[EL] more news 9/15/14
Rick Hasen
rhasen at law.uci.edu
Mon Sep 15 11:59:27 PDT 2014
My Analysis of New #KSSEN Filings in Taylor v. Kobach
<http://electionlawblog.org/?p=65459>
Posted onSeptember 15, 2014 11:52 am
<http://electionlawblog.org/?p=65459>byRick Hasen
<http://electionlawblog.org/?author=3>
The Kansas Supreme Court has now posted additional filings in theTaylor
v. Kobach
<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/default.asp>case.
Here are a few observations about the new filings.
1. One of the questions is what Bradley Bryant of Kansas Secretary of
State's office told Chad Taylor about whether his letter withdrawing
from office was sufficient. He's slightly changed his description of
what he's said since last week. In theaffidavit filed last week
<http://electionlawblog.org/?p=65341>, he said that he "gestured that
the answer was uncertain." On page 3 of thenew affidavi
<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/112431ResponseAppendix.pdf>t,
he says "I gestured by shrugging my shoulders as to indicate 'we'll
see.'" There is a major factual dispute about what Bryant told Taylor.
But the Kansas Supreme Courtdoesn't want more factfinding
<http://electionlawblog.org/?p=65309>, and so it likely appears it will
resolve this dispute without regard to factfinding. (E.g, it could side
with Kobach even if it assumes everything in the Taylor application is
true. Or it could side with Taylor by stating that the letter is
sufficient as a matter of law. Either way, the factual dispute goes away.)
2. The state has offereda very detailed defense
<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/112431ResponsetoPetitionforWritofMandamus.pdf> of
Kobach's decision to not accept the letter as sufficient. It makes the
arguments I would have expected (plain language, no estoppel against the
government, etc. ). But one thing that is new is that the brief offers a
very detailed legislative history of the 1997 amendments to the
legislative statute. These amendments added the language about
incapability of serving. According to Kobach's description of the
legislative history, the statute was added to prevent "dummy" or
"placeholder" candidacies of parties, where parties replaced candidates
at the last minute, causing headaches for election administrators. I
have no idea if this history is correct (and Taylor's filings do not
address the legislative history.) But even if this is correct, if the
problem with placeholder candidates is one of convenience of election
administrators in printing ballots, then we might havea Torricelli
situation. <http://electionlawblog.org/?p=65319>in that case, the
Supreme Court of New Jersey said that so long as there was time for
election administrators to make a change on the ballot, the time frame
for withdrawal and replacement should not matter.
3. Those who remember the U.S. attorneys scandal and fights over the
Bush Justice Dept. and voting rules may be amused to know that Bradley
Schlozman is one of the authors of the brief. (It is a very well written
brief by the way).
4.Taylor's new
filing<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/112431SupplementalMemorandumSupportPetitionWritofMandamus.pdf>is
relatively short and basically hammers home the "pursuant to" argument.
That is, the letter was sufficient to withdraw and did not need to
recite the magic words of "incapability. There's nothing in here about
the legislative history, which is kind of surprising. Is there another
filing coming?
5. Interestingly, there's aproposed amicus brief
<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/112431MotionforPermissionAmicusCuriaeHaney.pdf>in
there from a supposedly Democratic voter who is fighting against Taylor
withdrawing from the ballot. Wonder who is paying his lawyer's fees.
6. Upon reviewing all the filings in this case, I continue to believe
this case could go either way. I could see a principled opinion from the
Court keeping Taylor on the ballot or one removing him. The big question
about removal is if the court is then going to require the Democrats to
quickly pick a substitute candidate to go on the ballot.Perhaps not.
<http://electionlawblog.org/?p=65319>
7. Oral argument will be webcast tomorrow here at 9 am Kansas time. 20
minutes per side. Too early in the day for popcorn? ("All Supreme Court
oral arguments are webcast live through the Watch Supreme Court Live! in
the right-hand column of the Kansas Judicial Branch website at
www.kscourts.org. Oral arguments are also recorded and stored in an
online archive for viewing at another time.")
