[EL] ELB News and Commentary 7/9/13
Rick Hasen
rhasen at law.uci.edu
Tue Jul 9 09:39:06 PDT 2013
"Shelby County and the Illusion of Minimalism"
<http://electionlawblog.org/?p=52730>
Posted on July 9, 2013 9:34 am <http://electionlawblog.org/?p=52730> by
Rick Hasen <http://electionlawblog.org/?author=3>
I have posted this draft on SSRN
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>, which I
will be presenting at APSA panel <http://electionlawblog.org/?p=52717>
on "The Future of Voting Rights After the Shelby County Case." Here is
the abstract:
Chief Justice Roberts' majority opinion in /Shelby County v Holder/,
holding unconstitutional a key part of the 1965 Voting Rights Act,
purports to be a modest decision written with reluctance and
humility. The Court struck the coverage formula in Section 4 of the
VRA used to determine which states and local governments must submit
any proposed voting changes for federal approval (or "preclearance")
under Section 5. According to the majority, by failing to amend the
VRA to update the coverage formula after the Court raised
constitutional doubts about preclearance in the 2009 /NAMUDNO /case,
Congress "leaves us today with no choice." "Striking an Act of
Congress 'is the gravest and most delicate duty that this Court is
called on to perform.'" The majority held that the coverage formula
renewed by Congress without change in 2006 failed to take into
account "current conditions" of discrimination in covered
jurisdictions and failed to treat states with the "equal
sovereignty" they deserved under the Tenth Amendment. Rather than
strike down section 5, as Justice Thomas would have done, the Court
"issue[d] no holding on § 5 itself, only on the coverage formula.
Congress may draft another formula based on current conditions." The
short opinion for the five most conservative Justices on the
Court---only two-thirds the size of Justice Ginsburg's dissent for
the four most liberal Justices---casts itself as adhering to
precedent, reaching a result compelled by /stare decisis/ and
inevitably flowing from /NAMUDNO/. The majority ostensibly stands
ready for Congress's next step.
Despite the projected judicial modesty, the /Shelby County/ Court
was doing much more than calling balls and strikes and applying
settled precedent to uncontested facts. /Shelby County/ is an
audacious opinion which ignores history, declines to engage the
dissent's powerful argument that the VRA's bailout provisions solve
any constitutional problem, and rejects the Roberts Court's stated
commitment to judicial minimalism in its treatment of facial
challenges and severability. It pretends it is not overturning
section 5 yet it sets a standard under which any new coverage
formula will likely fail a constitutional test. The opinion
disregards the pervasive polarization in the current Congress which
dooms agreement on a new coverage formula and it seems to reject any
replacement coverage formula.
But the opinion is minimalist in a difference important sense as
well: its brevity seeks to mask major doctrinal and jurisprudential
change. By writing a very short opinion and avoiding a discussion of
the Fifteenth Amendment's history and how the Court silently
resolved a dispute over the applicable standard of review, the Court
tried to hide the major jurisprudential hurdles it jumped to reach a
political decision. The opinion, relying on a new and unjustified
"equal sovereignty" principle, demeans the strength of Congress's
power to eradicate racial discrimination in voting, sidestepping a
key standard of review question raised but not resolved in /NAMUDNO
/regarding how much deference the Court owes Congress acting under
its Fifteenth Amendment enforcement powers. The opinion's brevity is
an insult, not an act of modesty. As Justice Ginsburg remarked in
dissent, "Hubris is a fit word for today's demolition of the VRA."
Yet the dissenters' offer their own incomplete history of the VRA's
renewal, failing to grapple with the more complex record of the
congressional reenactment. To hear the dissenters' story, Congress
in 2006 was nearly universally behind the 25-year renewal of section
5 using the old coverage formula, and Congress would have had no
idea that the continuing use of the same coverage formula could have
doomed its constitutionality. In fact, it was a less happy story.
Congress willfully ignored the problems with the coverage formula
which legal scholars brought to Congress's attention, and which were
amply covered by a Senate report written by Republican committee
staffers who were deeply skeptical of the Act's continuing
constitutionality. While the /Shelby County/ majority minimized the
audaciousness of its own holding, the dissenters minimized the
difficult constitutional questions before Congress and before the Court.
