[EL] KSSEN breaking news/much more news
Rick Hasen
rhasen at law.uci.edu
Thu Sep 18 15:11:04 PDT 2014
Breaking: In #KSSEN, Court Rules Taylor Off the Ballot: Analysis
<http://electionlawblog.org/?p=65645>
Posted onSeptember 18, 2014 2:43 pm
<http://electionlawblog.org/?p=65645>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the opinionhere
<http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20140918/112431.pdf>.
Here are my thoughts:
1. This is a unanimous, per curiam (unsigned) opinion from the Court
holding that Democrat Chad Taylor's name will not be on the ballot in
the Kansas Senate race. This has political implications, as it will
likely cause more Democrats to vote for independent Greg Orman instead
of incumbent Republican Pat Roberts. It puts the seat, and perhaps the
Senate, up for grabs. But there's a wrinkle. There is still possible
Court action now to force Democrats to name a new candidate to replace
Taylor on the ballot.
2. The Court took the narrowest path to reach this decision.
Despitemany arguments <http://electionlawblog.org/?p=65498>offeredby
the partie <http://electionlawblog.org/?p=65459>s, the court took a
very narrow textual approach. It found that Taylor's letter complied
with the literal requirement of the statute, because he said he was
withdrawing "pursuant to" the relevant section. The court concluded he
"incorporated by reference" the standard that he was incapable of serving.
3. In ruling this way, the court avoided amessy factual
dispute<http://electionlawblog.org/?p=65309>over whether Taylor was
promised by election officials that his letter was sufficient. The
court also sidestepped some uncertain legislative history as well as
uncertain application of the doctrine of substantial compliance. It was
about as simple and straightforward a way to decide the case as one
could imagine. But...
4. If the court was going to issue such a simple, straightforward
unanimous ruling, why did it take so long? No doubt more was going on
behind the scenes than this simple ruling. We probably will never know
what was going on in judicial chambers. A cynic suggested to me the
court delayed so much so there would be no time to litigate over whether
Democrats have to name a replacement on the ballot.
5. The big unanswered question is what happens to the other statute
which appears to require Democrats to replace a withdrawn candidate on
the ballot. The court totally sidesteps the issue, noting that "Nor do
we need to act on Kobach's allegation that a ruling for Taylor would
require the Kansas Democratic Party State Committee to name his
replacement nominee per K.S.A. 25-3905. The Kansas Democratic Party is
not a party to this original action, and this court does not issue
advisory opinions."
6. This leaves the ball in Kobach's court. He can sue the Democrats to
try to force them to name someone. But how could he sue and have
Democrats hold a convention within the day before ballots are to be
printed. It will be hard for Kobach to say the printing can wait. In
this way we have the ideal situation for the Democrats, what I've termed
the "Reverse Torricelli: <http://electionlawblog.org/?p=65319>"
Democrats get to have the candidate they want removed from the ballot
without having to name a replacement. It is sure to infuriate Republicans.
7. This whole mess could have been avoided if Taylor would have done a
better job with his letter, or if Kobach did not push the issue---and
the evidence that his office had accepted non-complying letters before
was damning to his case. The Court noted that Kobach submitted those
letters after the deadline for filings, but seemed to praise him for
doing it out of an "ethical obligation" to the court. In other words, if
he just sat on letters his office just found which showed the
inconsistent treatment of withdrawal letters in the past, it would have
been deceptive to the court.
8. So what happens next depends upon Kobach's next move. He has said he
would sue Democrats to get them to name a replacement, but given the
time frame now, and the fact that it may not be in Republicans'
political interests to let this fester any more, this may be the end.
[*Update*: Byran Lowryreports
<https://twitter.com/BryanLowry3/status/512723360870981632>: "Kobach
says Dem chair has been informed that she has 8 days to select a
replacement candidate.#ksleg
<https://twitter.com/hashtag/ksleg?src=hash>#KSSen
<https://twitter.com/hashtag/KSSen?src=hash>#kseln
<https://twitter.com/hashtag/kseln?src=hash>." It is not clear how the
8 days fits into the existing ballot printing timeframe.] [Second
update: Kobach ismoving the mailing to 8/27
<https://twitter.com/BryanLowry3/status/512722314765406209>. What does
this say about what he represented to court about deadlines? Wow wow wow.]
