Guest Post: Maine congressional election an important test of ranked-choice voting

Steven Mulroy, University of Memphis

In Maine’s 2nd Congressional District, an innovative vote-counting system has had its trial run in a federal election.

No candidate received a majority of the overall vote in the 2018 midterms. Rather, the vote was split between four candidates – a Democrat, a Republican and two left-leaning independent candidates who garnered 8 percent of the votes between them. As a result, Maine used the ranked-choice voting counting process to determine a majority winner.

As a University of Memphis law professor, I’ve studied and published on ranked-choice voting for years, and have a book on it coming out next month. Naturally, I find the inaugural use of ranked-choice voting in a federal election fascinating. I also believe it’s a significant step forward for election reform.

Under ranked-choice voting (more precisely, the variety of ranked-choice voting also known as “instant runoffs”) voters can rank their candidates in order of preference – first, second, third and so on. If no candidate gets a majority of first-place votes, the system eliminates the candidate with the fewest first-place votes. In Maine, that meant eliminating independent candidate Will Hoar, who got only 2.4 percent of the vote.

The system then redistributes the votes for that eliminated candidate among the remaining candidates based on the second choices indicated by voters. If a candidate now has a majority of votes, that candidate wins. If there’s still no majority winner, the system again eliminates the weakest candidate and transfers the votes as before, with the process continuing until there is a majority winner.

Ranked-choice voting is used in more than 10 U.S. cities. Six states use it for overseas ballots. Australia has used it for over 100 years. The Oscars use it, as does the Heisman Trophy.

Maine voters adopted ranked-choice voting by referendum in 2016. Court challenges and state legislative action delayed implementation, but voters reaffirmed their support in a second referendum in 2018.

Proponents cite a number of advantages of this system. It allows for a majority winner without the trouble, expense and historically low turnout of a runoff. By reducing campaign costs for the runoff, it levels the playing field for lesser-funded candidates, making elections more competitive. It also encourages civil campaigns. Candidates want to be the first choice of their own base, but the second choice of their opponents’ bases. Thus, they’re less willing to risk alienating those voters with attack ads.

Critics say ranked-choice voting is too confusing for voters, or too hard to administer. However, it has been successfully implemented in over 200 local elections in over a dozen U.S. cities over the past 20 years, without mass voter confusion.

Ranked-choice voting also solves the “vote-splitting” problem common to plurality, or “first past the post” systems, where a candidate can win with less than 50 percent as long as he gets more votes than other candidates. If too many candidates who reflect the majority’s view run, they will split that vote. That allows a candidate with 40 percent of the vote to win – even though 60 percent of the voters would say, “anybody but him.” Maine elected controversial Gov. Paul LePage with only 37 percent of the vote. During that election, liberal voters were split between a Democrat and a left-leaning third-party candidate.

A similar dynamic occurred in Maine during the midterms. Two left-leaning independent candidates, Tiffany Bond and Will Hoar, got 5.8 percent and 2.4 percent of the vote respectfully, enough to deny both the Democratic and Republican candidate a majority.

Democratic nominee Golden ultimately won under ranked-choice voting. Many liberals who voted for the independent candidates ranked him second. As a result, this was the first time a Maine incumbent lost in over 100 years - demonstrating the rank-choice voting proponents’ claim that the system makes elections more competitive.

Fearing precisely that dynamic, Republican Poliquin who lost under rank choice voting filed a lawsuit challenging the process. A judge rejected his request for a temporary injunction blocking the ranked-choice counting process, but the underlying legal challenge continues.

The lawsuit alleges that anything other than a plurality election for the U.S. House violates the Constitution and federal civil rights statutes. But nothing in the text of the Constitution requires a plurality-only election for the U.S. House. The cases cited in the complaint merely say states are allowed to permit plurality elections, not that they must require them. Indeed, the Elections Clause of the Constitution provides that each state can “prescribe” the “Manner of holding Elections for … Representatives.” That’s how other states can and do require congressional candidates to win with a majority, using separate runoff elections where necessary

Moreover, this lawsuit is probably filed too late. The proper time to raise these issues would have been before the election.

For these reasons, I think the legal challenge will fail, and we will see, for the first time in U.S. history, a congressional race decided using this innovative new system.

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

This article is republished from The Conversation under a Creative Commons license. Read the original article.

From the Archives: After the census: GMU political scientist Michael McDonald forecasts Virginia's 2011 redistricting

After the census: GMU political scientist Michael McDonald forecasts Virginia's 2011 redistricting
September 4, 2010 12:47 PM MST

The 2010 census was just the first stage in a process that will lead to the redesign of legislative districts all across the United States over the next two years. Districts for the U.S. House of Representatives, state legislatures, city councils, county boards of supervisors, and school boards will all be affected.

Michael P. McDonald

In Virginia, the redistricting process is accelerated because it is one of only four states that hold their state legislative elections in odd-numbered years.

George Mason University political scientist Michael P. McDonald is an expert on reapportionment and redistricting. He has served as a consultant on redistricting issues, sometimes “helping jurisdictions produce redistricting plans that are in conformance with federal and state criteria,” sometimes serving as an expert witness in lawsuits on behalf of either the plaintiff or the defendant, “defending or challenging whether or not a redistricting plan is legal.”

After McDonald spoke to local election officials from across the Commonwealth at the State Board of Elections’ annual Election Uniformity Workshop, McDonald answered questions from the Charlottesville Libertarian Examiner about what Virginia voters can look forward to in the coming months.

Historical First
For the first time in Virginia history, redistricting in 2011 will be done by a General Assembly in which the House of Delegates is controlled by Republicans and the state Senate is controlled by Democrats. After the 1990 census, both houses were controlled by Democrats, and after the 2000 census, both houses had Republican majorities.

