[EL] ELB News and Commentary 5/6/14
Rick Hasen
rhasen at law.uci.edu
Tue May 6 08:14:53 PDT 2014
Add a Justice Kagan Factual Error in Prayer Case to List of
Justices' Errors <http://electionlawblog.org/?p=61240>
Posted on May 6, 2014 8:11 am <http://electionlawblog.org/?p=61240>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jonathan Adler explains.
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/05/other-justices-make-errors-too/>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"New voter ID laws: Nothing like it 'since Reconstruction'"
<http://electionlawblog.org/?p=61238>
Posted on May 6, 2014 8:09 am <http://electionlawblog.org/?p=61238>by
Rick Hasen <http://electionlawblog.org/?author=3>
The LA Times reports.
<http://www.latimes.com/nation/nationnow/la-na-nn-voter-identification-laws-state-by-state-20140504-story.html#axzz30rljoPPj>
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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>
"U.S. Said to Seek Records From Anticorruption Panel's Members"
<http://electionlawblog.org/?p=61236>
Posted on May 6, 2014 8:07 am <http://electionlawblog.org/?p=61236>by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2014/05/06/nyregion/us-said-to-seek-records-from-anticorruption-panels-members.html?smid=tw-share&smv1>:
Federal prosecutors in Manhattan have issued a grand jury subpoena
seeking emails, text messages and other records from all the members
of the anticorruption commission that Gov. Andrew M. Cuomo abruptly
shut down in March, three people briefed on the matter said on Monday.
The action by prosecutors from the office of Preet Bharara, the
United States attorney for the Southern District of New York, comes
just weeks after he took the unusual step of publicly criticizing
the governor's shutdown of the panel and took possession of its
investigative files.
The subpoena, which was served on the commission's former counsel,
Kelly Donovan, seeks documents pertaining to the formation of the
panel, known as a Moreland Commission, based on the 1907 Moreland
Act. It also sought documents about how the panel was run, overseen
and closed, according to the people briefed on the matter, who spoke
on the condition of anonymity because they were not authorized to
discuss the investigation publicly.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, conflict of
interest laws <http://electionlawblog.org/?cat=20>
"For Justices, Free Speech Often Means 'Speech I Agree With'"
<http://electionlawblog.org/?p=61234>
Posted on May 6, 2014 8:04 am <http://electionlawblog.org/?p=61234>by
Rick Hasen <http://electionlawblog.org/?author=3>
Adam Liptak NYT Sidebar column
<http://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-speech-often-means-speech-i-agree-with.html>
on new Lee Epstein study
<http://epstein.usc.edu/research/InGroupBias.html> (complete with a
great graphic)
<http://graphics8.nytimes.com/newsgraphics/2014/05/02/justice-votes-free-speech/35aedf01a66b9a74774243e00482e4f7448f2746/05tk-nat-sidebar-web-artboard_1-0.png>:
Justice Antonin Scalia is known as a consistent and principled
defender of free speech rights.
It pained him, he has said
<http://www.aparchive.com/metadata/ANTONIN-SCALIA-SPEECH-AT-UNIVERSITY-OF-FREIBURG-IN-SWITZERLAND/3af4bd8675b547c8b6bcd7a6bc27ee0f?query=CELEBRITY+NEWS¤t=20&orderBy=Relevance&hits=2217&referrer=search&search=%2fsearch%3fquery%3dCELEBRITY%20NEWS%26allFilters%3dABC%3aSource%2cPOLITICS%3aKeyword%2cGovernment%20and%20politics%3aSubject%2cTRIALS%3aKeyword&allFilters=ABC%3aSource%2cPOLITICS%3aKeyword%2cGovernment+and+politics%3aSubject%2cTRIALS%3aKeyword&productType=IncludedProducts&page=1&b=27ee0f>,
when he voted to strike down a law making flag burning a crime. "If
it was up to me, if I were king," he said, "I would take scruffy,
bearded, sandal-wearing idiots who burn the flag, and I would put
them in jail." But the First Amendment stopped him.
