The Thicket at State Legislatures

Farewell to The Thicket

By Karl Kurtz

Another wetland has fallen prey to development.

The victim this time is The Thicket at State Legislatures, and the development is NCSL's spiffy redesigned website, which prominently features The NCSL Blog. The NCSL Blog will absorb and continue to cover the primary beat of The Thicket--the practice of representative democracy, state politics and elections, and federalism--but it will expand its coverage to include state policy issues and NCSL news and priorities.

So, welcome to The NCSL Blog and farewell to The Thicket. The Thicket will continue to exist as an archive of useful information (historically, more than half of the hits to The Thicket have come from search engines, indicating that readers were seeking information provided by the blog), but there will be no new posts. The NCSL Blog provides a link to the old posts in The Thicket.

The Thicket, which took it's name from Justice Felix Frankfurter's famous phrase about how redistricting is a political thicket, was a labor of love for seven years. We launched The Thicket in May 2006 and posted 1,657 stories since that time.

Our readers have included 378,577 unique visitors from 192 countries who have viewed 691,653 pages. Those are small numbers compared to the big guys (The Huffington Post gets as many visitors in a day as The Thicket did in seven years). But we have been happy in our quiet niche--"by and for legislative junkies"--and have been proud of our work.

Far and away the most popular story ever posted in The Thicket was "Movies About Ethical Dilemmas". It has received twice as many pageviews as the next most popular posting. Here are the top 10 stories of all time:

1. Movies About Ethical Dilemmas by Peggy Kerns (September 2009)
2. Fire Alarms and Police Patrols: Two Approaches to Legislative Oversight by Karl Kurtz (October 2009)
3. The Closest U.S. Presidential Race in History was ... by Mark Wolf (November 2012)
4. Republic or Representative Democracy by Karl Kurtz (September 2011)
5. Who will Meet in 2011? by Meagan Dorsch (December 2012)
6. Full-time or Part-time Legislature: Which is Better? by Karl Kurtz (February 2013)
7. Keeping up With Online Legislative Tracking Services by Jo Anne Bourquard (January 2011)
8. How to Run for the Legislature by Karl Kurtz (October 2006)
9. Historical Party Affiliations of State Legislatures by Karl Kurtz (September 2007)
10. Legislative Walkouts are Nothing New by Karl Kurtz (February 2011)

See you over at The NCSL blog.

Lessons in Modern Communication from C-SPAN

By Jane Carroll Andrade

Jeremy Art, digital and social media specialist for C-SPAN, was like someone out of central casting: crisp suit; articulate; very D.C. Art clearly loves his job, and he shared his knowledge and enthusiasm during a recent gathering of LINCS members in Washington, D.C.

LINCS—NCSL’s Legislative Information and Communications Staff Section—held its professional development seminar this month in the nation’s capital. The group enjoyed sessions on everything from creativity to managing negative media attention to a social media roundtable, as well as tours of the Newseum and C-SPAN. Thanks to outgoing chair Bladen Finch, who directs the page program in the Virginia Senate, for helping to organize a stimulating PDS. Morgan Blanchard, a communications specialist in the Louisiana Senate, was elected to chair LINCS for the current term through September 2014.

Before Art spoke, we were greeted by Peter Kiley, vice president of C-SPAN Networks, who informed us that contrary to popular belief, the Cable-Satellite Public Affairs Network is not a government operation. It is a private, non-profit company created in 1979 by the cable television industry as a public service. Then Ellen Schweiger, who directs the assignment desk, pointed out that C-SPAN is not just Washington-centric. She uses stringers from across the country to provide content from the state and local levels.

Jeremy Art of C-SPAN

The entire operation was impressive, including the fact that quite a few C-SPAN staff have worked at the network for decades–some since its inception. Not Art, however. He’s worked there five and a half years, about as long as organizations have realized they need professionals to handle their social media efforts. A lot of folks tend to think of C-SPAN as the staid but invaluable audio-visual keeper of government proceedings, but Art puts a social media shine on C-SPAN's coverage. He blogs. He Facebooks. He tweets. By “consistently engaging in the relevant issues” facing government, C-SPAN’s Facebook fans grew from 7,000 in late 2009 to nearly 220,000 today, and its Twitter followers increased from 18,000 to 422,000 in the same time period.

 Art is particularly proud of C-SPAN’s video library, which allows users quick and easy access to video clips dating back to 1987. The videos offer historical perspectives on the news of the day, but Art sometimes finds ways to highlight them in unexpected and fun ways. When the White House announced Jay Carney as its new press secretary in 2011, for example, it took him only minutes to find a 2006 clip in which Carney, then Washington’s bureau chief for Time magazine, said during an interview, “It’s a tricky job. I’m sure I wouldn’t be any good at it.” Then he quizzed us: “Who do you think uses this feature the most?” Since professional communicators are not known for being shy, hands shot up: “CNN!” “Fox News!” Wrong. “Jon Stewart’s Daily Show,” Art answered.

Art also pointed out that the while this extensive record can hold those in the public eye accountable in not-so-serious ways, the clips offer plenty of evidence that public officials are hard-working and professional. The library even holds a video of NCSL members meeting the press following a meeting with President Obama. Art is proud that C-SPAN videos are used by anyone who wants them, including the media, teachers and the general public, offering a truly transparent view of our government in action.

Jane Andrade is Director of Public Affairs for NCSL.

Cauci?

By Karl Kurtz

California Asia Pacific Islander Legislative Caucus

A legislator I was talking with recently stumbled for a moment over the plural of "caucus," finally blurting "cauci." He laughed, knowing that it was wrong but that I had understood that he meant caucuses. But then I got to thinking: If the plural of Latin root words like alumnus is alumni, or cactus is cacti, why isn't "cauci" an acceptable plural of caucus?

So I looked it up. Turns out that the derivation of caucus, a term for a grouping of members in a legislature or a segment of a political party, is unknown and may not be Latin at all. Some dictionaries speculate that it derives from an Algonquin Indian word meaning counselor, elder or advisor, or that it comes "from the Caucus Club of Boston in the 1760s, possibly derived from Medieval Latin caucus, drinking vessel."

But even if it were a Latin word, a useful Wikipedia article points out that there are plenty of Latin words ending in -us whose plural in English does not end in -i: campus, bonus, and anus are examples.

Finally, the same article notes that there are facetious -i plural words:

Facetious mock-erudite plurals in -i or even -ii are sometimes found for words ending with a sound (vaguely) similar to -us. Examples are stewardi (supposed plural of stewardess) and Elvii (as a plural for Elvis imitators). The Toyota corporation has determined that their Prius model should have the plural form Prii, even though the Latin word prius has a plural priora, the Lada Priora having prior claim to that name—though the common plural is "Priuses". The Winklevoss twins are sometimes collectively referred to as "the Winklevii".

Maybe my legislator friend can popularize "cauci" as the plural of caucus.

Supreme Court Accepts Abandoned Railroad Right-of-Way Case

By Lisa Soronen

Every year before the Supreme Court’s term officially begins on the first Monday in October the Court holds its “long conference,” during which the justices consider which cases to hear among the approximately 2,000 cert petitions that have accumulated over the summer. On Oct. 1, the Court accepted eight of those cases, one of which the State and Local Legal Center (SLLC) will file an amicus brief.

