[EL] Evenwel brief
JBoppjr at aol.com
JBoppjr at aol.com
Sun Aug 2 05:18:25 PDT 2015
The problem with this well argued critique of the Evenwel brief is that,
in the age of the Living Constitution, it is just irrelevant. What the
Framers adopted in the Constitution and what they intended when they wrote it
does not address our evolving, new and improved understanding of what is
right and just for America today. And when the "Legislature" means the
"People," and "established by the States" means "established by the States and the
federal government," honestly who cares what the Framers wrote.
And if prior decisions of the Court are just to be rewritten or discarded
at will to get the new and improved result, then what is sacrosanct about
Garza or Los Angeles County or Burns that they should stand in the way?
So the problem here is that if the Court is not tethered to the
Constitution and the plain meaning of its text when liberal results obtain, why is it
suddenly limited by the words of the Constitution when liberals think that
the Framers actually got it right? Jim
PS I have not studied this issue so I have no opinion on who is right or
what the right answer is.
In a message dated 8/1/2015 9:28:43 P.M. Eastern Daylight Time,
ely at compass-demographics.com writes:
I don’t know whether to thank you or curse you for posting this but I can’
t prevent myself from responding to a few of the arguments in the brief.
1. The federal analogy. The brief repeats an error that Los Angeles
County made and Roberts pointed out in Garza. The federal analogy that the
courts have rejected is the geographic entity representation (primarily Senate)
analogy. In the Federal design the Senate represents the states while the
House represents the people. Therefore the geographical representation
model of the Senate is inapplicable within the States, especially when applied
to the House of Representatives. The federal model of apportionment by
population in the house on the other hand is directly applicable to
apportionment within states since "the people" are still the people. The part of the
federal model relative to the house that is inapplicable is the lack of
population equality resulting from the guarantee of 1 representative to each
state, and the indivisibly of individual representatives between states. It
is the analogy of States to Counties or other municipalities that is
rejected.
2. Equal Protection and the right to vote vs the right to representation.
The right to vote is limited to "eligible voters", but the right to
representation belongs to the "great body of the people". The brief quotes the
14th amendment "in relevant part:"
No State shall ... deny to any person within its
jurisdiction the equal protection of the laws.
They are correct that this is the relevant part. However they proceed to
completely ignore it, confusing it with another part of the 14th Amendment
which protects only Citizens. The Equal Protection Clause is explicit in its
application to "any person within its jurisdiction". It does nothing to
elevate the protection of eligible voters over those not eligible to vote.
The apportionment clause of the 14th amendment makes clear again that
representation is based on what Madison called "the great body of the people". It
excludes "Indians not taxed" since they were not subject to a State's
Jurisdiction, only to the Federal Government, and because before the 17th
amendment, taxation and representation were intended to have the same basis. In
addition the apportionment clause includes a punitive measure for states who
deny the right to vote on an illegitimate basis. They are to lose
representation, not according to the number who are denied that right but rather
based on the percentage denied of those who should be able to vote, applied
to the total apportionment population. This again clearly identifies the
eligible voter population as a subset of the apportionment population, and not
a proxy or substitute for it.
The misunderstanding of the interaction between the right to vote and the
right to representation leads to a misapplication of the concept of an
equally weighted vote. There is in fact no conflict between equal
representation and equal vote weight. The purpose of single member districts is to tie
representation of people to specific representatives, not as a tool for
convenient voting. If a voter in one part of the state has 1 vote to cast for 1
representative who represents 1,000,000 people while a voter in another
part of the state has 1 vote to cast for 1 representative who represents
100,000 people then the one has a vote that has 10 times the weight of the
other, regardless of how many other eligible voters there are in either
district. This is what Reynolds and other decisions find unacceptable. If each
district represents an equal population and is not illegal on some basis other
than size, then all eligible voters within a given district are similarly
situated and have an equal vote, while all persons in the state are
similarly situated and have equal representation. Each voter is entitled to 1 vote
for 1 representative in a single member district system. Other systems
which are used for other parts of government behave differently. Each voter is
entitled to a single vote for Governor for example and in those elections
areas with more eligible voters have more influence because the interaction
between the right to vote and the right to representation is different.
Other systems for election of multiple representatives would have still
different interactions. The benefit of a single member district system is that
it allows the people to have equal and accessible representation while also
giving similarly situated voters equal votes. If that function is lost then
people do not have equal protection, they have protection that is
proportional to the subset who are eligible to vote.
There is clearly nothing in the 14th amendment that was intended to change
the universal right to representation, or to deny equal protection of the
laws to those who do not have the right to vote. In fact the opposite is
true. Drawing districts is about the allocation of representation
(universal), and is quite distinct from the right to vote (limited). Each
representative has voting power that is roughly proportional to the number of persons
within his district. Thus for representational purposes, one person (is
proportional to) one vote, while for election purposes one voter has one vote.
