[EL] ELB News and Commentary 12/4/13
Rick Hasen
rhasen at law.uci.edu
Tue Dec 3 21:27:23 PST 2013
"Nearly Half Of Americans Live In Places Where Election Officials
Admit Long Lines Are A Problem" <http://electionlawblog.org/?p=57145>
Posted on December 3, 2013 9:24 pm
<http://electionlawblog.org/?p=57145>by Rick Hasen
<http://electionlawblog.org/?author=3>
Ryan Reilly
<http://www.huffingtonpost.com/2013/12/03/presidential-voting-commission-long-lines_n_4378760.html?utm_hp_ref=politics>for
HuffPo:
Nearly half of Americans live in precincts where long lines at the
voting booth were a problem in the 2012 election cycle, according to
a survey conducted by President Barack Obama's Presidential
Commission on Election Administration
<http://www.huffingtonpost.com/2013/02/12/presidential-voting-commission-chairs-obama-romney_n_2673675.html>.
The survey of over 3,000 local elections officials also found that
on average, poll workers received far less training than the eight
hours most elections experts recommend. First-time workers in
smaller jurisdictions received an average of just 2.5 hours of
training, while workers in larger jurisdictions received an average
of 3.6 hours of training, according to the survey.
"It looks like there's not a whole lot of training going on, and my
question is, what is the quality of that training?" said Charles
Stewart, a professor at The Massachusetts Institute of Technology
who presented the results of the survey during the commission's
final public hearing on Tuesday.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"'Super PAC' to Raise Money for Liz Cheney's Senate Bid"
<http://electionlawblog.org/?p=57143>
Posted on December 3, 2013 9:19 pm
<http://electionlawblog.org/?p=57143>by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2013/12/04/us/politics/super-pac-to-raise-money-for-liz-cheneys-senate-bid.html?ref=politics>
The independent group will feature the candidate's father, former VP
Dick Cheney, as keynote speaker.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Corruption Panel's Report Offers Look at the Payback Culture in
Albany" <http://electionlawblog.org/?p=57141>
Posted on December 3, 2013 9:18 pm
<http://electionlawblog.org/?p=57141>by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2013/12/04/nyregion/corruption-panels-report-offers-look-at-the-payback-culture-in-albany.html?ref=politics>.
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Posted in bribery <http://electionlawblog.org/?cat=54>, campaigns
<http://electionlawblog.org/?cat=59>, chicanery
<http://electionlawblog.org/?cat=12>
More on Palmdale <http://electionlawblog.org/?p=57139>
Posted on December 3, 2013 9:11 pm
<http://electionlawblog.org/?p=57139>by Rick Hasen
<http://electionlawblog.org/?author=3>
Plaintiffs' expert in the Palmdale case (see earlier post
<http://electionlawblog.org/?p=57111>), David Ely, sends along these
thoughts via email:
1. Judge did not say that incumbency can never be a consideration,
he said that it cannot be used to justify a plan that otherwise
violates traditional redistricting criteria and is designed to
maintain the existing power structure. He quotes my
characterization of their plan as an egregious incumbent
gerrymander, and notes that it would work against remedying the
violation. Going from an at large system found in violation to a
district system is always going to need extra suspicion of
incumbency protection. Since the incumbents were elected at large
there are no issues of keeping officials with the constituents who
elected them, as any district will do that.
2. While the CVRA standards may be much easier to meet than federal
VRA standards, the case against Palmdale meets federal standards and
could easily have been a Summary Judgment case in Federal court.
Defendants' expert agreed that it was possible to draw at least
one 50% Latino CVAP district, and that historical elections have
been characterized by racially polarized voting, and that minority
candidates of choice in city council elections have only won when
they were Anglo choice as well. Defense argument was based on idea
that Democratic candidates winning locally in partisan statewide
contests, supported by Latinos and not by Anglos, meant that Latinos
could elect candidates of choice. In addition Palmdale has an
extensive history of racial conflict and official discrimination.
