[EL] ELB News and Commentary 5/30/15
Rick Hasen
rhasen at law.uci.edu
Fri May 29 17:44:56 PDT 2015
Before the Supreme Court Term Ends, It Could Take Another
Blockbuster Elections Case <http://electionlawblog.org/?p=72962>
Posted onMay 29, 2015 5:37 pm
<http://electionlawblog.org/?p=72962>byRick Hasen
<http://electionlawblog.org/?author=3>
Kobach v. EAC
<http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-1164.htm>is
getting close to the end of briefing and a decision on whether to take
the case. (Does anyone have a copy of the Government’s brief in the
case, which is not yet on the SG’s site?) The case could be a doozy on
the question of federal vs. state power in setting the rules for federal
elections, and I think there’s a pretty good chance the Supreme Court
agrees to hear it. Here wasmy coverage
<http://electionlawblog.org/?p=68115>of the 10th Circuit’s ruling:
*Breaking: 10th Circuit, in Major Voting Case, Rejects Kansas and
Arizona Citizenship Proof Requirement*
Posted onNovember 7, 2014 2:18 pm
<http://electionlawblog.org/?p=68115>byRick Hasen
<http://electionlawblog.org/?author=3>
You can read the unanimous 10th Circuit opinion in Kobach v. U.S.
EAC, reversing the lower court,at this link.
<http://electionlawblog.org/wp-content/uploads/kobach-eac-10th.pdf>
Kansas and Arizona tried to force the federal government to require
those who register to vote using a simple federal form for voter
registration include proof of citizenship if the voter is a KS or AZ
resident. (Update: To be clear, this case concerns only whether AZ
or KS have to accept federal form without additional proof of
citizenship. For those who register with AZ or KS forms, the states
can still demand proof of citizenship.)
The lower court sided with the states, but the federal government
won with a reversal on appeal. The case could well be headed to the
Supreme Court as a major dispute over federal versus state power in
voting.
From the opinion’s conclusion:
Kobach’s and Bennett’s argument that the states’ Qualifications
Clause powers trump Congress’ Elections Clause powers is foreclosed
by precedent. In ITCA, the Court clearly held that Congress’
Elections Clause powers preempt state laws governing the “Times,
Places and Manner” of federal elections, including voter
registration laws. 133 S. Ct. at 2253. Citing the Federalist Papers,
the Court noted that the Framers expressly rejected giving the
states exclusive authority to regulate federal elections because
“an exclusive power of regulating elections for the national
government, in the hands of the State legislatures, would leave the
existence of the Union entirely at their mercy.” Id.Only the
dissenting opinion by Justice Thomas endorses the theory that
Arizona and Kansas press before this court. Id. at 2266-69 (Thomas,
J., dissenting). The dissent proves the point….
In sum, the EAC had valid authority under HAVA to subdelegate
decisionmaking authority to its Executive Director relating to the
contents of the Federal Form. Under the unique circumstances of this
case (involving a quorum-less EAC), an appeal from the Executive
Director’s decision to deny the states’ requests to modify the
contents of the Federal Form was impracticable. Consequently, the
Executive Director’s decision constitutes final agency action. And
that action—which fell within the bounds of the subdelegation that
the EAC issued when it had a quorum—was procedurally valid.
Contrary to Kobach’s and Bennett’s claims, the NVRA does not impose
a ministerial duty on the EAC to approve state requests to change
the Federal Form. The Executive Director’s denial of the states’
requests survives our APA review, and the states’ constitutional
claims are unavailing. We therefore REVERSE the ruling of the
district court and REMAND the case to the district court with
instructions to vacate its order instructing the EAC to modify the
Federal Form.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,Elections Clause
<http://electionlawblog.org/?cat=70>,Supreme Court
<http://electionlawblog.org/?cat=29>
Nate Persily Talks to Bloomberg Law’s June Grasso about Evenwel
<http://electionlawblog.org/?p=72959>
Posted onMay 29, 2015 5:18 pm
<http://electionlawblog.org/?p=72959>byRick Hasen
<http://electionlawblog.org/?author=3>
Listen. <http://media.bloomberg.com/bb/avfile/Politics/Law/vc6QU9XkR17A.mp3>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“New ‘robocall’ rules could leave Americans in the dark; Pollsters
see the FCC’s proposed guidelines on automated calls as an
existential threat” <http://electionlawblog.org/?p=72955>
Posted onMay 29, 2015 3:41 pm
<http://electionlawblog.org/?p=72955>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico.
