[EL] Letters to NY Times re CU

[Smith, Brad]

Wow, are most of these letter writers to the NY Times (1st item below) confused. Embarrassingly confused.


Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, April 04, 2016 12:39 PM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 4/4/16

“Citizens United and the Foreign Question”<http://electionlawblog.org/?p=81495>
Posted on April 4, 2016 9:35 am<http://electionlawblog.org/?p=81495> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT letters to the editor<http://www.nytimes.com/2016/04/04/opinion/citizens-united-and-the-foreign-question.html> on FEC Commissioner Weintraub’s NYT oped.<http://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
“Why are so many Democrats and Republicans pretending to be independents?”<http://electionlawblog.org/?p=81493>
Posted on April 4, 2016 9:34 am<http://electionlawblog.org/?p=81493> by Rick Hasen<http://electionlawblog.org/?author=3>

John Sides<https://www.washingtonpost.com/news/monkey-cage/wp/2016/04/04/why-are-so-many-democrats-and-republicans-pretending-to-be-independents/> for the Monkey Cage.
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Posted in political parties<http://electionlawblog.org/?cat=25>
“Court upholds total population count in electoral districts”<http://electionlawblog.org/?p=81491>
Posted on April 4, 2016 9:30 am<http://electionlawblog.org/?p=81491> by Rick Hasen<http://electionlawblog.org/?author=3>

Mark Sherman reports<http://www.bigstory.ap.org/article/df4b7b12fdc94bd593b9fcb77387b6e6/court-upholds-total-population-count-electoral-districts> for AP.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Court Denies Review in Campaign Finance Case”<http://electionlawblog.org/?p=81489>
Posted on April 4, 2016 9:28 am<http://electionlawblog.org/?p=81489> by Rick Hasen<http://electionlawblog.org/?author=3>

Ron Collins:<http://concurringopinions.com/archives/2016/04/fan-102-3-first-amendment-news-court-denies-review-in-campaign-finance-case.html>

Today the Court issued its orders list<http://www.supremecourt.gov/orders/courtorders/040416zor_5i36.pdf> in which the Justices declined to hear the case of Justice v. <http://www.scotusblog.com/case-files/cases/justice-v-hosemann/> Houseman.

The issue in the case was whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.

→ The cert. petition was filed by the Institute for Justice with Paul Avelar as counsel of record for the Petitioners.

→ The Center for Competitive Politics (Allen Dickerson), the Cato Institute (Ilya Shapiro), and the Independence Institute filed an amicus brief <http://www.scotusblog.com/wp-content/uploads/2015/12/151209-for-filing.pdf> on behalf of the Petitioners.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“This Is How Hard It Is To Get A Voter ID In Wisconsin”<http://electionlawblog.org/?p=81487>
Posted on April 4, 2016 9:23 am<http://electionlawblog.org/?p=81487> by Rick Hasen<http://electionlawblog.org/?author=3>

Important Alice Ollstein<http://thinkprogress.org/politics/2016/04/02/3765448/wisconsin-primary-voter-id/> for Think Progress.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“The Definitely Messy, Probably Solvable Reasons Americans Don’t Vote”<http://electionlawblog.org/?p=81484>
Posted on April 4, 2016 9:16 am<http://electionlawblog.org/?p=81484> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg reports.<http://www.bloomberg.com/politics/graphics/2016-non-voters/?cmpid=BBD040416_POL&utm_medium=email&utm_source=newsletter&utm_campaign=>
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Posted in voting<http://electionlawblog.org/?cat=31>
“Is There a Better Way to Vote, Post-Trump?”<http://electionlawblog.org/?p=81482>
Posted on April 4, 2016 9:14 am<http://electionlawblog.org/?p=81482> by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew McGill<http://www.theatlantic.com/politics/archive/2016/04/ranked-voting-donald-trump-primary-instant-runoff/476670/> at the Atlantic.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>
“Could Republican Convention delegates be bought? Legally, maybe”<http://electionlawblog.org/?p=81479>
Posted on April 4, 2016 8:46 am<http://electionlawblog.org/?p=81479> by Rick Hasen<http://electionlawblog.org/?author=3>

CNN has this report.<http://www.cnn.com/2016/04/04/politics/contested-convention-bribing-delegates/index.html>

I’d be careful with this analysis, and point readers to this fascinating Brian Svoboda<https://www.lawandpoliticsupdate.com/2016/03/bribery-and-the-brokered-convention-2/> post.on whether RNC delegates at a contested convention could be bribed.
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Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>, political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>
Evenwel: Misguided Hysteria, Done With<http://electionlawblog.org/?p=81462>
Posted on April 4, 2016 7:30 am<http://electionlawblog.org/?p=81462> by Richard Pildes<http://electionlawblog.org/?author=7>

Immediately after the Court agreed to hear the Evenwel case, I posted an essay<http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott/> on the Supreme Court blog arguing that the extreme overreactions and that were already emerging over the Court’s decision to address this issue from journalists and some academic commentators were deeply misguided.  As I argued then, the Court was right to take the case, to address these long unresolved issues, and when the Court did so, I thought there was little doubt the Court would continue to permit State to use total population for districting.