“How it’s played out in other states,” McDonald explained, “is that one chamber will draw its districts, the other chamber will draw its districts, and then the two will do a logroll,” in which each chamber approves the other’s proposal. In effect, McDonald said, “you will have two different partisan gerrymanders, one for each chamber.”

Virginia differs slightly from other states, however.

“The wrinkle that we have in Virginia,” McDonald pointed out, “is that the governor can amend legislation.” As a result, “there’s a little bit of concern on the Democratic side” that “even if the House passes their version of the Senate plan” the governor might not “keep his hands off of it.”

There is some discussion, McDonald said, that “the governor may form a commission or a committee of some sort to help assist him in evaluating the redistricting plans that come out of the legislature.” Such a commission, he explained, “may play a mediating role there.”

Time Constraints
Given how fast the state legislative elections are approaching (in November 2011), there is some concern about whether the General Assembly can pass a redistricting plan in time to meet the needs of the electoral calendar.

“Plenty of other states have done it,” McDonald said. “We’ve done it in the past in Virginia.”

Can the process be completed in time?

“Presumptively, yes, the answer should be yes, that we can do it in time,” McDonald noted, also pointing out that “if it is not done in time,” federal courts will intervene.

“That’s one thing that the voters of Virginia can know to be true,” he said, “that the federal courts will step in if the state government can’t produce a redistricting plan.”

The courts, he added, “will basically draw their own map or they will accept a map that was not considered during the legislative process.”


Publisher's note: This article was originally published on Examiner.com on September 4, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: LP ballot-access expert Bill Redpath talks about petition gathering

Publisher's note: This article was originally published on Examiner.com on April 6, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

LP ballot-access expert Bill Redpath talks about petition gathering
April 6, 2012 1:06 PM MST

Bill Redpath has been a candidate for Virginia Governor (2001), the U.S. Senate (2008), and the U.S. House of Representatives (10th District, 2010). He is also national treasurer of the Libertarian Party and a veteran of more than two decades as a ballot-access coordinator and collector of petition signatures.

At a Northern Virginia fundraising event this week for Gary Johnson, a candidate for the Libertarian Party’s presidential nomination, the Charlottesville Libertarian Examiner caught up with Redpath to ask him questions about ballot-access laws, the challenge faced by third-party and independent candidates to put their names on the ballot, and his own experience as a petitioner.

To put the LP’s presidential ticket on the ballot in 2012, Redpath said, will take “a lot of petitioning,” ranging from about 1,500 signatures in Iowa that can be collected by volunteers to as many as “51,739 valid signatures on a new party petition” in Oklahoma, where the Libertarian effort fell short and the party has turned to litigation to challenge the state’s ballot-access requirements.

’50 states and D.C.’
Despite these challenges and setbacks, Redpath explained, “we’re still hopeful that we’ll have our presidential ticket on the ballot in all 50 states and D.C.,” although the “Libertarian National Committee is probably going to spend about a quarter of a million dollars on ballot access,” in addition to expenditures for that purpose by individual state parties and the presidential campaign.

Ballot access, said Redpath, “is a major undertaking.”

Virginia’s ballot-access laws came to national attention recently when only two candidates, Mitt Romney and Ron Paul, were able to qualify for the Republican presidential primary ballot. Redpath has some suggestions for fixing Virginia’s requirements.

Until about 1968, he explained, Virginia required only 1,000 valid signatures to get on the ballot for president and other statewide offices.

Virginia reforms
Redpath suggests that “it would be good to reduce the number of signatures to get on the ballot for a given office to one-tenth of one percent of the number of registered voters for that office.”

For statewide office in Virginia, in that case, he calculated, “we’re probably talking about 3,000 signatures to get on the ballot.”

Redpath considers one-tenth of one percent to be “a sufficiently high hurdle that people have to go out and work” to get their candidates on the ballot. It is, he added, “a hurdle that is fair” because it is “not overly taxing but at the same time it will be enough of a deterrent to keep completely frivolous candidates off the ballot.”

Worst and best
Asked to name the best and the worst states for ballot-access requirement, Redpath immediately responded that Colorado is among the easiest because “there is just paperwork that needs to be filed.”

Florida, he noted, “used to be one of the hardest, now it’s one of the easiest.”

Ballot access requirements, he continued, have “improved over the last 20 to 25 years.”

There are still “bad states,” however, and one of them is Wyoming.

While the Libertarian Party currently has ballot status in Wyoming “because we get, time and again, over two percent for U.S. House so we can remain on the ballot,” other third-party and independent candidates need to get 8,000 valid signatures to qualify for the ballot in Wyoming and, as Redpath pointed out, “that’s a lot of sigs in Wyoming!”

Another difficult state is Oklahoma, which Redpath identified as “about the worst. To get on the ballot as an independent presidential candidate takes about 45,000 signatures in Oklahoma.”

North Carolina is also difficult for presidential ballot access, but Redpath also pointed to states where “it’s tougher to get on the ballot for U.S. House or for non-statewide offices.”

He noted that in general elections in Georgia, that state has only “had one non-R, non-D candidate for U.S. House in several decades.”

That has also been the case in North Carolina, where it is “extremely difficult to get on the ballot for U.S. House as a third-party candidate or independent.”

Petitioning experience
Ironically, North Carolina proved to be the place where Redpath has had some of his most successful efforts at collecting signatures.

He estimates that, over the years, he has collected more than 10,000 signatures, but his personal best one-day effort was at the North Carolina State University precinct in Raleigh on election day in 1996.

“I hold the record for the most number of signatures gathered in a single day,” he explained.

