[EL] ELB News and Commentary 11/15/15
Rick Hasen
rhasen at law.uci.edu
Sun Nov 15 10:02:38 PST 2015
“Clinton under fire for linking her Wall Street donations to 9/11”
<http://electionlawblog.org/?p=77551>
Posted onNovember 15, 2015 9:54 am
<http://electionlawblog.org/?p=77551>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.politico.com/blogs/live-from-des-moines/2015/11/hillary-clinton-911-backlash-wall-street-215896>:
Minutes after Hillary Clinton referenced 9/11 as part of the reason
why she has received significant contributions from Wall Street,
people on both sides of the aisle pounced or were, at the very
least, left scratching their heads to account for it.
“So, I represented New York, and I represented New York on 9/11 when
we were attacked. Where were we attacked? We were attacked in
downtown Manhattan where Wall Street is,” Clinton said, in response
to a comment from Bernie Sanders about her acceptance of campaign
cash from Wall Street executives. “I did spend a whole lot of time
and effort helping them rebuild. That was good for New York. It was
good for the economy and it was a way to rebuke the terrorists who
had attacked our country.”
See alsoDebate Exposes Clinton’s Wall Street Underbelly.
<http://www.politico.com/story/2015/11/hillary-clinton-wall-street-debate-215902>
TPM
<http://talkingpointsmemo.com/livewire/sanders-clinton-wall-street-donors-cbs-debate>:
The CBS moderators later returned to Clinton’s answer,citing a
tweet<https://twitter.com/AndyGrewal/status/665727759168081920?ref_src=twsrc%5Etfw>during
the debate from a University of Iowa law professor that reads, “Have
never seen a candidate invoke 9/11 to justify millions of Wall
Street donations. Until now.” Clinton was asked how her work after
9/11 was related to campaign donations.
“I worked closely with New Yorkers after 9/11 for my entire term to
rebuild. So, yes, I did know people,” Clinton responded. “I’ve had a
lot of folks give me donations from all kinds of backgrounds say, ‘I
don’t agree with you on everything, but I like what you do. I like
how you stand up. I’m going to support you.’ And I think that is
absolutely appropriate.”
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Roundup of Stories on #SCOTUS Decision to Hear Va Redistricting Case
<http://electionlawblog.org/?p=77549>
Posted onNovember 15, 2015 9:45 am
<http://electionlawblog.org/?p=77549>byRick Hasen
<http://electionlawblog.org/?author=3>
Via How Appealing. <http://howappealing.abovethelaw.com/111315.html#064311>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Rich Tradition of Minority Party Representation Continues in
Pennsylvania and Connecticut” <http://electionlawblog.org/?p=77547>
Posted onNovember 15, 2015 9:43 am
<http://electionlawblog.org/?p=77547>byRick Hasen
<http://electionlawblog.org/?author=3>
Chris Hughes
<http://www.fairvote.org/research-and-analysis/blog/rich-tradition-of-minority-party-representation-continues-in-pennsylvania-and-connecticut/>for
FairVote:
An interesting thing happened this year on Election Day in towns,
cities, and counties across Pennsylvania and Connecticut. Despite
the odds being stacked against them, minority parties earned
representation thanks to fair representation voting methods. Many of
thejurisdictions we
highlight<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/>that
use these sorts of non-winner-take-all voting methods had those
systems imposed upon them by judges inVoting
<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/#Texas>Rights<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/#NewYork>Act<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/#OH>cases
<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/#NC>,
but just as many – including all these uses in Pennsylvania and
Connecticut – introduced these reforms through statute.
Pennsylvania
<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/#PA>has
used fair voting methods for over a century andConnecticut
<http://www.fairvote.org/reforms/fair-representation-voting/fair-voting-in-the-united-states/jurisdictions-using-fair-voting/#Connecticut>for
more than half a century (since before the Voting Rights Act even
existed). They ensure that minority parties can earn representation
in communities where they would be otherwise shut out of government.
