[EL] ELB News and Commentary 8/22/13
Rick Hasen
rhasen at law.uci.edu
Wed Aug 21 21:00:44 PDT 2013
First Circuit Panel, Including Justice Souter, Reject Challenges to
Bribery and Extortion-Related Charges Involving Former Mass. Speaker
and Lobbyist <http://electionlawblog.org/?p=54684>
Posted on August 21, 2013 7:54 pm <http://electionlawblog.org/?p=54684>
by Rick Hasen <http://electionlawblog.org/?author=3>
Howard <http://howappealing.law.com/082113.html#052370> has the details
and link to the opinion.
There's a discussion in here about explicit agreements and McCormick.
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Posted in bribery <http://electionlawblog.org/?cat=54> | Comments Off
Pasquotank County, NC Appeal <http://electionlawblog.org/?p=54680>
Posted on August 21, 2013 7:35 pm <http://electionlawblog.org/?p=54680>
by Rick Hasen <http://electionlawblog.org/?author=3>
In my recent /Slate /article
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/08/north_carolina_s_speedy_vote_suppression_tactics_show_exactly_why_the_voting.html>,
I wrote:
Forty of North Carolina's counties were covered
<http://www.justice.gov/crt/about/vot/sec_5/covered.php> by the
preclearance requirement before /Shelby County/, and a draconian law
like this would never have made it past the Justice Department. Nor
would a whole bunch of local shenanigans deployed just last week in
suppressing student and other voting. The Associated Press reported
<http://www.thestate.com/2013/08/14/2920155/nc-elections-boards-move-to-curtail.html>
that "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."
Pasquotank County used to be a covered jurisdiction.
Well there's now been an appeal
<http://electionlawblog.org/wp-content/uploads/Pasquotank-BOE-King-Appeal_08.20.2013.pdf>in
that case to the state board of elections. We'll see if "respect
<http://electionlawblog.org/?p=54673>" leads to a different decision.
This will be an important test case for what the state Board will allow
some counties to get away with in NC.
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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
Election Passport <http://electionlawblog.org/?p=54678>
Posted on August 21, 2013 7:30 pm <http://electionlawblog.org/?p=54678>
by Rick Hasen <http://electionlawblog.org/?author=3>
David Lublin sends along the following information:
American University's School of Public Affairs is pleased to
announce the launch ofElection Passport
<http://www.electionpassport.com/>, a new online resource providing
free access to a rich dataset of constituency election results from
over 80 countries around the world.
The goal of Election Passport <http://www.electionpassport.com/> is
to enable researchers and students to engage in high-level analysis
of elections on countries for which data are not easily available.
From Andorra to Zambia, this site provides unusually complete data
sets that include votes won by very small parties, independents, and
frequently, candidate names that are difficult to locate. As an
ongoing project, additional elections will be regularly added.
Election Passport <http://www.electionpassport.com/> was developed
by David Lublin <http://www.electionpassport.com/files/lublin.pdf>,
Professor of Government in the School of Public Affairs at American
University, with the support of AU's Center for Latin American and
Latino Studies and the German Marshall Fund of the U.S.
We hope that you will find this to be a valuable resource and
encourage you to share this announcement with your colleagues.
Please contact David Lublin at dlublin at american.edu
<mailto:dlublin at american.edu> or (202) 885-2913
<tel:%28202%29%20885-2913> should you have any questions.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Elections and Alignment" <http://electionlawblog.org/?p=54676>
Posted on August 21, 2013 7:29 pm <http://electionlawblog.org/?p=54676>
by Rick Hasen <http://electionlawblog.org/?author=3>
Nick Stephanopoulos has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2313941> on SSRN
(forthcoming, /Columbia Law Review/). Here is the abstract:
Election law doctrine has long been dominated by
rights-and-interests balancing: the weighing of the rights burdens
imposed by electoral regulations against the state interests that
the regulations serve. For the last generation, the election law
literature has emphasized structural values that relate to the
functional realities of the electoral system, competition chief
among them. This Article introduces a new structural theory---the
alignment approach---that has the potential to reframe and unify
many election law debates. The crux of the approach is that voters'
preferences ought to be congruent with those of their elected
representatives. Preferences as to both party and policy should
correspond, and they should do so at the levels of both the
individual district and the jurisdiction as a whole.
