[EL] ELB News and Commentary 7/15/13
Rick Hasen
rhasen at law.uci.edu
Mon Jul 15 09:01:37 PDT 2013
"Three Wrong Progressive Approaches (and One Right One) to Campaign
Finance Reform" <http://electionlawblog.org/?p=52955>
Posted on July 15, 2013 8:59 am <http://electionlawblog.org/?p=52955> by
Rick Hasen <http://electionlawblog.org/?author=3>
I have posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979> on SSRN
(forthcoming in the Winter 2013 "Elections in America" symposium issue
of the /Harvard Law and Policy Review/ <http://harvardlpr.com/>). Here
is the abstract:
These are tough times to be a progressive in support of campaign
finance reform. Through a series of cases, most importantly Citizens
United v. Federal Election Commission, the Supreme Court has taken
key steps toward deregulating campaign finance law. Since Citizens
United, outside spending in federal elections has increased
markedly, such as a 245 percent increase in outside spending on
presidential elections, a 512 percent increase in outside spending
on House elections and a 1,438 percent increase in outside spending
on Senate elections, raising dangers of corruption and increasing
political inequality. The Court could well take further steps toward
deregulation in its new term, when it considers the
constitutionality of aggregate limits on campaign contributions.
While Citizens United leaves ample constitutional space for the
enactment of effective disclosure laws, disclosure is a poor
substitute for more serious and effective campaign regulation
including limits on outside spending and ample public funding. Even
worse, Congress has not fixed holes in our disclosure laws exploited
by clever campaign finance lawyers which not only increase the
danger of corruption but also deprive the public of important
information to make intelligent voting decisions. The prospect for
legislative responses in the near term are bleak, when Democrats
cannot get Republicans to sign on even to disclosure fixes. The
Federal Election Commission has become mired in ideological
struggle, with three Republican Commissioners marching lockstep to
disable what remains of campaign finance enforcement. President
Obama, who campaigned as a reformer, has done nothing significant to
help the cause of reasonable campaign regulation, and in fact his
own new 501(c)(4), Organizing for America, will push politics
further toward deregulation.
The current reality is far from progressive ideal campaign finance
regulation for the 21st century: strong protections for robust
political debate, a free press, and multi-dimensional partisan
competition; programs such as voucher-based public financing
fostering the voice and power of all voters; a strong disclosure
regime, deterring corruption and providing valuable information to
voters; and sensible limits on contributions and spending to inhibit
political corruption and promote political equality.
What are progressives to do to move from bleak reality closer to
this ideal? In this short essay, I argue against three misguided
approaches to reform: seek to amend the Constitution to overrule
Citizens United; pay lip service to the cause of reform but take no
concrete steps against the worst problems with the system; and throw
in the towel, giving up the fight to limit money in politics. Each
of these approaches likely will make things worse rather than
promote the progressive ideal. Instead, I argue that progressives
should seek to preserve and protect what remains of campaign finance
law today, especially contribution limitations, public financing,
and disclosure laws, and progressive thinkers and lawyers should lay
the intellectual groundwork for effective campaign reform proposals
and constitutional arguments to be presented to a future, more
progressive Supreme Court majority.
Comments welcome!
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Speak Softly....and Carry a Nuclear Stick"
<http://electionlawblog.org/?p=52953>
Posted on July 15, 2013 8:54 am <http://electionlawblog.org/?p=52953> by
Rick Hasen <http://electionlawblog.org/?author=3>
Sarah Binder
<http://themonkeycage.org/2013/07/14/speak-softly-and-carry-a-nuclear-stick/>
on the filibuster fight.
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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
"Both Sides in Filibuster Fight See Twisting of Senate Rules"
<http://electionlawblog.org/?p=52950>
Posted on July 15, 2013 8:52 am <http://electionlawblog.org/?p=52950> by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2013/07/16/us/politics/democrats-seeing-precedent-press-on-to-curb-filibuster.html?hp>.
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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
"Web of relations belies aide's denial: Connecting Montana's former
governor to dark money" <http://electionlawblog.org/?p=52948>
Posted on July 15, 2013 8:51 am <http://electionlawblog.org/?p=52948> by
Rick Hasen <http://electionlawblog.org/?author=3>
News from Montana
<http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2013307130022&gcheck=1>:
"Two weeks after news reports first linked former Gov. Brian Schweitzer
to a pair of mysterious dark money political groups, a Tribune
investigation shows Schweitzer's ties to those groups are deeper than a
top political consultant let on."
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"This Is Why We Can't Have Nice Elections: The Dysfunctional FEC"
<http://electionlawblog.org/?p=52945>
Posted on July 15, 2013 8:40 am <http://electionlawblog.org/?p=52945> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Atlantic reports
<http://www.theatlantic.com/politics/archive/2013/07/this-is-why-we-cant-have-nice-elections-the-dysfunctional-fec/277639/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Pennsylvania Voter ID Law Being Argued Anew in Court"
<http://electionlawblog.org/?p=52943>
Posted on July 15, 2013 8:40 am <http://electionlawblog.org/?p=52943> by
Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg reports
<http://www.bloomberg.com/news/2013-07-15/pennsylvania-voter-id-law-being-argued-anew-in-court.html?alcmpid=politics>.
The case is before a different judge than the judge who initially
refused to block the voter id law before the November election, and then
reversed his decision after the Pa. Supreme Court remanded the case for
him to take another look.
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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
"Reid-McConnell clash latest evidence that genteel Senate has turned
into a fight club" <http://electionlawblog.org/?p=52940>
Posted on July 15, 2013 8:37 am <http://electionlawblog.org/?p=52940> by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/politics/reid-mcconnell-clash-latest-evidence-genteel-senate-has-turned-into-a-fight-club/2013/07/14/4b0d69ae-d85a-11e2-a9f2-42ee3912ae0e_story.html>.
