[EL] North Carolina breaking news/more news
Rick Hasen
rhasen at law.uci.edu
Fri Aug 8 15:23:37 PDT 2014
Breaking: Federal Court Denies Preliminary Injunction in North
Carolina Voting Case -- Analysis <http://electionlawblog.org/?p=64152>
Posted onAugust 8, 2014 2:28 pm
<http://electionlawblog.org/?p=64152>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the 125-page rulinghere
<http://electionlawblog.org/wp-content/uploads/nc-prelim-ruling.pdf>.
I have now had a chance to quickly read the district court's 125-page
ruling in this case. Here are my initial thoughts.
1. This is a careful, well-written and well-reasoned decision rejecting
the U.S. and private plaintiffs' Voting Rights Act and constitutional
claims against some key provisions of strict North Carolina's voting law
passed last year. The opinion was only on a preliminary injunction, the
court did not reach all the legal issues presented (and was tentative on
some of the conclusions regarding some parts of the law) and it did not
opine much on the voter id portion of the law. But this is an opinion in
which the court expressed great skepticism about the use of either
Section 2 of the Voting Rights Act or the U.S. Constitution's equal
protection clause to protect voting rights in a strong way. If this
ruling stands, it shows that Section 2 and the Constitution's Equal
Protection Clause are poor substitutes in protecting voting rights for
Section 5 of the Voting Rights Act, which the Supreme Court gutted in
its /Shelby County /opinion from last year.
2. This ruling is at odds with the other major ruling on the use of
Section 2 in these vote denial cases, the Frank v. Walker case. That
case wasa voting rights plaintiffs lawyer's dream
<http://t.co/cX6K8CAUM0>, reading Section 2 of the VRA and the
Constitution's equal protection clause expansively to broadly protect
voting rights. That case is currently on appeal to the Seventh Circuit.
Today's case could well be appealed to the Fourth Circuit. Eventually
one or more of these cases could make it to the Supreme Court. Given the
current conservative orientation of a majority of the Supreme Court, it
seems likely that a Court majority would be more attracted to the narrow
reading of Section 2 offered in today's ruling compared to the broad
ruling in Frank v. Walker.
3. Under the old Section 5 of the VRA, the question was one of
"nonretrogression:" one compared the conditions for minority voters
under an old law and a proposed new law. If the state could not
demonstrate that the proposed new law did not make minority voters worse
off, then the law could not be put into effect. Today, the judge in
North Carolina said that section 2 did not include a similar
nonretrogression standard. Thus, in deciding whether a cutback from 10
to 7 days of early voting violated Section 2 of the Act, the question
was not whether 7 was worse than 10, but whether 7 days standing alone
made it much harder for minority voters to participate in the political
process on the same basis as other voters. The court held that there
were still ample opportunities to vote under even the truncated dates,
and especially in a midterm election where turnout is not expected to be
a big problem. The court also seemed to require more proof of
/causation/in the section 2 context than the /Frank v. Walker /court
believed is necessary.
4. Importantly, the court today rejected evidence offered that the North
Carolina legislature passed its laws out of a racially discriminatory
intent. The judge seemed to believe that some of it was motivated by
partisanship, not race and held that this did not constitute proof of
racial discrimination. (I have written about this issue and the
difficulty of disentangling the two standards in Race or Party? How
Courts Should Think About Republican Efforts to Make it Harder to Vote
in North Carolina and Elsewhere
<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>,
127 /Harvard Law Review Forum/ 58 (2014).) But the big significance of
a finding (at least preliminarily) of no intentional discrimination is
that this means that DOJ will have a hard time getting North Carolina
covered again under the preclearance provisions of the Voting Rights
Act. Section 3 of the Act gives a court discretion to impose a
preclearance regime on a jurisdiction found to have engaged in
intentional discrimination in violation of the 14th or 15th amendments.
Without such a finding, however, the state cannot be put back under
preclearance.
5. The trial court refused to say much about the "novel" theory that the
law violates the 26th amendment in discriminating against young voters
(particularly in the elimination of the preregistration for 16 and 17
year olds. But the court did note that this claim was brought for 10
voters and not for all voters in this class, which could make it hard to
prove that the law will hamper these particular voters from voting. My
sense is that the court will likely sidestep the meaning of the 26th
amendment here.
