[EL] ELB News and Commentary 9/26/15
Rick Hasen
rhasen at law.uci.edu
Fri Sep 25 20:34:03 PDT 2015
“Sacramento County seeks review of elections office”
<http://electionlawblog.org/?p=76203>
Posted onSeptember 25, 2015 7:16 pm
<http://electionlawblog.org/?p=76203>byRick Hasen
<http://electionlawblog.org/?author=3>
SacBee:
<http://www.sacbee.com/news/local/local-election/article35055948.html>
Sacramento County plans to hire a consultant to review its elections
office following complaints from city clerks about the handling of
last year’s elections.
As reported by The Sacramento Bee last month
<http://www.sacbee.com/news/investigations/the-public-eye/article29754133.html>,
current and former clerks in Sacramento, Galt and Rancho Cordova
said the elections office had become less reliable in the past 18
months. The office published inaccurate information about contests
in Sacramento and Rancho Cordova in sample ballot guides and
provided Galt’s clerk with wrong information about the ballot order
of council races, among other things.
The complaints are one reason Sacramento County Chief Deputy
Executive Paul Lake is asking for a review of the office. As head of
the Countywide Services agency, Lake oversees the office and its
chief, Registrar of Voters Jill LaVine.
“We want to see what we can do to improve,” he said. “We want to
have good customer service.”
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Posted inelection administration <http://electionlawblog.org/?cat=18>
Amicus Briefs in Evenwel Case <http://electionlawblog.org/?p=76195>
Posted onSeptember 25, 2015 7:14 pm
<http://electionlawblog.org/?p=76195>byRick Hasen
<http://electionlawblog.org/?author=3>
I’ve already linked to thePersily et al. brief.
<http://electionlawblog.org/wp-content/uploads/evenwel-persily-Brief.pdf>
I have also received briefs from:
the DNC
<http://electionlawblog.org/wp-content/uploads/14-940bsacDemocraticNationalCommittee.pdf>
Common Cause
<http://electionlawblog.org/wp-content/uploads/14-940-bsac-Common-Cause.pdf>
Harris County
<http://electionlawblog.org/wp-content/uploads/14-940-bsac-Harris-Cty-Tx.pdf>
Brennan Center
<http://electionlawblog.org/wp-content/uploads/Brennan-Center-Amicus-Curiae-Brief.pdf>
Former census bureau directors
<http://electionlawblog.org/wp-content/uploads/14-940-bsac-Former-Directors-of-the-U.S.-Census-Bureau.pdf>
Constitutional Accountability Center
<http://theusconstitution.org/sites/default/files/briefs/Evenwel_v_Abbott_Amicus_Final.pdf>
ACLU
<http://electionlawblog.org/wp-content/uploads/14-940-bsac-The-American-Civil-Liberties-Union.pdf>
Here is a list of additional briefs on the merits via Moritz
<http://moritzlaw.osu.edu/electionlaw/litigation/Evenwel.v.Abbott.php>:
* Brief for Appellants
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelBrief07312015.pdf>pdf
file(filed 7/31/15)
* Brief Amicus Curiae of ACLU
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelACLUBrief08052015.pdf>pdf
file(filed 8/05/15)
* Brief Amicus Curiae of Eagle Forum Education and Legal Defense Fund,
Inc.
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelEagleFound08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amicus Curiae of Project
21<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelProject21Brief08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amicus Curiae of Tennessee State Legislators and The Judicial
Education Project
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelEagleFound08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amici Curiae of Cato Institute and Reason Foundation
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelCatoBrief08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amicus Curiae of Mountain States Legal Foundation
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelMountStatesBrief08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amici Curiae of Demographers Peter A. Morrison, et al
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelDemographersBrief08072015.pdf>.pdf
file(filed 8/07/15)
* Brief Amicus Curiae of Center for Constitutional Jurisprudence
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelCenterConBrief08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amicus Curiae of Immigration Reform Law Institute
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelImmiReformBrief08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amici Curiae of Judicial Watch, Inc., et al.
