[EL] ELB News and Commentary 7/8/13
Rick Hasen
rhasen at law.uci.edu
Mon Jul 8 09:17:11 PDT 2013
A very good point, and I'm sorry I did not include that quote.
Rick
On 7/8/13 9:15 AM, Smith, Brad wrote:
> 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
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
>
> _______________________________________________
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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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