The areas the alignment approach could reorient include franchise
restriction, party regulation, campaign finance, redistricting, and
minority representation. For instance, measures that hinder voting
could be conceived not as rights violations or efforts to suppress
competition, but rather as partisan distortions of the electorate.
Similarly, campaign finance regulations could be assessed based on
their capacity to shift candidates' preferences toward those of
their constituents (and away from those of their donors). And the
key issue for district plans could be whether they properly align
the jurisdiction's median voter with the legislature's median member.
The alignment approach is attractive because it stems from the core
meaning of democracy itself. If it is the people who are sovereign,
then it is their preferences that should be reflected in the
positions of their representatives. The approach also is appealing
because of the support it finds in the Supreme Court's case law.
While the Court has never embraced the approach explicitly, it has
often recognized the significance of preference congruence. However,
it is important not to overstate the approach's utility. Other
election law values matter too and cannot be disregarded. Moreover,
many of the factors that produce misalignment are non-legal and thus
cannot be addressed by law reform alone.
An interesting draft (though followers of my work in this area won't be
surprised to discover I remain unconvinced by structural theories
empowering courts to intervene more in the political process).
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Posted in theory <http://electionlawblog.org/?cat=41> | Comments Off
"NC State Elections Chairman Calls for Respect"
<http://electionlawblog.org/?p=54673>
Posted on August 21, 2013 7:23 pm <http://electionlawblog.org/?p=54673>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP:
<http://www.charlotteobserver.com/2013/08/21/4252573/nc-state-elections-chairman-preaches.html#.UhVQvrX1L5g.twitter>
County election board members must work as colleagues and not
political rivals, the new Republican chairman of the State Board of
Elections said Wednesday as recent local board dust-ups have led to
allegations of partisanship and voter suppression.
Josh Howard addressed nearly 500 local elections board members,
directors and staff at a statewide training seminar, the first since
all 100 county boards came under GOP control this year after 20
years in Democratic hands. Republicans now hold 2-1 majorities in
counties because Gov. Pat McCrory was elected.
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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> | Comments Off
"Voter ID Debate Heats Up as Dallas County Joins Fight"
<http://electionlawblog.org/?p=54670>
Posted on August 21, 2013 7:17 pm <http://electionlawblog.org/?p=54670>
by Rick Hasen <http://electionlawblog.org/?author=3>
Texas Tribune
<http://www.texastribune.org/2013/08/21/dallas-county-joins-voter-id-lawsuit/>:
"A fight against the state's contentious voter ID laws escalated this
week when Dallas County became the first Texas county to claim that the
requirements would disenfranchise thousands of eligible voters."
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Posted in 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
"Accepting Scalia's Offer, Arizona Sues Obama Administration On
Voting Rights" <http://electionlawblog.org/?p=54667>
Posted on August 21, 2013 7:14 pm <http://electionlawblog.org/?p=54667>
by Rick Hasen <http://electionlawblog.org/?author=3>
TPM:
<http://tpmdc.talkingpointsmemo.com/2013/08/scalia-arizona-voting-rights.php?ref=fpb>"Arizona
and Kansas have taken Supreme Court Justice Antonin Scalia's suggestion
and sued the Obama administration
<http://www.scribd.com/doc/162005834/Arizona-Kansas-EAC-Complaint-8-21-13>
in a continuing effort by both states to require proof of citizenship in
order to register to vote."
This is an outgrowth of /Arizona v. Inter-Tribal Council/, as I've
discussed in this /Daily Beast/ piece
<http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html>
(and this /Slate/ piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/are_the_liberals_on_the_supreme_court_savvy_or_suckers.html>asking
why the Court's liberals joined in the aspect of Justice Scalia's
opinion suggesting such a lawsuit and a strong view of voter
qualifications questions.)
