[EL] ELB News and Commentary 6/9/15

Tue Jun 9 11:45:24 PDT 2015

And what of the VRAA? Is the refusal to pass a fix for the coverage formula
-- or even to debate alternatives to the deceased Section 4 -- not a
substantively partisan, as opposed to a superficially partisan, issue
today? In 2006, James Sensenbrenner helped lead the charge for
reauthorization and George W Bush signed it as I recall. Today, the same
party won't even engage on reforming the key provision of the VRA. There's
obviously a political calculation there and it's not just based on taking a
superficial public stand. I don't think Hillary's off base in talking about
that in a way that can be characterized as polarizing, because the issue is
already polarized. Same with voter ID laws.

I'm sympathetic to much of Rick's argument, but ultimately I don't think
Hillary speaking out on these issues makes that much difference one way or
the other. The PCEA report, while incredibly useful in setting out a
consensus agenda on a variety of election reform ideas that would improve
the availability and convenience of registration and voting for millions,
shied away from issues like voter ID and documentary proof of citizenship
laws, what type of and how much early voting is necessary, how to treat
out-of-precinct provisional ballots (which has been litigated in Ohio for
years), permitting voter registration on Election Day (which demonstrably
increases voter turnout), felon disenfranchisement, and whether ERIC or
Crosscheck should be used for voter registration list maintenance, even
though the former results in zero false positives and many new
registrations and the latter (run out of KS SoS Kris Kobach's office)
returns reams of false positives to local clerks. The PCEA couldn't engage
these issues because they're politically fraught, would destroy the
consensus, and have been at the center of hard-fought constitutional and
VRA litigation for more than a decade.

But for what the PCEA *did* talk about, there is actually a fair amount of
emerging bipartisan consensus. Online voter registration, the PCEA report's
leading recommendation on registration, has now either been implemented or
passed in 28 states - it was an idea that started in Arizona in 2002 and is
now in Georgia, Kansas, Louisiana, etc. Oklahoma passed it with such little
fanfare this year that it barely got press coverage; it passed without a
single dissenting vote in New Mexico in what was otherwise a very divided
section; and Florida of course just passed it with bipartisan support --
and almost nothing passes in Florida with bipartisan support. The
bipartisan support was so overwhelming that Gov. Scott had to
(begrudgingly) sign it, because he and his Secretary of State were
seemingly the only two people in the state who didn't want OVR. That there
should be some form of voting before Election Day is embraced by almost all
states regardless of partisan control - and the holdouts reveal no
discernible pattern. Texas, Tennessee and Georgia have early voting; New
York, Mississippi, Michigan, New Jersey and Pennsylvania do not (and as far
as I know, have never had early voting even when there were Democratic
majorities and administrations). I don't think Hillary Clinton's
endorsement of automatic voter registration will undermine the OVR wave,
and AVR is only in one state, so it's pretty early days for that idea. I
think the fate of the AVR bill in Ohio is unlikely to hinge on whether or
not a presidential candidate endorses or opposes it, or accuses the other
side of playing politics with the right to vote, especially when the SoS is
struggling just to get OVR passed. Similarly, so much of the country
already has early voting, the fights will remain over what type and how
much. Well before Hillary gave her speech, certain state legislatures had
long been fighting to narrow both the days and hours available for early
voting and it's hard to imagine how her speech could make what was already
incredibly acrimonious even more divisive. Cooler heads had already
prevailed in Ohio which already has a lot of early voting. Though there's
renewed litigation over that issue in Ohio, I see her comments as being
more directed towards Wisconsin's early voting reductions, which eliminated
all weekend days and effectively ended weeknight hours where 5pm is COB for
the office.

Voter ID and other recent controversial voting laws have been in the
legislatures and courts now for about a decade. A good chunk of what
Hillary discussed has already passed from the realm of public policy debate
into the realm of religion - you either believe in it or you don't - and
the balance of what she discussed won't be derailed because one
presidential candidate endorsed it. (Christie vetoed the early voting bill
well before this speech.... And does anyone believe a consensus on felon
re-enfranchisement would emerge faster, if Hillary Clinton avoided talking
about it or if Democratic candidates wouldn't point a finger at Gov. Hogan
in MD?) Which is why I think it's relatively safe terrain for politics,
without it risking the emerging consensus around *some* voting reforms
which strike the broader public as no-brainers because they simply increase
the convenience of the voting experience.

