[EL] Breaking 6th Circuit case on provisional ballots/ ELB News and Commentary 10/11/12
Rick Hasen
rhasen at law.uci.edu
Thu Oct 11 09:54:24 PDT 2012
Breaking News: Sixth Circuit Decides Provisional Ballot Cases, Finds
Constitutional Violation in Not Counting Certain Wrong Precinct
Ballots <http://electionlawblog.org/?p=41452>
Posted on October 11, 2012 9:32 am <http://electionlawblog.org/?p=41452>
by Rick Hasen <http://electionlawblog.org/?author=3>
The Sixth Circuit has decided /SEIU v. Husted
<http://www.ca6.uscourts.gov/opinions.pdf/12a0359p-06.pdf>/ and /NEOCH
v. Husted/ in a single opinion.
This is the most important decision in this election cycle, and it
represents a major victory for voters' rights, regardless of party. It
is especially important because this was a very conservative Sixth
Circuit panel, and it affirms the idea that /Bush v. Gore/ and Sixth
Circuit precedent requires some degree of uniformity and fairness in the
counting of ballots. My worst fears about this case, expressed in this
/Slate /piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/10/ohio_voter_laws_the_battle_over_disenfranchisement_you_haven_t_heard_about_.html>,
have fortunately not been realized.
The procedural history and issues in this case are complicated, and one
aspect of the opinion is being sent back to the lower court for
clarification and to make sure an earlier remedy does not create its own
"Bush v. Gore problem" (in the 6th Circuit's words), but the main point
is this: it violates the Constitution (equal protection and due process)
for the state of Ohio to fail to count ballots cast in the right
location but in the wrong precinct solely because of poll worker error.
As I stated in my Slate piece: "This is crazy. Amid all the fights over
voter ID laws
<http://www.post-gazette.com/stories/local/state/appeals-judge-set-to-rule-on-legitimacy-of-pas-new-voter-id-law-655226/>,
purging noncitizens
<http://articles.chicagotribune.com/2012-09-27/news/sns-rt-us-usa-campaign-voting-floridabre88q1qo-20120927_1_integrity-of-florida-elections-voter-rolls-state-ken-detzner>
from voter rolls, and early
<http://www.businessweek.com/news/2012-09-24/florida-needn-t-expand-early-voting-hours-judge-rules>
voting
<http://www.businessweek.com/news/2012-08-31/ohio-early-voting-days-must-be-equal-for-all-u-dot-s-dot-judge-rules>,
we should at least be able to agree, across partisan lines, on one
thing: No one should lose the right to vote because a poll worker can't
tell an odd from an even number."
Today the panel agreed. Two excerpts:
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and
(B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by
poll-worker error effectively requires voters to have a greater
knowledge of their precinct, precinct ballot, and polling place than
poll workers. Absent such omniscience, the State will permanently
reject their ballots without an opportunity to cure the situation.
The mere fact that these voters cast provisional ballots does not
justify this additional burden; as the district court explained,
Ohio law now requires thirteen different categories of voters to
cast provisional ballots, ranging from individuals who do not have
an acceptable form of identification to those who requested an
absentee ballot or whose signature was deemed by the precinct
official not to match the name on the registration forms....
Nor has the State shown abuse in the district court's fashioning of
injunctive relief tailored to the identified harm. The State would
disqualify thousands of rightplace/wrong-precinct provisional
ballots, where the voter's only mistake was relying on the
poll-worker's precinct guidance. That path unjustifiably burdens
these voters' fundamental right to vote. Recognizing that a
prospective remedy could not undo all of the harm occasioned by
poll-worker error, the district court crafted a narrow remedy that
preserves as much of a miscast ballot as possible.
The state could now try to go to the en banc Sixth Circuit or to the
Supreme Court. But this ruling has got to be right, and I hope the
state leaves this alone and does not go further. I also think this
opinion can be very important as precedent in future cases in stopping
the most egregious poor treatment of voters going forward.
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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
"Judge: Independence Party Voters In Brooklyn Primary Got Wrong
Ballots, But Election Rolls On" <http://electionlawblog.org/?p=41450>
Posted on October 11, 2012 9:26 am <http://electionlawblog.org/?p=41450>
by Rick Hasen <http://electionlawblog.org/?author=3>
The NY Daily News reports.
