[EL] ELB News and Commentary 10/27/14
Rick Hasen
rhasen at law.uci.edu
Sun Oct 26 20:28:38 PDT 2014
"A Call to Expose the Unnecessary Secrets of the Supreme Court; One
justice publicly announced an error in her dissent, but such candor
is rare." <http://electionlawblog.org/?p=67447>
Posted onOctober 26, 2014 8:15 pm
<http://electionlawblog.org/?p=67447>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis oped <http://t.co/wYVIkdfNSB>for the National Law
Journal. It begins:
Justice Ruth Bader Ginsburg of the U.S. Supreme Court made news
twice with her six-page dissent
<http://www.supremecourt.gov/opinions/14pdf/14a393_p860.pdf> to a
court order allowing Texas to implement a restrictive voter
identification law that a lower federal court found racially
discriminatory.
The first time the justice made news by releasing her fiery dissent
at 5 a.m
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ginsburg_s_dissent_in_texas_voter_id_law_supreme_court_order.html>.
on a Saturday morning after having worked on it throughout the
night. The second time was when she corrected a minor error
<http://electionlawblog.org/?p=67275> in her opinion (which I had
flagged on the Election Law Blog
<http://electionlawblog.org/?p=67193>) and announced through the
Supreme Court's press office that she had made such a change.
Justices commonly correct and change opinions after release. But
Ginsburg's announcement of a correction was so rare that The
National Law Journal
<http://www.nationallawjournal.com/legaltimes/home/id=1202674247925>, The
New York Times
<http://www.nytimes.com/politics/first-draft/2014/10/22/?entry=3270&_php=true&_type=blogs&_r=0> and
National Public Radio
<http://www.npr.org/blogs/itsallpolitics/2014/10/22/358150014/justice-ginsburg-revises-texas-voter-id-dissent-then-announces-it>ran
stories about it. For the most part, as New York Times reporter Adam
Liptak has detailed
<http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?module=Search&mabReward=relbias%3As&_r=0>,
the court simply makes changes to published opinions with no
announcement, sometimes months or years
<http://www.law.harvard.edu/faculty/rlazarus/docs/articles/LazarusRichardTheNonFinalityOfSupremeCourtOpinionsFullVersion22Oct14.pdf> after
the original publication.
The Supreme Court has no excuse for being so opaque about its
practices. There is a whole set of ways that it could improve on its
transparency.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
#SCOTUS Could Well Decide Another Emergency Election Case Soon, This
One With a Unanimous Reversal <http://electionlawblog.org/?p=67457>
Posted onOctober 26, 2014 7:54 pm
<http://electionlawblog.org/?p=67457>byRick Hasen
<http://electionlawblog.org/?author=3>
Derek
Muller<http://excessofdemocracy.com/blog/2014/10/virgin-islands-supreme-court-ignores-federal-court-on-election-dispute>explains
some amazing doings out of the U.S. Virgin Islands.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>
Must-Read Article on Potential Impersonation Voter Fraud and More in
Kiryas Joel <http://electionlawblog.org/?p=67453>
Posted onOctober 26, 2014 4:18 pm
<http://electionlawblog.org/?p=67453>byRick Hasen
<http://electionlawblog.org/?author=3>
Just wow
<http://www.recordonline.com/article/20141026/NEWS/141029573> (via
Failed Messiah).
My earlier coverage <http://electionlawblog.org/?s=satmar&x=0&y=0>.
This merits further investigation, if not by the state of New York than
by the federal government. I have not seen any credible allegations of
impersonation fraud schemes anywhere else in the country. But this does
not seem to be getting any better.
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Posted inchicanery <http://electionlawblog.org/?cat=12>
About That Monkey Cage Item on Non-Citizen Voting, Calm Down
<http://electionlawblog.org/?p=67451>
Posted onOctober 26, 2014 3:50 pm
<http://electionlawblog.org/?p=67451>byRick Hasen
<http://electionlawblog.org/?author=3>
On FridayI linked <http://electionlawblog.org/?p=67408>to an item on the
Washington Post's Monkey Cage blog by Jesse Richman and David Earnes
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/10/24/could-non-citizens-decide-the-november-election/>t
with some provocative findings on the extent of non-citizen voting. The
post was based on this forthcoming article
<http://www.sciencedirect.com/science/article/pii/S0261379414000973> in
Electoral Studies.
When I initially posted, the link, I wrote that I would be interested in
hearing about the methodology behind this report, because it seems to
find a much higher rate of non-citizen voting than any previous evidence
I have seen, and the quick description of the piece made me wonder if
the authors were making some leaps with their inferences from the evidence.
