“[Gessler is] deciding he’s going to amend the Constitution. I don’t even think I can do that, and I’m charged with a lot more authority to interpret and apply the constitution than is [Gessler],” Jones said from the bench, according to the Denver Post.

The suit pits the secretary of state’s office against good government nonprofits Colorado Ethics Watch and Common Cause.

Gessler, a longtime opponent of strict campaign finance disclosure rules in his career as a private-practice attorney, sought through a rulemaking to raise issue committee donation reporting thresholds set by voters in 2002 when they passed Amendment 27.

In November of last year, the Tenth Circuit Court of Appeals in Sampson v Buescher decided that the burden of the state’s reporting requirement was too high as it pertained to an issue committee organized around a municipal election. Gessler’s new reporting rule came in response to that decision. It attempted to shift the registration and reporting threshold for issue committees from $200 to $5000. The rule also would have eliminated the requirement to disclose any information about the first $5,000 of issue committee contributions and expenditures.
Ethics Watch and Common Cause asked the court to throw out Gessler’s “breathtaking” rule, as it would effectively destroy issue committees as a category in the state against the will of the people.

Judge Jones did not rule on the case Tuesday but said he would deliver a decision in the case by Thanksgiving.

“It’s breathtaking,” Ethics Watch Director Luis Toro told the Colorado Independent in September. “As a representative of the state, [Gessler] would normally be the defendant in such a case… But he’s effectively asking two private organizations to defend the Colorado Constitution from his complaint. How can he sue two organizations that don’t represent the state?

“Gessler would normally be expected to defend the laws defining issue committees… It’s a legal obligation. He has no authority to file a suit against them.”

Toro said that, as secretary of state, Gessler had to put aside his view of campaign finance law as posing hurdles to public participation and threats to free speech– or at least put it into a context in which he was still able to defend the law as it appears on the books.

Judge Jones echoed that sentiment Tuesday, telling Gessler attorneys that “the side [they] should be on is defending the constitution.”

Secretary of state spokesperson Rich Coolidge told the Post that Gessler was acting to defend the state against lawsuits. He said the Sampson case, for example, cost the state more than $600,000.

Last month another district judge, Brian Whitney, ruled against Gessler in a high-profile election-law case. Gessler sought an injunction against Denver county– and by extension all counties in Colorado– to stop Clerk Debra Johnson from sending ballots to legally registered voters who failed to cast votes in the 2010 general election. A final ruling on the new interpretation of state election law Gessler proposed in that case is likely to come in the spring. Critics saw Gessler’s rule on ballots and his lawsuit against Denver as attempted vote suppression, along the lines of similar efforts waged by Republican officeholders in states across the nation in advance of the 2012 presidential election.

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The Huffington Post reports:

At 9:37 a.m. on Tuesday, a Service Employees International Union (SEIU) staffer in Ohio received a robocall message inaccurately telling voters the election was “tomorrow.”

“Hi, I am calling to remind you that tomorrow is Election Day,” said the voice on the message. “It is critically important that you go vote and protect the future of our country. Tomorrow, please go to the polls and vote YES on Issue 2, and vote YES on Issue 3. Paid for by American Future Fund and not authorized by any candidate or candidate committee. 866-559-5854.”

Voting yes on Issue 2 means voting in favor of SB 5, Gov. John Kasich’s anti-collective bargaining law.

The calls were paid for by the American Future Fund, a group that spent millions in the 2010 elections supporting conservative candidates, including Rep. Tim Walberg. The group denies that the calls were intentionally send out on Tuesday:

Mandy Fraher, a spokeswoman for American Future Fund, acknowledged that automated phone calls were being made on Tuesday telling recipients that the election was being held “tomorrow.” She insisted that the mix-up was due to “gross incompetence on behalf of the phone vendor” and that the group was “working to correct that problem immediately.”

“As soon as we realized the problem we stopped those calls and we started calling those people back who received a call to inform them that today is Election Day,” said Fraher.

Michigan is likely to face a similar repeal election next November on the Emergency Manager bill; opponents of that bill say they are 80 percent of the way to get the signatures necessary to put that repeal on the ballot.

Michigan is notorious for the huge role that secret cash plays in elections, and the top item on the list of grievances and demands produced by Occupy Detroit is controlling money in politics.