3.The Modesto case which the Supreme Court refused to hear raised
the equal protection argument in a situation where a Section 2 case
might well have failed. There could be a case which raises the
argument more compellingly, but that would require a judge to find a
violation and order a remedy that could be said to violate Equal
Protection as applied. This case raises none of those issues, and I
doubt that California Courts will apply the CVRA in a way that does.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
"Keeping Shareholders in the Dark"
<http://electionlawblog.org/?p=57137>
Posted on December 3, 2013 9:01 pm
<http://electionlawblog.org/?p=57137>by Rick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial.
<http://www.nytimes.com/2013/12/04/opinion/keeping-shareholders-in-the-dark.html?smid=fb-share&_r=0>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
LWV Sees IRS NPRM on IRS 501c4 as Important First Step
<http://electionlawblog.org/?p=57135>
Posted on December 3, 2013 2:35 pm
<http://electionlawblog.org/?p=57135>by Rick Hasen
<http://electionlawblog.org/?author=3>
Could I get any more abbreviations in the title? Read here
<http://www.lwv.org/press-releases/new-irs-proposal-tax-exempt-groups-important-first-step-against-abuse-says-league>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Statutory Interpretation As Contestatory Democracy"
<http://electionlawblog.org/?p=57133>
Posted on December 3, 2013 2:34 pm
<http://electionlawblog.org/?p=57133>by Rick Hasen
<http://electionlawblog.org/?author=3>
Glen Staszewski has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2350213>on SSRN
(forthcoming, /William and Mary Law Review/). Here is the abstract:
This Article provides a novel solution to the counter-majoritarian
difficulty in statutory interpretation by applying recent insights
from civic republican theory to the adjudication of statutory
disputes in the modern regulatory state. From a republican
perspective, freedom consists of the absence of the potential for
arbitrary domination, and democracy should therefore include both
electoral and contestatory dimensions. The Article argues that
statutory interpretation in the modern regulatory state is best
understood as a mechanism of contestatory democracy. It develops
this conception of statutory interpretation by considering the
distinct roles of legislatures, administrative agencies, and courts
in making and implementing the law. The Article claims that this
understanding of statutory interpretation is both descriptively
accurate and normatively attractive, and it explores some of the
most important implications of recharacterizing statutory
interpretation in this fashion. Specifically, this understanding of
statutory interpretation sheds new light on the most fundamental
problems with textualism, and it provides reasons to give serious
consideration to proposals for increased judicial candor in
statutory interpretation and for judicial review of at least some
types of legislation for due process of law making.
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Posted in statutory interpretation <http://electionlawblog.org/?cat=21>
"Fast-tracked Michigan election funding bill may aid incumbents"
<http://electionlawblog.org/?p=57131>
Posted on December 3, 2013 2:31 pm
<http://electionlawblog.org/?p=57131>by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Detroit News/ reports.
<http://www.detroitnews.com/article/20131202/POLITICS02/312020016/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Represent.Us, United Republic, Larry Lessig, and "Corruption"
Bait-and-Switch <http://electionlawblog.org/?p=57127>
Posted on December 3, 2013 2:11 pm
<http://electionlawblog.org/?p=57127>by Rick Hasen
<http://electionlawblog.org/?author=3>
There's something of a bait-and-switch going on from those folks
supporting the American Anti-Corruption Act <http://anticorruptionact.org/>.
The main constitutional theory behind the Act is Larry Lessig's theory
of "dependence corruption," which he sets forth in his book, Republic,
Lost, and elsewhere. Larry and I have gone round-and-round on whether or
not Larry's theory is about political equality. (He says it is not; I
say it is---see my HLR review
<http://www.harvardlawreview.org/issues/126/december12/Book_Review_9410.php>
and ELJ piece.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2220851>) Larry is
also emphatic (and pretty clear) that by "dependence corruption" he does
not mean typical corruption where politicians take bribes. Instead, "In
this second sense of corruption, it is not individuals who are corrupted
within a well-functioning institution. It is instead an institution that
has been corrupted, because
the pattern of influence operating upon individuals within that
institution draws them away from the influence intended" (p. 231).
