[EL] ELB News and Commentary 9/26/14
Rick Hasen
rhasen at law.uci.edu
Fri Sep 26 16:23:32 PDT 2014
"More than 22,000 registrations stalled over citizenship papers"
<http://electionlawblog.org/?p=65952>
Posted onSeptember 26, 2014 4:21 pm
<http://electionlawblog.org/?p=65952>byRick Hasen
<http://electionlawblog.org/?author=3>
The latest
<http://www.kansas.com/opinion/opn-columns-blogs/now-consider-this/article2260523.html>from
Kansas.
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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>,voter registration
<http://electionlawblog.org/?cat=37>
"Voter-ID laws continue to wreak havoc"
<http://electionlawblog.org/?p=65950>
Posted onSeptember 26, 2014 4:07 pm
<http://electionlawblog.org/?p=65950>byRick Hasen
<http://electionlawblog.org/?author=3>
Steve Benen writes.
<http://www.msnbc.com/rachel-maddow-show/voter-id-laws-continue-wreak-havoc?cid=eml_mra_20140926>
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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>
"Court Returns Inquiry Into Walker's Finances to Wisconsin"
<http://electionlawblog.org/?p=65948>
Posted onSeptember 26, 2014 3:35 pm
<http://electionlawblog.org/?p=65948>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/2014/09/25/us/politics/court-returns-inquiry-into-walkers-finances-to-wisconsin.html?ref=politics&_r=0>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
"NC residents mailed incorrect voter registration information"
<http://electionlawblog.org/?p=65946>
Posted onSeptember 26, 2014 3:33 pm
<http://electionlawblog.org/?p=65946>byRick Hasen
<http://electionlawblog.org/?author=3>
News and Observer
<http://www.newsobserver.com/2014/09/25/4181779_voters-mailed-incorrect-information.html?sp=/99/102/105/135/&rh=1>:
Hundreds of North Carolinians -- and one cat -- have received
incorrect voter registration information, according to the N.C.
State Board of Elections.
The information -- an "official application form" -- was sent by
Americans for Prosperity, a national conservative group with a state
chapter based in Raleigh.
Since then, hundreds of people who received the forms have called
and complained to the State Board of Elections, said Joshua Lawson,
a public information officer for the board.
AFP has been involved insuch shenanigans
<http://electionlawblog.org/?p=21212>before, always claiming it was an
honest mistake.
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Posted inchicanery <http://electionlawblog.org/?cat=12>
WI Voter ID Opponents Mulling Emergency Motion to #SCOTUS after 7th
Circuit Divides 5-5 <http://electionlawblog.org/?p=65944>
Posted onSeptember 26, 2014 3:30 pm
<http://electionlawblog.org/?p=65944>byRick Hasen
<http://electionlawblog.org/?author=3>
So reports theJournal Sentinel.
<http://www.jsonline.com/news/statepolitics/bid-to-get-full-appeals-court-hearing-on-voter-id-falls-1-vote-short-b99359793z1-277211831.html>
I explained earlier why I expect <http://electionlawblog.org/?p=65892>a
petition to SCOTUS.
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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>
"Husted wants Supreme Court to back Ohio's early voting cuts"
<http://electionlawblog.org/?p=65942>
Posted onSeptember 26, 2014 3:28 pm
<http://electionlawblog.org/?p=65942>byRick Hasen
<http://electionlawblog.org/?author=3>
MSNBC
<http://www.msnbc.com/msnbc/ohio-republican-asks-supreme-court-uphold-cuts-early-voting>:
If the Supreme Court --- no friend of voting rights considering its
recent record --- decides to intervene this time, it could be bad
news for minority voters. This potential case could even give the
court a chance to narrow the scope
<http://www.msnbc.com/msnbc/conservatives-prepare-finish-voting-ri> of
the Voting Rights Act (VRA) with respect to other restrictions like
voter IDs. Despite the district court's ruling, the case that the
cuts violate the VRA is by no means open and shut.
Rick Hasen, a prominent election law scholar at the University of
California, Irvine, who is often skeptical of voting restrictions,
has called <http://electionlawblog.org/?p=65853> the cuts "not all
that burdensome." He added that "If 28 days is unconstitutional and
a voting rights violation, what does this say about places like New
York, which offer no early voting?"
Not everyone agrees. Dan Tokaji, an election law expert at Ohio
State University, wrote on Hasen's blog Thursday
<http://electionlawblog.org/?p=65886> that the panel's ruling
upholding the injunction "faithfully applies existing law to the
evidence admitted in the district court, maintaining the
established period for same day registration and early voting."
