[EL] ELB News and Commentary 11/3/14
Rick Hasen
rhasen at law.uci.edu
Mon Nov 3 07:32:02 PST 2014
"Amicus: Ballot-Box Special; Dahlia Lithwick unpacks some of the
voting problems we'll hear about in the final days of election
season." <http://electionlawblog.org/?p=67851>
Posted onNovember 3, 2014 7:23 am
<http://electionlawblog.org/?p=67851>byRick Hasen
<http://electionlawblog.org/?author=3>
This week on Amicus
<http://www.slate.com/articles/podcasts/amicus/2014/11/dahlia_lithwick_unpacks_some_of_the_voting_problems_we_ll_hear_about_in.html>:
a pre-election special. Dahlia sits down with University of
California--Irvine law professor Rick Hasen, founder of the Election Law
Blog <http://electionlawblog.org/>, to survey the landscape of state
voter ID laws. They consider the effect of recent headlines on voters'
confidence in elections, as well as the enduring curiosity of judicial
elections in America.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Voter Suppression Backlash: "Activists Against Voter Restrictions
May Be Hindering Their Legal Case" <http://electionlawblog.org/?p=67849>
Posted onNovember 3, 2014 7:20 am
<http://electionlawblog.org/?p=67849>byRick Hasen
<http://electionlawblog.org/?author=3>
More Pam Fessler
<http://www.npr.org/2014/10/31/360300866/activists-against-voter-restrictions-may-be-hindering-their-own-cause?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social>on
backlash:
RENEE MONTAGNE, HOST:
Here's an irony of this fall's election. New voter ID laws and other
restrictions are in effect.
STEVE INSKEEP, HOST:
Critics say the laws are meant to suppress voter turnout among
minorities and the poor. In fact, Democrats have used this issue to
motivate people to go to the polls.
MONTAGNE: And when they succeed in getting people to overcome
restrictions and vote, they create evidence that the laws don't stop
qualified people from voting. NPR's Pam Fessler reports.
The backlash idea is not new---I discuss it in detail in Chapter 3 of
(the 2012 book)/The Voting Wars/. And it is worth remembering Janai
Nelson's words <http://electionlawblog.org/?p=45157>about
backlash: "Despite suggestions that voter suppression tactics can
trigger a 'backlash' increase in minority voter turnout, these tactics
nonetheless violate the VRA's core principle---to ensure that the race
of a voter has no bearing on her ability to vote. Moreover, the
"backlash effect" does not negate the increased burden placed on
minorities' right to vote even if, ultimately and intermittently,
minority voters can bear it and win."
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Bauer on Hasen and Lithwick on Judicial Elections
<http://electionlawblog.org/?p=67847>
Posted onNovember 3, 2014 7:13 am
<http://electionlawblog.org/?p=67847>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer
<http://www.moresoftmoneyhardlaw.com/2014/11/different-complaints-judicial-politics/>:
A solid case can be made that judges should not be picked in
elections because forcing them to become candidates, and to
campaign, taxes confidence in the courts. But many judges are picked
by election and then the question becomes how much to bemoan, as do
Rick Hasen and Dahlia Lithwick
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/judicial_election_outrageous_ads_campaign_contributions_break_records.html>,
the predictably aggressive campaigning that these candidates, their
allies and their opponents may adopt to win. Campaigns are
campaigns, and it is not easy to sort out which particular set of
rules or standards should apply only to judicial contests.
Expectations may well be different for judges, encapsulated in a
sense that they should be above the political fray, but once they
become candidates and are thrust into the middle of political
contention, are those expectations realistic?
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Posted incampaigns <http://electionlawblog.org/?cat=59>,judicial
elections <http://electionlawblog.org/?cat=19>
"ISPS Special Event: SHOW ME THE MONEY: How Transparency in
Political Donations Could Change American Elections"
<http://electionlawblog.org/?p=67845>
Posted onNovember 3, 2014 7:11 am
<http://electionlawblog.org/?p=67845>byRick Hasen
<http://electionlawblog.org/?author=3>
Great
event<http://isps.yale.edu/events/2014/10/isps-special-event-show-me-the-money#.VFea_lPF_Z6>and
lineup Nov. 10 at Yale.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Megadonations Follow Randa Ruling in Wisconsin"
<http://electionlawblog.org/?p=67843>
Posted onNovember 3, 2014 7:09 am
<http://electionlawblog.org/?p=67843>byRick Hasen
<http://electionlawblog.org/?author=3>
Brendan Fischer blogs
<http://www.prwatch.org/news/2014/11/12651/megadonations-follow-randa-ruling-wisconsin>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Voting rules, from photo ID to provisional ballots"
<http://electionlawblog.org/?p=67841>
Posted onNovember 2, 2014 8:03 pm
<http://electionlawblog.org/?p=67841>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports
<http://www.kentucky.com/2014/11/02/3515121/voting-rules-from-photo-id-to.html>.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"Record-breaking 'Souls to Polls' turnouts Sunday in South Florida"
<http://electionlawblog.org/?p=67839>
Posted onNovember 2, 2014 7:57 pm
<http://electionlawblog.org/?p=67839>byRick Hasen
<http://electionlawblog.org/?author=3>
The Palm Beach Post reports
<http://www.palmbeachpost.com/news/news/democrats-hoping-final-souls-to-the-polls-events-s/nhyD7/>.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,voting
<http://electionlawblog.org/?cat=31>
What to Expect When You're Electing: Here's What I'll Be Watching
for Tuesday <http://electionlawblog.org/?p=67836>
Posted onNovember 2, 2014 7:54 pm
<http://electionlawblog.org/?p=67836>byRick Hasen
<http://electionlawblog.org/?author=3>
Unless there is some natural or human-made disaster or a massive
electronic voting problem somewhere, election day itself likely will be
relatively quiet. No doubt we will hear reports about votes being
'flipped" by electronic voting machines because of calibration error,
random stories of long lines (though I expect this to be far less of a
problem than on presidential election days, where turnout is much
higher). If there are long lines, expect there to be calls to keep polls
open, and potentially even a lawsuit filed here or there (and no doubt
opposed) to extend polling times.
