The Center for Civic Policy, a 501(c)(3) organization in New Mexico, distributed a series of mailers regarding the voting records of some members of the state legislature months before the June 3 primary. After losing the primary election, three lawmakers have sued Aug. 1, asserting that the group committed fraud in the financing of campaigns against them, alleging that the group's efforts crossed the line into political activity. They also want the group to register as a political action committee to fully disclose its funders. Meanwhile, New Mexico Attorney General Gary King asserted that the activities crossed the line into campaigning and requested the Secretary of State require them to register as a political committee.

"There's an old saying that if it walks like a duck and quacks like a duck, then its probably a duck," say AG King. "And I think we know a duck when we see one."

And reportedly, the Secretary of State now agrees.

The executive director of the Center for Civic Policy Eli Il Yong Lee, stated; "Any effort to restrict this legal activity would muzzle New Mexico nonprofits from doing the very important job of keeping public officials accountable."

The Voter Rights Protection Project, which was recently launched by the Campaign Legal Center, provides legal documents to help protect the right to vote. According to the Campaign Legal Center, the Project provides "generic drafts of potential court filings to individuals, organizations, and political parties who must resort to the courts to protect the fundamental rights of citizens to vote." The templates are publicly available, and information about the Project has been sent to the leaders of both major political parties, as well as to the campaigns of the presumptive presidential nominees for both major political parties.

The template will enable individuals, advocacy groups, political parties, and candidates to seek legal recourse for any problems that occur either prior to or during the election.

"When things go wrong on Election Day, as they sometimes do, citizens deserve legal recourse to ensure their voting rights are protected and their votes are counted," said J. Gerald Hebert, Executive Director and Director of Litigation for the Campaign Legal Center.

Interested parties can access the templates on the Campaign Legal Center's website in September. They can also send them via email upon request.

A federal appeals court issued a decision in Preminger v. Peake upholding the Veterans Administration (VA) policy that bans voter registration drives in its facilities. The court decided that the rule does not violate the First Amendment.

Four years ago Santa Clara County Democratic Central Committee tried to conduct voter registration at a VA facility and was stopped due to a rule that prohibits partisan political activity at VA hospital. The committee sued in 2004 charging that the policy violated the First Amendment.

The appeals court agreed that voter registration drives could compromise a facilities' ability to provide health care services to veterans. The court decision stated that "allowing one political party access to the Menlo Park campus would invite requests from other political parties to do the same and that supervising numerous voter registration campaigns would be difficult and time-consuming, diverting resources vital to the residents' treatment."

Meanwhile in Connecticut, according to the New Haven Register "Secretary of the State Susan Bysiewicz and state Attorney General Richard Blumenthal declared a victory for democracy when Roger Johnson, administrator for the two federal veterans' medical centers in Connecticut, agreed to allow Byziewicz to conduct a voter education session and registration inside the West Haven facility Thursday. Johnson, however, said Bysiewicz only would be allowed to register in-patients at the hospital and the handful of veterans who live there."

The New York Times features an op-ed written by Bysiewicz in which she bluntly states that because of the VA's policy, "too many of our most patriotic American citizens — our injured and ill military veterans — may not be able to vote this November."

The department offers two reasons to justify its decision. First, it claims that voter registration drives are disruptive to the care of its patients. This is nonsense. Veterans can fill out a voter registration card in about 90 seconds. Second, the department claims that its employees cannot help patients register to vote because the Hatch Act forbids federal workers from engaging in partisan political activities. But this interpretation of the Hatch Act is erroneous. Registering people to vote is not partisan activity."

"The federal government should be doing everything it can to support our nation's veterans who have served us so courageously. There can be no justification for any barrier that impedes the ability of veterans to participate in democracy's most fundamental act, the vote."

For more information, see this latest Watcher article, Voter Registration Barriers Challenged in New Mexico, at Veterans Affairs.

