[EL] ELB News & Commentary 7/1/16

Fri Jul 1 08:49:31 PDT 2016

2016 Supplement to Lowenstein, Hasen & Tokaji’s Election Law
<http://electionlawblog.org/?p=84014>
Posted on July 1, 2016 8:44 am <http://electionlawblog.org/?p=84014> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Rick and I have just finished the 2016 Supplement to Lowenstein, Hasen &
Tokaji, *Election Law: Cases and Materials *(5th ed. 2012).  It
includes *Evenwel,
**McDonnell*, and other cases from the Supreme Court’s just-completed
term. More information here
<http://www.cap-press.com/books/isbn/9781531000899/Election-Law-Fifth-Edition-2016-Supplement>,
including how instructors using the book can get a complimentary copy.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
“Don’t Blame the Voters” <http://electionlawblog.org/?p=84012>
Posted on July 1, 2016 8:30 am <http://electionlawblog.org/?p=84012> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Eliza Newlin Carney <http://prospect.org/article/don%e2%80%99t-blame-voters>:
“It’s becoming fashionable to blame ill-advised voters for recent
democratic upheavals, but it’s voters in the end who will—thankfully—enjoy
the last word.”
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
“Lawsuit Claims State Blocking Birmingham Minimum Wage Hike Violates Voting
Rights Act” <http://electionlawblog.org/?p=84010>
Posted on July 1, 2016 8:23 am <http://electionlawblog.org/?p=84010> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

>From AL.com
<http://www.al.com/business/index.ssf/2016/06/lawsuit_claims_state_blocking.html>
on
the amended complaint, which adds Alabama Legislative Black Caucus as a
plaintiff.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
AALS Election Law Section Call for Papers
<http://electionlawblog.org/?p=84007>
Posted on July 1, 2016 8:17 am <http://electionlawblog.org/?p=84007> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

The program for the 2017 Annual Meeting in San Francisco will be entitled
“Lessons from the 2016 Elections (and Implications for the Future).” Here’s
the description and call.
<http://electionlawblog.org/wp-content/uploads/aals_election_law_section_call_for_papers.docx>

*With Donald Trump’s unorthodox, and ultimately successful, campaign for
the Republican Party nomination, Bernie Sanders’ insurgent presidential
campaign and challenge to the Democratic Party establishment, and Hillary
Clinton’s history-making turn as the first-ever female major-party nominee,
the 2016 election season has been akin to the old Disneyland
attraction Mister Toad’s Wild Ride.  As usual, election law played an
important and defining role in an otherwise revolutionary and
groundbreaking election season.  The 2016 election cycle dealt with a
number of issues, including the prospect of denying votes to 17-year-olds
in Ohio; challenges to Ted Cruz’s eligibility to be president; voter
identification litigation (seemingly everywhere); controversy over
re-enfranching ex-felons in Virginia; and the legality of ballot selfies in
New Hampshire.  This campaign season also saw the emergence of several
intriguing campaign finance issues including Jeb Bush’s $100 million
implosion; Bernie Sanders’ significant gains among small donors as compared
to the 2008 and 2012 election cycles; and Donald Trump’s self-funding in
the primaries. Panelists will discuss a bevy of issues related to the 2016
elections, tell us what we’ve learned, and enlighten us on what it might
mean for the future of the field.*

 *One panelist will be chosen from a Call for Papers.*

 *Confirmed panelists include Guy-Uriel Charles (Duke), Heather Gerken
(Yale), Derek Muller (Pepperdine), Spencer Overton (George Washington), and
Franita Tolson (Florida State).  We are looking for one additional panelist
to join this distinguished group.*

 *The program will take place on Thursday, January 5, from 8:30 -10:15 am.*

 *Please submit an abstract or draft paper to Section Chair Mike Pitts at *
*mjpitts at iupui.edu* <mjpitts at iupui.edu>*. The deadline is September 1,
2016.*
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Posted in election law biz <http://electionlawblog.org/?cat=51>
4th Cir. Finds One Person, One Vote Violation in Wake County, NC
<http://electionlawblog.org/?p=84002>
Posted on July 1, 2016 8:06 am <http://electionlawblog.org/?p=84002> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

The opinion in *Raleigh Wake Citizens Association v. Wake Co. Board of
Elections *is here
<http://electionlawblog.org/wp-content/uploads/Raleigh-Wake-Wright-4th-Cir-Opinion.pdf>.
The court applies the standard from *Harris v. Arizona Independent
Redistricting Commission * for deviations under 10%, finding it “more
probable than not that the population deviations at issue here reflect the
predominance of a illegitimate reapportionment factor, . . .namely an
‘intentional effort’ to create ‘a significant . . . partisan advantage.'”
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Posted in redistricting <http://electionlawblog.org/?cat=6>
Torres-Spelliscy on McDonnell <http://electionlawblog.org/?p=83998>
Posted on July 1, 2016 5:44 am <http://electionlawblog.org/?p=83998> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

