[EL] ELB News and Commentary 8/15/13

Rick Hasen rhasen at law.uci.edu
Wed Aug 14 21:28:29 PDT 2013


    And Now the Attack on Student Voting in North Carolina...
    <http://electionlawblog.org/?p=54418>

Posted on August 14, 2013 7:39 pm <http://electionlawblog.org/?p=54418> 
by Rick Hasen <http://electionlawblog.org/?author=3>

The State 
<http://www.thestate.com/2013/08/14/2920155/nc-elections-boards-move-to-curtail.html>:

    Within hours of Gov. Pat McCrory signing a Republican-backed bill
    this week making sweeping changes to the state's voting laws, local
    elections boards in two college towns made moves that could make it
    harder for students to vote.

    The Watauga County Board of Elections voted Monday to eliminate an
    early voting site and election-day polling precinct on the campus of
    Appalachian State University.

    The Pasquotank County Board of Elections on Tuesday barred an
    Elizabeth City State University senior from running for city
    council, ruling his on-campus address couldn't be used to establish
    local residency. Following the decision, the head of the county's
    Republican Party said he plans to challenge the voter registrations
    of more students at the historically black university ahead of
    upcoming elections.

Progressive Pulse 
<http://pulse.ncpolicywatch.org/2013/08/14/county-board-to-student-candidate-you-can-vote-for-now-but-you-cant-run-for-city-council/>:

    As reported today in the Elizabeth City Daily Advance, the
    Pasquotank County Board of Elections has taken the first step
    towards a ruling that students living in a college dorm are not
    permanent residents --- in this instance, for purposes of running
    for City Council. But the residency requirements for a candidate are
    the same as those for a voter.

    When asked if he planned extensive challenges of student voters
    following the city election, County GOP Chair Pete Gilbert, who
    challenged the student-candidate's residency, said he planned to
    "look at one-stop voters," but declined further comment on the matter.

Lovely.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off


    "The Long Road Ahead for Voting Rights"
    <http://electionlawblog.org/?p=54415>

Posted on August 14, 2013 3:37 pm <http://electionlawblog.org/?p=54415> 
by Rick Hasen <http://electionlawblog.org/?author=3>

This item 
<http://www.ncpolicywatch.com/2013/08/14/the-long-road-ahead-for-voting-rights/> 
appears at NC Policy Watch.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off


    "Originalism: It's Not Just for Conservatives Anymore"
    <http://electionlawblog.org/?p=54412>

Posted on August 14, 2013 2:55 pm <http://electionlawblog.org/?p=54412> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Adam Winkler 
<http://www.scotusblog.com/2013/08/originalism-its-not-just-for-conservatives-anymore/> 
in SCOTUSBlog McCutcheon symposium talks of Lessig/Gans and Brennan 
Center amicus briefs:

    In some ways, the McCutcheon /amici/ highlight the limits of liberal
    originalism. If the embrace of history is merely strategic, designed
    to persuade one member of the Roberts Court's conservative majority
    to vote for liberal outcomes (say, upholding aggregate contribution
    limits), its impact is likely to be quite minimal. None of the
    Justices is consistent in his or her use and reliance on history,
    not even Justices Clarence Thomas and Scalia, the most prominent
    proponents of originalism on the Court. The Justices' votes on a
    wide range of significant constitutional issues can't be explained
    by history, which one can see by looking no further back than June
    of this year. Whatever led the Justices to rule the way they did in
    /Fisher v. University of Texas/
    <http://www.bloomberglaw.com/public/document/Fisher_v_Univ_of_Tex_at_Austin_No_11345_2013_BL_167358_118_FEP_Ca>
    (affirmative action), /Shelby County v. Holder/
    <http://www.bloomberglaw.com/public/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_June_25_2013_Court>
    (voting rights), and /United States v. Windsor/
    <http://www.bloomberglaw.com/public/document/United_States_v_Windsor_No_12307_2013_BL_168683_US_June_26_2013_C/1>
    (marriage equality), it wasn't a commitment to the original public
    meaning of the Constitution. Moreover, the Justices have ruled on
    numerous campaign finance cases in the past and have well-defined
    views of what qualifies as a constitutionally permissible motive for
    government regulation of money in politics. None is likely to be
    suddenly persuaded by these briefs -- or any others -- that the
    Justices have been wrong all these years.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29> | Comments Off


    "Burning the house to roast the pig: Can elections be saved by
    banning political speech?" <http://electionlawblog.org/?p=54410>

Posted on August 14, 2013 2:53 pm <http://electionlawblog.org/?p=54410> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Bob Corn-Revere writes 
<http://www.scotusblog.com/2013/08/burning-the-house-to-roast-the-pig-can-elections-be-saved-by-banning-political-speech/> 
in SCOTUSBlog /McCutcheon/ symposium.