Part I briefly describe the background of the /Shelby County/ case,
and in particular the questions left open in /NAMUDNO./ Part II
analyzes the majority opinion, and explains the opinion as an act of
false minimalism. Part III analyzes the dissenting opinion, and
explains the dissent as one willfully silent about difficult
constitutional questions. In the end, the dissenters had the better
argument about the Act's constitutionality, but the dissent would
have been stronger had it described and grappled more forthrightly
with the struggles over the VRA's renewal and the dangers of
political avoidance. /Shelby County /is important not just for the
loss of preclearance, but the diminution of congressional power over
voting rights in the future.
This is very much a work in progress. Comments welcome!
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Nikki Haley Takes Heat After Report Blows Up 'Bogus' Voter Fraud
Claims In South Carolina" <http://electionlawblog.org/?p=52734>
Posted on July 9, 2013 9:31 am <http://electionlawblog.org/?p=52734> by
Rick Hasen <http://electionlawblog.org/?author=3>
HuffPo reports
<http://www.huffingtonpost.com/2013/07/09/nikki-haley-voter-fraud_n_3566194.html>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"The Koch Brothers' Advertising Campaign"
<http://electionlawblog.org/?p=52732>
Posted on July 9, 2013 9:25 am <http://electionlawblog.org/?p=52732> by
Rick Hasen <http://electionlawblog.org/?author=3>
David Firestone blogs
<http://takingnote.blogs.nytimes.com/2013/07/09/the-koch-brothers-advertising-campaign/?smid=tw-share>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Supreme Court rulings reflect changes in race but stop short of
saying racial discord solved" <http://electionlawblog.org/?p=52726>
Posted on July 9, 2013 9:07 am <http://electionlawblog.org/?p=52726> by
Rick Hasen <http://electionlawblog.org/?author=3>
Dallas Morning News
<http://www.dallasnews.com/news/politics/headlines/20130704-supreme-court-rulings-reflect-changes-in-race-but-stop-short-of-saying-racial-discord-solved.ece>:
The Supreme Court's twin rulings on affirmative action and voting
rights show a distinct if incomplete shift on matters of race.
The justices weren't ready to fully cast aside time-worn tools used
to redress simmering racial wounds. And they stopped well short of
declaring America a bias-free zone or turning government colorblind.
But the court clearly has grown impatient with policies born in an
era of overt discrimination and stymied opportunity. While the
latest rulings ensure ongoing battles in state legislatures,
Congress and the courts, they also aim to wean the nation from
race-conscious policies.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Here's How Horribly Unpopular Pennsylvania Gov. Tom Corbett Can Get
Re-Elected" <http://electionlawblog.org/?p=52723>
Posted on July 9, 2013 9:04 am <http://electionlawblog.org/?p=52723> by
Rick Hasen <http://electionlawblog.org/?author=3>
Weigel.
<http://www.slate.com/blogs/weigel/2013/07/08/here_s_how_horribly_unpopular_pennsylvania_gov_tom_corbett_can_get_re_elected.html>
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Posted in electoral college <http://electionlawblog.org/?cat=44> |
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"Democrats Plan Challenge to G.O.P.'s Filibuster Use"
<http://electionlawblog.org/?p=52720>
Posted on July 9, 2013 8:29 am <http://electionlawblog.org/?p=52720> by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2013/07/09/us/politics/democrats-plan-challenge-to-gops-filibuster-use.html?ref=politics>
In a move that could bring to a head six months of smoldering
tensions over a Republican blockade of certain presidential
nominees, Senate Democrats are preparing to force confirmation votes
on a series of President Obama
<http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per>'s
most contentious appointments as early as this week.
If Republicans object, Democrats plan to threaten to use the impasse
to change the Senate rules that allow the minority party wide
latitude to stymie action.
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
"The Future of the Voting Rights Act After the Shelby County Case"
<http://electionlawblog.org/?p=52717>
Posted on July 9, 2013 8:26 am <http://electionlawblog.org/?p=52717> by
Rick Hasen <http://electionlawblog.org/?author=3>
At the APSA meeting in Chicago on Aug. 29 at 2 pm, the Law and Political
Process study group will have the following panel:
<https://www.apsanet.org/mtgs/program_2013/program.cfm?event=1603418>
Law and Political Process Study Group
*Panel 1 The Future of the Voting Rights Act After the Shelby County
Case*
Date: Thursday, Aug 29, 2013, 2:00 PM-3:45 PM
Location: *Room assignments are pending. Check back soon for room
assignments.* Only those registered for the meeting can view room
assignments. *Subject to change.* Check the /Final Program/ at the
conference.
