[EL] ELB News and Commentary 8/28/15
Rick Hasen
rhasen at law.uci.edu
Fri Aug 28 10:45:36 PDT 2015
“Redistricting Reform Commission holds first meeting with just 10
weeks to act” <http://electionlawblog.org/?p=75677>
Posted onAugust 28, 2015 10:42 am
<http://electionlawblog.org/?p=75677>byRick Hasen
<http://electionlawblog.org/?author=3>
Maryland Reporter
<http://marylandreporter.com/2015/08/27/redistricting-reform-commission-holds-first-meeting-with-just-10-weeks-to-act/>:
Gov. Larry Hogan’s 11-member Redistricting Reform
Commission,created on Aug. 6 by executive order
<https://governor.maryland.gov/wp-content/uploads/2015/08/EO-01.01.2015.21.pdf>,
met for first time near the State House Thursday where they outlined
their first steps to reform the process of drawing Maryland’s
congressional and legislative district lines.
In order to combat Maryland’s A+ grade in gerrymandering,an unlucky
subject to be excelling at
<http://marylandreporter.com/2015/08/16/fairness-is-the-place-to-start-on-redistricting-reform/>,
the commission plans to hold four to five “regional summits,” or
public hearings, over the next two months. The final outcome will be
a report outlining voters concerns with redistricting, due to the
governor and General Assembly leaders by Nov. 3, less than 10 weeks
from now.
The commission will have to produce a quick turnaround with a
“fairly aggressive” schedule, according to the governor’s office. In
addition to the report, the commission is tasked with recommending a
constitutional amendment on congressional and legislative
redistricting to be introduced during the Maryland General
Assembly’s next legislative session.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Presidential Ballot Access: 50 Shades of Law”
<http://electionlawblog.org/?p=75675>
Posted onAugust 28, 2015 10:38 am
<http://electionlawblog.org/?p=75675>byRick Hasen
<http://electionlawblog.org/?author=3>
That’s the lead story inNCSL’s The Canvass.
<http://www.ncsl.org/research/elections-and-campaigns/states-and-election-reform-the-canvass-august-2015.aspx>
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Posted inballot access <http://electionlawblog.org/?cat=46>
“FairVote in the Supreme Court” <http://electionlawblog.org/?p=75673>
Posted onAugust 28, 2015 10:36 am
<http://electionlawblog.org/?p=75673>byRick Hasen
<http://electionlawblog.org/?author=3>
FairVote
<http://www.fairvote.org/research-and-analysis/blog/fairvote-in-the-supreme-court/>:
FairVote provides its innovative analysis and pro-voter perspective
to activists, local and state policymakers, and to all three
branches of the federal government. This month, FairVote
submitted/amicus curiae/(“friend of the court”) briefs along with
theCenter for Competitive Democracy
<http://www.competitivedemocracy.org/>in the Supreme Court for two
cases, each seeking a full hearing before the highest court in the
land. Both briefs highlight practical statutory solutions, such as
forms of ranked choice voting, to the problem of no-choice elections.
Read FairVote’s brief in/Balsam v. Guadagno/, the New Jersey case
about closed primaries,here
<http://www.fairvote.org/assets/FairVote-Balsam-Amicus-Petition-for-Cert.pdf>.
Read FairVote’s brief in/Rubin v. Padilla/, the California case
about “top two,” here
<http://www.fairvote.org/assets/FairVote-Rubin-Amicus-Petition-for-Cert.pdf>.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“INVESTIGATION: Is Ohio the Next Home Of Hanging Chads?”
<http://electionlawblog.org/?p=75671>
Posted onAugust 28, 2015 10:35 am
<http://electionlawblog.org/?p=75671>byRick Hasen
<http://electionlawblog.org/?author=3>
Nicholas Kusnetz of theCenter for Public Integrity
<http://www.publicintegrity.org/2015/08/27/17899/democracy-inaction-old-equipment-and-partisan-battles-threaten-election-integrity>has
writtenthis extensive Politico magazine piece.
<http://www.politico.com/magazine/story/2015/08/ohio-voter-technology-121819>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Donald Trump Weighing Whether to Sign Pledge to Back Republicans’
Eventual Nominee” <http://electionlawblog.org/?p=75669>
Posted onAugust 28, 2015 10:32 am
<http://electionlawblog.org/?p=75669>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/2015/08/28/us/politics/donald-trump-weighing-whether-to-sign-pledge-to-back-republicans-eventual-nominee.html?hp&action=click&pgtype=Homepage&module=second-column-region®ion=top-news&WT.nav=top-news&_r=0>
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
“Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His
Own” <http://electionlawblog.org/?p=75667>
Posted onAugust 28, 2015 10:31 am
<http://electionlawblog.org/?p=75667>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak
<http://www.nytimes.com/2015/08/28/us/justice-clarence-thomas-rulings-studies.html?_r=0>in
the NYT:
Mr. Feldman conducted an extensive analysis of overlapping language,
using anti-plagiarism software to detect similar wording in briefs
and opinions from 1946 to 2014. The study and related findings were
based on almost 10,000 briefs and looked for passages of at least
six words with an overlap of at least 80 percent.