The real action will come in the evening as the polls close. There will
be delays in some places with reporting of votes, which will lead some
people to suspect some kind of chicanery (especially if the late
reporting areas are from one's opposing party). Only later in the
evening (or the following morning) will it become clear enough if an
election is within themargin of litigation
<http://ssrn.com/abstract=698201>.
To be close enough to go to a recount or litigation, generally we are
talking votes within the hundreds or less (or perhaps a few thousand in
a larger jurisdiction). That could happen anywhere. I fear it most
happening in the Florida governor's race---not only because of Florida's
politicized electoral system. Thanks to changes after 2000, the
Secretary of State is a political appointee of the governor. A recipe
for disaster.
Next I fear a contested gubernatorial election in Wisconsin. The state
administers elections much better than Florida does, but there is still
considerable variation and in some places administration is weaker than
others (I openedThe Voting Wars
<http://www.amazon.com/gp/search?index=books&linkCode=qs&keywords=9780300182033>with
Kathy Nicholas and those suddenly found votes in Waukesha County.)
Things will also get heated if control of the Senate is in play---if
Alaska is late with the counting, if La. and/or Ga. go to a runoff.
In that case, expect members of the fraudulent fraud squad to point to
voter fraud as behind any Democratic victory, especially in Colorado.
Expect Democrats to complain of voter suppression in Texas and beyond.
All we are left to do at this point is to utter theElection
Administrator's prayer
<http://politicaldictionary.com/words/election-administrators-prayer/>.
(title of post courtesy ofStephen Colbert
<http://thecolbertreport.cc.com/videos/qtoavw/what-to-expect-when-you-re-electing>.)
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"Cancel the Midterms" <http://electionlawblog.org/?p=67834>
Posted onNovember 2, 2014 7:29 pm
<http://electionlawblog.org/?p=67834>byRick Hasen
<http://electionlawblog.org/?author=3>
David Schanzer and Jay SullivanNYT oped
<http://www.nytimes.com/2014/11/03/opinion/cancel-the-midterms.html?ref=opinion>.
" The government should, through a constitutional amendment, extend the
term of House members to four years and adjust the term of senators to
either four or eight years, so that all elected federal officials would
be chosen during presidential election years. Doing so would relieve
some (though, of course, not all) of the systemic gridlock afflicting
the federal government and provide members of Congress with the ability
to focus more time and energy on governance instead of electioneering."
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Posted incampaigns <http://electionlawblog.org/?cat=59>
"Money and Judges, a Bad Mix" <http://electionlawblog.org/?p=67832>
Posted onNovember 2, 2014 7:14 pm
<http://electionlawblog.org/?p=67832>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial.
<http://www.nytimes.com/2014/11/03/opinion/money-and-judges-a-bad-mix.html?ref=politics>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,judicial elections
<http://electionlawblog.org/?cat=19>
"Punch Line With Real Political Punch; Bill Maher 'Flip a District'
Campaign to End on Election Day" <http://electionlawblog.org/?p=67830>
Posted onNovember 2, 2014 7:12 pm
<http://electionlawblog.org/?p=67830>byRick Hasen
<http://electionlawblog.org/?author=3>
Bill Carter reports
<http://www.nytimes.com/2014/11/03/business/media/bill-maher-flip-a-district-campaign-to-end-on-election-day.html?ref=politics>for
NYT.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
"Montana Judicial Race Joins Big-Money Fray"
<http://electionlawblog.org/?p=67828>
Posted onNovember 2, 2014 7:09 pm
<http://electionlawblog.org/?p=67828>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2014/11/03/us/montana-judicial-race-joins-big-money-fray.html?ref=politics>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,judicial elections
<http://electionlawblog.org/?cat=19>
"A Flood of Late Spending on Midterm Elections, From Murky Sources"
<http://electionlawblog.org/?p=67826>
Posted onNovember 2, 2014 7:08 pm
<http://electionlawblog.org/?p=67826>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT's Nick Confessore and Derek Willis:
<http://www.nytimes.com/2014/11/03/us/politics/a-flood-of-late-spending-on-midterm-elections-from-murky-sources.html?ref=politics&_r=0>
A stealthy coterie of difficult-to-trace outside groups is slipping
tens of millions of dollars of attacks ads and negative automated
telephone calls into the final days of the midterm campaign, helping
fuel an unprecedented surge of last-minute spending on Senate races.
