[EL] ELB News and Commentary 8/12/15

Rick Hasen rhasen at law.uci.edu
Tue Aug 11 20:50:50 PDT 2015


    “Democrats target Virginia as they push to break down voting
    restrictions” <http://electionlawblog.org/?p=75262>

Posted onAugust 11, 2015 8:44 pm 
<http://electionlawblog.org/?p=75262>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo: 
<http://www.washingtonpost.com/local/virginia-politics/how-democrats-are-fighting-voting-restrictions-ahead-of-2016/2015/08/11/15d574f6-3d2b-11e5-9c2d-ed991d848c48_story.html>

    After Tracey Bell tried to register to vote in Virginia last year,
    she got a letter in the mail saying her citizenship was in doubt and
    she would have to pay $10 to prove it. Confused and annoyed, Bell
    ranted on Facebook.

    It was the rare Facebook rant that actually led to government
    action. A friend put her in touch with the Virginia Democratic
    Party, which connected her to a lawyer who explained that she had
    forgotten to check a box confirming her citizenship. She fixed it —
    and a year later, Gov. Terry McAuliffe (D) is pushing to have the
    box requirementeliminated
    <http://www.washingtonpost.com/local/virginia-politics/voter-registration-changes-proposed-for-va-draw-hundreds-to-hearing/2015/07/28/f42af2ca-3566-11e5-94ce-834ad8f5c50e_story.html>.

    Both the lawyer and the governor are participating in a national
    Democratic effort to expand turnout that could make or break
    presidential election results in highly competitive states — and
    Virginia is a key target.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    “Donald Trump Is Frugal With His Cash in Republican Presidential
    Race; Front-runner won’t pay for TV ads or efforts to get on ballot,
    say people familiar with his campaign”
    <http://electionlawblog.org/?p=75259>

Posted onAugust 11, 2015 4:56 pm 
<http://electionlawblog.org/?p=75259>byRick Hasen 
<http://electionlawblog.org/?author=3>

WSJ reports. 
<http://www.wsj.com/articles/donald-trump-is-frugal-with-his-cash-in-republican-presidential-race-1439335893>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Voter registration changes that worried GOP are delayed in
    Virginia” <http://electionlawblog.org/?p=75256>

Posted onAugust 11, 2015 4:49 pm 
<http://electionlawblog.org/?p=75256>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/local/virginia-politics/voter-registration-changes-that-worried-gop-are-delayed-in-virginia/2015/08/11/506a35e4-4072-11e5-8d45-d815146f81fa_story.html>:

    The head of Virginia’s elections board on Tuesday postponed action
    on a plan that would let people registering to vote skip questions
    about their citizenship and criminal history, saying it needs to be
    reworked.

    James , chairman of the Virginia State Board of Elections, said in
    an email to fellow elections officials that he was pulling the
    proposal from the board’s September agenda. At the same time, he
    asserted there was still a need to revamp existing voter
    registration forms, which seem to routinely trip up would-be voters.

    The move puts off action on a seemingly arcane administrative matter
    that hit a nerve with Republicans on the hot-button issues of
    illegal immigration, voter fraud and the restoration of felons’
    right to vote.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    “Super PACs throw lifelines to candidates scrambling for cash”
    <http://electionlawblog.org/?p=75254>

Posted onAugust 11, 2015 4:20 pm 
<http://electionlawblog.org/?p=75254>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo on Perry. 
<http://www.washingtonpost.com/politics/super-pacs-throw-lifelines-to-candidates-scrambling-for-cash/2015/08/11/e7405e48-4037-11e5-9561-4b3dc93e3b9a_story.html?postshare=2201439334885118>

I still expect Perry to be out sooner rather than later. Unlike Gingrich 
2012, Perry is both polling lower and has more competition.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “O’Malley lawyer alleges legal problems with DNC debate plan”
    <http://electionlawblog.org/?p=75252>

Posted onAugust 11, 2015 3:40 pm 
<http://electionlawblog.org/?p=75252>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/news/post-politics/wp/2015/08/11/omalley-lawyer-alleges-legal-problems-with-dnc-debate-plan/>:

    As part of an escalating feud with the Democratic National
    Committee, longshot presidential hopeful Martin O’Malley on Tuesday
    released a memo from a campaign lawyer calling the party’s debate
    plan “legally problematic.”

    O’Malley, the former Maryland governor, has strongly objected to the
    schedule released last week of six DNC-sanctioned debates, branding
    it “undemocratic” and arguing that the public deserves more
    opportunities to size up frontrunner Hillary Rodham Clinton against
    other candidates.

    The memo released Tuesday takes issue with an “exclusivity”
    requirement, under which any Democratic candidate who participates
    in a non-sanctioned debate could be barred from the DNC-sponsored
    debates, the first of which is in October.

