[EL] ELB News and Commentary 1/25/16
Rick Hasen
rhasen at law.uci.edu
Sun Jan 24 19:32:32 PST 2016
“How Mike Bloomberg could win as independent presidential candidate”
<http://electionlawblog.org/?p=79242>
Posted onJanuary 24, 2016 5:03 pm
<http://electionlawblog.org/?p=79242>byRick Hasen
<http://electionlawblog.org/?author=3>
Rob Richie
<http://www.huffingtonpost.com/rob-richie/how-mike-bloomberg-could_b_9065804.html>:
This weekend news broke
<http://www.nytimes.com/2016/01/24/nyregion/bloomberg-sensing-an-opening-revisits-a-potential-white-house-run.html?_r=0>that
former New York City mayor Mike Bloomberg is exploring a potential
independent bid for president. A Morning Consult poll
<https://morningconsult.com/2016/01/new-poll-could-bloomberg-win/> shows
his appeal is at this point limited to about 15%, but it’s early.
Both major party nominations are in play, and with billions of
dollars and a proven record in business and politics, Bloomberg
could be a formidable candidate after introducing himself in ads,
media coverage and the debates to the many voters who don’t know
much about him.
Bloomberg isn’t alone, of course. Former U.S. Senator Jim Webb has
been floating the potential of an independent bid, some suggest
Donald Trump might run as an independent if failing to win the
Republican nomination, and the Greens and Libertarians are among
minor parties who will field candidates on the ballot in most
states. More voter choice is healthy for our politics, and better
reflects the diversity of opinion and interests in modern America.
Although our antiquated “plurality” voting system is far less
equipped to handle better voice choice than proven alternatives like
ranked choice voting <http://www.fairvote.org/rcv>, some analysts
like Norm Ornstein in the/Washington Post/
<https://www.washingtonpost.com/opinions/a-strong-independent-presidential-candidate-would-be-a-nightmare/2016/01/21/2a7985f4-be00-11e5-9443-7074c3645405_story.html> are
too quick to dismiss the chances of an independent winning within
our current voting rules.
Ornstein in his oped focuses on alleged barriers created by the
Electoral College. He postulates that if an independent candidate
and the major party nominees each won about a third of the vote, “no
candidate would come close to the majority of 270 required, under
the Constitution, for victory,” thereby throwing the choice of
president to Congress and its bizarre rules of the Senate picking
the vice-president based on one Senator, one vote and the House
picking the president based on one vote per state delegation.
But Ornstein’s “nightmare” is overheated. In order to give an idea
of what might happen when a presidential election features a strong
third candidate, FairVote simulated the results of a better
performance by Texan Ross Perot when in 1992 he earned 18.9% of the
vote again winner Bill Clinton (43%) and Republican incumbent George
Bush (37.5%.).
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Posted inalternative voting systems
<http://electionlawblog.org/?cat=63>,electoral college
<http://electionlawblog.org/?cat=44>,third parties
<http://electionlawblog.org/?cat=47>
“NC voter ID trial opens in Winston-Salem”
<http://electionlawblog.org/?p=79240>
Posted onJanuary 24, 2016 3:37 pm
<http://electionlawblog.org/?p=79240>byRick Hasen
<http://electionlawblog.org/?author=3>
New and Observer
<http://www.newsobserver.com/news/politics-government/state-politics/article56372765.html>:
Many in North Carolina may begin their Monday morning assessing
what, if any, obstacles were left behind by the winter storm that
covered the state with snow and ice.
In a federal courtroom in Winston-Salem, U.S. District Judge Thomas
Schroeder will open the work week to assess whether a very different
obstacle exists — one that the NAACP, the U.S. Justice Department
and many Democrats contend will have a chilling effect long after
the melting of the snow and ice.
The trial over North Carolina’s voter ID law is set to begin Monday
in front of Schroeder, a federal judge since 2008 who was appointed
to the bench by President George W. Bush.
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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>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Trial to start in lawsuit over North Carolina’s voter-ID law”
<http://electionlawblog.org/?p=79238>
Posted onJanuary 24, 2016 3:31 pm
<http://electionlawblog.org/?p=79238>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<https://www.washingtonpost.com/world/national-security/trial-to-start-over-north-carolinas-voter-id-law/2016/01/24/fac97d20-c1d1-11e5-9443-7074c3645405_story.html>:
Rosanell Eaton still remembers the day 70 years ago when she
traveled two hours with her mother in a mule-drawn wagon to register
to vote at the county courthouse. Before she could, she was forced
to take a literacy test.
“What are you here for, little lady?” Eaton recalls a man at the
courthouse asking her. When she told him, he instructed her, “Don’t
miss a word, and speak the preamble of the Constitution of the
United States of America.”
“Without missing a word, I did it,” she said.