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
On 7th Cir WI Voter ID: "Down to the Haywire in the Badger State"
<http://electionlawblog.org/?p=65643>
Posted onSeptember 18, 2014 2:35 pm
<http://electionlawblog.org/?p=65643>byRick Hasen
<http://electionlawblog.org/?author=3>
Jon Sherman
<http://www.huffingtonpost.com/jon-sherman/down-to-the-haywire-in-th_b_5845630.html>:
The court, however, was completely mistaken when it wrote that
Wisconsin's voter ID law is "materially identical" to the Indiana
law upheld by the Supreme Court in Crawford v. Marion County
Election Board. This is wrong in four ways.
First, Indiana's ID law only applies to in-person voting, while
Wisconsin's applies to in-person and absentee ballots. In November
2012, 664,597 Wisconsin voters (21.57%) cast absentee ballots.
Alabama is the only other state that requires photo ID from absentee
voters; even Texas's draconian voter ID law does not.
Second, Indiana accepts any photo ID that contains a name, bears an
expiration date, and was issued by the U.S. or Indiana, while
Wisconsin only accepts a Wisconsin driver's license or ID card,
military ID, U.S. Passport, certificate of naturalization which is
no more than 2 years old, tribal ID, and certain student ID cards.
Third, Indiana permits indigent voters to sign an affidavit instead
of presenting an ID.
Finally, Wisconsin only accepts student IDs if they contain a
signature, an issuance date, and an expiration date no later than
two years after the election. While the University of Wisconsin
System has taken steps to have their schools issue separate voting
IDs to students, it is unclear whether other private and technical
colleges have taken similar steps. In Indiana, a student ID only
needs to have an expiration date.
Not only is Indiana's ID law more lenient than Wisconsin's, but the
Supreme Court's decision in Crawford did not address the same legal
issues. There was no Voting Rights Act claim in Crawford. Moreover,
the Crawford plaintiffs' counsel had assembled almost zero evidence
of actual harm to voters, whereas the plaintiffs here have assembled
an extensive record documenting ID-less voters who cannot vote or
will experience great difficulty in obtaining this license to vote.
What the record does not contain is any evidence that the DMV's
untested birth verification procedure will work. The plaintiffs
needed to show copious evidence to win their injunction, but the
state secured this win on the court's blind faith.
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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>
#KSSEN Decision to Be Released Around 5 PM Kansas Time
<http://electionlawblog.org/?p=65641>
Posted onSeptember 18, 2014 2:04 pm
<http://electionlawblog.org/?p=65641>byRick Hasen
<http://electionlawblog.org/?author=3>
Stay tuned....
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Voter Registration Modernization Bill Would Improve Outdated
Election System" <http://electionlawblog.org/?p=65638>
Posted onSeptember 18, 2014 11:08 am
<http://electionlawblog.org/?p=65638>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release
<http://www.brennancenter.org/press-release/voter-registration-modernization-bill-would-improve-outdated-election-system>:
"U.S. Sen. Kirsten Gillibrand (D-N.Y.) today introduced the Voter
Registration Modernization Act, which would provide national standards
for secure and accessible online registration and help bring America's
election system into the 21st century."
Did I ever mention I went to law school with the Senator? I don't think
I've seen her since law school graduation (1991).
