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Jan 11, 2008 -- Legal Center Weekly Report: January 11, 2008 Files Notice of Participation in Shays III Appeal
On December 31, 2007, the Legal Center filed a notice of intent to participate as an amicus curiae in Shays v. FEC (Shays III). The case is currently before the D.C. Circuit Court of Appeals, on appeal from the decision of U.S. District Judge Colleen Kollar-Kotelly, which held that several FEC regulations implementing BCRA did not meet the basic requirement of "reasoned decisionmaking" in the Administrative Procedures Act. The regulations pertain to the standard for "coordination," federal candidate and officeholder solicitations at state party fundraising events, and the definition of "federal election activity."
In the district court proceedings, the Campaign Legal Center served as counsel to Senators John McCain and Russell Feingold, who participated as amici curiae in the case and filed a brief .
The Campaign Legal Center, with the assistance of in-state co-counsel Ira Karasick, submitted a reply brief this week with the New Jersey Superior Court Appellate Division on behalf of plaintiffs-appellants Steve Fenichel, Georgina Shanley, et al. in Fenichel, et al. v. City of Ocean City . In Fenichel, the plaintiffs-appellants challenge a trial court's decision that the Ocean City lacks the home rule authority to enact an ordinance that would establish a system of public campaign financing for municipal elective offices. Although the City filed a third-party complaint against the State of New Jersey at the trial court level to assist it in defending its position, and the State filed a brief opposing plaintiffs'-appellants' in the case, the State failed to meet the November briefing deadline for its appellate brief, sought and received a one-month extension of that deadline after it had passed, and then failed again to meet its extended deadline of December 28. As of today, the State has not filed an appellate brief and has apparently dropped out of the litigation. Plaintiffs-appellants are being supported in the case by amici New Jersey Citizen Action, BlueWaveNJ, Public Campaign and the Brennan Center for Justice. The appellate court has not yet scheduled oral argument in the case.
Earlier this week, the U.S. Supreme Court heard oral argument in cases considering the constitutionality of an Indiana statute requiring voters to present photo identification at the polls (Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita). A decision in the case will be rendered later this year.
The Campaign Legal Center and law professor Charles Ogletree served as legal counsel to more than two dozen scholars who filed an amici brief on behalf of petitioners in these cases. The amici brief traces the history of disenfranchisement efforts in the United States since Reconstruction and compares voter ID laws to a number of past disenfranchising devices, including secret ballot laws, registration acts, "eight-box" laws, literacy tests, and the poll tax.
J. Gerald Hebert, Campaign Legal Center Executive Director, issued a statement last week calling on President Bush to withdraw the nomination of Hans von Spakovsky to the Federal Election Commission. Although his recess appointment expired, von Spakovsky's nomination remains pending and the FEC is down to two commissioners.
In an e-mail reportedly sent New Year's Eve, von Spakovsky told supporters that his time at the FEC had come to an end and that he recognized that his nomination could not muster the votes necessary for confirmation. Hebert urged the President to reach the same conclusion and to end the stalemate created by his controversial nominee in order to allow the FEC to continue its work in an election year.
The Supreme Court of Pennsylvania ruled in late December that the City of Philadelphia had authority to enact and enforce City campaign contribution limits, rejecting the claim that the City limits were preempted by state law. The Campaign Legal Center filed an amicus brief with the state supreme court in July supporting the City.
In Nutter v. Dougherty, now-mayor Michael Nutter filed a complaint in 2006 to have the City's contribution limits enforced with respect to several individuals Nutter maintained were exploring mayoral candidacies but not abiding by those limits. These individuals filed a counter-claim against the City, alleging that the contribution limits were beyond the City's home rule authority and preempted by state law, which places no limits on political contributions. The state supreme court rejected these counter-claim arguments, noting: "We cannot stress enough that a home rule municipality's exercise of its local authority is not lightly intruded upon, with ambiguities regarding such authority resolved in favor of the municipality." The court found no evidence of intent by the state legislature to preempt local campaign finance ordinances and concluded: "Absent a clear legislative manifestation of such an intent, Appellants' preemption arguments must fail."
The Fifth Circuit Court of Appeals issued its decision on January 10, 2008, in Willie Ray v. State of Texas. This lawsuit was filed in 2006 and challenges several provisions of Texas law that impose burdens on the constitutional and federal statutory rights of voters and political parties. The suit also alleges racially selective law enforcement of Texas election laws by State Attorney General Greg Abbott. The district court granted a limited preliminary injunction which enjoined the State from prosecuting a narrow class of persons who merely possess, consensually, the absentee ballot of another voter. That injunction was stayed by the Fifth Circuit just before the November 2006 general election. This appeal by the State of Texas followed. In its decision, the court of appeals vacated the injunction and remanded the case for further proceedings. The court of appeals did so, it said, because Texas amended one of the laws at issue in the case in 2007, and the state of Texas proposed at oral argument to amend the procedure for casting absentee ballots, another issue in the case. The court of appeals remand was intended to give the trial court a chance to address these changes in the first instance. The appeals court also expressed the view that the case be resolved well in advance of the November 2008 elections.
On January 9, the trial court held a scheduling conference, and set the case down for trial on May 29-30, 2008, in Marshall, Texas. Campaign Legal Center Executive Director Gerald Hebert serves as co-counsel to the plaintiffs along with the Washington, DC law firm, Spiva & Hartnett LLP; the Tyler, Texas law firm of Ireland, Carroll & Kelley, P.C.; and Eric Albritton of the Albritton law firm in Longview, Texas.
Legal Center Blog Highlights
Each week, the Campaign Legal Center staff posts blog entries on its site, www.clcblog.org. Click to read this week's entries: "von Spakovsky Nomination Should be Withdrawn," and "Is DOJ Still Steeped in Politics?" or to sign up for the blog, click here.
To read a variety of this week's editorials and articles on a variety of Campaign Legal Center issues, please click here. |
