[EL] ELB News and Commentary 9/1/12
Rick Hasen
rhasen at law.uci.edu
Sat Sep 1 13:25:44 PDT 2012
"Campaigns Play Loose With Truth in a Fact-Check Age"
<http://electionlawblog.org/?p=39506>
Posted on September 1, 2012 1:24 pm
<http://electionlawblog.org/?p=39506> by Rick Hasen
<http://electionlawblog.org/?author=3>
Updated NYT report
<http://www.nytimes.com/2012/09/01/us/politics/fact-checkers-howl-but-both-sides-cling-to-false-ads.html?ref=politics>.
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"Way Cleared for November Vote in Texas"
<http://electionlawblog.org/?p=39504>
Posted on September 1, 2012 1:22 pm
<http://electionlawblog.org/?p=39504> by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://thecaucus.blogs.nytimes.com/2012/08/31/way-cleared-for-november-vote/?ref=politics>
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
redistricting <http://electionlawblog.org/?cat=6>, voting
<http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Ohio Ordered to Restore Weekend Early Voting in Judge's Ruling"
<http://electionlawblog.org/?p=39501>
Posted on September 1, 2012 1:20 pm
<http://electionlawblog.org/?p=39501> by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<http://www.washingtonpost.com/politics/ohio-ordered-to-restore-weekend-early-voting-in-judges-ruling/2012/08/31/c7f3b5d4-f3a6-11e1-892d-bc92fee603a7_story.html>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
military voting <http://electionlawblog.org/?cat=48>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Report offers new details in campaign fund ethics probe of Rep. Rob
Andrews" <http://electionlawblog.org/?p=39499>
Posted on September 1, 2012 1:18 pm
<http://electionlawblog.org/?p=39499> by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/2chambers/post/report-offers-new-details-in-campaign-fund-ethics-probe-of-rep-rob-andrews/2012/08/31/377d4c9e-f3a2-11e1-892d-bc92fee603a7_blog.html>:
"Rep. Rob Andrews
<http://projects.washingtonpost.com/congress/members/A000210>(D-N.J.)
may have violated House rules and federal law by using campaign funds to
pay for personal trips to Scotland and Los Angeles and by using a
graduation party for his daughter to raise campaign cash, the
congressional ethics office said Friday, providing new details in the
ongoing investigation of the incidents."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>, chicanery
<http://electionlawblog.org/?cat=12>, conflict of interest laws
<http://electionlawblog.org/?cat=20>, ethics investigations
<http://electionlawblog.org/?cat=42> | Comments Off
"Counting Voter Fraud" <http://electionlawblog.org/?p=39496>
Posted on September 1, 2012 1:15 pm
<http://electionlawblog.org/?p=39496> by Rick Hasen
<http://electionlawblog.org/?author=3>
More <http://blogs.wsj.com/numbersguy/counting-voter-fraud-1165/>from
the Numbers Guy.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>, The Voting
Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
" OFA v. Husted: Understanding Today's Decision"
<http://electionlawblog.org/?p=39493>
Posted on September 1, 2012 1:13 pm
<http://electionlawblog.org/?p=39493> by Rick Hasen
<http://electionlawblog.org/?author=3>
The ever-thoughtful Steve Huefner explores
<http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=9653> the
nuances of yesterday's opinion.
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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
"On Overreaching, or Why Rick Perry May Save the Voting Rights Act
But Destroy Affirmative Action" <http://electionlawblog.org/?p=39490>
Posted on September 1, 2012 1:10 pm
<http://electionlawblog.org/?p=39490> by Rick Hasen
<http://electionlawblog.org/?author=3>
Ellen Katz has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2140076>on SSRN
(forthcoming, /Election Law Journal/). Here is the abstract:
The State of Texas is presently staking out two positions that are
not typically pursued by a single litigant. On the one hand, Texas
is seeking the invalidation of the Voting Rights Act, and, on the
other, the State is defending the validity of the expansive
race-based affirmative action policy it uses at its flagship
university. This Essay presses the claim that Texas has increased
the chance it will lose both Texas v. Holder and Fisher v.
University of Texas at Austin because it has opted to stake out
markedly extreme positions in each. I argue that Texas would be more
likely to succeed had it chosen to temper both its actions and
claims in the pending cases.
As it stands, Texas's assertive stance in Fisher promises to bolster
the aversion many Justices already feel towards affirmative action.
By contrast, Texas's uncompromising approach to the VRA may prove to
be the regime's best defense. As last week's redistricting and voter
ID decisions suggest, Texas's stance may provide better evidence for
why the statute remains necessary than anything proffered by the
VRA's many supporters. Indeed, the State's aggressively hostile
stance towards the VRA has the potential to destabilize judicial
misgivings about the statute, and, if not fully reverse them,
postpone their implementation.