Conservatives pounced on the report (it even got a link from the Drudge
Report) as "proof" of voter fraud and and indication that conservatives
were right all along about a voter fraud epidemic. The extra bonus was
that the report was appearing in the "liberal" Washington Post! Well
here's a call to slow down. A few points.
1. I'm really glad the authors did this study and think the issue merits
further investigation investigation. As I indicated in my book,The
Voting Wars
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=asap_B0089NJCR2_1_5?s=books&ie=UTF8&qid=1414362853&sr=1-5>,
non-citizen voting is a real, if relatively small, problem.I wrote in a
2012 New York Times oped
<http://campaignstops.blogs.nytimes.com/2012/08/05/a-dtente-before-the-election/?_php=true&_type=blogs&module=Search&mabReward=relbias%3As%2C%7B%221%22%3A%22RI%3A6%22%7D&_r=0>,
While Republicans have been more to blame than Democrats,
partisanship runs both ways. Democrats reflexively oppose efforts to
deal with ineligible voters casting ballots, likely out of fear that
the new requirements will make it harder for casual voters
supporting Democrats to cast a ballot. They have adamantly opposed
the efforts of Florida and other states
<http://www.nytimes.com/2012/07/15/us/politics/us-to-let-florida-use-homeland-security-data-for-voter-check.html> where
Republican election officials want to remove noncitizens from the
voting rolls. Noncitizen voting is a real, if small
<http://electionlawblog.org/?p=10253>, problem: a Congressional
investigation found that some noncitizens voted
<http://www.washingtonpost.com/wp-srv/politics/campaigns/keyraces98/stories/cahouse020598.htm> in
the close 1996 House race in California between Robert K. Dornan, a
Republican, and Loretta Sanchez, a Democrat, but not enough
<http://articles.latimes.com/1997-05-11/news/mn-57795_1_indiana-vote> to
affect the outcome. Unlike impersonation fraud, noncitizen voting
cannot be dismissed as a Republican fantasy....Florida should hold
off on its plan to remove noncitizens until the off-season. Purging
the rolls now risks removing many more eligible citizens
<http://electionsmith.wordpress.com/2012/07/16/you-want-numbers-florida-secretary-of-state-voter-purge-netted-10-potential-noncitizens-who-may-have-voted/>than
noncitizens.
2. This was not a story vetted by the Washington Post. This was not
even the regular Monkey Cage bloggers. These were guest bloggers who
were (perfectly appropriately) guest blogging about their new article in
Electoral Studies. So let's be careful in terms of who is making what
claims.
3. The Electoral Studies piece went through peer review. That's an
indication that someone looked at the authors' methodology to make sure
it passed muster. But peer review is not perfect. I have heard from a
number of political scientists who have raised issues about a number of
the assumptions and statistics used in the article. It is not clear to
me from what I have heard so far that all of the article's conclusions
(or any of them) will withstand full academic scrutiny. We'll have a
better sense in a year or two---that's normal with contested claims made
in political science. There can be no immediate confirmation or
rejection of these studies. Caution is in order.
4. Even if the authors' methodology and conclusions are correct, that
does not mean that there is a voter fraud epidemic. It also doesn't mean
that voter id makes sense. To begin with, the authors seem to think
voter id would not help. In a number of states, for example,
non-citizens can get drivers' licenses which can be used for ID. To
handle the problem of non-citizen voting, the key is to confirm
citizenship at the time of registration. Some states are doing that, and
KS and AZ are fighting the federal government in the Kobach v. EAC case
over how this may be done.
5. Checking citizenship before registering voters is not costless. Aside
from the costs to the state of such a program and the costs to voters to
provide proof of citizenship, such a requirement no doubt
disenfranchises eligible voters. The question is whether the number of
non-citizens voting justifies the risk of eligible voters who will not
be able to (easily or affordably) produce the documentary proof of
citizenship needed to vote. That is a balance I suspect conservatives
and liberals would strike differently.
6. We could solve this problem and more if we moved to a national voter
identification program run by the federal government which paid for all
the costs associated with establishing identity and citizenship. I'd
couple national voter id, with a unique voter id number and universal
voter registration proactively implemented by the federal government.
Voters could provide their thumb print if they wanted and use that to
verify ID instead of using their actual card. I don't expect we will
see this program in my lifetime, but I believe it is the sound way to
move beyond many of these fights.
UPDATE:More
<http://blogs.reed.edu/earlyvoting/commentary/more-on-the-non-citizen-voting-article/>from
Paul Gronke.
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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>
Role of Lobbyists Issue in AZ Governor's Race
<http://electionlawblog.org/?p=67449>
Posted onOctober 26, 2014 12:38 pm
<http://electionlawblog.org/?p=67449>byRick Hasen
<http://electionlawblog.org/?author=3>
Seethis Arizona Republic report.
