Tenth Circuit Invalidates Colorado Law That Lets Contributors Give Twice as Much Money to a Major Party Candidate than to Anyone Else

On January 23, the Tenth Circuit overturned a Colorado campaign finance law that lets contributors give $400 to a candidate for the legislature who is nominated in a primary, but only $200 to a candidate who is nominated in a minor party convention, or with the independent candidate petition procedure, or who is a write-in candidate. The decision is Riddle v Hickenlooper, 13-1108, and is written by Judge Robert Bacharach, an Obama appointee, and co-signed by Judge Neil Gorsuch, a Bush Jr. appointee, and Bobby Baldock, a Reagan appointee. UPDATE: here is a newspaper story about the decision.

The decision overturns the U.S. District Court decision, which had upheld the law. Although all three Tenth Circuit judges agree, Judge Gorsuch wrote separately to discuss the appropriate level of scrutiny. The basis for the decision is equal protection. It is very rare for minor parties, independent candidates, and their supporters, to win a constitutional election law case on equal protection grounds; most laws striking down ballot access restrictions and other laws that injure minor parties and independents are won on First Amendment grounds.

The decision equivocates on whether the law is subject to strict scrutiny, or intermediate scrutiny, but concludes that the law is unconstitutional under either standard. The panel’s decision says, “Here the state of Colorado has created different contribution limits for candidates running against each other, and these differences have little to do with fighting corruption.” The concurrence says, “The only reason I can imagine for Colorado’s challenged contributory scheme is a bald desire to help major party candidates at the expense of minor party candidates…A state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some ‘compelling’ or ‘closely drawn’ purpose – and Colorado has articulated none.”

Maine Supporters of Public Funding for Campaigns Will Attempt to Qualify an Initiative to Change the Public Funding Program

Maine Citizens for Clean Elections, the advocacy group that backs Maine’s public funding for campaigns program, will attempt to qualify an initiative to make some changes in the program. The initiative would increase funding for the program, and also provide for a mechanism by which candidates who have already qualified for some public funding can repeat the qualification process (raising a certain number of small private donations) and obtain more funding. See this story.

Lowell Weicker Urges Connecticut Republican Party to Again Let Independents Vote in its Primaries

Lowell Weicker, a former Republican U.S. Senator from Connecticut, and a former Governor elected on the “A Connecticut Party” line, has urged the Republican Party to again let independents vote in its primaries.

The Connecticut Republican Party won a lawsuit in the U.S. Supreme Court in 1986, to force the state to let independents vote in the Republican Party’s primary. That decision, Tashjian v Republican Party of Connecticut, was a landmark victory for First Amendment rights for political parties. Ironically, a few years after winning the lawsuit, the Republican Party went back to excluding independents from voting in its primaries. See this story about Weicker’s recent remarks.

Connecticut Democrats have never allowed independents to vote in their primaries. The state didn’t even have primaries until the 1950’s; previously party meetings chose all party nominees.

House Bill to Revise Federal Voting Rights Act Has 9 Sponsors

As noted earlier, a bill was introduced in the U.S. House of Representatives on January 16, to restore the federal Voting Rights Act with a new coverage formula to replace the one struck down last year by the U.S. Supreme Court. The bill, HR 3899, is sponsored by James Sensenbrenner (R-Wisconsin). The eight co-sponsors include three Republicans and six Democrats. The three Republicans are Spencer Bachus of Alabama, Steve Chabot of Ohio, and Sean Duffy of Wisconsin. The five Democrats are John Conyers of Michigan, John Lewis of Georgia, Bobby Scott of Virginia, Sheila Jackson Lee of Texas, and Steny Hoyer of Maryland.

The identical Senate bill is S.1945. It is sponsored by Senator Patrick Leahy (D-Vermont), and co-sponsored by Senators Richard Durbin (D-Ilinois) and Christoper Coons (D-Delaware).

Presidential Commission on Election Administration Recommends that All States Use Early Voting

On January 21, the Presidential Commission on Election Administration released its recommendations on how to improve the voting process. The Commission relied on the testimony of hundreds of local election officials, and also on scholarly research. It is bipartisan. Perhaps the most interesting recommendation is the Report’s strong endorsement of early voting. Here is Nate Persily’s description of the Report, with a link to the Report itself.

Republican National Committee Meeting January 23-24 Will Make Important Decisions for 2016 Primary Calendar

The Republican National Committee meets January 23-24 in Washington, D.C. See NBC’s First Read article at this link (scroll down to the third item, “RNC to Consider Changes to 2016 Calendar.” The party will decide whether to hold its 2016 national convention in either June or July, which would be a substantial change from 2012, when its convention was in September. The party will also decide whether to require that presidential primaries all be held before 35 days, or 45 days, before the convention.

If the party chooses June, and especially if it then chooses 45 days, it could no longer use its presidential primaries in New Jersey, Montana, New Mexico, and South Dakota, unless it can persuade state legislatures in those states to hold earlier presidential primaries. Under current law, those states hold their presidential primaries in June.