ELECTIONS AND CAMPAIGN FINANCE Kansas and Federal Legal Developments, 2014-15 Mark P. Johnson Kansas City May 29, 2015 2 Developments in 2014-15 Highlights of Kansas and Federal changes and updates Election Law Campaign Finance 1
May 29, 2015 3 Kansas Developments Legislative Action in 2014 and 2015 Sessions Subjects Changing party affiliation Candidate withdrawal after primary Moving local election dates Enforcement of voter fraud laws May 29, 2015 4 2014: limiting changes in party affiliation Kansas has closed primaries Only persons affiliated with a party may vote in that party's primary Deadlines Filing as candidate for party primary: June 1 Primary date: first Tuesday in August Secretary of State certifies primary election results: no later than September 1 Legislative change in period for change of party affiliation Before 7/1/14: switching allowed up to two weeks before primary After 7/1/14: no switching between June 1 and date on which Secretary of State certifies primary results 2
May 29, 2015 5 Why the change? To deter "crossing over" in the primary Republicans: to foster integrity of primary results Democrats: to minimize voter choice As Kansas has closed primaries, only party affiliates may vote in party primaries Prohibiting changes in party affiliation between the primary filing deadline keeps Democrats from switching parties after candidates have filed for party primary and voting for moderate candidates in the Republican primary May 29, 2015 6 HB 2104 Passed by Legislature May, 2015 Signed by Governor Changes: 1. narrows reasons that a primary-nominated candidate may use to withdraw before the general election and mandates that the candidate's party name a replacement (personal or family medical reasons or non-residency in Kansas) 2. dead candidates must be removed from ballot (to avoid results like the election of Mel Carnahan in Missouri) 3. party must fill vacancy upon candidate withdrawal or death 4. changes dates for local elections from spring of odd-numbered years to fall of odd-numbered years 5. elimination of the Kansas presidential primary 3
May 29, 2015 7 SB 34 Passed by Legislature, May, 2015 Signed by Governor Highlights: Creates a new crime: "voting more than once"; includes attempts to do so, or helping others to do so Increases advance voting fraud from misdemeanor to felony Expands "voting without being qualified" to include unregistered voters and non-u.s. citizens attempting to vote Grants Secretary of State power to enforce voter fraud laws Power is concurrent with Attorney General and county/district attorney Only one may initiate a prosecution May 29, 2015 8 Federal Developments Redistricting Voting Rights Act Voter ID Laws Campaign Finance 4
May 29, 2015 9 Redistricting States perform redistricting every 10 years, shortly after completion of the decennial Census The ultimate political activity, as it can substantially determine control of state legislatures and the U.S. House of Representatives In most states, including Kansas, the state legislature is responsible for redistricting Unless the legislature cannot agree on lines, as occurred in 2012, and the federal courts must do the job In several states, non-partisan or bi-partisan commissions have been created to remove partisanship and politics from redistricting Are such commissions constitutional? That question is before the Supreme Court now in a case involving Arizona's commission May 29, 2015 10 Voting Rights Act Shelby County v. Holder Section 5 preclearance requirement for certain states and counties Supreme Court declared unconstitutional the formula for determining which states are subject to the preclearance obligation Effectively ended preclearance until Congress determines a new formula Unlikely to happen any time in the foreseeable future 5
May 29, 2015 11 States and Areas Requiring Preclearance Pre-Shelby County May 29, 2015 12 Voter ID Many states have adopted such laws since Crawford v. Marion County (U.S. 2008) Including Kansas Latest case: Supreme Court's denial of cert. in Frank v. Walker Wisconsin voter ID law Cert. denied March, 2015 What s interesting about Frank v. Walker? 6
May 29, 2015 13 Judge Richard Posner's Dissent Dissent from denial of rehearing en banc by 7th Circuit October, 2014; 5-5 vote; as panel had upheld the statute, a majority was necessary for rehearing of challenge to the statute Posner had written 7th Circuit opinion that Supreme Court had affirmed in Crawford County May 29, 2015 14 Quotes from Posner's dissent "Some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the 'True the Vote' movement transport foreigners and reservation Indians to polling places." "As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it's a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?" "There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens." 7
May 29, 2015 15 Campaign Finance McCutcheon v. FEC (U.S. April 2014) Following other Supreme Court cases that found limits on certain campaign contributions in violation of First Amendment Declared aggregate cap on contributions to federal candidates unconstitutional, allowing donors to make contributions to an unlimited number of federal office candidates -- although the amount of the contributions to individual candidates is still subject to cap of $2,700 per election (primary, general, and runoff are separate elections) May 1, 2015 16 McCutcheon v. FEC Maximum pre-mccutcheon: $46,200 to candidates and $70,800 to federal PACs and party committees McCutcheon eliminated the $46,200 cap on contributions to candidates Rationale for First Amendment violation: the anticorruption policy justifying caps on contributions to individual candidates does not extend to limits on total amount contributed to all candidates and committees Impact: how many contributed more than the previous cap in the 2014 election? Several hundred 8
May 1, 2015 17 Congressional Legislation on contributions to committees Supported by both parties slipped into the funding legislation at the end of 2014; written by lawyers for both parties Changed $70,800 limit on contributions to PACs and party committees Purpose: to allow parties to raise more money for party activities, including buildings, party conventions, and legal fees Impact: further reliance on large contributors May 1, 2015 18 Table of Contribution Limits 9
May 1, 2015 19 New Limits (source -- Congressional Research Service) Thank you Dentons US LLP 4520 Main Street Suite 1100 Kansas City, MO 64111-7700 United States 2015 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices. 10