Much of the advertising is being timed to ensure that no voter will
know who is paying for it until after the election on Tuesday. Some
of the groups are "super PACs
<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>"
that did not exist before Labor Day but have since spent heavily on
political advertising, adding to the volatility of close Senate and
House races.
Others formed earlier in the year but remained dormant until
recently, reporting few or no contributions in recent filings with
the Federal Election Commission <http://www.fec.gov/>, only to
unleash six- and seven-figure advertising campaigns as Election Day
draws near. Yet more spending is coming from nonprofit organizations
with bland names that have popped up in recent weeks but appear to
have no life beyond being a conduit for the ads.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"McFadden alleges illegal coordination between Franken, Bloomberg's
PAC" <http://electionlawblog.org/?p=67824>
Posted onNovember 2, 2014 7:06 pm
<http://electionlawblog.org/?p=67824>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports. <http://www.startribune.com/local/281242211.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Do non-citizens vote in U.S. elections? A reply to our critics."
<http://electionlawblog.org/?p=67822>
Posted onNovember 2, 2014 7:04 pm
<http://electionlawblog.org/?p=67822>byRick Hasen
<http://electionlawblog.org/?author=3>
Jesse Richman and Dave Earnest
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/11/02/do-non-citizens-vote-in-u-s-elections-a-reply-to-our-critics/>:
Do non-citizens vote in U.S. elections? Our blog post
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/10/24/could-non-citizens-decide-the-november-election/> and
article <http://ww2.odu.edu/%7Ejrichman/NonCitizenVote.pdf> on
non-citizen voting have reached a wide audience, and have motivated
several efforts to dispute our methods and conclusions. Although the
criticisms of our work speak to the inherent difficulty of studying
individuals who face strong pressures to misrepresent their
behaviors, we maintain that our data is the best currently available
to answer the question and stand by our finding that some
non-citizens have voted in recent elections....
In both our article and blog post we have acknowledged the
limitations of our analysis. We continue to welcome criticisms of
our methodology and attempts to validate, replicate or refute our
study. Knowledge emerges from debate, dialogue and critical
examination of findings---processes that are intrinsically
contentious. We trust that our colleagues share our appreciation of
the value of this debate --- and more importantly, of our
willingness to engage in it.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
"In Alabama, race again at heart of voting rights debate --- but
with twist" <http://electionlawblog.org/?p=67820>
Posted onNovember 2, 2014 7:00 pm
<http://electionlawblog.org/?p=67820>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Barnes
preview<http://www.washingtonpost.com/politics/courts_law/in-alabama-race-again-at-heart-of-voting--rights-debate--but-with-twist/2014/11/02/568409b8-5f69-11e4-9f3a-7e28799e0549_story.html>of
the Alabama SCOTUS redistricting case.
My preview of the case for SCOTUSBlogis here
<http://www.scotusblog.com/2014/10/argument-preview-racial-gerrymandering-partisan-politics-and-the-future-of-the-voting-rights-act/>.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Senator Rand Paul: Shhh About Voter ID!
<http://electionlawblog.org/?p=67818>
Posted onNovember 2, 2014 6:56 pm
<http://electionlawblog.org/?p=67818>byRick Hasen
<http://electionlawblog.org/?author=3>
Think Progress
<http://thinkprogress.org/election/2014/11/02/3587580/rand-paul-supports-voter-id-laws-but-says-republicans-shouldnt-campaign-on-it/>; "I'm
not really opposed to [voter ID laws]. I am opposed to it as a campaign
theme," Paul told CBS' /Face the Nation/ host Bob Schieffer.
"Republicans, if you want to get African American votes, they think that
this is suppression somehow and it's a terrible thing."
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
North Carolina Voter Suppression Backfire?
<http://electionlawblog.org/?p=67816>
Posted onNovember 2, 2014 6:53 pm
<http://electionlawblog.org/?p=67816>byRick Hasen
<http://electionlawblog.org/?author=3>
Back in July 2013,I
wrote<http://www.thedailybeast.com/articles/2013/07/24/will-the-gop-s-north-carolina-end-run-backfire.html>at
The Daily Beast: "There is good reason to think, however, that there
will be a strong reaction from Democrats, minority voters, and
voting-rights activists if this law passes. Litigation to bar paid
voter-registration drives will probably be struck down. Activists will
spend considerable energy seeking to negate the effects of these laws
and to increase turnout. In addition, a law such as House Bill 589 will
energize Democrats. As I've argued
<http://www.amazon.com/The-Voting-Wars-Election-Meltdown/dp/0300198248/ref=as_at?tag=thedailybeast-autotag-20&linkCode=as2&ie=UTF8&qid=1329286945&sr=1-2-catcorr>,
voter-suppression efforts often backfire, perhaps increasing fundraising
and turnout on the left. The bill gives Democrats a great cause to rally
around in North Carolina even as they will spend significant resources
fighting the restrictions."
