[EL] ELB News and Commentary 7/8/13
Rick Hasen
rhasen at law.uci.edu
Mon Jul 8 08:47:10 PDT 2013
Quote of the Day <http://electionlawblog.org/?p=52662>
Posted on July 8, 2013 8:39 am <http://electionlawblog.org/?p=52662> by
Rick Hasen <http://electionlawblog.org/?author=3>
"Super PACs may be bad for America, but they're very good for CBS."
Les Moonves, head of CBS, quoted in NY Times, Campaign Ad Cash Lures
Buyers to Swing-State TV Stations
<http://www.nytimes.com/2013/07/08/business/media/with-political-ad-profits-swing-state-tv-stations-are-hot-properties.html?hp&_r=0>(via
Political Wire
<http://politicalwire.com/archives/2013/07/07/quote_of_the_day.html>).
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"An Effects-Test Pocket Trigger?" <http://electionlawblog.org/?p=52659>
Posted on July 8, 2013 8:36 am <http://electionlawblog.org/?p=52659> by
Rick Hasen <http://electionlawblog.org/?author=3>
Travis Crum, who wrote an excellent student note
<http://www.yalelawjournal.org/images/pdfs/895.pdf> on Section 3 bail in
under the Voting Rights Act, has written this guest post:
An Effects-Test Pocket Trigger
Travis Crum
Following /Shelby County v. Holder/, civil rights advocates are
searching for new strategies to protect voting rights. As I argued
in my 2010 /Yale Law Journal/ Note
<http://www.yalelawjournal.org/images/pdfs/895.pdf>, section 3 of
the Voting Rights Act provides a roadmap for the future. Commonly
called the bail-in mechanism or the pocket trigger, section 3
authorizes federal courts to place States and political subdivisions
that have violated the Fourteenth or Fifteenth Amendments under
preclearance. Designed to trigger coverage in "pockets of
discrimination" missed by the coverage formula, section 3 has been
used to bail-in over a dozen jurisdictions, including Arkansas, New
Mexico, and Los Angeles County. Although the pocket trigger has been
historically overshadowed by section 5, it has garnered recent
attention as a potential replacement for the coverage formula (see
here
<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/25/heres-how-congress-could-fix-the-voting-rights-act/>,
here
<http://online.wsj.com/article/SB10001424127887323419604578569663974008072.html?mod=WSJ_Opinion_MIDDLETopOpinion>,
here
<http://txredistricting.org/post/54556057254/q-a-on-the-new-section-3-claim-about-texas>,
and here <http://electionlawblog.org/?p=52349>).
So what does section 3 have to offer? First and foremost, it's
already the law of the land. With no need for lengthy hearings and
legislative maneuvering, civil rights groups and the Justice
Department can move expeditiously to reconstruct the preclearance
regime. Indeed, civil rights groups moved last week to bail-in Texas
<http://txredistricting.org/post/54362393829/san-antonio-court-starts-process-for-deciding-if-texas>
based on findings of intentional discrimination in its 2011
redistricting plans. Second, because section 3 utilizes a coverage
/mechanism/, it sidesteps the "equal sovereignty of the States"
problem inherent in any coverage /formula/. Third, the pocket
trigger doesn't single out jurisdictions using decades-old proxies.
Rather, section 3 perfectly tailors preclearance to "current
conditions," namely contemporary constitutional violations. And
finally, the pocket trigger relies on judges---not Congress---to
select jurisdictions for coverage.
The pocket trigger also reduces preclearance's federalism costs.
Courts have often required jurisdictions to preclear only certain
problematic changes. Arkansas, for example, was required to preclear
majority-vote requirements. Courts have further tailored section 3
preclearance by setting temporal limitations. Instead of mandating
preclearance for a twenty-five year period, courts have fashioned
more limited sunset dates---often imposing preclearance for a decade.
To be sure, the current bail-in mechanism has its limitations.
Establishing a constitutional violation is no easy task, and bail-in
litigation will stretch the resources of civil rights groups. The
pocket trigger, moreover, forces civil rights groups and the Justice
Department to go on the offensive; though once a jurisdiction is
bailed-in, the balance of time and inertia would flip back in favor
of minority voters.
In light of these concerns, the pocket trigger should be amended to
authorize bail-in for violations of section 2 of the Voting Rights
Act. As I stated in my 2010 piece, Congress should "decouple section
3 from its constitutional trigger, predicating bail-in on a finding
of discriminatory effect." In a post-/Shelby County/ world, an
effects-test pocket trigger has several advantages.
At the outset, it's difficult to imagine a revamped coverage formula
that could survive Congress /and/ the Court. Many members of
Congress would be loath to implicitly label their State as racist.
Even agreeing on a coverage formula may be a political and
theoretical fool's errand. Although problems with the coverage
formula were flagged during the 2006 reauthorization, there is still
no agreed-upon replacement formula. And any revised coverage formula
would have to satisfy /Shelby County/'s requirement that Congress
"identify those jurisdictions to be singled out [for coverage] on a
basis that makes sense in light of current conditions."