In Marvin M. Brandt Revocable Trust v. United States, the Court will decide who owns an abandoned railroad right-of-way: the United States or a private land owner living next to the right-of-way. In 1875, Congress passed a law granting rights-of-way to railroads through public land. Over the course of the next century, as trucking became a more popular method of transport, numerous railroads abandoned these rights-of-law. 

The government argues that a 1922 federal statute allows the United States to retain the railroad right-of-way if it is abandoned. If that is the case, and the abandoned right-of-way is located in a municipality, the municipality automatically receives it from the federal government for free. If the abandoned right-of-way is located elsewhere, a state or local government receives it for free if it establishes a “public highway” on the right-of-way within one year. State and local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.”

State and local governments often own and maintain abandoned railroad rights-of-way. The Supreme Court usually takes cases where at least two federal circuit courts of appeals have ruled differently on the same issue. In Marvin M. Brandt Revocable Trust v. United States, the Tenth Circuit ruled in favor of the United States. In a similar case, Samuel C. Johnson 1988 Trust v. Bayfield County, Wisconsin, the Seventh Circuit ruled against Bayfield County, who intended to build snowmobile trials on the abandoned railroad right-of-way. 

Learn more about cases from this term affecting state government at the SLLC Supreme Court Preview webinar on October 22.  Registration is free.     

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

"That's Democracy:" Lyrics by Alan Rosenthal, Adapted by Ginger Gold Schnitzer

By Karl Kurtz

"We need to get our campaign to improve public understanding of representative democracy into pop culture! How about if we write a song about the legislative process?" So said the late Alan Rosenthal, professor of political science at the Eagleton Institute of Politics at Rutgers University, in a phone conversation more than 10 years ago. A few days later, I received the following e-mail message:

Karl:
I have started thinking of lyrics and will consult with some talented people I know in NJ (former students).  We will see how far we can get.

So far, these are the ideas, words:

    Why can't people all agree?
    Because they see things differently.
        That's democracy.

    How special are all those interests we see?
    They're very special, since they include you and me.
        That's democracy.

    Do legislators we elect care a rap about their constituency?
    You better believe they do--otherwise they're history.
        That's democracy.

    Why doesn't the legislature cut out the fuss and fight?
    The problem is that different people think they're right.
        That's democracy.

    But it takes so long to get things done.
    That's because you need 50% plus one.
        That's democracy.

    The system isn't perfect, and it never will be.
    It's messy, it's human, but it works remarkably.
         It's democracy.

 I have finally found my calling.
 Alan

Unfortunately, neither Alan nor I did anything with these lyrics that so admirably capture the key messages of NCSL's Trust for Representative Democracy and the America's Legislators Back to School program.

After Alan's death, his wife, Lynda Kresge, discovered this old e-mail message and passed it on to Ruth Mandel, director of the Eagleton Institute. Ruth and her team came up with the idea of asking Ginger Gold Schnitzer, a lobbyist for the New Jersey Education Association and a former student of Alan's, to put the lyrics to music and to perform it at the Eagleton Institute's celebration of Alan's life and career.

Alan wanted something more sophisticated and informative than the venerable "I'm Just a Bill" from Schoolhouse Rock, which first aired in 1975. He succeeded remarkably, and this song is a suitable closing to our celebration of a great friend, supporter and Pied Piper of NCSL and America's state legislatures.

A video of the entire celebration of Alan's life and career--all two hours, nine minutes and 13 seconds of it--is now available on YouTube. Fortunately, the editor inserted bookmarks for each of the 20 speakers so that viewers who want to sample different speeches, including ones by such luminaries as former U.S. senators Alan Simpson and Paul Sarbanes, may do so.

Webinar: State Roles in Long-Term Services and Supports

By Joshua Ewing

People are living longer and our largest age group in the U.S.—80 million baby boomers— began hitting retirement age in 2011. As a result, the population of those ages 85 and older is expected to triple between 2012-2050.

As our population ages, the number of individuals who need help with daily activities such as bathing and dressing, or more intensive services like those provided in nursing homes grows. Today, nearly 70 percent of people over age 65 will need some form of long-term care services at some time in their lives.

These types of services are commonly referred to as Long-Term Services and Supports or LTSS. In recent years, states have grown to play an essential role in the provision of these services with Medicaid now serving as the largest payer of LTSS, accounting for 41 percent of all LTSS spending in the United States..

This has significant implications for state policymakers because providing high quality, appropriate LTSS is expensive. In 2007, the average annual spending per Medicaid beneficiary using long-term services and supports was $43,296, while the average was only $3,694 for Medicaid beneficiaries not utilizing long-term care services.

A related issue facing states is how LTSS are provided for people who qualify for benefits under both Medicare and Medicaid; around ten million people , who are commonly referred to as “dual eligibles.” Dual eligibles are typically much poorer and have greater health needs than other beneficiaries who qualify for either Medicare or Medicaid individually.  In addition, dual eligibles are also more likely to be disabled; reside in a long-term care facility; and have a poorer health status.

One of the most common options that states are choosing to explore is moving from fee-for-service to a system of Medicaid managed long-term services and supports (MLTSS). By June of 2012, 16 states had implemented MLTSS programs. This number is expected to grow to 26 by 2014.

NCSL’s Health Program is hosting a webinar on Wednesday, Oct. 23, at 2 p.m. ET/ 1 p.m. CT/12 p.m. MT/ 11 a.m. PT which will highlight opportunities and challenges states face in moving to a system of MLTSS.

Speakers will include Paul Saucier, director of integrated care systems with Truven Health Analytics; and Patti Killingsworth, chief of the Long-Term Care Division of TennCare, the Medicaid program for the state of Tennessee.

 Registration is now open and free to legislators and staff. 

Energy Planning for Climate Regulations: Webinar rescheduled for Oct. 31

(The climate regulations webinar has been rescheduled to Oct. 31 due to ramifications of the government shutdown.)

By Jocelyn Durkay

Washington and the states are abuzz over the president’s climate action plan and the Environmental Protection Agency’s (EPA) new ruling on carbon pollution standards for future power plants, leaving many to wonder how policy makers can assist in achieving targeted emissions without harming economic productivity.

NCSL’s Energy Program will host a free webinar discussing how state and federal greenhouse gas reduction requirements could affect state government, utilities, industries and investors. The webinar, “Energy Planning for Climate Regulations: Lowering the Cost of Cutting Carbon,” will take place from 3-4 p.m. Eastern time, Thursday, Oct. 31. Registration is open.

This webinar will feature Judi Greenwald, deputy director for climate, environment and efficiency at the Office of Energy Policy and Systems Analysis for the U.S. Department of Energy and Jack Ihle, director of environmental policy for Xcel Energy Colorado.

Given the federal government’s new proposal to limit emissions, many state policy makers see challenges in how to achieve reductions without increasing energy costs, harming the economy and hurting job growth. With his June climate action plan, the president outlined a number of initiatives relating to low-emissions energy policies including: incentives for renewable energy; promoting solar and wind energy on federal lands; increasing the reliability and efficiency of the electric grid; and promoting nuclear power and natural gas. Please see this June post on The Thicket for more information.

Join us  Thursday, Oct. 31 for this webinar exploring state and utility low carbon, high productivity options for reducing emissions. Registration is currently open.

Jocelyn Durkay is a research analyst with NCSL’s Environment, Energy and Transportation program.

McCutcheon v. FEC: Possible Implications for the States

By Karen Shanton 

The impact of Citizens United v. FEC, 2010’s landmark campaign finance ruling, was felt not just at the federal level but also in the states. Though its challenge was to federal limits on corporate independent spending, it quickly spurred responses in state legislatures across the country.

