[EL] ELB News and Commentary 619/15

Rick Hasen rhasen at law.uci.edu
Thu Jun 18 21:16:44 PDT 2015 

    “Washington Post Carries Unconvincing Op-Ed Saying New Hampshire Can
    Keep Bernie Sanders Off the Primary Ballot”
    <http://electionlawblog.org/?p=73616>

Posted onJune 18, 2015 8:45 pm 
<http://electionlawblog.org/?p=73616>byRick Hasen 
<http://electionlawblog.org/?author=3>

Ballot Access News reports 
<http://ballot-access.org/2015/06/18/washington-post-carries-unconvincing-op-ed-saying-new-hampshire-can-keep-bernie-sanders-off-the-primary-ballot/>.

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Posted inballot access <http://electionlawblog.org/?cat=46>,political 
parties <http://electionlawblog.org/?cat=25>,primaries 
<http://electionlawblog.org/?cat=32>


    “Let’s have an honest debate on the debates”
    <http://electionlawblog.org/?p=73614>

Posted onJune 18, 2015 8:14 pm 
<http://electionlawblog.org/?p=73614>byRick Hasen 
<http://electionlawblog.org/?author=3>

Larry Diamond and David King 
<http://thehill.com/blogs/congress-blog/presidential-campaign/245135-lets-have-an-honest-debate-on-the-debates>in 
The Hill.

    Political debates matter. They can alter the course of a campaign,
    propel a candidate or an idea, and provide voters an unfiltered
    window into how potential leaders handle tough situations. For the
    last six months, there has been a significant conversation over the
    state of the general election presidential debates and the role that
    the Commission on Presidential Debates (CPD) plays in maintaining
    the two-party duopoly that is so fiercely protected by the
    Republican and Democratic parties.

     From the first moments of this conversation, the debate over the
    debates has been characterized by misinformation from the CPD in
    order to make it appear to be a nonpartisan organization. Perhaps
    they should be renamed the Commission on Partisan Debates.

    In particular, there are three untruths that the CPD is perpetuating
    that, in order for there to be an honest debate over the inclusion
    of a non-major party candidate, must be dispelled.

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Posted incampaigns <http://electionlawblog.org/?cat=59>,third parties 
<http://electionlawblog.org/?cat=47>


    SCOTUS Signaling in Today’s Opinions
    <http://electionlawblog.org/?p=73609>

Posted onJune 18, 2015 8:00 pm 
<http://electionlawblog.org/?p=73609>byRick Hasen 
<http://electionlawblog.org/?author=3>

Justices not only decide cases. They often signal other actors to bring 
cases, pass legislation or take other action (as I explore in 
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How 
Supreme Court Justices Move the Law 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750398&download=yes>).

Today Justice Kennedy seemed to invite an Eighth Amendment challenge to 
solitary confinement practices, an issue not really before the Court. 
  AsSamantha Lachman explains 
<http://www.huffingtonpost.com/2015/06/18/supreme-court-solitary-confinement-_n_7614776.html>:

    Justice Anthony Kennedy agreed with the majorityin a capital
    punishment case
    <http://www.huffingtonpost.com/2015/06/18/supreme-court-death-penalty_n_7612264.html>Thursday.
    But in an unusual move, he dedicated almost all of hisconcurring
    opinion
    <http://www.supremecourt.gov/opinions/14pdf/13-1428_n64o.pdf>to
    condemning the practice of solitary confinement in the nation’s
    prisons, even though the issue, of his own admission, had “no direct
    bearing” on the case….

    Kennedy’s opinion emphasized growing evidence that solitary
    confinement irreparably harms prisoners, quoting authors Charles
    Dickens and Fyodor Dostoyevsky along the way. Crucially, he invites
    litigation — which isalready winding its way
    <http://www.washingtonpost.com/local/crime/lawsuit-threatens-to-upend-solitary-confinement-on-vas-death-row/2015/06/06/bfd949ba-049f-11e5-8bda-c7b4e9a8f7ac_story.html>through
    the federal court system — over the issue. Kennedy frequently serves
    as the court’s swing vote, so this invitation may hearten criminal
    justice reform advocates.

