[EL] ELB News and Commentary 10/13/14
Justin Levitt
levittj at lls.edu
Mon Oct 13 09:37:52 PDT 2014
Who, What, Where, When, How -- but not Why
<http://electionlawblog.org/?p=66804>
Posted onOctober 13, 2014 9:36 am
<http://electionlawblog.org/?p=66804>byJustin Levitt
<http://electionlawblog.org/?author=4>
In the WaPo, Robert Barnesdiscusses the Supreme Court's decisions last
week
<http://www.washingtonpost.com/politics/courts_law/supreme-courts-actions-are-monumental-but-the-why-of-its-reasoning-often-missing/2014/10/12/ca1ccc9c-4fca-11e4-8c24-487e92bc997b_story.html>not
to take the same-sex marriage cases, and to stay voting decisions from
the courts of appeals, shaping the law without offering much
contemporaneous rationale.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
"The Selective Reading of the Supreme Court's Decision in Citizens
United" <http://electionlawblog.org/?p=66802>
Posted onOctober 13, 2014 9:35 am
<http://electionlawblog.org/?p=66802>byJustin Levitt
<http://electionlawblog.org/?author=4>
TheWashington Post notes
<http://www.washingtonpost.com/opinions/the-selective-reading-of-the-supreme-courts-decision-in-citizens-united/2014/10/12/4b0f39a4-50b4-11e4-babe-e91da079cb8a_story.html>that
Citizens United protected independent speech, but much current spending
seems decidedly non-independent. And it concludes that the spenders are
ignoring or dodging the Court.
I think the blame is misplaced. In making constitutional rulings, the
Court doesn't directly govern private activity -- instead, it reviews
the lawfulness of statutes or regulations that govern private activity.
The Court protected independent speech from much regulation, yes. But
that doesn't mean it declared speech coordinated with candidates to be
unlawful. Statutes and regulations do that for some speech in some
ways, and forego that decision for some speech in some ways. If the
regulatory regime isn't as comprehensive as desired within the bounds
deemed permissible by the courts, that's the fault of the elected
branches of government, and not "evading" of/Citizens United/.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Political Spending Double-Cross" <http://electionlawblog.org/?p=66800>
Posted onOctober 13, 2014 9:35 am
<http://electionlawblog.org/?p=66800>byJustin Levitt
<http://electionlawblog.org/?author=4>
TheWSJ continues to beat the drum
<http://online.wsj.com/articles/political-spending-double-cross-1413150303>against
theCPA-Zicklin index
<http://www.politicalaccountability.net/index.php?ht=d/sp/i/8051/pid/8051>of
corporate political disclosure.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Judge Rules Colorado Disclosure Law Unconstitutional"
<http://electionlawblog.org/?p=66798>
Posted onOctober 13, 2014 9:34 am
<http://electionlawblog.org/?p=66798>byJustin Levitt
<http://electionlawblog.org/?author=4>
CCP reacts
<http://www.campaignfreedom.org/2014/10/11/judge-rules-colorado-disclosure-law-unconstitutional/>to
the Colorado caseI mentioned yesterday
<http://electionlawblog.org/?p=66752>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Ballot Item Would Reform Redistricting, at Least in Theory"
<http://electionlawblog.org/?p=66796>
Posted onOctober 13, 2014 9:34 am
<http://electionlawblog.org/?p=66796>byJustin Levitt
<http://electionlawblog.org/?author=4>
A NY Times report about the constitutional amendment on the ballot in
New York tochange the redistricting structure
<http://www.nytimes.com/2014/10/13/nyregion/ballot-item-would-reform-redistricting-at-least-in-theory.html>.
Unlike other states that have recently changed their redistricting
process (like California and Florida), New York has no citizens' ballot
initiative: amendments to the New York constitution must be
legislatively referred.
I'll have more to say about the New York measure in the days to come.
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Posted indirect democracy
<http://electionlawblog.org/?cat=62>,redistricting
<http://electionlawblog.org/?cat=6>
"What's In A Name? It Could Matter If You're Writing To Your
Lawmaker" <http://electionlawblog.org/?p=66794>
Posted onOctober 13, 2014 9:33 am
<http://electionlawblog.org/?p=66794>byJustin Levitt
<http://electionlawblog.org/?author=4>
NPR reports
<http://www.npr.org/blogs/codeswitch/2014/10/13/329581400/whats-in-a-name-it-could-matter-if-youre-writing-to-your-lawmaker>on
a fascinating (and alarming) study --- I'd seen anearlier draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2422596>.
