Subject: [EL] Alaska: Electionlawblog news and commentary 10/28/10
From: EDWARD FOLEY
Date: 10/28/2010, 10:01 AM
To: Rick Hasen
CC: Election Law <election-law@mailman.lls.edu>
Rick & List,
I agree that the latest developments in Alaska are interesting and potentially present the possibility of arguments between "strict compliance" and "substantial compliance" that we see in many disputes over ballot counting. As Rick says, one would need to know the details of Alaska law (statutes, precedents, etc.) before reaching any judgment about how a potential dispute here should be properly handled under state law.
I note one potential wrinkle here that did not exist in Minnesota 2008, Washington 2004, or Florida 2000. As I understand the relevant administrative rule that was the subject of the trial court order (since stayed by the state supreme court), it is similar to the kind of no electioneering rule within a certain distance of polling places sustained in Burson v. Freeman, 504 U.S. 191 (1992). In other words, it presumably applies to conduct of campaign activists, and not just poll workers. (Again, this is my read of the rule based on very limited familiarity with it, or analysis of it.) If so, it raises questions about appropriate remedies for violations of this kind of rule. Ordinarily, ballots are not invalidated, or elections nullified, because of unlawful campaign practices (whether financial or otherwise). In other words, if campaign activitists violated the rule in Burson v. Freeman, that conduct could be punished, but most jurisdictions would not invalidate ballots by voters at those precincts--just like most jurisdictions do not invalidate ballots if campaign ads aired in violation of disclosure and other campaign finance rules. This point is somewhat separate from the strict compliance/substantial compliance debate.
The complication here is that government officials have allegedly violated a rule that seems to apply to non-state actors as well. The voters themselves of course have not engaged in an wrongdoing if they cast ballot having received information from others that they should not have received. Should their ballots be disqualified, or the election nullified, because of violations committed by others? This situation, of course, differs from the failure of voters in Minnesota 2008, Washington 2004, and even Florida 2000 to do what was necessary on their part to cast ballots that were able to be counted.
As for how Due Process might apply, I haven't begun to think it through, but I note this one thought: the "change in rule" concept relevant to Due Process analysis can apply to two types of rules potentially at issue here: (1) the underlying substantive rule concerning the availability of information on write-in candidates at polling places; and (2) the procedural/remedial rules concerning the counting of ballots cast under circumstances involving a violation of the underlying substantive rule. It is conceptually possible that here the Alaska Election Division's new practice for just this election was a change with respect to (1), while a decision to count ballots notwithstanding the violation of the underlying substantive rule is not a change in law with respect to (2). I think Rick's notion of not adopting the Democracy Canon if it did not exist previously in state law is consistent with this point; doing so would be a change with respect to (2). But it seems worth keeping the two possible changes in law analytically distinct. Due Process is not necessarily violated if the state consistently maintains its procedural/remedial rule, even if there has been an improper change in the underlying substantive rule--or at least that Due Process question is worthy of exploration.
Ned Foley
----- Original Message ----- From: Rick Hasen <Rick.Hasen@lls.edu> Date: Thursday, October 28, 2010 12:32 pm Subject: [EL] Electionlawblog news and commentary 10/28/10 To: Election Law <election-law@mailman.lls.edu>
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October 28, 2010
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President Obama Mentions Lobbying Reform, the > Need for Redistricting Reform, During His "Daily Show" Interview
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Watch at about the 4:30 minute mark in Part 3 of the interview > (lobbying), then at the 6:30 minute mark (discussing filibuster, > redistricting): > >
> > > [click on 08:59 AM link below, which will take you to the blog, to > watch the clip] > > > >