“It was an extremely fortunate situation where they had a polling place that was too small for the horde of college students that descended on it,” he said, “and a theater line formed outside that didn’t go away for hours. The acceptance rate was 80 or 90 percent. I got 1,179 [signatures] in one day.”

Redpath said that the reactions he gets from members of the public when he is out petitioning are generally good.

“Overall,” he said, “people are pretty nice when it comes to petitioning. Some people actually thank me for being out there. I think people know how few people will actually go out and solicit signatures from strangers and [that not] very many people want to do that [so] they appreciate it when somebody is out there. Even some people who refuse to sign actually thank me for being there.”

He singled out Giant Foods for its civic-mindedness in allowing petitioners to stand in front of their stores to collect signatures (with advance permission). Giant customers, he said, “appreciate it.”

From the Archives: Think-tank head Jason Grumet reacts to Obama's mandatory voting idea

Publisher's note: This article was originally published on Examiner.com on March 19, 2015. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site was scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Think-tank head Jason Grumet reacts to Obama's mandatory voting idea

Speaking in Cleveland on March 18, President Barack Obama raised the idea that compulsory voting could improve the U.S. electoral system.

“In Australia, and some other countries,” the President pointed out, “there’s mandatory voting. It would be transformative if everybody voted... that may end up being a better strategy in the short term.”

The next day in Charlottesville, the president of the Bipartisan Policy Center, Jason Grumet, spoke about Washington's dysfunctional politics at the Virginia Festival of the Book. He was featured on a panel sponsored by local non-profit Charlottesville Tomorrow called “Bipartisanship and Everybody Loves Jefferson” along with Louisiana State University historian Andrew Burstein.

Aspirational, not practical
Grumet described his 2014 book, City of Rivals: Restoring the Glorious Mess of American Democracy, and, in a post-panel interview with the Charlottesville Libertarian Examiner, he reacted to the president's idea of making voting mandatory, under the threat of punishment, for American citizens.

“There's a constitutional issue,” he said.

Compulsory voting, he explained, is “more of an aspiration than a practical solution. Like everything, there are pros and cons.”

Grumet conceded that “it would be terrific to have greater participation in a participatory democracy” but he pointed to problems in the country identified by President Obama as a potential model.

In Australia, he said, experience has shown that “the downside is a lot of people are essentially forced to vote who have no desire to participate in the process, no information about the process, and so there's a question about whether you dilute the quality of the voter pool.”

There are good and bad levels of participation, he continued.

“Having 20 percent participate [or] having 100 percent participate probably also has some problems,” he said. On the other hand, “60 to 70 percent would be great.”

Gerrymandering 'doesn't matter'
During the interview and the panel discussion, Grumet also addressed a widely-held electoral concern – legislative redistricting.

“Gerrymandering is a concern,” he said. “It is undermining to the democracy to have politicians choosing the voters as opposed to the voters choosing the politicians.”

However, he added, “it just doesn't matter as much as a lot of people think. The high water mark for redistricting reform would be the tenor of the U.S. Senate. There are no districts in the Senate [yet] it is not exactly a venue of great collaboration.”

Nationwide, he explained, “we have essentially sorted ourselves so that no matter how you draw districts, we are still going to have a diminishing number of competitive” elections.

While Grumet continues to believe there should be efforts to create “bipartisan redistricting commissions and get away from some of these crazy, gerrymandered districts but,” he cautioned, “in and of itself [that] is not going to be the solution to the fractious nature of our democracy.”

Independent redistricting
He noted a case now being considered by the U.S. Supreme Court regarding the redistricting commission in Arizona, which was created by voter initiative to bypass the state legislature.

That case, he said, poses “an interesting question because the essence of it, as I understand it, is that the legislature was basically taken out of the redesign process.”

Arizona has “an independent commission and there's a question about whether, in fact, it is constitutional to have redistricting happen without legislative prerogative. That doesn't mean that you couldn't have redistricting commissions that have three Democrats and three Republicans. It wouldn't eliminate the capacity to seek better efforts when it comes to redrawing lines but it could limit a certain type of redistricting commission.”

As to the ultimate ruling in the Supreme Court case, Arizona State Legislature v. Arizona Independent Redistricting Commission, Grumet quipped, “If I could tell you the outcome of that case, I could also tell you the price of oil in a month.”

SUGGESTED LINKS

Georgetown philosophy professor Jason Brennan explores ethics of voting
Economist Adam Smith looks at the 'Bootleggers & Baptists' phenomenon
Charlottesville write-ins reveal voters’ allegiance, impishness
Libertarian writers Welch and Gillespie unveil the ‘Declaration of Independents’
Former Senator Rick Santorum says homosexuals deserve protection

Original URL: http://www.examiner.com/article/think-tank-head-jason-grumet-reacts-to-obama-s-mandatory-voting-idea

Fuzzy memories of elections past

An odd letter made its way into the Charlottesville Daily Progress today.

The letter, submitted by Albemarle County resident Hubert Hawkins, makes an argument about retaining Virginia's tradition of open primary elections, in which any voter, regardless of party affiliation, can participate in either the Democratic or Republican party's primaries for nominating candidates for the general election. (Virginia voters do not register by political party, so "party affiliation" is determined by the voter's own individual preference and observations of primary voting patterns and recorded financial contributions to candidates and party committees.)

Mr. Hawkins tries to undergird his point by reminiscing about the only time he crossed party lines to vote in a Republican primary:

Years ago when Oliver North opposed John Warner in the Republican primary, I was a Democrat who never sought to meddle in Republican elections. But I knew that my senator was going to be a Republican, no matter who won the party’s primary, because my party had no competitive candidate. So I voted in the Republican primary, fearful of what outcome might ensue from the victory of such a controversial character as North.