Now 94, the North Carolina resident has voted in every election
since and worked to register thousands of others to cast their own
ballots. But last year, because of a new state voting law, Eaton
said she and her daughter had to make 10 trips to the Division of
Motor Vehicles, drive more than 200 miles and spend more than 20
hours to obtain one of the required forms of voter identification
because the name on her identifying document, her driver’s license,
did not exactly match that on her voter registration.
The photo ID rules — part of one of the strictest voting laws in the
country — will go on trial in a federal courthouse Monday in the
first battle over the ballot this presidential year.
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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>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“A strong independent presidential candidate would be a nightmare”
<http://electionlawblog.org/?p=79236>
Posted onJanuary 24, 2016 10:14 am
<http://electionlawblog.org/?p=79236>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read @NormOrnstein
<https://www.washingtonpost.com/opinions/a-strong-independent-presidential-candidate-would-be-a-nightmare/2016/01/21/2a7985f4-be00-11e5-9443-7074c3645405_story.html>in
WaPo:
One of the most enduring themes in U.S. presidential politics is the
fantasy of a knight in shining armor emerging to vanquish pretenders
on both sides and lead the country to a world free from
polarization, pandering and partisan manipulation. Actually, it is
more a nightmare than a fantasy — and it is playing out this
election cycle in ways that could be dangerous and deleterious….
But what would that mean in practice? For an independent candidate,
at best, it would mean three candidates splitting the popular vote,
probably roughly a third apiece, with the independent edging out the
others with perhaps 35 percent. But that would mean little for the
outcome. Presidential contests are decided by electoral votes. An
independent might well secure some electoral votes, but in such a
race, no candidate would come close to the majority of 270 required,
under the Constitution, for victory.
What then? The Constitution says that if no candidate gets a
majority of electoral votes, the election moves to the House of
Representatives, among the top three electoral vote-getters. There
is a twist: House members do not vote individually but by state, a
majority of which are required to select the president. Currently,
33 states have House delegations that are majority-Republican; three
are evenly split; and Democrats control 14. There are no
independents — zero, nada — in the House. The numbers, of course,
could change in the fall elections, but the chances of having any
states controlled by independents, indeed of having any independents
at all in the House, are close to nil. And given the margins of
control in most states, the dominance of majority-Republican
delegations isn’t likely to change.
The states themselves would have to caucus individually to determine
how their votes would be cast. Members might vote for the winner of
the popular vote, or the winner of the vote in their own districts,
or the winner of the vote in their states, or based on partisan
loyalty. Multiple ballots could be required. But the odds would be
great that, in the end, the House would choose the candidate whose
party controlled the most delegations.
Whatever the outcome — an independent ultimately elected president
but without a single lawmaker with any attachment to him or her; or
a partisan, probably a Republican, chosen primarily because of the
partisan tilt of gerrymandered districts — it would not be healthy
for the country. A president elected this way would limp into office
lacking legitimacy via a process ripe for logrolling and corrupt
bargaining. (Read the history of the1824 election
<http://www.washingtonpost.com/wp-srv/politics/campaigns/junkie/archive/junkie091500.htm>,
for example.)
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Posted incampaigns <http://electionlawblog.org/?cat=59>,electoral
college <http://electionlawblog.org/?cat=44>,third parties
<http://electionlawblog.org/?cat=47>
“N.C.’s controversial voter ID law goes on trial; nation watches”
<http://electionlawblog.org/?p=79234>
Posted onJanuary 24, 2016 10:11 am
<http://electionlawblog.org/?p=79234>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Hewlett curtain-raiser
<http://www.journalnow.com/news/elections/n-c-s-controversial-voter-id-law-goes-on-trial/article_a0aeb6fd-034e-557e-bff5-e9788375a3e0.html>for
the /Winston-Salem Journal./
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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>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Bloomberg, Sensing an Opening, Revisits a Potential White House
Run” <http://electionlawblog.org/?p=79232>
Posted onJanuary 23, 2016 4:27 pm
<http://electionlawblog.org/?p=79232>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2016/01/24/nyregion/bloomberg-sensing-an-opening-revisits-a-potential-white-house-run.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0>:
Michael R. Bloomberg
<http://topics.nytimes.com/top/reference/timestopics/people/b/michael_r_bloomberg/index.html?inline=nyt-per>has
instructed advisers to draw up plans for a potential independent
campaign in this year’s presidential race. His advisers and
associates said he was galled byDonald J. Trump’s
<http://www.nytimes.com/topic/person/donald-trump?8qa> dominance of
the Republican field, and troubled by Hillary Clinton’s stumbles and
the rise of Senator Bernie Sanders of Vermont on the Democratic side.
Mr. Bloomberg,the billionaire former mayor of New York City
<http://www.nytimes.com/topic/person/michael-bloomberg?8qa>, has in
the past contemplated running for the White House on a third-party
ticket, but always concluded he could not win. A confluence of
unlikely events in the 2016 election, however, has given new impetus
to his presidential aspirations.