And State Sen. Nina Turner, a Democrat who is running against Husted
this year, slammed the secretary of state's decision to appeal to
the Supreme Court.
"His decision to continue litigating just days before early voting
is set to begin is irresponsible, outrageous, and a failure of his
duty as Ohio's chief elections officer," Turner said in a statement.
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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>
"Was 'Wisconsin Poll Watcher Militia' Really Just First-Rate
Trolling?" <http://electionlawblog.org/?p=65940>
Posted onSeptember 26, 2014 3:25 pm
<http://electionlawblog.org/?p=65940>byRick Hasen
<http://electionlawblog.org/?author=3>
TPM reports.
<http://talkingpointsmemo.com/muckraker/wisconsin-poll-watcher-militia-facebook>
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Posted inchicanery <http://electionlawblog.org/?cat=12>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"J.H. Snider and Beverly Clay: R.I. handbook shows blatant bias"
<http://electionlawblog.org/?p=65938>
Posted onSeptember 26, 2014 3:23 pm
<http://electionlawblog.org/?p=65938>byRick Hasen
<http://electionlawblog.org/?author=3>
Providence Journal oped.
<http://www.providencejournal.com/opinion/commentary/20140925-j.h.-snider-and-beverly-clay-r.i.-handbook-shows-blatant-bias.ece>
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Posted indirect democracy <http://electionlawblog.org/?cat=62>
"Why Won't Democrats Talk About Obama's Fundraising?The president
and his party are less than transparent about campaign cash."
<http://electionlawblog.org/?p=65936>
Posted onSeptember 26, 2014 3:22 pm
<http://electionlawblog.org/?p=65936>byRick Hasen
<http://electionlawblog.org/?author=3>
Jim Oliphant
<http://www.nationaljournal.com/white-house/why-won-t-democrats-talk-about-obama-s-fundraising-20140923>for
National Journal.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Fair Fight on Clean Elections" <http://electionlawblog.org/?p=65934>
Posted onSeptember 26, 2014 3:21 pm
<http://electionlawblog.org/?p=65934>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Miller AZ Republicoped
<http://www.azcentral.com/story/opinion/2014/09/25/fight-fair-on-clean-elections/16231783/>:
No reform, including Clean Elections, will turn every election into
a nail-biter. To expect otherwise is short-sighted when the voter
composition of many districts effectively assures the outcome before
polls ever open.
But considering the totality of the available evidence, it is clear
that Arizona's elections are actually more competitive, feature
closer interaction between candidates and voters, and see higher
voter participation than they did before. Arizonans certainly have
every right to decide whether these results are worthy of their tax
dollars, but they should make that decision with all available
evidence presented.
Whether by ignorance or intent, Wachob's column falls far short of
this standard.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Judge orders state to add language help for voters in Alaska
villages" <http://electionlawblog.org/?p=65931>
Posted onSeptember 26, 2014 3:18 pm
<http://electionlawblog.org/?p=65931>byRick Hasen
<http://electionlawblog.org/?author=3>
Alaska Dispatch Newsreports
<http://www.adn.com/article/20140922/judge-orders-state-add-language-help-voters-alaska-villages>.
Morehere
<http://abcnews.go.com/Politics/wireStory/judge-rules-alaska-native-voting-rights-case-25679083>andhere.
<http://www.ktva.com/judge-gives-state-its-marching-orders-on-helping-native-voters-439/>
You can read the district court's interim remedial orderat this link
<http://electionlawblog.org/wp-content/uploads/Interim-Remedial-Order.pdf>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
"District Court Urged to Reject Challenge to Colorado Disclosure
Provisions for Electioneering Communications"
<http://electionlawblog.org/?p=65929>
Posted onSeptember 26, 2014 3:10 pm
<http://electionlawblog.org/?p=65929>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2616:september-25-2014-district-court-urged-to-reject-challenge-to-colorado-disclosure-provisions-for-electioneering-communications&catid=63:legal-center-press-releases&Itemid=61>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
In #MSSEN, Cochran's Brief Has Been Filed
<http://electionlawblog.org/?p=65927>
Posted onSeptember 26, 2014 3:08 pm
<http://electionlawblog.org/?p=65927>byRick Hasen
<http://electionlawblog.org/?author=3>
No, really.
<http://nmisscommentor.com/politics/cochrans-brief-has-been-filed/>This
is not fully resolved yet.
