[EL] Sleeper Case of the Year

[Michael McDonald]

Perhaps a ruling could be narrowly tailored to the Arizona circumstances,
but I think Rick is right that a ruling in favor of Arizona could have some
deep and perhaps unintended consequences. Here is my (partial) list of
federal election regulations that would be at risk to litigation on a
similar tack:

VRA: Section 2, Section 5, prohibition on literacy tests, no more than 30
day voter registration requirements, presidential ballots
NVRA: distribution of voter registration forms, local jurisdiction portable
voter registration, voter registration purging regulations
HAVA: statewide voter registration databases, provisional ballots
MOVE: ballot issuance requirements for military and overseas voters
(electronic ballot delivery, 45 day deadline)
Rick points out single-member congressional districts, to which I will add
at-large districts required if a state fails to redistrict when seats change
due to apportionment

On perhaps the more fanciful side:
All federal campaign finance regulation if a state passes a law at odds with
federal law
Ability for Congress to adjudicate election contests (not something we've
seen successful recently)

I predict voter registration purging regulations would be the first to be
attacked if the Court finds in favor of Arizona, followed by provisional
ballots once we get closer to the 2014 election. Current members of the
House will not want to change the single-member districts that they are
elected from, so that would likely not be on the menu (sorry Rob).

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob
Richie
Sent: Sunday, March 17, 2013 11:58 AM
To: law-election at uci.edu
Subject: Re: [EL] Sleeper Case of the Year

For some of us, this discussion underscores the value of providing
affirmative constitutional guarantees of the right to vote, given the kind
of strict scrutiny protection provided to freedoms in the Bill of Rights.
Frankly, I'm not keen on either the federal government or state governments
having unchecked power to manipulate voting rules. 

So stay tuned for new legislation establishing an affirmative right to vote
in the Constitution, as done in most states and most other nation's
constitutions.

Rick's example of the federal mandate on states to draw single member
districts is an interesting one for showing how federal mandates can
backfire. Single-member districts today result in a severe partisan bias due
to where Republican-leaning and Democratic-leaning voters lives -- one
that's grounded in districting more than redistricting. The best guess is
that for Democrats to win even half the House seats in 2014, they will need
a national advantage in two-party preference of more than 55% to 45% -
-something we haven't seen in House elections in a very long time.

As structured, the single member district mandate creates a perfect storm
for partisans. The federal government mandates districting every 10 years,
but sets few limits on how those district lines can be drawn, thereby giving
a blank check to state partisans to try to increase their advantages. Single
member district mandates also virtually guarantee that most of us will live
in districts with partisan tilts large enough ttat there is no hope of party
change or even a competitive race for a decade.

We've crafted legislation for an independent redistricting commission to be
tasked with drawing super districts designed for fair voting elections along
the lines of the of the examples we have created for every state at
FairVoting.US. We will watch this case with interest!

Rob Richie

On Sun, Mar 17, 2013 at 10:33 AM, <JBoppjr at aol.com> wrote:
Regarding Rick's interesting post Sleeper Case of the year:
 
(My emphasis.) A contrary ruling in the Arizona case would alter the
state-federal balance over federal elections and give states a greater
ability to manipulate election rules for partisan reason, something
especially dangerous in the era of the Voting Wars—not to mention preventing
Congress from imposing uniform voting standards in the U.S., such as the
requirement that we elect all members of Congress from single-member
districts.
 
Rick's error here is that the partisan forces that control the federal
government are just as capable of adopting rules to manipulate elections as
are the partisan forces in states.  However, federal manipulation is worse
since it effects all states and therefore the result of the entire national
election.  If one state or a few state manipulate the rules to favor one
side and then on state or a few states manipulate the rules to favor the
other, it is a wash.  Jim Bopp
 
In a message dated 3/16/2013 8:30:22 P.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:

