[EL] ELB News and Commentary 10/10/14
Justin Levitt
levittj at lls.edu
Fri Oct 10 01:00:38 PDT 2014
Huh. 3:30pm PT <http://electionlawblog.org/?p=66589> on Thursday didn't
seem like that long ago.
BREAKING: Federal Court Strikes TX ID Law
<http://electionlawblog.org/?p=66595>
Posted onOctober 9, 2014 5:53 pm
<http://electionlawblog.org/?p=66595>byJustin Levitt
<http://electionlawblog.org/?author=4>
[Bumped to the top.]
Texas-sized news out of the Lone Star State. A federal court hasstruck
down
<http://electionlawblog.org/wp-content/uploads/20141009-TXID-Opinion.pdf>Texas's
voter ID law. It violates the Voting Rights Act, it violates the
constitutional prohibition on poll taxes, it violates the constitutional
prohibition of unjustified burdens, it violates the constitutional
prohibition on intentional racial discrimination: indeed, in147 pages of
opinion
<http://electionlawblog.org/wp-content/uploads/20141009-TXID-Opinion.pdf>,
there's little that the ID law doesn't violate.
Also extremely important: the court expressly finds intentional
discrimination relevant to bail-in under the Voting Rights Act, and says
it will consider a bail-in order in the days to come. If the court
indeed follows up with a bail-in order, Texas could become the first
state brought back under a preclearance regime since/Shelby County/.
I've said before that in Texas, the case for federal supervision under
the Voting Rights Act flips "New York, New York" on its head: If you can
make it anywhere, you can make it there. Stay tuned for appellate
proceedings on this case ... and also an impact on the pending
redistricting litigation, where there are similar claims of intentional
discrimination lurking.
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Posted inelection law and constitutional law
<http://electionlawblog.org/?cat=55>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Analysis: Supreme Court Stops Immediate Implementation of WI Voter
ID Law; and a Thought on Texas <http://electionlawblog.org/?p=66601>
Posted onOctober 9, 2014 6:47 pm
<http://electionlawblog.org/?p=66601>byRick Hasen
<http://electionlawblog.org/?author=3>
[Bumped to the top.]
Here
<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf>is
the order, and judged by the dissent of Justice Alito, joined by Scalia
and Thomas, the basis was the Purcell objection, the proximity to the
upcoming election and the risk of electoral chaos.
Not only didthe apparent Kagan/Breyer strategy I explained last night
<http://electionlawblog.org/?p=66570>to keep the Chief and Kennedy
likely work, here's something odd: I probably agree with the votes on
all three of the decisions of the Court in the election cases: OH, NC,
and WI. Three in a row for me and the Court---unheard of.
Now there's an odd procedural wrinkle here. There has also been a ruling
on the merits in the WI voter id law, and presumably now Judge
Easterbrook & Co could go and reorder implementation of ID for this
election. Not that this is likely, but there's a second pending
emergency WI petition to stop immediate implementation of the WI ruling
on the merits, and I expect that the Court will follow through with a
second order with the same vote.
So how to reconcile the three cases' votes? In Ohio, the court changed
the law close to the election, but more importantly, it imposed an order
reestablishing 5 weeks of early voting when the state was still willing
to give four. There was no significant burden on plaintiffs and so the
lower courts were wrong to order this emergency relief. In North
Carolina, North Carolina's law, which I've dubbed the strict set of
voting restrictions we've seen enacted as a package since the passage of
the 1965 Voting Rights Act, should be found unconstitutional.
<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/> But
even so, under the Purcell v. Gonzalez principle, it was wrong for the
4th Circuit to make this change in the rules so close to the election
(particularly where plaintiffs waited a while to seek a preliminary
injunction [this has been corrected]).
That same Purcell principle applies even more strongly to
Wisconsin. That is, even if the Supreme Court ultimately would say that
Wisconsin's law is constitutional and does not violate the Voting Rights
Act, this is a /very/ strong case under Purcell.
<http://electionlawblog.org/?p=66198> (As I explained, the key question
is whether Wisconsin has a strong enough state interest in its
sovereignty over elections to implement a voter id law /very
quickly/ before the election, when there has been no preparation and
when the /undisputed evidence/ shows that, by the state's own account,
up to *10 percent*//of the state's voters could be disenfranchised (a
position the 7th Circuit en banc dissenters called shocking
<http://electionlawblog.org/?p=66102>).