    Joe Sandler, a former DNC general counsel whose services have been
    retained by O’Malley’s campaign, argues in the memo that such a
    requirement is unprecedented and that the DNC has no legal authority
    to enforce it. The memo was first reported by MSNBC.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Ted Cruz to release the names of his bundlers”
    <http://electionlawblog.org/?p=75250>

Posted onAugust 11, 2015 3:29 pm 
<http://electionlawblog.org/?p=75250>byRick Hasen 
<http://electionlawblog.org/?author=3>

Teddy Schleifer reports 
<http://www.cnn.com/2015/08/11/politics/ted-cruz-money-fundraising-bundlers-2016-election/index.html>for 
CNN.

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<http://electionlawblog.org/?cat=59>


    “Federal judge in New Hampshire: Ballot ‘selfies’ are free speech,
    don’t encourage voter fraud” <http://electionlawblog.org/?p=75244>

Posted onAugust 11, 2015 2:36 pm 
<http://electionlawblog.org/?p=75244>byRick Hasen 
<http://electionlawblog.org/?author=3>

AP 
<http://www.therepublic.com/view/story/54a4c3fdf4974deeb52fd4705159f7dd/NH--Ballot-Photos-Lawsuit>:

    New Hampshire’s law banning voters from posting pictures of
    completed ballots online squelches free speech and isn’t needed to
    prevent election fraud, a federal judge ruled Tuesday.

    In his ruling, U.S. District Court Judge Paul Barbadoro said it’s
    speculation to think people will be coerced into selling votes if
    they can post the image online. During arguments in June, lawyers
    for the state acknowledged there are no known cases of vote-buying
    or coercion in New Hampshire.

This worries me.  We do have good evidence (cited in myVote Buying 
article <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=257564>) 
that turnout declined in states as they adopted the secret ballot. A 
secret ballot makes vote buying much harder.

Also, under the Supreme Court’s decision in /Burdick v. Takushi/, it is 
not clear that voting constitutes a free speech act worthy of this kind 
of attention.

UPDATE: The opinion ishere 
<https://s3.amazonaws.com/s3.documentcloud.org/documents/2271013/rideout-decision.pdf>(viaBuzzfeed 
<http://www.buzzfeed.com/adolfoflores/new-hampshires-ban-on-ballot-selfies-is-struck-down-as-uncon?bftwnews&utm_term=4ldqpgc#.vsPZMbG18>).

The judge’s opinion actually cites my vote buying article and traces the 
history of vote buying with ballots. It is an erudite opinion giving 
good historical analysis.

But I think the legal analysis falls apart. Drawing on the Supreme 
Court’s recent Reed v. Town of Gilbert decision, the court subjects the 
ban on pictures of ballots to strict scrutiny. It holds the law not 
narrowly tailored because New Hampshire can simply make it illegal to 
use a photograph or image of a ballot for purposes of vote buying. The 
court also points to lack of evidence of a current problem with vote buying.

I think both of these arguments are off the mark. As with Shelby County 
and voting rights, the very fact that a law is effective makes it very 
hard to prove a negative. And because vote buying is hard to detect, 
this law is narrowly tailored to preventing it. Nothing stops a person 
from being able to tell everyone how he or she voted, on Facebook or 
otherwise. But the picture of the ballot which can /prove if/for 
purposes of a vote buying transaction is uniquely valuable in committing 
fraud. I am also not sure whether the First Amendment is even 
implicated, given /Burdick./

I hope this case gets reversed by the First Circuit.

Further update: Upon hearing from a number of folks and reflecting, I’ve 
rethought my /Burdick /point and agree the First Amendment is implicated 
even if the act of casting a ballot itself is not a First Amendment act. 
Nonetheless, for the anti-vote-buying reasons I’ve given, I think this 
law should survive even strict scrutiny.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “Commemorating the 50th Anniversary of the US Voting Rights Act”
    <http://electionlawblog.org/?p=75242>

Posted onAugust 11, 2015 2:25 pm 
<http://electionlawblog.org/?p=75242>byRick Hasen 
<http://electionlawblog.org/?author=3>

Elsevier: 
<http://www.journals.elsevier.com/political-geography/news/commemorating-50th-anniversary-us-voting-rights-act/>

    Two Interventions published in August 2015 are now*freely available
    online*.  Read all the contributions on the Civil Rights Movement on
    ScienceDirect now – details below:

    */Interventions on the 50th anniversaries of events in the American
    Civil Rights Movement/*
    Gerald R. Webster, Peyton McCrary, Toby Moore, Leah C. Aden, James
    U. Blacksher, Michael L. Clemons, Jonathan I. Leib
    http://www.sciencedirect.com/science/article/pii/S0962629815000608