<http://www.azcentral.com/story/news/arizona/politics/2014/10/26/lobbyists-aid-campaigns-ducey-duval/17951005/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,lobbying
<http://electionlawblog.org/?cat=28>
"New Jersey e-vote experiment after Sandy declared a disaster"
<http://electionlawblog.org/?p=67445>
Posted onOctober 26, 2014 10:51 am
<http://electionlawblog.org/?p=67445>byRick Hasen
<http://electionlawblog.org/?author=3>
Aljazeera reports.
<http://america.aljazeera.com/articles/2014/10/26/new-jersey-e-voting.html>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Squadrons form for voter ID fight"
<http://electionlawblog.org/?p=67443>
Posted onOctober 26, 2014 10:33 am
<http://electionlawblog.org/?p=67443>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill reports.
<http://thehill.com/homenews/campaign/221847-squadrons-form-for-voter-id-fight>
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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>
Judge Kopf Calls Dahlia Lithwick a "Tiresome Scold"
<http://electionlawblog.org/?p=67439>
Posted onOctober 25, 2014 4:12 pm
<http://electionlawblog.org/?p=67439>byRick Hasen
<http://electionlawblog.org/?author=3>
Keeping itclassy
<http://herculesandtheumpire.com/2014/10/25/the-evisceration-of-dahlia-lithwick/>,as
usual. <http://electionlawblog.org/?p=63487> (More
<http://electionlawblog.org/?p=63070>here
<http://electionlawblog.org/?p=63457>.)
Here'sDahlia's column
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_and_circuit_court_rulings_on_voter_id_and_abortion_poor_and.single.html>andWill
Baude's response.
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/25/free-speech-vs-voting-rights-and-abortion-rights/>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
CNMI Battle Continues Over Non-Indigenous Residents Voting in Ballot
Measure Elections <http://electionlawblog.org/?p=67437>
Posted onOctober 25, 2014 4:06 pm
<http://electionlawblog.org/?p=67437>byRick Hasen
<http://electionlawblog.org/?author=3>
As the case
<http://www.nmid.uscourts.gov/documents/decisions/1-14-cv-00002-15.pdf>awaits
a Ninth Circuit appeal, the partiesare fighting
<http://www.mvariety.com/cnmi/cnmi-news/local/70414-injunction-sought-is-not-in-the-public-interest-says-lawyer-opposing-sequestration-of-article-xii-ballots>over
what happens in the interim.
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Posted invoting <http://electionlawblog.org/?cat=31>
"Fairfax Elections Office reportedly embroiled in infighting"
<http://electionlawblog.org/?p=67435>
Posted onOctober 24, 2014 6:43 pm
<http://electionlawblog.org/?p=67435>byRick Hasen
<http://electionlawblog.org/?author=3>
Oy
<http://www.washingtonpost.com/local/fairfax-elections-office-reportedly-embroiled-in-infighting/2014/10/24/bc570438-3de6-11e4-9587-5dafd96295f0_story.html?hpid=z3>.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
McDaniel Doesn't (Yet) Rule Out Further Legal Action in #MSSEN
<http://electionlawblog.org/?p=67433>
Posted onOctober 24, 2014 5:53 pm
<http://electionlawblog.org/?p=67433>byRick Hasen
<http://electionlawblog.org/?author=3>
Clarion-Ledger:
<http://www.clarionledger.com/story/politicalledger/2014/10/24/mcdaniel-loses-appeal/17858671/>
McDaniel in statement said, "Republicans are still left wanting
justice" by the decision and said he hopes "conservatives in
Mississippi will view this decision as a driving factor to get
involved in Republican politics."
Neither McDaniel nor his lead attorney Mitch Tyner answered
definitively on Friday whether the ruling will put end to his trying
to overturn the election, but McDaniel said, "now is time to turn
the page and work to enact true conservative change." Tyner said
that while he disagreed with the ruling, "we are glad the Supreme
Court finally ruled and Mississippi conservatives can move forward
into 2015."
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Posted incampaigns <http://electionlawblog.org/?cat=59>,recounts
<http://electionlawblog.org/?cat=50>
Chiat on Lowry on Voter ID and Poll Taxes
<http://electionlawblog.org/?p=67431>
Posted onOctober 24, 2014 5:40 pm
<http://electionlawblog.org/?p=67431>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://nymag.com/daily/intelligencer/2014/10/how-conservatives-justify-poll-taxes.html>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Horwitz on Murphy on Justice Scalia
<http://electionlawblog.org/?p=67429>
Posted onOctober 24, 2014 5:31 pm
<http://electionlawblog.org/?p=67429>byRick Hasen
<http://electionlawblog.org/?author=3>
A spot-on
review<https://www.commonwealmagazine.org/book-reviews/scalia-court-one>of
an interesting but flawed book.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
"Campaigns scramble with new Colorado election laws"
<http://electionlawblog.org/?p=67427>
Posted onOctober 24, 2014 4:48 pm
<http://electionlawblog.org/?p=67427>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports.