Grassroots activists are urging ex-offenders with felony convictions to vote. A detailed article highlighting the activists' efforts appeared in today's Washington Post. The Post article focuses mainly on efforts to urge ex-offenders in Florida to vote. Ex-offenders in Florida with felony convictions are now eligible to vote thanks to a law passed in 2006, which allows non-violent ex-offenders with felony convictions to vote if they have completed probation, paid restitution, and do not have any charges pending.

It appears, however, that many ex-offenders are not aware of the law. Reggie Mitchell, the former Florida Legal Director of People for the American Way, has been a leader in the effort to make eligible ex-offenders aware that they can vote and urge them to do so.

The Washington Post reports that "[s]ince the law was changed, the ACLU and People for the American Way have been reaching out to ex-offenders through Web sites that help people figure out whether the state [of Florida] has acted on their cases. Mitchell oversaw the project that helped build the foundation's Restore My Vote site (http://www.restoremyvote.org) ."

Similar efforts have occurred around the country. Every state except for Vermont and Maine limit the voting rights for individuals convicted of a felony. Kentucky and Virginia deny the right to vote to all individuals convicted of a felony. The laws of the other states vary and fall between the two extremes.

On April 28, 2008, the Brennan Center, filed a lawsuit on behalf of the League of Women Voters (LWV) of Florida, the AFL-CIO of Florida, and the American Federation of State, County and Municipal Employees (AFSCME) Council 79, challenging a revised Florida voter registration law that imposes excessive fines on voter registration groups and risks preventing eligible Florida citizens from registering and voting in the 2008 elections. The law does not have any exceptions for innocent mistakes or potential state misconduct.

The law creates a punishing and complicated tiered regime of deadlines and fines: $50 fines for each form turned in more than 10 days after collection; $250 for each form turned in past a registration deadline; and $500 for each lost form. The fines apply to each and every form that is lost or late. The fines are $250, $500 and $1000, respectively, for any group or individual found to have done any of the above willfully. Plaintiffs argue that even with reduced—but significant—fines, the law is so vague that its cumulative effect could be just as risky to non-profit voter registration groups largely operated by volunteers as the earlier version of the law.

The LWV sought a preliminary injunction to prevent the Secretary of State from enforcing the law. They argue that the law continues to be too vague and does not provide sufficient information of its enforcement. "Amended Law has impermissibly 'chilled' their First Amendment rights and will negatively affect general voter registration and, in particular, will affect those who rely on Plaintiffs to participate in the political process most harshly, such as disabled persons and members of low-income communities." Their request for a preliminary injunction was denied on Aug. 6.

The court argues that the revised version of the law should ease the parties' complaints. According to the court, the changes made to the law "substantially reduce the alleged burdens imposed on Plaintiffs' First Amendment rights." The court further argues that the law is in the best interest of the state; "ensuring voters are properly and timely registered, Florida's interests in protecting its voters are equally impaired by unintentional or negligent mishandling of registration applications."

The U.S. 9th Circuit Court of Appeals heard oral arguments in Canyon Ferry Road Baptist Church v. Unswort, a challenge to Montana's election campaign reporting laws. The Canyon Ferry Road Baptist Church held an event in May 2004, and during which the Rev. B.G. Stumberg urged parishioners to sign petitions at the church in support of a constitutional ban on gay marriages. Advocates filed a complaint arguing that the church inappropriately held an event to support a political cause subject to the state's political contribution reporting requirements. The Montana Commissioner of Political Practices had previously ruled that the church should have reported its activities to get voters to pass a constitutional ban on gay marriage.

Reportedly; "Lawyers for the church filed a lawsuit in federal court, arguing the parishioners' rights to free speech and religious expression under the First and Fourteenth amendments were being trampled by the 'vague' and 'ambiguous' election laws."

A new 527 group called The Real Truth About Obama, Inc. ("RTAO"), has filed a lawsuit in federal court against the Federal Election Commission (FEC) and the Department of Justice to prevent them from enforcing FEC reporting rules for political committees. RTAO plans to run issue ads examining the Democratic presidential candidate's position on abortion and other policy positions issues.

