[EL] ELB News and Commentary 6/6/14
Rick Hasen
rhasen at law.uci.edu
Thu Jun 5 20:06:23 PDT 2014
California's Meh Primary <http://electionlawblog.org/?p=62138>
Posted on June 5, 2014 8:02 pm <http://electionlawblog.org/?p=62138>by
Rick Hasen <http://electionlawblog.org/?author=3>
SacBee editorial
<http://www.sacbee.com/2014/06/05/6458621/editorial-an-election-not-to-remember.html>:
Speaking of embarrassing, 287,590 Californians voted on election day
for Sen. Leland Yee for secretary of state, the chief elections
officer, even though he faces federal corruption charges including
allegations of gun-running.
Maybe Yee's voters were confused. Perhaps they were using their
votes as a prank. Whatever.
Yee won't make it into the runoff. But he led Dan Schnur, a USC
teacher and former political operative, and Derek Cressman, former
head of California Common Cause. Both ran on political reform
platforms, not that many of us noticed.
Schnur ran as an independent, which shows that even though more than
20 percent of Californians decline to state a party preference, a
candidate's party affiliation counts. His defeat will be a
cautionary tale for future candidates who don't state a party
preference.
California's new top-two primary system, combined with low turnout,
complicated matters for insiders and party leaders. They hate the
jungle primary and seek to undermine it because they have a harder
time scripting the outcome.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, primaries
<http://electionlawblog.org/?cat=32>
"Why It Matters That Politicians Have No Experience of Poverty"
<http://electionlawblog.org/?p=62136>
Posted on June 5, 2014 7:31 pm <http://electionlawblog.org/?p=62136>by
Rick Hasen <http://electionlawblog.org/?author=3>
Stephen Lurie writes
<http://www.theatlantic.com/politics/archive/2014/06/why-it-matters-that-politicians-have-no-experience-of-poverty/371857/>for
/The Atlantic./
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Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>
"Indicted Utah businessman says he channeled his own $50K to US Sen.
Mike Lee's 2010 campaign" <http://electionlawblog.org/?p=62134>
Posted on June 5, 2014 7:28 pm <http://electionlawblog.org/?p=62134>by
Rick Hasen <http://electionlawblog.org/?author=3>
AP reports.
<http://www.therepublic.com/view/story/3dd798901be2449f8c5f5c6be0bec5de/UT--Attorneys-General-Investigation>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"California House Primary Might Not Be Decided Until July (Updated)"
<http://electionlawblog.org/?p=62130>
Posted on June 5, 2014 5:07 pm <http://electionlawblog.org/?p=62130>by
Rick Hasen <http://electionlawblog.org/?author=3>
Roll Call:
<http://atr.rollcall.com/california-31st-house-district-primary-results/>
**California's 31st District primary is still too close to call
<http://atr.rollcall.com/california-primary-results-2014/>, with the
Democratic frontrunner holding a 183-vote lead ahead of the
third-place Republican and more ballots yet to be counted.
*"Updated 8:18 p.m. | *Democrats have claimed victory
in California's 31st District primary, with the party's candidate
holding on to a 183-vote lead ahead of the third-place Republican,
and more ballots yet to be counted.
Redlands Mayor Pete Aguilar, a Democrat, maintained his second-place
standing <http://atr.rollcall.com/california-primary-results-2014/>
in the top-two primary Thursday, after state election officials
tallied more than 30,000 outstanding mail-in ballots.""
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Posted in campaigns <http://electionlawblog.org/?cat=59>, election
administration <http://electionlawblog.org/?cat=18>
Daniel Stid on CA Top Two <http://electionlawblog.org/?p=62128>
Posted on June 5, 2014 4:41 pm <http://electionlawblog.org/?p=62128>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.hewlett.org/blog/posts/primary-thing#.U5D6ZER8nQY.twitter>,
at the Hewlett Foundation Blog:
Can the top two primary reverse or at least alleviate polarization?
Last fall, at the height of the government shut down, pundits
<http://www.washingtonpost.com/blogs/govbeat/wp/2013/10/18/the-solution-to-hyper-partisanship-already-exists-and-it-doesnt-involve-gerrymandering/> pointed
to California's primary innovation as a model for the nation.
Meanwhile, leading political scientists
<https://www.princeton.edu/%7Enmccarty/PrimarySystems.pdf> have
found little evidence that the extent to which primaries are open or
closed has much to do with polarization, and California should be no
exception to this rule.
I think the truth probably lies somewhere in between. Certainly the
dynamics are shifting in some districts. Based on Tuesday's results,
at least seven out of California's 53 House races will have
candidates of the same party running against each other in November.
