[EL] ELB News and Commentary 8/28/14
Rick Hasen
rhasen at law.uci.edu
Wed Aug 27 20:52:11 PDT 2014
Gov. Christie Attacks Same-Day Voter Registration in Illinois
<http://electionlawblog.org/?p=64750>
Posted onAugust 27, 2014 3:30 pm
<http://electionlawblog.org/?p=64750>byRick Hasen
<http://electionlawblog.org/?author=3>
He also
comments<http://politics.suntimes.com/article/springfield/governor%E2%80%99s-race-becomes-biden-vs-christie-day/mon-08252014-733pm>on
some ballot access decisions:
"He will try every trick in the book," Christie said of Quinn. "I
see the stuff that's going on. Same-day registration all of a sudden
this year comes to Illinois. Shocking," he added sarcastically. "I'm
sure it was all based upon public policy, good public policy to get
same-day registration here in Illinois just this year, when the
governor is in the toilet and needs as much help as he can get."
Christie also questioned a recent decision allowing a Libertarian
candidate on the November ballot, but not a Green Party candidate. A
Green Party candidate could draw votes away from Quinn while a
Libertarian candidate could draw Rauner votes.
"Now I see that the court's ruled that the Libertarian candidate can
be on the ticket but the Green Party can't. Another interesting
development. I told some people this morning: 'You people in
Illinois make New Jersey people blush, it's unbelievable, right?'
Every obstacle that can be placed in front of Bruce by the
establishment in this state will be placed in front of him. The
great news is he's strong enough to overcome those."
(h/tIBT
<http://www.ibtimes.com/christie-slams-effort-boost-voter-turnout-2014-election-democratic-trick-1671334>)
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Posted inballot access <http://electionlawblog.org/?cat=46>,voter
registration <http://electionlawblog.org/?cat=37>
"Former Fattah Aide Pleads Guilty in Campaign Fraud (Updated)"
<http://electionlawblog.org/?p=64748>
Posted onAugust 27, 2014 2:56 pm
<http://electionlawblog.org/?p=64748>byRick Hasen
<http://electionlawblog.org/?author=3>
Roll Call reports
<http://blogs.rollcall.com/218/chaka-fattah-aide-pleads-guilty/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
Interesting 9th Circuit Panel Draw in Guam Racial Voting Case
<http://electionlawblog.org/?p=64746>
Posted onAugust 27, 2014 2:10 pm
<http://electionlawblog.org/?p=64746>byRick Hasen
<http://electionlawblog.org/?author=3>
Following up onthis post, <http://electionlawblog.org/?p=64714> the
Ninth Circuit panel hearing the Guam case is Chief J. Kozinski, Judge
Schroeder, and Judge Randy Smith. I think at least Kozinski and Smith
will be skeptical of the Guam-based law.
This report from oral argument,
<http://www.guampdn.com/article/20140828/NEWS01/308280002/Plebiscite-appeal-heard-9th-Circuit-judges-take-political-status-vote>however,
suggests the court might be able to avoid the merits by holding the case
moot. If not...:
Assistant Attorney General Robert Weinberg, speaking on behalf of
GovGuam, responded to Martin's argument, saying that it was
important to give Guam's native population a voice in the island's
future
Judges, however, asked Weinberg how the plebiscite would be any
different from a state deciding to hold a "whites-only primary."
Chief Circuit Judge Alex Kozinski asked Weinberg if he believed a
state that tried to restrict voters because of race wouldn't be
"laughed out of court."
Weinberg said, "Guam is different."
"We have to look at it differently in context," he said.
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Posted invoting <http://electionlawblog.org/?cat=31>
Another Shoe to Drop in Iowa Payment for Endorsement Investigation?
<http://electionlawblog.org/?p=64744>
Posted onAugust 27, 2014 1:23 pm
<http://electionlawblog.org/?p=64744>byRick Hasen
<http://electionlawblog.org/?author=3>
Russ Choma
<http://www.opensecrets.org/news/2014/08/former-iowa-senator-pleads-guilty-to-accepting-money-to-back-ron-paul/>:
Neither Lori Pyeatt, Ron Paul's granddaughter and the treasurer of
his 2012 presidential campaign, nor Jesse Benton, who was Paul's
campaign manager (and is now manager of Senate Minority Leader Mitch
McConnell's re-election campaign), had responded to requests for
comment at the time this post was published.
