[EL] ELB News and Commentary 10/5/15
Rick Hasen
rhasen at law.uci.edu
Mon Oct 5 09:05:51 PDT 2015
“Supreme Court Prepares to Take On Politically Charged Cases”
<http://electionlawblog.org/?p=76442>
Posted onOctober 5, 2015 9:04 am
<http://electionlawblog.org/?p=76442>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam
Liptak<http://www.nytimes.com/2015/10/05/us/politics/supreme-court-prepares-to-take-on-politically-charged-cases.html?ref=us&_r=0>in
the NYT:
The current court isthe first in history split along partisan lines
<http://www.nytimes.com/2014/05/11/upshot/the-polarized-court.html>,
where the party of the president who appointed each justice is a
reliable predictor of judicial ideology. Put another way, all five
Republican appointees are to the right of all four Democratic
appointees. It was not long ago that Republican appointees like
Justices John Paul Stevens and David H. Souter routinely voted with
the court’s liberal wing.
As a consequence of the current alignment, Professor Devins said,
“the Roberts court has generated more marquee decisions divided by
party alignment than all other courts combined.”
The last term’s big cases did not for the most part follow that
pattern because Justice Kennedy, who was appointed by President
Ronald Reagan and sits at the court’s ideological fulcrum, voted
with the court’s liberal wing at an unusually high rate.
“The story of the last term is that the left side of the court did a
lot of winning,”said
<http://www.c-span.org/video/?328260-1/201516-supreme-court-term-preview>Irving
L. Gornstein
<https://www.law.georgetown.edu/faculty/gornstein-irv.cfm>, the
executive director of Georgetown’sSupreme Court Institute
<https://www.law.georgetown.edu/academics/centers-institutes/supreme-court-institute/>.
“This term,” he added, “I would expect a return to the norm, with
the right side of the court winning a majority but by no means all
of the big cases, with Justice Kennedy again the key vote.”
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“The Supreme Court Is Back At Work, And Things Look Pretty Ugly
Already” <http://electionlawblog.org/?p=76440>
Posted onOctober 5, 2015 9:00 am
<http://electionlawblog.org/?p=76440>byRick Hasen
<http://electionlawblog.org/?author=3>
Cristian Farias writes
<http://www.huffingtonpost.com/entry/supreme-court-term_560d6766e4b0dd85030b0ef6>for
HuffPo.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Super-PAC Rules are Super Vague” <http://electionlawblog.org/?p=76438>
Posted onOctober 5, 2015 8:58 am
<http://electionlawblog.org/?p=76438>byRick Hasen
<http://electionlawblog.org/?author=3>
Columbus Dispatch.
<http://www.dispatch.com/content/stories/local/2015/10/05/super-pac-rules-are-super-vague.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“The Roberts Court & the Future of Free Speech”
<http://electionlawblog.org/?p=76436>
Posted onOctober 5, 2015 8:56 am
<http://electionlawblog.org/?p=76436>byRick Hasen
<http://electionlawblog.org/?author=3>
Joel Gora:
<http://concurringopinions.com/archives/2015/10/joel-gora-the-roberts-court-the-future-of-free-speech.html>
The new Supreme Court Term that begins today marks the tenth
anniversary of “the Roberts Court,” which reached full complement in
January 2006. That was when Associate Justice Samuel Alito joined
the Court, which Chief Justice John G. Roberts had been appointed to
lead a few months earlier. The resulting coalition of a five-Justice
“conservative majority” has had significant impact on the Court’s
jurisprudence in a number of areas, and this has been especially
evident in its rulings on the crucial First Amendment right of
freedom of speech. In my view, “the Roberts Court” may well be the
most speech-protective Court in a generation – if not in the
Nation’s history – reaffirming and expanding extraordinary
protection for free speech in a variety of settings. In the process,
the Court has rebuffed numerous attempts by government and its
allies to restrict established free speech protections or create new
free speech limitations.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
Former US AG Michael Mukasey Criticizes DOJ Voting Section
<http://electionlawblog.org/?p=76434>
Posted onOctober 5, 2015 8:54 am
<http://electionlawblog.org/?p=76434>byRick Hasen
<http://electionlawblog.org/?author=3>
Imprimis:
<https://imprimis.hillsdale.edu/justice-and-the-obama-justice-department/?utm_medium=social&utm_source=facebook>
The DOJ’s Civil Rights Division is the one we think of as having the
main responsibility for protecting fairness. Yet its recent record
has indicated other priorities. Recently its Voting Section went out
of its way to review a decision to change the system of municipal
elections in Kinston, North Carolina, from partisan to non-partisan.