Today’s decision fully vindicates those views.  The Court unanimously upheld the authority of states to use total population.  In addition, a six-member majority went out of its way to make clear that the question remains fully open whether states might be required to use population, rather than eligible voters.  As the text of the majority opinion says in its final paragraphs:”Because history, precedent, and practice suffice to reveal the infirmity of appel-lants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.”

The only hard question in this case, as I’ve said throughout, is whether the Court should conclude that the total population standard is not just permitted, but required. I was glad to see the Court made clear that that is a question that is left open for another day, should the issue ever actually arise — as it would if a jurisdiction ever did decide to use eligible voters as the baseline and doing so caused significant deviations from equality based on population.

All in all, an overwhelming consensus in the Court for the straightforward resolution of the issue, despite the wildly exaggerated fears that had been stoked up about this case.


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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Breaking/Analysis: Big Victory for Voting Rights as #SCOTUS Rejects Plaintiffs’ Claim in Evenwel One Person, One Vote Case<http://electionlawblog.org/?p=81460>
Posted on April 4, 2016 7:15 am<http://electionlawblog.org/?p=81460> by Rick Hasen<http://electionlawblog.org/?author=3>

A unanimous Supreme Court in Evenwel v. Abbott (with two Justices (Thomas and Alito) concurring in the judgment) has rejected the argument<http://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf> that states must draw district lines so as to equalize the total number of voters (as opposed to total population) in redistricting. A contrary ruling would have shifted power to Republican, rural districts, and away from Democratic urban areas (because non-citizens and children, especially in Latino areas in states such as Texas would be in Democratic areas).  Most importantly, in a big victory for the federal government’s position in the litigation, the Court did not say that a state can simply choose between doing total population or total voters in how district lines are drawn. Some expected that if the Court gave Texas the green light to choose, as Texas argued it had the right to do in this litigation, then in the next round of redistricting, it would have done so in order to increase the number of Republican districts in the state.

Justice Ginsburg wrote the opinion for the Court, and it is clear (as I had been saying<http://electionlawblog.org/?p=77988>) that Justice Scalia’s death did not affect the outcome of this case. It was clear from the oral argument that, despite what some said, this was not a case where the Court was likely to divide 4-4. Ed Blum’s position in this case to require voter population was not only at odds with historical practice, it was not practically possible given the data that we have, and it would have led to terrible outcomes, including making it basically impossible to also comply with Voting Rights Act requirements for districts.

Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total population rule.  In key language, she writes that “Nonvoters have an important stake in many policy debates—children,, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” A footnote following this states that even though constituents “have no constitutional right to equal access to the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for liberal supporters of voting rights. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

One notable aspect of Justice Ginsburg’s opinion is that it seeks to provide some clarity about when perfect equality is required and when it is not. Interesting, the Court ignores the Tennant case, which seemed to allow some deviation from perfect equality even in Congressional district cases, and seems to restore a 10% safe harbor for state and local redistricting. (See pages 3-4.) As Derek Muller points out on Twitter, this is a bad sign for the plaintiffs in the pending Harris case from Arizona, although the Court could still hold that the 10% safe harbor does not apply when there is proof of partisan motive in deviating from perfect equality.

The concurring opinions coming from Justices Thomas and Alito are not surprising. Years earlier, Thomas dissented from the Court’s refusal to hear an earlier case on this question. Back when Alito applied to work at the Justice Department, he mentioned in his application his disagreement with the Warren Court one person, one vote cases. Justice Thomas, quite radically given the last 50 years, suggests there is no basis for a one person, one vote principle at all. This strikes me, as I’ve written, as a sound conservative argument,<http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case/> unlike Ed Blum’s argument<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html> in Evenwel which would have restricted states even further in their choice of one person, one vote rules. I suspect that Justice Scalia could have concurred in Justice Thomas’s opinion.

Justice Alito does not go as far as Justice Thomas. Relying heavily on historical analysis, he would hold that a state can use total population, but casts serious doubts on the question (not reached by the majority) as to whether it must. He says the question whether a state could use some other measure “is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”

This was never a close case, as judged by the unanimous rejection of Ed Blum’s position in this case. So why did the Court take it?  As I’ve suggested in my forthcoming Stanford Law Review piece, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902>  the Court likely took this case for a purely technical reason: Ed Blum managed to maneuver it to come before a three judge district court with direct appeal to the Supreme Court. In those cases, a decision by the Court not to hear the case and to simply affirm is treated as a judgment that the Supreme Court agrees with the lower court result (though not necessarily its reasoning). The Chief Justice and others have said they feel compulsion to take these cases, as they are often reluctant to endorse a result without a full examination.

It might be said that liberals dodged a bullet. But as I’ve said since the beginning, this bullet was never close to hitting its victim.

