[EL] more news 7/17/13
Rick Hasen
rhasen at law.uci.edu
Wed Jul 17 15:27:04 PDT 2013
[Note two updates below in my post on today's Senate hearing, including
one calling into question whether I fairly characterized Mike Carvin's
position on the constitutionality of section 2.]
Von Spakovsky, J. Christian Adams Testifying About Shelby County and
VRA at House Hearing Tomorrow <http://electionlawblog.org/?p=53112>
Posted on July 17, 2013 3:12 pm <http://electionlawblog.org/?p=53112> by
Rick Hasen <http://electionlawblog.org/?author=3>
For those expecting compromise and a bipartisan spirit to fix Voting
Rights Act section 5 coming out oftomorrow's hearing
<http://judiciary.house.gov/hearings/113th/hear_07182013.html>,
fuhgeddaboutit!
<https://twitter.com/ElectionLawCtr/status/357597683977957376>
(Bob Kengle and Spencer Overton are the Democratic-called witnesses.)
Ari Melber says <http://electionlawblog.org/?p=53109> don't be a
naysayer about a congressional fix for the VRA after /Shelby County./
I'm a naysayer <http://electionlawblog.org/?p=53094>.
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Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>,
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<http://electionlawblog.org/?cat=15> | Comments Off
"Senate is acting on the Voting Rights Act"
<http://electionlawblog.org/?p=53109>
Posted on July 17, 2013 2:33 pm <http://electionlawblog.org/?p=53109> by
Rick Hasen <http://electionlawblog.org/?author=3>
Ari Melbe <http://video.msnbc.msn.com/the-cycle/52502370#52502370>r is
not a naysayer (video).
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Given the Secret Ballot, How Do Vote Buyers Make Sure Bought Voters
Stay Bought? <http://electionlawblog.org/?p=53106>
Posted on July 17, 2013 2:30 pm <http://electionlawblog.org/?p=53106> by
Richard Pildes <http://electionlawblog.org/?author=7>
The secret ballot makes vote buying more difficult: how can the buyer
be sure the voter actually votes for the candidate he has been paid to
support? Out of Kentucky, here is the description from yesterday's
Sixth Circuit opinion (seethis post
<http://electionlawblog.org/?p=53055>) of how an alleged vote buying
group of conspirators circumvented this obstacle (along with others).
Since the Sixth Circuit ordered a new trial, I want to repeat that these
are the /allegations/:
Political candidates pooled money to buy votes and to pay "vote
haulers" to deliver voters whose votes could be bought.**In order to
be paid, voters had to vote for a particular set of candidates,
known as a "slate" or "ticket." To ensure that these voters actually
voted for the correct slate, co-conspiring election officers and
poll workers reviewed voters' ballots---a practice known in this
case as "voting the voter." Once the proper slate was confirmed, a
token (such as a raffle ticket) or marking was given to the voters
to confirm that they did in fact vote for the proper slate. Voters
with the token or marking were then paid by members of the
conspiracy in a location away from the polls. Conspirators retained
lists of voters to avoid double payments and to keep track of whose
votes could be bought in ensuing elections.
In addition to hiring vote haulers, defendants allegedly utilized
other methods of buying votes. Absentee voting and voter-assistance
forms helped minimize the difficulty of checking paid voters'
ballots. In the latter case, co-conspiring poll workers were
permitted to be in the voting booth under the pretext that they were
assisting voters; in reality, co-conspiring poll workers were
confirming that voters chose the proper slates.
When electronic voting machines were introduced to Clay County in
the 2006 election, the conspiracy both stole and bought votes. To
steal votes, conspirators, typically poll workers, purposefully
misinformed voters that they did not need to click "cast ballot" on
a screen that appeared after voters had selected candidates for whom
they wished to vote. Co-conspiring poll workers would enter the
voting booth after the voter exited and change the electronic ballot
to reflect the slate before finally casting the ballot.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Key GOP lawmaker warns of 'last chance' to fix key section of
Voting Rights Act" <http://electionlawblog.org/?p=53101>
Posted on July 17, 2013 1:19 pm <http://electionlawblog.org/?p=53101> by
Rick Hasen <http://electionlawblog.org/?author=3>
Tom Curry reports
<http://nbcpolitics.nbcnews.com/_news/2013/07/17/.Ueb7awlUl80.twitter>
for NBC News.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
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"Republican presiding over VRA hearing once claimed blacks better
off under slavery" <http://electionlawblog.org/?p=53098>
Posted on July 17, 2013 1:14 pm <http://electionlawblog.org/?p=53098> by
Rick Hasen <http://electionlawblog.org/?author=3>
Adam Serwer reports
<http://tv.msnbc.com/2013/07/17/trent-franks-once-claimed-blacks-better-off-under-slavery/>
for MSNBC.