3. Burns. The brief misinterprets the logic of Burns. Hawaii's use of
registered voters as a basis for apportionment was clearly not an acceptable
one on its face. The court's examination of it was not a question of whether
the state had the right to make that choice. Instead it was a question of
whether it's use provided a reasonable approximation of a basis that was
acceptable. The most important part of that analysis dealt with the exclusion
of non-resident population such as tourists and military personnel en-route
to overseas deployment. Most of these people were US citizens with voting
rights, but they were only temporarily in Hawaii, while resident and
represented elsewhere. They were not being excluded from representation. The
court's determination was that the use of registered voters resulted in an
acceptable apportionment of resident population or locally eligible voter
population, and that there was no showing that either of these
unconstitutionally included or excluded population from the apportionment base.
The district court here (Evenwel) was correct to dismiss this suit because
it makes no claim that any population was unconstitutionally included or
excluded from the apportionment base. The brief merely claims that the
inclusion of population not eligible to vote was somehow made unconstitutional
by the fact that it produces a significantly different outcome than the
choice of apportioning based on eligible voters. But the Burns court made clear
that significantly different outcomes could be expected and that the
difference reflected legitimate choices about the nature of representation.
"At several points, we discussed substantial equivalence in terms of voter
population or citizen population, making no distinction between the
acceptability of such a test and a test based on total population. 20 Indeed, in
WMCA, Inc. v. Lomenzo, 377 U.S. 633 , decided the same day, we treated an
apportionment based upon United States citizen population as presenting
problems [384 U.S. 73, 92] no different from apportionments using a total
population measure. Neither in Reynolds v. Sims nor in any other decision has
this Court suggested that the States are required to include aliens,
transients, short-term or temporary residents, or persons denied the vote for
conviction of crime, in the apportionment base by which their legislators are
distributed and against which compliance with the Equal Protection Clause
is to be measured. 21 The decision to include or exclude any such group
involves choices about the nature of representation with which we have been
shown no constitutionally founded reason to interfere. Unless a choice is one
the Constitution forbids, cf., e. g., Carrington v. Rash, 380 U.S. 89 , the
resulting apportionment base offends no constitutional bar, and compliance
with the rule established in Reynolds v. Sims is to be measured thereby.
This does not mean that the choice of a legitimate apportionment base is
immune to challenge. The choice is subject to challenge if it has the
purpose or effect of minimizing the voting strength of racial or other protected
minorities, but no such infirmity was shown or alleged in Burns. Similarly,
no such infirmity has been alleged in Evenwel. For the Evenwel theory to
prevail it would need to show that voters who live in neighborhoods with
higher than average voters per person are a protected minority defined by a
suspect classification, but no such allegation has been made.
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Josh Blackman
Sent: Saturday, August 01, 2015 6:07 AM
To: Marty Lederman
Cc: law-election at UCI.edu
Subject: Re: [EL] Evenwel brief
Attached is the Evenwel brief.
---------------------------------------------------------------------------
Josh Blackman
_http://JoshBlackman.com_ (http://joshblackman.com/)
_Unprecedented: The Constitutional Challenge to Obamacare_
(http://www.amazon.com/gp/product/1610393287/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325
&creativeASIN=1610393287&linkCode=as2&tag=joshblaccom-20)
On Fri, Jul 31, 2015 at 2:38 PM, Marty Lederman <_lederman.marty at gmail.com_
(mailto:lederman.marty at gmail.com) > wrote:
If anyone obtains a copy of, or link to, the topside brief, due today,
please send it to the list. Thanks very much.
Sent from my iPhone
On Jul 31, 2015, at 12:06 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
Note: _Heather Gerken's post_ (http://electionlawblog.org/?p=74682) on
the Charles/Feuntes-Rohwer Iowa piece on the Voting Rights Act had the wrong
link to their piece. You can find it at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2377470.
_“This is why the Voting Rights Act is on trial in North Carolina”_
(http://electionlawblog.org/?p=74765)
Posted on _July 31, 2015 9:01 am_ (http://electionlawblog.org/?p=74765)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
I have written t_his post_
(http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/31/this-is-why-the-voting-rights-act-is-on-trial-in-north-caroli
na/?postshare=1781438352128737) for The Monkey Cage at WaPo. It begins:
In a Winston-Salem, N.C. federal courthouse, _closing arguments_
(http://www.twcnews.com/nc/triad/news/2015/07/30/closing-arguments-delayed-in-nc-elec
tions-trial.html) are taking place this morning in a hotly-contested
trial over _North Carolina’s restrictive voting law_
(http://www.nytimes.com/2015/07/14/us/sides-dispute-basis-of-north-carolina-voting-laws-as-trial-contes
ting-them-opens.html) . The U.S. Department of Justice and civil rights
groups say that _the 2013 law_
(http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v9.pdf) , passed by a Republican legislature over the
objections of Democrats, violates the Voting Rights Act and the Constitution.
The state defends its law as necessary to prevent voter fraud and keep
public confidence in the electoral process.
As the New York Times _explained_
(http://www.nytimes.com/2015/07/14/us/sides-dispute-basis-of-north-carolina-voting-laws-as-trial-contesting-them-open
s.html) , “The contested measures reduced early voting days, ended
same-day registration, ended out-of-precinct voting and halted the preregistration
of 16- and 17-year-old high school students. These measures had been
adopted in the past 15 years to increase voter participation and were
disproportionately used by black, Hispanic and younger voters.”
Since the Voting Rights Act passed 50 years ago — on Aug. 6, 1965 — there
have been many legal disputes over the extent of court protection for
minority voting. The outcome of this one, like many cases before it, may depend
upon how well murky law matches up with political science evidence.
