[EL] ELB News and Commentary 8/20/13
Rick Hasen
rhasen at law.uci.edu
Tue Aug 20 08:00:54 PDT 2013
"Republican Vote Suppression Hitches Ride on Detroit's Woes"
<http://electionlawblog.org/?p=54586>
Posted on August 20, 2013 7:46 am <http://electionlawblog.org/?p=54586>
by Rick Hasen <http://electionlawblog.org/?author=3>
Frank Wilkinson
<http://www.bloomberg.com/news/2013-08-20/republican-vote-suppression-hitches-ride-on-detroit-s-woes-.html>
for Bloomberg View.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"Voting Rights Act of 1965 left a complicated legacy"
<http://electionlawblog.org/?p=54583>
Posted on August 20, 2013 7:43 am <http://electionlawblog.org/?p=54583>
by Rick Hasen <http://electionlawblog.org/?author=3>
USA Today reports
<http://www.usatoday.com/story/news/nation/2013/08/19/march-on-washington-voting-rights-act/2646695/>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Voter Fraud Data in the Carolinas"
<http://electionlawblog.org/?p=54580>
Posted on August 20, 2013 7:41 am <http://electionlawblog.org/?p=54580>
by Rick Hasen <http://electionlawblog.org/?author=3>
Pew data dispatch.
<http://www.pewstates.org/research/analysis/voter-fraud-data-in-the-carolinas-85899499002>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
Bauer on Levitt on McCutcheon <http://electionlawblog.org/?p=54578>
Posted on August 20, 2013 7:41 am <http://electionlawblog.org/?p=54578>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.moresoftmoneyhardlaw.com/2013/08/the-interest-in-speech-about-politics-v-the-interest-in-political-speech/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Appeals court: Montana judicial candidates can receive political
endorsements, money" <http://electionlawblog.org/?p=54575>
Posted on August 20, 2013 7:36 am <http://electionlawblog.org/?p=54575>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP reports
<http://missoulian.com/news/state-and-regional/appeals-court-montana-judicial-candidates-can-receive-political-endorsements-money/article_66bb666c-06b1-11e3-8802-001a4bcf887a.html>
on denial of rehearing. Here's a description of the case from the 2013
Supplement <http://electionlawblog.org/?p=53174> toElection Law: Cases
and Materials
<http://www.cap-press.com/books/isbn/9781611631784/Election-Law-Fifth-Edition>
(5th ed. 2012).
In /Sanders County Republican Central Committee v. Bullock/, 698
F.3d 741 (9th Cir. 2012), the Ninth Circuit held on a 2-1 vote that
Montana's law barring political parties from endorsing candidates in
Montana's nonpartisan judicial elections likely violated the First
Amendment. The majority judged the law under strict scrutiny:
The district court found, and the parties do not here dispute, that
Montana has a compelling interest in maintaining a fair and
independent judiciary. Where Montana and the district court err,
however, is in supposing that preventing political parties from
endorsing judicial candidates is a necessary prerequisite to
maintaining a fair and independent judiciary. See/U.S. v. Alvarez/
[/supra/ this Supplement at p. 40---Eds.] ("The First Amendment
requires that the Government's chosen restriction on the speech at
issue be 'actually necessary' to achieve its interest."); /R.A.V. v.
City of St. Paul/, 505 U.S. 377, 395 (1992) ("[T]he danger of
censorship presented by a facially content-based statute requires
that that weapon be employed only where it is /necessary/ to serve
the asserted compelling interest." (internal quotation marks and
citations omitted)). Montana offers no evidence to support this
facially doubtful proposition, and it flies in the face of the fact
that many of the other 38 states that elect their judges not only
allow party endorsements but require party nominations. Nor does
Montana suggest that, as a result, the judiciaries of these other
states lack fairness or integrity. See/White /(Kennedy, J.,
concurring). It may be, of course, that Montana reasonably believes
that restricting political endorsements of judicial candidates
enhances the independence of its judiciary; but such supposed "best
practices" are not remotely sufficient to survive strict scrutiny.
[The majority further held the law banning party endorsements was
not narrowly tailored because Montana could switch to a system of
appointed judges and the law was underinclusive because it did not
bar endorsement by other political associations.]
The dissenting judge responded: "This decision is a big step
backwards for the state of Montana, which we all agree has a
compelling interest in maintaining an independent and impartial
judiciary. The majority ignores the practical effects of its
decision on that interest when it takes a formulaic approach to
First Amendment doctrine. This is the first opinion to hold that
even though a state has chosen a non-partisan judicial selection
process, political parties have a right to endorse candidates. This
means parties can work to secure judges' commitments to the parties'
agendas in contravention of the non-partisan goal the state has
chosen for its selection process."
