decision, and it now takes place automatically, by statute, upon conviction of a felony.

Either the legislature should repeal the statute, enacted in 1943, that includes automatic forfeiture of a seat upon conviction of a felony, or it should embrace the law that it enacted so many years ago.

 

This voter's ballot cost $15,625 in Arizona

After Arizona v. Inter Tribal Council, there was Kobach v. Election Assistance Commission, which continues to languish in the courts. The EAC didn't approve Arizona's proof-of-citizenship requirement. And Arizona responded that it would no longer use the federal form for its state elections and opted to create two parallel ballots--one with federal and state offices for those who had provided proof of citizenship, and one with federal-only offices to comply with the NVRA's EAC-promulgated form and to allow those who could not establish proof of citizenship the opportunity to vote.

The silliness may have been evident when it was revealed that Arizona had just 1,479 voters who qualified for the federal-only ballot. The state has a little more than 3.2 million registered voters (PDF). That's about 0.04% of registered voters who could not provide the requisite proof of citizenship--which is fewer than one voter per precinct.

But the EAC wouldn't budge in its position, despite the rule's discernible impact on a slim number of potential voters (voters who may eventually be able to establish such proof).

And neither would Arizona budge, deciding to print two sets of ballots in its primary election.

That decision is not costless. Maricopa County, for instance, is spending $250,000--that's a quarter of a million dollars--to print two sets of ballots for the primary and the general election.

And as the primary drew to a close this week, it turned out that just 21 voters used the federal-only ballot. That's among about 820,000 ballots cast (PDF).

Only eight of them reside in Maricopa County.

Assuming half of the cost of printing was for the primary, that's $125,000 spent to print ballots that eight voters used--meaning it cost $15,625 per ballot cast.

Doug Chapin asks what this means. Here's the hard questions both sides have to answer.

For Arizona, is proof-of-citizenship worth it? It's not even clear how many of these 21 primary voters were actually non-citizens, after all; it's that they were (or had been) unable to provide the required proof of citizenship. Election administration cannot be perfect. At a cost of tens of thousands of dollars per vote affected--and, even then, only affected in statewide elections--it might be the time to revisit the ballot initiative that made the proof-of-citizenship requirement and ask the voters to amend, or even repeal.

For the EAC, is this fight worth it? A miniscule number of voters are adversely impacted by Arizona's proof-of-citizenship requirement. And while we want to ensure that eligible voters can actually register, it's hard not to make the judgment that maybe this is not the regulatory hill worth dying on. Further, Arizona can still exclude these voters in its statewide elections (as it chose to do), and the EAC's regulation would only have the impact in federal elections--when voters are casting ballots for just one to three offices compared to numerous statewide elections on the ballot.

Maybe the two sides will figure out the proper cost-benefit analysis, or maybe it's just a case of dogged refusal to budge from previously-stated positions. But it's obvious from this calculation that the battle does have an actual, calculated pricetag per impacted actual voter--and that we're left guessing about the other risks and potential costs or benefits as the two sides dig in.

Federal courts orders disqualified Virgin Islands candidate back on ballot

I've blogged about the extraordinary case in the U.S. Virgin Islands in which the territory's Supreme Court ordered a candidate's name (and seated Senator) to be removed from the ballot because it concluded she was not qualified for office because she had been convicted of a crime of moral turpitude (despite being seated for office twice before). The governor responded with something of a blunderbuss solution, pardoning her so that she could obtain ballot access.

That wasn't good enough for the Board of Elections, which had been dogged in its refusal to allow Alicia "Chucky" Hansen to obtain ballot access. It insisted it would need further clarification from the Supreme Court as to whether it could put Ms. Hansen on the ballot, and that it would not do so until so ordered. The pardon mooted her disqualification, months ahead of election day, but that wasn't enough for the board.

So several voters sued the board, in federal court, to reinstate her. Given the timing sensitivity, the proceedings moved quickly, and today the federal court granted their motion for a temporary restraining order. It concluded that she re-submitted her paperwork in a timely fashion (within three days of the Supreme Court's conclusion that she was disqualified), which cured the defective nomination papers. A PDF of the memorandum is available at Scribd.

