[EL] ELB News and Commentary 4/20/16
Rick Hasen
rhasen at law.uci.edu
Wed Apr 20 09:01:17 PDT 2016
“Campaign Finance’s Creeping Deregulation”
<http://electionlawblog.org/?p=82057>
Posted onApril 20, 2016 8:58 am
<http://electionlawblog.org/?p=82057>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis guest post
<http://www.regblog.org/2016/04/20/hasen-campaign-finances-creeping-deregulation/>as
part of a celebration of the 5th anniversary of RegBlog. It begins:
Over the last five years, the rules regulating money in federal
elections have become increasingly loosened, not as the result of a
single decision made by courts or campaign finance regulators, but
due to a combination of court rulings, bureaucratic shortcomings,
political gridlock, and aggressive election lawyers. The result is
that it is becoming child’s play to spend unlimited and undisclosed
sums to influence our federal elections. No one should have
illusions things will get better quickly, even if JudgeMerrick
Garland
<https://www.cadc.uscourts.gov/internet/home.nsf/content/VL+-+Judges+-+MBG>is
confirmed to replace JusticeAntonin Scalia
<http://biography.yourdictionary.com/antonin-scalia>on the United
States Supreme Court.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Why Hillary Clinton’s lavish Hollywood fundraiser was smart
politics” <http://electionlawblog.org/?p=82055>
Posted onApril 20, 2016 8:54 am
<http://electionlawblog.org/?p=82055>byRick Hasen
<http://electionlawblog.org/?author=3>
Jack Collens
<https://www.washingtonpost.com/news/monkey-cage/wp/2016/04/20/why-hillary-clintons-lavish-hollywood-fundraiser-was-smart-politics/>at
The Monkey Cage.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Broadcast Networks Ignored Democracy Awakening, Democracy Spring
Protests” <http://electionlawblog.org/?p=82053>
Posted onApril 20, 2016 8:50 am
<http://electionlawblog.org/?p=82053>byRick Hasen
<http://electionlawblog.org/?author=3>
What if you
scheduled<http://mediamatters.org/research/2016/04/20/broadcast-networks-ignored-democracy-awakening-democracy-spring-protests/209989>a
major set of events about the most troubling aspects of our democracy
and few outside those already active on the issue even knew?
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Posted insocial media and social protests
<http://electionlawblog.org/?cat=58>
Lyle Denniston Preview of Gov McDonnell #SCOTUS Argument April 27
<http://electionlawblog.org/?p=82051>
Posted onApril 20, 2016 8:47 am
<http://electionlawblog.org/?p=82051>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.scotusblog.com/2016/04/argument-preview-political-favors-as-crimes/>at
SCOTUSBlog.
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Posted inbribery <http://electionlawblog.org/?cat=54>,Supreme Court
<http://electionlawblog.org/?cat=29>
“DOJ Discounts FEC ‘Routine Deadlocks'”
<http://electionlawblog.org/?p=82049>
Posted onApril 20, 2016 8:43 am
<http://electionlawblog.org/?p=82049>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA:
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=87796802&vname=mpebulallissues&jd=a0j2v0a2a4&split=0>
Federal prosecutors discounted the legal effects of “routine
partisan deadlocks” at the Federal Election Commission in a new
courtfiling
<http://www.bloomberglaw.com/public/document/USA_v_Benton_et_al_Docket_No_415cr00103_SD_Iowa_Jul_29_2015_Court/4>in
the Department of Justice’s long-running criminal case against
former aides to the 2012 Ron Paul presidential campaign (U.S. v.
Benton, S.D. Iowa, No. 15-cr-103,government response4/18/16).
The new filing, signed by Raymond Hulser, chief of DOJ’s Public
Integrity Section, and Richard Pilger, director of the department’s
Election Crimes Branch, sought to counter a recent defense filing in
the case, which argued that the defendants can’t be convicted of
disclosure violations because the FEC has ruled that reports of
campaign disbursements do not have to list the person who ultimately
receives a payment (4237 Money & Politics Report, 4/14/16
<http://news.bna.com/mpdm/display/link_res.adp?fedfid=87796802&fname=a0j2j2j4t0&vname=mpebulallissues>)….
DOJ’s response, filed April 18, said the deadlocked votes in the
cases should have no effect on the pending criminal case in Iowa.
“As the government has argued previously, there is no need to resort
to administrative law to interpret the simple false reporting
statute charged here,” prosecutors said, “and the Court has
previously found that the elements of the charged violation of the
Act can be readily explained to a jury in eight lines of text.”
