[EL] NC emergency SCOTUS filing; more news

Mon Aug 15 15:18:47 PDT 2016

Breaking: North Carolina Files Emergency #SCOTUS Stay Request in Voting Case<http://electionlawblog.org/?p=85336>
Posted on August 15, 2016 2:50 pm<http://electionlawblog.org/?p=85336> by Rick Hasen<http://electionlawblog.org/?author=3>

A full 17 days after the 4th Circuit held<http://electionlawblog.org/wp-content/uploads/nc-4th.pdf> that challenged provisions of North Carolina’s voting law had to be blocked because they were passed with a racially discriminatory purpose, the state of North Carolina has filed this petition<https://www.scribd.com/document/321278464/Final-NC-Emergency-Application> asking Chief Justice Roberts to put three provisions of the blocked law back into effect for the November elections. (The three provisions the state wants restored are:”(1) the court’s refusal to allow North Carolina to continue to enforce a voter-ID law that went into effect for and was applied at the polls during the 2016 primary election; (2) its mandate that every county provide 17 days of ‘early voting’ instead of the 10 that they have been providing for the past three years; and (3) its mandate that the State resume so-called ‘preregistration’ of 16-year-olds.”

This means that same day voter registration and out-of-precinct voting are BACK for this election because this is not the subject of a stay. This alone is a big win for plaintiffs.

And the state has brought in the big guns—Paul Clement has joined the team, no doubt costing the state of North Carolina a pretty penny.

The main pitch made for why the three provisions the state singled out should be stayed (at least based on the Introduction to the brief is based on timing, under the Purcell principle<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>:

Maintaining the status quo as to those three provisions and permitting this year’s general election to proceed under the same rules as this year’s primary election will avoid “voter confusion and consequent incentive to remain away from the polls,” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), and there is no reason to believe that it will have any detrimental effect on voters, minority or otherwise….In sum, North Carolina should not be forced to scramble mere months before the general election to rejigger settled election plans at the Fourth Circuit’s command—particularly when the Fourth Circuit did not disturb the District Court’s finding that the laws it enjoined do not actually have a disparate impact on minority voters, voter-ID laws have been approved by this Court, and North Carolina’s early voting and preregistration rules are no more (and in some cases actually less) stringent than those of other States. There is certainly a fair prospect that this Court will ultimately reverse the Fourth Circuit’s unprecedented and unsustainable intentional discrimination holding; in the meantime, neither the State nor its residents should be forced to suffer the additional indignity of being prohibited from carrying out the general election under laws that have so far proven to expand minority access to the franchise.

It makes total sense for the state of North Carolina to make this all about the timing issue at the Supreme Court—because a fifth vote for a stay is likely to have to come from Justice Breyer or Kagan, Justices in the past who seem to have bought into the idea that changes just before the election should not be made by the courts, when they can confuse voters and upset the plans of election administrators.

But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the assurances<http://electionlawblog.org/?p=84989> the state gave the fourth circuit that a decision by the end of July would be enough time to implement its decision. And they waited SEVENTEEN DAYS to file this thing. Second, there is a finding of intentional discrimination here, and as I argue in my piece Reining in the Purcell Principle<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>, such a finding should weigh heavily on a court in considering whether a last minute change is warranted. That is, even if a change comes at the last minute from a court, it can well be justified if the state has engaged in deliberately bad conduct. In these circumstances, as I’ve written<http://electionlawblog.org/?p=85043>, I don’t expect Justice Breyer to be a fifth vote for a “courtesy stay.”

So here’s my prediction: stay denied by the Supreme Court, either without comment, or with a dissent from Justices Alito and Thomas.

[This post has been updated.]
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

9th Circuit Rejects Democratic Party Challenge to Hawaii Open Primary Law<http://electionlawblog.org/?p=85333>
Posted on August 15, 2016 11:48 am<http://electionlawblog.org/?p=85333> by Rick Hasen<http://electionlawblog.org/?author=3>

The unanimous opinion is here<https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/15/13-17545.pdf>.

I had always read Supreme Court cases like Tashjian and CA Democratic Party v. Jones as standing for the principle that if the party objects to the open or closed nature of a primary, it is unconstitutional for the state to use that form of the primary for that party.

But today’s opinion says it is up to the party to provide actual evidence that the law severely burdens the party, namely with “evidence showing a ‘clear and present danger’ that adherents of opposing parties determine the Democratic Party’s nominees.”

This may not stand. First, I’m not sure the Supreme Court would agree such evidence is necessary. Second, the standard seems wrong. Suppose the evidence shows that open primaries lead to more moderate candidates (that’s a contested point, I know) and the party does not want to nominate more moderate candidates.  Isn’t that a big burden too?

So keep an eye on this case.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

Jossey on Bauer on Jossey on Hasen and on Lessig on Gilens and Page<http://electionlawblog.org/?p=85331>
Posted on August 15, 2016 10:33 am<http://electionlawblog.org/?p=85331> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<http://www.campaignfreedom.org/2016/08/15/on-bob-bauer-and-evidence/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“In Several States, Trump’s Poll Monitors May Be ‘Second Amendment People’”<http://electionlawblog.org/?p=85329>
Posted on August 15, 2016 10:25 am<http://electionlawblog.org/?p=85329> by Rick Hasen<http://electionlawblog.org/?author=3>

Think Progress<https://thinkprogress.org/trump-violence-polls-c11e70242553#.gai2i43nx>:

Many people vote in places like schools or government buildings, locations where most states ban concealed carry. But many elections are also held in private locations like churches or stores, where gun possession is up to the owner’s discretion. Only 12 states bar people from carrying guns in all places of worship.

