[EL] ELB News and Commentary 8/2/16

[Rick Hasen]

“Turning the Tide on Voting Rights”<http://electionlawblog.org/?p=84837>
Posted on August 2, 2016 5:02 am<http://electionlawblog.org/?p=84837> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped<http://www.nytimes.com/2016/08/02/opinion/campaign-stops/turning-the-tide-on-voting-rights.html?ref=opinion&_r=0> for the NY Times. It begins:

Has the tide against restrictive voting laws turned?

In the last few weeks, voting rights groups, in some instances working with the Department of Justice, have posted a series of victories that seemed unlikely when their cases against these laws were first brought. The rights of hundreds of thousands of voters are at stake.
 Another snippet:

These battles are not over, and further appeals could still lead to reversals. But there are two reasons to be optimistic that we are nearing the end of an era of increasingly restrictive voting rules imposed just about exclusively by Republican legislators and election officials over the objections of Democrats and voting rights groups.
First, the changing composition of the Supreme Court and the lower courts makes sustaining such rules less likely. If the conservative Supreme Court justice Antonin Scalia were still alive, Texas would have raced to the Supreme Court with an emergency petition, but there are no longer five justices willing to uphold restrictive voting laws. The lower courts are also changing. A few years ago, if North Carolina had appealed the decision to the full Fourth Circuit, the state probably would have won. But retirements and new judges have turned the Fourth Circuit into a much more liberal court<http://www.jdsupra.com/post/fileServer.aspx?fName=adbe1ea2-2cba-49ea-a673-49df1fd3158e.pdf>.

Second, Republican legislatures overplayed their hand. After the Supreme Court gave the green light in 2008 to Indiana’s strict voter identification law in Crawford v. Marion County Election Board<https://www.law.cornell.edu/supct/html/07-21.ZS.html> and effectively gutted preclearance in Shelby County v. Holder in 2013, Republican legislatures, offering ever flimsier justifications, made laws even stricter.
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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Federal judge blocks N. Dakota’s voter-ID law, calling it unfair to Native Americans”<http://electionlawblog.org/?p=84835>
Posted on August 1, 2016 9:41 pm<http://electionlawblog.org/?p=84835> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Barnes<https://www.washingtonpost.com/politics/courts_law/federal-judge-blocks-n-dakotas-voter-id-law-calling-it-unfair-to-native-americans/2016/08/01/47a903e0-582c-11e6-9767-f6c947fd0cb8_story.html> for WaPo.
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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Josh Marshall on Trump’s Rumblings of a Rigged Election<http://electionlawblog.org/?p=84833>
Posted on August 1, 2016 9:41 pm<http://electionlawblog.org/?p=84833> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read:<http://talkingpointsmemo.com/edblog/feel-the-state-tremble>

Whether Trump is starting to lay the groundwork for contesting the election on claims of widespread voter impersonation fraud or some kind of broader effort for election officials to falsify results, we’re entering a dangerous new phase of the 2016 election campaign.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>
“Will the Court Revisit Shelby County?”<http://electionlawblog.org/?p=84831>
Posted on August 1, 2016 9:34 pm<http://electionlawblog.org/?p=84831> by Rick Hasen<http://electionlawblog.org/?author=3>

Zack Roth<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/08/why_the_supreme_court_won_t_likely_revisit_shelby_county.html> for Slate:

Some liberals are even starting to hope that a future Supreme Court—with a ninth member appointed by President Hillary Clinton—could overturn Shelby. It’s not impossible, but the idea isn’t on voting rights advocates’ immediate radar.Shelbyinvalidated the plank of the Voting Rights Act, known as Section 5, that had required areas with a history of racial discrimination in voting to get their election changes pre-approved by the federal government. With Section 5 no longer in effect, most experts think it would be difficult to fashion a case challenging Shelby, and that even if you could, restoring Section 5 by judicial fiat might be too aggressive for some of the court’s liberals.