It might be nearing the end of this saga, but it highlights a concern I raise in my forthcoming article, Scrutinizing Federal Electoral Qualifications. Put briefly, when non-voters and non-legislatures involve themselves in evaluating the qualifications of candidates for office--in this case, the board of elections and the territorial judiciary--unnecessary and unforeseen consequences arise. Reserving the matter of legislative qualifications to voters and the legislature itself helps avoid these problems, minimizes litigation, maximizes electoral opportunities for voters, and ensures a robust separation of powers.

Meet the art teacher who may keep Chad Taylor's name on the Kansas ballot

Deena Horst was elected to the Kansas House of Representatives in 1994. She's primarily an art teacher by trade, residing in Salina, Kansas, where she's worked since 1968. She served in the House until 2010, and she's recently served as a member of the board of education.

In 1997, the Kansas legislature considered Senate Bill 145, which dealt with mundane election law matters. But on March 27, 1997, Ms. Horst made the following motion, which was adopted:

Committee report to SB 145 be adopted, also, on motion of Rep. Horst be amended on page 14, by striking all in lines 41, 42 and 43;
On page 15, by striking all in lines 1 through 22 and inserting:
"Sec. 10. K.S.A. 25-306b is hereby amended to read as follows: 25-306b.
(a) Except as provided by this section, no person who has been nominated by any means for any national, state, county or township office may cause such person's name to be withdrawn from nomination after the day of the primary election.
(b) Any person who has been nominated by any means whatsoever for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person's name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds."

 

The final bill contains this language, and it's the one that's caused some dispute recently. Chad Taylor wants to withdraw from the race for United States Senate. He wrote a letter to Secretary of State Kris Kobach asking to withdraw, pursuant to Kansas Statute 25-306b(b). But he did not indicate that he was "incapable of fulfilling the duties of office if elected." The time for meeting this deadline passed, and the Mr. Kobach informed Mr. Taylor that he had failed to make a proper showing under the statute. Mr. Taylor sued (PDF).

Rick Hasen wonders whether the "Democracy Canon," a method of statutory interpretation that construes ambiguous statutes in favor of... well, in this case, in favor of the candidate's preference, would apply. Theoretically, doing so gives voters the "best" choice--the candidate who wants to withdraw and does not want to serve is able to get off the ballot, which maximizes the rights of the voter.

But one must overcome the hurdle as to whether Mr. Taylor is "incapable" of serving--that is, whether it's ambiguous that Mr. Taylor's sudden desire no longer to run for Senate means he is "incapable." He makes this point in his filing before the Kansas court, but there's good reason to think "incapable" means just that--not capable, not simply unwilling. (Further, I've written elsewhere that the Democracy Canon perhaps should carry less weight when construing statutes regarding candidate eligibility rather than whether to count a voter's cast ballot.)

And it's Ms. Horst's language, which struck "whatsoever" and added an ostensibly narrower provision, that may end up blocking Mr. Taylor's attempted withdrawal.

I emailed Ms. Horst but received no reply. Regardless, I think it would be of great interest to see if there's more to this story for this statute--a small amendment in 1997, uncontroversial at the time, that's now causing a lot of problems in a Kansas Senate race.

Cuomo outspent Teachout by about 4500% in New York gubernatorial primary

New York includes fairly detailed expenditure disclosure requirements before an election, including a report as late as 11 days before a primary election. I looked at the direct expenditures by Andrew Cuomo since July 2013 and by challenger Zephyr Teachout. Schedule F lists expenditures for each, and Schedule L includes expenditure refunds.

By my calculations, Cuomo spent around $10,963,626.35, compared to Teachout's $243,418.51. That's good for a 45:1 ratio.

There are several caveats. First, it does not include outside expenditures by other groups or by the Democratic Party, a point of contention in this election. Second, it does not include expenditures that occurred in the last 11 days or that will be paid after the election. Third, it is expenditures, not contributions--the candidates each collected more than these amounts. And fourth, Cuomo knew he was running for governor long ago and had a longer lead in spending for the re-election campaign, which probably distorts his spending significantly. Nevertheless, he spent more than $3 million in the last couple of months alone.

His performance puts him in the 10th percentile of votes received among gubernatorial candidates seeking re-election--suggesting that money can't buy everything.

