[EL] ELB News and Commentary 11/12/12

Rick Hasen rhasen at law.uci.edu
Mon Nov 12 08:08:01 PST 2012


    "Vote over, but election dysfunction remains"
    <http://electionlawblog.org/?p=44114>

Posted on November 12, 2012 8:05 am 
<http://electionlawblog.org/?p=44114> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Nate Persily writes 
<http://www.cnn.com/2012/11/11/opinion/persily-voting/index.html?iid=article_sidebar> 
at CNN Opinion.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "We Have to Fix That" <http://electionlawblog.org/?p=44111>

Posted on November 12, 2012 8:02 am 
<http://electionlawblog.org/?p=44111> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Wendy Weiser blogs 
<http://www.brennancenter.org/blog/archives/we_have_to_fix_that/> at the 
Brennan Center.

See also Modernization Can Fix Long Voting Lines 
<http://www.brennancenter.org/blog/archives/modernization_can_fix_long_voting_lines/>.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "Rethinking Voting" <http://electionlawblog.org/?p=44109>

Posted on November 12, 2012 7:59 am 
<http://electionlawblog.org/?p=44109> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Today's NPR On Point 
<http://onpoint.wbur.org/2012/11/12/rethinking-voting> with Nate 
Persily, Wendy Weiser, and Rob Richie.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "One voter's tale tells it all" <http://electionlawblog.org/?p=44106>

Posted on November 12, 2012 7:24 am 
<http://electionlawblog.org/?p=44106> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Josh Douglas has written this oped 
<http://news.cincinnati.com/article/20121112/EDIT02/311120037/One-voter-s-tale-tells-all>in 
the /Cincinnati Enquirer/.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
provisional ballots <http://electionlawblog.org/?cat=67>, The Voting 
Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "Reimagining Democratic Inclusion: Asian Americans and the Voting
    Rights Act" <http://electionlawblog.org/?p=44103>

Posted on November 12, 2012 7:22 am 
<http://electionlawblog.org/?p=44103> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Ming Hsu Chen and Taeku Lee have postedthis draft 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2170524>on SSRN 
(forthcoming UC Irvine Law Review). Here is the abstract:

    The current legal framework for protecting voting rights in the
    United States has been dramatically destabilized by Supreme Court
    decisions re-interpreting the protections against minority vote
    dilution and requires rethinking to survive modern challenges. At
    the same time, the nation has itself undergone dramatic changes in
    the racial composition of its polity and in the complexity and
    salience of race as a factor in political life. In this paper, we
    focus on a relatively unexamined constituent of this complex reality
    of modern racial diversity that illustrates some of the core
    features that all minority groups face in continuing VRA challenges:
    Asian Americans. In the face of apparent political disempowerment,
    it is curious that Asian Americans have very rarely succeeded in
    invoking Section 2 of the Voting Rights Act, a legal measure devised
    specifically to bolster minority political power. Is this because
    the necessary conditions for a successful political challenge have
    not yet arisen? Is the problem a structural one implicating problems
    in institutional design? Or is it some combination of both,
    indicating the double harm of a permanent political minority without
    ability to secure legal redress under the VRA?

    Social science and legal scholarship suggest that the legal
    standards used to trigger the special protections of the VRA contain
    underspecified assumptions about political behavior and
    oversimplified understandings about racial identity. This paper
    attempts to mobilize insights about the political behavior of racial
    minorities in the service of a multi-dimensional approach toward
    thinking about legal remedies for democratic exclusion. Our core
    contention is that the problem of democratic exclusion is
    multi-factorial and requires a multi-pronged approach to redress.
    Such an approach includes augmenting available data about the
    political participation of racial minorities, refining empirical
    measures to reflect racial politics in a complex, multiracial
    electorate, and revisiting available remedies in light of a problem
    with both political and legal dimensions.