Though the law varies by state, gun owners have been known to carry their weapons to the polls in past elections. In Georgia, where the law explicitly prevents guns from being carried within 150 feet of any election location, some counties decided in 2014 to allow them anyway<http://www.macon.com/news/politics-government/election/article30135084.html>.

Alabama was another state that allowed voters<http://www.huffingtonpost.com/2014/06/03/alabama-primary-guns_n_5441065.html> in some counties to carry firearms to the polls in 2014. As the New York Times reported<http://www.nytimes.com/2014/07/13/us/alabama-ruling-hobbles-ban-on-guns-in-the-open-at-polls.html> before that election, the Alabama Sheriffs Association, “fearing that an open display of weapons might frighten some voters, urged the state’s 67 counties to ban unconcealed firearms from polling places.” The effort failed, and the attorney general reiterated that polling places are not included in the list of banned firearm locations in Alabama.

Several counties still insisted on a ban, including Shelby County, whose sheriff said that he would ban open-carry at polling places in his county unless he was otherwise directed.

Fears may be compounded this year given Trump’s presence on the ballot. Throughout his campaign, Trump has made comments that could incite radicals tocommit violent acts<https://thinkprogress.org/how-trump-has-inspired-violence-across-the-country-in-one-map-6ab5e096a627#.iheuuenax>. While Trump may not be specifically instructing people to act violently, extremists and right-wing terrorists could be encouraged by his rhetoric that appears to normalize that type of activity<http://www.vox.com/2016/8/9/12417100/donald-trump-assassinate-hillary-clinton-joke>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“Should it be legal to have a congressional district only one party can win?”<http://electionlawblog.org/?p=85327>
Posted on August 15, 2016 9:48 am<http://electionlawblog.org/?p=85327> by Rick Hasen<http://electionlawblog.org/?author=3>

David Savage of the LAT <http://www.latimes.com/nation/la-na-gerrymander-court-20160815-snap-story.html> reports on partisan gerrymandering cases working their way to #SCOTUS.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Ten years ago, Trump’s campaign manager warned of a rigged election — in Ukraine”<http://electionlawblog.org/?p=85325>
Posted on August 15, 2016 9:44 am<http://electionlawblog.org/?p=85325> by Rick Hasen<http://electionlawblog.org/?author=3>

No surprise.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Donald Trump Is Encouraging Intimidation and Racial Profiling at the Polls”<http://electionlawblog.org/?p=85323>
Posted on August 15, 2016 8:56 am<http://electionlawblog.org/?p=85323> by Rick Hasen<http://electionlawblog.org/?author=3>

Important Ari Berman <https://www.thenation.com/article/donald-trump-is-encouraging-intimidation-and-racial-profiling-at-the-polls/> in The Nation.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Wi Files Brief Opposing Supreme Court Review in John Doe Case<http://electionlawblog.org/?p=85321>
Posted on August 15, 2016 8:53 am<http://electionlawblog.org/?p=85321> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the brief in opposition to cert. (which apparently contains no redacted material) at this link.<https://www.doj.state.wi.us/sites/default/files/news-media/John%20Doe%20Brief%20in%20Opposition.pdf> There will likely be a reply filed soon, and then this will get considered by the Supreme Court in the next few months for possible full consideration.

Here is what I wrote<http://electionlawblog.org/?p=82420> on the chances for the Court to take the case:

I have posted a copy of the redacted petition for cert<https://www.scribd.com/doc/310939038/John-Doe-Cert-Redacted>. in the John Doe Wisconsin case. Never before have I seen a cert. petition with even parts of the questions presented redacted.  The redactions make it difficult to fully assess the claims, as is the fact that this was not written by Supreme Court specialists—because the Wisconsin Supreme Court, in more than a bit of chutzpah, denied the ability of Reed Smith to work pro bono on this cert petition. (The petition contains a dig at this point: “The state supreme court denied the request, refusing to recognize the right of the district attorneys to be represented by counsel. The court wrote that no need had been shown by the petitioners, whose appellate experience is limited to traffic and misdemeanor matters in the state court of appeals.”)

There are two meaty issues. First, it seems pretty clear to me that the Wisconsin Supreme Court mangled U.S. constitutional campaign finance law to let elected officials like Gov. Scott Walker coordinate with outside groups on an unlimited basis with groups taking unlimited campaign contributions from whatever source so long as the outside groups avoid express words of advocacy like vote for or vote against. The second issue is whether those Justices on the WI Supreme Court who benefitted from the outside spending by the very groups before the court should have recused themselves from hearing the case. The number of redactions involving the actions of controversial state Supreme Court Justice David Prosser are remarkable in and of themselves.

Either of these arguments are substantial enough, and the case important enough nationally, to merit Supreme Court review, although while Justice Scalia was still on the Court I would be very wary of bringing any campaign finance case to the Supreme Court lest the Supreme Court actually move in the direction of even further deregulation, taking a bad ruling and making it national.  Now, with Scalia gone and a potential 4-4 split on these issues, the calculation is uncertain. There could well be a cert denial on the campaign finance question even if, as I said, the WI Supreme Court surely mangled constitutional law.

There is a better shot on the recusal issue. It could well interest Justice Kennedy, who along with the four liberals formed a majority in Caperton, seeing due process limits on judges deciding cases where they benefitted from very large campaign spending on their behalf. Even Chief Justice Roberts, who dissented in Caperton but who has been concerned about the role of judges in fundraising (see his Williams-Yulee decision) could be interested in this case.

But who knows what this 4-4 Court will do with a hot potato such as this case?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, Supreme 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
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949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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