[EL] ELB News and Commentary 8/31/16

[Rick Hasen]

Off to APSA<http://electionlawblog.org/?p=86069>
Posted on August 31, 2016 7:48 am<http://electionlawblog.org/?p=86069> by Rick Hasen<http://electionlawblog.org/?author=3>

…and apparently on a plane with no wifi, so check out How Appealing<http://howappealing.abovethelaw.com/>, SCOTUSBlog,<http://www.scotusblog.com/> and Political Wire<https://politicalwire.com/> for the latest news. I also highly recommend Chris Geidner’s twitter feed<https://twitter.com/chrisgeidner> for latest election law and legal updates.

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


“Turnout, Tenuousness, and Getting Results in Section 2 Vote Denial Claims”<http://electionlawblog.org/?p=86067>
Posted on August 31, 2016 7:42 am<http://electionlawblog.org/?p=86067> by Rick Hasen<http://electionlawblog.org/?author=3>

Pam Karlan has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2817501> on SSRN (forthcoming, Ohio St. L.J.). Here is the abstract:
In recent years, courts have been called on to adjudicate a new series of cases involving vote denial — practices that prevent individuals from casting a ballot or having that ballot counted. The upsurge in cases claiming vote denial (as opposed to vote dilution) is the product of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and to cut back on expansions previously implemented by Democrats.

How should courts analyze these claims under the Voting Rights Act? Recently, the courts have appeals have begun to coalesce on a two-part framework: First, the challenged practice “must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Second, “that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” But they continue to recognize that their inquiry must be shaped by the statute’s totality of the circumstances requirement and show be informed by a series of factors laid out by the Supreme Court and Congress in the context of vote dilution claims.

This article explores how those factors should work in vote denial cases. First, neither an actual nor a predicted decrease in minority turnout should serve as a necessary precondition to a section 2 results claim alleging vote denial. There are theoretical, doctrinal, and practical reasons for treating election results as a relatively minor consideration with respect to the discriminatory burden prong of the emerging framework. If anything, data or predictions about turnout effects are more relevant to the question whether the challenged practice is tainted by an impermissible purpose than they are to determining the existence of a discriminatory burden.

Second, courts in section 2 vote-denial cases should be guided by the Voting Rights Act’s overall commitment to expanding the opportunity for minority citizens to participate in the political process. Particularly when confronted with a challenge involving a provision that reduces preexisting opportunities to vote, courts should not hesitate to find that the new provision constitutes a “burden” under the emerging framework. Giving evidentiary weight to the existence of a change does not impermissibly import the retrogression standard of section 5 into section 2.

Third, whether the policy underlying the challenged practice is “tenuous” (the final Senate Report factor) of necessity plays a more central role in vote denial cases than it has in vote dilution cases. This does not transform the results test into a purpose inquiry; rather, it is a question of the fit between the policy and the burden. The strength of the government’s proffered policy justifications goes to the heart of whether the practice imposes a burden and whether that burden is discriminatory. More particularly, in vote denial cases, partisan motivations, regardless of whether they rise to the level of an independent constitutional violation or suffice to prove a racially discriminatory purpose, are tenuous as a matter of law and should impose a burden of justification on a defendant jurisdiction.

This goes to the top of the reading pile.
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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>


“Democrats’ Edge in Voter Registration Is Declining, but Looks Can Be Deceiving”<http://electionlawblog.org/?p=86065>
Posted on August 31, 2016 7:39 am<http://electionlawblog.org/?p=86065> by Rick Hasen<http://electionlawblog.org/?author=3>

Nate Cohn <http://www.nytimes.com/2016/08/31/upshot/democrats-edge-in-voter-registration-is-declining-but-looks-can-be-deceiving.html?ref=politics> for NYT’s The Upshot.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“The U.S. has more third-party candidates than it’s seen in a century. Why?”<http://electionlawblog.org/?p=86063>
Posted on August 31, 2016 7:36 am<http://electionlawblog.org/?p=86063> by Rick Hasen<http://electionlawblog.org/?author=3>

