[EL] ELB News and Commentary 10/10/12
Rick Hasen
rhasen at law.uci.edu
Tue Oct 9 21:50:57 PDT 2012
Some Thoughts on the Ohio Early Voting Decision and SCOTUS
<http://electionlawblog.org/?p=41350>
Posted on October 9, 2012 9:48 pm <http://electionlawblog.org/?p=41350>
by Rick Hasen <http://electionlawblog.org/?author=3>
Today Ohio filedthis petition
<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/Ohio-voting-applic-12A338.pdf>with
Justice Kagan, Circuit Justice for the Sixth Circuit, asking for the
Court to grant emergency relief to negate an order from a federal
district court, recently affirmed by the 6th Circuit, requiring Ohio to
give Ohio counties the power to restore three days of early voting in
the event these counties give the right to military voters. Ohio SOS
Husted's press release announcing his decision is here
<http://www.sos.state.oh.us/SOS/mediaCenter/2012/2012-10-09.aspx>.
A few observations:
1. I expected that Husted would try first with an en banc panel of the
Sixth Circuit, where I thought he would have a pretty good chance of
getting a reversa <http://electionlawblog.org/?p=41187>l. Why did he go
straight to the Supreme Court? The answer may be as simple as timing.
He may have figured that if he won before the en banc Sixth Circuit, the
Obama campaign would have gone to the Supreme Court, and so he would
rather save the time of the extended review. If that's the case, it
does lose the benefit that comes from being a winning party going into
the Supreme Court against a party seeking emergency relief. Perhaps
Husted cares more about finality here than winning? Or maybe there's a
larger strategic choice here. I pegged two cases
<http://abclocal.go.com/kabc/story?section=news/national_world&id=8831417>
as most likely to come to the Supreme Court before the election. This is
one of the cases. The other is also from Ohio, and it is the SEIU case,
which was the wrong precinct poll worker error case I recently wrote
about for /Slate. /
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/10/ohio_voter_laws_the_battle_over_disenfranchisement_you_haven_t_heard_about_.html>Both
raise related issues about the scope of equal protection rights for
voters after Bush v. Gore. Perhaps Husted thought he'd benefit by
getting this case there first. I'm not sure.
2. Justice Kagan has already asked for a response from the Obama
campaign by 7 pm Friday. This will give the Justices and their clerks a
weekend to begin working on what to do. I think it very likely that
Justice Kagan will refer the matter to the Court. If they act, they
will act to reverse, but I'm not sure what they will do. Interestingly,
Ohio's brief does not even mention or cite /Bush v. Gore/, but I bet the
Obama campaign's brief will do so. This would be an opportunity for the
Court to explain a bit about what Bush v. Gore means, something the
Court has not done---it has never cited the case since it was decided in
December 2000. The Court may be reluctant to get involved again in such
an issue. On the other hand, there is a lot which is controversial and
unconvincing about the opinions in this case. It would not surprise me
if there were at least four of the conservative Justices on the Court
who will be bothered by what the lower courts did here in light of
existing precedent that they will want to get involved. Unlike my gut
which told me that the Sixth Circuit en banc would be likely to reverse
(had it gotten the case), again, I'm not sure what happens here.
3. Time is short. If the Court is going to act, I expect we will get an
opinion some time next week. This week the Court is hearing the
affirmative action case, and the Court is back after the tense end of
the last term. Interpersonal dynamics among the Justices during this
period must be interesting to say the least.
Stay tuned.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Election Truthers; Will Republicans accept an Obama election
victory?" <http://electionlawblog.org/?p=41348>
Posted on October 9, 2012 9:32 pm <http://electionlawblog.org/?p=41348>
by Rick Hasen <http://electionlawblog.org/?author=3>
My new /Slate /column asks:
<http://www.slate.com/articles/news_and_politics/politics/2012/10/will_republicans_accept_if_barack_obama_defeats_mitt_romney_.html>
What if President Obama wins re-election and Republicans don't
believe it?
