[EL] ELB News and Commentary 5/30/15

[Marty Lederman]

I don't have a pdf yet of the government's brief, but a Word version is
attached.

On Fri, May 29, 2015 at 8:44 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>     Before the Supreme Court Term Ends, It Could Take Another Blockbuster
> Elections Case <http://electionlawblog.org/?p=72962>
> Posted on May 29, 2015 5:37 pm <http://electionlawblog.org/?p=72962> by Rick
> 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 on November 7, 2014 2:18 pm <http://electionlawblog.org/?p=68115>
>  by Rick 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.
>
>
>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72962&title=Before%20the%20Supreme%20Court%20Term%20Ends%2C%20It%20Could%20Take%20Another%20Blockbuster%20Elections%20Case&description=>
>   Posted in election 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 on May 29, 2015 5:18 pm <http://electionlawblog.org/?p=72959> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Listen.
> <http://media.bloomberg.com/bb/avfile/Politics/Law/vc6QU9XkR17A.mp3>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72959&title=Nate%20Persily%20Talks%20to%20Bloomberg%20Law%E2%80%99s%20June%20Grasso%20about%20Evenwel&description=>
>   Posted in redistricting <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 on May 29, 2015 3:41 pm <http://electionlawblog.org/?p=72955> by Rick
> 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>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72955&title=%E2%80%9CNew%20%E2%80%98robocall%E2%80%99%20rules%20could%20leave%20Americans%20in%20the%20dark%3B%20Pollsters%20see%20the%20FCC%E2%80%99s%20proposed%20guidelines%20on%20automated%20calls%20as%20an%20existential%20threat%E2%80%9D&description=>
>   Posted in Uncategorized <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 on May 29, 2015 2:50 pm <http://electionlawblog.org/?p=72953> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Washington Free Beacon
> <http://freebeacon.com/issues/nra-accusations-in-yahoo-news-report-are-false/>
> .
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72953&title=%E2%80%9CNRA%3A%20Accusations%20in%20Yahoo%20News%20Report%20are%20False%3B%20Group%20says%20they%20didn%E2%80%99t%20intentionally%20mislead%20donors%E2%80%9D&description=>
>   Posted in Uncategorized <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 on May 29, 2015 2:47 pm <http://electionlawblog.org/?p=72951> by Rick
> 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.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72951&title=%E2%80%9CThe%20Unlikely%20Race-Blind%20Mastermind%20Who%E2%80%99s%20Teeing%20Up%20the%20Roberts%20Court%20Just%20Scored%20Again%E2%80%9D&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>      Common Cause “Gerrymander Standard” Winners Will Be Announced Next
> Week <http://electionlawblog.org/?p=72948>
> Posted on May 29, 2015 1:31 pm <http://electionlawblog.org/?p=72948> by Dan
> Tokaji <http://electionlawblog.org/?author=5>
>
> Last year Common Cause launched the inaugural Democracy 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
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72948&title=Common%20Cause%20%E2%80%9CGerrymander%20Standard%E2%80%9D%20Winners%20Will%20Be%20Announced%20Next%20Week&description=>
>   Posted in election 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 on May 29, 2015 1:27 pm <http://electionlawblog.org/?p=72945> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Here is how the 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 the new 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.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72945&title=Clinton%20Lawyer%20Marc%20Elias%20Among%20Those%20Behind%20Major%20New%20Voting%20Rights%20Lawsuit%20in%20Wisconsin&description=>
>   Posted in election 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 on May 29, 2015 1:08 pm <http://electionlawblog.org/?p=72943> by Rick
> 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 at
> joshuadouglas at uky.edu.  The deadline is *August 15, 2015*.
>
>  [image: Share]
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>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      Misleading 538 Headline on the Effect of Evenwel on Congressional
> Reapportionment <http://electionlawblog.org/?p=72941>
> Posted on May 29, 2015 10:46 am <http://electionlawblog.org/?p=72941> by Rick
> 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’ve explained 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.
>
> ...
>
> [Message clipped]
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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