[EL] ELB News and Commentary 1/4/16

[Rick Hasen]

    Key Election Law/Voting Rights/Campaign Finance Litigation to Watch
    in 2016 <http://electionlawblog.org/?p=78554>

Posted onJanuary 4, 2016 8:15 am 
<http://electionlawblog.org/?p=78554>byRick Hasen 
<http://electionlawblog.org/?author=3>

[/Bumping to the top for the new year/.]

I expect a lot of litigation over election issues in 2016, including 
emergency last minute litigation making it to the Supreme Court as part 
of whatWill Baude calls 
<http://www.nytimes.com/2015/02/03/opinion/the-supreme-courts-secret-decisions.html>the 
Supreme Court’s “shadow docket. 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130>” When that 
litigation makes it to the Supreme Court, perhaps as the date for 
printing ballots approach or early voting begins, the Court may continue 
to apply the “Purcell principle,” which has been to caution courts 
against making last minute changes in voting rules.  I’ve been pushing 
back against aggressive use of this principle, arguing that the Court 
needs to balance other factors too in handling emergency election 
litigation. See/Reining in the Purcell Principle/,/Florida State 
University Law Review/(forthcoming 2015) (draft available 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>).

In terms of pending litigation, here are the highlights of the most 
important cases:

 1. */North Carolina/.*Last summer there was a trial overNorth
    Carolina’s strict new voting rules
    <http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>,
    all except the voter id portion of that case, which was put on hold
    as North Carolina tweaked (and somewhat loosened its requirements).
    The lawsuit claims that the tightening of voting and registration
    rules violated both Section 2 of the Voting Rights Act and the U.S.
    Constitution’s guarantee of equal protection. From reports at the
    trial, the trial judge seemed skeptical of the claims. But no
    opinion has been forthcoming, even though many of us expected
    something in September or October. Meanwhile, the voter id portion
    of the case is set for trial, and there is a state case as well.
    Perhaps the federal court is waiting to roll voter id into a single
    opinion, but that might push things too far into election season.
    There will be an inevitable appeal to the Fourth Circuit, and this
    case could well end up at the Supreme Court too. (Moritz
    page<http://moritzlaw.osu.edu/electionlaw/litigation/LOWVv.Howard.php>for
    federal case.)
 2. /*Texas voter id.*/A trial court issued a massive opinion holding
    that Texas’s strict voter identification law violated both the
    Voting Rights Act and the U.S. Constitution. A Fifth Circuit panel,
    in a somewhat surprising decision, affirmed that Texas’s voter id
    law violated Section 2 of the Voting Rights Act, but ordered the
    case remanded for a narrower remedy to deal with the problem (rather
    than holding the law wholly unconstitutional). However, there has
    been a pending request from Texas for the entire Fifth Circuit to
    hear the case en banc. The en banc petition has been pending for
    months. I think this means it is fairly likely that en banc will be
    denied, and Texas will seek to take this case to the Supreme Court,
    which could well take the case, setting up a major test of the
    meaning of Section 2 of the Voting Rights Act in what Dan Tokaji has
    called thenew vote denial cases
    <http://harvardcrcl.org/wp-content/uploads/2015/11/Applying-Section-2-to-the-New-Vote-Denial.pdf>.
    (Moritz page.
    <http://moritzlaw.osu.edu/electionlaw/litigation/VeaseyV.Perry.php>)
 3. */Republican Party of Louisiana challenge to federal soft money
    ban/.* In /Citizens United, /the Supreme Court struck one of the
    McCain-Feingold law’s two pillars: the ban on corporate and labor
    union general treasury funding of sham issue ads/electioneering
    communications. Campaign finance opponent Jim Bopp has been angling
    to challenge the other pillar, the ban of party soft money, before
    the Supreme Court. After a few failed attempts, he now has
    maneuvered the case before a three-judge court in Washington D.C.,
    whichgreatly increases the odds
    <http://electionlawblog.org/?p=77857>the Supreme Court will take the
    case and kill party soft money. This is perhaps the most important
    election case to come in 2016, but it likely won’t make it to the
    Supreme Court before the 2016 elections. (FEC page
    <http://www.fec.gov/law/litigation/lagop.shtml>.)
 4. */Evenwel One person, one vote case/. *This case was argued at the
    Supreme Court earlier in December, and a decision is expected by
    June. I amnot worried <http://electionlawblog.org/?p=77988>that the
    Supreme Court will side with the plaintiffs and require
    jurisdictions to redistrict using total voters rather than total
    population (a move which would shift lots of power to rural,
    Republican areas). Noram I worried
    <http://www.latimes.com/opinion/op-ed/la-oe-1210-hasen-evenwel-voting-district-20151208-story.html>that
    the Court will require jurisdictions to draw districts which
    equalize both total voters and total population. But I have heard
    from a lot of Democrats who are worried that the Court will affirm
    the right of jurisdictions to choose total voters or total
    population (which is what I’ve always thought the law is now), and
    that places like Texas will try to do this in their next round of
    redistricting, to try to get rid of some more Democratic/Latino
    districts. That would set up a new round of lawsuits, and a possible
    clash between constitutional principles and the Voting Rights Act.
    (SCOTUSBlog page
    <http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/?wpmp_switcher=desktop>.)
 5. */Redistricting cases/*. As we enter the second half of the decade,
    redistricting litigation is still going strong. The Supreme Court in
    theHarris case
    <http://www.scotusblog.com/case-files/cases/harris-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>is
    considering when partisanship in redistricting can limit deviations
    from perfect population equality in drawing districts. The Court is
    also hearing aracial gerrymandering case
    <http://www.scotusblog.com/case-files/cases/wittman-v-personhuballah/>out
    of Virginia, a follow on to the Alabama redistricting case of last
    year. (I discuss the Alabama case, and the follow on racial
    gerrymandering cases in/Racial Gerrymandering’s Questionable
    Revival,//Alabama Law Review/(forthcoming 2015) (draft available
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>).)
    Racial gerrymandering cases may also hit the Court from North
    Carolina, another from Virginia, and the Alabama case on a return
    trip. Meanwhile, the never-ending litigation over whether Texas’s
    redistricting violates the Voting Rights Actawaits decision before a
    three-judge court<http://electionlawblog.org/?p=77373>in San
    Antonio. (Moritz page
    <http://moritzlaw.osu.edu/electionlaw/litigation/PerezVTexas.php>for
    Texas case.) There is also new life breathed into partisan
    gerrymandering claims, inWisconsin
    <http://electionlawblog.org/?p=78439>andMaryland
    <http://electionlawblog.org/?p=78127>.
 6. */Voting Wars litigation/.*Marc Elias, who is Hillary Clinton’s
    campaign lawyer, has brought a series of cases (not on behalf of
    Clinton but supported by the Clinton campaign) challenging
    restrictions in voting rules inWisconsin
    <http://electionlawblog.org/?p=72945>,Ohio
    <http://electionlawblog.org/?p=72382>, and elsewhere. The casesare
    controversial <http://electionlawblog.org/?p=73441>in the voting
    rights community, who worry they could set some bad precedents. In
    Ohio, for example, the ACLU settled a suit raising similar claims to
    the one Elias brought a few months before Elias filed this suit.
    These cases could heat up on an emergency basis as the 2016 election
    approaches, and end up before the Supreme Court.