Chair(s): Bruce E. Cain
Stanford University, be.cain48 at gmail.com <mailto:be.cain48 at gmail.com>
Author(s):
Regional Differences in Racial Polarization in the 2012 Presidential
Election: Implications for the Constitutionality of Section 5 of the
Voting Rights Act
Charles Stewart
Massachusetts Institute of Technology, cstewart at mit.edu
<mailto:cstewart at mit.edu>
Stephen D. Ansolabehere
Harvard University, sda at gov.harvard.edu <mailto:sda at gov.harvard.edu>
Racially Polarized Voting, Dilution, and Preclearance: Post-Shelby County
Richard L. Engstrom
Duke University, richard.engstrom at duke.edu
<mailto:richard.engstrom at duke.edu>
Shelby County and the Illusion of Minimalism
Richard L. Hasen
University of California-Irvine, rhasen at law.uci.edu
<mailto:rhasen at law.uci.edu>
The Constitutional Structure of Voting Rights Enforcement
Franita Tolson
Florida State University, ftolson at law.fsu.edu <mailto:ftolson at law.fsu.edu>
Discussant(s): Luis Ricardo Fraga
University of Washington, lrfraga at uw.edu <mailto:lrfraga at uw.edu>
Guy-Uriel Charles
Duke University School of Law, charles at law.duke.edu
<mailto:charles at law.duke.edu>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"CREW Executive Director Files IRS Whistleblower Complaint Against
Campaign Finance Lawyer James Bopp"
<http://electionlawblog.org/?p=52714>
Posted on July 9, 2013 8:23 am <http://electionlawblog.org/?p=52714> by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release
<http://www.citizensforethics.org/legal-filings/entry/melanie-sloan-irs-whistleblower-complaint-james-bopp>:
Today, Melanie Sloan, Executive Director of Citizens for
Responsibility and Ethics in Washington (CREW), filed a
whistleblower complaint with the Internal Revenue Service (IRS)
against James Bopp, Jr., the Bopp Law Firm, and the James Madison
Center for Free Speech (JMCFS).
The complaint alleges Mr. Bopp and JMCFS, a tax-exempt 501(c)(3)
organization, misrepresented their activities to divert virtually
all of JMCFS's money into the Bopp Law Firm for Mr. Bopp's personal
enrichment. Additionally, CREW asked the Indiana Attorney General,
the U.S. Attorney for the Southern District of Indiana, the Indiana
Secretary of State, and the D.C. Department of Consumer and
Regulatory Affairs to investigate.
I have been quite critica <http://electionlawblog.org/?p=16497>l of
earlier attempts to go after Jim Bopp personally for activity which
campaign reform groups don't like. We'll see if there's anything more
substantial to these new allegations. (For background on the
controversy, see this Slate piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/10/james_bopp_jr_s_unusual_relationship_with_the_james_madison_center_.single.html>--not
by me.)
UPDATE: Peter Overby tweets
<https://twitter.com/peteroverby/status/354634146255089665>: "Cmpn fin
rumble! @*CREWcrew* <https://twitter.com/CREWcrew> holds tele-conf to
accuse Jim Bopp (Cits United) of violating 501c law. Bopp crashes call &
attacks CREW."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
election law biz <http://electionlawblog.org/?cat=51>, tax law and
election law <http://electionlawblog.org/?cat=22> | Comments Off
"IRS Accidentally Exposed Tens of Thousands of Social Security
Numbers" <http://electionlawblog.org/?p=52711>
Posted on July 9, 2013 7:51 am <http://electionlawblog.org/?p=52711> by
Rick Hasen <http://electionlawblog.org/?author=3>
Accounting Today
<http://www.accountingtoday.com/news/IRS-Accidentally-Exposed-Tens-Thousands-Social-Security-Numbers-67360-1.html>:
"Public.Resource.Org founder Carl Malamud said in a statement
<https://bulk.resource.org/irs.gov/eo/doc/irs.gov.20130707.html> that
his organization found the IRS had posted a database containing the
filings of Section 527 political organizations
<http://www.irs.gov/Charities-&-Non-Profits/Political-Organizations/Political-Organization-Filing-and-Disclosure>
such as campaign committees. "This Section 527 database is an essential
tool used by journalists, watchdog groups, congressional staffers and
citizens," he wrote. 'While the public posting of this database serves a
vital public purpose (and this database must be restored as quickly as
possible), the failure to remove individual Social Security Numbers is
an extraordinarily reckless act.'"