The Monkey Cage.<https://www.washingtonpost.com/news/monkey-cage/wp/2016/08/31/the-u-s-has-more-third-party-candidates-than-its-seen-in-a-century-why/>
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Posted in ballot access<http://electionlawblog.org/?cat=46>, campaigns<http://electionlawblog.org/?cat=59>, third parties<http://electionlawblog.org/?cat=47>


“The Clinton Foundation is not a campaign finance problem”<http://electionlawblog.org/?p=86061>
Posted on August 31, 2016 7:33 am<http://electionlawblog.org/?p=86061> by Rick Hasen<http://electionlawblog.org/?author=3>

Mark Schmitt<http://www.vox.com/polyarchy/2016/8/31/12716822/clinton-foundation-campaign-finance> for Vox.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>


Ed Blum on the Future of Voting Rights after Scalia<http://electionlawblog.org/?p=86059>
Posted on August 31, 2016 7:28 am<http://electionlawblog.org/?p=86059> by Rick Hasen<http://electionlawblog.org/?author=3>

Part of the SCOTUSBlog symposium<http://www.scotusblog.com/2016/08/the-court-after-scalia-the-future-of-voting-rights/> on the Court after Scalia.

Ed is the guy behind the Shelby County and the Evenwel cases.

You can find my take on the question here in the SCOTUSBlog symposium.<http://www.scotusblog.com/2016/08/the-court-after-scalia-standing-at-the-crossroads-on-voting-rights/>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“Waiting For The Mail: Wisconsin ID Procedures Raise Concern”<http://electionlawblog.org/?p=86057>
Posted on August 31, 2016 7:22 am<http://electionlawblog.org/?p=86057> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2016/08/31/waiting-for-the-mail-wisconsin-id-procedures-raise-concern/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Judge keeps key LI congressional election in November”<http://electionlawblog.org/?p=86055>
Posted on August 31, 2016 7:18 am<http://electionlawblog.org/?p=86055> by Rick Hasen<http://electionlawblog.org/?author=3>

Newsday reports.<http://www.newsday.com/long-island/politics/spin-cycle/judge-keeps-key-li-congressional-election-in-november-1.12244067>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Broward election supervisor referred to state attorney for publishing results early”<http://electionlawblog.org/?p=86053>
Posted on August 31, 2016 7:16 am<http://electionlawblog.org/?p=86053> by Rick Hasen<http://electionlawblog.org/?author=3>

Tampa Bay Times:<http://www.tampabay.com/blogs/the-buzz-florida-politics/broward-election-supervisor-referred-to-state-attorney-for-publishing/2291606>

Secretary of State Ken Detzner has referred Broward County Supervisor of Elections Brenda Snipes to the state attorney and sheriff after election results in the county were released online about 20 minutes prior to the primary election ending Tuesday night….Asked if Snipes could be fined by following action by the state attorney, Detzner said, “It’s a little more serious than that.”

Threatening jail time? Really? For something likely done by a staffer inadvertently?
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Posted in election administration<http://electionlawblog.org/?cat=18>


“New York law to combat Citizens United is ‘constitutionally unsound’ says NYCLU”<http://electionlawblog.org/?p=86051>
Posted on August 31, 2016 7:09 am<http://electionlawblog.org/?p=86051> by Rick Hasen<http://electionlawblog.org/?author=3>

Extensive Ron Collins report <http://concurringopinions.com/archives/2016/08/fan-121-first-amendment-news-new-york-law-to-combat-citizens-united-is-constitutionally-unsound-says-nyclu.html> for Concurring Opinions.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“The Real Clinton Foundation Revelation”<http://electionlawblog.org/?p=86049>
Posted on August 31, 2016 7:07 am<http://electionlawblog.org/?p=86049> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Painter NYT oped:<http://www.nytimes.com/2016/08/31/opinion/the-real-clinton-foundation-revelation.html>

This kind of access is the most corrupting brand of favoritism and pervades the entire government. Under both Republican and Democratic presidents, top ambassadorial posts routinely go to campaign contributors. Yet more campaign contributors hound these and other State Department employees for introductions abroad, preferred access and advancement of trade and other policy agendas. More often than not the State Department does their bidding.