Lots to watch to 2016.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election 
administration <http://electionlawblog.org/?cat=18>,redistricting 
<http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    “Colorado ethics commission has no investigators, little authority”
    <http://electionlawblog.org/?p=78687>

Posted onJanuary 4, 2016 8:15 am 
<http://electionlawblog.org/?p=78687>byRick Hasen 
<http://electionlawblog.org/?author=3>

Denver Post: 
<http://www.denverpost.com/news/ci_29339830/colorado-ethics-commission-has-no-investigators-little-authority>

    The Colorado Independent Ethics Commission, approved by voters in
    2006, struggles to do its work for lack of authority, resources and
    money, say critics who include former administrators.

    Its limitations have made what might have been a graft-busting
    agency a panel of five political appointees who give their opinions
    and, at worst, charge a fine of double the amount of money in question.

    The commission has declined to hear 86.8 percent of the complaints
    it has received since it was created.

    Unless a public official or government employee received a gift
    worth more than $53 or seeks a job as a lobbyist, there’s little
    else the commission concerns itself with.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “‘Super PACs’ Still Have Time to Serve as Candidates’ Attack Dogs”
    <http://electionlawblog.org/?p=78685>

Posted onJanuary 4, 2016 8:11 am 
<http://electionlawblog.org/?p=78685>byRick Hasen 
<http://electionlawblog.org/?author=3>

Maggie Haberman 
<http://www.nytimes.com/politics/first-draft/2016/01/04/super-pacs-still-have-time-to-serve-as-candidates-attack-dogs/>for 
the NYT:

    Months after it became clear that “super PACs” could not, in fact,
    supplant the core functions of a campaign, several of the
    unlimited-money groups that are backing presidential candidates are
    reverting to 2012 form — with a series of blistering attack ads.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Numbers don’t support Will Kraus’ statement on voter fraud”
    <http://electionlawblog.org/?p=78683>

Posted onJanuary 4, 2016 8:08 am 
<http://electionlawblog.org/?p=78683>byRick Hasen 
<http://electionlawblog.org/?author=3>

Politifact 
Missouri<http://www.politifact.com/missouri/statements/2016/jan/04/will-kraus/numbers-dont-support-will-kraus-statement-voter-fr/>says 
Half True.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,fraudulent fraud squad 
<http://electionlawblog.org/?cat=8>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    “N.H.’s Voter ID Law Remains Big Unknown for Presidential Primary
    Day” <http://electionlawblog.org/?p=78681>

