Election Law news of note, week ending January 11, 2019

In an effort to use Twitter less, I’ll try to start compiling news items I find of note (even if others may not find them of note!) regarding Election Law topics each week.

A new bill introduced in New York would prohibit state parties from using “Independent” or “Independence” in their names. The Independence Party sometimes cross-endorses candidates or runs its own candidates for office. But some lawmakers believe this term deceives voters. This is not a unique problem. In California, the obscure American Independence Party has garnered a significant number of registered voters affiliated with the party, likely because of the name. I’ve written about the concept of “Ballot Speech,” or the right of candidates and political parties to express themselves by means of the ballot to voters. I think political parties—especially an established 25-year-old group like the Independence Party—should receive more protection than they currently receive for reasons I lay out in the article. Regardless, the bill struck me as one of note.

The West Virginia House of Delegates has asked the Supreme Court to consider a Guarantee Clause claim arising out of the state’s impeachment proceedings. The House impeached all members of the West Virginia Supreme Court and sent the claims over to the Senate for trial. But “the acting court halted the impeachment process in West Virginia by concluding  that legislators had overstepped their constitutional authority. Acting justices concluded lawmakers had based impeachment on areas the state  Constitution set aside as the responsibility of the judicial branch.” It’s an interesting internal power struggle, and hardly the first time the West Virginia Supreme Court has been the topic of Supreme Court election-related litigation. I think the Court is unlikely to grant the petition, and even less likely to find a Guarantee Clause violation, but the brief was of interest to me.

Democrats took over majority control of the House of Representatives and introduced H.R. 1, a symbolic and sweeping 571-page bill regarding elections in the United States. I won’t spend much time on each piece of the bill because it has effectively no chance to become law. But two provisions struck me as notable. First, the bill basically leaves untouched Shelby County and related portions of the Voting Rights Act. It seems strange to me that, given that Shelby County has been one of the greatest critiques of the Supreme Court by left-leaning politicians in recent years, the only thing the act does is provide, “Congress is committed to  reversing the devastating impact of this decision.” Perhaps an updated Voting Rights Act merits a separate bill. But I found it notable that in 571 pages, Shelby County was almost nowhere to be found. It seemed that not all Democratic constituencies had a hand in crafting the bill.

Second, the bill includes a “Democracy Restoration” provision (Section 1402) that provides that the right to vote in federal elections shall not be abridged or denied on the basis of a criminal conviction, unless those individuals are “serving a felony sentence in a correctional institution or facility at the time of the election.” Setting aside the policy of this provision, I’ve long wondered what constitutional hook would authorize Congress to do so (although there are some plausible if unlikely bases). There’s no express constitutional hook in this bill, but a subsequent provision (Section 1407) was of interest: it prohibits a State from using federal funds “to construct or otherwise improve a prison, jail, or other place of incarceration” unless that State “has in effect a program under which each individual incarcerated in that person’s jurisdiction . . . is notified, upon release from such incarceration, of that individual’s rights under section 1402.” It seems to me that the Spending Clause is a rather difficult hook to expand the franchise. That said, technically, Section 1407 only requires states to “notif[y]” them, not actually enfranchise, so perhaps it isn’t the hook from the Spending Clause—instead, perhaps it’s one of the reason I’ve mused about earlier.