On Tue, Jun 9, 2015 at 1:04 PM, Ilya Shapiro <IShapiro at cato.org> wrote:

>  She’s making it a partisan thing because it is a partisan thing: there’s
> no systematic attempt to disenfranchise anybody and campaign finance
> “reform” is a solution in search of a problem – but both issues play
> extremely well to the Dem base. (There are, of course, issues that
> Republican politicians raise to activate their base that also aren’t real
> problems.) So let’s not kid ourselves: it’s not healthy for the country,
> but Hillary’s doing what she thinks she needs to do to get elected. It
> might work.
>
>
>
> Ilya Shapiro
>
> Senior Fellow in Constitutional Studies,
>
> Editor-in-Chief of the *Cato Supreme Court Review*
>
> Cato Institute
>
> 1000 Massachusetts Ave. NW
>
> Washington, DC  20001
>
> tel. (202) 218-4600
>
> cel. (202) 577-1134
>
> fax. (202) 842-3490
>
> ishapiro at cato.org
>
> Bio/clips: http://www.cato.org/people/shapiro.html
>
> Twitter: www.twitter.com/ishapiro
>
> SSRN: http://ssrn.com/author=1382023
>
>
>
> *Cato Supreme Court Review*:  http://www.cato.org/supreme-court-review
>
>
>
> Watch our 2014 Constitution Day Conference - Supreme Court
> Review/Preview:  http://www.cato.org/events/13th-annual-constitution-day
>
>
>
> See me defend the right to keep and bear arms on the Colbert Report:
> http://www.colbertnation.com/the-colbert-report-videos/340923/july-08-2010/automatics-for-the-people---ilya-shapiro---jackie-hilly
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Paul Gronke
> *Sent:* Tuesday, June 09, 2015 12:55 PM
> *To:* Rick Hasen; law-election at uci. edu law-election at uci. edu
> *Subject:* Re: [EL] ELB News and Commentary 6/9/15
>
>
>
> Is Rick Hasen looking for some love?  We love ya, Rick!  :-)
>
>
>
> You know that I wrote a piece following a similar piece regarding the
> automatic voter registration bill passed by the Oregon legislature and
> signed by Governor Kate Brown.  I remained agnostic in the piece about AVR,
> but regretted that the bill passed without a single Republican vote.  (
> http://www.oregonlive.com/opinion/index.ssf/2015/03/with_motor_voter_bill_oregon_p.html
> )
>
>
>
> I have received negative feedback similar to yours, Rick.  I try to
> explain that setting the rules of the game via purely partisan votes can be
> problematic, often using the tired but apt analogy of one soccer team
> choosing a referee before a match.
>
>
>
> The responses I receive are more of (1) and (3), by the way.
>
>
>
> Some academic friends hoisting me on my own petard, recommending Alex
> Keyssar's book to me (which I have usually recommended to them first!).
> After all, since Keyssar's primary argument is that the right to vote
> throughout American history has waxed and waned in response to partisan
> competition, why should we expect anything different today?
>
>
>
> What do you think about that argument (Mark Elias made a similar argument
> on a Twitter exchange)?
>
>
>
> On Tue, Jun 9, 2015 at 8:52 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>  Pushback on My Hillary Voting Wars Piece
> <http://electionlawblog.org/?p=73306>
>
> Posted on June 9, 2015 8:50 am <http://electionlawblog.org/?p=73306> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> The good news is that Doug Chapin
> <http://about%20a%20quarter%20of%20americans%20also%20say%20they%27d%20like%20to%20see%20their%20state%20expand%20early%20voting%2C%20while%2037%20percent%20say%20their%20state%27s%20policies%20are%20about%20right.%20only%209%20percent%20want%20to%20see%20early%20voting%20reduced.%20%20more%20broadly%2C%20a%20majority%20of%20the%20public%20--%2061%20percent%20--%20say%20that%20low%20voter%20turnout%20is%20at%20least%20a%20moderate%20problem.%20many%2C%20though%2C%20aren%27t%20sure%20it%27s%20the%20government%27s%20problem%20to%20fix.%20forty-six%20percent%20of%20people%20say%20the%20government%20is%20already%20doing%20enough%20to%20make%20sure%20that%20everyone%20who%20wants%20to%20vote%20in%20elections%20is%20able%20to%2C%20while%2032%20percent%20say%20it%20isn%27t.%20democrats%20say%20by%20a%2024-point%20margin%20that%20the%20government%20doesn%27t%20do%20enough%2C%20while%20republicans%20say%20by%20a%2055-point%20margin%20that%20it%20does./> liked
> my Slate piece
> <http://blog.lib.umn.edu/cspg/electionacademy/2015/06/putting_out_a_fire_with_gasoli.php> from
> yesterday on whether Hillary Clinton is making real election reform harder
> by framing the issue as a partisan fight. The bad news is that Doug seems
> to be alone in telling me to “Rock on.”  Most thoughtful people I know with
> whom I share my writing have had a much more negative reaction to the
> piece, even if it appears that Clinton’s framing of the issue may decrease Republican
> support for reform <http://electionlawblog.org/?p=73304>.
>
> I would say the responses fit into three categories:
>
> 1. There are no moderate Republicans who will deal on election reform.
> Republicans won’t support fixing the Voting Rights Act or anything else so
> there’s very little to lose (and, as I agree in the Slate piece, Clinton is
> advancing good policies and it is good base politics for her to give this
> red meat to her supporters). The examples I give in the eighth paragraph of
> my piece, where Republicans and Democrats have come together on issues, is
> simply too little, or the policies they’ve come together on, too
> insignificant.
>
> 2. The few moderate Republicans out there are more likely to respond by
> being shamed into doing the right thing than through rational discussion.
> (I’m not sure how to judge what is more effective, but I thought the
> Bauer-Ginsberg commission was a good example of how things could get done
> with the rhetoric lower.)
>
> 3. The comments of Scott Walker, Rick Perry etc. about the extent of voter
> fraud and the policies they have adopted are so outrageous that they
> deserve to be called out for their bad behavior.  (On this point, I agree,
> but I don’t think the Clinton, who has about an even chance to be the next
> President, is the one to do it.  I try to do it all the time on the blog
> when the issue arises, and many, many people write about this.)
>
> I usually don’t have doubts about the positions I put forward in my opeds
> and commentaries, but this pushback has been so strong from many people I
> respect that I will think on this some more.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D73306&title=Pushback%20on%20My%20Hillary%20Voting%20Wars%20Piece&description=>
>
>
>
> ---
> Paul Gronke    Ph: 503-771-3142
> paul.gronke at gmail.com
> Professor of Political Science and
> Director, Early Voting Information Center
> Reed College
>
> http://earlyvoting.net
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Jon Sherman
Staff Attorney
Fair Elections Legal Network <http://www.fairelectionsnetwork.com/>*
1825 K Street NW, Suite 450
Washington, D.C. 20006
Phone: (202) 248-5346
jsherman at fairelectionsnetwork.com
www.fairelectionsnetwork.com
[image: Twitter] <https://twitter.com/fairerelections>[image: Facebook]
<https://www.facebook.com/FairElectionsLegalNetwork>
*The contents of this email should not be construed as legal advice.