<http://www.nydailynews.com/blogs/dailypolitics/2012/10/judge-independence-party-voters-in-brooklyn-primary-got-wrong-ballots-but-elec>
"A big battle over a tiny election in southern Brooklyn
<http://articles.nydailynews.com/2012-09-26/news/34108562_1_wrong-ballots-votes-matter-independence-party>
has wrapped up without no change in the outcome --- even though a judge
found the city Board of Elections bungled the vote."
Share
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Posted in election administration <http://electionlawblog.org/?cat=18>,
third parties <http://electionlawblog.org/?cat=47> | Comments Off
"In race for campaign cash, everyone claims to be outmatched"
<http://electionlawblog.org/?p=41447>
Posted on October 11, 2012 9:24 am <http://electionlawblog.org/?p=41447>
by Rick Hasen <http://electionlawblog.org/?author=3>
Important Dan Eggen report
<http://www.washingtonpost.com/politics/decision2012/the-influence-industry-in-race-for-campaign-cash-everyone-claims-to-be-outmatched/2012/10/10/5a4ee5c2-1236-11e2-be82-c3411b7680a9_story.html>.
Please folks: we only have a billion dollars. Won't you contribute today?
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59> | Comments Off
Thoughts on the Montana Campaign Finance Case and the 9th Circuit
Stay <http://electionlawblog.org/?p=41444>
Posted on October 11, 2012 9:20 am <http://electionlawblog.org/?p=41444>
by Rick Hasen <http://electionlawblog.org/?author=3>
Yesterday, I reported that the Ninth Circuit hadstayed
<http://electionlawblog.org/?p=41383>federal district judge Lowell's
order permanently enjoining a host of campaign contribution limits in
Montana. The appeals court indicated it did so
<http://electionlawblog.org/?p=41390> because Judge Lowell issued his
order but did not provide an accompanying opinion to explain his
reasoning. It seems pretty clear from this case and the Nevada "none of
the above" case that in these emergency election type situations, the
9th Circuit is not going to uphold orders when district courts issue
opinions without explaining their reasoning at the same time. But the
9th Circuitleft open the possibility
<http://www.ca9.uscourts.gov/datastore/general/2012/10/10/12-35809_temp_stay_order.pdf>
it could lift the stay once it reviewed Judge Lowell's opinion.
Soon after the Ninth Circuit issued its temporary stay, Judge Lowell
issued his 38-page opinion
<http://electionlawblog.org/wp-content/uploads/District-Court-Findings.pdf>.
I indicated yesterday <http://electionlawblog.org/?p=41393>that the
court could well keep the stay in place because the courts have
expressed concerns about changing rules just before an election--when
there are reliance interests in the system as it is and the potential
for confusion.
I have now had a chance to read Judge Lowell's opinion, and I think that
the Ninth Circuit could well lift the stay in part.
1. This is a pretty conservative 9th Circuit panel (Bybee, Clifton,
Gould) and they are likely to be sympathetic with the general thrust of
Judge Lowell's analysis that the very low $160 contribution limit
applicable to some elections in Montana is too low to allow for
effective advocacy. Judge Lowell does a very good job applying the
/Randall/ factors, and this is the first case I've seen since /Randall/
where I thought plaintiffs actually presented decent evidence to satisfy
the burden under the test set forth by Justice Breyer in his plurality
/Randall/ opinion. The judges could well lift the stay as to the $160
limit, if they are not bothered that doing so would be changing rules
just before the election.
2. I see two big problems with what Judge Lowell did, aside from
changing the rules just before the election. First, Judge Lowell made
this apply immediately, even though he recognized that the Montana
Legislature will not reconvene forthree months. The effect of Judge
Lowell's ruling, if it is allowed to stand, is to get rid of the main
set of contributions in the state, without the ability of the state to
enact limits which would pass constitutional muster (it won't be hard to
find limits which are constitutionally acceptable under existing
precedent). This puts the state in a terrible bind, and it seems that
it doesn't show enough deference to the idea that legislatures can enact
reasonable contribution limits for anticorruption reasons, and this
order deprives the state of the chance to have a reasonable transition
to new rules.
3. Second, the judge struck down the whole statute, even though there
was /no evidence/ to support challenges to most of the parts of the
statute, something Judge Lowell acknowledged. The judge's severability
analysis was not persuasive: the rest of the law easily could function
without the $160 limit applied to some races, and clearly the state
legislature would like to have at least some of these laws in place.