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Posted inrecounts <http://electionlawblog.org/?cat=50>
"Rethinking District of Columbia Venue in Voting Rights Preclearance
Actions" <http://electionlawblog.org/?p=65925>
Posted onSeptember 26, 2014 3:05 pm
<http://electionlawblog.org/?p=65925>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Solimine has writtenthis Essay
<http://georgetownlawjournal.org/glj-online/rethinking-district-of-columbia-venue-in-voting-rights-preclearance-actions/>for
the /Georgetown Law Journal/. Here is the beginning:
In /Shelby County v. Holder /the Supreme Court held that the
preclearance provision of the 1965 Voting Rights Act (VRA) was
unconstitutional as presently constituted. Section 5 of the VRA
requires certain states, mainly in the Deep South, to preclear
certain changes to their election laws before they can go into
effect. These states must either seek approval from the Department
of Justice (DOJ), or file a declaratory judgment action in the
United States District Court for the District of Columbia. If a
state pursues the latter option, a three-judge district court is
convened, and a direct appeal to the Supreme Court is available.
Section 4 sets out criteria to determine which jurisdictions are
subject to Section 5, and a majority of the Court held in /Shelby
County/ that the coverage formula in Section 4 was unconstitutional
on federalism grounds, as it was based on decades-old voting data
and unfairly singled out a small number of states for disparate
treatment.
The majority permitted Congress to revamp and update the Section 4
criteria in response to the decision by tying it to current evidence
of voting discrimination in the states. Following /Shelby County/,
an avalanche of scholarly commentary appeared on the
constitutionality of Section 5 and various possible legislative
fixes to the statute. Responding to the Court's invitations,
Congress has introduced bills to adjust Section 4 and other aspects
of the VRA. What is missing from this commentary and these
proposals, however, is virtually any discussion of the geographic
limitation to the litigation option to apply for preclearance. That
is, despite the federalism concerns raised by lodging exclusive
venue of such actions in the federal courts for the D.C., neither
the Court nor commentators have directly addressed any legal or
policy problems with that exclusive venue. This inattention is
probably due in large part to the plaintiffs and the numerous amici
in /Shelby County/ not having explicitly raised the exclusive D.C.
venue of preclearance litigation as a federalism concern.
This Essay proceeds as follows: Part II summarizes the history and
controversies attending the passage of Section 5, focusing on the
placement of exclusive venue under that provision in the District of
Columbia. The same controversy concerned early litigation under that
provision and the first two reauthorizations of Section 5, but it
eventually dissipated. Part III argues that a reinvigoration of that
debate is appropriate for several reasons. The original aims for the
exclusive venue are no longer sound today; there is no present need
for this type of specialized and exclusive judicial venue; and the
jurisprudence on Section 5, should Congress statutorily reauthorize
it in the wake of /Shelby County/, could benefit from the normal
application of venue rules, which would permit the percolation of
issues in federal courts throughout the country. Part IV concludes
this Essay.
I look forward to reading this. Michael leads the field in his writing
on election law procedure.
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Posted inDepartment of Justice
<http://electionlawblog.org/?cat=26>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"News Analysis: Elections administrators deal with legal decisions"
<http://electionlawblog.org/?p=65922>
Posted onSeptember 26, 2014 3:02 pm
<http://electionlawblog.org/?p=65922>byRick Hasen
<http://electionlawblog.org/?author=3>
That's the lead story in this week'sElectionline Weekly
<http://www.electionline.org/index.php/electionline-weekly>.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
"Teaching Election Law" <http://electionlawblog.org/?p=65920>
Posted onSeptember 26, 2014 3:00 pm
<http://electionlawblog.org/?p=65920>byRick Hasen
<http://electionlawblog.org/?author=3>
Nick Stephanopoulos has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2501191>on SSRN
(forthcoming, /Election Law Journal/). Here is the abstract:
In the last couple years, new editions of the two most prominent
election law casebooks have been released, and one entirely new
casebook has been published. This is an opportune moment, then, both
to review the volumes and to assess the state of the field.
Fortunately, both are strong. All of the casebooks are
well-organized, thorough in their coverage, and full of insightful
commentary. And the field, at least as presented by the volumes, is
impressively confident in its substantive and methodological
choices. There is a high level of consensus as to both the subject
areas that election law should include and the analytical methods
that it should employ.