Meanwhile, those of us who know and are frustrated about the way our government works breathe a collective yawn at the unsurprising news that the Clinton Foundation or some other nonprofit also gets what appears to be favorable treatment by a government agency. Lots of people and groups get favorable treatment, and most of these are interested in making money rather than giving it away.

The problem is that it does not matter that no laws were broken, or that the Clinton Foundation is principally about doing good deeds. It does not matter that favoritism is inescapable in the federal government and that the Clinton Foundation stories are really nothing new. The appearances surrounding the foundation are problematic, and it is and will be an albatross around Mrs. Clinton’s neck.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>


“North Carolina Republicans Accused of Dodging Order to Fix Election Rules”<http://electionlawblog.org/?p=86047>
Posted on August 31, 2016 7:05 am<http://electionlawblog.org/?p=86047> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Wines reports<http://www.nytimes.com/2016/08/31/us/politics/election-rules-north-carolina.html?_r=0> for the NYT.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“USA TODAY analysis: Rich Democrats surge past GOP in political giving”<http://electionlawblog.org/?p=86045>
Posted on August 31, 2016 7:03 am<http://electionlawblog.org/?p=86045> by Rick Hasen<http://electionlawblog.org/?author=3>

USA Today:<http://www.usatoday.com/story/news/politics/elections/2016/08/30/rich-democrats-surge-past-gop-political-giving-donations/89535324/>

Many of the wealthy Republican contributors who raced to write seven-figure checks to influence the nomination battle have shut their wallets on GOP nominee Donald Trump, directing their money instead to downballot contests or opting to sit out the campaign, a USA TODAY analysis of new campaign filings shows.

Some of the nation’s richest Democrats, meanwhile, have escalated their giving to boost Hillary Clinton’s presidential hopes and to seize on the prospect of a Democratic takeover in the Senate, according to the review of contributions by the election’s most generous donors.

Wealthy Democrats and liberal organizations have plowed $134 million into super PACs since early April as Clinton pulled away from rival Bernie Sanders and Trump won a string of primaries on his way to effectively clinching the GOP nomination in early May. By comparison, the Republican Party’s biggest donors contributed $51 million to super PACs during the same period.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Ohio “Golden Week” Early Voting Case Heading to #SCOTUS<http://electionlawblog.org/?p=86042>
Posted on August 31, 2016 7:01 am<http://electionlawblog.org/?p=86042> by Rick Hasen<http://electionlawblog.org/?author=3>

The 6th Circuit panel that reversed a trial court order restoring Ohio’s “Golden Week” (when a voter could register to vote and early vote in the same trip) has on a 2-1 vote denied a requested stay<http://electionlawblog.org/wp-content/uploads/6th-stay-denial.pdf> of its order. The court offered no reasoning.

Before the stay issued, the plaintiffs’ attorney Marc Elias promised an emergency motion <https://twitter.com/marceelias/status/769914872725250048> at the Supreme Court should the stay be denied.