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Posted incampaigns <http://electionlawblog.org/?cat=59>,election
administration <http://electionlawblog.org/?cat=18>,statutory
interpretation <http://electionlawblog.org/?cat=21>
"Election Day Long Lines: Resource Allocation"
<http://electionlawblog.org/?p=65457>
Posted onSeptember 15, 2014 10:46 am
<http://electionlawblog.org/?p=65457>byRick Hasen
<http://electionlawblog.org/?author=3>
New Brennan Center report
<http://www.brennancenter.org/publication/election-day-long-lines-resource-allocation>:
Lack of poll workers and low numbers of voting machines are key
contributors to long voting lines, and precincts with more
minorities experienced longer waits.
Although many factors may contribute to long lines, little research
has assessed how polling place resource allocation contributes to
delays. In advance of the 2014 midterm election, this report
attempts to fill that gap by analyzing precinct-level data from
states where voters faced some of the longest lines in the country
in 2012: Florida, Maryland, and South Carolina. Specifically, the
study assesses how machine and poll worker distribution contributes
to long lines and what role race played in predicting where lines
might develop --- providing an important roadmap exploring the
causes of long lines that have plagued millions of Americans.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
"No prison for Seattle man who intimidated GOP donors in Florida"
<http://electionlawblog.org/?p=65455>
Posted onSeptember 15, 2014 10:44 am
<http://electionlawblog.org/?p=65455>byRick Hasen
<http://electionlawblog.org/?author=3>
Tampa Tribune
<http://tbo.com/news/crime/no-prison-for-seattle-man-who-intimidated-gop-donors-in-florida-20140910/>:
When James Webb Baker Jr. read about Gov. Rick Scott's efforts to
purge voter registration roles of ineligible voters, he got mad.
To the Seattle engineer, Republican officials in Florida were trying
to suppress turnout by Democrat-leaning Hispanic voters through
letters sent by election officials questioning the recipients'
eligibility to vote.
So Baker created his own copycat letters and sent them to Republican
Party donors in Florida, a violation of the law.
Now, Baker has lost his own right to vote for the next three years.
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Posted inchicanery <http://electionlawblog.org/?cat=12>
#KSSEN Oral Argument to Be Webcast Live, Sept. 16 at 9 am Kansas
Time <http://electionlawblog.org/?p=65453>
Posted onSeptember 15, 2014 10:24 am
<http://electionlawblog.org/?p=65453>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release
<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/newsrelease.pdf>
The Kansas Supreme Court has helpfully created a page posted all of the
documents inTaylor v. Kobach.
<http://www.kscourts.org/Chad_Taylor_v_Kris_Kobach/default.asp>
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
Even with Potential GOP Sweep in Ohio State Offices, Supreme Court
Race Could Change from R to D <http://electionlawblog.org/?p=65451>
Posted onSeptember 15, 2014 9:59 am
<http://electionlawblog.org/?p=65451>byRick Hasen
<http://electionlawblog.org/?author=3>
Columbus Dispatch
<http://www.dispatch.com/content/stories/local/2014/09/15/gop-positioned-to-retain-offices.html>:
But Republican Supreme Court Justice Judith L. French is losing by 6
points to Cleveland Judge John P. O'Donnell, with more than half the
voters undecided. Judicial candidates do not have party labels
attached to their names on the general-election ballot, which
critics say helps turn elections for the high court into a name
game. There already is an O'Donnell on the court --- as well as an
O'Connor and an O'Neill --- although the two are not related.
Justice Sharon Kennedy leads Democratic state Rep. Thomas Letson of
Warren by 21 points for the other court seat up for grabs this year;
but again, more than half of voters say they don't know who they
will support. The GOP currently controls the court 6-1.
Is this an argument for partisan labels on the ballot?
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Posted incampaigns <http://electionlawblog.org/?cat=59>,judicial
elections <http://electionlawblog.org/?cat=19>
#KSSEN: Kobach Says He Should Have Declined to Be on Sen. Roberts
Honorary Reelection Commmittee <http://electionlawblog.org/?p=65448>
Posted onSeptember 15, 2014 8:48 am
<http://electionlawblog.org/?p=65448>byRick Hasen
<http://electionlawblog.org/?author=3>
Wichita Eagle
<http://www.kansas.com/news/politics-government/election/article2108031.html>:
Taylor's suit contends that Kobach should have recused himself from
the decision on Taylor's candidacy. Kobach, a former Republican
Party chairman, is a member of Roberts' honorary campaign committee,
which Taylor's attorney contends creates a conflict of interest.
