[EL] ELB News and Commentary 8/24/16

Rick Hasen rhasen at law.uci.edu
Wed Aug 24 08:23:58 PDT 2016 

“Even Trump and Clinton need big-money donors: Column”<http://electionlawblog.org/?p=85820>
Posted on August 24, 2016 8:16 am<http://electionlawblog.org/?p=85820> by Rick Hasen<http://electionlawblog.org/?author=3>

Coinciding with the paperback release of Plutocrats United<https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300223544/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=&sr=>, I have written this oped for USA Today<http://www.usatoday.com/story/opinion/2016/08/24/even-trump-and-clinton-need-big-money-donors-column/89229902/>. It concludes:

None of these things — Trump courting super PAC donors, Clinton getting paid by the wealthiest companies as a private citizen, or Clinton as secretary of State giving access to big donors to her foundation — amounts to criminal activity or even what we might term corruption. In the Supreme Court’s Citizens United<https://www.supremecourt.gov/opinions/09pdf/08-205.pdf> case, Justice Anthony Kennedy, writing for the Court, declared that “ingratiation and access are not corruption.”

But there’s still something wrong with a political system in which access goes to the highest bidder. The Clinton team is quick to argue that there’s no evidence the meetings Clinton gave to big donors led to any official actions. But those donors get more than just a picture with a candidate; they get a chance to make their pitch for the policies they want pursued or blocked, a pitch the rest of us don’t get to make because we don’t have hundreds of thousands of dollars or more to contribute to campaigns.

And presidential hopefuls have the least need of any candidates to suck up to rich individual donors, because their campaigns attract so much money from so many different sources.

Consider the race for control of the Senate, where as of last month over $100 million was raised by super PACs and non-disclosing outside groups to try to influence the outcome of these races. Paul Blumenthal of the Huffington Post reports<http://www.huffingtonpost.com/entry/2016-senate-super-pacs_us_57854c6ee4b03fc3ee4e54bd> that $70 million of this money has supported Republicans, with much of the money coming from the Koch Brothers Network and the U.S. Chamber of Commerce. Democrats are funneling most of their money through a super PAC allied with retiring Senate Minority LeaderHarry Reid.

The pressure on Senate candidates to court this money distorts not only our elections but our politics. In House races, and in state and local races, the pressure is even more intense.

It is not true that our elections go to the highest bidders. But what is true is that the highest bidders get the ear of those in politics, and the rest of us have to settle for what’s left over after they have made their case. Even this year, when a billionaire is facing off against a multimillionaire.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, Plutocrats United<http://electionlawblog.org/?cat=104>


Federal Court, on 2-1 Vote, Lets Maryland Partisan Gerrymandering Claim Go Forward<http://electionlawblog.org/?p=85813>
Posted on August 24, 2016 7:48 am<http://electionlawblog.org/?p=85813> by Rick Hasen<http://electionlawblog.org/?author=3>

A three-judge court, on remand in Shapiro v. McManus, has ruled 2-1<http://electionlawblog.org/wp-content/uploads/mcmanus.pdf> that the first amendment-based partisan gerrymandering claim brought against Maryland’s sixth congressional district states a valid claim and now proceeds further (to summary judgment or trial). The opinion is important because, like another case out of Wisconsin<https://electionlawblog.org/?p=81678> and a third (already before the Court from North Carolina<https://electionlawblog.org/?p=84931>) will present a new Supreme Court with different theories under which the Court may finally rein in more egregious political gerrymanders.  And this particular opinion is written by Judge Niemeyer, who, as Steve Klepper notes,<https://twitter.com/MDAppeal/status/768450464144777216> is a respected conservative judge who serves as a feeder for clerks to the more conservative Supreme Court Justices.

There’s bound to be some jockeying and competition among the lawyers in the three cases, which will be presenting alternative theories as to how to separate permissible from impermissible consideration of political party data in redistricting.

Here is the key holding of the majority:

When applying First Amendment jurisprudence to redistricting, we conclude that, to state a claim, the plaintiff must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution. But vote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury. Instead, to establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. In other words, the vote dilution must make some practical difference. Finally, the plaintiff must allege causation — that, absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.

