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Home / Letters To The Editor / Election-cycle lawyering: opportunity knocks

Election-cycle lawyering: opportunity knocks

By now, most have come to expect (read: dread) the media battles, histrionics, and political ads ubiquitous to an election cycle.

But except when those battles turn into litigation, bubbling to the top of our “What’s Trending” threads, some may forget the sheer breadth of work available to attorneys in election years — particularly presidential election years, like this one.

To illustrate, consider the legal needs of “Super PAC” clients. More formally dubbed “independent expenditure-only committees,” these clients are heavily regulated and face stiff penalties for noncompliance.

As a result, Super PAC clients daily, if not hourly, rely on their attorneys for guidance concerning permissible spending, how to interact with candidates (or not) to ensure compliance with anti-coordination rules, and the necessary contents of FEC 24-hour and monthly expenditure and receipt filings. Committee treasurers must be trained and supervised to ensure compliance with reporting deadlines and contribution and source limits. Super PAC ads must be reviewed before airing to ensure compliance with FCC and FEC disclaimer requirements, the fair use doctrine, and other rules.

Of course, pre-airing compliance work assumes that an FCC licensee has even agreed to air a particular ad. While federal law requires that FCC licensees air candidate ads, the same is not true for Super PAC-sponsored ads. Super PAC attorneys may indeed find themselves having to justify to station managers that their clients’ intended ads are not defamatory or false. And even if successful, those efforts may be rewarded with litigation threats from opposing candidates.

Bear in mind that these activities occur only after an ad-sponsoring Super PAC is first formed and organized — quite another undertaking and legal minefield altogether. And in the event a client’s paperwork or compliance efforts are not entirely successful (or an opponent alleges they weren’t), the attorney’s workload increases.

In the wake of Citizens’ United, under which Super PAC rules remain incredibly gray (a phenomenon only exacerbated by the FEC’s 3-3 continuing gridlock on most issues), FEC complaints against candidates and committees are commonplace. Counsel for clients against whom an FEC complaint is filed have a mere 15 days to review the complaint and file a response (but after meeting this deadline often find themselves waiting for months in a legal holding pattern to learn whether the FEC has decided to investigate the complaint).

Attorneys can face similarly tight deadlines addressing state and local election issues, including emergency candidate-qualification challenges. Consider, for example, the recent Jackson County proceeding concerning Franklin D. Tatro, who in December 2015 had declared his candidacy for Lee’s Summit City Council.

The problem for Tatro, as the Jackson County prosecutor alleged, was his decades-old Class C felony theft conviction, which prevented him from qualifying for public elective office under Missouri statute. Just after noon on April 3, 2016, two days before the Lee’s Summit election and a mere two days after receiving information concerning Tatro’s conviction, the prosecutor’s office filed a Petition In Quo Warranto challenging Tatro’s candidacy.

Later that same day, a Jackson County Circuit Court judge issued a preliminary order in Quo Warranto setting a hearing for the next afternoon. After giving the parties opportunity to present evidence, the court entered judgment the afternoon of April 4, 2016, a single day after the petition was filed, prohibiting Tatro from being sworn in or assuming the duties of office if elected the next day.

Other matters litigated during election cycles, on perhaps less emergent timetables, include ballot-access issues like voter registration and qualification, as well as election-fraud and election-recount matters. Missouri’s initiative-petition process also presents fertile ground for litigation.

According to the Missouri Secretary of State’s website, 90 separate initiative petition versions were approved for circulation for the 2016 election cycle and not subsequently withdrawn. Those petitions propose constitutional amendments and statutory revisions concerning issues as varied as tobacco taxes, medical marijuana legalization, legislative term limits, and the minimum wage.

But of all the petitions approved for circulation, none have yet been certified for the November ballot, and only a handful reportedly met the May 8 deadline for submitting signatures for certification.

Others failed to garner sufficient signatures or to withstand administrative or judicial scrutiny. The most visible hurdle for initiative petitions is the circulation process itself, which not infrequently involves Missouri-specific issues about circulators’ and property owners’ statutory or constitutional rights regarding circulators’ access to different types of signature-gathering locations. But much more happens behind the scenes. An initiative petition can in fact be stymied at any one of several distinct review points along its path to the ballot.

After submission, for example, a petition can be rejected for failure to meet various formal requirements. Even upon passing this threshold review, however, official ballot summary language and the state auditor’s fiscal note and summary must be reviewed and approved by the attorney general, and then separately reviewed by the secretary of state in light of the attorney general’s opinion. Only then does the secretary certify the official ballot title for circulation.

And once a ballot title is certified, any Missouri citizen may bring an immediate legal challenge to its sufficiency or fairness. At later points, facial constitutional challenges and challenges to the sufficiency of petition signatures can be raised. Then, even if a measure is actually placed on the ballot and voted into law, it is thereafter subject (at least theoretically) to additional substantive legal challenges.

While relatively few of these battles make the news, or trend high enough to grab the attention of most, remember this: the candidate and issue options presented in the voting booth didn’t land on the ballot by chance. And long after votes are tallied, candidates’ and issue-proponents’ attorneys will continue working around the clock to challenge or defend the results. Due process awaits, and opportunity knocks.

Bailey, MiriamMiriam E. C. Bailey serves as counsel with Graves Garrett. Firm attorneys Lucinda Luetkemeyer and Alan Simpson contributed to this piece. Any opinions or conclusions are not those of Graves Garrett. The firm represents political committees, candidates, contributors, and businesses in federal, state, and local election, ethics, and campaign finance matters, but did not represent any party in the Tatro matter.

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