[EL] ELB News and Commentary 3/19/15
Rick Hasen
rhasen at law.uci.edu
Thu Mar 19 08:10:54 PDT 2015
DOJ’s Silence on the Wisconsin Voter ID Case Before SCOTUS
<http://electionlawblog.org/?p=71116>
Posted onMarch 19, 2015 8:09 am
<http://electionlawblog.org/?p=71116>byRick Hasen
<http://electionlawblog.org/?author=3>
Linda Greenhouse
<http://www.nytimes.com/2015/03/19/opinion/the-supreme-courts-identity-crisis-on-voting-rights.html?ref=opinion>joins
thechorus <http://electionlawblog.org/?p=70220>of people calling for the
Supreme Court to agree to hearFrank v. Walker
<http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-803.htm>,
the Wisconsin voter id case,up for a Supreme Court conference
<http://electionlawblog.org/?p=70903> vote on Friday. (I think it is
very unlikely we will hear anything Monday, when the Court next issues
orders. If the court is seriously considering the case, it has been
taking two conferences to vet the cases to make sure they are
appropriate vehicles to hear issues. If there is a cert. denial, I would
expect a dissent from that decision, given Justice Ginsburg’s earlier
strong dissent
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ginsburg_s_dissent_in_texas_voter_id_law_supreme_court_order.html>in
the Texas case).
But conspicuously absent from theset of filings
<http://advancementproject.org/pages/wi-scotus-amici-curiae> from amici
calling for the Supreme Court to hear the case is the United States
Department of Justice. DOJ’s failure to support the cert. petition
stands in sharp contrast to the Texas voter id case and the challenge to
North Carolina’s strict voting case, where DOJ is an active participant
beginning at he level of the trial court. It is also in contrast with
DOJ filing anamicus
brief<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Frank41.pdf>in
the 7th Circuit in the Wisconsin case, urging the 7th Circuit to affirm
a lower court holding that Wisconsin’s law violated both Section 2 of
the Voting Rights Act and the Constitution’s equal protection clause.
What explains DOJ’s silence? Within the voting rights community, the
decision to seek cert. in the Wisconsin case is controversial. To win,
it requires the Court to either expand the scope of the Voting Rights
Act section 2 in thevote denial case
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896786>s or to
reinvigorate the equal protection clause in the context of voting rights
beyond that which the Court did in the /Crawford v. Marion County/case.
Crawford, like Frank, came up from the 7th Circuit as a horrible opinion
from a Seventh Circuit judge. I wrote anoped in the /Washington
Post/<http://www.washingtonpost.com/wp-dyn/content/article/2007/09/18/AR2007091801572.html>urging
the Supreme Court to take the case. It did, and the Supreme Court made
things worse. Crawford was essentially a green light for ever more
restrictive voter id laws.
Why should now be different? The Frank decision is also horrible. But
the judge who wrote the horrible Crawford opinion in the Seventh
Circuit,Judge Posner,
<http://www.thedailybeast.com/articles/2013/10/23/why-judge-posner-is-right-on-voter-id-laws.html>had
a revelation that voter id laws were about voter suppression rather than
fraud prevention. Judge Posner wrote a fiery dissent in the Wisconsin
case now, and the 5th circuit divided 5-5 on whether to rehear the
Wisconsin case en banc. Those supporting the cert. petition in the
Wisconsin case, like Linda Greenhouse, are betting that Justice Kennedy
and/or Chief Justice Roberts will have a similar revelation on voter id.
That’s a big, big bet.
Compare that to Texas. In the Texas voter id case, now pending before
the 5th Circuit, we have a holding that Texas’s passage of the voter id
law was the product of intentional racial discrimination. That’s a
finding which should be very hard to reverse on appeal. it provides an
easier constitutional path for the Supreme Court to strike down Texas’s
voter id law. The upside of that would be a Supreme Court decision
striking down a voter id law on constitutional grounds. The downside is
that other cases, like Wisconsin, do not involve intentional
discrimination and so a Texas holding might not help very much outside
of Texas. It would be an outer bound of what’s allowed and forbidden.
But before this Supreme Court, DOJ may have calculated it will take what
it can get.
