[EL] ELB News and Commentary 10/29/14
Rick Hasen
rhasen at law.uci.edu
Wed Oct 29 07:32:37 PDT 2014
"Souls to the Polls" is Real <http://electionlawblog.org/?p=67583>
Posted onOctober 29, 2014 7:31 am
<http://electionlawblog.org/?p=67583>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT's "The Upshot:"The Big Role of Black Churches in Two Senate Races
<http://www.nytimes.com/2014/10/30/upshot/data-from-sunday-points-to-black-churches-role-in-mobilizing-voters.html?smid=nytcore-iphone-share&smprod=nytcore-iphone&_r=2&abt=0002&abg=0>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67583&title=%E2%80%9CSouls%20to%20the%20Polls%E2%80%9D%20is%20Real&description=>
Posted invoting <http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Mega-influence: These 42 dominate super PAC donations"
<http://electionlawblog.org/?p=67581>
Posted onOctober 29, 2014 7:24 am
<http://electionlawblog.org/?p=67581>byRick Hasen
<http://electionlawblog.org/?author=3>
USA Today reports.
<http://www.usatoday.com/story/news/politics/2014/10/28/top-super-pac-donors-of-the-midterms-steyer-bloomber-singer-mercer/18060219/>
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67581&title=%E2%80%9CMega-influence%3A%20These%2042%20dominate%20super%20PAC%20donations%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Black Turnout and the 2014 Midterms"
<http://electionlawblog.org/?p=67579>
Posted onOctober 29, 2014 7:22 am
<http://electionlawblog.org/?p=67579>byRick Hasen
<http://electionlawblog.org/?author=3>
New report f
<http://jointcenter.org/sites/default/files/Joint%20Center%202014%20Black%20Turnout%2010-29-14_0.pdf>rom
the Joint Center.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67579&title=%E2%80%9CBlack%20Turnout%20and%20the%202014%20Midterms%E2%80%9D&description=>
Posted invoting <http://electionlawblog.org/?cat=31>
"Shelby and Section 3: Pulling the Voting Rights Act's Pocket
Trigger to Protect Voting Rights After Shelby County v. Holder"
<http://electionlawblog.org/?p=67576>
Posted onOctober 29, 2014 7:19 am
<http://electionlawblog.org/?p=67576>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Wiley has writtenthis very (and timely, given Texas) important
student note
<http://scholarlycommons.law.wlu.edu/wlulr/vol71/iss3/11/>for the
/Washington and Lee Law Review/. From the Introduction:
One of those portions of the Voting Rights Act that
remained untouched by Shelby County is § 3(c)15---the "bail-in" or
"pocket trigger" provision.16 Section 3(c) authorizes a court
presiding over a successful voting rights suit to impose a
preclearance regime on the defendant jurisdiction, thus requiring
the jurisdiction's subsequent voting-related changes to be approved
by the court before they can go into effect. In the wake of Shelby
County, Attorney General Holder specifically mentioned § 3(c) as one
of the tools the Department of Justice would use to
continue protecting voting rights. Lawsuits filed in North Carolina
and Texas have backed up the Attorney General's promise, with
the federal government invoking § 3(c) in its prayers for
relief. These decisions by federal authorities reflect the view of
voting rights scholars that the § 3(c) pocket trigger is one of the
better immediate, short-term solutions to continuing to protect
voting rights after Shelby County.
But using § 3(c) more frequently poses several practical questions
about its implementation. To date, only eighteen jurisdictions have
been brought under § 3(c)'s provisions, almost all by consent
decree. This scant implementation, specifically in the adverse
litigation context, provides little guidance about how courts should
apply § 3(c)'s retention-of-jurisdiction provision. This Note
addresses three major questions about implementing § 3(c) after
Shelby County. First, which party bears, or should bear, the burden
of proof on the element of discriminatory purpose for proposed
voting changes subject to § 3(c) preclearance, and should there be a
presumption of discriminatory purpose? Second, how long can courts
retain jurisdiction under § 3(c), should there be a default time
period, and under what conditions should a covered jurisdiction
be released? And third, what is the standard for appellate
review for § 3(c) relief, and does it change depending on whether
the appellant is challenging the initial imposition or challenging
later decisions by the court to disallow voting changes?
