[EL] ELB News and Commentary 10/22/15

Rick Hasen rhasen at law.uci.edu
Thu Oct 22 07:48:09 PDT 2015


    More Posts in WaPo’s “In Theory” Symposium on Evenwel
    <http://electionlawblog.org/?p=76945>

Posted onOctober 22, 2015 7:44 am 
<http://electionlawblog.org/?p=76945>byRick Hasen 
<http://electionlawblog.org/?author=3>

Rick Pildes 
<http://www.washingtonpost.com/news/in-theory/wp/2015/10/22/equal-representation-shouldnt-exclude-non-citizens/>

Nina Perales 
<http://www.washingtonpost.com/news/in-theory/wp/2015/10/21/the-supreme-court-should-seize-the-chance-to-strike-down-voter-discrimination/>

Ilya Shapiro 
<http://www.washingtonpost.com/news/in-theory/wp/2015/10/20/why-texas-is-wrong-in-the-one-person-one-vote-case/>

Aaron Blake 
<http://www.washingtonpost.com/news/in-theory/wp/2015/10/20/thought-immigration-reform-was-unlikely-one-person-one-vote-could-make-things-worse/>

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>


    “Ben Carson, GOP presidential candidate, dismisses idea anti-voter
    fraud measures racist” <http://electionlawblog.org/?p=76943>

Posted onOctober 22, 2015 7:41 am 
<http://electionlawblog.org/?p=76943>byRick Hasen 
<http://electionlawblog.org/?author=3>

Topeka Capital-Journal. 
<http://cjonline.com/news/2015-10-21/ben-carson-gop-presidential-candidate-dismisses-idea-anti-voter-fraud-measures>

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    CCP v. Harris on Nov. 6 #SCOTUS Conference List
    <http://electionlawblog.org/?p=76941>

Posted onOctober 22, 2015 7:38 am 
<http://electionlawblog.org/?p=76941>byRick Hasen 
<http://electionlawblog.org/?author=3>

Docket. 
<http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-152.htm>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “Constitution Check: Are driver’s licenses the answer to voter ID
    laws?” <http://electionlawblog.org/?p=76939>

Posted onOctober 22, 2015 7:35 am 
<http://electionlawblog.org/?p=76939>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lyle Denniston 
writes<http://blog.constitutioncenter.org/2015/10/constitution-check-are-drivers-licenses-the-answer-to-voter-id-laws/>at 
Constitution Daily.

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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>


    “Full interview: Charles Koch” <http://electionlawblog.org/?p=76937>

Posted onOctober 22, 2015 7:33 am 
<http://electionlawblog.org/?p=76937>byRick Hasen 
<http://electionlawblog.org/?author=3>

Marketplace talked 
<http://www.marketplace.org/topics/business/corner-office/full-interview-charles-koch>with 
Charles Koch for an hour.  Here is a bit on the planned political spending:

    *Ryssdal:*So if you feel that way, and if you’re spending, the Koch
    brothers writ large are spending so much money on politics, reports
    are $900 million dollars in the 2016-

    *Koch:*No, but see, that’s totally wrong.

    *Ryssdal:*Okay, what’s the number?

    *Koch:*Okay, here’s the, and this is the budget, and it’s a
    projection of what the donors want to-

    *Ryssdal:*Mm-hm (affirmative)

    *Koch:*… give to. ‘Cause we say, “Okay, here are all the things that
    can be done that may or may not make a difference,” and our latest
    budget is going to be lower because people aren’t contributing-

    *Ryssdal:*How much lower sir?

    *Koch:*… as much. Probably the total budget over the two years I
    would guess would be 750, and the amount in politics is 250.

    *Ryssdal:*In millions of dollars?

    *Koch:*In millions of dollars.

    *Ryssdal:*All right.

    *Koch:*And as I said, very small portion of that 250 comes from the
    so-called Koch Brothers, and even less from me than from my brother
    because everybody can choose what they want to give to. So it isn’t
    the Koch brothers doing it. It’s other people doing it.

    *Ryssdal:*You realize that comes across as sort of disingenuous, right?

    *Koch:*In what way? It’s the truth.

    *Ryssdal:*You organize seminars, you fund grass roots organizations.

