[EL] more news 2/12/16
Rick Hasen
rhasen at law.uci.edu
Fri Feb 12 15:52:00 PST 2016
EAC’s Brian Newby Sued for Citizenship Form Decision
<http://electionlawblog.org/?p=79898>
Posted onFebruary 12, 2016 3:24 pm
<http://electionlawblog.org/?p=79898>byRick Hasen
<http://electionlawblog.org/?author=3>
Release:
U.S. Election Assistance Commission Executive Director Brian D.
Newby’s action to allow three states to require documentary proof of
citizenship on the federal voter registration form is illegal,
argued the League of Women Voters of the United States, along with
its Alabama, Georgia, and Kansas state Leagues, and others in a
suitfiled today
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91806&qid=7957011>in
federal court.
Civil rights groups the Georgia NAACP, the Georgia Coalition for the
People’s Agenda, and Project Vote, along with Marvin Brown and JoAnn
Brown, also join the suit against the U.S. Election Assistance
Commission (EAC).
“Voters should not have to face an obstacle course in order to
participate in our democracy,” said*Elisabeth MacNamara*, national
League president. “We had hoped that a reconstituted EAC would focus
on improving election administration. This action by the executive
director would make the election system worse. His action challenges
the impartiality of the Commission.”
In 2013, the Supreme Court ruled that Arizona could not require
documentary proof of citizenship on the federal registration form
without EAC approval. Kansas implemented a law similar to Arizona’s
the same year, and both states put proof of citizenship requirements
into effect for voters using their state forms. Subsequently, the
EAC and a federal court ruled it invalid for the federal form.
Alabama and Georgia, which passed similar provisions in 2011 and
2009, respectively, had not implemented their laws. Research shows7
percent of voters
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91800&qid=7957011>do
not have documentary proof of citizenship, andtens of thousands of
Kansans
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91801&qid=7957011>have
been blocked from registering to vote in the state.
On January 29, 2016, Newby sent letters to the secretaries of state
of Alabama, Georgia, and Kansas stating, without further
explanation, that he would allow the three states to require
citizenship documents for applicants using the federal registration
form. If the documents, such as birth certificates or passports, are
not provided, Americans will be denied the fundamental right to
vote. The federal form is designed to guarantee a “simple means of
registering to vote
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91802&qid=7957011>,”
and already requires applicants to swear that they are U.S. citizens
under penalty of perjury.
The executive director did not have authority to allow the three
states to enforce documentary proof of citizenship requirements on
the federal form, and doing so violated both EAC policy and federal
law, according to a complaint submitted today by the Brennan Center
for Justice at NYU School of Law
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91803&qid=7957011>with
pro bono counsel at Stroock & Stroock & Lavan LLP; the Lawyers’
Committee for Civil Rights Under Law and the American Civil
Liberties Union with pro bono counsel Steptoe & Johnson LLP; and
Project Vote with pro bono counsel Arnold & Porter LLP.
Documentary proof of citizenship requirements undermine the groups’
efforts to increase civic participation and make it more difficult
for individuals to vote, according to the court filing.
“This change was unauthorized and illegal, and is hugely detrimental
to voters in Alabama, Georgia, and Kansas,” said*Wendy Weiser*,
director of the Brennan Center’s Democracy program and
representation for the Leagues in this case. “With presidential
primaries fast approaching, these citizens deserve clarity on how —
or if — they can register to vote. This will bring unneeded
confusion and uncertainty during this presidential election year.”
“Stroock is proud to be part of the team challenging this highly
troubling move, which would implement unnecessary requirements
already ruled illegal by a federal court and the Election Assistance
Commission itself,” said*Michael Keats*of Stroock & Stroock & Lavan
LLP, which also represents the Leagues. “We are confident this
unlawful action will not be allowed to stand.”
“Documentary proof of citizenship requirements have caused havoc for
Kansas elections,” said *Marge Ahrens*, co-president of the Kansas
League. “Already, the League is scrambling to help the tens of thousands
of eligible Kansans caught up in this ill-advised regulation, and
complicating the federal form in this manner will make the problem even
worse.”
“Making eligible Alabamians show citizenship documents when registering
to vote would seriously undercut our efforts to sign up voters,”
said*Anne Permaloff*, president of the Alabama League. “Such an abrupt
change would also interfere with our efforts to educate the electorate
on how to navigate existing obstacles to voting, which are already
significant.”
“We are concerned this change will further complicate what should be a
straightforward process,” said*Elizabeth Poythress*, president of the
Georgia League. “This additional burden on the voter registration
process is unnecessary, unreasonable, and could effectively deny the
right to vote to thousands of Georgia citizens who are otherwise
eligible and entitled by law to vote.”
