If you’re reading this post on Wednesday, November 3 because the votes are in and you’re headed for a recount, stop. It’s too late. You may still win the recount, or you may lose, but either way you will not be in control of your electoral destiny. You were unprepared, so just hire a lawyer and hang on for a wild, blindfolded ride through a political haunted house of surprises, apparitions, tricks and dead ends.
Recounts are taking place with more frequency in the current closely-divided electorate, and we learn more with each successive recount. One thing we know for certain — one common denominator to all recounts — is that you must prepare before the Election for what may happen after it. Indeed, pre-election preparation is your only opportunity to get ready for post-election process. When the sun rises Wednesday morning and the post-election process begins, it is too big and moves too fast for you to catch up to it. This is especially true in congressional and statewide recounts.
Fortunately, there are seven key things you can do in the two weeks before an election to prepare for a recount, and to put your campaign in the best possible position to win. Gleaned from my experience litigating a statewide and a congressional district recount, and from consulting and observing numerous others, they are:
1. TWO WEEKS OUT: Recruit volunteers to represent you at the following events:
- Election Night: One volunteer per precinct to observe vote counting and tabulation. Don’t forget Central Absentee Precincts. Volunteers should bring handheld calculators, be in place by 6 p.m. and prepared to stay as long as necessary.
- Wednesday Morning: One volunteer per locality to observe the provisional vote proceeding and post-election canvass. For these events, you want your very brightest, sharpest, most professional volunteers — lawyers, accountants, businesspersons, etc. Be sure to recruit back-ups, as one or more of your chosen volunteers likely will have something happen that will prevent them from covering for you.
- End of First Week – Beginning of Second Week: One volunteer per city or county standing by to obtain copies of election records, as permitted by law, once the provisional vote and canvass proceedings are concluded.
2. TWO WEEKS OUT: Identify and retain a lawyer. Self-serving, I know, but it doesn’t have to be me. You have to get someone on board, however, who knows or has time to learn your state recount law — so he or she doesn’t spend the critical first 12-24 hours of post-election process feeling his or her way around the law and the procedures. Also, and this is CRITICAL: You want your lawyer to develop a set of instructions and reporting forms so that your volunteers in the field will know exactly what to do, what not to do, what information the lawyer needs them to collect, and where and how to find it.
3. ONE WEEK OUT: Contact the Local Electoral Board to identify the starting time and location of each locality’s provisional vote and canvass proceeding. Confirm the answers in writing and request notice of any changes.
4. ONE WEEK OUT: Make sure that your volunteers have the credentials and identification necessary to admit them to the vote count, provisional vote and canvass proceedings.
5. ONE WEEK OUT: Gather precinct-level returns from several relevant prior elections. These are for your lawyer’s use in analyzing returns from your election. (More on this below.)
6. ELECTION NIGHT: Your in-precinct volunteers should:
- Make sure that tapes/print-outs are pulled from all machines, and make sure that all paper ballots are counted. (Only exception: No provisional ballots are counted on Election Night, unless state law provides otherwise.) There is nothing worse than finding out Wednesday morning that a voting machine was forgotten, left on overnight, and has a couple dozen votes on it. Or that a box of paper ballots was left sitting on table.
- Observe the tabulation of the vote. Double-check the election officials’ tallies using handheld calculators, and watch for mathematical and other errors (including transposed digits (e.g., 597 –> 579), transposed vote totals (e.g., Candidate A’s votes are recorded for Candidate B and vice-versa), etc.). Politely point out errors, and make note of any that are not corrected.
- Make sure that all voting equipment, ballots and other election materials are secured prior to leaving for the night.
- Call in to campaign headquarters with a report.
In the meantime, as results are coming in, your lawyer should be scrutinizing precinct-by-precinct incident reports, if available, and comparing the Election Night precinct-level returns with those from past elections, to identify potential irregularities or anomalies.
7. WEDNESDAY MORNING: If there is no concession on Election Night, your provisional vote and canvass volunteers should AUTOMATICALLY do the following:
- Wake-up early and check their e-mail first thing in the morning for instructions and reporting forms from the campaign’s lawyers.
- Plan to dial in to a conference call to discuss legal and political strategy.
- Deploy to the site of the post-election proceedings.
