[EL] ELB News and Commentary 11/11/15
Rick Hasen
rhasen at law.uci.edu
Wed Nov 11 07:14:48 PST 2015
Stephanopoulos on Berman’s Give Us the Ballot
<http://electionlawblog.org/?p=77471>
Posted onNovember 11, 2015 7:13 am
<http://electionlawblog.org/?p=77471>byRick Hasen
<http://electionlawblog.org/?author=3>
Over at the /New Rambler/:
<http://newramblerreview.com/book-reviews/law/beyond-ballots#.VkNaIuBCqdA.twitter>
In his new book,/Give Us the Ballot/, journalist Ari Berman tells
the story of these stirring moments, and tells it well. But unlike
many civil rights chronicles, his account begins rather than ends in
the 1960s. Via a series of vivid anecdotes, he describes the
tumultuous history of the Voting Rights Act (VRA) from its enactment
all the way to the present day. It’s an important and absorbing
tale—though one that could have been narrated with a bit less
certainty and a bit more nuance….
To be fair, Berman is a reporter writing a history of the VRA, not
an academic trying to solve every puzzle posed by the law. The
journalistic style of threading together anecdotes is not very
conducive to abstract legal analysis. And a popular press
book—thankfully—is not a law review article.
Still, it doesn’t seem like professional craft is why Berman skirts
the hard questions about Sections 2 and 5. The more likely
explanation is that they would have complicated the clear-cut story
he wanted to tell. It’s easy to portray VRA plaintiffs as angels if
all they ask for is the ballot. And we can all condemn VRA
defendants who plot to deny minorities the franchise. But things
become trickier when we start asking/how easy/it should be to vote,
or/how much/representation minorities should have. Tricky or not,
though, these are the issues that account for the continuing
controversy over the VRA./Give Us//the Ballot/would have been
stronger still had it fully considered what/else/minorities have sought.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Ohio Republican Party is baffling feds with its accounting and
math” <http://electionlawblog.org/?p=77469>
Posted onNovember 11, 2015 7:09 am
<http://electionlawblog.org/?p=77469>byRick Hasen
<http://electionlawblog.org/?author=3>
Cleveland.com reports.
<http://www.cleveland.com/open/index.ssf/2015/11/ohio_republican_party_is_baffl.html#incart_2box_open>
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Posted infederal election commission <http://electionlawblog.org/?cat=24>
Updated Versions of Some Scholarship
<http://electionlawblog.org/?p=77467>
Posted onNovember 11, 2015 7:08 am
<http://electionlawblog.org/?p=77467>byRick Hasen
<http://electionlawblog.org/?author=3>
I’ve posted on SSRN revised drafts of some papers in progress:
Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right
Turn But with Speed Bumps and Surprising Twists (draft in progress, Nov.
2015 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902>)
Celebrity Justice: Supreme Court Edition (draft in progress, Oct. 2015
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611729>) — Now
forthcoming, /Green Bag/
This just published:
Why Isn’t Congress More Corrupt? A Preliminary Inquiry
<http://fordhamlawreview.org/assets/pdfs/Vol_84/No_2/Hasen_November.pdf>, Fordham
Law Review (2015)
And still working on these:
Racial Gerrymandering’s Questionable Revival,/Alabama Law
Review/(forthcoming 2015 (draft available
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>)
Reining in the Purcell Principle, /Florida State University Law
Review/(forthcoming 2015) (draft available
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>)
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“MBTA Investigating Possible Voter Fraud In Train Design Contest”
<http://electionlawblog.org/?p=77465>
Posted onNovember 11, 2015 6:58 am
<http://electionlawblog.org/?p=77465>byRick Hasen
<http://electionlawblog.org/?author=3>
Tip to online
<http://boston.cbslocal.com/2015/11/11/mbta-train-design-contest-fraud/>vote
fraudsters: don’t use the same IP address over and over to vote.
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Posted inchicanery <http://electionlawblog.org/?cat=12>
“Seeing Voting Rights Under Siege, Philip Glass Rewrites an Opera”
<http://electionlawblog.org/?p=77463>
Posted onNovember 11, 2015 6:51 am
<http://electionlawblog.org/?p=77463>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2015/11/11/arts/music/revisiting-the-opera-appomattox-in-the-course-of-human-events.html?smid=tw-share&_r=0>:
Since the first version of “Appomattox” had itspremiere in 2007 at
the San Francisco Opera
<http://www.nytimes.com/2007/10/08/arts/music/08glas.html>,
manystates have passed laws
<http://www.nytimes.com/2011/10/03/us/new-state-laws-are-limiting-access-for-voters.html>making
it harder to vote, and, in 2013, the Supreme Courteffectively struck
down the heart of the Voting Rights Act of 1965
<http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html>. So
Mr. Glass and Mr. Hampton significantly revised the opera and made
voting rights a central theme.
