[EL] ELB News and Commentary 6/28/13
Justin Levitt
levittj at lls.edu
Fri Jun 28 11:37:34 PDT 2013
Initiatives after Hollingsworth v. Perry
<http://electionlawblog.org/?p=52371>
Posted onJune 28, 2013 11:32 am
<http://electionlawblog.org/?p=52371>byJustin Levitt
<http://electionlawblog.org/?author=4>
There's quite a bit of coverage of /Perry/'s holding with respect to the
initiative process. A smattering:
*In California:*
LA Times: Prop. 8 ruling raises fears about effects on other initiatives
<http://www.latimes.com/news/local/la-me-gay-marriage-initiatives-20130628,0,3117108.story>Orange
County Register (editorial): Prop. 8 ruling blow to direct democracy
<http://www.ocregister.com/articles/state-514594-officials-california.html>
Sacramento Bee:Supreme Court gay marriage ruling raises questions for
California initiative process
<http://www.sacbee.com/2013/06/27/5530052/supreme-court-gay-marriage-ruling.html>
SF Chronicle: Some supporters of Prop. 8 ruling leery of impact on
initiatives
<http://blog.sfgate.com/nov05election/2013/06/28/some-supporters-of-prop-8-ruling-leery-of-impact-on-initiatives/>
and here: Did Jerry Brown, Kamala Harris "refuse to do their jobs"?
<http://blog.sfgate.com/nov05election/2013/06/27/did-jerry-brown-kamala-harris-refuse-to-do-their-jobs/>San
Jose Mercury-News: Marriage ruling raises ballot measure questions
<http://www.mercurynews.com/breaking-news/ci_23546383/marriage-ruling-raises-ballot-measure-questions>
<http://blog.sfgate.com/nov05election/2013/06/27/did-jerry-brown-kamala-harris-refuse-to-do-their-jobs/>Long
Beach Press-Telegram: Attorney: California ballot measure system may be
weaker after Prop. 8 ruling <http://www.presstelegram.com/ci_23542802>
*and beyond:*
Governing: What the Supreme Court's Prop. 8 Ruling Means for
Voter-Approved Laws
<http://www.governing.com/blogs/fedwatch/gov-what-the-supreme-courts-prop-8-standing-ruling-means.html>
Kevin Drum in Mother Jones: The Big Problem With the Supreme Court's
Prop. 8 Decision
<http://www.motherjones.com/kevin-drum/2013/06/supreme-court-prop-8-ruling-problem>Allysia
Finley in the Wall St. Journal: Democrats' Prop. 8 Veto
<http://online.wsj.com/article/SB10001424127887324328204578569430263679950.html>Scott
Shackford in Reason: How Concerned Should Ballot Initiative Lovers Be
About the Prop. 8 Punt?
<http://reason.com/blog/2013/06/27/how-concerned-should-ballot-initiative-l>
Joshua Spivak in The Week: How the Supreme Court Crippled Direct Democracy
<http://theweek.com/article/index/246292/how-the-supreme-court-crippled-direct-democracy>Tamara
Tabo in Above the Law: What's Horrible About Hollingsworth Is Horrible
for Us All
<http://abovethelaw.com/2013/06/whats-horrible-about-hollingsworth-is-horrible-for-us-all/>
(yes, Above the Law)
Paul Waldman in The American Prospect: Why the Prop. 8 Decision Should
Make Liberals Uneasy
<http://prospect.org/article/why-prop-8-decision-should-make-liberals-uneasy>
<http://reason.com/blog/2013/06/27/how-concerned-should-ballot-initiative-l>
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Posted invoter initiatives <http://electionlawblog.org/?cat=61>
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"Prop. 8 deserved a defense" <http://electionlawblog.org/?p=52368>
Posted onJune 28, 2013 10:50 am
<http://electionlawblog.org/?p=52368>byJustin Levitt
<http://electionlawblog.org/?author=4>
Erwin Chemerinsky'sthoughtful op-ed
<http://www.latimes.com/news/opinion/commentary/la-oe-chemerinsky-proposition-8-initiatives-20130628,0,3109622.story>discusses
ways for California (and other states) to defend public initiatives in
federal court.