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter registration
<http://electionlawblog.org/?cat=37>
Brennan Center Files 4th Cir. Amicus Brief in NC Voting Case
<http://electionlawblog.org/?p=65636>
Posted onSeptember 18, 2014 11:06 am
<http://electionlawblog.org/?p=65636>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.brennancenter.org/sites/default/files/legal-work/North_Carolina_Amicus_Brief_091714.pdf>.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Insider Traders in Congress May Soon Be Revealed by the Bipartisan
'Political Intelligence Transparency Act'"
<http://electionlawblog.org/?p=65634>
Posted onSeptember 18, 2014 10:37 am
<http://electionlawblog.org/?p=65634>byRick Hasen
<http://electionlawblog.org/?author=3>
Craig Holman statement
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=4287>at
Public Citizen.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Why Does Georgia Keep Going After Black Voters?"
<http://electionlawblog.org/?p=65632>
Posted onSeptember 18, 2014 10:24 am
<http://electionlawblog.org/?p=65632>byRick Hasen
<http://electionlawblog.org/?author=3>
Spencer Woodman
writes<http://www.vice.com/read/why-does-the-state-of-georgia-keep-going-after-black-voters-918>for
VICE.
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Controversial CO SOS Gessler Complains of Partisanship, Gridlock in
Election Administration <http://electionlawblog.org/?p=65630>
Posted onSeptember 18, 2014 10:16 am
<http://electionlawblog.org/?p=65630>byRick Hasen
<http://electionlawblog.org/?author=3>
This Electionline Weekly
<http://www.electionline.org/index.php/electionline-weekly>interview is
sure to get some attention:
*/What was the most difficult time/issue you have faced (elections
wise of course) as secretary?/*
As our states' chief election officials, secretaries of state
enforce election laws. We're tasked with ensuring only eligible
voters cast ballots, and the eligibility requirements are few:
citizens, 18 or older, and Colorado residents. Instead of relying on
a loose honor system, we decided to verify citizenship, just like we
check against the other two requirements. But the gridlock,
partisanship, and hysteria surrounding this issue is disappointing.
Just getting the federal government to comply with federal law and
provide us with the information we needed was a big challenge. We
got the runaround from various levels of the federal bureaucracy for
over a year before we finally worked out an agreement to verify
citizenship data. This helped pave the way for other states to also
verify data. But it amazes me that certain partisans continue to
oppose enforcement of basic, uncontroversial laws that protect
election integrity.
It also disappointing that people frequently throw common sense out
the door when it comes to election integrity. During the 2012
election cycle, a reporter from Mexico City interviewed me. When he
disapprovingly focused on election integrity issues like photo
identification and citizenship, I told him that I merely wanted to
implement something like the Mexican system in Colorado. Mexico has
strong integrity protections, which have helped improve the fairness
and integrity of its elections. But he thought that Hispanic voters
were fundamentally different than Mexican voters, and that while
photo identification was fine for Mexico, it was somehow terrible in
the United States. I strongly disagreed --- fair and honest voting
systems are a universal aspiration, regardless of race, ethnicity,
or country of origin.
Protecting the sanctity of our voter rolls shouldn't be a wedge
issue. In fact, what we've seen is that when voters trust the system
and trust the results, turnout and participation improves. That
should be our goal. If voters don't trust the system, it makes
little difference how easy it is to get a ballot.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"Less than 1 percent of voter registration forms turned in by a
Georgia group accused of fraud are actually fraudulent"
<http://electionlawblog.org/?p=65627>
Posted onSeptember 18, 2014 8:53 am
<http://electionlawblog.org/?p=65627>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/govbeat/wp/2014/09/18/less-than-1-percent-of-voter-registration-forms-turned-in-by-a-georgia-group-accused-of-fraud-are-actually-fraudulent/>:
Less than 1 percent of voter registration forms turned in by a
Georgia group accused of voter fraud are actually fraudulent, the
Georgia's secretary of state's office announced Wednesday.
There were 25 confirmed forgeries found in voter registration
documents, Jared Thomas, spokesman for Secretary of State Brian Kemp
(R), told The Washington Post. That's out of more than 85,000 voter
registration forms turned in by the New Georgia Project and Third
Sector Development.
"We believe we've identified 25 felonies, and we take that very
seriously," Thomas said.
