[EL] ELB News and Commentary 11/30/12
Rick Hasen
rhasen at law.uci.edu
Fri Nov 30 07:23:47 PST 2012
"Texas Voter ID Suit May Await Related High Court Ruling"
<http://electionlawblog.org/?p=44906>
Posted on November 30, 2012 7:19 am
<http://electionlawblog.org/?p=44906> by Rick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg
<http://www.bloomberg.com/news/2012-11-29/texas-voter-id-suit-may-await-related-high-court-ruling.html>:
"The U.S. Justice Department
<http://topics.bloomberg.com/justice-department/> agreed to defer
further proceedings in a lawsuit filed by Texas over the state's voter
identification law until the Supreme Court
<http://topics.bloomberg.com/supreme-court/> rules whether part of the
Voting Rights Act is constitutional."
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, 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
"Exclusive: The Internal Polls That Made Mitt Romney Think He'd Win"
<http://electionlawblog.org/?p=44904>
Posted on November 30, 2012 7:18 am
<http://electionlawblog.org/?p=44904> by Rick Hasen
<http://electionlawblog.org/?author=3>
The New Republic reports.
<http://www.tnr.com/blog/plank/110597/exclusive-the-polls-made-mitt-romney-think-hed-win#>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Federal Judge Upholding Nevada Anti-SSM Law Recently Smacked Down by
Ninth Circuit <http://electionlawblog.org/?p=44900>
Posted on November 29, 2012 8:59 pm
<http://electionlawblog.org/?p=44900> by Rick Hasen
<http://electionlawblog.org/?author=3>
This evening's federal court decision
<http://www.scribd.com/document_downloads/114966393?extension=pdf&from=embed&source=embed>
upholding Nevada's ban
<http://www.buzzfeed.com/chrisgeidner/federal-judge-rules-the-nevada-can-ban-same-sex-co>
on same sex marriages against constitutional challenge came from Chief
Judge Robert C. Jones of the United States District Court for the
District of Nevada. As Sam Bagenstos notes,
<https://twitter.com/sbagen/status/274337871543009280> this is the same
judge who recently decided a controversial case regarding Nevada's "none
of the above" election law. Judge Jones in that case was not only
reversed by the Ninth Circuit---he was smacked down
<http://electionlawblog.org/?p=39602> in a concurring opinion by Judge
Reinhardt (who also happens to be the author of the Ninth Circuit Prop.
8 decision striking down California's anti-SSM ban). And after Chief
Judge Jones was smacked down, he smacked back at Judge Reinhardt in a
statement <http://electionlawblog.org/?p=39724> accusing Judge Reinhardt
of improper conduct in contacting his chambers.
Get out the popcorn as this new case goes forward.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"The 2012 Voting Wars, Judicial Backstops, and the Resurrection of
Bush v. Gore" <http://electionlawblog.org/?p=44898>
Posted on November 29, 2012 4:38 pm
<http://electionlawblog.org/?p=44898> by Rick Hasen
<http://electionlawblog.org/?author=3>
I have posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>on SSRN
(part of the George Washington Law Review symposium
<http://www.law.gwu.edu/News/2012-2013Events/Pages/2012LawReviewSymposium.aspx>
on election law). Here is the abstract:
In 2000, some scholars predicted the Supreme Court's controversial
equal protection holding in Bush v. Gore that the state could not
arbitrarily value one person's vote over that of another might be
used to force states to improve their election processes through
litigation. In the ensuing years, Bush v. Gore had not fulfilled
that promise. Scholars debated when, if ever, the case could apply
beyond the narrow facts of a statewide recount with inconsistent
counting standards, but the courts seemed uninterested: the Supreme
Court has failed to cite the case for any proposition, and the few
lower courts which relied upon the case as precedent to create
better and fairer voting conditions were overturned or limited. By
2007 I lamented the "untimely death" of Bush v. Gore.
A funny thing happened during 2012. The voting wars which had ensued
since 2000 manifested themselves in a host of restrictive election
rule changes passed in the name of fraud prevention and
administrative convenience mostly by Republican legislatures and
implemented by Republican election administrators. Democrats, the
Department of Justice, and reform groups resisted the overreach,
litigating over many of these changes. The results of this
litigation was a mixed bag. For example, courts approved some voter
identification laws, rejected others, and put Pennsylvania's and
Wisconsin's laws on hold for this election season but perhaps not
beyond that. Overall, it appeared that in the most egregious cases
of partisan overreach, courts were serving, often with surprising
unanimity, as a judicial backstop.