    *Koch:*Yeah.

    *Ryssdal:*You have money in politics throughout the system, and for
    you to sit there and say, “I’m sorry, this isn’t really us,” doesn’t
    ring true and will not ring true when people hear this interview.

    *Koch:*Okay, but here’s the thing.  If this wasn’t what people
    wanted, other people wanted to give to, the money wouldn’t come
    because we’re not putting it up. That’s, I mean you can say, yeah,
    we’ve improved the capability, because we say, “Okay, if you want to
    donate to these, we need to help make it more effective and to try
    to pick better candidates who will do a somewhat, maybe not go 70
    miles an hour, and then hope there’s a few who will agree and
    actually try to change the trajectory of the country.”

    *Ryssdal:*So what, how do you figure out your return on investment
    for the money that you and those who think like you invest in
    politics in America today? Because as you know, the electoral cycle
    this past couple of cycles has not been really kind to Republicans.

    *Koch:*Well that’s not true. In the off years it has.

    *Ryssdal:*Well s-

    *Koch:*And-

    *Ryssdal:*… sure, sure, but last time there was a race for the white
    house Carl Rove is the guy who stood up and said, “What are we
    doing? We’re wasting all this money.”

    *Koch:*Yeah, noted.

    *Ryssdal:*So how-

    *Koch:*… a lot of it is waste, and I’ll give even-

    *Ryssdal:*Okay.

    *Koch:*… a stronger example to make your case-

    *Ryssdal:*I appreciate that, thank you.

    *Koch:*… that it’s a waste, and, and that is there, there’s a tax
    bill that comes up every year, it has 55 different subsidies called
    “extenders.”

    *Ryssdal:*Must make you crazy.

    *Koch:*And so we contributed to a bunch of the congress people’s
    campaigns, and so we wrote a letter to every congress person,
    “Please vote this down. This is a whole series of subsidies to
    things like making moves in an area, just one boondoggle after the
    other.”

    *Ryssdal:*Mm-hm (affirmative)

    *Koch:*“Please vote against this.” After all the Republicans, close
    to 250, only 46 voted against it. Okay, so this is an experiment, so
    we’re going to be looking harder at which Republicans we support, or
    Democrats, I’m happy to support d- We work with the white house on
    criminal justice reform.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “New Rules Help Hillary Clinton Tap Big Donors For Democrats”
    <http://electionlawblog.org/?p=76935>

Posted onOctober 22, 2015 7:29 am 
<http://electionlawblog.org/?p=76935>byRick Hasen 
<http://electionlawblog.org/?author=3>

Paul Blumenthal reports 
<http://www.huffingtonpost.com/entry/hillary-clinton-donors_5627a946e4b02f6a900ed79a>for 
HuffPo.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Bernie Sanders’s inaccurate claim that the two Koch brothers will
    spend more than either major party on 2016 elections”
    <http://electionlawblog.org/?p=76933>

Posted onOctober 22, 2015 7:28 am 
<http://electionlawblog.org/?p=76933>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo 
<https://www.washingtonpost.com/news/fact-checker/wp/2015/10/22/bernie-sanderss-inaccurate-claim-that-the-two-koch-brothers-will-spend-more-than-either-major-party-on-2016-elections/>fact 
checker.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Ballotpedia Will Hold Webinar on Presidential Ballot Access Laws &
    Deadlines” <http://electionlawblog.org/?p=76931>

Posted onOctober 22, 2015 7:27 am 
<http://electionlawblog.org/?p=76931>byRick Hasen 
<http://electionlawblog.org/?author=3>

Press release 
<http://ballotpedia.org/Ballotpedia_Will_Hold_Webinar_on_Presidential_Ballot_Access_Laws_%26_Deadlines>about 
October 28 event.

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Posted inballot access <http://electionlawblog.org/?cat=46>


    “The Future of Deference” <http://electionlawblog.org/?p=76929>

Posted onOctober 22, 2015 7:26 am 
<http://electionlawblog.org/?p=76929>byRick Hasen 
<http://electionlawblog.org/?author=3>

Richard Pierce has postedthis draft 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672979>on SSRN. 
  Here is the abstract:

    In this essay, Professor Pierce describes the history of the
    deference doctrines the Supreme Court has announced and applied to
    agency interpretations of ambiguous statutes and rules over the last
    seventy years. He predicts that the Court will continue to reduce
    the scope and strength of those doctrines, in part because of
    increasing concern about the temporal inconsistencies created by
    those doctrines. In the current highly polarized political
    environment, deference doctrines create a legal environment in which
    the “law” applicable to many agency actions changes every time a
    President of one party replaces a President of the other party.