That is a powerful example of constitutional principles overcoming
personal preferences. But it turns out to be an outlier. In cases
raising First Amendment claims, a new study
<http://epstein.usc.edu/research/InGroupBias.html> found, Justice
Scalia voted to uphold the free speech rights of conservative
speakers at more than triple the rate of liberal ones. In 161 cases
from 1986, when he joined the court, to 2011, he voted in favor of
conservative speakers 65 percent of the time and liberal ones 21
percent.
He is not alone. "While liberal justices are over all more
supportive of free speech claims than conservative justices," the
study found, "the votes of both liberal and conservative justices
tend to reflect their preferences toward the ideological groupings
of the speaker."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Outside Spending Enters Arena of Judicial Races"
<http://electionlawblog.org/?p=61232>
Posted on May 6, 2014 8:00 am <http://electionlawblog.org/?p=61232>by
Rick Hasen <http://electionlawblog.org/?author=3>
Erik Eckholm
<http://www.nytimes.com/2014/05/06/us/politics/outside-spending-transforms-supreme-court-election-in-north-carolina.html?_r=0>with
an important and extensive NYT report.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
judicial elections <http://electionlawblog.org/?cat=19>
Rotker Responds to RNLA on Voter Fraud Allegations in Wisconsin, and
a Milwaukee Police Report <http://electionlawblog.org/?p=61230>
Posted on May 6, 2014 7:54 am <http://electionlawblog.org/?p=61230>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here is a guest post from Karyn Rotker, Senior Staff Attorney, ACLU of
Wisconsin (lead counsel in Frank v Walker). It responds to anRNLA post
<http://thereplawyer.blogspot.com/2014/05/vote-fraud-deniers-tortured-logical-to.html>
on voter fraud in Wisconsin, and more broadly on my response
<http://electionlawblog.org/?p=61085>to the RNLA on whether fear of
impersonation fraud justifies voter id laws
It's 2014, not 2004.
But you wouldn't know that as, once again, voter ID advocates are
trotting out a police report issued about the /2004 / elections to
support their arguments -- soundly debunked by a federal judge in
Wisconsin last week -- that voter ID is needed to prevent alleged
voter fraud.[1] <http://electionlawblog.org/#_ftn1>
The post neglects to mention that Judge Adelman found, /based on the
evidence presented at trial, / that the kind of voter fraud that
voter ID would prevent simply has not occurred in Wisconsin. As
Judge Adelman also found, but the post neglects to mention, such
fraud is not impossible to detect[2]
<http://electionlawblog.org/#_ftn2> and would be difficult to
commit. [3] <http://electionlawblog.org/#_ftn3>
Yet partisans continue to cling to this report, written by a unit of
the Milwaukee Police Department about a decade-old election, as
evidence of fraud that, they argue, somehow necessitates voter ID.
They don't mention that even though Wisconsin's 2004 elections were
extensively investigated by federal, state and local law enforcement
officials, they resulted in only a handful of prosecutions for
alleged fraud -- none of which involved impersonation and most of
which the government lost because it couldn't prove that fraud had,
in fact, occurred.[4] <http://electionlawblog.org/#_ftn4>
They don't mention that the report was unsigned, written only by a
sub-unit of the police department, came up with its recommendations
through a process of "group speak" by police officers with no
background or expertise in election administration, was issued
outside normal department channels, and was explicitly disclaimed by
every other entity that had participated in the investigation[5]
<http://electionlawblog.org/#_ftn5> as well as by the leadership of
the police department itself. They claim that the report was
"non-partisan" -- but don't mention that one of its main authors,
who paid out of his own pocket to print the report and personally
distributed it to political parties, subsequently retired and joined
the executive committee of the Republican Party of Wisconsin.