On Tuesday, the U.S. Supreme Court will hear another federal campaign finance case with potential ramifications for the states: McCutcheon v. FEC. The Federal Election Commission limits how much an individual can give to a single candidate or committee (base limits). It also caps the amounts an individual can give to all federal candidates and committees in a two-year period (aggregate limits).

McCutcheon’s main target is the second set of limits. But, depending on how the Court arrives at its ruling, it could also set up a follow-up challenge to base limits. Longtime contribution limits opponent U.S. Senator Mitch McConnell has asked the Court to apply strict scrutiny – the highest level of judicial review – to contribution limits. Many court watchers think this request, if granted, would open the door to striking down all contribution limits.

Not all states cap aggregate contributions. At our last count, just ten limit aggregate contributions by individuals to candidates, committees or both (Arizona repealed its individual aggregate limits earlier this year).

Indeed, not all states even limit base contributions. Twelve states allow individuals to contribute unlimited sums to candidates. Of these 12, seven also grant other entities – such as political action committees, corporations and unions – the same latitude (though Indiana limits aggregate contributions by corporations and unions).

However, the states that do have relevant provisions in place will likely see a direct effect if the U.S. Supreme Court strikes down federal limits. Following Citizens United, Montana tried to defend its ban on corporate independent spending. The Court was unpersuaded, dismissing the claim with a curt note that, “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does.”

Assuming the Court was similarly unreceptive to arguments for state contribution limits, a ruling striking federal limits as unconstitutional would presumably also extend to the states.

The effects of such a ruling could also ripple out in a completely different direction. Before Citizens United, just under half the states had laws banning corporate independent spending. However, more than half the country has seen legislation in response to the ruling.

What seems to have happened is that many states took the Citizens United  ruling – and the attendant spotlight on campaign finance – as an impetus to re-evaluate their campaign finance systems, tightening disclosure requirements, exploring public financing and imposing new limits to offset those overturned by the ruling.

 Something to watch will be whether McCutcheon (and possible follow-up cases) has a similar effect. If the Court strikes down contribution limits, what kinds of conversations will that start in the state legislatures? Will any of the states not directly affected by the ruling respond, as some states did after Citizens United, with new efforts to rethink their campaign finance systems?

Karen Shanton is a legislative studies specialist and ACLS public fellow in NCSL's Legislative Management Program.

Legislative Chaplains in the News

U.S. Senate Chaplain Barry C. Black. Credit: Drew Angerer, New York Times

By Karl Kurtz

Legislative chaplains seldom make news. Today's New York Times features not one, but two, stories about prayers in legislatures. The first is an engaging profile, "Give Us This Day, Our Daily Senate Scolding," about Barry C. Black, the chaplain of the U.S. Senate. A Seventh Day Adventist and former Navy rear admiral, Black recently prayed in the midst of the government shutdown:

Save us from the madness.... We acknowledge our transgressions, our shortcomings, our smugness, our selfishness and our pride. Deliver us from the hypocrisy of attempting to sound reasonable while being unreasonable.

Black, who has been the Senate chaplain for 10 years, comments about his role, "Remember, my prayer is the first thing they hear every day. I have the opportunity, really, to frame the day in a special way."

The second story is about Town of Greece v. Galloway, the case of a small town New York board meeting that starts each session with a prayer by a chaplain that is before the new term of the U.S. Supreme Court. Some residents of Greece are offended that the "chaplain of the month" is almost always a Christian and say that the practice violates the Constitution's prohibition against establishment of religion by government. The precedent in this case involves a 1983 decision, Marsh v. Chambers, in which the Court, overruling several lower court decisions, ruled that the Nebraska Legislature had the right to hire a chaplain and open legislative sessions with a prayer because such ceremonies were "deeply embedded in the history and tradition of this country."

Nebraska Sen. Ernie Chambers

Ernie Chambers, the legendary and long-sitting (1971-2009) member of the Nebraska Senate who originally brought the case challenging the Senate's prayers, returned to the Senate in 2013 after sitting out for four years in accordance with Nebraska's legislative term limit requirement.

Election Laws Challenged in Only State to Act Since Supreme Court Ruling on Voting Rights Act

By Wendy Underhill

The Department of Justice announced on Sept. 30 that it is filing suit against North Carolina for its new elections law, enacted in July.

“In challenging this law, the Justice Department will present evidence of racially discriminatory effect resulting from these changes – based on the state’s own data,” said Attorney General Eric Holder, in a press release.  He cites the new photo voter ID requirement; the reduction in the number of days for early voting; the elimination of the option to register to vote and cast a ballot on the same day during early voting; and how provisional ballots are handled when they are cast in the wrong precinct but within the right county.

In response, the bill’s sponsor, Representative Harry Warren, called the lawsuit “frivolous.” Specifically referring to the early voting hours, he said “It’s actually more equitable. What we’re doing is requiring all early voting precincts to be open uniformly and equally.” As for the photo voter ID provision, he points out that other states already have similar requirements, and have survived court challenges.

North Carolina Gov. Pat McCrory added, “I think it’s obviously influenced by national politics, since the Justice Department ignores similar laws in other blue states throughout America.

The outcome of the case will be watched nationally.

In the meantime, the New York Times’ coverage of the new DOJ suit says, “Republican-controlled states have rushed to impose new limits on voting” since the Supreme Court’s June ruling in Shelby County v. Holder.  (That’s the case that invalidated a portion of the Voting Rights Act of 1965, the part that put some states and local jurisdictions under Section 5, which obligated them to have any changes to voting procedures “pre-cleared” by federal authorities before they could be implemented.)

If the “Gray Lady” is referring to the passage of new legislation such as North Carolina’s, it’s too early to say there’s a “rush.” We simply don’t know yet how the “formerly Section 5 states” will respond.

Here’s why. The Supreme Court ruling came on June 25, and at that point fewer than a dozen states were still in session; most states had adjourned for the year. And, among those still in session (California, Illinois, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Wisconsin) only North Carolina was covered by Section 5 in a significant way. Come 2014 legislative sessions, we’ll be able to report if there is a trend.

For more on North Carolina’s bill—including provisions besides those mentioned in this lawsuit and how it compares to Colorado’s major election overhaul bill this year—see NCSL’s elections newsletter, The Canvass. 

Wendy Underhill is program manager of NCSL's elections team.

Don't Forget to Turn Out the Lights

By Todd Haggerty and Erica Michel

At all levels of government, federal, state and local, the budget provides the legal basis for spending and the failure to enact a budget can have wide ranging consequences. With Congress' failure to pass a budget resulting in a partial federal government shutdown, it's worth noting that many state governments have also faced shutdowns over the years.

In the absence of a budget or a temporary appropriations bill, 22 states require the government to partially shut down. This most often involves furloughing state employees not deemed critical to the maintenance of public safety and health, closing state parks, and shuttering some non-essential state offices such as those that issue driver’s licenses.

Since 2002, at least 20 states have started one or more fiscal years without a finalized budget. In several of these states, incomplete budgets resulted in partial government shut downs. Here are some of the more recent state government shutdowns:

• Minnesota is the most recent state to have a partial government shutdown. The 2011 shutdown lasted for 20 days, resulting in the temporary layoff of 22,000 state workers. The shut-down also closed state parks during the busy July tourism season, as well as two state-owned race tracks. Driving exams were also suspended. State officials estimate the state lost $1.25 million from unsold lottery tickets alone and an additional $1 million per week from closed state parks. However, other state officials estimated the state saved approximately $65 million from unpaid salaries to laid-off employees.

