[EL] ELB News and Commentary 3/28/14
Rick Hasen
rhasen at law.uci.edu
Thu Mar 27 19:53:18 PDT 2014
SOCLASS II: Elections, Law and Democracy
<http://electionlawblog.org/?p=59292>
Posted on March 27, 2014 7:50 pm <http://electionlawblog.org/?p=59292>by
Rick Hasen <http://electionlawblog.org/?author=3>
[bumping to the top for tomorrow's event]
Looking forward to this event <http://soclass.org/> at Whittier Law
School on March 28. Here is the conference schedule
<http://soclass.org/conference-schedule>. I'll be giving thekeynote,
<http://soclass.org/elections-law-and-democracy>"Abuse of Discretion:
The U.S. Supreme Court's Indefensible Use of Evidence in Election Law
Cases."
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"GOP Gripes About 'BullShit' Vote"
<http://electionlawblog.org/?p=59767>
Posted on March 27, 2014 7:39 pm <http://electionlawblog.org/?p=59767>by
Rick Hasen <http://electionlawblog.org/?author=3>
Straight out of
<http://thehill.com/homenews/house/201950-gop-gripes-about-bull-vote>
"House of Cards:"
Medicare doctor payments on Thursday without a full roll call vote.
"Outrageous," Rep. Louie Gohmert (R-Texas) told The Hill after
complaining about the maneuver to a colleague. "I think it's
outrageous."
House Republican leaders had planned to bring up the "doc fix" under
a procedure requiring a two-thirds majority to pass, but after a
series of closed-door meetings on Thursday morning, they determined
they didn't have the votes to meet that threshold and didn't want to
stay in session long enough to set up a simple majority vote.
So with just a few members on the House floor before a scheduled
vote on an unrelated Ukraine measure, Republicans brought up the
Medicare bill by voice vote. When no one in the chamber objected,
the measure passed.
"Bullshit," said a visibly annoyed Rep. Mick Mulvaney (R-S.C.) as he
emerged from the floor following the Ukraine vote. When Mulvaney was
asked to comment about the upcoming GOP budget, he replied: "I can't
talk about the budget because I'm so pissed about the [doc fix]."
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68>
"Prosecutors must prove Yee knew money was pay for official acts"
<http://electionlawblog.org/?p=59765>
Posted on March 27, 2014 5:44 pm <http://electionlawblog.org/?p=59765>by
Rick Hasen <http://electionlawblog.org/?author=3>
LA Times
<http://www.latimes.com/local/political/la-me-pc-yee-legal-20140327,0,5526895.story#axzz2xDJGQW6X>:
"Campaign contribution cases are the trickiest," said Dennis
Riordan, one of San Francisco's top appellate criminal defense lawyers.
The Supreme Court has ruled that "people are entitled to donate to
candidates to influence their actions and candidates are entitled to
take into account the desires of their campaign donors when they
vote," Riordan said.
Because of that rule, federal prosecutors will have to prove that
Yee understood the money he received was payment for official acts,
Riordan said.
"You have to prove mental state, prove that was what the public
official was thinking," Riordan said.
The complaint against Yee said he repeatedly objected when
undercover agents suggested the money represented "pay for play"
transactions.
"I have never seen a case in which a complaint of public corruption
conceded there were exculpatory statements of that kind," Riordan said.
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Posted in bribery <http://electionlawblog.org/?cat=54>, campaign finance
<http://electionlawblog.org/?cat=10>
"Joshua Spivak on Colorado's proposed recall election reform"
<http://electionlawblog.org/?p=59763>
Posted on March 27, 2014 3:52 pm <http://electionlawblog.org/?p=59763>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.coloradoindependent.com/146702/joshua-spivak-on-colorados-proposed-recall-election-reform>.
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Posted in recall elections <http://electionlawblog.org/?cat=11>
"Federal Court Orders N.C. Lawmakers to Release E-Mail Related to
Passage of State's Sweeping Voter Suppression Law"
<http://electionlawblog.org/?p=59761>
Posted on March 27, 2014 3:33 pm <http://electionlawblog.org/?p=59761>by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release
<http://www.southerncoalition.org/nc-voting-rights-case-judge-orders-legislature-to-release-email/>
and order.