It isn't clear if the investigation is continuing, but Sorenson has
been granted immunity from further prosecution on federal and state
charges, as has his wife, according to the plea agreement.
OpenSecrets.org has learned that two grand juries have been
investigating the events in Iowa, one focused on the Paul campaign
and one on Bachmann's. Last August, OpenSecrets.org published a copy
of a memo
<http://www.opensecrets.org/news/2013/08/ron-paul-campaign-accused-of-trying/>written
by Aaron Dorr, the head of the Iowa Gun Owners, in which he outlined
Sorenson's demands to switch his endorsement. Included in the emails
surrounding the negotiations were several top Paul campaign
officials, including Benton.
Nobody has been indicted in connection with making the payments to
Sorenson.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"TV Station Pulls Anti-Shaheen Ads Off Air"
<http://electionlawblog.org/?p=64742>
Posted onAugust 27, 2014 1:04 pm
<http://electionlawblog.org/?p=64742>byRick Hasen
<http://electionlawblog.org/?author=3>
AP <http://bigstory.ap.org/article/tv-station-pulls-anti-shaheen-ads-air>:
A super PAC's negative ads against Sen. Jeanne Shaheen were pulled
off the air Wednesday after the New Hampshire Democrat's attorneys
flagged inaccuracies in the spot.
Ending Spending Action Fund, a conservative outside group, claimed
in ads that "Shaheen's wealth has surged while in public office."
Her financial disclosure forms filed with the Senate show the
opposite, with her personal wealth dropping by at least $562,000 and
perhaps as much as $1 million.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
"Navigating Election and Political Law: Leading Lawyers on
Understanding Campaign Finance, Speech, Voting Rights, and the Laws
that Govern (Inside the Minds)" <http://electionlawblog.org/?p=64740>
Posted onAugust 27, 2014 12:59 pm
<http://electionlawblog.org/?p=64740>byRick Hasen
<http://electionlawblog.org/?author=3>
Looks like an interesting new book
<http://legalsolutions.thomsonreuters.com/law-products/c/Navigating-Election-and-Political-Law-Leading-Lawyers-on-Understanding-Campaign-Finance-Speech-Voting-Rights-and-the-Laws-that-Govern-Inside-the-Minds/p/100279568> for
election law practitioners with some top notch contributors:
/Navigating Election and Political Law/ provides an authoritative,
insider's perspective on the dynamics of the federal and state laws
governing political contributions and spending, and how these laws
are impacting practitioners and their clients. Written by partners
from some of the nation's leading law firms, this book guides the
reader through the current trends in election and political law,
including the latest guidance on the candidate, committee and party
side of the ledger, as well as the corporate, non-profit, and
association perspective.
These political law experts review and discuss game-changing U.S.
Supreme Court decisions, including /Citizens United, McCutcheon v.
Federal Election Commission/, and/Shelby County v. Holder/ and their
impact on candidates, campaigns, PACs and Super-PACs, and the
agencies charged with enforcement of the laws that govern.
In this rapidly changing compliance environment, these industry
leaders reflect on the challenges practitioners face, ranging from
the defense of First Amendment free speech protections, ensuring the
fundamental right to vote for all, and the future of campaign
finance, and the role that lawyers will continue to play. The
different niches represented and the breadth of perspectives
presented enable readers to get inside some of the great legal minds
of today, as these experienced lawyers offer up their thoughts on
the keys to success in this high-stakes field.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Walter Shapiro and Larry Lessig Square Off over MayDay PAC
<http://electionlawblog.org/?p=64738>
Posted onAugust 27, 2014 11:29 am
<http://electionlawblog.org/?p=64738>byRick Hasen
<http://electionlawblog.org/?author=3>
Shapiro:The PAC to End All PACs is a Farce
<http://www.politico.com/magazine/story/2014/08/the-pac-to-end-all-pacs-is-a-failure-110329.html#.U_4jRGRdVml>
Lessig:On the State of the "Farce"
<http://lessig.tumblr.com/post/95917357172/on-the-state-of-the-farce>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
More on Texas's Argument DOJ Too Partisan to Enforce Voting Rights
Act <http://electionlawblog.org/?p=64736>
Posted onAugust 27, 2014 11:09 am
<http://electionlawblog.org/?p=64736>byRick Hasen
<http://electionlawblog.org/?author=3>
In anearlier post, <http://electionlawblog.org/?p=64248>I noted this
filing
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey4481.pdf> of
the state of Texas in the voter id case (particularly pages 13-23),
raising an affirmative defense to DOJ's claims that Texas's voter id law
violates section 2 of the Voting Rights Act and that Texas's intentional
racial discrimination in voting gives the court discretion to cover
Texas again under a preclearance regime under section 3 of the Voting
Rights Act. Texas argues that section 3 is not appropriate because DOJ
is partisan and has applied the Voting Rights Act in an unfair and
unconstitutional manner, especially against Texas and other state
formerly covered by section 5.