In Ohio, one of the twin epicenters (along with Florida) of the 2012
voting wars, two important cases relied in part on Bush v. Gore to
expand voting rights. In one case, a conservative panel of the
United States Court of Appeals for the Sixth Circuit---a court which
had shown itself bitterly divided along party and ideological lines
on election issues in 2008---unanimously held that Ohio's
disenfranchisement of voters for voting in the wrong polling
location because of poll worker error violated the equal protection
clause. In the other case, another Sixth Circuit panel held that
Ohio's contraction of the early voting period to exclude the weekend
before the election, for all voters except certain military voters,
violated the equal protection clause under Bush v. Gore. The court
so held despite the fact that Ohio provided 23 days of early voting
and for the first time sent all Ohio voters a no-excuse absentee
ballot application. This latter ruling was at best a major stretch
of Bush v. Gore and existing precedent.
The story of the 2012 voting wars is a story of Republican
legislative and to some extent administrative overreach to contract
voting rights, followed by a judicial and public backlash. The
public backlash was somewhat expected---Democrats predictably made
"voter suppression" a key talking point of the campaign. The
judicial backlash, and the resurrection of Bush v. Gore in the Sixth
Circuit, was not. The judicial reaction, from liberal and
conservative judges and often on a unanimous basis, suggests that
courts may now be more willing to act as backstops to prevent
egregious cutbacks in voting rights and perhaps to do even more to
assure greater equality and fairness in voting. However, it is
possible that this trend will reverse in future elections.
Comments welcome!
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Posted in Bush v. Gore reflections <http://electionlawblog.org/?cat=5>,
election administration <http://electionlawblog.org/?cat=18>, Supreme
Court <http://electionlawblog.org/?cat=29>, The Voting Wars
<http://electionlawblog.org/?cat=60> | Comments Off
"No more residency requirement for D.C. ballot petition
circulators?" <http://electionlawblog.org/?p=44895>
Posted on November 29, 2012 3:20 pm
<http://electionlawblog.org/?p=44895> by Rick Hasen
<http://electionlawblog.org/?author=3>
See here.
<http://www.washingtonpost.com/blogs/mike-debonis/wp/2012/11/29/no-more-residency-requirement-for-d-c-ballot-petition-circulators/>
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Posted in ballot access <http://electionlawblog.org/?cat=46>, petition
signature gathering <http://electionlawblog.org/?cat=39> | Comments Off
"'By the way, we have to do something about that'; Experts weigh in
on the lines and possible fixes" <http://electionlawblog.org/?p=44892>
Posted on November 29, 2012 2:46 pm
<http://electionlawblog.org/?p=44892> by Rick Hasen
<http://electionlawblog.org/?author=3>
That's the lead story
<http://www.electionline.org/index.php/2012/953-electionlineweekly-november-1-2012>in
this week's Electionline Weekly.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"The Causal Context of Disparate Vote Denial"
<http://electionlawblog.org/?p=44889>
Posted on November 29, 2012 2:43 pm
<http://electionlawblog.org/?p=44889> by Rick Hasen
<http://electionlawblog.org/?author=3>
Janai Nelson has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2180968>on SSRN
(forhcoming, /Boston College Law Review/). Here is the abstract:
For nearly 50 years, the Voting Rights Act of 1965 and its
amendments have remedied racial discrimination in the electoral
process with unparalleled muscularity. However, modern vote denial
practices that have a disparate impact on minority political
participation increasingly fall outside the Act's ambit. As judicial
tolerance of disparate impact claims has waned in other areas of
law, the contours of Section 2, arguably the Act's most powerful
provision, have also narrowed to fit the shifting landscape. Section
2's "on account of race" standard to determine discrimination in
voting has evolved from one of quasi-intent determined by a totality
of the circumstances, to a short-lived intent requirement, followed
by an enhanced disparate impact analysis, culminating in a more
recent standard that simulates proximate cause. This Article
proposes a test for Section 2 vote denial claims that comports with
the narrowing construction of disparate impact claims and reclaims
the robust contextual analysis that the Voting Rights Act
contemplates. The "causal context" test proposed here is anchored to
the "core values" of Section 2 mined from the legislative history of
the Act, particularly the "Senate factors." The causal context
analysis relies on proof of explicit or implicit bias, as well as
circumstances internal and external to elections that give rise to
disparate vote denial, without requiring proof of intent. This
approach is historically consistent with the Act's totality of the
circumstances test and cognizant of courts' increasing demands for
proof of a causal link within disparate impact jurisprudence.