Instructors looking to select a casebook thus are faced with an
embarrassment of riches. Because all of the volumes are excellent,
my suggestion is that instructors make their choice based on their
own substantive and methodological inclinations. Those who are most
interested in representational issues and in doctrinal context
should select Issacharoff, Karlan, and Pildes. Those who wish to
emphasize campaign finance and empirical political science should
choose Lowenstein, Hasen, and Tokaji. And those who want to focus on
democratic theory, history, and an unusually wide array of sources
should pick Gardner and Charles. There is no going wrong here.
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Posted inpedagogy <http://electionlawblog.org/?cat=23>
"Supreme Court candidates square off in Missoula"
<http://electionlawblog.org/?p=65918>
Posted onSeptember 26, 2014 2:58 pm
<http://electionlawblog.org/?p=65918>byRick Hasen
<http://electionlawblog.org/?author=3>
Lots of talk
<http://www.greatfallstribune.com/story/news/local/2014/09/23/supreme-court-candidates-square-missoula/16135685/>of
campaign finance.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,judicial
elections <http://electionlawblog.org/?cat=19>
In #KSSEN, KS Attorney General Urges Court to Require Democrats to
Name a U.S. Senate Candidate <http://electionlawblog.org/?p=65915>
Posted onSeptember 26, 2014 2:55 pm
<http://electionlawblog.org/?p=65915>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read thebrief here.
<http://electionlawblog.org/wp-content/uploads/ks-ag.pdf>
Interestingly, the brief does not mention the serious First Amendment
issues with requiring Democrats to name a candidate, nor the virtual
impossibility of the party holding a convention in time.
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
"Can political party super-PACS reduce polarization?"
<http://electionlawblog.org/?p=65913>
Posted onSeptember 26, 2014 2:50 pm
<http://electionlawblog.org/?p=65913>byRick Hasen
<http://electionlawblog.org/?author=3>
Rick Pildes
blogs<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/09/26/can-political-party-super-pacs-reduce-polarization/>at
The Monkey Cage.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Citizens United Files Emergency 10th Circuit Motion to Stop
Disclosure of Its Funders <http://electionlawblog.org/?p=65910>
Posted onSeptember 26, 2014 2:48 pm
<http://electionlawblog.org/?p=65910>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read themotion here.
<http://electionlawblog.org/wp-content/uploads/cu-emergency-ptn.pdf>
See alsomy coverage <http://electionlawblog.org/?p=65745>of the district
court's order.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Remarks by Attorney General Eric Holder at the Congressional Black
Caucus Panel Discussion on Voting Rights"
<http://electionlawblog.org/?p=65908>
Posted onSeptember 26, 2014 2:45 pm
<http://electionlawblog.org/?p=65908>byRick Hasen
<http://electionlawblog.org/?author=3>
A snippet
<http://www.justice.gov/opa/speech/remarks-attorney-general-eric-holder-congressional-black-caucus-panel-discussion-voting>:
As you're discussing, through the unrelenting efforts of the Justice
Department's Civil Rights Division -- under the leadership of Acting
Assistant Attorney General Molly Moran, from whom you'll be hearing
this afternoon -- my colleagues and I are acting aggressively to
ensure that /every /American can exercise his or her right to
participate in the democratic process, unencumbered by unnecessary
restrictions that discourage, discriminate, or disenfranchise.
We're advancing this fight -- as we speak -- along a number of
fronts in communities across the nation. This work has been a top
priority since the moment I took office, nearly six years ago. And
these efforts show significant promise.
For instance -- just this week -- a federal appeals court in
Cincinnati held that plaintiffs challenging the State of Ohio's
changes to its in-person early voting rules likely will be able to
prove that those changes are unconstitutional. This outcome was a
milestone in the effort to protect voting rights even after the
Supreme Court's deeply misguided decision in /Shelby County/. The
Justice Department filed an amicus brief supporting those who
brought this challenge under Section 2 of the Voting Rights Act.
The appeals court's ruling means that early voting can begin in Ohio
on Tuesday, just as it had in prior election cycles.
Separately, in Wisconsin, we are carefully monitoring a challenge to
that state's voter identification law. Although we were disappointed by
the 7th Circuit's action two weeks ago to lift the stay and allow the
law to go into effect, we look forward to reviewing the court's
reasoning when it issues an opinion.
In Texas, we are currently awaiting a ruling on the department's
challenge to certain of the state's redistricting maps, which were found
by a federal court to be drawn with discriminatory intent. And closing
arguments concluded on Monday in our challenge to the Texas voter ID law
-- which our experts found would likely disenfranchise hundreds of
thousands of eligible voters who lack the requisite identification.