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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 FEC's wrong-headed proposal to change rules"
<http://electionlawblog.org/?p=52938>
Posted on July 15, 2013 8:36 am <http://electionlawblog.org/?p=52938> by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo editorial
<http://www.washingtonpost.com/opinions/fecs-wrong-headed-proposal-to-change-rules/2013/07/13/1ad59f8c-e3e9-11e2-a11e-c2ea876a8f30_story.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Counties reorganize precincts to help reduce voting lines"
<http://electionlawblog.org/?p=52936>
Posted on July 15, 2013 8:35 am <http://electionlawblog.org/?p=52936> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Miami Herald reports.
<http://www.miamiherald.com/2013/07/14/v-fullstory/3499848/counties-reorganize-precincts.html>
(h/t Doug Chapin
<http://blog.lib.umn.edu/cspg/electionacademy/2013/07/a_solution_for_long_lines_52_p.php>)
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Posted in election administration <http://electionlawblog.org/?cat=18> |
Comments Off
"The Republican Party and the Federal Election Commission At the
Present Time" <http://electionlawblog.org/?p=52934>
Posted on July 15, 2013 8:33 am <http://electionlawblog.org/?p=52934> by
Rick Hasen <http://electionlawblog.org/?author=3>
Bob Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2013/07/republican-party-federal-election-commission/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Pennsylvania's Voter ID Gets Its Day in Court"
<http://electionlawblog.org/?p=52931>
Posted on July 14, 2013 5:10 pm <http://electionlawblog.org/?p=52931> by
Rick Hasen <http://electionlawblog.org/?author=3>
NPR's All Things Considered offers this report
<http://www.npr.org/2013/07/14/202081107/pennsylvanias-voter-id-law-gets-its-day-in-court>.
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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
"Redistricting Wars; The hidden story of the 2012 elections"
<http://electionlawblog.org/?p=52928>
Posted on July 14, 2013 1:12 pm <http://electionlawblog.org/?p=52928> by
Rick Hasen <http://electionlawblog.org/?author=3>
Steven Malanga <http://www.city-journal.org/2012/22_2_redistricting.html>:
Every ten years, after the U.S. Census releases its latest
population reports, most of the 50 states begin the complicated
process of drawing new election districts. As you might expect,
partisan bickering and maneuvering inevitably distort things. So a
decade ago, Arizona voters decided to end the partisanship by
removing the redistricting process from the state legislature and
placing it in the hands of an independent commission. Last year, the
new commission, consisting of two Democrats, two Republicans, and a
nonpartisan chair, got to work on its first set of maps after the
2010 census.
Unfortunately, the results were anything but nonpartisan. The
independent chair sided consistently with the two Democrats,
essentially giving them control over the makeup of the congressional
and state legislative maps. Lawsuits were launched, along with a
push by Arizona's Republican governor, Jan Brewer, to impeach the
chair. The new maps, if let stand, "could reshape the state's
political landscape" in the Democrats' favor, the /Arizona Republic/
reported. Already, state lawmakers are looking at doing away with
the commission or significantly changing it.
Arizona isn't alone. In many states, including those where reformers
had tried to make the process less political, redistricting has
already determined the outcome of this year's races for Congress and
state legislature. In part, blame naivety for the reformers'
failure: redistricting isn't easily drained of partisanship. But
federal election law---especially the Voting Rights Act, which
mandates a certain amount of legal gerrymandering to reach preferred
racial outcomes---shares some of the blame. Though some states are
inching toward ways of carving out fairer, less politicized
electoral maps, reform is slow, and scheming over election districts
remains nearly as important as it ever was to politicians' fortunes,
the composition of state legislatures, and even control of the U.S.
House of Representatives.
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Posted in citizen commissions <http://electionlawblog.org/?cat=7>,
redistricting <http://electionlawblog.org/?cat=6>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Hudson County balks at $2.4 million US Senate special election
costs" <http://electionlawblog.org/?p=52925>
Posted on July 14, 2013 1:07 pm <http://electionlawblog.org/?p=52925> by
Rick Hasen <http://electionlawblog.org/?author=3>
County may refuse to pay costs
<http://www.hudsonreporter.com/view/full_story/23117499/article--Hudson-County-balks-at-$2-4-million-US-Senate-special-election-costs-?instance=up_to_the_minute_jersey>of
New Jersey special election for U.S. Senate.
I don't think that will go well for the county.
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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"Photo ID, Provisional Balloting, and Indiana's 2012 Primary
Election" <http://electionlawblog.org/?p=52923>
Posted on July 14, 2013 1:05 pm <http://electionlawblog.org/?p=52923> by
Rick Hasen <http://electionlawblog.org/?author=3>
Michael Pitts has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2277858> on SSRN
(/University of Richmond Law Review/). Here is the abstract:
This article represents the continuation of a series of studies that
measure the impact of photo identification on the electorate by
examining provisional ballots cast and not counted because
prospective voters lacked photo identification. Prior studies
examined provisional balloting at Indiana's 2008 primary and 2008
general elections. This article presents results from the 2012
primary and proceeds in two parts. Part I briefly discusses the
details of Indiana's photo identification law, the various methods
used to measure the impact of photo identification laws generally,
and the research methods employed for this study. Part II presents
and analyzes the empirical data generated in this study and,
notably, compares the impact of the photo identification law at
Indiana's 2008 primary election with the impact of the photo
identification law at Indiana's 2012 primary election.
As with Pitts' earlier study
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465529> of
Indiana's implementation of its voter id law, this is a must read. He
finds much less disenfranchisement likely caused by Indiana's i.d. law
than opponents of the law usually claim.
