[EL] ELB News and Commentary 7/11/16

[Rick Hasen]

ELB Podcast Episode 13. Thomas Hicks and Matthew Masterson: Surviving Elections 2016<http://electionlawblog.org/?p=84155>
Posted on July 10, 2016 8:03 pm<http://electionlawblog.org/?p=84155> by Rick Hasen<http://electionlawblog.org/?author=3>

Is the American election system ready to handle 2016? Has the country done what it can to prevent long lines and election breakdowns? Can the U.S. Election Assistance Commission help Democrats and Republicans to move beyond the Voting Wars?

On Episode 13 of the ELB Podcast, we talk to Thomas Hicks<http://www.eac.gov/about_the_eac/commissioner_thomas_hicks.aspx>, Chair of the U.S. Election Assistance Commission, and its Vice-Chair Matthew Masterson.<http://www.eac.gov/about_the_eac/commissioner_matthew_masterson.aspx>

You can listen to the ELB Podcast Episode 13 on Soundcloud <https://soundcloud.com/rick-hasen/elb-podcast-episode-13-thomas-hicks-and-matthew-masterson-surviving-elections-2016> or subscribe at iTunes.<https://geo.itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2>
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Posted in ELB Podcast<http://electionlawblog.org/?cat=116>, election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, The Voting Wars<http://electionlawblog.org/?cat=60>


Do Justice Ginsburg’s Comments on Donald Trump Require Recusal in a Clinton v. Trump Case?<http://electionlawblog.org/?p=84177>
Posted on July 10, 2016 7:47 pm<http://electionlawblog.org/?p=84177> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the argument some conservatives<https://twitter.com/adamjwhitedc/status/752328693721108482> have been raising on Twitter, following this part of RBG’s interview with Adam Liptak<http://www.nytimes.com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html?referer=>:

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg<http://www.nytimes.com/2010/06/28/us/28ginsburg.html>, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

As I understand it, the question is whether the comments would cause a reasonable person to question the impartiality of the justice. I think this is ultimately a question for judicial ethicists, but I do think following these comments it is a legitimate question to raise, should Donald Trump’s campaign come to the Court with any legal questions before the election.

I also expect that for many how one views this issue will depend upon ideology: many conservatives will be quick to pounce and many liberals will be quick to defend.

Heaven help us if we get a Clinton v. Trump case to the Supreme Court, wholly apart from this new controversy.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Businesses offer perks, freebies in effort to get young people to vote”<http://electionlawblog.org/?p=84174>
Posted on July 10, 2016 5:02 pm<http://electionlawblog.org/?p=84174> by Rick Hasen<http://electionlawblog.org/?author=3>

Japan Times<http://www.japantimes.co.jp/news/2016/07/10/national/politics-diplomacy/businesses-offer-perks-freebies-effort-get-young-people-vote/#.V4LhWJOU3Uo>:

Businesses across the nation used discounts and free services to encourage 18- and 19-year-olds to use their newly granted suffrage to vote in Sunday’s House of Councilors election.

The Upper House election is the first national poll since the voting age was lowered to 18 from 20 when the revised Public Offices Election Law took effect in June.

Businesses moved quickly to seize the opportunity and make a splash.

On Sunday, Yamamuraya, a meat shop in Kyoto, was giving away free steaks to young people who cast ballots, directing its six outlets in Kyoto and Shiga prefectures to hand out 150-gram cuts of inner-shoulder beef, normally ¥780, if they presented certificates showing they voted and student identification cards.

This would be illegal<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=257564> in the U.S. in any election with a federal candidate on the ballot, and in some state and local elections as well under various state law.
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Posted in vote buying<http://electionlawblog.org/?cat=43>


Justice Ginsburg Has “Impossible Dream” of Overturning Citizens United Before She Leaves SCOTUS<http://electionlawblog.org/?p=84170>
Posted on July 10, 2016 3:54 pm<http://electionlawblog.org/?p=84170> by Rick Hasen<http://electionlawblog.org/?author=3>

She tells<http://www.nytimes.com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html?referer=> NYT’s Adam Liptak:

Asked if there were cases she would like to see the court overturn before she leaves it, she named one.

“It won’t happen,” she said. “It would be an impossible dream. But I’d love to seeCitizens United<https://www.law.cornell.edu/supct/html/08-205.ZS.html> overruled.”

She mulled whether the court could revisit its 2013 decision in Shelby County v. Holder<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>, which effectively struck down a key part of the Voting Rights Act. She said she did not see how that could be done.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Two Big Election Law Decisions Out of Texas are Pending…..And More from Other States<http://electionlawblog.org/?p=84168>
Posted on July 10, 2016 1:45 pm<http://electionlawblog.org/?p=84168> by Rick Hasen<http://electionlawblog.org/?author=3>

The federal challenge to Texas’s strict voter identification law is pending before the entire Fifth Circuit sitting en banc.  The Supreme Court set a soft July 20 deadline<http://electionlawblog.org/?p=82423> for a decision—after that the Court has invited plaintiffs to seek immediate relief for this election before the Supreme Court. There’s nothing technically binding about that date, but I expect we will see a decision by then from the Fifth Circuit, and then, whatever happens, I expect an emergency motion to the Supreme Court for whichever side loses.

