[EL] 7th Cir. stay denial in second WI case; Ferguson VRA ruling; more news

[Rick Hasen]

Breaking: 7th Circuit Denies Stay of Second WI Voting Decision Involving Early Voting Etc.<http://electionlawblog.org/?p=85673>
Posted on August 22, 2016 1:22 pm<http://electionlawblog.org/?p=85673> by Rick Hasen<http://electionlawblog.org/?author=3>

The 7th Circuit has just denied <http://electionlawblog.org/wp-content/uploads/wi-stay-2.pdf> a request for a stay in the second voting case involving WI rollback of early voting etc.

This ruling is from the same panel that granted the stay<http://electionlawblog.org/?p=85176> in the affidavit voter id case (Easterbrook, Sykes, Kanne.). If Wisconsin could not convince these judges to order a stay in this case, there is no hope of going to the 7th Circuit en banc. The only hope would be an emergency stay request at the Supreme Court. Given the closeness to the election, the state would have to move very soon for the Court to even consider such a stay. Even then, getting over the 4-4 ideological split seems iffy.  If you can’t get Easterbrook, you likely can’t get Kennedy.

The fact that the court denied the stay without issuing an opinion could be a sign that the court recognizes the urgency of the time.  An opinion can come later when there is an appeal on the merits.  It could be a sign that the issues raised by Wisconsin are frivolous.

What this means: Wisconsin needs to go ahead and let counties continue to set voting hours and otherwise implement the judge’s order.

Still pending at the full 7th Circuit en banc <http://electionlawblog.org/?p=85237> is the question of what to do about the affidavit requirement to soften Wisconsin’s strict voter id law, which the trial court in the first Wisconsin case put in place and which the 7th Circuit panel stayed.

It ain’t quite over folks, but we are getting there in Wisconsin.

[This post has been updated.]


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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Audio of My KPCC “Take Two” Interview About Trump Election “Rigging” Claims<http://electionlawblog.org/?p=85671>
Posted on August 22, 2016 1:08 pm<http://electionlawblog.org/?p=85671> by Rick Hasen<http://electionlawblog.org/?author=3>

Listen.<http://www.scpr.org/programs/take-two/2016/08/22/51468/new-trump-plea-draws-fine-line-between-observation/>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Video of Appearance on “All In” Talking Trump “Rigging” Claims with Ari Melber<http://electionlawblog.org/?p=85669>
Posted on August 22, 2016 1:06 pm<http://electionlawblog.org/?p=85669> by Rick Hasen<http://electionlawblog.org/?author=3>

Watch.<http://www.msnbc.com/all-in/watch/trump-calling-for-supporters-to-police-the-polls-747548227823>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Donald Trump Is Warning That the Election Will Be Rigged. So Did John McCain in 2008”<http://electionlawblog.org/?p=85665>
Posted on August 22, 2016 11:11 am<http://electionlawblog.org/?p=85665> by Rick Hasen<http://electionlawblog.org/?author=3>

New York <http://nymag.com/daily/intelligencer/2016/08/theres-nothing-new-about-trumps-predictions.html> magazine.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


Federal District Court Finds Ferguson School District Elections Violate the Voting Rights Act<http://electionlawblog.org/?p=85658>
Posted on August 22, 2016 10:44 am<http://electionlawblog.org/?p=85658> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the 119-page district court opinion here<http://electionlawblog.org/wp-content/uploads/ferguson_decision.pdf>.

This looks to be a very careful, and in some parts very technical look, at whether the Ferguson school board elections violate section 2 of the Voting Rights Act, in that protected minority voters have less opportunity than other voters to participate in the political process and to elect representatives of their choice. Given what the trial court called the “unique” facts of the case, the trial court has not (yet) ordered the drawing of new minority opportunity districts. The judge encourages the parties to settle with an acceptable remedy.

Among the technical questions is whether minority plaintiffs can state a VRA violation even if they make up a slight majority of the population. On this question, the court concluded that the evidence on this point was uncertain, but as a legal matter: “As a result, even if the any-part Black VAP were slightly over 50% of the VAP, there is no evidence that such a distinction makes a functional difference in terms of how the political processes operate to the detriment of African Americans in FFSD. Under the facts of this case, a bare numerical majority of the VAP is insufficient to translate into meaningful electoral opportunity.” To the extent the government appeals, it will likely be on issues such as this.

But on the big picture, in terms of African-American political opportunity in Ferguson, the trial court paints a picture that seems uncomfortably familiar about life in cities with large minority populations and a shrinking white population that continues to exercise political control:

Intentional discrimination is not an element of a § 2 violation. See Gingles, 478 U.S. at 35-37. Plaintiffs have never alleged that Defendants intentionally discriminate against African Americans, and I do not make any findings that Defendants engaged in intentional discrimination. Rather, it is my finding that the cumulative effects of historical discrimination,current political practices, and the socioeconomic conditions present in the Districtf impact the ability of African Americans in FFSD to participate equally in Board elections.