For example, in CA-17
<http://www.politico.com/story/2014/06/mike-honda-ro-khanna-california-17-district-advance-general-election-2014-107410.html>,
in the heart of Silicon Valley, two Democrats will be facing off,
with the liberal incumbent Mike Honda defending his seat against a
well-funded centrist challenger, Ro Khanna. To take another example,
in CA-4
<http://placercountyonline.com/2014/mcclintock-moore-face-november/>, in
the rural central Sierra, the incumbent Tea Party Republican Tom
McClintock will have to fend off Art Moore, a West Pointer and Iraq
War veteran running as more moderate (though still conservative)
Republican. In each instance, the challenger will be able to appeal
not only to his wing of the party but also to the independents and
voters from the other party.
I have also been struck by what I have heard in conversations with
several California political hands, people running for office,
anticipating running, or managing and funding the candidacies of
others. To a person they see the top two primary as a big deal, one
that will drive central tendencies in the state's politics. They
haven't thought much about the idealism of the reformers or the
analytical skepticism of the political scientists; they simply
recognize that the rules of the game they are playing have shifted
and they are preparing new strategies accordingly.
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Posted in political parties <http://electionlawblog.org/?cat=25>,
primaries <http://electionlawblog.org/?cat=32>
CO SOS Denies Citizens United a Press Exemption for
Anti-Hickenlooper Film While Suggesting the Exemption is
Constitutionally Required <http://electionlawblog.org/?p=62125>
Posted on June 5, 2014 3:19 pm <http://electionlawblog.org/?p=62125>by
Rick Hasen <http://electionlawblog.org/?author=3>
Interesting analysis
<http://electionlawblog.org/wp-content/uploads/Citizens-United-Declaratory-Order-FINAL.pdf>
in which the Secretary says:
While the Colorado Secretary of State's office is very concerned
with First-Amendment rights, Colorado courts have repeatedly held
that the Secretary does not have the authority to apply settled
federal constitutional law to Colorado. In the same vein, the
Secretary lacks the authority to either extend the FEC's press
exemption to Colorado or create a new press exemption,
notwithstanding the fact that the text of Colorado's campaign
finance provisions are nearly identical to those at the federal level.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Feds say state election officials wrong on Native language rules"
<http://electionlawblog.org/?p=62123>
Posted on June 5, 2014 12:29 pm <http://electionlawblog.org/?p=62123>by
Rick Hasen <http://electionlawblog.org/?author=3>
Anchorage Daily News
<http://www.adn.com/2014/06/04/3502213/feds-say-state-election-officials.html?sp=/99/100/&ihp=1>:
"A federal judge on Wednesday overruled state election officials and
said the constitutional right to vote requires Alaska to translate all
election materials into Native languages for voters with limited English
skills."
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
"Not So Super Tuesday" <http://electionlawblog.org/?p=62121>
Posted on June 5, 2014 10:49 am <http://electionlawblog.org/?p=62121>by
Rick Hasen <http://electionlawblog.org/?author=3>
That's the lead story in this week's ElectionLine Weekly
<http://www.electionline.org/index.php/electionline-weekly>.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
voting <http://electionlawblog.org/?cat=31>
Uh-Oh: "We just got off the phone with the McDaniel campaign ... and
they need our help!" <http://electionlawblog.org/?p=62119>
Posted on June 5, 2014 10:42 am <http://electionlawblog.org/?p=62119>by
Rick Hasen <http://electionlawblog.org/?author=3>
Shane Goldmacher
<http://www.nationaljournal.com/politics/did-a-tea-party-group-just-illegally-coordinate-with-chris-mcdaniel-20140605>:
"Did a Tea-Party Group Just Illegally Coordinate With Chris McDaniel?"
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Hinds Sheriff's Dept. denies allowing McDaniel staffers access to
courthouse after hours" <http://electionlawblog.org/?p=62117>
Posted on June 5, 2014 10:36 am <http://electionlawblog.org/?p=62117>by
Rick Hasen <http://electionlawblog.org/?author=3>
But
<http://www.clarionledger.com/story/news/2014/06/05/sheriffs-department-denies-allowing-mcdaniel-staffers-access-courthouse-hours/10008389/>:
Hinds County Circuit Clerk Barbara Dunn says it would be virtually
impossible to tamper with ballots after they make it to her office.
All ballots including absentee were locked inside a vault in her
office, which was locked when everyone left Tuesday night between 11
p.m. and 11:30 p.m, Dunn said.