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67576&title=%E2%80%9CShelby%20and%20Section%203%3A%20Pulling%20the%20Voting%20Rights%20Act%E2%80%99s%20Pocket%20Trigger%20to%20Protect%20Voting%20Rights%20After%20Shelby%20County%20v.%20Holder%E2%80%9D&description=>
Posted inSupreme Court <http://electionlawblog.org/?cat=29>,The Voting
Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"The Dumbing Down of Statutory Interpretation"
<http://electionlawblog.org/?p=67574>
Posted onOctober 29, 2014 7:10 am
<http://electionlawblog.org/?p=67574>byRick Hasen
<http://electionlawblog.org/?author=3>
Glen Staszewski has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2510973>on SSRN
(/Boston University Law Review/). Here is the abstract:
This Article criticizes a recent movement toward making statutory
interpretation simpler and more uniform. The trend is reflected by
proposals to adopt codified rules of statutory interpretation, give
stare decisis effect to interpretive methodology, use simpler
methods of statutory interpretation in lower courts, and implement
certain versions of textualism. The Article explains that such
proposals are driven by an overarching desire to limit judicial
discretion and promote a formal vision of the rule of law, and they
assume that the traditional hierarchy of legal sources is exclusive,
and that the function of statutory interpretation is to ascertain
the meaning of the law.
This Article challenges each of these assumptions by claiming,
first, that instead of seeking to eliminate judicial discretion, the
primary goal of statutory interpretation methodology should be to
protect the people from the possibility of domination by the state.
Second, the resolution of disputes regarding the permissible scope
of governmental authority in difficult statutory cases requires the
use of practical reasoning, and the quality of statutory law and its
democratic legitimacy benefit from a broad range of arguments and
diverse judicial perspectives. Third, the traditional hierarchy of
legal sources is outdated, and "interpretive methodology" and
"agency decision making" should be viewed as distinct forms of law
that merit their own special places in a new legal hierarchy for the
regulatory state. Finally, the central function of statutory
interpretation by federal courts in the modern regulatory state is
to provide individuals and groups with opportunities to contest the
validity of particular exercises of governmental authority, rather
than to ascertain the meaning of the law in a vacuum. The Article
therefore argues that the recent proposals to dumb down statutory
interpretation are fundamentally misguided, and it closes by making
several related observations about the extent to which interpretive
methodology can or should be simple or uniform. In sum, provisional
dialogues by and among different centers of power better reflect the
nature of law in the modern regulatory state than artificial efforts
to achieve simple, predictable, or uniform final answers to our most
pressing legal or social problems.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67574&title=%E2%80%9CThe%20Dumbing%20Down%20of%20Statutory%20Interpretation%E2%80%9D&description=>
Posted instatutory interpretation <http://electionlawblog.org/?cat=21>
"Questions Emerge About Potential Conflict of Interest Between
Mailergate and Silicon Valley Start-up"
<http://electionlawblog.org/?p=67572>
Posted onOctober 29, 2014 7:07 am
<http://electionlawblog.org/?p=67572>byRick Hasen
<http://electionlawblog.org/?author=3>
Cowgirl Blog'
<http://mtcowgirl.com/2014/10/26/the-worm-turns-in-mailergate-heres-the-latest/>s
latest on the Montana mailer.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67572&title=%E2%80%9CQuestions%20Emerge%20About%20Potential%20Conflict%20of%20Interest%20Between%20Mailergate%20and%20Silicon%20Valley%20Start-up%E2%80%9D&description=>