Minority party representation in cities and counties across
Connecticut and Pennsylvania reflects structural rules that have
been in place for decades to ensure more political diversity than we
see in most American cities today.
The key has been the use of a modest form of fair representation
voting with the unfortunate label of “limited voting.” Contrary to
the moniker, limited voting greatly expands the number of voters who
can elect a candidate of choice. It does this by making sure that a
single cohesive majority does not have the power to elect every
single member of a legislative body. If five are to be elected,
voters may only be allowed to vote for three. That way, that
cohesive majority will be able to elect three, but not all five.
Another group – otherwise shut out – will be able to organize to win
the other two seats.
Most places in Pennsylvania and Connecticut couple limited voting
with “limited nominations,” which means that no political party can
nominate enough candidates to win every seat. The two are a natural
fit for each other, butlimited nominations is distinct from limited
voting
<http://www.fairvote.org/research-and-analysis/blog/seventh-circuit-and-limited-nominations-an-effective-voice-in-the-general-election-/>.
The two do not always go together, and limited nominations raises
voter choice concerns that limited voting does not.
Limited voting creates an opportunity for fair representation, but
only when political parties limit their nominees, when candidates
campaign to emphasize the right strategies, and when voters vote
strategically. That makes limited voting a weak form of fair
representation voting: it does break open winner-take-all, but it
does not ensure fair results to nearly the degree asranked choice
voting <http://www.fairvote.org/reforms/instant-runoff-voting/>does.
Nevertheless, the fact that these elections took place demonstrates
that U.S. elections are not all stuck in the rut of winner-take-all
voting rules, and that the U.S. has a rich history of fair
representation in at-large elections.
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Posted inalternative voting systems <http://electionlawblog.org/?cat=63>
“Criminal Law: Free Speech, Anti-Corruption, and the Criminalization
of Government Affairs” <http://electionlawblog.org/?p=77545>
Posted onNovember 15, 2015 9:42 am
<http://electionlawblog.org/?p=77545>byRick Hasen
<http://electionlawblog.org/?author=3>
This event <https://m.guidebook.com/guide/48108/event/12103196/>,
including Eugene Volokh, took place at the 2015 Federalist Society
national lawyers’ meeting.
Watch the video
<https://www.youtube.com/watch?v=8VEPw7kTBFo&feature=youtu.be>.
Here’s the description:
If we accept the premise that government, and government power, is
growing, then the stakes for elective office have never been higher.
With the levers of power at stake, are we seeing an increase in the
use of the criminal justice system to attack legitimate political
activity? Or are we perhaps seeing the proper policing of increased
fraud and abuse by those in the political sphere? In a media climate
in which a mere investigation can be fatal to a political campaign
or career, what actions are political and what actions are criminal,
and who should decide?
Criminal Law: Free Speech, Anti-Corruption, and the Criminalization
of Government Affairs
–Mr. Todd P. Graves, Partner, Graves Garrett LLC
–Mr. Edward T. Kang, Partner, Alston & Bird LLP
–Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School
of Law
–Mr. Peter R. Zeidenberg, Partner, Arent Fox LLP
–Moderator: Hon. Raymond W. Gruender, U.S. Court of Appeals, Eighth
Circuit
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Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery
<http://electionlawblog.org/?cat=12>
“To increase youth turnout, make voting sexy”
<http://electionlawblog.org/?p=77543>
Posted onNovember 15, 2015 9:38 am
<http://electionlawblog.org/?p=77543>byRick Hasen
<http://electionlawblog.org/?author=3>
Tara Sonenshine
<http://thehill.com/blogs/pundits-blog/uncategorized/260024-to-increase-youth-turnout-make-voting-sexy>in
The Hill.