• Michigan faced two partial shutdowns in 2007 and 2009. The state’s shutdown in 2007 lasted only four hours—from midnight of the last day of the fiscal year until 4 a.m. on Oct. 1, 2007, when the governor and legislature reached a deal for temporary funding. In anticipation of the shutdown campers had been asked to leave state parks the night before. The short disruption also resulted in decreased state police on the highways. Plus, highway rest stops were barricaded, drawbridges closed and traffic cameras turned off. The partial shutdown involved temporary layoffs of 35,000 of the state's 53,000 employees. In 2009, Michigan experienced a technical two-hour government shutdown as lawmakers worked on a temporary spending plan. However, there was no interruption in the delivery of state services.

• New Jersey's state government partially shut down in 2006. This occurred despite the state having missed its budget deadline in three of the previous five years without shutting down. Before the governor signed the budget eight days into the fiscal year, 45,000 non-essential employees were placed on unpaid leave. One of the more dramatic results of the furloughs was the three-day shutdown of Atlantic City's casinos for the first time since their launch. This occurred because state casino inspectors, who are required by law to be present in the casinos, were among the state workers included in the furlough order. State officials reported that closing Atlantic City casinos alone resulted in daily losses of $1.3 million in gambling tax revenue for the state.

A partial federal government shut-down would likely have similar effects to a state shut-down, but with broader effects. National parks across the country will likely close, Americans could face delays applying for passports, and many federal government workers could face furloughs. The Wall Street Journal examined many more potential effects on its “Washington Wire” blog.

Todd Haggerty is a Policy Specialist in the Fiscal Affairs Program at NCSL and Erica Michel is a Research Analyst II in the Fiscal Affairs Program at NCSL.

Oregon Capitol Turns 75

By Larry Morandi

The Oregon State Capitol celebrates its 75th birthday on Tuesday. Born out of two fires—the first destroyed the original statehouse in 1855, the second consumed a structure modeled after the U.S. Capitol in 1935—the Capitol is four stories high and topped by a 23-foot bronze and gold leaf statue of the Oregon Pioneer (affectionately known as the “Gold Man” by the building’s inhabitants).

Truly national in its composition, the Modern Greek architecture includes marble from Missouri, Montana and Vermont.

Not content to be a graciously aging dowager, the Capitol added two wings in 1977 to expand housing for legislative offices, committee hearing rooms and underground parking.  A nuts-and-bolts restoration project occurred in 2007-2008.  In addition to the Legislature, the Capitol hosts offices for the Governor, Secretary of State and State Treasurer.

 The birthday celebration is not confined to a single day.  Educational events ranging from tours, oral histories and scavenger hunts began on Sept. 18, with supersized candles lighting up the dome on Sept. 28. “Cutting the cake” and other events will take place on Tuesday, including the official launch of the Legislature’s new website.  The festivities wrap up on October 5.

  The complete calendar of events is available online through the Oregon State Capitol Foundation.   

 

 

 

 

 

Veterans’ Transportation: NCSL Webinar Oct. 2 to Highlight State Activity

By Alice Wheet

With wars winding down, more and more Americans are returning home. About 23 million veterans live in the United States today, many of whom need help reintegrating into civilian life. We talk commonly about how important it is for veterans to access jobs, school, medical and mental health care, and social events such as visits with family and friends. But what makes all these activities possible? Transportation.

Without dependable and affordable transportation, veterans may find it difficult to access military benefits or to meet the new challenges of returning home.  For many veterans, though, everyday travel can be a hardship because of disabilities, age, medical conditions or financial constraints. In addition, the U.S. Department of Transportation (DOT) estimates that four in 10 veterans live in rural areas where community services and transportation options are limited.

A common misconception is that U.S. Department of Veterans Affairs (VA) and volunteer programs can meet all veterans’ transportation needs.  As NCSL discovered in our survey research in 2012 (published January 2013 as “A Mission to Serve: State Activities to Help Veterans Access Transportation”), while such programs provide vital, quality transportation for some groups of veterans to make medical trips, they are more limited in their ability to help veterans get around for other reasons.

The good news is that states have a rich variety of programs and approaches that help veterans have a dignified and dedicated means of transportation regardless of geographic location, physical ability, financial constraints, or other circumstances.  An upcoming webinar on Wednesday, Oct. 2, at 3 p.m. ET/ 2 p.m. CT/1 p.m. MT/ Noon PT will highlight some of these critical ways that states are helping veterans get where they need to go.

Two states—North Dakota and Oregon—will be featured on the webinar as states that have made big strides in facilitating transportation mobility for veterans. North Dakota has its own state transportation service for veterans, offering van rides to the VA hospital in Fargo, and Oregon’s unique approach stems from the work of a legislatively mandated task force on veterans’ transportation.

Both states have worked for years to build relationships across agencies and improve transportation options for veterans. Kim Adair, transit section program manager at the North Dakota Department of Transportation (NDDOT) and Dinah Vanderhyde from the Oregon Department of Transportation (ODOT) Public Transit Division will present on their states’ efforts.

Other speakers will include Rik Opstelten from the United We Ride program at the Federal Transit Administration, which sponsors the Veterans Transportation and Community Living Initiative (VTCLI) federal grant program.  Jaime Rall and Alice Wheet, co-authors of the NCSL report, will also review major highlights and themes in state veterans’ transportation activities from across the nation.

The webinar is free for legislators and legislative staff, but you must register in advance at https://www3.gotomeeting.com/register/356308606.

NCSL's Jan Goehring Receives Special Recognition

By Karl Kurtz

In addition to announcing the 2013 award to Massachusetts' Anne Ziaja, the Kevin Harrington Award selection committee gave special recognition to Janet B. Goehring, the longtime leader of NCSL's America's Legislators Back to School program who died prematurely this past spring. Here's a video honoring Jan presented by Massachusetts Senate President Pro Tem Richard Moore, a past president of NCSL, at the Legislative Summit in Atlanta last month:

In addition to this celebration of Jan's life, I also recently received a letter from Olga Batishcheva, an alumna of the 2009 international Legislative Fellows Program who worked with Jan and me at NCSL and is now director of the Center for Democratic Leadership in Ukraine. Olga enclosed a book of articles and papers from a conference on civic education that the Center had sponsored. Olga says,

At the end of the book there is a short essay compiled from some postings by Jan Goehring in The Thicket that I translated into Ukrainian. At the end of the 2012-13 adcademic year, we also organized a competition among students on the best student research paper devoted to issues in civic education. This year we named the competition in honor of Jan.... This is my small tribute to Jan's memory.

Thank you for this touching memorial, Olga. Jan's reach in democracy education was truly global.

Massachusetts' Anne Ziaja Wins 2013 Harrington Award

By Karl Kurtz

Anne Ziaja, director of the Massachusetts Senate legislative education office, received the Kevin B. Harrington Award for Excellence in Democracy Education at NCSL's 2013 Summit last month in Atlanta. Anne has worked in this office for 35 years and has done an outstanding job of providing civic education for countless young people, high school and college interns and adults. She has consistently achieved 100 percent participation by Massachusetts senators in NCSL’s America’s Legislators Back to School program.

Sponsored by NCSL’s Trust for Representative Democracy, the national award recognizes an individual or organization for advancing the public’s understanding of state and local representative democracy.