The group's lead attorney, Jim Bopp Jr., won the Wisconsin Right to Life (WRTL) case last year against the FEC. Bopp argues that this 527 should not have to disclose their activities with the FEC, including independent expenditures and electioneering communications. The group registered with the FEC on July 29.

According to a press release from the James Madison Center for Free Speech; "Its first project is about Obama's radical pro-abortion views and voting record. However, RTAO fears that it will be deemed a federal PAC, if it does the project, because of the FEC's enforcement actions arising out of the 2004 election where various issue-advocacy 527s, such as the Swift Boat Veterans for Truth, were fined for failure to register as a federal PAC, even though they only engaged in issue advocacy."

RTAO's abortion information project includes a website, www.TheRealTruthAboutObama.com, and a radio ad called Change. The website is not operational due to the FEC's enforcement policies that prevent RTAO from raising money for the project. The lawsuit challenges this rule. The Change ad does not have any express words of advocacy of his election or defeat, such as "vote for" or "defeat."

It seems a bit peculiar that the group is arguing that it will only engage in legitimate issue advocacy, yet plans to focus on the public policy positions of one candidate, Barack Obama. That in itself suggests that the content could possibly be interpreted as an appeal to vote for or against a candidate. Even though in RTAO's lawsuit, they extensively cite WRTL, it was in that case that the Court decided that an ad can be regulated "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

RTAO challenges the FEC's "express advocacy" definition. "[T]he FEC continues to enforce its vague and overbroad rule defining 'express advocacy,' even where the communication does not contain such explicit words. If an ad is deemed to contain express advocacy, it becomes an 'independent expenditure,' which is forbidden to corporations, such as RTAO, must be reported to the FEC, must contain a disclaimer, and can trigger PAC status."

An article from MSNBC's online magazine, Contribute, discusses the ways that 501(c)(3) organizations, according to the report, actually engage in illicit campaign intervention.

The report argues that partly because of the Internet, the line between issue advocacy and illegal partisan electioneering becomes crossed more often and easily. "[I]t's OK to put on such events as a voter registration drive or voter forums - or a get-out-the-vote push, as long as all are nonpartisan. Clearly, some issues and causes are aligned more with one party than another - Al Gore and global warming, or George Bush and troop support in Iraq, for starters."

As they should, "501(c)(3)s are considering their potential for political advocacy. [. . .] To help Minnesota nonprofits walk the line — and skirt the ban on political activity — this group created the Minnesota Participation Project, a Web site to help the state's nonprofits define and conduct permissible, nonpartisan voter recruitment efforts." Such voter registration activities are a vital characteristic to 501(c)(3) groups.

"But woe to those nonprofits that go too far. Indeed, the difference between issue advocacy and political intervention can get pretty murky sometimes — and there's a need for clarity that has become especially urgent in this era of instant communication."

Referencing the NAACP and the All Saints Episcopal Church cases; "the IRS actions sent a stringent — albeit mixed - message to the nonprofit community."

The Brennan Center for Justice, along with pro bono law firms filed a lawsuit in Albuquerque challenging a New Mexico law that makes it difficult for groups to conduct voter registration drives. According to the press release, the state law is "an unconstitutional burden on free speech and association by impeding civic groups from helping eligible voters to register."

"Plaintiffs typically register thousands of New Mexico citizens (especially low income, minority, disabled, and young citizens) to vote but have suspended or dramatically curtailed their operations as a result of the challenged law."

The New Mexico law in contention requires that before registering voters, every volunteer or employee has to first pre-register and submit an affidavit to the state and, in some counties, go through an in-person, hour long training. The training is conducted only during business hours and only a few times a month. Completed registration forms must be returned it to county or state officials within forty eight hours, and any "intentional" violation of these rules may be punishable with a jail sentence. Most alarming, no extenuating circumstance, such as a hurricane, will excuse a failure to submit a completed form within forty eight hours, bringing along civil penalties of up to $5,000.