More likely, for now, is that the court takes a different approach. Since Shelby, another plank of the Voting Rights Act, Section 2, has become even more crucial<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/07/the_5th_circuit_left_an_opening_for_texas_to_lose_control_of_its_discriminatory.html>. Conservatives have long sought to limit Section 2’s scope, by arguing that it applies only to explicit and intentional racial discrimination, not actions that have a discriminatory effect. That’s a claim Texas made in defending its voter ID law. (So too did John Roberts, as a young lawyer in the Reagan Justice Department back in 1981, in a memo to his boss. And it’s one that, as the appeals court in that case noted, would make Section 2 all but useless, since few people writing laws these days announce their intention to racially discriminate. A Supreme Court opinion resoundingly affirming the idea that Section 2’s ban on racial bias in voting should be read broadly would strengthen the Voting Rights Act and make it much easier for lower courts to continue blocking laws that obstruct the right to vote. And unlike restoring Section 5, it would have an impact nationwide.
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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Ex-GOP official goes bonkers after court cites his ‘Daily Show’ remarks to kill NC voter ID law”<http://electionlawblog.org/?p=84829>
Posted on August 1, 2016 8:27 pm<http://electionlawblog.org/?p=84829> by Rick Hasen<http://electionlawblog.org/?author=3>

Raw Story<http://www.rawstory.com/2016/08/ex-gop-official-goes-bonkers-after-court-cites-his-daily-show-remarks-to-kill-nc-voter-id-law/>.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>
“5 Major GOP Voting Restrictions Have Been Blocked in 10 Days”<http://electionlawblog.org/?p=84827>
Posted on August 1, 2016 4:28 pm<http://electionlawblog.org/?p=84827> by Rick Hasen<http://electionlawblog.org/?author=3>

Ari Berman writes<https://www.thenation.com/article/5-major-gop-voting-restrictions-were-blocked-in-10-days/> for The Nation.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
Roger Stone is a Disgrace<http://electionlawblog.org/?p=84825>
Posted on August 1, 2016 4:20 pm<http://electionlawblog.org/?p=84825> by Rick Hasen<http://electionlawblog.org/?author=3>

Quote in Breitbart,<http://www.breitbart.com/milo/2016/07/29/roger-stone-milo-show-trump-can-fight-voter-fraud/> stoking irresponsible and dangerous voter fraud fears:

“I think we have widespread voter fraud, but the first thing that Trump needs to do is begin talking about it constantly,” Stone said. “He needs to say for example, today would be a perfect example: ‘I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.’”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>
WI Files Emergency 7th Circuit Stay Motion in WI Voter ID Case (Frank v. Walker)<http://electionlawblog.org/?p=84823>
Posted on August 1, 2016 4:07 pm<http://electionlawblog.org/?p=84823> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<https://www.doj.state.wi.us/news-releases/ag-schimel-files-emergency-motion-seeking-stay-voter-id-case>. Motion<https://www.doj.state.wi.us/sites/default/files/news-media/Frank%20Expedited%20Motion%20to%20Stay%20Injunction.pdf>.
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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“In voter ID case, GOP leader says ‘Daily Show’ source a ‘pain in the …’”<http://electionlawblog.org/?p=84821>
Posted on August 1, 2016 3:55 pm<http://electionlawblog.org/?p=84821> by Rick Hasen<http://electionlawblog.org/?author=3>

News & Observer<http://www.newsobserver.com/news/politics-government/article93077422.html>:

A formal federal court ruling’s unusual reference to “The Daily Show with Jon Stewart” has left North Carolina Republicans again distancing themselves from a former party official who made racially charged remarks back in 2013 about the state’s voter ID law.

The 4th Circuit Court of Appeals decision, published Friday, quotes former Buncombe County, North Carolina, precinct chairman Don Yelton as saying on the Daily Show three years ago: If the N.C. voter ID law “hurts the whites, so be it. If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.”

Yelton’s interview on the satirical Comedy Central show helped federal judges make the case that North Carolina’s voter ID law is<http://www.newsobserver.com/news/politics-government/state-politics/article92593512.html> discriminatory.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Bloomberg Law: Voter I.D. Laws Go to Court Across U.S. (Audio)”<http://electionlawblog.org/?p=84819>
Posted on August 1, 2016 3:52 pm<http://electionlawblog.org/?p=84819> by Rick Hasen<http://electionlawblog.org/?author=3>

Rick Pildes and I were guests. Listen.<http://www.bloomberg.com/news/audio/2016-08-01/bloomberg-law-voter-i-d-laws-go-to-court-across-u-s-audio>
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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Goldfeder Presidential Daily Quiz<http://electionlawblog.org/?p=84817>
Posted on August 1, 2016 2:52 pm<http://electionlawblog.org/?p=84817> by Rick Hasen<http://electionlawblog.org/?author=3>

Get your fix.<http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Trump Ups Ante, Suggests Election Could Be Rigged<http://electionlawblog.org/?p=84814>
Posted on August 1, 2016 2:04 pm<http://electionlawblog.org/?p=84814> by Rick Hasen<http://electionlawblog.org/?author=3>