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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
How Today's Political Party Dynamics Eviscerate Conventional
Separation of Powers <http://electionlawblog.org/?p=52919>
Posted on July 14, 2013 7:44 am <http://electionlawblog.org/?p=52919> by
Richard Pildes <http://electionlawblog.org/?author=7>
In the traditional view, the unique American system of diffusing
political power across the House, Senate, and Presidency creates an
exceptional structure of checks and balances. In Madison's vision, each
of these institutions would have "a will of its own" so that "ambition
[would] counteract ambition" to produce better outcomes. But whether
the system ever worked this way, the nature of modern political party
competition has completely overwhelmed that original vision. If you
have any doubt about that, see Ezra Klein's piece in yesterday's
Washington Post (here
<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/12/is-obamas-biggest-problem-obama/>).
Presidents are the most significant representatives and leaders of one
political party; when they make a policy issue theirs, it becomes a
partisan political issue; through the linkage of partisan affiliation,
the electoral fates of members of Congress are powerfully tied to the
perceived success or failure of the President; thus, members of Congress
are driven by partisan incentives and "wills," not by any "institutional
will" of the Senate or House. This is dramatically accentuated in our
era by the hyperpolarized nature of the political parties: The
President creates the cues and the political parties function, for the
most part, as blocs.
Daryl Levinson and I explored in detail how the rise and polarization of
the political parties has completely transformed the separation of
powers system, in a Harvard Law Review article titled /Separation of
Parties, Not Powers. /For the details, see here
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=890105>.
Here's the key passages from Klein's piece:
This is perhaps the most important and least understood fact in
today's Washington: Presidents polarize. As the effective leader of
one of two political parties, the president is inevitably a
polarizing figure. . . That effect is not, from the president's
perspective, all bad. It makes it easier for him to corral members
of his own party, as Obama discovered from 2009 to 2010, when
Democrats controlled the House and Senate and passed the stimulus,
health-care reform, Dodd-Frank financial regulations and much more.
. . . But today's intense polarization means that most any bill
associated with Obama is automatically targeted for defeat by
Republicans. Policy compromise, as the White House has found out
again and again, isn't enough to overcome the zero-sum world of
modern politics.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"FEC engulfed in power struggle over staff independence"
<http://electionlawblog.org/?p=52916>
Posted on July 13, 2013 5:53 pm <http://electionlawblog.org/?p=52916> by
Rick Hasen <http://electionlawblog.org/?author=3>
Must-read @MateaGold piece
<http://www.washingtonpost.com/politics/fec-engulfed-in-power-struggle-over-staff-independence/2013/07/13/72134cae-e8d5-11e2-a301-ea5a8116d211_story.html>
for WaPo.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"A Spitzer Petitioner's Tale: $1,600 To Get Signatures For 'A
Schmuck'" <http://electionlawblog.org/?p=52913>
Posted on July 12, 2013 4:43 pm <http://electionlawblog.org/?p=52913> by
Rick Hasen <http://electionlawblog.org/?author=3>
Love this image of democracy in action:
<http://gothamist.com/2013/07/12/mothers_are_the_toughest_a_spitzer.php>
Due to the high pay, I felt obligated to get at many signatures as I
could. The West Village has many aging Jewish women and gay couples.
These are my people. I realized the trick was to start with the most
potent part to draw people in. "Hi, I'm with Eliot Spitzer for
Comptroller of the City of New York. Would you like to sign our
petition to put him on the ballot?" has a LOT of syllables. So I
tried innumerable permutations of my pitch.
"Sign for Spitzer?"
"I'm with Eliot Spitzer. Sign our petition please?"
"Eliot Spitzer for office. Sign please?"
Then I started barking, "SPITZER! SIGN FOR SPITZER!" It worked. Many
people stopped and signed. Others told me I was crazy.
"NO"
"Heaven's no."
"Heck no."
"You must be kidding."
"You're joking right?"
"You must be joking."
"That schmuck!"
"What nerve!"
"I'd never vote for a hellion!"
I was also insulted with what seemed like 30 different Yiddish
words. Who knew Yiddish could be so versatile?
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Posted in petition signature gathering
<http://electionlawblog.org/?cat=39> | Comments Off
Thanks to Wonk Wire <http://electionlawblog.org/?p=52907>
Posted on July 12, 2013 4:41 pm <http://electionlawblog.org/?p=52907> by
Rick Hasen <http://electionlawblog.org/?author=3>
for naming my APSA paper, Shelby County and the Illusion of Minimalism
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> its
Abstract of the Week
<http://wonkwire.rollcall.com/2013/07/12/abstract-of-the-week-58/>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Federal judge hears case on Ohio ballot, ID rules"
<http://electionlawblog.org/?p=52905>
Posted on July 12, 2013 2:49 pm <http://electionlawblog.org/?p=52905> by
Rick Hasen <http://electionlawblog.org/?author=3>
AP
<http://www.daytondailynews.com/news/news/federal-judge-hears-case-on-ohio-ballot-id-rules/nYpKn/>:
"Voter advocates asked a federal judge Friday to extend a court order
that they say ensures that broad definitions of voter identification
requirements would remain in place in the perennial presidential
battleground of Ohio."
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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
"A Day of Friction Notable Even for a Fractious Congress"
<http://electionlawblog.org/?p=52902>
Posted on July 12, 2013 2:46 pm <http://electionlawblog.org/?p=52902> by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2013/07/13/us/politics/a-day-of-friction-notable-even-for-a-fractious-congress.html?ref=politics&_r=0>
Even in a Congress where bipartisanship and comity are now
officially the exceptions to the regular order, the near implosion
on Capitol Hill on Thursday was notable, as both chambers erupted in
a furor that went on for much of the day.
In the Senate, leaders fought bitterly over proposed changes to
Senate rules that would limit the filibuster
<http://www.nytimes.com/2013/07/12/us/politics/showdown-nears-in-senate-over-filibusters-change.html>,
with Senator Harry Reid of Nevada, the Democratic leader, trading
barbs with Senator Mitch McConnell of Kentucky, the Republican
leader, several times on the Senate floor.