<http://www.southerncoalition.org/wp-content/uploads/2014/03/order.pdf>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
Are Things Getting Better with Restrictive Voting Laws? The Answer
is Unclear <http://electionlawblog.org/?p=59759>
Posted on March 27, 2014 3:18 pm <http://electionlawblog.org/?p=59759>by
Rick Hasen <http://electionlawblog.org/?author=3>
I've spoken to a number of reporters in the last few weeks doing stories
on whether the wave of restrictive voting laws coming out of mostly
Republican legislatures seems to be cresting, and perhaps the situation
is becoming better. Based upon this new Pam Fessler NPR story
<http://www.npr.org/2014/03/27/295331365/voting-rights-fight-takes-a-new-direction>,
it appears to be a point of view pushed by the Brennan Center.
Like Pam, I'm not so sure that's right.
As I've chronicled
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>, the 2012
elections saw both a popular and judicial backlash against some of the
most restrictive voting rules passed mostly by Republican legislatures
in the runup to the 2012 elections. (That backlash included a number of
voter id laws put on hold, and the Sixth Circuit use /Bush v. Gore/ to
limit Ohio cutbacks in early voting as well as restrictive rules on
counting provisional ballots.) At the end of the 2012 piece, I
speculated that Republicans might see these restrictive rules as in
tension with a desire to make the party more inclusive and thereby more
competitive in presidential elections. I pointed to both Florida's
restoration of some cut early voting time as well as WI Gov. Scott
Walker's backing away from an attempt to get rid of Wisconsin's same day
voter registration.
But that backing away in 2012 has faded away and we are seeing all kinds
of new restrictions. Just today, Gov. Walker signed a bill cutting back
<http://www.jsonline.com/news/statepolitics/scott-walker-signs-asbestos-lawsuit-bill-b99234687z1-252672541.html>
on some (though not all that the legislature wanted) of early voting in
Wisconsin. Kansas and Arizona (soon to be joined byother states
<http://www.nytimes.com/2014/03/22/us/after-ruling-alabama-joins-2-states-in-moving-to-alter-voting-rules.html?action=click&module=Search®ion=searchResults%230&version=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry154%23%2Fhasen%2Fsince1851%2Fallresults%2F1%2Fallauthors%2Fnewest%2F>)
are now pushing <http://electionlawblog.org/?p=59556> for greater
citizenship checks for voters registering using the federal form. Worse,
the precedent set by the Kobach case <https://t.co/RKICU3GCP5> could
give states greater power to restrict registration and voting
<http://excessofdemocracy.com/blog/2014/3/necessary-voter-eligibility-enforcement-under-kobach-v-eac>
under the guise of enforcing "voter qualifications." Freed of Section
5 of the Voting Rights Act, North Carolina
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068> enacted the
toughest set of voting restrictions in a single measure I can think of
since at least the passage of the 1965 Voting Rights Act. Texas is
aggressively enforcing its tough voter id law. Both North Carolina and
Texas are fighting hard against the Department of Justice's Voting
Rights Act lawsuits against the states. Prospects to restore through
congressional legislation some of the protections of the Voting Rights
Act lost through the Supreme Court's /Shelby County /decision are
uncertain at best. The U.S. Election Assistance Commission, which has a
crucial role in certifying voting technology and providing best
practices for states and localities running elections, is still dead,
thanks to a blockage by Republicans of nominees in the Senate.
So are things really getting better? I think it is too early to say
that, and some signs point in the opposite direction.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Elections Clause <http://electionlawblog.org/?cat=70>, The Voting Wars
<http://electionlawblog.org/?cat=60>
"Scott Walker signs early-voting bill, uses partial veto to extend
hours" <http://electionlawblog.org/?p=59757>
Posted on March 27, 2014 3:03 pm <http://electionlawblog.org/?p=59757>by
Rick Hasen <http://electionlawblog.org/?author=3>
/Milwaukee Journal-Sentinel/:
<http://www.jsonline.com/news/statepolitics/scott-walker-signs-asbestos-lawsuit-bill-b99234687z1-252672541.html>
In the early voting measure, Walker used his partial veto powers ---
the most powerful in the nation --- to nix language restricting
early voting hours in Milwaukee and other cities to 45 hours a week
while leaving in place a provision to prohibit early voting on weekends.