Sopan Deb <https://twitter.com/SopanDeb/status/760210864301416448> has the quote in context:

[rumpquote]<http://electionlawblog.org/wp-content/uploads/trumpquote.jpg>

It reminds me of my April Fool’s post,<https://t.co/wZt5bbtg9m> “Trump: I Will Take Office if I Win the Popular Vote, Even If I Lose Electoral College”

Except now it is not funny (anymore).
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
Breaking: Federal Court Stops North Dakota Strict Voter ID Law, Requires “Fail Safe” Voting Workaround<http://electionlawblog.org/?p=84811>
Posted on August 1, 2016 1:00 pm<http://electionlawblog.org/?p=84811> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest <http://electionlawblog.org/wp-content/uploads/north-dakota-position.pdf> in the trend.

The court found the new law is very burdensome on Native Americans in North Dakota, many of whom lack the right documentation to meet the requirements.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
Deleted Tweet of the Day<http://electionlawblog.org/?p=84809>
Posted on August 1, 2016 12:57 pm<http://electionlawblog.org/?p=84809> by Rick Hasen<http://electionlawblog.org/?author=3>

Polititwoops<http://politwoops.sunlightfoundation.com/tweet/758861460890017797>:
[oryBooker]<http://politwoops.sunlightfoundation.com/user/CoryBooker>
Cory Booker (D)<http://politwoops.sunlightfoundation.com/user/CoryBooker> @CoryBooker<http://politwoops.sunlightfoundation.com/user/CoryBooker>

RT @kenvogel<http://twitter.com/kenvogel>: “If necessary, we will pass a constitutional amendment to overturn Citizens United.” *After my super PAC spends $200M+ to help elect me.
Cory Booker<http://twitter.com/CoryBooker>Deleted after 1 minute about 18 hours<http://politwoops.sunlightfoundation.com/tweet/758861460890017797> ago, via Twitter for iPhone<http://twitter.com/download/iphone>. Original tweet by @kenvogel<http://www.twitter.com/kenvogel/status/758860489673715718>.
reply<http://twitter.com/share?text=%40CoryBooker+&url=http://politwoops.sunlightfoundation.com/tweet/758861460890017797&via=SunFoundation>retweet<http://twitter.com/share?text=DT+%40CoryBooker+RT+%40kenvogel%3A+%22If+necessary%2C+we+will+pass+a+constitutional+amendment+to+overturn+Citizens+United.%22%0A%2AAfter+my+super+PAC+spends+%24200M%2B+to+hel%E2%80%A6&url=http://politwoops.sunlightfoundation.com/tweet/758861460890017797>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Update on CREW v. FEC”<http://electionlawblog.org/?p=84807>
Posted on August 1, 2016 12:36 pm<http://electionlawblog.org/?p=84807> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://www.citizensforethics.org/press-release/update-crew-v-fec/>:

After obtaining more than 1,600 pages of internal documents from the Federal Election Commission (FEC)’s investigation of the dark money group Commission on Hope, Growth and Opportunity (CHGO) which make it clear that CHGO was created for the explicit purpose of influencing elections while evading disclosure, Citizens for Responsibility and Ethics in Washington (CREW) filed a motion in federal court for judgment declaring that the FEC’s failure to act against CHGO violated the Federal Election Campaign Act.

Late last year, CREW sued the FEC for not acting despite the fact that the FEC’s own Office of the General Counsel recommended three times that the agency take action against CHGO for violating the law. The new documents reveal false testimony to the FEC, obstruction of an FEC subpoena, missing and likely destroyed documents and a previously unreleased fundraising letter bragging about CHGO’s purpose being electoral spending without disclosure…

CREW today released the 1,600 pages of internal FEC documents, which you can read HERE<https://www.scribd.com/document/319863810/Fec-CHGO-FOIA-Release>