From the dissent:

But even accepting that the First Amendment supplies the relevant constitutional principle, and even assuming that official misconduct may be afoot on the discrete facts of this case, I cannot responsibly endorse Plaintiffs’ proposed standard (or otherwise approve continued litigation in this matter) unless I first conclude that the standard would be viable and manageable throughout the life of this case andbeyond the facts of this case. Two substantial hurdles prevent me from drawing such a conclusion. The first hurdle relates to precedent: the Supreme Court has expressed some degree of tolerance for partisanship in the districting context, but that tolerance creates intractable line-drawing problems. A per se rule flatly prohibiting state legislatures from taking account of voting history or voter affiliation in their mapmaking would streamline the preliminary analysis, but it is not clear that such a rule is available in light of controlling law (or desirable in light of competing interests and objectives).

Even were this Court to implement such a per se rule, there remains a second, insurmountable barrier. Courts are simply not equipped to ascertain those unusual circumstances in which redistricting inflicts an actual, measurable burden on voters’ representational rights. Yet that is precisely what the Supreme Court has required.Compare Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality opinion) (“We . . . agree . . . that in order to succeed the . . . plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”), and Vieth, 541 U.S. at 295 (plurality opinion) (“This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms.”), with League of United Latin Am. Citizens[LULAC] v. Perry, 548 U.S. 399, 418 (2006) (Kennedy, J.) (“[A] successful claim attempting to identify unconstitutional acts of partisan gerrymandering  must . . . show a burden, as measured by a reliable standard, on the complainants’ representational rights.”). Courts cannot reliably distinguish between what Plaintiffs would term impermissible “vote dilution” and the ordinary consequences of an American political process that is organic, fluid, and often unpredictable.

I think the dissent has the better of the argument that framing this injury as a First Amendment one rather than an Equal Protection one cannot solve the line-drawing problems that the Court has recognized in cases such as Vieth. That said, the Court could now be willing (especially with a 9th Justice appointed by a Democratic president) to engage in the line drawing, and this First Amendment theory offers a nice fig leaf for saying one is not overturning any cases or precedent to now allow the policing of partisan gerrymandering claims.

This case now moves to the next stage, and I expect action on this issue will shift to the North Carolina partisan gerrymandering case<https://electionlawblog.org/?p=84931>, which is now closer to Supreme Court review, where I expect at least amici to offer Judge Niemeyer’s theory as a plausible way to resolve these cases.

[This post has been updated.]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Johnson/Weld Will Appear on OH Ballot, But Still Not Certain with Libertarian Label<http://electionlawblog.org/?p=85811>
Posted on August 24, 2016 7:41 am<http://electionlawblog.org/?p=85811> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s the latest AP report<https://www.apnews.com/57c745f40c8e4edb903c8fe973c0d6f0/The-Latest:-Libertarian-Johnson-to-appear-on-Ohio-ballot>, but it is unclear to me if SOS Husted will be listing them as Libertarians, the subject of the emergency SCOTUS motion.<http://electionlawblog.org/?p=85762>
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Posted in ballot access<http://electionlawblog.org/?cat=46>, political parties<http://electionlawblog.org/?cat=25>


“Bernie Sanders’s New Political Group Is Met by Staff Revolt”<http://electionlawblog.org/?p=85809>
Posted on August 24, 2016 7:35 am<http://electionlawblog.org/?p=85809> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/08/25/us/politics/bernie-sanders-our-revolution-group.html?ref=politics>

Senator Bernie Sanders<http://www.nytimes.com/interactive/2016/us/elections/bernie-sanders-on-the-issues.html?inline=nyt-per> of Vermont, his presidential campaign now behind him, will look to advance the movement he built during the Democratic primary race, with the public unveiling on Wednesday of a political organization focused on addressing economic inequality and taking on special interests.

But while the establishment of the new group, Our Revolution, has been eagerly awaited by many of his most ardent supporters, it has been met with criticism and controversy over its financing and management.

A principal concern among backers of Mr. Sanders, whose condemnation of the campaign finance system was a pillar of his presidential bid, is that the group can draw from the same pool of “dark money” that Mr. Sanders condemned for lacking transparency.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“With an ally closing its doors, Evan McMullin has no clear path to ballot access”<http://electionlawblog.org/?p=85807>
Posted on August 24, 2016 7:30 am<http://electionlawblog.org/?p=85807> by Rick Hasen<http://electionlawblog.org/?author=3>

Wiegel.<https://www.washingtonpost.com/news/post-politics/wp/2016/08/23/with-an-ally-closing-its-doors-evan-mcmullin-has-no-clear-path-to-ballot-access/>
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Posted in ballot access<http://electionlawblog.org/?cat=46>