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> | 
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    "Supreme Court Review Puts Voting Rights Act In Jeopardy After
    Election Proves Its Necessity" <http://electionlawblog.org/?p=44101>

Posted on November 12, 2012 7:20 am 
<http://electionlawblog.org/?p=44101> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Doug Kendall writes 
<http://theusconstitution.org/text-history/1682/supreme-court-review-puts-voting-rights-act-jeopardy-after-election-proves-its> 
for the Constituional Accountability Center.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off


    "In 59 Philadelphia voting divisions, Mitt Romney got zero votes"
    <http://electionlawblog.org/?p=44099>

Posted on November 12, 2012 7:19 am 
<http://electionlawblog.org/?p=44099> by Rick Hasen 
<http://electionlawblog.org/?author=3>

/Philadelphia Inquirer: / 
<http://www.philly.com/philly/news/politics/20121112_In_59_Philadelphia_voting_wards__Mitt_Romney_got_zero_votes.html>"It's 
one thing for a Democratic presidential candidate to dominate a 
Democratic city like Philadelphia, but check out this head-spinning 
figure: In 59 voting divisions in the city, Mitt Romney received not one 
vote. Zero. Zilch. These are the kind of numbers that send Republicans 
into paroxysms of voter-fraud angst, but such results may not be so 
startling after all."

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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off


    "The Man Behind Citizens United Says 2012 Has Vindicated Him"
    <http://electionlawblog.org/?p=44097>

Posted on November 12, 2012 7:16 am 
<http://electionlawblog.org/?p=44097> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Mother Jones talks 
<http://www.motherjones.com/mojo/2012/11/james-bopp-2012-election> to 
Jim Bopp.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "The Secret to Fixing Long Lines? Math. [Yes, Math.]"
    <http://electionlawblog.org/?p=44091>

Posted on November 12, 2012 7:07 am 
<http://electionlawblog.org/?p=44091> by Rick Hasen 
<http://electionlawblog.org/?author=3>

A ChapinBlog 
<http://blog.lib.umn.edu/cspg/electionacademy/2012/11/the_secret_to_fixing_long_line.php>.

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Posted in election administration <http://electionlawblog.org/?cat=18> | 
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    Issacharoff, Bauer, and the Ohio Bush v. Gore Sequel
    <http://electionlawblog.org/?p=44089>

Posted on November 12, 2012 7:06 am 
<http://electionlawblog.org/?p=44089> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Interesting Jeffrey Toobin tidbit 
<http://www.newyorker.com/talk/2012/11/19/121119ta_talk_toobin> in the 
/New Yorker./  I'm writing something more extensive about this case and 
related ones for the GW conference.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "It's Appalling that Gerrymandering Is Legal; And if the Supreme
    Court guts the Voting Rights Act, it's going to get a lot worse."
    <http://electionlawblog.org/?p=44086>

Posted on November 11, 2012 8:02 pm 
<http://electionlawblog.org/?p=44086> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Emily Bazelon writes 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/11/the_supreme_court_may_gut_the_voting_rights_act_and_make_gerrymandering.html> 
for /Slate./

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    "Brewing Senate fight over curbing filibusters could threaten
    postelection co-operation" <http://electionlawblog.org/?p=44083>

Posted on November 11, 2012 7:49 pm 
<http://electionlawblog.org/?p=44083> by Rick Hasen 
<http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/politics/congress/brewing-senate-fight-over-curbing-filibusters-could-threaten-postelection-co-operation/2012/11/11/2056f428-2bfd-11e2-b631-2aad9d9c73ac_story.html>: 
"A brewing and potentially bitter fight over Democratic efforts to curb 
filibusters is threatening to inflame partisan tensions in the Senate, 
even as President Barack Obama and Republicans explore whether they can 
compromise on top tier issues such as debt reduction and taxes. A 
potential showdown vote to limit Senate filibusters would not come until 
January. Democrats are threatening to resort to a seldom-used procedure 
that could let them change the rules without GOP support, all but 
inviting Republican retaliation."

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Posted in legislation and legislatures 
<http://electionlawblog.org/?cat=27> | Comments Off


    What Will DC Court Do in Texas Voter ID Case?
    <http://electionlawblog.org/?p=44080>

Posted on November 11, 2012 7:26 pm 
<http://electionlawblog.org/?p=44080> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Texas has nowfiled its reply brief 
<https://docs.google.com/file/d/0BxeOfQQnUr_gMkZPQUJPTy1IMnM/edit?pli=1>in 
the DC Court, reaching the question whether section 5 of the Voting 
Rights Act is unconstitutional as exceeding congressional power.  The 
issue is now before the Supreme Court in the /Shelby County /case. The 
district court could hold for the Supreme Court's decision in that case, 
or decide the issue, allowing Texas to take this issue to the Supreme 
Court while /Shelby County / is pending.