"It would be very hard for anyone to get into my vault," Dunn said.
"And I have an alarm system that is turned on that would make a loud
sound if anyone opens the vault."
Precinct boxes containing pencils and pens, but no ballots, would
have been the only things left unsecure in the hallways of the
courthouse, Dunn said.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, election
administration <http://electionlawblog.org/?cat=18>
Larry Tribe on (Non-)Lessons of Schuette for Same Sex Marriage Cases
<http://electionlawblog.org/?p=62115>
Posted on June 5, 2014 10:13 am <http://electionlawblog.org/?p=62115>by
Rick Hasen <http://electionlawblog.org/?author=3>
Fascinating
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/05/by-prof-laurence-tribe-the-roberts-court-forging-equality-in-time-and-politics/>
build on idea Justices' talk about democratic process often just rhetoric:
It would therefore be ill-advised for casual readers of these
opinions to make too much of the justices' language celebrating or
denigrating democratic process. Substantive beliefs about equality
are the principal driver here. That is why Justice Antonin Scalia,
for instance, could pen a celebration of democracy in /Windsor/ (the
Defense of Marriage Act case) while standing with one foot planted
in the freshly-dead corpse of the Voting Rights Act (and while
urging the court to invalidate all school integration and
affirmative action programs). And it is why Roberts, who otherwise
seems genuinely to care about democratic process (as shown, for
instance, by his ruling in the /Health Care Case/), gives it
virtually no respect in race cases, unless democracy happened to
produce a conservative outcome.
This lesson is particularly important for the same-sex marriage
context. Quite a few commentators have ripped some of Kennedy's
comments in /Schuette/ about democratic process out of context and
insisted that they support bans on same-sex marriage. Not so. In
equality cases, general language about democracy is mostly just
rhetoric. The respect it appears to embody almost invariably
dissipates when the substance of the legislation under review
collides with where any given justice thinks the Constitution impels
us. For that reason, /Windsor/'s potent comments about the origins
and nature of hostility to marriage equality, and about the denial
of dignity such hostility effects, tell us much more about the
future of marriage equality than anything in /Schuette/.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15>
"Voting in America" Event at Library of Congress June 11
<http://electionlawblog.org/?p=62113>
Posted on June 5, 2014 9:45 am <http://electionlawblog.org/?p=62113>by
Rick Hasen <http://electionlawblog.org/?author=3>
This looks great <http://thehill.com/event/207999-voting-in-america>.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Proving Who You Are: The Legal Battle Over Voter ID Laws"
<http://electionlawblog.org/?p=62111>
Posted on June 5, 2014 9:16 am <http://electionlawblog.org/?p=62111>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jerry Goldfeder and Myrna Perez have written this analysis
<http://colreaction.stroock.com/reaction/RSProcess.asp?RSID=8C8408E4C0ED1E83CF231B45B3787D5&RSTYPE=OPENATTACH>
for the /NY Law Journal./
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>
"KY Registry of Election Finance advises that KY aggregate
contribution limit to PACs is unconstitutional under #McCutcheon"
<http://electionlawblog.org/?p=62108>
Posted on June 5, 2014 8:39 am <http://electionlawblog.org/?p=62108>by
Rick Hasen <http://electionlawblog.org/?author=3>
Eric Lycan tweets
<https://twitter.com/SteptoePolitics/status/474571409017290752> about
this just-issued advisory opinion
<http://electionlawblog.org/wp-content/uploads/AO-2014-003.pdf>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Democrats unveil new data program to boost voter registration"
<http://electionlawblog.org/?p=62106>
Posted on June 5, 2014 8:16 am <http://electionlawblog.org/?p=62106>by
Rick Hasen <http://electionlawblog.org/?author=3>
MSNBC reports
<http://www.msnbc.com/msnbc/democrats-unveil-new-software-voter-registration>.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, voter
registration <http://electionlawblog.org/?cat=37>
"John Roberts' Constitutional Avoidance" and Anti-Avoidance
<http://electionlawblog.org/?p=62104>
Posted on June 5, 2014 7:52 am <http://electionlawblog.org/?p=62104>by
Rick Hasen <http://electionlawblog.org/?author=3>
Damon Root writes
<http://reason.com/archives/2014/06/04/john-roberts-constitutional-avoidance>
on the Chief Justice's decision in Bond. v. US, analogizing it to the
Chief's decision in the health care case.