<http://www.sfgate.com/news/article/Campaigns-scramble-with-new-Colorado-election-laws-5845986.php>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"Why arguments for Voter ID laws don't add up"
<http://electionlawblog.org/?p=67425>
Posted onOctober 24, 2014 4:17 pm
<http://electionlawblog.org/?p=67425>byRick Hasen
<http://electionlawblog.org/?author=3>
Wonkblog
<http://www.washingtonpost.com/blogs/wonkblog/wp/2014/10/24/why-arguments-for-voter-id-laws-dont-add-up/>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Breaking: MS Supreme Court Rejects McDaniel Challenge in #MSSEN Race
on 4-2 Vote: My Analysis <http://electionlawblog.org/?p=67418>
Posted onOctober 24, 2014 3:37 pm
<http://electionlawblog.org/?p=67418>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the opinionat this link
<http://electionlawblog.org/wp-content/uploads/mssen-mssct.pdf>. Here
are some thoughts.
1. *The plurality, concurrence and dissent. *The Court's opinion broke
down 3-1-2, with 3 Justices not participating.
The plurality opinion held that it was bound by a 1959 case establishing
a 20 day deadline for filing an election challenge. Although the
legislature amended the statute since 1959, the plurality held that the
legislature acted in light of this 1959 statute, and the deadline
remains part of the statutory scheme.
A concurring Justice issued an opinion essentially reaching the view
that this was a nonjusticiable political question to be decided by the
political branches, not the courts.
The two dissenting Justices believed that the 1959 case was not binding
on the courts, because the legislature made too many changes in the
statutory scheme for it still to apply. Those justices would have sent
the case back for further proceedings.
2. *What's next? *In the normal world, I would say that this case is
over. Here, the state's highest court has declared definitively what
the meaning of the statute is, and the contest is over. But McDaniel has
not operated in a normal world. So here are two ways the case can go on.
First, an amicus in the Court raised a federal constitutional question
which should remind everyone of /Bush v. Gore/. Under the Elections
Clause, it is the state legislature to set the rules for congressional
elections, unless the Congress has spoken. The amicus argued that the
20-day deadline was judicially created, and therefore violated the
election's clause requiring that the legislature set the deadline. The
Supreme Court disagreed, saying it was resolving an ambiguity in the
statute, not creating a new deadline. (This was very much an issue in
the Florida 2000 rulings.) So if McDaniel wanted, he could go to the
U.S. Supreme Court seeking emergency relief. I do not expect he would
get it. Second, McDaniel could file a contest with the U.S. Senate,
though I can't imagine that body giving him any relief.
3. *Why not reach the merits?*As I indicated when the trial court kicked
McDaniel's case out on timing issues, sometimes these rulings are a
mercy killing. McDaniel's evidence of fraud seemed weak, and his legal
theories about crossover voting even weaker. This timing ruling was a
way for the courts to end the process without going through a long drawn
out trial. Not that the courts would ever admit they were doing that,
but I guess this was in the back of at least some Justices' minds.
4. *What's next for McDaniel?*Talk radio? Fox news contributor? Running
for office when Cochran dies or retires? I leave that to people who
know MS politics.
[This post has been updated.]
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Posted incampaigns <http://electionlawblog.org/?cat=59>,recounts
<http://electionlawblog.org/?cat=50>
Sixth Circuit on 2-1 Vote Rejects OH Voting Rights Claim of Jailed
Voters <http://electionlawblog.org/?p=67416>
Posted onOctober 24, 2014 2:48 pm
<http://electionlawblog.org/?p=67416>byRick Hasen
<http://electionlawblog.org/?author=3>
The other dayI noted <http://electionlawblog.org/?p=67187>a federal
district court ruling holding that those jailed
<https://www.scribd.com/doc/243761181/Fair-Elections-Ohio-v-Husted> (but
not convicted) voters have the same rights to vote absentee as
late-hospitalized Ohio voters.
Today the Sixth Circuit rejected the claim in a2-1 opinion
<http://www.ca6.uscourts.gov/opinions.pdf/14a0268p-06.pdf>. The majority
held that the group bringing the claim lacked standing to bring the
claim. Chief Judge Cole dissented, disagreeing with the majority on the
standing question and agreeing with the trial court on the merits.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,election
administration <http://electionlawblog.org/?cat=18>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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