[EL] ELB News and Commentary 5/6/14
Barry C. Burden
bcburden at wisc.edu
Tue May 6 11:46:46 PDT 2014
A general reminder that all of the documents about the Wisconsin cases and litigation elsewhere around the country is conveniently housed by the election law experts at OSU Moritz College of Law:
http://moritzlaw.osu.edu/electionlaw/litigation/index.php?sort=state&active=yes
On 05/06/14, Frank Askin <faskin at kinoy.rutgers.edu> wrote:
> Does anyone have a cite for Frank v. Walker?
>
> Prof. Frank Askin
> Distinguished Professor of Law and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687
>
> >>> Rick Hasen <rhasen at law.uci.edu> 5/6/2014 11:14 AM >>>
>
> 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/>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61240&title=Add%20a%20Justice%20Kagan%20Factual%20Error%20in%20Prayer%20Case%20to%20List%20of%20Justices%E2%80%99%20Errors&description=>
> 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>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61238&title=%E2%80%9CNew%20voter%20ID%20laws%3A%20Nothing%20like%20it%20%E2%80%98since%20Reconstruction%E2%80%99%E2%80%9D&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61236&title=%E2%80%9CU.S.%20Said%20to%20Seek%20Records%20From%20Anticorruption%20Panel%E2%80%99s%20Members%E2%80%9D&description=>
> 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."
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61234&title=%E2%80%9CFor%20Justices%2C%20Free%20Speech%20Often%20Means%20%E2%80%98Speech%20I%20Agree%20With%E2%80%99%E2%80%9D&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61232&title=%E2%80%9COutside%20Spending%20Enters%20Arena%20of%20Judicial%20Races%E2%80%9D&description=>
> 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.'"
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61230&title=Rotker%20Responds%20to%20RNLA%20on%20Voter%20Fraud%20Allegations%20in%20Wisconsin%2C%20and%20a%20Milwaukee%20Police%20Report&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61228&title=%E2%80%9CMeasuring%20Motor%20Voter%3A%20Room%20for%20Improvement%E2%80%9D&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61226&title=%E2%80%9CWisconsin%20Federal%20Court%20Decision%20Could%20Mark%20Beginning%20of%20End%20For%20GOP%20Photo%20ID%20Restrictions%E2%80%9D&description=>
> 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>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61224&title=%E2%80%9CDid%20an%20Oregon%20Republican%E2%80%99s%20Boyfriend%20Help%20Coordinate%20a%20PAC%20Campaign%20for%20Her%3F%E2%80%9D&description=>
> 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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> Law-election at department-lists.uci.edu
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>
>
--
Barry C. Burden
University of Wisconsin-Madison
Department of Political Science
faculty.polisci.wisc.edu/bcburden
electionadmin.wisc.edu
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