[EL] ELB News and Commentary 6/8/16

[Rick Hasen]

US Senate Race Could Be First CA Statewide Race with No Republican on Election Ballot<http://electionlawblog.org/?p=83451>
Posted on June 7, 2016 9:52 pm<http://electionlawblog.org/?p=83451> by Rick Hasen<http://electionlawblog.org/?author=3>

And very big chance for U.S. Senate to have first African-American woman in U.S. Senate in generation. LAT<http://www.latimes.com/politics/la-pol-ca-senate-primary-election-20160607-snap-story.html>:

California Atty. Gen. Kamala Harris<http://www.latimes.com/topic/politics-government/government/kamala-harris-PEPLT00008198-topic.html> was declared the winner of the primary for the state’s open seat U.S. Senate<http://www.latimes.com/topic/politics-government/government/u.s.-senate-ORGOV0000134-topic.html> race on Tuesday as a bevy of candidates competed for the second and final spot on the fall ballot.

The Associated Press called the race with nearly 9% of precincts reporting returns. Harris was leading her most prominent challenger, Orange County Rep. Loretta Sanchez<http://www.latimes.com/topic/politics-government/government/loretta-sanchez-PEPLT005765-topic.html>, 40% to 16.5%.

Sanchez is a Democrat like Harris. Should the congresswoman place second once all the votes are counted, it would be the first time in a statewide election where a Republican failed to make the November ballot.

Tuesday’s election is the third held under the rules of the top-two primary, in which voters choose a candidate regardless of political party. Only the top two vote-getters move on the Nov. 8 general election. Compounding problems for Republicans<http://www.latimes.com/topic/politics-government/republican-party-ORGOV0000004-topic.html> is the dominance of Democrats in the state<http://www.latimes.com/politics/la-pol-sac-essential-politics-california-new-voters-voter-registration-primary-htmlstory.html>, with GOP candidates losing every statewide race for the last decade.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83451&title=US%20Senate%20Race%20Could%20Be%20First%20CA%20Statewide%20Race%20with%20No%20Republican%20on%20Election%20Ballot&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>
“‘It was just chaos’: Broken machines, incomplete voter rolls leave some wondering whether their ballots will count”<http://electionlawblog.org/?p=83449>
Posted on June 7, 2016 9:35 pm<http://electionlawblog.org/?p=83449> by Rick Hasen<http://electionlawblog.org/?author=3>

LA Times<http://www.latimes.com/politics/la-pol-ca-voting-problems-20160607-snap-htmlstory.html>:

California voters faced a tough time at the polls Tuesday, with many voters saying they have encountered broken machines, polling sites that opened late and incomplete voter rolls, particularly in Los Angeles County.

The result? Instead of a quick in-and-out vote, many California voters were handed the dreaded pink provisional ballot — which takes longer to fill out, longer for election officials to verify and which tends to leave voters wondering whether their votes will be counted.

This year’s presidential primary race has already been one of the most bitter in recent memory. Before Tuesday’s vote, Bernie Sanders<http://www.latimes.com/topic/politics-government/government/bernie-sanders-PEPLT005768-topic.html> supporters accused the media of depressing Democratic turnout by calling the nomination for Hillary Clinton<http://www.latimes.com/topic/politics-government/government/hillary-clinton-PEPLT007433-topic.html> before polls opened in California.

Those feelings haven’t gotten any less raw Tuesday as hundreds of Californians complained of voting problems to the national nonpartisan voter hotline run by the Lawyers’ Committee For Civil Rights Under Law.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83449&title=%26%238220%3B%26%238216%3BIt%20was%20just%20chaos%26%238217%3B%3A%20Broken%20machines%2C%20incomplete%20voter%20rolls%20leave%20some%20wondering%20whether%20their%20ballots%20will%20count%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>
“Court to hear Libertarian Party appeal over NH law”<http://electionlawblog.org/?p=83447>
Posted on June 7, 2016 8:41 pm<http://electionlawblog.org/?p=83447> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.timesrecord.com/news/2016-06-06/Front_Page/Court_to_hear_Libertarian_Party_appeal_over_NH_law.html>:

A federal appeals court is set to hear arguments in a lawsuit by the Libertarian Party seeking to strike down a New Hampshire law that it argues could prevent third-party candidates from getting on the ballot.