One interesting question debated in the briefs is whether the 
three-judge DC court is bound by the /Shelby County/ precedent.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id 
<http://electionlawblog.org/?cat=9>, Voting Rights Act 
<http://electionlawblog.org/?cat=15> | Comments Off


    NYT Sunday Review on Election Reform Issues
    <http://electionlawblog.org/?p=44076>

Posted on November 11, 2012 7:14 pm 
<http://electionlawblog.org/?p=44076> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Today's Sunday Review section of the NYT featured this cartoon strip 
<http://www.nytimes.com/slideshow/2012/07/08/opinion/sunday/the-strip.html?ref=opinion#1> 
from Brian McFadden as well as shortened portions of my 
<http://www.nytimes.com/roomfordebate/2012/11/08/does-our-voting-system-need-to-be-fixed/nationalize-oversight-and-control-of-elections> 
and Cleta Mitchell's 
<http://www.nytimes.com/roomfordebate/2012/11/08/does-our-voting-system-need-to-be-fixed/give-partisanship-a-rest-and-address-real-issues> 
contributions to the recent "A Better Way to Vote 
<http://www.nytimes.com/roomfordebate/2012/11/08/does-our-voting-system-need-to-be-fixed/?ref=opinion>" 
question for "Room for Debate."

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
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    "Updated: Canseco Concedes CD-23 to Gallego"
    <http://electionlawblog.org/?p=44073>

Posted on November 11, 2012 7:02 pm 
<http://electionlawblog.org/?p=44073> by Rick Hasen 
<http://electionlawblog.org/?author=3>

KUT 
<http://www.kutnews.org/post/updated-canseco-concedes-cd-23-gallego>: 
"U.S. Rep. Francisco 'Quico' Canseco conceded the Congressional District 
23 race on Friday. He congratulated state Rep. Pete Gallego, while 
renewing allegations that voter fraud skewed the results."

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
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    What About Section 2? <http://electionlawblog.org/?p=44071>

Posted on November 11, 2012 7:00 pm 
<http://electionlawblog.org/?p=44071> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Franita Tolson <http://www.law.fsu.edu/faculty/ftolson.html> of FSU has 
written this guest post: [now updated]

    What about Section 2?

    On Friday, the Supreme Court granted cert in /Shelby County/, giving
    most voting rights advocates and law professors heart palpitations
    in the process (even though we totally expected it).  As Rick noted
    in an earlier post, the manner in which the Court framed the
    question is interesting because it goes beyond focusing on
    Congress's authority under the Fifteenth Amendment: "Whether
    Congress' decision in 2006 to reauthorize Section 5 of the Voting
    Rights Act under the pre-existing coverage formula of Section 4(b)
    of the Voting Rights Act exceeded its authority under the Fourteenth
    and Fifteenth Amendments and thus violated the Tenth Amendment and
    Article IV of the United States Constitution."  In an earlier piece,
    /Reinventing Sovereignty: Federalism as a Constraint on the Voting
    Rights Act/, recently published in the Vanderbilt Law Review, I
    argued that Congress did have the authority to reauthorize section 5
    of the Voting Rights Act, but I focused on its power pursuant to the
    Elections Clause as well as the Fourteenth and Fifteenth
    Amendments.  I contended that these provisions make Congress
    sovereign over elections while states retain only limited
    sovereignty, in particular over those state electoral practices that
    do not implicate a federal interest.

    In the course of writing this article, I wondered what it is that is
    so objectionable about section 5---is it the very fact of
    preclearance? Or is it that covered states have to preclear all
    changes, even those that only affect state and local elections?  Or
    is it the fact that coverage under the Act is determined based on an
    outdated formula? For my current piece, I decided to try to tackle
    each of these questions, but by taking a more holistic view of
    Congress's authority over elections relative to the states.  For
    this post, I want to focus on the first two questions: whether
    Congress, under its authority under section 5 of the Fourteenth
    Amendment, can require states to preclear changes that only affect
    state elections.  It is certainly easier to make the case that
    Congress can require preclearance in the context of federal
    elections, although this argument is by no means a slam dunk, but
    arguably, the requirement of preclearance in the context of state
    elections is much tougher to justify.