It concludes:
Judge Schroeder could well be faced with a situation where plaintiffs have
trouble proving the law will have a large discriminatory effect on
African-American voters, but also ample evidence that North Carolina had no good
reason antifraud or voter confidence reason for passing this law. The law
was probably intended to help Republicans — who are overwhelmingly supported
by white voters and not African-Americans in North Carolina — stay in
office.
With this evidence and a murky legal standard, it is unclear what Judge
Schroeder will do, but he was skeptical of plaintiffs’ case at an earlier
stage of the case, _denying a preliminary injunction_
(http://electionlawblog.org/?p=64152) against some of these practices.
Whatever Judge Schroeder decides, the North Carolina case could well end
up before the Supreme Court. And if the history of the Supreme Court’s cases
over 50 years of the Voting Rights Act is any guide, the fate of North
Carolina’s law may depend less upon the political science evidence before the
Court and more on the Justices’ ideological commitments and beliefs about
the appropriate scope of voting protections for minorities.
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(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74765&title=“
This%20is%20why%20the%20Voting%20Rights%20Act%20is%20on%20trial%20in%20North%20Carolina”&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18) ,
_The Voting Wars_ (http://electionlawblog.org/?cat=60) , _Voting Rights
Act_ (http://electionlawblog.org/?cat=15)
_“Symposium: Ideology, partisanship, and the new ‘one person, one vote’
case”_ (http://electionlawblog.org/?p=74763)
Posted on _July 31, 2015 8:59 am_ (http://electionlawblog.org/?p=74763)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
I have written _this contribution_
(http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case/) to
SCOTUSBlog’s symposium on _Evenwel v. Abbott._
(http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/?wpmp_switcher=desktop) It begins:
It is tempting to think of the plaintiffs in _Evenwel v. Abbott_
(http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/?wpmp_switcher=desktop)
as conservatives. After all, the _brainchild_
(http://electionlawblog.org/?p=72739) behind this new “one person, one vote” lawsuit, _Ed Blum and
his Project on Fair Representation_
(http://www.nytimes.com/2012/02/24/us/edward-blum-and-the-project-on-fair-representation-head-to-the-supreme-court-to-f
ight-race-based-laws.html) , brought us the demise of a key provision of
the Voting Rights Act in the Supreme Court’s _Shelby County_
(https://supreme.justia.com/cases/federal/us/570/12-96/) v. Holder case and continued
attacks on affirmative action in the _second coming of theFisher case_
(http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin
-2/?wpmp_switcher=desktop) . But the theory the Evenwelplaintiffs pursue
is anything but conservative: it is about taking power away from the states
and having the Supreme Court overturn precedent by imposing through
judicial fiat a one-size-fits-all version of democratic theory unsupported by the
text of the Constitution or historical practice. Evenwel should be seen
for what it is: not a conservative case but an attempted Republican power
grab in Texas and other jurisdictions with large Latino populations.
It concludes:
Evenwel is a case which should be equally disturbing for conservatives and
liberals. For conservatives, it is a case which challenges existing
precedent for no reason, undermines federalism concerns, and goes against
constitutional text, history and practice. For liberals, the case looks like
little more than a Republican power grab, seeking to have the Court take away
discretion for states in an arena in which states should have some leeway in
deciding on the appropriate means of equal representation. It forces
states to draw districts under a court-mandated theory that those without the
vote, including children, felons, and non-citizens, do not deserve
representations in state legislatures.
This is the rare case where liberals and conservatives can unite behind
the state of Texas. Texas _has properly asked_
(http://sblog.s3.amazonaws.com/wp-content/uploads/2015/05/14-940-bio.pdf) the Supreme Court to leave the
“one person, one vote” question where it has resided for almost fifty
years: with the states.
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(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74763&title=“
Symposium:%20Ideology,%20partisanship,%20and%20the%20new%20‘one%20person,%20one%20vote’%20case”&description=)
Posted in _redistricting_ (http://electionlawblog.org/?cat=6) , _Supreme
Court_ (http://electionlawblog.org/?cat=29)
_Revealing @SeanTrende- at Dale_E_Ho Exchange in NC Voting Rights Trial_
(http://electionlawblog.org/?p=74760)
Posted on _July 31, 2015 8:57 am_ (http://electionlawblog.org/?p=74760)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
I excerpt it in_ this post_
(http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/31/this-is-why-the-voting-rights-act-is-on-trial-in-north-carol
ina/?postshare=1781438352128737) at The Monkey Cage:
North Carolina passed its 2013 restrictive voting law just a month
afterShelby. So is the change connected to is history of race discrimination?
Real Clear Politics’ Sean Trende, _testifying as an expert_
(http://www.digitaljournal.com/news/politics/expert-says-viva-made-north-carolina-s-voting-law
s-mainstream/article/439587) political analyst for North Carolina, noted
that seven other states besides North Carolina had no same-day
registration, no out-of-precinct voting, less than 17 days of early voting, no
preregistration, and a photo ID requirement—all five changes that were being
challenged. Many states lacked one, two or three of these voting rules. But only
eight states lacked all five. That testimony led to a very interesting
exchange with _ACLU lawyer Dale Ho,_ (https://www.aclu.org/bio/dale-ho)
representing the plaintiffs, on cross-examination:
Ho: Could you read those eight states into the record, please?
