[EL] ELB News and Commentary 7/21/16

Thu Jul 21 07:24:37 PDT 2016

“The Voting Rights Act Might Get Some Teeth Back; Thanks to an appeals ruling, Texas’ discriminatory voting laws could end up under federal oversight.”<http://electionlawblog.org/?p=84459>
Posted on July 21, 2016 7:19 am<http://electionlawblog.org/?p=84459> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/07/the_5th_circuit_left_an_opening_for_texas_to_lose_control_of_its_discriminatory.html?wpsrc=sh_all_mob_tw_top> for Slate. it begins:
This week’s decision<http://electionlawblog.org/wp-content/uploads/texas-5th-enbanc.pdf> by the U.S. Court of Appeals for the 5th Circuit—holding that Texas’ strict voter identification law violates the Voting Rights Act—is good news for those who believe such laws are discriminatory and do nothing to prevent voter fraud. But there is potentially much better news buried within the eight separate opinions of the 203-page ruling, which comes from one of the most conservative courts in the nation. There you’ll find a road map for returning Texas’ voting rules to the supervision of the federal government. That’s something that states like Texas—which has passed laws that handicap a portion of its voting-age population—have proved they still need.’
Another snippet:
The appeals court divided badly in reviewing the trial court’s finding of racially discriminatory intent. Imagine that the trial court found bad intent from two baskets of evidence, Basket A and Basket B. Counting noses, a majority of 5th Circuit judges believed that the trial court’s analysis went too far in inferring discriminatory intent in considering what was in Basket A, such as statements by the law’s opponents in the state Legislature as to the intent of the legislators who passed the bills. But, again counting noses, a different majority of 5th Circuit judges believes that there is enough evidence in Basket B from which the trial court could indeed infer that Texas passed its law to discriminate against Texans who are Latino or black. It sent the case back for the trial court to reconsider the question looking just at Basket B, and a finding of racially discriminatory intent from the trial judge again seems likely.
The dissenters suggested that at worst the evidence showed an intention by the Republican-dominated state Legislature to discriminate against Democrats, not against blacks or Latinos. A majority of judges, noting an overlap among racial and partisan groups in Texas, didn’t buy it. In a place like Texas, it makes no sense to separate race and party<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/>. As the majority explained, “Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive.” And as one of the judges who believed that evidence from both Baskets A and B proved Texas engaged in racial discrimination put it, if Republicans in the Texas Legislature, out of partisan motives, selected a course of action “at least in part because of, and not merely in spite of, its adverse effects on an identifiable group, that is enough” to show racial discrimination.
The upshot is that the trial court on remand could well find that Texas passed its law with racially discriminatory intent. And if that finding gets upheld on appeal, then the trial court is free to require future changes in Texas voting rules to get Justice Department or judicial approval first. Under these preclearance rules, Texas would again have the burden of demonstrating that each proposed voting change would not make protected minority voters worse off.
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Posted in election 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>

“G.O.P.’s Moneyed Class Finds Its Place in New Trump World”<http://electionlawblog.org/?p=84457>
Posted on July 21, 2016 6:57 am<http://electionlawblog.org/?p=84457> by Rick Hasen<http://electionlawblog.org/?author=3>
Nick Confessore<http://www.nytimes.com/2016/07/22/us/politics/gops-moneyed-class-finds-its-place-in-new-trump-world.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news&_r=0> for the NYT:
In his unlikely rise to the Republican nomination Donald J. Trump<http://www.nytimes.com/interactive/2016/us/elections/donald-trump-on-the-issues.html?inline=nyt-per> attacked lobbyists, disparaged big donors and railed against the party’s establishment. But on the shores of Lake Erie this week, beyond the glare of television cameras, the power of the permanent political class seemed virtually undisturbed.
Though Mr. Trump promises to topple Washington’s “rigged system,” the opening rounds of his party’s quadrennial meeting accentuated a more enduring maxim: Money always adapts to power.
At a downtown barbecue joint, lobbyists cheerfully passed out stickers reading “Make Lobbying Great Again” as they schmoozed on Monday with Republican ambassadors, lawmakers and executives. At a windowless bar tucked behind the Ritz-Carlton hotel, whose rooms were set aside for the party’s most generous benefactors, allies of Mr. Trump pitched a clutch of receptive party donors on contributing to a pro-Trump “super PAC<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>.”
And on Tuesday night, as Republican delegates formally made Mr. Trump theirpresidential nominee<http://www.nytimes.com/2016/07/20/us/politics/donald-trump-rnc.html?ref=politics>, a few dozen lobbyists and their clients instead sipped gin and munched on Brie puffs in an oak-paneled room at the Union Club. They had come to witness a more urgent presentation: Newt Gingrich, a top Trump adviser and Beltway fixture, painting an upbeat picture of the deals they could help sculpt on infrastructure projects and military spending in the first hundred days of a Trump administration.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Federal Appeals Court Strikes Down Texas Voter ID Law”<http://electionlawblog.org/?p=84455>
Posted on July 21, 2016 6:22 am<http://electionlawblog.org/?p=84455> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler reports<http://www.npr.org/2016/07/21/486854387/appeals-court-strikes-down-texas-voter-id-law> for NPR.
She says Texas has not yet decided whether or not to appeal to the Supreme Court.  I explained yesterday<http://electionlawblog.org/?p=84442> why such an appeal would have long odds.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Federal Court Strikes Some, Upholds Other Austin TX Campaign Finance Limits<http://electionlawblog.org/?p=84451>
Posted on July 20, 2016 5:04 pm<http://electionlawblog.org/?p=84451> by Rick Hasen<http://electionlawblog.org/?author=3>
More news<http://electionlawblog.org/wp-content/uploads/austin-cf.pdf> from Texas!
Base limits upheld, aggregate limits not reached temporal limits and disbursement requirements struck down
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