Moreover, the proposed causal context analysis is consonant with
recent federal proceedings evaluating the racially disparate impact
of voter ID laws, voter purges, early voting restrictions, and other
forms of modern vote denial.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"The Promise and Limits of Citizens' Assemblies: Deliberation,
Institutions and the Law of Democracy"
<http://electionlawblog.org/?p=44886>
Posted on November 29, 2012 2:38 pm
<http://electionlawblog.org/?p=44886> by Rick Hasen
<http://electionlawblog.org/?author=3>
Michael Pal has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176808> on SSRN
(forthcoming, /Queens Law Journal/). Here is the abstract:
Recent experiments with deliberative democracy in British Columbia
and Ontario have brought new life to the debate over electoral
reform in Canada and have called into question the roles of the
judiciary and the legislature on electoral law. In both provinces,
Citizens' Assemblies composed of randomly selected members were
tasked with deliberating on electoral reform and brining their
recommendations to the electorate in a subsequent referendum. These
Assemblies were lauded as innovative alternatives to the
conventional legislative decision-making process. The author
examines the potential and the limitations of the Assemblies, by
situating the Citizens' Assembly mode within roader discussions bout
the law of democracy. Specifically, the article explores how well
the Assemblies in British Columbia and Ontario insulated electoral
reform from manipulation by elected representatives. Although he
concludes that those Assemblies were less successful at keeping
politics out of the process than many have suggested, he argues that
the model nevertheless makes a valuable contribution to the ongoing
debate between structural theory and rights theory regarding
election law and the right to vote. In light of the fact that both
sides of the debate are dissatisfied with the Supreme Court of
Canada's section 3 jurisprudence, there are good reasons for both
structural theorists and rights theorists to support the continued
use of Citizens' Assemblies on issues of electoral reform. The
author concludes by offering recommendations for improving the
Citizens' Assembly process in the future.
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Posted in citizen commissions <http://electionlawblog.org/?cat=7>,
direct democracy <http://electionlawblog.org/?cat=62> | Comments Off
"Trevor Potter Tells (Almost) All During Reddit 'Ask Me Anything'"
<http://electionlawblog.org/?p=44883>
Posted on November 29, 2012 2:35 pm
<http://electionlawblog.org/?p=44883> by Rick Hasen
<http://electionlawblog.org/?author=3>
See here
<http://www.clcblog.org/index.php?option=com_content&view=article&id=498:trevor-potter-tells-almost-all-during-reddit-qask-me-anythingq->.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Democratic Lawyer/Obama Advisor Bob Bauer to Teach at NYU"
<http://electionlawblog.org/?p=44881>
Posted on November 29, 2012 2:34 pm
<http://electionlawblog.org/?p=44881> by Rick Hasen
<http://electionlawblog.org/?author=3>
WSJ law blog reports
<http://blogs.wsj.com/law/2012/11/28/democratic-lawyerobama-advisor-bob-bauer-to-teach-at-nyu/>.
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Posted in election law biz <http://electionlawblog.org/?cat=51> |
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"Embattled transgender lawmaker resigns after all"
<http://electionlawblog.org/?p=44879>
Posted on November 29, 2012 2:33 pm
<http://electionlawblog.org/?p=44879> by Rick Hasen
<http://electionlawblog.org/?author=3>
The latest
<http://www.newhampshire.com/article/20121129/NEWS06/121129074/0/newhampshire11>
from NH.
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Posted in campaigns <http://electionlawblog.org/?cat=59> | 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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