So when the group Represent.us/United Republic (not sure what the
relation is between the two) started pushing the American
Anti-Corruption Act and claiming it was justified by Larry's
constitutional "dependence corruption" theory, I was surprised to see
this
<https://represent.us/action/something-insane-just-happened-house-representatives/>:
Screen Shot 2013-12-03 at 1.57.04 PM
<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2013-12-03-at-1.57.04-PM.png>
So I asked on Twitter, given all the talk about bribery,
<https://twitter.com/rickhasen/status/398869438008541184>whether the
American Anti-Corruption Act was about dependence corruption or
old-style corruption, Larry said
<https://twitter.com/lessig/status/398870313401716736>it is dependence
corruption. But the language from Represent.us is about old style
corruption, a point Larry conceded
<https://twitter.com/lessig/status/398963645729603584>.
Old style corruption is how Represent.us is trying to sell the American
Anti-Corruption Act to the public. See this from the front of the page
for the Act:
Screen Shot 2013-12-03 at 2.01.23 PM
<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2013-12-03-at-2.01.23-PM.png>
Why the disconnect? Larry is careful to say he is /not/ accusing members
of Congress of taking bribes. He writes: "[Dependence corruption is] a
corruption practiced by decent people, people we should respect, people
working extremely hard to do what they believe is right, yet decent people
working with a system that has evolved the most elaborate and costly
bending of democratic government in our history. . . . This corruption
has two elements . . . . The first element is bad governance, which
means simply that our government doesn't track the expressed will of the
people, whether on the Left or on the Right. . . . The second element is
lost trust: when democracy seems a charade, we lose faith in its
process. . . .Participation thus declines, especially among the sensible
middle. Policy gets driven by the extremists at both ends. (pp. 8--9).
But Represent.us /is/ selling old-style bribery/corruption. Daniel Stid
<https://twitter.com/Daniel_Stid/status/398875272352505856> suggests
that the reason for the disconnect (or less charitably, in my terms, the
bait-and-switch) is that Represent.us is made up of advocates seeking to
rally a broader public on the issue. And I think that's right. Check
out this new report
<http://www.publicintegrity.org/2013/12/03/13943/don-t-support-campaign-finance-reform-try-combating-corruption>from
CPI about a Represent.us poll finding broader public support for
campaign finance laws when the language used is that of "corruption."
The reason I find this troubling is that I think it is corrosive to our
democracy to talk about politicians taking bribes when that is not the
real problem. Larry is talking about the real problem (even though I
would characterize the problem as one of inequality not dependence
corruption). But to sell to the public the idea that politicians are on
the take---especially when the constitutional justification for the
program is something else entirely---seems to me like a bad idea.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Issa: FBI impeding inquiry into IRS targeting of conservative
groups" <http://electionlawblog.org/?p=57125>
Posted on December 3, 2013 12:53 pm
<http://electionlawblog.org/?p=57125>by Rick Hasen
<http://electionlawblog.org/?author=3>
Wash. Times
<http://www.washingtontimes.com/news/2013/dec/2/lawmakers-suspect-fbi-is-impeding-irs-inquiry-targ/>:
"he House's chief investigator says the FBI
<http://www.washingtontimes.com/topics/federal-bureau-of-investigation/>
is stonewalling his inquiry into whether the agency and the Internal
Revenue Service
<http://www.washingtontimes.com/topics/internal-revenue-service/>
targeted conservative group True
<http://www.washingtontimes.com/topics/true/> the Vote for special
scrutiny, and Rep. Darrell E. Issa
<http://www.washingtontimes.com/topics/darrell-e-issa/> is now
threatening subpoenas to pry loose the information from FBI
<http://www.washingtontimes.com/topics/federal-bureau-of-investigation/>
Director James B. Comey Jr.