At HuffPost
<http://www.huffingtonpost.com/ciara-torresspelliscy/scotus-throws-kryptonite-_b_10758060.html>
.
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Posted in bribery <http://electionlawblog.org/?cat=54>
“Getting Illegal Foreign Money Into US Campaigns? It’s Easy, Experts Say”
<http://electionlawblog.org/?p=83996>
Posted on July 1, 2016 5:41 am <http://electionlawblog.org/?p=83996> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Moyers & Co.
<http://billmoyers.com/story/getting-illegal-foreign-money-us-campaigns-easy-experts-say/>
on Trump’s solicitation of foreign nationals and Commissioner Weintraub’s
recent forum.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Bauer on the FEC and Fox News <http://electionlawblog.org/?p=83994>
Posted on July 1, 2016 5:36 am <http://electionlawblog.org/?p=83994> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

MSMHL <http://www.moresoftmoneyhardlaw.com/2016/07/fec-fox-news-debate/>:
“The FEC cannot apparently do enough to make its critics look good. The
problem is not, of course, that the FEC as a whole, as a unified body, is
taking action that invites complaint. It is the absence of constructive
cooperation among the Commissioners when it seems that it should be
possible. No one comes off well.”
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
More on FEC Fox News Matter <http://electionlawblog.org/?p=83989>
Posted on June 30, 2016 7:43 pm <http://electionlawblog.org/?p=83989> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Commissioner Ravel has released this statement of reasons,
<http://eqs.fec.gov/eqsdocsMUR/16044395506.pdf> following yesterday’s disputed
story <http://electionlawblog.org/?p=83949> from Fox News. The
certification of last month’s vote is here
<http://eqs.fec.gov/eqsdocsMUR/16044395215.pdf> and the general counsel’s
report here <http://eqs.fec.gov/eqsdocsMUR/16044395204.pdf>.  WaPo has this
report
<https://www.washingtonpost.com/news/the-fix/wp/2016/06/30/debate-or-donation-democratic-fec-commissioners-fault-fox-news-for-giving-air-time/>
and Politico this one
<http://www.politico.com/blogs/on-media/2016/06/fec-fox-224990>. Those
interested in the underlying constitutional issues might look at this essay
<http://www.stanfordlawreview.org/online/defense-corruption> by Michael
Francus in Stanford L.R. Online.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Nick Stephanopolous’s “Race, Place and Power”
<http://electionlawblog.org/?p=83986>
Posted on June 30, 2016 2:46 pm <http://electionlawblog.org/?p=83986> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Now on SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802783>.
Here’s the abstract:

A generation ago, the Supreme Court upended the voting rights world. In the
breakthrough case of Thornburg v. Gingles, the Court held that minority
groups that are residentially segregated and electorally polarized are
entitled to districts in which they can elect their preferred candidates.
But while the legal standard for vote dilution has been clear ever since,
the real-world impact of the Court’s decision has remained a mystery.
Scholars have failed to answer basic empirical questions about the
operation of the Gingles framework. To wit: Did minorities’ descriptive
representation improve due to the case? If so, did this improvement come
about through the mechanisms—racial segregation and
polarization—contemplated by the Court? And is there a tradeoff between
minorities’ descriptive and substantive representation, or can both be
raised in tandem?

In this Article, I tackle these questions using a series of novel datasets.
For the first time, I am able to quantify all of Gingles’s elements: racial
segregation and polarization, and descriptive and substantive
representation. I am also able to track them at the state legislative
level, over the entire modern redistricting era, and for black and Hispanic
voters. Compared to the cross-sectional congressional studies of black
representation that form the bulk of the literature, these features provide
far more analytical leverage.

I find that the proportion of black legislators in the South rose
precipitously after the Court’s intervention. But neither this proportion
in the non-South, nor the share of Hispanic legislators nationwide,
increased much. I also find that Gingles worked exactly as intended for
segregated and polarized black populations. These groups now elect many
more of their preferred candidates than they did prior to the decision. But
this progress has not materialized for Hispanics, suggesting that their
votes often continue to be diluted. Lastly, I find a modest tradeoff
between minorities’ descriptive representation and both the share of seats
held by Democrats and the liberalism of the median legislator. But this
tradeoff disappears when Democrats are responsible for redistricting, and
intensifies when Republicans are in charge. In combination, these results
provide fodder for both Gingles’s advocates and its critics. More
importantly, they mean that the decision’s impact can finally be assessed
empirically.

Nick’s work is always great, so read it!
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
USDC Denies Relief in EAC Proof of Citizenship Case
<http://electionlawblog.org/?p=83983>
Posted on June 30, 2016 2:42 pm <http://electionlawblog.org/?p=83983> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