"These are dark days in the history of the Senate," Mr. McConnell
said ominously, adding that the rule change suggested by Mr. Reid
would lead to the Democrat's being remembered as "the worst leader
of the Senate ever." The two men, both crafty lawmakers and once
seemingly friends, seem now barely able to countenance each other's
presence.
Over in the House, Republicans --- without the help of a single
Democrat --- passed perhaps the most partisan farm bill
<http://www.nytimes.com/2013/07/12/us/politics/house-bill-would-split-farm-and-food-stamp-programs.html>
in recent history, stripping out the food stamp program to attract
enough support from conservatives. Just passing the bill, which was
prepared in the House Rules Committee in the dark of night
Wednesday, proved an unusual chore as furious Democrats pulled one
procedural move after another to delay the inevitable, taking turns
to disparage the bill from the floor.
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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
"Clinton Supporter Suspected of Illegal Donations"
<http://electionlawblog.org/?p=52900>
Posted on July 12, 2013 2:43 pm <http://electionlawblog.org/?p=52900> by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2013/07/12/12943/clinton-supporter-suspected-illegal-donations>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12> | Comments Off
"Carl Levin Can Save the Filibuster"
<http://electionlawblog.org/?p=52897>
Posted on July 12, 2013 2:27 pm <http://electionlawblog.org/?p=52897> by
Rick Hasen <http://electionlawblog.org/?author=3>
Jonathan Bernstein writes.
<http://www.washingtonpost.com/blogs/post-partisan/wp/2013/07/12/carl-levin-can-save-the-filibuster/>
Share
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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
"Democrats offer new evidence that IRS targeted progressive groups"
<http://electionlawblog.org/?p=52894>
Posted on July 12, 2013 2:23 pm <http://electionlawblog.org/?p=52894> by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/blogs/federal-eye/wp/2013/07/12/democrats-offer-new-evidence-that-irs-targeted-progressive-groups/>.
Share
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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
"President Obama's advocacy arm collects $8.2 million"
<http://electionlawblog.org/?p=52891>
Posted on July 12, 2013 1:48 pm <http://electionlawblog.org/?p=52891> by
Rick Hasen <http://electionlawblog.org/?author=3>
USA Today reports
<http://www.usatoday.com/story/news/politics/2013/07/12/organization-for-action-donors--president-obama-fundraising/2511993/>.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
Redistricting Versus Access to the Ballot Box: A Republican View on
Potential Bipartisan VRA Reform <http://electionlawblog.org/?p=52882>
Posted on July 12, 2013 10:53 am <http://electionlawblog.org/?p=52882>
by Richard Pildes <http://electionlawblog.org/?author=7>
As mentioned in aprior post <http://electionlawblog.org/?p=52780>, a lot
of good discussion came out of the recent Brookings conference on the
aftermath of the Court's //decision on the Voting Rights Act. With
respect to the prospects of any kind of legislation that might be able
to attract bipartisan support in Congress, I thought it worth quoting
the perspective of Mark Braden, whose credentials as a redistricting and
election-law expert for the Republican Party I described earlier.
Mark suggested that focusing Sections 4/5 on access to the ballot box,
by taking redistricting out of the pre-clearance regime and leaving that
to be handled by ordinary Section 2 litigation, would open up greater
opportunity for Republican support of post-/Shelby County /VRA reform.
I don't know how much Mark speaks for Republicans in Congress, or
whether Democrats would be willing to accept any compromise along these
lines. But I thought Mark's comments were worth reporting (without
endorsing) in full:
MR. BRADEN: . . . I don't see any difficulty whatsoever in drawing
a trigger standard that would be Constitutional. I do see a huge
problem with drawing one that would be Constitutional and would, in
fact, pass Congress. I think the question here is what can pass
Congress. The starting point, I would suggest to you, is going back
--- my own view of the world, obviously --- going back and
bifurcating what we're talking about here that Section 5 deals with.
There's a big piece which is reapportionment, redistricting, and
then just let me call it the election administration piece. If you
fill the need to not bifurcate and have to come up with a system
that would get through Congress that would deal with both those
pieces, good luck. I don't see how that's going to happen, but if
you were to bifurcate it, I think there's a possibility that you
could. You have to deal with Abigail. You have to realize that if
you don't break out redistricting, then if you break out
redistricting, suddenly you've freed up a huge portion of the
Republican caucus who is opposed to what they would view as racial
quotas and redistricting based upon race, even though, of course,
redistricting based upon race has been vital to the creation of the
Republican party itself. I mean, there's no question about that
throughout the '80s, '90s. People that were working with me was the
minority community in the South, and that's what permitted the
Republican party to become the majority party in those states at the
local and legislative level.
Okay, but the whole notion of creating those majority minority
districts is very difficult with most of the Republican caucus in
the House of Representatives. So, if you want to break that piece
off and say, okay, we're not going to have any effort to replace
Section 5 is going to deal with redistricting. We'll depend upon
Section 2 or something else to deal with redistricting litigation.
But we're going to deal with --- what I heard in a variety of
discussions here --- things that are really important going
forward. First of all, with the exception of a few odds and ends,
everything in redistricting is a long way from now, 2012.
So, if you want to deal with what you perceive to be problems in the
near, near term, which are election administration problems, you
break those out, you've suddenly freed up a lot of Republicans who
wouldn't consider this because they say this is based upon
racial-based redistricting. If you take that piece out, then all
we're talking about is election administration practices, whether or
not they're discriminatory.
No matter what, we have different views about early voting and voter
ID or whatever, but at least intellectually the caucus is going to
vote rhetorically, and I would suggest intellectually, want to take
the position that they're not in favor of anything that
discriminates, any type of election procedure that discriminates
against a minority community. Now, we're going to have lots of
arguments as to what that means, but at least rhetorically they will
take that position, and I believe actually take that position.