Looking forward to reading this.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
voting <http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Poverty, Dignity, and Voting Rights in Texas"
<http://electionlawblog.org/?p=39487>
Posted on September 1, 2012 1:07 pm
<http://electionlawblog.org/?p=39487> by Rick Hasen
<http://electionlawblog.org/?author=3>
Read Joey Fishkin
<http://balkin.blogspot.com/2012/09/poverty-dignity-and-voting-rights-in.html>
on the two Texas VRA decisions this week.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
voter id <http://electionlawblog.org/?cat=9>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Ohio Must Restore Three Days of Early Voting, Judge Rules"
<http://electionlawblog.org/?p=39484>
Posted on August 31, 2012 5:02 pm <http://electionlawblog.org/?p=39484>
by Rick Hasen <http://electionlawblog.org/?author=3>
Bloombergreports.
<http://www.bloomberg.com/news/2012-08-31/ohio-early-voting-days-must-be-equal-for-all-u-s-judge-rules.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
"Expert FAQ: Should the U.S. Abolish the Electoral College System?"
<http://electionlawblog.org/?p=39481>
Posted on August 31, 2012 4:57 pm <http://electionlawblog.org/?p=39481>
by Rick Hasen <http://electionlawblog.org/?author=3>
NerdWallet explores
<http://www.nerdwallet.com/blog/markets/2012/faq-abolish-electoral-college-system/#.UEFPI1SB6wZ>.
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Posted in electoral college <http://electionlawblog.org/?cat=44> |
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"Judge Restores Extra Early Voting Days In Ohio"
<http://electionlawblog.org/?p=39479>
Posted on August 31, 2012 4:55 pm <http://electionlawblog.org/?p=39479>
by Rick Hasen <http://electionlawblog.org/?author=3>
Pam Fessler reports
<http://www.npr.org/2012/08/31/160400114/judge-restores-extra-early-voting-days-in-ohio>
for NPR.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, election
administration <http://electionlawblog.org/?cat=18>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Rejected voter ID law, maps ruled discriminatory not deterring
Texas Republicans" <http://electionlawblog.org/?p=39476>
Posted on August 31, 2012 4:51 pm <http://electionlawblog.org/?p=39476>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP
<http://www.washingtonpost.com/national/rejected-voter-id-law-maps-ruled-discriminatory-not-deterring-texas-republicans/2012/08/31/5ab21100-f3bf-11e1-b74c-84ed55e0300b_story.html>:
"On Election Day in Texas, the mere act of voting would have been fresh
flexing of Republican power: Show a photo ID, then cast a ballot in a
political district likely drawn to favor GOP candidates. The script has
changed, though, with two federal courts sizing it up as minority
discrimination."
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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
"Voter Fraud: Hard to Identify" <http://electionlawblog.org/?p=39473>
Posted on August 31, 2012 4:46 pm <http://electionlawblog.org/?p=39473>
by Rick Hasen <http://electionlawblog.org/?author=3>
WSJ's "The Numbers Guy" tackles
<http://online.wsj.com/article/SB10000872396390443864204577621732936167586.html>
the extent of voter impersonation fraud. The piece ends: "One rare
point of agreement among most experts: Absentee-ballot fraud is a far
bigger problem than voter-impersonation fraud---about 50 times more
common, says News21---and voter-ID laws won't stop it."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
fraudulent fraud squad <http://electionlawblog.org/?cat=8>, The Voting
Wars <http://electionlawblog.org/?cat=60> | Comments Off
"$119 million and counting: Track groups' spending on 2012 race"
<http://electionlawblog.org/?p=39469>
Posted on August 31, 2012 3:09 pm <http://electionlawblog.org/?p=39469>
by Rick Hasen <http://electionlawblog.org/?author=3>
Important LA Times report
<http://www.latimes.com/news/politics/la-pn-outside-groups-spending-tracker-20120831,0,2561700.story>.
Check out this graphic
<http://graphics.latimes.com/2012-election-outside-spending/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Breaking News: Federal Judge Orders Ohio to Restore Weekend Early
Voting in Ohio Weekend Before Election Day
<http://electionlawblog.org/?p=39463>
Posted on August 31, 2012 9:18 am <http://electionlawblog.org/?p=39463>
by Rick Hasen <http://electionlawblog.org/?author=3>
UPDATE: Ohio will appeal
<http://www.dispatch.com/content/stories/local/2012/08/31/judge-sides-with-obama-election-lawsuit.html>this
case to the Sixth Circuit.
I thought we were done with blockbuster election law decisions before
Labor Day, but now comes this order from a federal district court
<http://electionlawblog.org/wp-content/uploads/OFA-Opinion.pdf> in Ohio
in /Obama for America v. Husted/ granting a preliminary injunction
enjoining the state from enforcing a new law barring early voting on the
weekend before election day. The state had such voting in 2008 but
eliminated it in 2012 except for UOCAVA voters--including military
voters, who might be deployed at any time.
The judge first noted that the state did not /mandate/ that election
boards provide military voters who might be deployed at any time an
actual right to cast an early ballot. It instead left the question to
local election boards. Using the /Anderson/Burdick/ balancing test and
the right to no arbitrary and disparate treatment recognized in Bush v.
