[EL] will today's decision revive the EAC?

[Pildes, Rick]

I think if AZ tries to go directly into federal court and bypayss the EAC, the federal courts will dismiss the suit and require AZ first to seek relief before the EAC.  You have to show a high level of futility before you can bypass an agency that has authority over the issue; the Court's opinion clearly contemplates a renewed effort in the EAC first.  And even after that, if the EAC fails to act, it might well be that federal courts will first issue a mandamus to require the EAC to act before deciding to take on the substantive issue themselves.

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So., NYC, NY 10014
212 998-6377


________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, June 17, 2013 6:03 PM
To: Marty Lederman
Cc: law-election at uci.edu
Subject: Re: [EL] will today's decision revive the EAC?

But the point, in relation to Richard's initial question (why not revive the EAC?), is that Arizona doesn't need the EAC to make that call---it can take the issue to court, where it would probably end up anyway even if there were a quorum at the EAC to decide the question.

On 6/17/13 3:01 PM, Marty Lederman wrote:
Agreed -- the test won't be "anything AZ wants."  The most obvious question left open (deliberately) is what the showing has to be.  I wrote this:  Notably, the Court does not resolve what sort of showing Arizona would have to make to demonstrate that the "mere oath" does not "suffice," other than to say that Arizona must be able to obtain "the information necessary to enforce its voter qualifications."

On Mon, Jun 17, 2013 at 5:57 PM, Richard Winger <richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>> wrote:
It seems to me Arizona couldn't win a court case to force the EAC staff let Arizona amend the federal form that is used inside Arizona, without proving to the court that there is a real, genuine need for the Arizona questions.

If Arizona can do anything it wants, it could theoretically require voters using the federal form to attach a certified copy of a birth certificate or a certificate of naturalization.  Even Arizona doesn't seem to want that much documentation.  If Arizona could do anything it wants, it might say it is worried that under-age individuals are registering to vote, and therefore it needs to see every applicant's birth certificate.  If it doesn't want ex-felons to register, theoretically it could even demand that the applicant produce a report from law enforcement agencies testifying that the applicant has no record of a felony conviction.  There surely are limits.

Richard Winger
415-922-9779<tel:415-922-9779>
PO Box 470296, San Francisco Ca 94147

--- On Mon, 6/17/13, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

From: Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>>
Subject: Re: [EL] will today's decisoin revive the EAC?
To: "Rick Hasen" <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>, law-election at uci.edu<mailto:law-election at uci.edu>
Date: Monday, June 17, 2013, 2:45 PM

"the court will simply order EAC employees to accommodate Arizona on the federal form'

or, as the footnote suggests, if the court can't mandamus the EAC employees, it might simply declare that Arizona can deny registration absent further proof of citizenship, Federal Form notwithstanding.

On Mon, Jun 17, 2013 at 5:40 PM, Rick Hasen <rhasen at law.uci.edu<http://mc/compose?to=rhasen@law.uci.edu>> wrote:
I don't see that Richard.  That would just delay things in the Arizona case.  Now Arizona can go to court and demand that the EAC act.  When it can't because of the lack of a quorum to act, the court will simply order EAC employees to accommodate Arizona on the federal form.

More broadly, the Republicans I've spoken who oppose the EAC see it as a failed agency that does the bidding of Democrats.  So why revive it for a single case?



On 6/17/13 2:37 PM, Richard Winger wrote:
Maybe Republicans in Congress will now want to see the EAC in operation?  I would expect at least Arizona's Republican members of Congress would favor that.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147



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Chancellor's Professor of Law and Political Science
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Irvine, CA 92697-8000
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949.824.0495 - fax
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