So, if you're talking about creating a system that might permit some
type of pre-approval or easier access to challenging election
administration pieces, that's doable. If you're doing the whole
thing, that's not politically doable, period.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"A Decade After McCain-Feingold, Election Spending Spikes"
<http://electionlawblog.org/?p=52883>
Posted on July 12, 2013 10:49 am <http://electionlawblog.org/?p=52883>
by Rick Hasen <http://electionlawblog.org/?author=3>
Must-Reid
<http://www.nationaljournal.com/columns/on-the-trail/a-decade-after-mccain-feingold-election-spending-spikes-20130711>
(Wilson) piece. And for those who don't think the Supreme Court's
deregulation of outside money matters, check out this chart from the piece:
outside-nj <http://electionlawblog.org/wp-content/uploads/outside-nj.png>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
"Watchdog Groups Challenge Illegitimate Attempt by Republican FEC
Commissioners to Sabotage Campaign Finance"
<http://electionlawblog.org/?p=52879>
Posted on July 12, 2013 10:24 am <http://electionlawblog.org/?p=52879>
by Rick Hasen <http://electionlawblog.org/?author=3>
See this press release
<http://www.democracy21.org/money-in-politics/letters-to-the-fec/watchdog-groups-challenge-illegitimate-attempt-by-republican-fec-commissioners-to-sabotage-campaign-finance/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
"Voter ID Trial Gets Underway In Pennsylvania"
<http://electionlawblog.org/?p=52876>
Posted on July 12, 2013 10:17 am <http://electionlawblog.org/?p=52876>
by Rick Hasen <http://electionlawblog.org/?author=3>
HuffPo reports
<http://www.huffingtonpost.com/2013/07/12/voter-id-trial-pennsylvania_n_3586546.html?utm_hp_ref=tw>.
Share
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"A Not-So-Bright 'Fix' for the IRS | Commentary"
<http://electionlawblog.org/?p=52873>
Posted on July 12, 2013 8:24 am <http://electionlawblog.org/?p=52873> by
Rick Hasen <http://electionlawblog.org/?author=3>
Eric Wang
<http://www.rollcall.com/news/a_not_so_bright_fix_for_the_irs_commentary-226245-1.html?pg=1>
Roll Call oped. More from CCP.
<http://www.campaignfreedom.org/2013/07/12/bright-lines-project-fails-to-live-up-to-its-name/>
Share
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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
"Blame Voting Rights Act for Dem Troubles"
<http://electionlawblog.org/?p=52871>
Posted on July 12, 2013 8:22 am <http://electionlawblog.org/?p=52871> by
Rick Hasen <http://electionlawblog.org/?author=3>
Jonathan Tobin
<http://www.commentarymagazine.com/2013/07/11/blame-voting-rights-act-for-democrat-troubles-south/>
replies to Tom Edsall.
<http://opinionator.blogs.nytimes.com/2013/07/10/the-decline-of-black-power-in-the-south/?ref=opinion>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Justice Ginsburg's Vigor, as Evidenced by Her Shelby County Dissent
<http://electionlawblog.org/?p=52866>
Posted on July 11, 2013 9:09 pm <http://electionlawblog.org/?p=52866> by
Rick Hasen <http://electionlawblog.org/?author=3>
[This is one of a series of posts <http://electionlawblog.org/?p=52774>
on issues related to the /Shelby County /
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>voting rights
case flagged, but not fully developed, in my draft paper, Shelby County
and the Illusion of Minimalism
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>.]
One of the last major opinions Justice Stevens wrote for the Supreme
Court, his dissent
<http://www.law.cornell.edu/supct/html/08-205.ZX.html> in the /Citizens
United/ <http://www.law.cornell.edu/supct/html/08-205.ZS.html> campaign
finance case, was a disappointment. Rather than being a strong and crisp
statement of principles to support reasonable campaign finance
regulation under anti-corruption, egalitarian principles, or both, the
opinion was meandering and unfocused (so much so that I dedicateda law
review article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938> to its
weaknesses). I had always been a fan of Justice Stevens and found this
disappointing. Justice Stevens too expressed concern about his oral
dissent in /Citizens United/ in explaining why he decided it was time to
retire
<http://www.abajournal.com/news/article/justice_stevens_decided_to_retire_after_stumbling_during_citizens_united_di/>.
I bring up the Stevens issue because there has been talk too that
Justice Ginsburg should retire soon
<http://www.thedailybeast.com/articles/2012/05/24/is-justice-ginsburg-risking-the-future-of-the-supreme-court.html>
given her age and the chance that the next President might be
Republican, giving Republicans the chance to put a young new
conservative on the Court. In an interview last week with Joan Biskupic
<http://www.reuters.com/article/2013/07/04/us-usa-court-ginsburg-idUSBRE9630C820130704>,
Justice Ginsburg rejected retirement talk, putting the kibosh on
conventional wisdom that she would retire at the end of the Court's next
term.
The question whether the 80-year-old Ginsburg should retire is a
difficult one, and I will likely leave this debate for others. The
issue is difficult because, unlike Stevens, Ginsburg is still at the top
of her game. If Justice Ginsburg started missing a step, the case for
her quick retirement would be an easy one.
Her dissent in the landmark voting rights ruling last month, /Shelby
County v. Holder/, is crisp and directed, pointed and clear. With a
couple <http://electionlawblog.org/?p=52774> of exceptions (most
importantly its attempt
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> to paint a
happy picture of Congress's 2006 renewal), it is an exemplary dissent.