Harrington, the founding president of NCSL, was dedicated to improving citizens’ understanding of American democracy. Anne received the honor bearing his name for exemplifying the same passionate commitment to excellence in democracy education.

Here is a video of the award presentation to Anne by NCSL past president Sen. Richard Moore, Massachusetts:

After receiving the award, Ziaja said,“To receive the Harrington Award and be honored on a national level is a highlight of my career. Advancing the understanding of representative democracy, and the rights and responsibilities we enjoy, assures that we will have an informed citizenry. I have been fortunate to work with many senators, representatives and legislative staff to educate Massachusetts residents about our state legislature, and give them the tools they need to engage.”

For more information about Anne Ziaja's excellent work as a civic educator, see this release. Congratulations to Anne Ziaja!

House Mouse, Senate Mouse, Candy Mouse, Wired Mouse

By Karl Kurtz

Anybody remember the book, "House Mouse, Senate Mouse," by Peter W. Barnes and Cheryl Shaw Barnes in which children learn about how Congress makes laws when the Squeaker of the House and the Senate Mouse-jority leader must pass a bill to establish a national cheese? Turns out that in Massachusetts, there really are Senate mice, as reported in this AP story in the Washington Post:

BOSTON — Massachusetts senators are being urged to end their practice of keeping candy in their desks after mice searching for the treats also chewed the senators’ microphone wires.

Senate President Therese Murray made the plea Thursday during a formal session.

The discovery was made during an upgrade of the camera system in the Senate to allow for better webcasting. Workers found that some of the senators’ microphone wires had been chewed by mice....

The Statehouse, built more than 200 years ago, has long been home to mice, and the animals can occasionally be seen scampering about, including in the press gallery.

Maybe the Massachusetts Senate mice were doing research before voting on a measure to create a state candy.

Food Waste: NCSL's Natural Resources Webinars Continue Sept. 20

By Melanie Condon

The second in a three-part series of free NCSL webinars dealing with natural resources is scheduled from 3-4 p.m. Eastern time on Sept. 20.

The webinar, which will examine the benefits of reducing food waste, is  sponsored by NCSL’s Natural Resources and Infrastructure (NRI) committee. The webinar series is a way to further interact with NCSL members outside of the Summit and Forums. Many of the webinars, which launched in June, explore cross-jurisdictional issues and are coordinated with other NCSL standing committees.

The Sept. 20 webinar examining food waste, will feature Jerry Lynch, chief sustainability officer of General Mills, who will share his point of view on the economic and social benefits of reducing waste, and Sara Eckhouse of the U.S. Department of Agriculture, who will discuss the department’s recent partnerships with the private sector to reduce waste. Registration is open.

The final webinar, devoted to the process of rebuilding after a natural disaster, is scheduled from 3-4 p.m. Eastern time, Sept. 27. Both 2012 and 2013 were marked by significant natural disaster and weather related events. From the recent tornadoes in Oklahoma to Superstorm Sandy and Hurricane Irene, our communities have needed serious rebuilding. Attendees will hear from a panel of experts on how legislators can engage in resilient reform efforts, including through new flood zone maps, disaster insurance programs, and other rebuilding initiatives. Registration is open.

A trio of experts on the technology of turning municipal solid waste into energy participated in the series’ initial webinar Sept. 13. Representatives from the Environmental Protection Agency the Center for American Progress and the German federal environmental agency, provided a fascinating look at the technology from both a domestic and international perspective. A recording of this webinar will soon be available at NCSL.org.

Part I of the two-part series took place in June and included three one-hour webinars on a wide-range of issues.

2013 Farm Bill

This webinar, co-hosted with the Health and Human Services Committee and the NCSL Hunger Partnership, took an in-depth look at the future of the 2013 Farm bill. Attendees heard from three expert panelists on an array of Farm Bill issues including, conservation, crop insurance and nutrition assistance programs.

Alternative Fuel Vehicles

The NRI Committee’s second webinar in the series on June 21 drove home the issue of alternative fuel vehicles and the infrastructure necessary to sustain the growing industry.  A representative from UPS provided insight on the growing use of alternative fuel vehicles in private industry, and an expert from the National Renewable Energy Laboratory helped attendees understand the infrastructure needs in the states for such technology.

RESTORE Act

On June 27 the NRI Committee wrapped up Part I with a webinar examining the timely issue of efforts underway to clean up the Gulf Coast after the Deepwater Horizon oil spill, and how the Gulf States will use funds directed from the RESTORE Act to maintain the health of their ecosystems.   Panelists from the Department of Interior and The Nature Conservancy provided useful observations of what funding streams will be available to the states, how they will be able to use such funds, and what states are already doing to protect their shores.  

Archived recordings of all the webinars, as well as registration details for the remaining two webinars are available here.  

Melanie Condon is a policy associate for the Agriculture, Energy, Environment and Transportation Committee in NCSL’s Washington, D.C. office.

Eagleton Institute of Politics Celebrates Alan Rosenthal

By Karl Kurtz

This coming Sunday, September 22, the Eagleton Institute of Politics at Rutgers University will celebrate the life and work of Alan Rosenthal, its former director, long-time faculty member and preeminent scholar of state legislatures who passed away in July. All are invited to this event at the Nicholas Music Center on the Rutgers campus in New Brunswick, New Jersey.

Ruth Mandel, the current director of the Eagleton Institute, has written a moving tribute to Alan for the Council of State Governments' Capital Ideas, which complements our NCSL celebration of our long-time friend, collaborator and guru in State Legislatures magazine.

Recalling a Little History

By Karen Shanton

Last night's episode of The Rachel Maddow Show included a segment on the history – and possible political future – of state legislative recall elections (segment starts at 2:00).

The segment was interesting but there are a couple of points in it that call out for clarification. Early on in the piece, Maddow suggests that recalls used to be deployed primarily against officials who were convicted of crimes and refused to leave office. But that's not really the case. As I mentioned in a previous post, the vast majority of legislative recalls are politically motivated. And that's been true almost since the beginning. Following California Senator Marshall Black's recall for embezzlement in 1913, there wasn't another misconduct recall until the mid-1980s. The intervening recalls were all political.

Maddow also suggests that recall elections tend to favor Republicans. Whether or not that's borne out in the future, it hasn't been the case historically. Republicans have faced significantly more recall elections than Democrats and survived a smaller percentage of the recalls they've faced. Of the 38 total legislative recall elections, 14 were against Democrats while 24 were against Republicans. Democrats survived eight of their recalls to the Republicans' nine, for respective win-loss records of 57-43 percent and 38-63 percent.

And the proportion of Republican recalls has actually increased in the past couple of years. Before the wave of recall elections in 2011, 12 recalls were aimed at Republicans while nine targeted Democrats. Since then, Republicans have fielded 12 recalls to the Democrats' five. That puts the pre-2011 D-R split at 43-57 percent and the 2011-2013 split at 29-71 percent.

Most recall elections are politically motivated

By Karen Shanton

Both of the Colorado state lawmakers facing recall lost their seats on Tuesday. As followers of this story are aware, the recall efforts were politically motivated. Senate President John Morse and Senator Angela Giron, both Democrats, were targeted over their votes for gun contro

Though some states reserve recall power for reining in incompetent or unethical officials, few recalls are actually launched over misconduct – at least not at the state legislative level. Rather, like the Colorado recalls, most are political. Thirty-eight state lawmakers have faced recall elections since the first states, Michigan and Oregon, adopted the recall in 1908. Of those 38 recall efforts, 35 were politically motivated.