The court hearing this case on the merits could well reverse on this
broad ruling. /Randall /requires a detailed factual analysis, and while
it looks like there was such an analysis as to the $160 limit, it does
not appear to be there for the rest of the statute.
Stay tuned.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Federal Court Blocks Voter ID Law in South Carolina, but Only for
Now" <http://electionlawblog.org/?p=41441>
Posted on October 11, 2012 8:55 am <http://electionlawblog.org/?p=41441>
by Rick Hasen <http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2012/10/11/us/politics/court-blocks-south-carolina-voter-id-law-for-now.html?ref=politics>.
Share
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, 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
"Celebrity Recruited to Make Case on Campaign-Finance Reform"
<http://electionlawblog.org/?p=41438>
Posted on October 11, 2012 8:51 am <http://electionlawblog.org/?p=41438>
by Rick Hasen <http://electionlawblog.org/?author=3>
NYT reports
<http://cityroom.blogs.nytimes.com/2012/10/11/celebrities-recruited-to-make-case-on-campaign-finance-reform/?smid=tw-share>.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Federal Court: In South Carolina We Trust"
<http://electionlawblog.org/?p=41436>
Posted on October 11, 2012 8:50 am <http://electionlawblog.org/?p=41436>
by Rick Hasen <http://electionlawblog.org/?author=3>
Andrew Cohen blogs
<http://www.theatlantic.com/politics/archive/2012/10/federal-court-in-south-carolina-we-trust/263452/>
at /The Atlantic/.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, 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
"Ohio Fights on Early Voting, Provisional Ballots"
<http://electionlawblog.org/?p=41434>
Posted on October 11, 2012 8:50 am <http://electionlawblog.org/?p=41434>
by Rick Hasen <http://electionlawblog.org/?author=3>
/Roll Call /
<http://www.rollcall.com/issues/58_28/Ohio-Fights-on-Early-Voting-Provisional-Ballots-218133-1.html?pos=htmbph>reports.
<http://www.rollcall.com/issues/58_28/Ohio-Fights-on-Early-Voting-Provisional-Ballots-218133-1.html?pos=htmbph>
"One of two legal challenges to Ohio's voting procedures could end up
before the Supreme Court in the next few weeks, creating the possibility
of an eleventh-hour decision affecting the nearly 8 million voters in
the crucial swing state."
Share
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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>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
Cert. Briefing Complete in Kinston County Case, Raising
Constituionality of Section 5 of the VRA
<http://electionlawblog.org/?p=41428>
Posted on October 11, 2012 8:44 am <http://electionlawblog.org/?p=41428>
by Rick Hasen <http://electionlawblog.org/?author=3>
I have posted the petition
<http://electionlawblog.org/wp-content/uploads/Kinston-Cert-Petn.pdf>,
government opposition
<http://electionlawblog.org/wp-content/uploads/Kinston-DOJ-BIO.pdf>
andreply
<http://electionlawblog.org/wp-content/uploads/Kinston-Cert-Reply.pdf>.
For those who have been following the issue, there's a question of
mootness presented in this petition which is not present in the Shelby
County case. My guess is that Shelby County is granted, and either this
case will be granted too, or it will be held for Shelby County. Having
not read the briefs yet, it is hard to say if there are issues here the
Court would want in its review of the constitutionality of section 5 of
the VRA which are not present just in Shelby County.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
Supreme Court <http://electionlawblog.org/?cat=29>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"There is No Small Stuff (cont.): Chisnell on Allen County, Ohio
Ballot Design" <http://electionlawblog.org/?p=41425>
Posted on October 11, 2012 8:35 am <http://electionlawblog.org/?p=41425>
by Rick Hasen <http://electionlawblog.org/?author=3>
A ChapinBlog
<http://blog.lib.umn.edu/cspg/electionacademy/2012/10/there_is_no_small_stuff_cont_c.php>.
