[EL] ELB News and Commentary 9/2/14
Rick Hasen
rhasen at law.uci.edu
Mon Sep 1 21:58:39 PDT 2014
"2 Sides Cite Discrimination as Battle on Texas Voting Law Heads to
Court" <http://electionlawblog.org/?p=64847>
Posted onSeptember 1, 2014 9:57 pm
<http://electionlawblog.org/?p=64847>byRick Hasen
<http://electionlawblog.org/?author=3>
Manny Fernandez
<http://www.nytimes.com/2014/09/02/us/both-sides-cite-discrimination-in-battle-over-texas-voter-id-law.html>in
the NYT:
The case has taken on a bitter political undertone, with Texas
alleging that the Justice Department has gone after "only Southern,
Republican-led states" and suggesting that the agency ignores the
concerns of white Republican voters and favors minority Democratic
voters. The allegations have outraged lawyers for the Justice
Department and several minority groups, voters and Democratic
lawmakers who are part of the agency's lawsuit against Texas.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Eric Cantor Lands on Wall Street <http://electionlawblog.org/?p=64845>
Posted onSeptember 1, 2014 9:45 pm
<http://electionlawblog.org/?p=64845>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ.
<http://online.wsj.com/articles/eric-cantor-to-join-wall-street-investment-bank-1409630638>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
True The Vote Suffers Major Loss in #MSSEN Case
<http://electionlawblog.org/?p=64842>
Posted onSeptember 1, 2014 9:44 pm
<http://electionlawblog.org/?p=64842>byRick Hasen
<http://electionlawblog.org/?author=3>
Lost in the beginning of the Labor Day weekend and the ruling against
Sen. McDaniel's election challenge against Thad Cochran wasa 90-page
ruling
<http://electionlawblog.org/wp-content/uploads/ttv-v-hosemann.pdf>issued
in/True the Vote v. Hosemann/. TTV lost just about every issue it
raised, although the trial court rejected the MS Republican Party's
request for sanctions.
Here is the conclusion of the court's opinion:
For a variety of reasons, the Court concludes that Plaintiffs' NVRA
claims fail as a matter of law. First, nearly all of Plaintiffs'
requests on which they base their NVRA claims did not meet the
notice and cure requirements of 42 U.S.C. § 1973gg-9(b). Second,
Plaintiffs are not entitled to any of the Requested Documents they
seek in this case under the NVRA. Neither poll books nor absentee
ballot applications and envelopes fall within the NVRA Public
Disclosure Provision. Mississippi's Voter Roll does fall within that
provision, but Plaintiffs already have a copy of the Voter Roll and
Defendant Hosemann has conceded that it is disclosable under the
NVRA Public Disclosure Provision. Moreover, Plaintiffs failed to
properly request Federal Post Card Applications. Third, even if the
NVRA required disclosure of the Requested Documents, the NVRA would
not require Defendants to supply Plaintiffs with unredacted records
disclosing birthdates under the facts of this case. For all these
reasons, summary judgment in favor of Defendants is appropriate on
Plaintiffs' NVRA claims.
The Court recognizes that, in many respects, this is a case of first
impression. Future cases are likely to arise where litigants dispute
the contours of the NVRA Public Disclosure Provision. To ameliorate
confusion among the requesters of NVRA documents and election
officials at State and County levels who maintain NVRA records, as
well as to avoid potentially conflicting rulings by different
courts, the Court urges Congress to clarify the scope of the NVRA
Public Disclosure Provision in light of other longstanding laws and
the important competing interests of electoral transparency and
voter registrants' privacy.
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Posted inNVRA (motor voter) <http://electionlawblog.org/?cat=33>,The
Voting Wars <http://electionlawblog.org/?cat=60>
"New Docs Undermine Walker Statements on Criminal Probe"
<http://electionlawblog.org/?p=64840>
Posted onSeptember 1, 2014 9:26 pm
<http://electionlawblog.org/?p=64840>byRick Hasen
<http://electionlawblog.org/?author=3>
Brendan Fischer blogs.