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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off


    "Campaign Lies Are Common, But Are They Actionable?"
    <http://electionlawblog.org/?p=54404>

Posted on August 14, 2013 1:06 pm <http://electionlawblog.org/?p=54404> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Marcia Coyle writes 
<http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202615481907&kw=Campaign%20Lies%20Are%20Common%2C%20But%20Are%20They%20Actionable%3F&et=editorial&bu=National%20Law%20Journal&cn=20130814&src=EMC-Email&pt=Supreme%20Court%20Brief%20Headlines&slreturn=20130714155032> 
for NLJ: "Everybody lies, particularly in political campaigns, says the 
cynical voter. But should laws restricting speech challenged as 
untruthful get First Amendment scrutiny? A national pro-life advocacy 
group would answer yes, and is asking the U.S. Supreme Court to clear 
the way for a constitutional challenge to an Ohio law criminalizing 
false statements in political campaigns."

I've addressed the issues of the constitutionality of limits on campaign 
lies after /US v. Alvarez/ inA Constitutional Right to Lie in Campaigns 
and Elections? <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>

I will post the cert petition in Susan B. Anthony List v. Driehaus 
<http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-193.htm> 
when I can find it.

This is one I will watch carefully, and one where I might actually be on 
the same side as Mike Carvin.  We'll see when I read the petition.

UPDATE: Here 
<http://electionlawblog.org/wp-content/uploads/SBA_Cert_Petition.pdf> is 
the cert. petition, which I look forward to reading.

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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off


    "Rand Paul: No 'objective evidence' African Americans are prevented
    from voting" <http://electionlawblog.org/?p=54401>

Posted on August 14, 2013 12:54 pm <http://electionlawblog.org/?p=54401> 
by Rick Hasen <http://electionlawblog.org/?author=3>

WaPo reports. 
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/14/rand-paul-no-objective-evidence-african-americans-are-prevented-from-voting/>

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act 
<http://electionlawblog.org/?cat=15> | Comments Off


    "Unease at Clinton Foundation Over Finances and Ambitions"
    <http://electionlawblog.org/?p=54398>

Posted on August 14, 2013 11:53 am <http://electionlawblog.org/?p=54398> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Must-read 
<http://www.nytimes.com/2013/08/14/us/politics/unease-at-clinton-foundation-over-finances-and-ambitions.html?hp> 
Nick Confessore and Amy Chozick NYT extensive A1 article.

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Posted in conflict of interest laws <http://electionlawblog.org/?cat=20> 
| Comments Off


    "The Call for Internet Voting Gets Louder"
    <http://electionlawblog.org/?p=54395>

Posted on August 14, 2013 10:53 am <http://electionlawblog.org/?p=54395> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Brian Newby,  Election Commissioner in Johnson County, Kansas, writes 
<http://www.internetevolution.com/author.asp?section_id=3330&doc_id=266693&>.

I argue in Chapter 5 of /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>/ 
that Internet Voting at this time would be a huge mistake.

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Posted in internet voting <http://electionlawblog.org/?cat=49>, The 
Voting Wars <http://electionlawblog.org/?cat=60>, voting technology 
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    "Santorum accused of illegally steering $1 million donation to super
    PAC" <http://electionlawblog.org/?p=54392>

Posted on August 14, 2013 10:48 am <http://electionlawblog.org/?p=54392> 
by Rick Hasen <http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/14/santorum-accused-of-illegally-steering-1-million-donation-to-super-pac/>:

    A campaign finance watchdog has filed a complaint against former GOP
    presidential candidate Rick Santorum, referring to reports that
    Santorum or his campaign may have illegally urged a donor to donate
    $1 million to a super PAC supporting Santorum.

    The donor, energy executive William Dore, in a recent interview
    <http://reporting.sunlightfoundation.com/2013/1-million-dinner-when-big-donor-bill-dore-meets-rick-santorum/>
    said he approached Santorum about giving his campaign $1 million. He
    initially said Santorum urged him to instead give the money to the
    super PAC, Red White and Blue Fund, which can accept unlimited
    donations. Santorum's campaign is subject to much lower contribution
    limits and could not accept such a donation.

    Dore later recanted, saying it was Santorum's staff who directed him
    to give to the super PAC.