In this state, outside (non-candidate) groups can spend unlimited amounts of money on “electioneering communications” that advocate for or against a candidate but don’t explicitly tell people how to vote, and those groups are not required to file campaign finance reports with the state.

The lack of reporting on the financing of issue ad represents a “gaping hole” in the Michigan‘s disclosure laws, according to the National Institute for Money in State Politics, which recently published a survey of state campaign finance laws.

The non-profit, non-partisan Michigan Campaign Finance Network gathers information about campaign-related ad buys from the public records of television stations that show which organizations paid for ads but don’t provide information about where that group got the money.

According to MCFN, secretly-funded television issue ads now make up the bulk of the election-related ads viewed by state voters.

Groups that are exempt from disclosure rules spent nearly $70 million on races for Michigan Supreme Court, governor, secretary of state, and attorney general over the last decade, MCFN found. In the general election last year 72% of TV advertising was undisclosed.

Last year’s state supreme court race featured $23 million dollars worth of secretly-financed advertising for and against candidates.

The top vote getter in the 2010 Michigan Supreme Court race was Third Circuit Judge Mary Beth Kelly who, according to MCFN, did not spend any of her own campaign money on TV ads but benefitted from millions in ads bought by the Michigan Republican Party and the Michigan Association of Realtors.

“Michigan has become a national symbol of special-interest pressure on our courts of law,” Bert Brandenburg, executive director of the Justice at Stake Campaign, a nonpartisan legal reform group said in a statement.

According to a report released last week by the Justice at Stake Campaign, the Brennan Center for Justice at NYU School of Law, and the National Institute on Money in State Politics, the Michigan Supreme Court race in 2010 was by far the most expensive in the nation.

According to that report, an advertising blitz that involved an estimated $6.8 to $8.8 million in non-candidate, disclosure-exempt funding helped elect Justice Mary Beth Kelly and reelect Justice Robert Young and tip the balance of the court back to a 4-3 conservative majority.

Most of the special-interest spending in Michigan was concealed from the public, a fact that accounts for the variation in estimates of total spending. Although ads by both parties and the [Law Enforcement Alliance of America] LEAA were blatant attempts to sway votes, Michigan’s outdated disclosure law treated them as apolitical “issue ads,” and required no campaign finance filings disclosing the amounts spent. Estimates of total spending therefore were largely based on the volume of TV ads each group ran, and estimates of what that airtime cost.

It also was impossible to decipher who ultimately bankrolled independent efforts in Michigan. After being the preeminent player in the previous five supreme court campaigns, the state Chamber of Commerce sponsored no television advertisements in 2010. But it did give $5.4 million to the Republican Governors Association (RGA), a national campaign organization. The RGA ultimately transferred $5.2 million back to Michigan’s Republican Party, which was the leading television sponsor in this year’s high court campaign. Accountability was lost in the face of the RGA’s massive national shell game.

While secret funding of any political campaign is problematic — particularly as elected officials advance privatization and business tax cuts as solutions to the state’s budget problems — secret funding of judicial races is seen as especially troublesome and there are signs that there is broad support for campaign finance reform, especially when it comes to judicial races.

In addition to the Occupy Wall St. movement, some the of the state’s largest papers have editorialized in favor of requiring disclosure.

A 20/20 Insight LLC poll conducted this month found that 96 percent of respondents believe that campaign contributions can influence a judge’s decision, and 93 percent said that judges should not hear cases involving a major contributor. 84 percent supported requiring that all contributions to a judges campaign be quickly disclosed and posted to a web site. 66 percent said they believe that there are two systems of justice in the U.S. — one for the rich and powerful and another for everyone else.

Cleaning up Michigan’s elections could be achieved through some simple reforms, according to MCFN. All that’s needed is for the legislature to amend the Michigan Campaign Finance Act so that it includes electioneering communications.

Electioneering communications should be defined to include any broadcast, cable, Internet or telephonic communication that features the name or image of a candidate for state or local office within 60 days of an election involving that candidate. Any committee or corporation that sponsors electioneering communications must disclose the donors whose funds the sponsor is aggregating to pay for its communications. Any committee or corporation that is a contributor to a sponsor of electioneering communications, or a contributor to a contributor, must, in turn, report its donors. No allowance can be given for the “Russian doll” strategy of hiding donors inside shells.