“Colorado’s campaign-finance bullies threaten free speech”<http://electionlawblog.org/?p=85805>
Posted on August 24, 2016 7:25 am<http://electionlawblog.org/?p=85805> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Sherman <http://www.denverpost.com/2016/08/23/colorados-campaign-finance-bullies-threaten-free-speech/> in the Denver Post.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Trump’s Vigilante Twist on the Voter Fraud Myth”<http://electionlawblog.org/?p=85803>
Posted on August 24, 2016 7:23 am<http://electionlawblog.org/?p=85803> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read Brentin Mock<http://www.citylab.com/politics/2016/08/trumps-twist-on-the-voter-fraud-myth/497111/>:

It’s dangerous because Trump is now strongly suggesting that people take election-law matters into their own hands<http://lawnewz.com/important/these-tweets-prove-trump-is-already-inspiring-supporters-to-use-disturbing-voter-intimidation-tactics/> by calling for a red-shirted army<https://www.splcenter.org/news/2016/08/17/donald-trump-poll-watchers-and-voter-fraud> of vigilante poll watchers<https://www.donaldjtrump.com/lp/volunteer-to-be-a-trump-election-observer> to fall into formation. There is a clear history of racist bullying<http://www.colorlines.com/articles/racial-politics-behind-right-wings-poll-watching> that comes with this kind of desperado poll-monitoring<http://www.colorlines.com/articles/how-tea-partys-building-poll-watcher-network-november>, and here’s what that’s already starting to look like…
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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>


Justice Kagan Moves Quickly in Ohio Libertarian Ballot Access Suit<http://electionlawblog.org/?p=85801>
Posted on August 24, 2016 7:20 am<http://electionlawblog.org/?p=85801> by Rick Hasen<http://electionlawblog.org/?author=3>

Response due to SCOTUS by tomorrow at 3.<https://twitter.com/chrisgeidner/status/768452281842929664>

Here’s<http://electionlawblog.org/?p=85762> my coverage from yesterday.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>


Ron Collins on David Cole and Citizens United/ACLU<http://electionlawblog.org/?p=85799>
Posted on August 24, 2016 7:17 am<http://electionlawblog.org/?p=85799> by Rick Hasen<http://electionlawblog.org/?author=3>

What will become<http://concurringopinions.com/archives/2016/08/fan-120-first-amendment-news-snapshots-of-david-cole-2-chipping-away-at-citizens-united.html> of the ACLU’s position on campaign finance and the First Amendment with David in charge?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“The Price of Political E-mails in Vermont”<http://electionlawblog.org/?p=85797>
Posted on August 24, 2016 7:09 am<http://electionlawblog.org/?p=85797> by Rick Hasen<http://electionlawblog.org/?author=3>

Steve Klein blogs.<https://www.pillaroflaw.org/index.php/blog/entry/the-price-of-political-e-mails-in-vermont>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“A Judge Blocked North Carolina’s Plan To Target Black Voters. The GOP Found A Way To Do It Anyway.”<http://electionlawblog.org/?p=85795>
Posted on August 24, 2016 7:08 am<http://electionlawblog.org/?p=85795> by Rick Hasen<http://electionlawblog.org/?author=3>

Alice Ollstein <https://thinkprogress.org/a-judge-blocked-north-carolinas-plan-to-target-black-voters-the-gop-found-a-way-to-do-it-anyway-eb5f92c64b55#.cob8ynnvu> for Think Progress.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Ladies dispensing doughnuts and coffee to influence voters didn’t warrant a new election”<http://electionlawblog.org/?p=85793>
Posted on August 24, 2016 7:08 am<http://electionlawblog.org/?p=85793> by Rick Hasen<http://electionlawblog.org/?author=3>

Westlaw’s<http://blog.legalsolutions.thomsonreuters.com/legal-research/headnote-of-the-day/ladies-dispensing-doughnuts-and-coffee-to-influence-voters-didnt-warrant-a-new-election/> headnote of the day.
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Posted in vote buying<http://electionlawblog.org/?cat=43>


“Why Major and Minor Parties Should Support Instant Runoff Voting”<http://electionlawblog.org/?p=85791>
Posted on August 24, 2016 7:04 am<http://electionlawblog.org/?p=85791> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Dorf for Verdict.<https://verdict.justia.com/2016/08/24/major-minor-parties-support-instant-runoff-voting>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, ballot access<http://electionlawblog.org/?cat=46>


