[EL] ELB News and Commentary 3/8/16
Rick Hasen
rhasen at law.uci.edu
Tue Mar 8 07:50:16 PST 2016
“Essay: Softening Voter Id Laws Through Litigation: Is it Enough?”
<http://electionlawblog.org/?p=80636>
Posted onMarch 8, 2016 7:48 am
<http://electionlawblog.org/?p=80636>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2743946>which I will
be presenting at a conference, *“*Casting Votes, Counting Votes for
Election 2016: Democracy and Law in Action
<http://www.legalscholarshipblog.com/2015/12/07/casting-votes-counting-votes-for-election-2016-democracy-law-in-action-madison-wi/>,”
April 1-2, 2016, sponsored by The Institute for Legal Studies at the
University of Wisconsin School of Law. Here is the abstract:
Headlines about voter identification laws often place court rulings
in a simple win or loss frame. For example, the New York Times
headline describing the result in Crawford v. Marion County Election
Board, a 2008 case involving the constitutionality of Indiana’s
strict voter identification law, read: In a 6-3 Vote, Justices
Uphold a Voter ID Law. Similarly, in reporting on the 2015 decision
of the United States Court of Appeals for the Fifth Circuit
involving Texas’ voter identification law, the Associated Press
article was headlined Federal Court Strikes Down Tough Texas Voter
ID Law.
In fact, the results in both cases were more nuanced. As reporter
Linda Greenhouse explained in that New York Times article, the
Supreme Court decision in Crawford was fractured. Although a
majority of the Court rejected a full facial challenge to Indiana’s
law on equal protection grounds, a plurality of the Court, as well
as the dissenters, left open the possibility that Indiana’s law
could be unconstitutional “as applied” to certain voters who faced
special burdens in getting a voter identification law. Further,
although the Fifth Circuit did hold in Veasey v. Abbott that Texas’s
voter identification law violated Section 2 of the Voting Rights
Act, the Court held that the appropriate remedy would not be a
wholesale abandonment of the law; instead the appeals court directed
the lower federal district court to allow Texas to use its law in
most instances, but to craft a remedy which would allow those facing
special burdens additional ways to prove identity and cast a ballot.
In theory, softening of voter identification laws through litigation
is a positive development aimed at avoiding disenfranchisement of
both voters who face special burdens obtaining an acceptable
government-issued identification necessary to vote and of those
voters who face confusion or administrative error. In practice,
however, softening may do less to alleviate the actual burdens of
voter identification laws than to make judges feel better about
their Solomonic rulings. In fact, softening devices still leave an
uncertain number voters disenfranchised. These burdens might be
justified if there were evidence that state voter identification
laws solve a serious problem, but there is no such evidence.
This brief Essay first describes the theoretical softening which
emerged in some voter identification litigation. It then explains
that such softening offers less than meets the eye in helping voters
facing difficulties voting in states with strict voter
identification requirements. It concludes that courts should strike
down fully strict voter identification laws, because the laws
deprive at least some voters of the ability to cast a valid vote for
no good reason, and the softening devices do not do enough.
This draft is still very much in progress. Comments welcome!
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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>
“The Nation’s Election Watchdog Just Hit a New Level of Dysfunction”
<http://electionlawblog.org/?p=80655>
Posted onMarch 8, 2016 7:46 am
<http://electionlawblog.org/?p=80655>byRick Hasen
<http://electionlawblog.org/?author=3>
Russ Choma for Mother Jones
<http://www.motherjones.com/politics/2016/03/federal-election-commission-just-hit-new-low>:
In 2011, former Bain Capital executive Edward Conrad decided to give
$1 million to the super-PAC supporting the presidential bid of his
pal Mitt Romney. But he didn’t contribute the cash directly.
Instead, he put the money in a generically named shell company he
had recently created, which then cut a check to the super-PAC,
Restore Our Future. Election law prohibits donors from taking steps
to hide their identities, and campaign finance activists pressed the
Federal Election Commission to investigate. Five years later, the
FEC—which since at least 2010 has been existing in a fugue state of
partisan paralysis—has finally rendered a decision on whether it
will probe the matter, which is something of a post-/Citizens
United/test case. Nah, we’ll pass on this one, the FEC decided on
Monday.