The ongoing effects of racial discrimination that have long plagued the region, and the District in particular, have affected the ability of African Americans to participate equally in the political process. The fact that the electoral process in FFSD Board elections is not equally open to African Americans is most apparent in the stark levels of racially polarized voting seen in  Board elections and the failure of white voters to support candidates from the African American community, which has essentially blocked African American voters from exercising effective political power in the District. Against this backdrop of inequality, a number of other factors hinder African American electoral success, such as an absence of meaningful access to endorsements, and subtle racial campaign appeals. Importantly, each of these factors interact with the voting practices and procedures that are in place for school board elections in FFSD, including the at-large and off-cycle election features, as well as, to some extent, the staggered terms of Board members, to dilute the African American vote. Ultimately, the complex interaction between these processes and conditions has “cause[d] an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”Gingles, 478 U.S. at 47.

 Determining whether a § 2 violation exists is a complex, fact-intensive task that requires inquiry into sensitive and often difficult subjects. The facts of this case, which include African American and white voting-age populations at levels of near numerical parity, and a trend in the District that suggests the African American voting-age population is growing, set it apart from most § 2 cases, making review especially challenging. But as the Supreme Court has emphasized time and again, “the question whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality, and on a functional view of the political process.” Gingles, 478 U.S. at 45 (internal quotation marks omitted) (citing S. Rep. No. 97-417, at 30 & n.120 (1982)). Having undertaken that inquiry, I conclude that Plaintiffs have established a § 2 violation. Because the facts of this case are so unique, however, the remedy that is ultimately warranted likely needs to be equally unique. Although I do not make any findings now as to the proper remedy, I encourage the parties, each of whom have a vested interest in the FFSD community, to work together in the remedy phase to devise a solution that effectively addresses the current inequalities impacting the electoral process and accommodates the special characteristics present in the FFSD population.

[This post has been updated.]
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


“Elections in America”<http://electionlawblog.org/?p=85656>
Posted on August 22, 2016 10:42 am<http://electionlawblog.org/?p=85656> by Rick Hasen<http://electionlawblog.org/?author=3>

New symposium<http://ann.sagepub.com/content/current> in the Annals of the American Academy of Political and Social Science.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Four in Five Americans Support Voter ID Laws, Early Voting” (And 63% Favor Automatic Registration!)<http://electionlawblog.org/?p=85654>
Posted on August 22, 2016 9:10 am<http://electionlawblog.org/?p=85654> by Rick Hasen<http://electionlawblog.org/?author=3>

Gallup:<http://www.gallup.com/poll/194741/four-five-americans-support-voter-laws-early-voting.aspx?g_source=Politics&g_medium=lead&g_campaign=tiles>


Early voting, which gives all voters the chance to cast their ballot

prior to Election Day

Favor: 80%

Oppose: 18%

Requiring all voters to provide photo identification at their voting

place in order to vote

Favor: 80%

Oppose: 19%

Automatic voter registration, whereby citizens are automatically

registered to vote

Favor: 63%

Oppose: 34%

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Broad List of Acceptable Voter IDs in Texas (For At Least the Upcoming Election)<http://electionlawblog.org/?p=85652>
Posted on August 22, 2016 9:07 am<http://electionlawblog.org/?p=85652> by Rick Hasen<http://electionlawblog.org/?author=3>

Detailed powerpoint.<http://www.sos.state.tx.us/elections/forms/id/acceptable-forms-of-ID.pdf>

This is good, but the question is if voters and poll workers can understand all this.


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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Sargent: Trump’s Election Rigging Claims Are About Building Media Empire<http://electionlawblog.org/?p=85650>
Posted on August 22, 2016 8:51 am<http://electionlawblog.org/?p=85650> by Rick Hasen<http://electionlawblog.org/?author=3>

From today’s Plum Line<https://www.washingtonpost.com/blogs/plum-line/wp/2016/08/22/trumps-real-endgame-a-white-nationalist-media-empire/?utm_term=.feecb20bbc42>:

Trump has already been saying the election will be “rigged,” as part of a broader effort to delegitimize the presidency of Hillary Clinton (should she win) in advance<https://www.washingtonpost.com/blogs/plum-line/wp/2016/07/20/the-gops-rousing-chant-on-a-night-about-the-economy-lock-her-up/>. If the goal here is to persuade a lot of Trump supporters that the outcome of the election is illegitimate, that could create a large audience that wants to hear this message during a Clinton presidency, a message that Trump’s new media venture could peddle to them for fun and profit. For good measure, Trump can also tell his new media audience that the rest of the media is in on the conspiracy to cover up the election’s illegitimacy. It’s hard to predict what sort of longer term civic impact that might have, but it’s hard to imagine it would be a good one.

I worry <https://www.washingtonpost.com/news/the-fix/wp/2016/08/13/how-donald-trumps-bizarre-voter-watch-effort-could-get-the-gop-in-trouble/> that things<http://www.nytimes.com/2016/08/22/us/politics/donald-trump-a-rigged-election-and-the-politics-of-race.html?smid=tw-share> more dangerous are afoot<http://electionlawblog.org/?p=85598>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>



--
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>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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