[EL] ELB News and Commentary 7/25/13

Thu Jul 25 09:25:22 PDT 2013

    Why AG Holder's Decision to "Bail In" Texas Under the Voting Rights
    Act is a Big Deal, Legally and Legislatively, Post-Shelby County
    <http://electionlawblog.org/?p=53425>

Posted on July 25, 2013 9:03 am <http://electionlawblog.org/?p=53425> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Today's 
<http://www.nytimes.com/2013/07/26/us/holder-wants-texas-to-clear-voting-changes-with-the-us.html?pagewanted=2&_r=0&hp&pagewanted=all>news 
<http://www.nytimes.com/2013/07/26/us/holder-wants-texas-to-clear-voting-changes-with-the-us.html?pagewanted=2&_r=0&hp&pagewanted=all>that 
the United States Department of Justice will be asking a three-judge 
federal court in San Antonio to "bail in" Texas for coverage under 
section 5 of the Voting Rights Act is a big deal on a few fronts. It 
means that DOJ is going to move aggressively to try to restore what it 
can of the preclearance regime the Supreme Court effectively 
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html> 
gutted <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>in 
its /Shelby County/ decision 
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>. Covering 
Texas would be a big deal, but it is nowhere near what existed before 
/Shelby County/.  If the three-judge court goes along, the issue could 
well end up back before the Supreme Court, perhaps even this coming 
term, to possibly kill what remains 
<http://www.scotusblog.com/2013/07/preclearance-sought-for-texas-on-voting/#more-167760> 
of preclearance.

It is also a big deal legislatively: no matter what happens with 
bail-in, it makes the chances of Congress passing a new coverage formula 
even less than they've been. Opponents of a new coverage formula will 
argue that the bail-in possiblity shows the new coverage formula is no 
longer necessary (either because Texas's coverage shows that bail in is 
enough, or the Court's refusal to cover shows that blanket coverage is 
not necessary, if it is not even required for a state to have engaged in 
recent racial discrimination in its voting rules like Texas).

The rest of this post spells this out in more detail.

Before /Shelby County/, jurisdictions with a history of racial 
discrimination in voting (mostly, but not only, in the South) had to get 
DOJ or federal court permission before making any changes in their 
voting rules or practices---anything as big as redistricting and 
anything as small as moving a polling place across the street. In 
/Shelby County/, the Court said that the formula used to decide which 
jurisdictions had to be covered under the preclearance regime was 
unconstitutional.  (Its reasoning was convoluted 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>, but 
essentially this exceeded congress's 15th amendment power and violated 
the Tenth Amendment's protection of state sovereignty because the 
coverage formula was not tied to current conditions in the states.)

The effect of the Shelby County ruling has been immediate.  I just wrote 
yesterday in /The Daily Beast/ about how North Carolina 
<http://www.thedailybeast.com/articles/2013/07/24/will-the-gop-s-north-carolina-end-run-backfire.html>is 
poised to enact some of the very toughest voting laws in the 
country--laws which never would have gotten preclearance before Shelby 
County (40 of North Carolina's counties are covered by the Act). Florida 
<http://talkingpointsmemo.com/news/florida-to-resume-voter-purge-following-supreme-court-vra-ruling.php?ref=fpa> 
is now restarting its vote purges and Texas wants to get its very strict 
voter id law in place for the next election---a law that a lower court 
had blocked under Section 5.