Ray Bradbury's thoughts on the new Apple Watch

Ray Bradbury has long been one of my favorite writers. Although he wrote "The Murderer" in 1953 and died in 2012, Ray Bradbury offered this vision of the future--which applies as much to the new release of the Apple Watch as it does to most contemporary technology, but particularly given the ubiquity of two-way "wrist radios," as he describes them.

"The Murderer" is the story of a man tired of technology--miniaturized, pocket-sized, constantly keeping man "in touch" with fellow man--that chirps incessantly at him. He takes matters into his own hands:

"Then I got the idea of the portable diathermy machine. I rented one, took it on the bus going home that night. There sat all the tired commuters with their wrist radios, talking to their wives saying, 'Now I'm at Forty-Third, now I'm at Forty-fourth, here I am at Forty-ninth, now turning at Sixty-first.' One husband cursing, 'Well, get out of that bar, damn it, and get home and get dinner started, I'm at Seventieth!' And the transit-system radio playing 'Tales from the Vienna Woods,' a canary singing words about a first-rate wheat cereal. Then--I switched on my diathermy! Static! Interference! All wives cut off from husbands grousing about a hard day at the office. All husbands cut off from wives who had just seen their children break a window! The 'Vienna Woods' chopped down, the canary mangled. Silence! A terrible, unexpected silence. The bus inhabitants faced with having to converse with each other. Panic! Sheer, animal panic!"

"The police seized you?"

"The bus had to stop. After all, the music was being scrambled, husbands and wives were out of touch with reality. Pandemonium, riot, and chaos!"

The inset image, featuring the gleeful murderer preparing to use his machine on all the chattering machines around him, is from the 1990 television adaptation in an episode of The Ray Bradbury Theater.

Louisiana judge dismisses Landrieu case on (mostly) right basis

A Louisiana judge has dismissed a claim that Senator Mary Landrieu was not an "inhabitant" of Louisiana and therefore ineligible to appear on the ballot. I recently published an editorial on the subject in the New Orleans Times-Picayune on this subject.

The judge got the first point right, which I noted in the editorial (and in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications). That is, we don't know if Ms. Landrieu is an "inhabitant" until election day, because the Constitution only requires a candidate be an inhabitant "when elected."

But the judge went on, according to the New York Times, "The court would only welcome a challenge, he said, if and when Ms. Landrieu was re-elected on Nov. 4."

That, as I argue, is not the right result. At that point, the matter would be left to Congress. Granted, the case would not longer be premature, which was the basis for this court's original finding. But if a case is filed after (and if) she's re-elected, the case should also be dismissed.

The Washington Post made a scary, misleading chart about McCutcheon

Campaign finance can be scary. Charts can communicate information in an easy-to-digest format.

So the Washington Post did a chart about campaign finance after McCutcheon v FEC (PDF), which found that federal biennial aggregate political contribution limits failed exacting scrutiny under the First Amendment and improperly abridged the freedom of speech.

The chart looks scary. (It's here.) According to OpenSecrets, 310 contributors (for contributions disclosed as of June 30, 2014) had exceeded the limit, which was previously at $123,000. It explains that an extra $11.6 million has been poured into elections this cycle, contributions that otherwise would have been prohibited prior to McCutcheon.

But the chart is misleading. Here's why.

First, it's important to note that the chart only includes data for these 310 contributors. That means there are thousands of other contributors left out who've been extremely active this cycle.

Second, it's only measuring those 310 contributors who exceeded the aggregate contribution limits. That, of course, is part of the point--it's meant to show the impact of McCutcheon.

But what's the articulated peril of McCutcheon? On the one hand, it's the concern that a few individuals are now capturing the political process with more money than they otherwise would have been able to contribute. That's limited in terms of influence--they can give no more to any individual candidate, but they can give the statutory maximum (per candidate) to every candidate.

But on the other hand, the concern is that these donors will have an outsized influence in the public debate--that their contributions, above and beyond the aggregate contribution limits, will have a corrosive effect on our public discourse. Political parties will be unusually beholden to these donors--even though the donors are capped per candidate, repeated donations to many candidates of a single party may have a more indirect corrupting effect.

So a better chart might be to look at these post-McCutcheon contributions, and compare them to all other contributions within the McCutcheon caps. The chart below uses the post-McCutcheon data from the Washington Post story, and uses the year-to-date contributions from others who comply with the pre-McCutcheon aggregate caps. It includes data from recent midterm elections, too.