Justice Thomas’s majority opinions had the highest rate of overlaps
with language in parties’ briefs in the decade since Chief Justice
John G. Roberts Jr. joined the court.
Paul M. Collins Jr., a political scientist at the University of
Massachusetts, Amherst, who helped conduct two more limited studies
that came to similar conclusions, said there might be a link between
Justice Thomas’s approach to arguments and the high rates of
seemingly borrowed language in his opinions.“His lack of engagement
in oral arguments suggests that he doesn’t find them especially
useful,” Professor Collins said. “If this is true, his view of cases
is being heavily shaped by the legal briefs filed in the cases.”
Justice Thomas is often more expansive when not writing for the
majority. In the last term, he filed 30 dissents and concurrences,
more than any other justice. Many concerned major constitutional
questions, were longer than the majority opinions they critiqued and
made novel points.
Over the years, the average rate of nearly identical language
between a party’s brief and the majority opinion was 9.6 percent.
Justice Thomas’s rate was 11.3 percent. Justice Sonia Sotomayor’s
was 11 percent, and Justice Ruth Bader Ginsburg’s 10.5 percent. All
three sometimes produce institutional prose.
In response to my tweeting a link to this piece,Judge Michael Smyth
<https://twitter.com/JudgeSmyth>tweeted (in a tweet since deleted)
questioning whether the focus on Justice Thomas was fair, given the
close rates for Justices Sotomayor and Ginsburg.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
AALS Election Law Winner <http://electionlawblog.org/?p=75665>
Posted onAugust 28, 2015 10:27 am
<http://electionlawblog.org/?p=75665>byRick Hasen
<http://electionlawblog.org/?author=3>
From Josh Douglas:
I am pleased to announce that the AALS Section on Election Law has
selected the winner of the Call for Papers: Hank Chambers (U. of
Richmond) “Local Officials and Voter ID.”
Hank will join David Schleicher (Yale Law School), Jocelyn Benson
(Wayne State), Richard T. Ford (Stanford), and Trey Grayson (former
KY Secretary of State) at the Section’s program, titled “Election
Law at the Local Level,” on Friday, January 8, 2016 from 10:30
am-12:15 pm at the AALS Annual Meeting in New York City.
The final paper will be published in the Election Law Journal. I
have pasted the abstract below.
Congratulations, Hank!
*Local Officials and Voter ID*
Henry L. Chambers, Jr., Professor of Law, University of Richmond
The interpretation state and local officials provide of voting laws
can be just as important as the substance of the law. For example,
how voter identification laws are interpreted can be just as
important as the fact that voter identification is required of
voters at the polls. Whether a voter can vote or be assured that
his vote will be counted may depend on the interpretation of voter
identification laws. However, whether a voter can vote may also
depend on how a poll official or poll worker interprets the law.
Further, how much time the voter or other voters must devote to
voting may depend on how the local official or the poll worker
interprets voter identification laws.
Virginia’s voter identification law provides an example. One
legitimate form of identification under that law is “any valid
employee identification card containing a photograph of the voter
and issued by an employer of the voter in the ordinary course of the
employer’s business.” Va. Code §24.2-643. The language of the law
raises many issues. Two are whether validity requires that the card
have an unexpired expiration date and whether validity requires that
the employee continues to be employed by the employer. Though these
questions can be answered by state or local officials well before an
election, poll officials and poll workers must understand how
officials have interpreted the law.
However, even if the official interpretation of the law is
relatively clear, poll officials and poll workers still must
determine whether the identification the voter presents is
sufficient. For example, if the validity of the identification
requires that the voter be employed by the employer when the
identification card is proffered, whether the poll worker may deny
the identification if the voter cannot prove that he or she works
for the employer or whether the poll worker may deny the
identification only if there is a reason for the poll worker to
suspect that the voter does not work for the employer remains an
issue. Resolving such issues in the absence of an absolutely clear
interpretation of the law may take time.