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Posted inlegislation and legislatures 
<http://electionlawblog.org/?cat=27>,statutory interpretation 
<http://electionlawblog.org/?cat=21>


    Sam Issacharoff: How Do Courts Get Away with Intervening in
    Politics? <http://electionlawblog.org/?p=76885>

Posted onOctober 21, 2015 8:00 pm 
<http://electionlawblog.org/?p=76885>byRick Hasen 
<http://electionlawblog.org/?author=3>

The following is the second of three guest posts by NYU’sSam Issacharoff 
<https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=23845>about 
his new book,Fragile Democracies 
<http://www.cambridge.org/us/academic/subjects/law/comparative-law/fragile-democracies-contested-power-era-constitutional-courts>:

fragile <http://electionlawblog.org/wp-content/uploads/fragile.png>

In 2010, the Colombian Constitutional Court struck down a proposed 
constitutional amendment that would have permitted President Alvaro 
Uribe to seek an unprecedented third term. Although the constitutional 
amendment was procedurally proper, or at least tolerably so, the Court 
invoked a greater principle of democratic accountability to prevent the 
excess consolidation of executive power.

As extraordinary as an unconstitutional constitutional amendment may 
seem, the Colombian Court found itself in good company. In 1996, the 
South African Constitutional Court had struck down the entire first 
proposed post-apartheid constitution as itself unconstitutional. The 
Indian Supreme Court had proclaimed that certain “basic structures” of 
democracy were inviolate, even in the face of constitutional efforts at 
amendment. Courts across the globe, from South Korea to Eastern Europe 
to Israel to Mexico, and of late even to Africa, were crossing 
decisively into the political thicket. At issue with increasing 
frequency was the proper calibration of political authority in the 
embryonic stages of post-authoritarian rule.

Two questions follow. First, what is the end aim of this form of 
judicial intervention? Unlike a simpler rights proclamation, the object 
is not to free a dissident from prison or award damages against state 
misconduct, or even to enjoin a particular decision. The Colombian 
decision to deny the voters of Colombia the choice of returning 
President Uribe to office a third time has to be justified in terms of a 
commitment to democratic competition, and in turn to the importance of 
popular “renewal of consent” through the ability to vote the rascals out.

Second, how can courts possibly get away with challenging incumbent 
political power? Unlike the traditional rights based interventions, 
structural reallocations of power necessarily engage core issues of 
governmental authority. Part of the answer has to be the uncertainty of 
the consolidation of power in the early stages of democracy. Part also 
lies in the support from the outgroups in the society, and the ability 
to claim a democratic heritage for the judicial intervention. 
Intriguingly, an important source of judicial authority comes from the 
mediating role that courts play (what I term “democratic hedging”) in 
allowing the first governments to form in post-autocratic conditions.

By recasting a core judicial function in terms of democratic 
stabilization, the book organizes disparate constitutional themes in 
various countries around the need to preserve democratic accountability. 
Looked on in this fashion, the anti-communal incitement cases of India, 
the anti-corruption cases of South Africa, the anti-lustration cases of 
Eastern Europe, and even the minimum vote requirement for parliamentary 
representation all begin to fall into patterns that define the judiciary 
as a superintendent of the integrity of the political process.

There is no doubt that the emergence of strong constitutional courts is 
a defining feature of the late 20^th century efforts at new democracies. 
The book argues that properly discharged, this judicial power can 
forestall many of the characteristic failings of fragile democracies. 
The last post assesses the prospects of this strategy.

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Posted incomparative election law <http://electionlawblog.org/?cat=107>


    “Police officer accused of voter fraud”
    <http://electionlawblog.org/?p=76927>

Posted onOctober 21, 2015 6:48 pm 
<http://electionlawblog.org/?p=76927>byRick Hasen 
<http://electionlawblog.org/?author=3>

Absentee ballot fraud 
<http://www.batesvilleheraldtribune.com/news/local_news/police-officer-accused-of-voter-fraud/article_768117eb-7d12-5195-b587-018bd40cbdea.html>, 
natch.