The Libertarian Party of New Hampshire is challenging a 2014 law that requires a third party seeking to gain access to the ballot through verified signatures to collect those signatures during the same year as the election.

Judge Paul Barbadoro upheld the law last year, finding that it creates reasonable restrictions that are justified by the state’s interest in requiring parties to demonstrate a sufficient level of support.

The 1st U.S. Circuit Court of Appeals in Boston is set to hear the Libertarian Party’s appeal Monday.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83447&title=%26%238220%3BCourt%20to%20hear%20Libertarian%20Party%20appeal%20over%20NH%20law%26%238221%3B&description=>
Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>
“Web Resource Launched to Help Judges Understand State Election Codes”<http://electionlawblog.org/?p=83445>
Posted on June 7, 2016 8:17 pm<http://electionlawblog.org/?p=83445> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://law.wm.edu/news/stories/2016/election-law-web-tool-launched-five-months-ahead-of-national-elections-to-prepare-state-judges-for-possible-november-challenges.php>:

In this presidential election year and an already hotly contested election season, theElection Law Program<http://law.wm.edu/academics/intellectuallife/researchcenters/electionlaw/> has launched a web-based tool aimed at helping judges resolve election litigation fairly and efficiently.

The Election Law Program, a joint project of William & Mary Law School and theNational Center for State Courts<http://www.ncsc.org/> (NCSC), is launching on June 7 a “State Election Law eBenchbook<http://ebenchbook.wm.edu/>” website, five months before November elections.  The eBenchbook resource assists judges in navigating the country’s complex election codes. As the November election approaches, judges often must interpret and rule rapidly under the twin pressures of tight timelines and public scrutiny.

“Since 2000, the rate of election litigation has risen greatly in this country,” said Professor Rebecca Green<http://law2.wm.edu/faculty/bios/fulltime/rgreen.php>, an election law expert and Co-Director of the Election Law Program at William & Mary Law School.

She notes that before 2000, there was an annual average of 94 election cases. That annual number has doubled, with 2,849 decisions since then (Source: “Rick Hasen’s Election Law Blog<http://electionlawblog.org/>“).

The eBenchbook is meant to address a problem identified by the Conference of Chief Justices which noted that: “The number of election law disputes being brought before the state courts has increased dramatically in recent years, often requiring immediate resolution by judges who may be unfamiliar with the basics of election law” [italics added].

“To compound the issue, each state’s election laws are a creature of state law, so we have 50 different sets of rules,” said Green. “That means there can be no generalizing on election issues from other states’ experiences.”

“To date, there has not been a source where a judge in a particular state can turn to a practical reference that’s keyed to that state’s unique election code. Our state election law eBenchbooks will fill that gap.”

Three states were chosen for the June 7 launch: Virginia, Colorado, and Florida.

“In choosing these three states to start with, we wanted geographical diversity,” explained Austin Graham, a recent William & Mary Law School graduate and project manager. “We also wanted to start with swing states and states where there has been a lot of election law litigation. We will add to these three as we move forward.”

The eBenchbook begins with each state’s code, and provides annotations from state election law experts for clarity and context. The eBenchbook hotlinks to quick definitions of terms in each state’s election laws, to relevant case law, advisory opinions, regulations, and to a range of reference sources useful for rapid decision-making.

“It is a dynamic resource,” said Green, “allowing bipartisan committees of election law experts in each state to add commentary, perspective, and context to what would otherwise be a recitation of statutes.”

The Hon. Terry Lewis, a Leon County Florida circuit judge who played a central role in Bush v. Gore and who sits on the Election Law Program’s advisory board, shared his perspective: “Election litigation, once a rarity, has become increasingly common since Bush v. Gore. The Election Law Program’s eBenchbook will be a welcomed resource for judges deciding election-related cases.”

“The resource enables judges to gain a quick understanding of the context of the statutes they are looking at,” said Green, adding, “it is a platform that enables a bipartisan team of attorneys, election administrators, and scholars in judges’ own states to include ancillary materials that would take days, weeks, or even months to collect.”

“Election law cases can be enormously consequential to our democracy,” said Davison M. Douglas<http://law2.wm.edu/faculty/bios/fulltime/dmdoug.php>, Dean of William & Mary Law School. “The eBenchbook project assists in the resolution of election disputes by providing a nonpartisan resource that enhances our understanding of dense election codes. The project also helps the general public gain greater insight into the laws that determine democratic outcomes.”