When the reimagined work has itspremiere at the Kennedy Center here
on Saturday, presented
<http://www.kennedy-center.org/calendar/event/OQOSA>by the
Washington National Opera, audiences will see how Mr. Glass, perhaps
the most prominent American composer of his generation, weighs in on
a pressing issue in the nation’s capital — where many of the scenes
he is depicting took place and where, if history is any guide, there
are likely to be policy makers and a Supreme Court justice or two in
the audience.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“New DOJ ‘Servicemembers Legislative Package’ Proposes Changes To
UOCAVA” <http://electionlawblog.org/?p=77460>
Posted onNovember 11, 2015 6:49 am
<http://electionlawblog.org/?p=77460>byRick Hasen
<http://electionlawblog.org/?author=3>
Doug Chapin
<http://editions.lib.umn.edu/electionacademy/2015/11/11/new-doj-servicemembers-package-proposes-changes-to-uocava/>:
Yesterday, the Department of Justice released a legislative package
aimed at helping members of the military, veterans and their
families. Here’s an excerpt of thepress release
<http://www.justice.gov/opa/blog/department-justice-announces-legislative-package-bolster-efforts-protect-servicemembers-and>:
/When the Justice Department launched the Servicemembers and
Veterans Initiative last March, we set in motion a dynamic engine to
drive enforcement, outreach and training efforts on behalf of
servicemembers, veterans and their families. It is our
responsibility to protect these individuals from financial scams, to
preserve their right to return to their civilian employment after
active duty and to strengthen their ability to cast a ballot when
they are overseas. When our servicemembers and veterans have peace
of mind that their rights are protected at home, our nation is
stronger./
As part of that package, DOJ is proposing several amendments to the
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), as
amended by the MOVE Act, including….
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,military voting
<http://electionlawblog.org/?cat=48>
“Virginia Legislative Elections Highlight Problems with
Winner-Take-All Elections” <http://electionlawblog.org/?p=77458>
Posted onNovember 11, 2015 6:46 am
<http://electionlawblog.org/?p=77458>byRick Hasen
<http://electionlawblog.org/?author=3>
FairVote
<http://www.fairvote.org/research-and-analysis/blog/virginia-legislative-elections-highlight-problems-with-winner-take-all-elections/>:
The most significant possible outcome for Tuesday’s election in
Virginia was that the Democrats would win control of the state
Senate, which would have made it easier for Governor Terry McAuliffe
(D) to pass key agenda items. But, while the stakes in Tuesday’s
Virginia elections were high, after the dust settled not much had
changed. All 122 incumbents who ran won re-election
<https://www.washingtonpost.com/news/the-fix/wp/2015/11/05/the-2015-election-in-virginia-a-tribute-to-gerrymandering/>and
the Democrats were thwarted in their bid for the state Senate.With
only a handful of competitive races,
<http://www.centerforpolitics.org/crystalball/articles/vying-for-virginia-the-2015-general-assembly-elections/>there
was little reason for most Virginians to even turn out.
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Posted inalternative voting systems <http://electionlawblog.org/?cat=63>
Floyd Abrams Defends Disclosure in WSJ Letter to the Editor
<http://electionlawblog.org/?p=77455>
Posted onNovember 11, 2015 6:45 am
<http://electionlawblog.org/?p=77455>byRick Hasen
<http://electionlawblog.org/?author=3>
Floyd
<http://www.wsj.com/articles/donor-disclosure-fits-the-first-amendment-1447187210>:
With your repeated editorial support for the Supreme Court’s much
maligned/Citizens United/ruling, you have served as a rare
journalistic voice in defense of core First Amendment principles.
But your opposition to disclosure requirements as reflected in your
editorial “Show Us Your Donors
<http://www.wsj.com/articles/show-us-your-donors-1446683580>” (Nov.
5) is not only at odds with/Citizens United/but with virtually all
Supreme Court rulings in this area and the views of all but one of
the present members of that Court. Those cases commenced with
the/Buckley v. Valeo/ruling in 1976 that upheld disclosure
requirements on the ground that they “provid[ed] the electorate with
information” about the sources of spending on elections.