Finally -- just yesterday -- in a case that's pending in North Carolina,
the 4th Circuit heard oral arguments in a challenge to that state's
voter ID measure. We joined several groups last year in challenging
that law and, although we did not prevail at the preliminary injunction
phase, we believe that the evidence at trial next summer will show a
violation of the Voting Rights Act.
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Posted inDepartment of Justice
<http://electionlawblog.org/?cat=26>,election administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Add the 4th Circuit North Carolina Case as One that May End Up at
#SCOTUS Soon <http://electionlawblog.org/?p=65906>
Posted onSeptember 26, 2014 2:35 pm
<http://electionlawblog.org/?p=65906>byRick Hasen
<http://electionlawblog.org/?author=3>
When one of the judges on the panelasks
<http://www.newsobserver.com/2014/09/25/4180005_appeals-court-hears-nc-voter-suppression.html?sp=/99/102/&rh=1> "How
come the state of North Carolina doesn't want people to vote?" and the
other judges raise serious questions, it is possible we will see North
Carolina's new voting rules put on hold by this 4th Circuit panel.
And if that happens, I have every reason to believe North Carolina would
go to the Supreme Court.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
In #KSSEN, Court Sets Up Hearing to Decide on Taylor Replacement
Before Oct. 1 Kobach Deadline <http://electionlawblog.org/?p=65903>
Posted onSeptember 26, 2014 2:31 pm
<http://electionlawblog.org/?p=65903>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read thecase management order,
<http://electionlawblog.org/wp-content/uploads/2014CV958CaseManagementOrder.pdf> which
includes oral argument on Monday, Sept. 29.
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
Breaking: Justice Kagan Asks OH Early Voting Challengers to File
SCOTUS Response by Tomorrow at 5 <http://electionlawblog.org/?p=65900>
Posted onSeptember 26, 2014 2:28 pm
<http://electionlawblog.org/?p=65900>byRick Hasen
<http://electionlawblog.org/?author=3>
The orde
<http://electionlawblog.org/wp-content/uploads/14A336-9-26-14-Order.pdf>r reads:
IT IS ORDERED that in light of impending deadlines and
uncertainty about when the Sixth Circuit will act on the emergency
petition for rehearing en banc filed by the Ohio Attorney General
and Secretary of State, respondents should file a response to this
application by 5 p.m. on Saturday, September 27, 2014.
This seems prudent. At this point, no matter what the en banc Sixth
Circuit does, there is a decent chance this ends up before the Supreme
Court, and this way it will be teed up for decision in time.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voting
<http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Breaking: 7th Cir. Denies Rehearing En Banc in WI Voter ID Case on
an Equally Divided Vote: Analysis <http://electionlawblog.org/?p=65892>
Posted onSeptember 26, 2014 7:46 am
<http://electionlawblog.org/?p=65892>byRick Hasen
<http://electionlawblog.org/?author=3>
You canread the order
here<http://electionlawblog.org/wp-content/uploads/7th-en-banc.pdf>or below.
On September 12, 2014, a panel of this court stayed the injunction
that the district court had issued. Plaintiffs have filed a motion
for reconsideration, asking the court to vacate the stay and
reinstate the injunction. The panel that issued the stay has voted
to deny the motion for reconsideration. A judge called for a vote on
the request for a hearing en banc. That request is denied by
an equally divided court. Chief Judge Wood and Judges Posner,
Rovner, Williams, and Hamilton voted to hear this matter en banc. In
the coming days, members of the court may file opinions explaining
their votes.
A few points:
1. I expect that the plaintiffs will next try the Supreme Court.
Ordinarily I've been saying thatprogressives need to stay out of the
Supreme Court
<http://www.slate.com/articles/news_and_politics/jurisprudence/2009/09/how_liberals_can_win_by_losing_at_the_roberts_court.html>on
these voting rights cases. But (a) this is a really egregious order
changing the rules midstream in violation of the Supreme Court's own
admonition in the Purcell v. Gonzalez case; and (b) now that theCourt
has before it<http://electionlawblog.org/?p=65883>the Ohio case,
presenting a similar section 2 Voting Rights Act issue but withmuch
worse facts <http://electionlawblog.org/?p=65853>for voting rights
advocates, it would be better for this to be up there at the same time.
So there's not much to lose to get this case before the Court at the
same time.
2. Judge Posner did not recuse, as some thought he might. I would expect
he or others on the side voting for review will explain themselves, and
quickly if the case heads to the Supreme Court. While this is not a
party divide, it does appear mostly to be an ideological divide on the
Court.