The length of time necessary for a poll worker to determine whether
a voter has valid identification matters. Delays will affect how
long other voters must wait to vote, the likelihood that those other
voters will stay in line to vote, and the likelihood that others
will see long lines and not bother to vote. Media reports of long
lines may also dissuade potential voters from approaching the polls
at all. That is particularly problematic given that voter
identification is not about voter qualification, but is merely
supposed to prove that the voter is the person identified in the
poll book.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Has Lessig Lost It? The Marriage of Larry and the Donald”
<http://electionlawblog.org/?p=75663>
Posted onAugust 28, 2015 10:26 am
<http://electionlawblog.org/?p=75663>byRick Hasen
<http://electionlawblog.org/?author=3>
Steven Rosenfeld
<http://www.alternet.org/election-2016/has-lessig-lost-it-marriage-larry-and-donald>at
Alternet:
Given the arc of Lessig’s activism, it’s not surprising that an
individual who is driven to address one of the fundamental flaws in
American politics is willing to embrace one of America’s most
divisive politicans because he’s saying the right things about his
issue. While that may be predictable or inevitable, it also a bit
desperate and naïve—which has always been the danger of single-issue
politics.
Let’s imagine that Lessig somehow links up with Trump. Are people
who want to see a fundamental restructuring of interplay between
private money and political candidates suppose to ignore Trump’s
racism, sexism, elitism, and war-mongering, just because Trump has
been bombastically telling Americans that he’s invested and gotten
results from politicians, and “that’s a broken system”?
This is the danger of single-issue politics: seeing the light and
being blinded by it. The problem is not that Lessig’s analysis of
the problem is wrong. His remedies, including a national system of
publically financed elections, are also correct—that, too, has been
proven over the years in states and cities to be a generally better
approach than the endless dialing-for-campaign-dollars status quo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“We the Sheeple” <http://electionlawblog.org/?p=75661>
Posted onAugust 28, 2015 10:25 am
<http://electionlawblog.org/?p=75661>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ editorial: <http://www.wsj.com/articles/we-the-sheeple-1440718082>
Wisconsin’s Supreme Court shut down the John Doe investigation of
conservative groups in July, but it turns out the probe was even
worse than the judges knew. Documents filed at the state Supreme
Court opposing Special Prosecutor Francis Schmitz’s motion to
reconsider show that partisan motives ran through those who
conducted their operations in secret while using gag orders to
silence targets….In an email to Mr. Schmitz on Nov. 27, 2013, GAB
staff counsel Shane Falk encouraged the special prosecutor to keep
up the good work and “stay strong” in his pursuit of conservative
nonprofit groups and allies of Mr. Walker. “Remember, in brief, this
was a bastardization of politics and our state is being run by
corporations and billionaires,” Mr. Falk wrote. “That isn’t
democracy to say the least, but due to how they do this dark money,
the populace never gets to know.” “The cynic in me says the sheeple
would still follow the propaganda even if they knew,” Mr. Falk
continued, “but at least it would all be out there so that the
influences on our politicians is clearly known.” By “the sheeple”
Mr. Falk means Wisconsin voters.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Evenwel, Voting Power and Dual Districting”
<http://electionlawblog.org/?p=75659>
Posted onAugust 28, 2015 10:18 am
<http://electionlawblog.org/?p=75659>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Edelman has postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631666>on
SSRN. Here is the abstract:
With the noting of probable jurisdiction in Evenwel v Abbott it
appears that the Supreme Court will finally make clear what “one
person, one vote” is meant to accomplish. Is it supposed to equate
representation between districts, or is it supposed to equate voting
power between districts? Having side-stepped this issue for 50 years
it is time for the Court to make clear what its doctrine is about.
One possibility raised by the plaintiffs in Evenwel is that, at
least in the context of the Texas state senate districts, one
achieve both ends simultaneously. That is, the plaintiffs claim that
it is possible to draw the districts so as to have both equality of
total population as well as equality of citizen voting age
population in every district. To support this claim they provide an
affidavit claiming it can be done in this case as well as an appeal
to the increasing power of the districting software.
If the Court wishes to go down the road of accommodating both
interests it may need to be reassured that the option is available
not only in Texas but in any districting situation. And even if the
Court does not require that districting plans consider the power of
the vote, individual states themselves may wish to if they can do
that as well as achieve equality of representation. That is what I
provide in this paper. I will show that there are very good
theoretical reasons to believe that it will always be possible to
draw districts that will be simultaneously close in both total
population and citizen voting age population (or, indeed, any other
additional population that the Court desires.)
Some of this analysis, however, depends on how the Court chooses to
assess the deviation in voting power. I argue that the choice of a
threshold for total deviation in the voting age population is
intimately related to one’s model of voting power. I show that the
relationship between the deviation of voting power and the deviation
of voting populations is linear in the variable that characterizes
the voting model. Thus, the Court must choose, either explicitly or
implicitly, a model of voting power should it decide to take the
power of the vote into consideration. Even so, I show that the
standard of 10% deviation in the voting population leads to a
deviation of less than 10% in voting power over a broad range of models.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
“Election Sciences, Election Administration, and Election Law Panels
at APSA” <http://electionlawblog.org/?p=75657>
Posted onAugust 28, 2015 10:17 am
<http://electionlawblog.org/?p=75657>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Gronkerounds them up.