Trende: Alabama, Michigan, Mississippi, North Carolina, South Carolina,
Tennessee, Texas, and Virginia.
Ho: Now, according to your opinion in this case, these eight states are
in the mainstream; correct, Mr. Trende?
Trende: With respect to the voting practices at issue in this case, yes.
Ho: Now, it is true, is it not, Mr. Trende, that all eight of these
states, with the exception of Tennessee, were at one point covered in whole or in
part by Section 5 of the Voting Rights Act?
Trende: I do not know.
Ho of course was right that these seven were former preclearance states,
suggesting that the vestiges of intentional racial discrimination still
linger 50 years after the Voting Rights Act’s passage, something Trende did
not factor into his analysis.
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ge%20in%20NC%20Voting%20Rights%20Trial&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18) ,
_The Voting Wars_ (http://electionlawblog.org/?cat=60) , _Voting Rights
Act_ (http://electionlawblog.org/?cat=15)
_“Bush-aligned super PAC nets more than $100 million”_
(http://electionlawblog.org/?p=74758)
Posted on _July 31, 2015 8:51 am_ (http://electionlawblog.org/?p=74758)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_WaPo reports._
(http://www.washingtonpost.com/news/post-politics/wp/2015/07/31/bush-aligned-super-pac-nets-more-than-100-million/)
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74758&title=“
Bush-aligned%20super%20PAC%20nets%20more%20than%20$100%20million”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_campaigns_ (http://electionlawblog.org/?cat=59)
_The Kinder, Gentler Koch Bros. (Spending Up to $889 Million with their
Partners on Campaigns in 2016)_ (http://electionlawblog.org/?p=74756)
Posted on _July 31, 2015 8:49 am_ (http://electionlawblog.org/?p=74756)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Nick Confessore_
(http://www.nytimes.com/2015/07/31/us/koch-brothers-brave-spotlight-to-try-to-alter-their-image.html?_r=1) in the NYT on Kochs’
_vaseline on the lens _
(http://www.huffingtonpost.com/2015/04/14/vaseline-camera-trick-effect_n_7062900.html) trick.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74756&title=The%20Kinder,%20Gentler%20Koch%20Bros.%20(S
pending%20Up%20to%20$889%20Million%20with%20their%20Partners%20on%20Campaign
s%20in%202016)&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)
_“Embattled Florida elections chief goes on the defense”_
(http://electionlawblog.org/?p=74754)
Posted on _July 31, 2015 8:47 am_ (http://electionlawblog.org/?p=74754)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Tampa Bay Times_
(http://www.tampabay.com/news/politics/legislature/embattled-florida-elections-chief-goes-on-the-defense/2239495) :
Under fire once again for lapses in oversight of Florida’s voter database
and lax communication, Gov. Rick Scott’s top elections official says he’ll
“over-communicate” in the future.
For embattled Secretary of State Ken Detzner, it’s an all-too-familiar
refrain as he tries to improve his strained relationships with county election
supervisors, who depend on a reliable database as they tabulate votes in
Florida elections.
_<share_save_171_16.png>_
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Embattled%20Florida%20elections%20chief%20goes%20on%20the%20defense”&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18)
_“Democrats far behind GOP in raising money for ’16 super PACs”_
(http://electionlawblog.org/?p=74752)
Posted on _July 31, 2015 8:46 am_ (http://electionlawblog.org/?p=74752)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
Juile Bykowicz _AP_
(http://news.yahoo.com/democrats-far-behind-gop-raising-money-16-super-071744542--election.html) :
But most of those [super PACs] aligned with specific presidential
candidates have already said how much they raised between January and the end of
June. So far, they account for roughly $2 of every $3 given in the 2016
presidential race, with the vast majority of those donations aimed at helping
Republicans win back the White House.
Less than 9 percent of the money given to candidate-specific super PACs so
far will benefit Clinton and her rivals for the Democratic nomination,
according to an Associated Press analysis. The AP compared money raised by
formal presidential campaigns with what the super PACs say they plan to
report having raised on Friday.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74752&title=“
Democrats%20far%20behind%20GOP%20in%20raising%20money%20for%20’16%20super%20PACs”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_campaigns_ (http://electionlawblog.org/?cat=59)
_“In Money Race, Rick Perry’s Campaign Shows the Power of Few”_
(http://electionlawblog.org/?p=74750)
Posted on _July 31, 2015 8:42 am_ (http://electionlawblog.org/?p=74750)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Bloomberg reports._
(http://www.bloomberg.com/politics/articles/2015-07-31/perry-s-campaign-shows-the-power-of-few?cmpid=BBD073115_POL)
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74750&title=“In%20Money%20Race,%20Rick%20Perry’
s%20Campaign%20Shows%20the%20Power%20of%20Few”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_campaigns_ (http://electionlawblog.org/?cat=59)
_“Zephyr Teachout on Getting Big Money Out of Politics”_
(http://electionlawblog.org/?p=74748)
Posted on _July 31, 2015 8:41 am_ (http://electionlawblog.org/?p=74748)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
Justin Miller interviews Zephyr at _TAP._
(http://prospect.org/article/zephyr-teachout-getting-big-money-out-politics)
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74748&title=“
Zephyr%20Teachout%20on%20Getting%20Big%20Money%20Out%20of%20Politics”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)
_“In the Dark About ‘Dark Money'”_ (http://electionlawblog.org/?p=74746)
Posted on _July 31, 2015 8:40 am_ (http://electionlawblog.org/?p=74746)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Brad Smith_
(http://www.campaignfreedom.org/2015/07/30/in-the-dark-about-dark-money/) :
What should be clear is that the very label “dark money,” whether it can
be adequately defined or not, is intended as a pejorative to skew the
difficult discussion about political speech and participation, government
power, and the influence of money and wealthy donors. It’s handy and catchy, so
it sticks, but it is not, and is not intended to be, a neutral description.