    “In a case that presented the issue, the judiciary may be required,
    within its proper jurisdiction and authority, to determine whether
    workable alternative systems for long-term confinement exist, and,
    if so, whether a correctional system should be required to adopt
    them,” he wrote.

And then in a case involving the confrontation clause, Justice Scalia in 
a caustic concurrence accused Justice Alito of a stealth overruling of 
the /Crawford/case Justice Scalia authored in this area.Josh Blackman 
<http://joshblackman.com/blog/2015/06/18/scalia-calls-out-alito-for-his-hostility-to-crawford/>:

    Justice Scalia’s concurring opinion in Ohio v. Clark
    <http://www.supremecourt.gov/opinions/14pdf/13-1352_ed9l.pdf>,
    joined by Justice Ginsburg, absolutely excoriates Justice Alito (by
    name!) for his attempt tostealthily overrule
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750398&download=yes>Crawford
    v. Washington. In Crawford, Justice Scalia garnered a majority to
    adopt an originalist understanding of the Confrontation Clause. In
    2007 (before Heller), I recall Scalia saying that Crawford is the
    opinion he is most proud of. Since Crawford, the Court has chipped
    away at the holding, and brought the law back closer to Ohio v.
    Roberts, the so called “indicia of reliability” standard that
    existed for two decades before. Ohio v. Clark is another step on
    that process. In response, Scalia opens up with both barrels at
    Justice Alito.

    I write separately, however, to protest the Court’s*shov­eling of
    fresh dirt*upon the Sixth Amendment right of confrontation so
    recently rescued from the grave in Craw- ford v. Washington, 541 U.
    S. 36 (2004). For several dec­ ades before that case, we had been
    allowing hearsay statements to be admitted against a criminal
    defendant if they bore “‘indicia of reliability.’” Ohio v. Roberts,
    448 U. S. 56, 66 (1980). Prosecutors, past and present, love that
    flabby test. Crawford sought to bring our application of the
    Confrontation Clause back to its original meaning, which was to
    exclude unconfronted statements made by witnesses—i.e., statements
    that were testimonial. 541 U. S., at 51. We defined testimony as a “
    ‘solemn declara­ tion or affirmation made for the purpose of
    establishing or proving some fact,’” ibid.—in the context of the
    Confronta­ tion Clause, a fact “potentially relevant to later
    criminal prosecution,” Davis v. Washington, 547 U. S. 813, 822 (2006).

    Scalia, referring to Alito as “the author” faults the Justice for
    being unable to overturn Crawford, so he pretends like it doesn’t exist.

    Crawford remains the law. But when else has the categorical
    overruling, the thorough repudiation, of an earlier line of cases
    been described as nothing more than “adopt[ing] a different
    approach,” ante, at 4—as though Crawford is only a matter of
    twiddle-dum twiddle-deepreference, and the old, pre-Crawford
    “approach” remains available? The author unabashedly displays
    his*hostility to Crawford*and its progeny, perhaps aggravated by in-
    ability to muster the votes to overrule them. Crawford “does not
    rank on the (author of the opinion’s) top-ten list of favorite
    precedents—and … the (author) could not restrain [himself] from
    saying (and saying and saying) so.” Harris v. Quinn, 573 U. S. ___,
    ___ (2014) (KAGAN, J., dissenting) (slip op., at 15).

AndMORE<http://prawfsblawg.blogs.com/prawfsblawg/2015/06/hittson-the-superfluous-signal.html#more>from 
Richard Re on Justice Ginsburg’s signalling to the Eleventh Circuit last 
week to “correct its error.”