So stay tuned. (I rate the chances the Court would grant such a stay, thereby restoring Golden Week for this election, to be quite small.)
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Texas Will Hold Another Election Without a Ruling on Redistricting”<http://electionlawblog.org/?p=86040>
Posted on August 30, 2016 9:11 pm<http://electionlawblog.org/?p=86040> by Rick Hasen<http://electionlawblog.org/?author=3>

KUT:<http://kut.org/post/texas-will-hold-another-election-without-ruling-redistricting>

A legal battle over some of the state’s political districts still isn’t over. About half a decade ago, a group of Texas voters sued the state claiming the legislature’s 2011 redistricting maps discriminated against minorities. About two years ago, there was a trial, but since then nothing has happened.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Black Activists in Missouri are Fighting to Preserve the Right to Vote”<http://electionlawblog.org/?p=86038>
Posted on August 30, 2016 8:55 pm<http://electionlawblog.org/?p=86038> by Rick Hasen<http://electionlawblog.org/?author=3>

The Intercept reports.<https://theintercept.com/2016/08/30/black-activists-in-missouri-are-fighting-to-preserve-the-right-to-vote/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Does same-day voter registration in NC increase fraud risk? Experts disagree”<http://electionlawblog.org/?p=86033>
Posted on August 30, 2016 4:38 pm<http://electionlawblog.org/?p=86033> by Rick Hasen<http://electionlawblog.org/?author=3>

The Charlotte Observer reports.<http://www.charlotteobserver.com/news/politics-government/article98902897.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Pence Says Trump Supporter’s Fear of Election Rigging is “Well-Founded”<http://electionlawblog.org/?p=86030>
Posted on August 30, 2016 3:27 pm<http://electionlawblog.org/?p=86030> by Rick Hasen<http://electionlawblog.org/?author=3>

Despicable.<http://www.politico.com/story/2016/08/mike-pence-clinton-health-rigged-election-227557>

(Here’s why<http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html>)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Buried Deep in the Republican Party Platform, a Slam on Latino Voting Power That’s At Odds with the Constitution<http://electionlawblog.org/?p=86023>
Posted on August 30, 2016 3:06 pm<http://electionlawblog.org/?p=86023> by Rick Hasen<http://electionlawblog.org/?author=3>

Going mostly (but not <http://www.nbcnews.com/news/latino/opinion-party-lincoln-dead-don-t-just-blame-donald-trump-n612386> completely)<http://www.alternet.org/election-2016/50-shockingly-extreme-right-wing-proposals-2016-republican-party-platform> unnoticed is the following statement in the Republican Party platform<https://prod-static-ngop-pbl.s3.amazonaws.com/media/documents/DRAFT_12_FINAL%5b1%5d-ben_1468872234.pdf>: “In order to preserve the principle of one person, one vote, we urge our elected representatives to ensure that citizenship, rather than mere residency, be made the basis for the apportionment of representatives among the states.”

Currently, congressional districts are apportioned based upon total population. If Republicans were able to actually follow through on this, it would mean that areas with large Latino populations, where there are more non-citizens, would lose representation compared to whiter, more Republican districts. It would shift more power in Congress to the Republicans.

But there’s a problem with this aspirational plan, something called the Fourteenth Amendment to the U.S. Constitution<https://www.law.cornell.edu/constitution/amendmentxiv>, which provides in Section 2 that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Last time I checked, non-citizens were still “persons.” So maybe this part of the platform is an oblique call for a constitutional amendment?[creen Shot 2016-08-30 at 3.05.01 PM]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-08-30-at-3.05.01-PM.png>

Note this issue is a bit different from the issue in the Supreme Court’s recent Evenwel cas<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/>e, in which conservatives from Texas argued that the state had to draw state legislative districts with equal numbers of voters, not total population. That was an argument made under the equal protection clause, which applies to drawing of districts within states, not apportionment among states for Congress. The Supreme Court rejected that argument, but left open the possibility that states could draw legislative districts within states using total voters as the denominator. If a state, like Texas, tries to do that after the 2020 census, I expect there will be a lawsuit claiming that the state must use total population rather than total voters. Total voters is not the same as citizens (think citizen children, felons), but total voters, like total citizens, would create more white Republican districts.

In any case, the proposal in the Republican party platform is not going to be enacted soon, but it does provide fodder for Democrats to argue that the Republican platform is against Latino voting power.