    */The legacies of the U.S. Civil Rights Act, fifty years on/*
    Caroline Nagel,Josh Inwood, Derek Alderman, Ujju Aggarwal, Claire
    Bolton, Steve Holloway, Richard Wright, Mark Ellis, Priscilla
    McCutcheon, Katherine Hankins, Andy Walter, Kate Derickson
    http://www.sciencedirect.com/science/article/pii/S0962629815000463

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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>


    Judge Kopf Admits Error in Saying STFU to #SCOTUS, But Says I’m a
    “Sore Subject” Because of My Criticism of Him
    <http://electionlawblog.org/?p=75240>

Posted onAugust 11, 2015 2:11 pm 
<http://electionlawblog.org/?p=75240>byRick Hasen 
<http://electionlawblog.org/?author=3>

Last yearI tangled<http://electionlawblog.org/?p=63070>with federal 
district court Judge Kopf over his writing 
<http://electionlawblog.org/?s=%22judge+kopf%22&x=0&y=0>on his blog, 
“Hercules and the Umpire,” and particularly his statement that members 
of the United States Supreme Court should “STFU.”  The judge kept 
blogging then, but he recently quit blogging after he heard from his 
Chief Judge that a “great majority” of court staff thought his work was 
an embarassment to the court.

He just gave an exclusive 
interview<http://www.nationallawjournal.com/id=1202734457616/Chastened-ExBlogger-Urges-Other-Judges-to-Use-Social-Media?mcode=1202615705846&slreturn=20150711170453>to 
Tony Mauro. You should read the whole thing, but here are two pertinent 
excerpts about the STFU episode:

    *NLJ:*With benefit of hindsight, do you think you should have stayed
    your pen, so to speak, and not posted your more controversial
    opinions? I’ll ask about some of them, one by one. First,telling the
    Supreme Court to STFU
    <http://wednesdaywiththedecentlyprofane.me/2014/07/05/remembering-alexander-bickels-passive-virtues-and-the-hobby-lobby-cases/>because
    it decided to rule on the/Hobby Lobby/case involving contraceptive
    coverage in health care plans.

    *Kopf:*First, nothing that follows is intended to make excuses for
    my many errors. I don’t regret writing most of the/Hobby Lobby/post.
    The last sentence is the one I regret. Specifically, I do regret
    using “STFU.” Using that acronym was unnecessary and distracting; it
    was also too cute by (at least) half….

    *NLJ:*You’ve gone back and forth with Rick Hasen afterhe said about
    you <http://electionlawblog.org/?p=63070>, “A judge who blogs should
    not say ‘STFU’ to the Supreme Court,” and suggested you retire.

    *Kopf:*The subject of Rick Hasen is a sore spot and one that I lack
    the objectivity (and perhaps the guts) to answer honestly. Except to
    say that professor Hasen is widely respected by many others, I pass.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “Texas Voter ID Law: Discriminatory Effect, Violates Voting Rights
    Act, 5th Cir. Says” <http://electionlawblog.org/?p=75237>

Posted onAugust 11, 2015 11:53 am 
<http://electionlawblog.org/?p=75237>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can read the report from BNA’s US Law Weekat this link 
<http://electionlawblog.org/wp-content/uploads/Veasey-1.pdf>. Reproduced 
with permission from_The United States Law Week_,84 U.S.L.W. 157 (August 
11, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. 
(800-372-1033) <http://www.bna.com>

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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>


    “Inside John Roberts’ Decades-Long Crusade Against the Voting Rights
    Act” <http://electionlawblog.org/?p=75235>

Posted onAugust 11, 2015 10:49 am 
<http://electionlawblog.org/?p=75235>byRick Hasen 
<http://electionlawblog.org/?author=3>

Ari Berman writes 
<http://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222.html?hp=m1#.Vcoz3nFVhBd>for 
Politico Magazine, excerpt from his new book.

Also don’t missELB Podcast: Episode 1, 
<http://electionlawblog.org/?p=75203>my interview with Ari.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,The Voting 
Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>


    What’s @Lessig Up To? <http://electionlawblog.org/?p=75233>

Posted onAugust 11, 2015 10:24 am 
<http://electionlawblog.org/?p=75233>byRick Hasen 
<http://electionlawblog.org/?author=3>

I talk with Mike Sacks 
<http://www.nationallawjournal.com/legaltimes/id=1202734455987/Lessig-Mounts-Presidential-Bid-on-CampaignReform-Platform?cmp=share_twitter&slreturn=20150711131833>of 
NLJ about the presidential run.  My earlier coverage and thoughtsare 
here <http://electionlawblog.org/?p=75195>.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “As John Doe probe is halted, legal maneuvering continues”
    <http://electionlawblog.org/?p=75230>

Posted onAugust 11, 2015 8:37 am 
<http://electionlawblog.org/?p=75230>byRick Hasen 
<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel 
<http://www.jsonline.com/news/statepolitics/as-john-doe-probe-is-halted-legal-maneuvering-continues-b99554359z1-321389341.html>:

    The investigation into conservative groups and Gov. Scott Walker’s
    campaign may be halted, but the legal machinations surrounding it
    appear far from over.