Kobach recused himself earlier in the year when Roberts' residency
was challenged before the primary. He said that in retrospect he
should have turned down Roberts' request to be on the honorary
committee but that it has had no bearing on his decision to keep
Taylor on the ballot.
"Had I had any inkling that there would be any controversy
surrounding this race, I of course would have said no and risked
offending the senator, but these honorary committees are just
usually meaningless," Kobach said.
The Chief Elections Officer of the state had "no inkling" that there
could be an election controversy in a federal race over which he has
supervisory capacity? You've got to be kidding. Or lying.
(Don't forget Sen. Roberts was involved in a contested primary.)
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Ari Berman on Why WI's Voter ID Law is Not Like Indiana's, Contra
7th Circuit <http://electionlawblog.org/?p=65445>
Posted onSeptember 15, 2014 8:09 am
<http://electionlawblog.org/?p=65445>byRick Hasen
<http://electionlawblog.org/?author=3>
Important piece:
<http://www.thenation.com/blog/181604/major-blow-voting-rights-wisconsin>
3. Approving a law of this magnitude less than two months before a
major election is certain to cause electoral chaos. Wisconsin's
voter ID law has been blocked since March 2012---in four different
lawsuits in state and federal court.
Nine percent of Wisconsin's electorate lacks a government-issued ID,
compared to Indiana, where 99 percent of registered voters had ID.
Even if these hundreds of thousands of voters possess the underlying
documentation to obtain a voter ID---like a birth certificate (seven
witnesses at the trial didn't have access to theirs)---they'd still
have trouble getting one.
According to an amicus brief filed by One Wisconsin Now
<http://www.onewisconsinnow.org/files/IOW%20District%20II%20Brief.pdf>,
257,000 voting-age Wisconsinites don't have a car in their
household. Moreover, only thirty-three of Wisconsin's ninety-two
DMVs are open full-time during business hours. Wisconsin is very
different from Indiana in that respect, notes the brief:
41 [DMVs] are open just two days each week, seven are open just a
few hours for one day each month, and three are open just one day
every quarter.... Only one DMV service center in the entire state of
Wisconsin is open on a Saturday. No other DMV in the entire state
operates in the evenings or on weekends.
Nearly all of Indiana's 140 BMVs are open five days a week,
Wisconsin has only 33 full-time sites; Indiana has 124 that are open
on the weekends, Wisconsin has one.
According to the DMV website, the 92 DMV service centers are open
for a combined total of approximately 9000 hours per month. If the
330,000 electors [without ID] attempted to obtain their ID during
the one-month period preceding the election, the DMV would need to
process on average 37 eligible electors each hour, every day of
operation for the entire month.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
WI John Doe Investigation: "Source who accused Chisholm of vendetta
has troubled past" <http://electionlawblog.org/?p=65443>
Posted onSeptember 15, 2014 7:40 am
<http://electionlawblog.org/?p=65443>byRick Hasen
<http://electionlawblog.org/?author=3>
Dan Bice
<http://www.jsonline.com/watchdog/noquarter/source-who-accused-chisholm-of-vendetta-has-troubled-past-b99350187z1-274905441.html>:
The allegations are explosive.
Milwaukee County District Attorney *John Chisholm* has used the
power of his office to conduct two secret investigations of Gov.
*Scott Walker*because Chisholm's wife is a teachers union shop
steward bitterly opposed to Walker's anti-union policies. Right-wing
talk radio quickly jumped on the story and ran with it for several
days this week.
The source for reporter *Stuart Taylor Jr.'s*lengthy article
<http://legalnewsline.com/news/251647-district-attorneys-wife-drove-case-against-wis-gov-walker-insider-says> in
*Legal Newsline*: a "longtime Chisholm subordinate" who is now a
"former staff prosecutor in Chisholm's office."
Only those descriptions are not accurate. Not even close.
No Quarter has confirmed that the source making the allegations is a
figure well-known in Milwaukee's legal community --- but not for his
prosecutorial record.