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    Citizens United Makes Cameo Appearance in SCOTUS Reed v. Gilbert
    Signs Case Today <http://electionlawblog.org/?p=73607>

Posted onJune 18, 2015 7:32 pm 
<http://electionlawblog.org/?p=73607>byRick Hasen 
<http://electionlawblog.org/?author=3>

I’m a little surprised Justice Sotomayor did not distance herself from 
this aspect of Justice Thomas’s majority opinion inReed v. Gilbert 
<http://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf>today:

    In any case, the fact that a distinction is speaker based does not,
    as the Court of Appeals seemed to believe, automatically render the
    distinction content neutral. Because “[s]peech restrictions based on
    the identity of the speaker are all too often simply a means to
    control content,”/Citizens United/v./Federal Election Comm’n/, 558
    U. S. 310, 340 (2010), we have insisted that “laws favoring some
    speakers over others demand strict scrutiny when thelegislature’s
    speaker preference reflects a content preference,”/Turner,/512 U.
    S., at 658. Thus, a law limiting the content of newspapers, but only
    newspapers, could not evade strict scrutiny simply because it could
    be characterized as speaker based. Likewise, a content-based law
    that restricted the political speech of all corporations would not
    become content neutral just because it singled out corporations as a
    class of speakers. See/Citizens United, supra/, at 340–341.
    Characterizing a distinction as speaker based is only the
    beginning—not the end—of the inquiry….

    Because the Town’s Sign Code imposes content-based restrictions on
    speech, those provisions can stand only if they survive strict
    scrutiny, “‘which requires the Government to prove that the
    restriction furthers a compelling interest and is narrowly tailored
    to achieve that interest,’ ”/Arizona Free Enterprise Club’s Freedom
    Club PAC/v./Bennett/, 564 U. S. ___, ___ (2011) (slip op., at 8)
    (quoting/Citizens United/, 558 U. S./,/at 340). Thus, it is the
    Town’s burden to demonstrate that the Code’s differentiation between
    temporary directional signs and other types ofsigns, such as
    political signs and ideological signs, furthers a compelling
    governmental interest and is narrowly tailored to that end. See/ibid/.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    Scott Walker Officially Testing the Waters
    <http://electionlawblog.org/?p=73605>

Posted onJune 18, 2015 7:19 pm 
<http://electionlawblog.org/?p=73605>byRick Hasen 
<http://electionlawblog.org/?author=3>

NYT. 
<http://www.nytimes.com/politics/first-draft/2015/06/18/scott-walker-moves-toward-candidacy-with-fund-raising-arm/>

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


    “Bernie Sanders’s primary problem” <http://electionlawblog.org/?p=73603>

Posted onJune 18, 2015 7:15 pm 
<http://electionlawblog.org/?p=73603>byRick Hasen 
<http://electionlawblog.org/?author=3>

Charles 
Bass<http://www.washingtonpost.com/opinions/bernie-sanderss-primary-problem/2015/06/18/9a089abc-1523-11e5-9ddc-e3353542100c_story.html>WaPo 
oped:

    Addressing hundreds of supporters while campaigning in Keene, N.H.,
    last month,Sen. Bernie Sanders (I-Vt.) declared
    <http://www.sentinelsource.com/news/local/bernie-sanders-visits-keene-for-first-time-as-presidential-candidate/article_ac0b4ce0-4fa4-5327-b62c-159f24bdec14.html>:
    “Let me tell you a secret: We’re going to win New Hampshire!”

    He has some reason to feel confident, given thata new poll
    <http://www.nytimes.com/politics/first-draft/2015/06/16/bernie-sanders-on-the-rise-in-new-hampshire-polling/?_r=0>put
    him just 10 percentage points behind front-runner Hillary Clinton in
    the Democratic presidential primary in the Granite State. But before
    he pops the champagne corks, I have a secret of my own to share with
    the senator: He may not qualify for the New Hampshire ballot as a
    Democrat.

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Posted inballot access <http://electionlawblog.org/?cat=46>,political 
parties <http://electionlawblog.org/?cat=25>,primaries 
<http://electionlawblog.org/?cat=32>


    “Federal Election Commission Members Really Don’t Like Each Other”
    <http://electionlawblog.org/?p=73601>

Posted onJune 18, 2015 2:39 pm 
<http://electionlawblog.org/?p=73601>byRick Hasen 
<http://electionlawblog.org/?author=3>

Paul Blumenthal on theugliness 
<http://www.huffingtonpost.com/2015/06/18/federal-election-commission_n_7615084.html?1434656571>at 
the FEC.