(An interesting exception to the general trend of political recalls is recall pioneer, Oregon, where two of the state’s three legislative recalls were over misconduct.)

Politically-motivated recall efforts face an obstacle that misconduct-driven recalls don’t: the (often-not-insignificant) segment of the population that opposes using recalls for political purposes.

This is not a trivial obstacle. It may have been a factor in the wave of state senate recalls in Wisconsin in 2011 and 2012. Exit polling from the 2012 elections, which also included attempts to unseat the governor and lieutenant governor, suggested that 60% of recall election voters opposed deploying recalls for anything other than misconduct. And a correspondingly high proportion of the targeted senators – nine of 13 – survived their recalls.

But it’s also clearly not insurmountable. Counting the Colorado elections, political recalls have succeeded on 18 out of 35 tries. That may not be the perfect three-for-three that misconduct recalls have notched but it’s still (slightly) north of 50-50.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.

 

Mt. Rushmore Trivia

Speaking at NCSL's Legislative Summit last month, David Gergen had a trivia question that's right up The Thicket's alley: What do the four men enshrined on Mt. Rushmore have in common besides having been president of the United States?

Answer below the jump.

New Twist in Texas Voter ID Suit: Is the Law a Poll Tax?

By Karen Shanton

The federal suit against Texas’ photo voter ID law was recently updated with a few new complaints. Among the new claims: the requirement amounts to a poll tax.

Poll tax arguments have a long history in voter ID cases, starting with the earliest suits in Georgia and Indiana. Georgia’s voter ID law originally attached a $20 fee to voter identification cards. Plaintiffs in a 2005 suit against the law (Common Cause v. Billups) charged that this violated the U.S. Constitution’s Twenty-Fourth Amendment prohibition on poll taxes. The court seemed inclined to agree and the state’s legislature hastily revised the law to provide for free ID cards.

This neutralized the argument in that case; with the direct price tag for IDs snipped, the Georgia court rejected the poll tax argument. It also helped shape future legislation. Subsequent ID proposals have consistently included provisions for free ID cards.

But these developments didn’t sideline poll tax arguments in general. ID opponents just shifted the emphasis of their arguments from primary costs of ID laws, such as Georgia’s fees, to secondary costs like the inconvenience and expense of a trip to the DMV. This secondary costs version of the argument has become a mainstay of voter ID suits, coming before courts in Indiana, Michigan, Missouri, Tennessee, Wisconsin – and now Texas.

The secondary costs version of the poll tax argument can easily blur into another argument commonly levied against voter ID: ID laws unduly burden eligible voters’ right to vote (see, for example, the Missouri Supreme Court’s opinion in Weinschenk v. Missouri).

And, as it happens, Texas is a rather interesting case where this ‘undue burden’ argument is concerned. Specifically, it has some features that seem to make it more vulnerable to undue burden charges than other states where undue burden arguments have been tried (and failed). For example, Texas’ ID law is stricter – permitting fewer types of ID – than ID laws in, say, Georgia or Indiana. Its ID-issuing agencies can also be few and far between. According to recent court filings, some prospective voters face journeys of 200-250 miles roundtrip to get to an agency.

These features raised concerns about the burdensomeness of the law for a previous court. The coming months will tell whether they cause the current court similar concern.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.

 

Proof of Citizenship

By Wendy Underhill

Arizona and Kansas are teaming up to sue the federal government over voter registration requirements.

The issue is this: under the National Voting Rights Act of 1993, all states must accept voter registration applications that come via the National Voter Registration Form.  At the very top of the form, above the first numbered question, it asks, “Are you a citizen of the United States of America?” Next to this question are two boxes, one for “yes” and one for “no”. There is no requirement that an applicant must provide proof, and yet laws in four states (Arizona, Alabama, Georgia and Kansas) do require proof.

Alabama and Georgia have not yet implemented their laws, and Arizona’s 2004 law was struck down in June by the U.S. Supreme Court, in Arizona v. Inter Tribal Council of Arizona.

The Kansas law went into force in January 2013. So far at least 15,000 Kansans, many of whom registered to vote while at the Division of Vehicles, are in voting limbo because they haven’t provided proof of citizenship. Local election administrators are reaching out to them to “cure” these cases. 

The Arizona-Kansas suit announced this week asks a federal court to require the U.S. Election Assistance Commission (EAC) to modify the federal form to indicate that proof of citizenship is required in their states, per state law.  

From the federal side, making the change isn’t easy because the EAC has no sitting commissioners, and thus can’t enact policy changes. And why does it have no commissioners?  Because none have been appointed by the President. Why not? Because the process starts with recommendations from the majority and minority leadership in the U.S. Senate and House, and no recommendations have been made in recent years.  

The outcome of this new suit will be of interest to many state lawmakers, judging by the number of states (10) that had legislation introduced this year dealing with proof of citizenship for voters in one way or another. 

Legislative Pay Raises a Touchy Subject

By Morgan Cullen

Illinois House and Senate Leaders have sued Governor Pat Quinn, demanding that the state’s legislative salaries be immediately reinstated. Upset with the legislature’s inability to resolve the state’s pension crisis, Governor Quinn exercised his line item veto authority and eliminated the $13.8 million in the state budget reserved for legislator pay. While the current legal fight raises a number of constitutional questions in Illinois, it has also publicized the politically thorny issue of legislative pay in general.  

In most legislatures, it’s up to lawmakers to decide if they should raise their own salaries, making it almost impossible to do so. The issue is often too politically charged to touch.  Over the last five years, only 17 states have raised legislative pay and most of these were only modest increases. 

During the 2013 legislative session, only eight states raised pay for state legislators, mostly small incremental increases that barely kept pace with inflation. The Vermont legislature increased legislator salaries by $42.33.  North Dakota lawmakers saw their salaries increase by $5 per calendar day. And Oregon raised legislator pay by $324 annually. 

The only legislators that saw a significant increase in their salary came from states where the primary authority to increase pay doesn’t actually reside in the legislature.  In Idaho, the Citizen’s Commission on Legislative Compensation recommended an increase of $322 per year.  Delaware’s Commission, which previously reduced salaries by 2 percent for all state employees and elected officials to help balance the state’s budget, adjusted their salaries back up by $1,291 per year. 

In Pennsylvania, legislator salaries (one of the highest paid in the country) are actually tied to the consumer price index that adjusts automatically when the cost of living increases.  Lawmakers there saw their salaries increase over the past year from $82,026 to $83,801.  In Florida, legislator salaries are tied to the salary adjustments of state employees and they received a $10 increase. 

In Utah, lawmakers salaries actually doubled from $117/day to $273/day during legislative session. The justification for the salary increase was due to a change in how their per diem was allocated, moving from an unvouchered to a vouchered system. Legislators there will now have to submit receipts for the business expenses they incur during legislative session. By moving to a vouchered system, the salary increase is not expected to place an additional burden on the state budget. 

In two states legislator salaries were actually reduced this year. In Massachusetts, lawmakers salaries are tied to the state’s median household income which reduced salaries by $1,081. In California, the Citizens Compensation Commission voted to reduce salaries for all elected officials last December by 5 percent. California has the highest paid legislature in the country at $90,526 per year but they have also seen the largest salary reductions in recent years.  In 2009, the commission reduced salaries by 18 percent. Over the last five years, California legislators have seen their salaries cut by $25,682.