In a letter sent to the Campaign Legal Center, a nonpartisan
campaign finance watchdog that complained about the donation in
2011, the FEC reported that its six commissioners deadlocked 3-to-3
on whether to open an investigation into the donation. Keep in mind
that they didn’t split on whether there had been a violation of law,
or if Conrad should be punished—just whether they should open an
inquiry. The FEC also informed the Campaign Legal Center that the
commission had deadlocked on a similar case from 2011, involving
donations made via two other shell corporations to Romney’s super-PAC.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Seeing Trump as vulnerable, GOP elites now eye a contested
convention” <http://electionlawblog.org/?p=80653>
Posted onMarch 8, 2016 7:44 am
<http://electionlawblog.org/?p=80653>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/politics/seeing-trump-as-vulnerable-gop-elites-now-eye-a-contested-convention/2016/03/07/976d2c62-e487-11e5-a6f3-21ccdbc5f74e_story.html>
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“How well-meaning political reformers are helping to elect President
Trump” <http://electionlawblog.org/?p=80651>
Posted onMarch 8, 2016 7:38 am
<http://electionlawblog.org/?p=80651>byRick Hasen
<http://electionlawblog.org/?author=3>
David Brookman
<https://www.washingtonpost.com/news/in-theory/wp/2016/03/07/how-well-meaning-political-reformers-are-helping-to-elect-president-trump/>in
WaPo:
Students of polarization and pundits alike bemoan a “disconnect”
between extreme elites and centrist voters, arguing that voters must
urgently be empowered to resolve it. But what if voters would
actually like to see today’s politicians become more extreme on many
issues? What if many voters actually do, at the end of the day,
agree with Trump? In that case, reforms that empower voters may have
less appealing effects than supporters argue.
Advocates of reforms would be wise to consider this possibility as
they upend centuries-old institutions in the name of democracy.
Faithful representation of public opinion is scarcely the sole
standard to which representative democracy aspires.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Read Govt Opposition and Blagojevich Cert Opposition Reply
<http://electionlawblog.org/?p=80646>
Posted onMarch 8, 2016 7:33 am
<http://electionlawblog.org/?p=80646>byRick Hasen
<http://electionlawblog.org/?author=3>
Government opposition
<http://electionlawblog.org/wp-content/uploads/15-664-Blagojevich-v.-US-Opp.pdf>
Blagovevich Reply
<ttp://electionlawblog.org/wp-content/uploads/15-664-Blagojevich-v.-US-Opp.pdf>
Could well be held and then GVAR’ed from the McDonnell case (assuming
there’s not a 4-4 split in that case)..
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“Mitch McConnell Bets That Impasse on Court Now Helps G.O.P. Later”
<http://electionlawblog.org/?p=80644>
Posted onMarch 8, 2016 7:30 am
<http://electionlawblog.org/?p=80644>byRick Hasen
<http://electionlawblog.org/?author=3>
Carl Hulse
<http://www.nytimes.com/2016/03/08/us/politics/mitch-mcconnell-bets-that-impasse-on-court-now-helps-gop-later.html?ref=politics&_r=0>for
the NYT.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Citizens United is only 15% of the political cash problem”
<http://electionlawblog.org/?p=80642>
Posted onMarch 8, 2016 7:29 am
<http://electionlawblog.org/?p=80642>byRick Hasen
<http://electionlawblog.org/?author=3>
Nick Penniman and Wendell Potter have writtenthis LA Times oped.
<http://www.latimes.com/opinion/op-ed/la-oe-penniman-potter-political-campaign-finance-reform-20160308-story.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“More Latinos Seek Citizenship to Vote Against Trump”
<http://electionlawblog.org/?p=80640>
Posted onMarch 7, 2016 8:40 pm
<http://electionlawblog.org/?p=80640>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2016/03/08/us/trumps-rise-spurs-latino-immigrants-to-naturalize-to-vote-against-him.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news>:
Over all, naturalization applications increased by 11 percent in the
2015 fiscal year over the year before, and jumped 14 percent during
the six months ending in January, according to federal figures. The
pace is picking up by the week, advocates say, and they estimate
applications could approach one million in 2016, about 200,000 more
than the average in recent years.
While naturalizations generally rise during presidential election
years, Mr. Trump provided an extra boost this year. He began his
campaign in Junedescribing Mexicans as drug-traffickers
<http://www.nytimes.com/politics/first-draft/2015/06/16/choice-words-from-donald-trump-presidential-candidate/>and
rapists. His pledge to build a border wall and make Mexico pay for
it has been a regular applause line. He has vowed to create a
deportation force to expel the estimated 11 million immigrants here
illegally, evoking mass roundups of the 1950s.