Posted incampaigns <http://electionlawblog.org/?cat=59>,election law biz
<http://electionlawblog.org/?cat=51>
Garrett Epps on Racial and Partisan Discrimination in Texas Voter ID
Case <http://electionlawblog.org/?p=67570>
Posted onOctober 29, 2014 7:04 am
<http://electionlawblog.org/?p=67570>byRick Hasen
<http://electionlawblog.org/?author=3>
Well worththe read
<http://www.theatlantic.com/politics/archive/2014/10/heres-what-racial-discrimination-means/382048/?single_page=true>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67570&title=Garrett%20Epps%20on%20Racial%20and%20Partisan%20Discrimination%20in%20Texas%20Voter%20ID%20Case&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,political parties
<http://electionlawblog.org/?cat=25>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
"Flush with mystery money, Kentucky nonprofit haunts Grimes' Senate
bid" <http://electionlawblog.org/?p=67568>
Posted onOctober 29, 2014 7:02 am
<http://electionlawblog.org/?p=67568>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI reports
<http://www.publicintegrity.org/2014/10/29/16088/flush-mystery-money-kentucky-nonprofit-haunts-grimes-senate-bid>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67568&title=%E2%80%9CFlush%20with%20mystery%20money%2C%20Kentucky%20nonprofit%20haunts%20Grimes%E2%80%99%20Senate%20bid%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
Justice Ginsburg Gives More Insight Into Her Texas Voter ID Dissent,
and Its Small Error <http://electionlawblog.org/?p=67566>
Posted onOctober 29, 2014 6:59 am
<http://electionlawblog.org/?p=67566>byRick Hasen
<http://electionlawblog.org/?author=3>
I suggested in this /Slate /piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ginsburg_s_dissent_in_texas_voter_id_law_supreme_court_order.html>that
Justice Ginsburg decided to pull an all nighter to write her dissent as
a "5 am wake up call" on the issue of voting rights. Now comes some
confirmatio.
Jess Bravin
<http://online.wsj.com/articles/justice-ginsberg-tells-students-she-pulls-all-nighters-too-1414531058>:
But Justice Ginsburg, speaking at the University of California's
Washington Center, said she "decided this case really needs a
dissent to highlight how far Texas had gone, and the populations
that would be most affected by the voter ID" requirements.
She said she worked in her chambers till 10 p.m., then went home and
kept working until dawn. The court released the Texas order and the
dissent, joined by Justices Sonia Sotomayor and Elena Kagan
<http://topics.wsj.com/person/K/Elena-Kagan/6097>, at 5:05 a.m.
Having turned in her assignment, the 81-year-old justice was a bit
too wired to hit the hay. "I didn't sleep at 5 a.m. either. I took a
leisurely shower," then wound down with some reading, she said.
And like many a student, Justice Ginsburg said she wished she had
had a bit more time.
"I would have liked to have held it for one more read. Maybe I would
have caught the error if I had done that," Justice Ginsburg said.
On the small error, seehere <http://electionlawblog.org/?p=67275>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67566&title=Justice%20Ginsburg%20Gives%20More%20Insight%20Into%20Her%20Texas%20Voter%20ID%20Dissent%2C%20and%20Its%20Small%20Error&description=>
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>
"Is Political Science Blowing Its Close-Up?"
<http://electionlawblog.org/?p=67564>
Posted onOctober 29, 2014 6:45 am
<http://electionlawblog.org/?p=67564>byRick Hasen
<http://electionlawblog.org/?author=3>
Important Doug Chapin post
<http://blog.lib.umn.edu/cspg/electionacademy/2014/10/is_political_science_blowing_i.php>:
But two recent stories in the election realm raise a cautionary tale
about what happens if we're not careful (as practitioners or
consumers) about the use of political science to learn more about
elections.