If your campaign can implement those basic steps, you will be very well-positioned to be in control of the recount. The flip side is that if you have holes in your coverage, you’ll invariably end up missing information, scrambling to catch up, and starting the recount off in a reactive mode — costing you precious time and opportunities.
Copyright 2012 – Chris Ashby – All Rights Reserved.
Why the GOP Nominating Contest Is Not Over… Yet.
By: Chris Ashby and Katherine Maxwell*
A few weeks ago—between the “Santorum Sweep” on February 7 and Mitt Romney’s rebound with victories in Michigan and Arizona on February 28—it became impossible for a new candidate to jump into the GOP race for President and win the nomination outright.
Prior to the third week of February, it was still legally and mathematically possible for a new candidate to enter the race, run the table, and win a majority of delegates before the Republican National Convention in Tampa. That window, narrow as it was, is now closed.
But that doesn’t mean that a late entrant couldn’t emerge from Tampa with the nomination. That’s right. We’re telling you there’s a chance. And we’re even giving you the road map.
Cable news and the blogosphere have been buzzing about the possibility that no candidate will win a majority of delegates prior to the opening of the Convention on August 27. Out of such a situation, a “brokered convention” could emerge, in which influential party insiders coalesce around a candidate—perhaps one of the four existing candidates, but more likely someone who did not contest the nomination through the primaries and caucuses—and use their political power to deliver large blocks of delegate votes for the chosen candidate.
There is a different possibility, however—an “open convention.” In an open convention scenario, no one candidate would have a first ballot majority of delegates, most likely because a new candidate would have gotten into the race late, run strong, and denied the nomination to any of the other candidates. Such a candidate would arrive in Tampa with a head of steam. His or her momentum would sway most of the uncommitted delegates, blunt the power of party bosses who might attempt to steer the nomination to someone else, and prove to be a magnetic force to delegates as they became unbound or were released after the first and subsequent ballots. The open convention thus would not be brokered in back rooms, but rather would remain open and would be won on the floor.
The list of would-be candidates who could even think about attempting a maneuver of this degree of difficulty is obviously short—very short. But there are certainly two, and maybe as many as four or five, who could pull it off. To deny a first ballot majority of delegates to any other candidate, and force the GOP nomination fight to an open convention, here is what a late entering candidate would have to do:
1. Immediately get on the ballot Montana (deadline 3/12), Utah (3/15), California (3/23) and South Dakota (3/27). To get on the ballot in these four states requires little more than filing papers, and puts as many as 266 delegates up for grabs.
2. Take a shot at putting as many as 84 more delegates into play by getting on the ballot in two states which require petition drives: Nebraska (100 signatures per congressional district by 3/7) and New Jersey (1,000 signatures statewide by 4/2). (Oregon (28 delegates), which requires 5,000 signatures statewide or 1,000 per congressional district by March 6, is probably impossible.)
3. Contest the mid-March caucuses: Kansas (3/10), Hawaii (3/13) and Missouri (3/17), with up to 112 delegates between them. (Six more states will hold caucuses between now and Super Tuesday, but it likely is too late to contest them in any serious way.)
4. Plan to run as a write-in candidate in the District of Columbia (4/3), Wisconsin (4/3), Pennsylvania (4/24) and Rhode Island (4/24) primaries. There is plenty of time to wage effective write-in campaigns in those states, as well as later in West Virginia (5/8) and Oregon (5/15). There are 211 delegate votes available in those six contests. (Realistically, there is not enough time to mount a credible write-in effort before the Massachusetts primary (41 delegates) on Super Tuesday.)
Those four steps constitute a two-month, 14-state campaign for as many as 673 delegates. Of course, with 2,286 delegates to the Convention this year, and 1,144 needed to win a first ballot majority, 674 delegates would not necessarily be enough to deny the nomination to a candidate who breaks away from the pack on or after Super Tuesday, or simply remains standing as others fold.
What’s more, while a late entrant stands to win as many as 673 delegates, he or she would not win all 673 delegates. This is because a number of the 14 states will be awarding their delegates on something other than a winner-take-all basis—either proportional, winner-take-all by congressional district, or a hybrid method. Thus, a late-entering candidate could finish first in all 14 states, but garner less than 673 delegates, perhaps substantially less.