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Posted in campaigns <http://electionlawblog.org/?cat=59>, The Voting
Wars <http://electionlawblog.org/?cat=60> | Comments Off
Interesting Federal Court Decision Involving Indiana Resident Who
Cannot Get Voter ID <http://electionlawblog.org/?p=41345>
Posted on October 9, 2012 9:30 pm <http://electionlawblog.org/?p=41345>
by Rick Hasen <http://electionlawblog.org/?author=3>
This opinion
<http://electionlawblog.org/wp-content/uploads/201210091731.pdf>,
finding some due process rights to a hearing to get such an ID when the
BMV has refused, was issued by the same trial judge who rejected the
broad claims against voter id in the Crawford case.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"Ohio asks Supreme Court to overturn early-voting ruling"
<http://electionlawblog.org/?p=41342>
Posted on October 9, 2012 9:25 pm <http://electionlawblog.org/?p=41342>
by Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports.
<http://www.washingtonpost.com/politics/decision2012/ohio-asks-supreme-court-to-overturn-early-voting-ruling/2012/10/09/5378629a-1246-11e2-be82-c3411b7680a9_story.html>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
Half of October Outside Spending Came from Undisclosed Contributions
<http://electionlawblog.org/?p=41339>
Posted on October 9, 2012 9:22 pm <http://electionlawblog.org/?p=41339>
by Rick Hasen <http://electionlawblog.org/?author=3>
Sunlight:
*Outside Spending*
<http://organizing.sunlightfoundation.com/page/m/64f588b6/28885e2d/33c16420/6803c11c/1661512776/VEsH/>
$630.6 million (to date)
* Total independent expenditures * --- $624.6 million
* Total electioneering communications --- $6.3 million
Since October 1, super PACs and other outside groups spent more than
$87.48 million.*$44.5 million of that was by groups that don't disclose
their donors.* If the outside spending continues at this clip through
Election Day,/the total could top $1 billion/. Read more on the Sunlight
Reporting Group blog
<http://organizing.sunlightfoundation.com/page/m/64f588b6/28885e2d/33c16420/6803c11d/1661512776/VEsE/>.
*
*
<http://organizing.sunlightfoundation.com/page/m/64f588b6/28885e2d/33c16420/6803c11e/1661512776/VEsF/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Voter Registration Lookup Laws" <http://electionlawblog.org/?p=41336>
Posted on October 9, 2012 9:19 pm <http://electionlawblog.org/?p=41336>
by Rick Hasen <http://electionlawblog.org/?author=3>
Pew Data Dispatch
<http://www.pewstates.org/research/analysis/voter-registration-lookup-tools-85899422373>.
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Posted in voter registration <http://electionlawblog.org/?cat=37> |
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"The CEO Who Built Himself America's Largest House Just Threatened
to Fire His Employees if Obama's Elected"
<http://electionlawblog.org/?p=41334>
Posted on October 9, 2012 9:18 pm <http://electionlawblog.org/?p=41334>
by Rick Hasen <http://electionlawblog.org/?author=3>
This item
<http://gawker.com/5950189/the-ceo-who-built-himself-americas-largest-house-just-threatened-to-fire-his-employees-if-obamas-elected>
appears at Gawker.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Obama Campaign's Top Lawyer: There Is No Voter Fraud"
<http://electionlawblog.org/?p=41331>
Posted on October 9, 2012 9:16 pm <http://electionlawblog.org/?p=41331>
by Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg does a video interview
<http://www.youtube.com/watch?v=_8Fz9SorvIM> with Bob Bauer.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
Eric Eversole Respond to Bob Carey on Military Voting Issues
<http://electionlawblog.org/?p=41328>
Posted on October 9, 2012 9:12 pm <http://electionlawblog.org/?p=41328>
by Rick Hasen <http://electionlawblog.org/?author=3>
Following up on this post <http://electionlawblog.org/?p=41217>, Eric
Eversole sends along these thoughts:
The point that must not be forgotten is that the Federal Voting
Assistance Program (FVAP) failed to provide military voters the
assistance required under federal law. The most recent allegations
are an attempt to deflect criticism from FVAP's failures and cloud
the real problem of low military voter participation rates.