The first comes from Montana, where researchers interested in
studying how partisan cues might affect voting in nonpartisan
judicial races have thrown the state into a frenzy. The problem is
their use of a mailer that (perhaps illegally and certainly
ill-advisedly) uses the Great Seal of Montana
<http://www.greatfallstribune.com/story/news/politics/2014/10/24/stanford-apologizes-montana-election-mailers/17827263/>.
[It looks like similar mailers have gone to California and New
Hampshire
<http://www.latimes.com/local/political/la-me-pc-election-mailers-study-20141027-story.html> too.]
That piece, which critics claim is misleading to voters, is leading
many people inside and outside of Montana to worry that the mailer
(and the resulting controversy) could end up having an impact on the
outcome. Worse, one defender of the project has sought to justify
the mailer's impact on Montana by suggesting that the concept of
nonpartisan judicial elections isn't such a good idea in the first
place <http://thomasleeper.com/2014/10/montana-experiment/>.
The second story involves a recent guest posting about non-citizen
voting on the Washington Post'sMonkey Cage blog
<http://www.washingtonpost.com/blogs/monkey-cage/>. The Monkey Cage
-- a well-respected political science blog -- recently joined the
Post, and has become a terrific source of political science-driven
analysis and commentary on a wide range of issues
<http://www.washingtonpost.com/blogs/monkey-cage/about-the-monkey-cage/>.
In their recent guest post, however, two researchers who have been
studying non-citizen voting claimed that their analysis suggests
that non-citizen voting is higher than previously thought and could
be skewing outcomes
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/10/24/could-non-citizens-decide-the-november-election/>.
Not surprisingly, both sides in the ongoing "voting wars" (trademark
Rick Hasen) have seized on the piece (as of midday Tuesday it had
more than 3,000 comments
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/10/28/what-can-we-learn-about-the-electoral-behavior-of-non-citizens-from-a-survey-designed-to-learn-about-citizens/>)
and it will be a centerpiece in voter ID and proof-of-citizenship
fights for years to come. But several academics and analysts who are
familiar with the data used in the study are saying that it doesn't
necessarily support the conclusions reached
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/10/27/methodological-challenges-affect-study-of-non-citizens-voting/> AND
that even if it did that would indicate the need to study further,
not publish the results
<https://twitter.com/Nate_Cohn/status/526079918384615424>.
This is the part where I remind you that I have been beating the
drum for years about the need for more field experiments (like in
Montana) that -- by their very definition -- look to measure the
effect of a studied practice on voter behavior, and data-driven
analysis (like in the Monkey Cage post). Properly executed, they are
a powerful force for change in election administration and a means
to rise above rhetoric and partisanship in shaping election policy.
But I would suggest that neither of these projects was properly
executed.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67564&title=%E2%80%9CIs%20Political%20Science%20Blowing%20Its%20Close-Up%3F%E2%80%9D&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,election law biz
<http://electionlawblog.org/?cat=51>
"Lobbyists, Bearing Gifts, Pursue Attorneys General"
<http://electionlawblog.org/?p=67562>
Posted onOctober 28, 2014 9:39 pm
<http://electionlawblog.org/?p=67562>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read A1 Eric Lipton
<http://www.nytimes.com/2014/10/29/us/lobbyists-bearing-gifts-pursue-attorneys-general.html?hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news>for
the NYT:
Attorneys general are now the object of aggressive pursuit by
lobbyists and lawyers who use campaign contributions, personal
appeals at lavish corporate-sponsored conferences and other means to
push them to drop investigations, change policies, negotiate
favorable settlements or pressure federal regulators, an
investigation by The New York Times has found.
A robust industry of lobbyists and lawyers has blossomed as
attorneys general have joined to conduct multistate investigations
and pushed into areas as diverse as securities fraud and Internet
crimes.
But unlike the lobbying rules covering other elected officials,
there are few revolving-door restrictions or disclosure requirements
governing state attorneys general, who serve as "the people's
lawyers" by protecting consumers and individual citizens.