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Posted infederal election commission <http://electionlawblog.org/?cat=24>


    Hillary Clinton’s Focus on Voting Rights and Campaign Finance
    <http://electionlawblog.org/?p=73598>

Posted onJune 18, 2015 2:06 pm 
<http://electionlawblog.org/?p=73598>byRick Hasen 
<http://electionlawblog.org/?author=3>

Detailed on herweb page here 
<https://www.hillaryclinton.com/the-four-fights/revitalizing-our-democracy/>.

David Donnelly 
<https://twitter.com/daviddonnelly/status/611640005895831555>sees “weak 
tea” so far.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,The 
Voting Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>


    “Corporations are people. But are FEC commissioners people too?”
    <http://electionlawblog.org/?p=73596>

Posted onJune 18, 2015 1:58 pm 
<http://electionlawblog.org/?p=73596>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo. 
<http://www.washingtonpost.com/news/powerpost/wp/2015/06/18/corporations-are-people-but-are-fec-commissioners-people-too/>

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


    “Public Citizen Refiles Petition for FEC Commissioners Who Were
    Rebuffed by Their Own Agency” <http://electionlawblog.org/?p=73594>

Posted onJune 18, 2015 1:55 pm 
<http://electionlawblog.org/?p=73594>byRick Hasen 
<http://electionlawblog.org/?author=3>

Press release. 
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=5558>

Make Your Laws hasdone the same 
<https://twitter.com/MakeYourLaws/status/611549340327354369>.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal 
election commission <http://electionlawblog.org/?cat=24>


    Big News: Changes Made to North Carolina Voter ID Law
    <http://electionlawblog.org/?p=73591>

Posted onJune 18, 2015 1:13 pm 
<http://electionlawblog.org/?p=73591>byRick Hasen 
<http://electionlawblog.org/?author=3>

Press release via email from the Southern Coalition for Social Justice:

    On the eve of trial in the legal challenge to North Carolina’s
    oppressive Voter ID law, the General Assembly has capitulated,
    voting overwhelmingly in both houses to allow qualified voters who
    lack photo identification to affirm their identifies and exercise
    their constitutional right to vote.

    In passing House Bill 836 on Thursday, the General Assembly created
    an alternative to disenfranchisement for voters who lack current
    photo identification. Those voters will now be able to cast a ballot
    after providing their birthdates, the last four digits of their
    Social Security number, and an affidavit stating that there is a
    “reasonable impediment” to their ability to present a photo ID.

    This change comes after months of litigation by the Southern
    Coalition for Social Justice, on behalf of the League of Women
    Voters of North Carolina, North Carolina A. Philip Randolph
    Institute, and individuals, against the North Carolina State Board
    of Elections. The new legislation follows a series of nine public
    hearings held across the state this month, at which election
    officials fielded comments from the public about implementation of
    the Voter ID requirement, which takes effect beginning with the 2016
    presidential primary election. SCSJ and its partners were present at
    each of those nine public hearings, from Manteo to Boone, and
    encouraged the state to allow more flexibility in implementation of
    the Voter ID requirement to minimize the number of voters who are
    disenfranchised by the 2013 voter suppression law.

    At the June 3rd hearing in Raleigh, Dr. Brenda Rogers, co-president
    of the League of Women Voters of North Carolina, urged the State
    Board of Elections “to provide clarification to ensure that all
    eligible voters may exercise their constitutional right, which is
    not a privilege, but a right.” Rogers provided examples of how the
    law leaves open to interpretation many aspects of the Voter ID
    requirement, which harms voters by creating confusion in the
    election process and the potential for unequal enforcement of the law.

    In encouraging House members to pass House Bill 863 on Thursday,
    Rep. John Lewis, R-Harnett, emphasized that the feedback received
    during the public hearing process necessitated a legislative
    response. When the General Assembly passed the Voter Information
    Verification Act in August 2013, Lewis said, “we said that it was
    our intent that every person who was a duly eligible voter would be
    fully able to participate and exercise their right.” Lewis noted
    that the new bill fills some of the gaps left by VIVA by providing
    “a failsafe” for affected voters, ensuring that “a qualified voter
    will have no impediment in exercising their right to vote.”