And it’s definition is indeed malleable, so that the merry regulators can
use it as they please. When they think a number sounds scary, they use it,
as if “dark money” were some clearly defined and measurable concept. When
their own numbers are turned back on them (as in pointing out that it is a
very small part of total spending), “dark money” again becomes a vague
concept, in which no one can know what is lurking below the surface, like some
malevolent iceberg or killer shark.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74746&title=“In%20the%20Dark%20About%20‘Dark%20Money'”
&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)
_“Ignorant Voters are the Problem: Campaign Finance Laws Won’t Save the
Nation from Uninformed Voters”_ (http://electionlawblog.org/?p=74744)
Posted on _July 31, 2015 8:37 am_ (http://electionlawblog.org/?p=74744)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Tony Gaughan oped_
(http://www.usnews.com/news/the-report/articles/2015/07/31/campaign-finance-cant-be-reformed-because-of-ignorant-voters) at US
News. He’s also written _What the Scott Walker fundraising controversy means
for 2016_
(https://theconversation.com/what-the-scott-walker-fundraising-controversy-means-for-2016-45147) .
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74744&title=“
Ignorant%20Voters%20are%20the%20Problem:%20Campaign%20Finance%20Laws%20Won’
t%20Save%20the%20Nation%20from%20Uninformed%20Voters”&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1)
_Quote of the Day: #SCOTUS Edition_ (http://electionlawblog.org/?p=74742)
Posted on _July 30, 2015 4:34 pm_ (http://electionlawblog.org/?p=74742)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
“Sometimes people say the Supreme Court is there to protect the voice of a
minority… Perhaps, but over time I think most Supreme Court decisions have
been accepted as consistent with the views and beliefs and commitments and
ideas and hopes and dreams of the people.”
—_Justice Anthony Kennedy_
(http://fox13now.com/2015/07/30/u-s-supreme-court-justice-kennedy-suggests-constitution-evolves-references-same-sex-marriage
-case/) , addressing the Utah Bar Association.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74742&title=Quote%20of%20the%20Day:%20#SCOTUS%20Edition
&description=)
Posted in _Supreme Court_ (http://electionlawblog.org/?cat=29)
_“Why is an obscure Montana company one of John Kasich’s biggest
boosters? One day after forming, the LLC gave $500,000 to group backing Ohio
governor”_ (http://electionlawblog.org/?p=74740)
Posted on _July 30, 2015 3:06 pm_ (http://electionlawblog.org/?p=74740)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_CPI_
(http://www.publicintegrity.org/2015/07/30/17733/why-obscure-montana-company-one-john-kasichs-biggest-boosters) :
A group backing Republican John Kasich‘s presidential aspirations received
$500,000 in seed money from a seemingly odd source, according to
_documents filed today_
(https://www.documentcloud.org/documents/2187104-new-day-independent-media-committee.html) : an obscure limited liability company in
Montana.
But a _Center for Public Integrity_ (http://www.publicintegrity.org/)
review of business filings indicates the company is linked to someone quite
familiar to Kasich, the current governor of Ohio — a venture capitalist who
served in Kasich’s administration.
The limited liability company, called MMWP12 LLC, made a
half-million-dollar donation to the pro-Kasich New Day Independent Media Committee the day
after the company formed.
Making matters murkier: MMWP12 LLC is actually controlled by another
Montana-based company called K2M LLC, according to _state business records_
(https://www.documentcloud.org/documents/2187165-mmwp12-llc-montana-business-rec
ords.html) .
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74740&title=“
Why%20is%20an%20obscure%20Montana%20company%20one%20of%20John%20Kasich’
s%20biggest%20boosters?%20One%20day%20after%20forming,%20the%20LLC%20gave%20$500,000%20to%20group%20b)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_campaigns_ (http://electionlawblog.org/?cat=59)
_“Larry Noble Testifies on the IRS and ‘Dark Money’ Before Senate
Judiciary Subcommittee”_ (http://electionlawblog.org/?p=74737)
Posted on _July 30, 2015 2:11 pm_ (http://electionlawblog.org/?p=74737)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_See here._
(http://www.campaignlegalcenter.org/sites/default/files/Larry%20Noble%20Testimony%20before%20Senate%20Judiciary%20on%20-%20IRS%20501cs%207-
29-15.pdf)
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74737&title=“
Larry%20Noble%20Testifies%20on%20the%20IRS%20and%20‘Dark%20Money’%20Before%20Senate%20Judiciary%20Subcommittee”
&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1)
_State Expert in NC Trial: Walking 3 Miles (Each Way) to Vote Not a Big
Deal_ (http://electionlawblog.org/?p=74735)
Posted on _July 30, 2015 1:23 pm_ (http://electionlawblog.org/?p=74735)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
>From the uncorrected transcript of 7/28 from the North Carolina voting
trial (my emphasis):
BY MS. EARLS
Q Thank you, Your Honor. I have just a couple of questions. Dr. Hofeller,
in your analysis of the proximity to early voting sites, you concluded
that a 5-mile range is a reasonable distance; is that correct?