WaPo
<https://www.washingtonpost.com/local/public-safety/federal-judge-rejects-bid-to-block-proof-of-citizenship-for-new-voters-in-three-states/2016/06/29/bbf8805c-3e3e-11e6-84e8-1580c7db5275_story.html>:
“A federal judge in Washington on Wednesday rejected a request that would
have blocked Kansas, Alabama and Georgia from enforcing
proof-of-citizenship requirements for people using a federal form to
register to vote.”  The case involves EAC executive director Brian Newby’s
decision to modify the federal form instructions so as to require
documentary proof of citizenship in these states, a decision the U.S.
Justice Department does not defend <http://electionlawblog.org/?p=80200>.
The order is here.
<http://electionlawblog.org/wp-content/uploads/LWVv-Newby-Order.pdf>
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Posted in Election Assistance Commission
<http://electionlawblog.org/?cat=34>, voter registration
<http://electionlawblog.org/?cat=37>
“Cutting Corners in a Federal Campaign is Criminal”
<http://electionlawblog.org/?p=83980>
Posted on June 30, 2016 2:31 pm <http://electionlawblog.org/?p=83980> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Ciara Torres-Spelliscy in The Hill
<http://thehill.com/blogs/congress-blog/presidential-campaign/285262-cutting-corners-in-a-federal-campaign-is-criminal>
.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
NPR’s Guide to Pending Voting Cases <http://electionlawblog.org/?p=83978>
Posted on June 30, 2016 2:29 pm <http://electionlawblog.org/?p=83978> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

>From Pam Fessler
<http://www.npr.org/2016/06/30/484008893/a-guide-to-the-big-photo-id-early-voting-and-other-voting-law-cases>
.
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Posted in election administration <http://electionlawblog.org/?cat=18>, voter
id <http://electionlawblog.org/?cat=9>
“Kevin Kennedy Bids Adieu” <http://electionlawblog.org/?p=83976>
Posted on June 30, 2016 2:26 pm <http://electionlawblog.org/?p=83976> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Electionline has interview with Kevin Kennedy
<http://www.electionline.org/index.php/electionline-weekly>, Director and
General Counsel of the Wisconsin Government Accountability Board which was
eliminated <http://electionlawblog.org/?p=78399> by the state legislature.
I wrote about the EAC’s election administration work in this UCI Law Review
article <http://www.law.uci.edu/lawreview/vol3/no3/tokaji.pdf> a few years
ago.  Kevin is a dedicated public servant and a decent man.  Though the
Wisconsin legislature may feel differently, I’m sad to see him go.
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Posted in election administration <http://electionlawblog.org/?cat=18>
Coverage of Wisconsin Voting Rules Case
<http://electionlawblog.org/?p=83974>
Posted on June 30, 2016 2:15 pm <http://electionlawblog.org/?p=83974> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

AP
<https://www.washingtonpost.com/national/attorneys-argue-wisconsin-election-laws-are-discriminatory/2016/06/30/edd3a576-3ed8-11e6-9e16-4cf01a41decb_story.html>
, Capital Times
<http://host.madison.com/ct/news/local/govt-and-politics/election-matters/federal-judge-decent-case-gop-sought-partisan-advantage-with-voting/article_17a0c0b4-32f8-5fa6-a2a3-25b2e97145f2.html>,
Milwaukee JS,
<http://www.jsonline.com/news/statepolitics/judge-questions-impact-of-voter-id-law-b99753980z1-385045121.html>
and
Wisconsin State Journal
<http://host.madison.com/wsj/news/local/govt-and-politics/federal-judge-hints-he-may-rule-against-wisconsin-election-laws/article_a4a20bb6-53c4-5c2a-9b78-3e511bc91bd2.html>
on today’s hearing before USDJ James Peterson, who reportedly remarked that
plaintiffs had made a “pretty decent case” that the challenged laws were
motivated by the desire to gain partisan advantage but was unsure about the
effect of voter ID and other restrictions.
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Posted in voter id <http://electionlawblog.org/?cat=9>
Wice on 2020 Census Residence Criteria
<http://electionlawblog.org/?p=83972>
Posted on June 30, 2016 7:56 am <http://electionlawblog.org/?p=83972> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Jeff Wice writes at New York Election News
<https://nyelectionsnews.wordpress.com/2016/06/30/census-bureau-published-2020-census-residence-rule-residence-situations-prisoner-reallocation-rules-improved/>
:

Of major importance is a change to the way prison population are reported.
After the 2010 census, New York, Maryland  and Delaware enacted laws to
reassign prisoner populations to “homes of record” before incarceration
(Delaware delayed implementation until 2020). California now plans to
reassign prisoners after 2020.

Today’s proposed rules  represent a major step forward to assist states
with prisoner reassignments for redistricting

*Update:*  Demos and Prison Policy Initiative have this statement
<http://www.prisonersofthecensus.org/news/2016/06/30/ppi-demos-statement/>
on the Census proposal
<https://www.federalregister.gov/articles/2016/06/30/2016-15372/proposed-2020-census-residence-criteria-and-residence-situations>,
which
begins:

Our organizations, and hundreds of allies around the country, are
profoundly disappointed by the Census Bureau proposal to again count nearly
2 million people in the wrong place on Census day. Continuing this outdated
practice will ensure an inaccurate 2020 Census and another decade of prison
gerrymandering.
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Posted in redistricting <http://electionlawblog.org/?cat=6>

-- 
Daniel Tokaji
Charles W. Ebersold & Florence Whitcomb Ebersold Professor of
Constitutional Law
The Ohio State University | Moritz College of Law
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