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“The Battle Over ‘One Person, One Vote,’ Has Just Begun”
<http://electionlawblog.org/?p=82047>
Posted onApril 20, 2016 8:38 am
<http://electionlawblog.org/?p=82047>byRick Hasen
<http://electionlawblog.org/?author=3>
Carl Klarner and Dan Smith write
<http://prospect.org/article/battle-over-one-person-one-vote-has-just-begun>for
TAP about the aftermath of Evenwel.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Voting, Spending, and the Right to Participate”
<http://electionlawblog.org/?p=82045>
Posted onApril 20, 2016 8:34 am
<http://electionlawblog.org/?p=82045>byRick Hasen
<http://electionlawblog.org/?author=3>
Rob Yablon has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2766717>on SSRN
(forthcoming, /Northwestern University Law Review/). Here is the abstract:
While the law governing the electoral process has changed
dramatically in the past decade, one thing has stayed the same:
Courts and commentators continue to view voting in elections and
spending on elections through distinct constitutional lenses. On the
voting side, a makeshift Equal Protection-oriented framework guides
judicial analysis. On the spending side, First Amendment principles
predominate. Recent cases have been applying these doctrines in ways
that are fairly accepting of voting regulation and highly dubious of
campaign-finance regulation. Key voting and spending precedents
seldom cite each other. Similarly, election law scholars typically
address voting and spending in isolation.
This Article challenges the prevailing, bifurcated approach to
voting and spending law. Its central thesis is that the law’s
disparate treatment of voting and spending is unjustified. Voting
and spending are, at bottom, two methods of participating in the
electoral process. Conceiving of them as two aspects of a broader
right to participate —-a right the Supreme Court recently
articulated, but did not develop, in McCutcheon v. FEC — offers a
principled basis to harmonize voting and spending law and reorient
election law discourse.
I saw Rob present this paper at the recent Wisconsin conference.
Important and provocative!
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Republican warns of creeping threat of media regulation at FEC”
<http://electionlawblog.org/?p=82043>
Posted onApril 20, 2016 8:31 am
<http://electionlawblog.org/?p=82043>byRick Hasen
<http://electionlawblog.org/?author=3>
The Hill:
<http://thehill.com/policy/technology/276839-republican-warns-of-creeping-threat-of-media-regulation-at-fec>
Publishers and filmmakers should be wary of Democrats at the Federal
Election Commission trying to squeeze them out of an exemption
created for the press, according to FEC Republican Commissioner Lee
Goodman.
Goodman used a five-page statement, released Monday, to scold
Democrats on the commission for trying to continue an investigation
into a company that created and distributed a conspiracy theory film
ahead of the 2012 election that claimed that President Obama’s real
father was Franklin Marshall Davis, described as “an American
Communist.”
The FEC ultimately voted in February to close the case without
taking any action — an increasingly common occurrence with the 3-3
deadlock at the commission that is divided between the two parties.
Though no action was taken, Goodman said the implication of the
Democrats’ position could have been much broader than a fringe film.
“Imagine the specter of a government investigation and punishment of
a filmmaker for showing a political film in over 500 theaters
nationally,” Goodman wrote.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,federal election commission
<http://electionlawblog.org/?cat=24>
“A Cure for a Political Disaster: Fixing the Presidential Public
Financing System” <http://electionlawblog.org/?p=82041>
Posted onApril 20, 2016 8:28 am
<http://electionlawblog.org/?p=82041>byRick Hasen
<http://electionlawblog.org/?author=3>
Fred Wertheimer oped.
<http://www.huffingtonpost.com/fred-wertheimer/a-cure-for-a-political-di_b_9737572.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Are voter ID laws the next hanging chads?”
<http://electionlawblog.org/?p=82039>
Posted onApril 20, 2016 8:23 am
<http://electionlawblog.org/?p=82039>byRick Hasen
<http://electionlawblog.org/?author=3>
Andrew Gumbel LAT oped
<http://www.latimes.com/opinion/op-ed/la-oe-gumbel-voter-id-20160420-story.html>.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
“Rep. Brown considers options after redistricting setback”
<http://electionlawblog.org/?p=82037>
Posted onApril 20, 2016 8:21 am
<http://electionlawblog.org/?p=82037>byRick Hasen
<http://electionlawblog.org/?author=3>
The Orlando Sentinel reports.