The lawsuit was filed on behalf of four organizations, the American Association of People with Disabilities (AAPD), the Federation of American Women's Clubs Overseas Inc. (FAWCO), New Mexico Public Interest Research Group (NMPIRG), and the Southwest Organizing Project (SWOP). Plaintiffs ask that the 2005 law be declared unconstitutional and that the Secretary of State be barred from enforcing it.

Non-profit organizations like ours rely extensively on volunteers to help when they can, but if the act of volunteering becomes a complicated and risky activity that could land you in jail, there won't be volunteers," stated Robby Rodriguez from SWOP.

After many years, the issue of allowing voter registration at Department of Veterans Affairs (VA) facilities is slowly gaining support. The VA announced that it would assist veterans with voter registration and permit voter registration drives by groups that were vetted by the agency's attorneys, and then reversed this policy within two weeks. Fortunately since then, Members of Congress and some voting rights advocates have been objecting to the VA's policy.

Now, after Veterans Affairs Secretary James B. Peake continues to deny the request to designate VA facilities as voter registration agencies, legislation has been introduced that would require the VA to make voter registration services available at its facilities in states that request it, under the National Voter Registration Act. That includes providing registration forms, answering questions on registration issues and assisting with submitting voter registration forms, including absentee ballots. The bill also would allow nonpartisan groups and election officials to provide voter information and registration information to veterans and require an annual report to Congress.

S.3308 has been introduced by Senator Dianne Feinstein (D-CA), along with Senators Hillary Clinton (D-NY), John Kerry (D-MA), Patrick Leahy (D-VT), Patty Murray (D-WA), Barack Obama (D-IL), Harry Reid (D-NV), Charles Schumer (D-NY), and Ron Wyden (D-OR) all co-sponsoring the measure.

Senator Kerry (D-MA) said, "It shouldn't have taken a legislative solution to fix a bureaucratic problem, but that's what it's come down to in the name of common sense and patriotism."

Alternet reports that, "two dozen top state election officials - from both parties - have signed a letter urging the VA allow voter registration drives." In addition, on Monday July 21, the American Association of People with Disabilities (AAPD), Common Cause, Demos, and the League of Women Voters urged Peake to approve future state requests to allow voter registration at VA agencies and offices. Senator Daniel Akaka (D-HI), chairman of the Senate Veterans Affairs Committee, has also been very vocal. Akaka wrote to Peake contending the argument that such activity on VA property would violate the Hatch Act; "the Hatch Act does not prohibit outside groups, partisan or otherwise, from registering voters at a VA facility if federal employees do not participate.

The Tampa Tribune has reported on Florida's noncompliance with the National Voter Registration Act's (NVRA) requirement that voter registration be provided at public assistance offices. "Florida is failing to help low-income residents register to vote when they sign up for public assistance, say voting rights advocates who may sue over the issue. [. . .] In January, lawyers for three national advocacy groups - Project Vote, ACORN and Demos - complained to Secretary of State Kurt Browning that the number of voter registrations received through Florida's public assistance agencies has plummeted since 1995."

According to Florida Division of Elections data, public assistance agencies turned in 9 percent of voter registrations received in 1995. By 2007, they were contributing 1.8 percent. By 2007, agency registrations had dropped from 120,886 to 10,470. Meanwhile, enrollment in Florida's assistance programs has remained relatively steady.

In addition, we have been following Florida's restrictions on voter registration drives, and the Florida Times-Union reports; "Voter registration drives statewide are under fire from a new state law that establishes stiff fees for groups who undertake them." The League of Women Voters is challenging that law, which a federal judge has until mid-August to decide on.

The Baltimore Sun has highlighted the National Association for the Advancement of Colored People (NAACP) and the fact that it is not allowed to engage in partisan politics, not surprising, as all 501(c)(3) organizations are prohibited from doing so. "Individually, many NAACP members have lauded Obama's nomination as a victory for racial progress. But they also say the organization continues to tread a delicate path, careful not to give the appearance of partisanship, especially since it has been accused of being too political in the past." A month before Election Day 2004, the Internal Revenue Service (IRS) initiated an audit of the NAACP's tax-exempt status because of a speech Julian Bond made criticizing the Bush administration. After two years, the investigation was dropped.

