[EL] Ohio early voting decision/more news 6/11/14
Rick Hasen
rhasen at law.uci.edu
Wed Jun 11 11:41:59 PDT 2014
Breaking: Federal Court Orders Ohio to Restore Weekend of Early
Voting <http://electionlawblog.org/?p=62265>
Posted on June 11, 2014 11:40 am <http://electionlawblog.org/?p=62265>by
Rick Hasen <http://electionlawblog.org/?author=3>
Federal district court judge Peter Economus just issuedthis order
<http://electionlawblog.org/wp-content/uploads/husted-order.pdf> in
/Obama for America v. Husted. /(I covered the earlier machinations in
this case before the 2012 elections, and wrote about the case
extensively in T
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>he 2012
Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>, 81 /George
Washington Law Review/ 1865 (2013).)
The background is complicated but here are the basics at this stage.
Following all the fights over early voting in 2012, the Ohio legislature
passed a new set of more restrictive voting laws for 2014 and beyond,
including cutting back on early voting the weekend before the election
(leading to a separate Voting Rights Act section 2 lawsuit claiming this
discriminates against African-American voters in part because of the
"Souls to the Polls" voting done on the Sunday before election day).
However, when Ohio did its cutback on early voting this time, it did not
repeal the earlier law (which was the focus of the earlier dispute in
this case) giving overseas and military voters (UOCAVA voters) who
happen to be in Ohio just before Election Day the option to vote on
those three days before election day.
The judge concluded that because Ohio continues to treat UOCAVA
voters better than other voters, the same equal protection problem
exists. As to the appropriate remedy, the court wrote:
Having determined that the Plaintiffs have succeeded on the merits
of their claims, the Court next considers whether a grant of
permanent injunctive relief is appropriate and the scope of that
relief. The Defendants do not oppose the grant of such relief and
concede that any injunction issued by the Court must require equal
in-person early voting hours for all eligible voters. The Plaintiffs
ask the Court to require Husted to set in-person early voting hours
for the final three days before all future elections consistent with
Directive 2012-50, which established hours for the 2012 presidential
election. On the other hand, the Defendants assert that the voting
schedule established by Directive 2014-06 remedies the
constitutional infirmities of the Ohio Revised Code because it
treats all voters equally. In the Defendants' view, Directive
2014-06 thus serves as a model for the relief appropriate in this
case. The Court, however, disagrees.
As noted by the Plaintiffs, Directive 2014-06 is inconsistent with
the Preliminary
Injunction in that it does not allow for in-person early voting on
the final two days before the 2014 general election. The loss of the
three final days of early voting for non-UOCAVA voters goes to the
heart of amended § 3509.03's constitutional deficiencies as
determined by the Court in both 2012 and today. As stated supra, the
Ohio Revised Code still contains differing and inconsistent
in-person early voting deadlines for UOCAVA and non-UOCAVA voters.
Accordingly, Directive 2014-06 cannot serve as a remedy to the
statutory problems, especially given that Directive 2014-06 only
applies to the 2014 elections and there is no guarantee that Husted
or another Secretary of State would adopt similar hours for future
elections. As also noted by the Plaintiffs, Directive 2014-06 is
facially inconsistent with § 3511.10's in-person early voting
deadline for UOCAVA voters of the close of business on the Monday
before an election.
Further, Directive 2014-06 does not expressly mention UOCAVA voters.
The Court is concerned by this fact because Directive 2012-35 also
did not expressly do so, and Husted took the position thatthat
directive should be interpreted to allow individual county Boards of
Election discretion as to when to set UOCAVA in-person early voting
hours on the three days preceding the 2012 presidential election.
Finally, while Directive 2014-06 may adopt an election schedule
approved by the Ohio Association of Election Officials ("OAEO"), the
fact that the OAEO is a non-partisan body is not relevant to the
constitutional deficiencies of § 3509.03 nor to the appropriate
remedy in this case.
Accordingly, as specified in the Judgment and Permanent Injunction
issued herewith, the Court will require Secretary of State Husted to
set uniform and suitable in-person early voting hours for all
eligible voters for the three days preceding all future elections.