I have never regretted my vote, and I have always been grateful that Virginia law allows all voters to participate realistically in the future of the state and nation without restrictions on what party they may have belonged to.

The problem with that example? Oliver North never challenged John Warner for the Republican Party of Virginia's nomination for the U.S. Senate, in a primary or through any other method.

John Warner, Larry Sabato, and Mark Warner at UVA, June 2014

John Warner ran unopposed for the GOP nomination in 1990, and he had no Democratic opponent in the November election. Nancy Spannaus, a devotee of political cult leader Lyndon LaRouche, was the only other candidate on the ballot that year. Warner beat Spannaus by sweeping every county and city and earning 80.9 percent of the vote.  The absence of a Democratic general election candidate that year may be what Mr. Hawkins is trying to recall in his letter to the editor.

In 1994, Oliver North sought the Republican nomination for the U.S. Senate and winning it in a convention against former Reagan administration official James C. Miller III. There was no primary election that year, and John Warner was not on the ballot. North went on to lose the general election to incumbent Democrat Chuck Robb in a three-way race that also included independent J. Marshall Coleman. That election was the subject of a popular documentary film, A Perfect Candidate.

In 1996, Jim Miller challenged John Warner for the nomination in a primary election but Warner won and went on to face Democrat Mark Warner in the general election.

After serving one term as Virginia''s governor, Mark Warner eventually won John Warner's U.S. Senate seat in 2008, after John Warner decided to retire.  The two of them remain on friendly terms (as seen in this video from earlier this year) and, in fact, John Warner has endorsed Mark Warner's re-election bid this year.

Regardless of what one thinks about the merits of Mr. Hawkins' argument about open primaries, it's important that the person making that argument have his facts straight. For that matter, it is the responsibility of the newspaper's editors to ensure that such factual errors do not make their way into print.

Practical effects of the Supreme Court's voting rights ruling

(This article appeared originally on Virginia Politics on Demand on June 25, 2013.)

Coby Dillard has already summarized what the U.S. Supreme Court did, and did not, do in its ruling Tuesday morning in the case of Shelby County, Alabama v. Holder, Attorney General, in striking parts of the Voting Rights Act of 1965 (as reauthorized by Congress in 2006).

What I would like to explain is what practical effect this will have on voting in the Commonwealth of Virginia, one of the nine states covered under Section 5 of the Voting Rights Act, requiring pre-clearance by the U.S. Department of Justice for virtually all legal and regulatory changes in voting procedures and elections.

With a few exceptions, all counties and cities in Virginia must seek permission from the federal government before making any changes in the way they conduct elections. The most recent exception is Hanover County, which was "bailed out" of the pre-clearance requirement, as explained in a news release posted by the Department of Justice on Monday:

The Justice Department announced today that it has reached an agreement with Hanover County, Va., that will allow for the county, a covered jurisdiction under the special provisions of the Voting Rights Act, to bail out from coverage under these provisions. Bailout will exempt Hanover County, along with the town of Ashland, from the preclearance requirements of Section 5 of the Voting Rights Act. The agreement is in the form of a consent decree filed today in the U.S. District Court for the District of Columbia and must be approved by the court....

“In the department’s view, the county has met the requirements necessary for bailout. We reached this conclusion after thoroughly reviewing information provided by the county as well as information gathered during the Department’s independent investigation,” said Matthew Colangelo, Deputy Assistant Attorney General for the Civil Rights Division. “We appreciate the county’s cooperation in the resolution of this matter.”

The bail-out process has always been an option for localities covered by Section 5 of the Voting Rights Act, but it is expensive and time-consuming and requires the attention of numerous officials from the Electoral Board to the city or county attorney. The Electoral Board in Charlottesville (on which I serve) has considered applying for a bail-out several times over the past few years, but the expense -- the equivalent cost of a general election, or more -- plus the fact there was no guarantee of success deterred us from initiating the process.

That said, a Huffington Post headline today -- "The Last Voting Rights Act Bailout Ever Went To Hanover County, Va." -- suggests that the bail-out question is moot, unless Congress comes up with a formula that meets constitutional muster and restores Section 4 of the Voting Rights Act, so that the pre-clearance provisions of Section 5 can again be implemented.

On a practical level, ending the pre-clearance requirements will make it much easier for election officials in Virginia to do their jobs. While much attention has been paid to how the Supreme Court's ruling affects things like congressional and other legislative redistricting or statewide voter ID laws, the ripples of Shelby County v. Holder will be felt in countless tiny ways on topics that seldom make the headlines.

For instance, every time a polling place is moved from one location to another, Section 5 of the Voting Rights Act required us to seek permission from the Justice Department, a process that had to be approved at least 30 days prior to the move's taking effect. (In reality, permission had to be granted even earlier, because of the cascade of tasks that must be completed before election day, including the commencement of absentee voting, sending out voter registration cards with new information, posting advertisements in newspapers alerting voters about the changes, etc.)

To give you a sense of how detailed this pre-clearance process could be, consider this example. Some Charlottesville voters currently cast their ballots in the cafeteria of Johnson Elementary School. If we needed to move the voting location to the school's library down the hall, we would need Justice Department pre-clearance.

Buying new voting machines, making technical adjustments to precinct boundaries, moving the office of the General Registrar -- all these had required pre-clearance by the U.S. Department of Justice.

Each of those items required action by the Electoral Board, the General Registrar, the City Attorney, and (in most cases) City Council. They took time and energy away from other tasks that need to be done to assure fair, transparent, honest, and efficiently-run elections.

I will leave to others to debate the political implications of the Supreme Court's decision Tuesday. As for the practical effects, the Court has removed a tremendous burden -- some might even say nuisance -- from the shoulders of election officials across the country. For that we can be grateful.