That change had been approved by the voters of Kinston, which is a
majority black town. Indeed, it had been approved by an overwhelming
two-to-one vote.
Under Section 5 of the Voting Rights Act, the Justice Department may
intervene when voting rules are changed in any state where there’s
historically been discrimination. But because black citizens were in
the majority in Kinston, there should have been no occasion to
intervene. The DOJ justified its intervention by saying that blacks
were not always a majority of voters, even though they were a
majority of the citizens; it argued further that the removing of
party labels might deprive black voters of an identifying label
necessary for them to vote for black candidates—i.e., the label
“Democrat.” In other words, the Justice Department was arguing that
the black voters of Kinston needed the paternalism of the Justice
Department to protect them from themselves.
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Posted inDepartment of Justice
<http://electionlawblog.org/?cat=26>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Republicans simply out for revenge on GAB”
<http://electionlawblog.org/?p=76431>
Posted onOctober 5, 2015 8:49 am
<http://electionlawblog.org/?p=76431>byRick Hasen
<http://electionlawblog.org/?author=3>
Milwaukee Journal Sentinel column.
<http://www.jsonline.com/news/opinion/republicans-simply-out-for-revenge-on-gab-b99589091z1-330482301.html>
See alsothis editorial.
<http://host.madison.com/wsj/news/opinion/editorial/judge-offers-strong-idea-to-save-the-gab/article_ac3c17db-9f01-57d1-be47-b244303e2b01.html>
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Carly Fiorina’s first political campaign had a surprising problem:
Money” <http://electionlawblog.org/?p=76429>
Posted onOctober 5, 2015 8:47 am
<http://electionlawblog.org/?p=76429>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/politics/carly-fiorinas-first-political-campaign-had-a-surprising-problem-money/2015/10/04/c4bdcdd2-50be-11e5-933e-7d06c647a395_story.html>:
Famed California pollster Joe Shumate was found dead in his home one
month before Election Day 2010, surrounded by sheets of polling data
he labored over for the flailing Senate bid of Carly Fiorina.
Upon his death, Fiorina praised Shumate as “the heart and soul” of
her team. She issued a news release praising him as a person who
believed in “investing in those he worked with” and offering her
“sincerest condolences” to his widow.
But records show there was something that Fiorina did not offer his
widow: Shumate’s last paycheck, for at least $30,000. It was one of
more than 30 invoices, totaling about $500,000, that the
multimillionaire didn’t settle — even as Fiorina reimbursed herself
nearly $1.3 million she lent the campaign. She finally cleared most
of the balance in January, a few months before announcing her run
for president.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“This Is What Voter ID Laws Looks Like When They Hit Real People”
<http://electionlawblog.org/?p=76427>
Posted onOctober 5, 2015 8:39 am
<http://electionlawblog.org/?p=76427>byRick Hasen
<http://electionlawblog.org/?author=3>
Think Progress
<http://thinkprogress.org/politics/2015/10/05/3708025/wisconsins-voter-id-law-back-in-court-for-discriminating-against-students-and-veterans/>:
Wisconsinonce again
<http://thinkprogress.org/justice/2014/04/30/3432374/striking-down-wisconsin-voter-id-law-judge-finds-no-rational-person-could-be-worried-about-voter-fraud/>has
to defend its voter ID law in federal court, this time responding to
a challenge to the law’s exclusion of veterans’ IDs, technical
college IDs, and out-of-state drivers’ licenses.
