[EL] ELB News and Commentary 10/3/14

Fri Oct 3 05:59:32 PDT 2014

Rick:

An outstanding recap of events on litigation that is exhausting to read
and think about.

On Thu, Oct 2, 2014 at 9:54 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>     What’s Happened So Far in Election Litigation This Week?
> <http://electionlawblog.org/?p=66287>
> Posted on October 2, 2014 7:52 pm <http://electionlawblog.org/?p=66287> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> Seems like time for a recap (or scorecard).
>
> The U.S. Supreme Court restored Ohio’s cutbacks
> <http://electionlawblog.org/?p=66036> in early voting, which a district
> court had put on hold and the Sixth Circuit had affirmed.
>
> A three judge panel of Kansas judges <http://electionlawblog.org/?p=66159>
>  did not force Democrats to run a candidate in the Kansas U.S. Senate
> race, and ballots are now being printed without a Democrat, a move expected
> to hurt the incumbent Republican Senator Pat Roberts (running against
> independent Greg Orman)
>
> The United States Court of Appeals for the Fourth Circuit temporarily put
> on hold two aspects of North Carolina’s restrictive voting laws—an end to
> same day voter registration and and end of counting of ballots cast in the
> wrong precinct. North Carolina has appealed
> <http://electionlawblog.org/?p=66256> to the U.S. Supreme Court and the
> Chief Justice has asked for a response from voting rights advocates by
> Sunday at 5.
>
> After the United States Court of Appeals for the Seventh Circuit divided
> 5-5 over whether Wisconsin’s voter id law can be implemented right now,
> before a final appeal is considered on whether the id requirement violates
> the Constitution or the Voting Rights Act, challengers of the law have gone
> to the Supreme Court  <http://electionlawblog.org/?p=66198>to get the id
> requirement blocked for use in this election. Justice Kagan
> <http://electionlawblog.org/?p=66252> has asked for a response from
> Wisconsin by Tuesday at 5.
>
> The Mississippi Supreme Court heard oral arguments
> <http://www.clarionledger.com/story/news/2014/10/02/high-court-mulls-mcdaniel-appeal/16601115/?utm_source=twitterfeed&utm_medium=twitter>over
> whether Chris McDaniel’s election challenge in the U.S. Senate Republican
> primary against incumbent Thad Cochran was untimely.
>
> The Arkansas Supreme Court heard oral arguments
> <http://swtimes.com/news/state-news/arkansas-supreme-court-hears-oral-arguments-voter-id-case>
>  over whether the state’s voter id law was properly put on hold by a
> trial court.
>
> The Supreme Court agreed to hear major cases
> <http://electionlawblog.org/?p=66201> involving whether citizen
> redistricting commissions for Congressional districts violate state
> legislature’s power to set the rules for Congressional elections and a case
> on judicial campaign speech.
>
> And we are still expecting a ruling any time from federal district court
> on whether Texas’s voter id law violates the Constitution and Section 2 of
> the Voting Rights Act.
>
> Yes, we are just weeks before the election and the voting wars are more
> than heating up
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>
> .
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66287&title=What%E2%80%99s%20Happened%20So%20Far%20in%20Election%20Litigation%20This%20Week%3F&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      “Arkansas Supreme Court Hears Oral Arguments In Voter ID Case”
> <http://electionlawblog.org/?p=66285>
> Posted on October 2, 2014 7:35 pm <http://electionlawblog.org/?p=66285> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> Ruling is expected soon
> <http://swtimes.com/news/state-news/arkansas-supreme-court-hears-oral-arguments-voter-id-case>
> .