This post has been updated.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Trump, Cruz Work to Block Kasich From Ballot at Open Convention”<http://electionlawblog.org/?p=81458>
Posted on April 3, 2016 3:27 pm<http://electionlawblog.org/?p=81458> by Rick Hasen<http://electionlawblog.org/?author=3>

NBC News:<http://www.nbcnews.com/politics/2016-election/trump-cruz-work-block-kasich-ballot-open-convention-n549996>

While Trump and Cruz are locked in a bitter battle, aides to both men tell msnbc it is in their mutual interest to keep Kasich off the ballot. The convention rules control who is on that ballot — and thus eligible to win the nomination.

“I expect the Rules Committee to require a level of support that would leave only two candidates on the ballot at the convention,” a senior Cruz Campaign aide told msnbc.

That committee, which writes the rules governing an open convention, is made up of 112 Republican delegates from around the country. Operatives for Cruz and Trump say they will have major sway over what the committee does.

“The Cruz people and Trump people are fighting hard to make sure their hard-core delegates get on the committee,” said Barry Bennett, a Trump adviser.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>
“Republicans on FEC suggest they may scrutinize mystery corporate donors”<http://electionlawblog.org/?p=81456>
Posted on April 3, 2016 2:37 pm<http://electionlawblog.org/?p=81456> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold for WaPo<https://www.washingtonpost.com/politics/republicans-on-fec-suggest-they-may-scrutinize-mystery-corporate-donors/2016/04/03/f8abc394-f9b8-11e5-80e4-c381214de1a3_story.html>:

The three Republican appointees on the divided Federal Election Commission have indicated that political donors who give through private companies solely to shield their identities can be sanctioned, signaling that the agency may scrutinize a rash of “pop-up” corporations giving large sums to super PACs.

Their stance suggests the potential for movement by the polarized six-person panel, where a sense of stasis has been the norm. Democratic commissioners, however, reacted with skepticism, saying their GOP colleagues have until now delayed and actively blocked examination of such cases.

But Lee Goodman, one of the Republican commissioners, said in an interview that contributors seeking to mask themselves through a privately held company or limited-liability corporation should think twice.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
“Bromance between Kris Kobach and Brian Newby leads to attack on voting rights”<http://electionlawblog.org/?p=81454>
Posted on April 2, 2016 8:05 pm<http://electionlawblog.org/?p=81454> by Rick Hasen<http://electionlawblog.org/?author=3>

KC Star editorial:<http://www.kansascity.com/opinion/editorials/article69509812.html>

Take a look at the email Newby sent in June to Kobach: “I think I would enter the job empowered to lead the way I want to.”

And there was this communication from Newby to the Kansas secretary of state: “I wanted you in the loop, in part because of other issues in the past with the (Election Assistance Commission). I also don’t want you thinking that you can’t count on me in an upcoming period that will tax our resources.”

Then, bingo, early this year came the restrictive decision by Newby.

In retrospect, the close ties between the two men make it appear that Newby went to Washington and decided to impose some ugly Kobach-style restrictions that could affect the voting rights of thousands of Americans.

Yes, including some of those back in Kansas, the home state of both men.

All of this is frustrating for the people who have worked so hard across this country to battle the wrongheaded notion that voting rules must be tightened because voter fraud is “rampant.”

That’s Kobach’s siren song to the ultra-conservative crowd in Kansas that has elected him to office. It’s how he got his powers to prosecute voter fraud, powers he’s used so far to almost comically limited effect.

That’s because there is no widespread voter fraud. It’s a dangerous byproduct of Kobach’s ideological imagination.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Jury: Wittich violated campaign finance laws”<http://electionlawblog.org/?p=81452>
Posted on April 2, 2016 5:26 pm<http://electionlawblog.org/?p=81452> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.greatfallstribune.com/story/news/local/2016/04/01/jury-deliberates-montana-lawmakers-dark-money-case/82536544/>:

A jury found Friday that a Montana lawmaker coordinated with and received services from conservative corporate groups in violation of state campaign laws, a ruling that could lead to his removal from office and bolster the state’s defense of its low campaign contribution limits.

Rep. Art Wittich, R-Bozeman, took $19,599 worth in-kind contributions that he didn’t disclose from organizations affiliated with the National Right to Work Committee during his 2010 campaign, the jury found. The contributions included campaign consulting, direct mail, voter data, opposition research, website design and attack ads against his opponent.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
WaPo Fact Checker Gives Sanders 3 Pinocchios on Clinton Fossil Fuel Claim<http://electionlawblog.org/?p=81450>
Posted on April 2, 2016 6:13 am<http://electionlawblog.org/?p=81450> by Rick Hasen<http://electionlawblog.org/?author=3>

Kessler<https://www.washingtonpost.com/news/fact-checker/wp/2016/04/02/fact-checking-the-clinton-sanders-spat-over-big-oil-contributions/>:

The Sanders campaign is exaggerating the contributions that Clinton has received from the oil and gas industry. In the context of her overall campaign, the contributions are hardly significant. It’s especially misleading to count all of the funds raised by lobbyists with multiple clients as money “given” by the fossil-fuel industry.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

--

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>

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http://electionlawblog.org
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