<http://www.washingtontimes.com/topics/james-b-comey-jr/>"
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
election administration <http://electionlawblog.org/?cat=18>, tax law
and election law <http://electionlawblog.org/?cat=22>, The Voting Wars
<http://electionlawblog.org/?cat=60>
ALEC May Create Sister 501(c)(4) Organization to Avoid Tax Problems
<http://electionlawblog.org/?p=57122>
Posted on December 3, 2013 11:31 am
<http://electionlawblog.org/?p=57122>by Rick Hasen
<http://electionlawblog.org/?author=3>
And other interesting revelations
<http://www.theguardian.com/world/2013/dec/03/alec-funding-crisis-big-donors-trayvon-martin>
in /The Guardian./
ALEC had been pushing voter id laws around the country, among other things.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
lobbying <http://electionlawblog.org/?cat=28>, tax law and election law
<http://electionlawblog.org/?cat=22>
"Latinos Want Gov't to Look Into LA County Voting"
<http://electionlawblog.org/?p=57119>
Posted on December 3, 2013 10:32 am
<http://electionlawblog.org/?p=57119>by Rick Hasen
<http://electionlawblog.org/?author=3>
Important AP story
<http://abcnews.go.com/Politics/wireStory/latinos-us-sue-la-supervisors-board-21049097>:
"The Obama administration is aggressively pursuing lawsuits over
minority voting rights in Texas and North Carolina, but the Justice
Department has not moved on evidence that the latest round of
redistricting in Los Angeles County unfairly reduces the influence of
Latino voters."
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
In Fascinating Case, Judge Orders New Elections in Palmdale under CA
Voting Rights Act <http://electionlawblog.org/?p=57111>
Posted on December 3, 2013 10:11 am
<http://electionlawblog.org/?p=57111>by Rick Hasen
<http://electionlawblog.org/?author=3>
A Los Angeles County superior court judge has issued this tentative
remedialorder
<http://electionlawblog.org/wp-content/uploads/palmdale-order.pdf>(following
this ruling on the merits
<http://electionlawblog.org/wp-content/uploads/jauregui-final-statement-of-decision.pdf>)
that the City of Palmdale's at large elections violate the California
Voting Rights Act
<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=14001-15000&file=14025-14032>.
I am about to talk about this on KPCC. (Update: You should be able to
listen to the archived interview a bit later here
<http://www.scpr.org/programs/take-two/2013/12/03/34920/judge-rules-that-palmdale-must-change-city-electio/>.)
Here is the Daily News story
<http://www.dailynews.com/government-and-politics/20131202/judge-kicks-out-palmdale-city-council-orders-special-election>;
here is the one in theLA Times
<http://www.latimes.com/local/la-me-palmdale-elect-20131203,0,198764.story#axzz2mLXlh42k>.
There are many fascinating issues, assuming this tentative ruling
becomes final. Can the judge throw out the results of the recent
election as a CVRA remedy? (The judge tried to block the election, but a
divided appellate court reversed
<http://articles.latimes.com/2013/oct/16/local/la-me-pc-palmdale-election-20131016>.
*UPDATE:* Kevin Shenkman clarifies: The appellate court did not reverse
any ruling by Judge Mooney. 2 of 3 appellate judges interpreted Judge
Mooney's order as prohibiting only the certification of the election,
and on that basis denied Defendant's petition for writ of supersedeas.
The election has not been, and will not be, certified, absent further
action by a court.)
The judge said incumbency could not be a factor to be considered in
drawing the lines. For this reason, and others, the judge rejected the
City's proposed plan. Will that stand up on appeal? More broadly, the
CVRA gives broad remedial powers to the judges in these cases. How
should they be exercised? (Neither party in this case, for example,
preferred a cumulative voting remedy.)
Finally, and most significantly, the California Voting Rights Act
imposes standards which are much easier to meet than the federal voting
rights standards. If someone brought a federal constitutional equal
protection challenge against the Act, will it stand? The Supreme Court
a few years ago refused to take a CVRA case, but another case might fare
better, especially in a post-/Shelby County /world.
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Posted in voting <http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Business Groups Eye Expanded Role in Elections"
<http://electionlawblog.org/?p=57109>
Posted on December 3, 2013 10:04 am
<http://electionlawblog.org/?p=57109>by Rick Hasen
<http://electionlawblog.org/?author=3>
WSJ reports
<http://online.wsj.com/news/articles/SB10001424052702304579404579234033386430854>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
"Nagle on Withdrawal As Cure for Campaign Contributions"
<http://electionlawblog.org/?p=57107>
Posted on December 3, 2013 10:01 am
<http://electionlawblog.org/?p=57107>by Rick Hasen
<http://electionlawblog.org/?author=3>
This item
<http://www.cityethics.org/content/nagle-withdrawal-cure-campaign-contributions>
appears at City Ethics.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
conflict of interest laws <http://electionlawblog.org/?cat=20>
"Democrats: Investigate Joe Deters' voting history"
<http://electionlawblog.org/?p=57105>
Posted on December 3, 2013 9:57 am
<http://electionlawblog.org/?p=57105>by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Cincinnati Enquirer/ reports.