Most impressive about the dissent is that Justice Ginsburg offers a
nascent new theory of federal power to regulate state elections in the
name of promoting democracy.This is hardly the stuff of a Justice going
through the motions. The opinion puts forward the theory and at the same
time explains what I've considered
<http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html>
to be a curious decision
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/are_the_liberals_on_the_supreme_court_savvy_or_suckers.html>
of Justice Ginsburg and the other liberals
<http://electionlawblog.org/?p=51773> to join in full Justice Scalia's
opinion in the /Arizona Inter-Tribal/
<http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf>case. Part
of that opinion seems to give states new ammunition to fight /against/
federal oversight of elections. So why did Ginsburg sign it? Here's the
relevant discussion from my draft paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>:
The dissent offers a muscular and integrated vision of the five
constitutional amendments mentioning the right to vote and, coupled
with its view of the Elections Clause in Article 4, the Constitution
gives Congress broad power to protect the franchise and democratic
processes against state encroachment.[1]
<http://electionlawblog.org/#_ftn1>
------------------------------------------------------------------------
[1] <http://electionlawblog.org/#_ftnref1> Id at *24 n 2 ("The
Constitution uses the words 'right to vote' in five separate places:
the Fourteenth, Fifteenth, Nineteenth, Twenty--Fourth, and
Twenty--Sixth Amendments. Each of these Amendments contains the same
broad empowerment of Congress to enact "appropriate legislation" to
enforce the protected right. The implication is unmistakable: Under
our constitutional structure, Congress holds the lead rein in making
the right to vote equally real for all U.S. citizens. These
Amendments are in line with the special role assigned to Congress in
protecting the integrity of the democratic process in federal
elections. U.S. Const., Art. I, § 4 ("[T]he Congress may at any time
by Law make or alter" regulations concerning the "Times, Places and
Manner of holding Elections for Senators and Representatives.");
/Arizona v. Inter Tribal Council of Ariz., Inc.,/ ------U.S.,
--------, -------- -- --------, 133 S.Ct. 2247, -------- --
--------, ------ L.Ed.2d -------- (2013)).
This footnote may help explain why the /Shelby County /dissenters
were willing to sign on to Justice Scalia's majority opinion in
/Arizona v. Inter Tribal Council/ despite language in the opinion
which could be used later by states to fight federal election
legislation by claiming such legislation impedes state power to set
voter qualifications. /See/ Richard L. Hasen, /The Supreme Court
Gives States New Weapons in the Voting Wars/, The Daily Beast, Jun.
17, 2013,
http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html.
In a future case involving a state's qualifications power being
raised against a federal election rule, the dissenters likely would
seek to distance themselves from the voter qualifications dicta in
/Inter Tribal Council/ just as they distanced themselves from the
/NAMUDNO /dicta in /Shelby County/. Instead, the dissenters offer a
nascent theory of broad congressional power to assure equality in
voting.
So say what you will about whether Justice Ginsburg should retire given
her age, giving President Obama a sure chance to appoint a young new
liberal Justice to the Court. But don't think for a moment that Justice
Ginsburg isn't up to the task of continuing at full (and impressive for
any age) strength for the near term.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Sen. Nelson blasts Supreme Court on voting rights"
<http://electionlawblog.org/?p=52863>
Posted on July 11, 2013 4:23 pm <http://electionlawblog.org/?p=52863> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Sun-Sentinel reports
<http://www.sun-sentinel.com/news/local/florida/politics-blog/sfl-sen-nelson-blasts-supreme-court-on-voting-rights-20130711,0,6947270.story>.
Share
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Another IRS Scandal Waiting to Happen; Federal Elections
Commissioner Donald McGahn wants to rein in the bureaucracy of this
sensitive agency. The political left is furious. "
<http://electionlawblog.org/?p=52861>
Posted on July 11, 2013 3:53 pm <http://electionlawblog.org/?p=52861> by
Rick Hasen <http://electionlawblog.org/?author=3>
Kimberly Strassel /WSJ
<http://online.wsj.com/article/SB10001424127887324879504578599783139351080.html>/column.
<http://online.wsj.com/article/SB10001424127887324879504578599783139351080.html>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
Filibuster Reform Coming? <http://electionlawblog.org/?p=52858>
Posted on July 11, 2013 3:51 pm <http://electionlawblog.org/?p=52858> by
Rick Hasen <http://electionlawblog.org/?author=3>
NY Times: Democrats Poised to Limit Filibusters, Angering GOP
<http://www.nytimes.com/2013/07/12/us/politics/showdown-nears-in-senate-over-filibusters-change.html?hp>
Ezra Klein: Mitch McConnell's problem: How can he threaten to obstruct
the Senate even more?
<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/11/mitch-mcconnells-problem-how-can-he-threaten-to-obstruct-the-senate-even-more/>
Jonathan Bernstein: Why Senate Reform is Needed
<http://www.washingtonpost.com/blogs/post-partisan/wp/2013/07/11/why-senate-reform-is-needed/>
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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
"News Analysis: Macon-Bibb's on again, off again election; VRA
ruling gives election a green light, but not so fast"
<http://electionlawblog.org/?p=52853>
Posted on July 11, 2013 3:10 pm <http://electionlawblog.org/?p=52853> by
Rick Hasen <http://electionlawblog.org/?author=3>
That's the lead story in this week's Electionline Weekly.
<http://www.electionline.org/index.php/electionline-weekly>
Share
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Shuchman on Corsi Case <http://electionlawblog.org/?p=52850>
Posted on July 11, 2013 3:07 pm <http://electionlawblog.org/?p=52850> by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.forbes.com/sites/realspin/2013/07/11/in-todays-america-consult-your-attorney-before-speaking-freely/>,
in Forbes.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
Extensive Sen. McConnell Profile Discusses His Anti-Campaign Finance
Law Stance, Alliance with Jim Bopp
<http://electionlawblog.org/?p=52847>
Posted on July 11, 2013 3:06 pm <http://electionlawblog.org/?p=52847> by
Rick Hasen <http://electionlawblog.org/?author=3>
Fascinating read
<http://www.huffingtonpost.com/2013/07/11/mitch-mcconnell-profile_n_3550173.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"G.A.B. Issues Polling Place Accessibility Report"
<http://electionlawblog.org/?p=52843>
Posted on July 11, 2013 2:58 pm <http://electionlawblog.org/?p=52843> by
Rick Hasen <http://electionlawblog.org/?author=3>
Press Release <http://gab.wi.gov/node/2866>:
MADISON, WI -- Wisconsin's polling places are becoming more
accessible, but some people with disabilities and the elderly still
face significant obstacles when they vote, according to a new report
from the Government Accountability Board....