3. In the meantime, Wisconsin will continue to work on implementing its
voter id law, and I expect the facts about how hard or easy it is for
people to get id /right now/will be relevant in the Supreme Court's
consideration, should the Court consider the case.
[This post has been updated.]
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Context and Pretext: Why the Courts Were Right to Halt Ohio's Latest
Voting Restrictions <http://electionlawblog.org/?p=65886>
Posted onSeptember 25, 2014 7:27 pm
<http://electionlawblog.org/?p=65886>byDan Tokaji
<http://electionlawblog.org/?author=5>
The Sixth Circuit Court of Appeals yesterday upheld the district court's
ruling in in/NAACP v. Husted
<http://moritzlaw.osu.edu/electionlaw/litigation/NAACP.v.Husted.php>,/which
stopped new restrictions on early voting from taking effect. This
decision is good news for Ohio voters. It faithfully applies existing
law to the evidence admitted in the district court, maintaining the
established period for same day registration and early voting. The
federal courts have done their job by safeguarding voters against
partisan manipulation of election rules. This comment explains why the
ruling is correct and why Ohio's call to stay the existing court order
should be rejected, especially now that same day registration and early
voting are just about to begin.
/NAACP v. Husted/concerns a state law passed earlier this year
eliminating Ohio's limited window for same day registration and early
voting, commonly referred to as "Golden Week."* During this week
(September 30-October 6 this year), voters can simultaneously register
and cast their ballots in person. Tens of thousands of voters voted in
this period the past two presidential elections, with thousands using
the opportunity for same day registration and early voting. The evidence
presented in the lower court showed that African American, low-income,
and homeless voters were more likely to use this voting opportunity. The
Sixth Circuit affirmed the district court's preliminary injunction,
based on its conclusion that the NAACP and other plaintiffs had shown
likely violations of both the Constitution and the Voting Rights Act.
Two aspects of yesterday's ruling have been lost in some of the early
reaction. The first is that/context matters/. Yesterday's ruling was not
written against a blank slate. It instead comes after a now-lengthy
litany of voting restrictions imposed by the Ohio legislature and state
election officials over the past decade. Space doesn't permit me to
recount them all here, but they include restrictions on early voting and
provisional voting that were enjoined during the 2012 election season.
Yesterday's decision from the Sixth Circuit, like that of the district
court, is informed by this recent history. Ohio comes to court with
dirtier hands than just about any other state over the last decade.
Context matters in another, even more important way. The Sixth Circuit,
like the district court, carefully scrutinized the evidence regarding
who actually uses early voting during this period and what the likely
effects of its elimination would be. As the panel made abundantly clear,
the legal question is not whether, in the abstract, voters have a
"right" to early voting 35 days before the election. It is instead
whether,/in the context of Ohio's current election system/, the
elimination of same day registration and early voting violates the Equal
Protection Clause and Voting Rights Act.
The importance of context is a point that every good lawyer and judge
understands, but is sometimes lost on us law professors. We academics
love to debate abstract principles. But in the real world, cases hinge
at least as much on the facts as on the law. And context matters a great
deal.
That is especially true of election administration litigation.
Contextual evidence is key to the legal test that the Supreme Court and
the Sixth Circuit apply in equal protection challenges to voting rules.
That test, now commonly referred to as the/Anderson-Burdick/standard,
requires that the "character and magnitude" of the burden on voting be
weighed against the "precise interests" put forward by the state. This
test was embraced by a majority of Supreme Court justices in
the/Crawford v. Marion County Election Board/case, which upheld
Indiana's voter ID law against a facial challenge.
The language of the constitutional test warrants careful attention.
Courts are supposed to assess not only the magnitude of the burden on
individual voters, but also its/character/-- including whether or not
its discriminatory. The test thus requires courts to consider which
demographic groups will bear the burden of the voting rule being
challenged. The Sixth Circuit engaged in this analysis two years ago
in/Obama for America v. Husted/and/Northeast Ohio Coalition for the
Homeless v. Husted/, in striking down Ohio's restrictions on early
voting and provisional voting. The district court and Sixth Circuit did
in the same in/NAACP v. Husted/. Although the law that is neutral on its
face, the courts found it to have discriminatory effects. Based on an
assessment of the expert evidence, they found that closing the window
for same day registration and early voting would disproportionately
burden African American, poor, and homeless voters
Context also matters for the NAACP's other claim, under Section 2 of the
Voting Rights Act. The text of that statute prohibits voting rules that
"result[]" in the denial or abridgement of the vote on account of race.