Democrats have decried those voting limits as the latest effort by
the GOP to make it harder for minorities, veterans, the elderly and
students to vote, saying it amounted to "fixing elections" rather
than problems.
Republicans said they were advancing the measure because they want
voting hours to be more uniform around the state, particularly
because rural officials don't have the staff to keep clerks' offices
open for early voting as late as their urban counterparts.
Under the legislation as rewritten by Walker, early voting in
clerk's offices could take place solely on weekdays from 8 a.m. to 7
p.m. but would not face the additional limit of 45 hours per week.
Walker also struck out a part of the bill added by Senate
Republicans that would have required the state to pay for half of
the expenses for smaller communities offering early voting at a cost
of about $200,000.
The governor's changes softened the effect of the bill but are
unlikely to appease Democrats.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
NYT Editorial Blog Urges Gov. Cuomo to Sign National Popular Vote
Bill <http://electionlawblog.org/?p=59755>
Posted on March 27, 2014 2:25 pm <http://electionlawblog.org/?p=59755>by
Rick Hasen <http://electionlawblog.org/?author=3>
See here
<http://takingnote.blogs.nytimes.com/2014/03/26/shouldnt-every-vote-count/>.
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Posted in electoral college <http://electionlawblog.org/?cat=44>
"Florida halts purge of noncitizens from voter rolls"
<http://electionlawblog.org/?p=59753>
Posted on March 27, 2014 2:22 pm <http://electionlawblog.org/?p=59753>by
Rick Hasen <http://electionlawblog.org/?author=3>
/Tampa Bay Times/
<http://www.tampabay.com/news/politics/elections/florida-halts-purge-of-noncitizens-from-voter-rolls/2172206>:
"Gov. Rick Scott's chief elections official is suspending Florida's
efforts to remove noncitizens from the voter rolls, citing changes to a
federal database used to check voters' citizenship status."
Here
<http://dos.myflorida.com/media/29715/secretary_detzner_project_integrity_memo_to_supervisors_of_elections.pdf>
is the FL. Secretary of State's memo on the change.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"Voter ID: Where Are We Now?" <http://electionlawblog.org/?p=59751>
Posted on March 27, 2014 2:20 pm <http://electionlawblog.org/?p=59751>by
Rick Hasen <http://electionlawblog.org/?author=3>
That's the lead story in the March issue of NCSL's "The Canvass
<http://www.ncsl.org/research/elections-and-campaigns/the-canvass-march-2014.aspx?utm_source=Canvass&utm_campaign=8b36eaee85-Canvass_April_20134_25_2013&utm_medium=email&utm_term=0_c27fe8f428-8b36eaee85-111828865>."
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Posted in election administration <http://electionlawblog.org/?cat=18>
"News Analysis: Richland County, S.C. elections still in turmoil"
<http://electionlawblog.org/?p=59749>
Posted on March 27, 2014 2:19 pm <http://electionlawblog.org/?p=59749>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>
Re: From the Hobby Lobby oral argument: Should legislation passed by
unanimous vote be invalidated or narrowly construed?
<http://electionlawblog.org/?p=59741>
Posted on March 27, 2014 10:04 am
<http://electionlawblog.org/?p=59741>by Anita Krishnakumar
<http://electionlawblog.org/?author=16>
//Will Baude's Washington Post
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/25/from-the-hobby-lobby-oral-argument-should-legislation-passed-by-unanimous-vote-be-invalidated-or-narrowly-construed/>
piece raises an interesting significance-of-the-legislative-process
question. While Will (and the Court) frames the issue in constitutional
terms, it has obvious statutory interpretation implications as well.