Share
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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"The Obama Mega Donor Who Got Lost In The Crowd"
<http://electionlawblog.org/?p=41422>
Posted on October 11, 2012 8:33 am <http://electionlawblog.org/?p=41422>
by Rick Hasen <http://electionlawblog.org/?author=3>
TPM reports
<http://tpmmuckraker.talkingpointsmemo.com/2012/10/kareem_ahmed_priorities_usa_action_landmark.php>.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Democrats Rely on Labor Warchest to Blunt Republican Cash"
<http://electionlawblog.org/?p=41419>
Posted on October 11, 2012 8:21 am <http://electionlawblog.org/?p=41419>
by Rick Hasen <http://electionlawblog.org/?author=3>
Important Bloomberg report
<http://www.bloomberg.com/news/2012-10-11/democrats-rely-on-labor-warchest-to-blunt-republican-cash.html?alcmpid=politics>:
"Even as Democrats complain they're being outspent by new
Republican-friendly outside groups, they are relying on their own
longtime financial powerhouse: organized labor. Led by the Service
Employees International Union, labor groups have spent more than $188.5
million in the last 18 months, through Oct. 1, on television and radio
advertising, donations to candidates, contributions to political action
committees and other election-related items, a Bloomberg Government
review of U.S. Federal Election Commission records shows."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Women Worldwide Less Confident Than Men in Elections; Gender gap is
largest in high-income countries" <http://electionlawblog.org/?p=41417>
Posted on October 11, 2012 8:20 am <http://electionlawblog.org/?p=41417>
by Rick Hasen <http://electionlawblog.org/?author=3>
Gallup reports
<http://www.gallup.com/poll/157997/women-worldwide-less-confident-men-elections.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=Elections%20-%20Social%20Issues>.
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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"Oil Workers a Focus in North Dakota; 'Man Camps' Could Determine
Key Senate Race" <http://electionlawblog.org/?p=41415>
Posted on October 11, 2012 8:17 am <http://electionlawblog.org/?p=41415>
by Rick Hasen <http://electionlawblog.org/?author=3>
A fight
<http://www.rollcall.com/issues/58_28/Oil-Workers-a-Focus-in-North-Dakota-218134-1.html?pos=htmbtxt>for
every vote.
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"Pro-environment group gave grant to conservative nonprofit"
<http://electionlawblog.org/?p=41413>
Posted on October 11, 2012 8:16 am <http://electionlawblog.org/?p=41413>
by Rick Hasen <http://electionlawblog.org/?author=3>
A tangled web
<http://www.publicintegrity.org/2012/10/11/11357/pro-environment-group-gave-grant-conservative-nonprofit>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
legislation and legislatures <http://electionlawblog.org/?cat=27>,
lobbying <http://electionlawblog.org/?cat=28> | Comments Off
"2012 Spending on Judicial Advertisements Surpasses $7 Million, With
Michigan Leading the Way" <http://electionlawblog.org/?p=41410>
Posted on October 11, 2012 8:13 am <http://electionlawblog.org/?p=41410>
by Rick Hasen <http://electionlawblog.org/?author=3>
Justice at Stake and the Brennan Center have issued this press release.
<http://e2.ma/message/pk71c/1de06>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>, judicial elections
<http://electionlawblog.org/?cat=19> | Comments Off
The Circus is Back in Town <http://electionlawblog.org/?p=41405>
Posted on October 10, 2012 2:23 pm <http://electionlawblog.org/?p=41405>
by Rick Hasen <http://electionlawblog.org/?author=3>
The Daily Caller
<http://dailycaller.com/2012/10/10/new-okeefe-video-obama-campaign-staffer-caught-helping-activist-vote-twice/>on
a new O'Keefe video of alleged attempted voter fraud.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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"Unlimited Contributions to Parties Would Be Disastrous"
<http://electionlawblog.org/?p=41403>
Posted on October 10, 2012 2:18 pm <http://electionlawblog.org/?p=41403>
by Rick Hasen <http://electionlawblog.org/?author=3>
Meredith McGehee blogs.
<http://www.clcblog.org/index.php?option=com_content&view=article&id=479:unlimited-contributions-to-parties-would-be-disastrous>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Election-Cycle Limits In Doubt As Case Heads For Supreme Court"
<http://electionlawblog.org/?p=41400>
Posted on October 10, 2012 2:08 pm <http://electionlawblog.org/?p=41400>
by Rick Hasen <http://electionlawblog.org/?author=3>
Venable's Political Law Briefing
<http://www.politicallawbriefing.com/my-blog/2012/10/election-cycle-limits-in-doubt-as-case-heads-for-supreme-court.html>:
"A case headed to the Supreme Court could upend longstanding rules
limiting federal political contributions. The Republican National
Committee and an individual plaintiff filed the appeal after a
three-judge panel of the U.S. District Court for the District of
Columbia rejected
<http://www.fec.gov/law/litigation/mccutcheon_dc_memo_opinion.pdf> their
challenge to limits on the total amount an individual may contribute
over a two-year period in connection with federal elections."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Court approves South Carolina voter ID law for 2013?