6. In sum, I had always thought that using section 2 of the VRA (or the
Constitution's equal protection clause) to challenge the elimination of
same day registration, a cutback in the number of days of early voting,
and similar provisions would be an uphill battle. This opinion proves
today that this is correct. Unlike the wooden, unthinking opinion about
voter id which we recently saw from the Wisconsin Supreme Court, this
opinion rejecting the claim of voting rights plaintiffs is careful,
considered and reasonable. While Frank v. Walker also presents a
reasonable alternative way of reading the scope of voting rights
protections after /Shelby County/, it is this opinion that is more
likely to represent how the Supreme Court would view these issues if and
when these cases make it to the Supreme Court.
[This post has been updated.]
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter registration
<http://electionlawblog.org/?cat=37>
"To the courts: What's next in the McDaniel challenge"
<http://electionlawblog.org/?p=64150>
Posted onAugust 8, 2014 2:20 pm
<http://electionlawblog.org/?p=64150>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Clarion Ledger/reports.
<http://www.clarionledger.com/story/politicalledger/2014/08/07/mcdaniel-challenge-whats-next/13748375/>
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Posted inrecounts <http://electionlawblog.org/?cat=50>
"Virginia election board makes voter ID requirements more stringent"
<http://electionlawblog.org/?p=64148>
Posted onAugust 8, 2014 11:59 am
<http://electionlawblog.org/?p=64148>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/local/virginia-politics/virginia-elections-board-makes-voter-id-requirements-more-stringent/2014/08/07/331d625e-1dbe-11e4-82f9-2cd6fa8da5c4_story.html>:
Inflaming a contentious debate over voter identification laws, the
Virginia State Board of Elections decided this week that, to cast a
ballot, voters will have to present a current photo ID or one that
expired within the past year.The Republican-controlled board voted 2
to 0 Wednesday --- with the Democratic member absent --- to narrow
the definition of valid identification, a move that one board member
said would streamline and simplify the rules."We believe it's a
compromise and gives people a reasonable grace period," said Donald
Palmer, who was appointed to the board by then-Gov. Robert F.
McDonnell (R).But Democrats and voting rights advocates said the new
rule will confuse voters less than two weeks before a special
election in which the rule is expected to apply.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
"Documents: Top Walker aide at odds with DA after first Doe
launched" <http://electionlawblog.org/?p=64146>
Posted onAugust 8, 2014 10:58 am
<http://electionlawblog.org/?p=64146>byRick Hasen
<http://electionlawblog.org/?author=3>
The
latest<http://www.jsonline.com/news/statepolitics/documents-top-walker-aide-at-odds-with-da-after-first-doe-launched-b99326745z1-270498571.html>from
Wisconsin.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Disclosing Disclosure: Lessons from a "Failed" Field Experiment"
<http://electionlawblog.org/?p=64144>
Posted onAugust 8, 2014 10:11 am
<http://electionlawblog.org/?p=64144>byRick Hasen
<http://electionlawblog.org/?author=3>
Dick M. Carpenter, David M. Primo, Pavel Tendetnik, and Sandy Ho have
writtenthis
article<http://www.degruyter.com/view/j/for.2014.12.issue-2/for-2014-5008/for-2014-5008.xml?format=INT>for
/The Forum/. Here is the abstract:
In a recent issue of The Forum, Fortier and Malbin call for more
research into the effects of disclosure requirements for campaign
finance. In this paper, we report the results of a field experiment
designed to assess whether such rules dissuade potential
contributors due to privacy concerns. The paper is unique in that we
explain why the field experiment never happened, and what we can
learn from its "failure." Specifically, we show that 2012
Congressional candidates were fearful about letting potential
contributors know that their donations would be made available on
the Internet, along with their address, employer, and other personal
information. In trying to learn directly about whether contributors
would be spooked by this knowledge, we ended up learning indirectly,
through the actions of candidates, that privacy concerns may in fact
limit participation in the political process, including among small
donors.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Rep. DesJarlais, challenger trade leads in Tenn."
<http://electionlawblog.org/?p=64142>
Posted onAugust 8, 2014 10:00 am
<http://electionlawblog.org/?p=64142>byRick Hasen
<http://electionlawblog.org/?author=3>
AP says
<https://news.yahoo.com/rep-desjarlais-challenger-trade-leads-tenn-162238067--election.html>this
race is still too close to call.