Adam Ambrogi, Program Director at the Democracy Fund<http://www.democracyfund.org/> which generously funded the eBenchbook project, said, “When conflicts occur in the election process there is great pressure to solve them quickly. In an increasingly complex election law environment it is even more important to provide judges with the information they need to arrive at the right decision.”

“This is the first source of its kind for state court judges that provides reliable references to a particular state’s unique election code,” said NCSC President Mary McQueen. “The eBenchbook not only helps judges make fair, timely, and efficient decisions in these disputes, it provides confidence to the public that contested elections are decided in a precise and nonpartisan manner.”

“The eBenchbook’s distinguishing feature is that it integrates relevant, state-specific election law resources using an easy-to-search topical index,” said Amy McDowell, Co-Director of the Election Law Program at NCSC. “When a particular section of the state code is at issue, eBenchbook content can be accessed by individual code sections.”

“In addition to assisting judges deciding cases today, our hope is that this resource will prompt state legislatures across the country to hone state codes and to improve both elections and the voting process,” said Green.

“At a critical time in our democracy, the eBenchbook project marks a tremendous step forward for public access and understanding of the most important information in the United States of America: our laws and legal codes,” said Seamus Kraft, Executive Director ofThe OpenGov Foundation<http://opengovfoundation.org/> and an advisor on the eBenchbook project.

“If we want a truly just and equitable society, election laws—and all types of legal data—must be as discoverable, comprehendible and actionable as possible, with absolutely no restrictions,” he said.  “That’s what the eBenchbook project now delivers for the citizens and judicial officials in three key states. We look forward to supporting this great team and this important effort to bring the power of open election law to the other forty-seven.”

Is Professor Green worried about election litigation between now and November? “Litigation is already happening,” says Green of the dozens of election cases pending in courts today. “Particularly in this highly partisan climate, continuing litigation surrounding state and federal elections up to and after the November election is a strong likelihood; the verdicts of this litigation will undoubtedly shape the future of the nation.”

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83445&title=%26%238220%3BWeb%20Resource%20Launched%20to%20Help%20Judges%20Understand%20State%20Election%20Codes%26%238221%3B&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“California: Santa Clara County Superior Court Judge facing recall threats”<http://electionlawblog.org/?p=83443>
Posted on June 7, 2016 8:15 pm<http://electionlawblog.org/?p=83443> by Rick Hasen<http://electionlawblog.org/?author=3>

Recall Elections Blog:<http://recallelections.blogspot.com/2016/06/california-santa-clara-county-superior.html>

Santa Clara County Superior Court Judge Aaron Persky<https://www.buzzfeed.com/stephaniemlee/stanford-judge?utm_term=.wsARkZqrA#.jw8EmnNoL> is facing a threatened recall over his sentencing of a Stanford University swimmer to a six month jail for rape. Already, a Stanford law professor is suggesting she will lead one, and an online petition that has garnered over 100,000 signatures (none count toward a recall). The petitioners need 80,920 signatures to get this on the ballot.

The petitioners will face a few serious problems with their recall effort. The first obvious one is that 80920 signatures is a hell of a lot. Of the tens of thousands of recalls that have occurred in the US, only a handful have needed more signatures – Three Governors, a Lieutenant Governor and two Mayors of Los Angeles….

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83443&title=%26%238220%3BCalifornia%3A%20Santa%20Clara%20County%20Superior%20Court%20Judge%20facing%20recall%20threats%26%238221%3B&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, recall elections<http://electionlawblog.org/?cat=11>
“he New Tyranny: A Preface to the 2016 Elections in the United States”<http://electionlawblog.org/?p=83441>
Posted on June 7, 2016 8:00 pm<http://electionlawblog.org/?p=83441> by Rick Hasen<http://electionlawblog.org/?author=3>

Tim Kuhner<http://www.worldfinancialreview.com/?p=5525> in the World Financial Review:

Democracy in the United States has been replaced by a rival form of government premised upon the power of wealth. Not to be confused with mere corruption, plutocracy is an official system of rule built upon new interpretations of political speech, equality, and representation. The power of plutocracy rests upon public ignorance of and acquiescence to the profound transformation described in the pages that follow, perhaps the next American trend to sweep the globe.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83441&title=%26%238220%3Bhe%20New%20Tyranny%3A%20A%20Preface%20to%20the%202016%20Elections%20in%20the%20United%20States%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Breaking: Federal Court in Ohio Blocks Some Voting Changes<http://electionlawblog.org/?p=83433>
Posted on June 7, 2016 2:40 pm<http://electionlawblog.org/?p=83433> by Rick Hasen<http://electionlawblog.org/?author=3>

No, this is not a repeat of the recent ruling<http://electionlawblog.org/?p=83051> stopping Ohio from getting rid of Golden Week.