Staff attorney Sean Young with the American Civil Liberties Union
will argue before the federal district court in Milwaukee on Monday,
asking them to allow these alternative IDs to be added to the
state’sstrict list
<http://bringit.wisconsin.gov/do-i-have-right-photo-id>of acceptable
documents.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
“It’s Still a Struggle; The fight for voting rights hasn’t been the
straightforward battle we once might have expected to win and be
done with.” <http://electionlawblog.org/?p=76425>
Posted onOctober 5, 2015 8:36 am
<http://electionlawblog.org/?p=76425>byRick Hasen
<http://electionlawblog.org/?author=3>
Sam Issacharoff has an important new review of Ari Berman’s Give Us the
Ballot in the latest issue ofThe American Prospect
<http://prospect.org/magazine>. Unfortunately it is not posted freely
online. It concludes:
Using the instrumentalities of power to keep enemies from voting
is deeply wrong; no game can allow the players to manipulate the
rules. The sources of the politics of voter exclusion are
complicated, but they begin with the unique American institution of
partisan control of the electoral process. For Berman, the
partisan dimension can be quickly overcome by invoking race and the
glorious history of the Voting Rights Act, which keeps the moral arc
of the story neat. But the simple tale here obscures the
deep partisan stakes in matters of claimed voter fraud and voter
suppression.
The warm reception of Berman’s book is a tribute to his
craftsmanship in the telling of a great story. But it also reflects
the allure of a simple world of moral absolutes. Placing everything
in the context of race and then focusing on an evil,
anti-democratic cabal diminishes what we can learn from history. As
Columbia law professor Jamal Greene writes, “A Voting Rights Act for
the 21st century would recognize that racial discrimination may be
our original sin, but it is not our only one.” The precision of
the Voting Rights Act in targeting certain practices in a certain
place and time proved its great strength and its
later constitutional vulnerability. Because it worked so well, the
Voting Rights Act as created in 1965 exposed the need for a broader
legal commitment to the right to vote, one not limited by geography
or even by race.
I raised similar “race or party
<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>”
concerns in connection with Berman’s book inthis Slate
piece<http://www.slate.com/articles/news_and_politics/politics/2015/08/how_to_save_the_voting_rights_act_voting_rights_shouldn_t_rely_on_parsing.html>and
in my ELB Podcast interview <http://electionlawblog.org/?p=75203>with him.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
NAACP LDF Expresses Voting Rights Act Concerns in Alabama Voter ID
DMV Closure Case <http://electionlawblog.org/?p=76423>
Posted onOctober 5, 2015 8:28 am
<http://electionlawblog.org/?p=76423>byRick Hasen
<http://electionlawblog.org/?author=3>
Letter
<http://www.naacpldf.org/files/case_issue/2015.10.02%20LDF%20Alabama%20closures%20letter.pdf>:
The NAACP Legal Defense and Educational Fund, Inc. (“LDF”)1, on
behalf of Greater Birmingham Ministries and the Alabama State
Conference of the National Association for the Advancement of
Colored People, writes to raise our grave concerns regarding the
State’s intended closures of thirty-one (31) driver’s
license-issuing offices across the State of Alabama, predominantly
in rural counties with large Black populations, high poverty rates,
and little to no public transportation. By issuing driver’s
licenses, these offices provide the most accessible way for
Alabama’s Black residents to secure the most common form of photo
identification (“photo ID”) required by state law, Alabama Code
Section 17-9-30. By closing these offices, the State will
drastically reduce the number of sites where potential voters can
obtain photo ID, creating a substantial and disproportionate burden
on Black people’s ability to participate in the political process in
Alabama.