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Posted inDepartment of Justice
<http://electionlawblog.org/?cat=26>,election administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“2016 Candidates Thumb Their Noses At Campaign Finance Rules”
<http://electionlawblog.org/?p=71114>
Posted onMarch 19, 2015 7:46 am
<http://electionlawblog.org/?p=71114>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Bluenthal reports
<http://www.huffingtonpost.com/2015/03/18/2016-election-campaign-finance_n_6886908.html>for
HuffPo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Senator Durbin Plays the Race Card <http://electionlawblog.org/?p=71112>
Posted onMarch 19, 2015 7:39 am
<http://electionlawblog.org/?p=71112>byRick Hasen
<http://electionlawblog.org/?author=3>
I usually am skeptical of claims that someone is improperly injecting
race into a political issue. But I findSenator Durbin’s comments
<http://www.washingtonpost.com/politics/sen-dick-durbin-gets-historical-in-his-advocacy-for-loretta-lynch/2015/03/18/29152c2e-cdb3-11e4-8c54-ffb5ba6f2f69_story.html>about
Republican obstructionism (and it is obstructionism) on the nomination
of Loretta Lynch to be attorney general to be an improper injection of
race into a purely political issue:
“And so,*Loretta Lynch*, the first African American woman nominated
to be attorney general, is asked to sit in the back of the bus when
it comes to the Senate calendar,” Durbin said on the Senate floor
Wednesday morning. “That is unfair. It’s unjust. It is beneath the
decorum and dignity of the United States Senate. This woman deserves
fairness.”
Durbin, of course, was comparing Lynch to*Rosa Parks*, the civil
rights icon who in 1955 refused to give up her bus seat to a white
passenger.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“A mighty fundraising operation awaits Clinton, as well as financial
hurdles” <http://electionlawblog.org/?p=71110>
Posted onMarch 19, 2015 7:36 am
<http://electionlawblog.org/?p=71110>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read
<http://www.washingtonpost.com/politics/a-mighty-fundraising-operation-awaits-clinton-as-well-as-financial-hurdles/2015/03/19/c405a162-cd74-11e4-8a46-b1dc9be5a8ff_story.html>Matea
Gold at WaPo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“AG to prosecute voter fraud case” <http://electionlawblog.org/?p=71108>
Posted onMarch 19, 2015 7:35 am
<http://electionlawblog.org/?p=71108>byRick Hasen
<http://electionlawblog.org/?author=3>
Texas case
<http://www.brownsvilleherald.com/news/local/article_996416b6-cdea-11e4-9e1a-97e9e292bde0.html>involving
stealing and marking others’ absentee ballots.
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Posted inchicanery <http://electionlawblog.org/?cat=12>,election
administration <http://electionlawblog.org/?cat=18>
“‘Shoot the gays’ initiative likely to be circulated”
<http://electionlawblog.org/?p=71106>
Posted onMarch 19, 2015 7:33 am
<http://electionlawblog.org/?p=71106>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Egelko reports
<http://blog.sfgate.com/nov05election/2015/03/18/shoot-the-gays-initiative-apparently-headed-for-circulation/>for
the /SF Chronicle./
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Posted indirect democracy <http://electionlawblog.org/?cat=62>
“Super PAC Men: How Political Consultants Took a Texas Oilman on a
Wild Ride” <http://electionlawblog.org/?p=71104>
Posted onMarch 19, 2015 7:27 am
<http://electionlawblog.org/?p=71104>byRick Hasen
<http://electionlawblog.org/?author=3>
ProPublica reports.
<http://www.propublica.org/article/super-pac-men-how-political-consultants-took-texas-oilman-on-wild-ride>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Identity Crisis: The Supreme Court’s Identity Crisis on Voting
Rights” <http://electionlawblog.org/?p=71102>
Posted onMarch 19, 2015 7:26 am
<http://electionlawblog.org/?p=71102>byRick Hasen
<http://electionlawblog.org/?author=3>
Linda Greenhouse
<http://www.nytimes.com/2015/03/19/opinion/the-supreme-courts-identity-crisis-on-voting-rights.html?_r=0>in
the NYT:
But I have a sense now that those dots are getting connected. Not
only was Selma’s 50th anniversary — the real one, not my imaginary
one of two years ago — a stirring national event, but in Ferguson
itself, residents areturning to the ballot box
<http://www.nytimes.com/2015/03/15/us/politics/city-council-races-offer-change-in-ferguson-after-months-of-upheaval.html>as
the path to reform. I hope it’s not a fantasy to imagine that the
Supreme Court — yes, the Roberts court — will seize the opportunity
that the Wisconsin case provides to send a message different from
the one it sent two years ago, an affirmative message the country
now urgently needs to hear.
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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>
“Oregon’s Automatic Registration is Law: Now What?”