However, the Court declines to mandate specific voting hours as
requested by the Plaintiffs in that historically voter turnout is
lower in a non-presidential election year. Even with this fact in
mind, Husted must set
in-person early voting hours that are consistent with this Opinion
and Order and the Judgment and Permanent Injunction.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voting
<http://electionlawblog.org/?cat=31>
"The Gift Tax Treatment of Donations to Social Welfare
Organizations" <http://electionlawblog.org/?p=62263>
Posted on June 11, 2014 11:17 am <http://electionlawblog.org/?p=62263>by
Rick Hasen <http://electionlawblog.org/?author=3>
Paul Caron
<http://taxprof.typepad.com/taxprof_blog/2014/06/the-gift-tax-treatment-.html>
links to the abstract of Matthew A. Melone
<http://www4.lehigh.edu/business/faculty/facultyprofile.aspx?Channel=%2FChannels%2FBusiness&WorkflowItemID=bce492e9-8cc7-4878-bcf1-3180a06bc586>
(Lehigh), /Gift Taxes on Donations to Social Welfare Organizations:
De-politicizing Social Welfare Organizations or Politicizing the IRS?/
<http://www.westlaw.com/find/default.asp?cite=12+DePaul+Bus.+%26+Com.+L.J.+51&RS=WLW2.05&VR=1.0>,
12 DePaul Bus. & Com. L.J. 51 (2013).
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Outside money pouring into governors races"
<http://electionlawblog.org/?p=62261>
Posted on June 11, 2014 11:15 am <http://electionlawblog.org/?p=62261>by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI:
<http://www.publicintegrity.org/2014/06/11/14826/outside-money-pouring-governors-races>"Through
March, the Republican Governors Association has spent five times more
around the country than it did at the same point four years ago while
the Democratic Governors Association's overall spending is double what
it was in 2010, according to data from the Internal Revenue Service."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Eric Cantor's Defeat Is Bad News for the Voting Rights Act"
<http://electionlawblog.org/?p=62259>
Posted on June 11, 2014 11:10 am <http://electionlawblog.org/?p=62259>by
Rick Hasen <http://electionlawblog.org/?author=3>
Of course Ari Berman
<http://www.thenation.com/blog/180194/eric-cantors-defeat-bad-news-voting-rights-act>
is right on this. But his column also contains something I had not heard:
The bill was written specifically with Cantor in mind, watered down
on the key issue of voter ID to attract GOP support. I was told
recently from a well-placed Capitol Hill source that Cantor planned
to eventually announce his support for the bill, but was waiting for
the right strategic moment. Now it's unlikely he will be in Congress
in 2014 and even more unlikely the legislation can get through the
House without him.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
'Reasonableness' and the Proposed Amendment to the Constitution on
Campaign Finance" <http://electionlawblog.org/?p=62257>
Posted on June 11, 2014 11:04 am <http://electionlawblog.org/?p=62257>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bauer skeptical
<http://www.moresoftmoneyhardlaw.com/2014/06/reasonableness-proposed-amendment-constitution-campaign-finance/>
of constitutional amendment co-sponsored by 42 Democratic Senators.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"On Trial's Tapes, Talk of New York Politics, Secret Cash and Strip
Clubs" <http://electionlawblog.org/?p=62255>
Posted on June 11, 2014 11:03 am <http://electionlawblog.org/?p=62255>by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2014/06/11/nyregion/on-trials-tapes-talk-of-new-york-politics-secret-cash-and-strip-clubs.html?hp&_r=0>:
The picture of New York City politicians emerging from secretly
recorded conversations at the bribery trial of State Senator Malcolm
A. Smith <http://nyti.ms/1obkwwl> is not one likely to be found in
high-school civics textbooks.
It is, the testimony indicates, a world where trust between men is
enhanced by visits to strip clubs, where cash for favors is passed
"under the table," where candidates are supported by party leaders
because of whom they promise to appoint as judges and commissioners.