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22> | Comments Off
"The Corsi Case: How Large is the Role of "Small" in Campaign
Finance Jurisprudence?" <http://electionlawblog.org/?p=52709>
Posted on July 9, 2013 7:48 am <http://electionlawblog.org/?p=52709> by
Rick Hasen <http://electionlawblog.org/?author=3>
Bob Bauer <http://www.moresoftmoneyhardlaw.com/2013/07/corsi/>:
Edmund Corsi from Ohio has strong views about politics and political
candidates, and he makes them known through a website, and in other
ways, in the name of the Geauga Constitutional Council. Corsi was
called on to answer to the Ohio Elections Commission for failing to
register a "political committee" under Ohio state law. Corsi lost
there, and then in two appeals, and the Center for Competitive
Politics has petitioned for writ of certiorari
<http://www.campaignfreedom.org/wp-content/uploads/2013/06/Corsi-v.-OEC.pdf>, challenging
the basis upon which Ohio has applied its definition of a "political
committee." Ohio Rev. Code. Ann. § 3517.01(B)(8).
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Will Texas' History Of Intentional Race Discrimination Come Back To
Haunt It?" <http://electionlawblog.org/?p=52706>
Posted on July 9, 2013 7:46 am <http://electionlawblog.org/?p=52706> by
Rick Hasen <http://electionlawblog.org/?author=3>
TPM reports
<http://tpmdc.talkingpointsmemo.com/2013/07/how-texas-could-once-again-be-subject-to-preclearance-under-the-voting-rights-act.php?ref=fpa>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Quote of the Day <http://electionlawblog.org/?p=52703>
Posted on July 9, 2013 7:40 am <http://electionlawblog.org/?p=52703> by
Rick Hasen <http://electionlawblog.org/?author=3>
"If errors remain, I would prefer not to hear about them."
--Adam Liptak
<http://www.amazon.com/To-Have-Uphold-Same-Sex-ebook/dp/B00DNIUK9C/ref=sr_1_1?ie=UTF8&qid=1373380727&sr=8-1&keywords=liptak>,
in the Acknowledgements to his new eBook on same sex marriage at the
Supreme Court.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Brown's ethics aide Erin Peth to become executive director of FPPC"
<http://electionlawblog.org/?p=52700>
Posted on July 9, 2013 7:36 am <http://electionlawblog.org/?p=52700> by
Rick Hasen <http://electionlawblog.org/?author=3>
LAT reports
<http://www.latimes.com/news/local/political/la-me-pc-fppc-20130705,0,3987391.story>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
election law biz <http://electionlawblog.org/?cat=51> | Comments Off
"All the News That's Fit to (Re)Blog: Following Up on Old Posts"
<http://electionlawblog.org/?p=52698>
Posted on July 9, 2013 7:35 am <http://electionlawblog.org/?p=52698> by
Rick Hasen <http://electionlawblog.org/?author=3>
A Chapin(re)Blog
<http://blog.lib.umn.edu/cspg/electionacademy/2013/07/all_the_news_thats_fit_to_rebl.php>.
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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FEC is Not Discussing Enforcement Manual This Week
<http://electionlawblog.org/?p=52695>
Posted on July 8, 2013 4:19 pm <http://electionlawblog.org/?p=52695> by
Rick Hasen <http://electionlawblog.org/?author=3>
So tweets
<https://twitter.com/EllenLWeintraub/status/354349039002726400>(!) FEC
Chair @EllenLWeintraub.
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Posted in federal election commission
<http://electionlawblog.org/?cat=24> | Comments Off
If You Like What You See at the Election Law Blog....
<http://electionlawblog.org/?p=52692>
Posted on July 8, 2013 3:44 pm <http://electionlawblog.org/?p=52692> by
Rick Hasen <http://electionlawblog.org/?author=3>
please consider letting the ABA Journal know
<http://www.abajournal.com/blawgs/blawg100_submit/> (before August 9).
Thanks for your support!
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Press round up: Maneuvering on Texas redistricting & voter ID"
<http://electionlawblog.org/?p=52689>
Posted on July 8, 2013 3:36 pm <http://electionlawblog.org/?p=52689> by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://txredistricting.org/post/54947870009/press-round-up-maneuvering-on-texas-redistricting>,
at Texas Redistricting.