A package of election reforms introduced in the Republican-controlled legislature this month requires more reporting from candidate committees and ballot initiative committees but doesn’t address disclosure for issue ads at all.

As political will for a change in campaign financing mounts, it remains to be seen whether legislators respond to the pressure. Michigan Campaign Finance Network executive director Rich Robinson says such a move could change the business of politics quickly.

“I believe some mega-donors would quit the game if they wouldn’t have anonymity,” he said. “I think other donors’ support would be a liability. Who wants to be known as the drone carrying water for David Koch?”

Scott originally tried to have the entire recall election canceled but the state’s high court rejected that bid. Then he asked them to delay the actual vote until February, which the court has now rejected as well.

“Voters have a right to know who is speaking in the run-up to the elections with regard to candidates and ballot issues,” Assistant Attorney General Andrew Huff told District Judge Jeffrey Sherlock of Helena on Wednesday, according to the Billings Gazette. “That’s a major part of all of these disclosure frameworks. They allow voters to get the information they need, to know who is making expenditures and contributions.”

ExxonMobil oil in the Yellowstone River in Montana.

American Tradition Partnership (ATP), formerly known as Western Tradition Partnership (WTP), is challenging three different Montana election laws, including disclosure requirements, donation limits and a ban on corporate campaign spending. Huff asked Sherlock to reject ATP’s request to declare the long-standing laws unconstitutional.

An attorney for ATP, Jim Brown of Helena, told the judge, “We have the right to make sure constitutional laws are being applied and the commissioner (of political practices) followed the correct process and applied correct Montana laws.” Judge Sherlock reportedly will rule on the case at a later date.

ATP’s Colorado ties run deeper than first being registered in this state in 2008 by Republican operative Scott Shires. The group ran notorious campaign fliers targeting state Sen. Gail Schwartz, D-Snowmass, in the 2010 election, prompting calls for tougher state campaign disclosure laws aimed at 501(c)4 groups. And it filed suit challenging Colorado’s renewable energy standard, which is one of the most aggressive in the nation and has been repeatedly championed by Schwartz.

Last year, then Montana Commissioner of Political Practices Dennis Unsworth ruled that WTP’s campaign of anonymous fliers targeting Democrats and some moderate Republicans seeking state legislative offices “raised the specter of corruption” and should be the subject of a formal complaint by the attorney general’s office. The Montana AG wants Judge Sherlock to reject the group’s attempts to have the complaints thrown out and to allow the cases to go to trial.

Last summer, in the wake of a massive ExxonMobil pipeline failure that spilled oil into the Yellowstone River, ATP Executive Director Donald Ferguson flew to the site of the spill to defend the company’s actions and decry environmentalist complaints.

One of the property owners impacted by the spill was a moderate Republican who still has a complaint pending against WTP for fliers mailed out during her 2010 bid for the state legislature.

Unsworth, in his report on the group last year, cited its actions in a 2008 Garfield County commissioner race in Colorado, where two Democrats were defeated by an influx of oil and gas money. WTP sent out mailers in that race, and Shires was fined for campaign finance violations and defended by former conservative election attorney Scott Gessler, who is now Colorado’s secretary of state.

Under the current rules a voter can only get an absentee ballot if they certify that they are 60 or older, expect to be away while polls are open, are physically unable to get to the polls, in jail awaiting arraignment or trial, can’t attend for religious reasons, or will be working as a election official in another precinct.

People who vote absentee for these reasons can order their ballots by mail or online.

About a quarter of all votes in the last two general elections were cast on absentee ballots, according to the Secretary of State’s office.

Democrats, voting rights advocates and local election officials have long pushed for no-reason absentee voting as a way to make it easier for more people to participate in elections.

Under laws proposed by Sen. David Robertson (R-Grand Blanc Township) and Rep. Cindy Denby (R-Handy Township) last week all voters would qualify to vote absentee but if they don’t claim one of the already-permitted reasons they would have to pick it up the ballot in person and show photo ID at their local clerk’s office.

Jan BenDor, former Pittsfield township deputy clerk and spokesperson for the Michigan Election Reform Alliance, questions why certain groups of absentee voters should be treated differently.