To help take the politics out of the issue, 19 states have created compensation commissions to provide independent and impartial recommendations. While a commission’s level of influence varies from state to state, they do provide a regular opportunity to review legislative salaries every couple of years to see if current salary levels should be raised or lowered. The type of legislative compensation methods in place in each state are illustrated on the map.

See NCSL’s 50 state table on legislature salary and per diem available here.

Examining the Legal Challenge to North Carolina's New Photo Voter ID Requirement

By Karen Shanton

Is North Carolina’s new photo voter ID requirement an unlawful additional qualification on the right to vote? That’s the central question in the lead argument of a state lawsuit filed against the requirement last Tuesday.

The answer could turn on whether North Carolina courts accept the plaintiffs’ framing of the ID requirement. North Carolina’s constitution sets out an explicit list of qualifications for voting. According to the plaintiffs, the photo ID law adds a new qualification to this list–which the state’s legislature doesn’t actually have the authority to do. So, the ID law is an impermissible legislative overreach.

If North Carolina’s courts sign on to this framing of the photo ID requirement, this argument could have legs. A Wisconsin circuit court judge accepted a similar reading of that state’s ID requirement and cited it as grounds for an injunction against the requirement.

However, other courts have resisted this way of thinking about voter ID requirements. Faced with a similar argument in a state constitutional challenge to its photo ID law, Indiana’s supreme court rejected the plaintiffs’ interpretation. Rather than a substantive qualification on voting, the court concluded, a photo ID requirement is merely a procedural regulation on the conduct of elections. And regulating elections is within the Indiana General Assembly’s power.

Wisconsin’s circuit court ruling was overturned by an appellate court that took much the same line. The appeals court interpreted the ID law as imposing a regulation on voter registration, which is a power explicitly granted to the Wisconsin Legislature by the state constitution.

The North Carolina General Assembly is also constitutionally-authorized to regulate voter registration. So, there’s an opening for this kind of ruling in the North Carolina case.

It isn’t the end of the legal line for North Carolina ID opponents if that happens–they can press the other arguments in this case (e.g. the equal protection claims) or turn their attention to other cases (e.g. the pending federal action)–but they’re obviously better off if it doesn’t. Other legal options aside, opponents of photo ID laws should cross their fingers for a plaintiff-friendly reading of North Carolina’s ID requirement.

Karen Shanton, Ph.D. is a legislative studies specialist and ACLS public fellow in the NCSL Legislative Management Program.

America is Depending on State Legislators

By Julie Lays

We are at a crossroads. The federal government is dysfunctional. Our problems appear intractable.

That’s the message David Gergen delivered to more than 1,000 state legislators, legislative staff and others at the closing session of NCSL’s 2013 Legislative Summit in Atlanta.

“Washington, D.C., is broken,” said Gergen, former adviser to four presidents, Harvard professor of public service, and political analyst for CNN. And the likelihood that the federal government will get its act together anytime soon is dim.

That’s why state lawmakers can make a huge difference in increasing the public’s confidence in politicians and government, Gergen said. Most good policy has come from the states, and “Americans are depending on state legislators” to make up for the poor leadership shown in our nation’s capital, to champion bipartisan cooperation, to keep the country’s governance vibrant, to stand up to the partisan ideological fights that end up hurting everyone, he said.

He recounted his days in the White House serving presidents from both parties. That generation, which served in World War II, placed their loyalty to America above their loyalty to party and ideological stances. “They were strong Democrats. They were strong Republicans. But above all they were strong Americans. They served not for ideological reasons, but to solve problems. They focused on bipartisan solutions.” You couldn’t tell the Ds from the Rs, he said.

He contrasted that kind of commitment to service with the divisiveness shown by today’s baby boomer politicians, who grew up in the tumultuous ’60 with a war that divided rather than united. Add to that all the social change of the time that divided people between those who held to the “old values" from those embracing the “new values” and it is no wonder this generation is dysfunctional and can’t compromise, he said.

Although his assessment of the current state of federalism was dismal, he cited some reasons for hope:

• The real possibility of achieving energy independence.
• The technological innovation of Americans that is second to none.
• The wonderful qualities shown by our nation’s youth, the “finest people since the WWII generation,” he said.
• The willingness of young veterans returning from current conflicts to ask, “How can we continue to serve our country here at home?”

Gergen’s remarks reflected the theme of the Summit: Build Strong States. After a standing ovation, those who heard Gergen’s talk appeared inspired to go home to lead and strengthen their own communities.

Drones: Eyes-in-the-Skies Raise Issues of Privacy, Profit

By Mark Wolf

Drones are among us, above us and watching us. They come in a variety of sizes, shapes and intended uses. They can watch oil pipelines and peep into private places.

They have been the subject of passed or introduced legislation in most states, much of it centered on the use of drones by law enforcement, with more certain to follow.

The pilotless, flying, remote controlled Unmanned Aerial Systems (UAS) - some large, some toy-sized - were the subject of an All About Drones session during NCSL's Legislative Summit.

"Leave drones out of your privacy laws," urged Eric Johnson, the Lockheed Martin associate professor of avionics integration at Georgia Tech. "If your privacy is being violated, do you care if there is a person in the aircraft or a person holding a camera or a hidden camera stuck to a tree?"

States are elbowing for a piece of a drone research windfall and R. Steven Justice, director ofthe George Center of Innovation for Aerospace, estimated drones would be responsible for 1,949 jobs, an economic impact of $379 million and $3.72 million tax impact in Georgia by 2017.

The "reasonable expectation of privacy" standard in the context of the Fourth Amendment to the U.S. Constitution, is "the worst possible model for state legislators who want to draft effective legisation (regarding drones)," said Morgan Cloud, a law professor at Emory University and a leading Fourth Amendment scholar.

Cloud said the privacy expectation "must be one society thinks is reasonable" which means itis ultimately defined by a majority of Supreme Court justices. "That means it changes over time. Reasonableness is a standard, not a rule. What is reasonable changes over time."

The recently-enacted Texas law, Cloud said, was a good example of using precise language: "The crime under the Texas privacy statute is that a person commits an offense if he uses an unmanned aircraft to capture images of people or property with the intent to conduct surveillance. I suggest to you that most private citizens, lawyers and even some judges can understand this."

Representative Lance Gooden, who authored the Texas law, said "people came out of the woodwork after I introduced it and the final product said if you're going to capture an image you can't do it with the intent to conduct surveillance." Law enforcement agencies opposed the bill, seeking an amendment to use drones "for legitimate law enforcement purposes," which lawmakers determined was too board.

"(Drone) manufacturers wanted an exemption for use during production and development but we said, 'What are you doing that requires an exemption from the intent to conduct surveillance," he said. Some exemptions were granted such as to utility companies to use drones to survey pipelines without bringing vehicles onto private land.

Rep. Shelley Hughes of Alaska sponsored a resolution establishing a task force to study the use of drones.

"I researched the activity that is being done (by drones) and decided a lot of good is being done," she said. "A tanker was guided by a UAS to get fuel to Nome. a downed aircraft was found by UAS. We were able to keep sea lions off the endangered species list because we were able to get an accurate count using drones," she said.

"We need to address privacy concerns but surveying is not the same as surveillance. Privacy became an issue when the first caveman stepped out of the cave. If an action is a crime it's the action itself, not the technology.

"I don't want a small helicopter hovering outside the bathroom window while I'm taking a shower but I also don't want to throw the baby out with the bath water."

