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

Mon Jun 17 15:48:35 PDT 2013

I think it's a "nice question" as to how much the APA requirements apply
where there is, in effect, no agency to which you can appeal.  But I agree
AZ would be well advised to go through some motions.

On Mon, Jun 17, 2013 at 6:29 PM, Pildes, Rick
<pildesr at exchange.law.nyu.edu>wrote:

>  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>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
>> PO Box 470296, San Francisco Ca 94147
>>
>> --- On *Mon, 6/17/13, Marty Lederman <lederman.marty at gmail.com>* wrote:
>>
>>
>> From: Marty Lederman <lederman.marty at gmail.com>
>> Subject: Re: [EL] will today's decisoin revive the EAC?
>> To: "Rick Hasen" <rhasen at law.uci.edu>
>> Cc: richardwinger at yahoo.com, 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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>>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.edu <http://mc/compose?to=rhasen@law.uci.edu>http://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>>
>>
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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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>
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