Who's right?
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Posted in judicial elections <http://electionlawblog.org/?cat=19> |
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"Democrats Push Back on Voting Rights"
<http://electionlawblog.org/?p=54572>
Posted on August 19, 2013 6:16 pm <http://electionlawblog.org/?p=54572>
by Rick Hasen <http://electionlawblog.org/?author=3>
Reid Wilson (!) for /WaPo
<http://www.washingtonpost.com/blogs/govbeat/wp/2013/08/19/democrats-push-back-on-voting-rights/>//:
/"After crying foul over Republican efforts to modify election laws in
key states, Democrats are launching their own wide-ranging push to
change the way Americans vote, kicking off the latest battles in a fight
over voting rights that's as old as the republic itself."
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
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VRA Preclearance (A Response to Pildes/Tokaji, pt. 2)
<http://electionlawblog.org/?p=54569>
Posted on August 19, 2013 5:16 pm <http://electionlawblog.org/?p=54569>
by Justin Levitt <http://electionlawblog.org/?author=4>
(At Rick Hasen's request, I've posted (with permission) two listserv
responses to this post <http://electionlawblog.org/?p=54521> by Rick
Pildes and Dan Tokaji. The first was from Mike Pitts
<http://electionlawblog.org/?p=54564>. For this one, you can blame me.
The version below is modified a bit from what was sent to the listserv.)
To determine the relative power of the substantive work that section
5 was "actually" doing recently, Rick P. and Dan looked
<http://electionlawblog.org/?p=54521> to the numbers of objections
and MIRs (both overall and as a percentage of submissions).
In his follow-up post <http://electionlawblog.org/?p=54564>, Mike
Pitts points out the variable of partisanship and the way that a
shift from mixed partisanship to unitary partisan control might
influence the story.
But there's another aspect to this story as well: what preclearance
"actually" did may not be captured well by the total volume of
objections, even beyond the effect of a partisan shift.
To make the assertion that section 5 was "really" about
redistricting, you need two assumptions. The first is about
statistics. You'd need to believe that the objections accurately
captured what section 5 was "really" doing --- and you'd need to set
aside the potential for a different mix in the sorts of policies
foregone because section 5 acted as a deterrent. We have objections
to measure, so we measure objections. But we don't know whether
that data accurately represent the whole work of the law. If each
of the covered jurisdictions now followed North Carolina in changing
its voter access policies, Rick and Dan's data about objections
wouldn't change in the least. But you might well come to a
different conclusion about the sort of impact section 5 was "really"
having when it was in place.
The second is about scale. Rick and Dan are absolutely right that
the vast majority of the objections (and requests for more
information) --- by volume --- concern redistricting or changes in
the method of election (for example, from districts to at-large or
vice versa). But as I've written before,
<http://ssrn.com/abstract=2265729> about 86% of those objections
were located at the county and local level. And if you peel back
the onion a bit more, some of the objections to "statewide" changes
were actually state laws that only affected one local area, so the
86% figure actually understates the number of local objections.
Simply tallying the number of objections buries the issue of scale.
Consider Texas. I count 15 denials of preclearance during the
period Rick and Dan identified: 5 changes in individual school
districts' or towns' method of election, 3 changes to county
redistricting, 2 changes to county Spanish-language procedures, 1
change to a community college district's absentee ballot provisions,
2 statewide redistrictings, 1 statewide change to candidate
qualifications for water district supervisor, and 1 change to ID
procedures. By volume, it's clear that redistricting is the bulk
of the work. But that volume gives the same weight to statewide
voter ID rules as it does to a change in a local school district
election structure.
Or consider South Carolina, which may make the point even more
cleanly. There were 11 denials of preclearance from 2000-2013: 5
changes in local school districts' method of election, 1 local
annexation, 3 local redistrictings, 1 county redistricting, and 1
statewide ID rule. In South Carolina, was section 5 "really" about
(local) redistricting or "really" about (statewide) access to the
ballot?
My answer is "both." Changes in statewide voting procedures are
important, and local redistricting is important, and I'm not sure
that comparing the sheer volume of one to the sheer volume of
another tells you much about where section 5 has the most utility.
