[EL] ELB News and Commentary 8/9/13
Rick Hasen
rhasen at law.uci.edu
Thu Aug 8 21:39:26 PDT 2013
"Florida's Scott Takes Political Gamble With Renewed Voter Purge"
<http://electionlawblog.org/?p=54181>
Posted on August 8, 2013 9:34 pm <http://electionlawblog.org/?p=54181>
by Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg reports
<http://www.businessweek.com/news/2013-08-09/florida-s-scott-takes-political-gamble-with-renewed-voter-purge>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Supreme Court Coverage in the Digital Age"
<http://electionlawblog.org/?p=54178>
Posted on August 8, 2013 9:25 pm <http://electionlawblog.org/?p=54178>
by Rick Hasen <http://electionlawblog.org/?author=3>
Must-watch C-SPAN panel
<http://www.c-spanvideo.org/program/Coverageinthe> with Bob Barnes, Adam
Liptak, Tony Mauro, Pete Williams.
Thanks to Pete Williams for a shout-out to the Election Law Blog at the
29:55 mark.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29> | Comments Off
"Texas moves to protect voter ID law"
<http://electionlawblog.org/?p=54175>
Posted on August 8, 2013 4:18 pm <http://electionlawblog.org/?p=54175>
by Rick Hasen <http://electionlawblog.org/?author=3>
Lyle Denniston
<http://www.scotusblog.com/2013/08/texas-moves-to-protect-voter-id-law/#more-168281>
(the only one apparently /not /on hiatus this week at SCOTUSBlog):
"Repeating its argument that its controversial new photo ID requirement
for Texas voters is now in operation, the state on Thursday asked a
federal court in Washington to put an end to a case testing that law's
validity. The state filed a two-page motion to dismiss
<http://sblog.s3.amazonaws.com/wp-content/uploads/2013/08/Texas-mtn-to-dismiss-re-voter-ID.pdf>
the case. That, however, could encounter resistance from the Obama
administration, which believes the law impairs minorities' voting rights
and wants to block Texas from enforcing any such law."
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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>, voter id
<http://electionlawblog.org/?cat=9>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Groups Launch Litigation Clearinghouse Aimed at Keeping Courts Fair
and Impartial" <http://electionlawblog.org/?p=54172>
Posted on August 8, 2013 3:08 pm <http://electionlawblog.org/?p=54172>
by Rick Hasen <http://electionlawblog.org/?author=3>
Press release
<http://www.justiceatstake.org/newsroom/press-releases-16824/?groups_launch_litigation_clearinghouse_aimed_at_keeping_courts_fair_and_impartial&show=news&newsID=17251>:
A coalition of judicial watchdog groups launched a new website today
tracking litigation that could impact the fairness of our nation's
court system. The groups, called the Fair Courts Litigation Task
Force, include the Brennan Center for Justice, The Campaign Legal
Center, the National Center for State Courts, Justice at Stake, and
the American Judicature Society.
The website,www.faircourtslitigation.org
<http://%20www.faircourtslitigation.org>, serves as a clearinghouse
of litigation from across the U.S. that either challenges or
supports ethical rules aimed at keeping our judiciary free from
partisan politics and outside influences. These include the
financing of judicial elections, judicial campaign conduct rules,
merit selection of judges, and rules governing the recusal of judges
from cases.
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Posted in judicial elections <http://electionlawblog.org/?cat=19> |
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Did Election Fraud Help Win the Civil War? Part II
<http://electionlawblog.org/?p=54144>
Posted on August 8, 2013 2:11 pm <http://electionlawblog.org/?p=54144>
by Richard Pildes <http://electionlawblog.org/?author=7>
In aprior post <http://electionlawblog.org/?p=53236> picked up by Volokh
<http://www.volokh.com/>,Instapundit, <http://pjmedia.com/instapundit/>
and others, I raised this question. In light of further research, with
much thanks to those who pointed me in the right directions, I now think
the answer might very well be: yes.
I brought this issue up of historical curiosity about America's
relatively unique experience of holding elections amidst a civil war.
But the issue can be seen to raise enduring and profound questions about
the tension that sometimes exists between democracy --- the processes of
legitimate elections --- and liberalism --- the realization of moral
values like freedom (see, e.g., Egypt today). This is also a story
about what it's like, in the early history of democracy, to run
elections during a war when military forces are on the ground
controlling territory --- including the polling locations.