Texas has now fileda response
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5401.pdf>to
DOJ's motion to strike the affirmative defense. In part, Texas's
response reads:
The United States seeks bail-in and must therefore prove that it is
justified. Defendants, in turn, must respond and demonstrate that it
is not. See Fed. R. Civ. Pro. 8(b)(1)(A) ("In responding to a
pleading, a party must state in short and plain terms its defenses
to each claim asserted against it."). Given the rare and serious
nature of bail-in as a remedy, a court weighing its justification
should consider all relevant factors, including among other things
the manner in which the VRA is enforced by the entity charged with
enforcing it. Defendants allege in plain and simple terms that the
Voting Section, Civil Rights Division of the Department of Justice
enforces the VRA in a partisan and racially discriminatory manner,
particularly with regard to voting laws in Texas. See, e.g., ECF No.
417 at 22 (stating that DOJ has declined to use section 2 to
challenge similar voter ID laws enacted in eleven other states).
Equitable relief under section 3(c) cannot be justified where the
body of law under which it exists is enforced inequitably.
Moreover, DOJ's unequal application of the VRA raises equal
protection concerns under the Fourteenth Amendment--concerns that
are particularly relevant to a section 3(c) analysis in the wake of
Shelby County, where the Supreme Court placed the entire
preclearance regime on tenuous constitutional grounds. See Shelby
County, 133 S. Ct. at 2620 (holding that the very existence of a
"preclearance" requirement raises grave constitutional questions").
Defendants' allegations and defenses are not offered for nothing;
each one of them bears directly on these serious and relevant issues
underlying the extraordinary act of bailing-in a State under section
3(c).
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Posted inDepartment of Justice <http://electionlawblog.org/?cat=26>,The
Voting Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Former Iowa State Senator Pleads Guilty to Concealing Federal
Campaign Expenditures" <http://electionlawblog.org/?p=64733>
Posted onAugust 27, 2014 10:24 am
<http://electionlawblog.org/?p=64733>byRick Hasen
<http://electionlawblog.org/?author=3>
DOJ press release
<http://www.justice.gov/opa/pr/2014/August/14-crm-907.html>: "According
to a statement of facts filed with the plea agreement, Sorenson admitted
that he had supported one campaign for the 2012 presidential election,
but from October to December 2011, he met and secretly negotiated with a
second political campaign to switch his support to that second campaign
in exchange for concealed payments that amounted to $73,000. On Dec.
28, 2011, at a political event in Des Moines, Iowa, Sorenson publicly
announced his switch of support and work from one candidate to the other."
John Gramlich says
<https://twitter.com/johngramlich/status/504680228380499968>it was a
switch from Michele Bachman to Ron Paul.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,chicanery
<http://electionlawblog.org/?cat=12>
"Complicated Times: Speech and Advocacy in a Changing Environment"
<http://electionlawblog.org/?p=64731>
Posted onAugust 27, 2014 10:21 am
<http://electionlawblog.org/?p=64731>byRick Hasen
<http://electionlawblog.org/?author=3>
Truman Anderson
explains<http://www.clcblog.org/index.php?option=com_content&view=article&id=572:complicated-times-speech-and-advocacy-in-a-changing-environment>why
his conservative foundation is supporting campaign finance reform.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
SEIU, Other Unions Seeking to Block Campaign Disclosure Law in
California <http://electionlawblog.org/?p=64728>
Posted onAugust 27, 2014 9:55 am
<http://electionlawblog.org/?p=64728>byRick Hasen
<http://electionlawblog.org/?author=3>
Indefensible.