<http://www.politico.com/story/2015/05/new-robocall-rules-fcc-pollsters-polling-118422.html?hp=t1_r>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“NRA: Accusations in Yahoo News Report are False; Group says they
didn’t intentionally mislead donors”
<http://electionlawblog.org/?p=72953>
Posted onMay 29, 2015 2:50 pm
<http://electionlawblog.org/?p=72953>byRick Hasen
<http://electionlawblog.org/?author=3>
Washington Free Beacon
<http://freebeacon.com/issues/nra-accusations-in-yahoo-news-report-are-false/>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“The Unlikely Race-Blind Mastermind Who’s Teeing Up the Roberts
Court Just Scored Again” <http://electionlawblog.org/?p=72951>
Posted onMay 29, 2015 2:47 pm
<http://electionlawblog.org/?p=72951>byRick Hasen
<http://electionlawblog.org/?author=3>
Christian Farias
<http://nymag.com/daily/intelligencer/2015/05/meet-the-mastermind-teeing-up-the-roberts-court.html>on
Ed Blum.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Common Cause “Gerrymander Standard” Winners Will Be Announced Next
Week <http://electionlawblog.org/?p=72948>
Posted onMay 29, 2015 1:31 pm <http://electionlawblog.org/?p=72948>byDan
Tokaji <http://electionlawblog.org/?author=5>
Last year Common Cause launched the inauguralDemocracy Prize Writing
Competition to identify the best “gerrymander standard
<http://www.commoncause.org/issues/voting-and-elections/redistricting/gerrymander-standard-writing-competition.html>.”
We had the honor of serving as co-chairs of the judging panel. Our
goal was to encourage fresh thinking about a standard for partisan
gerrymandering that can be used to challenge some of the most egregious
examples of drawing districts for political advantage. With the Supreme
Court poised to issue a decision in/Arizona State Legislature v. Arizona
Independent Redistricting Commission
<http://www.commoncause.org/issues/voting-and-elections/redistricting/arizona-supreme-court-case/>/,
identifying a standard that empowers citizens to challenge unfair
maps is more important than ever.
Scholars and students from around the country submitted papers putting
forth a wide variety of ideas. Our distinguished panel of judges
identified three winning entries. Each of these papers represents
especially thought-provoking and creative scholarship, making important
contributions to the study of elections and democracy. On Monday,
Tuesday, and Wednesday of next week, we’ll announce each of the winning
entries in daily blog posts summarizing their ideas and linking to the
papers. All three of the winning papers will be published in/Election
Law Journal/ this fall.
We’d like to thank our fellow judges for their hard work and thoughtful
analysis of the submissions. Our judging panel included Wayne State
University Law School Dean Jocelyn Benson, Duke Law Professor and Center
on Law, Race and Politics Director Guy-Uriel Charles, Office of
Congressional Ethics Board Member Alison Hayward, and Pepperdine School
of Law Professor Derek Muller.
Thanks also to all of those who submitted papers. Many of those we
didn’t select represent exciting contributions to the field, which we
hope to see in print soon.
