2013's Top 10: From Voting Rights Act to Moreland Commission

, New York Law Journal

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Jerry H. Goldfeder
Jerry H. Goldfeder

This article has been updated to reflect a Correction.

We would be remiss if we did not partake in the time-honored tradition of year-end Top 10 lists. So here is our election law top 10. As with lists naming the best songs or movies, our "honors" go to a mix of important and head-scratching events.

1. Evisceration of the Voting Rights Act? Since 1965, minority voters have been protected in various parts of the country by the Voting Rights Act against proposed changes to election laws that are discriminatory. Voters in the South, three counties in New York City, and a host of other areas throughout the country could rely on Section 5 of the Voting Rights Act, the "preclearance" provision, to monitor, evaluate, and, if need be, block discriminatory changes before they took effect.

In Shelby County v. Holder, 133 S. Ct. 2612 (2013), the Supreme Court struck down the formula Congress used to designate which states or counties had to comply with the preclearance procedures, rendering the preclearance law inoperative. While awaiting congressional action to resuscitate this important protection, the Department of Justice is attempting to use another of the act's provisions to bridge the gap.1

2 and 3. Back to the 1890s? 'McCutcheon v. Federal Election Commission' and 'New York Progress and Protection PAC v. Walsh.' The U.S. Supreme Court's Citizens United decision in 2010 ruled that corporations, unions, and wealthy individuals could spend unlimited sums on behalf of or against a candidate, as long as it was independent of that candidate's campaign. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). This, in part, led to our $6 billion presidential campaign last year, and the first time "outside money" dominated many of New York's municipal races last month. The McCutcheon and New York Progress cases were brought with the express purpose of further deregulation of money in politics. McCutcheon v. Federal Elections Commission, 133 S.Ct. 1242 (2013); New York Progress and Protection PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013).

Although one person is limited to giving $2,600 to a federal candidate per election, he or she is also barred from contributing more than $48,600, in the aggregate, to all federal candidates—thus limiting how many candidates can benefit from a contributor's largesse. The McCutcheon plaintiffs challenged this cap (and others) before the U.S. Supreme Court, arguing in October that the aggregate limit does not impact upon potential corruption or appearance of corruption—the rationale of campaign regulations. Similarly, New York Progress challenged New York's aggregate contribution limit, prohibiting an individual from giving more than $150,000 in political donations in any calendar year. Here, too, the issue is whether an overall limit has any relation to forestalling corruption. Neither this case, nor McCutcheon, attacks contribution limits to candidates—just the aggregate ban. Although the court has yet to hear the merits, the U.S. Court of Appeals for the Second Circuit enjoined enforcement of this law.

A decision on behalf of plaintiffs in either case is sure to trigger additional challenges to federal and state campaign finance regulations.

4. I won! I won! Kudos to the Oneida County Board of Elections. The bipartisan board, comprised of one Republican and one Democratic commissioner, mistakenly executed a Certificate of Election this month, naming Peter Rich the Town Supervisor of Vienna, New York. The problem? He had fewer votes than his opponent. Query: assuming Rich were interested (he is not), could he assume office now that he has been certified as the winner by the legally authorized body? If he did so, could the real winner challenge his usurpation in court?

This imbroglio reminds us of the question posed often in 2000: If Al Gore had prematurely conceded on election night, would he have waived his right to challenge the vote count in court?

5. The New York City Runoff for Mayor That Didn't Happen. There were a few days after the mayoral primary in September when it was uncertain whether Bill de Blasio had received 40 percent of the vote in the Democratic Party—the threshold by which he could avoid a runoff. Prior to the New York City Board of Elections' final count of the absentee and other paper ballots some 10 days after the primary, runner-up Bill Thompson was not sure whether he was going to concede—even if de Blasio was slightly under the 40 percent. Thompson bowed out, and ultimately de Blasio actually did pass the threshold, mooting the issue. This scenario also occurred in 2005: Anthony Weiner faced the same situation as the runner-up to Freddy Ferrer; Weiner conceded, but Ferrer eventually garnered a tad over 40 percent.

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