These planned closures are consistent with Alabama’s long, egregious
and ongoing pattern of racial discrimination against Black
voters.2Given the importance of these offices as accessible
locations where people can obtain the photo ID needed to vote, we
urge you to keep these offices open to protect against the
foreseeable negative impact of the closures on Black voters’
opportunity to participate equally in the political process in
likely violation of Section 2 of the Voting Rights Act of 1965
(“VRA”) and the U.S. Constitution.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,voting
<http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Delusions about Dysfunction at the FEC”
<http://electionlawblog.org/?p=76421>
Posted onOctober 5, 2015 8:21 am
<http://electionlawblog.org/?p=76421>byRick Hasen
<http://electionlawblog.org/?author=3>
CCP
<http://www.campaignfreedom.org/2015/10/05/delusions-about-dysfunction-at-the-fec/>:
The Center for Competitive Politics (CCP), America’s largest
nonprofit dedicated to defending political free speech and assembly,
releaseda new issue brief
<http://www.campaignfreedom.org/wp-content/uploads/2015/10/2015-10-05_Two-Pager_Blackburn_Delusions-About-Dysfunction-Understanding-The-FEC.pdf>today
addressing allegations that the Federal Election Commission is
“dysfunctional” and does not work as intended
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Advsory Letter Could Permit Bigger Role for Outside Groups in NC
Elections” <http://electionlawblog.org/?p=76419>
Posted onOctober 5, 2015 8:19 am
<http://electionlawblog.org/?p=76419>byRick Hasen
<http://electionlawblog.org/?author=3>
WRAL
<http://advisory%20letter%20could%20permit%20bigger%20role%20for%20outside%20groups%20in%20nc%20elections%20read%20more%20at%20http//www.wral.com/advisory-letter-could-permit-bigger-role-for-outside-groups-in-nc-elections/14943214/#0tCpZrjjtUmOwWla.99>:
Recently published guidance will pave the way for advocacy groups to
more closely work with official campaign committees of candidates
running for office in North Carolina.
Anadvisory letter issued by State Board of Elections Director Kim
Strach
<http://www.wral.com/news/state/nccapitol/document/14943247/>says
that her agency had no latitude to regulate organizations that mail,
publish or broadcast “issue ads,” which often look like, and for all
practical purposes are, campaign ads. Groups that avoid “express
advocacy” and don’t trip certain thresholds on the election calendar
may remain unregulated and are free to exchange certain types of
information with candidates.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Undocumented Citizens” <http://electionlawblog.org/?p=76417>
Posted onOctober 5, 2015 8:16 am
<http://electionlawblog.org/?p=76417>byRick Hasen
<http://electionlawblog.org/?author=3>
Joey Fishkin
<http://balkin.blogspot.com/2015/10/undocumented-citizens.html>:
The Texas Department of State Health Services has created this new
category of what I wouldcall
<http://balkin.blogspot.com/2012/08/absentee-ballots-and-undocumented.html> “undocumented
citizens” by revising its interpretation of a comparatively obscure
set of state regulations concerning what documents a parent needs to
present in order to obtain a birth certificate for his or her child.
Under the new interpretation, two crucial documents that used to
work to establish the parent’s identity—a photo identification card
issued by the Mexican Consulate known as a “matricula consular,” and
a Mexican passport that lacks a valid visa stamp—no longer count as
valid identity documents. A Department spokesperson argues
incomments
<http://www.kwtx.com/ourtown/home/headlines/McLennan-County-Consular-IDs-Not-Accepted-329885941.html>tonews
<http://www.twcnews.com/tx/austin/news/2015/07/21/children-born-in-texas-denied-birth-certificates-over-parent-s-ids--.html>reporters that
these documents are not “secure” and might be used for “fraud” or
“identity theft.” They offer no explanation for why the policy
changed*—at least not in the news stories or anywhere else I have seen.
In alawsuit
<http://ia601506.us.archive.org/29/items/gov.uscourts.txwd.753442/gov.uscourts.txwd.753442.docket.html>being
heard in federal district court today in Austin, a group of Mexican
and Central American parents of U.S. citizen children are
challenging the new policy, on various grounds including that it
violates the Fourteenth Amendment’s guarantee of birthright
citizenship. This is a tricky argument, because of course, these
parents’ children are—in theory—definitely citizens, and DSHS does
not argue otherwise. But citizenship is of limited value if you
can’t get the documents you need to prove it.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“The sneaky new voter suppression tool in North Carolina, uncovered
by one of our own” <http://electionlawblog.org/?p=76415>
Posted onOctober 2, 2015 5:57 pm
<http://electionlawblog.org/?p=76415>byRick Hasen
<http://electionlawblog.org/?author=3>
Daily Kos
<http://www.dailykos.com/story/2015/10/01/1426873/-The-sneaky-new-voter-suppression-tool-in-North-Carolina-uncovered-by-one-of-our-own#>:
North Carolina Republicans have been actively moving the
goalposts—they’ve been moving polling places around like a crazed
monkey on crack. They have been cutting numbers of polling places in
some counties, increasing numbers in other counties. There has been
no systematic analysis of the effect of this. All I’ve been able to
find in any news outlet is, you know: a little local newspaper, say
Winston-Salem’s, will say: “the number of early voting sites is
twelve this year…by the way, it was fifteen last year.” That’s it.