How did Charlottesville untie its June 11 primary election?

(This article appeared originally on Virginia Politics on Demand on June 17, 2013.)

While last [June]'s primary elections were ho-hum throughout most of the Commonwealth of Virginia -- only 144,435 voters cast ballots in the Democratic contest for lieutenant governor, or 2.6 percent of possible registered voters -- the situation was different in Charlottesville, which had the most crowded ballot among Virginia's 134 counties and cities.

While a handful of localities had primary contests for the House of Delegates, Charlottesville was the only city with several local offices on the ballot. In addition to the top-of-the-ticket choices for lieutenant governor and attorney general, Charlottesville's Democratic voters also chose among candidates for commonwealth's attorney, commissioner of the revenue, and city council. (There were no Republican candidates on the ballot. The local GOP nominated two candidates for City Council, Mike Farruggio and Buddy Weber, in a late-April mass meeting.)

Charlottesville City Council candidate Wes Bellamy speaks to news media after his defeat

 Incumbent Commonwealth's Attorney Dave Chapman beat former Commonwealth's Attorney Steve Deaton in a landslide. (Chapman was first elected in 1993, when he defeated Deaton narrowly in a Democratic caucus. He has never faced a general-election opponent.)

Newcomer Todd Divers more narrowly defeated fellow newcomer Jonathan Stevens for the party nod for Commissioner of the Revenue. (They were both seeking to succeed retiring Lee Richards, another incumbent Democrat who never had a general election opponent.)

Chapman will again be unopposed in November but Divers will have two independent candidates running against him, Taneia Dowell and John Gunter.

The real fireworks came in the City Council race, which was not decided until Friday afternoon because of an exact tie between two candidates on election night.

There were five candidates seeking two nominations by the Democratic party. One was incumbent Kristin Szakos, who took first place handily.

When the results for Charlottesville's nine physical precincts were tabulated, it looked like the second-place finisher would be Bob Fenwick, who had 1,025 votes while third place was held by Wes Bellamy, with 1,006 votes.

City Council candidate Bob Fenwick speaks to news media after his narrow win was announced

All that was left to tally were the 201 ballots cast in the Central Absentee Precinct. Of those, 178 voters had cast their ballots in person on the eSlate electronic system and 24 paper ballots had been returned by mail. (One of those paper ballots was disqualified, so only 23 were counted.)

As the memory card with the machine totals was inserted into the tally computer, we knew the race would be close between Fenwick, who had twice before run as an independent candidate for City Council, and Bellamy, a first-time candidate. Little did we know how close it would be.

After the electronic absentee votes were added to the total, the count was Fenwick, 1,081, and Bellamy, 1,080. If nothing else, we knew a recount was a distinct possibility.

All that was left were the hand-counted paper absentee ballots. I watched over the shoulder of one of the election officials as she read the numbers off the statement of results so they could be added to the spreadsheet of all the other votes. Reading ahead, I exclaimed aloud, "Oh my god! There's going to be a tie."

Indeed, Fenwick received another 7 votes and Bellamy another 8 votes, so that they were tied: 1,088 to 1,088. What would happen next?

Well, there were still provisional ballots to be counted. There were five from Walker Precinct that we were fairly sure would qualify because they had been cast when there was a malfunction of the electronic pollbook early in the morning of election day. There were three others that we knew about, plus one or two "provisional ID" ballots that were issued because the voter failed to bring an acceptable identification document to the polls pursuant to the new voter ID law that took effect in 2012.

We learned at the canvass the next day that there were a total of 12 provisional ballots.

In the meantime, we were exploring the possibilities for what would happen if the election turned out to be an exact tie. It turns out Virginia election law is quite clear about this, which comes as a surprise because so much else about the code is rather muddy.
§ 24.2-674 says:

If two or more persons have an equal number of votes for any county, city, town, or district office, and a higher number than any other person, the electoral board shall proceed publicly to determine by lot which of the candidates shall be declared elected.

The term "by lot" is not specifically defined, but it is generally meant to be any game of chance, usually a coin toss but the category also includes drawing straws, a roll of dice, a hand of poker or blackjack, or even rock-paper-scissors.

When the canvass met on Wednesday morning, we had to move from our usual location in a small conference room in the voter registration office to a much larger room in the basement of City Hall. Observers from the Democratic party -- including local chair Jim Nix -- and both the Fenwick and Bellamy campaigns were there. The local news media were there in force: both TV stations, three local newspapers, and at least one radio station sent reporters and photographers.

They all had to sit through the tedium of the canvass -- which I described to Ed Sykes of NBC29 as akin to "watching paint dry" -- as we checked the paperwork from all the precincts. In the process, we found two discrepancies that had not been recorded on election night that had not affected the outcome of any race. It was not until 11:00 a.m. that we opened the main event, the provisional vote precinct. That is what everyone -- candidates, party officials, and journalists -- was waiting for.

In the event, we found seven regular provisional ballots and disqualified one of them because the voter was registered in Albemarle County. Six of them were accepted as valid and we counted the votes. Bob Fenwick picked up three more votes and Wes Bellamy received none. The count now stood at Fenwick, 1,091; Bellamy, 1,088.

At that point, it became necessary to discuss what we would do with the remaining four provisional ballots, which had been cast because the voters, whose names were properly on the pollbook, had shown up at their precincts on Tuesday without appropriate identification.

The law says that those voters have until noon on the Friday following the election to present their IDs to the electoral board. They can do so in person, by fax, by U.S. Postal Service, or by commercial delivery service but not by having it delivered by a third person (such as a family member.)