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Posted in Elections Clause <http://electionlawblog.org/?cat=70>, The
Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
Absentee Ballot Fraud Alleged in U.S. Congressional Race in Texas
<http://electionlawblog.org/?p=54664>
Posted on August 21, 2013 8:48 am <http://electionlawblog.org/?p=54664>
by Rick Hasen <http://electionlawblog.org/?author=3>
Details.
<http://www.brownsvilleherald.com/news/local/article_6b379594-0a6c-11e3-917e-0019bb30f31a.html>
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Posted in absentee ballots <http://electionlawblog.org/?cat=53>,
chicanery <http://electionlawblog.org/?cat=12> | Comments Off
"Can You Solve Slate's Gerrymandering Jigsaw Puzzle?"
<http://electionlawblog.org/?p=54657>
Posted on August 21, 2013 8:27 am <http://electionlawblog.org/?p=54657>
by Rick Hasen <http://electionlawblog.org/?author=3>
Enjoy!
<http://www.slate.com/articles/news_and_politics/map_of_the_week/2013/08/gerrymandering_jigsaw_puzzle_game_put_the_congressional_districts_back_together.html>
Great election law teaching tool.
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Posted in pedagogy <http://electionlawblog.org/?cat=23>, redistricting
<http://electionlawblog.org/?cat=6> | Comments Off
Against a "Post-Racial" Voting Rights Act
<http://electionlawblog.org/?p=54654>
Posted on August 21, 2013 8:25 am <http://electionlawblog.org/?p=54654>
by Spencer Overton <http://electionlawblog.org/?author=17>
Click here
<http://prospect.org/article/against-post-racial-voting-rights-act> for
my recent piece in The American Prospect, /Against a "Post-Racial"
Voting Rights Act
<http://prospect.org/article/against-post-racial-voting-rights-act>/. A
summary:
Some have used the debate about updating the Voting Rights Act as an
opportunity to argue that Congress should "look beyond" measures that
prevent race discrimination, and should instead enact race-neutral
general election reform (e.g., shorter lines, easier registration,
less-restrictive ID).
They are wrong. Discrimination persists, and general election reform
would fail to stop much of it---especially in local elections. An
election reform bill would also polarize the debate in Congress, and
undermine any chance for bipartisan consensus in updating the Voting
Rights Act. I personally support election reforms that expand
access--and agree they should be pushed in state legislatures. For now,
however, Congress should focus on preventing voting discrimination in
updating the Voting Rights Act---not general election reforms.
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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 Part II <http://electionlawblog.org/?p=54638>
Posted on August 21, 2013 8:11 am <http://electionlawblog.org/?p=54638>
by Dan Tokaji <http://electionlawblog.org/?author=5>
*By Rick Pildes & Dan Tokaji*
The primary goal in our earlier post
<http://electionlawblog.org/?p=54521> was to bring greater policy and
legal realism to discussions of Section 5 --- both in terms of (1)
historical perspective on what Section 5 actually did//and (2) on what
kind of voting policies are likely to be most effective going forward.
These conversations are essential for those, like us, concerned with
preventing new barriers to access and with expanding access to more
eligible voters.
(1) In terms of how Section 5 actually functioned, the responses on this
blog add greater detail that is fair enough, but they do not, in our
view, affect our main empirical point: that, for several decades,
Section 5 has played much less of a role than most people assume in
protecting access to the ballot box. Far more often, Section 5 was
invoked to address vote dilution, not access. And even leaving this
comparison aside, when we look simply at the absolute number of
objections to access barriers, it's easy to see that the number has been
extremely low in recent decades -- and was actually far lower even in
the early years of Section 5's existence than we expect most
commentators realize.
