[EL] ELB News and Commentary 8/19/13
Rick Hasen
rhasen at law.uci.edu
Mon Aug 19 09:22:36 PDT 2013
"Supreme Error: North Carolina's new voter suppression law shows why
the Voting Rights Act is still necessary."
<http://electionlawblog.org/?p=54562>
Posted on August 19, 2013 9:21 am <http://electionlawblog.org/?p=54562>
by Rick Hasen <http://electionlawblog.org/?author=3>
I have written this Jurisprudence essay
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/08/north_carolina_s_speedy_vote_suppression_tactics_show_exactly_why_the_voting.html>
for /Slate. /It begins:
Usually it takes years to judge when the Supreme Court gets
something very wrong. Think of Justice Kennedy's opinion
<http://www.law.cornell.edu/supct/html/08-205.ZO.html> for the court
in the 2010 campaign-finance case, /Citizens United/, freeing
corporations to spend money on elections. He wrote that the
"appearance of [corporate] influence or access will not cause the
electorate to lose faith in our democracy," a point that remains
hotly debated even as the amount of money in federal elections
skyrockets <http://electionlawblog.org/?p=51636>.
But the conservative justices' decision this past June in /Shelby
County v. Holder/
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>,
striking down a key provision of the Voting Rights Act, has already
unleashed in North Carolina
<http://www.vcstar.com/news/2013/aug/12/mccrory-quietly-signs-sweeping-nc-elections-bill/>
the most restrictive voting law
<http://electionlawblog.org/?p=54296> we've seen since the 1965
enactment of the VRA. Texas is restoring its voter ID law
<http://www.scotusblog.com/2013/08/texas-moves-to-protect-voter-id-law/#more-168281>
which had been blocked (pursuant to the VRA) by the federal
government. And more is to come in other states dominated by
Republican legislatures.
Substituting their own judgment for that of Congress, the five
justices in the /Shelby County/ majority expressed confidence that
the act's "preclearance" provision was no longer necessary, and that
there would be ample other tools to fight discrimination in voting.
That the conservative justices have already been proven wrong a few
scant weeks after the decision came down offers little solace for
the voters of North Carolina
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/north_carolina_s_voter_id_law_is_the_worst_in_the_country.html>,
who ironically will have to try to fix the problem using the very
mechanism of voting---which the North Carolina legislature is
inhibiting.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
Supreme Court <http://electionlawblog.org/?cat=29>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"The Cash Committee" <http://electionlawblog.org/?p=54559>
Posted on August 19, 2013 8:03 am <http://electionlawblog.org/?p=54559>
by Rick Hasen <http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2013/08/18/opinion/sunday/the-cash-committee.html?ref=sunday&_r=0>
editorial: "The House Financial Services Committee has grown so large
that a highly unusual fourth row of seats had to be installed in the
committee room. Every term, scores of members, particularly freshmen,
demand a seat on the panel --- not because they have a burning interest
in regulating banks and Wall Street, but because they know that they
will be able raise much more money if one of the 61 seats has their name
on it."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
conflict of interest laws <http://electionlawblog.org/?cat=20> |
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"San Diego's Recall Election and California Constitution Art. 3,
Sec. 3.5? <http://electionlawblog.org/?p=54556>
Posted on August 19, 2013 7:52 am <http://electionlawblog.org/?p=54556>
by Rick Hasen <http://electionlawblog.org/?author=3>
Will Baude blogs
<http://www.volokh.com/2013/08/18/san-diegos-recall-election-and-california-constitution-art-3-sec-3-5/>.
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Posted in recall elections <http://electionlawblog.org/?cat=11> |
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"Modern Vote Suppression Better Than Jim Crow, Still Pretty Bad"
<http://electionlawblog.org/?p=54553>
Posted on August 19, 2013 7:50 am <http://electionlawblog.org/?p=54553>
by Rick Hasen <http://electionlawblog.org/?author=3>
Jonathan Chiat writes
<http://nymag.com/daily/intelligencer/2013/08/modern-vote-suppression-better-than-jim-crow.html>
for /New York./
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
Ginni Thomas, Justice Thomas's Wife, Interviews J. Christian Adams
About Election Issues <http://electionlawblog.org/?p=54550>
Posted on August 19, 2013 7:43 am <http://electionlawblog.org/?p=54550>
by Rick Hasen <http://electionlawblog.org/?author=3>
See here.
