[EL] Preclearance of Top Two in California (was more news 6/21/11)
Rob Richie
rr at fairvote.org
Tue Jun 21 15:43:33 PDT 2011
For those interested in FairVote's letters to the DOJ raising questions
about preclearance of the Top Two system in California and Louisiana, let me
know and I'll send them to you or get them posted on our website.
Our letters address the clear evidence that going to such a system increases
the chances of defeat of a candidate with majority support among racial
minorities in a minority-majority district. But that result depends on
tactics that may or may not be pursued rather than definitive changes in
turnout and vote dilution that might have triggered a DOJ objection.
In other words, preclearance of Top Two isn't a surprise, but there remain
very real issues for backer of minority voting rights to consider. The irony
is that the much-touted goal of these systems electing more moderate
candidates is most likely in majority-minority districts because such
districts tend to be more lopsided in their partisanship than most other
districts -- and only very lopsided districts are reliably going to send two
candidates of the same party to the general election, where in turn the more
moderate of those candidatesa can win with strong backing of the minority
party in the district. In the great bulk of districts where racial
minorities are in the minority, however, two nominees of different parties
will usually move to the general election, and the underlying partisan split
of the district will typically determine the outcome.
Below is an excerpt from our September 2010 letter to the DOJ A later letter
about Louisiana provided several examples from elections in black-majority
electorates in New Orleans where black candidates with minority support in
the black community defeated candidates with majority support in the black
community -- with the key factor being white voters overwhelmingly voting
against the candidate with majority black support.
We'll see what happens next year. Expect to see a lot of tactics involving
attempts to keep candidates out of the race or throw support to longshot
candidates to split votes in the first round (as some suggest indeed already
happened in the Janice Hahn-Debra Bowen race). The plus side is that Top Two
is a system that allows voters a lot of choice in the first round and a
majority winner in the runoff -- unfortunately, however, with five months in
between in which which there will be a near-complete silencing of third
party and independent candidates who provide dissenting views.
- Rob Richie, FairVote
##############
... Our particular concerns can be summarized as follows:
• In majority-minority districts that are heavily Democratic, it is
disproportionately likely that the two general election candidates will both
be racial minorities running as Democrats. Because of this change,
candidates in such districts with majority support among racial minorities
will more often lose to candidates with majority support among white voters.
• In all elections held under the new laws, there is no chance for a
candidate to seek office in November as a write-in candidate - -and no means
for parties to substitute for a candidate who has withdrawn from office.
This combination of provisions could all too easily result in
majority-minority districts not having a candidate in the general election
who is supported by most voters in the racial minority in that district.
• Currently, candidates without particular access to major campaign finance
backing can win in a majority-minority district by winning a major party
nomination in a restricted electorate and then winning in the general
election over nominees of parties that do not have majority support in that
district. But under Proposition 14, winning a spot on the general election
ballot will likely significantly increase the cost of primary campaigns, as
all voters in the district will participate on an equal basis. Then, in the
general election, majority-minority districts are more likely to have highly
competitive elections where money again could be a major factor. Although
we believe competitive choice in elections is a good value, the law does not
come with any provision to assist with campaign financing, which is a
particular problem when a candidate with strong support among racial
minorities in a majority-minority district can lose to a better-funded
candidate who has at least some support among racial minorities and very
strong support of white voters.