Wanting to speed up the process as much as possible, the Electoral Board readily agreed to the suggestion that the four voters be contacted by telephone or email to remind them that they had the opportunity to bring their IDs to the office.

Later in the day, a local talk-radio host complained that this was "coddling" the voters and that making those telephone calls might even be illegal, and wondered what the State Board of Elections would have to say about the Electoral Board's action.

The propriety of the Electoral Board's directing the general registrar to make these phone calls is unquestionable. There is a section of the administrative code of Virginia, 1VAC20-60-60, which states plainly:

The electoral board or general registrar may attempt to contact an individual who has voted a provisional ballot when required by § 24.2-643 of the Code of Virginia and remind the individual that he is permitted to provide a copy of a form of identification as specified in subsection B of § 24.2-643 of the Code of Virginia to arrive no later than noon on the Friday after election day. However, there shall be no requirement that the electoral board or general registrar contact such individual.

The statutory authority for this provision is found in § 24.2-103 of the Code of Virginia.

That said, it should be pointed out that this is all new territory for election officials. The voter ID law took effect on July 1, 2012. (A new one will supersede it on January 1, 2014.) There was never a need prior to the November 2012 election to even consider telephoning voters about their missing IDs. The form each voter fills out on the envelope containing a provisional ballot, however, includes a space for a telephone number, so even without the clear guidance set out in the administrative code, the implication by the design of the form is that the State Board of Elections intended that the phone number be available for use by Electoral Boards and registrars.

Even so, callers to that radio program were complaining as late as Monday afternoon about the "dubious" practice of the Electoral Board to request that phone calls be made to expedite the completion of the canvass and election process.

When the board reconvened on Friday afternoon at 1:30 p.m., the crowd of observers was slightly thinner than it had been on Wednesday, but there were still more people present than at a "normal" canvass. Three of the four voters had provided an ID, so their votes would be counted.

In the end, Bob Fenwick received two more votes while his nearly-equal opponent, Wes Bellamy, received none from the provisional precinct. Fenwick ended up the winner by five votes, 1,093 to 1,088, and Bellamy graciously conceded and said he would not seek a recount, which would be within his rights as a losing candidate when the difference between the two was less than 0.5 percent of the total. He explained that, having observed the Electoral Board's canvass, he trusted the accuracy of the results.

All in all, the 2013 Democratic primary election in Charlottesville brought a lot more tension and excitement than had ever been anticipated or wanted. (The election official's prayer: "Dear Lord, we don't care who wins, as long as it's by a big margin.") Still, having seen a precise tie on election night, observing the rare occasion of an election decided "by lot" would have been an unforgettable event, one that is unlikely to happen again in Charlottesville for a long, long time.

As for the rest of the Commonwealth, a tie is still a mathematical possibility. So watch out.

NOTE: Virginia Politics on Demand contributor Rick Sincere has served on the Electoral Board for the City of Charlottesville since March 2004.

Pew study finds Virginia absentee ballot rejections declined

The Pew Charitable Trusts elections initiative has been crunching the numbers across all 50 states to compare statistics on voter registration rates, voter turnout, and the numbers of absentee and provisional ballots that are accepted or rejected.

In its snapshot of Virginia (published September 19), Pew focused on the change in absentee ballot acceptance rates between 2008 and 2012:

The number of domestic absentee ballots rejected in Virginia declined from 2008 to 2012. Of the approximately 423,000 absentee ballots cast in 2012, 2,278, or 0.5 percent, were rejected. In 2008, the rejection rate among the nearly 550,000 absentee ballots cast was 1.3 percent.

What this suggests is that voters are being more conscientious when filling out their absentee ballots -- making sure that there is a witness signature, for instance, and providing a proper and current address -- and election officials are being more conscientious about examining ballot envelopes when they arrive.

By comparison, the 2012 absentee ballot rejection rate in West Virginia was 0.2 percent (26 out of 13,792 ballots); in Pennsylvania, it was 0.7 percent (1,845 out of 248,561); in North Carolina, it was 1.1 percent (2,237 out of 205,078); and in Michigan, it was 0.6 percent (8,049 out of 1,259,902 absentee ballots returned).

Pew's infographic of Virginia's 2012 voting statistics is here: Virginia-PewSnapshot

(This article was originally posted on Virginia Politics on Demand on October 1, 2013.)

Best Campaign Reform: Raise the Contributions Ceiling

This week the U.S. Supreme Court issued a decision in one case involving campaign finance (from Arizona) and chose not to review another case (from Connecticut).

The ruling in the Arizona case (Arizona Free Enterprise Club's FreedomClub PAC v. Bennett) overturned a state law that gave greater taxpayer subsidies to candidates who have opposing candidates or independent groups that spend more than they do.  Fairfax County Electoral Board member Hans von Spakovsky wrote about this case in Human Events:

The Arizona law challenged in Arizona Free Enterprise Club v. Bennett benefited candidates for state office who accept public financing. The law allowed them to receive more taxpayer money in direct response to the campaign activities of privately financed candidates and independent groups....

Chief Justice Roberts concluded that this matching funds provision imposed a substantial burden on the political speech of privately financed candidates. Every dollar that the candidates spent on their own campaigns resulted in more government funding for their opponents, and spending by independent groups had the same effect.

This Arizona law hindered the political speech of independent groups even more than the speech of privately financed candidates. If an independent group opposed a publicly financed candidate, every dollar it spent guaranteed government funds to the very candidates the group opposed—as well as other publicly financed candidates in the race.