The report is available on the G.A.B. website:
http://gab.wi.gov/publications/reports/2013-accessibility-report.
The Board's website also has voting accessibility resource pages for
people with disabilities (http://gab.wi.gov/voters/accessibility)
and for clerks who are responsible for making sure polling places
are accessible (http://gab.wi.gov/clerks/guidance/accessibility).
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Posted in voters with disabilities <http://electionlawblog.org/?cat=71>
| Comments Off
"Supreme Court rules against Legislature in redistricting case"
<http://electionlawblog.org/?p=52841>
Posted on July 11, 2013 2:56 pm <http://electionlawblog.org/?p=52841> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Buzz
<http://www.tampabay.com/blogs/the-buzz-florida-politics/supreme-court-rules-against-legislature-in-redistricting-case/2130935?utm_source=twitterfeed&utm_medium=twitter>(Tampa
Bay Times):
The Florida Supreme Court on Thursday handed a legal setback to the
state Legislature, ruling that a legal challenge to the remapping of
Senate districts can go forward in a lower court. The 5-2 decision
is a victory for the League of Women Voters of Florida, which is
seeking to prove that the GOP Senate majority drew districts in
violation of the two "fair districts" amendments to the state
Constitution that prohibit favoritism toward incumbents or political
parties.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
"FEC nominations moving forward Officials: Senate Rules Committee
planning hearing for July 24? <http://electionlawblog.org/?p=52839>
Posted on July 11, 2013 2:54 pm <http://electionlawblog.org/?p=52839> by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2013/07/11/12948/fec-nominations-moving-forward>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
"Groups File Brief Supporting Challenge to Contractor Donation Ban"
<http://electionlawblog.org/?p=52836>
Posted on July 11, 2013 8:59 am <http://electionlawblog.org/?p=52836> by
Rick Hasen <http://electionlawblog.org/?author=3>
CCP issued this press release
<http://www.campaignfreedom.org/2013/07/10/groups-file-brief-supporting-challenge-to-contractor-donation-ban/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Linda Greenhouse on Why Liberal Justices Compromised in NAMUDNO and
Why Justice Ginsburg Dissented in Fisher
<http://electionlawblog.org/?p=52831>
Posted on July 10, 2013 8:29 pm <http://electionlawblog.org/?p=52831> by
Rick Hasen <http://electionlawblog.org/?author=3>
Linda in NYT
<http://opinionator.blogs.nytimes.com/2013/07/10/the-cost-of-compromise/>:
Why did the liberal justices sign on to the Northwest Austin opinion
in 2009? Clearly, it was the price of the compromise to buy the
Voting Rights Act a little more time. They must have expected --- or
desperately hoped --- that Congress would take the hint and update
the formula that determines which states and localities are covered
by the Section 5 preclearance requirement. A near-unanimous opinion,
they may have thought, would make a Congressional response more
likely; that the court was speaking with close to one voice
seemingly put the issue beyond partisanship. Only in hindsight is it
clear that this expectation was doomed by Congressional dysfunction,
leaving the liberal justices on a limb they had knowingly, if
reluctantly, climbed.
Was the price of compromise too high back in 2009? In retrospect,
the answer is yes. The liberal justices' acquiescence to
near-unanimity placed a fig leaf on a truly radical project to curb
the civil-rights enforcement authority that the framers of the 14th
and 15th amendments explicitly gave to Congress. It's admittedly a
long shot even in hindsight, but a powerful dissent four years ago
might have been the clarion call that just might have shaken
Congress out of its torpor and persuaded it to immunize the Voting
Rights Act from the charge that the application of Section 5 was, in
the chief justice's words, "based on decades-old data and eradicated
practices."
I offer a somewhat different take on the liberal Justices inthis Slate
piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/are_the_liberals_on_the_supreme_court_savvy_or_suckers.html>
and my draft APSA paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"The Decline of Black Power in the South"
<http://electionlawblog.org/?p=52828>
Posted on July 10, 2013 8:24 pm <http://electionlawblog.org/?p=52828> by
Rick Hasen <http://electionlawblog.org/?author=3>
Tom Edsall
<http://opinionator.blogs.nytimes.com/2013/07/10/the-decline-of-black-power-in-the-south/?ref=politics>(NYT)
with a very interesting perspective post-Shelby County.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> |
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"Miami-Dade should take steps to thwart absentee-ballot fraudsters,
advisory group says" <http://electionlawblog.org/?p=52825>
Posted on July 10, 2013 2:59 pm <http://electionlawblog.org/?p=52825> by
Rick Hasen <http://electionlawblog.org/?author=3>
The Miami Herald reports.
<http://www.miamiherald.com/2013/07/10/3494208/miami-dade-should-take-steps-to.html>
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Posted in absentee ballots <http://electionlawblog.org/?cat=53>,
chicanery <http://electionlawblog.org/?cat=12>, election administration
<http://electionlawblog.org/?cat=18>, The Voting Wars
<http://electionlawblog.org/?cat=60> | Comments Off
"More voter-fraud allegations evaporate into nothing"
<http://electionlawblog.org/?p=52822>
Posted on July 10, 2013 2:03 pm <http://electionlawblog.org/?p=52822> by
Rick Hasen <http://electionlawblog.org/?author=3>
Steve Benen blogs
<http://maddowblog.msnbc.com/_news/2013/07/10/19396665-more-voter-fraud-allegations-evaporate-into-nothing?lite>.