So looking forward to hearing Floyd on Monday as he delivers theRaymond
Pryke First Amendment lecture
<http://www.law.uci.edu/ecards/pryke-lecture-abrams-2015nov16.html>at
UCI Law.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Democracy Beats Oligarchy” <http://electionlawblog.org/?p=77453>
Posted onNovember 11, 2015 6:42 am
<http://electionlawblog.org/?p=77453>byRick Hasen
<http://electionlawblog.org/?author=3>
Katrina vanden Heuvel
<https://www.washingtonpost.com/opinions/democracy-beats-oligarchy/2015/11/10/6dbff3c4-8701-11e5-be39-0034bb576eee_story.html>:
Money in politics will pose a significant threat to our democracy
for as long as/Citizens United/remains the law of the land, but that
doesn’t mean we can’t make our electoral system fairer and more
democratic. Last week, voters in Ohio, Maine and Seattle
demonstrated that there is a broad transpartisan appetite for real
reform, and a path to achieving it. If lawmakers and grass-roots
activists follow their lead, the headlines next time will be different.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Dems push Ryan on campaign finance reform”
<http://electionlawblog.org/?p=77451>
Posted onNovember 11, 2015 6:40 am
<http://electionlawblog.org/?p=77451>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill
<http://thehill.com/homenews/house/259704-dems-push-ryan-on-campaign-finance-reform>:
Democrats in both chambers are pressing Speaker Paul Ryan (R-Wis.)
to reform the campaign finance system in the name of transparency.
The Democrats, who had no luck moving their Disclose Act under
previous Speaker John Boehner (R-Ohio), are hoping his newly tapped
replacement will be more receptive to their argument that anonymous
donors are undermining democracy.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“State Democrats quietly discussing redistricting amendment”
<http://electionlawblog.org/?p=77449>
Posted onNovember 11, 2015 6:38 am
<http://electionlawblog.org/?p=77449>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.capitalnewyork.com/article/new-jersey/2015/11/8582465/state-democrats-quietly-discussing-redistricting-amendment?utm_campaign=trueAnthem:+Trending+Content&utm_content=5642884d04d30130ddaa03f8&utm_medium=trueAnthem&utm_source=facebook>:
ew Jersey Democrats are in the early stages of considering an
amendment to the state constitution that would place new guidelines
on how the state redraws its legislative districts.
The idea was floated to Democratic members of the state Senate and
Assembly during a closed-door meeting Tuesday afternoon at an East
Brunswick conference center, according to two sources with knowledge
of the plan but who were not authorized to speak publicly about it….
The plan, which has not been formally drafted, is backed by the New
Jersey Working Families Alliance, a liberal advocacy group that has
become increasingly influential in New Jersey’s Democratic politics.
Its executive director, Analilia Mejia, helped present the idea to
Democrats. She declined to comment when leaving Tuesday’s meeting.
According to the sources, the biggest part of the proposal would
enshrine into the constitution a provision that legislative district
maps should reflect a political party’s “performance index” in the
statewide vote.
That would favor Democrats, who consistently outperform Republicans
in state legislative elections.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“FEC Deadlocks On Whether Candidates Can Coordinate With Their Own
Super PACs” <http://electionlawblog.org/?p=77447>
Posted onNovember 10, 2015 4:49 pm
<http://electionlawblog.org/?p=77447>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Blumenthal
<http://www.huffingtonpost.com/entry/fec-super-pac-coordination_56426ee7e4b060377346c337?i1d4e7b9>for
HuffPo:
A request to relax limits on coordination between candidates and
super PACs left the Federal Election Commission divided and, at
times, confused at a hearing on Tuesday.
Marc Elias, lawyer for House Majority PAC and Senate Majority PAC,
laid out12 questions
<http://saos.fec.gov/saos/searchao;jsessionid=999149B5F308DE28E65EB355941CC537?SUBMIT=ao&AO=4010&START=1320488.pdf>asking
the commission to decide when a candidate becomes a candidate under
federal election laws, and whether candidates can coordinate with
super PACs or nonprofits that plan to support them prior to publicly
announcing their candidacy.
The request laid out plans for House and Senate Democrats to
establish single-candidate super PACs for prospective candidates to
coordinate with prior to officially announcing their candidacy. This
would dramatically expand the already overlapping worlds of
campaigns and super PACs.
Elias’s questions to the FEC follow months of a presidential
campaign in which someRepublican contenders directly coordinated
with their super PACs and other groups
<http://www.huffingtonpost.com/2015/03/18/2016-election-campaign-finance_n_6886908.html>while
saying publicly they hadn’t decided whether to run.