On Tue, Jun 9, 2015 at 1:04 PM, Ilya Shapiro <IShapiro at cato.org> wrote:

>  She’s making it a partisan thing because it is a partisan thing: there’s
> no systematic attempt to disenfranchise anybody and campaign finance
> “reform” is a solution in search of a problem – but both issues play
> extremely well to the Dem base. (There are, of course, issues that
> Republican politicians raise to activate their base that also aren’t real
> problems.) So let’s not kid ourselves: it’s not healthy for the country,
> but Hillary’s doing what she thinks she needs to do to get elected. It
> might work.
>
>
>
> Ilya Shapiro
>
> Senior Fellow in Constitutional Studies,
>
> Editor-in-Chief of the *Cato Supreme Court Review*
>
> Cato Institute
>
> 1000 Massachusetts Ave. NW
>
> Washington, DC  20001
>
> tel. (202) 218-4600
>
> cel. (202) 577-1134
>
> fax. (202) 842-3490
>
> ishapiro at cato.org
>
> Bio/clips: http://www.cato.org/people/shapiro.html
>
> Twitter: www.twitter.com/ishapiro
>
> SSRN: http://ssrn.com/author=1382023
>
>
>
> *Cato Supreme Court Review*:  http://www.cato.org/supreme-court-review
>
>
>
> Watch our 2014 Constitution Day Conference - Supreme Court
> Review/Preview:  http://www.cato.org/events/13th-annual-constitution-day
>
>
>
> See me defend the right to keep and bear arms on the Colbert Report:
> http://www.colbertnation.com/the-colbert-report-videos/340923/july-08-2010/automatics-for-the-people---ilya-shapiro---jackie-hilly
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Paul Gronke
> *Sent:* Tuesday, June 09, 2015 12:55 PM
> *To:* Rick Hasen; law-election at uci. edu law-election at uci. edu
> *Subject:* Re: [EL] ELB News and Commentary 6/9/15
>
>
>
> Is Rick Hasen looking for some love?  We love ya, Rick!  :-)
>
>
>
> You know that I wrote a piece following a similar piece regarding the
> automatic voter registration bill passed by the Oregon legislature and
> signed by Governor Kate Brown.  I remained agnostic in the piece about AVR,
> but regretted that the bill passed without a single Republican vote.  (
> http://www.oregonlive.com/opinion/index.ssf/2015/03/with_motor_voter_bill_oregon_p.html
> )
>
>
>
> I have received negative feedback similar to yours, Rick.  I try to
> explain that setting the rules of the game via purely partisan votes can be
> problematic, often using the tired but apt analogy of one soccer team
> choosing a referee before a match.
>
>
>
> The responses I receive are more of (1) and (3), by the way.
>
>
>
> Some academic friends hoisting me on my own petard, recommending Alex
> Keyssar's book to me (which I have usually recommended to them first!).
> After all, since Keyssar's primary argument is that the right to vote
> throughout American history has waxed and waned in response to partisan
> competition, why should we expect anything different today?
>
>
>
> What do you think about that argument (Mark Elias made a similar argument
> on a Twitter exchange)?
>
>
>
> On Tue, Jun 9, 2015 at 8:52 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>  Pushback on My Hillary Voting Wars Piece
> <http://electionlawblog.org/?p=73306>
>
> Posted on June 9, 2015 8:50 am <http://electionlawblog.org/?p=73306> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> The good news is that Doug Chapin