    In the latest development, attorneys who beat back the probe are
    seeking to have a third party oversee prosecutors as they return
    evidence they gathered during the investigation. Their request to
    the state Supreme court would also affect the treatment of material
    gathered in an earlier investigation that resulted in six
    convictions, according to the judge who oversaw that first
    investigation.

    Details are sketchy because the high court has sealed the filings
    until it determines whether they can be released.

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<http://electionlawblog.org/?cat=12>


    “Group Backing Clinton Gets $1M From Untraceable Donors”
    <http://electionlawblog.org/?p=75228>

Posted onAugust 11, 2015 8:33 am 
<http://electionlawblog.org/?p=75228>byRick Hasen 
<http://electionlawblog.org/?author=3>

Julie Bycowicz 
<http://abcnews.go.com/Politics/wireStory/group-backing-hillary-clinton-1m-anonymous-donors-32996254?singlePage=true>for 
AP:

    Hillary Rodham Clinton told a cheering crowd at her largest rally so
    far that “the endless flow of secret, unaccountable money” must be
    stopped. Two weeks later, the main super PAC backing her bid for the
    Democratic presidential nomination accepted a $1 million
    contribution that cannot be traced.

    The seven-figure donation, made June 29 to the pro-Clinton
    Priorities USA Action, came from another super political action
    committee, called Fair Share Action. Its two lone contributors are
    Fair Share Inc. and Environment America Inc., according to records
    filed with *Federal Election Commission*
    <http://cts.dundee.net/t/3046967/91898075/8340/4/>.

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    ELB Podcast, Episode #1: Ari Berman, Give Us the Ballot
    <http://electionlawblog.org/?p=75203>

Posted onAugust 11, 2015 7:51 am 
<http://electionlawblog.org/?p=75203>byRick Hasen 
<http://electionlawblog.org/?author=3>

I am pleased to bring you the first episode of The ELB Podcast, a new 
project in which I will offer occasional interviews with those making 
news or conducting research on election issues in the run-up to the 2016 
elections. The podcast is now available onSoundcloud 
<https://soundcloud.com/rick-hasen/elb-podcast-episode-1-ari-berman-give-us-the-ballot>, 
with subscriptions via iTunes coming shortly. I welcome your feedback on 
whether you like this new feature, what you’d like to see changed, and 
topics to potentially cover.  (Here isthe RSS feed 
<http://feeds.soundcloud.com/users/soundcloud:users:167630625/sounds.rss>.)

For my first episode, I interview author Ari Berman about his new 
book,Give Us the Ballot: The Modern Struggle for Voting Rights in 
America 
<http://www.amazon.com/Give-Us-Ballot-Struggle-America/dp/0374158274/ref=sr_1_1?s=books&ie=UTF8&qid=1439304257&sr=1-1&keywords=give+us+the+ballot+the+modern+struggle+for+voting+rights+in+america>. 
As I wrote atSlate 
<http://www.slate.com/articles/news_and_politics/politics/2015/08/how_to_save_the_voting_rights_act_voting_rights_shouldn_t_rely_on_parsing.html>, 
Berman’s book masterfully tells the story of the five-decades of the 
Voting Rights Act, which turns 50 next week.

Among the topics we discussed: how do voting rights pioneers like John 
Lewis see today’s fights over voting rules? How much have things changed 
since 1965? Are today’s voting wars more about race or party? Why has 
the struggle for Latino voting rights received comparatively little 
attention? What is the potential for court intervention and political 
change over restrictive voting rules?

You can read excerpts of Ari’s bookhere 
<http://www.thenation.com/article/how-the-2000-election-in-florida-led-to-a-new-wave-of-voter-disenfranchisement/>andhere 
<http://www.theatlantic.com/politics/archive/2015/08/give-us-the-ballot-expanding-the-voting-rights-act/399128/>, 
and check out hisrecent NY Times oped 
<http://www.nytimes.com/2015/08/06/opinion/why-the-voting-rights-act-is-once-again-under-threat.html?action=click&pgtype=Homepage&module=opinion-c-col-right-region&region=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region>.

Listenhere 
<https://soundcloud.com/rick-hasen/elb-podcast-episode-1-ari-berman-give-us-the-ballot>or 
click below.

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Posted inELB Podcast <http://electionlawblog.org/?cat=116>,The Voting 
Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>


-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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