Oct 6, 2008 -- Legal Center Weekly Report: October 6, 2008

Fourth Circuit Refuses to Enjoin FEC Regulations in Real Truth About Obama Appeal

On October 1, 2008, the Court of Appeals for the Fourth Circuit denied a motion filed by The Real Truth About Obama (RTAO) requesting an injunction pending its appeal of the decision of the U.S. District Court for the Eastern District to deny RTAO preliminary relief in The Real Truth About Obama, Inc. v. FEC .

In the district court, RTAO had requested a preliminary injunction enjoining enforcement of certain FEC regulations that govern when 527 groups have to register as federal political committees and abide by applicable federal contribution limits and disclosure requirements. The challenged regulations included the so-called "subpart (b)" definition of "expressly advocating" (11 C.F.R. § 100.22(b)), and a rule defining "contribution" as funds received in response to a solicitation that "indicates" that the funds received "will be used to support or oppose" the election of a federal candidate (11 C.F.R. § 100.57). The district court denied this motion for a preliminary injunction, finding that RTAO case was unlikely to succeed on its merits, and RTAO appealed the decision. Seeking to jump-start its appeal, RTAO requested that the Fourth Circuit enjoin these FEC regulations while it appealed the district court's decision, and in addition, that the Fourth Circuit expedite its appeal. The Fourth Circuit denied both of these motions October 1, 2008.

On August 14, 2008, the Legal Center, together with Democracy 21, filed an amici brief with the district court to oppose RTAO's motion for a preliminary injunction and to defend the constitutionality of the FEC regulations.

Legal Center seeks participation in Wisconsin voting rights suit

On October 6, 2008, the Campaign Legal Center, along with the Lawyers' Committee for Civil Rights Under Law, the Brennan Center for Justice at NYU School of Law, the League of Women Voters of Wisconsin Education Fund, the Voting Rights Project of the American Civil Liberties Union, the American Civil Liberties Union of Wisconsin Foundation, Inc., Fair Elections Wisconsin and Daniel P. Tokaji (the "amici") filed a motion to participate as amici curiae and a proposed brief in Van Hollen v. Wisconsin Government Accountability Board. The Van Hollen litigation was brought by the Wisconsin Attorney General in the Circuit Court of Dane County. He argues that the federal Help America Vote Act of 2002, 42 U.S.C. § 15301, et seq. ("HAVA") and state law require Wisconsin election officials to "match" their state voter registration list against other state databases, and suggests by implication that officials should purge those voters from the registration list whose information cannot be successfully matched, at least where officials do not resolve the discrepancy. As the amici argue, however, such mismatches typically result from typographical errors or minor discrepancies in how voters' names are listed in different databases, and thus a purge at this stage of the election season may result in the disfranchisement of thousands of qualified voters.

The case raises important issues regarding the application of HAVA to the State of Wisconsin. In filing the motion to participate, the amici advised the Court that because the Wisconsin Attorney General's interpretation of HAVA was legally flawed, the complaint fails to state a claim upon which relief may be granted. The motion and brief also advised the court that the amici believed it was helpful to place the Attorney General's construction of HAVA in a national context, because such a context would show how his interpretation of HAVA was significantly at odds with the understanding of HAVA adopted by many other states. Further, the motion and accompanying brief provided background information concerning the practice of computer matching to explain why HAVA generally does not link voter eligibility to the successful matching of registration records with records contained in other databases. Finally, the brief identifies concerns as to whether granting the relief requested by the Attorney General could significantly interfere with the conduct of the November 4, 2008 election in Wisconsin.

U.S. Supreme Court Grants Extension in Challenge to Constitutionality of the Voting Rights Act

The Supreme Court, on October 2, 2008, granted an extension to November 10, 2008 to file motions to dismiss or affirm in Northwest Austin Municipal Utility District v. Mukasey —a challenge to the constitutionality of the Voting Rights Act. Earlier this year, a three-judge court in the District of Columbia unanimously upheld the constitutionality of the Act. The Campaign Legal Center's Executive Director, J. Gerald Hebert, serves as co-counsel to Travis County, Texas in the case, which had intervened to defend the Act's constitutionality.

In this case, a municipal utility district (MUD) in Travis County, Texas, sought to exempt itself from the preclearance provisions of the Voting Rights Act. The court below concluded that the MUD was not eligible to seek such a judgment under the plain language of the Act. The three-judge court also rejected plaintiffs' alternative theory that when Congress extended Section 5 in 2006, it lacked sufficient evidence of racial discrimination in voting to justify the provision's intrusion upon state sovereignty.

To read the Jurisdictional Statement filed by the petitioners, click here.

Legal Center Blog Highlights

Each week, the Campaign Legal Center staff posts blog entries on its site, www.clcblog.org. To read this week's entries, "On GOP Plans and Denials to Challenge Foreclosed Voters," or to sign up for the blog, click here.

Week in the News

To read a variety of this week's editorials and articles on a variety of Campaign Legal Center issues, please click here.