In the long-running NEOCH case, a federal district court has issued a 115-page opinion<https://t.co/HwFkfkhLIH> (via Chris Geidner<https://twitter.com/chrisgeidner/status/740294563319926784>) blocking a different set of voting rule changes. In particular, finding violations of the Voting Rights Act Section 2 and the U.S. Constitution’s equal protection clause, the court enjoined portions of two Ohio bills passed by the Republican legislature over Democrats’ objections:

Ohio Revised Code §§ 3509.06 and 3509.07 are enjoined to the extent they require full and accurate completion of absentee-ballot identification envelopes before an otherwise qualified elector’s ballot may be counted;

Ohio Revised Code §§ 3509.06 and 3509.07 are enjoined to the extent they provide for only seven days for voters to correct absentee-ballot identification envelopes, and the ten-day period provided by Secretary of State directive is restored;

Ohio Revised Code §§ 3505.181, 3505.182, and 3505.183 are enjoined to the extent they require full and accurate completion of provisional-ballot affirmation forms, and require a printed name, before an otherwise qualified elector’s ballot may be counted;

Ohio Revised Code §§ 3505.181, 3505.182, and 3505.183 are enjoined to the extent they provide for only seven days for voters to correct provisional-ballot affirmation forms rather than ten days;

Ohio Revised Code§§ 3509.03, 3509.04 and 3505.181(F) are enjoined to the extent they prohibit poll workers from completing voters’ absentee or provisional ballot forms unless voters provide a specific reason for seeking assistance.

 Significantly, the court rejected the argument that the Ohio legislature acted with a racially discriminatory purpose or a purpose to discriminate against Democrats, despite some isolated statements from legislators which could be read as expressing that intent. The court did take this dig, however, in the course of its Voting Rights Act section 2 totality of the circumstances analysis:

Factor Six: Overt or Subtle Racial Appeals in Campaigns. From an email from a top Republican Party official denigrating the “urban—read African-American—voter turnout machine” to racist appeals like the “Obama phone lady” ad, Ohio has seen both overt and subtle racial appeals in campaigns over the last several years. Moreover, the targeting of minority communities for anti-voter fraud efforts, including with billboards, is an indication that voter suppression tactics have not disappeared but are now merely cloaked in ostensibly race-neutral language. Old dogs, it seems, canlearn new tricks.

If the state appeals, it will provide yet another opportunity for the Sixth Circuit, and perhaps the Supreme Court, to determine when rules making it harder to register or vote amount to constitutional or Voting Rights Act section 2 violations. The plaintiffs in this case, however, include the homeless, who suffer from various impediments to voting. It may be harder for the state of Ohio to attack this ruling than the elimination of Golden Week in terms of the burden on voters.

These changes, if upheld, will make it easier for the most vulnerable voters in Ohio to be able to cast a ballot which will be counted.

[This post has been updated.]

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83433&title=Breaking%3A%20Federal%20Court%20in%20Ohio%20Blocks%20Some%20Voting%20Changes&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
4th Circuit Issues Order in NC Voting Case Extending Stay<http://electionlawblog.org/?p=83431>
Posted on June 7, 2016 1:27 pm<http://electionlawblog.org/?p=83431> by Rick Hasen<http://electionlawblog.org/?author=3>

Back in 2014, the 4th Circuit stopped North Carolina from implementing its rollback of same day voter registration and out of precinct voting. That was before the trial on the merits, in which a district court judge found that both of these rollbacks were permissible.  Today the 4th Circuit continued its order staying these practices, as the case is heard on appeal.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83431&title=4th%20Circuit%20Issues%20Order%20in%20NC%20Voting%20Case%20Extending%20Stay&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Conservatives Say They Want Another Antonin Scalia. They Really Want Another Sam Alito”<http://electionlawblog.org/?p=83429>
Posted on June 7, 2016 1:25 pm<http://electionlawblog.org/?p=83429> by Rick Hasen<http://electionlawblog.org/?author=3>