Posted onJanuary 4, 2016 8:05 am 
<http://electionlawblog.org/?p=78681>byRick Hasen 
<http://electionlawblog.org/?author=3>

New Hampshire Public Radio reports. 
<http://nhpr.org/post/nhs-voter-id-law-remains-big-unknown-presidential-primary-day>

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>


    “Republican bill seeks to limit local photo ID cards”
    <http://electionlawblog.org/?p=78679>

Posted onJanuary 4, 2016 7:55 am 
<http://electionlawblog.org/?p=78679>byRick Hasen 
<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel: 
<http://www.jsonline.com/news/statepolitics/republican-bill-seeks-to-limit-local-photo-id-cards-b99642472z1-364007741.html>

    A pair of Republican lawmakers are circulating a proposal that would
    prohibit county and town governments from issuing — or spending
    money on — photo identification cards.

    The legislation would also bar photo ID cards issued by cities or
    villages from being used for things like voting or obtaining public
    benefits, such as food stamps.

    Critics say the legislation is an attack on local control and is
    targeting a plan recently approved bycity
    <http://www.jsonline.com/news/milwaukee/common-council-set-to-vote-tuesday-on-budget-b99608127z1-339449121.html>andcounty
    <http://www.jsonline.com/news/milwaukee/county-supervisors-propose-local-id-cards-for-those-without-licenses-b99603858z1-337248691.html>officials
    in Milwaukee to issue local identification cards to the homeless,
    immigrants in the country illegally and other residents unable to
    obtain state driver’s licenses or other government-issued ID cards.
    They also say the bill is an example of anti-immigrant discrimination.

    The measure’s sponsors, state Sen. Van Wanggaard (R-Racine) and
    state Rep. Joe Sanfelippo (R-New Berlin), say they’re trying to
    fight fraud and prevent confusion.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>


    “Judge’s ruling a mixed bag for those challenging voter ID law”
    <http://electionlawblog.org/?p=78677>

Posted onJanuary 4, 2016 7:53 am 
<http://electionlawblog.org/?p=78677>byRick Hasen 
<http://electionlawblog.org/?author=3>

The Milwaukee Journal-Sentinel reports. 
<http://www.jsonline.com/news/statepolitics/judges-ruling-a-mixed-bag-for-those-challenging-voter-id-law-b99644007z1-364062231.html>

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>


    “‘Dark’ Funds May Bode Ill in 2016 Election”
    <http://electionlawblog.org/?p=78675>

Posted onJanuary 4, 2016 7:48 am 
<http://electionlawblog.org/?p=78675>byRick Hasen 
<http://electionlawblog.org/?author=3>

Al Hunt writes 
<http://www.nytimes.com/2016/01/04/us/politics/dark-funds-may-bode-ill-in-2016-election.html?smid=tw-share&_r=1>for 
Bloomberg View.

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


    “The Next Big Voting-Rights Fight” <http://electionlawblog.org/?p=78671>

Posted onDecember 31, 2015 1:58 pm 
<http://electionlawblog.org/?p=78671>byRick Hasen 
<http://electionlawblog.org/?author=3>

Emily Bazelon and Jim Rutenberg discuss the Evenwel caseat the /New York 
Times/ Magazine 
<http://www.nytimes.com/2015/12/31/magazine/the-next-big-voting-rights-fight.html>, 
as part of their “Disenfranchised” Series.

Thanks to them for linking to acouple 
<https://electionlawblog.org/?p=72858>of myposts 
<https://electionlawblog.org/?p=77988>on this “one person, one vote” case.

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>


    More Disarray on Wisconsin Supreme Court
    <http://electionlawblog.org/?p=78669>

Posted onDecember 31, 2015 10:51 am 
<http://electionlawblog.org/?p=78669>byRick Hasen 
<http://electionlawblog.org/?author=3>

This time 
<http://www.jsonline.com/news/statepolitics/state-high-court-wrangles-on-judicial-commission-appointment-b99643323z1-363928571.html>over 
the Justices’ voting for who should serve on the Commission to 
discipline judicial misconduct.

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Posted injudicial elections <http://electionlawblog.org/?cat=19>


    “Trump’s Va. campaign threatens legal action against state GOP”
    <http://electionlawblog.org/?p=78667>

Posted onDecember 31, 2015 8:46 am 
<http://electionlawblog.org/?p=78667>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here we go. 
<http://www.richmond.com/news/virginia/government-politics/article_b289d3fe-e438-5941-85a1-1cd3c6138b43.html>

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Posted inpolitical parties 
<http://electionlawblog.org/?cat=25>,primaries 
<http://electionlawblog.org/?cat=32>


-- 
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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