UPDATE: An astute reader points out that because the Republican party proposal involves apportionment for Congress among the states, and not allocation of members of congress or legislative seats within states, this rule would hurt states with large populations.  And it is an empirical question whether those states are states that are Democratic or Republican.

This is a good point.  Here’s a chart of citizenship and non-citizen populations<http://kff.org/other/state-indicator/distribution-by-citizenship-status/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D> within states. The states with the largest non-citizen populations are: California, Arizona, Texas, New Jersey and New York.  So this could be a wash in terms of the party representation within Congress. It would take more analysis.

But further, once a change was made to do this, I presume the push would be to allow (or require) states doing districting within states to use citizenship only as the basis. And that would lead to a diminution in minority voting power (and doing that may or may not be constitutional).
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Posted in voting<http://electionlawblog.org/?cat=31>


“The Court After Scalia: Standing at the Crossroads on Voting Rights”<http://electionlawblog.org/?p=86020>
Posted on August 30, 2016 12:41 pm<http://electionlawblog.org/?p=86020> by Rick Hasen<http://electionlawblog.org/?author=3>

SCOTUSBlog has a new symposium<http://www.scotusblog.com/2016/08/introduction-the-court-after-scalia/> over the next few weeks on how the Court may change after Justice Scalia is (eventually) replaced on the Court. And I kick it off with a post on Scalia and voting rights<http://www.scotusblog.com/2016/08/the-court-after-scalia-standing-at-the-crossroads-on-voting-rights/>. It begins:

When it comes to jurisprudence on voting rights, the Supreme Court stands at a crossroads. If the Court ends up with a new liberal majority, it could limit the ability of states to pass restrictive voting rules such as voter identification laws, boost minority voting power in legislative and congressional districts under the Voting Rights Act, and continue using the constitutional racial gerrymandering cause of action to protect minority opportunity districts.

A new conservative majority would be more likely, although not certain, to allow states greater leeway to pass laws which make it harder to register or vote, limit minority voting power in legislative and congressional districts under the Voting Rights Act (perhaps even holding Section 2 of the act, which gives minorities a greater share of political power, unconstitutional), and retool the constitutional racial gerrymandering cause of action to make it harder to draw minority opportunity districts.
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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>


“Some could have trouble getting ID near election”<http://electionlawblog.org/?p=86016>
Posted on August 30, 2016 10:38 am<http://electionlawblog.org/?p=86016> by Rick Hasen<http://electionlawblog.org/?author=3>

Patrick Marley:<http://www.jsonline.com/story/news/politics/elections/2016/08/30/some-could-have-trouble-getting-id-near-election/89586538/>

Three members of the state Elections Commission said they were worried people who wait to obtain IDs until close to the election won’t be able to get them in time to have their votes counted.

That’s because the state Division of Motor Vehicles typically provides IDs and voting credentials by mail, rather than in person. That raises the risk that those who visit a DMV center close to the election won’t get their voting credentials until too late.

“Everyone has a constitutional right to have their ballot counted,” said Mark Thomsen, chairman of the commission. “It’s up to us to do everything we can (to make sure people can vote).”

Commissioner Ann Jacobs said at Tuesday’s meeting she would like to see the DMV provide voting credentials to voters over the counter instead of through the mail when it gets close to the election.

Commissioner Steve King agreed with that approach in an interview.

“The mail won’t cut it if they’re coming in the week before the election,” he said.

Jacobs and Thomsen are Democrats; King is a Republican.