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Posted in bribery <http://electionlawblog.org/?cat=54>, chicanery
<http://electionlawblog.org/?cat=12>
"Federal Court Denies Injunction to Democratic Governors
Association, Partially Dismisses Challenge to Connecticut's
Post-Citizens United Reforms" <http://electionlawblog.org/?p=62253>
Posted on June 11, 2014 10:55 am <http://electionlawblog.org/?p=62253>by
Rick Hasen <http://electionlawblog.org/?author=3>
CLC press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2493:june-10-2014-federal-court-denies-injunction-to-democratic-governors-association-partially-dismisses-challenge-to-connecticuts-post-citizens-united-reforms&catid=63:legal-center-press-releases&Itemid=61>:
Today, the U.S. District Court for the District of Connecticut
denied the Democratic Governors Association's (DGA) request for a
preliminary injunction and partially dismissed the DGA's challenge
to a number of the State of Connecticut's post-/Citizens United/
campaign finance reforms. The DGA was seeking to make unlimited
"independent" expenditures in support of Connecticut Governor Dannel
P. Malloy's candidacy while at the same time having Governor Malloy
fundraise for the DGA outside of Connecticut's contribution limits
and source prohibitions, and in many cases without disclosure.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Groups on Left Call on Democratic Alaska Senator to Enter into Deal
to Limit Outside Money in Campaign
<http://electionlawblog.org/?p=62250>
Posted on June 11, 2014 10:53 am <http://electionlawblog.org/?p=62250>by
Rick Hasen <http://electionlawblog.org/?author=3>
Very interesting press release via email (my bet is that Begich will
decline):
*Common Cause * Public Citizen*
*Proposal to Curb Outside Spending in Alaska's U.S. Senate Race Is a
Good Step, But Must Get Sign-on From All Candidates to Be Effective*
*/Candidate Dan Sullivan Called on Mark Begich to Take the 'Alaska
Agreement'/*
June 10, 2014
WASHINGTON, D.C. -- A proposal made today to curb outside spending
in Alaska's U.S. Senate race is an excellent way for candidates to
reclaim control of their election contests, but it must be agreed to
by all major candidates to be effective, Common Cause and Public
Citizen said.
Republican candidate Dan Sullivan called on Democratic incumbent
U.S. Sen. Mark Begich to sign an "Alaska Agreement
<http://qz.salsalabs.com/dia/track.jsp?v=2&c=gIwOTAZKsOd5sL4WNbOkJto6htHWnd%2F2>"
calling on outside groups to stop funding TV and radio ads by July 4
that identify either of them and support or attack their candidacies.
"Because of the U.S. Supreme Court's ruling in /Citizens United v.
Federal Election Commission/, Alaskans are being subjected to a
historic torrent of mudslinging, negative attack ads financed by
outside organizations," said Robert Weissman, president of Public
Citizen. "Outside groups are spending millions of dollars even
before the primary election, with the aim of influencing the outcome
of the general election."
The proposed Alaska Agreement is modeled after the "People's Pledge
<http://qz.salsalabs.com/dia/track.jsp?v=2&c=U6Wua5SYDh2imjlOw5XHEEewIID3urDc>"
made by Massachusetts Senate candidates Scott Brown and Elizabeth
Warren in 2012. Designed to curb the involvement of out-of-state
"dark money" groups and anonymous donors in campaigns, the agreement
required each candidate to make charitable contributions from his or
her campaign treasury to offset funds spent on the candidate's
behalf by "independent" super PACs and nonprofit groups.
"We hope that all candidates can agree to a pledge immediately,"
said Karen Hobert Flynn, Common Cause's senior vice president for
strategy and programs. "If they cannot, we urge the Republican and
Democratic nominees to agree to a pledge immediately upon completion
of the August primary."
Rhode Island's three Democratic gubernatorial candidates --
Providence Mayor Angel Taveras, Treasurer Gina Raimondo and Clay
Pell -- recently signed the pledge. In Kentucky, Alison Lundergan
Grimes, Democratic contender for the U.S. Senate seat held by U.S.
Sen. Mitch McConnell, recently called on McConnell to take the
People's Pledge.
The Brown-Warren contest was among the most expensive Senate races
of 2012, but a post-election study by Common Cause Massachusetts
found that only 9 percent of the money spent came from outside
groups. In Virginia and Wisconsin, which had similarly contested
races and no pledge, more than 60 percent of all spending was by
dark money organizations.
"According to polls, 80 percent of Americans have said they would
support limits on the amount of money given to groups trying to
influence U.S. elections," Weissman said. "By signing the People's
Pledge, candidates across the nation can give the American people
what they want -- an election free of corporate corruption."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Lone prosecutor in Gessler anti-vote-fraud campaign drops first
case" <http://electionlawblog.org/?p=62248>
Posted on June 11, 2014 10:51 am <http://electionlawblog.org/?p=62248>by
Rick Hasen <http://electionlawblog.org/?author=3>
More evidence
<http://www.coloradoindependent.com/147774/colorado-voter-fraud-case-dropped-had-been-touted-as-first-of-many>
of great exaggeration by SOS Gessler of the extent of voter fraud in
Colorado.