Also omitted from the post is the other side of the ledger:
indisputably lawful voters burdened or prevented from voting by
voter ID. As Judge Adelman found, about 300,000 Wisconsin voters
don't have ID -- and that those voters are often poor and
uneducated, may be homeless, and are disproportionately
African-American and Latino. The state itself admitted to racial
disparities in ID possession. And these stark realities come as no
surprise: as the testimony at trial -- most of it undisputed --
showed, on measures of income and poverty and joblessness and
housing segregation, African-Americans and Latinos in metropolitan
Milwaukee lag far behind whites, with disparities among the worst in
the United States. That legacy, and continuing patterns of
discrimination in housing, employment, and education, means that
voters remain separate and unequal today.
The Judge also recognized not all voters have or need ID. Many --
including multiple voters who testified at tried -- have lived
perfectly well for years, or even their whole lives, without ID.
Many voters don't drive, don't fly on airplanes, don't leave the
country, and don't cash checks (or find local merchants willing to
cash checks without ID). The Judge found, after listening to two
weeks of trial testimony, that getting to DMV during the weekday,
daytime hours its offices are open, for voters without
transportation or paid time off from work, is itself a difficult
process; that many voters without ID also lack documents like birth
certificates and social security cards that DMV demands before it
will issue ID; and that getting /those /documents often requires ID,
time, and money that many voters simply do not have. These burdens
are so pervasive that many of the state's own witnesses admitted to
them.
The post also repeats apocryphal claims of "Chicago" (read: black)
voters traveling to Milwaukee to unlawfully vote. No evidence of
such voters was produced at trial. It argues that campaign workers
(wrongly) voted in Wisconsin -- but neglects to mention that the
report did not link that issue to ID but to the fact that in 2004 a
voter only had to live in Wisconsin 10 days to be considered
eligible to vote here;[6] <http://electionlawblog.org/#_ftn6> in
2011 Wisconsin law was changed to require 28 days' residence.
As Judge Adelman recognized, years of searching haven't produced a
shred of evidence of any organized effort to violate Wisconsin's
election laws and or of prosecution of any Wisconsin resident for
in-person voter impersonation -- the only kind of illegal voting
behavior that voter ID can prevent. As he also found, photo ID laws
"have no effect on confidence or trust in the electoral process
[because . . .] such laws undermine the public's confidence in the
electoral process as much as they promote it . . . . [T]he publicity
surrounding photo ID legislation creates the false perception that
voter-impersonation fraud is widespread, thereby needlessly
undermining the public's confidence in the electoral process."
Yet some remain willing to take away the votes of tens or hundreds
of thousands of other voters for whom getting ID is a real cost, an
actual burden. A commitment to the individual dignity of each and
every one of those voters demands that unneeded voter ID
requirements not be used to cancel out the votes of these lawful,
legitimate, Wisconsin voters.
------------------------------------------------------------------------
[1]
<http://electionlawblog.org/#_ftnref1>http://thereplawyer.blogspot.com/2014/05/vote-fraud-deniers-tortured-logical-to.html
[2] <http://electionlawblog.org/#_ftnref2> /Frank v. Walker/ at 15
(emphasis added): "When Michael Sandvick, a former Milwaukee police
officer [and one of the authors of the report cited in the post],
was asked at trial whether or not voter fraud was difficult to
detect, he answered, 'There are different types of voter fraud. Some
of them are hard to detect and some of them are not.' . . . When
asked what types are hard to detect, he gave only one example:
someone using a fake address to vote. */He did not mention voter
impersonation/*." Note, however, that the Wisconsin voter ID law
does not require the ID to have the voter's /address./
[3] <http://electionlawblog.org/#_ftnref3>Id at 17: "The potential
costs of perpetrating the fraud, which include a $10,000 fine and
three years of imprisonment, are extremely high in comparison to the
potential benefits, which would be nothing more than one additional
vote for a preferred candidate (or one fewer vote for an opposing
candidate), a vote which is unlikely to change the election's outcome.
Adding to the cost is the fact that, contrary to the defendants'
rhetoric, voter-impersonation fraud is not 'easy' to commit. To
commit voter impersonation fraud, a person would need to know the
name of another person who is registered at a particular polling
place, know the address of that person, know that the person has not
yet voted, and also know that no one at the polls will realize that
the impersonator is not the individual being impersonated."
