21st Century Election Law

The 2012 election is finally over after billions of dollars spent on both sides in the presidential election and with the expenditure of enormous amounts of money in Senate and House races as well. Efforts in a number of states to restrict voter access may have had an impact on voter turnout. With 99% of precincts reporting, Associated Press reports that some 118 million people voted in the 2012 White House race compared to 131 million people cast ballots for president in 2008. A preliminary estimate from George Mason University’s Michael McDonald puts the 2012 turnout rate at 60% of eligible voters, a drop of more than 2 percentage points from 2008.

With political officeholders deciding issues about voter access, redistricting, and campaign finance, the interests of the voting public are subject to conflicts of interest that imperil the integrity of the election process. Perhaps it is time for citizen panelsinstead of elected officials to determine election law. Outdated laws governing elections also need revision. The ABA Journal reports on legal questions about ballots cast in an era that relies on new technology. Taking a photo of a filled-in ballot from a smartphone violates the law of some states, even constituting a felony. A post by NBC News discusses “election law” with possible social media aspects with an article about tweeting a photo of a ballot, showing it on Instagram, Facebook, or on other sites with a potential for prosecution. Kay Stimson, Communications & Special Projects Director of the National Association of Secretaries of State, a professional organization for secretaries of states around the country, told NBC News, that the issue is not just about photographing ballots but about displaying them.

Harvard University’s Berkman Center for Internet & Society’s Citizen Media Law Project posted a chart showing how all 50 states handle this kind of activity. The chart shows that while most states do not expressly prohibit recording/photography inside of polling sites, most states prohibit the public display of marked ballots. Stimson said “The states that do have such laws have adopted them to prevent vote buying and voter coercion.” She added that “it is important to respect the integrity of the voting process. States generally prohibit any form of conduct that serves to intimidate voters, interferes with their right to exercise their vote, or disrupts voting.”

On this subject, Brooklyn Law School Library has the new 5th edition of Election Law: Cases and Materials which covers developments in election law in the 2012 election season including; extensive coverage of Citizens United, super PACs, and other campaign finance developments; emerging issues in voting rights and redistricting, including coverage of the Texas redistricting and voter identification cases; and new coverage of issues in judicial elections. With perspectives from law and political science, the book is a good resource for law and political science courses.