Gore and other cases, the Court held that taking away early voting for
all voters except (possibly) the UOCAVA voters violated the equal
protection clause:
From the onset of this litigation, Defendants have pointed to
special concerns for the military---concerns all parties share---and
the military's need to maintain additional access to in-person early
voting. But for UOCAVA voters, what is left is, potentially, one
day: Monday. Defendants have presented no evidence to sustain the
inference that in-person early voting on Monday---one day---will
burden county boards of elections to the extent that the injury to
Plaintiffs is justified. Moreover, Defendants undercut the virtue of
their support of military voters by failing to protect any
significant measure of UOCAVA voting. Unless a serviceperson is
"suddenly deployed" at exactly the right time---enabling in-person
voting on Monday---he or she will likely be unable to vote,
depending on the local elections board's "discretion." That the
State cannot justify its interest in foreclosing Ohio voters for one
day emphasizes the arbitrary nature of its action.
Finally, this Court notes that restoring in-person early voting to
all Ohio voters through the Monday before Election Day does not
deprive UOCAVA voters from early voting. Instead, and more
importantly, it places all Ohio voters on equal standing. The only
hindrance to UOCAVA early voting is the Secretary of State's failure
to set uniform hours at elections boards during the last three days
before Election Day. On balance, the right of Ohio voters to vote in
person during the last three days prior to Election Day---a right
previously conferred to all voters by the State---outweighs the
State's interest in setting the 6 p.m. Friday deadline. The burden
on Ohio voters' right to participate in the national and statewide
election is great, as evidenced by the statistical analysis offered
by Plaintiffs and not disputed by Defendants. Moreover, the State
fails to articulate a precise, compelling interest in establishing
the 6 p.m. Friday deadline as applied to non-UOCAVA voters and has
failed to evidence any commitment to the "exception" it rhetorically
extended to UOCAVA voters. Therefore, the State's interests are
insufficiently weighty to justify the injury to Plaintiffs. See
Anderson v. Celebrezze, 460 U.S. 780, 798 (1983).
The issue here is not the right to absentee voting, which, as the
Supreme Court has already clarified, is not a "fundamental right."
McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 (1969).
The issue presented is the State's redefinition of in-person early
voting and the resultant restriction of the right of Ohio voters to
cast their votes i*n person* through the Monday before Election Day.
This Court stresses that where the State has authorized in-person
early voting through the Monday before Election Day for all voters,
*"the State may not, by later arbitrary and disparate treatment,
value one person's vote over that of another.*" Bush v. Gore, 531
U.S. 98, 104-05 (2000). Here, that is precisely what the State has done.
The court's specific order reads: "*IT IS FURTHER ORDERED* that
in-person early voting *IS RESTORED* on the three days immediately
preceding Election Day for all eligible Ohio voters. And specifically,
for the purposes of the 2012 General Election, this Order restores
in-person early voting to all eligible Ohio voters on Saturday, November
3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. This
Court anticipates that Defendant Secretary of State will direct all Ohio
elections boards to maintain a specific, consistent schedule on those
three days, in keeping with his earlier directive that only by doing so
can he ensure that Ohio's election process is "uniform, accessible for
all, fair, and secure.'"
Will this ruling be upheld on appeal in the Sixth Circuit? The answer is
not clear. I had expressed uncertainty
<http://www.utsandiego.com/news/2012/aug/19/tp-military-voters-as-political-pawns/>
about how the court would rule in this case and Ned Foley expressed
greater skepticism <http://electionlawblog.org/?p=38672> of the Obama
campaign's arguments here. There are reasonable arguments over whether
the Court picked the right level of scrutiny to apply, and whether the
judge applied the scrutiny he said he was applying. Further, there is a
major debate about what /Bush v. Gore/ requires, and the Sixth Circuit
may have to go en banc to resolve the meaning of the case: does it in
fact require (1) equal treatment of all voters in terms of opportunities
to vote; and (2) a kind of "non-retrogression" principle, whereby the
state may not remove a method of easier voting once it has used it in a
past election?
The Sixth Circuit has proved itself to be bitterly divided in election
law disputes in the past. The Voting Wars
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>details
the bitter dispute over a 2008 case, /Ohio Republican Party v.
Brunner/. The Republican-appointed judges all read a federal statute
(the Help America Vote Act) broadly, going beyond the statutory text,
and the Democratic judges read the statute narrowly and textually. The
flipping of usual jurisprudential opinions seems to have been driven by
the judges' different perceptions about the prevalence of voter fraud
and voter suppression.
/ORP v. Brunner/ ended when the Supreme Court sided with Democratic
Secretary of State and that the Republican Party likely did not have
standing to sue for a supposed violation of HAVA. This case too could
end up before the Supreme Court.
This could get very ugly very quickly. This is certainly not the last
word, unless SOS Husted chooses not to appeal.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Supreme Court <http://electionlawblog.org/?cat=29>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Voter ID cases: Invisible voter versus imaginary fraud"
<http://electionlawblog.org/?p=39460>
Posted on August 31, 2012 8:28 am <http://electionlawblog.org/?p=39460>
by Rick Hasen <http://electionlawblog.org/?author=3>
Must-read Nate Persily column
<http://www.cnn.com/2012/08/31/opinion/persily-voter-id-laws/index.html>
for CNN.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv
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