A I’m sorry. I think it was 3 miles, was it not?
Q If it’s a 3-mile range, are you assuming that people will have access
to a car or a motor vehicle or are you assuming that they would walk 3
miles?
A Well, I mean, some will have a motor vehicle and some won’t have a
motor vehicle.
Q So —
A I know you could probably walk 3 miles. I walk 2 miles a day, and it
doesn’t wear me out very much.
Q So you didn’t make any assumption either way as to whether or not
people have access to motor vehicles?
A You are correct. I did not make an assumption.
Wow.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74735&title=State%20Expert%20in%20NC%20Trial:%20Walking
%203%20Miles%20(Each%20Way)%20to%20Vote%20Not%20a%20Big%20Deal&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18) ,
_The Voting Wars_ (http://electionlawblog.org/?cat=60) , _Voting Rights
Act_ (http://electionlawblog.org/?cat=15)
_“GOP criticizes ‘offensive’ posts of NC elections appointee”_
(http://electionlawblog.org/?p=74733)
Posted on _July 30, 2015 1:05 pm_ (http://electionlawblog.org/?p=74733)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_AP_
(http://www.journalnow.com/news/state_region/gop-criticizes-offensive-posts-of-nc-elections-appointee/article_118d62c8-36f5-11e5-8aa5-8ffa1cbb8f94.
html) : “North Carolina Republican Party officials say they were unaware
of racially tinged social media posts by a man appointed to a county
elections board.”
_<share_save_171_16.png>_ (https://www.
addtoany.com/share_save#url=http://electionlawblog.org/?p=74733&title=“GOP%20criticizes%20‘offensive’
%20posts%20of%20NC%20elections%20appointee”&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18)
_“Pillar of Law Calls on Texas Court to Prevent Criminalization of
Politics”_ (http://electionlawblog.org/?p=74731)
Posted on _July 30, 2015 12:45 pm_ (http://electionlawblog.org/?p=74731)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Press release_
(https://pillaroflaw.org/index.php/blog/entry/pillar-of-law-calls-on-texas-court-to-prevent-criminalization-of-politics) :
The Pillar of Law Institute filed an _amicus curiae_
(https://pillaroflaw.org/images/Article_PDFs/Cary_v._Texas_II-to_file_7.30.15.pdf)
(friend-of-the-court) brief with the Texas Court of Criminal Appeals in the case Cary
v. Texas today, arguing that the Texas Attorney General’s Office
unconstitutionally applied the state’s bribery, money laundering and organized crime
statutes to what were actually campaign finance violations.
I’m one who is generally concerned about _the criminalization of
politics_
(http://talkingpointsmemo.com/cafe/rick-perry-and-the-criminalization-of-politics) , but from my quick look I worry this would greatly expand first
amendment protections for bribery.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74731&title=“
Pillar%20of%20Law%20Calls%20on%20Texas%20Court%20to%20Prevent%20Criminalization%20of%20Politics”&description=)
Posted in _bribery_ (http://electionlawblog.org/?cat=54) , _campaign
finance_ (http://electionlawblog.org/?cat=10) , _chicanery_
(http://electionlawblog.org/?cat=12)
_“N.C. attorneys rest their case in federal voting rights trial”_
(http://electionlawblog.org/?p=74728)
Posted on _July 30, 2015 10:53 am_ (http://electionlawblog.org/?p=74728)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_The latest_
(http://www.journalnow.com/news/elections/n-c-attorneys-rest-their-case-in-federal-voting-rights/article_54025a12-36d9-11e5-bb9d-3b2faeae0
3ea.html) from the NC voting trial. “Closing arguments were scheduled for
this afternoon, but it now appears that they won’t happen until Friday
morning. U.S. District Judge Thomas Schroeder will issue a written opinion
sometime later this year.”