“We have successfully litigated two cases where we defeated attempts to
require unnecessary and burdensome proof of citizenship for Federal Form
applicants,” stated*Jon Greenbaum*, chief counsel for the Lawyers’
Committee for Civil Rights Under Law. “We expect to prevail a third time
in this case.”
“As an organization that has been registering citizens to vote for over
25 years, it is important that barriers to citizen participation be
removed,” said*Helen Butler,*Executive Director of the Georgia Coalition
for the Peoples’ Agenda. “We believe the requirement to provide proof of
citizenship to register to vote is an unnecessary barrier, especially
for communities of color.”
“This is a part of our ongoing post-Shelby election administration
monitoring across Georgia,” said*Francys Johnson*, Statesboro civil
rights attorney and Georgia NAACP state president. “This case is
illustrious of the insidious tricks, subterfuge, and attacks
eviscerating the gains achieved under the VRA and the NVRA. The NAACP
will mortgage every asset we have to defend the unfettered access to the
ballot. It was paid for with the blood, sweat and tears of our ancestors
— it’s sacred.”
“Brian Newby’s decision to unilaterally change the instructions on the
federal form to add new hurdles to voter registration is an outrage. He
did so without legal authority, without public notice, and in direct
opposition to the Election Assistance Commission’s repeated rejection of
such changes. His abuse of power is unacceptable and illegal,” said*Dale
Ho,*director of the ACLU’s Voting Rights Project.
“Mr. Newby’s decision is an abrupt and outrageous reversal of the EAC’s
previous position, which was already upheld by a federal appeals court,”
said*Michelle Kanter Cohen*, election counsel for Project Vote. “We will
continue to fight against documentary proof of citizenship requirements,
which are designed to cripple community voter registration drives and
limit who gets to have a say in our democracy.”
The suit is brought in response to Executive Director Newby’s sudden and
unexplained decision to allow three states to require applicants using
the federal registration form to show documents proving their citizenship.
Nearly identical requests from Arizona and Kansas have already been
rejected by the EAC multiple times. Last June, the U.S. Supreme
Courtturned down a petition
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91804&qid=7957011>from
Arizona and Kansas to hear/Kobach v. United States Election Assistance
Commission/
<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91805&qid=7957011>,
thereby letting stand a 10th Circuit ruling that the states may not
force applicants using the federal voter registration form to show
documents.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Can the Courts End Racial Gerrymandering?”
<http://electionlawblog.org/?p=79896>
Posted onFebruary 12, 2016 3:04 pm
<http://electionlawblog.org/?p=79896>byRick Hasen
<http://electionlawblog.org/?author=3>
To the Point:
<http://www.kcrw.com/news-culture/shows/to-the-point/can-the-courts-end-racial-gerrymandering>
The Constitution requires that the boundaries of congressional
districts be re-drawn every 10 years, according to the latest
census. In 2010, Republicans won control of legislatures all over
the country—and those GOP lawmakers then collectively increased
their Party’s power in Congress. When President Obama re-visited
the Illinois Capitol in Springfield this week, he said it’s time for
a change. The President’s talking about what’s called
Gerrymandering, a practice as old as the nation itself.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Legislature to begin work on new congressional maps Monday”
<http://electionlawblog.org/?p=79894>
Posted onFebruary 12, 2016 2:49 pm
<http://electionlawblog.org/?p=79894>byRick Hasen
<http://electionlawblog.org/?author=3>
News and Observer
<http://www.newsobserver.com/news/politics-government/state-politics/article60100716.html#emlnl=Breaking_News_Alerts>:
Moore and Senate leader Phil Berger said in a news release that they
still hope the U.S. Supreme Court will issue a stay that allows them
to avoid a lower court’s deadline next week to produce new maps.
But the court doesn’t act, the full House and Senate will return to
Raleigh on Thursday and Friday for a rare special session.
“Due to the extremely tight deadline imposed on us by the federal
trial court, we are being forced to hope for the best but prepare
for the worst,” Rep. David Lewis and Sen. Bob Rucho said in a joint
statement. “Hopefully, this is an unnecessary exercise since the
overwhelming majority of times our redistricting plans have been
reviewed, they have been validated as fair, legal and constitutional
– and we remain confident that the U.S. Supreme Court will issue a
stay.”
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Trump Tweets That He has Standing to Sue Cruz Over His Natural Born
Citizenship Status <http://electionlawblog.org/?p=79892>
Posted onFebruary 12, 2016 2:44 pm
<http://electionlawblog.org/?p=79892>byRick Hasen
<http://electionlawblog.org/?author=3>
Trump <https://twitter.com/realDonaldTrump/status/698231571594276866>:
It is possible that Trump could sue a registrar of voters who lists Ted
Cruz on the ballot, arguing that Cruz is not eligible to be President.
