[EL] breaking Ohio news/more news
Rick Hasen
rhasen at law.uci.edu
Thu Sep 4 08:57:37 PDT 2014
Breaking News and Analysis: Federal Court Grants Injunction
Restoring Early Voting in Ohio <http://electionlawblog.org/?p=64964>
Posted onSeptember 4, 2014 7:58 am
<http://electionlawblog.org/?p=64964>byRick Hasen
<http://electionlawblog.org/?author=3>
I have now had a chance to give an initial read the 71-page federal
district court opinion inOhio State Conference of the NAACP v. Husted
<http://electionlawblog.org/wp-content/uploads/072_order_granting_pi.pdf>.
This is a significant case, which could potentially make it to the
Supreme Court. It expands voting rights in a broad way, and makes it
difficult for a state like Ohio to cut back on any expansions of voting
rights that it puts in place. The big question is where the stopping
point is in a decision like this, and how to justify calling it
unconstitutional for a state like Ohio to make a modest cutback in early
voting while allowing many other states to offer no early voting at all.
Here are my preliminary thoughts.
1. This is the latest in a series of cases challenging Ohio cutbacks in
early voting. The challenges are before the same federal district court
judge in Ohio, Peter Economus, as earlier challenges, including a
challenge which led to the restoration of early voting during the 2012
election. Judge Economustangled with Ohio SOS Husted before,
<http://electionlawblog.org/?s=economus&x=0&y=0>leading to potential
calls for Husted to be cited for contempt. It is therefore no surprise
that Judge Economus sided against Husted again in this latest challenge.
2. The theory in the earlier Ohio early voting case (Obama for America
v. Husted) is different than the theory in the current case. In the last
case, the question was whether Ohio could cut back on early voting for
all voters EXCEPT for certain military and overseas voters in the period
just before the election. The district court, affirmed by the Sixth
Circuit, said that these special rules for just a subset of voters
violated equal protection. (I had
thought<http://www.slate.com/articles/news_and_politics/politics/2012/10/if_the_supreme_court_cuts_early_voting_in_ohio_it_could_swing_the_state.html>the
Supreme Court might get involved in this case, but the Courtdid not.
<http://www.slate.com/articles/news_and_politics/politics/2012/10/campaign_2012_will_obama_win_ohio_thanks_to_bush_v_gore.html>)
3. This case does not raise issues of different voting rules for
different classes of voters. In fact, the dispute here arises from the
issue of uniformity. The Ohio legislature cut back from 35 to 28 days of
early voting, in the process eliminating "Golden Week," a week where new
(or reregistering voters) could register to vote and vote early during
the same period. In conjunction with rules establishing uniformity of
early voting times established by SOS Husted, the new early voting times
eliminated night voting as well as Sunday voting before election day.
That day was used by some African-American churches for a "Souls to the
Polls" voter drive event. All Ohio voters remain able to vote by mail
without excuse, for the 30 days before the election. The NAACP and
others argued that the cutbacks in early voting and the elimination of
Golden Week violated both equal protection guarantees of the U.S.
Constitution and Section 2 of the Voting Rights Act.
4. The judge found as a matter of fact (crediting expert reports of the
plaintiffs' especially that of U. Florida's Dan Smith) that the cutbacks
in early voting would disproportionately fall on African-Americans. The
judge found that early voters, especially in the larger population areas
of the state, included a large portion of the state's share of
African-American voters. The judge also found that African-American
voters were distrustful of absentee balloting as an alternative to in
person voting, and that absentee balloting was more burdensome (filling
out the materials, postage, mailing, etc.)
5. The judge concluded that the cutbacks in early voting constituted an
equal protection violation under the Sixth Circuit's cases describing
equal protection standards in elections and a violation of section 2 of
the Voting Rights Act. Both of these holdings are legally controversial.
It is possible that the Sixth Circuit (depending on the panel) could
agree with these rulings, but that is not certain. if the Supreme Court
considered these issues, I would expect a reversal, but it is not clear
that the Supreme Court will choose to get involved in this case if Ohio
tries to take it this far.
6. The main problem with the equal protection theory and the VRA section
2 theory is the same: Ohio's law is not all that burdensome, and in fact
it provides many opportunities for voting (such as a still very long
early voting period of 28 days and no excuse absentee balloting for a
long period) which are not available in other states. If 28 days is
unconstitutional and a voting rights violation, what does this say about
places like New York, which offer no early voting? Although the judge
says he is not applying a "non-retrogression" standard such as that
which used to exist under section 5 of the VRA, that appears to be what
he is doing to at least some extent. The judge says the cutbacks are
relevant in a totality of the circumstances approach to section 2 VRA
applicability.