[Updated with the updated version of Patrick’s story]


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


“Trump Ally: No Voting Rights For Women Using Free Birth Control & Welfare Recipients”<http://electionlawblog.org/?p=86014>
Posted on August 30, 2016 10:11 am<http://electionlawblog.org/?p=86014> by Rick Hasen<http://electionlawblog.org/?author=3>

Makers and Takers myth on steroids.<http://www.rightwingwatch.org/content/trump-ally-no-voting-rights-women-using-free-birth-control-welfare-recipients>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Devil in the Details of WI Voter ID Softening<http://electionlawblog.org/?p=86012>
Posted on August 30, 2016 10:09 am<http://electionlawblog.org/?p=86012> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://host.madison.com/news/state-regional/elections-commission-questions-timing-of-voting-credentials/article_dec5b89c-43bc-54c0-93ca-3fa5bf06fb65.html>:

State Election Commission members during a meeting Tuesday questioned how the DOT can get such credentials to people who try to get a photo ID on Election Day. Since the agency mails the credentials, those people likely wouldn’t receive their credentials until the next week.

They could vote by provisional ballot but the deadline for confirming those ballots is the Friday after the election. People waiting for credentials would see their ballots invalidated.

Looks like the district court judge in the One Wisconsin Now case may have to get back involved with this.


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


“Corporate Conflict for a Billionaire Presidential Candidate”<http://electionlawblog.org/?p=86010>
Posted on August 30, 2016 8:54 am<http://electionlawblog.org/?p=86010> by Rick Hasen<http://electionlawblog.org/?author=3>

Rob Kelner talks<http://www.wnyc.org/story/corporate-conflict-billionaire-president/> to The Takeaway.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>


“For SF candidates, Chinese name can spell edge at poll”<http://electionlawblog.org/?p=86008>
Posted on August 30, 2016 8:47 am<http://electionlawblog.org/?p=86008> by Rick Hasen<http://electionlawblog.org/?author=3>

SF Chronicle:<http://www.sfchronicle.com/politics/article/For-SF-candidates-Chinese-name-can-spell-edge-at-9191703.php?t=25d97e4fab>

Perhaps the most infamous example is Michael Nava, who ran for San Francisco Superior Court judge in 2010. His chosen given name, Zhengping, translates to “correct and fair” — tailor-made for someone running for judge. And his surname, Li, made him recognizable to Chinese voters. (Nava still lost the election).

Attorney General Kamala Harris, now a candidate for U.S. Senate, also took major liberties with her Chinese name — He Jinli. Her given name, which sounds nothing like Kamala, translates to “intricate and beautiful,” and her surname means “celebrate.”

Some Chinese candidates, who don’t have the benefit of re-creating their name to gain a political advantage, become frustrated, said former supervisor and now state Board of Equalization member Fiona Ma, or Ma Shiyun. Her surname means “horse,” and her given name means “worldly cloud.”

“If you are running against someone and you’re Chinese, you have to use your name. My name sounds masculine. And someone picks out ‘beautiful golden child.’ It’s not really fair,” Ma said.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Right on Time: Sen. Grassley Starts to Cave on Garland #SCOTUS Confirmation in Lame Duck<http://electionlawblog.org/?p=86006>
Posted on August 30, 2016 8:32 am<http://electionlawblog.org/?p=86006> by Rick Hasen<http://electionlawblog.org/?author=3>

I’ve long said I expect Judge Garland to be confirmed in lame duck, if, as expected, Clinton wins the presidency and Democrats narrowly take over the Senate. The bet would be that Garland is both older and more moderate than whoever Clinton would nominate instead of Garland (and no, I don’t expect Obama to withdraw Garland’s nomination or Garland to withdraw).

Now, via Zoe Tillman<https://twitter.com/ZoeTillman/status/770619410029699072>, comes this story<http://globegazette.com/news/iowa/grassley-says-surprising-trump-victory-can-happen/article_e054e643-d8f3-55e7-9528-12ee0f90fbec.html> of a local rotary club Q&A with Senator Grassley, the Senate Judiciary chair, who has said it, like Sen. Majority leader McConnell, that it is up to the next president to choose the Supreme Court nominee:

Grassley said there has been a well-accepted “understanding” in Senate since 1987 that no Supreme Court vacancies should be filled in the final year of a presidential term.

“It had nothing to do with Garland (personally),” Grassley said.

