[EL] Blowback from Rick's Slate piece
Ilya Shapiro
IShapiro at cato.org
Tue Jun 9 14:20:41 PDT 2015
I imagine that most Republicans just don’t want to hand the Democrats a political victory with the VRAA but at least some also understand that it’s unnecessary (and therefore unconstitutional) given that Sections 2 & 3 haven’t been shown not to work. So they wisely choose not to let the Democrats demagogue the issue in Congress as they did in 2006.
As to the PCEA, that’s exactly the sort of thing that’s needed—actual reform of actual problems in election administration. I for one am glad that the commission didn’t/couldn’t get into the various red herrings/subjects of demagoguery. Questions of early voting and such (which you correctly note shouldn’t be partisan) should be left to the states, many of which I think overshot—giving us an Election Month, etc.—so you have obvious corrections as in NC. But there’s certainly no constitutional right to early voting and I don’t fault the judgment of NY not to have any. I think an all-mail ballot—not to be confused with all-male—is problematic because that’s where the fraud comes. But again, these are policy questions best left to the states.
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<mailto:ishapiro at cato.org>
Bio/clips: http://www.cato.org/people/shapiro.html
Twitter: www.twitter.com/ishapiro<http://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: Jon Sherman [mailto:jsherman at fairelectionsnetwork.com]
Sent: Tuesday, June 09, 2015 2:45 PM
To: Ilya Shapiro
Cc: Paul Gronke; Rick Hasen; law-election at uci. edu law-election at uci. edu
Subject: Re: [EL] ELB News and Commentary 6/9/15
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<mailto: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<tel:%28202%29%20218-4600>
cel. (202) 577-1134<tel:%28202%29%20577-1134>
fax. (202) 842-3490<tel:%28202%29%20842-3490>
ishapiro at cato.org<mailto:ishapiro at cato.org>
Bio/clips: http://www.cato.org/people/shapiro.html
Twitter: www.twitter.com/ishapiro<http://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> [mailto: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<mailto: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.
[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<tel:503-771-3142>
paul.gronke at gmail.com<mailto:paul.gronke at gmail.com>
Professor of Political Science and
Director, Early Voting Information Center
Reed College
http://earlyvoting.net
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On Tue, Jun 9, 2015 at 1:04 PM, Ilya Shapiro <IShapiro at cato.org<mailto: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<tel:%28202%29%20218-4600>
cel. (202) 577-1134<tel:%28202%29%20577-1134>
fax. (202) 842-3490<tel:%28202%29%20842-3490>
ishapiro at cato.org<mailto:ishapiro at cato.org>
Bio/clips: http://www.cato.org/people/shapiro.html
Twitter: www.twitter.com/ishapiro<http://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> [mailto: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<mailto: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.
[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<tel:503-771-3142>
paul.gronke at gmail.com<mailto:paul.gronke at gmail.com>
Professor of Political Science and
Director, Early Voting Information Center
Reed College
http://earlyvoting.net
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