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The Chances of a Deal to Fix the VRA After Shelby County?
Observations about the Senate Judiciary Committee Hearing
<http://electionlawblog.org/?p=53094>
Posted on July 17, 2013 12:34 pm <http://electionlawblog.org/?p=53094>
by Rick Hasen <http://electionlawblog.org/?author=3>
I had a chance to watch a good part of the Senate Judiciary Committee
hearing
<http://www.judiciary.senate.gov/hearings/hearing.cfm?id=6ae289b2466e2489f90d6b42c9d8d78f>
today. It makes me more pessimistic about the chances of a deal to
improve the Voting Rights Act after the Supreme Courteffectively
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> gutted
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html>
section 5 in the Shelby County
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/> case.
Back in February I organized a Reuters Opinion symposium
<http://www.reuters.com/subjects/voting-rights> on what Congress could
do if the Supreme Court struck down section 5. My thinking was that such
a decision would be controversial and Republicans might jump at the
chance to fix the Act to improve their position with minority voters.
(It's a point I reaffirmed inthis NY Times oped
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html>.)
Symposium participants offered good ideas for improvements, and after
the decision Rick Pildes had an important post on increasing the use of
"bail in" <http://electionlawblog.org/?p=52349>as another alternative. I
noted in the Reuters piece that I did not expect a new coverage formula
to emerge, and one question would be whether a VRA fix would look more
like a race-based remedy or more like an election administration ("We've
got to fix that") remedy.
Today's hearing showed how far apart Democrats and Republicans are. The
Democrats seemed to be grandstanding (as when Sen. Durbin attacked ALEC)
or living in a different universe (as when Sen. Klobuchar asked
questions about same day voter registration). Sen. Whitehouse talked
about voter fraud as a non-existent problem. These are not the ways to
get at a bipartisan compromise on new VRA legislation.
Republicans in contrast, were mostly absent from the hearing. Sen.
Sessions, who questioned me (and others) so intently in 2006 when the
VRA was up for renewal, was absent today. Only Sens. Grassley and Cruz
asked questions. Sen. Grassley made it clear
<http://thinkprogress.org/justice/2013/07/17/2316941/top-gop-senator-says-voting-rights-act-should-be-held-hostage-to-protect-voter-id/>
that any new legislation should not regulate voter id. The Republicans'
main witness, Mike Carvin, pushed the idea
<http://judiciary.senate.gov/pdf/7-17-13CarvinTestimony.pdf> that
Section 2 of the VRA is enough to protect minority voting rights, an
idea that Sen. Cruz also pushed.
Let's be clear. Section 2 is no substitute for section 5. It has
virtually no teeth these days outside of the redistricting area (and
most areas that require redistricting under section 2 already have
been). It has not been used successfully go to after voter id, and it
would be hard to use it (given the statutory standard) to go after
problems with voter registration and long lines (an issue Carvin said
had nothing to do with racial discrimination or section 5.)
Even worse, if courts start reading section 2 more broadly to cover
things like voter id, then section 2 itself could be found by the
Roberts Court to be unconstitutional. This is not fanciful. I indicated
<http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>
the day /Shelby County/ came out that I expect section 2 and the section
203 to be the next line of attack for conservatives unhappy with
race-based legislation. As Sam Bagenstos noted
<https://twitter.com/sbagen/status/357567082902196225>, Mike Carvin has
already signed a brief <http://t.co/y83UebJ0qw> arguing section 2 is
unconstitutional. [*UPDATE:* I have heard from a knowledgeable reader
who says that this is not a fair characterization of the brief. I think
the brief intimates that section 2 is unconstitutional, but I see the
reader's point. I would love to get clarification from Carvin as to
whether he thinks section 2, as it currently is interpreted, is an
appropriate exercise of Congressional power to enforce the 14th and 15th
amendments.]
Republicans may claim section 2 is good enough but it does not
substitute for thebargaining chip
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/01/voting_rights_act_what_s_lost_if_the_supreme_court_kills_it.html>
for minority voters that was section 5.
If there seems to be little common ground in the Senate, there is even
less in the House. The first House hearing tomorrow will be chaired
<http://tv.msnbc.com/2013/07/15/republicans-hand-first-hearing-on-voting-rights-act-to-opponent-of-voting-rights-act/>by
one of the only members of Congress to vote against the 2006
reauthorization of the VRA. Democrats have done nothing so far to bring
other Republicans along, aside from Rep. Sensenbrenner, who was a key
player in the 2006 reauthorization. [*UPDATE*: Rep. Sensenbrenner must
be very disappointed that the Republican witnesses tomorrow
<http://electionlawblog.org/?p=53112> are Hans von Spakovsky and J.