What AG Holder did today was seek to take advantage of section 3 of the 
Voting Rights Act, the so called "bail in" or "pocket trigger" 
provision.  Here's the standard:

    If in any proceeding instituted by the Attorney General or an
    aggrieved person under any statute to enforce the voting guarantees
    of the fourteenth or fifteenth amendment in any state or political
    subdivision the court finds that violations of the fourteenth or
    fifteenth amendment justifying equitable relief have occurred within
    the territory of such a state or political subdivision, the court,
    in addition to such relief as it may grant, shall retain
    jurisdiction for such a period as it may deem appropriate and during
    such period no voting qualification or prerequisite to voting or
    standard, practice, or procedure with respect to voting different
    from that in force or effect at the time the proceeding was
    commenced shall be enforced unless and until the court finds that
    such qualification, prerequisite, standard, practice, or procedure
    does not have the purpose and will not have the effect of denying or
    abridging the right to vote on account of race or color, or in
    contravention of the voting guarantees set forth in section
    1973b(f)(2) of this title: Provided, that such qualification,
    prerequisite, standard, practice, or procedure may be enforced if
    the qualification, prerequisite, standard, practice, or procedure
    has been submitted by the chief legal officer or other appropriate
    official of such State or subdivision to the Attorney General and
    the Attorney General has not interposed an objection within sixty
    days after such submission, except that neither the court's finding
    nor the Attorney General's failure to object shall bar a subsequent
    action to enjoin enforcement of such qualification, prerequisite,
    standard, practice or procedure.

  Travis Crum has a great Yale LJ 
<http://www.yalelawjournal.org/images/pdfs/895.pdf>note spelling this 
all out. The point is that there has to be a finding of intentional 
discrimination to allow for bail in (although Crumhas proposed 
<http://electionlawblog.org/?p=52659> a broader effects test, one which 
raises some constitutional issues). So there's no way this is a 
substitute for section. Section 5 applied to all jurisdictions which 
were covered for all voting changes. This is a clunky way to cover only 
a subset of jurisdictions found to be intentionally discriminating---a 
tough legal standard to prove.  And courts have discretion to grant or 
not grant bail-in, and to fashion the remedy as it sees fit.  With lots 
of the worst racial discrimination in voting taking place on the local 
level, bail-in is no substitute for the old preclearance regime.

But bail-in is a lot better than nothing. It could stop Texas's very 
tough voter id law, which would require people without id to travel up 
to 125 miles each way at their own expense to get an id.  Student ids 
are not allowed but concealed weapons permits are.  You get the idea.

DOJ doing this shows it will be aggressive in enforcing voting rights.  
But if DOJ gets bail in, it seems pretty clear, as Lyle Denniston 
<http://www.scotusblog.com/2013/07/preclearance-sought-for-texas-on-voting/#more-167760> 
has shown, that Texas will attack this in court, likely ending up at the 
U.S. Supreme Court if the lower court grants bail in. It will be an 
interesting choice for Justice Kennedy as to what to do in a case where 
equal sovereignty is violated, but upon proof of intentional 
discrimination in voting.

Which brings us to Congress. I had believed 
<http://blogs.reuters.com/great-debate/2013/01/30/if-the-court-strikes-section-5-of-voting-rights-act/> 
that there was a window where Republicans in Congress, seeing public 
reaction against the /Shelby County/ case, would want to do something to 
fix the Voting Rights Act to appeal to Latino voters. The House and 
Senate hearings last week made me much more pessimistic 
<http://electionlawblog.org/?p=53094> that Republicans are poised to do 
anything to create a new coverage formula and preclearance regime.

DOJ's move on bail-in is going to be used by opponents of a new coverage 
formula. As noted above, opponents of a new coverage formula will argue 
that the bail-in possiblity shows the new coverage formula is no longer 
necessary (either because Texas's coverage shows that bail in is enough, 
or the Court's refusal to cover shows that blanket coverage is not 
necessary, if it is not even required for a state to have engaged in 
recent racial discrimination in its voting rules like Texas).

AG Holder likely knows this. So I think they've made the calculation 
that nothing serious is going to come out of Congress, so they might as 
well go for broke on bail-in.

This will be an interesting few months. You can watch all the twists and 
turns in the Texas bail in matter at Texas Redistricting. 
<http://txredistricting.org/>  And I'll have broader coverage and 
commentary here.

