[EL] ELB News and Commentary 11/3/14

[Smith, Brad]

I am very honestly quite puzzled by this statement about Ohio Supreme Court Justice Judy French:

"One would think she would lose because of this 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,’

Let's dissect that:
‘I am a Republican [true statement of fact, obviously protected speech, one that her supporters will trumpet to Republican and conservative audiences] and you should vote for me. [Reasonable pitch from a candidate for elected office] You’re going to hear from your elected officials, and I see a lot of them in the crowd. [No reason to doubt her here] 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. [All true. Typically arguments made in Presidential campaigns by both parties and their supporters about the federal courts. see e.g. http://www.sfgate.com/news/article/Next-president-will-shape-Supreme-Court-3264700.php] So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative,’ [Reasonable pitch for candidate for elective office, clearly protected speech, argument her supporters undoubtedly are making while her opponent and his supporters argue for a more liberal justice on the Court, e.g. http://www.cincinnati.com/story/opinion/editorials/2014/10/11/supreme-court-kennedy-odonnell/17096073/ ("We support O'Donnell for a second Democratic voice on the state's top court.")]

I really am at a total loss to see what is objectionable here. French makes no promises regarding any future case or litigant. She makes no promises to rule for or against any particular class of litigants. She states quite clearly that judicial philosophy matters, and that conservatives should vote for judges with conservative judicial philosophies, for which Republican membership is a pretty good proxy (attend a Federalist Society meeting). I would assume most people who are going to vote against her believe that liberals should vote for judges with a liberal judicial philosophy, for which Democratic party membership is a reasonably good proxy (attend an American Constitution Society meeting).

This strikes me as one of the most benign - and concise and relatively helpful - statements a judicial candidate might make to typical voters, who pay little attention to judicial races. It is certainly better than arguing that your opponent is on the take, or supports child molesters.

Isn't her opponent O'Donnell's campaign much worse? It largely consists of arguing that Justice French is on the take and is bribed by campaign contributions. https://www.youtube.com/watch?v=UV4ApKnhlkQ&feature=youtu.be.  . If you are worried about confidence in the judiciary, which is worse? An open statement by a candidate that she is Republican, that the courts matter, and that if you want Republican legislators, you should also want a conservative court? Or Judge O'Donnell's smear ad? This guilt by innuendo smear has, in fact, earned a rebuke from the Ohio State Bar. http://www.toledoblade.com/State/2014/11/01/Race-for-Ohio-Supreme-Court-turns-negative.html  (for those not from Ohio, there is a long tradition in the state of the Bar - which unlike some states, is not a state agency or compulsory) from issuing statements on judicial ads that are deemed to cross appropriate boundaries.

Judicial elections, love 'em or hate 'em, would be a lot better if candidates campaigned more like Justice French and less like Judge O'Donnell. Far from being a reason why French should lose, I consider her statement a reason why she should win, and not because I am conservative but because I think a straightforward discussion of the importance of judicial ideology, without committing oneself vis any future litigation or litigants, is exactly how judges should campaign for office.



Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, November 03, 2014 10:32 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 11/3/14

“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 on November 3, 2014 7:23 am<http://electionlawblog.org/?p=67851> by Rick 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 in election 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 on November 3, 2014 7:20 am<http://electionlawblog.org/?p=67849> by Rick 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 in election 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 on November 3, 2014 7:13 am<http://electionlawblog.org/?p=67847> by Rick 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 in campaigns<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 on November 3, 2014 7:11 am<http://electionlawblog.org/?p=67845> by Rick 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 in campaign finance<http://electionlawblog.org/?cat=10>
“Megadonations Follow Randa Ruling in Wisconsin”<http://electionlawblog.org/?p=67843>
Posted on November 3, 2014 7:09 am<http://electionlawblog.org/?p=67843> by Rick 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 in campaign finance<http://electionlawblog.org/?cat=10>
“Voting rules, from photo ID to provisional ballots”<http://electionlawblog.org/?p=67841>
Posted on November 2, 2014 8:03 pm<http://electionlawblog.org/?p=67841> by Rick 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 in election 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 on November 2, 2014 7:57 pm<http://electionlawblog.org/?p=67839> by Rick 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 in The 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 on November 2, 2014 7:54 pm<http://electionlawblog.org/?p=67836> by Rick 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 the margin 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 opened The 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 the Election Administrator’s prayer<http://politicaldictionary.com/words/election-administrators-prayer/>.

(title of post courtesy of Stephen Colbert<http://thecolbertreport.cc.com/videos/qtoavw/what-to-expect-when-you-re-electing>.)