Norm Ornstein & Dan Tokaji
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Posted inelection law biz
<http://electionlawblog.org/?cat=51>,redistricting
<http://electionlawblog.org/?cat=6>
Clinton Lawyer Marc Elias Among Those Behind Major New Voting Rights
Lawsuit in Wisconsin <http://electionlawblog.org/?p=72945>
Posted onMay 29, 2015 1:27 pm
<http://electionlawblog.org/?p=72945>byRick Hasen
<http://electionlawblog.org/?author=3>
Here is howthe
complaint<https://drive.google.com/file/d/0B7iBFXmiN89QLU5NWkhhZnYzTkpDNHdYSE0xUXRCV2pfeWI0/view?pli=1>for
the lawsuit filed in federal court in Wisconsin begins:
This lawsuit concerns the most fundamental of rights guaranteed
citizens in our representative democracy—the right to vote. That
right has been under attack in Wisconsin since Republicans gained
control of the governor’s office and both houses of the
State Legislature in the 2010 election. Indeed, since 2011, the
State of Wisconsin has twice reduced in-person absentee (“early”)
voting, introduced restrictions on voter registration, changed
its residency requirements, enacted a law that encourages invasive
poll monitoring, eliminated straight-ticket voting, eliminated for
most (but not all) citizens the option to obtain an absentee ballot
by fax or email, and imposed a voter identification (“voter ID”)
requirement. These measures were intended to burden, abridge, and
deny, and have had and will have the effect of burdening, abridging,
and denying, the voting rights of Wisconsinites generally and of
African-American, Latino, young, and/or Democratic voters in
Wisconsin in particular.
As set forth below, these and the other provisions challenged in
this Complaint (the “challenged provisions”) violate Section 2 of
the Voting Rights Act, 52 U.S.C. § 10301, and/or the First
Amendment, the Equal Protection Clause of the Fourteenth Amendment,
the Fifteenth Amendment, and/or the Twenty-Sixth Amendment to the
United States Constitution. The challenged provisions should
therefore be declared illegal and enjoined.
A few thoughts:
1. As with thenew Ohio litigation <http://electionlawblog.org/?p=72382>,
the case is not officially being brought by the Clinton campaign but is
being backed by the Clinton’s general counsel, Marc Elias. It is hard to
believe such a suit would not be brought with Marc’s involvement without
political vetting by the Clinton campaign.
2. These lawsuits serve a political purpose even if they are not
successful legally. They keep the issue of voter suppression in the
minds of Democratic constituencies and help galvanize Democratic voters.
It puts Democrats on the offensive rather than the defensive.
3. As to the chances of success, if this case gets before the same
federal judge which initially struck down Wisconsin’s voter id law, this
case could well have a good chance of success. [Update: The case was
filed in Western district, and Judge Adelman (as well as Judge Randa,
who would not be a good draw for Democrats) is in the Eastern district.]
But its fate is much less certain before the 7th Circuit (which reversed
that district court opinion) or the Supreme Court. These cases are hard
to win, especially if they are premised on a “retrogression” theory.
But we’ll see. It is really too early for me to to say.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
AALS Election Law Call for Papers <http://electionlawblog.org/?p=72943>
Posted onMay 29, 2015 1:08 pm
<http://electionlawblog.org/?p=72943>byRick Hasen
<http://electionlawblog.org/?author=3>
From Josh Douglas:
The AALS Section on Election Law is is seeking abstracts or drafts
of papers to be presented at the 2016 Annual Meeting in New York,
NY. This year’s program is entitled: *Election Law at the Local Level*.
Here the program description:
Although national election controversies grab the headlines,
decisions made at the local level impact our elections in important
ways – and even contribute to those national issues. Local and
state actors play a front-line role in administering elections for
all levels of government. This panel will focus on how local
jurisdictions handle important issues such as ballot access, voting
rights, early voting, Election Day processes, and post-election
disputes. Panelists will explain how these issues relate to the
smooth running of the election, and how they might impact the 2016
presidential election season. One panelist will be chosen from a
Call for Papers.
Confirmed panelists include Jocelyn Benson (Wayne State), Rich Ford
(Stanford), David Schleicher (Yale), and Trey Greyson (former
Kentucky Secretary of State). We are looking for one additional
panelist to join this distinguished group.
The program will take place on*Friday, January 8, 2016 from 10:30
am-12:15 pm*.
Please submit an abstract or draft paper to Section Chair Josh
Douglas atjoshuadouglas at uky.edu <mailto:joshuadouglas at uky.edu>. The
deadline is*August 15, 2015*.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Misleading 538 Headline on the Effect of Evenwel on Congressional
Reapportionment <http://electionlawblog.org/?p=72941>
Posted onMay 29, 2015 10:46 am
<http://electionlawblog.org/?p=72941>byRick Hasen
<http://electionlawblog.org/?author=3>
538 has a post, The Supreme Court Could Give The GOP Another 8 Seats In
Congress
<http://fivethirtyeight.com/features/the-supreme-court-could-give-the-gop-another-8-seats-in-congress/>,
by the very smart David Wassernman and Harry Enten, but its headline is
quite misleading.