<http://www.salon.com/2014/08/27/principles_be_damned_how_campaign_finance_reform_just_got_crushed_in_a_liberal_state/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Judge orders Gant to add Lora Hubbel to LG ballot"
<http://electionlawblog.org/?p=64726>
Posted onAugust 27, 2014 9:51 am
<http://electionlawblog.org/?p=64726>byRick Hasen
<http://electionlawblog.org/?author=3>
I missedthis development
<http://www.argusleader.com/story/davidmontgomery/2014/08/18/judge-order-lora-hubbel/14253671/>following
up on anearlier blog post <http://electionlawblog.org/?p=64006>:
A federal judge on Monday ordered Secretary of State Jason Gant to
print ballots listing Lora Hubbel's name as Myers' running mate.
Gant had refused to do so, saying there's no state law allowing an
independent candidate to be replaced.
But Judge Lawrence Piersol said that was likely an "oversight" and
that not letting Myers replace his running mate would infringe on
his rights and impose an "unequal burden" on non-party candidates.
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Posted inballot access <http://electionlawblog.org/?cat=46>
"The revenge of ex-Secretary of State Charlie White?"
<http://electionlawblog.org/?p=64724>
Posted onAugust 27, 2014 8:55 am
<http://electionlawblog.org/?p=64724>byRick Hasen
<http://electionlawblog.org/?author=3>
IndyStar
<http://www.indystar.com/story/behind-closed-doors/2014/08/26/the-revenge-of-ex-secretary-of-state-charlie-white/14618943/>:
Disgraced politician Charlie White is seeking to reinvent himself
--- as a tell-all political blogger.
His target: His Republican colleagues, among others.
The former Indiana Secretary of State recently launched The Indy
Sentinel <http://www.indysentinel.com/home.html>, a new website
about "pols and media who are fair & those who live to serve the
elites in both parties to the public's detriment," according to his
Twitter account <https://twitter.com/indysentinel>.
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Posted inSOS White <http://electionlawblog.org/?cat=13>
"Arizona Primary Results: 1st District GOP Primary Too Close to
Call" <http://electionlawblog.org/?p=64722>
Posted onAugust 27, 2014 7:40 am
<http://electionlawblog.org/?p=64722>byRick Hasen
<http://electionlawblog.org/?author=3>
/Roll Call /
<http://atr.rollcall.com/arizona-primary-results-2014/?dcz=>reports
<http://atr.rollcall.com/arizona-primary-results-2014/?dcz=>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"People hate politics. So why is nobody talking about campaign
finance reform?" <http://electionlawblog.org/?p=64720>
Posted onAugust 27, 2014 7:30 am
<http://electionlawblog.org/?p=64720>byRick Hasen
<http://electionlawblog.org/?author=3>
/The Fix /
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/08/27/people-hate-the-state-of-politics-today-so-why-is-nobody-talking-about-campaign-finance-reform/>reports.
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/08/27/people-hate-the-state-of-politics-today-so-why-is-nobody-talking-about-campaign-finance-reform/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Ballot initiatives become pricey playgrounds of parties and
corporations" <http://electionlawblog.org/?p=64718>
Posted onAugust 27, 2014 7:28 am
<http://electionlawblog.org/?p=64718>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/blogs/govbeat/wp/2014/08/27/ballot-initiatives-become-pricey-playgrounds-for-corporations-and-political-parties/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,political
parties <http://electionlawblog.org/?cat=25>
"Dave Davis Asks Ninth Circuit to Recognize That Racially Exclusive
Plebiscite Registration Injures Citizens on Guam"
<http://electionlawblog.org/?p=64714>
Posted onAugust 27, 2014 7:25 am
<http://electionlawblog.org/?p=64714>byRick Hasen
<http://electionlawblog.org/?author=3>
Election Law Centerpress release
<http://www.electionlawcenter.com/uncategorized/9th-circuit-arguments-tonight-in-davis-v-guam-voting-discrimination-case/>:
The United States Ninth Circuit Court of Appeals will be hearing
arguments today, August 27, 2014, in Arnold Davis v. Guam at 10 a.m.