Today's WUNC
<http://wunc.org/post/more-people-vote-early-last-mid-term-election>:
"More North Carolina voters cast their ballots early this year than did
in the last mid-term elections, according to State Board of Elections
figures released Sunday. A new election law limited the number of early
voting days but increased the total hours....Here are three possible
causes for the increased turn-out: Liberal groups may have been
energized to mobilize voters in response to the law passed by the
Republican-controlled General Assembly in 2013, reducing the number of
days but increasing the number of hours for early voting, said N.C.
State University Political Science Professor Andrew Taylor....Early
voting is popular (more than half of voters voted early in 2012 and
about a third of voters did in 2010) and may be continuing to become
popular, Taylor said. The increase could be a result of increased voter
interest in the high-profile and competitive U.S. Senate race between
incumbent Kay Hagan and North Carolina House Speaker Thom Tillis, said
Catawba College Political Science Professor Mike Bitzer."
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Ohio Supreme Court Justice French Could Lose for the Wrong Reason
<http://electionlawblog.org/?p=67813>
Posted onNovember 2, 2014 6:46 pm
<http://electionlawblog.org/?p=67813>byRick Hasen
<http://electionlawblog.org/?author=3>
One would think she would lose because ofthis statement:
<http://electionlawblog.org/?p=67731> "'I am a Republican and you should
vote for me. You're going to hear from your elected officials, and I see
a lot of them in the crowd. Let me tell you something: The Ohio Supreme
Court is the backstop for all those other votes you are going to
cast. Whatever the governor does, whatever your state representative,
your state senator does, whatever they do, we are the ones that will
decide whether it is constitutional; we decide whether it's lawful. We
decide what it means, and we decide how to implement it in a given
case. So, forget all those other votes if you don't keep the Ohio
Supreme Court conservative,'
But shemay
lose<http://www.dispatch.com/content/stories/local/2014/11/01/gop-statewide-officeholders-rally-for-french-on-high-court.html>for
a different reason: "Republicans are scared that [Democrat John P.]
O'Donnell could pull an upset because of a tendency for voters to cast
ballots for candidates with familiar names. An O'Donnell already sits on
the court --- Republican Terrence O'Donnell. The men are not related.
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Posted incampaigns <http://electionlawblog.org/?cat=59>,judicial
elections <http://electionlawblog.org/?cat=19>
Election conspiracy theories, an American staple"
<http://electionlawblog.org/?p=67811>
Posted onNovember 2, 2014 6:44 pm
<http://electionlawblog.org/?p=67811>byRick Hasen
<http://electionlawblog.org/?author=3>
LAT oped
<http://www.latimes.com/opinion/op-ed/la-oe-uscinski-election-fraud-20141103-story.html>by Joseph
E. Uscinski and Joseph M. Parent.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
Ed Fitzpatrick Column on Rhode Island Voter ID Etc.
<http://electionlawblog.org/?p=67809>
Posted onNovember 2, 2014 6:39 pm
<http://electionlawblog.org/?p=67809>byRick Hasen
<http://electionlawblog.org/?author=3>
Read here.
<http://www.providencejournal.com/writers/edward-fitzpatrick/20141101-edward-fitzpatrick-epic-rhode-island-election-cycle-nears-dramatic-conclusion.ece>
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Good Example of Why Large Scale Impersonation Voter Fraud is So Hard
to Pull Off <http://electionlawblog.org/?p=67807>
Posted onNovember 2, 2014 10:41 am
<http://electionlawblog.org/?p=67807>byRick Hasen
<http://electionlawblog.org/?author=3>
Eventhis single case
<http://www.kob.com/article/stories/S3607682.shtml#.VFZ6UFPF_Z5>easily
caught.
UPDATE: A few readers have pushed back on my statement that the case was
"caught." By this I mean that the issue came to attention of election
officials, not that they stopped the casting of the fraudulent vote in
time. It shows how ridiculous and boneheaded it would be to try to have
a scheme to steal elections in this way. You would have to identify
voters on the roll who have not yet voted in sufficient numbers to swing
the election. You'd have to pay people to go into the polling places
claiming to be someone else and hope, without the chance of
verification, that they will vote the way you will pay them to vote. And
then hope that the whole scheme never gets detected as those legitimate
voters whose votes were fraudulently taken don't show up, as in this New
Mexico example, and complain that someone had already voted for the voter.
It is no surprise that in going back to the 1980s I couldn't find a
single example where an election was arguably stolen with this kind of
impersonation fraud. In contrast, i could find examples just about every
year somewhere in the country of absentee ballot fraud schemes used to
try to swing (sometimes successfully) an election.
So if there were any real scheme in New Mexico, aside from an isolated
incident (and this one could yet be clerical error---with a voter with a
similar name being directed to sign the wrong line), we'd know about it.
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"States ditch electronic voting machines"
<http://electionlawblog.org/?p=67805>
Posted onNovember 2, 2014 8:14 am
<http://electionlawblog.org/?p=67805>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill reports.
<http://thehill.com/policy/cybersecurity/222470-states-ditch-electronic-voting-machines>
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voting technology
<http://electionlawblog.org/?cat=40>
Quote of the Day-Kobach Disenfranchisement Edition
<http://electionlawblog.org/?p=67803>
Posted onNovember 2, 2014 8:00 am
<http://electionlawblog.org/?p=67803>byRick Hasen
<http://electionlawblog.org/?author=3>
"I served for a week on a jury trial, which basically told me I was
a registered voter. I'm a disabled veteran, so it's particularly
frustrating. Why should I have to prove my citizenship when I served
in the military?"