“Is there a problem with voters who request absent voter ballots doing so fraudulently?” she asks. “What evidence is there? Why would ‘no-reason’ AVs present a new problem of fraud?”

She continued.

In Michigan, your identity for elections purposes has always been your signature, signed in the presence of a sworn election official. This is a very secure system, and it is very hard to put a forged signature past election administrators. Most of them are experts in handwriting identification. My staff could tell the difference between signatures of father and son, with the same name, when they accidentally switched the return envelopes for their AV ballots.

The signature as basic ID, by the way, is the reason you cannot register by mail and immediately apply for an absentee ballot or sign any petitions. You must first vote in person at an election, where you sign your name before a sworn official.

Since the courts overruled the opinion of former AG Kelley that a photo ID requirement was unconstitutional, Michigan has required photo ID at the polls. However, replacing the signature match with a photo match is a poor exchange. It is relatively easy to get a fake photo ID (ask any teenager) and most election workers have a tough time figuring out if that low quality DL photo is really you. (I had a photo that was completely orange.)

Johnson’s proposal would seem to create a double identification requirement for absent voters who wish to skip the reason check box — they would have to match signature AND photo. Why is this useful, when all they have to do now is mail in the application with a signature, and check a box.

Jocelyn Benson teaches election law at Wayne State University and advocated for no-reason absentee voting as the Democratic candidate for Secretary of State in 2010.

“This law sets up a system of preferential treatment for voters who are able to jump through additional hoops to receive their absentee ballot, and may lead to unfounded and unwarranted suspicion of voters who are unable to jump through these hoops,” she said. Benson says we should be “making it easier for all Michigan voters to ensure their voice is heard on Election Day, not just a select few.”

Most states already have no-reason absentee voting and most, if not all, allow people to request their ballots by mail, said Daniel Tokaji, senior fellow of election law at The Ohio State University’s Moritz College of Law.

Requiring some people to pick up their ballots in person “significantly limits the utility of no reason absentee ballots,” he said.

Tokaji said that it is “not entirely irrational” for the state to attempt to impose some safeguards to prevent absentee voting fraud.

“I don’t want to present the misleading idea that voting fraud is common,” he said. “It’s not, but in those instances where voter fraud has been demonstrated it almost always involves absentee ballots.”

Tokaji said that he’s been worried about expanding absentee voting because people tend to make a lot of mistakes when they vote absentee.

“I think in person early voting is a better solution because election officials are there to help you,” he said, “but election officials don’t really like it because it is more work for them, they’ve got to keep a polling place open for several days. Election officials like no reason absentee voting because it takes the pressure off without a lot of new costs.”

The sponsors of the bills to create a new no-reason absentee voting system — Sen. David Robertson (R-Grand Blanc Township)and “Rep. Cindy Denby (R-Handy Township) — did not respond to requests to talk about the measures.

Calls for transparency and other reforms to Michigan’s redistricting process were ignored this year, as the Legislature went about the business of drawing political maps in the usual secretive fashion.

Maps for Michigan’s new Congressional and State legislative districts were signed into law in August and will remain in place for a decade. But the League of Women Voters of Michigan (LWVMI) and other public interest groups say that efforts to reform the process must not end.

The League helped to found a coalition of nonprofit groups, the Michigan Redistricting Collaborative, to advocate for transparent redistricting with meaningful opportunities for public involvement. Redistricting committees in the House and Senate held a series of hearings and citizens had the opportunity to testify, although the maps adopted by the Legislature were not revealed until the day they were brought to a vote in committee.

“We knew the prospect of major change was unlikely this year, when legislators had a direct stake in the outcome” says Sue Smith, LWVMI President. “But now, with the benefit of recent experience and the stakes deferred for a decade, we should be able to have constructive dialogue about how to do it better next time.”

LWVMI and The Thomas M. Cooley Law School are sponsoring Redistricting: Not Just for Insiders, on Wednesday, October 19, to review Michigan’s current redistricting methods and present alternative approaches. Joining League President Smith on the panel are State Representatives Rashida Tlaib and John Walsh, former League of Women Voters U.S. President Mary Wilson, and Jeff Guilfoyle, President of the Citizens Research Council of Michigan. Former State Representative Lynn Jondahl will moderate the discussion.

“We are going to continue the conversation and work for a process that allows voters to choose their representatives, rather than the other way around,” says Smith.