Christian Adams, neither of whom are likely to support new vote
protections under a revised Voting Rights Act.]
In his excellent testimony
<http://judiciary.senate.gov/pdf/7-17-13LevittTestimony.pdf> today,
Justin Levitt noted that the VRA in the past had always had broad
support from strong bipartisan majorities. Unfortunately things have
changed. Partisanship in Congress is much worse than even in 2006.
Congress rarely can effectively respond t
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130190>o Supreme
Court rulings. When Congress does respond these days, it is usually when
one party has control of both Congress and the Presidency, not today's
conditions.
In the near term, a VRA fix seems unlikely. Today I miss Sen. Arlen
Specter, who in 2006 was the Senator most interested in looking for
bipartisan compromise on voting rights. Who will take his place now?
Senator Cruz? Senator Durbin?
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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>, The Voting Wars
<http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
Are George W. Bush and Barack Obama The Most Partisan Presidents in
Decades? <http://electionlawblog.org/?p=52969>
Posted on July 17, 2013 11:14 am <http://electionlawblog.org/?p=52969>
by Richard Pildes <http://electionlawblog.org/?author=7>
My answer is: of course not. But if you look at polling data, you
might answer yes. For they certainly appear to be the most /polarizing
/presidents in decades. That is, they do polarize citizens by the
latter's partisan affiliations more than any other presidents in decades.
The largest measured gap in, at least 50 years, between Republicans and
Democrats in their approval rating of the President occurred last year
for President Obama and in the final year of President Bush's second
term. In both, there was a massive 76 percentage point gap between how
much Republicans and Democrats approved of the President (10% of
Republicans approve Obama, eg, and 86% of Democrats do). Democrats
certainly thought President Bush was an extreme partisan; Republicans
certainly think the same of President Obama.
One possibility is that both these administrations were intrinsically,
through their actions and policies, in fact more extreme and more
partisan: that is, that the administrations themselves were/the cause/
of these historically remarkable partisan divides in evaluations of
presidential performance. But the deeper truth, I think, runs the other
way around: dramatic partisan differences in evaluating presidents is
/an effect/ of much larger structural forces that characterize the
political era of the last 15-20 years. In particular, the
hyperpolarized nature of the political parties and our political culture
that began in the 1980s and has been steadily increasing ever since
means that /perceptions /presidential performance simply are going to be
far more extreme and divided along partisan lines than in the past.
/Presidents themselves are trapped within these larger structural
forces. /Given the deeper structural environment of hyerpolarized
politics, Presidents simply are going to generate more dramatic partisan
differences in people's perceptions of presidential performance --- I'm
tempted to say regardless of what they actually do, but to be more
cautious, I'll just say these perceptions will only be partly influenced
by what Presidents actually do.
When Democrats were outraged by President George W. Bush's actions, it
was difficult to make this point (to Democrats). Now that Republicans
are equally outraged by President Obama's actions, perhaps it will be
easier to see that the pre-existing extreme partisanship of our era (in
the political parties, the fragmented media, and in our political
culture more generally) plays a major role in driving these
hyperpartisan assessments of presidential performance. New Presidents
come to Washington pledging and perhaps hoping to change that culture,
but because the causes are not the individual personalities of
particular Presidents, but the larger structural forces that fuel
polarization, Presidents cannot transform these deeper forces that
continue to create hyperpolarized modern politics.
I developed this argument in detail in /Why The Center Does Not Hold:
The Causes of Hyperpolarized Democracy in America
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295026&download=yes>.
/The specific data above come from a recent Ezra Klein story that I
linked to in a prior post <http://electionlawblog.org/?p=52919>. Here is
the key graphic from Ezra's story:
http://www.washingtonpost.com/blogs/wonkblog/files/2013/07/polarizing-presidents-graph.jpg
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Posted in political parties <http://electionlawblog.org/?cat=25>,
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"Exclusive: California Grand Jury Probing Shadowy Money Groups"
<http://electionlawblog.org/?p=53090>
Posted on July 17, 2013 10:58 am <http://electionlawblog.org/?p=53090>
by Rick Hasen <http://electionlawblog.org/?author=3>
/The Daily Beast/
<http://www.thedailybeast.com/articles/2013/07/17/exclusive-california-grand-jury-probing-shadowy-money-groups.html>reports
<http://www.thedailybeast.com/articles/2013/07/17/exclusive-california-grand-jury-probing-shadowy-money-groups.html>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
David Jefferson on College Vote Hack
<http://electionlawblog.org/?p=53082>
Posted on July 17, 2013 10:00 am <http://electionlawblog.org/?p=53082>
by Rick Hasen <http://electionlawblog.org/?author=3>
David Jefferson <https://www.verifiedvoting.org/author/david-jefferson/>
sends along these observation:
I just read Doug Chapin's article
<http://blog.lib.umn.edu/cspg/electionacademy/2013/07/cautionary_tale_student_gets_j.php>
on the vote rigging at Cal State San Marcos, and I would add several
observations. Had this been a public election conducted via
Internet voting, it would have been much more difficult to identify
any problem or to capture the perpetrator, Mr. Weaver.