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Posted invoter initiatives <http://electionlawblog.org/?cat=61>
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The Integrity of the SMOB <http://electionlawblog.org/?p=52366>
Posted onJune 28, 2013 10:50 am
<http://electionlawblog.org/?p=52366>byJustin Levitt
<http://electionlawblog.org/?author=4>
J.H. Sniderwrites about
<http://www.eyeonannapolis.net/2013/06/27/ensuring-integrity-for-student-election-to-the-board-of-education/>one
of the more unfortunate acronyms in the electoral world: the Student
Member of the Board (of Education) in some Maryland counties.
There are some tremendously interesting issues around the election
process for these positions that one of my students was investigating
last semester. I'm only aware of a few scattered counties where students
serve as full members of the board of education (often with some
distinct electoral rules), but would eagerly welcome readers' references
to others.
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Posted inUncategorized <http://electionlawblog.org/?cat=1> |Comments Off
Problems with data matching <http://electionlawblog.org/?p=52364>
Posted onJune 28, 2013 10:49 am
<http://electionlawblog.org/?p=52364>byJustin Levitt
<http://electionlawblog.org/?author=4>
This Miami report
<http://www.miamiherald.com/2013/06/27/3473419/dead-voter-who-was-sent-a-ballot.html>discusses
Belén Alvarez Vásquez, listed on the electoral rolls with the last name
of "Alvarez Vásquez" and on the records of deceased individuals with the
last name of "Vásquez."
Here, the mismatch failed to remove Alvarez Vásquez from the rolls when
she should have been removed; in other situations, similar mismatches
can cause registration forms to berejected incorrectly
<http://www.brennancenter.org/legal-work/washington-association-churches-v-reed>,
cause people to be unnecessarilysubject to stricter identification
requirements
<http://www.brennancenter.org/legal-work/florida-naacp-v-browning>, or
cause misunderstandings at the polling place (looking for a voter under
"V" when she's listed under "A").
The difficulties that name structures cause for matching in the
elections process is something I've been talking aboutfor a while now
<http://www.brennancenter.org/publication/making-list-database-matching-and-verification-processes-voter-registration>.
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Posted invoter registration <http://electionlawblog.org/?cat=37>
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"Sale of Voter Registration Data Raises Questions, Objections"
<http://electionlawblog.org/?p=52362>
Posted onJune 28, 2013 10:48 am
<http://electionlawblog.org/?p=52362>byJustin Levitt
<http://electionlawblog.org/?author=4>
A story discussingpermissible use of voter registration data
<http://www.nbcsandiego.com/news/politics/Sale-of-Voter-Registration-Data-Raises-Questions-Objections-213421531.html>in
California. Every state's laws are different:this study
<http://www.calvoter.org/issues/votprivacy/pub/voterprivacy/index.html>lays
out the basic landscape as of 2004, though use restrictions have since
changed in some places.
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Posted invoter registration <http://electionlawblog.org/?cat=37>
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"Louisiana's voter ID law from 1997 eases effects of Supreme Court
decision" <http://electionlawblog.org/?p=52360>
Posted onJune 28, 2013 10:47 am
<http://electionlawblog.org/?p=52360>byJustin Levitt
<http://electionlawblog.org/?author=4>
An interesting take
<http://thelensnola.org/2013/06/27/louisianas-voter-id-law-from-1997-eases-effects-of-supreme-court-decision/>on
the aftermath of/Shelby County/in Louisiana. Again, not all voter ID
laws are the same.
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Posted invoter id <http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15> |Comments Off
Everybody's playing the long game <http://electionlawblog.org/?p=52358>
Posted onJune 28, 2013 10:46 am
<http://electionlawblog.org/?p=52358>byJustin Levitt
<http://electionlawblog.org/?author=4>
Following the thrust ofRick Hasen's
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html?hp>commentary
<http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>on/Shelby
County/, Adam Liptakdiscusses the gestation period
<http://www.nytimes.com/2013/06/28/us/politics/roberts-plays-a-long-game.html>of
the Court's jurisprudence.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15> |Comments Off
Still more reactions to Shelby County
<http://electionlawblog.org/?p=52356>
Posted onJune 28, 2013 10:46 am
<http://electionlawblog.org/?p=52356>byJustin Levitt
<http://electionlawblog.org/?author=4>
Jessica Levinson:Who's Killing the Voting Rights Act, Congress or the
Supreme Court?