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Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme
Court <http://electionlawblog.org/?cat=29>, 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
"New Voting Laws: Forward-looking Or A Step Back?"
<http://electionlawblog.org/?p=52685>
Posted on July 8, 2013 1:53 pm <http://electionlawblog.org/?p=52685> by
Rick Hasen <http://electionlawblog.org/?author=3>
NPR's "Tell Me More."
<http://www.npr.org/templates/story/story.php?storyId=200031402>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, The Voting
Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Court upholds redrawn NC voting maps"
<http://electionlawblog.org/?p=52682>
Posted on July 8, 2013 1:13 pm <http://electionlawblog.org/?p=52682> by
Rick Hasen <http://electionlawblog.org/?author=3>
WRAL reports
<http://www.wral.com/court-upholds-redrawn-nc-voting-maps/12636243/>.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
"The secret weapon that could save the Voting Rights Act"
<http://electionlawblog.org/?p=52679>
Posted on July 8, 2013 12:49 pm <http://electionlawblog.org/?p=52679> by
Rick Hasen <http://electionlawblog.org/?author=3>
Adam Serwer
<http://tv.msnbc.com/2013/07/08/sec-3-the-secret-weapon-for-protecting-minority-voters/>on
bail-in.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Decoding the Dispute Between the FEC and Its Lawyers Over Sharing
Information with DOJ" <http://electionlawblog.org/?p=52676>
Posted on July 8, 2013 10:47 am <http://electionlawblog.org/?p=52676> by
Rick Hasen <http://electionlawblog.org/?author=3>
Fascinating post
<http://www.lawandpoliticsupdate.com/2013/07/decoding-the-dispute-between-the-fec-and-its-lawyers-over-sharing-information-with-doj-2/>
at In the Arena.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
Department of Justice <http://electionlawblog.org/?cat=26>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"A Mea Culpa" <http://electionlawblog.org/?p=52673>
Posted on July 8, 2013 10:33 am <http://electionlawblog.org/?p=52673> by
Rick Hasen <http://electionlawblog.org/?author=3>
Following up onthis post <http://electionlawblog.org/?p=52648>, Nina
Totenberg corrects the record
<http://www.npr.org/templates/story/story.php?storyId=200050106&live=1>
on Professor McGinnis's quotes about the ending Supreme Court term.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29> | Comments Off
"Another Fox Voter Fraud Story Dies"
<http://electionlawblog.org/?p=52668>
Posted on July 8, 2013 9:25 am <http://electionlawblog.org/?p=52668> by
Rick Hasen <http://electionlawblog.org/?author=3>
Media Matters
<http://mediamatters.org/blog/2013/07/08/another-fox-voter-fraud-story-dies/194757>:
Seventeen months after Fox News became briefly fixated on Republican
claims that hundreds of dead voters had cast ballots in South
Carolina, those allegations have been completely debunked by an
investigation by law enforcement that found no evidence of voter fraud.
Fox frequently
<http://mediamatters.org/blog/2012/04/22/foxs-voter-fraud-special-light-on-voter-fraud/186051>
pushes dubious
<http://mediamatters.org/blog/2010/10/25/fox-news-pushes-baseless-fears-of-voter-fraud-o/172422>
allegations of widespread
<http://mediamatters.org/blog/2012/08/16/fox-thinks-misaddressed-registration-forms-are/189401>
voter fraud
<http://mediamatters.org/blog/2012/08/13/another-fraudulent-voter-id-claim-on-fox/189302>
that fall
<http://mediamatters.org/blog/2012/07/27/foxs-misleading-voter-fraud-segment-deflects-fr/187370>
apart under
<http://mediamatters.org/blog/2010/11/03/fox-news-cancels-thursday-segment-on-nv-voter-f/172850>
scrutiny.
My earlier coverage is here <http://electionlawblog.org/?p=52632>.
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Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"A New Strategy for Voting Rights"
<http://electionlawblog.org/?p=52665>
Posted on July 8, 2013 9:08 am <http://electionlawblog.org/?p=52665> by
Rick Hasen <http://electionlawblog.org/?author=3>
Ari Berman's latest.
<http://www.thenation.com/article/175090/new-strategy-voting-rights#>
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> |
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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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