[EL] Breaking Justice Kennedy order in Hawaii case; more news
Rick Hasen
rhasen at law.uci.edu
Fri Nov 27 09:01:02 PST 2015
Breaking: Justice Kennedy Enjoins Counting of Ballots in Hawaii
Election <http://electionlawblog.org/?p=77839>
Posted onNovember 27, 2015 8:59 am
<http://electionlawblog.org/?p=77839>byRick Hasen
<http://electionlawblog.org/?author=3>
Justice Kennedy, in his capacity as Circuit Justice for the Ninth
Circuit, hasenjoined the counting
<https://www.documentcloud.org/documents/2623111-hawaii.html>of ballots
in an upcoming election in which only those with Native Hawaiian
ancestry may vote. (Via Adam Liptak
<https://twitter.com/adamliptak/status/670281321625862144>).
I had blogged <http://electionlawblog.org/?p=77790>on Tuesday about this
case, linking toLyle Denniston’s analysis
<http://www.scotusblog.com/2015/11/hawaiians-protest-vote-on-future-tribal-plan/>of
the case and theemergency application
<http://www.scotusblog.com/wp-content/uploads/2015/11/Akina-Application.pdf> in
the case.
What does Justice Kennedy’s action mean? I think it means there’s a
fairly good chance this issue eventually ends up on the merits at the
Supreme Court, where the Court’s earlier decision inRice v. Cayetano
<https://scholar.google.com/scholar_case?case=17123522563063952153&hl=en&as_sdt=6&as_vis=1&oi=scholarr> renders
this election procedure potentially a violation of the Fifteenth
Amendment’s prohibition on racial criteria for voting.
Also interesting is the remedy: allow the election but don’t allow the
counting of the ballots. The applicants did not ask to stop the
election, which is set for November 30, but to enjoin the counting of
votes. That’s the remedy that Justice Kennedy ordered:
IT IS ORDERED that the respondents are enjoined from counting the
ballots cast in, and certifying the winners of, the election
described in the application, pending further order of the
undersigned or of the Court.
This reminds me of the dispute between Justices Scalia and Kennedy in
the /Bush v. Gore/stay order
<http://www.presidency.ucsb.edu/docs/florida2000/12-09_ussupreme_staygranted.pdf>over
whether to halt the counting of certain ballots in the state of Florida
(which had been ordered by the Florida Supreme Court) while the U.S.
Supreme Court continued the case. Justice Scalia said that allowing the
count to go forward, only to potentially have those results reversed by
the Supreme Court, would cast a cloud of illegitimacy over George Bush’s
election (“The counting of votes that are of questionable legality does
in my view threaten irreparable harm to petitioner, and to the country,
by casting a cloud upon what he claims to be the legitimacy of his
election. Count first, and rule upon legality afterwards, is not a
recipe for producing election results that have the public acceptance
democratic stability requires.”). Justice Stevens, in contrast, said
that stopping the counting (and essentially allowing the clock to run
out) cast a cloud over the legitimacy of the election (“Preventing the
recount from being completed will inevitably cast a cloud on the
legitimacy of the election”).
Here too, the argument for not announcing the results must be one
concerned about the legitimacy of the election: announcing the results,
only to have the election declared illegal later, could potentially
undermine the voters’ faith in the process.
But how many people now won’t vote, hearing that the election may not be
valid? Doesn’t Justice Kennedy’s order itself affect the legitimacy,
and potentially the outcome, of the election?
OK, now back to your Black Friday shopping.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
“Other viewpoint: Tossed ballots show need to update law”
<http://electionlawblog.org/?p=77837>
Posted onNovember 27, 2015 8:41 am
<http://electionlawblog.org/?p=77837>byRick Hasen
<http://electionlawblog.org/?author=3>
Editorial
<http://www.dispatch.com/content/stories/editorials/2015/11/27/1-tossed-ballots-show-need-to-update-law.html>from
the Akron Beacon Journal:
There was disturbing news from the Summit County Board of Elections
last week. The absentee ballots of 861 voters who mailed their
selections to the board were disqualified, even though they had done
nothing wrong. What their ballots lacked was a postmark, or at least
the kind required by Ohio law.