<http://www.orlandosentinel.com/news/politics/political-pulse/os-corrine-brown-appeal-redistricting-story.html>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
Breaking: #SCOTUS Unanimously Rejects AZ Redistricting Challenge:
Analysis <http://electionlawblog.org/?p=82027>
Posted onApril 20, 2016 7:07 am
<http://electionlawblog.org/?p=82027>byRick Hasen
<http://electionlawblog.org/?author=3>
The Supreme Court in ashort, unanimous opinion b
<http://www.supremecourt.gov/opinions/15pdf/14-232_ihdj.pdf>y Justice
Breyer, has rejected challenges to Arizona’s state redistricting done by
commission. The Court held that it is permissible to deviate from
perfect population in drawing state legislative district lines
(generally by up to 10 percent) and that the commission did not engage
in a partisan gerrymander. This is the second time within a year the
Court has addressed something to do with the commission; last year (in
Arizona Legislature v. Arizona Independent Redistricting commission) the
Court held it was permissible for the Commission to draw congressional
district lines in a procedure approved by voter initiative even though
the Constitution gives the state “legislature” the right to pick the
rules for congressional elections.
Today’s opinion in/Harris v. Arizona Independent
Redistricting Commission /is significant in a few ways: First, it mostly
restores the 10 percent safe harbor, which gives those drawing districts
greater flexibility in drawing district lines (and, though the Court
doesn’t say it, more opportunity to play partisan games with under- and
over-population). Only in unusual, egregious cases will this amount of
deviation giving rise to a successful constitutional lawsuit. Second,
the Court almost holds that compliance with the Voting Rights Act’s
section provides a good reason to deviate from perfect equality. Third,
by writing a minimal opinion that decided only what was necessary, the
Court was able to avoid a 4-4 split even though there are some great
disagreements on larger issues among the Justices. (Justice Thomas, for
example, does not even believe the Voting Rights Act should apply to
section 2 vote dilution claims, and Justices Roberts, Alito, and Kennedy
have been very skeptical of strong readings of the Voting Rights Act.)
More flexibility for line drawers can be a double edged sword.
The question of deviation from perfect numerical equality in drawing
district lines had seemed until the 2000s like it was set at a 10
percent safe harbor, with more if there was a good reason. But many read
the summary affirmance in the 2004 Larios decision as not allowing for
deviations even within the 10 percent safe harbor when it is done for
partisan purposes. In today’s/Harris v. Arizona Independent
Redistricting Commission/case, the Court distinguished, but did not
overrule, Larios:
Second, the appellants point to Cox v. Larios, 542 U. S. 947 (2004),
in which we summarily affirmed a district court’s judgment that
Georgia’s reapportionment of representatives to state legislative
districts violated the Equal Protection Clause, even though the
total population deviation was less than 10%. In Cox, however,
unlike the present case, the district court found that those
attacking the plan had shown that it was more probable than not that
the use of illegitimate factors significantly explained deviations
from numerical equality among districts. The district court produced
many examples showing that population deviation as well as the shape
of many districts “did not result from any attempt to create
districts that were compact or contiguous, or to keep counties
whole, or to preserve the cores of prior districts.” Id., at 949. No
legitimate purposes could explain them. It is appellants’ inability
to show that the present plan’s deviations and boundary shapes
result from the predominance of similarly illegitimate factors that
makes Cox inapposite here. Even assuming, without deciding, that
partisanship is an illegitimate redistricting factor, appellants
have not carried their burden.
The Court also came close to holding it is permissible to deviate from
perfect mathematical equality to comply with the Voting Rights Act. It
noted in the past that some Justices have held underpopulation is
allowed in drawing districts to ensure under section 2 of the Act that
minority voters have an equal opportunity to participate in the
political process and to elect representatives of their choice. (It
doesn’t look like the Court directly holds that in this case, as it is
not necessary to the decision.) And it held that Arizona could have
deviated from perfect equality to comply with Section 5 of the Act,
which the Court later gutted in the 2013 Shelby County case. It rejected
the idea that because of the later Shelby case, reliance on Section 5
becomes suspect.
Finally, the Court rejected the idea that this was a partisan
gerrymander, obliquely recognizing therace or party question
<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/>.
Sure it was Democratic districts that were underpopulated, but that was
because minority voters in Arizona tend to vote for Democrats:
The appellants make three additional arguments. First, they support
their claim that the plan reflects unreasonable use of partisan
considerations by pointing to the fact that almost all the
Democratic-leaning districts are somewhat underpopulated and almost
all the Republican-leaning districts are somewhat overpopulated.
That is likely true. See 993 F. Supp. 2d, at 1049 (providing a chart
with percentage deviation figures by district). But that fact may
well reflect the tendency of minority populations in Arizona in 2010
to vote disproportionately for Democrats. If so, the variations are
explained by the Commission’s efforts to maintain at least 10
ability-to-elect districts. The Commission may have relied on data
from its statisticians and Voting Rights Act expert to create
districts tailored to achieve preclearance in which minority voters
were a larger percentage of the district population. That might have
necessitated moving other voters out of those districts, thereby
leaving them slightly underpopulated. The appellants point to
nothing in the record to suggest the contrary.