    Because I am focusing on Congress's authority over elections,
    broadly defined, I noticed that there is an important gap in the
    literature.  I have written about Congress's enforcement authority
    under section 5 of the Fourteenth Amendment, section 2 of the
    Fifteenth Amendment, and the Elections Clause...but what about the
    other section 2? No, not section 2 of the Voting Rights Act. 
    Rather, section 2 of the Fourteenth Amendment, which allows Congress
    to intervene in state elections in a way that is more extreme and
    intrusive than its requirement that states preclear every change to
    their election laws.  Section 2 gives Congress the ability to reduce
    a state's representation in the House when it abridges the right to
    vote at "any election for the choice of electors for President and
    Vice President of the United States, Representatives in Congress,
    the Executive and Judicial officers of a State, or the members of
    the Legislature thereof...  for any reason except for participation
    in rebellion, or other crime."  Using this provision, my latest
    article, tentatively titled /A Structural Theory of Elections,
    /shows how even the most objectionable part of the preclearance
    regime is constitutional because section 2, with its extreme penalty
    for states that abridge the right to vote on almost any grounds in
    almost any election (state and federal), stands both as an example
    of what would be a "congruent and proportional" remedy under the
    Supreme Court's decision in /City of Boerne v. Flores/ to address
    abridgment of the right to vote in both state and federal elections,
    and it also influences the scope of congressional authority under
    section 5 of the Fourteenth Amendment.

    In my current piece, I argue that Congress's authority to reduce
    representation for abridging the right to vote in both state and
    federal elections on grounds not limited to race also includes the
    lesser ability to regulate conduct that has the same effect under
    section 5 of the Fourteenth Amendment; in other words, that such
    regulations would be an "appropriate" way of enforcing the
    Fourteenth Amendment.  In particular, I point out that requiring
    states to preclear any changes to their election laws is actually a
    lesser penalty than reducing a state's delegation in Congress under
    section 2, and moreover, that preclearance is consistent with the
    structure of section 2 and section 5 of the Fourteenth Amendment.

    Sorry for the longish post, but I just want to point out why I feel
    like an intratextual reading of Congress's authority under the
    Fourteenth Amendment is justified in these circumstances.  The Court
    commonly looks at the substantive protections of section 1 of the
    Fourteenth Amendment in assessing the scope of Congress's authority
    under section 5.  It is not clear to me why the same approach cannot
    be taken with section 2, which has languished in obscurity with the
    exception of one case, /Richardson v. Ramirez/, which I rely on for
    support of this point.  In /Richardson/, the Supreme Court held that
    section 1 of the Fourteenth Amendment was not violated when states
    disenfranchised felons because of section 2's language that states
    were not subject to the penalty of reduced representation when they
    abridge the right to vote for participating "rebellion, or other
    crime."  In other words, the Court used section 2 of the Fourteenth
    Amendment in order to interpret the substantive reach of section 1;
    similarly, I argue that section 2 also influences the scope of
    congressional authority under section 5.

    I am still in the process of writing the paper, and fleshing out
    these arguments.  The arguments I make in this post only get me half
    way there in defending the constitutionality of section 5 of the
    Voting Rights Act.  At the very least, however, these are arguments
    that the Court should consider before they strike down a landmark
    piece of legislation.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off


    "For One Night At Fox, News Tops Agenda"
    <http://electionlawblog.org/?p=44068>

Posted on November 11, 2012 6:54 pm 
<http://electionlawblog.org/?p=44068> by Rick Hasen 
<http://electionlawblog.org/?author=3>

NYT 
<http://www.nytimes.com/2012/11/12/business/media/fox-newss-election-coverage-followed-journalistic-instincts.html?hp>:

    By now, most of you have no doubt seen or read about the
    election-night stare-down between the anchors at Fox News and Karl
    Rove
    <http://topics.nytimes.com/top/reference/timestopics/people/r/karl_rove/index.html?inline=nyt-per>,
    who, apart from running a "super PAC
    <http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>"
    that aimed to defeat the president, also served as an on-air
    commentator. While news outlets love access to insiders, Mr. Rove's
    two roles seemed to be in profound conflict after Fox's decision
    desk projected that the president had won Ohio, all but guaranteeing
    him re-election. Mr. Rove said that the call was premature
    <http://www.youtube.com/watch?v=eQLV7nqD3CA> and that the decision
    desk was ignoring important data.