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelJudicialWatchBrief08072015.pdf>pdf
file(filed 8/07/15)
* Brief Amicus Curiae of Yakima, Washington
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/EvenwelYakimaBrief08072015.pdf>pdf
file(filed 8/07/15)
* Brief of Appellees
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Evenwel-TexasBrief091815.pdf>pdf
file(filed 9/18/15)
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Political Fragmentation with a Vengeance: John Boehner’s Resignation
<http://electionlawblog.org/?p=76189>
Posted onSeptember 25, 2015 12:57 pm
<http://electionlawblog.org/?p=76189>byRichard Pildes
<http://electionlawblog.org/?author=7>
I have been arguing for some time now that “political fragmentation” is
a defining element of our political era. The decline in the capacity
and power of party leaders in Congress to bring along their caucuses to
support leadership positions has now been brought home dramatically with
John Boehner’s announced resignation. As I put it in/Romanticizing
Democracy, Political Fragmentation, and the Decline of American
Government/,
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546042>124 Yale Law
J. 804 (2014), by “‘fragmentation,’ I mean the external diffusion
ofpoliticalpower away from thepoliticalparties as a whole and the
internal diffusion of power away from the party leadership to individual
party members and officeholders.”
In my view, the decline in the power of party leaders is attributable to
at least two related transformations. One is the communications
revolution, which now enables the most junior lawmakers to reach out to
constituencies, including national constituencies, without being
dependent on party support for building a national stature. The second,
related phenomenon is the fundraising revolution, which enables
officeholders to raise money through social media in a way that also can
empower even junior legislators and free them from overwhelming
dependence on the political parties. The power that Ted Cruz or
Elizabeth Warren were able to marshal in their first year in office,
which would have been unimaginable a few decades ago, is a result of
these transformations. In the House, the rise of extremely safe
election districts further contributes.
In today’s online Washington Post, Karen Tumulty, who covers Congress,
provides some historical perspective on the decline in the power of the
Speaker of the House along similar lines. As she puts ithere:
<http://%E2%80%9CIt%E2%80%99s%20my%20job%20to%20look%20out%20over%20the%20horizon,%20make%20sure%20I%20know%20where%20we%E2%80%99re%20going,%E2%80%9D%20Boehner%20once%20said%20when%20asked%20to%20define%20the%20role%20of%20speaker.%20%E2%80%9CAnd%20to%20make%20sure%20the%20team%20is%20working%20together.%E2%80%9D%20In%20other%20words,%20a%20job%20that%20may%20be%20all%20but%20undoable%20in%20today%27s%20politics./>
The speakership itself no longer wields the influence it once did.
Sam Rayburn’s old dictum to new members that they should “go along
to get along” worked in an era where power within the institution
was accumulated over decades, by climbing in seniority through the
committee system. Now, even the most junior member can build a
national base by stoking ideological fires through mass media. . . .
“It’s my job to look out over the horizon, make sure I know where
we’re going,” Boehner once said when asked to define the role of
speaker. “And to make sure the team is working together.”
In other words, a job that may be all but undoable in today’s politics.