<http://electionlawblog.org/?p=41397>
Posted on October 10, 2012 2:02 pm <http://electionlawblog.org/?p=41397>
by Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/national/court-approves-south-carolina-voter-id-law-for-2013/2012/10/10/ac7108c4-130f-11e2-ba83-a7a396e6b2a7_story.html?hpid=z4>.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, 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
Montana Case Will Be Back at 9th Circuit
<http://electionlawblog.org/?p=41393>
Posted on October 10, 2012 1:57 pm <http://electionlawblog.org/?p=41393>
by Rick Hasen <http://electionlawblog.org/?author=3>
Judge Lowell has now issued a 38-page opinion
<http://electionlawblog.org/wp-content/uploads/District-Court-Findings.pdf>explaining
his reasoning in striking down Montana's campaign finance laws. I'm at
the airport with no time to read this now.
I would note that while this removes one objection
<http://electionlawblog.org/wp-content/uploads/District-Court-Findings.pdf>
of the 9th Circuit to the judge's order (his lack of reasoning), I still
think it is fairly likely that the 9th Circuit keeps this stay in place
until after the election. The reason is that the Supreme Court in the
Purcell case (cited in the 9th circuit order) cautions about changes in
election rules just before the objection. That concern animated the DC
Court's approval of South Carolina's voter id case, but not until after
this election.
There's room for lots of confusion when rules are changed just before
the election, and the 9th Circuit could well keep the stay in place
until after this election, when there will be ample time to sort this out.
ATP's statement on Judge Lowell's ruling is here
<http://americantradition.org/?p=2766>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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The Montana Campaign Finance Case Ain't Over Before This Election
<http://electionlawblog.org/?p=41390>
Posted on October 10, 2012 11:30 am
<http://electionlawblog.org/?p=41390> by Rick Hasen
<http://electionlawblog.org/?author=3>
I have now seen the order
<http://www.ca9.uscourts.gov/datastore/general/2012/10/10/12-35809_temp_stay_order.pdf>.
It is possible that Judge Lovell could issue findings, and the 9th
Circuit motions panel, could reinstate his permanent [corrected]
injunction, before the election.
But I would not count on it.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Analysis: 3-Judge Court Unanimously Preclears South Carolina Voter
ID Law, But Delays Implementation Until 2013
<http://electionlawblog.org/?p=41387>
Posted on October 10, 2012 11:19 am
<http://electionlawblog.org/?p=41387> by Rick Hasen
<http://electionlawblog.org/?author=3>
You can find the opinion at this link
<https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0203-299>.
Here's Judge Kavanaugh's summary paragraph:
In short, Act R54 allows citizens with non-photo voter registration
cards to still vote without a photo ID so long as they state the
reason for not having obtained one; it expands the list of
qualifying photo IDs that may be used to vote; and it makes it far
easier to obtain a qualifying photo ID than it was under
pre-existing law. Therefore, we conclude that the new South Carolina
law does not have a discriminatory retrogressive effect, as compared
to the benchmark of South Carolina's pre-existing law. We also
conclude that Act R54 was not enacted for a discriminatory purpose.
Act R54 as interpreted thus satisfies Section 5 of the Voting Rights
Act, and we grant pre-clearance for South Carolina to implement Act
R54 for future elections beginning with any elections in 2013. As
explained below, however, given the short time left before the 2012
elections, and given the numerous steps necessary to properly
implement the law -- particularly the new "reasonable impediment"
provision -- and ensure that the law would not have discriminatory
retrogressive effects on African-American voters in 2012,we do not
grant pre-clearance for the 2012 elections.
Judge Kavanaugh's careful analysis is persuasive, and is fully joined by
both other judges [corrected]. Especially important was how much easier
South Carolina's i.d. requirement is to comply with than other states,
especially the ability to get around the requirement by showing a
"reasonable impediment." Judge Kollar-Kotelly emphasized how if South
Carolina actually makes it harder to get the i.d. through new
construction of the meaning of reasonable impediment, follow on section
5 lawsuits would be possible.