The statute also says that courts are supposed to consider the "totality
of circumstances" in making this determination. As the Supreme Court
held in/Thornburg v. Gingles/, a seminal Voting Rights Act case quoted
in yesterday's ruling: "The essence of a § 2 claim is that a certain
electoral law, practice, or structure interacts with social and
historical conditions to cause an inequality in the opportunities
enjoyed by black and white voters to elect their preferred
representatives." Although the precise quantum of evidence required to
prevail on Section 2 vote denial claims is less well established, this
too is a context-specific test.
The district court and the Sixth Circuit did exactly what the law
requires in/NAACP v. Husted/, scrutinizing the evidence regarding Ohio's
latest restrictions on early voting in the context of the state's
history. That record was voluminous, including expert testimony from
respected social scientists documenting that African Americans are
disproportionately heavy users of early voting during the period in
question. The expert testimony also addressed evidence of race
discrimination, such as a statement from the Chair of Franklin County's
Republican Party, cited by the district court, that "we shouldn't
contort the voting process to accommodate the urban---read African--
American---voter turnout machine." That is circumstantial evidence
of/intentional/race discrimination, more than what's required under
Section 2's results-based test.
It's tempting to skim or skip the portions of a judicial decision
describing the evidence and assessing the expert testimony. But the
evidence matters a lot in this type of case. It reveals the effects of a
law, including who's likely to be hurt by it, as well as the real
reasons for its enactment. And in this case, it reveals reasons to be
suspicious -- especially when a state legislature dominated by one party
passes laws closing off opportunities used mostly by voters who tend to
favor the other party. One doesn't have to be a conspiracy theorist to
believe that Ohio's recent early voting restrictions might, just maybe,
be motivated by a desire to gain partisan advantage.
This brings me to the second important point overlooked in the immediate
reaction to the Sixth Circuit's ruling. The record developed in the
district court provided strong reason to believe that the state's stated
justifications for the new restrictions were/pretextual/. The state
claimed that it needed to eliminate Golden Week -- which ends a month
before Election Day -- to prevent fraud. Huh? This is a silly argument,
one that doesn't pass the straight-face test. Ohio counties have a full
month after this period ends to verify the eligibility of applicants.
Although the state's anti-fraud argument isn't plausible, the fact that
it dared to make such an argument speaks volumes about the real
motivations for this law.
Ohio's other main argument for eliminating same day registration and
early voting was to save money. This, of course, is an argument that
might be tried for almost any voting limitation. But based on the
evidence that was presented to the district court and the findings that
court made, the Sixth Circuit properly found that this rationale didn't
withstand carefully scrutiny either. The irony here is that the argument
would have the most force with respect to large, urban counties like
Cuyahoga County (Cleveland area) -- but these are the counties that, in
general, like early voting the most because it takes pressure off the
polls on Election Day. And as the Sixth Circuit pointed out, all
counties are required to be open during this period anyways, so it's
dubious whether there would be much of a burden at all.
So if fraud prevention and saving money weren't the real reasons for
Ohio's new voting restrictions, what/were/the real reasons? I doubt that
anyone who's closely followed the Ohio legislature's actions in recent
years is genuinely stumped by that question. For as in prior years, a
legislature dominated by one party has adopted new rules impeding means
of voting used mostly by voters likely to favor the other party. Does
anyone really believe that Ohio's Republican-dominated legislature would
have restricted same day registration and early voting if Republicans
rather than Democrats were the heaviest users?
To be sure, the Sixth Circuit's ruling doesn't expressly say that
partisan manipulation was at the heart of Ohio's law. But reading
between the lines of yesterday's opinion, like previous court decisions
invalidating other Ohio voter restrictions, it's evident this is what
was really driving the court. Both the Equal Protection Clause and
Voting Rights Act tests allow courts to consider circumstantial evidence
of partisan manipulation. In curbing the most egregious instances,
federal courts -- which are more insulated from partisan politics than
other institutions -- are fulfilling their proper role in our democratic
process.
Of course, the applicable legal standards don't/require/a finding of
intentional partisan manipulation. And I don't think they should. Do we
really want to make federal judges accuse state legislators of being
partisan hacks before invalidating unwarranted restrictions on voting?
Instead, the existing legal standards help courts ferret out laws whose
real purpose and effect is to help the party in power by making it
harder for certain groups of citizens to vote. That's what the Ohio
legislature was doing here -- and, in fact, has repeatedly tried to do
over the last decade.