Meanwhile, the never ending federal district court challenge to Texas’s redistricting remains pending<http://electionlawblog.org/?p=77373>in San Antonio, with a delay that at this point is as inexplicable as it is inexcusable. That case, when decided, will be on a fast-track appeal to the Supreme Court as well, but with any ruling relevant only for elections after 2016.

We are also waiting for other decisions<http://electionlawblog.org/?p=78554>, and one of those big ones is the appeal to the Fourth Circuit of North Carolina’s strict voting laws. That one, too, will likely end up with a request for emergency relief from SCOTUS.

Lots coming in the next few months.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


“It only took a month to count California’s votes. Here’s why, and why it may get better”<http://electionlawblog.org/?p=84166>
Posted on July 10, 2016 1:34 pm<http://electionlawblog.org/?p=84166> by Rick Hasen<http://electionlawblog.org/?author=3>

Cathleen Decker LAT column<http://www.latimes.com/politics/la-pol-ca-california-primary-results-finally-counted-20160710-snap-story.html>.
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Posted in election administration<http://electionlawblog.org/?cat=18>


Jim Bopp Supports Removing Anti-Same Sex Marriage Provisions from Republican Party Platform [See Below for Jim’s Response]<http://electionlawblog.org/?p=84163>
Posted on July 10, 2016 12:49 pm<http://electionlawblog.org/?p=84163> by Rick Hasen<http://electionlawblog.org/?author=3>

CBS News:<http://www.cbsnews.com/news/moderate-republicans-propose-softening-official-gop-position-on-lgbt/>

Currently, the language adopted during the 2012 platform calls the “redefinition of marriage” by state courts an “assault on the foundations of society.” It’s unclear whether or not this language will be eliminated. But the compromise that some delegates are expecting is the addition of “equality language.”…

Jim Bopp Jr., a conservative Indiana delegate on the platform, said the old platform language on same-sex marriage is no longer appropriate since last year’s landmark Supreme Court ruling that allowed same-sex couples to marry nationwide.

This won’t change the core of the issue, Bopp told CBS News. He also said that adopting friendlier language toward gays and lesbians should not be perceived as a major concession by conservatives.

“Trump has stood with the victims of Islamic terrorist who murdered gay people because they are gay but so did I – that’s not being gay friendly, that’s being human friendly,” Bopp said. “If the question is should they murdered, of course not. But if it’s whether or not we should have gay marriage, it has nothing to do with it. They weren’t killed in Orlando because they couldn’t get married, they were killed because they are gay. And we oppose that.”

Update:  Jim Bopp sent the following to the election law listserv in response to this post:

This is so wrong:



First, could someone tell me and, especially you Rick, what this has to do with election law.



Second, your headline is not even close to even describing what the article said.



Third, the only statement that arguably reflects any statement I made in the article is this one, of course ignoring everything else I said:



“Jim Bopp Jr., a conservative Indiana delegate on the platform, said the old platform language on same-sex marriage is no longer appropriate since last year’s landmark Supreme Court ruling that allowed same-sex couples to marry nationwide.”



Here the CBS Reporter failed to report the detail of my statement, making it grossly misleading.  What I said was that the sentence in the 2012 GOP platform that calls for states to adopt putting traditional marriage in their state conventions is now obsolete because of the Supreme Court decision. I then said that what we need to add to the platform, because of the Supreme Court decision on same sex marriage. is to call for that decision to be overturned.



Fourth, right after that paragraph, I said:



“This won’t change the core of the issue, Bopp told CBS News.”



So, come on Rick, what a ridiculous headline.  Jim Bopp

And here is my response to Jim:

Jim,

My apologies for drawing the wrong inference from the article’s statement that you believed the old platform language was no longer appropriate.  I will update my post with this response from you.

(As for what it has do with election law—-I post items of political interest on my blog on issues beyond election law. Indeed, I spend and have spent a great deal of time discussing Supreme Court confirmations, even though that is not election law. A few years ago we had a listserv discussion about whether I should not circulate those items, and the conclusion of that discussion was that I should still circulate those items.)

Regardless, I do apologize for misunderstanding your position from my reading of the article and will update.

Rick


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


It the Attack on Super PACs Through the FEC a Mistake? I Now Think Yes<http://electionlawblog.org/?p=84160>
Posted on July 10, 2016 12:43 pm<http://electionlawblog.org/?p=84160> by Rick Hasen<http://electionlawblog.org/?author=3>

Last week I blogged<http://electionlawblog.org/?p=84119> about a liberal “dream team” effort to try to bring down Speech Now, initially through a complaint at the FEC. I called the effort a longshot, but not crazy, given that the Supreme Court could well swing to a liberal majority within a few years, and going after Super PACs first rather than directly against Citizens United could be a smart strategy for a new liberal Supreme Court that wants to appear minimalist/play the long game (e.g., the Reverse Roberts).