But perhaps the greatest significance of this ruling, apart from the
fact that South Carolina is being treated differently from Texas based
on the specific facts, is what Judge Bates, joined by Judge
Kollar-Kotelly, said in a concurring opinion about the continued need
for section 5 (Judge Bates recently upheld the constitutionality of
section 5 in a case heading to the Supreme Court). He said it
illustrated how section 5 works as an important bargaining chip for
minority voters:
First, to state the obvious, Act R54 as now pre-cleared is not the
R54 enacted in May 2011. It is understandable that the Attorney
General of the United States, and then the intervenor-defendants in
this case, would raise serious concerns about South Carolina's voter
photo ID law as it then stood. But now, to the credit of South
Carolina state officials, Act R54 as authoritatively interpreted
does warrant pre-clearance. An evolutionary process has produced a
law that accomplishes South Carolina's important objectives while
protecting every individual's right to vote and a law that addresses
the significant concerns raised about Act R54's potential impact on
a group that all agree is disproportionately African-American. As
the Court's opinion convincingly describes, South Carolina's voter
photo ID law, as interpreted, now compares very favorably with the
laws of Indiana, Georgia and New Hampshire, each of which has passed
legal muster through either federal court constitutional review or
pre-clearance by the Attorney
General. The path to a sound South Carolina voter photo ID law has
been different, given the essential role of the State's
interpretation of key provisions.
Which brings me to my second observation -- one cannot doubt the
vital function thatSection 5 of the Voting Rights Act has played
here. Without the review process under the Voting Rights Act, South
Carolina's voter photo ID law certainly would have been more
restrictive. Several legislators have commented that they were
seeking to structure a law that could be precleared. See Trial Tr.
104:18-21 (Aug. 28, 2012) (Harrell) ("I was very aware at the time
that we were doing this that whatever we would have to do would have
to be subject to the Voting Rights Act because that would be the
basis for the Department of Justice preclearing the bill for us.");
id. at 105:15-18 ("[I] ask[ed] the staff who drafted the bill for me
to please make sure that we are passing a bill that will withstand
constitutional muster and get through DOJ or through this court.");
Trial Tr. 108:23-25 (Aug. 27, 2012) (Campsen) (agreeing that he was
"interested in what voter ID legislation had been precleared" in
drafting R54); id. at 148:10-15 (discussing
senators' statement that "[t]he responsible thing to do was to fix
[the bill] so that it would not fail in the courts or get tripped up
by the Voting Rights Act"); Trial Tr. 141:9-12 (Aug. 28, 2012)
(McConnell) (discussing his efforts on behalf of a bill that "had a
better chance of getting preclearance"); id. at 182:18-20 (on the
Senate floor "[t]here was discussion about" how "to craft a bill
that would comply with the voting rights amendment"). The key
ameliorative provisions were added during that legislative process
and were shaped by the need for pre-clearance. And the evolving
interpretations of these key provisions of Act R54, particularly the
reasonable impediment provision, subsequently presented to this
Court were driven by South Carolina officials' efforts to satisfy
the requirements of the Voting Rights Act.
Congress has recognized the importance of such a deterrent effect.
See H.R. Rep. No.109-478, at 24 (2006) (finding that "Section 5
encourage[s] the legislature to ensure that any voting changes would
not have a discriminatory effect on minority voters," and "that the
existence of Section 5 deterred covered jurisdictions from even
attempting to enact discriminatory voting changes" (internal
quotation marks omitted)); S. Rep. No. 109-295, at 11 (2006)
(finding "some reason to believe that without the Voting Rights
Act's deterrent effect on potential misconduct" racial disparities
in voting "might be considerably worse"). The Section 5 process here
did not force South Carolina to jump through unnecessary hoops.
Rather, the history of Act R54 demonstrates the continuing utility
of Section 5 of the Voting Rights Act in deterring problematic, and
hence encouraging non-discriminatory, changes in state and local
voting laws.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
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Confirmed: 9th Circuit Has Reinstated Montana Campaign Contribution
Limits <http://electionlawblog.org/?p=41383>
Posted on October 10, 2012 8:40 am <http://electionlawblog.org/?p=41383>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP reports
<http://www.washingtonpost.com/national/federal-appeals-court-reinstates-montana-campaign-contribution-limits-as-election-looms/2012/10/10/1b0a230e-12ef-11e2-9a39-1f5a7f6fe945_story.html>:.