    The Campaign Legal Center, in its complaint
    <http://www.campaignlegalcenter.org/images/CLC_D21_v_Santorum_FEC_Complaint_8-14-13.pdf>,
    notes that campaign finance law allows candidates to solicit
    donations to super PACs, but those solicitations are subject to the
    same contribution limits as their campaigns. So while Santorum's
    campaign could tell Dore to contribute a maximum of $5,000 to the
    super PAC, it cannot urge him to donate $1 million to it.

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    "Jesse Jackson Jr. Sentenced to 30 Months in Prison"
    <http://electionlawblog.org/?p=54390>

Posted on August 14, 2013 10:47 am <http://electionlawblog.org/?p=54390> 
by Rick Hasen <http://electionlawblog.org/?author=3>

NBC News reports 
<http://www.nbcmiami.com/news/national-international/Jesse-Sandi-Jackson-Sentenced-Wednesday-219542771.html?_osource=SocialFlowTwt_MIBrand>.

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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> | Comments Off


    Local NC ABC Station Examines Whether Gov. McCrory Doesn't
    Understand the Voting Law He Signed
    <http://electionlawblog.org/?p=54385>

Posted on August 14, 2013 9:57 am <http://electionlawblog.org/?p=54385> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Watch. <http://abclocal.go.com/wtvd/video?id=9205181>

The governor apparently keeps saying that ALL polling places will be 
open during the early voting period, which is clearly NOT what the new 
voting law requires. Such a change would cost millions of dollars and 
would require lots and lots of poll workers.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
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    Ari Berman Asks the Three Crucial Questions About North Carolina's
    Voting Law <http://electionlawblog.org/?p=54381>

Posted on August 14, 2013 9:20 am <http://electionlawblog.org/?p=54381> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Here 
<http://www.thenation.com/blog/175761/national-fight-over-voter-suppression-north-carolina#axzz2bnBkUmSj>:

1. Will Section 2 be enough? (My answer is likely no 
<http://electionlawblog.org/?p=54296>, at least for most of the law).

2. Will North Carolina get bailed in under Section 3? (My answer is 
likely no <http://electionlawblog.org/?p=54296>, absentsome smoking gun 
<http://electionlawblog.org/?p=54367> of intentional 
<http://electionlawblog.org/?p=54118>racial discrimination).

3. Will there be a public backlash against the law? (My answer is that 
it could well happen 
<http://www.thedailybeast.com/articles/2013/07/24/will-the-gop-s-north-carolina-end-run-backfire.html>, 
but there are no guarantees).

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
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<http://electionlawblog.org/?cat=9>, Voting Rights Act 
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    Unpacking NC Governor's Talking Points
    <http://electionlawblog.org/?p=54379>

Posted on August 14, 2013 9:10 am <http://electionlawblog.org/?p=54379> 
by Spencer Overton <http://electionlawblog.org/?author=17>

In defending North Carolina's new photo ID requirement, Republican 
Governor Pat McCrory claims "[t]hirty-four states currently require some 
sort of identification, and so we're doing what the majority of states 
are doing right now throughout the United States of America."  He 
mentions "34 states" six times during this "Here and Now" interview 
<http://hereandnow.wbur.org/2013/08/13/voter-id-mccrory>.

Most of these states, however, allow voters who lack valid photo 
identification to cast a ballot that will be counted if they can 
establish their identity through other means, such as a paycheck or 
signature match.

According to this National Conference of State Legislatures chart 
<http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx>, 
only four states currently have in effect "strict photo ID" laws that 
resemble North Carolina's new law, with another six states having strict 
photo ID laws that are "not yet in effect" (some due to litigation).

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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off


    "Editorial: Fair Elections and Double Standards"
    <http://electionlawblog.org/?p=54374>

Posted on August 14, 2013 7:38 am <http://electionlawblog.org/?p=54374> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Cincinnati Enquirer: 
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201308132333/EDIT/308130112>

    The decision not to prosecute Hamilton County voters who had
    registered using addresses that weren't their residences seems on
    its face like a reasonable one. But in light of the recent five-year
    sentence handed down to a poll worker convicted of voter fraud, it's
    imperative that officials strive to treat all cases of voter
    impropriety with the same standards.The 85 voters who registered
    using ineligible addresses may or may not have known that doing so
    is a felony. They include more than a dozen police officers who
    registered using the police stations where they work, apparently in
    an attempt to keep their home addresses from becoming public knowledge.