That is the kind of suit which does have the possibility of going
forward. (Certainly if Cruz were excluded from the ballot by a registrar
who said Cruz is ineligible, Cruz would have standing to sue over that).
Share
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“How Crossroads GPS beat the IRS and became a social welfare group”
<http://electionlawblog.org/?p=79890>
Posted onFebruary 12, 2016 2:43 pm
<http://electionlawblog.org/?p=79890>byRick Hasen
<http://electionlawblog.org/?author=3>
The detailed story fromRobert Maguire
<http://www.opensecrets.org/news/2016/02/how-crossroads-gps-beat-the-irs-and-became-a-social-welfare-group/>of
Open Secrets.
Michael Hiltzik
<http://www.latimes.com/business/hiltzik/la-fi-mh-a-cowed-irs-20160212-column.html>: A
cowed IRS gives a green light to more secret money in politics
Earlier, I wrote: Karl Rove’s Crossroads GPS manages to make it even
harder to find the dark money in U.S. politics
<http://www.latimes.com/opinion/op-ed/la-oe-hasen-green-light-for-more-dark-money-20160212-story.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
Kobach Defends EAC Director Decision on Citizenship
<http://electionlawblog.org/?p=79888>
Posted onFebruary 12, 2016 2:26 pm
<http://electionlawblog.org/?p=79888>byRick Hasen
<http://electionlawblog.org/?author=3>
TPM: <http://talkingpointsmemo.com/muckraker/kobach-proof-of-citizenship>
In an interview with TPM earlier this week, Kobach defended the move
and Newby’s authority to issue it. He denied that it was any special
favor from a former colleague, and said the state would have
requested the proof-of-citizenship requirement no matter who stepped
into the role of executive director of the commission.
“We had the letter drafted long before Newby was selected and it was
going to go to whoever the new executive director was,” Kobach said
when asked by TPM whether Newby’s appointment to the position played
a role in the state’s request to change the form. “We were just
waiting for an executive to be appointed, and whoever it was would
have gotten the same letter.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,fraudulent fraud squad
<http://electionlawblog.org/?cat=8>,NVRA (motor voter)
<http://electionlawblog.org/?cat=33>
“Wall Street’s presidential politics”
<http://electionlawblog.org/?p=79885>
Posted onFebruary 12, 2016 10:06 am
<http://electionlawblog.org/?p=79885>byRick Hasen
<http://electionlawblog.org/?author=3>
Marketplace
<http://www.marketplace.org/2016/02/11/elections/hillary-and-wall-street>:
Wall Street gave more than $100 million dollars to presidential
candidates and their super PACs in 2015.
“This is a massive amount of money,” said Sheila Krumholz, the
executive director of Center for Responsive Politics, which crunched
this data. “Finance is year after year, cycle after cycle, the
number one source of campaign cash.”
Democratic candidate Hillary Clinton’s campaign took in more
contributions from the securities and investment industry than any
other candidate last year – nearly $3 million. However, when tallies
include funds contributed to super PACs, Republican candidate Jeb
Bush easily takes the lead. His campaign and Right to Rise Super PAC
collected more than $34.5 million, double Clinton’s combined tally.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Constitution Check: Will a Sanders ‘political revolution’ overthrow
Citizens United?” <http://electionlawblog.org/?p=79883>
Posted onFebruary 12, 2016 10:03 am
<http://electionlawblog.org/?p=79883>byRick Hasen
<http://electionlawblog.org/?author=3>
Lyle Denniston blogs.
<http://blog.constitutioncenter.org/2016/02/constitution-check-will-a-sanders-political-revolution-overthrow-citizens-united/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“DNC rolls back Obama ban on contributions from federal lobbyists”
<http://electionlawblog.org/?p=79881>
Posted onFebruary 12, 2016 9:53 am
<http://electionlawblog.org/?p=79881>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/politics/dnc-allowing-donations-from-federal-lobbyists-and-pacs/2016/02/12/22b1c38c-d196-11e5-88cd-753e80cd29ad_story.html?hpid=hp_rhp-top-table-main_dnc-1100am%3Ahomepage%2Fstory>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,lobbying
<http://electionlawblog.org/?cat=28>
“Karl Rove Bamboozles the I.R.S.” <http://electionlawblog.org/?p=79879>
Posted onFebruary 12, 2016 9:45 am
<http://electionlawblog.org/?p=79879>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial.