<http://www.psmag.com/politics/whos-killing-the-voting-rights-act-congress-or-the-supreme-court-61351/>Janai
Nelson: The cost of America's first black president
<http://blogs.reuters.com/great-debate/2013/06/28/the-cost-of-americas-first-black-president/>David
Dante Troutt: The Supreme Court's race impatience
<http://blogs.reuters.com/great-debate/2013/06/28/the-supreme-courts-race-impatience/>
David and Janai's pieces are both in the excellent Reuters "Great Debate
<http://blogs.reuters.com/great-debate>" forum.
Pat Buchanan:Does the South Belong in the Union?
<http://www.humanevents.com/2013/06/28/does-the-south-belong-in-the-union/>
Mary Curtis:The Supreme Court's post-racial fantasy
<http://www.washingtonpost.com/blogs/she-the-people/wp/2013/06/27/the-supreme-courts-post-racial-fantasy/>
Stephen Henderson:Fifty year solution can't cure 100 year problem
<http://www.usatoday.com/story/opinion/2013/06/27/voting-rights-act-supreme-court-column/2463437/>
Sherrilyn Ifill:Momentous week leaves voting rights in tatters
<http://www.politico.com/story/2013/06/voting-rights-act-naacp-93518.html>
Cal Thomas:Supreme Court has reexamined Voting Rights Act, now it must
look at Roe v. Wade
<http://www.foxnews.com/opinion/2013/06/27/supreme-court-has-reexamined-voting-rights-act-now-it-must-look-at-roe-v-wade/>
Cliff Woodards II:Obama mute on voting rights
<http://www.detroitnews.com/article/20130627/OPINION01/306270020/Obama-mute-voting-rights>
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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Reactions to Shelby County: Sam Issacharoff
<http://electionlawblog.org/?p=52354>
Posted onJune 28, 2013 10:41 am
<http://electionlawblog.org/?p=52354>byJustin Levitt
<http://electionlawblog.org/?author=4>
Sam offers hissuggestions for a way forward
<http://www.newrepublic.com/article/113672/voting-rights-act-overturned-how-still-fight-voter-discrimination> after
Shelby County, in the New Republic. The operative nub:
A new Elections Clause approach would forgo the attempt to freeze
the status quo by forcing prior federal approval. Instead Congress
could create a system of disclosure, as under the securities laws,
making sure that all changes in voting practices for federal
elections are recorded electronically with a suitable federal
agency. States could implement the change after having some state
official attest to why it was needed, and what would be its likely
impact on voter registration, turnout, or ease of administration.
This would force transparency and accountability on administrative
conduct prompted by partisan or other malevolent objectives.
Far more (and eloquently expressed)here
<http://www.newrepublic.com/article/113672/voting-rights-act-overturned-how-still-fight-voter-discrimination>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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One Easy, But Powerful, Way to Amend the VRA
<http://electionlawblog.org/?p=52349>
Posted onJune 28, 2013 6:53 am
<http://electionlawblog.org/?p=52349>byRichard Pildes
<http://electionlawblog.org/?author=7>
There have always been two ways that areas could be put under the
obligation to pre-clear their voting changes. The major way was through
the formula set by statute, Section 4, that the Court has now struck
down. The second route was through Section 3 (known as "the pocket
trigger" or the "bail-in" provision). In response to a court finding of
a specific constitutional violation of voting rights, Section 3 gives
courts the power to order a jurisdiction to start pre-clearing its
voting changes for a period of time. I have mentioned this before,
along with others, but I want to elaborate on the details.
The structure of Section 3 has certain innately attractive features.
First, Section 3 contains a lot of flexibility that can be tailored to
the specific issues in specific places. Courts can --- and have ---
ordered jurisdictions to pre-clear their changes for a defined, limited
period of time, rather than indefinitely. For example, after New
Mexico's 1980 redistricting was found to be unconstitutional, the
federal courts ordered New Mexico to pre-clear its redistricting plan
for the next decade. After a decade, the courts then decided that New
Mexico no longer needed to remain in the pre-clearance regime. Second,
Section 3 permits the courts to target the pre-clearance obligation to
the specific kinds of voting violations that have been found. Thus, if
the only problem a state has been found to have involves redistricting,
the courts can require that the state's subsequent redistricting plan be
pre-cleared, but not that all sorts of other voting changes --- which
have never been a problem --- also get pre-cleared.