Among 8.8 million legal residents eligible to naturalize, about 2.7
million are Mexicans, the largest national group, federal figures
show. But after decades of low naturalization rates, only 36 percent
of eligible Mexicans have become citizens, while 68 percent of all
other immigrants have done so, according to the Pew Research Center.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Challenge to Cruz’s ‘natural born’ status dismissed due to blown
deadlines” <http://electionlawblog.org/?p=80638>
Posted onMarch 7, 2016 8:35 pm
<http://electionlawblog.org/?p=80638>byRick Hasen
<http://electionlawblog.org/?author=3>
The Albany Times Union reports.
<http://blog.timesunion.com/capitol/archives/246804/challenge-to-cruzs-natural-born-status-dismissed-due-to-blown-deadlines/>
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Posted incampaigns <http://electionlawblog.org/?cat=59>
Democrat Backed by Republican IL Gov. Accused of Vote Buying in
Chicago <http://electionlawblog.org/?p=80633>
Posted onMarch 7, 2016 4:10 pm
<http://electionlawblog.org/?p=80633>byRick Hasen
<http://electionlawblog.org/?author=3>
$50 a vote
<http://www.ksl.com/index.php?nid=757&sid=38801866&title=chicago-prosecutors-looking-into-voter-buying-allegations>.
Inflation!
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Posted inchicanery <http://electionlawblog.org/?cat=12>,vote buying
<http://electionlawblog.org/?cat=43>
Bloomberg, Like Trump, Would Have Sold Himself as Too Rich to Be
Bought By Special Interests <http://electionlawblog.org/?p=80630>
Posted onMarch 7, 2016 2:39 pm
<http://electionlawblog.org/?p=80630>byRick Hasen
<http://electionlawblog.org/?author=3>
From the draft tv ad
<http://www.nytimes.com/2016/03/08/us/politics/michael-bloomberg-not-running-for-president.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news>:
He won’t take a dime in political contributions—never has—because he
finances his own campaigns. He will totally independent to take on
the special interests and push both parties to get things done….
The resonance of this message (along with the fervor of Bernie Sanders
supporters) shows how big money is still influencing our presidential
campaigns even if it can’t buy you Jeb
<https://www.washingtonpost.com/opinions/money-cant-buy-jeb-bush-the-white-house-but-it-still-skews-politics/2016/01/14/7c920780-b554-11e5-9388-466021d971de_story.html>.
Would Trump have been a viable candidate if he did not lend his own
campaign millions of dollars? What of Bloomberg if he /had/to depend
upon the support of many voters to get elected. Money buys you a seat at
the table.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The FEC just made it easier for super PAC donors to hide their
identities” <http://electionlawblog.org/?p=80628>
Posted onMarch 7, 2016 2:22 pm
<http://electionlawblog.org/?p=80628>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/news/post-politics/wp/2016/03/07/the-fec-just-made-it-easier-for-super-pac-donors-to-hide-their-identities/?postshare=4761457388309014&tid=ss_tw>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Michael Bloomberg Will Not Enter Presidential Race”
<http://electionlawblog.org/?p=80626>
Posted onMarch 7, 2016 2:14 pm
<http://electionlawblog.org/?p=80626>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2016/03/08/us/politics/michael-bloomberg-not-running-for-president.html>
Michael R. Bloomberg
<http://topics.nytimes.com/top/reference/timestopics/people/b/michael_r_bloomberg/index.html?inline=nyt-per>,
who for months quietly laid the groundwork to run for president as
an independent, will not enter the 2016 campaign, he said Monday,
citing his fear that a three-way race could lead to the election of
a candidate who would imperil the security and stability of the
United States:Donald J. Trump
<http://www.nytimes.com/interactive/2016/us/elections/donald-trump-on-the-issues.html?inline=nyt-per>.
In a forceful condemnation of his fellow New Yorker, Mr. Bloomberg
said Mr. Trump has run “the most divisive and demagogic presidential
campaign I can remember, preying on people’s prejudices and fears.”
He said he was alarmed by Mr. Trump’s threats to bar Muslim
immigrants from entering the country and to initiate trade wars
against China and Japan, and he was disturbed by Mr. Trump’s
“feigning ignorance of David Duke
<http://www.nytimes.com/politics/first-draft/2016/02/28/donald-trump-declines-to-disavow-david-duke/?_r=0>,”
the white supremacist leader whose support Mr. Trump initially
refused to disavow….