On Tue, Jun 21, 2011 at 5:35 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> **
> CREW Accuses Senator Vitter of Bribery for Letter to Sec. Salazar<http://electionlawblog.org/?p=19467>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19467> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See here<http://www.citizensforethics.org/legal-filings/entry/crew-files-ethics-complaint-against-senator-david-vitter>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19467&title=CREW%20Accuses%20Senator%20Vitter%20of%20Bribery%20for%20Letter%20to%20Sec.%20Salazar&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12> | Comments Off
> DOJ Preclears California Top Two Primary<http://electionlawblog.org/?p=19463>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19463> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> After numerous requests for additional information, the Department of
> Justice has precleared<http://electionlawblog.org/wp-content/uploads/Prop-14-preclearance-approval-letter.pdf>(under section 5 of the Voting Rights Act) Proposition 14, establishing the
> top two primary. Lawsuits against top two remain pending in California.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19463&title=DOJ%20Preclears%20California%20Top%20Two%20Primary&description=>
> Posted in primaries <http://electionlawblog.org/?cat=32>, Voting Rights
> Act <http://electionlawblog.org/?cat=15> | Comments Off
> “Public Financing in American Elections”<http://electionlawblog.org/?p=19460>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19460> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Temple University Press has just published this volume<http://www.temple.edu/tempress/titles/2156_reg.html>,
> edited by Costas Panagopoulos. From the list of contributors, this looks to
> be a strong book.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19460&title=%E2%80%9CPublic%20Financing%20in%20American%20Elections%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “Civil Rights Groups Ask Justice Department to Block Discriminatory Fla.
> Law” <http://electionlawblog.org/?p=19457>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19457> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See this blog post <http://www.projectvote.org/blog/?p=1468> at Project
> Vote’s “Voting Matters” blog.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19457&title=%E2%80%9CCivil%20Rights%20Groups%20Ask%20Justice%20Department%20to%20Block%20Discriminatory%20Fla.%20Law%E2%80%9D&description=>
> Posted in Department of Justice <http://electionlawblog.org/?cat=26>, electon
> administration <http://electionlawblog.org/?cat=18> | Comments Off
> “Campaign finance debates and corporate ubiquity”<http://electionlawblog.org/?p=19454>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19454> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Anthony Tsontakis has written this post
> <http://www.statebrief.com/briefblog/2011/06/21/campaign-finance-debates-and-corporate-ubiquity/>at
> the Statebrief blog.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19454&title=%E2%80%9CCampaign%20finance%20debates%20and%20corporate%20ubiquity%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
> “Iowa’s 2010 Judicial Election: Appropriate Accountability or Rampant
> Passion?” <http://electionlawblog.org/?p=19449>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19449> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Roy Schotland has written this article f<http://electionlawblog.org/wp-content/uploads/2010IowaFINAL.pdf>or
> *Court Review, Vol. 46, No. 1, pp. 118-128, 2011. *Here is the abstract:
>
> Although 89% of state judges (appellate and general-jurisdiction trial
> judges) face some type of election, judicial elections are rarely thought of
> even by academics interested in elections. Iowa’s 2010 election, in which
> three Justices were defeated, is one of the most significant judicial
> elections ever. The Justices lost their seats because they participated in a
> unanimous 2009 decision upholding gay marriage. That decision stirred
> intense opposition among “social conservatives”, in Iowa a substantial
> proportion of the population and actively led by more than 100 ministers.
>
> That active opposition was one of eight elements that created a perfect
> storm against the Justices: 1) The decision overturned a statute; 2) the
> Justices faced a “retention” election in which there are no opposing
> candidates, only the question whether to keep or retire the incumbent in
> office; 3) the opposition was aided by out-of-state funding support (over
> $1,000,000) secured by some 2012 Republican presidential candidates seeking
> to build support in Iowa; 4) although the Justices drew important support
> which raised about $400,000 (all in-state), the support’s effectiveness is
> fairly summarized by one fact: no funds were available before October; 5)
> the only out-of-state support was one talk by Justice Sandra Day O’Connor;
> 6) by chance, Iowa’s 2010 elections included no active contest other than
> this one; 7) the opposition got full-time and able leadership from a
> politician with established statewide ambitions; and 8 ) for incumbents,
> 2010 was not a favorable year. Even for the usually quiet domain of
> judicial elections, there was organized opposition to Justices in six States
> – only twice before had there been organized opposition in even two States.
>
> Despite my deep disagreement with those who opposed the Iowa Justices, I
> respect their exemplary honesty. One of the most notable aspects of the Iowa
> event is this: the opposition disagreed with one decision that their Court
> had made, their disagreement was the undeniably clear basis of their
> opposition, and they took advantage of an opportunity to make the Justices
> account for what they had done. Decades of experience show that when there
> is organized opposition to a judge, it is rarely honest: e.g. last year,
> Illinois’s Justice Kilbride was opposed by pro-business interests unhappy
> with his voting to overturn a statute capping medical malpractice damages;
> but the opposition’s TV ads focused on his record in criminal cases to
> portray him as “soft on crime.” The article considers the impact of the Iowa
> election. Also, the Iowa event raises a fundamental question: when judges
> face any type of election, what should they be “accountable” for?