[4]
<http://electionlawblog.org/#_ftnref4>http://www.nytimes.com/2007/04/12/washington/12fraud.html
("In Wisconsin, where prosecutors have lost almost twice as many
cases as they won, charges were brought against voters who filled
out more than one registration form and felons seemingly unaware
that they were barred from voting. . . . Of the hundreds of people
initially suspected of violations in Milwaukee, 14 --- most black,
poor, Democratic and first-time voters --- ever faced federal
charges. . . . . Even the 14 proved frustrating for the Justice
Department. It won five cases in court.") And while the post raises
alleged double voting as a problem, the evidence the state itself
produced at trial showed that a number of double voters indisputably
/had ID /-- using their drivers' licenses to register when they
double voted.
[5] <http://electionlawblog.org/#_ftnref5>Report at p. 2 (emphases
added):
*Disclaimers*
When the task force was formed, the United States Attorney's Office
and Federal Bureau of Investigation limited their participation to
the investigation of potential criminal violations. These agencies
indicated that they would not be involved in any general evaluation
of election procedures. As such, */the recommendations and findings
in this report/* are those of the Special Investigations Unit of the
Milwaukee Police Department and */do not reflect the views of the
United States Department of Justice, the United States Attorney's
Office, the Federal Bureau of Investigation, or any other member of
the task force./*
In 2004 */the Milwaukee County District Attorney's Office/*, at the
direction of District Attorney E. Michael McCann, participated with
federal authorities and the Milwaukee Police Force in a Joint Task
Force investigating possible voter fraud. Today's Report is issued
by the Milwaukee Police Department's Special Investigations Unit,
and contains that unit's investigative findings, opinions and
recommendations, especially relating to the management of elections
within the City of Milwaukee. The findings, opinions and
recommendations expressed in this Report will be closely considered
by District Attorney John Chisholm as relevant to the investigation
of future allegations of election related misconduct, but this
office */did not participate in the preparation of the report and is
not endorsing the findings, opinions or recommendations of the
report/* at this time.
[6] <http://electionlawblog.org/#_ftnref6>Report at p 53: "The
investigators fear that the lack of enforcement in regard to the
residency statutes will result in a new class of Wisconsin voter,
the '10-Day Resident.'"
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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>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Measuring Motor Voter: Room for Improvement"
<http://electionlawblog.org/?p=61228>
Posted on May 6, 2014 7:45 am <http://electionlawblog.org/?p=61228>by
Rick Hasen <http://electionlawblog.org/?author=3>
New Pew report
<http://www.pewstates.org/research/analysis/measuring-motor-voter-room-for-improvement-85899544963>:
In 2012, The Pew Charitable Trusts commissioned comprehensive
research to measure how efficiently and effectively state motor
vehicle agencies are providing voter registration services as
required by the National Voter Registration Act.
The analysis found that insufficient data exist to determine whether
citizens are successfully and regularly offered these voter
registration opportunities. This brief recommends how motor vehicle
agencies may improve this process by increased coordination with
state election officials as well as better reporting of Motor Voter
registration transactions.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
NVRA (motor voter) <http://electionlawblog.org/?cat=33>
"Wisconsin Federal Court Decision Could Mark Beginning of End For
GOP Photo ID Restrictions" <http://electionlawblog.org/?p=61226>
Posted on May 6, 2014 7:39 am <http://electionlawblog.org/?p=61226>by
Rick Hasen <http://electionlawblog.org/?author=3>
Analysis <http://www.bradblog.com/?p=10606>at the Brad Blog.
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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>
"Did an Oregon Republican's Boyfriend Help Coordinate a PAC Campaign
for Her?" <http://electionlawblog.org/?p=61224>
Posted on May 6, 2014 7:34 am <http://electionlawblog.org/?p=61224>by
Rick Hasen <http://electionlawblog.org/?author=3>
Weigel.
<http://www.slate.com/blogs/weigel/2014/05/05/oregon_democrats_suggest_that_a_pac_funded_by_a_candidate_s_boyfriend_might.html>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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