First Roundup of Texas Voter ID Stories and Releases<http://electionlawblog.org/?p=84449>
Posted on July 20, 2016 4:45 pm<http://electionlawblog.org/?p=84449> by Rick Hasen<http://electionlawblog.org/?author=3>
Eric Eckholm for the NYT<http://www.nytimes.com/2016/07/21/us/federal-court-rules-texas-id-law-violates-voting-rights-act.html?smid=tw-share>
Ariane de Vogue <http://www.cnn.com/2016/07/20/politics/texas-voter-id-law/index.html> for CNN
Jess Bravin<http://www.wsj.com/articles/federal-court-orders-texas-to-change-voter-id-law-before-november-1469042781> of CNN (and this Law Blog post<http://blogs.wsj.com/law/2016/07/20/texas-voter-id-ruling-key-passages-from-the-opinions/>)
Bob Barnes<https://www.washingtonpost.com/politics/courts_law/appeals-ourt-says-texas-voter-id-law-has-discriminatory-effect/2016/07/20/781bf340-4cef-11e6-aa14-e0c1087f7583_story.html> for WaPo
Zack Roth NBC<http://www.nbcnews.com/politics/2016-election/federal-court-finds-texas-voter-id-law-violates-voting-rights-n613481>
Pam Fessler<http://www.npr.org/2016/07/20/486785232/appeals-court-demands-changes-to-texas-voter-id-law> for NPR
Dallas Morning News<http://www.dallasnews.com/news/politics/headlines/20160720-appeals-court-calls-texas-voter-id-law-discriminatory-orders-changes.ece>
Brennan Center<http://www.brennancenter.org/press-release/victory-texas-voters-strict-photo-id-found-discriminatory>
Campaign Legal Center<http://www.campaignlegalcenter.org/news/press-releases/victory-5th-circuit-strikes-down-texas-voter-id-law-violation-voting-rights-act>
Lawyers’ Committee<https://lawyerscommittee.org/press-release/victory-texas-voters-strict-photo-id-found-discriminatory/>
True the Vote<http://truethevote.org/true-vote-response-texas-wisconsin-voter-id-decisions>
My initial take<http://electionlawblog.org/?p=84442> is here and I have more coming.
More to come
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Posted in election 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>