<http://electionlawcenter.com/2013/08/19/part-1-with-ginni-thomas-at-daily-caller.aspx>
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Get to Know Section 3 of the Voting Rights Act"
<http://electionlawblog.org/?p=54547>
Posted on August 19, 2013 7:39 am <http://electionlawblog.org/?p=54547>
by Rick Hasen <http://electionlawblog.org/?author=3>
Abby Rapoport writes
<http://prospect.org/article/get-know-section-3-voting-rights-act> for
/TAP./
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Voters and Contributors" <http://electionlawblog.org/?p=54544>
Posted on August 19, 2013 7:37 am <http://electionlawblog.org/?p=54544>
by Rick Hasen <http://electionlawblog.org/?author=3>
Tamara Piety's contribution
<http://www.scotusblog.com/2013/08/symposium-voters-and-contributors/>
to the SCOTUSBlog symposium on /McCutcheon./
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Ted Cruz Releases His Birth Certificate"
<http://electionlawblog.org/?p=54541>
Posted on August 19, 2013 7:35 am <http://electionlawblog.org/?p=54541>
by Rick Hasen <http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/19/ted-cruz-releases-birth-certificate/>:
Sen. Ted Cruz (R-Tex.) released his birth certificate Sunday amid
questions about whether he is eligible to run for president.
Cruz was born in Canada in 1970, to an American mother and Cuban
father. By virtue of his mother's status, Cruz instantly became a
U.S. citizen. He released his birth certificate to the Dallas
Morning News
<http://www.dallasnews.com/news/politics/headlines/20130818-born-in-canada-ted-cruz-became-a-citizen-of-that-country-as-well-as-u.s..ece>,
verifying what he has previously asserted.
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Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
"My Wife Purposely Kept Me in the Dark" Defense in McDonnell
Corruption Probe <http://electionlawblog.org/?p=54538>
Posted on August 19, 2013 7:32 am <http://electionlawblog.org/?p=54538>
by Rick Hasen <http://electionlawblog.org/?author=3>
This
<http://www.washingtonpost.com/local/virginia-politics/attorneys-for-mcdonnells-to-meet-with-prosecutors-as-key-phase-opens-in-probe/2013/08/18/99556812-082c-11e3-8974-f97ab3b3c677_print.html>
doesn't look promising for the governor.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, conflict of
interest laws <http://electionlawblog.org/?cat=20>, ethics
investigations <http://electionlawblog.org/?cat=42> | Comments Off
New Study Ranks UC Irvine Law 7th Nationally in Scholarly Impact
<http://electionlawblog.org/?p=54535>
Posted on August 19, 2013 7:27 am <http://electionlawblog.org/?p=54535>
by Rick Hasen <http://electionlawblog.org/?author=3>
Paul Caron has the details
<http://taxprof.typepad.com/taxprof_blog/2013/08/the-71.html> and the list.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
What Did VRA Preclearance Actually Do?: The Gap Between Perception
and Reality <http://electionlawblog.org/?p=54521>
Posted on August 19, 2013 4:39 am <http://electionlawblog.org/?p=54521>
by Dan Tokaji <http://electionlawblog.org/?author=5>
*By Rick Pildes & Dan Tokaji*
A widespread perception exists that, in the years before the Court's
decision in /Shelby County v. Holder/, the Section 5 preclearance regime
was a powerful tool in protecting access to the ballot box for minority
voters. Indeed, Section 5 is widely thought to have been overwhelmingly
about protecting access in the covered areas: that is part of it
symbolic meaning. On this view, Section 5 was a bulwark against laws
like the one just signed by North Carolina's governor
<http://www.politico.com/story/2013/08/pat-mccrory-voting-law-north-carolina-95462.html>
-- which makes voting more difficult for eligible voters by cutting the
early voting period, eliminating same-day registration, and other measures.
But the reality is that Section 5 was rarely used in this way, at least
in its last three decades. Section 5 did not, primarily, function to
protect access to the ballot box. Instead, the overwhelming uses of
Section 5 were to ensure more majority-majority election districts or to
stop at-large election systems and other practices believed to weaken
minority voting strength. Some of these uses, especially the compelled
creation of majority-minority election districts, are more controversial
(even among conventional "liberals") than are robust protections for
access to the ballot box. Yet in practice, Section 5 was used primarily
for redistricting and other matters of vote dilution rather than
protecting the right of eligible citizens to cast a vote
<http://www.scotusblog.com/2013/06/shelby-commentary-what-does-the-courts-decision-mean/>.