Click HERE<http://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2016/08/01131820/2016-07-28-19-CREW-MSJ-2.pdf> to read the motion, HERE<http://link.email.dynect.net/link.php?DynEngagement=true&H=O4Q4i%2B%2BNvUOnGBVX4XCh7iCzY5P80%2BVDjUeMmhBzww%2FHb%2B8FjDd5yTI6oIDJAf1hvUiXDe5BAfTxPrh%2B3z4DS0bLOp1aU8jVEdmpuha593Bh0RsetfgTvg%3D%3D&G=0&R=http%3A%2F%2Fwww.citizensforethics.org%2Fpress-release%2Fcrew-files-criminal-complaint-against-rubio-finance-chair-dc-power-players%2F&I=20160801133129.00000089b278%40mail6-22-ewr&X=MHwxMDQ2NzU4OjU3OWYzOGU0N2Q2OTI2ZmJlMjFlZTFiZDs%3D&S=1h-R5_Zu3d6PBNBbov84Cx6thqzp5asCJZ8ArjFGbBY> for the lawsuit and HERE<http://link.email.dynect.net/link.php?DynEngagement=true&H=O4Q4i%2B%2BNvUOnGBVX4XCh7iCzY5P80%2BVDjUeMmhBzww%2FHb%2B8FjDd5yTI6oIDJAf1hvUiXDe5BAfTxPrh%2B3z4DS0bLOp1aU8jVEdmpuha593Bh0RsetfgTvg%3D%3D&G=0&R=http%3A%2F%2Fwww.citizensforethics.org%2Flegal-filling%2Firs-fec-complaints-commission-hope-growth-opportunity-chgo-2012%2F&I=20160801133129.00000089b278%40mail6-22-ewr&X=MHwxMDQ2NzU4OjU3OWYzOGU0N2Q2OTI2ZmJlMjFlZTFiZDs%3D&S=CiBGz8PgqXWnO8Wf70ub_pSqDh6q5aSzCtRvF7ZNGIE> for the original complaint
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
WI to Appeal Latest WI Voting Ruling to the 7th Circuit<http://electionlawblog.org/?p=84805>
Posted on August 1, 2016 12:32 pm<http://electionlawblog.org/?p=84805> by Rick Hasen<http://electionlawblog.org/?author=3>

I missed this detail in the excellent reporting of the Milwaukee Journal-Sentinel.<http://archive.jsonline.com/news/statepolitics/judge-strikes-down-voter-id-early-voting-laws-b99767669z1-388708211.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Despite Gains in Participation Among Certain Groups, New Research Shows that the American Electorate Still Does Not Represent the American People”<http://electionlawblog.org/?p=84803>
Posted on August 1, 2016 11:52 am<http://electionlawblog.org/?p=84803> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://www.projectvote.org/press-releases/new-research-shows-american-electorate-still-not-represent-american-people/>:

With just over three months until the 2016 election, a major new report from voting rights group Project Vote identifies where participatory gaps still exist in the American electorate.

In Representational Bias in the 2014 Electorate<http://www.projectvote.org/representational-bias-2014-electorate/>, Project Vote Research Director LaShonda Brenson, Ph.D. analyzes registration and voting rates over every midterm and presidential election since 2004. The report examines participation for different demographic groups—according to race and ethnicity, age, gender, income, education, and other factors—to determine the ways in which the American electorate is becoming more or less representative of the citizen population.
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Posted in voting<http://electionlawblog.org/?cat=31>
“North Carolina voter ID law is struck down as racially discriminatory”<http://electionlawblog.org/?p=84801>
Posted on August 1, 2016 11:08 am<http://electionlawblog.org/?p=84801> by Rick Hasen<http://electionlawblog.org/?author=3>

Steve Mazzie<http://www.economist.com/blogs/democracyinamerica/2016/08/its-duck> for The Economist.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Civil Rules Interpretive Theory”<http://electionlawblog.org/?p=84799>
Posted on August 1, 2016 10:13 am<http://electionlawblog.org/?p=84799> by Rick Hasen<http://electionlawblog.org/?author=3>

Lumen Mulligan and Glen Staszewski have posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2814194> on SSRN. Here is the abstract:

We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>
“The Right to Vote Under Local Law”<http://electionlawblog.org/?p=84797>
Posted on August 1, 2016 8:15 am<http://electionlawblog.org/?p=84797> by Rick Hasen<http://electionlawblog.org/?author=3>

Josh Douglas has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2816972> on an important but understudied aspect of election law.  Here is the abstract:

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article—the first to explore in-depth the local right to vote—completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the right to vote, on a smaller scale. Historically, some voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them—which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion. Robust protection of the right to vote depends on local voting rules as an early component of the reform effort. Enhanced local voting rights will produce a more representative local government, create a habit of voting for various groups such as younger voters that will ameliorate low turnout, and strengthen local democracy.
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Posted in election administration<http://electionlawblog.org/?cat=18>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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