Mr. Bloomberg, 73, has already taken concrete steps toward a
possible campaign, and has indicated to friends and allies that he
would be willing to spend at least $1 billion of his fortune on it,
according to people briefed on his deliberations who spoke on the
condition of anonymity because they were not authorized to discuss
his plans. He has set a deadline for making a final decision in
early March, the latest point at which advisers believe Mr.
Bloomberg could enter the race and still qualify to appear as an
independent candidate on the ballot in all 50 states.
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaign
finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Michigan Progressives Find Their Inner Citizens United”
<http://electionlawblog.org/?p=79230>
Posted onJanuary 23, 2016 4:16 pm
<http://electionlawblog.org/?p=79230>byRick Hasen
<http://electionlawblog.org/?author=3>
Steve Klein
oped<http://www.detroitnews.com/story/opinion/2016/01/22/michigan-election-gag-order/79214120/>in
the /Detroit News/:
Gov. Rick Snyder signed a comprehensive campaign finance bill into
law on Jan. 6, Senate Bill 571. It generated quite the clamor,
including accusations that the bill includes a “gag order” against
public officials.
We live in a time of significant campaign finance deregulation,
largely the result of free speech rulings by the U.S. Supreme Court
in cases like Citizens United v. Federal Election Commission.
Progressives and so-called campaign finance reformers often claim
that the case and permissive campaign laws are “tamper(ing) with our
democracy
<http://www.mlive.com/lansing-news/index.ssf/2016/01/gov_rick_snyder_signs_campaign.html>.”
But their ire against Michigan’s new law is ironic to the point of
hilarity. Indeed, progressives have finally found their inner
Citizens United and the value of free speech over campaign finance
regulations.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Politicians Sue Colorado Mom into Silence Over Newspaper Ads”
<http://electionlawblog.org/?p=79228>
Posted onJanuary 22, 2016 3:06 pm
<http://electionlawblog.org/?p=79228>byRick Hasen
<http://electionlawblog.org/?author=3>
Release:
<http://ij.org/press-release/politicians-sue-colorado-mom-into-silence-over-newspaper-ads/>
On January 21, 2016, a concerned Colorado citizen joined with the
Institute for Justice (IJ) to file a federal lawsuit
<http://ij.org/wp-content/uploads/2016/01/CO-Complaint-IJ075162xA6322.pdf>against
the Colorado secretary of state, seeking to ensure that anyone in
Colorado can speak freely about the political issues that matter to
them without fear of being hauled off to court. The case is/Tammy
Holland v. Wayne W. Williams/.
Last September, Tammy Holland, a mom from Strasburg, Colorado, took
out two ads in her local newspaper,/The I-70 Scout/. The ads alerted
the public to an upcoming school board election and urged voters to
familiarize themselves with all of the candidates, including the six
candidates who would be competing with incumbent school board
members. Tammy did not endorse any particular candidate; she just
wanted voters to know their options. For the ads, Tammy found
herself sued not once, but twice, by school board officials who
sought to silence her speech.
See also thisPaul Sherman oped
<http://www.denverpost.com/opinion/ci_29409903/guest-commentary-fighting-colorados-campaign-finance-vigilantes>in
the Denver Post and this piece in theColorado Independent.
<http://www.coloradoindependent.com/157191/colorado-money-in-politics-lawuit>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Virginia Urges Supreme Court to Let Redistricting Plan Stand”
<http://electionlawblog.org/?p=79226>
Posted onJanuary 22, 2016 3:01 pm
<http://electionlawblog.org/?p=79226>byRick Hasen
<http://electionlawblog.org/?author=3>
Roll Call
<http://www.rollcall.com/news/virginia_urges_supreme_court_to_let_redistricting_plan_stand-245556-1.html>:
Virginia’s election officials urged the Supreme Court on Thursday to
keep in place a new, judge-selected redistricting plan for this
year’s congressional elections, putting the officials at odds with
10 current and former members of the state’s Republican delegation
in Congress.
Halting the plan, put in place Jan. 7, would again allow “racial
packing” to taint elections following the redistricting that
occurred after the 2010 census, the Virginia State Board of
Elections said in a brief. The redistricting plan was put in place
by a panel of three federal judges.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Campaign Finance and the Ecology of Democratic Speech”
<http://electionlawblog.org/?p=79224>
Posted onJanuary 22, 2016 11:32 am
<http://electionlawblog.org/?p=79224>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Kent Curtis and Eugene Mazo have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2632945>on SSRN
(/Kentucky Law Journal/). Here is the abstract:
This article deals with several campaign finance decisions of the
Roberts Court and tries to place them in a much larger context. The
larger context helps illuminate why and how these decisions threaten
our democratic system. In Citizens United v. FEC, the Supreme Court
decided that for-profit corporations can spend money from their
corporate treasury funds to support or oppose candidates for public
office and that such corporate expenditures “do not give rise to
corruption or the appearance of corruption.” The Court assumed this
to be true despite a profound lack of experience with what our
society would look like with unlimited corporate spending on
American political campaigns. Citizens United has since allowed
corporations to spend unlimited amounts of their resources on
advertisements in the media to influence elections, and this has
helped to produce a situation where very wealthy interests have come
to dominate American politics.
