[EL] Breaking Justice Kennedy order in Hawaii case; more news
Rick Hasen
rhasen at law.uci.edu
Fri Nov 27 13:47:34 PST 2015
Some Evidence Justice Kennedy’s Order Could Affect Voting in Hawaii
Election <http://electionlawblog.org/?p=77853>
Posted onNovember 27, 2015 1:45 pm
<http://electionlawblog.org/?p=77853>byRick Hasen
<http://electionlawblog.org/?author=3>
In my earlier post<http://electionlawblog.org/?p=77839>on Justice
Kennedy’s order today, I noted the potential for a kind of Heisenberg
observer effect:
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?
This AP report
<http://khon2.com/2015/11/27/supreme-court-justice-blocks-native-hawaiian-vote-count-certification-of-winners/>on
Justice Kennedy’s order seems to confirm that supporters of this voting
are worried it will affect voting itself:
Nai Aupuni, the nonprofit organization guiding the election process,
is encouraging voters to continue casting votes, said Bill Meheula,
an attorney representing the group.
“Reorganizing a government is not easy and it takes the courage and
will of the candidates to take the first step to unify Hawaiians,”
he said in a statement. “Help them by voting now.”
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
“Supreme Court Justice Intervenes in Native Hawaiian Election”
<http://electionlawblog.org/?p=77851>
Posted onNovember 27, 2015 1:07 pm
<http://electionlawblog.org/?p=77851>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak reports
<http://www.nytimes.com/2015/11/28/us/politics/supreme-court-justice-intervenes-in-native-hawaiian-election.html>for
the NYT.
My earlier coverage ishere <http://electionlawblog.org/?p=77839>.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
On 11/27/15 1:32 PM, Foley, Edward wrote:
> In thinking about Justice Kennedy’s stay in the pending case from
> Hawaii, it’s worth remembering not only /Bush v. Gore/, but also
> Justice Kennedy’s temporary stay in the /Roe v. Alabama/ litigation
> involving Alabama’s 1994 Chief Justice election. I discuss the
> litigation of the Alabama election in Chapter Ten of /Ballot Battles:
> The History of Disputed Elections in the United States/, which is
> available starting next week:
> https://global.oup.com/academic/product/ballot-battles-9780190235277?cc=us&lang=en
>
> I discuss Justice Kennedy’s stay specifically on page 276, comparing
> it to Hugo Black’s stay in the 1948 litigation over Lyndon Johnson’s
> disputed victory in the runoff of the U.S. Senate primary.
>
> Note: Justice Kennedy’s stay in the Alabama litigation was temporary,
> lasting only five days, before the full Court lifted it, permitting
> the federal-court injunction against the counting of Alabama’s
> disputed absentee ballots to stand.
>
> As noted by both Rick’s blog and Adam Liptak’s article on the /Times
> /website, Kennedy’s current stay in the Hawaii case may or may not end
> up being temporary in the way that his Alabama stay was.
>
> The Ohio State University
> *Edward B. Foley *
> Director, /Election Law @ Moritz /
> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in
> Constitutional Law
>
> Moritz College of Law
> 614-292-4288
>
>
>
> From: <law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>> on behalf of
> Rick Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>>
> Date: Friday, November 27, 2015 at 12:01 PM
> To: "law-election at uci.edu <mailto:law-election at uci.edu>"
> <law-election at uci.edu <mailto:law-election at uci.edu>>
> Subject: [EL] Breaking Justice Kennedy order in Hawaii case; more news
>
>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77839&title=Breaking%3A%20Justice%20Kennedy%20Enjoins%20Counting%20of%20Ballots%20in%20Hawaii%20Election&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77837&title=%26%238220%3BOther%20viewpoint%3A%20Tossed%20ballots%20show%20need%20to%20update%20law%26%238221%3B&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77835&title=%26%238220%3BTighter%20Lid%20on%20Records%20Threatens%20to%20Weaken%20Government%20Watchdogs%26%238221%3B&description=>
> 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>.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77833&title=%26%238220%3BA%20K%20Street%20How-To%2C%20Courtesy%20of%20Wall%20Street%26%238221%3B&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77831&title=%26%238220%3BThe%202016%20ballot%20wars%20begin%26%238221%3B&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77829&title=%26%238220%3BSteven%20H.%20Sholk%2C%20%26%238217%3B81%2C%20Has%20%26%238216%3BUnwavering%20Dedication%26%238217%3B%20to%20Mastering%20Law%2C%20Campaign%20Finance%2C%20and%20Cooking%26%238221%3B&description=>
> 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>.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77827&title=%26%238220%3BShelby%20challenger%20John%20Martin%20accuses%20fellow%20rival%20Jonathan%20McConnell%20of%20urging%20him%20to%20drop%20out%2C%20reimbursing%20him%20if%20he%20did%26%238221%3B&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77825&title=%26%238220%3BGOP%20rider%20would%20boost%20party%20spending%26%238221%3B&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77823&title=%26%238220%3BThe%20New%20Attack%20on%20%E2%80%98One%20Person%2C%20One%20Vote%27%26%238221%3B&description=>
> 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.
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77821&title=%26%238220%3BJudge%3A%20GOP%2C%20Constitution%20Party%20exempt%20from%20open%20primary%20rule%26%238221%3B&description=>
> 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.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
--
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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