For this reason, in addition to campaigning in the 14 states identified above, a new candidate would have to do two more things. First, when the Convention is gaveled to order, delegations from Colorado (36 delegates), Illinois (69), Iowa (28), Maine (24), Montana (26), North Dakota (28), Pennsylvania (72), and Wyoming (29) all will be unbound. The Louisiana (25) and Minnesota (40) delegations may be unbound too. And for the first ballot, the Ohio (63) and Arizona (29) delegations are not legally bound, but rather are bound “morally” and by “best efforts,” respectively, making them ripe to be picked off by a momentum-fueled candidate. 84 more delegates—state party chairs, national committeemen and national committeewomen from 28 states—also will be unbound. Altogether, that’s 753 uncommitted delegates when the gavel drops.
Second, a late entrant could urge voters in North Carolina (55 delegates) to vote “no preference” in that state’s primary on May 8, and encourage Kentucky voters (45 delegates) to vote “uncommitted” on May 22. If successful in convincing voters in those two states that a no preference or uncommitted vote was effectively a vote for the late entering candidate, that candidate might be able to expand the universe of uncommitted delegates by as many as 100.
In the final analysis, between the 14-state campaign outlined above and the universe of uncommitted delegates as it could exist on Day One of the Convention, there are a total of 1,526 delegates that still could be won by a late entering candidate. We do not believe that any candidate could win them all—too many states are awarding delegates proportionally this year, ballot access deadlines are looming in a few states, and some percentage of uncommitted delegates may feel bound to vote for the winner of their state’s primary or caucus. If a late entrant could win half or more, however, it might just be enough to deny a first ballot nomination to one of the four existing candidates—especially if three or more of them stay in the race all the way to Tampa.+
Having sketched out what’s possible, a dose of reality is now in order. As noted above, we think there are two, and maybe as many as five, candidates who might be “big” enough to win the nomination in this manner. And with each passing day, it becomes more and more unlikely that any one of them could or will actually do it.
This year, however, is truly unlike any other—in more ways than one. Consider this: Candidate-specific Super PACs are a big part of the new political reality. For the past several presidential elections, the biggest barrier to entry has been the mounting cost of national politics. More than one plausible candidate has been deterred from making the race because she or he did not have the network, time and resources necessary to raise—in $2300 or $2500 increments—the many, many millions of dollars necessary to compete and win in a presidential election.
This year, though, the most expensive aspects of a national campaign—voter identification, mail, TV, and voter turnout—could be handled by a SuperPAC. Presently, there is plenty of political talent and money sitting on the sidelines that could manage and fund such an organization. By placing a trusted former aide at the helm, and securing a blessing of the sort that President Obama gave to Priorities USA just a few weeks ago, the SuperPAC would be well-positioned for immediate success. In the meantime, freed from the burden of raising multiple tens of millions of dollars in hard dollar increments, a late entering candidate could focus on getting on the ballot, developing a message, traveling the country, and delivering that message to voters in person, through earned media, and via the Internet and social media.
If all this seems like too long a shot, so too did the presidential campaign of a former Pennsylvania Senator who lost his last election by more than 25 points.
Even at this late stage, a majority of Republicans are telling pollsters that they are still not satisfied with the current field of candidates. Schizophrenic national polls and split decisions in the early primary states bear that sentiment out. Nothing about the state of the race or the candidates remaining in it provides any basis for believing this dynamic will change anytime soon. If GOP voters truly want another choice, there’s still a chance.
* First-year law student, University of Richmond School of Law.
+ The number of candidates remaining in the race at this relatively late stage, the volatile nature of the Republican primary electorate this year, and the number of states which will be awarding at least some delegates proportionally make it impossible to predict with certainty how many delegates it would take to prevent a first ballot victory. For instance, if two or more of the existing candidates drop out of the race, it will take more delegates to deny the nomination to the remaining candidate(s). If three or all of the existing candidates continue their campaigns, and continue to split delegates, it will take fewer delegates to deny someone a first ballot win.
Twelve Political Law Issues to Watch in 2012
It’s been nearly two years now since the Supreme Court’s Citizens United decision triggered an earthquake that cracked the foundations of our campaign finance system and altered the political landscape. The case roused a dormant Section 527 of the Internal Revenue Code, opened up new channels for soft money, and gave rise to the creation of “SuperPACs.”
