[EL] SCOTUS grants cert in Arizona's proof of citizenship case

[bzall at aol.com]

This is the case I discussed last week on this list. The voter ID at the polls provision of the Arizona initiative was upheld all the way through the case, based on the Supreme Court's recent Crawford decision, and was not part of the cert petition; that wouldn't have gone anywhere anyway. The Petition only asked whether the Ninth Circuit erred in creating a theory that said that the EAC could preempt states' ability to ask for documentation of citizenship beyond just a signature on a postcard. In other words, where the Court had said in Crawford that voter ID was fine at the polls (where arguably there is less risk of impersonation fraud), here the 9th Circuit said voter ID was not fine for voter registration fraud (where the risk is arguably greater). This was like waving a red flag in front of the Court. 


In more technical terms, the 9th Cir en banc ruled that there are different rules for reviewing preemption under the Elections Clause than under the usual Supremacy Clause preemption cases (like last June's Arizona immigration case); under the 9th Circuit's Elections Clause theory, a federal rule operates as if it were a later decision of the state legislature and thus there are no presumptions of correctness or reasonableness that the earlier state action would have enjoyed under the regular Supremacy Clause analysis. The Fifth Circuit recently disagreed, citing the 9th Cir in this case. Plus, this was the second time this case had been to the Supremes; the earlier case was Purcell v Gonzalez, in which Justice Stevens pretty much said the state initiative was presumed valid, as a means to protect the State's powerful interests in election integrity (which, by the way, and relevant to last week's shouting match here, is as important to the Court as the interest in promoting voter participation, which shouldn't be a surprise, since NVRA has four statutory goals, only one of which is in promoting participation and then only of "eligible" voters) and it would take fact-finding to show on an as-applied basis, that there was a problem. 


So it wasn't as much a surprise as Lyle D. of SCotUSBlog suggests. It was a pretty dramatic 9th Circuit decision, a split among circuits, and a big issue on which the court has recently spoken. 


Barnaby Zall 
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10411 Motor City Drive, Suite 500
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301-231-6943 (direct dial) 
bzall at aol.com 
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-----Original Message-----
From: Foley, Edward <foley.33 at osu.edu>
To: Rick Hasen <rhasen at law.uci.edu>; law-election at UCI.edu <law-election at uci.edu>
Sent: Mon, Oct 15, 2012 10:01 am
Subject: [EL] SCOTUS grants cert in Arizona's proof of citizenship case



SCOTUSblog is reporting that the Court granted cert in this case:http://moritzlaw.osu.edu/electionlaw/litigation/gonzalez.php (if anyone is looking for the most recent Ninth Circuit documents in this case that’s been around for a long while, they are towards the top, and here’s the link to the Ninth Circuit’s en banc opinion:http://moritzlaw.osu.edu/electionlaw/litigation/documents/opinion_002.pdf )
 
SCOTUSblog has the cert stage briefs in the Supreme Court:http://www.scotusblog.com/2012/10/petitions-to-watch-conference-of-october-12-2012/  (We’ll be adding those to the EL at M page as soon as we get a chance.)
 
It looks to me like the only part of the case on which cert has been granted concern’s Arizona’s proof of citizenship requirement at time of registration, and not the other portion of the case—which concerned Arizona’s version of a polling place voter ID law.  If this is an incorrect understanding of the cert grant, please let me know.
 
Thanks, Ned
 

Edward B. Foley
Director,Election Law @ Moritz
Chief Justice Thomas J. Moyer Professor for the Administration of Justice and the Rule of Law
 
The Ohio State University Moritz College of Law
(614) 292-4288;foley.33 at osu.edu
Website:www.electionlaw.osu.edu

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu]On Behalf Of Rick Hasen
Sent: Saturday, October 13, 2012 11:51 PM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 10/14/12

 

Ohio Files SCOTUS Reply Brief in Ohio Early Voting Case, Skirting Bush v. Gore

Posted on October 13, 2012 8:48 pm by Rick Hasen

You can find the brief here (via SCOTUSBlog).  Yesterday I wrote about how the Obama campaign brief relied upon equal protection principles from Bush v. Gore.  Here is the response of the state:

Respondents’ attempt to avoid this problem by analogizing to Bush v. Gore, 531 U.S. 98 (2000), and Dunn v. Blumstein, 405 U.S. 330 (1972), also fails. Opp. 24. Those cases triggered heightened scrutiny because they did involve disenfranchisement. In Bush, the varying vote counting standards had “led to unequal evaluation of ballots in various respects.” 531 U.S. at 106 (emphasis added). Likewise, the Tennessee residency standard in Dunn “completely bar[red] from voting all residents not meeting the fixed durational standards,” thus “denying some citizens the right to vote” for illegitimate reasons. 405 U.S. at 336. Both cases, then, fundamentally interfered with the right to vote either by failing to count a lawfully cast ballot or by refusing to allow an eligible voter to cast one in the first place. Neither circumstance is present here. Stay App. 24-27.