"In an election year, criticism of nonprofits typically increases, as does IRS scrutiny," said Gary Bass, executive director of OMB Watch, a nonprofit watchdog organization in Washington. [. . .] "I would say that the IRS has increased scrutiny the last election cycles, in part because of the gamesmanship that goes on - one side constantly filing petitions against the other side," Bass said. He thinks IRS rules are ambiguous. Any objection or complaint triggers an inquiry, which may or may not lead to a full-scale audit. "For groups who talk about critical policy issues, it then means that they are left with uncertainty as to what they can and cannot do," Bass said.

For more information on this topic, see our resource center, IRS Rules on Election Activities of Charities

Philanthropy News Digest had a "5 Questions For" column with OMB Watch Executive Director Gary Bass. The questions addressed nonprofit advocacy, particularly how philanthropic support of advocacy is changing. During which, Bass commends a new report on the topic from Atlantic Philanthropies.

He states that a question that continues to stir confusion is whether you can still lobby if you receive public-sector funds and questions on nonpartisan voter engagement.

I firmly believe that from his bully pulpit, the new president, whether it is McCain or Obama, should strongly encourage nonprofits to be involved in a broad range of advocacy activities. I also think foundations have a crucial role to play in helping nonprofits express their voice and in creating a positive framework for change in America. You can't sustain the kind of change I'm talking about — big-vision change — with bake sales.

The Treasury Inspector General for Tax Administration (TIGTA) has released an audit report addressing improvements in educating and enforcing the prohibition against political activities for tax-exempt organizations. The purpose of the audit was to determine the effectiveness of the Internal Revenue Service's (IRS) Political Activities Compliance Initiative (the Initiative). The audit addressed how effective the IRS is in addressing alleged incidences of political campaign intervention and "whether actions had detected repeated campaign intervention by previously identified organizations."

The audit found that the Initiative could be improved "to ensure that tax-exempt organizations receive timely notification that they might be involved in prohibited political activity. Also, the EO function needs to clarify why certain referrals are not included in the Initiative."

Recommendations laid out in the audit include :

• ensure that all referrals of potentially prohibited political intervention are reviewed in a timely manner.
• Improve the consistent understanding of prohibited political intervention criteria.

The IRS expects an active 2008 election cycle, and will start the Initiative even earlier this year. To read the full report, click here.

It has been two months since the controversial Supreme Court decision upholding Indiana's voter identification law requiring photo ID for anyone casting a ballot. Since the Supreme Court left open as applied challenges in federal court and state constitution challenges, two lawsuits in Indiana have already been filed.

The League of Women Voters of Indiana filed a lawsuit in Marion County against Indiana Secretary of State Todd Rokita. The lawsuit argues that it has the standing to sue on behalf of its members because the statute burdens potential voters and would cause the league to have to spend a great of deal resources assisting voters without the required ID. According to the Indiana Lawyer, "the suit says the 2005-passed Indiana voter ID law violates the Indiana Constitution's Article 2, Section 2, which states citizens only need to meet the age, citizenship, and residency requirements in order to cast a vote in-person. Any change the legislature might make must come through a constitutional amendment, not a statute, which didn't happen here, the suit says."

Co-counsel William Groth said, "It's a strict question of constitutional interpretation. Our argument will turn on whether the voter ID law imposes a new substantive requirement, or whether it's merely regulating the mechanics of the voting process. It's a subtle and nuanced distinction, but our Indiana caselaw supports that this must be a constitutional amendment."

The suit mentions two specific election examples where individuals were restricted from voting because of the ID law, including the famous May 2008 Indiana primary incident when 12 elderly nuns were not even allowed to cast provisional ballots because they didn't have the required ID.

In a separate lawsuit filed in Indiana, Robbin Stewart challenges the law for philosophical reasons. "It's different when going to an airport or driving a car, because those aren't constitutional rights, he said."