Researchers emailed state legislators, asking what kind of documentation
they needed; the only difference in the emails was the name of the
sender (Jacob Smith or Santiago Rodriguez). Then they tracked response
rates.
The intriguing findings are in line with anearlier study
<http://www.ocf.berkeley.edu/%7Ebroockma/broockman_discriminate.pdf>with
a similar design: an email to state legislators asking for help
registering. Two variations: sometimes a party was identified, sometimes
not; some emails came from Jake Mueller and some from DeShawn Jackson.
The differential response rates are striking (and deeply unfortunate).
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Posted inlegislation and legislatures
<http://electionlawblog.org/?cat=27>,voter id
<http://electionlawblog.org/?cat=9>
"GOP-Backed Voting Limits Spur Backlash"
<http://electionlawblog.org/?p=66792>
Posted onOctober 13, 2014 9:33 am
<http://electionlawblog.org/?p=66792>byJustin Levitt
<http://electionlawblog.org/?author=4>
And here come the backlash stories. A snippet
<http://www.fayobserver.com/news/nation/gop-backed-voting-limits-spur-backlash/article_73f6587d-ccef-514e-8351-13d39816501e.html> of
the latest:
Already, more Americans than ever will face new voting restrictions
in November as 15 states -- some with the closest midterm races in
the country -- begin implementing laws banning same-day
registration, requiring photo IDs or shortening the period for early
voting.
Less anticipated, however, was the robust and sometimes creative
backlash that has followed from Democrats and their allies, who are
launching a spirited counteroffensive that strategists say could end
up benefiting party turnout on Election Day.
Don't misunderstand -- a backlash leading to higher turnout does not
itself justify whatever policy caused the backlash.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"The Most Persuasive Judicial Response to Voter Suppression Laws
Yet" <http://electionlawblog.org/?p=66790>
Posted onOctober 13, 2014 9:31 am
<http://electionlawblog.org/?p=66790>byJustin Levitt
<http://electionlawblog.org/?author=4>
Andrew Cohenconnects
<http://theweek.com/article/index/269786/the-most-persuasive-judicial-response-to-voter-suppression-laws-yet>Judge
Ramos to Judge Posner in The Week.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,election law and constitutional law
<http://electionlawblog.org/?cat=55>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
"The Big Lie Behind Voter ID Laws" <http://electionlawblog.org/?p=66788>
Posted onOctober 13, 2014 9:31 am
<http://electionlawblog.org/?p=66788>byJustin Levitt
<http://electionlawblog.org/?author=4>
Yesterday'seditorial from the New York Times
<http://www.nytimes.com/2014/10/13/opinion/the-big-lie-behind-voter-id-laws.html?_r=0>.
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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>
Justice Alito's Disturbing Statement in Wisconsin Voter ID Case
<http://electionlawblog.org/?p=66784>
Posted onOctober 13, 2014 1:06 am
<http://electionlawblog.org/?p=66784>byRick Hasen
<http://electionlawblog.org/?author=3>
Last week <http://electionlawblog.org/?p=66601>the Supreme Courtvoted
6-3<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf>to
stop ahorrendous <http://electionlawblog.org/?p=66413>7th Circuit court
order allowing Wisconsin to immediately put its voter id law into
effect. Regardless of where you stand on the desirability of voter id
laws (I oppose these tough state laws but support a national voter id
program coupled with universal voter registration done by the federal
government with the government picking up all costs of verifying
identity), the Supreme Court made the right call. Wisconsin had an 8
month plan to implement ID which was going to have to be done within 8
weeks; the state conceded that up to 10 percent of eligible voters might
not be able to get ID in time for the election; and the parties agreed
that some WI voters born out of state who had to get out of state birth
certificates were going to have a very difficult time getting their
documentation in time. On top of that, there were absentee voters who
had already voted before the ID law was in effect, and they were going
to be disenfranchised unless they followed up with getting additional
documentation to WI election officials in time.
Faced with all of this, the majority put WI's voter id law on hold for
this election, so that it may be rolled out in a smoother way over time.
But Justice Alito, joined by Justices Scalia and Thomas, dissented.
They seemed to acknowledge the disenfranchising risks and the "Purcell
principle
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_voting_rights_decisions_contradictions_in_wisconsin_ohio_north.html>"
that courts should not change election rules just before an election,
but they saw a bigger principle at stake:
There is a colorable basis for the Court's decision due to the
proximity of the upcoming general election. It is particularly
troubling that absentee ballots have been sent out without any
notation that proof of photo identification must be submitted. But
this Court "may not vacate a stay entered by a court of appeals
unless that court clearly and'demonstrably' erred in its application
of 'accepted standards.'"/Planned Parenthood of Greater Tex.
