[EL] ELB News and Commentary 11/12/13

Mon Nov 11 21:40:08 PST 2013

    "Race or Party?: How Courts Should Think About Republican Efforts to
    Make it Harder to Vote in North Carolina and Elsewhere"
    <http://electionlawblog.org/?p=56676>

Posted on November 11, 2013 9:36 pm 
<http://electionlawblog.org/?p=56676>by Rick Hasen 
<http://electionlawblog.org/?author=3>

I have posted this draft 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068>on SSRN (127 
/Harvard Law Review Forum/ (forthcoming Dec. 2013).  Here is the abstract:

    North Carolina, Texas, and other states with Republican legislatures
    have passed a series of laws making it harder for voters to register
    and to vote. In response, the United States Department of Justice
    has sued these states, claiming that the laws violate portions of
    the Voting Rights Act protecting minority voters. When party and
    race coincide as they did in 1900 and they do today, it is hard to
    separate racial and partisan intent and effect. Today, white voters
    in the South are overwhelmingly Republican and, in some of the
    Southern states, are less likely to be willing to vote for a Black
    candidate than are white voters in the rest of the country. The
    Democratic Party supports a left leaning platform that includes more
    social assistance to the poor and higher taxes. Some Republicans
    view such plans as aiding racial minorities.

    Given the overlap of considerations of race and considerations of
    party, when a Republican legislature like North Carolina's passes a
    law making it harder for some voters to vote, is that a law about
    party politics or a law about race? As I explain, if courts call
    this a law about party politics and view it through the lens of
    partisan competition, then the law is more likely to stand, and the
    fight over it will be waged at the ballot box. If the courts call
    this a law about race and view it through the lens of the struggle
    over race and voting rights, then the law is more likely to fall and
    the fight will be settled primarily in the courts.

    The race versus party bifurcation is unhelpful, and the solution to
    these new battles over election rules---what I call "The Voting
    Wars"---is going to have to come from the federal courts. Courts
    should apply a more rigorous standard to review arguably
    discriminatory voting laws. When a legislature passes an election
    administration law (outside the redistricting context)
    discriminating against a party's voters or otherwise burdening
    voters, that fact should not be a defense. Instead, courts should
    read the Fourteenth Amendment's Equal Protection Clause to require
    the legislature to produce substantial evidence that it has a good
    reason for burdening voters and that its means are closely connected
    to achieving those ends. The achievement of partisan ends would not
    be considered a good reason (as it appears to be in the
    redistricting context). These rules will both discourage party power
    grabs and protect voting rights of minority voters. In short, this
    new rule will inhibit discrimination on the basis of both race and
    party, and protect all voters from unnecessary burdens on the right
    to vote.

The Essay begins:

    I begin with a story which may sound familiar. Following election
    reforms in North Carolina, African-American voter turnout surges,
    setting records. The North Carolina legislature then changes hands,
    and the new party in power, which has few, if any, African-American
    supporters, passes new voting restrictions making it very difficult
    for African-Americans to vote. Turnout plummets in the state,
    cratering among African-American voters.
    The story is true. The year was not 2012 when African-American
    voters helped North Carolina's electoral votes go to Democrat Barack
    Obama, and then a new Republican legislature passed a tough set of
    voting rules, but 1900, and the party doing the disenfranchising was
    not the Republican Party but the Democratic Party. J. Morgan Kousser
    in his pathbreaking 1974 book, The Shaping of Southern Politics,1
    tells the compelling story of African-American disenfranchisement at
    the beginning of the last century.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
Supreme Court <http://electionlawblog.org/?cat=29>, The Voting Wars 
<http://electionlawblog.org/?cat=60>, voter id 
<http://electionlawblog.org/?cat=9>, Voting Rights Act 
<http://electionlawblog.org/?cat=15>

    "So far, so good for mail balloting in Colorado"
    <http://electionlawblog.org/?p=56674>