>
> If you read one person on judicial elections, read Roy!
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19449&title=%E2%80%9CIowa%E2%80%99s%202010%20Judicial%20Election%3A%20Appropriate%20Accountability%20or%20Rampant%20Passion%3F%E2%80%9D&description=>
> Posted in judicial elections <http://electionlawblog.org/?cat=19> | Comments
> Off
> “Democracts question residency of Indiana elections chief Charlie White”<http://electionlawblog.org/?p=19446>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19446> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The latest
> <http://www.indystar.com/article/20110621/NEWS/110621001/Democrats-hammer-White-s-residency-vote-fraud-case?odyssey=tab%7Ctopnews%7Ctext%7CIndyStar.com>from
> Indiana.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19446&title=%E2%80%9CDemocracts%20question%20residency%20of%20Indiana%20elections%20chief%20Charlie%20White%E2%80%9D&description=>
> Posted in SOS White <http://electionlawblog.org/?cat=13> | Comments Off
> “In Search of the Secret Report” <http://electionlawblog.org/?p=19443>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19443> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Josh Marshall blogs<http://talkingpointsmemo.com/archives/2011/06/in_search_of_the_secret_report.php?ref=fpblg>at TPM.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19443&title=%E2%80%9CIn%20Search%20of%20the%20Secret%20Report%E2%80%9D&description=>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, fraudulent
> fraud squad <http://electionlawblog.org/?cat=8>, voter id<http://electionlawblog.org/?cat=9>
> | Comments Off
> “Stephen Colbert: Cash For Handshakes Outside FEC Went To Me, Not
> Colbert Super PAC” <http://electionlawblog.org/?p=19440>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19440> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> TPM reports<http://tpmmuckraker.talkingpointsmemo.com/2011/06/stephen_colbert_1_handshakes_outside_fec_went_to_me_not_colbert_super_pac.php>.
> More from CCP<http://www.campaignfreedom.org/blog/detail/colbert-super-pac-continues-to-face-legal-hassles>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19440&title=%E2%80%9CStephen%20Colbert%3A%20Cash%20For%20Handshakes%20Outside%20FEC%20Went%20To%20Me%2C%20Not%20Colbert%20Super%20PAC%E2%80%9D&description=>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
> election commission <http://electionlawblog.org/?cat=24> | Comments Off
> “Where Framers of the Constitution Fell Short”<http://electionlawblog.org/?p=19437>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19437> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See this<http://www.rollcall.com/issues/56_140/where-framers-of-the-constitution-fell-short-206522-1.html>
> *Roll Call* “Around the Hill” column.
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19437&title=%E2%80%9CWhere%20Framers%20of%20the%20Constitution%20Fell%20Short%E2%80%9D&description=>
> Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>
> | Comments Off
> Stanley Fish on Carrigan Case and Whether Voting is Speech<http://electionlawblog.org/?p=19433>
> Posted on June 21, 2011 <http://electionlawblog.org/?p=19433> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See here<http://opinionator.blogs.nytimes.com/2011/06/20/is-voting-speech/?ref=opinion>
> .
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19433&title=Stanley%20Fish%20on%20Carrigan%20Case%20and%20Whether%20Voting%20is%20Speech&description=>
> Posted in voting <http://electionlawblog.org/?cat=31> | Comments Off
>
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://www.lls.edu/academics/faculty/hasen.html
> http://electionlawblog.org
>
> _______________________________________________
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> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
--
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Respect for Every Vote and Every Voice"
Rob Richie
Executive Director
FairVote
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
www.fairvote.org <http://www.fairvote.org> rr at fairvote.org
(301) 270-4616
Please support FairVote through action and tax-deductible donations -- see
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