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Cancel the Midterms”<http://electionlawblog.org/?p=67834>
Posted on November 2, 2014 7:29 pm<http://electionlawblog.org/?p=67834> by Rick Hasen<http://electionlawblog.org/?author=3>

David Schanzer and Jay Sullivan NYT 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 in campaigns<http://electionlawblog.org/?cat=59>
“Money and Judges, a Bad Mix”<http://electionlawblog.org/?p=67832>
Posted on November 2, 2014 7:14 pm<http://electionlawblog.org/?p=67832> by Rick 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 in campaign 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 on November 2, 2014 7:12 pm<http://electionlawblog.org/?p=67830> by Rick 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 in campaign 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 on November 2, 2014 7:09 pm<http://electionlawblog.org/?p=67828> by Rick 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 in campaign 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 on November 2, 2014 7:08 pm<http://electionlawblog.org/?p=67826> by Rick 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 in campaign finance<http://electionlawblog.org/?cat=10>
“McFadden alleges illegal coordination between Franken, Bloomberg’s PAC”<http://electionlawblog.org/?p=67824>
Posted on November 2, 2014 7:06 pm<http://electionlawblog.org/?p=67824> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports.<http://www.startribune.com/local/281242211.html>

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Posted in campaign 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 on November 2, 2014 7:04 pm<http://electionlawblog.org/?p=67822> by Rick 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 in election 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 on November 2, 2014 7:00 pm<http://electionlawblog.org/?p=67820> by Rick 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 SCOTUSBlog is 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 in redistricting<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 on November 2, 2014 6:56 pm<http://electionlawblog.org/?p=67818> by Rick 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 in The 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 on November 2, 2014 6:53 pm<http://electionlawblog.org/?p=67816> by Rick 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 in election 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 on November 2, 2014 6:46 pm<http://electionlawblog.org/?p=67813> by Rick Hasen<http://electionlawblog.org/?author=3>

One would think she would lose because of this 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 she may 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 in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>
Election conspiracy theories, an American staple”<http://electionlawblog.org/?p=67811>
Posted on November 2, 2014 6:44 pm<http://electionlawblog.org/?p=67811> by Rick 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 in The Voting Wars<http://electionlawblog.org/?cat=60>
Ed Fitzpatrick Column on Rhode Island Voter ID Etc.<http://electionlawblog.org/?p=67809>
Posted on November 2, 2014 6:39 pm<http://electionlawblog.org/?p=67809> by Rick 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>

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Posted in election 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 on November 2, 2014 10:41 am<http://electionlawblog.org/?p=67807> by Rick Hasen<http://electionlawblog.org/?author=3>

Even this 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.

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Posted in election 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 on November 2, 2014 8:14 am<http://electionlawblog.org/?p=67805> by Rick Hasen<http://electionlawblog.org/?author=3>

The Hill reports.<http://thehill.com/policy/cybersecurity/222470-states-ditch-electronic-voting-machines>

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Posted in election 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 on November 2, 2014 8:00 am<http://electionlawblog.org/?p=67803> by Rick 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 in election 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 on November 2, 2014 7:59 am<http://electionlawblog.org/?p=67801> by Rick 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.

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Posted in election 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 on November 2, 2014 7:37 am<http://electionlawblog.org/?p=67799> by Rick 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>

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Posted in campaigns<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 on November 2, 2014 7:30 am<http://electionlawblog.org/?p=67797> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports<http://abcnews.go.com/Politics/wireStory/voting-suppression-tactics-elections-26635771>.

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Posted in campaigns<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 on November 2, 2014 7:26 am<http://electionlawblog.org/?p=67794> by Rick 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 theRockefeller 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 in redistricting<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 on November 1, 2014 11:40 am<http://electionlawblog.org/?p=67792> by Rick Hasen<http://electionlawblog.org/?author=3>

In this 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’s regular “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.

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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.

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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.

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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.

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Posted in Supreme 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 on November 1, 2014 11:33 am<http://electionlawblog.org/?p=67790> by Rick 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.”

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Posted in chicanery<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 on November 1, 2014 11:28 am<http://electionlawblog.org/?p=67788> by Rick Hasen<http://electionlawblog.org/?author=3>

Rob Richie blogs.<http://www.huffingtonpost.com/rob-richie/its-time-for-a-constituti_b_6084836.html>

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
“500 Ohio, Kentucky judicial races, few choices”<http://electionlawblog.org/?p=67786>
Posted on November 1, 2014 11:26 am<http://electionlawblog.org/?p=67786> by Rick 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/>

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Posted in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>
Super Creepy Picture of the Day<http://electionlawblog.org/?p=67778>
Posted on October 31, 2014 3:38 pm<http://electionlawblog.org/?p=67778> by Rick 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 in the 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

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Posted in judicial elections<http://electionlawblog.org/?cat=19>
Updated Analysis: Grimes Campaign Suing over McConnell “Election Violations” Mailer<http://electionlawblog.org/?p=67776>
Posted on October 31, 2014 3:34 pm<http://electionlawblog.org/?p=67776> by Rick 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 has the complaint<https://www.scribd.com/doc/245146077/Grimes-Campaign-Complaint-10-31-14>. It alleges a violation of KRS 119.155<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 my A 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 in campaigns<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
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