_MORE_
(http://www.twcnews.com/nc/triad/news/2015/07/30/closing-arguments-delayed-in-nc-elections-trial.html) from TWC.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74728&title=“
N.C.%20attorneys%20rest%20their%20case%20in%20federal%20voting%20rights%20trial”&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1)
_“Outcome of trial on N.C. election law changes will have national effect”
_ (http://electionlawblog.org/?p=74726)
Posted on _July 30, 2015 10:51 am_ (http://electionlawblog.org/?p=74726)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Bob Barnes reports_
(http://www.washingtonpost.com/politics/courts_law/outcome-of-trial-on-nc-election-law-changes-will-have-national-effect/2015/07/3
0/00645094-35f4-11e5-b673-1df005a0fb28_story.html) for WaPo.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74726&title=“
Outcome%20of%20trial%20on%20N.C.%20election%20law%20changes%20will%20have%20national%20effect”&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18) ,
_Supreme Court_ (http://electionlawblog.org/?cat=29) , _The Voting Wars_
(http://electionlawblog.org/?cat=60) , _Voting Rights Act_
(http://electionlawblog.org/?cat=15)
_On Political Fragmentation_ (http://electionlawblog.org/?p=74720)
Posted on _July 30, 2015 9:21 am_ (http://electionlawblog.org/?p=74720)
by _Richard Pildes_ (http://electionlawblog.org/?author=7)
_“Conservatives hold John Boehner hostage”_
(https://www.washingtonpost.com/opinions/conservatives-hold-john-boehner-hostage/2015/07/29/6fd3060a-362b-
11e5-b673-1df005a0fb28_story.html)
_“Boehner response to Meadows insurrection: “No Big Deal””_
(http://www.washingtonpost.com/news/powerpost/wp/2015/07/29/boehner-response-to-meadows-i
nsurrection-no-big-deal/) [corrected link]
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74720&title=On%20Political%20Fragmentation&description=
)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1)
_“David Prosser says he didn’t need to step aside in Scott Walker probe”
_ (http://electionlawblog.org/?p=74717)
Posted on _July 30, 2015 9:05 am_ (http://electionlawblog.org/?p=74717)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Milwaukee Journal-Sentinel:_
(http://www.jsonline.com/news/statepolitics/david-prosser-says-he-doesnt-need-to-step-aside-in-walker-probe-b99547465z1-3
19731971.html)
Wisconsin Supreme Court Justice David Prosser issued an opinion Wednesday
saying he did not need to step aside from cases over an investigation into
_Gov. Scott Walker_
(http://www.jsonline.com/news/statepolitics/scott-walker-290106981.html) ‘s campaign even though groups spent millions of dollars
to support both him and the governor.
Prosser’s _decision_ (http://media.jrn.com/documents/prosserrecusal.pdf)
revealed two of the people caught up in the investigation had been involved
in Prosser’s 2011 re-election bid and had stressed the importance of
finding donors for him.
Prosser wrote that outside spending to help him was “very valuable to my
campaign” but did not rise to a level that would require him to step down
from the challenge to the investigation of those groups. That’s because the
expenditures were made four years ago, at a time when there was no
indication they would appear before the state’s high court.
“The public ultimately decides at the ballot box who is permitted to serve
on the Wisconsin Supreme Court,” Prosser wrote. “The special prosecutor
seeks to prevent an elected justice from performing that service unless that
unelected special prosecutor wants the elected justice to sit on the case.
This is not the way the system works.”
Prosser was part of a 4-2 majority that _ruled this month_
(http://www.jsonline.com/news/statepolitics/wisconsin-supreme-cour
t-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html) that the probe into
Walker’s campaign must be ended and evidence prosecutors have obtained must
be destroyed. It came three days after the GOP governor formally announced
his bid for the presidency.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74717&title=“David%20Prosser%20says%20he%20didn’
t%20need%20to%20step%20aside%20in%20Scott%20Walker%20probe”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_judicial elections_ (http://electionlawblog.org/?cat=19)
_NVRA Settlement Reached with Oklahoma_
(http://electionlawblog.org/?p=74715)
Posted on _July 30, 2015 9:03 am_ (http://electionlawblog.org/?p=74715)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_Demos press release_
(http://www.demos.org/press-release/voting-rights-advocates-settle-matter-alleging-nvra-violations) :
Voting rights advocates and Oklahoma officials announced today that a_
settlement has been reached_
(http://www.demos.org/publication/oklahoma-national-voter-registration-act-settlement) to provide more effective voter
registration opportunities to citizens throughout the state.
This effort began last summer when the Metropolitan Tulsa Urban League,
the League of Women Voters of Oklahoma and Metropolitan Tulsa, and YWCA Tulsa
notified Paul Ziriax, the Secretary of the Oklahoma State Election Board,
that it appeared Oklahoma’s public assistance agencies were not offering
clients a meaningful opportunity to register to vote. Under the National
Voter Registration Act of 1993 (NVRA), state agencies that provide public
assistance must ask clients whether they want to register to vote, offer them
voter registration materials, and help them complete registration forms.
The community groups said in their letter to Secretary Ziriax that the
number of voter registration applications reported statewide by Oklahoma
public assistance agencies had dropped 81 percent since the initial
implementation of the NVRA in 1995. At the same time, the average monthly
participation in the SNAP program, just one of the programs covered by the NVRA,
nearly doubled. Only 61 percent of Oklahoma citizens in low-income households
were registered to vote in 2012, compared to 81 percent of those in affluent
households. In fieldwork investigations conducted at Oklahoma public
assistance agencies on behalf of the community groups, a significant percentage
of agency clients interviewed said that they received no voter registration
services whatsoever when, under the NVRA, they should have….