Looking back, the 2010 elections looked nothing like the 2008 elections. And as we look ahead to the 2012 elections, we can see that the dust is still settling. In no particular order, here is a non-exhaustive list of twelve political law issues to watch as they unfold this year in the spotlights and shadows of the presidential election:
1. The Crumbling Regulatory Infrastructure. With its commissioners deadlocking along party lines on big questions of policy and enforcement, many fear the FEC as presently constituted appears to have reached the outer limits of its ability—if not its authority—to regulate politics. The Election Assistance Commission, set up in the wake of the disputed election of 2000, is now a commissionerless “zombie agency.” Our system of public financing for presidential campaigns appears to be dead. What will it take to reverse the deregulatory spiral?
2. The Role of the Supreme Court. The Supreme Court, and in particular its conservative majority, has been battered for its decisions in consequential election law cases like Bush v. Gore, Citizens United and McComish v. Bennett, but to what effect? Earlier this week, the Court summarily affirmed a lower court’s decision upholding the prohibition on political contributions by foreign nationals. It also heard oral arguments in a pair of Texas redistricting cases in which Section 5 of the Voting Rights Act was said to be at risk of falling, but commentators have suggested, based on the arguments, that Section 5 appears to be safe, at least for now. Has the Court gone as far as it wishes to go in deregulating politics, or perhaps been brushed back by the uproar over Citizens United? A number of other controversial political cases percolating in the lower courts may provide the ultimate answer—including Danielczyk, challenging the corporation contribution ban, Wagner v. FEC, challenging the ban on contributions by federal government contractors, and Shelby County v. Holder, in which the constitutionality of Section 5 will be more directly at issue.
4. Coordination. For decades, the linchpin of our campaign finance law was the ban on corporate contributions. Now that even Section 441b may be teetering, the FEC’s much maligned coordination regulations are emerging as the most important provisions in Title 11 of the Code of Federal Regulations. As candidates and outside groups continue searching for the outer boundaries of those regs, and reform groups search for opportunities to file complaints like this one, 11 C.F.R. §§ 109.20, 109.21 and 109.22 are going to get a workout this coming year.
5. The John Edwards Trial. Political lawyers from across the ideological spectrum seem to have concluded that United States v. Johnny Reid Edwards is a real stretch. (I disagree, but appear to be in a small minority.) Nevertheless, the case survived Edwards’ motions to dismiss and is presently scheduled for trial this Winter. Resolution of the ultimate question will be interesting enough—whether a federal candidate committed a crime by orchestrating or signing off on a plan to funnel a million dollars from wealthy campaign donors to his mistress—but there are other issues as well, including whether the judge will permit two former FEC commissioners to offer opinion testimony as expert witnesses—not on issues of fact, but on the ultimate legal issue in the case.
6. The Wisconsin Recall Election. Whether or not Mitt Romney runs the table and puts the GOP presidential primary away early, by Spring the center of the political universe likely will have shifted to Wisconsin, where Governor Scott Walker probably will be facing a recall election. Legal issues already have arisen, including a successful claim that the equal protection rights of voters who refused to sign recall petitions are violated by lax validation of the signatures that do appear on the petitions. We can’t know what other legal issues may arise in connection with the Wisconsin recall, but with the amount of attention, money and political talent that probably will be pouring into the Badger State this Spring, we can be certain that legal issues will arise—and that when they do, they will be interesting, consequential and fiercely contested.
7. GOP Presidential Primaries in NH, SC, FL, AZ & MI. The Republican National Committee has stripped New Hampshire, South Carolina, Florida, Arizona and Michigan of half of their delegates for failing to abide by the RNC’s presidential primary calendar—the second consecutive cycle in which this type of action has been taken. Perhaps someone will put the GOP nomination away early and arrive in Tampa with a first ballot majority, in which case this probably won’t become a major issue. But what if no one locks up the nomination early, and two or more candidates find themselves locked in a state-by-state, delegate-by-delegate slog—as was the case for the Democrats in 2008? All of the sudden those extra delegates would become incredibly important, and you can bet lawyers on all sides would be looking for a way out from under this decision from 2008.