<http://www.prwatch.org/news/2014/08/12582/Walker-Undermine-Criminal-Probe>
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Posted inchicanery <http://electionlawblog.org/?cat=12>
"Mary Landrieu's residency isn't up to courts, it's up to Congress"
<http://electionlawblog.org/?p=64838>
Posted onSeptember 1, 2014 9:24 pm
<http://electionlawblog.org/?p=64838>byRick Hasen
<http://electionlawblog.org/?author=3>
Derek Muller has writtena very important
oped<http://www.nola.com/opinions/index.ssf/2014/09/mary_landrieus_residency_isnt.html>with
which I agree.
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Posted inresidency <http://electionlawblog.org/?cat=38>
"Ohio Libertarian Brief Reveals Corrupt Process in Removal of
Candidates" <http://electionlawblog.org/?p=64836>
Posted onSeptember 1, 2014 9:22 pm
<http://electionlawblog.org/?p=64836>byRick Hasen
<http://electionlawblog.org/?author=3>
Ballot Access News
<http://www.ballot-access.org/2014/08/ohio-libertarian-brief-reveals-corrupt-process-in-removal-of-candidates/> on
a controversy involving Professor Brad Smith (who served as the "hearing
officer) referred to below:
On August 31, the Ohio Libertarian Party filed this brief
<http://www.ballot-access.org/wp-content/uploads/2014/08/scandals-revealed-Ohio.pdf> in
Libertarian Party of Ohio v Husted, southern district, 2:13cv-953.
It summarizes the most significant findings from the party's
discovery conducted over the last month, discovery which reveals
that the hearing officer who removed the party's gubernatorial
candidate from the party's primary ballot had originally ruled in
favor of keeping the candidate on the primary ballot.
The brief also shows that the hearing officer was simultaneously
acting as an attorney for the Ohio Attorney General. It also reveals
that the man who paid the attorney for the individual who challenged
the party's primary petition is a civil servant for the state. His
annual salary is $70,000 and he has no other significant income.
Yet, he paid over $100,000 to the attorneys for the challenger. Even
if you don't normally read legal briefs, consider reading this one;
it is only 19 pages.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
AALS Election Law Section Call for Papers
<http://electionlawblog.org/?p=62303>
Posted onSeptember 1, 2014 8:00 pm
<http://electionlawblog.org/?p=62303>byRick Hasen
<http://electionlawblog.org/?author=3>
[Bumped to the top with deadline approaching.]
Via Josh Douglas:
Dear Election Law Colleagues,
The brand-new AALS Section on Election Law is issuing a Call for
Papers to select two panelists for its inaugural program at the 2015
AALS Annual Meeting in Washington, DC. The Section's program will
be on Sunday, January 4, 2015, from 2:00-3:45. The title of the
program is "T*he Voting Rights Act at 50.*" The two panelists
selected from the Call for Papers will join an all-star cast
including Pam Karlan, Chris Elmendorf, and Kareem Crayton, to
discuss the topic.
Selected papers will be published in the Election Law Journal. The
deadline to submit is*Friday, September 5*. Finished papers or
substantially completed drafts are preferred, although you may
submit an abstract so long as you will be able to complete the paper
in time for the AALS Annual Meeting in January.
To submit, or if you have any questions, please email Josh Douglas
atjoshuadouglas at uky.edu <mailto:joshuadouglas at uky.edu>.
Here is the full program description:
On August 6, 1965, President Lyndon Johnson signed the Voting Rights
Act into law. During the signing ceremony, President Johnson
referred to the Act as "one of the most monumental laws in the
entire history of American freedom." Over the past fifty years, the
Supreme Court has issued numerous decisions on various aspects of
the Voting Rights Act, Congress has amended it several times, and it
remains an important component of public debate. This panel -- the
first programming for the new AALS Section on Election Law -- will
explore the many facets of that debate. The panel will analyze the
current issues regarding voting rights, from the Supreme Court's
recent invalidation of the Section 4 coverage formula in its/Shelby
County/decision -- essentially rendering Section 5 inoperable -- to
Congress's consideration of a Voting Rights Act Amendment, to the
report of the bipartisan Presidential Commission on Election
Administration. Part of this inquiry will include a discussion of
whether we have reached the ideals President Johnson aspired to 50
years ago when he signed this Act, and where we should go from here
in protecting and effectuating the right to vote. The papers from
this program will appear in the Election Law Journal.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
"Ada County wrongly strips more than 750 voter registrations"
<http://electionlawblog.org/?p=64832>
Posted onSeptember 1, 2014 3:52 pm
<http://electionlawblog.org/?p=64832>byJustin Levitt
<http://electionlawblog.org/?author=4>
Late last week, Ricklinked <http://electionlawblog.org/?p=64784>toa
story
<http://www.washingtonpost.com/local/fairfax-officials-say-some-people-may-have-crossed-state-lines-to-vote-twice-in-2012/2014/08/28/391b4210-2edb-11e4-9b98-848790384093_story.html> about
potential double voters in Maryland and Virginia. Two groups (Election
Integrity Maryland and the Virginia Voters Alliance) claimed to have
discovered "tens of thousands" of electors on the rolls in both states,
and hundreds of double voters. Those lists were apparently compiled by
"comparing 3.4 million current voter records in Maryland and 5.5 million
in Virginia" by name and date of birth
<http://electionintegritymaryland.com/news-2>. Elections officials in
Fairfax County followed up with a tighter scan,looking for matching SSN
digits as well
<http://blog.lib.umn.edu/cspg/electionacademy/2014/08/double_trouble_md_va_investiga.php>...