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    Thanks to SCOTUSBlog <http://electionlawblog.org/?p=53423>

Posted on July 25, 2013 8:54 am <http://electionlawblog.org/?p=53423> by 
Rick Hasen <http://electionlawblog.org/?author=3>

...for making my Daily Beast piece, Will the GOP's North Carolina End 
Run Backfire? 
<http://www.thedailybeast.com/articles/2013/07/24/will-the-gop-s-north-carolina-end-run-backfire.html>(on 
life after /Shelby County/), its Link of the Day 
<https://twitter.com/SCOTUSblog/status/360386556198006787>.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    Claim of Dead Voters Voting in South Carolina Gets Four Pinnochios
    from WaPo's Fact Checker <http://electionlawblog.org/?p=53420>

Posted on July 25, 2013 8:49 am <http://electionlawblog.org/?p=53420> by 
Rick Hasen <http://electionlawblog.org/?author=3>

See here 
<http://www.washingtonpost.com/blogs/fact-checker/post/the-case-of-zombie-voters-in-south-carolina/2013/07/24/86de3c64-f403-11e2-aa2e-4088616498b4_blog.html?hpid=z4>.

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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off

    "Florida To Resume Voter Purge Following Supreme Court VRA Ruling"
    <http://electionlawblog.org/?p=53417>

Posted on July 25, 2013 8:45 am <http://electionlawblog.org/?p=53417> by 
Rick Hasen <http://electionlawblog.org/?author=3>

AP reports 
<http://talkingpointsmemo.com/news/florida-to-resume-voter-purge-following-supreme-court-vra-ruling.php?ref=fpa>.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter 
registration <http://electionlawblog.org/?cat=37>, Voting Rights Act 
<http://electionlawblog.org/?cat=15> | Comments Off

    "North Carolina First to Toughen Voting Laws After Ruling"
    <http://electionlawblog.org/?p=53415>

Posted on July 25, 2013 8:45 am <http://electionlawblog.org/?p=53415> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bloomberg reports 
<http://www.bloomberg.com/news/2013-07-25/north-carolina-first-to-weight-voting-laws-after-ruling.html?alcmpid=politics>.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "Brooklyn Republican Chief: Why Did Board Of Elections Shred My
    Supporters' Petitions?" <http://electionlawblog.org/?p=53413>

Posted on July 25, 2013 8:43 am <http://electionlawblog.org/?p=53413> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Another Really? 
<http://www.nydailynews.com/blogs/dailypolitics/2013/07/brooklyn-republican-chief-why-did-board-of-elections-workers-shred-my-supporte>

And of course a rich history <http://electionlawblog.org/?p=19560>of 
chicanery in Brooklyn (my birthplace---hi P.S. 206!).

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Posted in chicanery <http://electionlawblog.org/?cat=12> | Comments Off

    Two from Josh Douglas <http://electionlawblog.org/?p=53411>

Posted on July 25, 2013 8:40 am <http://electionlawblog.org/?p=53411> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Shelby County and Facial vs. As-applied Challenges: The Court's Move to 
Enhance the Authority of States to Run Elections 
<http://prawfsblawg.blogs.com/prawfsblawg/2013/07/shelby-county-and-facial-vs-as-applied-challenges-the-courts-move-to-enhance-the-authority-of-states.html>

and

The Voting Rights Act --- North Carolina Voter Suppression Edition 
<http://prawfsblawg.blogs.com/prawfsblawg/2013/07/the-voting-rights-act-north-carolina-voter-suppression-edition.html>

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    Arrest Warrant Issued for Distributing Anonymous Campaign Flyer in
    Rhode Island <http://electionlawblog.org/?p=53409>

Posted on July 25, 2013 8:37 am <http://electionlawblog.org/?p=53409> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Really 
<http://news.providencejournal.com/breaking-news/2013/03/smithfield-police-get-warrant-to-arrest-democratic-campaign-consultant.html>. 
More here <http://www.anchorrising.com/barnacles/015240.html>.