How odd to characterize Bush v. Gore as a case in which the state “fail[ed] to count a lawfully cast ballot.”
The brief does not otherwise grapple with the “arbitrary and disparate treatment” language of Bush v. Gore, which is the key to the Obama campaign’s argument.




Posted inelection administration, The Voting Wars, voting | Comments Off


“Fired RNC consultant preps get-out-the-vote campaign”

Posted on October 13, 2012 8:37 pm by Rick Hasen

LA Times: “The political consultant fired by the Republican National Committee amid fraud allegations in Florida is now hiring workers for a voter canvassing operation this fall in as many as 30 states, his spokesman said. Nathan Sproul, whose career as aGOP get-out-the-vote consultant has been dogged by reports of fraudulent registrations, has been advertising for $15-an-hour workers for ‘conservative voter identification’ in Virginia, Wisconsin and Iowa.”




Posted incampaigns, chicanery, voter registration, voting | Comments Off


“Prop. 30 inspires voter registration drives aimed at students”

Posted on October 13, 2012 8:31 pm by Rick Hasen

The LA Times reports, with the subhead: “Gov. Jerry Brown’s tax hike measure is being touted as the only way to avoid tuition increases this year at California’s public universities. Some predict a higher-than-usual turnout.”




Posted incampaigns, voter registration, voting | Comments Off


Arizona Presidential Poll Has Two Minor Party Presidential Candidates Totaling 5% Support, More than Double the Difference Between Obama and Romney

Posted on October 13, 2012 8:29 pm by Rick Hasen

We will see if this will hold.




Posted inthird parties | Comments Off 


“Absentee ballots: easy to cast, open to fraud”

Posted on October 13, 2012 8:24 pm by Rick Hasen

Extensive Miami Herald report:

“Absentee ballots seem to be prone to manipulation,” said Joe Centorino, director of Miami-Dade’s Ethics Commission and a former assistant state attorney who prosecuted several vote-fraud cases stemming from Miami’s tainted 1997 mayoral election. “Once those ballots go out, there’s no more control.”
But despite the recurring fraud problems, state lawmakers have repeatedly loosened the state’s absentee voting rules, making it easier to vote from home — while also making vote fraud harder to detect, critics say.
At the same time, the state has increased scrutiny of in-person voters by requiring those voters to provide photo ID at the polling place — a burden that absentee voters don’t have to bear.
“It is clearly easier to vote, with less obstacles, absentee than in person at the polls. And there’s more room for shenanigans,” said Murray Greenberg, the former Miami-Dade County Attorney who now teaches election law at the Florida International University College of Law.
In recent years, the Republican Party of Florida has aggressively promoted high absentee turnout among GOP voters. Republicans have dominated the Legislature as it has loosened absentee voting rules and cut the number of days for early voting, which tends to favor Democrats.





Posted inabsentee ballots | Comments Off 


“Voter Registration Rolls in 2 States Are Called Vulnerable to Hackers”

Posted on October 13, 2012 8:19 pm by Rick Hasen

NYT:“Computer security experts have identified vulnerabilities in the voter registration databases in two states, raising concerns about the ability of hackers and others to disenfranchise voters.”
“They could influence an election with 20,000 votes for less than a penny a head,” said J. Alex Halderman, one of the computer scientists who first discovered Washington’s loophole. “That would be a great return on investment for them.”




Posted invoting technology | Comments Off 


“Colleges Take a Leap Into Voter Registration”

Posted on October 13, 2012 8:15 pm by Rick Hasen

NYT reports.