Breaking and Analysis: Divided 5th Circuit Holds Texas Voter ID Law Violates Voting Rights Act<http://electionlawblog.org/?p=84442>
Posted on July 20, 2016 12:03 pm<http://electionlawblog.org/?p=84442> by Rick Hasen<http://electionlawblog.org/?author=3>
In 203 pages of opinions<http://electionlawblog.org/wp-content/uploads/texas-5th-enbanc.pdf>, the 5th Circuit, sitting en banc, issued an opinion holding that Texas’s voter identification law, one of the strictest in the country, violates section 2 of the Voting Rights Act.
Here is my first take, with more to come later.
The bottom line is that the majority of the 5th Circuit has done what the panel opinion had originally held: there is a remand on the question whether Texas acted with a discriminatory purpose, but there is enough evidence of a discriminatory effect so as to render the Texas id law a Voting Rights Act violation.
BUT, and this is a big but, the remedy is NOT going to be to strike the Texas voter id law as a whole, but instead to fashion some kind of relief that give people who have a reasonable impediment to getting an id the chance to get one. This might be like the affidavit requirement just approved yesterday in the Wisconsin case, or something else (like an indigency exception affidavit). Further, given the timing of the election, the trial court has to craft some kind of interim relief and then can figure out a more comprehensive solution after the next election.
BUT, BUT there is a very strong dissent from the 5th Circuit’s most conservative members, and that might give Texas a reason to go to the Supreme Court to try to get this emergency interim relief stayed.
BUT, BUT BUT: the Supreme Court has now lost Justice Scalia, and at best Texas could hope for only 4 votes to reverse what the 5th Circuit has done. Indeed, I’m not sure that even Justice Kennedy/Chief Justice Roberts would be on board. If the court ties, the 5th circuit en banc decision stands.  (There’s also the possibility of an argument that the interim relief ordered for this election comes too late under the Purcell Principle, but given that the 5th Circuit acted just within the soft July 20th deadline the Supreme Court set, I think the plaintfiffs will be safe in this regard).
FINALLY, these kinds of softening devices are not all they are cracked up to be, and there’s lots of evidence they are not used by lots of voters who need it. (I discuss this disjunction between theory and practice in Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available<http://electionlawblog.org/?p=80636>)). One of the 5th Circuit judges, Judge Higgonson, concurring, has a footnote reading: “I also disagree with the opposite criticism that this interbranch engagement ameliorates too little, though that argument is contributory. See Richard L. Hasen,Softening Voter ID Laws Through Litigation: Is it Enough?, WISC. L. REV. FORWARD (forthcoming 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2743946 (with apologies to Professor Hasen for my citation of his draft version).”
This is a win for the plaintiffs, no doubt, but not nearly as good as getting the law thrown out for everyone.
More to come after a full reading.
[This post has been updated.]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Lawyers Committee Files Voting Rights Act Lawsuit Challenging Composition of Texas Supreme Court and Texas Court of Criminal Appeals<http://electionlawblog.org/?p=84439>
Posted on July 20, 2016 11:52 am<http://electionlawblog.org/?p=84439> by Rick Hasen<http://electionlawblog.org/?author=3>
Via Zack Roth, here is the complaint<https://t.co/nEtuEv6WWa>.
The suit would replace at large elections with districts.
In Chisom  v. Roemer<https://supreme.justia.com/cases/federal/us/501/380/case.html>, the Supreme Court held that judicial elections are subject to section 2 of the Voting Rights Act, but how it applies is quite complex.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Did the Trump campaign violate federal law by using a Trump organization speechwriter?”<http://electionlawblog.org/?p=84437>
Posted on July 20, 2016 11:09 am<http://electionlawblog.org/?p=84437> by Rick Hasen<http://electionlawblog.org/?author=3>
The Fix reports.<https://www.washingtonpost.com/news/the-fix/wp/2016/07/20/did-the-trump-campaign-violate-federal-law-by-using-a-trump-organization-speechwriter/?postshare=3221469037300677&tid=ss_tw>

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

“Hillary Clinton’s Campaign Uses Pokémon Go to Register Voters”<http://electionlawblog.org/?p=84435>
Posted on July 20, 2016 11:08 am<http://electionlawblog.org/?p=84435> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ<http://blogs.wsj.com/washwire/2016/07/16/hillary-clintons-campaign-uses-pokemon-go-to-register-voters/>:
Hillary Clinton is hoping to use Pokémon Go to catch voters.
At a rally on Thursday, Mrs. Clinton talked about the game phenomenon, saying “I don’t know who created ‘Pokemon Go,’ but I’ve tried to figure out how we get them to have Pokémon go to the polls.”
The game, created by Niantic Labs in a partnership with Nintendo and Pokémon Co., is causing people to flock to public places as they search for Pokémon, which virtually pop up in the real world. The mobile game has been cited for traffic accidents, injuries and for giving its users unexpected exercise<http://www.wsj.com/articles/pokemon-go-craze-raises-safety-issues-1468365058> as they walk around trying to find “pocket monsters.”
But the presumptive Democratic nominee’s campaign staff is hoping to catch voters instead. A Clinton aide said staffers armed with clipboards in battleground states Ohio and Colorado have ventured out to meet up with hunters, and have asked them to look away from their phones for a minute and register to vote.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>

--
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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