Since, then I noted <http://electionlawblog.org/?p=84136> that Marc Elias tweeted<https://twitter.com/marceelias/status/751230355760439297> against the strategy, even given the goal of eventually overturning SpeechNow and Citizens United, and I have heard from other reformers who question the “dream team” strategy. The argument is that the standard of review which would apply to an FEC action is such that this is an impossible case to win: the FEC cannot go against the DC Circuit’s SpeechNow opinion, so any attempt to limit contributions to super PACs in violation of the SpeechNow case would not be seen by a court reviewing the FEC’s actions as “arbitrary and capricious.” A court reviewing these actions would not be in a position to reconsider the merits of the SpeechNow decision, much less Citizens United.

I’ve thought more about this and I think this critique is correct, and my earlier enthusiasm for this particular path to SCOTUS review misplaced.  As I suggested<http://electionlawblog.org/?p=84136>, a far more straightforward way to tee up a SpeechNow challenge at a new liberal SCOTUS would be to find a liberal city (or state) that wants to enact (or defend an on-the-books existing) limit on contributions to independent expenditure committees. Those cases would most likely lose in the lower courts but would be explicitly geared to tee up the issue for SCOTUS consideration.

What’s the downside of the FEC strategy? First, it eats up resources of the reform community. Second, it will lead to an almost certain defeat, which will allow the anti-regulation folks to claim victories at both the FEC and in the courts.  Think of the headline: “Court rejects challenge to legality of Super PACs.”  It is not the end of the world, as it would not set a precedent to preclude another SCOTUS run, but it doesn’t seem like the strategy will yield positive dividends.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Ballot order effects in direct democracy elections”<http://electionlawblog.org/?p=84157>
Posted on July 9, 2016 5:03 pm<http://electionlawblog.org/?p=84157> by Rick Hasen<http://electionlawblog.org/?author=3>

John Matsusaka has written this article <http://link.springer.com/article/10.1007/s11127-016-0340-9> for Public Choice. Here is the abstract:

Many political practitioners believe that voters are more likely to approve propositions listed at the top than the bottom of the ballot, potentially distorting democratic decision making, and this belief influences election laws across the United States. Numerous studies have investigated ballot order effects in candidate elections, but there is little evidence for direct democracy elections, and identification of causal effects is challenging. This paper offers two strategies for identifying the effect of ballot order in proposition elections, using data from California during 1958–2014 and Texas during 1986–2015. The evidence suggests that propositions are not advantaged by being listed at the top compared to the bottom of the ballot. Approval rates are lower with more propositions on the ballot.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>


“GOP delegates are legitimately bound, deal with it”<http://electionlawblog.org/?p=84153>
Posted on July 8, 2016 6:42 pm<http://electionlawblog.org/?p=84153> by Rick Hasen<http://electionlawblog.org/?author=3>

Jim Bopp<http://thehill.com/blogs/pundits-blog/presidential-campaign/286817-gop-delegates-are-legitimately-bound-deal-with-it> in The Hill.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


“‘Politics are corrupt’: fears about money and its influence on elections loom large”<http://electionlawblog.org/?p=84148>
Posted on July 8, 2016 8:55 am<http://electionlawblog.org/?p=84148> by Rick Hasen<http://electionlawblog.org/?author=3>

The Guardian reports.<https://www.theguardian.com/us-news/2016/jul/08/trump-clinton-sanders-super-pacs-election-money>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Justice Ginsburg’s First Draft in Evenwel Said Use of Total Population, Rather Than Voters, Required and Not Just Permitted<http://electionlawblog.org/?p=84146>
Posted on July 8, 2016 8:48 am<http://electionlawblog.org/?p=84146> by Rick Hasen<http://electionlawblog.org/?author=3>

From RBG’s must-read interview<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_GINSBURG?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT> with AP’s Mark Sherman:

Ginsburg was pleased with her majority opinion in yet another case from Texas in which the court upheld the state’s decision to count everyone, and not just eligible voters, in drawing its electoral districts. A ruling against the state would have diminished Hispanic political clout because, as Ginsburg noted, their population includes many who are not citizens. Also, she said, “Hispanics have a lot more children,” who also are ineligible to vote.

Her opinion said that using total population was permissible, but it stopped short of declaring that Texas and the rest of the states must count everyone. “I didn’t say it. I was writing for the court. … All things considered, you want to have as many people on board as you can,” she said, stressing the need to sometimes compromise to form or add to a majority. “So I had many first drafts written the way they’d be written if I were queen and they’ll be in my papers some day.”

Let us hope that Justice Ginsburg, a big believer in transparency, makes her papers available just as soon as she leaves the Court.

Update: It looks like the Evenwel grafs are gone from the current version of the AP story, but you can still find them here<http://www.voanews.com/content/ap-interview-ginsberg-reflects-big-cases-scalias-death/3409342.html>.

[creen Shot 2016-07-08 at 9.33.15 AM]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-07-08-at-9.33.15-AM.png>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, 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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