As I noted the other day, Richard Re
<http://richardresjudicata.wordpress.com/2014/06/03/bond-and-the-doctrine-of-one-last-chance/#more-564>saw
the avoidance parallels to /NAMUDNO./
The important point is that the Chief (and others) on the Court use the
constitutional avoidance when it is convenient, and ignore it when it
isn't. Case in point: the Court easily could have used constitutional
avoidance to avoid the constitutional issue in /Citizens United/.
Instead, the Court practiced "anti-avoidance," reaching out to decide an
issue it did not need to. See my Constitutional Avoidance and
Anti-Avoidance by the Roberts Court
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669>in the
/Supreme Court Review./
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Posted in statutory interpretation <http://electionlawblog.org/?cat=21>,
Supreme Court <http://electionlawblog.org/?cat=29>
Democrats Unlikely to Have Supermajorities in Next CA Legislature
<http://electionlawblog.org/?p=62102>
Posted on June 5, 2014 7:02 am <http://electionlawblog.org/?p=62102>by
Rick Hasen <http://electionlawblog.org/?author=3>
So reports
<http://www.latimes.com/local/la-me-pol-california-legislature1-20140605-story.html>the
LA Times.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, legislation
and legislatures <http://electionlawblog.org/?cat=27>
"McDaniel rep, others locked in courthouse"
<http://electionlawblog.org/?p=62100>
Posted on June 5, 2014 6:54 am <http://electionlawblog.org/?p=62100>by
Rick Hasen <http://electionlawblog.org/?author=3>
Updated story
<http://www.clarionledger.com/story/news/2014/06/04/tea-party-official-locked-inside-courthouse/9963579/>
from the Clarion Ledger with the subhead: "An official investigation has
been opened into three people who were found locked in the Hinds County
Courthouse hours after it was closed by election officials Tuesday after
returns had been counted in the Republican primary for U.S. Senate."
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Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery
<http://electionlawblog.org/?cat=12>
"Minor player in GOP Senate race has major impact"
<http://electionlawblog.org/?p=62098>
Posted on June 5, 2014 6:51 am <http://electionlawblog.org/?p=62098>by
Rick Hasen <http://electionlawblog.org/?author=3>
Clarion-Ledger
<http://www.clarionledger.com/story/news/2014/06/04/minor-player-gop-senate-race-major-impact/9996319/>:
A relatively unknown Mississippi man caused a nationally watched
primary Tuesday night involving a veteran U.S. senator and a tea
party rising star to end with no winner.
His was the third name on the ballot.
The day following the indecisive vote, former candidate Thomas Carey
said his everyday life has been the same, save for calls from
national media outlets.
"I haven't received any response from people here because, as you
know, no one knows who the hell I am," Carey said with a chuckle,
followed by a quick, "Excuse the language."
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Posted in campaigns <http://electionlawblog.org/?cat=59>, third parties
<http://electionlawblog.org/?cat=47>
VRAA DOA? <http://electionlawblog.org/?p=62096>
Posted on June 5, 2014 6:49 am <http://electionlawblog.org/?p=62096>by
Rick Hasen <http://electionlawblog.org/?author=3>
It is sure looking that way
<http://www.sacbee.com/2014/06/04/6458206/voting-rights-change-stuck-in.html>.
And it is no surprise. <http://electionlawblog.org/?p=58021>As I wrote
the day the bill dropped in January:
*The politics and path dependence.* Despite these constitutional
issues, I would bet that the VRAA would have passed in 2006 and the
Supreme Court would have upheld it despite the constitutional issues
flagged in points 2 and 3 above. The Supreme Court would have seen
Congress making a broad and real effort to update the coverage
formula, and to take steps toward winding down broad preclearance.
But path dependence is everything. Congress did not act, even after
the Supreme Court's ruling in /NAMUDNO/ in 2009 warning the act was
unconstitutional. /Shelby County/'s equal sovereignty principle now
hangs out there as the law.
In the meantime, AG Holder hasantagonized Texas Republicans
<http://www.nationallawjournal.com/id=1202613130666/Holders+TexasSize+Gambit+Will+It+Save+the+Voting+Rights+Act%3Fmcode=0&curindex=0&curpage=ALL>
and Tea Party types by going after Texas and North Carolina for bail
in. Texas Republicans will not be happy they get covered again under
the new VRAA coverage formula. Conservatives in the House will fight
against this. It is not clear that John Boehner will want to expend
political capital on this (though the optics of supporting voting
rights can be good---it will come with a lot of resistance). I also
expect opposition among Senate Republicans, where, for legislation,
the filibuster remains alive and well. Will Sen. Reid make this a
priority? I am pessimistic that with the general dysfunction of
Congress in particular and antagonism over singling out certain
states now, the Act will pass out of Congress.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
--
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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