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66285&title=%E2%80%9CArkansas%20Supreme%20Court%20Hears%20Oral%20Arguments%20In%20Voter%20ID%20Case%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60>, voter id
> <http://electionlawblog.org/?cat=9>
>      CA Redistricting Commissions Could Be in Danger from AZ Supreme
> Court Case <http://electionlawblog.org/?p=66283>
> Posted on October 2, 2014 7:32 pm <http://electionlawblog.org/?p=66283> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> David Savage
> <http://www.latimes.com/nation/la-na-supreme-court-arizona-20140930-story.html>
>  of the LAT reports.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66283&title=CA%20Redistricting%20Commissions%20Could%20Be%20in%20Danger%20from%20AZ%20Supreme%20Court%20Case&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      “U.S. high court could toss out Ariz. voting boundaries”
> <http://electionlawblog.org/?p=66281>
> Posted on October 2, 2014 7:29 pm <http://electionlawblog.org/?p=66281> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> The Arizona Republic reports
> <http://www.azcentral.com/story/news/arizona/politics/2014/10/02/us-supreme-court-toss-arizona-voting-boundaries/16597969/>
> .
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66281&title=%E2%80%9CU.S.%20high%20court%20could%20toss%20out%20Ariz.%20voting%20boundaries%E2%80%9D&description=>
>   Posted in citizen commissions <http://electionlawblog.org/?cat=7>, Elections
> Clause <http://electionlawblog.org/?cat=70>, redistricting
> <http://electionlawblog.org/?cat=6>
>      “Cooper asks US Supreme Court to block federal appeals court ruling
> on elections law” <http://electionlawblog.org/?p=66279>
> Posted on October 2, 2014 7:27 pm <http://electionlawblog.org/?p=66279> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> The *News and Observer *reports.
> <http://www.newsobserver.com/2014/10/02/4202091_cooper-asks-us-supreme-court-to.html?sp=/99/102/105//&rh=1>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66279&title=%E2%80%9CCooper%20asks%20US%20Supreme%20Court%20to%20block%20federal%20appeals%20court%20ruling%20on%20elections%20law%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, Supreme
> Court <http://electionlawblog.org/?cat=29>, The Voting Wars
> <http://electionlawblog.org/?cat=60>, voter id
> <http://electionlawblog.org/?cat=9>
>      “Prop. 47 asks Californians to reduce drug, theft penalties”
> <http://electionlawblog.org/?p=66276>
> Posted on October 2, 2014 7:22 pm <http://electionlawblog.org/?p=66276> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> Bob Egelko
> <http://www.sfgate.com/news/article/Prop-47-asks-Californians-to-reduce-drug-theft-5797274.php>:
> “The ballot measures reflect a recurring legislative logjam on crime issues
> in which prosecutors and defense lawyers have been far more successful at
> blocking their opponents’ bills than at passing their own.”
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66276&title=%E2%80%9CProp.%2047%20asks%20Californians%20to%20reduce%20drug%2C%20theft%20penalties%E2%80%9D&description=>
>   Posted in direct democracy <http://electionlawblog.org/?cat=62>
>      “Jerry Brown vetoes California political ethics bills”
> <http://electionlawblog.org/?p=66274>
> Posted on October 2, 2014 7:20 pm <http://electionlawblog.org/?p=66274> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> SacBee reports
> <http://www.sacbee.com/2014/09/30/6749230/jerry-brown-vetoes-political-ethics.html?utm_source=dlvr.it&utm_medium=twitter#mi_rss=Capitol%20Alert>
> .
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66274&title=%E2%80%9CJerry%20Brown%20vetoes%20California%20political%20ethics%20bills%E2%80%9D&description=>
>   Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
>      “McAuliffe aide suggested job for senator’s daughter if he remained
> in his seat” <http://electionlawblog.org/?p=66271>
> Posted on October 2, 2014 6:14 pm <http://electionlawblog.org/?p=66271> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> WaPo
> <http://www.washingtonpost.com/local/virginia-politics/mcauliffe-aide-suggested-job-for-senators-daughter-if-he-remained-in-his-seat/2014/10/02/e4564904-4984-11e4-b72e-d60a9229cc10_story.html>:
> “Gov. Terry McAuliffe’s chief of staff left a voicemail for a Democrat who
> was on the verge of quitting the state Senate in June, saying that the
> lawmaker’s daughter might get a top state job if he stayed to support the
> governor’s uphill bid to expand Medicaid, according to descriptions from
> three people who heard the recording.”