_Read the full settlement here._
(http://www.demos.org/publication/oklahoma-national-voter-registration-act-settlement)
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74715&title=NVRA%20Settlement%20Reached%20with%20Oklaho
ma&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18) ,
_NVRA (motor voter)_ (http://electionlawblog.org/?cat=33)
_The Most Interesting Question in Evenwel_
(http://electionlawblog.org/?p=74712)
Posted on _July 30, 2015 8:30 am_ (http://electionlawblog.org/?p=74712)
by _Richard Pildes_ (http://electionlawblog.org/?author=7)
In my _contribution to the SCOTUS blog Symposium_
(http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott/) in this
case, I provide reasons that the Court is unlikely, in my view, to accept the
appellants’ position. But that is not the end of the case. The more
interesting question is whether the Court will decide that the Constitution
forbids states from basing districts on eligible voters lone and requires that
total population be used (as, in fact, has been existing practice for
several decades). Here is part of what I say about whether states are free to
pick and choose between “voter equality” or “representational equality”
in designing districts:
Remarkably, the Court has only focused on this substantive question at all
in one case, Burns v. Richardson (1966), decided at the dawn of the
reapportionment revolution; Burns concluded states could make either choice.
Now that the issue is back before the Court nearly fifty years later, the
jurisprudential issue is whether all the developments in redistricting and
voting-rights law in those intervening years should lead the Court to conclude
that equal protection requires a uniform understanding concerning the
correct population measure that must be used. (My co-authored casebook, The
Law of Democracy, asks whether “Burns survives the subsequent development of
voting rights law.”) If the Court does conclude that a uniform
understanding of “equality” is required, the most likely outcome is representational
equality – equality of the total number of persons across districts.
The argument for a uniform understanding of “equality” is strong, as a
matter of both constitutional principle and pragmatic judicial implementation
of the Constitution. In the apportionment cases, the Court has spoken
eloquently many times about the importance of political equality in designing
districts – but equality of whom, people or voters? If the basic
principle is of such constitutional magnitude, there is much force to the
conclusion that the Court has an obligation to specify equality of whom, or equality
with respect to what value or principle. The choice between electoral
equality and representational quality is not a fine-grained technical detail of
how to implement the Equal Protection Clause. That choice is a
fundamental, categorical one about the essential interpretation and meaning of equal
protection in the context of designing our basic democratic institutions.
Does the clause require that all persons in a jurisdiction (non-eligible
voters as well as voters) have roughly equal political representation? Or does
it require that all eligible voters have a roughly equal voting power?
Those are fundamentally different-in-kind understandings of equal protection
that flow from the Court’s “one person, one vote” jurisprudence – precisely
the kind of question, in other contexts, to which the Court would provide
the answer.
The reason the Court gave in Burns for leaving this choice instead to
state discretion was that the decision of which groups to include in the
baseline for districting “involves choices about the nature of representation
with which we have been shown no constitutionally founded reason to interfere.
” But in the context of the Reapportionment Cases, this explanation is
off-key. After all, it was the vehement position of the dissenting Justices in
these cases, such as Justices Harlan and Frankfurter, that the Court
should not get involved in these issues at all because to get involved was to
require the Court to choose among competing theories of political
representation.
The Court crossed that Rubicon when it decided that equal protection did
not permit representation to be based on geographic units, such as towns and
counties, and did require it to be based on equal numbers of sentient
beings (people or voters). Having completely redefined the basis of political
representation the Constitution requires, the Court’s reticence about not
wanting to choose between competing theories of representation when it comes
to voters or people rings hollow. Instead, Burns reads like a tentative,
interim, and transitional decision in the early stages of working out the
meaning of the Reapportionment Cases. Decided only two months after
argument,Burns arose with elections imminently pending and dealt with what was only
an interim districting plan; in other words, the stakes were low, the need
for an immediate decision pressing.
With the much fuller development of the “one person, one vote” doctrine
in the fifty years since, it is not obvious the Court will be comfortable
with leaving states as much discretion to choose “equality of whom” in
districting. And given the intensity of today’s political conflicts over
immigration, it is not difficult to imagine those politics coming to further
poison redistricting, if states are free to move back and forth between using
voters or persons as the measure of district equality. Given how aware the
Court is of the extreme partisan polarization of our era, and how that
polarization plays out already in districting, the Justices might conclude that
strong pragmatic reasons further support adoption of a uniform principle
concerning district “equality.”
The courts of appeals, in the three major cases raising this issue, have
all explained why representational equality is the better interpretation of
the principles underlying the “one person, one vote” doctrine. But all
have recognized that the issue is important and the question close. In
Evenwel, this issue arose for the first time in the Court’s non-discretionary
appellate jurisdiction; the Court was right to take the case, rather than
summarily affirm, and to give this issue the attention it deserves. Texas, as
the defendant-appellee, will only ask the Court to affirm the status quo
and let Texas (and other States) continue to have discretion to choose
whether to create district equality between persons or voters. Texas will succeed
to at least that extent, I believe. But now that the Court will be forced
to confront these issues, the Court might well conclude that it has an
obligation to decide whether there is a right answer to the question under the
Equal Protection Clause of “equality of whom” and that the better answer
is equality of political representation for all persons.
_<share_save_171_16.png>_
(https://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=74712&title=The%20Most%20Interesting%20Question%20in%20
Evenwel&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1)
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
_949.824.3072_ (tel:949.824.3072) - office
_949.824.0495_ (tel:949.824.0495) - fax
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu)
http://www.law.uci.edu/faculty/full-time/hasen/
_http://electionlawblog.org_ (http://electionlawblog.org/)
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