A better-informed understanding of what the Section 4/5 preclearance
regime did and did not do before /Shelby County/ is needed to shed
appropriate light on possible directions for policy changes in the wake
of the Court's decision. In addition, the assumption that Section 5
would have been an effective tool to block emerging barriers to
political participation, if not for /Shelby County/, is more complicated
than often recognized. To fully protect access to the ballot box for
eligible voters, policies structured differently than Section 5 would
have been necessary in any event.
At the end of this post is a table with the full data on Section 5
submissions and objections from 2000 to 2012. These data are drawn from
the Department of Justice's website
<http://www.justice.gov/crt/about/vot/sec_5/obj_activ.php> and a very
useful search tool on the Lawyers' Committee for Civil Rights' website
<http://www.lawyerscommittee.org/projects/section_5>. 2000 is an
especially appropriate starting point, because it coincides with the
period during which issues of election administration became a prominent
public concern, starting with Florida's contested presidential election
and /Bush v. Gore/. If barriers to participation were a common subject
of DOJ attention and concern, we would expect to see a lot of that
concern manifested in this period. But in fact, we don't.
Briefly summarized, the data show this: Redistricting changes generated
vastly more objections than any other category -- more than half of all
objections DOJ made since 2000 (39 of 76). That number was almost twice
as high as the next-highest category, Method of Election (20), which
includes various forms of vote dilution (such at-large elections and the
number of seats on a multi-member body), but not vote denial.
Similarly, redistricting and Method of Election changes were also the
top two uses of Section 5 when it comes to the /percentage/ of
submissions yielding an objection. DOJ objected to 0.94% of
Redistricting changes. These changes were more than ten times as likely
to generate an objection as Voter Registration/Qualifications changes,
which yielded just five objections from 2000 to 2012. Redistricting
changes were more than 350 times as likely to generate an objection as
Polling Place/Absentee & Early Voting Locations changes (just one
objection). The "Miscellaneous" category, which includes "Absentee
voting," "Ballot format," "Election administration" and "Voter
assistance procedures," did not yield any objections.
In sum, rules governing access to the ballot box and election
administration were rarely the subjects of Section 5 objections from
2000 on (the overall pattern is the same during the Clinton years).
But we were also concerned that formal objections do not tell the
whole story about the effectiveness of preclearance. While DOJ
objected to a very small percentage of the changes it received, it more
frequently requested more information from the jurisdiction seeking
preclearance. Sometimes, these requests for more information (MIRs)
resulted in alterations to or withdrawal of the proposed voting
changes. So what does adding these MIRs into the picture show about how
Section 5 was actually used? Does it change anything from what the
record of formal objections shows?
The answer is no. Luis Ricardo Fraga and Maria Lizet Ocampo have
published the most extensive study of more information requests (MIRs
<http://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9-07.pdf>). They
show that the pattern of MIRs is essentially the same as that with
formal objections: Redistricting and Method of Election were the two
largest sources of MIRs. Between 1982 and 2005, DOJ requested more
information for about 3.5% of all voting changes. For voting changes
categorized as Redistricting, however, the DOJ issued an MIR 14.2% of
the time (to 1,234 out of a total of 8,694 submissions). For "Method of
Election" changes, DOJ issued an MIR 18.5% of the time (on 2,728 of
14,780 submissions). On the other hand, for the categories associated
with vote denial (including Voter Registration and Polling Place
changes), DOJ was much less likely to request more information.
These data demonstrate the disjunction between perception and reality
when it comes to what the preclearance regime was actually doing before
/Shelby County/. While new barriers to participation have been a
prominent subject of public, legislative, and scholarly concern -- and
properly so -- Section 5 in practice had long been about redistricting,
at-large elections, and other forms of vote dilution, not about
protecting against vote denial.
Just very recently, Section 5 had begun to play a role -- for the first
time in decades -- in addressing access-to-the-ballot box issues. This
is partly because of a wave of new state laws that impose additional
conditions on voting or that cut back recent extensions in ease of
access. In the last year before /Shelby County/, three important and
highly publicized cases used Section 5 in this way. Federal courts used
Section 5 to stop cutbacks to early voting in the five (of 67) covered
counties in Florida; to induce changes that softened South Carolina's
voter ID law; and to block Texas' voter ID law that permitted only
exceptionally limited forms of identification to count. These decisions
fuel the perception that Section 5 was a major barrier to new laws that
make access to the ballot box for minority voters more difficult.