Grassley said the only way his stance could change is if a large number of senators strongly urged him to consider the nomination during a so-called “lame-duck session” of Congress, during the time after the Nov. 8 election and before the new Congress takes office in January.

Watch this crack in the wall grow larger.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


7th Circuit Clerk’s Office Won’t Comment on Why 9th Judge Joined WI Voter ID En Banc<http://electionlawblog.org/?p=86004>
Posted on August 30, 2016 8:27 am<http://electionlawblog.org/?p=86004> by Rick Hasen<http://electionlawblog.org/?author=3>

Cristian Farias of HuffPo called the clerk’s office after my post, Strange Goings On in 7th Circuit En Banc WI Voter ID Case: A 9th Vote Appears<http://electionlawblog.org/?p=85988&utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+electionlawblog%2FuqCP+%28Election+Law%29>.

The response: <https://twitter.com/cristianafarias/status/770625852572700672> “We don’t know, and they won’t tell us.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“When Is a Scandal Really a Scandal?”<http://electionlawblog.org/?p=86001>
Posted on August 30, 2016 8:24 am<http://electionlawblog.org/?p=86001> by Rick Hasen<http://electionlawblog.org/?author=3>

Emma Roller<http://www.nytimes.com/2016/08/30/opinion/campaign-stops/when-is-a-scandal-really-a-scandal.html?_r=1> and the Clinton Foundation and the sale of access.

I touched on this in my USA Today piece<http://www.usatoday.com/story/opinion/2016/08/24/even-trump-and-clinton-need-big-money-donors-column/89229902/> last week.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Criminal Justice George Soros’ quiet overhaul of the U.S. justice system”<http://electionlawblog.org/?p=85999>
Posted on August 30, 2016 8:21 am<http://electionlawblog.org/?p=85999> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<http://www.politico.com/story/2016/08/george-soros-criminal-justice-reform-227519>:

While America’s political kingmakers inject their millions into high-profile presidential and congressional contests, Democratic mega-donor George Soros has directed his wealth into an under-the-radar 2016 campaign to advance one of the progressive movement’s core goals — reshaping the American justice system.

The billionaire financier has channeled more than $3 million into seven local district-attorney campaigns in six states over the past year — a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors.

Who says the left doesn’t have its share of Plutocrats?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>


Why Didn’t Justice Kennedy Go to Salzburg This Summer?<http://electionlawblog.org/?p=85997>
Posted on August 30, 2016 8:16 am<http://electionlawblog.org/?p=85997> by Rick Hasen<http://electionlawblog.org/?author=3>

Fix the Court<http://fixthecourt.com/2016/08/scotus-is-still-out-for-the-summer-but-were-not/> has tracked the Justices’ summer travel, but this from their email blast caught my eye (in bold, my emphasis):

Supreme Court justices’ travel – summer 2016

Chief Justice John Roberts

No public events



Justice Anthony Kennedy

July 11: Speaking engagement; Big Sky, Montana; Ninth Circuit Judicial Conference, host

Note: Justice Kennedy did not make his customary trip to teach in Salzburg this summer (confirmed by McGeorge School of Law press office)



Justice Clarence Thomas

June 26-July 21: Teaching engagement; Nice, France; Thomas Jefferson School of Law and University of Nice School of Law, hosts



Justice Ruth Bader Ginsburg

July 16: Cultural engagement; Castleton, Virginia; Castleton Festival, host

Mid-July (undetermined date): Speaking engagement; Barcelona, Spain; NYU, host

July 27: Cultural engagement; Venice, Italy; host unclear

August 4: Speaking engagement; Washington, D.C.; Duke Law School and Jones Day, hosts

August 19: Speaking engagement; Santa Fe, New Mexico; State Bar of New Mexico, host

August 26: Cultural engagement; Cooperstown, New York; Glimmerglass Festival, host

September 14: Speaking engagement; McLean, Virginia; Association of Corporate Counsel, host