Rep. DesJarlais has been involved insome controversy
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/08/07/rep-scott-desjarlais-engaged-in-multiple-extramarital-affairs-he-still-might-win-thursday/>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Fair Voting in California -- Will Santa Barbara Join Santa
Clarita?" <http://electionlawblog.org/?p=64140>
Posted onAugust 8, 2014 9:29 am
<http://electionlawblog.org/?p=64140>byRick Hasen
<http://electionlawblog.org/?author=3>
FairVote
<http://www.fairvote.org/research-and-analysis/blog/fair-voting-in-california-will-santa-barbara-join-santa-clarita/>:
"In July, the city of Santa Barbara became the most recent in a string
of California citiesbeing sued under the California Voting Rights Act
<http://www.latimes.com/local/political/la-me-pc-santa-barbara-voting-lawsuit-20140729-story.html>for
diluting the votes of their Latino population. After finding out about
the case,FairVote promptly sent a letter
<http://www.fairvote.org/assets/FairVote-Santa-Barbara-Letter.pdf>to
Mayor Helene Schneider of Santa Barbara, offering our expertise on
election methods to them as they decide how to proceed."
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Posted inalternative voting systems
<http://electionlawblog.org/?cat=63>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Strategists say impact of outside group spending is overrated"
<http://electionlawblog.org/?p=64138>
Posted onAugust 8, 2014 9:02 am
<http://electionlawblog.org/?p=64138>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill reports.
<http://thehill.com/homenews/campaign/214552-strategists-say-impact-of-outside-group-spending-is-overrated#ixzz39i3W41Zx%C2%A0>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"New Hampshire candidate cashes in on campaign finance reform"
<http://electionlawblog.org/?p=64136>
Posted onAugust 8, 2014 8:59 am
<http://electionlawblog.org/?p=64136>byRick Hasen
<http://electionlawblog.org/?author=3>
Reuters
<http://news.yahoo.com/hampshire-candidate-cashes-campaign-finance-reform-203107100.html>:
A dark horse in the New Hampshire race for the U.S. Senate who has
been fighting big money in politics got a surprise boost last week
from a like-minded group -- to the tune of $2 million.
A new political action committee, Mayday PAC, is backing the
candidate in the state's Republican primary, former state Senator
Jim Rubens, with TV, radio and Internet ads as a test case in
reforming American political campaign financing.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Bipartisan Policy Center to Continue Work of Presidential
Commission on Election Administration"
<http://electionlawblog.org/?p=64134>
Posted onAugust 8, 2014 8:58 am
<http://electionlawblog.org/?p=64134>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release:
<http://bipartisanpolicy.org/news/press-releases/2014/08/bipartisan-policy-center-presidential-commission-election-administration>
Building on the successful efforts of the Presidential Commission on
Election Administration, the Bipartisan Policy Center's
(BPC)Democracy Project
<http://bipartisanpolicy.org/projects/democracy-project>today
announced that it will work to implement the commission's
recommendations.
*Tammy Patrick*, a former member of the commission and former
Maricopa County election official, and Secretary of the Virginia
Board of Elections*Don Palmer*have joined BPC to support this
effort. The commission, led by*Bob Bauer*and*Ben Ginsberg*, released
itsreport in January 2014
<https://www.supportthevoter.gov/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf>.
Allformer commissioners
<http://www.supportthevoter.gov/the-commission/>will advise BPC
during the implementation phase.
"We are pleased with the positive reception the commission's report
has received in recent months," said former Presidential Commission
on Election Administration co-chair*Bob Bauer*. "However,
implementation of the recommendations is key and we are we are eager
to work with the Bipartisan Policy Center on this next chapter."
Working with the commissioners, BPC will work with state and local
election officials to educate the public and other stakeholders
about the commission's recommendations. BPC will also assess the
states where there are opportunities and obstacles to implementing
the commission's recommendations and develop a plan to move discrete
reforms in those jurisdictions.
"We are proud of the bipartisan and unanimous work of the
commission," said*Ben Ginsberg*, former Presidential Commission on
Election Administration co-chair. "Our goal moving forward is to get
the recommendations and best practices implemented by states and
localities where there is a need."
BPC will focus on these*key recommendations*in the year ahead:
reducing polling place lines, addressing the imminent voting machine
technology crisis; online registration; cross-state data sharing
efforts; improving the Department of Motor Vehicles registration
process; ensuring that schools can be used as polling places; and
creating opportunities for voting before Election Day.
"We welcome the presidential commission's work into our fold and
will build on its recommendations to improve the voting process,"
said*John Fortier*, director of BPC's Democracy Project. "The
Bipartisan Policy Center is well-situated to bridge the policy gap
between election officials, legislators, academics and advocates as
we have shown through our work with the separateCommission on
Political Reform
<http://bipartisanpolicy.org/strengthen-american-democracy>."
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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 92697-8000
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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