The forum will take place from 6:30 to 8:30 pm at the Cooley Law School Center, 300 S. Capitol, Room 911 (9th floor), in Lansing.

Sen. Dave Robertson (R-Grand Blanc) has introduced a bill that would require the Secretary of State to create a new “inactive voter” file of those who haven’t voted in the last six years and would automatically challenge ballots from people on that list if they vote via absentee ballot.

The measure is described as a matter of “ballot security” in an overview provided by the office of Secretary of State Ruth Johnson, who supports the measure.

Robertson’s bill also creates new rules for removing voters who get drivers licenses in other states.

According to the new law, if the Dept. of State learns that a Michigan resident has received a drivers license elsewhere, it will send a notice to that voter asking her to verify that she has not moved out of state. If the voter does not return the letter she will be removed from the voter rolls if she doesn’t vote in the next two general elections.

Former Secretary of State Terri Lynn Land had a policy of automatically removing voters who get licenses elsewhere. This practice was ended under a settlement in federal court in 2010.

Voting rights groups say that this removal program had a particularly detrimental impact on students and minority and low income communities because students often have divers licenses from other states and students and poor people tend to move more, making it more difficult to reach them by mail.

At a press conference announcing the proposed reforms this week Secretary of State Ruth Johnson said they she wants the federal government to help Michigan ensure that no non-citizen can vote.

Johnson has initiated a new policy that requires branch office workers to tell people that only citizens can vote before offering voter registration materials, and although election officials have no evidence of voting by non-citizens, Johnson said that she is concerned that thousands of non-citizens may be on the voter rolls.

Other Republican reforms introduced this week include a law that makes failure to file campaign finance reports a felony if a candidate has more than $20,000 and limits the use of campaign funds for legal defense.

A bill by Rep. Sharon Tyler (R-Niles) would amend the Campaign Finance Act to require quarterly filings by approved ballot question committees that have raised or spent expended at least $500 and requires disclosure of financing for new political parties.

Spokeswoman Gisgie Gendreau said that Johnson wants to use federal Homeland Security, Social Security and immigration databases to help us remove noncitizens from the rolls but that these agencies have not responded to her requests for access to their databases.

Gendreau said that Johnson is working with U.S. Rep. Candice Miller (R-Harrison Township), a former Michigan Secretary of State, on a way to require the federal government to share citizenship status information. But in a 2004 federal court ruling, Judge David Lawson cited Miller and other officials to show that there was no evidence of voter fraud in Michigan:

Preventing election fraud and preserving the “purity of the ballot box” certainly is a legitimate State interest. However, Michigan enjoys an election history that is relatively fraud-free. In 1997, Michigan’s attorney general stated that “as the chief law enforcement official of the State of Michigan, I am not aware of any substantial voter fraud in Michigan’s elections. I have not received complaints regarding voter fraud. Moreover, the state’s chief elections official, Secretary of State Candice Miller, confirmed the fact that Michigan does not have a voter fraud problem when she stated: “We have no real evidence of voter fraud in Michigan. Michigan has historically had very clean elections.”

Last year, the Messenger contacted county and state election officials and found none who could recall even a single incident of actual voter fraud in the state of Michigan. That includes elections officials in Oakland County, where Ruth Johnson was the clerk before being elected Secretary of State. The spokesperson for the office she currently holds told the Messenger, “If you’re talking about actual in-person voting at the polls as opposed to bad registration cards, I’d have to say no. I’m happy to say we’re a very clean state.”

These new restrictions fall most heavily on young, minority, and low-income voters, as well as on voters with disabilities. This wave of changes may sharply tilt the political terrain for the 2012 election. Based on the Brennan Center’s analysis of the 19 laws and two executive actions that passed in 14 states, it is clear that:

• These new laws could make it significantly harder for more than five million eligible voters to cast ballots in 2012.
• The states that have already cut back on voting rights will provide 171 electoral votes in 2012 – 63 percent of the 270 needed to win the presidency.
• Of the 12 likely battleground states, as assessed by an August Los Angeles Times analysis of Gallup polling, five have already cut back on voting rights (and may pass additional restrictive legislation), and two more are currently considering new restrictions.