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201312022314/NEWS01/312020039>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
Better Link to Moreland Report on NY Corruption
<http://electionlawblog.org/?p=57103>
Posted on December 3, 2013 9:56 am
<http://electionlawblog.org/?p=57103>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://publiccorruption.moreland.ny.gov/sites/default/files/moreland_report_final.pdf>.
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Posted in bribery <http://electionlawblog.org/?cat=54>, campaign finance
<http://electionlawblog.org/?cat=10>, chicanery
<http://electionlawblog.org/?cat=12>
Top Recent Downloads in Election Law on SSRN
<http://electionlawblog.org/?p=57101>
Posted on December 3, 2013 9:55 am
<http://electionlawblog.org/?p=57101>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
*RECENT HITS (for all papers announced in the last 60 days) *
*TOP 10 Papers for Journal of LSN: Election Law & Voting Rights (Topic)*
<http://papers.ssrn.com/publicRss/rssManagerInc.cfm?journalId=991929>
/October 4, 2013 to December 3, 2013/
Rank Downloads Paper Title
1 179 *Race or Party? How Courts Should Think About Republican Efforts
to Make it Harder to Vote in North Carolina and Elsewhere*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068>
Richard L. Hasen
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>,
University of California, Irvine -- School of Law,
/Date posted to database: /November 13, 2013
/Last Revised: /November 14, 2013
2 115 *Voting Squared: Quadratic Voting in Democratic Politics*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343956>
Eric A. Posner
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=33688>, E. Glen
Weyl <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1186331>,
University of Chicago -- Law School, University of Chicago,
/Date posted to database: /October 24, 2013
/Last Revised: /October 30, 2013
3 97 *Disclosure and Corruption*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334454>
Michael D. Gilbert
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1304972>,
Benjamin Aiken
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2131329>,
University of Virginia School of Law, University of Virginia -- School
of Law, Degree Candidate Author,
/Date posted to database: /October 2, 2013
/Last Revised: /November 15, 2013
4 93 *Section Two Minus Section Five*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749>
Nicholas Stephanopoulos
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=636048>,
University of Chicago Law School,
/Date posted to database: /October 7, 2013
/Last Revised: /October 27, 2013
5 82 *'Super PACs' and the Role of 'Coordination' in Campaign Finance
Law* <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334499>
Bradley A. Smith
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=625464>,
Capital University Law School,
/Date posted to database: /October 2, 2013
/Last Revised: /October 2, 2013
6 72 *The Unbundled Union: Politics Without Collective Bargaining*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2337561>
Benjamin I. Sachs
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=767255>,
Harvard Law School,
/Date posted to database: /October 9, 2013
/Last Revised: /November 7, 2013
7 47 *Structuring Big Data to Facilitate Democratic Participation in
International Law*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346188>
Roslyn Fuller
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2016041>,
National University of Ireland, Maynooth (NUI Maynooth) -- Department of
Law,
/Date posted to database: /October 30, 2013
/Last Revised: /October 30, 2013
8 45 *Democracy and the Freedom of Speech: Rethinking the Conflict
between Liberty and Equality*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2330520>
Yasmin Dawood
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1166954>,
Faculty of Law, University of Toronto,
/Date posted to database: /September 27, 2013
/Last Revised: /September 27, 2013
9 35 *Shelby County and the End of History*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2337027>
Joel Heller
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1710731>,
Unaffiliated Authors -- Independent,
/Date posted to database: /October 8, 2013
/Last Revised: /October 8, 2013
10 31 *Keynote Address of Prof. Richard L. Hasen Given to the Voting
Wars Symposium, March 23, 2013*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2339193>
Richard L. Hasen
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>,
University of California, Irvine -- School of Law,
/Date posted to database: /October 12, 2013
/Last Revised: /October 12, 2013
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Posted in pedagogy <http://electionlawblog.org/?cat=23>
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UC Irvine School of Law
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