(ChST) in the 4th floor courtroom at the federal courthouse in
Hagatna, Guam. (The hearing will take place at 8 p.m. EDT on August
26, 2014).
Arnold "Dave" Davis tried to register for the Decolonization
Registry so he could vote on a future status plebiscite regarding
Guam's relationship to the United States. His attempt to register to
vote was denied because Davis could not trace his ancestry to a
native inhabitant of Guam. Guam law prohibits those who do not have
the correct ancestors from registering to vote for the status
plebiscite. According to an expert report by Davis' expert, nearly
every single ancestor who would vest the modern right to register to
vote was of the Chamorro racial group.
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Posted invoting <http://electionlawblog.org/?cat=31>
Sen. McConnell: "So all Citizens United did was to level the playing
field for corporate speech..." <http://electionlawblog.org/?p=64712>
Posted onAugust 27, 2014 7:18 am
<http://electionlawblog.org/?p=64712>byRick Hasen
<http://electionlawblog.org/?author=3>
Fascinating claim about Citizens United promoting equality. He also
called
<http://www.thenation.com/article/181363/caught-tape-what-mitch-mcconnell-complained-about-roomful-billionaires-exclusive#>the
day President Bush signed McCain-Feingold the "worst day" of his
"political life."
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"At Koch Retreat, Top GOP Senate Candidates Credited Koch Network
For Their Rise" <http://electionlawblog.org/?p=64710>
Posted onAugust 27, 2014 7:13 am
<http://electionlawblog.org/?p=64710>byRick Hasen
<http://electionlawblog.org/?author=3>
Sam Stein
<http://www.huffingtonpost.com/2014/08/26/koch-brothers-ernst-cotton-gardner_n_5718773.html?1409113517>with
exclusive audio at HuffPo.
MORE
<http://www.washingtonpost.com/blogs/plum-line/wp/2014/08/27/morning-plum-gop-senate-candidates-confirm-extent-of-koch-brothers-influence/>from
Greg Sargent.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Why Have Elites Reacted Differently to Treatment of Gov. Perry and
Gov. Cuomo Investigations? <http://electionlawblog.org/?p=64708>
Posted onAugust 27, 2014 7:09 am
<http://electionlawblog.org/?p=64708>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Bauer
<http://www.moresoftmoneyhardlaw.com/2014/08/trend-argument-opinion-perry-case-tale-two-states/>offers
his thoughts:
One such factor may be suspicions about an officeholder's motives in
setting up a Commission and then disbanding it when it appeared to
some that it was performing well and had more work to do. And this
suspicion is heightened against a background of concerns about
endemic corruption in New York State politics. Governor Perry is
helped by the assumption that Texas politics is brass-knuckled and
partisan, but with the DeLay case in the background, there is also a
tendency, rightly or wrongly, to believe that this partisanship has
seeped into the criminal justice system. In one state, the
expectation is nasty politics, which, it is believed, should be kept
out of the criminal justice system; and in the other, the fear is
corrupt politics and the response is ardent support for aggressive
criminal enforcement.
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Posted inchicanery <http://electionlawblog.org/?cat=12>
What's the Matter with Kobach? <http://electionlawblog.org/?p=64705>
Posted onAugust 27, 2014 4:44 am
<http://electionlawblog.org/?p=64705>byDan Tokaji
<http://electionlawblog.org/?author=5>
By "/Kobach/," I mean the/Kobach v. EAC/case in which the Tenth
Circuitheard oral argument
<http://www.kansas.com/news/politics-government/election/article1293569.html>Monday
-- rather than its lead plaintiff, Kansas' controversial Secretary of
State Kris Kobach, who argued the position of his state and the State of
Arizona. This post discusses what's at issue in the case, where the
district court went wrong, and what the Tenth Circuit should do.
*What the Case Is About*
/Kobach/involves a narrow but important issue, left unresolved after the
U.S. Supreme Court's decision last year in/Arizona v. Inter Tribal
Council of Arizona
<http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf>/. That case
involved Arizona's attempt to impose a proof-of-citizenship requirement
for voter registration, an issue that has been percolating formany
<http://moritzlaw.osu.edu/blogs/tokaji/2006/03/arizona-sos-so-sue-me.html>years
<http://moritzlaw.osu.edu/blogs/tokaji/2006/08/disagreement-on-eac.html>.