Legal experts say gay rights new civil rights

By Mary Winter

Recent landmark rulings by the U.S. Supreme Court hint that, in the judicial sphere, gay rights may be the new civil rights, two legal experts told a gathering of state legislators Wednesday.

Lisa Soronen, executive director of the State and Local Legal Center in Washington, D.C., and Brian Johnson, deputy director of Senate research for the Georgia General Assembly, discussed four Supreme Court decisions affecting the 1965 Voting Rights Act, a University of Texas affirmative action case, the federal Defense of Marriage Act, and California’s Proposition 8. 

Soronen’s organization helps state and local governments with litigation before the U.S. Supreme Court. Since 1983 the SLLC has filed more than 300 amicus briefs in the Supreme Court.

Representative Tommy Reynolds of Mississippi introduced Soronen and Johnson at a session entitled “Supreme Court Key Cases” at the National Conference of State Legislatures’ annual Legislative Summit at the Georgia World Congress Center.

The court expanded gay rights in two separate rulings. In the United States v. Windsor, the court struck down a part of the federal Defense of Marriage Act that prevented same-sex couples from filing joint federal tax returns or from covering their spouses on their health care plans. The court said the provision was unconstitutional because it stepped on states’ rights and it denied gays equal rights. In the second case involving gays, the court dismissed a suit challenging an earlier ruling on California’s Proposition 8, in effect upholding that court’s ruling that the Constitution’s 14^th Amendment guarantees gays the right to marry.

 “Are gay rights the same as civil rights? That’s the big new question,” said Johnson. Expect courts to examine gay rights in light of the 14^th Amendment, the Reconstruction Era legislation that gave former slaves citizenship and equal protection rights, he said.  Johnson predicted “deep conversations” and debates will take place around the issue. States will also have to decide how they will allocate federal benefits such as Temporary Assistance to Needy Families to gay couples, he said.

SLLC’s  Soronen focused more on the court’s decision to strike down a key part of the 1965 Voting Rights Act requiring states with histories of discrimination to get federal permission before changing election laws. In explaining the 5-4 decision, Chief Justice John Roberts said the provision was outdated and violated state sovereignty.

Soronen said Associate Justice Ruth Bader Ginsburg delivered a “beautiful and intelligent” dissent from the bench, alluding to “shameful” current examples of voter discrimination in some states, including one in which a city council simply cancelled an election when an African-American slate decided to run.

Soronen called the Voting Rights Act ruling “the beginning of something huge and new.”  She predicted the country will see more lawsuits alleging voter discrimination and quicker response from the U.S. Department of Justice when states decide to implement new rules such as voter ID requirements, as Texas recently did.

The Fisher v. the University of Texas at Austin case involved a white student who applied for admission based on the state’s affirmative action law. When she was denied, she sued, claiming the school’s use of race in admissions decisions violated the Equal Protection clause of the 14^th Amendment. The Supreme Court remanded the case back to a lower court, but Soronen believes that in the future, affirmative action cases will be harder to win and that the recent decision was “a victory for those who want to take race out of the equation.”

The court’s recent path, she said, has some people wondering “if we’re seeing the end of the race-focused civil rights movement.”

Former President Jimmy Carter Captivates State Legislators

 

Credit: Realclearpolitics

"After my two terms in the Georgia state Senate, I went on to a couple of lesser offices," joked Jimmy Carter, 39th president of the United States and former governor of Georgia. He spoke yesterday to an audience of state legislative leaders, members of the NCSL Executive Committee and international delegates at the beautiful Carter Center in Atlanta during NCSL's Legislative Summit.

 

The audience listened with the reverence due to a former president and with admiration for his dedication to international diplomacy in the 33 years since he left office. Some disagreed with his interpretation of history, but there was universal respect for his outstanding public service.

The spry and lively 88-year-old former president summarized the work of the Carter Center: working with countries that do not have diplomatic relations with the United States but have critical human rights issues, monitoring elections in emerging democracies, treating neglected tropical diseases, and improving mental health programs (an initiative of First Lady Rosalynn Carter).

In regard to the election monitoring activities of the Carter Center--in 94 countries to date--President Carter emphasized the importance of volunteer election observers who spend six to eight days in country before and after an election and encouraged legislators and staff to volunteer. The Carter Center monitors elections only in countries where both the majority and the principal minority parties invite them to do so. He pointed out that the Carter Center's evaluation of the fairness of an election process carries considerable weight in the international community. When President Carter has called out putative election winners for cheating, those winners have often not been able to take office or have had to call new elections.

In a wide-ranging question and answer period, President Carter did not miss a beat as he touched on Canada-U.S. relations, energy policy, and American foreign policy toward North Korea, Cuba and Egypt. Commenting on American politics, he noted that in 1976 election he carried every southern state by a large margin--the last Democrat to do so. He regards the polarization of American politics today as the result of the infusion of money in politics, which is used by candidates on both sides to demonize their opponents, and increasingly sophisticated partisan gerrymandering.

For many in the audience, this session with the former president was undoubtedly a highlight of the 2013 Legislative Summit.

We're listening: Presidential Election Commission Gets an Earful

By Mark Wolf

Fixing the way America runs its elections its elections shouldn't be much of a challenge. Just come up with a national consensus on voter registration, eliminate long lines at polling places, provide more voting options, be wary of reforms that come with political agendas and if you're going to move towards all-mail voting, don't forget about the post office's role.

And get this all wrapped up by Dec. 17 so we have time for holiday shopping.

Three members of the Presidential Commission on Election Administration, which is charged with all that and more, held a 90-minute listening session at NCSL's Legislative Summit and heard from lawmakers, election officials and representatives of voting technology.

Delaware's demographics mirror the United States' almost exactly, which makes the state an excellent litmus test for various programs, said Representative Earl Jaques.

"We've kind of been stuck in the 1940s and 1950s procedures," said Jaques. "This past year we've finally addressed how we would conduct elections during natural disasters. We've just formed an election task force tring to encourage more people to vote because we're appalled at the low percentage of people who vote. We don't have early voting and we're learning how to do no-excuse absentee voting."

His colleague, John Kowalko, said he supported no-excuse absentee voting, "because with the combination of the busy lives of people and getting to that polling place on Tuesday, how difficult is it for poor people to take a day off from work and stand in line. I just heard the Australian election is coming up and they get fined if they don't vote. You can imagine the uproar if we tried to do that here but if we make it more accessible and easir for people I think people going to avail themselves of those opportunities. Any impediment to voting is just non-negotiable.

Erin Seiler of the Oregon Legislature's Committee Services Office, said the viability of the U.S. Postal Service is vital for her state, which votes exclusively by mail.

"We're struggling with what to do if we lose rural mail delivery or even go to four-day delivery," she said. "It would prohibit voting in some rural areas. Washington (state) allows votes to be counted if they were mailed on election day, but we don't. Ours have to be received by election day."

Representative Gary Richardson of New Hampshire spoke in opposition to registration provisions that would force people to register their motor vehicles: "I think it's a way to try to stop college students from voting."

Representative G.A. Hardaway from Tennessee said he considered the lack of voter education to be the root problem with low election turnout: "You have to start with puttihg civics education back in every school and expand them to include of of the voting procedures, techniques, history and law."

Nate Persily, the commission's research director, urged states to forward any information they have dealing with turnout projections, calling accurate turnout predictions the "holy grail" of election administration.