--Kansas voter De Anna Allen
<http://www.kansas.com/news/politics-government/article3504228.html>,
quoted by the /Wichita Eagle./
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"More than 21,000 Kansans' voter registrations in suspense because
of proof of citizenship" <http://electionlawblog.org/?p=67801>
Posted onNovember 2, 2014 7:59 am
<http://electionlawblog.org/?p=67801>byRick Hasen
<http://electionlawblog.org/?author=3>
Important
<http://www.kansas.com/news/politics-government/article3504228.html>/Wichita
Eagle /analysis:
The numbers of Kansans with incomplete registration because of
citizenship are highest among the young and unaffiliated, an Eagle
analysis found. Statewide, 12,327 people who identified as
unaffiliated had their registrations suspended because of lack of
proof of citizenship, compared with 4,787 who identified as
Republicans, 3,948 who identified as Democrats and 361 who
identified as Libertarians. Not all who applied identified a party,
records requested by The Wichita Eagle from the state show.
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"Golden Week on the chopping block for Ohio Republicans and
Democrats for years (time line)" <http://electionlawblog.org/?p=67799>
Posted onNovember 2, 2014 7:37 am
<http://electionlawblog.org/?p=67799>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Cleveland Plain Dealer/reports.
<http://www.cleveland.com/open/index.ssf/2014/11/golden_week_on_the_chopping_bl.html>
Share
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Posted incampaigns <http://electionlawblog.org/?cat=59>,election
administration <http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"5 Voting Suppression Tactics Used Before Elections"
<http://electionlawblog.org/?p=67797>
Posted onNovember 2, 2014 7:30 am
<http://electionlawblog.org/?p=67797>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports
<http://abcnews.go.com/Politics/wireStory/voting-suppression-tactics-elections-26635771>.
Share
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Posted incampaigns <http://electionlawblog.org/?cat=59>,chicanery
<http://electionlawblog.org/?cat=12>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"The Unbearable Lightness of Zero Deviation"
<http://electionlawblog.org/?p=67794>
Posted onNovember 2, 2014 7:26 am
<http://electionlawblog.org/?p=67794>byRick Hasen
<http://electionlawblog.org/?author=3>
A. J. Pate, who has been involved in redistricting efforts for decades,
has written this guest post on the question whether zero deviation in
population for congressional districts is constitutionally compelled:
Zero deviation and divided census tracts are the identifying
hallmarks of a gerrymander. Achieving zero deviation is virtually
impossible without splitting census tracts. There is no other
justification for the practice.
One of the primary goals in the quest for fair redistricting should
be the requirement that the smallest unit to be used in
redistricting will be the census tract.
Census tracts are basically neighborhoods, or micro communities of
interest. They are designed by the U. S. Bureau of the Census to be
demographically homogeneous, relatively permanent, and bounded by
natural and/or manmade geographical features. They are statistical
subdivisions of counties and do not cross county lines.
"Census tracts generally have between 1,500 and 8,000 people, with
an optimum size of 4,000 people. Counties with fewer people have a
single census tract. When first delineated, census tracts are
designed to be homogeneous with respect to population
characteristics, economic status, and living conditions. The spatial
size of census tracts varies widely depending on the density of
settlement. Census tract boundaries are delineated with the
intention of being maintained over many decades so that statistical
comparisons can be made from decennial census to decennial census."
U. S. Census Bureau,/Cartographic Boundary Files, Geographic Area
Description, Census Tracts,/2005.
Various redistricting experts, authorities, and other interested
organizations are also calling for the use of undivided census
tracts as the basic unit in redistricting, including: /Model
Redistricting Act/, Section 4 (a)(6),/Redistricting Criteria/,
issued in 2005 jointly by the Mexican American Legal Defense and
Educational Fund, California Common Cause, the Asian Pacific
American Legal Center, and the League of Women Voters of California;
/A Proposal for Redistricting Reform: A Model State Constitutional
Amendment/, Section 6.E, Americans for Redistricting Reform, January
2009, by Sam Hirsch, formerly of Jenner & Block LLP, Washington,
D.C. and currently U.S. Department of Justice; and /Arizona State
Constitution/, Article 4, Part 2, Section 1 (14.E), as amended by
the passage of Proposition 106 by the people of Arizona in the 2000
general election.
For those truly advocating fair redistricting, academia should never
accept zero deviation as a norm, nor perpetuate the legal fiction
that it is required by the U.S. Supreme Court (or worse, by the
Constitution). Likewise, academia should never accept the division
of census tracts as a necessary evil to achieve the goal of
substantially equal population.
Since Justice Brennan was the most zealous advocate on the Supreme
Court of population equality in districts,/Karcher v. Daggett/is
often cited as a requirement for achieving absolute equality ("zero
deviation") between congressional district populations. The
following quotes of Justice Brennan in this case clearly dispel such
a dogmatic misinterpretation of the Court's opinion. In fact, the
phrase "zero deviation" occurs only twice in Court opinions, one
occurrence being in a footnote by Justice Stevens and the other
disclaiming its necessity by Justice O'Connor, neither instance
being the Opinion of the Court. It has never been a requirement of
the Court.