Sleeper Case of the Year? 
Posted on March 16, 2013 5:24 pm by Rick Hasen 
I’ll be anxiously awaiting the release of the transcript Monday in the
Supreme Court oral argument in Arizona v. Inter Tribal Council. In brief,
the question is whether Arizona can refuse to accept a simple federal form
for voter registration (which Congress in the 1993 National Voter
Registration Act required states to accept), on grounds Congress has
exceeded its constitutional power under the Elections Clause  to “make or
alter” state rules for congressional voting.
I’ll be writing more about the case after I read the transcript, but at this
point I can say the following: This is one of those cases where if the
Supreme Court affirms the result in this case (that Arizona must accept the
federal form), it will be no big deal, but if the Court reverses it would
mark a major change in U.S. election law.  Many earlier Supreme Court cases
noted Congress’s broad power to set rules for federal elections. For
example, here’s the Court in the 1997 case, Foster v. Love:
The Elections Clause of the Constitution, Art. I, §4, cl. 1, provides that
“[t]he Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations.” The Clause is a default provision; it invests the States with
responsibility for the mechanics of congressional elections, see Storer v.
Brown, 415 U.S. 724, 730 (1974), but only so far as Congress declines to
pre-empt state legislative choices, see Roudebush v. Hartke, 405 U.S. 15, 24
(1972) (“Unless Congress acts, Art. I, §4, empowers the States to
regulate”). Thus it is well settled that the Elections Clause grants
Congress “the power to override state regulations” by establishing uniform
rules for federal elections, binding on the States. U.S. Term Limits, Inc.
v. Thornton, 514 U.S. 779, 832—833 (1995). “[T]he regulations made by
Congress are paramount to those made by the State legislature; and if they
conflict therewith, the latter, so far as the conflict extends, ceases to be
operative.” Ex parte Siebold, 100 U.S. 371, 384 (1880).
(My emphasis.) A contrary ruling in the Arizona case would alter the
state-federal balance over federal elections and give states a greater
ability to manipulate election rules for partisan reason, something
especially dangerous in the era of the Voting Wars—not to mention preventing
Congress from imposing uniform voting standards in the U.S., such as the
requirement that we elect all members of Congress from single-member
districts.
In case you are interested, here is the Question presented: “Did the court
of appeals err 1) in creating a new, heightened preemption test under
Article I,  Section 4, Clause 1 of the U.S. Constitution (“the Elections
Clause”) that is contrary to this Court’s authority  and conflicts with
other circuit court decisions, and 2) in holding that under that test the
National Voter Registration Act preempts an Arizona law that requests
persons who are registering to vote to show  evidence that they are eligible
to vote?”

Posted in election administration, Elections Clause, Voting Rights Act |
Comments Off 
“Former Riverbank mayor contests bill for recount” 
Posted on March 15, 2013 8:22 pm by Rick Hasen 
The Modesto Bee reports.

Posted in election administration, recounts | Comments Off 
“DFLers contol Minnesota Capitol but election overhaul ideas need GOP
support” 
Posted on March 15, 2013 8:08 pm by Rick Hasen 
The Star-Tribune reports.

Posted in election administration, The Voting Wars | Comments Off 
“Shame On Maryland’s State Board Of Elections” 
Posted on March 15, 2013 5:10 pm by Rick Hasen 
Jim Snider blogs.

Posted in election administration | Comments Off 
Keynoting at Mar. 23 U. Va. Conference on The Voting Wars: Elections and the
Law from Registration to Inauguration 
Posted on March 15, 2013 3:15 pm by Rick Hasen 
There’s a great lineup of speakers at two panels, and I’ll be giving a
presentation on my book, The Voting Wars, updated to take 2012 developments
into account.  Here’s the flyer.


Posted in election administration, The Voting Wars | Comments Off 
Must-read Lyle Denniston Preview of Arizona Elections Case 
Posted on March 15, 2013 7:50 am by Rick Hasen 
I had been hoping to do my own write-up on this very important case, but
writing, teaching and grading commitments have overwhelmed me the last few
weeks.
You won’t do better than this comprehensive and insightful analysis of the
issues in the Arizona case from Lyle Denniston at SCOTUSBlog.  This could be
the sleeper case of the year.

Posted in Elections Clause, Supreme Court | 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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org


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