<http://www.nytimes.com/2016/02/12/opinion/karl-rove-bamboozles-the-irs.html?_r=1>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,tax law and election law
<http://electionlawblog.org/?cat=22>
Bauer on Countering Super PACs, My Critique, and Political Equality
<http://electionlawblog.org/?p=79876>
Posted onFebruary 12, 2016 8:10 am
<http://electionlawblog.org/?p=79876>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob:
<http://www.moresoftmoneyhardlaw.com/2016/02/super-pacs-concerns-political-equality/>
At the same time, there is room for reform–some adjustment to the
regulatory process–that would account for the Super PACs’ emergence
and widening impact. Transparency measures can clearly identify for
the public those single-candidate Super PACs operating with the
candidate’s active support and involvement. Additional resources
could be made available to other actors–parties and others–that are
now more regulated than Super PACs and, and in part for that reason,
steadily losing ground to them. The goal would not be a deregulated
campaign finance system but one that is more rationally structured
and coherent.
Rick Hasenworries that <http://electionlawblog.org/?p=79724>the
“cure may be worse than the disease.” He is suspicious or concerned
that this is a move to restore the soft-money days that
McCain-Feingold was supposed to close out. But the proposal is not
inspired by special solicitude for parties. Parties are one of a
number of electorally active organizations that would benefit from
an infusion of resources but there is no case for making them the
only ones. Targeted regulatory relief should be available for other
membership-based organizations, and even to candidates when
conducting particular voter mobilization activities.
What Rick and others overlook, minimize, or dispute is the role of
reinvigorated associational activity in/enhancing/political
equality–in advancing the goal of “the quality of inputs” that Rick
champions. In his very good book,/Plutocrats United/, Rick does not
grapple with the dependence of political equality on organizing and
other means of building political strength on numbers, particularly
among the very population of citizens he is most concerned with:
those with modest resources. As Guy-Uriel Charles has summed up the
significance of association, its “main principle…is that of
effective aggregation: an individual must have a reasonable
opportunity to join with like-minded others for the purpose of
acquiring political power.” Guy-Uriel E. Charles,/Racial Identity,
Electoral Structures, and the First Amendment Right of Association/,
91 Cal. L. Rev. 1209, 1248-1249 (2003).
I hope to find time soon to respond to Bob’s very thoughtful post.
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>,political parties
<http://electionlawblog.org/?cat=25>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Reconsidering Substantive Canons” <http://electionlawblog.org/?p=79874>
Posted onFebruary 12, 2016 8:07 am
<http://electionlawblog.org/?p=79874>byRick Hasen
<http://electionlawblog.org/?author=3>
Anita Krishnakumar has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2724054>on SSRN.
Here is the abstract:
This paper provides the first empirical study of the Roberts Court’s
use of substantive canons in its statutory interpretation cases.
Based on data from 295 statutory interpretation cases decided by the
Roberts Court during its first six-and-a-half terms, the paper
argues that much of the conventional wisdom about substantive canons
of statutory construction is wrong, or at least overstated with
respect to the modern Supreme Court. Substantive canons — such as
the rule of lenity, the avoidance canon, or the presumption against
extraterritorial application of domestic laws — have long been
criticized as undemocratic judge-made rules that defeat
congressional intent, afford willful judges a convenient vehicle for
massaging different meanings out of the same text, and make
statutory interpretation unpredictable, because judges invent new
canons and reject old ones to suit their changing tastes. Scholars
have bemoaned the amount of work that substantive canons perform in
statutory interpretation cases and several have charged that
textualist judges, in particular, overuse such canons.
Whereas most previous studies have focused on the Rehnquist Court,
this paper reconsiders the substantive canons in light of new data
collected from the Roberts Court. The data show that contrary to the
conventional wisdom, substantive canons are infrequently invoked on
the modern Court — and that, even when invoked, they rarely play an
outcome-determinative role in the Court’s statutory constructions.
Indeed substantive canons often are referenced as an afterthought,
or add-on argument supplying minimal additional support to an
interpretation reached primarily through other interpretive tools.
Perhaps most surprisingly, textualist Justices rarely invoke
substantive canons in the opinions they author; indeed,
intentionalist Justice Stevens leads the Roberts Court in references
to such canons.
The paper also challenges scholars’ gloomy warnings that Justices in
the modern, New-Textualism-influenced era have replaced legislative
history with substantive canons as the go-to resource for
deciphering ambiguous statutory text. Rather, the data from the
Roberts Court show that most of the Justices referenced legislative
history at slightly, or even substantially, higher rates than they
referenced substantive canons. Moreover, the Court’s own precedents,
followed by practical-consequences-based reasoning — rather than
substantive canons or legislative history — seem to be the unsung
gap-filling mechanisms that the Justices turn to when confronted
with unclear statutory text. The paper first reports the findings
from my study of 295 Roberts Court cases and then explores the
theoretical implications of these findings for several leading
statutory interpretation theories and debates.
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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