We focused on the period between 2000 and 2012 in our initial post, but
consider the following graphically-presented information for the whole
history of Section 5's life. This Figure is taken from Bruce E. Cain
and Karin MacDonald, /Voting Rights Enforcement: Navigating Between
High and Low Expectations/, in The Future of the Voting Rights Act 130
(D. Epstein and R. Pildes et al. eds.) (2006):
Cain&MacDonald-VRAObjections
<http://electionlawblog.org/wp-content/uploads/CainMacDonald-VRAObjections.tif>
Moreover, while Justin Levitt <http://electionlawblog.org/?p=54569>
points out that not all redistricting is statewide, it's similarly true
that not all "ballot access" issues involve statewide laws -- important
ballot design changes can take place at the county level and have only
local effects. Objections don't tell the whole story, of course, but as
the Fraga and Ocampo study shows
<http://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9-07.pdf>, the
pattern is the same for both objections and more information requests
(MIRs) going back three decades.
As Justin also rightly points out, not all objections and MIRs affect
the same number of voters. But it is much more difficult to quantify
which objections matter "most." Objections to statewide redistricting
plans, which were common, surely matter a great deal. While Justin
emphasizes the recent Texas statewide voter ID law, the whole point of
our post is that these kind of laws were not typical of those that
Section 5 blocked in the past -- and the very point of Mike Pitts'
response <http://electionlawblog.org/?p=54564> is that we should now,
for partisan reasons, expect laws like Texas's law to be more likely to
be enacted than in recent decades. None of the comments cast any real
doubt, in our view, on our historical claim that, in recent decades at
least, Section 5 had not played as great a role in protecting access to
the ballot as is commonly believed.
(2). Counterfactuals about what Section 5 would have done in the
future, had the Court not decided /Shelby County/, are necessarily
speculative on all sides. Our aim was to inject greater realism with
respect to two points that inform the debate over what voting policies
should be pursued prospectively.
First, Mike Pitts is right to suggest that new barriers to voting today
are mostly likely going to come about as a result of partisan political
competition and efforts to gerrymander the electorate in favor of one
party or the other. But our point is that it is precisely this reality
that reveals the limitations of the Section 4/5 regime -- and suggests
that we should concentrate on measures designed to improve access more
broadly. Section 5 wasn't designed to be a major bulwark against
partisan manipulation of access to the vote.
Moreover, Section 5's race-based standard didn't make partisan
manipulation itself illegal, except in places where partisan restriction
on access closely correspond to race in particular ways that Section 5
doctrine had not sorted out clearly yet. Partisan manipulation of
voting rules isn't limited, of course, to covered jurisdictions. Nor --
when partisan political competition is driving these laws -- is it
plausible to imagine devising a coverage formula that can adequately
predict where those restrictions will arise tomorrow, much less ten or
twenty years from now. And precisely because these laws are arising
from partisan political pursuit of self-interest, Section 5's efficacy
might well have depended on who happened to control the levers of power
in DOJ. While Section 5 may have "worked" from the perspective of
liberals in a few very recent, high profile cases, comparable
restrictions on access were approved during prior Republican
administrations.
Second, we want to inject more realism about how much legal change has
occurred in the last 30 years concerning the VRA. The Supreme Court as
it existed from roughly 1965 to 1990 is not the Court that has been in
place in the years since. In that sense, /Shelby County/ is not a
one-off decision that happened to occur at one isolated moment in time.
We have to recognize that, for decades now, the Supreme Court has
adopted a more skeptical stance toward race-conscious government action,
especially in the realm of democratic politics. There is no recent
precedent from the Court (at least none we can recall) on Section 5's
application to participation barriers. But we suggest greater caution
about whether the current Court would understand Section 5 to block
access barriers without clear evidence of a substantial racially
disproportionate impact or, if it did, that the Court would uphold the
constitutionality of such applications of Section 5. The fact that
three lower-federal courts blocked or modified recent changes in Texas,
South Carolina, and Florida is not a reliable guide to how the Supreme
Court would have handled those issues. Nearly all those lower-court
judges would also have upheld the constitutionality of Section 4/5,
contrary to the Court. In sum, we shouldn't be excessively confident
about what Section 5 would have done to protect access to the vote, even
if the Court hadn't decided /Shelby County./
Most important are the implications for what should be done going
forward. While lingering disagreements at the margins over what the
data prove are inevitable, the important question is whether better
means exist by which to protect against new unjustified barriers to
voting, and even to expand access. We think there are means outside the
Section 5 model that are not only more effective in today's
circumstances, but also more politically viable and more likely to be
upheld as constitutional. These include, to name just a few, expanded
voter registration, federal provision of easily available voter ID to
eligible voters, greater disclosure, and state constitutional lawsuits.