<http://electionlawblog.org/?p=71100>
Posted onMarch 19, 2015 7:24 am
<http://electionlawblog.org/?p=71100>byRick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://blog.lib.umn.edu/cspg/electionacademy/2015/03/oregons_automatic_registration.php>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voter registration
<http://electionlawblog.org/?cat=37>
“U.S. appeals court says Texas should not pay legal fees in voting
case” <http://electionlawblog.org/?p=71096>
Posted onMarch 18, 2015 4:15 pm
<http://electionlawblog.org/?p=71096>byRick Hasen
<http://electionlawblog.org/?author=3>
Anyone have details onthis
<http://www.reuters.com/article/2015/03/18/us-usa-texas-voterid-idUSKBN0ME01B20150318>?
I cannot find an order at the 5th Circuit website.
UPDATE:Here
<http://www.ca5.uscourts.gov/opinions/pub/14/14-50042-CV0.pdf>is the
decision. It is section 5 Texas redistricting litigation, not the voter
id litigation, as was initially erroneously reported (and it was not a
$3 million award affirmed, it was a $300,000 award reversed).
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“IRS may broaden rule to police political nonprofits”
<http://electionlawblog.org/?p=71094>
Posted onMarch 18, 2015 4:03 pm
<http://electionlawblog.org/?p=71094>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico Pro witha big story
<https://www.politicopro.com/story/tax/?id=44964>(albeit behind the
paywall):
The IRS may broaden a looming controversial rule to police political
nonprofits to include political parties and political action
committees, the IRS chief said Wednesday.
IRS Commissioner John Koskinen said the agency may expand a
yet-to-be-released rule governing 501(c)(4), “social welfare”
groups, to include political groups known as 527s, which focus on
elections. It could require them both — as well as other types of
tax-exempt groups — to operate under the same definition of
“political activity.”
It is really hard to assess the implications of all of this without
seeing a draft rule.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“The Coordination Fallacy” <http://electionlawblog.org/?p=71092>
Posted onMarch 18, 2015 4:00 pm
<http://electionlawblog.org/?p=71092>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Gilbert and Brian Barnes have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579296>on SSRN
(forthcoming FSU Law Review). Here is the abstract:
This symposium piece tackles an important issue in campaign finance:
the relationship between coordinated expenditures and corruption.
Only one form of corruption, the quid pro quo, is constitutionally
significant, and it has three logical elements: (1) an actor, such
as an individual or corporation, conveys value to a politician, (2)
the politician conveys value to the actor, and (3) a bargain links
the two. Campaign finance regulations aim to deter quid pro quos by
impeding the first or third element. Limits on contributions, for
example, fight corruption by capping the value an actor can convey
to a politician. What about limits on coordinated expenditures? By
preventing coordination on large expenditures like television ads,
the law turns very useful support into less useful support, reducing
the value an actor can convey. But actors can surmount this with
more money: $1 million spent on less useful ads can convey a lot of
value, often more than smaller amounts spent on very useful ads or
contributions. Limits on coordination may also inhibit bargaining,
the third element of a quid pro quo, but again, sophisticated actors
can surmount this: they can bargain without discussing the substance
of any expenditures. So coordination regulations cannot deter much
corruption, at least not when wealthy and sophisticated actors are
involved, the very actors who cause the most concern. Consequently,
coordination regulations may violate the Constitution. This is not
because coordinated expenditures do not corrupt but because the
regulations do not deter. Solving this problem requires more than a
broader set of regulations. It requires confronting a fallacy at the
heart of campaign finance: the belief that coordination relates in
any operational way to corruption.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
No Election Law Video Games <http://electionlawblog.org/?p=71090>
Posted onMarch 18, 2015 2:17 pm
<http://electionlawblog.org/?p=71090>byRick Hasen
<http://electionlawblog.org/?author=3>
Hartford Courant
<http://www.courant.com/opinion/editorials/hc-ed-rowland-sentenced-20150318-story.html>:
There are no video games about election law violations, that we know
of, and the subject rarely comes up in television crime dramas. But
clean elections are the bedrock of a representative democracy, and
the laws that support the elective process must be enforced.
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Posted inbribery <http://electionlawblog.org/?cat=54>,campaign finance
<http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“Obama Floats Idea for Mandatory Voting in the US”
<http://electionlawblog.org/?p=71088>
Posted onMarch 18, 2015 2:16 pm
<http://electionlawblog.org/?p=71088>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports.
<http://abcnews.go.com/Politics/wireStory/obama-floats-idea-mandatory-voting-us-29735579>
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Posted invoting <http://electionlawblog.org/?cat=31>
“Kobach: New registration law in Oregon likely to increase vote
fraud” <http://electionlawblog.org/?p=71086>
Posted onMarch 18, 2015 9:42 am
<http://electionlawblog.org/?p=71086>byRick Hasen
<http://electionlawblog.org/?author=3>
Brian Lowry reports.
<http://www.kansas.com/news/politics-government/article15225749.html>
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Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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