On the history, there are two questions: was there a substantial amount
of fraud/intimidation and the like, and was it decisive enough to
determine the balance of power and keep the House in the control of
Lincoln's Republican Party --- despite the precipitous drop in his
popularity (from even the 40% of the vote he received in 1860) during
the first national elections after the Civil War commenced?
The second question now seems relatively easy to answer. My initial
source, Thomas Fleming's A Disease in the Public Mind: A New
Understanding of Why We Fought the Civil War
<http://www.amazon.com/Disease-Public-Mind-Understanding-Fought/dp/0306821265>,
only alluded to fraud in Kentucky's elections. I pointed out that even
if fraud/intimidation flipped control of Kentucky's complete
congressional delegation, that would not seem to have been enough to
change partisan control of the House. But it turns out the patterns of
intimidation in Kentucky were present in the other border states with a
large presence of Union troops --- in Missouri for sure, and very likely
in Maryland as well.
With the American political system fragmenting under enormous stress,
five political parties were represented in the 38th Congress (Dec.,
1863). Republicans had 46% of the seats, Democrats 39%; the balance of
power lay with the "Unconditional Unionists" -- all elected from border
states. With their support, the Republicans kept control; if the more
conservative "Unionist" candidates had filled these border-seat states,
the Democrats would have controlled the House. Thus, it's fair to
conclude that, if the elections in the border states illegitimately kept
Unionists out of these seats, Lincoln would have lost control of the
war-Congress.
Now to the first question: was there fraud/intimidation and the like,
what was its nature and causes, and how credible are claims that these
border-state wartime elections were effectively rigged to change
outcomes? Although I used the word "fraud," the better terms are
probably intimidation and manipulation. The legal mechanism involved
the creation in the border states of new loyalty oaths as a requirement
to be eligible to vote. The enforcement "mechanism" for these laws was
the presence of Union troops and loyal state militias at the polling
locations in the border states. Even when the text of the laws limited
disfranchisement to those who were serving in the Confederate army, the
test for "loyalty" was in practice a wholly subjective one, enforced by
Union troops, militias, and election judges. They often refused to let
anyone vote who was suspected of not being loyal to the Lincoln
administration and the Union cause (here is one blogpost
<http://eakycivilwar.blogspot.com/2011/08/arrest-of-daniel-k-weis-august-1862.html>that
recounts an alleged family example).
Kentucky, for example, passed the "Expatriation Act of 1862," which
barred from voting anyone who had "voluntarily" provided "aid,
assistance, or comfort" to anyone in rebellion. Union commanders
required a further oath that dropped the requirement that the aid be
voluntary --- which meant, concretely, that those whose property or
labor had been impressed by Confederate forces could not take this oath.
Here is yet another version of an oath that was required: "You do
solemnly swear that you will support the Constitution of the United
States, /the present administration/, and etc. etc."
But the point of these oaths was not so much what they said or
required. Even voters who swore the oaths were often forcibly removed
from the polls if troops still suspected they were not sufficiently
loyal. Three days before the election, Major General Burnside imposed
martial law/in the election proceedings themselves --- /purportedly to
ensure order --- which gave troops control of the polls.
I won't go further into the details, but a rich, highly detailed study
--- the best I have found --- is in Ch. 6 of /The American Ballot Box in
the Mid-Nineteenth Century/, by the eminent historian, Richard F. Bensel
(the whole book is eye-opening about 19th century American democracy).
Reading his work, based on hearings before Congress involving disputed
elections, it's impossible not to conclude that military forces and
Union loyalists equated national loyalty with partisan political
support; they did everything possible to ensure the electoral triumph of
their allies in these critical border-state elections. Here is just one
way Bensel expresses this conclusion:
In practice, because the Republican Party controlled the border
state and national governments, loyalty to the Union became almost
completely identified with support for the northern war effort and,
through that identification, with the Republican Party. And this is
the way that federal troops and state militia came to see the
matter. Because of the conflation of party and nation, there was
only one loyalist, and thus acceptable, outcome in an election:
Republican victory. Democrats could vote only in numbers that did
not threaten that outcome.
Sobering stuff. Those interested might also consult William B.
Hesseltine's /Lincoln's Plan of Reconstruction//, /which concludes, on
this subject, that: "In 1862 it was the army-controlled votes of the
Border States that overcame Democratic victories in the Northern states
and enabled the Republicans to retain control over the House of
Representatives."
I won't open up here my own thoughts on the meaning of all this. I
will leave that to readers for now. For sending me down productive
research paths in response to my initial post, I want to express deep
gratitude to Charles Hallinan, William Burr, James Ridgway, Ned Foley,
and others.