and found 17 potential double voters. (Some of the 17 are likely double
voters. Some are likely the product ofclerical
<http://www.commercialappeal.com/news/election-commission-identifies-employee-who-made-e>recordkeeping
<http://www.ct.gov/seec/lib/seec/ELE-PR8075-1_EXCHANGE_08062009-080937.PDF>errors
<http://amarillo.com/stories/011309/new_votefraud.shtml>.)
I'm all for the Fairfax follow-up. But Iworry
<http://campaignstops.blogs.nytimes.com/2012/10/29/the-danger-of-voter-fraud-vigilantes/>about
the less careful trumpeting of the "tens of thousands" of duplicates,
based on a comparison of name and birthdate alone. As Michael McDonald
and I have shown <http://ssrn.com/abstract=997888>, when you compare
millions of records with millions of other records, statistics
demonstrates that you're going to unintentionally sweep up different
people with the same name and birthdate. Different people. Not
duplicates. That's just how the math works.
Thisenthusiasm without precision
<http://www.nytimes.com/2012/08/24/world/europe/botched-restoration-of-ecce-homo-fresco-shocks-spain.html?_r=0> can
lead to real trouble. On the*same day*that Rick posted his original
story, Ada County, Idaho,admitted that it had wrongfully purged 750
registrations
<http://www.kboi2.com/news/local/voter-registration-ada-county-interstate-cross-check-program-county-clerk-secretary-of-state-273140071.html>---
real, eligible voters, and more than the margin of victory in several of
Ada's primary elections in May. The problem? It purged based on name
and birthdate matches from an interstate comparison of millions of
records. Ada's David Miller was purged because some other David Miller
had later registered in Arizona.
Cleaning up the rolls is a good thing (and upgrading the voter
registration system to follow individuals as they move, facilitating
cleaner rolls at lower cost, is even better). But doing it right takes
care. Too much screaming in too much of a hurry just leads to avoidable
mistakes.
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Posted invoter registration <http://electionlawblog.org/?cat=37>
The Presidential Commission on Election Administration --- A New
Model for Reform <http://electionlawblog.org/?p=64828>
Posted onSeptember 1, 2014 12:01 pm
<http://electionlawblog.org/?p=64828>byHeather Gerken
<http://electionlawblog.org/?author=6>
I was lucky enough to be at the excellentAPSA panel
<http://electionlawblog.org/?p=62039>Rick Hasen organized on
thePresident's Commission on Election Administration
<http://www.supportthevoter.gov/>(and unlucky enough to be staying at
thefire-plagued Marriot <http://electionlawblog.org/?p=64822>). I though
I'd say a few words about the former. For anyone interested, as am I, in
election reform as a field of study, the Commission is especially
interesting. Its structure and recommendations prompt at least two
questions: Is this the future of election reform, and should we welcome it?
Reform is always hard. Election reform is even harder, on average. There
are two unusual obstacles that are always at play for election reform.
To begin, you don't just have to get by the legislators beholden to
interest groups; you have to get by the legislators' own interests. The
foxes are guarding this particular henhouse. That means that those who
know the most about reform and care the most about it are often the
legislators who oppose it. Second, election reform is always
second-order reform because it focuses on process rather than substance.