States have changed their laws so rapidly that no single analysis has assessed the overall impact of such moves. Although it is too early to quantify how the changes will impact voter turnout, they will be a hindrance to many voters at a time when the United States continues to turn out less than two thirds of its eligible citizens in presidential elections and less than half in midterm elections.

There are no such bills either passed or pending in Michigan right now, but voting rights groups say the state is violating federal law by not adequately enforcing current law that requires voter registration services be made available at all public assistance offices.

In a web seminar sponsored by the Business Ethics Network last week, groups concerned about the role of money in politics gathered to review strategies for increased disclosure.

Norm Ornstein, a scholar with the American Enterprise Institute, who once helped craft the McCain-Feingold campaign finance act, said that he was struck and “even a little bit heartened” by the fact that Sarah Palin railed against crony capitalism during her Labor Day speech in Iowa saying, in effect, “what do we suppose those fat cats want for their money?”

“It suggests to me,” Ornstein said, “that there is at least a glimmer of a possibility that we might be able to build a very unusual type of coalition against what has become an utterly appalling landscape of influence peddling by enormous monied interests and more and more overt, almost shakedown schemes by political figures to get the money they want from corporations and individuals.”

The Citizens United decision did not strike down any rules that require disclosure of political spending, but loopholes in the tax system and lax campaign finance rules allow corporations to give money in ways that are very hard to track, disclosure advocates say.

According to an analysis by the Center for Responsive Politics in the 2010 election 67 percent of all outside (non political party) spending came from groups that had been freed to contribute by the Citizens United decision with non-profit 501(c) groups dominating spending on election ads.

IRS rules state that 501(c)(4) groups don’t have to name their contributors as long as electioneering is not their primary purpose, but this can be difficult to enforce in a meaningful way. Groups can form and carry out campaign work and then later switch to other activities so that political projects don’t appear to dominate their activities.

With Congress deadlocked over most issues, campaign finance reform advocates say it’s more prudent to focus on promoting regulatory measures that could increase disclosure.

One possibility would be to get the IRS to enforce its requirements for 501(c)(4)s. Another would be to get the Securities and Exchange Commission to require publicly traded companies to report their political spending to shareholders.

Aside from the way it could corrupt the political process, experts point out, unregulated corporate spending on politics poses risks for company shareholders.

Ten corporate law academics recently petitioned the SEC to adopt rules to require that corporations communicate with shareholders about political use of corporate funds.

The idea has support from major institutional investors including the International Corporate Governance Network, which represents $18 trillion in assets.

Any rule change at SEC will be a time consuming process. In the meantime some groups are trying to get corporations to voluntarily release information about their political spending.

Since 2003 the Center for Political Accountability has been working to get companies to establish rules for disclosure of political spending and shareholder oversight.

Valentina Judge of CPA said that such resolutions are good business practices that can protect companies from embarassing contributions that can cause reputational damage.

The Target corporation learned the pitfalls of political donations last year, she pointed out.

The company endured bad press and boycott threats after it made a $150,000 donation to a group that supported a candidate opposed to gay rights.

CPA is preparing to release an index of corporations that have adopted policies on corporate spending.

It’s urgent that groups focus on disclosure strategies that could work fast, said Craig Holman of Public Citizen.

“We just was a 427 percent increase in outside spending in the 2010 election,” he said, “This is a phenomenal increase … and this was just a test run, a trial. Corporations and CEOs were just starting to get involved and were pretty cautious.”

In the 2012 elections, he said, “I believe we are going to see numbers that are off the charts.”

The only thing that could force more disclosure right away would be an executive order from President Obama, he said.

“We need President Obama to step up to the plate and sign an order requiring enhanced political disclosure for contractors to show that contracts are being based on merit and not contributions.”

Another short term effort could involve getting the president to appoint Federal Elections Commissioner who would work to require funding disclosure on television ads, said Meredith McGehee of the Campaign Legal Center.

The most pressing need, however, she said, is is a public education campaign to translate the current situation around corporate funded politics into terms that meet average Americans.

“You have to build a public base before you can get into specific answers,”
she said. “The pot is not yet boiling.”

“The reality is that the other side that is supporting this outcome is outgunning the reform community and those that see the problem by a million to one,” she said. “It doesn’t mean give up. It means you’ve got to start thinking about 21 century solutions and approaches.”