For what it's worth, there is much in Rick P. and Dan's post that is
helpful. I disagree with some of their points (given the history of
covered jurisdictions and the availability of bailout, section 5 was
never purely about disparate impact
<http://redistricting.lls.edu/files/_%20Levitt%20responses%20to%20Franken%20QFRs.pdf>
alone: there's good reason to be more suspicious of policies with a
disparate impact in Texas than in Wisconsin). And I heartily agree
with others (it is unclear how section 5 "vote denial" claims would
be considered by the Supreme Court, there is utility in protecting
against access restrictions through means beyond a preclearance
model). I just want to note here that looking purely to the number
of objections or MIRs doesn't necessarily tell you what section 5
was "really" about unless you think that the mix of objections also
reflects the mix of foregone changes, and unless you think that all
election-related changes, no matter what scale, are equally impactful.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
redistricting <http://electionlawblog.org/?cat=6>, voter registration
<http://electionlawblog.org/?cat=37>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
VRA Preclearance (A Response to Pildes/Tokaji, pt. 1)
<http://electionlawblog.org/?p=54564>
Posted on August 19, 2013 4:45 pm <http://electionlawblog.org/?p=54564>
by Justin Levitt <http://electionlawblog.org/?author=4>
(Re-posted on behalf of Mike Pitts
<http://mckinneylaw.iu.edu/faculty-staff/profile.cfm?Id=293>, from a
listserv email, with permission, in response to this post
<http://electionlawblog.org/?p=54521>):
I have great respect for Dan Tokaji and Rick Pildes. They are smart
folks and excellent scholars. And they may well be right that
Section 5 did not do a wonderful job of protecting access to the
ballot for minority voters. But I am not convinced of that argument
by the statistics presented in their blog post.
Dan and Rick make their case that Section 5 did not do much to
protect access to the ballot primarily by focusing on statistics
involving the Department of Justice's (DOJ) objections to voting
changes from 2000 to 2013. Using those statistics, they rightly
note that (1) the vast majority of DOJs objections during that
period did not relate to access issues but instead related to vote
dilution issues, such as redistricting plans; and (2) that as a
percentage of submissions, objections to access-type changes are
much smaller than those related to dilution-type changes.
Leaving aside the hotly contested issue as to whether Section 5
served to deter covered jurisdictions from adopting changes that
harmed minority voters in the first instance, Dan and Rick leave
unmentioned what may well be the most important reason Section 5 is
currently needed (at least at the statewide level) to protect access
for minority voters---the shift in the partisan political dynamic in
the covered jurisdictions that has occurred between 2000 and now.
The covered jurisdictions have changed enormously since 2000 in
terms of the partisan dynamic, going from either solidly Democratic
or mixed to solidly Republican. Take a look at the map at this link
from PEW:
http://www.pewstates.org/research/data-visualizations/republican-rule-deeper-divides-85899444189.
What you'll see is that eight of the States that were fully covered
by Section 5 (Alabama, Alaska, Arizona, Georgia, Louisiana,
Mississippi, South Carolina, Texas) and one of the State's that was
covered in substantial part by Section 5 (North Carolina) are now
strongly Republican---meaning Republicans control all the levers of
state government. While I couldn't easily locate a map of what the
makeup of the States was in 2000, off the top of my head, I recall
that Democrats still retained some control in the legislatures of
Alabama, Georgia, Louisiana, Mississippi, North Carolina, and Texas;
and, in 2000, Alaska and South Carolina had Democratic governors.
As many of the access laws that both Dan and Rick and myself find
troublesome originate in States dominated by Republicans, the new,
relatively recent, political dynamic of the South would likely
enhance the /current/ need for Section 5. Indeed, the very recent
history of Section 5 litigation over access changes by State
governments (Texas and South Carolina photo ID; Florida early
voting)---where DOJ was successful---would seem to be much more
indicative of the importance of Section 5 to access issues than
rates of DOJ objections from 2000 to present.
To be sure, Dan and Rick may have made the case that there is no
need for Section 5 coverage of access changes on the /local /level.
In the present day and age, there probably isn't the need for
Section 5 review of every precinct and polling place change in every
county, city and school district within the covered jurisdictions.
That's not to say that there wouldn't be any problems in this realm,
it's just that the costs might outweigh the benefits of such review.
Dan and Rick may also well be right that a Supreme Court hostile to
the Voting Rights Act might have reduced Section 5's effectiveness
in blocking problematic access laws passed by the covered
jurisdictions---although somewhat interestingly, in many of the
recent Section 5 cases, Republican judicial appointees in the lower
courts often embraced the Department of Justice's arguments. Even
so, at least the "better" status quo would have been retained in the
years leading up to these holdings of the Supreme Court.
In sum, while the statistics used by Dan and Rick to make their
argument are something worthy of consideration, I don't think these
statistics fairly reflect the whole story about Section 5's current
import to access issues in light of the tremendous partisan
realignment that has occurred in the covered jurisdictions over the
course of the same exact time period that Dan and Rick focus upon.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
redistricting <http://electionlawblog.org/?cat=6>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | 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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