Arizona law requires would-be voters to provide documents proving their
citizenship when they register, documents that some eligible citizens
don't have. But the National Voter Registration Act (NVRA) requires
states to "accept and use" thenational voter registration form
<http://www.eac.gov/assets/1/Documents/Federal%20Voter%20Registration_1209_en8242012.pdf>,
commonly known as the "federal form." And that form's instructions don't
require documentary proof of citizenship. In/Arizona/, the Supreme Court
said that states must register voters who used the federal form, even
without these documents. But the Court allowed Arizona to ask the U.S.
Election Assistance Commission (EAC) to add the state's
proof-of-citizenship requirement to the federal form.
That's exactly what Arizona, along with Kansas, sought to do. But
there's a problem. The EAC had no sitting commissioners -- hasn't had
any for years, in fact, due to gridlock in Congress. With no
Commissioners to vote on the states' requests, they went to federal
court to force the commissioner-less EAC to incorporate their
proof-of-citizenship requirements on the federal form's instructions.
While the Supreme Court saidthat Arizona may/ask/the EAC to change the
federal form, it didn't say that the EAC must/grant/the state's request.
The central issue in/Kobach/is whether and when state requests to add
proof-of-citizenship requirements to the federal form must be granted.
*What the District Court Did*
Arizona and Kansas won in the lower court. The district court
in/Kobach/firstdirected the EAC to make a decision on Arizona's and
Kansas' requests
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/KobachOrderRemanding2EAC.pdf>,
even without commissioners. EAC's staff -- specifically its acting
executive director -- complied with this order but denied the requests,
concluding that the federal form shouldn't be modified to add the
states' citizenship requirements. The district court then concluded that
the EAC (staff) was wrong to deny Arizona's and Kansas' requests and
that the states' proof-of-citizenship requirements must be added to the
federal form instructions.
There are two problems with what the district court did in/Kobach/. One
is that the EAC isn't legally obligated to grant Arizona's and Kansas'
requests. These states argue that the EAC had a "ministerial" duty to
change the federal form to add their proof-of-citizenship requirements.
In effect, they argue that the EAC has to rubber-stamp states' requests.
But that's not what the relevant statute, the NVRA, says -- nor is it
what the Supreme Court said. The NVRA says that the federal form should
only include information that is "necessary" to assess eligibility to
vote. This is consistent with what the Supreme Court said in/Arizona/--
that it would raise serious constitutional questions if states couldn't
obtain information "necessary" to assess voter qualifications.
In this case, the relevant qualification is citizenship. So the
dispositive question is whether these two states' proof-of-citizenship
requirements are "necessary" to assess voter qualifications. The answer
is that they're not. The federal form already requires voter to swear or
affirm, under penalty of perjury, that they are U.S. citizens. It's also
telling that Congress declined to add language authorizing states to
impose additional proof-of-citizenship requirements when it enacted the
NVRA,as the EAC notes in its brief
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Kobach63.pdf>(p.
35).
If we had an epidemic of noncitizens voting, then Arizona's and Kansas'
arguments would be stronger. But there's no such evidence in the record
--- which shows 196 noncitizens registered in Arizona and 21 who either
registered or tried to register in Kansas, paltry numbers in states
with3.7 and 1.8 million registered voters respectively
<http://www.eac.gov/assets/1/Page/990-050%20EAC%20VoterSurvey_508Compliant.pdf>as
of 2012. And there was no evidence on how many of the handful of
noncitizens on the rolls used the federal form, as opposed to other
means of registration. For all the concerns that Secretary of State
Kobach has expressed about noncitizen voting,Arizona and Kansas' brief
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Kobach107.pdf>is
conspicuously fuzzy on this point. They claim there may be more (p. 57)
. . . but can't prove it.
It can't be the case, moreover, that the EAC has to rubber stamp every
state request to add new registration requirements, however
unreasonable. If Arizona and Kansas can implement their
proof-of-citizenship requirements, can states require
government-issued photo ID to register? DNA? A criminal background
check? A statement of mental competency from a licensed physician? All
of these documents bear some relationship to state voter qualifications.