The central questions in Elias’ request asked whether prospective
candidates could form super PACs, staff them, create advertising
materials for them, raise money for them and share strategy.
FEC commissioners — three Democrats and three Republicans —
deadlocked on the most controversial questions, leaving the
permissibility of these actions up in the air….
This agreement followed a bewildering conversation about the minimum
number of people who could attend a super PAC event where a
candidate was to be a special guest.
Commissioner Stephen Walter wanted to make sure the commission
didn’t set attendance limits that would allow candidates to declare
a meeting with a donor in a pickup truck a fundraising event.
The discussion left Elias outraged at the commission’s inability to
agree whether he had presented enough facts describing such a
hypothetical event. He slammed a folder on the desk, denounced the
commission and threatened to sue.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,federal election commission
<http://electionlawblog.org/?cat=24>
“Ninth Circuit Rules 2-1 that Tucson Can’t Hold City Council
Primaries in Districts, and then At-Large Elections in General”
<http://electionlawblog.org/?p=77445>
Posted onNovember 10, 2015 4:46 pm
<http://electionlawblog.org/?p=77445>byRick Hasen
<http://electionlawblog.org/?author=3>
BAN
<http://ballot-access.org/2015/11/10/ninth-circuit-rules-2-1-that-tucson-cant-hold-city-council-primaries-in-districts-and-then-at-large-elections-in-general/>:
On November 10, the Ninth Circuitissued this opinion
<http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/10/15-16142.pdf>in
Public Integrity Alliance v City of Tucson, 15-16142. By a vote of
2-1, the decision says that Tucson’s system of electing city council
members violates Equal Protection.
Tucson has partisan city elections, and elects one city
councilmember from each of six wards. In the partisan primary,
candidates run within districts, so each district primary nominates
someone to represent each party. But in the general election, the
election is at-large.
Both the majority opinion and the dissent are flawed. The majority
opinion, by Judge Alex Kozinski, a Reagan appointee, says, “Without
the primary, there could be no candidate to compete in the general
election; without the general election, the primary winners would
sit on their hands. Because a candidate must win a primary in order
to compete in the general election, the ‘right to choose a
representative is in fact controlled by the primary’.”
This is a false statement, because Tucson has procedures for
independent candidates to petition directly onto the general
election ballot.
The opinion was co-signed by visiting U.S. District Court Judge
Lawrence Piersol, a Clinton appointee. The dissent is by Judge
Richard Tallman, also a Clinton appointee, although a Republican.
The dissent is also flawed, because it says “The Supreme Court has
been reticent to apply strict scrutiny to state election laws. It
has done so only to evaluate discriminatory poll taxes, property
ownership requirements for voting, and durational residency
requirements.” The Supreme Court has also applied strict scrutiny to
ballot access, most recently in 1992 in Norman v Reed.
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Posted inalternative voting systems
<http://electionlawblog.org/?cat=63>,primaries
<http://electionlawblog.org/?cat=32>
“How the Timing of Elections Shapes Turnout, Election Outcomes, and
Public Policy” <http://electionlawblog.org/?p=77443>
Posted onNovember 10, 2015 4:42 pm
<http://electionlawblog.org/?p=77443>byRick Hasen
<http://electionlawblog.org/?author=3>
Sarah Anzia for SSN:
<http://www.scholarsstrategynetwork.org/content/how-timing-elections-shapes-turnout-election-outcomes-and-public-policy>
Media coverage of elections focuses on candidate personalities,
horserace polling, campaign ads and soundbites, and even, at times,
the issues – but almost never considers the/timing/of elections.
Most people probably have not given any thought to the timing issue,
yet the majority of more than 500,000 elected officials in the
United States are not voted into office on what we typically think
of as “Election Day” – the first Tuesday after the first Monday in
November of even-numbered years. Across the 50 states, elections are
held all the time – during the spring, in odd-numbered years, and in
close succession to one another. Rarely does a week pass without an
election happening somewhere in the United States. And this is more
than a mere curiosity. My research shows that this little-considered
aspect of representative democracy matters in many ways. When
elections happen influences who votes, who wins, and the policies
that result.