Opinion of the Court, Justice Brennan: "Any number of consistently
applied legislative policies might justify some variance, including,
for instance, making districts compact, respecting municipal
boundaries, preserving the cores of prior districts, and avoiding
contests between incumbent Representatives. As long as the criteria
are nondiscriminatory, these are all legitimate objectives that, on
a proper showing, could justify minor population deviations."
[Citations omitted.] /Karcher v. Daggett/, 462 U.S. 725, at 740-1
(1983). Justice Brennan also stated in Footnote 6, "A federal
principle of population equality does not prevent any State from
taking steps to inhibit gerrymandering, so long as a good faith
effort is made to achieve population equality as well./See,
e.g.,/Colo. Const. Art. V, § 47 (guidelines as to compactness,
contiguity, boundaries of political subdivisions, and communities of
interest); Mass.Const., Amended Art. CI, 1 (boundaries);
N.Y.Elec.Law 4-100(2) (McKinney 1978) (compactness and
boundaries)." He further stated in Footnote 11, "The very cases on
which/Kirkpatrick/relied made clear that the principle of population
equality did not entirely preclude small deviations caused by
adherence to consistent state policies."
Justice Stevens, concurring: "The major shortcoming of the
numerical standard is its failure to take account of other relevant
--- indeed, more important --- criteria relating to the fairness of
group participation in the political process. To that extent, it may
indeed be counterproductive."/Karcher v. Daggett/, 462 U. S. 725, at
753 (1983).
Justice Powell, with whom Justice Stevens joined, concurring in part
and dissenting in part: "A standard that judges the
constitutionality of a districting plan solely by reference to the
doctrine of `one person, one vote' may cause two detrimental
results. First, as a perceived way to avoid litigation, legislative
bodies may place undue emphasis on mathematical exactitude,
subordinating or ignoring entirely other criteria that bear directly
on the fairness of redistricting. Second, as this case illustrates,
and as/Reynolds v. Sims/anticipated, exclusive or primary reliance
on `one person, one vote' can betray the constitutional promise of
fair and effective representation by enabling a legislature to
engage intentionally in clearly discriminatory gerrymandering."
[Citations omitted.] /Davis v. Bandemer/, 478 U.S. 109, at 168 (1986).
Justice Harlan, with whom Justice Stewart joined, dissenting:
"[T]he Court's exclusive concentration upon arithmetic blinds it to
the realities of the political process, as the/Rockefeller/case
makes so clear. The fact of the matter is that the rule of absolute
equality is perfectly compatible with `gerrymandering' of the worst
sort. A computer may grind out district lines which can totally
frustrate the popular will on an overwhelming number of critical
issues. The legislature must do more than satisfy one man, one vote;
it must create a structure which will, in fact, as well as theory be
responsive to the sentiments of the community." /Wells v.
Rockefeller/, 394 U.S. 542, at 551 (1969).
Justice Harlan, in/Kirkpatrick v. Preisler/, 392 U.S. at 550-552
(1969), ridiculed the concept: "Marching to the nonexistent
'command of Art. I, Sec. 2' of the Constitution, the Court now
transforms a political slogan into a constitutional absolute.
Strait indeed is the path of the righteous legislator. Slide rule in
hand, he must avoid all thought of county lines, local traditions,
politics, history, and economics, so as to achieve the magic
formula: one man, one vote. ... If the Court believes it has struck
a blow today for fully responsive representative democracy, it is
sorely mistaken. Even more than in the past, district lines are
likely to be drawn to maximize the political advantage of the party
temporarily dominant in public affairs. ... [T]he question before us
is whether the Constitution requires that mathematics be a
substitute for common sense in the art of statecraft." Justice
White, in/Kirkpatrick v. Preisler/, 394 U.S. at 555 (1969), wrote:
"Today's decisions, on the one hand, require precise adherence to
admittedly inexact census figures, and, on the other, downgrade a
restraint on a far greater potential threat to equality of
representation, the gerrymander. ... I see little merit in such a
confusion of priorities."
The prescient warnings of Justices Powell and Harlan and others have
been fully realized; extreme adherence to zero deviation has led
inexorably to extreme gerrymandering (/summum ius summa iniuria/).
The Court had strained at a gnat, and swallowed a gerrymander.
The U. S. Supreme Court recently reaffirmed that the Constitution
does not require absolute equality in district populations,
apparently in a unanimous vote. "We have since explained that the
'as nearly as is practicable' standard does not require that
congressional districts be drawn with 'precise mathematical
equality.'" /Tennant v. Jefferson County Commission/, 567 U.S. ___
(2012) (/per curiam/). The Court made it clear that a plan could
not be challenged successfully simply because an alternative plan
achieved a lower variance of population. And despite such allowances
by the Court, gerrymanderers will continue to use zero deviation as
a cover to gain personal and/or partisan political power.