Kochs To the Rescue in North Carolina?<http://electionlawblog.org/?p=85789>
Posted on August 24, 2016 7:01 am<http://electionlawblog.org/?p=85789> by Rick Hasen<http://electionlawblog.org/?author=3>

Sounds like it <https://www.buzzfeed.com/tariniparti/in-north-carolina-republicans-try-to-fend-off-political-tsun?utm_term=.wrk5DxEYe#.mdBOEvGb6> from this Tarini Parti Buzzfeed report.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Inside the exclusive events helping to fund Clinton and the Democratic Party”<http://electionlawblog.org/?p=85787>
Posted on August 24, 2016 6:59 am<http://electionlawblog.org/?p=85787> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/inside-the-exclusive-events-helping-to-fund-clinton-and-the-democratic-party/2016/08/23/f8ef52d4-6926-11e6-8225-fbb8a6fc65bc_story.html?postshare=771472043785543&tid=ss_tw> on the ingratiation and access:

The price of entry to see Hillary Clinton on Sunday evening was $50,000 per person, a sum that got you an al fresco meal of tomato and mozzarella salad, lobster, strawberry shortcake and an intimate conversation with the possible next president of the United States.

“It was the easiest event I’ve ever done,” said Elaine Schuster, a longtime Clinton friend who hosted the soiree at her waterfront home on Cape Cod, Mass. “Everyone wanted to come.”

Not everyone could, of course: Just 28 people joined Clinton for cocktails and dinner in Schuster’s back yard. The Democratic nominee has spent much of August in such exclusive environs, helping her campaign and the party scoop up at least $32 million in three weeks as part of a nonstop press of high-dollar fundraisers.

Clinton has touted her growing support from small contributors, whose donations of $200 or less made up nearly 40 percent of her campaign’s $62 million haul in July.

But the former secretary of state devoted much of this month to seeking big money to finance the Democratic Party, a race for cash that has taken her from Greenwich, Conn., to Nantucket, Mass., to Beverly Hills, Calif. The fundraising drive has served as a reminder of her deep and decades-long connections to some of the country’s wealthiest figures, a jarring contrast with her efforts to cast herself as an ally of those left out of prosperity.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Why Donald Trump’s Election Observers Are a Bad Idea”<http://electionlawblog.org/?p=85785>
Posted on August 24, 2016 6:57 am<http://electionlawblog.org/?p=85785> by Rick Hasen<http://electionlawblog.org/?author=3>

Jon Grinspan NYT oped<http://www.nytimes.com/2016/08/24/opinion/why-donald-trumps-election-observers-are-a-bad-idea.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=0> looks at the question through lens of history.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Dark money group seeks investigation of Kansas Supreme Court justice”<http://electionlawblog.org/?p=85783>
Posted on August 23, 2016 8:47 pm<http://electionlawblog.org/?p=85783> by Rick Hasen<http://electionlawblog.org/?author=3>

Bryan Lowry <http://www.kansas.com/news/politics-government/article97449942.html> for the Wichita Eagle:

A national dark money group has revived a 2-year-old controversy involving a Kansas Supreme Court justice and filed an ethics complaint with the state’s Commission on Judicial Qualifications.

The Foundation for Accountability and Civic Trust, which is based in Washington, D.C., sent a letter to commission on Aug. 19 asking it to investigate Justice Carol Beier over a political fundraiser her husband hosted for Democrat Paul Davis in 2014.<http://www.kansas.com/news/politics-government/election/article2220496.html>

“Justice Beier needs to be held accountable for her careless behavior because even the mere appearance of impropriety calls into question her impartiality and erodes the public’s trust in our government,” said Matthew Whitaker, the group’s executive director, in a news release announcing the complaint Monday….

The foundation’s website says that it’s an “organization dedicated to promoting accountability, ethics, and transparency in government and civic arenas by hanging a lantern over public officials who put their own interests over the interests of the public good.”

The foundation is a 501(c)(3) organization and therefore not required to disclose its donors under federal law.

Arnold said in an e-mail that “FACT actually doesn’t know who its donors” because it receives it funding through DonorsTrust.