But Mr. Bloomberg balked at the prospect of a race against Mr. Trump
andHillary Clinton
<http://www.nytimes.com/interactive/2016/us/elections/hillary-clinton-on-the-issues.html?inline=nyt-per>,
who has established a dominant lead over Mr. Sanders on the
Democratic side. In his column, Mr. Bloomberg said he could not in
good conscience enter a race that could lead to a deadlock in the
Electoral College — and to the election of Mr. Trump, or perhaps
Senator Ted Cruz of Texas…..
Trevor Potter, the election lawyer who was counsel to John McCain’s
2008 campaign, was retained to assemble legal teams to handle local
and state ballot-access issues, and address constitutional questions
that could arise from an inconclusive result in the Electoral College.
A ballot-access consultant, Michael Arno, leased nearly a dozen
offices in Texas and North Carolina to begin gathering signatures to
place Mr. Bloomberg on the ballot in all 50 states and the District
of Columbia.
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
Beth Garrett Remembrances <http://electionlawblog.org/?p=80623>
Posted onMarch 7, 2016 2:10 pm
<http://electionlawblog.org/?p=80623>byRick Hasen
<http://electionlawblog.org/?author=3>
Followingthis sad news, <http://electionlawblog.org/?p=80615>some
remembrances:
Ann Ravel: It is incredibly sad to hear about Beth’s death. She was a
commissioner on the California Fair Political Practices Commission when
I became chair. She was hardworking, thoughtful, and strong in her views
about ethics and campaign finance law. She vigorously supported
disclosure and transparency (having written influential articles about
the importance of voting cues. Though she was very busy as Provost at
USC, she called me to express her great enthusiasm after the filing of
the “dark money” litigation.
Adam Winkler: I met Beth at my very first campaign finance conference,
at the University of Texas back in the late 1990s. It was a memorable
conference. Rick presented a paper on restricting media endorsements of
candidates, which led Lucas Powe to liken Rick to Stalin. Needless to
say, I was nervous and felt out of place, a mere grad student in a small
room full of leading (and, like Powe, assertive, no-holds-barred)
scholars. Beth, a professor at the University of Chicago at the time,
went out of her way to make me feel comfortable. She sat next to me
during several sessions. She asked about my research and solicited my
reactions to various papers. I discovered that she had been largely the
author of Austin v. Michigan Chamber of Commerce while clerking for
Justice Marshall. She told me my unusual take on Austin — that it was
largely about protecting dissenting shareholders, not just restricting
corporate power — was correct. Beth eased my insecurity and made me feel
welcome in world of the campaign finance scholars. Years later, after
she moved to USC and we started an informal election law working group
with Dan Lowenstein, Bob Pushaw, Rick, and others, I came suspect that
she may have been flattering me on the meaning of Austin. But she had
done it to make me feel comfortable at a time of unease and self-doubt.
I have since tried to do the same for young scholars just trying to
break in. Beth was not only a great scholar but also a fine person. May
she rest in peace.
Dan Lowenstein: What terrible news! Horrible and tragic, indeed. For all
her hard work, Beth was by no means one-dimensional. She enjoyed
theater and the arts, could speak insightfully on almost any subject,
and was as gracious a person as one could hope to meet.
Adam Bonin: I took Intro to Federal Tax from Prof. Garrett in her first
year teaching at UChicago. She was tough but fair, and completely
thorough. Generous with her time in helping students one-on-one, and
beloved across the school’s wide ideological spectrum — see my classmate
https://twitter.com/AjitPaiFCC/status/706893238599344128as well. It’s a
horrible loss.
Ilya Shapiro: Here’s what I just tweeted in response to
Ajit:https://twitter.com/ishapiro/status/706899792161587200. I still
remember her enthusiasm during admitted students weekend at Chicago.
What a loss.
Bill Maurer: I did not know Professor Garrett well, but I had the
pleasure of debating her on campaign finance issues for the Federalist
Society. She was such a notably pleasant, intellectually honest, and
intelligent advocate. Even though we were ostensibly on different sides
of the issues, I relied on her scholarship often—scholarship that was
always extremely well-written, cogent, and groundbreaking. She
represented what is best in both academia and in the law. Our practice
area and profession are lessened by her passing. RIP.