In the Connecticut case (Connecticut v. Lenge), the Supreme Court turned down an appeal by the Green Party, challenging aspects of that state's public campaign financing law. Ballot Access News explained the central issue of the case on March 25:

This case challenges the Connecticut public funding law which says that all candidates for state office who wish to receive public funding must receive a certain number of small contributions; however that is all that Republicans and Democrats need to do, but in addition, independent candidates and the nominees of new parties must submit a petition of 20% of the last vote cast to receive equal public funding. They must submit a petition of 10% of the last vote cast to receive any public funding.

These two campaign-finance cases brought to mind an article I wrote 15 years ago this month on the broad subject of campaign funding. In it, I argued that the problem was low contribution limits, which (among other things) force candidates to spend more time fundraising than reaching out to voters.

Here is the article as it appeared in The Metro Herald (Alexandria, Virginia) in June 1996. You'll note that the names have changed -- as have some of the numbers -- but the principles remain the same:

The Best Campaign Reform: Raise the Contributions Ceiling

Richard E. Sincere, Jr.

According to a report in The Hill, a weekly newspaper that covers Congress, a group of Republican House members, including Majority Whip Tom DeLay (R-Texas) has broken with House Speaker Newt Gingrich (R-Ga.) and Majority Leader Dick Armey (R-Texas) on the issue of campaign finance reform. Gingrich and Armey have endorsed a plan to prohibit political action committees (PACs) from giving money to congressional candidates. The Hill reports in its May 29 edition that "dozens of rank-and-file Republicans ... have denounced the proposal."

Good for them. These Republicans are risking their careers (by challenging the House leadership) on a question of principle.

What principle might that be? After all, PACs are widely derided as the root of corruption in politics, since they channel campaign contributions to candidates from businesses, labor unions, and other special interest groups.

That is precisely why they are valuable. It is an unassailable, fundamental tradition of American politics for individuals to come together, on the basis of shared interests, to form groups with the intention of influencing political and social affairs. We are guaranteed this right of association by the First Amendment to the Constitution. To deny this is to call into question the validity of our basic political freedoms.

PACs began to be created in the mid-1970s, in the wake of two major campaign "reform" packages and the Watergate scandal. Previously, candidates were permitted to accept contributions from individuals, business corporations, labor unions, trade associations, political parties, and other groups and institutions. The new federal laws -- which, incidentally, established the bureaucracy and reporting requirements of the Federal Election Commission -- required such groups to establish separate committees to funnel campaign funds and set strict contribution limits.

Those limits on contributions have not changed since 1974, even though the cost of running a political campaign has risen significantly. (Individual contributions are limited to $1,000 per campaign, while PAC contributions are limited to $5,000.) As a result, politicians -- both incumbents and challengers -- must devote the bulk of their time to fundraising, rather than to the vital job of meeting voters and expressing their views on the issues.

In other words, campaign finance "reform" has had the perverse effect of strengthening the incentives to seek funds from any and all sources, with candidates feeling forced to make promises to many different special interests just to keep their campaigns afloat. A second result is that highly qualified, highly motivated citizens are deterred from participating in the political process as candidates because fundraising has become so distasteful. This is the major reason why Jack Kemp, a former congressman and cabinet secretary, refused to throw his hat into the ring for this year's presidential contest. Kemp represents only the tip of the iceberg of concerned citizens who fail to contribute their time and talent because campaign laws discourage them.

Former presidential candidate Lamar Alexander has suggested, based on his experience, that the campaign contribution limits should be raised. His suggestion does not go far enough.

The best campaign finance reform would be to eliminate contribution limits altogether, but to require strict reporting of the sources of contributions. Campaign finance reports would be available for the press and public to examine. Such scrutiny would alert voters to any "funny business" and would inform us when special interests might have unseemly influence over a particular candidate.

Politicians could be judged by their votes and their actions: Has Bob Dole introduced legislation particularly beneficial to Archer Daniels Midland, after that company has given him millions of dollars in campaign contributions? Has Ted Kennedy voted in lock step with the AFL-CIO, after labor unions have given him millions? Does the chairman of the House Education Committee take contributions from the National Education Association, or from the Home School Legal Defense Fund? If so, how does it affect his performance? These questions can be asked and answered in the full light of day.

This is the system that Virginia law provides for state and local elections. Virginia has no limits on contributions, but campaign finance reports are open to public scrutiny. During campaign years, these reports must be filed on a frequent and regular basis. Local newspapers pay draw attention to any "red flags" that arise. This gives opponents and voters an opportunity to question and challenge candidates on the basis of their campaign funding sources.

Campaign contribution limits force candidates to become beggars when they should be taking their case to the voters. If the limits are lifted, candidates will be better able to do their job and voters will be better able to judge them on their merits -- and therefore make better choices on Election Day.

That is why the House Republicans who are challenging Newt Gingrich deserve praise and encouragement. They have demonstrated both independence and integrity by taking a stand on principle.

* * * * * * * * * * * * * *

Richard Sincere is chairman of the Libertarian Party of Virginia.

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Lookin' Forward to the Weekend with Legal News About Beer

As the ubiquitous song goes:

It's Friday, Friday
Gotta get down on Friday
Everybody's lookin' forward to the weekend, weekend
Friday, Friday
Gettin' down on Friday
Everybody's lookin' forward to the weekend

Although Rebecca Black and her teenage friends may look forward to "kickin' in the front seat" and "sittin' in the back seat" and "partyin'" as Saturday approaches (followed, of course, by Sunday, which "comes after ... wards") with age-appropriate soft drinks, those a bit older might be mulling over what kinds of adult beverages they'll be consuming this weekend.

Thus it is that a couple of legal cases involving beer come to our attention.

Reported by the law firm of Shook, Hardy, & Bacon (bacon is everywhere nowadays, even in ice cream dishes at Denny's) in its on-line newsletter, Food & Beverage Litigation Update, one case comes from Europe and one from the United States.

