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 court 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.

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.

View fullsize

Governor pardons Virgin Islands rep to avoid qualifications concerns

Earlier I blogged about a decision by the Virgin Islands Supreme Court upholding the removal of a candidate from the ballot because the candidate had previously committed a crime involving moral turpitude. I explained that I think this decision is profoundly incorrect--it is left to the voters to decide whether a candidate meets the qualifications enumerated, and then left to the legislature to decide whether a candidate meets the qualifications. The legislature had already seated Senator Alicia "Chucky" Hansen twice before. But this time, an executive official attempted to remove her from the ballot, and the judiciary approved the removal--profound meddling with the legislature's right to evaluate the qualifications of its own members.

Yesterday, the governor of the Virgin Islands pardoned Ms. Hansen. This effectively moots the concerns created by the elections officer and the Virgin Islands Supreme Court. Which is, in some ways, unfortunate--the governor has to spend political capital for the swift resolution of a bad judicial opinion, and the judicial opinion remains on the books. But it also shows that even judicial seizure of power can be trumped by other means of the law--and, in this case, the executive acting to preserve the role of the voters in selecting their representatives and the role of the legislature in evaluating the qualifications of its own members.

Virgin Islands Supreme Court blocks "unqualified" candidate from ballot

Alicia "Chucky" Hansen didn't file income tax returns for a few elections. She was convicted of a few misdemeanors. She ran for legislative office in the Virgin Islands, won, and was seated. She was re-elected.

But when she tried to run again, the chair of the board of elections filed a petition to block her from obtaining ballot access. He claimed that her tax convictions were "crimes involving moral turpitude," which rendered her ineligible to run for office.

The Supreme Court of the Virgin Islands agreed and blocked Ms. Hansen from obtaining ballot access in Bryan v. Fawkes. (PDF)

The Revised Organic Act at issue provides, "The legislature shall be the sole judge of the elections and qualifications of its members." In one way, this is even more robust a power than that given the United States Congress; here, it uses the word "sole," a word the Court in Nixon v. United States (1993) found to be significant. There, in the context of impeachment, the House had the sole responsibility of impeachment, and the Senate had the sole responsibility of removal; the Court found that these textual commitments to other branches precluded judicial review.

Not so here. The Supreme Court of the Virgin Islands felt comfortable not only allowing the executive election official to adjudicate the qualifications of candidates for ballot access, but also in allowing itself to review that decision-making process, too.

I think this is flawed, and the better argument lies with the one I make in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications.

I'll briefly mention some of the more curious arguments:

The Court notes that the 30th (and present) Legislature had no ability to adjudicate the qualifications of candidates for the 31st (next year's) Legislature. That isn't much of an answer at all: it might be the case that no one adjudicates the qualifications of candidates for the 31st Legislature until the voters choose them and they seek to be seated.

The Court explains that the Revised Organic Act gives election officials the power "of directing the administration" of elections, which means that "the power to determine whether a candidate meets the minimum qualifications for office so as to appear on a general election ballot is clearly not exclusive to the legislature." I suppose one could conflate the former power with the latter, but that's far from "clearly" established.

The Court notes that the legislature's power to evaluate the qualifications and returns of its own members is different from the power to review the qualifications of candidates. First, it would pretty much eviscerate the power of the legislature, because, presumably, all candidates on the ballot would be qualified and there wouldn't be anything left to review. Second, and relatedly, it gives the judiciary and the executive branches a power to review these candidates in advance, effectively usurping that power from the legislature.

It tracks a couple of state supreme court decisions that were deeply worried that the ballot might include some unqualified candidates--15 year olds or non-citizens or what not--and leave it to the voters and the legislature to review qualifications.

To insert a bit of snark: heaven forbid that a body other than the judiciary have the last word in interpreting what the law says!

There is, of course, recourse in these cases--simply not judicial recourse.

The Supreme Court in Roudebush v. Hartke (1972) affirmed that such a cramped understanding of the legislature's power cannot hold. There, a dispute arose during a recount in a Senate election. The parties disputed whether the state's election process could even include a recount, and the Court concluded it could. It emphasized, however, that it could only do so as long as it did not thwart Congress's power to review the qualifications, elections, and returns of its members. If Congress had the ability to independently review the recount process after it was complete, then its power was not thwarted.

I argue in my forthcoming article that excluding would-be candidates on the basis of qualifications effectively thwarts the legislature's power. After all, there's nothing left to review, because the candidate cannot present herself for the legislature for review--she cannot win the election because she cannot get on the ballot.

Even more dangerous to the legislature's power are the facts of this case. Twice already, Ms. Hansen has presented herself before the voters of the Virgin Islands and to the legislature. Twice, she has been elected and seated. A "crime involving moral turpitude" has a meaning, and perhaps even a meaning that the judiciary would like to reach in other cases similar to this one. (Ultimately, it did so.) But how the legislature interprets that crime is another matter. And as it has concluded that her misdemeanor tax convictions do not disqualify her, then its judgment should be respected.

There is much more to discuss throughout the opinion, but this post is long-winded enough. I highlight these facts to note the judiciary's approval of executive entanglement in the evaluation of the qualifications of prospective members of the legislature--executive interpretations that run contrary to the legislature's own conclusions. And that is significant, indeed.

Paul Clement enters pending Arizona redistricting litigation

I've previously blogged about what the Constitution means when it uses the word "legislature" in the context of the Times, Places and Manner Clause, and the Arizona state legislature's challenge to the ballot proposition that shifted the authority to draw congressional districts from the legislature to an independent commission. A three-judge panel rejected the Arizona state legislature's argument by a 2-1 vote.

Yesterday, the Arizona state legislature filed its reply brief (available via Scribd). Of note: former United States Solicitor General Paul Clement of Bancroft PLLC is now the counsel of record. Bringing in someone of his caliber suggests an increase in the stakes--and perhaps even an increase in the likelihood the Supreme Court will consider the merits of the case.

Justin Levitt's All About Redistricting, Ballot Access News, and SCOTUSBlog all have some coverage of the pending Arizona State Legislature v. Arizona Independent Redistricting Commission litigation. The Supreme Court will likely decide in late September whether to hear the case.