For unreconstructed proponents of zero deviation or those who may
doubt the Court's intention, the challenge is to cite a case where
the Supreme Court has held a redistricting plan illegal or
unconstitutional due to relatively minor population variances when a
state had consistently followed fair redistricting principles.
The redistricting standards in Iowa apparently allow for a total
deviation of two percent. "Congressional districts shall each have a
population as nearly equal as practicable to the ideal district
population . . . No congressional district shall have a population
which varies by more than one percent from the applicable ideal
district population . . ." Iowa Code, Chapter 42.4 (1.b).
"[P]opulation equality is such a crude way of equalizing voters that
an obsession with very small population deviations seems rather
silly." Bruce Cain,/The Reapportionment Puzzle,/(1984), p. 59. As
quoted by the Supreme Court of California,/Wilson v. Eu/, 1 Cal.4th
707, at 754, footnote 12 (1992).
Zero population deviation is a/reductio ad absurdum/. There is no
perfect census, which is changing even as it is being taken, through
births, deaths, and migrations. Plans are not drawn until a year or
more after the census, and elections are held two or more years
after. Districts are based on total population in a futile quest
for equally--weighted votes, arguably the worst basis to use for
such an impossible goal. The Court had placed an inordinate
reliance on such an illogically simplistic and internally
contradictory standard.
With a goal of fair and effective representation, there should be a
cohesive approach to respect communities of interest based on a
strict use of whole census tracts as neighborhood/micro communities
of interest, and, to the extent practicable, use of counties as
intermediate/historical communities of interest, and councils of
governments as regional/macro communities of interest. These are
perfectly nested communities --- census tracts do not cross county
lines, and councils of governments are composed of whole counties.
The optimal use of coterminous boundaries and nesting of various
types of districts will increase the opportunity for upward mobility
of politicians and thus competition ("the rivalship of power", as
Hamilton noted in/The Federalist/No. 84). Coherent
functionally-compact districts are certainly more capable of
mutability or of becoming more competitive than fragmented
artificial districts. Elections will be considerably more
responsive to broad political shifts within communities of
interest. Representation will be enhanced by competition over who
will best represent the interests of the community.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Interview with Dahlia Lithwick: "Amicus: Ballot Box Special"
<http://electionlawblog.org/?p=67792>
Posted onNovember 1, 2014 11:40 am
<http://electionlawblog.org/?p=67792>byRick Hasen
<http://electionlawblog.org/?author=3>
Inthis
podcast,<http://slateamicus.slate.libsynpro.com/amicus-ballot-box-special>I
sit down with Dahlia Lithwick to talk about the bubbling election law
disputes, including four which made it to the Supreme Court such as
Texas's controversial voter id case.
And here's more information about Dahlia'sregular "Amicus"
podcast<http://www.slate.com/articles/podcasts/amicus.html>and the first
four episodes:
*
Amicus: Ballot-Box Special
<http://slateamicus.slate.libsynpro.com/amicus-ballot-box-special>
Posted: Sat, 01 Nov 2014 05:16:56 +0000
Play Now
<http://www.podtrac.net/pts/redirect.mp3/traffic.libsyn.com/slateamicus/2014-11-01-Amicus-004.mp3>
On Ep. 4 of Amicus, a pre-election special. Dahlia sits down with UC
Irvine law professor Rick Hasen, founder of Election Law Blog, to
survey the landscape of state voter ID laws. They consider the
effect of recent headlines on voters' confidence in elections, as
well as the enduring curiosity of judicial elections in America.
*
Amicus: Revenge of the Octogenarians
<http://slateamicus.slate.libsynpro.com/amicus-revenge-of-the-octogenarian>
Posted: Sat, 25 Oct 2014 18:32:02 +0000
Play Now
<http://www.podtrac.net/pts/redirect.mp3/traffic.libsyn.com/slateamicus/2014-10-25-Amicus-003.mp3>
On Ep. 3 of Amicus, Slate's Dahlia Lithwick talks with the New
Yorker's Jeffrey Toobin about his recent interview with President
Obama on Obama's judicial legacy. Then Dahlia welcomes Roberta
Kaplan, the lawyer who won last year's DOMA case U.S. vs. Windsor,
and who's now fighting for same-sex marriage in the South.
*
Amicus: Let's Salsa with Sotomayor
<http://slateamicus.slate.libsynpro.com/amicus-lets-salsa-with-sotomayor>
Posted: Sat, 18 Oct 2014 06:42:15 +0000
Play Now
<http://www.podtrac.net/pts/redirect.mp3/traffic.libsyn.com/slateamicus/2014-10-18-Amicus-002.mp3>
On Ep. 2 of Amicus, Slate's Dahlia Lithwick and former acting
solicitor general Walter Dellinger discuss the Surpreme Court's
recent non-decisions about abortion and voter I.D. laws. Then Dahlia
talks with Joan Biskupic, author of a new biography of Justice Sonia
Sotomayor.