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Posted invoting <http://electionlawblog.org/?cat=31>
“Growing anxiety in Iowa as Democrats worry state is not ready for
caucuses” <http://electionlawblog.org/?p=77541>
Posted onNovember 15, 2015 9:37 am
<http://electionlawblog.org/?p=77541>byRick Hasen
<http://electionlawblog.org/?author=3>
Ben Jacobs
<http://www.theguardian.com/us-news/2015/nov/14/iowa-democrats-not-ready-caucuses?CMP=share_btn_tw>for
The Guardian:
IowaDemocrats <http://www.theguardian.com/us-news/democrats>are
increasingly worried the state party may not be prepared for the
caucuses on 1 February, putting Iowa’s first-in-the-nation status at
risk.
With a little more than 80 days left, a number of top Democrats in
the state expressed their concerns to the Guardian that the party
has not done the work necessary to ensure thatthe caucuses
<http://www.theguardian.com/us-news/2015/oct/25/iowa-dinner-democrats-hillary-clinton-bernie-sanders-martin-omalley>,
run solely by the Iowa Democratic party, will go smoothly.
Iowa Democrats described growing anxiety over a state party they
said was drifting and unprepared to organize in 1,681 precincts to
ensure the result of the contest to pick Iowa’s choice for the
Democratic presidential nomination is promptly reported.
In 2012, no winner was declared in the Republican caucuses for
almost three weeks because of problems reporting accurate results.
The state Republican party eventually announced that Rick Santorum
had beaten Mitt Romney. There are mounting fears that the Democratic
caucuses in 2016 may go the same way.
Flashback to my Feb. 2012 /Slate /piece: Kill the Caucuses! Maine,
Nevada, and Iowa were embarrassing. It’s time to make primaries the
rule.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/congress_should_kill_the_republican_and_democratic_state_caucuses_and_mandate_primaries_instead_.html>
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
Breaking: #SCOTUS Will Hear Virginia Redistricting Case
<http://electionlawblog.org/?p=77536>
Posted onNovember 13, 2015 11:35 am
<http://electionlawblog.org/?p=77536>byRick Hasen
<http://electionlawblog.org/?author=3>
There will be a lot of attention (for good reason) to the Court’s
decision to hear a Texas abortion case
<http://www.nytimes.com/2015/11/14/us/politics/supreme-court-accepts-texas-abortion-law-case.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news>,
but the Court will also hold a hearing on Wittman v. Personhuballah
<http://www.scotusblog.com/case-files/cases/wittman-v-personhuballah/>,
a Virginiaredistricting case
<http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-1504.htm>.
(This case involves congressional redistricting and I’ve writtenabout
it here <http://electionlawblog.org/?p=73232>; there’s another Virginia
case involving Virginia state house redistricting
<http://electionlawblog.org/?p=76966>which has also beenappealed
<http://electionlawblog.org/?p=77092>to the Supreme Court.)
Here are the questions presented:
1) Whether the court below erred in failing to make the required
finding that race rather than politics predominated in District 3,
where there is no dispute that politics explains the Enacted Plan;
(2) whether the court below erred in relieving plaintiffs of their
burden to show an alternative plan that achieves the General
Assembly’s political goals, is comparably consistent with
traditional districting principles, and brings about greater racial
balance than the Enacted Plan; (3) whether, regardless of any other
error, the finding of a/Shaw
<https://www.law.cornell.edu/supct/html/92-357.ZS.html> /violation
by the court below was based on clearly erroneous fact-finding; (4)
whether the majority erred in holding that the Enacted Plan fails
strict scrutiny because it increased District 3’s black voting-age
population percentage above the benchmark percentage, when the
undisputed evidence establishes that the increase better complies
with neutral principles than would reducing the percentage and no
racial bloc voting analysis would support a reduction capable of
realistically securing Section 5 preclearance.
But theCourt in its order
<http://www.supremecourt.gov/orders/courtorders/111315zr1_8mjp.pdf>has
also added a standing question:
Further consideration of the question of jurisdiction is postponed
to the hearing of the case on the merits. In addition to the
questions presented by the jurisdictional statement, the parties are
directed to brief and argue the following question: Whether
appellants lack standing because none reside in or represent the
only congressional district whose constitutionality is at issue in
this case.