> <http://about%20a%20quarter%20of%20americans%20also%20say%20they%27d%20like%20to%20see%20their%20state%20expand%20early%20voting%2C%20while%2037%20percent%20say%20their%20state%27s%20policies%20are%20about%20right.%20only%209%20percent%20want%20to%20see%20early%20voting%20reduced.%20%20more%20broadly%2C%20a%20majority%20of%20the%20public%20--%2061%20percent%20--%20say%20that%20low%20voter%20turnout%20is%20at%20least%20a%20moderate%20problem.%20many%2C%20though%2C%20aren%27t%20sure%20it%27s%20the%20government%27s%20problem%20to%20fix.%20forty-six%20percent%20of%20people%20say%20the%20government%20is%20already%20doing%20enough%20to%20make%20sure%20that%20everyone%20who%20wants%20to%20vote%20in%20elections%20is%20able%20to%2C%20while%2032%20percent%20say%20it%20isn%27t.%20democrats%20say%20by%20a%2024-point%20margin%20that%20the%20government%20doesn%27t%20do%20enough%2C%20while%20republicans%20say%20by%20a%2055-point%20margin%20that%20it%20does./> liked
> my Slate piece
> <http://blog.lib.umn.edu/cspg/electionacademy/2015/06/putting_out_a_fire_with_gasoli.php> from
> yesterday on whether Hillary Clinton is making real election reform harder
> by framing the issue as a partisan fight. The bad news is that Doug seems
> to be alone in telling me to “Rock on.”  Most thoughtful people I know with
> whom I share my writing have had a much more negative reaction to the
> piece, even if it appears that Clinton’s framing of the issue may decrease Republican
> support for reform <http://electionlawblog.org/?p=73304>.
>
> I would say the responses fit into three categories:
>
> 1. There are no moderate Republicans who will deal on election reform.
> Republicans won’t support fixing the Voting Rights Act or anything else so
> there’s very little to lose (and, as I agree in the Slate piece, Clinton is
> advancing good policies and it is good base politics for her to give this
> red meat to her supporters). The examples I give in the eighth paragraph of
> my piece, where Republicans and Democrats have come together on issues, is
> simply too little, or the policies they’ve come together on, too
> insignificant.
>
> 2. The few moderate Republicans out there are more likely to respond by
> being shamed into doing the right thing than through rational discussion.
> (I’m not sure how to judge what is more effective, but I thought the
> Bauer-Ginsberg commission was a good example of how things could get done
> with the rhetoric lower.)
>
> 3. The comments of Scott Walker, Rick Perry etc. about the extent of voter
> fraud and the policies they have adopted are so outrageous that they
> deserve to be called out for their bad behavior.  (On this point, I agree,
> but I don’t think the Clinton, who has about an even chance to be the next
> President, is the one to do it.  I try to do it all the time on the blog
> when the issue arises, and many, many people write about this.)
>
> I usually don’t have doubts about the positions I put forward in my opeds
> and commentaries, but this pushback has been so strong from many people I
> respect that I will think on this some more.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D73306&title=Pushback%20on%20My%20Hillary%20Voting%20Wars%20Piece&description=>
>
>
>
> ---
> Paul Gronke    Ph: 503-771-3142
> paul.gronke at gmail.com
> Professor of Political Science and
> Director, Early Voting Information Center
> Reed College
>
> http://earlyvoting.net
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Jon Sherman
Staff Attorney
Fair Elections Legal Network <http://www.fairelectionsnetwork.com/>*
1825 K Street NW, Suite 450
Washington, D.C. 20006
Phone: (202) 248-5346
jsherman at fairelectionsnetwork.com
www.fairelectionsnetwork.com
[image: Twitter] <https://twitter.com/fairerelections>[image: Facebook]
<https://www.facebook.com/FairElectionsLegalNetwork>
*The contents of this email should not be construed as legal advice.
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