Contrary to Mr. Carey's claims, the Military Voter Protection
Project (MVP Project) considered whether to include "automatically"
generated absentee ballot requests in our analysis of the 2008
election data. Under federal law, as it stood in 2008, states were
required to send out absentee ballots to military and overseas
voters for two federal election cycles. In other words, if a
military voter requested an absentee ballot for the 2006 federal
election, the state not only had to send absentee ballots for the
2006 election cycle, it also automatically send absentee ballots for
the 2008 federal elections as well.
Federal law subsequently changed in 2009, but we decided to include
automatic absentee ballots in our analysis for two reasons. First,
they were still valid absentee ballot requests for the 2008
election. Second, a vast majority of these ballots were cast and
counted. This latter fact is evidenced by the 2008 post-election
report by the Election Assistance Commission
<http://www.eac.gov/assets/1/Page/2008%20Uniformed%20and%20Overseas%20Citizens%20Absentee%20Voting%20Act%20Survey.pdf>
(EAC), where nearly two-thirds of these ballots were received by the
voter and were returned to the local election official to be counted.
For us, it came down to this: if you are trying to gauge the number
of potential participants in an election, why would you exclude
valid absentee ballot requests, especially when a vast majority of
those ballots were returned and counted? Regardless of the source,
they represent thousands of real military and overseas voters that
participated in the 2008 election. Now, they represent thousands of
military and overseas voters that may not be able to participate in
the upcoming election.
Nor should anyone buy the false claim that military and overseas
voting is actually up in 2012. That claim can only be made by
ignoring the 231,000 automatic absentee ballots that were sent out
and the 150,000 that were returned to local election officials to be
counted. It makes no sense to exclude these ballots unless you were
trying to understate actual participation rates in 2008.
If you look at the number of military and overseas ballots that were
counted in 2008, it shows you how far we must go in the coming weeks
to meet 2008 totals. Take Florida, for example: in 2008, the state
counted 95,014 absentee ballots from military and overseas voters.
Yet, as of September 22^nd , the state had sent only 65,173
absentee ballots to these voters.
The same holds true for Virginia. In 2008, Virginia counted 28,816
military and overseas ballots in the presidential election, but has
sent out only 12,292 for this year's election as of September 22,
2012. It doesn't take much to figure out that it will be difficult
to meet the 2008 participation levels, even if every single ballot
is returned and counted.
The more interesting discussion is not whether the number of
absentee ballots will be down this year, but how much of the
decrease can be blamed on FVAP, and most importantly, how we ensure
that our military voters are not disenfranchised in this election.
Some commentators have pointed to the reduction in overseas
deployments and a reduction in activated National Guard members, as
an excuse for reduced absentee ballot requests. Others have pointed
to the removal of the automatic absentee ballot requests from
federal law and how that may have impacted participation.
These factors, however, do not overcome FVAP's failure to implement
a key provision of the MOVE Act---one that would have created a more
systematic basis for allowing military voters to register and
request an absentee ballot. That process was supposed to be
governed by the National Voter Registration Act or "Motor Voter."
As many in the election community have long known, Motor Voter has
played a critical role in helping all Americans, especially those in
underrepresented communities, to participate in our elections. When
Congress passed the MOVE Act in 2009, it determined that military
members should be entitled to the same benefits when the check into
a new duty station. Yet, that didn't happen.
FVAP and the Pentagon's failure to implement this requirement must
be the central point in this discussion. If we are going to improve
the participation rates by military voters, they need a more
systematic process to register and request an absentee ballot.