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administration <http://electionlawblog.org/?cat=18>, The Voting Wars 
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    "Voting Problems Prompt Retraining of Poll Workers"
    <http://electionlawblog.org/?p=54372>

Posted on August 14, 2013 7:36 am <http://electionlawblog.org/?p=54372> 
by Rick Hasen <http://electionlawblog.org/?author=3>

The /Cincinnati Enquirer /reports. 
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201308140522/NEWS010602/308140034>

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Posted in election administration <http://electionlawblog.org/?cat=18> | 
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    "Sunnyside election could come down to 1 vote"
    <http://electionlawblog.org/?p=54370>

Posted on August 14, 2013 7:35 am <http://electionlawblog.org/?p=54370> 
by Rick Hasen <http://electionlawblog.org/?author=3>

KIMA <http://www.kimatv.com/news/local/One-vote--219500521.html>:

      An election that's been too close to call looks like it could come
    down to one vote. The race is for Sunnyside City Council. That power
    is in the hands of a man who turned in his ballot without his signature.

    One vote that could make the difference. It belongs to Frank Gallardo.

    "I lost my letter," said Frank. "I don't know where it is you know.
    I lost my little paper to vote."

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
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    What's Motivating the North Carolina Legislature? Philosophical
    Difference or Power Grab? <http://electionlawblog.org/?p=54367>

Posted on August 14, 2013 7:33 am <http://electionlawblog.org/?p=54367> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Preregistration of 16 and 17 year olds can save money. FairVote crunches 
<http://www.fairvote.org/the-low-cost-of-voter-preregistration/#.UguSvVOE43Z> 
the numbers.

So why did North Carolina end preregistration:

The reason the North Carolina law is getting so much national attention 
is that it rolls into a single law all of the recent tools we have seen 
which make it harder to register and to vote. I've said it's the 
toughest voting law we've seen seen enactment of the 1965 Voting rights 
Act And many components of the law cannot plausibly be justified on 
efficiency, anti-fraud, or voter confidence grounds. And the combination 
of cutbacks in early voting, end of same day voter registration, 
implementation of poll workers, and tightening of provisional ballot 
rules could well lead to long lines at the polls.

Sit down with some of the law's supporters and the honest ones will have 
to concede that it will make it harder for some folks to register and 
vote. They will then need to fall back on the position that it is 
justifiable to make it harder for some people to register and vote. 
Listen to Susan Myrick on yesterday's All in With Chris 
<http://video.msnbc.msn.com/all-in-/52749510#52749510>and you will hear 
her say that voters have 50 days to vote (I guess that's including the 
absentee period) and therefore they have enough opportunities to vote 
under the new law.

So what if it is harder for (some) people to vote?

That's a different world view 
<http://www.sacbee.com/2012/11/03/4958430/republicans-have-pursued-election.html> 
than one which says that voting is about the sharing of political power 
among political equals and we should remove impediments impediments to 
voting which serve no valid anti-fraud or efficiency purpose.

More nefariously, the law is motivated by naked partisan purpose. On the 
preregistration, if young people tend to vote Democratic, this is a way 
to make it harder for new voters to vote for Democratic candidates.

And while the preregistration requirement likely is not motivated by 
racial animus, it will be interesting to see whether the cumulative 
impact of these voting rules on minority voters leads any court to 
conclude that they were motivated by an unconstitutional racial purpose. 
As I've said, that will likely require some evidence in discovery of a 
racial motivation. (Without proof of such a motivation, it will be 
impossible to get North Carolina recovered through the "bail in" 
procedures of Section 3 of the Voting Rights Act.)

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
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    "North Carolinians Fear the End of the Middle Way"
    <http://electionlawblog.org/?p=54365>

Posted on August 14, 2013 7:22 am <http://electionlawblog.org/?p=54365> 
by Rick Hasen <http://electionlawblog.org/?author=3>

A-1 NYT 
<http://www.nytimes.com/2013/08/14/us/north-carolinians-fear-the-end-of-a-middle-way.html?hp&_r=1&>.  
AlsoAaron Blake 
<http://d1ej5r2t2cu524.cloudfront.net/aablake/the-fix-swing-state-gop-governors-seek-to-wrangle-aggressive-gop-legislatures/562133-www.washingtonpost.com/blogs/the-fix/wp/2013/08/13/gop-governors-and-legislatures-divided-by-a-common-party/?c=70c29f69-a6fa-4999-b6b8-86a2c7233198>: 
Swing-state GOP governors seek to wrangle aggressive GOP legislatures

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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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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