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Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery 
<http://electionlawblog.org/?cat=12> | Comments Off

    "Super PACs swarming New Jersey special election"
    <http://electionlawblog.org/?p=53407>

Posted on July 25, 2013 8:35 am <http://electionlawblog.org/?p=53407> by 
Rick Hasen <http://electionlawblog.org/?author=3>

CPI reports. 
<http://www.publicintegrity.org/2013/07/24/13046/super-pacs-swarming-new-jersey-special-election>

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "AZ Supreme Court opts not to hear campaign finance issue"
    <http://electionlawblog.org/?p=53405>

Posted on July 25, 2013 8:32 am <http://electionlawblog.org/?p=53405> by 
Rick Hasen <http://electionlawblog.org/?author=3>

East Valley Tribune 
<http://www.eastvalleytribune.com/arizona/politics/article_b59dc1fc-f47e-11e2-bda5-0019bb2963f4.html>:

    The Arizona Supreme Court refused Tuesday to step into the fight
    over whether legislators broke the law by sharply increasing how
    much candidates can take from private donors and special interests.

    In a brief order, the justices rejected a bid by challengers to
    immediately take up the issue. They gave no reason for the ruling.

    The move does not mean the challengers have lost. Instead it simply
    means they need to make their case first to a trial judge. And
    whatever that judge rules likely eventually will wind up before the
    high court --- though that could take months or longer.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "Arguing about section 3 in the Texas redistricting case"
    <http://electionlawblog.org/?p=53402>

Posted on July 24, 2013 7:48 pm <http://electionlawblog.org/?p=53402> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Important post at Texas Redistricting 
<http://txredistricting.org/post/56388237533/arguing-about-section-3-in-the-texas-redistricting-case>.

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Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "FEC Nominees Backed at Senate Hearing; Timing of Confirmation Vote
    Still Uncertain" <http://electionlawblog.org/?p=53400>

Posted on July 24, 2013 7:47 pm <http://electionlawblog.org/?p=53400> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bloomberg BNA 
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=33199821&vname=mpebulallissues&jd=a0e0c4x5a0&split=0>:

    Democrats and Republicans on the Senate Rules and Administration
    Committee expressed support at a confirmation hearing July 24 for
    two new nominees for the Federal Election Commission, though it
    remained unclear how quickly the nominees---Ann Ravel and Lee
    Goodman---would receive a confirmation vote in the Senate.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal 
election commission <http://electionlawblog.org/?cat=24> | Comments Off

    Don't Miss Linda Greenhouse on the Chief, the Job of a Justice and
    Judicial Minimalism <http://electionlawblog.org/?p=53397>

Posted on July 24, 2013 7:41 pm <http://electionlawblog.org/?p=53397> by 
Rick Hasen <http://electionlawblog.org/?author=3>

NYT Opinionator: 
<http://opinionator.blogs.nytimes.com/2013/07/24/justices-on-the-job/?ref=opinion>

    I think the chief justice is saying that there's a disconnect
    between what people seem to want from the Supreme Court -- answers
    to the country's most profound questions -- and what the current
    crop of justices has been trained and selected for -- namely,
    delivering small-bore answers. If you want something more from us, I
    hear him as implying, then maybe we're not the justices for you.

    If that was his point, it's easy to find something disingenuous in
    it. The court, after all, voluntarily undertook to decide the cases
    that made the June headlines. No one made the justices do it. Maybe
    the chief justice thought he was doing something minimalist in his
    majority opinion in Shelby County v. Holder, which had the effect of
    gutting the Voting Rights Act. But that's certainly not how the
    decision was received, either by those who deplored it or those who,
    like Attorney General Greg Abbott of Texas, received it with glee.