But keep in mind, because there has been so little use of Section 5 to
address these "vote denial" claims, we also have minimal information --
and virtually none from the Supreme Court -- on how effective Section 5
would have been in stopping such restrictions in the long run. The
Supreme Court did not pass on the merits of any of these three
lower-court decisions.
Section 5 was never an all-purpose protection for access to the ballot
box: only voting changes that had a distinctly disproportionate impact
on minority voters could be blocked. That left open two huge questions,
for this Court, that would have arisen even without /Shelby County/.
How much of a differential impact on minority voters would the Court
have required to block the change under Section 5? And even if there
were large differences in impact along racial lines, would this Court
have found it constitutional for federal law to block state changes in
voting merely because of disparate racial impacts, absent a strong basis
in evidence for concluding that the state changes actually had a
discriminatory purpose? Put more concretely, would this Court have
upheld Section 5's use to block cut-backs in early voting in parts of
Florida, when similar cutbacks were fine in Ohio (and, indeed, in other
parts of Florida)? Those who view Section 5 as a (now defunct) savior
from all newly emerging barriers to access implicitly make optimistic
assumptions not necessarily warranted about what the Court would have
done in such cases.
For all these reasons, Section 5?s bark was bigger than its perceived
bite when it came to protecting access to the vote. It might have
deterred covered jurisdictions from adopting new restrictions on access,
though it is impossible to know what size any such effect might have
been. What's clear is that Section 5 was rarely used to ask for more
information about such changes or to stop them once enacted.
In the long run, other tools are likely to be more effective at
protecting access to the ballot box. Some requiring legislation, some
are possible through executive action, and some involve the courts. The
possibilities include, to name just a few: federal efforts to improve
voting access through measures such as more modern registration systems
(using either the Elections Clause or the Spending Clause); federal
provision of valid identification to eligible voters who might otherwise
lack such identification; greater disclosure of information about the
performance of voting systems in various states; federal legislation
that would establish appropriate, reasonable identification requirements
for federal elections and pre-empt more draconian state laws; use of
state constitutional right-to-vote provisions in litigation. Voting
rights advocates should focus on these types of reforms -- about which
we, and surely others, will have more to say in the future.
*Section 5 Submissions and Objections, 2000-2012. *
*Type*
*Submissions*
*Objections*
*Percent*
Redistricting/Reapportionment
4,132
39
0.94%
Annexation
46,151
3
0.01%
Polling Place/Absentee & Early Voting Locations
37,995
1
0.00%
Precinct
19,182
1
0.01%
Reregistration/Purge
41
0
0.00%
Incorporation/Dissolution
2,103
0
0.00%
Bilingual Procedures
1,934
3
0.16%
Method of Election
7,653
20
0.26%
Form of Government (Elective/Appointed)
519
0
0.00%
Consolidation/Division of Political Units
967
0
0.00%
Special Election
17,330
2
0.01%
Voting Methods
7,395
0
0.00%
Candidate Qualifications
2,205
2
0.09%
Voter Registration Procedures/Voter Qualifications
5,400
5
0.09%
Miscellaneous
55,040
0
0.00%
Total
208,047
76
0.04%
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"New NC law cancels ballots cast in wrong precinct"
<http://electionlawblog.org/?p=54517>
Posted on August 18, 2013 10:02 am <http://electionlawblog.org/?p=54517>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP reports.
<http://www.sfgate.com/news/article/New-NC-law-cancels-ballots-cast-in-wrong-precinct-4741806.php>
I'll have more to say on North Carolina soon.
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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
"NC lawmakers may defend laws in court if AG won't"
<http://electionlawblog.org/?p=54514>
Posted on August 17, 2013 10:07 am <http://electionlawblog.org/?p=54514>
by Rick Hasen <http://electionlawblog.org/?author=3>
The latest
<http://www.nbcnews.com/id/52780958/ns/local_news-raleigh_nc/t/nc-lawmakers-may-defend-laws-court-if-ag-wont/#.Ug-tf1OE43Y>
on the voting law.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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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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