Posted invoter registration | Comments Off 


“Campaigns Mine Personal Lives to Get Out Vote”

Posted on October 13, 2012 8:14 pm by Rick Hasen

NYT: “In the weeks before Election Day, millions of voters will hear from callers with surprisingly detailed knowledge of their lives. These callers — friends of friends or long-lost work colleagues — will identify themselves as volunteers for the campaigns or independent political groups. The callers will be guided by scripts and call lists compiled by people — or computers — with access to details like whether voters may have visited pornography Web sites, have homes in foreclosure, are more prone to drink Michelob Ultra than Corona or have gay friends or enjoy expensive vacations.”
More: “The campaigns’ consultants have run experiments to determine if embarrassing someone for not voting by sending letters to their neighbors or posting their voting histories online is effective. “I’ve had half-a-dozen conversations with third parties who are wondering if this is the year to start shaming,” said one consultant who works closely with Democratic organizations. ‘Obama can’t do it. But the ‘super PACs’ are anonymous. They don’t have to put anything on the flier to let the voter know who to blame.’”




Posted incampaigns, voting | Comments Off


“Obama campaign says it surpasses 4 million donors”

Posted on October 13, 2012 8:06 pm by Rick Hasen

AP reports.




Posted incampaign finance, campaigns | Comments Off 


“Romney tries to bury Obama in ads”

Posted on October 13, 2012 8:03 pm by Rick Hasen

WaPo reports.




Posted incampaign finance, campaigns | Comments Off 


“Vendors finesse law barring ‘coordination’ by campaigns, independent groups”

Posted on October 13, 2012 8:01 pm by Rick Hasen

ImportantWaPo report: “Mitt Romney’s presidential campaign and American Crossroads, an allied interest group, are barred by federal law from working together on political advertising. But it’s perfectly legal for them to hire the same company to run Internet ads. That company uses some of the same employees to represent the two clients, and the same databases to store information on people it will target with ads.”




Posted incampaign finance | Comments Off 


“Ohio voting dispute makes its way to the Supreme Court”

Posted on October 13, 2012 7:59 pm by Rick Hasen

WaPo reports.




Posted inelection administration, The Voting Wars, voting | Comments Off


“Polls, lies and ‘the prediction business’”

Posted on October 13, 2012 7:45 pm by Rick Hasen

CNN reports.




Posted incampaigns | Comments Off 


“Early Voting Rising”

Posted on October 12, 2012 6:28 pm by Rick Hasen

Michael McDonald blogs.




Posted inUncategorized | Comments Off 


“Democrats cry foul over voter fraud billboards in Midwestern cities”

Posted on October 12, 2012 6:06 pm by Rick Hasen

Reuters reports.




Posted incampaigns, The Voting Wars | Comments Off 


Emory “Judging Politics” Symposium

Posted on October 12, 2012 6:05 pm by Rick Hasen


61 EMORY LAW JOURNAL, NO. 4, PP. 641-944, 2012. 

The 2011 Randolph W. Thrower Symposium. Judging Politics: Judges as Political Actors, Candidates, and Arbiters of the Political. 61 Emory L.J. 641-861 (2012). [H][L][W]
Fried, Charles. Balls and strikes. 61 Emory L.J. 641-662 (2012). [H][L][W]
NeJaime, Douglas. The legal mobilization dilemma. 61 Emory L.J. 663-736 (2012). [H][L][W]
Epstein, Lee and Andrew D. Martin. Is the Roberts Court especially activist? A study of invalidating (and upholding) federal, state, and local laws. 61 Emory L.J. 737-758 (2012). [H][L][W]
Tamanaha, Brian Z. The several meanings of “politics” in judicial politics studies: why “ideological influence” is not “partisanship.” 61 Emory L.J. 759-778 (2012). [H][L][W]
Hasen, Richard L. Anticipatory overrulings, invitations, time bombs, and inadvertence: how Supreme Court justices move the law. 61 Emory L.J. 779-799 (2012). [H][L][W]
Charles, Guy-Uriel, Daniel L. Chen and Mitu Gulati. Sonia Sotomayor and the construction of merit. 61 Emory L.J. 801-861 (2012). [H][L][W]
Saidman, Benjamin A. Comment. Designing around a patent injunction: developing a comprehensive framework for determining when contempt proceedings are appropriate. 61 Emory L.J. 863-902 (2012). [H][L][W]
Sharpes, Dustin. Comment. Reintroducing intent into predatory pricing law. 61 Emory L.J. 903-943 (2012). [H][L][W]




Posted inUncategorized | Comments Off 

-- 
Rick Hasen
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Now available: The Voting Wars: http://amzn.to/y22ZTv
 

 
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