8. Americans Elect. As the American electorate’s approval of the incumbents and institutions of our government plunges to generational if not historic lows, Americans Elect is planning to hold an open, online nominating convention that will result in a bipartisan ticket it hopes will be on the ballot in all 50 states. But already the group has been the subject of controversy surrounding its tax status (501(c)(4)), its donors (they’re not disclosed), as well as a veto the organization will hold over the ticket that ultimately emerges from the nominating process.
9. Redistricting Battles. Redistricting always spawns litigation, and this year is no exception, with over 100 redistricting cases now pending in the courts. But some of this year’s cases will go beyond usual issues like contiguity, compactness and communities of interest. Virginia is facing a lawsuit alleging that the General Assembly forfeited its chance to draw new congressional districts because it did not do so in Calendar Year 2011, as required by the state constitution. At least four other states, too, have not been able to pass one or more maps, giving rise to the possibility of judge-drawn maps in those states. The 11th Circuit is considering the constitutionality of a “Fair Districts Amendment” to Florida’s state constitution, which opponents allege violates the Elections Clause of the U.S. Constitution by placing the responsibility for drawing new lines in a commission comprised of unelected citizens. It’s possible that similar laws in a handful of other states could fall too if the Florida law is struck down.
10. Outside Money: You Can’t Stop It; You Can Only Hope to Contain It. Mitt Romney’s call to abolish them notwithstanding, SuperPACs are here to stay, at least for the foreseeable future. So are corporate contributions to (c)(4)s, (c)(5)s and (c)(6)s. So expect reform advocates to attempt to hamstring these groups with new disclosure requirements—aimed at the organizations and their potential donors. Earlier this year, the FEC deadlocked on a request by Maryland Rep. Chris Van Hollen to initiate a new rulemaking to change the disclosure requirements for independent expenditures, but a federal court yesterday heard arguments in a related lawsuit Van Hollen filed concerning electioneering communications. Also, calls for more voluntary disclosure of corporate political spending and shareholder approval of certain political contributions and expenditures are continuing. And then, of course, are the forces pulling the other way, including the newly-formed “SuperPAC for Hire,” as well as Dan Backer of DB Capitol Strategies, who wants to give every PAC the chance to be Super.
11. Tax Status Complaints. Reform groups have filed numerous IRS complaints against politically-active 501(c)(4) organizations, all generally alleging that the groups violated the tax law’s “primary purpose” requirement by engaging in excessive election-related expenditures. Will the IRS move this year against any of these groups? Still other complaints allege that the FEC should be required to regulate certain politically-active (c)(4)s as federal political committees. Would the FEC reach that far across the U.S. Code? Action along these lines by either agency would be a very significant development in this area of the law.
12. Just How Super Will the Colbert SuperPAC Be? Comedian Stephen Colbert’s independent expenditure only committee, Americans for a Better Tomorrow, Tomorrow, has been satirizing SuperPACs for months now, but it has yet to file an FEC report of its own. When it does file later this month, just how super will it be—meaning how many corporate contributions, and individual contributions in excess of $5,000, will it report? Will it continue to be an effective exercise in satire if it does not raise significant soft money contributions? And will it actually attempt to influence a federal election by making a communication that constitutes an independent expenditure?
Why It’s Time to Change Virginia’s Unreasonable Ballot Access Law
Today, Thursday, December 22, 2011, is the ballot access deadline for the 2012 Virginia Republican presidential primary. It also marks the most significant organizational challenge for the presidential campaigns since the Ames Straw Poll on August 13—a labor-intensive task so expensive and time-consuming that at least one and possibly more campaigns will not even attempt it this year. And, the very real possibility exists that one or more candidates who made a run at it will come up short and be kept off the Virginia primary ballot as a result.
Virginia’s statutory ballot access requirement is, quite simply, one of if not the most daunting in the country: A minimum of 10,000 petition signatures collected statewide, including at least 400 from each of its 11 congressional districts. That’s hard enough. But then there are the additional restrictions: The petition circulators must be registered or eligible to vote in Virginia. The signatures must be gathered using the State Board of Elections’ official form, a two-page document which must be reproduced as double-sided. (Single-sided stapled forms are not accepted.) Signatures must be collected on forms that are specific to each city, county and congressional district. Only “qualified” voters may sign a petition. And every single petition form must be sworn and notarized.