Open Secrets, a website which tracks political spending, has described DonorsTrust as “a pass-through vessel” which enables wealthy donors, such as Charles Koch, to remain anonymous when giving to political advocacy groups.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>, tax law and election law<http://electionlawblog.org/?cat=22>


“Federal court considers Kansas rule that voters prove citizenship”<http://electionlawblog.org/?p=85780>
Posted on August 23, 2016 6:53 pm<http://electionlawblog.org/?p=85780> by Rick Hasen<http://electionlawblog.org/?author=3>

Wichita Eagle:<http://www.kansas.com/news/politics-government/article97375157.html>

A federal appeals court will decide whether Kansas has the right to ask people who register to vote when they get their driver’s licenses for proof that they’re citizens.

The decision could affect whether thousands of Kansas residents have their ballots counted in November’s election.

Three judges from the 10th Circuit Court of Appeals heard arguments in the case Tuesday from Kansas Secretary of State Kris Kobach and the American Civil Liberties Union but didn’t indicate how soon they could rule.

Kansas wants the court to overturn a ruling by a federal judge in May that temporarily blocked the state from disenfranchising people who registered at motor vehicle offices but didn’t provide documents such as birth certificates or naturalization papers. That was about 18,000 people at the time.

If the order is allowed to stand, the state says up to an estimated 50,000 people who haven’t proven they’re citizens could have their votes counted in the fall.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Poll Monitors Aren’t What Donald Trump Seems to Think They Are”<http://electionlawblog.org/?p=85776>
Posted on August 23, 2016 4:25 pm<http://electionlawblog.org/?p=85776> by Rick Hasen<http://electionlawblog.org/?author=3>

Jonathan Stein for HuffPo.<http://www.huffingtonpost.com/entry/poll-monitors-arent-trump-thinks_us_57bcae40e4b03d51368b46b6?mbk9hxo8x9z7x2yb9> [corrected link]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“No more ‘Golden Week’ for Ohio voters – again”<http://electionlawblog.org/?p=85774>
Posted on August 23, 2016 4:05 pm<http://electionlawblog.org/?p=85774> by Rick Hasen<http://electionlawblog.org/?author=3>

The Columbus Dispatch reports.<http://www.dispatch.com/content/stories/local/2016/08/23/judge-reverses-golden-week-in-ohio.html>


[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85774&title=%26%238220%3BNo%20more%20%26%238216%3BGolden%20Week%26%238217%3B%20for%20Ohio%20voters%20%26%238211%3B%20again%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Clinton Campaign Disputes AP Data on Donors<http://electionlawblog.org/?p=85769>
Posted on August 23, 2016 3:49 pm<http://electionlawblog.org/?p=85769> by Rick Hasen<http://electionlawblog.org/?author=3>

Read it here.<https://twitter.com/albamonica/status/768215767087140864/photo/1>

[allon]<http://electionlawblog.org/wp-content/uploads/fallon.jpg>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85769&title=Clinton%20Campaign%20Disputes%20AP%20Data%20on%20Donors&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


WI New Ethics Regulators Can Donate to Those They Regulate<http://electionlawblog.org/?p=85766>
Posted on August 23, 2016 3:43 pm<http://electionlawblog.org/?p=85766> by Rick Hasen<http://electionlawblog.org/?author=3>

Not the Onion.<http://www.jsonline.com/story/news/politics/2016/08/23/ethics-overseers-cleared-make-political-donations/89226404/>


[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85766&title=WI%20New%20Ethics%20Regulators%20Can%20Donate%20to%20Those%20They%20Regulate&description=>
Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


Breaking: WI Won’t Go to SCOTUS for Emergency Relief in Early Voting Case<http://electionlawblog.org/?p=85764>
Posted on August 23, 2016 3:17 pm<http://electionlawblog.org/?p=85764> by Rick Hasen<http://electionlawblog.org/?author=3>

Patrick Marley<https://twitter.com/patrickdmarley/status/768206048176050177>: “AG Brad Schimel will not seek SCOTUS review of 7th Circuit’s early voting decision. Madison/MKE plans for early voting in Sept stay in place.”

I had pegged<http://electionlawblog.org/?p=85673> the chances of emergency relief from the Supreme Court in this case as quite low.

A regular appeal of these rulings will go to the 7th Circuit.

Smart move by WI not to create additional uncertainty about early voting at this point.