Finally, what happens now with Texas, with thehuge win
<http://electionlawblog.org/wp-content/uploads/20141009-TXID-Opinion.pdf>for
challengers to Texas's voter id law whichJustin wrote about
<http://electionlawblog.org/?p=66595>earlier? It is 4 am where I am and
I may have missed it, but in all of the court's findings---the Texas law
violates the Equal Protection clause, is a poll tax, violates the Voting
Rights Act, and engaged in enough intentional discrimination to be put
back under preclearance--there is no discussion of whether the actual
order will apply to this election and the injunction will stop its use
in this election.
This order too creates a huge Purcell problem,as I've blogged
<http://electionlawblog.org/?p=66519>, changing the rules so close to
the election. If the district court orders an immediate stop to Texas's
id law, I expect the 5th Circuit (if not the Supreme Court) to reverse
that on Purcell grouns.
[This post has been updated.]
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Posted inelection 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>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Not All "Purcell Problems" Are Alike
<http://electionlawblog.org/?p=66613>
Posted onOctober 9, 2014 11:17 pm
<http://electionlawblog.org/?p=66613>byJustin Levitt
<http://electionlawblog.org/?author=4>
[Bumped to the top.]
Rick says that tonight's TX ID case (which does, indeed, enter a
permanent injunction against the ID law -- on pp. 142-143 of the
opinion) creates a huge/Purcell/problem. I'm not so sure.
To be clear, I can understand a/Purcell/ problem with decisions changing
early voting or same-day registration requirements (as in OH or NC) this
close to the election; setting up that infrastructure is no small
matter, with significant logistical challenges on a statewide scale, and
very little time to implement. And I canreally understand a
/Purcell/problem with a requirement toimplement a strict ID requirement,
both in person and by absentee, when none of the state's infrastructure
is prepared to issue IDs to those who don't have them, and absentee
voters have already received (and perhaps returned) their ballots under
different legal instructions (as in WI).
But Texas seems to me another matter entirely. The only required
logistics involve maintaining the status quo ante on election day
itself, which involves a bit of pollworker training --- the pollworker
training used for years before --- about what ID is acceptable. There
may well be a bit of confusion. But weighing a small amount of
confusion against the implementation of a law found to be the product
ofintentionaldiscrimination with what a court found (after a full trial)
to be a substantial amount of likely disenfranchisement is nothing the
Court has yet encountered.
It's also worth remembering that though the original /Purcell/case did
involve the Court overturning a 9th Circuit stay of an identification
requirement, the court of appeals offered no written analysis on the
merits, and issued its decision before the trial court had issued
findings or legal conclusions. I'll say that again: in 2006, the 9th
Circuit panel stayed implementation of the law without explaining why
the trial court had erred, in part because the trial court hadn't yet
explained what it had done either. (Here's the 9th Circuit order ---see
for yourself
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/06-16706_000.pdf>.)
That made it substantially easier for the Court to decide that the
status quo was worth preserving. Indeed, the legalbasis for the Court's
holding was that "[i]t was still necessary, as a procedural matter, for
the Court of Appeals to give deference to the discretion of the District
Court. We find no indication that it did so, and we conclude this was
error."/
/
To me, a decision to stay that 9th Circuit order seems a far cry from
deciding to stay a 147-page opinion following an extensive trial,
concluding that a legal change premised on intentional racial
discrimination will disenfranchise eligible citizens, and requiring
instead the continued use of an identification system that Texas has
used for years. Is /Purcell/implicated? Sure. Does the Texas opinion
raise the same problems raised by the orders in OH, NC, and WI ... or
the original /Purcell/opinion itself? I don't think so.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,election law and constitutional law
<http://electionlawblog.org/?cat=55>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Texas Will Immediately Appeal Voter ID Ruling"
<http://electionlawblog.org/?p=66639>
Posted onOctober 10, 2014 12:54 am
<http://electionlawblog.org/?p=66639>byJustin Levitt
<http://electionlawblog.org/?author=4>
So promises the AG
<https://www.texasattorneygeneral.gov/oagnews/release.php?id=4866>.