I firmly believe that process shapes substance, but election reform is
still one step removed from bread-and-butter issues like healthcare and
jobs. That makes organizing harder.
In the face of these political tides running against reform, note how
differently the President's Commission looks than most reform
commissions of the past.
First, while it's bipartisan, it's not you father's bipartisan
commission. Usually bipartisan commissions are headlined by high-profile
former elected officials -- the big names at the top of the political
parties. This one is led by two lawyers with deep experience in the
field and deep respect for one another. They aren't above the fray, but
-- like all lawyers --- they are trained to be in the fray without
becoming enemies. As a result, they don't mistake a political fight for
a real one. Otherwise, the Commission is made up of election
administrators and corporate CEO's. They aren't so much bipartisan or
even nonpartisan as a-partisan.
Second, the commission is premised on a model that assumes that the
levers of change are bureaucrats. Most election reform is aimed at
getting attention of legislators (and usually federal ones at that).
This report focuses almost entirely on election administrators. To be
sure, some of its recommendations will require the participation of
state legislators, but even those reforms are the type that election
administrators would be requesting in the first place. The focus on
election administrators is particularly intriguing. We often act as if
election administrators are the objects of reform rather than the
catalysts -- as if change can only come if there is pressure from
without, with outside groups or legislators making election
administrators do the right thing. This report is largely premised on
the idea that change can come from within, from those who work every day
inside the system.
Third, note how the commission hopes to influence those bureaucrats. The
focus here isn't on grand bargains, but technocratic solutions.
Moreover, it relies on soft law not hard law -- on the effects best
practices and base-lining have on professionals rather than on top-down
legal mandates. And as I'veoften written
<http://www.amazon.com/Democracy-Index-Election-System-Failing/dp/0691154376/ref=sr_1_1?s=books&ie=UTF8&qid=1409597853&sr=1-1&keywords=heather+gerken+democracy+index>,
best practices and base lining turn out to be an excellent strategies
for influencing professional peer groups.
Fourth, the Commission doesn't rely on professional peer pressure alone
to drive reform. It relies on dollars and cents. Sometimes I despair
that reform wouldn't happen even if Almighty God came down from on high
and ordered it. But these days I have some faith in the Almighty Dollar.
And the Commissions' recommendations are built around the Almighty
Dollar. The online registration proposal is a big cost saver, for
instance. Pushing the feds to take the lead on certifying new machines
will save local jurisdictions time and money as well. And the"tool kit"
<http://www.supportthevoter.gov/>the Commission provides for election
administrators are something most election administrators couldn't
afford to create for themselves and designed to help them spread their
limited resources as far as possible. Election administrators are
strapped for cash, especially as their HAVA money has basically run out.
They are desperate for tools like these. This is thus a classic solution
to problem of decentralization, where no individual jurisdiction can
afford to create these tools but every jurisdiction needs them. The tool
kit, in particular, follows the Field of Dreams model for reform: If you
build it, they will come. You can get better administered elections just
by giving states and localities better tools to administer them.
Finally, the commission isn't announcing the need for ambitious,
earth-shaking reform, but fixing what's obviously broken. It's improving
the status quo without disturbing it. Deeply pragmatic and clear-eyed
about what's possible, the report is not the stuff of which many
reformers'' dreams are made.
Given that the Commission is not the stuff of which many reformers'
dreams are made, how should we think about it? While I don't think that
this model is going to displace the more traditional model -- bipartisan
commissions pursuing ambitious aims and offering grand bargains
negotiated by party leaders -- I do think the Commission is going to be
part of a growing trend in election reform. I also think we should
welcome it as a supplement to more traditional reform commissions. The
Commission was pragmatic, problem-centered, and focused on modest ideas
rather than grand bargains. The success of its recommendations will
depend on bureaucratic pride rather than political coalitions, best
practices rather than top-down legislation, soft law not hard law. And I
think that's a good thing. I recognize that some think that the
Commission wasn't ambitious enough, but I think the Commission was quite
ambitious because it set about to achieve reform rather than just talk
about it. That kind of approach may not make headlines, but it is likely
to make headway.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Fixing Election Administration
<http://electionlawblog.org/?cat=4>,PCEA (Bauer-Ginsberg Commission)
<http://electionlawblog.org/?cat=79>,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 92697-8000
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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