This case is a follow on to the Alabama redistricting case decided last
year. I’ve done a detailed analysis of that case, in a paper,Racial
Gerrymandering’s Questionable Revival
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>, about to
be published in the /Alabama Law Review/‘s symposium on the 50th
anniversary of the Voting Rights Act. You can find the near final draft
on SSRN. Here is the abstract:
Like history, the racial gerrymandering cause of action has repeated
itself, the first time as tragedy, the second time as farce.
In the 1990s, conservative members of the Supreme Court recognized a
new cause of action, grounded in the Fourteenth Amendment’s Equal
Protection Clause, of an “unconstitutional racial gerrymander.” The
claim was not one, long recognized, for the intentional dilution of
black votes through the manipulative drawing of district lines.
Instead, it was a shaky, ephemeral claim based solely on
appearances. Racial gerrymandering is an “expressive harm,” aimed at
preventing jurisdictions from sending an impermissible “message” by
separating voters on the basis of race without adequate
justification. In practice, the cause of action helped limit
attempts by the U.S. Department of Justice to force jurisdictions
then covered by Section 5 of the Voting Rights Act to create more
majority-minority voting districts which tended to vote Democratic.
Sometimes doing so helped Democrats; at other times the
concentration of reliable Democratic voters helped Republicans.
Within a decade, however, racial gerrymandering claims seemed to
wither away, as the Court used other methods to stop the Department
from reading the Act too broadly.
In 2015, the Supreme Court revived racial gerrymandering claims. In
Alabama Legislative Black Caucus v. Alabama, the four liberals on
the Court and Justice Kennedy agreed with Democrats and minority
voters that the state of Alabama engaged in an unconstitutional
racial gerrymander when it passed a legislative districting plan
which over-concentrated black voters in majority-minority districts
in ostensible compliance with the Voting Rights Act. There was great
irony in the use of the racial gerrymandering cause of action by
minority voters who had rejected it in the 1990s, in its acceptance
by liberal justices, and in the defense of race-based redistricting
by Alabama Republicans and some conservative Supreme Court justices.
While racial gerrymandering has for now become a useful tool for
Democrats and minority plaintiffs to fight certain Republican
gerrymanders, it is no more coherent or justified now than it was
the first time the Court recognized it in the 1990s.
This Essay, written for an Alabama Law Review symposium on the 50th
anniversary of the Voting Rights Act, proceeds in three parts. Part
I briefly describes the emergence of the racial gerrymandering cause
of action in the 1990s and the critiques made of it. Part II briefly
describes the circumstances leading up to the 2015 Alabama case and
Court’s questionable revival of the racial gerrymandering claim.
Part III argues that the racial gerrymandering claim is no more
defensible when used by Democrats or minority voters than by
conservatives or Republicans. No doubt the Alabama legislature used
compliance with the Voting Rights Act as a pretext to pack more
reliable Democratic voters into a smaller number of districts to
help Republicans in the state overall. But that behavior should be
policed as either a form of impermissible racial vote dilution or as
inappropriate partisan behavior. In the end, the Supreme Court has
relied upon the incoherent racial gerrymandering claim because lacks
the right tools to police certain political conduct which might be
impermissibly racist, partisan, or both. Liberal and conservative
scholars have long recognized that the Voting Rights Act’s
enforcement and interpretation can have partisan implications and
motivations. The same is now true for racial gerrymandering claims,
especially given the great overlap of race and party categories in
the South.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“A K Street How-To, Courtesy of Wall Street”
<http://electionlawblog.org/?p=77534>
Posted onNovember 13, 2015 10:01 am
<http://electionlawblog.org/?p=77534>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg reports.
<http://www.bloomberg.com/politics/articles/2015-11-12/a-k-street-how-to-courtesy-of-wall-street>
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Posted inlobbying <http://electionlawblog.org/?cat=28>
--
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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