Second, for those members of Congress who are distrustful of the
Department of Justice, the federal courts, not DOJ, are the entities in
charge of pre-clearance review under Section 3. And third, most
obviously, the Section 3 regime directly addresses the constitutional
issues in the Court's recent decision because pre-clearance is directly
tied to recent, specific findings of the violation of voting rights.
To be made more effective, Section 3 could be modified in relatively
straightforward ways on substance and process. On the former, because
Section 3 still reflects its origins in 1965, it was designed to come
into play only when there were court findings of "intentional
discrimination" that violate the 14th or 15th amendments. Section 3
could be amended to include violations of the Voting Rights Act itself;
Congress could also include significant violations of the other federal
statutes to protect the right to vote that have been enacted since 1965,
including the Motor Voter Registration Act and the Help America Vote
Act. In addition, Section 3 should simply include any violation of the
14th and 15th Amendments with respect to voting rights. Since 1965, the
Supreme Court has recognized in many contexts that the right to vote can
be constitutionally violated even without intentional discrimination
being found. Courts have varied thus far in whether they have required
repeated violations of a single violation as sufficient to put an area
under judicial pre-clearance.
Proceduraly, it's not clear to me whether DOJ (or any "aggrieved
person," in Section 3?s language) can go into court today and institute
a direct proceeding under Section 3 and ask for a jurisdiction now to be
put under judicial pre-clearance because of violations found in past
cases. Current Section 3 might be taken to mean that in an existing
proceeding in which a violation is found, then as a remedy for that
violation, the courts can require future judicial pre-clearance.
Why do I call this an "easy" change. On the policy side, it does not
require dealing with all the complexities of crafting a new coverage
formula. It is a discrete, targeted amendment that requires amending
just a few phrases of the text of existing Section 3. And I don't see
any constitutional obstacles, if such an amendment were adopted.
On the political side, the question is easy compared to what? I don't
claim any expertise in the congressional political process; and I don't
mean to say it would be obviously "easy" to get Congress to agree to
this. But the complexity of working through Section 4 is that it
requires putting into a statute a formula that picks out in advance the
areas that should be covered. Because Section 3 responds flexibly to
actual recent violations, perhaps there is a path forward through this
route.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>,Voting Rights
Act <http://electionlawblog.org/?cat=15> |Comments Off
Historical Quote of the Day or Why the Roberts Court's Election Law
Jurisprudence is Unsurprising <http://electionlawblog.org/?p=52346>
Posted onJune 27, 2013 7:44 pm
<http://electionlawblog.org/?p=52346>byRick Hasen
<http://electionlawblog.org/?author=3>
"The result is that 5-10 years from now, the ground rules for American
political competition could undergo a major change. Within the next
decade, we could well see deregulation of campaign financing, a limiting
of Congressional power to impose national solutions to problems of
minority voting rights, and an upholding of state power to redistrict
for partisan gain and impose increasingly draconian election
administration tools enacted in the name of fraud prevention. The
ability of states to manipulate election rules for partisan gain may
present the greatest danger, as the Court exits from that corner of the
political thicket. For those who look to courts for the promotion of
political equality, the signs are not encouraging."
---Rick Hasen <http://electionlawblog.org/archives/004465.html>,No Exit?
The Roberts Court and the Future of Election Law
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850544>,/South
Carolina Law Review /(2006)
No one should be shocked that having a majority of conservative Justices
on the Supreme Court makes a difference in the election law field. It is
a natural development.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29> |Comments Off
A new electionlineWeekly <http://electionlawblog.org/?p=52344>
Posted onJune 27, 2013 5:52 pm
<http://electionlawblog.org/?p=52344>byJustin Levitt
<http://electionlawblog.org/?author=4>
Leading offthis week's electionline
<http://www.electionline.org/index.php/electionline-weekly>, Doug Chapin
issues a call to arms:
I won't pretend to provide any kind of cogent legal analysis of the
/Shelby County/ decision, which is fascinating on so many levels;
for that, you should check out SCOTUSBlog
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>, ElectionLawBlog
<http://electionlawblog.org/> or the coverage at the New York Times
<http://projects.nytimes.com/live-dashboard/2013-06-25-supreme-court>.
But I do think the decision represents a challenging opportunity for
the hardy band of practitioners, academics and advocates who
constitute the group I call election geeks...
Onward, hardy band, onward. Morehere
<http://www.electionline.org/index.php/electionline-weekly>.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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