Just a few things that popped out at me while reading Will's piece:
1. On Justice Scalia's /Shelby County v. Holder/ comment
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf>
that the unanimous vote in favor of renewing the VRA was about the
"perpetuation of racial entitlement" and the difficulty of undoing such
entitlements through the normal legislative process: Much has been
written about this comment, but what strikes me is that it seems almost
like a cousin---a hostile cousin, but a cousin---of the
representation-reinforcement based canon of statutory construction
advocated by Bill Eskridge
<http://digitalcommons.law.yale.edu/fss_papers/3824/> and Cass Sunstein
<http://www.jstor.org/discover/10.2307/1341272?uid=2129&uid=2134&uid=2&uid=70&uid=4&sid=21103867078983>in
the 1990s. Eskridge and Sunstein argued that in order to counteract the
legislative process's tendency to favor wealthy, well-organized
interests over diffuse unorganized ones, courts should err on the side
of construing statutes in favor of politically-disadvantaged litigants.
As a corollary, they also advocated that when faced with a statute
manifestly designed to benefit a narrow interest at the expense of a
diffuse one (such as, say, a statute containing a tax exemption or a
subsidy), courts should construe that statute narrowly, to limit the
targeted benefit. Justice Scalia's suggestion that civil rights statutes
effect "racial entitlements" that should be viewed with skepticism turns
the Eskridge-Sunstein principle on its head, since Eskridge and Sunstein
would consider racial minorities a politically-/disadvantaged/ group,
but it sounds in similar concerns about legislative process
(dys)function. The difference is simply in which interest groups one
considers to be politically-favored or entrenched. The Supreme Court has
never really embraced the proposed representation-reinforcement canon,
however, and despite Justice Scalia's famous comment in /Shelby County/,
it remains unlikely to do so.
2. Justice Ginsburg's comments in /Hobby Lobby
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf>/,
noting that "People from all sides of the political spectrum voted for
[RFRA]" and arguing that "It seems strange that there would have been
that tremendous uniformity if it means what you said it means, to cover
profit corporations"---strikes me as a different kind of argument
altogether. Her comment focuses on legislative intent, not interest
group politics and seems to me to be a relative, if not quite a cousin,
of the Dog That Didn't Bark canon. That canon reflects a Sherlock Holmes
<http://etc.usf.edu/lit2go/40/the-memoirs-of-sherlock-holmes/573/adventure-1-silver-blaze/>-inspired
principle that if Congress intends for a statute to work a significant
change in the status quo, we should expect to see some legislator,
somewhere in the legislative record, comment on the change---and that
legislative silence therefore can be taken as a sign that the statute
does not effect any radical departure from the status quo. Justice
Ginsburg seems to be inferring, in a related vein, that the unanimity of
the vote adopting RFRA may tell us something about congressional
intent---i.e., that the statute does not take the controversial,
politically-divisive step of covering profit corporations.
3. Ultimately, Baude comments that "It's perilous to think that the vote
total tells us that much about what a statute means." I completely
agree. Different legislators vote for (or against) a statute for many
different reasons, and their final vote tells us nothing about those
reasons. Of course, Justice Scalia often has made precisely this
legislative process observation. (/See, e.g./, his rants against
inferences based on rejected legislative proposals in /Rapanos v. United
States/ <http://www.supremecourt.gov/opinions/05pdf/04-1034.pdf> and
/Johnson v. Transportation Agency/
<http://supreme.justia.com/cases/federal/us/480/616/case.html>). So his
comments in /Shelby County/ are surprising, not just for their content,
but also from a methodological standpoint.
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Posted in guest blogging election law scholarship
<http://electionlawblog.org/?cat=64>, legislation and legislatures
<http://electionlawblog.org/?cat=27>, Supreme Court
<http://electionlawblog.org/?cat=29>
"Watchdog Groups File FEC Complaints Against National Republican
Congressional Committee and Democratic Senate Majority PAC"
<http://electionlawblog.org/?p=59738>
Posted on March 27, 2014 8:23 am <http://electionlawblog.org/?p=59738>by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2417:march-27-2014-watchdog-groups-file-fec-complaints-against-national-republican-congressional-committee-and-democratic-senate-majority-pac&catid=63:legal-center-press-releases&Itemid=61>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model
in Election Administration, Redistricting, and Campaign Finance"
<http://electionlawblog.org/?p=59735>
Posted on March 27, 2014 7:59 am <http://electionlawblog.org/?p=59735>by
Rick Hasen <http://electionlawblog.org/?author=3>
The <http://www.law.uci.edu/lawreview/> /UC Irvine Law Review/ has just
posted the papers from a symposium I organized a year ago September.