But that doesn't mean that states are justified in demanding them --
much less that the EAC is required to accommodate state demands to
include them with the federal form. Eligible citizens could easily slide
down this slippery slope -- and right off the voting rolls.
The other problem concerns the district court's directive that the EAC
act on Arizona's and Kansas' request/even though the Commission had no
commissioner/s. At the end of their brief (p. 59), the states argue that
the EAC lacked the authority to make this decision because it had no
sitting commissioners. I think Arizona and Kansas are right on this
point, given thatthe Help America Vote Act requires at least three
commissioners <http://www.law.cornell.edu/uscode/text/42/15328>for the
EAC to take action. (In fairness to the district court, it appears to
have ordered EAC to act based on the DOJ's representation that EAC staff
had this power.) But without a quorum, the EAC lacked statutory
authority to decide the states' requests. Arizona and Kansas are right
on this point -- although it doesn't follow that they should win.
*What the Tenth Circuit Should Do*
Where does all this leave us? This is the really difficult question
presented by the/Kobach/case, on which the Tenth Circuit judges seem to
have been focused,as Doug Chapin highlights
<http://blog.lib.umn.edu/cspg/electionacademy/2014/08/whoa_whoa_whoa_10th_circuit_no.php>.
Kansas and Arizona say that the EAC had no choice but to modify the
federal form as they asked -- but they're wrong on the law, as I've
explained.
There are at least two viable options for the Tenth Circuit. One is to
punt, by vacating the district court's ruling and remanding with
instructions to send the case back to the EAC. The agency still has no
commissioners -- butnominations have been announced
<http://electionlawblog.org/?p=63460>so it's possible there will be a
quorum before too long. Even if the EAC gets new commissioners, however,
we can expect them to stalemate along party lines. And then what? In
Arizona, this controversy has already been going on for almost a decade.
While I don't agree with Arizona's and Kansas' legal position, they've
waited long enough for a judicial ruling on whether the EAC must grant
their requests. The old adage about justice delayed sometimes applies to
states as well as individuals.
There was, moreover, a thorough airing of the facts and law in the
district court, which was crystal clear on its view of the law -- and
would have been the same regardless of whether the EAC had
commissioners. We don't have to speculate. The district court explicitly
said that its "decision would be the same if a full commission had voted
4-0 to deny the states' requests." Sending the case back to the district
court for further EAC consideration would serve no purpose.
The other option is for the Tenth Circuit to decide the case on the
merits. While the district court may have been wrong to order EAC staff
to act on the states' requests, it could have ordered the EAC -- with or
without commissioners -- to modify the federal form if required by
federal law. A footnote in the Supreme Court's/Arizona/opinion mentions
this possibility, saying: "If the EAC proves unable to act on a renewed
request, Arizona would be free to seek a writ of mandamus to 'compel
agency action unlawfully withheld or unreasonably delayed.'" Although
the Court reserved the question whether such relief should be granted,
it would be transparently unfair to deny states a ruling and, if
warranted, relief due to circumstances beyond their control -- in this
case, congressional gridlock that left the EAC commissioner-less.
Thus, the Tenth Circuit can and should decide the case on the merits,
treating the district court's order as one to "compel agency action
withheld or unreasonably delayed." There's no point in sending it back
to the district court, which left no doubt on what it would have done,
with or without a quorum on the EAC. The lack of the quorum does mean
that the EAC's "decision," which it had no authority to make, shouldn't
get any judicial deference. But the Tenth Circuit should reverse the
district court, on the ground that Arizona isn't entitled to the relief
it seeks under any standard of review. Federal law doesn't require the
EAC to amend the federal form, because the states' requirements aren't
"necessary" to show that registrants are qualified to vote.
In other words, Arizona and Kansas are right that the EAC lacked
authority to make the decision it purported to make. But they're wrong
to argue that the EAC -- with or without a quorum of commissioners --
was obliged to add the proof-of-citizenship requirements they seek.
Whatever one's view on the merits, there's no good reason for the Tenth
Circuit to delay a ruling on that disputed question.
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Posted inElection Assistance Commission
<http://electionlawblog.org/?cat=34>,voter registration
<http://electionlawblog.org/?cat=37>
--
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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