Until that occurs, our military members will continue to be one of
the most disenfranchised groups in the United States.
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Posted in absentee ballots <http://electionlawblog.org/?cat=53>,
military voting <http://electionlawblog.org/?cat=48> | Comments Off
Preview of CNN Documentary Who Counts?, Addressing Voting Wars
Issues <http://electionlawblog.org/?p=41326>
Posted on October 9, 2012 9:08 pm <http://electionlawblog.org/?p=41326>
by Rick Hasen <http://electionlawblog.org/?author=3>
Watch it here.
<http://www.cnn.com/video/#/video/politics/2012/10/09/who-counts-voter-fraud-laws.cnn>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Ohio Secretary of State Subverts Voting Rights"
<http://electionlawblog.org/?p=41324>
Posted on October 9, 2012 9:06 pm <http://electionlawblog.org/?p=41324>
by Rick Hasen <http://electionlawblog.org/?author=3>
Ari Berman writes
<http://www.thenation.com/blog/170448/ohio-secretary-state-subverts-voting-rights>
for /The Nation./
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
Ohio Asks Supreme Court to Intervene in Early Voting Case
<http://electionlawblog.org/?p=41321>
Posted on October 9, 2012 3:57 pm <http://electionlawblog.org/?p=41321>
by Rick Hasen <http://electionlawblog.org/?author=3>
I'm changing planes without time for analysis, but here's the SCOTUSBlog
post
<http://www.scotusblog.com/2012/10/ohio-asks-to-curb-early-voting/#more-153506>.
More to come late tonight or early tomorrow morning.
One interesting question: why did Ohio not ask for en banc 6th Circuit
review. Some thoughts to come.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Election activists, Boulder County clerk spar over absentee
ballots" <http://electionlawblog.org/?p=41317>
Posted on October 9, 2012 4:33 am <http://electionlawblog.org/?p=41317>
by Rick Hasen <http://electionlawblog.org/?author=3>
The latest
<http://www.dailycamera.com/boulder-county-news/ci_21728656/election-activists-boulder-county-clerk-spar-over-absentee>from
Colorado.
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Posted in absentee ballots <http://electionlawblog.org/?cat=53>,
election administration <http://electionlawblog.org/?cat=18> | Comments Off
"New 'Super PACs' Alter Landscape for House Races"
<http://electionlawblog.org/?p=41315>
Posted on October 9, 2012 4:32 am <http://electionlawblog.org/?p=41315>
by Rick Hasen <http://electionlawblog.org/?author=3>
Must-read NYT report:
<http://www.nytimes.com/2012/10/09/us/politics/new-super-pacs-alter-landscape-for-house-races.html>
" In the shadow of the supersize 'super PACs
<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>'
that have reshaped the battle for the White House and Senate, a new and
potentially potent kind of super PAC is proliferating in the closing
weeks of the campaign and taking aim at House races. With some of the
groups backing Democrats and some supporting Republicans, they are
picking a few Congressional races in which advertising is cheaper or the
airwaves less cluttered and transforming them with a barrage of outside
money, swamping incumbents and challengers alike."
This is exactly what I warned about in a CNN opinion piece
<http://www.cnn.com/2012/01/09/opinion/hasen-super-pacs/index.html> back
in January:
Given the expected vast spending by presidential candidates and
parties in the general election, I am not very concerned that Super
PAC spending will influence the outcome of the presidential
election, though it might.
I am not even that concerned about Super PAC negative advertising,
which can serve to educate the public and mobilize some voters to
become more politically engaged.
But I am concerned that Super PAC spending will influence the
outcome of close Senate and congressional races. And I am greatly
concerned that when Election Day is over and the public will stop
hearing about Super PACs, contributions to these groups will skew
public policy away from the public interest and toward the interest
of the new fat cats of campaign finance, as members of the House and
Senate thank their friends and look over their shoulder at potential
new enemies.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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--
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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