Political fragmentation that empowers the more ideologically extreme
wings of the parties makes the American system of separated powers all
the more difficult to function. The political figures who most strongly
internalize the incentives to make their political parties appealing to
a broad electorate are the party leaders; in the context of highly
polarized political parties, it is these party leaders who are most
likely to be the sources of compromise and deal-making that enable the
separated powers system to engage major issues of the day. But when
party leaders lack the power to bring their recalcitrant members along,
those forces of centrism inevitably diminish.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Probably the Most Important Brief in Evenwel Has Just Been Filed
<http://electionlawblog.org/?p=76186>
Posted onSeptember 25, 2015 7:27 am
<http://electionlawblog.org/?p=76186>byRick Hasen
<http://electionlawblog.org/?author=3>
It is the amicus
brief<http://electionlawblog.org/wp-content/uploads/evenwel-persily-Brief.pdf>of
Nate Persily, Bernie Grofman, Charles Stewart, Steve Ansolabehere, and
Bruce Cain. Hard to think of a better A-list of political scientists
working at the intersection of election law and political science. Here
is the summary of the argument:
The United States Constitution requires the creation of a single
population dataset: the decennial Census’s “actual enumeration” of
persons. U.S. Const. art. I, § 2; amend. XIV. As such, states
and localities, almost without exception, have used this dataset to
build redistricting plans, and courts have repeatedly upheld plans
that do so. Neither the federal government, nor any state, maintains
an address list of eligible voters that would allow for
redistricting on that basis. Surveys, funded by congressional whim,
that provide partial estimates of eligibility based on citizenship
are a poor substitute for the census redistricting dataset. An
interpretation of the Fourteenth Amendment that would prohibit
the use of the most accurate and only constitutionally mandated
population dataset and, in effect, mandate the creation of some new
count of eligible voters would be both unprecedented and incredibly
destabilizing to the U.S. Census and redistricting process.
The contested philosophical arguments occupying most of the briefing
in this case can be avoided in favor of a simpler resolution based
on the type of population data available and usable for
redistricting. Appellants’ interpretation of the constitutional
requirement of one person, one vote is radical not only in its
theoretical underpinnings, but also in its real, practical
implications for the redistricting process. They argue that the
dataset all states used for redistricting in 2010 is
constitutionally deficient and impermissible. Instead, some other
data – perhaps the American Community Survey, registered voter
statistics, or some heretofore nonexistent dataset of
eligible voters – should be used as the population basis for
redistricting. None of these datasets, however, have the
granularity, timeliness, detail, or accuracy comparable to the
census enumeration.
Appellants’ constitutional argument is predicated on the notion that
it is possible to draw districts around equal numbers of eligible
voters. If the Fourteenth Amendment requires that only people
who can vote should be equally represented, then
redistricting, under this view, should be based on equal numbers of
eligible voters and no one else. For most states, that means the
census enumeration of the total population, plus voting eligible
military and overseas voters not counted at their voting address in
the census, minus children, noncitizens, prisoners
and disenfranchised felons, and those ineligible because of mental
disability. No state maintains a dataset of eligible voters, as such.
Appellants, therefore, urge this Court to mandate, as a
constitutional rule, the use of currently available second-best
alternatives that would not satisfy the rigid legal standard they
proffer. Estimates of the citizen voting age population (CVAP)
derived from the yearly American Community Survey (ACS) of
2.5 percent of households do not provide current, accurate data at
the levels of geography (census block level or precinct) where most
redistricting is conducted. At best, the ACS five-year averages give
ballpark estimates of previous citizenship rates, several
years before redistricting is conducted. The ACS could also be
eliminated by the government at any time, as the House of
Representatives has voted to do, or fully or partially defunded, as
has happened twice since its inception.
Registered voter lists invite a different set of problems, and can
only be used for redistricting if they match up well with more
reliable population statistics. They are ripe for political
manipulation and highly variable depending on the temporal
proximity of the list to a given election. Moreover, at least
one state does not keep a voter registration list, and another dozen
allow for Election Day registration, which can lead to substantial
changes in voter registration data in a short period of time.
The one-person, one-vote rule is not broken, and this Court should
not try to fix it. The collateral damage caused by a rejection of
the census as the basis for redistricting cannot be easily
contained. In the end, Appellants not only invite the Court to
read the Constitution to prohibit what is now the near-universal use
of census population data for redistrict ing, but they also suggest
that the Fourteenth Amendment requires government collection of
data on voter eligibility that heretofore has not existed. The Court
should reject that invitation.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Judging the Impact of Super PACs” <http://electionlawblog.org/?p=76184>
Posted onSeptember 25, 2015 7:15 am
<http://electionlawblog.org/?p=76184>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs.
<http://www.moresoftmoneyhardlaw.com/2015/09/judging-impact-super-pacs/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
--
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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