State Rep. Stacey Abrams (D) who heads New Georgia Project said the
group flagged potential forms that were not completed, but was
required by law to turn in every form someone worked on. "We don't
get to decide if something is good or bad," she told The Post last
week
<http://www.washingtonpost.com/blogs/govbeat/wp/2014/09/10/georgias-gop-secretary-of-state-investigates-allegations-of-voter-fraud-by-democrat-led-group/>.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter registration
<http://electionlawblog.org/?cat=37>
"Overtime: Five Reasons Senate Control Might Not Be Decided on
Election Day" <http://electionlawblog.org/?p=65625>
Posted onSeptember 18, 2014 8:50 am
<http://electionlawblog.org/?p=65625>byRick Hasen
<http://electionlawblog.org/?author=3>
Oh boy
<http://www.centerforpolitics.org/crystalball/articles/overtime-five-reasons-senate-control-might-not-be-decided-on-election-day/>.
Share
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Posted incampaigns <http://electionlawblog.org/?cat=59>,recounts
<http://electionlawblog.org/?cat=50>
"McDonnell Appeal Begs Question: What Is Corruption?"
<http://electionlawblog.org/?p=65623>
Posted onSeptember 18, 2014 8:48 am
<http://electionlawblog.org/?p=65623>byRick Hasen
<http://electionlawblog.org/?author=3>
Important piece
<http://blogs.rollcall.com/beltway-insiders/gov-mcdonnell-appeal-begs-question-what-is-corruption/>from
Eliza Newlin Carney.
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Posted inbribery <http://electionlawblog.org/?cat=54>,campaign finance
<http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
"35 Groups Write to House Leadership for Debate/Vote on Democracy
for All Amendment" <http://electionlawblog.org/?p=65621>
Posted onSeptember 18, 2014 8:13 am
<http://electionlawblog.org/?p=65621>byRick Hasen
<http://electionlawblog.org/?author=3>
Read
<http://www.commoncause.org/policy-and-litigation/letters-to-government-officials/National-091714-letter-to-house-leaders.pdf>.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"With mayor's race looming, Philly ethics board takes on big
spenders" <http://electionlawblog.org/?p=65619>
Posted onSeptember 18, 2014 7:34 am
<http://electionlawblog.org/?p=65619>byRick Hasen
<http://electionlawblog.org/?author=3>
News
<http://www.newsworks.org/index.php/local/item/72883-mayors-race-looms-ethics-board-takes-on-big-spenders?linktype=hp_topstory>
Draft regulations
<http://www.phila.gov/ethicsboard/PDF/BOERegNo1_CampaignFinance_ProposedAmendmentPostedRecordsDept_7.17.14.pdf>
Adam Bonin comment
<http://www.scribd.com/doc/240169517/Comments-to-Proposed-Regulation-No-1-9-17-2014>s.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Five Signs the Dark-Money Apocalypse Is Upon Us"
<http://electionlawblog.org/?p=65617>
Posted onSeptember 18, 2014 7:18 am
<http://electionlawblog.org/?p=65617>byRick Hasen
<http://electionlawblog.org/?author=3>
Andy
Kroll<http://www.motherjones.com/politics/2014/09/dark-money-2014-elections-house-senate>for/Mother
Jones/:
A milestone passed in late August: According to the Center for
Responsive Politics
<http://www.opensecrets.org/news/2014/08/dark-money-hits-50-million-most-still-to-come/>,
dark-money groups---nonprofits created under the 501(c)(4)
<http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Social-Welfare-Organizations> and
(c)(6)
<http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Business-Leagues> sections
of the US tax code---had by then surpassed $50 million on elections.
These groups, unlike political action committees and candidates'
campaigns, do not have to disclose their donors. So some of the key
players looking to sway election results remain in the shadows. This
was a new record and seven times the amount of dark money spent by
the same point on House and Senate elections in 2010. And this
week, dark-money spending for the 2014 cycle reached $63
million---just shy of the $69 million in dark money spent during the
/entire/ 2008 presidential election.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"5 States Put Voting Reform to the Voters"
<http://electionlawblog.org/?p=65615>
Posted onSeptember 18, 2014 7:14 am
<http://electionlawblog.org/?p=65615>byRick Hasen
<http://electionlawblog.org/?author=3>
Governing reports
<http://www.governing.com/topics/elections/gov-election-reform-ballot-measures.html>.