The European case involves the use of "Bud" as a brand name for beer, and it is a new ruling on an old dispute.

Czech and U.S. brewers seeking to market their beers under the name “Bud,” have apparently been at odds since the early 1900s. In the latest installment of the dispute, the Court of Justice of the European Communities has set aside a decision of the Court of First Instance which allowed the Czech brewer to oppose Anheuser-Busch’s registration of “Bud” in Europe.  Anheuser-Busch Inc. v. Budějovický Budvar, No. C-96-09 (E.C.J., decided March 29, 2011). While the Court of Justice upheld some of the lower court’s rulings, it determined that the lower court erred (i) in the factors it relied on to decide if a “sign,” or trademark, in opposition to a new registration was used in a sufficiently significant manner, and (ii) in holding that the use of the sign in opposition does not necessarily have to occur before the date of the application for new
registration.

The language may be dry, but the beverage is still just as wet as you might expect.

The American case a bit more racy and it involves a microbrewery. Microbrewers, by their nature, are always more interesting and adventurous.

Flying Dog Brewery has filed a lawsuit under the First Amendment, alleging that the Michigan Liquor Control Commission and its individual members violated its free speech rights by prohibiting the company from selling Raging Bitch Twentieth Anniversary Belgian-Style India Pale Ale. Flying Dog Brewery, LLP v. Mich. Liquor Control Comm’n, No. n/a (U.S. Dist. Ct., W.D. Mich., filed March 25, 2011). According to the complaint, a British artist, who once worked with journalist Hunter S. Thompson, designed Flying Dog’s beer labels, including the one at issue. The defendants rejected Flying Dog’s application for a license to sell the pale ale in the state, allegedly finding “that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety, or welfare of the general public.”

If I can find a six-pack of Raging Bitch, I may drink one or two this weekend while reading a new book that arrived from Amazon.com this week: Prohibition in Washington, D.C.: How Dry We Weren't, by my friend, Garrett Peck. If anything shows the residuum of Prohibition remaining in U.S. law, it's a ruling by a regulatory body that says the name of a beer -- even if it's "Raging Bitch" can be "detrimental to the health, safety, or welfare" of anybody.

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Has Virgil Goode Fully Abandoned the GOP?

With little fanfare, former U.S. Representative Virgil Goode has joined the national executive committee of the Constitution Party, essentially severing his ties with the Republican Party.

This is not the first time Goode has switched political parties. Having served in the Virginia State Senate as a Democrat for almost 25 years, he was elected under that party's banner to the U.S. Congress in 1996, becoming an independent in 2000 (after having been one of the few Democrats to vote for the impeachment of President Bill Clinton in 1998), and finally switching to the GOP in 2002.

Goode ran as a Republican until he was defeated by one-term Democratic Congressman Tom Perriello in 2008, after a recount showed a razor-thin (727) vote majority. (Perriello was subsequently defeated by state Senator Robert Hurt of Chatham this past November 2.)

According to Richard Winger at Ballot Access News,

On November 18, former Virginia congressman Virgil Goode accepted an appointment to the Constitution Party’s national Executive Committee....

Goode has been somewhat involved with the Constitution Party ever since he left congress. He has spoken at several Constitution Party national meetings during the past two years.

Winger draws an analogy to Goode's joining of the CP's national committee to Bob Barr joining the national committee of the Libertarian Party. Barr, a former Member of Congress from Georgia, said at the time that he had no intentions of running again for public office, but in 2008 he sought the LP's presidential nomination and received it.

Whether Goode has ambitions to be a presidential candidate -- one could not say that a nominee of the Constitution Party has ambitions to be President -- is not known. Commenters on Ballot Access News suggest a CP presidential ticket that would include Goode and former Colorado Congressman Tom Tancredo, who this month placed second in the race for Governor of that state, ahead of the Republican party's nominee.

Tancredo and Goode share a visceral xenophobia that would make them compatible as national ticketmates, regardless of which one was the presidential nominee and which was the vice-presidential nominee.

It should be noted that Virgil Goode's wife, Lucy Goode, is a vice chairman of the Fifth Congressional District Republican Committee.

The Constitution Party's press release welcoming Goode to its leadership ranks can be read here.

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Jefferson Area Tea Party's Grass-roots Bona Fides

If you need evidence that the Tea Party movement is made up of grassroots, neophyte activists, look no further than this email invitation sent out on Friday by the Jefferson Area Tea Party, which is based in the Charlottesville area.

If the amateurishness of this email message is not immediately apparent, don't worry that you've missed it.  It took me several minutes to figure it out.

A truly professional operation -- the alleged "grass tops" that exercise cynical control over the Tea Parties from some undisclosed hideaway in Washington -- would never have let this pass, because a basic piece of information is missing.

Did you figure it out yet?

The invitation to the rally does not tell recipients of the message where they should go to protest Congressman Tom Perriello. 

Yes, it does say "Carysbrook Performing Arts Center," but unless you live in Fluvanna County or near Fork Union (where the Carysbrook Center stands), you're unlikely to know where it's located.  I had to look it up on Google, and even then got the impression that it was near Lake Monticello.  (Maybe it's near both places; my sense of rural geography is not well-formed.)

I can imagine that other Tea Partiers from Albemarle, Greene, and Nelson counties, as well as from the city of Charlottesville, scratched their heads in ignorance.  How many would have bothered to look up the name of the performing arts center to learn where they should be on Saturday morning?

It's a simple rule of political activism:  Spoon feed the troops with information as much as you spoon feed the media.  They're not going to bother to find out for themselves what you should be telling them in the first place.

The accusations of top-down manipulation of the Tea Party are clearly misdirected.  Professional political operatives don't make these kinds of basic mistakes.

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