[EL] Blowback from Rick's Slate piece

Tue Jun 9 14:42:45 PDT 2015

The VRA Reauthorization in 2006 passed the Senate 98 to 0 with 2 not voting
and passed the House 390 (Rep. Goodlatte voting Aye) to 33 with 9 not
voting. I must have missed the "demagoguery" you refer to. You make it
sound like the Republican majority acted under duress in passing the law
which renewed Section 5 for another 25 years. It's just the people that
changed, not the facts on the ground or the need for a functioning Section
5.

On Tue, Jun 9, 2015 at 5:20 PM, Ilya Shapiro <IShapiro at cato.org> wrote:

>  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
>
> 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:* 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> 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.
>

-- 
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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