    Since VIVA was enacted in 2013, the Southern Coalition for Social
    Justice and its partners have amassed a huge amount of evidence
    demonstrating the burden that the voter suppression bill places on
    qualified voters in North Carolina, not only by imposing a photo ID
    requirement, but also by cutting a week out of the early voting
    period, eliminating same-day registration, discounting valid votes
    cast outside a voter’s assigned precinct, eliminating
    pre-registration for 16- and 17-year-old citizens, and eliminating
    straight-ticket voting. These changes not only add to the already
    long lines at polling places and the administrative burden placed on
    election officials, but they also disenfranchise qualified North
    Carolina voters who for valid reasons are unable to obtain photo
    identification or make multiple trips to government agencies in
    order to exercise their constitutional right to vote.

    Although today’s changes are a step in the right direction for North
    Carolina voters, obstacles to voting remain. During debate on the
    House floor Thursday afternoon, Rep. Henry Michaux, D-Durham, noted
    that the modification merely “makes a bad bill a little less worse.”

Will be very interesting to see how this affects litigation strategy and 
the courts’ views of North Carolina’s law, which does much more to make 
registration and voting harder aside from the new voter id requirements.

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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>


    NY Senate Approves Instant Runoff Voting for NYC Elections
    <http://electionlawblog.org/?p=73589>

Posted onJune 18, 2015 1:08 pm 
<http://electionlawblog.org/?p=73589>byRick Hasen 
<http://electionlawblog.org/?author=3>

Interesting. 
<http://us3.campaign-archive1.com/?u=ca0fb41d668202ba6cc542ca8&id=5e6aab4770>

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Posted inalternative voting systems <http://electionlawblog.org/?cat=63>


    The Ballot Measure Business is Big <http://electionlawblog.org/?p=73587>

Posted onJune 18, 2015 9:22 am 
<http://electionlawblog.org/?p=73587>byRick Hasen 
<http://electionlawblog.org/?author=3>

CPI 
<http://www.publicintegrity.org/2015/06/11/17469/political-profiteers-push-ohios-pot-vote>:

    Active in the26 states
    <http://ballotpedia.org/States_with_initiative_or_referendum>that
    have citizen-initiated ballot measures, the network of pollsters,
    direct mail specialists, lawyers, consultants, signature gatherers
    and voting data whizzes were paid at least$400 million
    <http://www.publicintegrity.org/2015/06/08/17464/more-400-million-spent-ballot-measures-2014>for
    85 statewide measures across the country in 2014, according to
    aCenter for Public Integrity
    <http://www.publicintegrity.org/>analysis of state records.  In
    presidential election years, state and local measures are a
    billion-dollar industry, said ballot initiative expertDavid McCuan
    <https://www.sonoma.edu/polisci/faculty/david-mccuan.html>.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,direct 
democracy <http://electionlawblog.org/?cat=62>


    “Presidential candidates defy campaign finance limits through
    well-funded outside groups” <http://electionlawblog.org/?p=73584>

Posted onJune 18, 2015 8:49 am 
<http://electionlawblog.org/?p=73584>byRick Hasen 
<http://electionlawblog.org/?author=3>

AP: 
<http://www.usnews.com/news/politics/articles/2015/06/17/presidential-candidates-lean-on-well-funded-outside-groups>

    Republican Jeb Bush and Democrat Hillary Rodham Clinton are asking
    donors to write the checks to get their campaigns started. Yet these
    “new” candidates have been fueling their presidential ambitions for
    months — years, in Clinton’s case — thanks to outside groups that
    will continue serving as big-money bank accounts throughout the race.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
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    The Astroturf Presidential Campaign
    <http://electionlawblog.org/?p=73582>

Posted onJune 18, 2015 8:44 am 
<http://electionlawblog.org/?p=73582>byRick Hasen 
<http://electionlawblog.org/?author=3>

Donald Trump Campaign Offered Actors $50 to Cheer for Him at 
Presidential Announcement 
<http://www.hollywoodreporter.com/news/donald-trump-campaign-offered-actors-803161>.

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

-- 
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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