In another case, McCutcheon v. FEC, the Supreme Court struck down
the aggregate limitations that Congress had placed on individual
campaign contributions. Previously, a wealthy individual could
donate no more than $123,200 during each two-year election cycle to
all federal candidates, campaigns, parties, or political committees
combined. Now he can give as much as $3.6 million.
In a third case, Davis v. FEC, the Supreme Court struck down a
federal provision that increased the amount of campaign
contributions a poorly-funded political candidate who happened to be
facing a self-financed opponent could receive. Known as the
“Millionaire’s Amendment,” the provision tripled the maximum
contribution limit for federal candidates whose opponents spent more
than $350,000 of their own personal funds to support their
campaigns. The Supreme Court struck down this provision, even though
the increased contribution limits it allowed would never have gone
so far as to permit the less-well-funded candidate to exceed the
total amount spent by his wealthy opponent. The Court reasoned,
however, that wealthy politicians might be reluctant to spend part
of their fortunes on campaign speech if they know that a
poorly-financed opponent would have an easier time responding. The
Court objected to this provision because the threat of
counter-speech made possible by the government might chill a wealthy
person’s speech.
In a fourth case, Arizona Free Enterprise Club’s Freedom Club PAC v.
Bennett, the Supreme Court struck down an Arizona statute that
provided for voluntary public financing of campaigns for statewide
office. This specific reform, which was enacted by the people of
Arizona through a ballot initiative, contained a limited “catch-up”
provision that was designed to help a publicly financed candidate
who was outspent by a better-funded opponent. If the wealthy
candidate opted out of the state’s public financing system and
outspent the publicly funded candidate, the state provided the
publically funded candidate with limited additional matching funds.
This Supreme Court decision again entrenched the right of the
wealthy to be free from responsive speech that was assisted by
public funds. It also undermined the effectiveness of Arizona’s
public financing system.
We believe that these and other recent Supreme Court campaign
finance decisions were not correctly decided, in part because the
Supreme Court failed to view them within the larger ecosystem they
affect. Just as biologists have contributed to our understanding of
the world’s ecosystems, explaining how the natural world is
populated by different species that are able to thrive and blossom
because of the existence of other species in the right proportion,
we believe that the political world has an ecosystem. It is an
ecosystem where free speech may thrive or wither, and its fate rests
on the delicate balance of political influence between most
citizens, on the one hand, and extremely wealthy citizens and
corporations, on the other. This balance is disturbed when
concentrations of wealth funnel into the democratic process through
unregulated campaign spending. The Supreme Court, through its
decisions in several recent campaign finance cases, has
impermissibly altered our political ecosystem in favor of great
concentrations of wealth in ways that are now threatening democratic
free speech. We argue that this state of affairs is antithetical to
the history of the First and Fourteenth Amendments and that it holds
grave consequences for our democracy’s future.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“How the Supreme Court can change politics as usual”
<http://electionlawblog.org/?p=79222>
Posted onJanuary 22, 2016 9:50 am
<http://electionlawblog.org/?p=79222>byRick Hasen
<http://electionlawblog.org/?author=3>
Jeff Bellin WaPo oped
<https://www.washingtonpost.com/opinions/the-supreme-court-has-a-chance-to-change-politics-as-usual/2016/01/21/1a6f617e-bfa9-11e5-bcda-62a36b394160_story.html#>:
The Supreme Court does not take many cases, but it was right to
agree last week to review the public-corruption convictions of
former Virginia governorRobert F. McDonnell
<https://www.washingtonpost.com/politics/courts_law/supreme-court-will-review-corruption-conviction-of-former-va-governor-robert-mcdonnell/2016/01/15/e281ede0-b3c8-11e5-a76a-0b5145e8679a_story.html>.
While the conduct that led to the case against McDonnell was
shameful, its criminality remains unclear. And since it is difficult
as a legal matter to distinguish McDonnell’s actions from those
routinely engaged in by American politicians, guidance is sorely needed.
That doesn’t mean the justices should let McDonnell off the hook.
When it hands down its decision, the court should make clear that
McDonnell’s behavior was both politics as usual (as he claims) and a
federal felony (as the government contends). That ruling would give
proper deference to Congress’s authority to criminalize public
corruption and mitigate the damage caused by the court’s recent
decisions deregulating campaign finance.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
--
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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