So how would an effects-test pocket trigger work in practice? It
would make bailing-in jurisdictions far easier and quicker.
Litigation is a costly and lengthy endeavor, and evidence to support
intentional discrimination claims can be difficult to acquire. An
effects-test pocket trigger would ease these burdens and
fundamentally alter the cost/benefit analysis for bringing section 2
suits. Most significantly, jurisdictions may find it in their
self-interest to settle. In this age of austerity, governments,
particularly local ones, are financially strapped and may view a
preclearance settlement to be in their best interest. Indeed, the
majority of section 3 cases have ended with consent decrees. For
their part, civil rights groups and the Justice Department may be
more willing to bring suit if they know that a preclearance remedy
can be imposed at the end of litigation. This additional incentive
might encourage more litigation against local jurisdictions, which
are rarely the targets of section 2 litigation because the costs are
too high.
Amending section 3 to authorize bail-in for violations of section 2
is a relatively straightforward response to /Shelby County/. But
Congress need not stop there. Congress, for instance, could
/require/ bail-in for certain section 2 violations, such as a
finding that a redistricting plan has a discriminatory effect.
Congress could also set guidelines for how long jurisdictions should
be bailed-in: a discriminatory polling place change could require
preclearance for four years whereas a discriminatory redistricting
plan could trigger coverage for ten years. And as Rick Pildes
recently noted on this blog, Congress could fuse the civil-rights
and universalist models by requiring preclearance for violations of
HAVA and the Motor Voter Act---though this approach would
necessitate a dramatic rethinking of preclearance's doctrinal
underpinnings, which target racial discrimination in voting.
Only time will tell if Congress responds to /Shelby County/. But by
combining an enforcement action with a prophylactic remedy, the
pocket trigger provides civil rights groups and the Justice
Department with an immediate response to /Shelby County/ and gives
Congress a template for how to design a preclearance regime without
a coverage formula.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Oregon Senate rejects universal voter registration proposal"
<http://electionlawblog.org/?p=52656>
Posted on July 8, 2013 8:32 am <http://electionlawblog.org/?p=52656> by
Rick Hasen <http://electionlawblog.org/?author=3>
The /Oregonian/ reports.
<http://www.oregonlive.com/mapes/index.ssf/2013/07/oregon_senate_rejects_universa.html>
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Posted in voting <http://electionlawblog.org/?cat=31> | Comments Off
"'As singular a failure as I've seen in the history of the Supreme
Court'? McGinnis on Windsor, not Shelby County"
<http://electionlawblog.org/?p=52648>
Posted on July 8, 2013 8:29 am <http://electionlawblog.org/?p=52648> by
Rick Hasen <http://electionlawblog.org/?author=3>
Kevin Walsh
<http://walshslaw.wordpress.com/2013/07/08/as-singular-a-failure-as-ive-seen-in-the-history-of-the-supreme-court-mcginnis-on-windsor-not-shelby-county/>:
Even Totenberg nods.
Nina Totenberg's end-of-the-term review
<http://www.npr.org/2013/07/05/198708325/whose-term-was-it-a-look-back-at-the-supreme-court>
(HT: How Appealing <http://howappealing.law.com/070513.html#051868>)
includes an extended rip on the Supreme Court's 5-4 Voting Rights
Act decision in /Shelby County v. Holder/
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>, highlighting
criticism by "academic and judicial conservatives." The quoted
critics are Charles Fried, Michael McConnell, and John McGinnis.
One of the most stinging quotations is attributed to McGinnis.
Totenberg's story characterizes McGinnis as arguing that "the
court's conservatives let their own policy disagreements with
Congress trump the clear meaning of the Constitution and the post
Civil War amendments." She then quotes McGinnis's comments at a
recent judicial conference: "I'm sorry to say I think this opinion
was as singular a failure as I've seen in the history of the Supreme
Court."
The quotation comes from McGinnis's comments on the Supreme Court
review panel at the Fourth Circuit Judicial Conference. McGinnis did
utter those words, but he was /not/ talking about /Shelby County/
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.
Instead, he was talking about Justice Kennedy's opinion for the
Court in /United States v. Windsor
<http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf>./ That's a
big difference....
Totenberg's other critical quotations about /Shelby County /
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>seem correct
given their content and context. But while it may be true that "two
out of three ain't bad" in some circumstances, this is not one of them.
The idea that "academic and judicial conservatives" think /Shelby
County <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
/is wrong has already begun to spread. Rick Hasen's influential
/Election Law Blog <http://electionlawblog.org/>/, for example,
posts an extended excerpt from the Totenberg story under the post
title, "Conservatives Criticize Shelby County Reasoning."