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66271&title=%E2%80%9CMcAuliffe%20aide%20suggested%20job%20for%20senator%E2%80%99s%20daughter%20if%20he%20remained%20in%20his%20seat%E2%80%9D&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      “Voter registration in Ferguson surges after Brown killing”
> <http://electionlawblog.org/?p=66269>
> Posted on October 2, 2014 5:13 pm <http://electionlawblog.org/?p=66269> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> USA Today
> <http://www.usatoday.com/story/news/nation/2014/10/02/ferguson-vote-registration/16572305/>:
> “More than 3,000 people have registered to vote in Ferguson, Mo., since the
> death of Michael Brown — a surge in interest that may mean the city of
> 21,000 people is ready for a change.”
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66269&title=%E2%80%9CVoter%20registration%20in%20Ferguson%20surges%20after%20Brown%20killing%E2%80%9D&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      I Have a Headache: #MSSEN <http://electionlawblog.org/?p=66267>
> Posted on October 2, 2014 2:49 pm <http://electionlawblog.org/?p=66267> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> As if the torrent of election-related litigation today is not enough, the Clarion
> Ledger reports
> <http://www.clarionledger.com/story/news/2014/10/02/high-court-mulls-mcdaniel-appeal/16601115/?utm_source=twitterfeed&utm_medium=twitter>
>  that if (when) Chris McDaniel loses in the state supreme court in his
> election challenge to Sen. Thad Cochran, he could run to federal court to
> raise (frivolous) First Amendment issues.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66267&title=I%20Have%20a%20Headache%3A%20%23MSSEN&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      Question of the Day: Texas Voter ID Edition
> <http://electionlawblog.org/?p=66265>
> Posted on October 2, 2014 2:45 pm <http://electionlawblog.org/?p=66265> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> So let’s say you are the federal district judge inclined to issue an
> opinion striking down Texas’s voter id law. Do you issue something now,
> barring its use in the upcoming election (raising the ubiquitous Purcell
> issue aside from the merits), knowing there’s a good chance you get quickly
> reversed by the 5th Circuit or SCOTUS, or do you wait until after this
> election, when Texas will be able to point to more evidence that the sky
> did not fall with the use of voter id in the midterm elections?
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66265&title=Question%20of%20the%20Day%3A%20Texas%20Voter%20ID%20Edition&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60>, voter id
> <http://electionlawblog.org/?cat=9>, Voting Rights Act
> <http://electionlawblog.org/?cat=15>
>      Want the Big Picture on All the Voting Cases at the Supreme Court
> This Week? <http://electionlawblog.org/?p=66263>
> Posted on October 2, 2014 2:35 pm <http://electionlawblog.org/?p=66263> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> I try to put them in context in this piece
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>
> .
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66263&title=Want%20the%20Big%20Picture%20on%20All%20the%20Voting%20Cases%20at%20the%20Supreme%20Court%20This%20Week%3F&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, The
> Voting Wars <http://electionlawblog.org/?cat=60>
>      Breaking: North Carolina Files Emergency #SCOTUS Petition in Same
> Day Voting, Precinct Voting Case: Analysis
> <http://electionlawblog.org/?p=66256>
> Posted on October 2, 2014 1:47 pm <http://electionlawblog.org/?p=66256> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> I have now had a chance to read North Carolina’s 32-page petition
> <http://electionlawblog.org/wp-content/uploads/North-Carolina-voting-applic.-14A358.pdf> (with
> an extensive appendix) asking for the Supreme Court to reverse an order
> issued by the 4th Circuit on a 2-1 vote
> <http://electionlawblog.org/wp-content/uploads/NC-Opinion.pdf> requiring
> North Carolina to restore same day voter registration and the counting of
> out of precinct ballots in the upcoming election. It is quite a feat to
> file such an impressive document in just a little more than 24 hours after
>  the 4th Circuit’s decision <http://electionlawblog.org/?p=66138>,
> regardless of whether NC ultimately should prevail. [The Chief Justice has
> now ordered a response by September 5 at 5 pm, two days earlier than the
> response is due in the WI case.]