Spencer Overton: I admired Beth’s scholarship and leadership, and I
appreciated her friendship. A piece she did on tax credits and campaign
contributions inspired at least three of my articles. She had a
perspective, but her work was measured and rigorous. I respected her
voice. I got to really know her when we served on the Common Cause
National Governing Board. We served together during a difficult time of
transition, and worked to get the organization into a stable space where
it could start a new chapter. I valued Beth’s move into academic
administration. The concept of building institutions that allow
thinkers to develop ideas that change the world resonated with me. I’m
sure her example influenced my current work at the Joint Center for
Political and Economic Studies. Smart. Leader. Public-minded. Good. I
am sad.
Ellen Aprill: Beth was not only incredibly smart, competent and focused,
but she was also one of the most efficient people I have ever met. Even
after she became Provost of USC with all the duties that position
entailed, she continued to be a productive scholar. One mutual friend
told me that Beth never wasted a minute — if she had a 15 minute gap in
her schedule, she would use that time to write. This ability
represented another of her many and diverse skills and talents.
Jessica Levinson: A few years out of law school I read a number of
Beth’s fine articles before writing my first piece. I essentially wrote
her a fan letter; I told her how much her clear thinking and writing was
helping me to organize my thoughts. I did not except to hear back. She
responded within about 10 seconds and invited me to lunch. After lunch
she offered to read whatever I wrote. Many months later I sent her my
piece with a note that essentially said, “thank you for the time and
inspiration, no need to comment, I’m sure you’re incredibly busy.” She
wrote back with thoughtful and helpful comments six hours later. The
delay was due to the fact that she got on a five hour flight moments
after receiving me email. That was Beth.
I will continue to update this post with additional remembrances as they
come in.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“This is not a court of law: Why GOP obstruction over Scalia seat
might open everyone’s eyes to a politicized Supreme Court”
<http://electionlawblog.org/?p=80621>
Posted onMarch 7, 2016 1:01 pm
<http://electionlawblog.org/?p=80621>byRick Hasen
<http://electionlawblog.org/?author=3>
Eric Segall
<http://www.salon.com/2016/03/07/this_is_not_a_court_of_law_why_gop_obstruction_over_scalia_seat_might_open_everyones_eyes_to_a_politicized_supreme_court/>in
Salon.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Groups Threaten to Sue Nevada Over Longstanding Voting Rights
Violations” <http://electionlawblog.org/?p=80619>
Posted onMarch 7, 2016 10:18 am
<http://electionlawblog.org/?p=80619>byRick Hasen
<http://electionlawblog.org/?author=3>
See here.
<http://www.demos.org/publication/notice-letter-nvra-enforcement-nevada>
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Posted inNVRA (motor voter) <http://electionlawblog.org/?cat=33>
“Cornell’s President Elizabeth Garrett Dies at Age 52, Less Than One
Year After Assuming Office” <http://electionlawblog.org/?p=80615>
Posted onMarch 7, 2016 9:25 am
<http://electionlawblog.org/?p=80615>byRick Hasen
<http://electionlawblog.org/?author=3>
Truly horrible and tragic news.
<http://cornellsun.com/2016/03/07/cornells-president-elizabeth-garrett-dies-at-age-52-less-than-one-year-after-assuming-office/> Our
condolences to Andrei and her entire family.
Beth was a brilliant, inquisitive, perceptive, generous colleague, who
worked as hard as anyone I know (I recall getting her the edit of an ELJ
article on Christmas Day, and she responded the same day. When I asked
her if she was taking the day off, she said she never took a day off).
No matter how busy she was, she was always ready to give comments on a
paper, or sound advice about law and academia.
I invite election law and legislation scholars to send me their
remembrances of Beth, which I will post on the blog.
Update: I am posting remembrances of Bethat this link
<http://electionlawblog.org/?p=80623>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Rebecca Bradley in college article: ‘Queers’ better off getting
AIDS” <http://electionlawblog.org/?p=80613>
Posted onMarch 7, 2016 8:58 am
<http://electionlawblog.org/?p=80613>byRick Hasen
<http://electionlawblog.org/?author=3>
Watch this explode
<http://www.jsonline.com/news/rebecca-bradley-called-gays-queers-who-opted-to-kill-themselves-b99682686z1-371276861.html>in
the Wisconsin Supreme Court race.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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