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Posted invoting <http://electionlawblog.org/?cat=31>
Interesting Statement from FEC Commissioner Goodman on Role of Press
in Presidential Debates <http://electionlawblog.org/?p=77429>
Posted onNovember 10, 2015 4:40 pm
<http://electionlawblog.org/?p=77429>byRick Hasen
<http://electionlawblog.org/?author=3>
An extensive 17-page concurring statement
<http://www.fec.gov/members/goodman/statements/Concurring_Statement_of_Commissioner_Lee_Goodman_to_Notice_of_Disposition_re_Candidate_Debate_Rulemaking.pdf>,
which begins:
On July 16, 2015, the Commission voted not to open a
new rulemaking proposing stricter mandates on corporate debate
sponsorship as proposed in a petition submitted by an organization
called Level the Playing Field. Today, the Commission issued its
formal Notice of Disposition explaining the rationale for its
decision. I joined the vote and the Notice of Disposition for the
reasons stated in that document and at the Commission’s meeting on
July 16, 2015.
I write separately, however, to express more fundamental concerns
with the Commission’s regulation of press organizations that sponsor
candidate debates as part of their news coverage and programming.
For too long, the Commission has ignored the congressional and
constitutional mandates to unconditionally protect the free press
rights of media entities. Our shared American democracy thrives
only when government respects the media’s freedom and independence
to inform the public about public affairs. But thirty-five years
ago, the Commission made a regulatory error that has encroached upon
that autonomy ever since.
This statement traces the important role media organizations have
played in our nation’s electoral debates before the Commission’s
existence, explains the origins of the Commission’s 1979 regulatory
mistake, and then details how that decision continues to impact
media organizations and the citizens who benefit from the
information they disseminate.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“2016’s ‘Missing Voters’ Can Be Found with Automatic Voter
Registration” <http://electionlawblog.org/?p=77439>
Posted onNovember 10, 2015 4:37 pm
<http://electionlawblog.org/?p=77439>byRick Hasen
<http://electionlawblog.org/?author=3>
Liz Kennedy blogs
<http://www.demos.org/blog/11/10/15/2016%E2%80%99s-%E2%80%9Cmissing-voters%E2%80%9D-can-be-found-automatic-voter-registration>at
Demos.
This time next year, the election of 2016 will be over and America
will have chosen its next president.
But how many Americans will have actually participated in making
this decision?
In the 2012 presidential election, 1.3 million votes decided the
winner in the ten states with the closest margins of victory. But
nearly 20 million eligible citizens in those states—Colorado,
Florida, Iowa, Nevada, New Hampshire, North Carolina, Ohio,
Pennsylvania, Virginia, and Wisconsin—are missing from the voter rolls.
Overall, these “missing voters” amount to half, and in some cases
more than half, of the total votes cast for president in these
states. This should ring huge alarm bells for those who care about
our society’s health and future.
Fortunately, there is a solution. In a forthcoming paper, we predict
that if those states adopt Automatic Voter Registration, they would
add 6.8 million eligible citizens to their voter rolls. That means
that the number of potential voters added through automatic voter
registration in the previously-mentioned ten states would be more
than five times the number of voters that decided the 2012 races in
these states.
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Posted invoting <http://electionlawblog.org/?cat=31>
“FEC: Notable conservatives tied to nonprofit scofflaw”
<http://electionlawblog.org/?p=77437>
Posted onNovember 10, 2015 4:36 pm
<http://electionlawblog.org/?p=77437>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI
<http://www.publicintegrity.org/2015/11/10/18856/fec-notable-conservatives-tied-nonprofit-scofflaw>:
Three notable conservatives — including a top fundraiser for
Republican presidential candidate Marco Rubio — are linked to a
now-defunct “dark money” nonprofit group that failed to disclose
several million dollars spent on candidate-related TV ads, according
to documents released Friday by theFederal Election Commission
<https://www.publicintegrity.org/news/Federal-Election-Commission>.
Those involved with the Commission for the Hope, Growth and
Opportunity group include William Canfield,general counsel
<https://carlyforamerica.com/news/fiorina-supporters-launch-carly-for-america-superpac/>for
pro-Carly Fiorina super PAC CARLY for America; Scott Reed,senior
political strategist <https://www.uschamber.com/scott-reed>for
theU.S. Chamber of Commerce
<https://www.publicintegrity.org/2015/03/30/17000/us-chamber-doubling-down-political-juggernaut>and
Wayne Berman, a senior adviser atBlackstone
<https://www.blackstone.com/the-firm/overview/our-people/wayne-berman>whoserves
<http://www.cnn.com/2015/04/15/politics/marco-rubio-dc-fundraiser/>as presidential
candidate Marco Rubio’snational finance chairman
<http://bigstory.ap.org/article/5493938f4ca740b985920f64d7979c60/can-rubios-lean-campaign-keep-bushs-behemoth>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>,tax law and
election law <http://electionlawblog.org/?cat=22>
--
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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