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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,chicanery 
<http://electionlawblog.org/?cat=12>


    Quote of the Day: “You Can’t Be Serious, NBC” Edition
    <http://electionlawblog.org/?p=76921>

Posted onOctober 21, 2015 6:27 pm 
<http://electionlawblog.org/?p=76921>byRick Hasen 
<http://electionlawblog.org/?author=3>

 From @AdamBonin, @Lessig’s attorney,in a letter 
<http://electionlawblog.org/wp-content/uploads/Equal-Time-Response-to-NBC-10.21.15.pdf> 
to NBC o 
<http://electionlawblog.org/wp-content/uploads/Equal-Time-Response-to-NBC-10.21.15.pdf>n 
an equal time request:Screen Shot 2015-10-21 at 6.25.26 PM 
<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2015-10-21-at-6.25.26-PM.png>

MORE<http://variety.com/2015/tv/news/larry-lessig-nbc-saturday-night-live-equal-time-1201623473/>at 
Variety.

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Posted incampaigns <http://electionlawblog.org/?cat=59>


    “Kansas May Be The Toughest Place to Vote in America”
    <http://electionlawblog.org/?p=76918>

Posted onOctober 21, 2015 4:36 pm 
<http://electionlawblog.org/?p=76918>byRick Hasen 
<http://electionlawblog.org/?author=3>

John Hockenberry talks to Kansas SOS (and fraudulent fraud squad 
huckster) Kris Kobach onThe Takeaway 
<http://www.thetakeaway.org/story/kansas-toughest-place-vote-america/?utm_source=local&utm_medium=treatment&utm_campaign=featuredcomment&utm_content=article>.

Kobach admits that most noncitizens are registering (or voting) not 
because they want to commit fraud but because someone else has 
(mistakenly) told them they could register.

John asks: “Has an election ever been thrown in Kansas because of fraud 
like this,  and you said ‘many many many’ aliens because of fraud like 
this, and you weren’t talking about Kansas you were saying around the 
country?”

Kobach’s answer is laughable, relying on a case out of Missouri 
involving Somalis which has been debunked.

Here is the first comment on The Takeaway’s website:

    It’s not surprising that at 4:25 Kobach lied about the Missouri
    election.

    1) There’s NO evidence that “50 non-citizens voted” in that
    election. The allegation was that some Somali voters — who election
    judges verified were legally registered to vote and presented
    identification — may have received improper help from a translator.
    Those allegations, however, were dismissed by a Missouri court:
    http://www.courts.mo.gov/file.jsp?id=41678#24

    2) The only two substantiated cases of voter fraud in that election
    were committed by two U.S. citizens — neither of whom were Somali
    nationals. Those two people were actually related to one of the
    candidates and were convicted of voting in a district that they did
    not live in:
    http://www.kansascity.com/news/local/article322208/Missouri-Rep.-John-Joseph-Rizzo%E2%80%99s-relatives-admit-to-voter-fraud.html

    3) I found no article from the Kansas City Star that conceded that
    this election was stolen because of non-citizens voting. I did find
    an article from the Kansas City Star pointing out all the lies
    Kobach has made about this case:
    http://www.kansascity.com/opinion/opn-columns-blogs/yael-t-abouhalkah/article322569/Beware-Kobach%E2%80%99s-lie-about-KC-voter-fraud-case.html

    4) It’s also important to note that Kobach has worked for several
    racists organizations, as noted by the the Southern Poverty Law
    Center multiple times.
    https://www.splcenter.org/20110130/when-mr-kobach-comes-town-nativist-laws-and-communities-they-damage

    This is what motives Kobach. He invokes the false specter of
    “aliens” or “Somali nationals” voting in elections to stoke
    xenophobia among conservative voters.

