[EL] Breaking Justice Kennedy order in Hawaii case; more news

[Foley, Edward]

Yes, one of the ways the current Hawaii case differs from both Bush v. Gore and the Roe v. Alabama litigation over Alabama’s 1994 Chief Justice litigation is that in both of those precedents all the ballots had been cast, the polls having been long since closed.

Thus, in some ways, the more relevant “balancing of the equities” precedents concern emergency litigation over the rules for counting provisional or absentee ballots in the run-up to an election.  We’ve had a lot of that kind of emergency litigation in Ohio over the last decade, stretching back to the NEOCH case in 2006; as I recall, NEOCH did not reach the Supreme Court in part because Purcell did that same year, and Purcell shaped how the Sixth Circuit handled the claim that interim relief prior to Election Day might affect conduct at the polls on Election Day.

There was also some discussion last year whether the emergency stay-related litigation over the Texas voter ID case might cause voters without ID to decide not to bother to show up at the polls, rather than persisting in casting a provisional ballot in the hope that if the ID law was invalid under the Fourteenth Amendment, then the provisional ballot would count regardless of what state law said on the point.  Thus, the possibility that an interim stay might have an effect on turnout is not new to this Hawaii case, but has occurred in other election-related emergency litigation.


[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: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Friday, November 27, 2015 at 4:47 PM
To: Edward Foley <foley.33 at osu.edu<mailto:foley.33 at osu.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Breaking Justice Kennedy order in Hawaii case; more news

Some Evidence Justice Kennedy’s Order Could Affect Voting in Hawaii Election<http://electionlawblog.org/?p=77853>
Posted on November 27, 2015 1:45 pm<http://electionlawblog.org/?p=77853> by Rick 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 in Supreme 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 on November 27, 2015 1:07 pm<http://electionlawblog.org/?p=77851> by Rick 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 is here<http://electionlawblog.org/?p=77839>.

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Posted in Supreme 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> 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: <<mailto:law-election-bounces at department-lists.uci.edu>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: "<mailto:law-election at uci.edu>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 on November 27, 2015 8:59 am<http://electionlawblog.org/?p=77839> by Rick Hasen<http://electionlawblog.org/?author=3>

Justice Kennedy, in his capacity as Circuit Justice for the Ninth Circuit, has enjoined 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 to Lyle 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 in Rice 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 in Supreme 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 on November 27, 2015 8:41 am<http://electionlawblog.org/?p=77837> by Rick 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 in absentee 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 on November 27, 2015 8:37 am<http://electionlawblog.org/?p=77835> by Rick 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 the Peace Corps<http://topics.nytimes.com/top/reference/timestopics/organizations/p/peace_corps/index.html?inline=nyt-org> to the F.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 financial credit 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 in conflict 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 on November 27, 2015 8:26 am<http://electionlawblog.org/?p=77833> by Rick 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 in lobbying<http://electionlawblog.org/?cat=28>
“The 2016 ballot wars begin”<http://electionlawblog.org/?p=77831>
Posted on November 27, 2015 8:24 am<http://electionlawblog.org/?p=77831> by Rick 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 in ballot 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 on November 27, 2015 8:04 am<http://electionlawblog.org/?p=77829> by Rick 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 in election 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 on November 26, 2015 1:16 pm<http://electionlawblog.org/?p=77827> by Rick 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 reporter Brooklyn Noel<https://aurora.auburn.edu/handle/11200/47904>.

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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>
“GOP rider would boost party spending”<http://electionlawblog.org/?p=77825>
Posted on November 25, 2015 3:26 pm<http://electionlawblog.org/?p=77825> by Rick 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 in campaign 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 on November 25, 2015 2:15 pm<http://electionlawblog.org/?p=77823> by Rick 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 in redistricting<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 on November 25, 2015 11:21 am<http://electionlawblog.org/?p=77821> by Rick 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 in political 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<mailto:rhasen at law.uci.edu>http://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<mailto:rhasen at law.uci.edu>http://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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