"The 9th U.S. Circuit Court of Appeals reinstated Montana's campaign
donation limits, telling the federal judge who overturned it to outline
his full reasoning so the panel can review the case. The court
intervened late Tuesday less than a week after the judge's decision
opened the door to unlimited money in state elections --- during the
height of election season.... Over the past week, Montana election
officials had urged candidates to abide by the old limits. But attorneys
for conservative and Republican groups advised candidates they could
take unlimited money during that window."
I expected this reversal. Here's my earlier post:
Breaking: Federal Court Strikes Down Many Montana Contribution
Limits, Says Explanation Coming Later
<http://electionlawblog.org/?p=41076>
Posted on October 3, 2012 1:47 pm
<http://electionlawblog.org/?p=41076> by Rick Hasen
<http://electionlawblog.org/?author=3>
Wow. See this 5 page order,
<http://electionlawblog.org/wp-content/uploads/district-court-order.pdf>
striking down Montana Code Annotated 13-37-216
<http://data.opi.mt.gov/bills/mca/13/37/13-37-216.htm> in its
entirety. The judge did note that plaintiffs did not challenge the
aggregate limits on political committee [corrected] contributions in
13-27-218 <http://data.opi.mt.gov/bills/mca/13/37/13-37-218.htm>
which remains in effect.
It seems quite unusual for a judge to do this right before the
election, and to do so without giving any reasoning (just a promise
of reasoning to come later). I expect Montana will go immediately
to the Ninth Circuit for emergency relief, and judging fromthe last
time a judge decided an important election question just before the
election without giving any reasoning
<http://electionlawblog.org/?p=39602>, there could well be an order
staying this result, at least for this election.
Below the fold you can read the text of what's now enjoined.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Democrats Keep Voter Registration Lead in 4 Battleground States"
<http://electionlawblog.org/?p=41380>
Posted on October 10, 2012 8:07 am <http://electionlawblog.org/?p=41380>
by Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg reports
<http://www.bloomberg.com/news/2012-10-10/democrats-keep-voter-registration-lead-in-4-battleground-states.html?alcmpid=politics>.
Share
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Posted in voter registration <http://electionlawblog.org/?cat=37> |
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Audio Recording of 6th Cir. Oral Argument in Ohio Wrong Precinct
Case Now Available <http://electionlawblog.org/?p=41377>
Posted on October 10, 2012 8:05 am <http://electionlawblog.org/?p=41377>
by Rick Hasen <http://electionlawblog.org/?author=3>
The Sixth Circuit website has this notice: "The United States Court of
Appeals for the Sixth Circuit has posted audio files of the telephonic
arguments conducted on October 1, 2012, in two appeals: Svc. Emp. Intl.
Union, Loc. 1, et al. v. Husted, No 12-4069, and NE OH Coal. for the
Homeless, et al. v. Husted, No. 12-3916. The files may be accessed by
clicking on the following links. 12-3916
<http://www.ca6.uscourts.gov/internet/documents/12-3916.mp3> , 12-4069
<http://www.ca6.uscourts.gov/internet/documents/12-4069.mp3>"
My /Slate /piece on this case is here
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/10/ohio_voter_laws_the_battle_over_disenfranchisement_you_haven_t_heard_about_.html>.
I expect we'll get a ruling and opinion by the end of this week.
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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
"'Top-2' primary is like candy --- offers quick satisfaction but
ultimately rots teeth" <http://electionlawblog.org/?p=41374>
Posted on October 10, 2012 8:00 am <http://electionlawblog.org/?p=41374>
by Rick Hasen <http://electionlawblog.org/?author=3>
See this oped
<http://azcapitoltimes.com/news/2012/10/05/top-2-primary-is-like-candy-offers-quick-satisfaction-but-ultimately-rots-teeth/?utm_source=WhatCounts+Publicaster+Edition&utm_medium=email&utm_campaign=Capitol+Times+Oct.+5+Morning+Edition&utm_content=READ+MORE>from
some LWV folks.