Mr. Weaver was captured because he was voting from school-owned
computers. This was networked voting but not really Internet voting.
The IT staff was able to notice "unusual activity" on those
computers, and via remote access they were able to "watch the user
cast vote after vote". But in a public online election people would
vote from their own private PCs, and through the Internet, not on a
network controlled by the IT staff of election officials. There will
likely be no "unusual activity" to notice in real time, and no
possibility of "remote access" to allow them to monitor activity on
a voter's computer. Note also that university IT staff were able to
monitor him while he was voting, showing that they were able to
completely violate voting privacy, something we cannot tolerate in a
public election.
In the Cal State San Marcos election votes apparently had to be cast
from computers on the university's own network, and not from just
anywhere on the Internet. I infer this because it makes good
security sense, and because I cannot think of any other reason Mr.
Weaver would cast his phony votes from a university computer rather
than from an anonymous place like a public library. If this is
correct, it is a huge security advantage not possible in public
elections, where the perpetrator could be anywhere in the world.
Even if public officials somehow did notice an unusual voting
pattern that made them suspicious after the fact that phony votes
were cast, there would be no evidence to indicate who it was, and no
police on the spot to pick him up red handed.
Even with the restriction to voting on university-managed computers
Mr. Weaver could still have gotten away with his crime, but he made
several mistakes. He cast hundreds of phony votes one by one, in
person, while sitting at the keyboard of the computer. But if he had
been a programmer and been a little smarter he would have used one
of his captured passwords to log in as someone else, and then (as
that person) he could have run a program to automate the casting of
all of those phony votes, possibly even from other machines. He
could have scheduled the script to run an hour later when he was
long gone, and with a random delay between each cast vote so that
detection of a suspicious pattern would be less likely. The scheme
might still have been caught anyway, but there would have been no
technical evidence implicating Mr. Weaver.
When he was arrested Mr. Weaver was caught with very suspicious
hardware keylogging devices on his person that he had used to
capture people's passwords. Again, if he had been a little smarter,
he would have used one of his keylogging devices to capture the
password of a system administrator, and then used that password to
install keylogger software on other campus computers to capture the
students' passwords. Then he would not have had any hardware
keyloggers on him and would not have been tied to the crime that
way. Or if he had been able to capture a root password he might have
been able to use it to simply edit the database of recorded votes,
and not bothered with actually casting any phony votes.
Finally, we have to note that even though Mr. Weaver was caught,
there was apparently no way to know for certain (other than taking
his word for it) exactly which votes were the phony ones he cast.
They could not simply remove his votes from the count and let the
election be certified based on the remaining votes. They had to
cancel and re-run the entire election. Needless to say, this would
not be an easy option in a public election, which can only be
cancelled after the fact by a court after lawsuits and potential
appeals. The legal process in such a case would likely be a
protracted mess and permanently damage public confidence in
elections (again).
In the many debates on the subject of Internet voting it is
important not to allow anyone to use this Cal State San Marcos
student election experience to argue that online public elections
can be made safe because those who would cast phony votes will be
caught. Mr. Weaver's actions were detected because he was voting
from computers controlled by the university IT staff, and he was
identified and caught because he was not even minimally technically
skilled in the techniques that could have distanced him from the
crime. In a high stakes public election we will not be so lucky.
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Posted in internet voting <http://electionlawblog.org/?cat=49>, voting
technology <http://electionlawblog.org/?cat=40> | Comments Off
Justin Levitt, Mike Carvin, Luz Urbáez Weinberg Added to Today's
Senate Judiciary Committee Hearing on Shelby County
<http://electionlawblog.org/?p=53077>
Posted on July 17, 2013 9:05 am <http://electionlawblog.org/?p=53077> by
Rick Hasen <http://electionlawblog.org/?author=3>
Watch the webcast live
<http://www.judiciary.senate.gov/hearings/hearing.cfm?id=6ae289b2466e2489f90d6b42c9d8d78f>beginning
at 1 pm eastern.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | 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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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