<http://electionlawblog.org/?p=52599>
I've reviewed the video and Walsh seems correct. I've updated my
original post to link to this one.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Deadlock by design hobbles election agency; The FEC was born of
idealism after Nixon era excesses, but its GOP members have all but
shut it down" <http://electionlawblog.org/?p=52646>
Posted on July 8, 2013 8:22 am <http://electionlawblog.org/?p=52646> by
Rick Hasen <http://electionlawblog.org/?author=3>
Important Boston Globe report
<http://www.bostonglobe.com/news/nation/2013/07/06/america-campaign-finance-watchdog-rendered-nearly-toothless-its-own-appointed-commissioners/44zZoJwnzEHyzxTByNL2QP/story.html?event=event12>:
The FEC has often been the subject of criticism since its founding
four decades ago. But the impression of weakness has escalated
dramatically, as Republicans named to the panel in 2008, united in
the belief that the commission had been guilty of regulatory
overreach, have moved to soften enforcement, block new rules, and
limit oversight.
In essence, according to critics, the FEC has been rendered
toothless, and at the worst possible time, when powerful special
interests are freer than they have been in decades to exert
financial influence on Washington politicians.
The commission is taking up far fewer enforcement cases --- down to
135 in 2012, from 612 in 2007. And those cases it does consider
often go nowhere. The frequency of deadlocked votes resulting in
dismissed cases --- like the case of the Romney friend's chartered
jet --- has shot up, to 19 percent, from less than 1 percent,
according to figures compiled by critics of its performance.
And there's this:
The commission --- which has 375 employees and a budget of $66
million --- had been unable to make formal decisions for the
previous six months: With four vacancies, it was down to just two
members. Weintraub, a Harvard-educated lawyer who earned her
Washington stripes as counsel for the House Ethics Committee, was
ready to get to work.
"I was all excited when everyone showed up,'' she said. "I sent them
an e-mail saying, 'Welcome. What can I do to help your transition?
I'm happy to provide any information about how we do things. My door
is always open.' "
Weintraub received no response, establishing what she described as a
pattern of the Republicans keeping to themselves. Any substantive
discussion takes place in formal meetings. She noticed that the GOP
members and their staffers even went to lunch as a group, huddling
in a knot in the elevator lobby.
Weintraub said she rarely has private conversations with McGahn,
whose office is next door to hers.
"He in fact does not return my phone calls,'' she said. "He never has.''
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Obstruction Based on Rank Partisanship at FEC?"
<http://electionlawblog.org/?p=52644>
Posted on July 8, 2013 8:19 am <http://electionlawblog.org/?p=52644> by
Rick Hasen <http://electionlawblog.org/?author=3>
FEC General Counsel Anthony Herman's parting words:
<http://blogs.rollcall.com/moneyline/obstruction-based-on-rank-partisanship-at-fec/>
The General Counsel's conclusion stated: "The Commission and OGC
[Office of the General Counsel] have worked for years to achieve the
mutually beneficial relationship the Commission enjoys with DOJ
today. Those efforts -- and the multiple benefits that have accrued
to the Commission and the regulated community as a result -- should
not be wasted on unnecessary impediments to information sharing
between the Commission and DOJ. Any steps that would make it more
difficult for the Commission to share with DOJ would put the
Commission out of step with other independent federal agencies,
while resulting in no offsetting benefits to the Commission or the
political community. *It would open up the Commission to charges of
obstruction based on rank partisanship.* The Commission should
therefor continue its long-established practice of freely
cooperating with DOJ -- as it has for more than 20 years." [emphasis
added in bold]
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Sabotage at the Election Commission"
<http://electionlawblog.org/?p=52641>
Posted on July 8, 2013 7:46 am <http://electionlawblog.org/?p=52641> by
Rick Hasen <http://electionlawblog.org/?author=3>
Important NYT editorial
<http://www.nytimes.com/2013/07/06/opinion/sabotage-at-the-election-commission.html?_r=1&>,
which begins:
The Federal Election Commission is already in a state of wretched
dysfunction, but it will only get worse if Republican members
succeed in crippling the agency further when the commission meets on
Thursday <http://www.fec.gov/agenda/2013/agenda20130711.shtml>. The
three Republicans on the commission appear ready to take advantage
of a temporary vacancy on the three-member Democratic side to push
through 3-to-2 votes for a wholesale retreat from existing regulations.
The FEC as good as dead
<http://www.slate.com/articles/news_and_politics/jurisprudence/2011/01/the_fec_is_as_good_as_dead.html>?
Worse than dead.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Where's the Beef?": Newby on the Bauer-Ginsberg Commission
<http://electionlawblog.org/?p=52639>
Posted on July 8, 2013 7:43 am <http://electionlawblog.org/?p=52639> by
Rick Hasen <http://electionlawblog.org/?author=3>
See here
<http://electiondiary-briandnewby.blogspot.com/2013/07/wheres-beef.html>
(h/t Doug Chapin
<http://blog.lib.umn.edu/cspg/electionacademy/2013/07/newbys_commission_question_whe.php>).
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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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://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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