Surgical Health Servs./v/. Abbott/, 571 U. S. ___, ___ (2013) (slip
op., at 1) (SCALIA, J., concurring in denial of application to
vacate stay) (quoting/Western Airlines, Inc./v./Teamsters/, 480 U.
S. 1301, 1305 (1987) (O'Connor, J., in chambers);some internal
quotation marks omitted). Under that test, the application in this
case should be denied.
The bigger principle Justice Alito recognizes is deference to the Court
of Appeals. Of course, the Supreme Court showed no deference in Purcell
itself, when the Ninth Circuit issued a stay stopping use of Arizona's
law. No deference to the Courts of Appeal in the Ohio or North Carolina
cases either, both cases in which Courts expanded voting rights. So why
deference here? Because the 7th Circuit was clearly right? Well that's
belied by the 7th Circuit's 5-5 split over whether to rehear the
Wisconsin case en banc.
Further, why should a principle of deference which is applied as a
matter of equity trump the actuality, and not merely the risk, of voter
disenfranchisement in Wisconsin? Simply put, Justices Alito, Scalia and
Thomas do not value the right to vote as strongly as the other members
of the Court (which is also shown in their separate opinion in the 2008
Crawford Indiana voter id case, where Justice Scalia wrote for these
Justices that so long as most people would not be disenfranchised by a
voter id law, then no one could challenge that law---even those people
who would have special difficulty getting an ID.)
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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>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Braced for Voter Fraud in Colorado"
<http://electionlawblog.org/?p=66781>
Posted onOctober 12, 2014 10:50 pm
<http://electionlawblog.org/?p=66781>byJustin Levitt
<http://electionlawblog.org/?author=4>
John Fund's latest
<http://www.nationalreview.com/article/390139/braced-voter-fraud-colorado-john-fund> in
the National Review Online.
Mr. Fund is a very careful writer. One paragraph (the brackets are
mine) states:
One of the examples [Secretary Gessler] cites [as reason to be
afraid of same-day registration] is Wisconsin. In 2008, a 68-page
Milwaukee Police Department report confirmed that in the last
presidential election, claims that thousands "more ballots [were]
cast than voters recorded were found to be true." The report found
that there had been an organized effort by political operatives from
out of state to swing the election. It concluded "that the one thing
that could eliminate a large percentage of fraud or the appearance
of fraudulent voting in any given election is the elimination of the
on-site or same-day voter registration system."
The second sentence describes administrative incompetence. The third
sentence --- "an organized effort by political operatives from out of
state to swing the election" --- describes every election in which
campaign staff aren't all local natives. And the fourth sentence
describes the potential for elimination of same-day registration to
prevent the appearance of fraud.
But those reviewing the report in question for proof of an organized
effort by political operatives from out of state to swing an
electionthrough fraudwill be disappointed. Instead, the report found
votes by 16 campaign workers whose residency was questioned by the
Milwaukee Police Department in an apparent disagreement about the basis
for establishing residency for voting purposes with the attorneys of the
Milwaukee prosecutors' office. (There's more on the police department
reporthere <http://electionlawblog.org/?p=61230>.) Just FYI.
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Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>
Collateral Damage from the Voting Wars?
<http://electionlawblog.org/?p=66775>
Posted onOctober 12, 2014 2:37 pm
<http://electionlawblog.org/?p=66775>byJustin Levitt
<http://electionlawblog.org/?author=4>
NPR profiles thesurprisingly close election for Kansas Secretary of
State
<http://www.npr.org/2014/10/11/355303012/a-republican-battles-to-keep-his-job-in-deep-red-kansas>.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
"Judge Richard A. Posner's Riposte Skewers State's Flawed Voter ID
Law" <http://electionlawblog.org/?p=66773>
Posted onOctober 12, 2014 2:36 pm
<http://electionlawblog.org/?p=66773>byJustin Levitt
<http://electionlawblog.org/?author=4>
Today's editorial in theMilwaukee Journal-Sentinel
<http://www.jsonline.com/news/opinion/judge-richard-a-posners-riposte-skewers-states-flawed-voter-id-law-b99368933z1-278916181.html>.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,election law and constitutional law
<http://electionlawblog.org/?cat=55>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
--
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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