September 21: Speaking engagement; New York, New York; Temple Emanu-El, host



Justice Stephen Breyer

July 13-14: Speaking engagement; Sun Valley, Idaho; Sun Valley Writers’ Conference, host

September 29: Speaking engagement; Portsmouth, New Hampshire; New Hampshire Public Radio and The Music Hall, hosts



Justice Samuel Alito

July 25-27: Teaching engagement; Paris, France; Tulane University Law School, host



Justice Sonia Sotomayor

July 4: Speaking engagement; Orient, New York; Oysterponds Historical Society, host

August 14: Speaking engagement; Fairbanks, Alaska; University of Alaska Fairbanks, host

August 17: Speaking engagement; Anchorage, Alaska; Alaska Bar Association, host

September 1: Speaking engagement; Colorado Springs, Colorado; Tenth Circuit Bench and Bar, host

September 1: Speaking engagement; Denver, Colorado; Metropolitan State University of Denver, host

September 2: Speaking engagement; Boulder, Colorado; Byron R. White Center at Colorado Law School, host

September 8: Speaking engagement; Madison, Wisconsin; University of Madison-Wisconsin, host

September 17: Speaking engagement; New York, New York; Just The Beginning Foundation, host

September 22: Awards reception; Washington, D.C.; Hispanic Heritage Foundation, host



Justice Elena Kagan

August 10: Speaking engagement; Washington, D.C.; Harvard Club of Washington and Hogan Lovells, hosts

August 31: Speaking engagement; Tucson, Arizona; University of Arizona College of Law, host

September 2: Speaking engagement; Colorado Springs, Colorado; Tenth Circuit Bench and Bar, host

September 8: Speaking engagement; Cambridge, Massachusetts; Harvard Law School, host

September 15: Awards reception; Louisville, Kentucky; University of Louisville Brandeis School of Law, host
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Posted in Celebrity Justice<http://electionlawblog.org/?cat=109>, Supreme Court<http://electionlawblog.org/?cat=29>


This Week’s Goldfeder Presidential Trivia Quiz<http://electionlawblog.org/?p=85995>
Posted on August 30, 2016 8:14 am<http://electionlawblog.org/?p=85995> by Rick Hasen<http://electionlawblog.org/?author=3>

Here you go.<http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“When the Law Can Seem a Bit Much, Mutch Explains”<http://electionlawblog.org/?p=85993>
Posted on August 30, 2016 8:13 am<http://electionlawblog.org/?p=85993> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Bauer<http://www.moresoftmoneyhardlaw.com/2016/08/law-can-seem-bit-much-mutch-explains/> on Bob Mutch’s new book, Campaign Finance: What Everyone Needs to Know.<https://www.amazon.com/Campaign-Finance-Everyone-Needs-Know%C2%AE/dp/0190274689> I’m looking forward to reading it.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“How the Senate could safeguard the election”<http://electionlawblog.org/?p=85991>
Posted on August 30, 2016 8:11 am<http://electionlawblog.org/?p=85991> by Rick Hasen<http://electionlawblog.org/?author=3>

Josh Douglas<http://www.cnn.com/2016/08/30/opinions/scotus-vacancy-impact-election-douglas/index.html> for CNN:
This problem could be calamitous. If we have another post-election dispute such as Bush v. Gore, then the court could deadlock 4-4<http://www.courier-journal.com/story/opinion/2016/03/30/what-if-eight-justices-must-decide-election/82429970/>. The result in Trump v. Clinton would then affirm whatever lower court heard the case — likely a state supreme court. Most state supreme court justices are elected.
Therefore, without a full bench on the US Supreme Court, the presidential election could come down to some elected judges in a swing state. That is no way to run a democracy. To be sure, many people view the Supreme Court’s 5-4 decision in Bush v. Gore as incorrect, but at least we had a judicial body that covers the entire country resolve the lingering dispute. This helped to provide finality and certainty.
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Posted in 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
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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