7. Perhaps most surprisingly, the judge does not really give us a full
test for determining when a vote denial case constitutes a violation of
section 2 of the Voting Rights Act. This is an issue which is dividing
the lower courts, from the capacious reading of section 2 inFrank v.
Walker <http://electionlawblog.org/?p=64270>, the federal case striking
down Wisconsin's voter id law, to the much narrower reading of section 2
in North Carolina Conference of theNAACP v. McCrory
<http://electionlawblog.org/?p=64152>, the federal case rejecting a
preliminary injunction for cutbacks in early voting and other changes in
North Carolina. The judge simply throws up the section 2 "Zimmer
factors" and has at it. The standard does not explain whether any and
every voting rule which has a disparate impact on minority voters counts
as a section 2 violation. And if section 2 is that broad, is it a
constitutional exercise of Congress's power?
8. In the end, it might be that the trial court's ruling will stand,
because the Sixth Circuit has been reading equal protection principles
from /Bush v. Gore/quite broadly, and requiring Ohio to not retrogress
in protections and benefits offered to voters. (I analyzed these cases
in The 2012 Voting Wars, Judicial Backstops, and the Resurrection of
Bush v. Gore
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>, 81 /George
Washington Law Review/ 1865 (2013).) But the opinion issued today is
quite undertheorized as a matter of law, and I am not sure that it will
stand up to further scrutiny, at least if applied in other cases.
[This post has been updated.]
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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>
"Legal questions complicate Dem's exit from Kansas Senate race"
<http://electionlawblog.org/?p=64962>
Posted onSeptember 4, 2014 7:43 am
<http://electionlawblog.org/?p=64962>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill reports.
<http://thehill.com/blogs/ballot-box/senate-races/216603-legal-questions-complicate-democrats-exit-from-kansas-senate>
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
Bauer Slams MayDay PAC/Lessig Strategy
<http://electionlawblog.org/?p=64960>
Posted onSeptember 4, 2014 7:17 am
<http://electionlawblog.org/?p=64960>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Bauer:
<http://www.moresoftmoneyhardlaw.com/2014/09/mayday-pac-progressive-politics/>
So what Professor Lessig is proposing is a single-issue brand of
politics that pursues its goal at a considerable cost in means and
ends. It relies on money to achieve its goal; it insists that all
other policy objectives should be subordinated to it; and it aims to
be the decisive factor in the election of candidates who have tacked
campaign finance reform onto platforms consisting of the repeal of
health care reform, opposition to comprehensive immigration reform,
support for NRA gun rights policies, and serious discussion of
impeachment as a means of expressing opposition to the policies of
the current administration.
Understanding that progressives may be disturbed at least by the use
of a Super PAC to bring about campaign finance reform, Professor
Lessig and his associates have invited them to "embrace the irony."
They are being asked to embrace a good bit more than that, and they
will have to swallow hard.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
"Political Activity Limits and Tax Exemption: A Gordian's Knot"
<http://electionlawblog.org/?p=64957>
Posted onSeptember 4, 2014 7:12 am
<http://electionlawblog.org/?p=64957>byRick Hasen
<http://electionlawblog.org/?author=3>
Roger Colinvaux has postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476435>on SSRN
(forthcoming, /Virigina Tax Review/). Here is the abstract:
The article considers the correct tax treatment of political
activity by the tax system and discusses the problems that have
arisen from political activity depending on whether the organization
is a charity, a noncharitable exempt, or a political organization.
The article then examines administrative and legislative options to
the problems raised by political activity. Quantum-based solutions
to the problem of political activity by noncharitable exempts do not
provide a clear advantage over present law. Formally quantifying the
"primarily" test would result in more certainty, but would also
require that the Service be more, not less, involved in the
regulation of political activity. If the policy goal is to curb
political activity by noncharitable exempts, changing the test from
"primarily" to something more restrictive like "substantially" or
"exclusively" would be effective, but would create new categories of
taxable nonprofits that are treated worse than political
organizations for engaging in less political activity, which is
irrational. Further, it is not clear, especially after the Citizens
United decision, why as a matter of tax exemption the regulations
decree that political activity may not further noncharitable exempt
purposes. Before Citizens United, the political activity limits were
not especially relevant, but at least helped to differentiate
organization types. However, Citizens United largely rendered
existing tax law limitations obsolete by making a new kind of
multi-purpose organization possible. As a result, definitional
political activity limits are no longer justified and should be
eliminated, but only if the 527(f) tax on investment income remains
vital and the differences in the disclosure regimes between
political organizations and noncharitable exempts are erased. In
addition, Congress should affirm that the gift tax does not apply
with respect to political contributions, but also extend the income
tax to transfers of appreciated property to noncharitable exempts.