Unfortunately, Ohio hasn't given up yet. The Attorney General and
Secretary of State filed "emergency" petitions for review with thefull
(en banc) Sixth Circuit
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EmergencyAppealEnBanc.pdf>andthe
U.S. Supreme Court
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/SCOTUS-StayApplication.pdf>.
They seek an "immediate" stay of the injunction -- by which they
presumably mean the preliminary injunction the district court issued on
September 4. This argument is genuinely puzzling, and the "emergency" is
entirely of their own imagination. The reality is that yesterday's
decision simply preserves the state of affairs that has existed
for/almost three weeks/, since the district court's injunction. Although
the petition repeatedly refers to this as a "last-minute" change, Ohio
counties have known for a while now that they'd have to provide the
opportunity for same day registration and early voting starting on
September 30. And of course, the early voting rules kept in place are
the same ones used in Ohio for many years.
Most damning to Ohio's stay argument is the fact that, when the Sixth
Circuit panel denied a stay of the district court's order on September
12 -- two weeks ago --/the state did nothing/. If the situation were
really so dire, why didn't the state immediately seek review of the
panel's stay denial, either from the en banc Sixth Circuit or the
Supreme Court? The rules in place after yesterday's Sixth Circuit
decision are precisely the same as those in place before yesterday:
early voting in Ohio begins on September 30.
The state's real concern, I'm sure, is with the legal precedent
established by yesterday's ruling. The state is certainly entitled to
ask for further review of the legal questions in due course. For reasons
set forth above, I think such review should be denied. But even if one
disagrees, that's a poor reason for staying the district court's
injunction. With early voting scheduled to begin just three working days
from now, it would be extremely disruptive to call it off now as the
State requests. Such an order would/really/be a last-minute change in
the election rules, of the very type that courts generally should avoid,
as the State's petition admonishes.
I'm a lawyer, not a soothsayer, so I won't try to predict what either
the en banc Sixth Circuit or the Supreme Court will do. My goal here is
instead to dispel some misconceptions about yesterday's opinion, which
is neither as sweeping nor as dramatic as one might be led to believe
from the State's petition, and to explain why staying the district court
order would be a big mistake. The Sixth Circuit ruling doesn't say that
all states have to offer early voting 35 days before the election. Nor
did the court say that Ohio was violating the Constitution before it
adopted no-excuse absentee voting in 2005. Instead, yesterday's decision
applies existing precedent requiring courts to consider evidence
regarding the context in which new voting restrictions are enacted and
whether the state's stated rationales are pretextual.
* Disclosure: I served as counsel for plaintiffs in/Project Vote v.
Madison County Board of Elections/, which resulted in a court order
keeping the window for same day registration and early voting open in
the 2008 election. I am not involved in the current litigation.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,voter
registration <http://electionlawblog.org/?cat=37>
Breaking: Ohio Seeks #SCOTUS Emergency Stay in Early Voting Case
<http://electionlawblog.org/?p=65883>
Posted onSeptember 25, 2014 2:07 pm
<http://electionlawblog.org/?p=65883>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the petitionat this link.
<http://electionlawblog.org/wp-content/uploads/Ohio-election-stay-application-9-25-14.pdf> Given
thecontroversial and expansive nature
<http://electionlawblog.org/?p=65853>of the Sixth Circuit'sruling,
<http://electionlawblog.org/wp-content/uploads/6th-early.pdf>a stay from
the Supreme Court is certainly possible but not guaranteed. Thelast
time
<http://www.slate.com/articles/news_and_politics/politics/2012/10/campaign_2012_will_obama_win_ohio_thanks_to_bush_v_gore.html>one
of the emergency petitions went up on Ohio's early voting rules, in
2012, the Supreme Court stayed out.
<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>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Ohio Files Petition for En Banc Review in Early Voting Case
<http://electionlawblog.org/?p=65881>
Posted onSeptember 25, 2014 11:52 am
<http://electionlawblog.org/?p=65881>byDan Tokaji
<http://electionlawblog.org/?author=5>
The petition
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EmergencyAppealEnBanc.pdf>challengesyesterday's
Sixth Circuit ruling
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Opinion092414.pdf>and
seeks and immediate stay of the court's order regarding the period for
same day registration and early voting, which is scheduled to begin on
Tuesday of next week.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,voter
registration <http://electionlawblog.org/?cat=37>
--
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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