The disqualified ballots from the Nov. 3 election represent 9
percent of the mailed-in absentee ballots in the county. No one
familiar with Ohio’s role in presidential elections could ignore
easily the thought that such a disqualification rate next year —
multiplied across this battleground state — could throw the national
results into controversy and lawsuits.
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,election
administration <http://electionlawblog.org/?cat=18>
“Tighter Lid on Records Threatens to Weaken Government Watchdogs”
<http://electionlawblog.org/?p=77835>
Posted onNovember 27, 2015 8:37 am
<http://electionlawblog.org/?p=77835>byRick Hasen
<http://electionlawblog.org/?author=3>
What happened to the Obama administration’s commitment to be the most
transparent Administration? Not looking good. NYT
<http://www.nytimes.com/2015/11/28/us/politics/tighter-lid-on-records-threatens-to-defang-government-watchdogs.html?ref=politics&_r=0>:
The continuing Honduran inquiry is one of at least 20 investigations
across the government that have been slowed, stymied or sometimes
closed because of a long-simmering dispute between the Obama
administration and its own watchdogs over the shrinking access of
inspectors general to confidential records, according to records and
interviews.
The impasse has hampered investigations into an array of programs
and abuse reports — from allegations of sexual assaults in thePeace
Corps
<http://topics.nytimes.com/top/reference/timestopics/organizations/p/peace_corps/index.html?inline=nyt-org>to
theF.B.I.
<http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_bureau_of_investigation/index.html?inline=nyt-org>’s
terrorism powers, officials said. And it has threatened to roll back
more than three decades of policy giving the watchdogs unfettered
access to “all records” in their investigations.
“The bottom line is that we’re no longer independent,” Michael E.
Horowitz, the Justice Department inspector general, said in an
interview.
The restrictions reflect a broader effort by the Obama
administration to prevent unauthorized disclosures of sensitive
information — at the expense, some watchdogs insist, of government
oversight.
Justice Department lawyers concluded in a legal opinion this summer
that some protected records, like grand jury transcripts, wiretap
intercepts and financialcredit reports
<http://topics.nytimes.com/your-money/credit/credit-scores/index.html?inline=nyt-classifier>,
could be kept off limits to government investigators. The
administration insists there is no intention of curtailing
investigations, but both Democrats and Republicans in Congress have
expressed alarm and are promising to restore full access to the
watchdogs.
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Posted inconflict of interest laws
<http://electionlawblog.org/?cat=20>,ethics investigations
<http://electionlawblog.org/?cat=42>
“A K Street How-To, Courtesy of Wall Street”
<http://electionlawblog.org/?p=77833>
Posted onNovember 27, 2015 8:26 am
<http://electionlawblog.org/?p=77833>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>
“The 2016 ballot wars begin” <http://electionlawblog.org/?p=77831>
Posted onNovember 27, 2015 8:24 am
<http://electionlawblog.org/?p=77831>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.politico.com/story/2015/11/2016-election-candidates-on-ballot-216191#ixzz3shUG8c1g>:
Barring a major organizational misfire, there’s little doubt that
the top-tier Republicans with big money operations – Jeb Bush, Marco
Rubio, Ben Carson, Ted Cruz and Donald Trump – will be on the ballot
nationwide. But for everyone else – including Chris Christie, John
Kasich and Rand Paul, whose campaigns say they are on track to be on
the ballot everywhere – ballot access is an expensive challenge.
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
“Steven H. Sholk, ’81, Has ‘Unwavering Dedication’ to Mastering Law,
Campaign Finance, and Cooking” <http://electionlawblog.org/?p=77829>
Posted onNovember 27, 2015 8:04 am
<http://electionlawblog.org/?p=77829>byRick Hasen
<http://electionlawblog.org/?author=3>
Nice profile
<http://www.pageturnpro.com/UNC-School-of-Law/69356-Carolina-Law-Fall-Winter-2015-Private-Practice,-Public-Service/index.html#22>in
UNC Law’s magazine.