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Posted in pedagogy <http://electionlawblog.org/?cat=23>, political
equality <http://electionlawblog.org/?cat=69>, political parties
<http://electionlawblog.org/?cat=25>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"The racist history of voter challenge provisions in NC 'monster'
election bill" <http://electionlawblog.org/?p=54164>
Posted on August 8, 2013 1:49 pm <http://electionlawblog.org/?p=54164>
by Rick Hasen <http://electionlawblog.org/?author=3>
This item
<http://www.southernstudies.org/2013/08/the-racist-history-of-voter-challenge-provisions-i.html>
appears at Facing South.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Iowa ethics board will investigate National Organization for
Marriage" <http://electionlawblog.org/?p=54159>
Posted on August 8, 2013 12:52 pm <http://electionlawblog.org/?p=54159>
by Rick Hasen <http://electionlawblog.org/?author=3>
Des Moines Register
<http://blogs.desmoinesregister.com/dmr/index.php/2013/08/08/iowa-ethics-board-will-investigate-national-organization-for-marriage/article>:
"A national organization that opposes same-sex marriage may have
violated state law by not disclosing its donors in its fight to oust
Iowa Supreme Court justices, ethics officials said today."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Florida is already making it harder to vote, thanks to the Supreme
Court" <http://electionlawblog.org/?p=54156>
Posted on August 8, 2013 12:50 pm <http://electionlawblog.org/?p=54156>
by Rick Hasen <http://electionlawblog.org/?author=3>
/The Week /
<http://theweek.com/article/index/248075/florida-is-already-making-it-harder-to-vote-thanks-to-the-supreme-court>reports
<http://theweek.com/article/index/248075/florida-is-already-making-it-harder-to-vote-thanks-to-the-supreme-court>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, The Voting
Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
House Passes Bill (REINS Act) Requiring Every Significant Piece of
Economic Regulation to Be Approved by Congress
<http://electionlawblog.org/?p=54152>
Posted on August 8, 2013 12:04 pm <http://electionlawblog.org/?p=54152>
by Rick Hasen <http://electionlawblog.org/?author=3>
Commentary here
<http://grist.org/politics/the-reins-act-shows-again-just-how-fing-crazy-the-house-gop-is/>.
That's a way to bring the rest of the government to a screeching halt, no?
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
"30 Cincinnati cops committed voter fraud, won't be charged"
<http://electionlawblog.org/?p=54148>
Posted on August 8, 2013 11:55 am <http://electionlawblog.org/?p=54148>
by Rick Hasen <http://electionlawblog.org/?author=3>
MSN reports.
<http://news.msn.com/us/30-cincinnati-cops-committed-voter-fraud-wont-be-charged>
Dan Tokaji sees atroubling double-standard.
<http://electionlawblog.org/?p=54019>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Hanabusa Aide Resigns After FEC Complaint of Email About PhRMA"
<http://electionlawblog.org/?p=54145>
Posted on August 8, 2013 11:46 am <http://electionlawblog.org/?p=54145>
by Rick Hasen <http://electionlawblog.org/?author=3>
Roll Call reports.
<http://blogs.rollcall.com/moneyline/hanabusa-aide-resigns-after-fec-complaint-of-email-about-pharma/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Texas Launches New Legal Attack On Voting Rights Act"
<http://electionlawblog.org/?p=54140>
Posted on August 8, 2013 10:50 am <http://electionlawblog.org/?p=54140>
by Rick Hasen <http://electionlawblog.org/?author=3>
Sahil Kapur of TPM reports.