Finally, the Court imposed a difficult to meet test for showing when
deviation from the 10 percent safe harbor is impermissible:
In sum, in a case like this one, those attacking a state-approved
plan must show that it is more probable than not that a deviation of
less than 10% reflects the predominance of illegitimate
reapportionment factors rather than the “legitimate considerations”
to which we have referred in Reynolds and later cases. Given the
inherent difficulty of measuring and comparing factors that may
legitimately account for small deviations from strict mathematical
equality, we believe that attacks on deviations under 10% will
succeed only rarely, in unusual cases. And we are not surprised that
the appellants have failed to meet their burden here.
[This post has been updated.]
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Inquiry of Mayor de Blasio Fund-Raising Extends to ’14 State Senate
Races” <http://electionlawblog.org/?p=82025>
Posted onApril 19, 2016 9:12 pm
<http://electionlawblog.org/?p=82025>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2016/04/20/nyregion/inquiry-of-mayor-de-blasio-fund-raising-extends-to-14-state-senate-races.html?smprod=nytcore-iphone&smid=nytcore-iphone-share>
The federal investigation of MayorBill de Blasio
<http://topics.nytimes.com/top/reference/timestopics/people/d/bill_de_blasio/index.html?inline=nyt-per>’s
campaign fund-raising apparatus has expanded to focus on efforts to
raise money for Democratic candidates for the State Senate in 2014,
when the party was battling to retake the chamber, according to
people with knowledge of grand jury subpoenas issued in the inquiry.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“After More Than 100,000 Voters Dropped In Brooklyn, City Officials
Call For Action” <http://electionlawblog.org/?p=82023>
Posted onApril 19, 2016 8:30 pm
<http://electionlawblog.org/?p=82023>byRick Hasen
<http://electionlawblog.org/?author=3>
NPR
<http://www.npr.org/2016/04/19/474896027/after-more-than-100-000-voters-dropped-in-brooklyn-city-officials-call-for-actio?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social>:
Following widespread irregularities at polls in Brooklyn Tuesday,
New York City officials are calling for major reforms at the Board
of Elections.
The problem was first identified in aan analysis of state voter
enrollment statistics
<http://www.wnyc.org/story/democratic-voter-rolls-drop-more-60000-brooklyn-presidential-primary/>by
WNYC’s Brigid Bergin. The Board of Elections then confirmed that
more than 120,000 voters have been dropped from the rolls in
Brooklyn alone since November.
“No other borough in New York City nor county in the rest of the
state saw such a significant decline in active registered Democrats.
In fact, only 7 of the state’s 62 counties saw a drop in the number
of Democrats. Everywhere else saw the numbers increase,” WNYC found.
The more than 120,000 dropped includes 12,000 people who moved out
of the borough, 44,000 people who were moved from active to inactive
voter status, and 70,000 voters removed from the inactive voter
list, according to the station.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Court Rejects Corrine Brown’s Bid to Throw Out Florida
Congressional Map” <http://electionlawblog.org/?p=82021>
Posted onApril 19, 2016 11:07 am
<http://electionlawblog.org/?p=82021>byRick Hasen
<http://electionlawblog.org/?author=3>
Florida Politics:
<http://floridapolitics.com/archives/207331-corrine-brown-redistricting>
A panel of federal judges Monday shot down U.S. Rep.*Corrine
Brown*‘s challenge of Florida’s congressional redistricting.
In a*26-page order*
<http://floridapolitics.com/wp-content/uploads/2016/04/Order.pdf>,
the three judges said Brown had “not proven (her) case and that
defendants are entitled to judgment in their favor.”
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
“Major Wisconsin cases could hang in balance at short-handed Supreme
Court” <http://electionlawblog.org/?p=82019>
Posted onApril 19, 2016 8:00 am
<http://electionlawblog.org/?p=82019>byRick Hasen
<http://electionlawblog.org/?author=3>
Patrick Marley
<http://www.jsonline.com/news/statepolitics/major-wisconsin-cases-could-hang-in-balance-at-short-handed-supreme-court-b99704345z1-376017451.html>:
Having the U.S. Supreme Court short one justice for the foreseeable
future could affect Wisconsin cases dealing with voter ID, abortion,
an investigation of Gov. Scott Walker’s campaign and how legislative
districts are drawn.
The high-stakes case that could see the most immediate effect is the
one dealing with how Republican lawmakers drew district maps to
favor their party in 2011.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
--
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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