Here is the full set of excellent papers, which follow my (less
excellent) Introduction.
Volume 3: Issue No. 3 . August 2013
/Masthead <http://www.law.uci.edu/lawreview/vol3/no3/masthead.pdf>/
/Table of Contents <http://www.law.uci.edu/lawreview/vol3/no3/toc.pdf>/
/Symposium Issue
/
Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in
Election Administration, Redistricting, and Campaign Finance
Introduction
Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in
Election Administration, Redistricting, and Campaign Finance
<http://www.law.uci.edu/lawreview/vol3/no3/hasen.pdf>
/Richard L. Hasen/
Articles & Essays*
*
Virtue over Party: Samuel Randall's Electoral Heroism and Its Continuing
Importance <http://www.law.uci.edu/lawreview/vol3/no3/foley.pdf>
/Edward B. Foley/
Are Ballot Titles Biased? Partisanship in California's Supervision of
Direct Democracy
<http://www.law.uci.edu/lawreview/vol3/no3/elmendorf_spencer.pdf>
/Christopher S. Elmendorf and Douglas M. Spencer/
The Policy Views of Partisan Election Officials
<http://www.law.uci.edu/lawreview/vol3/no3/kimball_et_al.pdf>
/David C. Kimball, Martha Kropf, Donald Moynihan, Carol L. Silva, and
Brady Baybeck/
America's Top Model: The Wisconsin Government Accountability Board
<http://www.law.uci.edu/lawreview/vol3/no3/tokaji.pdf>
/Daniel P. Tokaji/
Community of Interest Methodology and Public Testimony
<http://www.law.uci.edu/lawreview/vol3/no3/mac_donald_cain.pdf>
/Karin Mac Donald and Bruce E. Cain/
Redistricting Commissions in the Western United States
<http://www.law.uci.edu/lawreview/vol3/no3/miller_grofman.pdf>/
/Peter Miller and Bernard Grofman//
The Consequences of Consequentialist Criteria
<http://www.law.uci.edu/lawreview/vol3/no3/stephanopoulos.pdf>//
/Nicholas O. Stephanopoulos///
Do State Ethics Commissions Reduce Political Corruption? An Exploratory
Investigation
<http://www.law.uci.edu/lawreview/vol3/no3/crider_milyo.pdf>///
/Kayla Crider and Jeffrey Milyo////
The Federal Election Commission as Regulator: The Changing Evaluations
of Advisory Opinions
<http://www.law.uci.edu/lawreview/vol3/no3/franz.pdf>////
/Michael M. Franz/////
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
election administration <http://electionlawblog.org/?cat=18>,
redistricting <http://electionlawblog.org/?cat=6>
"Senate Candidates Find A Way To Give Those Friendly Super PACs A
Helping Hand" <http://electionlawblog.org/?p=59733>
Posted on March 27, 2014 7:40 am <http://electionlawblog.org/?p=59733>by
Rick Hasen <http://electionlawblog.org/?author=3>
Paul Blumenthal reports
<http://www.huffingtonpost.com/2014/03/27/2014-senate-super-pacs_n_5036277.html?1395920849>for
HuffPo.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Inside the Koch brothers' campus crusade"
<http://electionlawblog.org/?p=59731>
Posted on March 27, 2014 7:34 am <http://electionlawblog.org/?p=59731>by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports
<http://www.publicintegrity.org/2014/03/27/14497/inside-koch-brothers-campus-crusade>.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Fiascos and a Matter of Degree" <http://electionlawblog.org/?p=59729>
Posted on March 27, 2014 7:33 am <http://electionlawblog.org/?p=59729>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bauer
<http://www.moresoftmoneyhardlaw.com/2014/03/fiascos-matters-degree/>on
lobbying, money and influence.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
lobbying <http://electionlawblog.org/?cat=28>
--
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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