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Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>,
The Voting Wars <http://electionlawblog.org/?cat=60>
In Defense of the "Revolving Door"
<http://electionlawblog.org/?p=62246>
Posted on June 11, 2014 10:42 am <http://electionlawblog.org/?p=62246>by
Rick Hasen <http://electionlawblog.org/?author=3>
Roll Call:
<http://blogs.rollcall.com/218/toby-moffett-settles-in-at-mayer-brown-life-after-congress/?dcz=>
As a longtime lobbyist who happens to be a former member of
Congress, ex-Rep. Toby Moffett, D-Conn., thinks criticism of the
so-called revolving door is a bit unfair. "You see former
quarterbacks and all-star baseball players just moving seamlessly
into the media and they're treated with reverence because they know
the game," he said, adding, "Why wouldn't the same be true for
people who know the political game?"
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Posted in lobbying <http://electionlawblog.org/?cat=28>
Political Fragmentation and Eric Cantor
<http://electionlawblog.org/?p=62244>
Posted on June 11, 2014 9:01 am <http://electionlawblog.org/?p=62244>by
Richard Pildes <http://electionlawblog.org/?author=7>
I have been arguing (as in this Washington Post/Monkey Cagepiece
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/02/06/how-to-fix-our-polarized-politics-strengthen-political-parties/>)
that political fragmentation is a defining attribute of our political
era. Fragmentation is quite different from the partisan polarization of
politics that has drawn far greater attention; polarization is central,
too, but political fragmentation is crucial to understanding why
governance is so difficult today. The primary-election defeat of Eric
Cantor, the House majority leader who was also strongly supported by the
party "establishment," now offers a prime example of the dynamics of
political fragmentation.
Here is how I have described political fragmentation:
By fragmentation, I mean the external diffusion of political power
away from the political parties as a whole and the internal
diffusion of power away from the party leadership to individual
party members and officeholders. It is political fragmentation that
makes it that much more difficult, in a political world that rests
on polarized parties, for party leaders nonetheless to engage in the
kinds of negotiations, compromises, and pragmatic deal-making that
enable government to function effectively, at least in areas of
broad consensus that government must act in /some/ way (budgets,
debt-ceiling increases). And because of political fragmentation,
party leaders in all our political institutions have less capacity
to play this kind of leadership role than in many previous eras.
When political fragmentation that makes it that much harder for
party leaders to command their parties is added to highly polarized
parties, the mix is highly toxic to the capacity of our political
institutions to function effectively.
In response
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/02/14/our-political-parties-are-networked-not-fragmented/>,
Seth Masket argued that our political parties are "networked, not
fragmented." And Jonathan Bernstein endorsed
<http://www.bloombergview.com/articles/2014-02-14/do-we-know-how-to-reform-political-parties->
Seth's view that this networked view better characterizes our situation
than the idea of political fragmentation I seek to emphasize.
After Cantor's defeat, I want to push back harder on the political
fragmentation point. Conceiving the political parties as "networked"
with various non-party actors presents a picture of concerted action and
agenda setting that misses a significant element of our political
reality. It's true of course that some SuperPacs that do not formally
co-ordinate with campaigns nonetheless are, in effect, supportive
elements of campaigns that work in conscious parallelism with the
campaign's goals. Networking of that sort does go on. But the
communications and technology revolutions now enable forces outside the
control of the party establishment and leadership to mobilize and
organize outsider and insurgent support in ways far cheaper and more
effective than before.
And these forces are not at all "networked" with the party. On the
contrary, they are able to upend and flatten the party hierarchy ---
whether it is formal party leaders or the previously dominant,
"establishment" forces within the parties. If we focus only on
polarization, or only on the way some outside forces in the system do
network with the party leadership, we miss the hugely consequential fact
and forces of political fragmentation that are so central to
understanding our era.
The forces of party centralization are, of course, struggling back
against these forces of fragmentation, as we saw in the many successful
incumbent efforts to fend of primary challengers. But the defeat of the
House majority leader in a primary is powerful further evidence, if any
was needed, of the need to understand the forces of political fragmentation.
I discussed these issues of political fragmentation more in the 2014
Ralph Gregory Elliot Lecture I gave at Yale Law School, and I hope to
post a public draft of that in the next month or so.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
--
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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