Share
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Posted in campaigns <http://electionlawblog.org/?cat=59>, political
parties <http://electionlawblog.org/?cat=25>, primaries
<http://electionlawblog.org/?cat=32> | Comments Off
"Overview of Court Challenges to Campaign Finance & Disclosure Laws
Nationwide" <http://electionlawblog.org/?p=41371>
Posted on October 10, 2012 7:58 am <http://electionlawblog.org/?p=41371>
by Rick Hasen <http://electionlawblog.org/?author=3>
Useful.
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1918:october-10-2012-overview-of-court-challenges-to-campaign-finance-a-disclosure-laws-nationwide&catid=63:legal-center-press-releases&Itemid=61>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"N.M. Attorney General Investigating GOP 'Voter Suppression'"
<http://electionlawblog.org/?p=41368>
Posted on October 10, 2012 7:55 am <http://electionlawblog.org/?p=41368>
by Rick Hasen <http://electionlawblog.org/?author=3>
TPM
<http://tpmmuckraker.talkingpointsmemo.com/2012/10/new_mexico_gary_king_voter_intimidation.php>:
"New Mexico Attorney General Gary King has launched an investigation
into a video that allegedly shows Republican officials giving volunteer
poll watchers false information about state election law, his office
announced Tuesday."
My earlier coverage of this controversy is here
<http://electionlawblog.org/?p=41193>.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, The Voting
Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
Accusations of Double Voting by Local Republican Candidate in Texas,
in District of True the Vote Head <http://electionlawblog.org/?p=41365>
Posted on October 10, 2012 7:39 am <http://electionlawblog.org/?p=41365>
by Rick Hasen <http://electionlawblog.org/?author=3>
I suspect
<http://juanitajean.com/2012/10/10/true-the-vote-can-kiss-my-big-blue-butt/>we
will hear more about this.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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"Are Voter ID Opponents Winning the Battle but Losing the War?"
<http://electionlawblog.org/?p=41362>
Posted on October 10, 2012 7:36 am <http://electionlawblog.org/?p=41362>
by Rick Hasen <http://electionlawblog.org/?author=3>
Extensive Stateline report
<http://www.pewstates.org/projects/stateline/headlines/are-voter-id-opponents-winning-the-battle-but-losing-the-war-85899422399>.
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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
Obama Campaign Responds to Latest Round of Accusations About Taking
Foreign Campaign Donations <http://electionlawblog.org/?p=41359>
Posted on October 10, 2012 7:28 am <http://electionlawblog.org/?p=41359>
by Rick Hasen <http://electionlawblog.org/?author=3>
You can find the statement here
<http://www.barackobama.com/truth-team/entry/fact-check-obama-for-america-only-accepts-contributions-from-eligible-ameri>.
I try to put this dispute in a larger context about accepting truth in
close campaigns in my new "Election Truthers
<http://www.slate.com/articles/news_and_politics/politics/2012/10/will_republicans_accept_if_barack_obama_defeats_mitt_romney_.html>"
piece for /Slate./
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"Would an Obama Campaign Win Hurt Campaign Finance Reform?"
<http://electionlawblog.org/?p=41357>
Posted on October 10, 2012 6:09 am <http://electionlawblog.org/?p=41357>
by Rick Hasen <http://electionlawblog.org/?author=3>
Mother Jones explores.
<http://www.motherjones.com/mojo/2012/10/obama-super-pac-reform>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Chapin Responds to Ari Berman on the Ohio Decision to Appeal Early
Voting Decision to SCOTUS <http://electionlawblog.org/?p=41355>
Posted on October 10, 2012 6:06 am <http://electionlawblog.org/?p=41355>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here.
<http://blog.lib.umn.edu/cspg/electionacademy/2012/10/one_persons_delay_anothers_due.php>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"House, Senate Campaigns Welcome Lobbyists Shunned by Team Obama"
<http://electionlawblog.org/?p=41353>
Posted on October 10, 2012 5:32 am <http://electionlawblog.org/?p=41353>
by Rick Hasen <http://electionlawblog.org/?author=3>
/The Hill/
<http://thehill.com/homenews/house/261133-house-senate-campaigns-welcome-lobbyists-shunned-by-team-obama>reports.
<http://thehill.com/homenews/house/261133-house-senate-campaigns-welcome-lobbyists-shunned-by-team-obama>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>, legislation and
legislatures <http://electionlawblog.org/?cat=27>, lobbying
<http://electionlawblog.org/?cat=28> | Comments Off
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.
Share
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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
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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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