<http://blogs.reed.edu/earlyvoting/commentary/election-sciences-election-administration-and-election-law-panels-at-apsa/>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Tom Mann Pulls No Punches in Attacking @Lessig Candidacy
<http://electionlawblog.org/?p=75655>
Posted onAugust 27, 2015 9:55 am
<http://electionlawblog.org/?p=75655>byRick Hasen
<http://electionlawblog.org/?author=3>
Election 2016: Dumbing Down American Politics: Lawrence Lessig and the
Presidency:
<https://igs.berkeley.edu/news/election-2016-dumbing-down-american-politics-lawrence-lessig-and-the-presidency>
The hubris of the Harvard Professor is breathtaking. In virtually
every respect, his strategy is absurd. Lessig’s political reform
agenda is stymied by Republicans, not Democrats. Why not direct his
energies where the opposition resides? All of the current Democratic
presidential candidates support the thrust of these reforms. But
saying that this is their highest priority is likely to harm, not
boost, their candidacies. Why would even the most ardent supporter
of the three pillars of Lessig’s reform agenda cast a ballot solely
on this basis? Big and important issues divide the two parties today
and the stakes of public action or inaction are huge. We don’t have
the luxury of using the election to try to build a mandate for a set
of political reforms that would have no chance of passing in the
face of GOP opposition and would be of only incremental utility if
they did. …
Lessig is a far less commanding presence but his ambition burns no
less than that of Trump. The notoriety, celebrity, and adoring
audiences are heady stuff, even if on a much smaller scale. Lessig
toldBloomberg
<http://www.bloomberg.com/politics/articles/2015-08-24/larry-lessig-says-he-d-give-joe-biden-a-third-term-as-vp>that
Trump’s candidacy is evidence that his reform message is taking
hold. Lessig said, Trump “strikes people as credible when he says
all these people (politicians) are bought – I used to buy them…Trump
is saying the truth.” Lessig will be a minor figure in this
election and the causes for which he fights are unlikely to advance
from it. Both Lessig and Trump, despite their differences in
visibility and importance in the election, will have contributed to
the dumbing down of American politics, a reality that will bring
tears to the eyes of civics teachers and political science
professors across the country.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Amelia Boynton Robinson, activist beaten on Selma bridge, dies at
104″ <http://electionlawblog.org/?p=75653>
Posted onAugust 27, 2015 9:54 am
<http://electionlawblog.org/?p=75653>byRick Hasen
<http://electionlawblog.org/?author=3>
Obituary
<http://www.washingtonpost.com/national/amelia-boynton-robinson-activist-beaten-on-selma-bridge-dies-at-104/2015/08/26/9478d25e-4c11-11e5-bfb9-9736d04fc8e4_story.html>of
a voting rights icon.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
ACLU of Indiana Targets State Ballot Selfies Law
<http://electionlawblog.org/?p=75651>
Posted onAugust 27, 2015 8:30 am
<http://electionlawblog.org/?p=75651>byRick Hasen
<http://electionlawblog.org/?author=3>
The Indiana Law Blog reports.
<http://indianalawblog.com/archives/2015/08/ind_lcourts_acl.html>
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Posted invote buying <http://electionlawblog.org/?cat=43>,voting
<http://electionlawblog.org/?cat=31>
Gov. McDonnell #SCOTUS Reply Brief Now Posted in His Bid to Stay Out
of Jail Pending Cert. Decision <http://electionlawblog.org/?p=75649>
Posted onAugust 27, 2015 7:47 am
<http://electionlawblog.org/?p=75649>byRick Hasen
<http://electionlawblog.org/?author=3>
Here. <http://pub.bna.com/lw/15A218Reply.pdf>
(via Kimberly Robinson
<https://twitter.com/KimberlyRobinsn/status/636912343927103488>)
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Posted inbribery <http://electionlawblog.org/?cat=54>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Parties Play Politics With FEC Complaints”
<http://electionlawblog.org/?p=75647>
Posted onAugust 27, 2015 7:25 am
<http://electionlawblog.org/?p=75647>byRick Hasen
<http://electionlawblog.org/?author=3>
Roll Call:
<http://blogs.rollcall.com/rothenblog/parties-playing-politics-fec-complaints/?dcz=>
But the recent complaints could signal a shift from how the parties
have approached complaints in the past.
“A general truce was in place for a number of years as both parties
realized it wasn’t in their interest,” explained veteran campaign
finance attorney Michael Toner, who is also a former FEC chairman,
about the cost and burden of pursuing and defending
complaints. “That truce is breaking down.”
The source believes the creation of the American Democracy Legal
Fund is a sign that filing FEC complaints could become an
establishment-endorsed tactic in campaigns.
“That would up the ante,” Toner said.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,federal election commission
<http://electionlawblog.org/?cat=24>
--
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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