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Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Obama tells black lawmakers he'll help rebuild Voting Rights Act"
<http://electionlawblog.org/?p=52819>
Posted on July 10, 2013 1:39 pm <http://electionlawblog.org/?p=52819> by
Rick Hasen <http://electionlawblog.org/?author=3>
The /Dallas Morning News/ reports.
<http://www.dallasnews.com/news/politics/headlines/20130709-obama-tells-black-lawmakers-hell-help-rebuild-voting-rights-act.ece>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Looking to Tech for Help With Life After the Voting Rights Act"
<http://electionlawblog.org/?p=52816>
Posted on July 10, 2013 1:29 pm <http://electionlawblog.org/?p=52816> by
Rick Hasen <http://electionlawblog.org/?author=3>
Interesting post
<http://techpresident.com/news/24114/technology-key-weapon-voting-rights-advocacy>
at TechPresident.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
The Effects of Racial Redistricting on Southern Politics: A View
From the Republican Side <http://electionlawblog.org/?p=52780>
Posted on July 10, 2013 1:20 pm <http://electionlawblog.org/?p=52780> by
Richard Pildes <http://electionlawblog.org/?author=7>
For the past several decades, E. Mark Braden (here
<http://www.bakerlaw.com/emarkbraden/>) has been one of the leading
redistricting lawyers in the country working on the Republican side. He
has successfully argued in the redistricting area before the U.S.
Supreme Court and has been involved in redistricting litigation
throughout the country. For 10 years, he was Chief Counsel to the
Republican National Committee.
In the wake of the Supreme Court's //VRA decision, I was fortunate to be
part of a first-rate conference at the Brookings Institution to assess
the decision and the future of voting rights law and policy. The
conference (for a webcast, seehere
<http://www.brookings.edu/events/2013/07/01-voting-rights-shelby-holder>),
hosted by Tom Mann and Nate Persily, was so good precisely because it
included such a productively diverse array of experts and participants
in the voting-rights field --- including lawyers who were on opposite
sides of the /Shelby County /case, academics, journalists, voting rights
activists, and others.
Many fascinating insights and comments were offered at this conference.
For now, I wanted to quote this observation from Mark Braden about how
the system of racial redistricting that began in full in the 1990s (in
the wake of the 1982 Amendments to the VRA and the Supreme Court's 1986
interpretation of those amendments in the /Gingles /case) contributed to
the rise of the Republican Party at the state and local level in the South:
/Mark Braden:/
. . . of course, redistricting based upon race has been vital to the
creation of the Republican Party itself. I mean, there's no
question about that throughout the '80s, '90s. People that were
working with me was the minority community in the South, and*that's
what permitted the Republican party to become the majority party in
those states at the local and legislative level. */(emphasis added)
/
There has been much discussion over recent years about whether, and how
much, the required creation of majority-minority districts, as a result
of the VRA, also had the additional consequence of creating more
conservative districts as well. But I am not sure I have ever seen
anyone so directly involved in the redistricting process acknowledge
these consequences as directly and dramatically as Mark Braden does in
this statement.
In the mid-1990s, when VRA-required racial redistricting began, I recall
how difficult it was even to discuss whether one of the effects this
redistricting was to enable the election of more Republicans and to make
political bodies more conservative overall. Indeed, in an article
<http://www.jstor.org/stable/1341860> in the Harvard Law Review in 1995,
I quoted a prominent civil rights activist who called it "pure racism"
to raise such issues. By the decade of the 2000s, political figures on
the ground in some parts of the South recognized that this tradeoff was
indeed taking place; that's why Congressman John Lewis testified in
favor of Georgia's post-2000 redistricting plan, put together by a
coalition of black and white Democratic state legislators, that the
Supreme Court ultimately upheld in the 5-4 /Georgia v. Ashcroft
/decision. By now, I think it's widely accepted factually, at least by
politically knowledgeable players, that there is what might be called a
tragic tension between creating more African-American majority districts
in the South and creating more Democratic districts (a pending lawsuit
<http://www.newsobserver.com/2013/07/08/3016723/nc-three-judge-panel-lets-gop.html>
in North Carolina argues that a strategy of this sort was behind the
most recent, Republican-controlled redistricting of that state). Mark
Braden's recent comments are a public confirmation of that from the
Republican point of view.
For my own views on how the VRA affected the rise of the Republican
Party in the South, see /Why the Center Does Not Hold: The Causes of
Hyperpolarized Democracy in America/
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646989>. As noted
above, the webcast of the Brookings conference is now available. I will
update with a link to the full transcript when it is available.
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Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Claim Citizens United Attorney Broke Charity Tax Law Doesn't Hold
Up" <http://electionlawblog.org/?p=52807>
Posted on July 10, 2013 12:00 pm <http://electionlawblog.org/?p=52807>
by Rick Hasen <http://electionlawblog.org/?author=3>
Interesting perspective
<http://www.forbes.com/sites/peterjreilly/2013/07/10/crew-embarrasses-itself-with-bopp-whistleblower-claim/>
on Bopp-CREW from Peter Reilly.
MORE
<http://www.theindianalawyer.com/attorney-says-washington-nonprofits-complaints-are-part-of-smear-campaign/PARAMS/article/31887>from
/Indiana Lawyer./
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"NC redistricting decision a setback for voting rights"
<http://electionlawblog.org/?p=52804>
Posted on July 10, 2013 11:57 am <http://electionlawblog.org/?p=52804>
by Rick Hasen <http://electionlawblog.org/?author=3>
Brentin Mock
<http://www.southernstudies.org/2013/07/nc-redistricting-decision-a-setback-for-voting-rig.html>
writes for Facing South.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | 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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