Posted on November 11, 2013 8:56 pm 
<http://electionlawblog.org/?p=56674>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Denver Post editorial. 
<http://www.denverpost.com/editorials/ci_24501615/so-far-so-good-mail-balloting-colorado>

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Posted in absentee ballots <http://electionlawblog.org/?cat=53>, 
election administration <http://electionlawblog.org/?cat=18>

    "Virginia attorney general race: Herring takes lead, with a recount
    appearing likely" <http://electionlawblog.org/?p=56672>

Posted on November 11, 2013 8:54 pm 
<http://electionlawblog.org/?p=56672>by Rick Hasen 
<http://electionlawblog.org/?author=3>

WaPo reports. 
<http://www.washingtonpost.com/local/dc-politics/tally-in-virginia-ag-race-continues-to-change/2013/11/11/5d931cde-4af8-11e3-9890-a1e0997fb0c0_story.html?tid=pm_pop>

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
provisional ballots <http://electionlawblog.org/?cat=67>

    "Back and Forth in Undecided Virginia Attorney General Race"
    <http://electionlawblog.org/?p=56670>

Posted on November 11, 2013 8:52 pm 
<http://electionlawblog.org/?p=56670>by Rick Hasen 
<http://electionlawblog.org/?author=3>

NYT reports 
<http://www.nytimes.com/2013/11/12/us/politics/back-and-forth-in-undecided-virginia-attorney-general-race.html>.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>

    "'Super PAC' Gets Early Start on Pushing for a 2016 Clinton
    Campaign" <http://electionlawblog.org/?p=56668>

Posted on November 11, 2013 8:49 pm 
<http://electionlawblog.org/?p=56668>by Rick Hasen 
<http://electionlawblog.org/?author=3>

NYT reports. 
<http://www.nytimes.com/2013/11/12/us/politics/super-pac-gets-an-early-start-on-pushing-for-a-2016-clinton-campaign.html>

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Posted in campaign finance <http://electionlawblog.org/?cat=10>

    Beyond Civility <http://electionlawblog.org/?p=56666>

Posted on November 11, 2013 7:28 pm 
<http://electionlawblog.org/?p=56666>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Interesting concept 
<http://wvxu.org/post/burke-triantafilou-turn-tables-voting-issues>:

    On Thursday, Nov. 21, the chairmen of the Republican and Democratic
    parties in Hamilton County will switch roles and argue for the
    other's position on alleged voter fraud as part of the Beyond
    Civility series of head-to-head debates.

    For the past year, Democrats and Republicans on the Hamilton County
    Board of Elections have been battling over hundreds of cases of
    alleged voter fraud.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>

    "Pro-Democratic super PACs outspend conservatives"
    <http://electionlawblog.org/?p=56664>

Posted on November 11, 2013 7:27 pm 
<http://electionlawblog.org/?p=56664>by Rick Hasen 
<http://electionlawblog.org/?author=3>

USA Today 
<http://www.usatoday.com/story/news/politics/2013/11/11/liberal-super-pacs-and-dark-money-groups-outspend-conservatives-in-2013-races/3495983/>:

    Liberal super PACs have spent $10.8 million on federal races this
    year ---twice as much as conservative super PACs, according to the
    Center for Responsive Politics' tally of independent spending in
    federal races. Much of the money has flowed to a handful of
    elections to fill congressional vacancies. Liberal money also makes
    up 70% of the election-related federal spending by "dark money"
    groups --- politically active non-profits that don't have to
    disclose the sources of their money, the center found.

    In state races, unions and two billionaires promoting liberal causes
    led non-party, outside spending in last week's contests in New
    Jersey and Virginia, respectively.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>

    Goodbye THOMAS, Hello Congress.Gov for Researching Congressional
    Bills, Etc. <http://electionlawblog.org/?p=56662>

Posted on November 11, 2013 7:16 pm 
<http://electionlawblog.org/?p=56662>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Details 
<http://www.nextgov.com/emerging-tech/2013/11/congressgov-coming-month/73526/?oref=nextgov_today_nl>.

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Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>

-- 
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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