Great Stephane Mencimer piece<http://www.motherjones.com/politics/2016/06/samuel-alito-profile-antonin-scalia-supreme-court-appointment> in Mother Jones.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83429&title=%26%238220%3BConservatives%20Say%20They%20Want%20Another%20Antonin%20Scalia.%20They%20Really%20Want%20Another%20Sam%20Alito%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Campaign-Finance Law, the State of Nature, and the Nirvana Fallacy”<http://electionlawblog.org/?p=83427>
Posted on June 7, 2016 7:44 am<http://electionlawblog.org/?p=83427> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this response<http://www.libertylawsite.org/liberty-forum/campaign-finance-law-the-state-of-nature-and-the-nirvana-fallacy/> to Derek Muller at the Library of Law and Liberty. It begins:

One cannot fault Professor Derek Muller, whose work I admire and respect, for taking a hard libertarian line against campaign-finance regulation in his Liberty Forum essay<http://www.libertylawsite.org/liberty-forum/the-case-for-more-money-in-politics/>. After all, that misguided approach is built into the prompt of the question posed by Law and Liberty’s editors:

“Should a democracy through concerns about corruption in politics and equality in participation determine the formation of political opinions through regulations or should campaign regulation be guided by the principle of the free formation of opinion that emerges spontaneously in society?”

Let us try reframing the question this way: Should a democratic society, one committed to both free economic markets and principles of political equality, allow those with great economic power—power they have accrued thanks to state-conferred benefits—to use it to protect their already privileged economic positions?

I confess I laughed aloud when I read the Law and Liberty prompt and its reference to “opinion that emerges spontaneously in society.” This assumes the existence of some state of nature, an unregulated world untouched by government, in which all of us develop “opinions” about politics, “opinions” presumably leading to votes for candidates and ballot measures, which would emerge out of unfettered discussion and deliberation but for the government’s interference through burdensome, unnecessary, and unconstitutional campaign-finance regulation.

The idea here is that, without limits on how much money people can give to candidates and spend on elections, the invisible hand of the political process would work, consistent with the vision of the Founders, to give us a blissful democracy in which the separation of powers (and I presume federalism), brilliantly inserted into the Constitution by the Framers, would serve as the sole check on government abuse and misalignment between politicians’ pursuits and the popular will.

Whether this state of nature actually existed at any point in history is doubtful. In any case it certainly does not describe the state of politics in the 21st century United States. The question as posed by Law and Liberty commits the “Nirvana fallacy”: it compares current conditions to an idealized time that has never existed.

Rather than a state of nature, the current United States is one in which laws facilitate the accumulation and protection of wealth, for some much better than others, for the “haves” much more than the “have-nots.” It is no state of nature that allows hedge-fund managers, for example, to pay much lower taxes than they otherwise would thanks to the carried interest loophole. Indeed, legal systems strongly protecting private property rights are themselves a form of regulation, albeit regulation that lines up with the ideological predispositions of those who call themselves libertarians.

In this system of representative democracy coupled with unlimited personal wealth, individuals—hedge-fund managers, casino moguls, oil magnates, or others—can use their very large wealth, accumulated with the help of state laws and protections, to try to influence politics and policy. One way of doing so is by directing some of those economic resources to candidates and campaigns. During each election season candidates, parties, and outside groups spend literally billions of dollars on political activity aimed at tens of millions of American voters, much of the money destined for television, radio, and now Internet advertising aimed at turning out supporters and swaying the least informed voters. An 18th century salon it is not.

The notion that there is such a thing as “free formation of opinion” emerging spontaneously outside of the structure of government regulation and protection of property rights is incorrect. So, too, is Law and Liberty’s underlying assumption that campaign laws aimed at preventing corruption or promoting political equality simply “determine” public opinion. I am aware of no proof of such determinacy and Professor Muller offers none.

– See more at: http://www.libertylawsite.org/liberty-forum/campaign-finance-law-the-state-of-nature-and-the-nirvana-fallacy/#sthash.yP3fhLpb.dpuf

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D83427&title=%26%238220%3BCampaign-Finance%20Law%2C%20the%20State%20of%20Nature%2C%20and%20the%20Nirvana%20Fallacy%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, 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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160608/df10468b/attachment.html>