    Could Chief Justice Roberts be saying that the minimalist mantra he
    invoked, at his 2005 confirmation hearing and since, is not adequate
    to the task? Is minimalism the light that failed? Don't forget that
    this is the chief justice who just a year ago, contravening his own
    policy preferences and constitutional vision, saved the Affordable
    Care Act. He took a minimalist route then, construing the
    health-care mandate's penalty provision as a tax rather than
    following his initial inclination to strike it down as exceeding
    Congress's Commerce Clause authority.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "Electoral College Halfway Fixed!"
    <http://electionlawblog.org/?p=53394>

Posted on July 24, 2013 4:49 pm <http://electionlawblog.org/?p=53394> by 
Rick Hasen <http://electionlawblog.org/?author=3>

The second half 
<http://www.newyorker.com/online/blogs/hendrikhertzberg/2013/07/national-popular-vote-electoral-college-halfway-fixed.html>will 
be tougher.

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Posted in electoral college <http://electionlawblog.org/?cat=44> | 
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    The Hulk Can't Make Contributions to Federal Candidates But Iron Man
    Can <http://electionlawblog.org/?p=53392>

Posted on July 24, 2013 4:48 pm <http://electionlawblog.org/?p=53392> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Zac Morgan and Joe Trotter investigate 
<http://dailycaller.com/2013/07/24/avengers-of-the-campaign-finance/>.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, 
election law "humor" <http://electionlawblog.org/?cat=52> | Comments Off

    "Two FEC Nominees Receive Senate Hearing With Little Partisan
    Rancor" <http://electionlawblog.org/?p=53389>

Posted on July 24, 2013 11:49 am <http://electionlawblog.org/?p=53389> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Paul Blumenthal reports 
<http://www.huffingtonpost.com/2013/07/24/fec-nominees_n_3644583.html?1374684630> 
for HuffPo.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal 
election commission <http://electionlawblog.org/?cat=24> | Comments Off

    "Will the GOP's North Carolina End Run Backfire?"
    <http://electionlawblog.org/?p=53385>

Posted on July 24, 2013 10:28 am <http://electionlawblog.org/?p=53385> 
by Rick Hasen <http://electionlawblog.org/?author=3>

I've just written this piece 
<http://www.thedailybeast.com/articles/2013/07/24/will-the-gop-s-north-carolina-end-run-backfire.html> 
for /The Daily Beast/ about proposed tough new voting legislation in 
North Carolina.  It begins:

    Anyone wondering about the importance of the Supreme Court's recent
    ruling <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>
    hobbling
    <http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html?_r=0>
    a key part of the Voting Rights Act needs look no further than North
    Carolina, whose Republican legislature is poised to enact
    <http://www.thenation.com/blog/175395/north-carolina-republicans-push-extreme-voter-suppression-measures#axzz2Zu4sis6p>
    one of the strictest voting laws
    <http://www.wral.com/elections-changes-advance-in-senate/12693772/>
    in the Nation, one which will make it harder to register and vote,
    likely hurting minority voters most. North Carolina is making it
    harder to vote now because it can, but recent experience in Florida
    and elsewhere shows it is a decision North Carolina Republicans may
    come to regret.

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    "Pew: SCOTUS Popularity Plummets Among Blacks Following VRA
    Decision" <http://electionlawblog.org/?p=53382>

Posted on July 24, 2013 9:16 am <http://electionlawblog.org/?p=53382> by 
Rick Hasen <http://electionlawblog.org/?author=3>

TPM reports 
<http://livewire.talkingpointsmemo.com/entry/pew-scotus-popularity-plummets-among-blacks-following-vra>.

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "What's the Matter With North Carolina?"
    <http://electionlawblog.org/?p=53379>

Posted on July 24, 2013 9:01 am <http://electionlawblog.org/?p=53379> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Dahlia Lithwick writes 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/north_carolina_s_voter_id_law_is_the_worst_in_the_country.html>for 
Slate.

My own piece about North Carolina will be posting soon.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
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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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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