[EL] ELB News and Commentary 7/8/13

[Smith, Brad]

On phone calls and the FEC, we are offered this excerpt:

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.’’


Those who read the entire article will also find this:

McGahn bristles at Weintraub’s depiction, including about his phone manners. “She doesn’t call me,’’ he said. “She has my number. She never uses it.
“If she spent half as much time running the agency as she does attacking me, we might actually get something done.’’

A reminder that there are 2 sides to every disagreement.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, July 08, 2013 11:47 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 7/8/13

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>).

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52662&title=Quote%20of%20the%20Day&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“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.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52659&title=%E2%80%9CAn%20Effects-Test%20Pocket%20Trigger%3F%E2%80%9D&description=>
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>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52656&title=%E2%80%9COregon%20Senate%20rejects%20universal%20voter%20registration%20proposal%E2%80%9D&description=>
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.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52648&title=%E2%80%9C%E2%80%98As%20singular%20a%20failure%20as%20I%E2%80%99ve%20seen%20in%20the%20history%20of%20the%20Supreme%20Court%E2%80%99%3F%20McGinnis%20on%20Windsor%2C%20not%20Shelby%20County%E2%80%9D&description=>
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.’’

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52646&title=%E2%80%9CDeadlock%20by%20design%20hobbles%20election%20agency%3B%20The%20FEC%20was%20born%20of%20idealism%20after%20Nixon%20era%20excesses%2C%20but%20its%20GOP%20members%20have%20all%20but%20shut%20it%20down%E2%80%9D&description=>
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]

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52644&title=%E2%80%9CObstruction%20Based%20on%20Rank%20Partisanship%20at%20FEC%3F%E2%80%9D&description=>
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.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52641&title=%E2%80%9CSabotage%20at%20the%20Election%20Commission%E2%80%9D&description=>
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>).

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D52639&title=%E2%80%9CWhere%E2%80%99s%20the%20Beef%3F%E2%80%9D%3A%20Newby%20on%20the%20Bauer-Ginsberg%20Commission&description=>
Posted in election administration<http://electionlawblog.org/?cat=18> | 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<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130708/12ffbbb8/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: share_save_171_16.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130708/12ffbbb8/attachment.png>