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Posted inelection law and constitutional law
<http://electionlawblog.org/?cat=55>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Reactions to TX (and Sometimes WI) Decision
<http://electionlawblog.org/?p=66637>
Posted onOctober 10, 2014 12:54 am
<http://electionlawblog.org/?p=66637>byJustin Levitt
<http://electionlawblog.org/?author=4>
Reports fromAP
<http://bigstory.ap.org/article/e41aa3c2e5ac4d1bae7eb7ce3402cfed/courts-block-voter-id-laws-texas-wisconsin>,HuffPo
<http://www.huffingtonpost.com/2014/10/09/texas-voter-id_n_5962674.html>,LA
Times
<http://www.latimes.com/nation/la-na-courts-voter-id-20141009-story.html>,MSNBC
<http://www.msnbc.com/msnbc/texas-voter-id-law-struck-down>,NPR
<http://www.npr.org/blogs/thetwo-way/2014/10/09/354995983/supreme-court-halts-wisconsin-voter-id-law-texas-law-on-hold-too>,NY
Times
<http://www.nytimes.com/2014/10/10/us/politics/supreme-court-blocks-wisconsin-voter-id-law.html?_r=0>,Politico
<http://www.politico.com/blogs/under-the-radar/2014/10/judge-blocks-texas-voter-id-law-196865.html>,Reuters
<http://www.reuters.com/article/2014/10/10/us-usa-court-election-idUSKCN0HZ03020141010>,USA
Today
<http://www.usatoday.com/story/news/politics/2014/10/09/supreme-court-wisconsin-voter-id/16985963/>,Wall
St. Journal
<http://online.wsj.com/articles/supreme-court-blocks-wisconsin-voter-id-law-for-midterm-elections-1412905573>.
And from the plaintiffs' counsel ---Brennan Center
<http://www.brennancenter.org/press-release/victory-texas-voters-restrictive-photo-id-law-blocked-federal-court>,CLC
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2634:october-9-2014-texas-voter-id-law-struck-down-as-unconstitutionally-discriminatory-violative-of-voting-rights-act-and-a-poll-tax&catid=63:legal-center-press-releases&Itemid=61>,
andLDF
<http://www.naacpldf.org/press-release/federal-judge-strikes-texas%E2%80%99s-racially-discriminatory-photo-id-law>react.
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Posted inelection law and constitutional law
<http://electionlawblog.org/?cat=55>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
The Least-covered Impact of the Texas ID Decision
<http://electionlawblog.org/?p=66635>
Posted onOctober 10, 2014 12:53 am
<http://electionlawblog.org/?p=66635>byJustin Levitt
<http://electionlawblog.org/?author=4>
It creates some extra work for Google. More specifically, the
programmers who haveadded state-based information on ID requirements
<http://www.washingtonpost.com/blogs/the-switch/wp/2014/10/09/google-integrates-voter-id-requirements-into-its-search-results/>in
each state to searches about the voting process may have a fair amount
of updating to do in these final weeks.
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Posted invoter id <http://electionlawblog.org/?cat=9>
Canadian Voting Wars Arrive in Court
<http://electionlawblog.org/?p=66633>
Posted onOctober 10, 2014 12:52 am
<http://electionlawblog.org/?p=66633>byJustin Levitt
<http://electionlawblog.org/?author=4>
From the plaintiffs'press release
<http://www.canadians.org/media/fair-elections-act-canadian-democracy-will-have-its-day-court>:
The Council of Canadians, the Canadian Federation of Students and
three individual electors will file a Charter challenge to the Fair
Elections Act (Bill C-23) in the Ontario Superior Court today.
Recent changes to Canada's election laws will interfere with the
rights of Canadians to vote in federal elections and remove access
to reliable information about the electoral process and
investigations. Bill C-23 removed multiple measures for electors to
prove their identity, stripped the Chief Electoral Officer of
independence and powers of communication and investigation, and made
the Office of the Commissioner of Canada Elections accountable to
partisan interests instead of the Canadian public.
Morehere
<http://canadians.org/sites/default/files/summary-challenge-bill23-1014.pdf>.
I'll post the actual legal filings if/when I can get them.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
Candidate for President of Navajo Nation Disqualified ...