    While Fox News allowed him to say his piece, it didn't cave --- and,
    more important, it didn't question the legitimacy of the election
    over all, a move that could have led to all manner of unhealthy
    speculation.

    The best journalistic instincts of Fox's news people kicked in and
    the hard reality of Mr. Obama's triumph was allowed to land as it
    occurred. In doing so, the network avoided marginalizing itself and
    ended, at least for a night, its war on the president.

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    "Result Won't Limit Campaign Money Any More Than Ruling Did"
    <http://electionlawblog.org/?p=44065>

Posted on November 11, 2012 6:51 pm 
<http://electionlawblog.org/?p=44065> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Must-read Nick Confessore 
<http://www.nytimes.com/2012/11/12/us/politics/a-vote-for-unlimited-campaign-financing.html?pagewanted=all&_r=0> 
(NYT):

    Though the outcome of the 2012 elections dealt a blow to the wealthy
    donors who poured several hundred million dollars into groups
    seeking to defeat Mr. Obama, the president's re-election does not
    presage a repudiation of the deregulated campaign financing
    unleashed by the Supreme Court's 2010 Citizens United
    <http://www.law.cornell.edu/supct/html/08-205.ZS.html> decision.
    Instead, his victory most likely reinforced the practice.

    In virtually every respect, the growth of unlimited fund-raising and
    the move of outside groups to the mainstream of politics have
    magnified the already outsize role of money in political campaigns.
    They have changed how incumbents and challengers alike campaign and
    raise money, altered how voters experience politics, and expanded
    the influence of a small group of large donors on the policies and
    messages espoused by candidates.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "Voter suppression and Florida's butterfly effect"
    <http://electionlawblog.org/?p=44063>

Posted on November 11, 2012 6:49 pm 
<http://electionlawblog.org/?p=44063> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Marc Caputo 
<http://www.miamiherald.com/2012/11/11/v-fullstory/3092359/voter-suppression-and-floridas.html> 
must-read (/Miami Herald/):

    Edgar Oliva waited to vote at Shenandoah Elementary School and fretted.

    The line was too long. The clock was ticking. He had to get to work
    across town.

    Twice before, during in-person early voting, he tried to vote but he
    had to leave because lines were even longer. Tuesday was his third
    try at voting in between one of his two jobs, cleaning carpets in
    Doral and working at an airport hotel.

    About 4 p.m. on Election Day, he gave up.

    "I had the intention of voting but there were always a lot of
    people," Oliva, a native of Guatemala, told a Miami Herald reporter
    as he left the scene.

    Oliva had so much company on Tuesday.

    Voter after voter who spoke to Herald reporters on Election Day said
    the longer early voting lines dissuaded them from casting early
    ballots in person. And then the unexpected long lines on Election
    Day just compounded the sense of frustration in some places. Many
    dropped out of line.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "A Victory Over Suppression?" <http://electionlawblog.org/?p=44061>

Posted on November 11, 2012 6:46 pm 
<http://electionlawblog.org/?p=44061> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Elizabeth Drew writes 
<http://www.nybooks.com/blogs/nyrblog/2012/nov/11/victory-over-suppression/>for 
the /NY Review of Books/.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
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    "Ohio polls need short answer to long lines"
    <http://electionlawblog.org/?p=44059>

Posted on November 11, 2012 6:45 pm 
<http://electionlawblog.org/?p=44059> by Rick Hasen 
<http://electionlawblog.org/?author=3>

The /Cincinnati Enquirer/reports 
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201211110522/NEWS010601/311110024>.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
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
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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