<http://tpmdc.talkingpointsmemo.com/2013/08/texas-brief-voting-rights-act-preclearance.php>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"After Shelby, Voting-Law Changes Come One Town at a Time"
<http://electionlawblog.org/?p=54137>
Posted on August 8, 2013 8:57 am <http://electionlawblog.org/?p=54137>
by Rick Hasen <http://electionlawblog.org/?author=3>
Frontline reports
<http://www.pbs.org/wgbh/pages/frontline/government-elections-politics/after-shelby-voting-law-changes-come-one-town-at-a-time/>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Watch Webcast Now of Bauer-Ginsberg Commission Meeting
<http://electionlawblog.org/?p=54135>
Posted on August 8, 2013 8:19 am <http://electionlawblog.org/?p=54135>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here. <https://www.supportthevoter.gov/commission-meeting-livestream/>
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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"Ruling Revives Florida Review of Voting Rolls"
<http://electionlawblog.org/?p=54131>
Posted on August 8, 2013 7:43 am <http://electionlawblog.org/?p=54131>
by Rick Hasen <http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2013/08/08/us/ruling-revives-florida-review-of-voting-rolls.html?hp&_r=0>:
"Gov. Rick Scott
<http://topics.nytimes.com/top/reference/timestopics/people/s/richard_l_scott/index.html?inline=nyt-per>
of Florida, newly empowered by the United States Supreme Court's ruling
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> in June that
struck down
<http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html> the
heart of the Voting Rights Act
<http://topics.nytimes.com/topics/reference/timestopics/subjects/v/voting_rights_act_1965/index.html?inline=nyt-classifier>,
has ordered state officials to resume a fiercely contested effort to
remove noncitizens from voting rolls."
I just want to remind readers what I said
<http://campaignstops.blogs.nytimes.com/2012/08/05/a-dtente-before-the-election/?ref=opinion>
about looking for noncitizen voting in the NY Times before the election:
While Republicans have been more to blame than Democrats,
partisanship runs both ways. Democrats reflexively oppose efforts to
deal with ineligible voters casting ballots, likely out of fear that
the new requirements will make it harder for casual voters
supporting Democrats to cast a ballot. They have adamantly opposed
the efforts of Florida and other states
<http://www.nytimes.com/2012/07/15/us/politics/us-to-let-florida-use-homeland-security-data-for-voter-check.html>
where Republican election officials want to remove noncitizens from
the voting rolls. Noncitizen voting is a real, if small
<http://electionlawblog.org/?p=10253>, problem: a Congressional
investigation found that some noncitizens voted
<http://www.washingtonpost.com/wp-srv/politics/campaigns/keyraces98/stories/cahouse020598.htm>
in the close 1996 House race in California between Robert K. Dornan,
a Republican, and Loretta Sanchez, a Democrat, but not enough
<http://articles.latimes.com/1997-05-11/news/mn-57795_1_indiana-vote> to
affect the outcome. Unlike impersonation fraud, noncitizen voting
cannot be dismissed as a Republican fantasy.
We need to move beyond these voting wars by creating a neutral body
to run federal elections and to ensure that all eligible voters, and
only eligible voters, can cast a vote that will be accurately
counted on Election Day. The agency could start with a program to
register all eligible voters and provide a free national voter ID
card with an optional thumbprint to prove identity.
But we are very far from such a comprehensive solution. Congress
took a baby step toward uniformity in 2002 when it created the
Election Assistance Commission to advise states. But the commission
was hobbled from the start by inadequate financing and opposition
from some state officials <http://www.in.gov/sos/3700.htm>. Today,
three months before the election, all four
<http://www.eac.gov/about_the_eac/commissioners.aspx> of its seats
are vacant <http://electionlawblog.org/?p=28623>.
Sadly, broader bipartisan compromise
<http://electionlawblog.org/?p=37833> appears unlikely
<http://news.cincinnati.com/article/20120729/NEWS0106/307290074/Overhaul-poll-laws-still-stalled?odyssey=nav%7Chead>.
Short of a grand solution, we need a moratorium on additional
partisan changes to election rules that cannot be implemented before
November without a significant risk of disenfranchisement. The
courts should put Pennsylvania's law on hold, and *Florida should
hold off on its plan to remove noncitizens until the off-season*.
Purging the rolls now risks removing many more eligible citizens
<http://electionsmith.wordpress.com/2012/07/16/you-want-numbers-florida-secretary-of-state-voter-purge-netted-10-potential-noncitizens-who-may-have-voted/>
than noncitizens.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Congressional District Compactness, Gerrymandering By State"
<http://electionlawblog.org/?p=54129>
Posted on August 8, 2013 7:39 am <http://electionlawblog.org/?p=54129>
by Rick Hasen <http://electionlawblog.org/?author=3>
Governing computes
<http://www.governing.com/gov-data/politics/gerrymandered-congressional-districts-compactness-by-state.html>.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
Christmas in August: Doug Chapin Edition
<http://electionlawblog.org/?p=54126>
Posted on August 8, 2013 7:34 am <http://electionlawblog.org/?p=54126>
by Rick Hasen <http://electionlawblog.org/?author=3>
Ins and outs list
<http://www.electionline.org/index.php/electionline-weekly>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
election law "humor" <http://electionlawblog.org/?cat=52> | 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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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