<http://electionlawblog.org/?p=66631>
Posted onOctober 10, 2014 12:51 am
<http://electionlawblog.org/?p=66631>byJustin Levitt
<http://electionlawblog.org/?author=4>
...because he refused to answer questions in Navajo
<http://bigstory.ap.org/article/537ec9a36f604089b61f214613d8821e/ruling-against-navajo-candidate-language-case>to
prove his proficiency.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
No Fees for FL Redistricting Plaintiffs
<http://electionlawblog.org/?p=66627>
Posted onOctober 10, 2014 12:49 am
<http://electionlawblog.org/?p=66627>byJustin Levitt
<http://electionlawblog.org/?author=4>
The trial judge in Florida who struck Florida's congressional district
maphas denied legal fees
<http://www.orlandosentinel.com/news/politics/os-redistricting-legal-fees-20141009-story.html>for
the successful plaintiffs. Orders for legal fees seem like they're in
the weeds, but particularly on cases as complicated and cumbersome as
redistricting, they may drive which cases are brought by whom, when, on
what grounds. If you want more cases brought by deep-pocketed political
parties against their political adversaries as proxy fights for
political wars, by all means, deny fees more generally.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
More Stuff Struck Down: Marion County Judicial Election System
Invalidated <http://electionlawblog.org/?p=66622>
Posted onOctober 10, 2014 12:48 am
<http://electionlawblog.org/?p=66622>byJustin Levitt
<http://electionlawblog.org/?author=4>
Also on Thursday, a federal courtinvalidated the system for electing
judges
<http://www.indystar.com/story/news/politics/2014/10/09/judge-rules-marion-county-judicial-election-system-unconstitutional/16977637/>in
Marion County, Indiana. It's an odd (and, says the court, likely
unique) system: a party may nominate candidates for no more than half of
the available judicial seats. This has apparently almost always led to
"elections" where Republican candidates are put forward for half of the
available seats, Democratic candidates are put forward for the other
half, and no candidate faces an opponent. The opinion ishere
<http://electionlawblog.org/wp-content/uploads/20141009-marion-judge.pdf>.
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Posted injudicial elections
<http://electionlawblog.org/?cat=19>,Uncategorized
<http://electionlawblog.org/?cat=1>
"In Supreme Control: What Do Justices Owe Voters in Exchange for
Taking Their Cash?" <http://electionlawblog.org/?p=66620>
Posted onOctober 10, 2014 12:46 am
<http://electionlawblog.org/?p=66620>byJustin Levitt
<http://electionlawblog.org/?author=4>
Questions about judicial campaign finance fromFacing South
<http://www.southernstudies.org/2014/10/in-supreme-control-what-do-justices-owe-voters-in-.html>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,judicial
elections <http://electionlawblog.org/?cat=19>
Investigation into SC Legislators' Alleged Sale of Votes
<http://electionlawblog.org/?p=66618>
Posted onOctober 10, 2014 12:46 am
<http://electionlawblog.org/?p=66618>byJustin Levitt
<http://electionlawblog.org/?author=4>
Lots of allegations, not much detail. But boy,this
<http://www.postandcourier.com/article/20141008/PC1603/141009433>could
be a mess.
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Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery
<http://electionlawblog.org/?cat=12>
California Political Reform 40 Years Later
<http://electionlawblog.org/?p=66616>
Posted onOctober 10, 2014 12:45 am
<http://electionlawblog.org/?p=66616>byJustin Levitt
<http://electionlawblog.org/?author=4>
Bob Stern, co-author of the California Political Reform Act of
1974,calls out his former boss
<http://www.sfgate.com/opinion/openforum/article/What-happened-to-Jerry-Brown-the-reformer-we-5810178.php>over
recent vetoes. The picture of 1975 Jerry Brown alone is worth the
clickthrough.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,lobbying
<http://electionlawblog.org/?cat=28>
9th Circuit Affirms Renzi Conviction
<http://electionlawblog.org/?p=66593>
Posted onOctober 9, 2014 4:36 pm
<http://electionlawblog.org/?p=66593>byJustin Levitt
<http://electionlawblog.org/?author=4>
The opinion, again rejecting a defense under the Speech or Debate
Clause, ishere <http://pdfserver.amlaw.com/nlj/renzi_CA9_20141009.pdf>.
Rick's earlier coverage ishere
<http://electionlawblog.org/?s=renzi&x=0&y=0>.
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Posted inbribery <http://electionlawblog.org/?cat=54>,Speech or Debate
Clause <http://electionlawblog.org/?cat=36>
"How Will Karl Rove's Crossroads GPS Stay Within the Law In 2014?
<http://electionlawblog.org/?p=66591>
Posted onOctober 9, 2014 4:26 pm
<http://electionlawblog.org/?p=66591>byJustin Levitt
<http://electionlawblog.org/?author=4>
Looking intoprimary purpose
<http://www.huffingtonpost.com/2014/10/08/crossroads-gps-2014-elect_n_5954284.html>.
Or major purpose. Or both.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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