A result is that the routine lobbying and deal-making occur largely
out of view. But the extent of the cause and effect is laid bare in
The Times's review of more than 6,000 emails obtained through open
records laws in more than two dozen states, interviews with dozens
of participants in cases and attendance at several conferences where
corporate representatives had easy access to attorneys general.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67562&title=%E2%80%9CLobbyists%2C%20Bearing%20Gifts%2C%20Pursue%20Attorneys%20General%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,lobbying
<http://electionlawblog.org/?cat=28>
Quote of the Day: Obama Voter Fraud Edition
<http://electionlawblog.org/?p=67560>
Posted onOctober 28, 2014 9:28 pm
<http://electionlawblog.org/?p=67560>byRick Hasen
<http://electionlawblog.org/?author=3>
"You can vote all week. You can only vote once. This isn't Chicago," Mr.
Obama said. "I'm teasing, Chicago. I'm messing with you. That was a long
time ago."
---President Obama
<http://www.washingtontimes.com/news/2014/oct/28/obama-jokes-about-chicago-vote-fraud/>,
at a Wisconsin campaign rally.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67560&title=Quote%20of%20the%20Day%3A%20Obama%20Voter%20Fraud%20Edition&description=>
Posted inUncategorized <http://electionlawblog.org/?cat=1>
"George Will's Hit Piece on Wisconsin Undermined by Factual
Inaccuracy and Non-Disclosure" <http://electionlawblog.org/?p=67558>
Posted onOctober 28, 2014 9:23 pm
<http://electionlawblog.org/?p=67558>byRick Hasen
<http://electionlawblog.org/?author=3>
Jay Heck
blogs<http://www.wisconsinpoliticalfix.org/2014/10/george-wills-hit-piece-on-wisconsin.html>at
Common Cause in Wisconsin.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67558&title=%E2%80%9CGeorge%20Will%E2%80%99s%20Hit%20Piece%20on%20Wisconsin%20Undermined%20by%20Factual%20Inaccuracy%20and%20Non-Disclosure%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
"Stanford And Dartmouth Urge Voters To 'Ignore' Their Controversial
Mailer" <http://electionlawblog.org/?p=67556>
Posted onOctober 28, 2014 4:22 pm
<http://electionlawblog.org/?p=67556>byRick Hasen
<http://electionlawblog.org/?author=3>
TPM
<http://talkingpointsmemo.com/livewire/montana-mailer-stanford-dartmouth-settlement>:
In an unusual "open letter to the voters and citizens of Montana,"
the presidents of Dartmouth College and Stanford University urged
Montana voters Tuesday to ignore a mailer sent recently by their
researchers that caused considerable controversy in the run up the
November election. They also apologized for the "confusion and
concern" the mailer caused.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67556&title=%E2%80%9CStanford%20And%20Dartmouth%20Urge%20Voters%20To%20%E2%80%98Ignore%E2%80%99%20Their%20Controversial%20Mailer%E2%80%9D&description=>
Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Hans von Spakovsky's 'voter fraud' fraud: Creating a panic over a
minor problem" <http://electionlawblog.org/?p=67552>
Posted onOctober 28, 2014 3:59 pm
<http://electionlawblog.org/?p=67552>byRick Hasen
<http://electionlawblog.org/?author=3>
Simon Maloy writes
<http://www.salon.com/2014/10/28/hans_von_spakovskys_voter_fraud_fraud_creating_a_panic_over_a_minor_problem/>.
Related: About that Monkey Cage Item on Non-Citizen Voting, Calm Down
<http://electionlawblog.org/?p=67451>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D67552&title=%E2%80%9CHans%20von%20Spakovsky%E2%80%99s%20%E2%80%98voter%20fraud%E2%80%99%20fraud%3A%20Creating%20a%20panic%20over%20a%20minor%20problem%E2%80%9D&description=>
Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>,The
Voting Wars <http://electionlawblog.org/?cat=60>
--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141029/3dd96541/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141029/3dd96541/attachment.png>
View list directory