*
Amicus with Dahlia Lithwick
<http://www.podtrac.net/pts/redirect.mp3/traffic.libsyn.com/slateamicus/2014-10-11-Amicus-001.mp3>
Posted: Sat, 11 Oct 2014 05:14:11 +0000
Play Now
<http://www.podtrac.net/pts/redirect.mp3/traffic.libsyn.com/slateamicus/2014-10-11-Amicus-001.mp3>
On Ep. 1 of Amicus, Slate's Dahlia Lithwick discusses the opening of
the Surpreme Court's new term with Tom Goldstein, publisher of
SCOTUSblog. Dahlia also welcomes Douglas Laycock, who argued the
case of a Muslim prisoner who wants to grow a beard.
Share
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,The Voting
Wars <http://electionlawblog.org/?cat=60>
"Former state Sen. Wright's jail term ends quickly"
<http://electionlawblog.org/?p=67790>
Posted onNovember 1, 2014 11:33 am
<http://electionlawblog.org/?p=67790>byRick Hasen
<http://electionlawblog.org/?author=3>
LAT
<http://www.latimes.com/local/political/la-me-pc-rod-wright-jail-20141031-story.html>:
"Former Democratic state Sen. Roderick D. Wright showed up late Friday
to begin serving a 90-day jail sentence but was released almost
immediately due to jail crowding, a Los Angeles County Sheriff's
Department spokeswoman said. A jury convicted Wright earlier this year
on eight felony counts, including perjury and voting fraud, in a case
that centered on whether he had lied about living in the district he
sought to represent."
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67790&title=%E2%80%9CFormer%20state%20Sen.%20Wright%E2%80%99s%20jail%20term%20ends%20quickly%E2%80%9D&description=>
Posted inchicanery <http://electionlawblog.org/?cat=12>,residency
<http://electionlawblog.org/?cat=38>
"It's Time for a Constitutional Right to Vote, and a Truce in the
Voting Wars" <http://electionlawblog.org/?p=67788>
Posted onNovember 1, 2014 11:28 am
<http://electionlawblog.org/?p=67788>byRick Hasen
<http://electionlawblog.org/?author=3>
Rob Richie blogs.
<http://www.huffingtonpost.com/rob-richie/its-time-for-a-constituti_b_6084836.html>
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67788&title=%E2%80%9CIt%E2%80%99s%20Time%20for%20a%20Constitutional%20Right%20to%20Vote%2C%20and%20a%20Truce%20in%20the%20Voting%20Wars%E2%80%9D&description=>
Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
"500 Ohio, Kentucky judicial races, few choices"
<http://electionlawblog.org/?p=67786>
Posted onNovember 1, 2014 11:26 am
<http://electionlawblog.org/?p=67786>byRick Hasen
<http://electionlawblog.org/?author=3>
Gannett reports.
<http://www.cincinnati.com/story/news/politics/elections/2014/11/01/ohio-kentucky-judicial-races-choices/18265883/>
Share
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Posted incampaigns <http://electionlawblog.org/?cat=59>,judicial
elections <http://electionlawblog.org/?cat=19>
Super Creepy Picture of the Day <http://electionlawblog.org/?p=67778>
Posted onOctober 31, 2014 3:38 pm
<http://electionlawblog.org/?p=67778>byRick Hasen
<http://electionlawblog.org/?author=3>
141031_ScaryAds.jpg.CROP.promovar-mediumlarge
<http://electionlawblog.org/wp-content/uploads/141031_ScaryAds.jpg.CROP_.promovar-mediumlarge.jpg>
From a real live judicial elections ad, as described inthe new Slate
piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/judicial_election_outrageous_ads_campaign_contributions_break_records.html>with
Dahlia Lithwick
Share
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Posted injudicial elections <http://electionlawblog.org/?cat=19>
Updated Analysis: Grimes Campaign Suing over McConnell "Election
Violations" Mailer <http://electionlawblog.org/?p=67776>
Posted onOctober 31, 2014 3:34 pm
<http://electionlawblog.org/?p=67776>byRick Hasen
<http://electionlawblog.org/?author=3>
So reports
<http://www.thedailybeast.com/articles/2014/10/31/grimes-campaign-exploring-legal-options-against-mcconnell.html>The
Daily Beast. UPDATE: TPM hasthe complaint
<https://www.scribd.com/doc/245146077/Grimes-Campaign-Complaint-10-31-14>.
It alleges a violation of KRS119.155
<http://www.lrc.ky.gov/Statutes/statute.aspx?id=27752>, which makes it a
crime to, among other things "intimidate[] or attempts to intimidate any
voter so as to prevent him from casting his ballot." That's what the
Grimes campaign alleges the flyer does.
I don't buy it. Some people might be confused by the flyer and maybe
even think they are accused of some kind of elections code violation.
But anyone who reads it will see it is clearly a nasty attack ad aimed
at Grimes.
Voters are not stupid nor so easily intimidated.
Let me be clearer about the Grimes suit. I see it as a publicity device
to accuse McConnell of being a vote suppressor.
The real evil of the ad is that it is misleading. But it is hard enough
to regulate false campaign speech---there are very serious First
Amendment problems trying to regulate misleading campaign speech. See
myA Constitutional Right to Lie in Campaigns and Elections?
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
Yes we are knee deep in the silly season.
[This post has been updated.]
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Posted incampaigns <http://electionlawblog.org/?cat=59>,chicanery
<http://electionlawblog.org/?cat=12>,The Voting Wars
<http://electionlawblog.org/?cat=60>
--
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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