At this point in our history, thinking beyond the model of Section 5 is
likely to generate the most effective and widespread protections for the
right to vote.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Ginni Thomas(Justice Thomas's Spouse) Quote of the Day
<http://electionlawblog.org/?p=54640>
Posted on August 21, 2013 8:06 am <http://electionlawblog.org/?p=54640>
by Rick Hasen <http://electionlawblog.org/?author=3>
"Okay
<http://electionlawcenter.com/2013/08/21/part-3-of-ginni-thomas-interview-at-daily-caller.aspx>,
Let's talk about the world view of the left compared to the American
world view..."
Share
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Against a 'Post-Racial' Voting Rights Act"
<http://electionlawblog.org/?p=54636>
Posted on August 21, 2013 8:00 am <http://electionlawblog.org/?p=54636>
by Rick Hasen <http://electionlawblog.org/?author=3>
Spencer Overton writes
<http://prospect.org/article/against-post-racial-voting-rights-act> at TAP.
Share
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Colorado: Another legal challenge? Colorado law mandates a vote on
the recall question for a successor vote to count"
<http://electionlawblog.org/?p=54633>
Posted on August 21, 2013 7:52 am <http://electionlawblog.org/?p=54633>
by Rick Hasen <http://electionlawblog.org/?author=3>
Josh Spivak
<http://recallelections.blogspot.com/2013/08/colorado-another-possible-challenge.html>:
The Citizen Center's Marilyn Marks
<http://recallelections.blogspot.com/2013/08/colorado-look-at-aspen-activist-and.html>
has pointed out that the Colorado Recall requires that voters must
cast a ballot on the yes-or-no recall question if they want to vote
for a successor candidate. Just to be clear: Colorado, like
California, has what I call a two-step/same-day recall vote ---
voters cast one ballot which has two parts: step one is the question
of "Should this official be recalled?" and step two is "Who should
be named as a replacement?" Colorado's Constitution very clearly
states that if you don't vote on the recall question, any second
vote is tossed out and doesn't count.
This is a ripe avenue for litigation, as California had the same
provision in 2003. A US District Court
<http://legacy.utsandiego.com/news/politics/recall/20030729-1304-davisrecall.html>tossed
it out as unconstitutional (the case was not appealed). San Diego
<http://recallelections.blogspot.com/2013/08/san-diegos-recall-law-is-disaster-one.html>
is facing the same question (which may very well be tossed out there
as well). This one could be another minefield for the Secretary of
State and the local Clerks.
Share
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Posted in recall elections <http://electionlawblog.org/?cat=11> |
Comments Off
"Detroit mayor count in chaos as Wayne County refuses to certify
primary results" <http://electionlawblog.org/?p=54630>
Posted on August 21, 2013 7:47 am <http://electionlawblog.org/?p=54630>
by Rick Hasen <http://electionlawblog.org/?author=3>
Woah <http://www.freep.com/article/20130820/NEWS01/308200117/>: "A state
election panel will have to decide who really won the Detroit mayoral
primary after Wayne County election officials on Tuesday refused to
certify shocking new election results, which would have invalidated
about 20,000 votes and handed the primary win to Benny Napoleon instead
of Mike Duggan."
h/tDoug Chapin.
<http://blog.lib.umn.edu/cspg/electionacademy/2013/08/making_a_hash_of_it_detroits_w.php>
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Posted in election administration <http://electionlawblog.org/?cat=18> |
Comments Off
"How Our Political Parties Beat Campaign Finance Reform"
<http://electionlawblog.org/?p=54627>
Posted on August 21, 2013 7:25 am <http://electionlawblog.org/?p=54627>
by Rick Hasen <http://electionlawblog.org/?author=3>
Seth Masket writes
<http://www.psmag.com/politics/why-didnt-campaign-finance-reform-work-64628/>
for PS Mag.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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