UPDATE: Marley has more.<http://www.jsonline.com/story/news/politics/elections/2016/08/23/schimel-drops-early-voting-fight/89226872/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85764&title=Breaking%3A%20WI%20Won%26%238217%3Bt%20Go%20to%20SCOTUS%20for%20Emergency%20Relief%20in%20Early%20Voting%20Case&description=>
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>


Libertarian Party Files Emergency #SCOTUS Motion to Get Johnson/Weld on Ohio Ballot as Libertarians<http://electionlawblog.org/?p=85762>
Posted on August 23, 2016 3:13 pm<http://electionlawblog.org/?p=85762> by Rick Hasen<http://electionlawblog.org/?author=3>

Via Chris Geidner<https://twitter.com/chrisgeidner/status/768199158427684865>, comes this emergency motion<https://t.co/wwnNnJYXnN> to get the Johnson/Weld ticket on the Ohio ballot listed as Libertarians. (It is uncertain if Johnson/Weld might make it on the ballot as independent candidates without a party label should this petition be denied. FN 7 of the motion explains: “Ohio law provides a separate procedure (which is not being challenged here) for independent presidential tickets. The Johnson/Weld campaign (after being denied recognized LPO status) on August 10, 2016 submitted the papers and signatures needed to qualify as an independent presidential ticket in Ohio. Certification of independent candidacies is expected the week of August 22, 2016. Assuming Johnson/Weld were to be certified as an independent ticket and survive official protests, it (unlike the established parties’ presidential tickets) will still not represent LPO as a political party, will not be listed as the “Libertarian” ticket on Ohio’s ballot, and cannot meet Ohio’s 3% vote test on behalf of LPO in order to win for it qualified political party status in Ohio in future elections.”)

This is a serious petition raising a substantial issue. It would not be the first time<https://scholar.google.com/scholar_case?case=1881199224878775691&hl=en&as_sdt=6&as_vis=1&oi=scholarr> that the Supreme Court has considered ballot access for the presidential election. But it is uncertain to me what the Court will do in this case, especially given that ballots need to be printed in one week (August 30) according to the petition. Perhaps the results will turn on what the state announces about whether the Johnson/Weld ticket qualifies independently, though I can see this argument cutting either way.

Also unclear to me whether Trump or Clinton would benefit more from having the Libertarians on the ballot. It could be that the issue is so uncertain both parties will want the Libertarians off the ballot.

More from Ballot Access News.<http://ballot-access.org/2016/08/23/ohio-libertarian-party-asks-u-s-supreme-court-to-put-gary-johnson-on-ballot-with-libertarian-label/>


[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85762&title=Libertarian%20Party%20Files%20Emergency%20%23SCOTUS%20Motion%20to%20Get%20Johnson%2FWeld%20on%20Ohio%20Ballot%20as%20Libertarians&description=>
Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>


“Many donors to Clinton Foundation met with her at State”<http://electionlawblog.org/?p=85760>
Posted on August 23, 2016 1:26 pm<http://electionlawblog.org/?p=85760> by Rick Hasen<http://electionlawblog.org/?author=3>

Ouch!

From AP<https://apnews.com/82df550e1ec646098b434f7d5771f625/Many-donors-to-Clinton-Foundation-met-with-her-at-State>:

At least 85 of 154 people from private interests who met or had phone conversations scheduled with Clinton while she led the State Department donated to her family charity or pledged commitments to its international programs, according to a review of State Department calendars released so far to The Associated Press. Combined, the 85 donors contributed as much as $156 million. At least 40 donated more than $100,000 each, and 20 gave more than $1 million.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85760&title=%26%238220%3BMany%20donors%20to%20Clinton%20Foundation%20met%20with%20her%20at%20State%26%238221%3B&description=>
Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


Listen to Oral Argument: Kobach against Ho in 10th Circuit<http://electionlawblog.org/?p=85755>
Posted on August 23, 2016 12:48 pm<http://electionlawblog.org/?p=85755> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<https://www.ca10.uscourts.gov/sites/default/files/clerk/16-3147_1.mp3>

Update: I gave a listen. This was a very active panel which questioned both sides. But it does seem that Kobach got a harder time from the judges.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


True the Vote Subtweets Trump over “Election Observer” Efforts<http://electionlawblog.org/?p=85751>
Posted on August 23, 2016 12:24 pm<http://electionlawblog.org/?p=85751> by Rick Hasen<http://electionlawblog.org/?author=3>

From a recent fundraising email:

[creen Shot 2016-08-23 at 12.24.16 PM]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-08-23-at-12.24.16-PM.png>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85751&title=True%20the%20Vote%20Subtweets%20Trump%20over%20%26%238220%3BElection%20Observer%26%238221%3B%20Efforts&description=>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Prosser decries money in high-court races”<http://electionlawblog.org/?p=85749>
Posted on August 23, 2016 11:45 am<http://electionlawblog.org/?p=85749> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s rich<http://www.jsonline.com/story/news/politics/2016/08/21/prosser-decries-money-high-court-races/89079584/>, given his position in the John Doe case.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85749&title=%26%238220%3BProsser%20decries%20money%20in%20high-court%20races%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Voting Rights is Not a Fringe Issue”<http://electionlawblog.org/?p=85747>
Posted on August 23, 2016 11:22 am<http://electionlawblog.org/?p=85747> by Rick Hasen<http://electionlawblog.org/?author=3>

Leslie Savan<https://www.thenation.com/article/voting-rights-is-not-a-fringe-issue/> for The Nation.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85747&title=%26%238220%3BVoting%20Rights%20is%20Not%20a%20Fringe%20Issue%26%238221%3B&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


Supplement to Dimino, Smith, Solimine<http://electionlawblog.org/?p=85745>
Posted on August 23, 2016 11:08 am<http://electionlawblog.org/?p=85745> by Rick Hasen<http://electionlawblog.org/?author=3>

Brad Smith:

For those using Dimino, Smith & Solimine, Voting Rights and Election Law (2d ed., 2015), a 2016 supplement is now available free<http://www.cap-press.com/pdf/Dimino%20Voting%20Rights%20Election%20Law%202e%202016%20supp%20WM.pdf>.


[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85745&title=Supplement%20to%20Dimino%2C%20Smith%2C%20Solimine&description=>
Posted in pedagogy<http://electionlawblog.org/?cat=23>


Goldfeder’s Latest Presidential News Quiz<http://electionlawblog.org/?p=85743>
Posted on August 23, 2016 11:03 am<http://electionlawblog.org/?p=85743> by Rick Hasen<http://electionlawblog.org/?author=3>

Have at it.<http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85743&title=Goldfeder%26%238217%3Bs%20Latest%20Presidential%20News%20Quiz&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“The end of polling places as we know them? After June primary complaints, a measure proposes more voting options”<http://electionlawblog.org/?p=85741>
Posted on August 23, 2016 11:02 am<http://electionlawblog.org/?p=85741> by Rick Hasen<http://electionlawblog.org/?author=3>

LAT reports.<http://www.latimes.com/politics/la-pol-sac-polling-place-replaced-vote-centers-20160823-snap-story.html>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85741&title=%26%238220%3BThe%20end%20of%20polling%20places%20as%20we%20know%20them%3F%20After%20June%20primary%20complaints%2C%20a%20measure%20proposes%20more%20voting%20options%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>


WI Opposes 7th Cir. En Banc Review in First Voter ID Case<http://electionlawblog.org/?p=85738>
Posted on August 23, 2016 10:09 am<http://electionlawblog.org/?p=85738> by Rick Hasen<http://electionlawblog.org/?author=3>

Document.<http://electionlawblog.org/wp-content/uploads/wi-en-banc-response.pdf>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Breaking: 6th Cir, on 2-1 Vote, Reverses Expansive Early Voting “Golden Week” Decision: Analysis<http://electionlawblog.org/?p=85729>
Posted on August 23, 2016 9:32 am<http://electionlawblog.org/?p=85729> by Rick Hasen<http://electionlawblog.org/?author=3>

A divided panel of the 6th Circuit <http://electionlawblog.org/wp-content/uploads/6th-golden.pdf> has reversed a trial court ruling and allowed the Ohio Legislature to eliminate “Golden Week,” a week in which a new or moving voter who needs to reregister could both register to vote and cast an early ballot. The trial court had found that the elimination of this period, despite an extensive period of early voting (29 days) and the availability of no-excuse absentee voting across the state, violated both the equal protection clause of the U.S. Constitution and Section 2 of the Voting Rights Act. The 6th Circuit majority held that Ohio’s early voting period was generous, that the current period was the result of a settlement of an earlier case between the state and the ACLU which resulted in an additional Sunday voting period, and that plaintiffs’ theory in this case, if accepted, which would create a “one way ratchet” that would prevent states from ever cutting back on voting expansions even if they have a good reason to do so. The majority celebrated the ability to states to set election rules for themselves, and said that under the Supreme Court’s Crawford case, the state did not have to show much by way of state interests in preventing voter fraud and supporting voter confidence to allow it to take the step of eliminating Golden Week.