>
> I think there is a good chance North Carolina will prevail in on this
> emergency motion and get these changes stopped, even though I believe that
> North Carolina’s ominbus bill, which contains the toughest set of voting
> restrictions I’ve seen in a single law passed anywhere since the passage of
> the 1965 Voting Rights Act, should be found to be unconstitutional. (My
> theory — advanced in this *Harvard Law Review Forum *piece
> <http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>–is
> that it should be unconstitutional for a state to impose significant
> burdens on voters for no good reasons or for partisan reasons.)
>
> The state makes two main arguments in support of its position.
>
> 1. The 4th Circuit’s reading of section 2 of the Voting Rights Act is too
> broad. The 4th Circuit majority had offered a generous but reasonable
> reading of the scope of section 2 of the Voting Rights Act. The district
> court had offered a much narrower reading of the scope of section 2.  As I
> explained in my piece in *Slate *this week,
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>the
> conservative 5-Justice Supreme Court majority is ultimately likely to side
> with the narrower view of section 2 and not find the North Carolina
> cutbacks to be a section 2 violation. Because one of the key factors in
> considering whether the Supreme Court should grant this emergency relief is
> the likelihood that North Carolina will be successful in the Supreme Court
> (should the Court take the case), the merits matter for the stay.
>
> 2. North Carolina also makes much of the chaos it sees (and the affront to
> state sovereignty it objects to) in changing the election rules so close to
> the objection. This is the *Purcell* objection, and it is in play in the
> North Carolina case as well. The main difference in the 4th Circuit between
> the majority and the the dissent was over the question whether making these
> changes now is going to cause confusion and impose a burden on election
> officials and the state in light of Supreme Court admonitions not to change
> election rules so close to the election. North Carolina says that poll
> workers cannot deal with these changes at this late date. As I indicated in
> a post  <http://electionlawblog.org/?p=66196>last night, the *Purcell* delay
> issue is tricky for opponents of both Wisconsin’s and North Carolina’s
> laws.  Both involve last minute changes, but WI involves a new restriction
> while NC involves lifting new restrictions. Both change the status quo. The
> question is whether the cases can be distinguished on the risk of
> disenfranchising voters.
>
> It seems quite likely that the Purcell issue leads the Court to issue
> stays in *both* WI and NC, which also has a nice political appeal to
> it—as opposed to all 5 conservative Justices voting in favor of voting
> restrictions in OH, WI and NC and all 4 liberal Justices voting against the
> voting restrictions.
>
> Stay tuned.
>
> [This post has been updated.]
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66256&title=Breaking%3A%20North%20Carolina%20Files%20Emergency%20%23SCOTUS%20Petition%20in%20Same%20Day%20Voting%2C%20Precinct%20Voting%20Case%3A%20Analysis&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60>, voter id
> <http://electionlawblog.org/?cat=9>, voting
> <http://electionlawblog.org/?cat=31>, Voting Rights Act
> <http://electionlawblog.org/?cat=15>
>      “Here’s the Latest in the GOP’s Push to Restrict Voting”
> <http://electionlawblog.org/?p=66254>
> Posted on October 2, 2014 1:37 pm <http://electionlawblog.org/?p=66254> by
>  Rick Hasen <http://electionlawblog.org/?author=3>
>
> John Light writes
> <http://billmoyers.com/2014/10/02/the-gop-push-to-restrict-voting-2014-edition/>
>  for Moyers & Co.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66254&title=%E2%80%9CHere%E2%80%99s%20the%20Latest%20in%20the%20GOP%E2%80%99s%20Push%20to%20Restrict%20Voting%E2%80%9D&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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>

-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
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MS B 1805
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Twitter:  @ProfDSchultz
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FacultyRow SuperProfessor, 2012, 2013, 2014
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