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Posted inelection law biz <http://electionlawblog.org/?cat=51>
“Shelby challenger John Martin accuses fellow rival Jonathan
McConnell of urging him to drop out, reimbursing him if he did”
<http://electionlawblog.org/?p=77827>
Posted onNovember 26, 2015 1:16 pm
<http://electionlawblog.org/?p=77827>byRick Hasen
<http://electionlawblog.org/?author=3>
Al.com
<http://www.al.com/news/index.ssf/2015/11/shelby_challenger_john_martin.html#incart_river_index>:
One of the candidates looking to unseat U.S. Sen. Richard Shelby,
R-Ala., in the Republican primary is claiming fellow GOP challenger
Jonathan McConnell urged him to drop out of the race and promise to
reimburse his expenses if he did so.
John Martin <http://www.johnmartin2016.com/>, a Dothan former Army
Ranger who filed to run in the March 1 primary, posted the
allegations earlier this month to Facebook, describing the offer as
“illegal.”
Alabama Political Reporter
<http://www.alreporter.com/more-accusations-against-us-senate-candidate-mcconnell/>:
US Senate candidate John Martin has charged opponent Jonathan
McConnell of offering him money to drop out of the Republican
primary. If true, this would not be the first time McConnell has
been accused with violating campaign rules.
The Auburn Plainsman in 2003 reported McConnell violated several
campaign rules in his bid for Auburn student body president,
including attempting to gather students’ student ID numbers and pins
to cast votes for his campaign.
In 2003, SGA Sen. Michael Joffrion accused McConnell of violating
seven campaign rules. The Auburn E-Board determined, “Of the seven
violation categories outlined in Joffrion’s contention, E-Board
found there was enough evidence to support six of the allegations,”
wrote student reporterBrooklyn Noel
<https://aurora.auburn.edu/handle/11200/47904>.
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Posted incampaigns <http://electionlawblog.org/?cat=59>,chicanery
<http://electionlawblog.org/?cat=12>
“GOP rider would boost party spending”
<http://electionlawblog.org/?p=77825>
Posted onNovember 25, 2015 3:26 pm
<http://electionlawblog.org/?p=77825>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico
<http://www.politico.com/story/2015/11/congress-campaign-finance-cash-rider-216220> on
news that will ruin Fred Wertheimer’s Thanksgiving:
Senate Republicans plan to insert a provision into a must-pass
government funding bill that would vastly expand the amount of cash
that political parties could spend on candidates, multiple sources
tell POLITICO.
The provision, which sources say is one of a few campaign-finance
related riders being discussed in closed-door negotiations over a
$1.15-trillion omnibus spending package, would eliminate caps on the
amount of cash that parties may spend in coordination with their
candidates.
Pushed by Senate Majority Leader Mitch McConnell, a longtime foe of
campaign finance restrictions, the coordination rider represents the
latest threat to the increasingly rickety set of rules created to
restrict the political fundraising and spent in elections.
Campaign finance watchdogs argue that it would allow wealthy donors
to curry even more influence with members of Congress. And they
cried foul over the possibility that the provision could be slipped
into the omnibus spending bill that Congress is working to pass
before a Dec. 11 deadline to avoid a government shutdown.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The New Attack on ‘One Person, One Vote'”
<http://electionlawblog.org/?p=77823>
Posted onNovember 25, 2015 2:15 pm
<http://electionlawblog.org/?p=77823>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/article/the-new-attack-on-one-person-one-vote/>on
Evenwel.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Judge: GOP, Constitution Party exempt from open primary rule”
<http://electionlawblog.org/?p=77821>
Posted onNovember 25, 2015 11:21 am
<http://electionlawblog.org/?p=77821>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports
<http://www.standard.net/Government/2015/11/25/Judge-GOP-Constitution-Party-exempt-from-open-primary-rule-1>from
Utah.
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
--
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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