As I’veexplained at /Slate/,
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>at
stake in the /Evenwel/case is whether /state legislative districts/might
have to be redrawn to take into account total numbers of (eligible or
registered) voters, rather than total population. This could hurt Latino
representation (and have other effects) /within/state legislatures.
It is /possible/, but not necessarily certain, that such a ruling could
be extended to districting of /congressional districts within //states/.
However, as I explained in a post, No, The Evenwel Case Does Not Put the
Apportionment of Congressional Districts to the States in Play
<http://electionlawblog.org/?p=72858>, it is extremely /unlikely/such a
rule would apply to the apportionment of congressional districts /among
states/. That’s because of how the Constitution sets forth the means of
apportionment.
Yet the headline at 538 saying 8 states could shift to GOP is premised
on the idea that the Supreme Court would put this up for grabs. If you
read the article, however, it admits it is very unlikely to happen
before going through an extensive analysis:
A move toward counting only eligible voters, as logistically
difficult as it may be, would drastically shift political power away
from the urban environs with minorities and noncitizens, and toward
whiter areas with larger native-born populations. That’s bad news
for Democrats: Of the 50 congressional districts with the lowest
shares of eligible voters, 41 are occupied by Democrats (nearly all
are Latino-majority seats). Meanwhile, of the 50 districts with the
highest shares of eligible voters, 38 are represented by the GOP.
Most legal scholars are skeptical that this case will change the way
House seats and Electoral College votes are apportioned to states
every 10 years; after all, the Constitution pretty clearly
references the role of the Census’s population count in this process.
But let’s lay out a hypothetical for a minute. What would happen if
counts of/voters/rather than/people/were used for both
reapportionment (allotting seats among the states) and redistricting
(drawing boundaries within states)? States with large Latino
populations would be penalized. Based on the 2013 ACS data,
California would lose six House seats, Texas would lose four and New
York one, while a smattering of other states would each gain one seat.
Very, very misleading.
UPDATE: To its credit, 538 has changed the headline to: The Supreme
Court Could Transfer A Lot Of Political Power Away From Cities
<http://fivethirtyeight.com/features/the-supreme-court-could-give-the-gop-another-8-seats-in-congress/> and
added this update:
*UPDATE (May 29, 7:53 p.m.)*: Rick Hasen, an election law professor
at the University of California, Irvine,pointed out
<http://electionlawblog.org/?p=72941>that the original headline on
this article gave the impression this case was likely to change the
apportionment of House seats and Electoral College votes. As the
story points out, such a change is unlikely. We’ve changed the
headline to avoid any confusion.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Overcoming Voting Obstacles The Use of Convenience Voting by Voters
With Disabilities” <http://electionlawblog.org/?p=72939>
Posted onMay 29, 2015 10:27 am
<http://electionlawblog.org/?p=72939>byRick Hasen
<http://electionlawblog.org/?author=3>
Peter Miller and Sierra Powell have writtenthis article
<http://apr.sagepub.com/content/early/2015/05/27/1532673X15586618?papetoc>for
/American Politics Research/. Here is the abstract:
We examine the extent to which Americans with disabilities vote at
the polls or take advantage of convenience voting reforms relative
to voters without disabilities. The Help America Vote Act (2002)
sought, in part, to increase polling place accessibility for the
voters with disabilities, with a particular focus on those with
vision disabilities. We construct two operationalizations of
disability from the November Voting and Registration Supplement of
the Current Population Survey over eight elections. A multinomial
logistic model shows voters with a disability are significantly less
likely to vote but are more likely to vote by mail ballot. Early
in-person voting reforms have a marginal effect on the voting
behavior of voters with disabilities. A matching model reveals
adopting no-excuse absentee voting, permanent absentee voting, or
both reforms increases the likelihood of voters with a disability
casting a mail ballot.
This is an important contribution by two UCI grad students whose
doctoral committees I sat on. Highly recommended!
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Posted invoters with disabilities <http://electionlawblog.org/?cat=71>
--
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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