Tis the season for giving thanks, and we here at the Rules of the Game podcast are immensely grateful for the amazing work done by nonprofits across the country to advocate on behalf of ballot measures during the midterm elections. On this episode, we’ll highlight several noteworthy wins. From protecting reproductive rights to expanding education access for Dreamers, it was truly a remarkable year for rallying public support and seizing policy wins at the ballot box.

Our attorneys for this episode

Leslie Barnes

Natalie Ossenfort

Tim Mooney

Shownotes

Ballot Measures: A Quick Review of the Rules

• Yes, 501(c)(3) public charities CAN support / oppose ballot measures (including ballot initiatives, bond proposals, constitutional amendments, etc.)
  • Public charities can lobby (within their lobbying limits)
  • Advocacy for or against a measure = lobbying
    • The public is a legislator in the ballot measure context
    • Under the insubstantial part test, ballot measure advocacy = lobbying.
    • Using the 501(h) election, ballot measure advocacy = DIRECT lobbying.
  • Public charities should refrain from supporting / opposing candidates that may appear on the same ballot (remain nonpartisan)
• Different rules for private foundations, which should NOT engage in ballot measure advocacy due to prohibitive excise tax, but can take advantage of lobbying exceptions and use general support grants and specific project grant safe-harbors to support the work of their grantees
• 501(c)(4)s can engage in nonpartisan as well as partisan ballot measure work, but partisan work should remain a secondary activity of the organization
• Regardless of what type of tax-exempt org you may work for, also keep in mind state / local law, which may require reporting of ballot measure activities and expenditures

Big Wins!

• Arizona Proposition 308
  • Championed by Mi Familia Vota, Unidos US, Arizona Community Foundation, and more!
  • Grants undocumented Arizona high school graduates the ability to obtain in-state college tuition prices and gets rid of Prop 300, which passed with 71% of vote in 2006 and banned state benefits for undocumented persons

• Measure 26-228 in Portland, Oregon
  • Championed by Coalition of Communities of Color (Unite Oregon, Latino Network, Muslim Educational Trust, Imagine Black, NAYA Family Center, Pacific Islander & Asian Family Center, LWV Portland, etc.
  • Expands City Council – Creates four City Council districts with three councilors each and ends City Councilmembers managing day-to-day city services and operations.

• Emancipation on the Ballot
  • 5 states (OR, TN, AL, LA, and VT) considered proposed state constitutional amendments asking voters whether to abolish slavery
  • Passed in 4 states. LA voters will try again with a revised ballot measure.
  • NAACP Legal Defense and Education Fund explains why slavery is still legal in over a dozen states and permitted under the US constitution
    • Why Slavery is Still Legal in America – And How Voters Can Take Action (naacpldf.org)
    • Congress considering amendment to 13th Amendment
  • Alabama Citizens for Constitutional Reform worked to pass AL’s new constitution that removed slavery as well as multiple racist provisions
  • Nonprofits will continue to play vital role in implementing these laws

• Michigan Proposal 3 (aka Reproductive Freedom for All Proposal)
  • Establishes new independent right to reproductive freedom in state constitution and invalidates conflicting state laws
  • Allows state to regulate abortion after fetal viability, but not if abortion is necessary for patient’s physical or mental health
  • Supported by Planned Parenthood Advocates of Michigan, ACLU of Michigan, Michigan Voices, and others
  • Similar wins in California and Vermont. VT’s Proposal 5 won with 72% of the vote! Abortion rights now enshrined in VT constitution. It was supported by groups like ACLU of VT, LWV VT, Alliance for a Better VT and more.

• Michigan Proposal 2 (Expanding Voting Access)
  • Championed by ACLU of Michigan, NAACP Michigan State Conference, and League of Women Voters of Michigan
  • Changes voting policies in Michigan, including requiring nine days of early voting, authorizing absentee ballot drop boxes, and allowing voters without photo ID to sign an affidavit verifying their identity.

• DC Initiative 82
  • Championed by DC Committee to Build a Better Restaurant Industry, National Center for Lesbian Rights, DC for Democracy, National Employment Law Project
  • Once again the voters are eliminating the sub-minimum tipped wage, and all servers and bartenders that were under this system will be moved into full minimum wage over the course of the next few years.

Resources

• • Ballot Measures and Public Charities: Yes, You Can Influence that Vote
  • Ballot Measures and Recalls: Basic Rules for 501(c)(3) Public Charities, 501(c)(4)s, and Unions
  • Being a Player: A Guide to IRS Lobbying Regulations for Advocacy Charities
  • Foundations and Ballot Measures
  • Bolder Advocacy’s TA hotline: 866-NP-LOBBY
  • Email us at advocacy@afj.org
  • Our website is org

Following the 2022 midterm elections, nonprofits can work with newly elected officials on policies to advance their communities’ missions and policy agendas. That transition advocacy is the focus for most of the country, but in Georgia voters have 3 more weeks of non-stop political ads, commercials, texts and direct mail to look forward to thanks to a December 6th runoff election for US Senate. On this episode we discuss the special rules for the Georgia runoff, and what the rest of the country’s nonprofits can do in the transition period to get a jump on 2023.

Our attorneys for this episode

Leslie Barnes

Natalie Ossenfort

Tim Mooney

Show Notes

Georgia’s Runoff, Other States’ Recounts, & Contests

How can nonprofits navigate the post-election space, in states where vote totals are not yet finalized and in Georgia, where voters are facing a run off election in under one month? What can nonprofits do in these states?