The dissent believed the trial court’s factual finding that the elimination of Golden Week burdened voters, especially minority voters, was entitled to deference, and that the federal roles have a more important role in assuring the fundamental right to vote. To the dissent, the trial court through a 10 day trial fully followed the fact-intensive nature of the Section 2 inquiry under the Voting Rights Act and found the law burdened minority voters impermissibly.

I have been very skeptical of this litigation, mostly for the reasons given by the majority in the outset of this opinion. Ohio’s early voting/no excuse absentee balloting period is exceedingly generous. And while I might support Golden Week as good policy, I worry when courts are used in this way to prevent every cutback in voting, especially after voting rights proponents had settled a suit with Ohio on favorable terms (very favorable given that the legal theory advanced, especially under Equal Protection, seemed rather weak). I also have worried, and worry, that cases like this make bad law when there are more serious voting cutbacks, although this opinion is written in such a way that major damage appears to have been avoided.

So what happens next? The plaintiffs could accept this or go to the 6th Circuit en banc or to the Supreme Court. I am not enough of a nose-counter of 6th Circuit judges to know how the case would come out, but I’d point out that the 6th Circuit in the analogous context of Bush v. Gore-type claims to equal treatment of voters has been the most pro-voter in the country. So I’m not sure how things would fare there.  The Supreme Court, with its 4-4 ideological split, seems to work against plaintiffs now (as it works against North Carolina in the NC voting case). Where will plaintiffs get a fifth vote to restore early voting?  Hard to see even Kennedy buying into the expansive voting theory in this case, especially given the strong majority opinion in the 6th Circuit.

So it seems to be the 6th Circuit en banc or bust here.

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


Taking an Election Law, Legislation, or Statutory Interpretation Course?<http://electionlawblog.org/?p=85727>
Posted on August 23, 2016 8:32 am<http://electionlawblog.org/?p=85727> by Rick Hasen<http://electionlawblog.org/?author=3>



Then please consider my student treatise/study aid with questions and answers covering all these topics. It works with all the major casebooks in these courses (see the correlation table below):
Legislation, Statutory Interpretation, and Election Law: Examples & Explanations<https://www.amazon.com/Examples-Explanations-Legislation-Statutory-Interpretation/dp/1454845414/ref=sr_1_1?ie=UTF8&qid=1471966256&sr=8-1&keywords=hasen+legislation> (Aspen Publishers, 2014)
[http://electionlawblog.org/wp-content/uploads/EE-LSIE.jpg]


Order from Amazon<http://www.amazon.com/Examples-Explanations-Legislation-Statutory-Interpretation/dp/1454845414/ref=sr_1_1?ie=UTF8&qid=1401919780&sr=8-1&keywords=hasen+legislation>
Correlation Table<http://electionlawblog.org/wp-content/uploads/EE-LSIE-Correlation-Table.pdf> (shows how book works with the major casebooks in both fields)
Table of Contents<http://electionlawblog.org/wp-content/uploads/EE-LSIE-TOC.pdf>
Index<http://electionlawblog.org/wp-content/uploads/EE-LSIE-Index.pdf>

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


“Federal Appeals Court Allows Early Voting”<http://electionlawblog.org/?p=85725>
Posted on August 23, 2016 6:42 am<http://electionlawblog.org/?p=85725> by Rick Hasen<http://electionlawblog.org/?author=3>

Wisconsin Public Radio<http://www.wpr.org/federal-appeals-court-allows-early-voting>:

Several Republican-authored laws restricting early voting in Wisconsin remain struck down after a federal appeals court declined a request to reinstate them Monday.

The brief order by the 7th Circuit Court of Appeals in Chicago increases the likelihood that Madison, Milwaukee and other communities will be allowed to start in-person absentee voting sooner rather than later. Madison’s City Clerk has said she plans<http://www.wpr.org/madison-begin-person-absentee-voting-next-month> to offer in-person absentee voting starting Monday, Sept. 26, which would be earlier than ever before<http://www.wpr.org/wisconsin-voters-could-see-earliest-ever-early-voting-fall>.

Milwaukee Journal-Sentinel:<http://www.jsonline.com/story/news/politics/elections/2016/08/22/appeals-court-allows-early-voting/89118088/> “The attorney general is reviewing Monday’s decision, said Johnny Koremenos, a spokesman for Schimel.”  That shouldn’t take too long as it is one sentence long.<http://electionlawblog.org/?p=85673>


[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D85725&title=%26%238220%3BFederal%20Appeals%20Court%20Allows%20Early%20Voting%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


--
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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