Share
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Posted inelection administration <http://electionlawblog.org/?cat=18>
"Native Voting Rights" <http://electionlawblog.org/?p=65613>
Posted onSeptember 18, 2014 7:07 am
<http://electionlawblog.org/?p=65613>byRick Hasen
<http://electionlawblog.org/?author=3>
Matthew Fletcher has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486824>on SSRN.
American Indians' status as citizens of federal, state, and tribal
nations has been riddled with ambiguity since the Founding of the
American Republic. This short paper surveys the history and law of
Native political rights in the American constitutional structure
before concluding with a discussion about special problems in tribal
elections.
Share
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Posted invoting <http://electionlawblog.org/?cat=31>
"Amicus Brief: Public Citizen v. FEC In Support of the Defendant"
<http://electionlawblog.org/?p=65611>
Posted onSeptember 18, 2014 7:04 am
<http://electionlawblog.org/?p=65611>byRick Hasen
<http://electionlawblog.org/?author=3>
Read
<http://www.campaignfreedom.org/2014/09/18/amicus-brief-public-citizen-v-fec-in-support-of-the-defendant/> from
CCP.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65611&title=%E2%80%9CAmicus%20Brief%3A%20Public%20Citizen%20v.%20FEC%20In%20Support%20of%20the%20Defendant%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>
"McCutcheon v. FEC and the Supreme Court's Return to Buckley"
<http://electionlawblog.org/?p=65609>
Posted onSeptember 18, 2014 7:01 am
<http://electionlawblog.org/?p=65609>byRick Hasen
<http://electionlawblog.org/?author=3>
Allen Dickerson has writtenthis article
<http://object.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2014/9/dickerson.pdf>for
the/Cato Supreme Court Review/.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
"Political Reform Act turns 40 amid burst of campaign finance
changes" <http://electionlawblog.org/?p=65607>
Posted onSeptember 18, 2014 6:57 am
<http://electionlawblog.org/?p=65607>byRick Hasen
<http://electionlawblog.org/?author=3>
SacBee reports
<http://www.sacbee.com/2014/09/17/6712680/am-alert-political-reform-act.html>.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Sheldon Adelson cracks open checkbook for GOP"
<http://electionlawblog.org/?p=65605>
Posted onSeptember 18, 2014 6:56 am
<http://electionlawblog.org/?p=65605>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.politico.com/story/2014/09/sheldon-adelson-republican-fundraising-111088.html?hp=f3>:
"Las Vegas casino mogul Sheldon Adelson has donated $10 million to a
Karl Rove-backed outfit boosting Republican Senate candidates and
promised a similar amount to an allied group focused on House races,
POLITICO has learned."
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Chapin on Hasen on Uniformity in Election Administration
<http://electionlawblog.org/?p=65602>
Posted onSeptember 18, 2014 6:53 am
<http://electionlawblog.org/?p=65602>byRick Hasen
<http://electionlawblog.org/?author=3>
Doug Chapincomments
<http://blog.lib.umn.edu/cspg/electionacademy/2014/09/rick_hasen_on_uniformity_in_el.php>on
my new draft paper, When is Uniformity of People, Not Counties,
Appropriate in Election Administration? The Cases of Early and Sunday
Voting <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497192>.
Doug writes:
This is both a timely and very important contribution to a question
that is increasingly of interest to election officials, policymakers
and litigators alike. Thanks to Rick for drafting it as well as
sharing it with the field. I would be willing to bet that this piece
will end up being cited (approvingly and disapprovingly) by
combatants in Ohio and elsewhere and may end up as one basis for
court ruling on this subject in 2014 and beyond.
As Rick likes to remind me he said first, "stay tuned" ...
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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>
--
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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