Nobody has taken an overall view. […]
The headline outcome from our analysis is that in 2014 white
voters—71% of the electorate in North Carolina—had to travel an
additional 119,000 miles from their homes to their nearest Early
Voting locations…which is approximately equivalent to halfway from
the Earth to the Moon.
I hear you ask, “how did it affect black voters?” Well, black
voters—22% of the electorate—had to travel to the moon and halfway
home again, 370,000 miles, in 2014, to get to their nearest Early
Voting place. […]
Will be interesting to see if these stats pan out and if so what legal
action might arise from this.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Vermont GOP questions neutrality of election official”
<http://electionlawblog.org/?p=76413>
Posted onOctober 2, 2015 5:32 pm
<http://electionlawblog.org/?p=76413>byRick Hasen
<http://electionlawblog.org/?author=3>
“At issue
<http://www.burlingtonfreepress.com/story/news/2015/10/02/gop-chair-concerned-bias/73213958/>are
social media posts by J.P. Isabelle, an elections administrator in the
Vermont Secretary of State’s Office.”
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Supreme Court Asked to Strike Contractor Contribution Ban”
<http://electionlawblog.org/?p=76411>
Posted onOctober 2, 2015 5:30 pm
<http://electionlawblog.org/?p=76411>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=76733466&vname=mpebulallissues&jd=a0h3m7h1a4&split=0>:
Challengers seeking to eliminate a decades-old federal ban on
campaign contributions from government contractors have filed
apetition <http://src.bna.com/st>seeking Supreme Court review of the
case (Wagner v. Federal Election Commission, U.S., Docket No.
Unavail.,cert petition filed10/2/15).
The decision to seek review came nearly three months after a
unanimous, en banc U.S. Court of Appeals for the District of
Columbia rejected the challenge to the contractor contribution ban
(Wagner v. Federal Election Commission, D.C. Cir., 13-5162, 7/7/15)….
The Supreme Court petition argued that the ban on campaign
contributions as applied to individual contractors is not
“sufficiently tailored” to pass muster under the Constitution’s
First Amendment and the equal protection clause of the Fifth
Amendment. Although the FEC interprets the ban to apply to
independent expenditures influencing campaigns—including
contributions to super political action committees—that ban is not
specifically challenged in the case, the petition noted.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Texas Wants Supreme Court to Strike Legal-Fee Award in Voting Case”
<http://electionlawblog.org/?p=76409>
Posted onOctober 2, 2015 2:32 pm
<http://electionlawblog.org/?p=76409>byRick Hasen
<http://electionlawblog.org/?author=3>
NLJ reports.
<http://www.nationallawjournal.com/id=1202738810994/Texas-Wants-Supreme-Court-to-Strike-LegalFee-Award-in-Voting-Case?back=DC&kw=Texas%20Wants%20Supreme%20Court%20to%20Strike%20Legal-Fee%20Award%20in%20Voting%20Case&cn=20151002&pt=Legal%20Times%20Afternoon%20Update&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&slreturn=20150902173105>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Alabama, Birthplace of the Voting Rights Act, Is Once Again Gutting
Voting Rights” <http://electionlawblog.org/?p=76406>
Posted onOctober 2, 2015 9:24 am
<http://electionlawblog.org/?p=76406>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
writes<http://www.thenation.com/article/alabama-birthplace-of-voting-rights-act-once-again-gutting-voting-rights/>for
The Nation.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
--
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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