Want a sense of how next-to-impossible this is? I know top-flight Virginia political consultants who turned down lucrative petition project contracts from presidential campaigns because they did not think it could be done.
And then there’s the Republican Party of Virginia, which is tasked by law with the responsibility of certifying which candidates have qualified for primary ballot access. RPV has effectively raised the statutory requirement of 10,000/400 by a factor of 50% this year by offering this safe harbor: The Party first will conduct a facial review of all petitions, and candidates who submit at least 15,000 signatures and 600 from each congressional district will be presumed to have met the statutory 10,000/400 requirement. Candidates who submit 14,999 or fewer, however, will undergo signature-by-signature scrutiny of his or her petitions—something no statewide candidate in recent memory ever has had to endure.*
For many years, the Virginia GOP generally selected its nominees in conventions. But the Morse v. Republican Party of Virginia litigation, which challenged RPV’s mandatory convention registration fees as poll taxes, caused the Party temporarily to abandon conventions in favor of primaries.
The first statewide petition drive post Morse was in the 1996 Republican U.S. Senate primary. Then came the 1997 primaries for Governor, Lieutenant Governor and Attorney General, and in 2000, the Republican presidential and U.S. Senate primaries.
Each successive petition drive has gotten harder and harder as volunteers have grown more and more tired of the arduous, tedious work it takes to gather thousands upon thousands of signatures in ever more frequent petition drives. The drives have gotten more expensive, too, as campaigns have resorted to paying volunteers to incent their efforts. What should be a test of a campaign’s organization and grassroots has become a drain on them—exhausting volunteers and siphoning away money better spent contacting voters, delivering messages, identifying supporters and driving turnout, all important objectives that petition drives have proven worthless at advancing.
In 2008, two presidential candidates very nearly failed to meet the minimum requirement of 400 signatures from the Third Congressional District and almost missed the ballot as a result. Which brings us to this year, when it is probable that at least one and possibly more of the major GOP candidates will fail to qualify for the Virginia ballot.
This is especially unfortunate because this year, for the first time in decades, the GOP nomination likely will not be all-but decided before Virginia’s primary, and thus Virginia’s primary will truly matter. But due to Virginia’s unreasonable ballot access requirements, all the surviving candidates may not be on the Virginia ballot—which means those candidates wouldn’t campaign here, and Virginia’s voters would have fewer choices. Even as Virginia has moved up in the primary calendar, it risks marginalizing itself in the presidential selection process as its petition drives become harder and more expensive, and as more candidates fail to succeed or even to attempt them.
It doesn’t have to be this way. A few years ago, the Virginia Democrats circulated one petition on behalf of all primary candidates, but the Republican Party of Virginia has not seen fit to follow that sensible step.
Many other states require merely the filing of a few forms and payment of a filing fee—and in the case of South Carolina, a substantial one at that. No doubt Virginia’s political parties—notoriously cash-hungry due to our anything-goes system of campaign finance in which individuals and corporations can contribute unlimited sums directly to candidates—could use such a financial shot in the arm every four years.
And for grassroots-fueled candidacies, or just for those who enjoy the very American act of circulating a petition, Virginia could maintain petitions as an alternative requirement, or perhaps as part of a hybrid system requiring payment of a filing fee and submission of a substantially fewer number of signatures. (In fact, Virginia might have to retain a petition drive option in order to obtain Section 5 preclearance of a change to a filing fee-based system.)
Regardless of what happens tomorrow, when Republican Party of Virginia officials begin validating petitions and signatures, it’s time to do away with the 10,000/400 requirement and move to a more sensible ballot access system. Campaigns have better things to do with their staff and financial resources. Volunteers’ time and efforts could be better spent. And when an unresolved presidential primary rolls into Virginia, voters should be able to choose from the full slate of remaining major candidates—not just those who were able to collect 10,000 petition signatures, including 400 from each congressional district.
* For all candidates who have met the statutory requirement, I think the Party’s plan to scrutinize some candidates’ signatures and not others, based upon the arbitrary standard of whether the candidates submitted a full 50% more than the statutory requirement, violates the Equal Protection Clause under Bush v. Gore. It seems to me that all candidates who facially meet the statutory requirement should have their petitions and signatures adjudged according to the same standard. More on that here if it becomes an issue.