• GA still has candidates
• GA’s new election law
  • SB202 made some key changes
  • Earlier vote (Dec 6)
  • Cannot register new voters
  • Shorter early voting period (5 days)
• Opportunities for (c)(3)s
• Opportunities for non-(c)(3)s
• Activities in your personal capacity
• Ballot curing
• Recounts & Contests

Transition Advocacy

• 501(c)(3) public charities can build relationships with newly elected officials and their staff to amplify the organization’s mission and advance community’s policy priorities
  • Congratulate or acknowledge those who won their elections
  • Introduce newly elected officials to your organization’s mission / issues, remind them of campaign promises
  • Make budgetary or legislative requests (could be lobbying – IRS & state lobbying disclosure)
  • Recommend people for appointed boards and commissions
  • Take care not to take credit for victory or “flipping the state”
  • Can discuss how (c)(3)s registered “x” number of voters
  • Can discuss how (c)(3)s increased voter turnout
  • Identify likely allies
• 501(c)(3) public charities can lobby a limited amount.
• Lobbying is defined as activities designed to influence legislation, for IRS purposes.
• 501(c)(4) social welfare groups can lobby an unlimited
• Private foundations cannot lobby without incurring a steep excise tax, but they can engage in the following non-lobbying activities:
  • Congratulate newly elected officials
  • Hold elected officials accountable
  • Schedule meet-n-greets
  • Share funding interest
  • Share foundation’s mission
  • Build relationships
  • Influence executive orders, rules, regulations (not IRS lobbying, but could trigger state lobbying disclosure)
  • Join us for future episodes of funding advocacy AND direct advocacy

Advocating on Executive Orders

• Don’t involve legislative action, therefore NOT IRS lobbying (could be lobbying under state disclosure laws)
• Safe for 501(c)(3) public charities and private foundation alike
  • Whitmer’s establishment of the Michigan’s Parent’s Council as an advisory body to the state Department of Education
  • Biden’s directives to HHS to help lower prescription drug costs

Resources

• Can We Really Say That: Post Election Advocacy for 501(c)(3) Organizations.
• Can We Say That?- Georgia Runoff 2022 Edition
• Transition Team Advocacy
• Private Foundations May Advocate
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY
• Email us at advocacy@afj.org

On this edition of the pod, we conclude our three-part series on nonprofit election advocacy and focus on post-election advocacy activities. After election day there are a wide array of opportunities to protect voters and the election itself. Whether it’s working with state and local officials to ensure that all ballots are counted or litigating potential violations of state or federal election-related laws, nonprofits have a big role to play in the days following November 8, 2022.

Our attorneys for this episode

Leslie Barnes

Tim Mooney

Natalie Ossenfort

Shownotes

• Reminder: 501(c)(3)s cannot support or oppose candidates
• Nonpartisan motivations to advocate in contested elections
  • Proper administration of the election under the law
  • Ensuring all legal votes are counted
  • Protecting the will of the electorate/upholding democratic principles
  • No IRS guidance on this, but it’s consistent with approved pre-election and election days advocacy
• Example: Litigation
  • Brennan Center’s work in 2000
    • Amicus brief in Bush v. Gore
    • Partisan and nonpartisan interests can legally coexist
    • While the Brennan Center argued for the same thing as the Gore campaign, its work was still nonpartisan because the arguments were centered on voters’ fundamental constitutional rights and not the partisan interests of the campaign.
  • Other examples
    • 2020 example
    • Common Cause’s work in the Georgia gubernatorial election in 2018
    • Michigan Welfare Rights Organization v. Donald Trump in 2020 – filed by NAACP Legal Defense and Education Fund (c3) and NAACP (c4) for violating the Voting Rights Act and the Ku Klux Klan Act
  • What kinds of advocacy are available to nonprofits following election day?
    • Administrative advocacy, including advocacy around secretary of state certifications of the winners, and the process of counting of ballot (depending on state, may qualify as lobbying that triggers registration)
    • Ballot chasing and curing. If a voter submits a ballot that fails to meet requirements under state law (i.e. stray marks, wrong envelopes, their signature doesn’t match the one on file, etc.), there may be a role that nonprofits can play to help those voters fix the problem within the time limits set by state law (check out practical guidance voter assistance series for additional details about state laws related to ballot chasing and curing activities) – educate voters on how to track their own ballots
    • Protests and other public gatherings, demanding proper administration of all ballot counts and fidelity to election procedures under the law. 
    • Direct advocacy to members of legislative bodies or governors when they are making decisions that are critical to the disposition of an election. This includes lobbying for emergency legislation to keep polls open or allow absentee voting to be extended, calls for oversight, in the event of natural disaster, following Ian and Fiona. Superstorm Sandy Impacted the 2012 Presidential election.
    • 501(c)(3)s can do any of these things for nonpartisan motivations
    • 501(c)(4)s and other nonprofits can do these things with nonpartisan motivations, or with partisan reasons (tax law limits how much). Election laws dictate the rest.
  • 501(c)(3)s can work in coalitions with other nonprofits that are doing nonpartisan motivated work
  • Each state will have different deadlines for election certification – remember that calls to “stop the count” or anything else to hinder the proper administration of the vote prior to that date are anti-democratic acts and nonprofits can take a role in defending against these cynical tactics.

Resources

• What Nonprofits Can Do in a Contested Election
• The Connection
• Accountability Advocacy for 501(c)(3)s
• 501(c)(3) Contact with Parties and Candidates Concerning Election Protection Efforts
• Practical Guidance: Voter Assistance and Lobbying Series
• Bolder Advocacy’s technical assistance: 866-NP-LOBBY or email us at advocacy@afj.org