*Michael W. Lutz*, 44, is a former Milwaukee cop involved in several
high-profile incidents during his 17 years on the force who receives
taxpayer-funded duty disability pay for post-traumatic stress
disorder. He got his law license less than four years ago and is now
a criminal defense attorney <http://www.canfieldandlutz.com/>.
But here is the shocker: Lutz issued a death threat, apparently
during a drunken rage, against the prosecutor and his family last
year --- a charge not in dispute, though it was never prosecuted.
(H/tBrendan Fischer <http://www.prwatch.org/node/12599>)
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Posted inchicanery <http://electionlawblog.org/?cat=12>
"Civil Rights Advocate Debo Adegbile Joins Wilmer"
<http://electionlawblog.org/?p=65441>
Posted onSeptember 15, 2014 7:25 am
<http://electionlawblog.org/?p=65441>byRick Hasen
<http://electionlawblog.org/?author=3>
BLT
<http://www.nationallawjournal.com/legaltimes/id=1202670027717/Civil-Rights-Advocate-Debo-Adegbile-Joins-Wilmer-?cmp=share_twitter&slreturn=20140815102424>:
Adegbile was under consideration for a seat on the U.S. Court of
Appeals for the D.C. Circuit, and was nominated in 2013 to head the
Civil Rights Division of the U.S. Department of Justice. The Senate
rejected his nomination
<http://www.nationallawjournal.com/id=1202646949549?> in March of
this year. Some senators cited an appellate brief he wrote while
with the fund in the case of Mumia Abu-Jamal, convicted of killing a
Philadelphia police officer in 1981. Others defended him for that
post-conviction representation.
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Posted inelection law biz <http://electionlawblog.org/?cat=51>
Voter ID Affidavit Ballot Not Decisive in MS Race: Candidates Draw
Straws <http://electionlawblog.org/?p=65439>
Posted onSeptember 15, 2014 7:18 am
<http://electionlawblog.org/?p=65439>byRick Hasen
<http://electionlawblog.org/?author=3>
See here.
<http://www.clarionledger.com/story/news/2014/09/12/longest-straw-determines-alderman-race/15525745/>
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Posted incampaigns <http://electionlawblog.org/?cat=59>,election
administration <http://electionlawblog.org/?cat=18>
"'A Big, Big Mistake' on Voter ID" <http://electionlawblog.org/?p=65437>
Posted onSeptember 15, 2014 7:14 am
<http://electionlawblog.org/?p=65437>byRick Hasen
<http://electionlawblog.org/?author=3>
Jesse Wegman
<http://takingnote.blogs.nytimes.com/2014/09/15/a-big-big-mistake-in-voter-id-case/?_php=true&_type=blogs&_r=0>on
Wisconsin voter id decision, in NYT's "Taking Note" Ed blog, quoting my
blog post from Friday:
Rick Hasen, a professor of election law at the University of
California, Irvine, called the decision a "big, big mistake
<http://electionlawblog.org/?p=65399>" on his blog. He noted
<http://electionlawblog.org/?p=65382> that the state has already
mailed out nearly 12,000 absentee ballots that do not include the
photo-ID requirement. "It is hard enough to administer an election
with set rules --- much less to change the rules midstream."
Mr. Hasen predicted that the appeals court's ruling itself could
well be stayed by the Supreme Court on the grounds that last-minute
changes risk introducing electoral chaos. In a 2006 ruling
<https://supreme.justia.com/cases/federal/us/549/06-375/>, which the
appeals panel did not cite, the Supreme Court said: "Court orders
affecting elections, especially conflicting orders, can
themselves result in voter confusion and consequent incentive
to remain away from the polls. As an election draws closer, that
risk will increase."
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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>
"More on the 'Criminalization of Politics': Constituent Service and
the McDonnell Case" <http://electionlawblog.org/?p=65435>
Posted onSeptember 15, 2014 7:05 am
<http://electionlawblog.org/?p=65435>byRick Hasen
<http://electionlawblog.org/?author=3>
Important Bob Bauer post.
<http://www.moresoftmoneyhardlaw.com/2014/09/criminalization-politics-constituent-service-mcdonnell-case/>
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Posted inbribery <http://electionlawblog.org/?cat=54>,campaign finance
<http://electionlawblog.org/?cat=10>
--
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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