Further, Congress should acknowledge that the increase in political
speech by noncharitable exempts will lead to abuse of charitable
organizations, and take steps to prevent the laundering of
independent expenditures through the charitable form. Congress also
should recognize that Citizens United has led to a need to develop a
new tax baseline for political activity conducted "for profit" or
outside of section 527.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
"Incorporating Corporate Rights" <http://electionlawblog.org/?p=64955>
Posted onSeptember 4, 2014 7:11 am
<http://electionlawblog.org/?p=64955>byRick Hasen
<http://electionlawblog.org/?author=3>
William Marks has postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445548>on
SSRN. Here is the abstract:
Why exactly must the states respect federal Bill of Rights
protections that apply to corporations? In Citizens United v. FEC,
558 U.S. 310 (2010), the Supreme Court held that corporations enjoy
the First Amendment's freedom of speech. Then, in American Tradition
Partnership v. Bullock, 132 S. Ct. 2490 (2012), the Court
incorporated that holding to the states. Oddly, though, the per
curiam opinion in the latter case did not mention the constitutional
doctrine of incorporation. It did not mention due process. It did
not even mention the Fourteenth Amendment.
This omission is indeed surprising, as the Bill of Rights does not
apply to the states but for their incorporation through the
Fourteenth Amendment's Due Process Clause. Now of course, the Court
long ago incorporated the First Amendment to the states. But that
incorporation was to protect "liberty," and the Court has also long
held that corporations, as artificial entities, do not enjoy the
"liberty" that the Fourteenth Amendment protects.
So again, why must the states respect federal Bill of Rights
protections that apply to corporations? As for the First Amendment,
the Court addressed this exact question in First National Bank of
Boston v. Bellotti, 437 U.S. 765 (1978). The analysis in Bellotti,
however, suggests that the First Amendment is somewhat sui generis.
That uniqueness naturally raises the question, must the states
respect other Bill of Rights protections that corporations now enjoy
--- or might soon enjoy? Must states provide jury trials for
corporate criminal-fines cases? What about if corporations have
Second Amendment rights?
This Article aims to provide an answer. It draws on two sources, one
more recent, and the other from 1868. The first is organizational
and associational standing, which scholars have recently proffered
as providing coherence to the Court's corporate-rights
jurisprudence. But with respect to the unique problem of
incorporating corporate rights, group-entity standing by itself
fails to fully solve the incorporation problem. We need something more.
That something, this Article argues, is the Fourteenth Amendment's
Property Clause. A property-based account of the incorporation of
corporate rights explains why states must respect certain corporate
rights. It explains why they do not have to respect others. And it
avoids overturning long-standing precedent. After explaining the
property-based approach, the Article concludes by explaining which
federal Bill of Rights protections corporations should enjoy at the
state level.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Will Chad Taylor's Name Actually Be Taken Off the Ballot in Kansas?
<http://electionlawblog.org/?p=64953>
Posted onSeptember 4, 2014 7:08 am
<http://electionlawblog.org/?p=64953>byRick Hasen
<http://electionlawblog.org/?author=3>
Ed Morriseysays no
<http://hotair.com/archives/2014/09/04/kansas-move-backfiring-for-dems/>.
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Posted inballot access <http://electionlawblog.org/?cat=46>,voting
<http://electionlawblog.org/?cat=31>
"Open Source Developments in CA, TX Signal Shift in Voting
Technology Market" <http://electionlawblog.org/?p=64951>
Posted onSeptember 4, 2014 7:03 am
<http://electionlawblog.org/?p=64951>byRick Hasen
<http://electionlawblog.org/?author=3>
Important Doug Chapin post.
<http://blog.lib.umn.edu/cspg/electionacademy/2014/09/open_source_developments_in_ca.php?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHElections+%28The+Election+Aacdemy%29>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voting technology
<http://electionlawblog.org/?cat=40>
--
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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