    5) Hockenberry needs to do a better job of fact checking the claims
    of noted liars like Kobach before they appear on his show and spread
    misinformation.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,fraudulent fraud squad 
<http://electionlawblog.org/?cat=8>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    Texas Opposes Preliminary Injunction in Never-Ending Redistricting
    Case <http://electionlawblog.org/?p=76914>

Posted onOctober 21, 2015 4:24 pm 
<http://electionlawblog.org/?p=76914>byRick Hasen 
<http://electionlawblog.org/?author=3>

Read it here 
<http://electionlawblog.org/wp-content/uploads/texas-pi.pdf>(myearlier 
coverage <http://electionlawblog.org/?p=76697>).

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights 
Act <http://electionlawblog.org/?cat=15>


    The Supreme Court Dissent as Vanity Publishing for the Celebrity
    Justice? <http://electionlawblog.org/?p=76912>

Posted onOctober 21, 2015 2:32 pm 
<http://electionlawblog.org/?p=76912>byRick Hasen 
<http://electionlawblog.org/?author=3>

@DahliaLithwick 
<http://www.nytimes.com/2015/10/25/books/review/dissent-and-the-supreme-court-by-melvin-i-urofsky.html>:

    What is not clear,” Urofsky argues, “is whether the dissent in the
    modern court is as powerful an agent of dialogue as it was in the
    days of Holmes and Brandeis, especially in terms of conversing with
    the larger society.” But Justices Scalia, Ginsburg and Roberts, in
    particular, are trying to reach out to join the larger
    constitutional debate, using all the mechanisms at hand — be it a
    Notorious R.B.G. tote bag or an eminently tweetable put-down. The
    frightening thing to contemplate is that these modes of dialogue may
    be as powerful a tool of dissent in the modern era as the Brandeis
    brief was in the past.

    The current Supreme Court includes a number of individuals who are
    fully capable of expressing a forceful I, and each has the ability
    to communicate powerfully — as well as almost instantaneously — with
    millions of citizens. Whether this is a continuing part of a
    constitutional dialogue or merely constitutional performance art
    remains to be seen. History will surely let us know.

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Posted inCelebrity Justice <http://electionlawblog.org/?cat=109>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    “Marco Rubio’s Interview With Fox News May Have Violated Ethics
    Rules” <http://electionlawblog.org/?p=76910>

Posted onOctober 21, 2015 2:23 pm 
<http://electionlawblog.org/?p=76910>byRick Hasen 
<http://electionlawblog.org/?author=3>

HuffPo 
<http://www.huffingtonpost.com/entry/marco-rubio-campaign-funds-ethics-rules_5626b48be4b08589ef498c7a?jrtchaor>:

    Sen. Marco Rubio (R-Fla.) may have just violated ethics rules that
    prohibit soliciting campaign funds while on Senate property.

    Rubio gave an interview to Fox News’ Neil Cavuto on Tuesday,
    speaking from the Russell Senate Office Building. When asked about
    lagging behind some of his rivals for the Republican presidential
    nomination, the senator attempted to tout the strength of his
    fundraising.

    In doing so, however, Rubio made a direct appeal for donations.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Billionaire Carl Icahn launches $150 million super PAC”
    <http://electionlawblog.org/?p=76908>

Posted onOctober 21, 2015 11:34 am 
<http://electionlawblog.org/?p=76908>byRick Hasen 
<http://electionlawblog.org/?author=3>

Politico: 
<http://www.politico.com/story/2015/10/billionaire-carl-icahn-launches-super-pac-215005#ixzz3pDfh6jCW>

    Billionaire investor Carl Icahn announced Wednesday that he is
    forming a super PAC with $150 million of his own money “to help end
    the crippling dysfunction in Congress.”

    “I am starting a Super PAC with my initial commitment of $150
    million to help end the crippling dysfunction in Congress,” Icahn
    tweeted. In a follow-up tweet, he shared the letter he sent to the
    House Ways and Means Committee, the Senate Finance Committee, and
    House and Senate minority and majority leaders.

    The super PAC’s first goal will be to reverse the trend of U.S.
    companies merging with foreign ones or relocating overseas because
    of high corporate taxes, Icahn said.

Vox <http://www.vox.com/2015/10/21/9583646/carl-icahn-super-pac>: “Carl 
Icahn creates $150 million Super PAC advocating enormous tax cut for 
Carl Icahn.”

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-- 
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
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http://electionlawblog.org

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