[EL] Senator Whitehouse's NLJ piece

[Bill Maurer]

Senator Whitehouse argues that Citizens United would have been decided differently if the justices had been politicians, like Earl Warren, before coming to the court, he forgets that this was not the first time the Court considered the law that was struck down in that case. In the previous two times the Court considered it, former professional politicians voted to strike it down as violating the First Amendment. Here’s part of what a wrote in response to Jeffrey Rosen’s similar argument a few years ago:



Professor Rosen attributes the Court’s failure to predict this “backlash” to the fact that none of the Justices were politicians before coming to the Court. Rosen implies that, had some of the Justices been in politics prior to becoming justices, they would have understood how Citizens United would be received and, presumably, voted to uphold the law at issue in the case. He celebrates Justices like Warren, Douglas and Black, among others, who had political experience before coming to the Court.



Professor Rosen may have forgotten that Citizens United was not the first time Congress’s ban on political expenditures by corporations and unions had come before the Court. The Court had previously considered the ban twice and sidestepped the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, three justices dissented. These three justices would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas and Black. In the dissent, Justice Douglas called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:



Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.



Similarly, when the Court considered the law in 1948, four Justices dissented in the case. These Justices would have also reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas and Murphy. In case one is unfamiliar with the career of Justice Murphy, who died when he was just 59, he was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent noted:



A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.





Here’s the full piece.



http://makenolaw.com/blog/239-getting-it-wrong-on-citizens-united/



I also found it interesting that Senator Whitehouse wants the government to have the ability to throw people in jail or fine them for spending money to distribute political speech, but calls private citizens who don’t follow his view of what the law should require “Orwellian.” Perhaps he should go back and actually read what Orwell said about, among other things, the ability to engage in peaceful political activity without threat of government violence and how oppression can seem attractive when it comes wrapped in a blanket of euphemisms and slogans. His knowledge of Orwell seems on par with his understanding of the First Amendment and his familiarity with Supreme Court history.



Bill







From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen

Sent: Thursday, March 10, 2016 7:30 AM

To: law-election at uci.edu

Subject: [EL] ELB News and Commentary 3/10/16



stivus Celebration By Senate Judiciary Committee

Posted on March 10, 2016 7:29 am by Rick Hasen

NYT:

Members of the Senate Judiciary Committee on Thursday will get a prime opportunity to air their grievances over the handling of the Supreme Court vacancy when the panel gathers for its first business meeting since the death of Justice Antonin Scalia last month.



Posted in Supreme Court

“Trump considering former top Christie money man to help lead party fundraising”

Posted on March 10, 2016 7:27 am by Rick Hasen

WaPo:

Donald Trump is taking steps to try to shape the Republican National Committee’s fundraising operation if he secures the GOP presidential nomination, holding initial talks with longtime party fundraiser Ray Washburne about leading the effort.

Washburne, a former finance chairman of the RNC, most recently headed fundraising for New Jersey Gov. Chris Christie’s presidential bid. After Christie dropped out of the race, Washburne had conversations with the Trump campaign about helping raise money for him for the general election, according to people familiar with the discussions. Bloomberg Politics firstreported the talks.



Posted in campaign finance

“The Campaign-Finance Reform Wish List”

Posted on March 10, 2016 7:25 am by Rick Hasen

Eliza Newlin Carney writes.



Posted in campaign finance

“Trump would pursue criminal indictment of Clinton”

Posted on March 10, 2016 7:24 am by Rick Hasen

Politico reports.



Posted in campaigns, chicanery

“K Street money set looks to contain Trump damage”

Posted on March 10, 2016 7:17 am by Rick Hasen

Politico:

After tearing through Michigan and Mississippi Tuesday night, Donald Trump extolled the virtues of a Republican majority on Capitol Hill. It’s important “that our senators and that our congressmen get reelected,” he said.

GOP donors agree. But instead of locking arms with Trump, they’re looking past him — seeing the real estate mogul as a likely general election loser — and instead focusing their energy and money on retaining their firewall on Capitol Hill.

Republican business groups and operatives are going all out to save their majorities in Washington, stepping up fundraising outreach in recent weeks to protect the GOP-controlled Congress. Contributors are responding in kind, forking over piles of money to contain down-ballot collateral damage from a potential Trump nomination.



Posted in campaign finance, campaigns, lobbying

“Soros and Other Liberal Donors to Fund Bid to Spur Latino Voters”

Posted on March 10, 2016 7:02 am by Rick Hasen

NYT:

The billionaire George Soros and other liberal donors will bankroll a new $15 million campaign to mobilize Latinos and other immigrants this fall, hoping to channel outrage at the political rhetoric of Donald J. Trump and other Republicans into a surge of votes for Democratic candidates in November.

Strategists involved said the new spending would be the largest Democratic voter-turnout effort ever devoted exclusively to Latino and immigrant voters. Most of the money will be spent through organizations in Colorado, Florida and Nevada, states with large or growing Latino and Asian populations that will be pivotal in the presidential race and in the battle for control of the Senate.

The outreach, which will be coordinated through a new “super PAC” called Immigrant Voters Win PAC, will be more explicitly political and partisan than past efforts, the strategists said: The goal was to not only turn out committed Latinos already voting Democratic but also find and persuade immigrant swing voters. Ultimately, organizers hope to get at least 400,000 new Democratic voters to the polls in November.



Posted in campaign finance, campaigns

“Ducey signs bill to make ballot harvesting a felony”

Posted on March 10, 2016 6:58 am by Rick Hasen

Arizona Capitol Times:

Saying it will maintain election integrity, Gov. Doug Ducey on Wednesday signed legislation to make felons out of those who collect the ballots of others to bring them to the polls.

HB2023, which takes effect later this year, will allow judges to impose a presumptive one-year prison term and potential $150,000 fine for the current practice by civic and political groups of going out to see if people remembered to return the early ballots they had requested by mail.

Ducey’s signature came just hours after the measure gained final Senate approval on a party-line vote. And it came moments after state Republican Party Chairman issued a statement saying the change “restores the public’s respect for a process that had potentially dangerous implications and provided too much opportunity for fraud and tampering with an election.”





Posted in election administration

More Coverage of the Texas Voter ID Decision to Go En Banc

Posted on March 9, 2016 9:14 pm by Rick Hasen

Texas Tribune

Austin American Statesman

Here is my earlier analysis.





Posted in election administration, The Voting Wars, voter id, Voting Rights Act

“Why do we vote on Tuesdays? And why do states pay for primaries?”

Posted on March 9, 2016 9:07 pm by Rick Hasen

Former AL SOS Jim Bennett Al.com column.



Posted in election administration

“Campaign civility under preferential and plurality voting”

Posted on March 9, 2016 9:05 pm by Rick Hasen

Todd Donovan, Caroline Tolbert, and Kellen Gracey have written this article for Electoral Studies. Here is the abstract:

We present reasons to expect that campaigns are less negative under preferential voting. We then examine if preferential voting systems affect how people perceive the conduct of elections. This paper reports results from surveys designed to measure voters‘ perceptions of candidates’ campaigns, comparing places with plurality elections to those that used preferential voting rules. Our surveys of voters indicate that people in cities using preferential voting were significantly more satisfied with the conduct of local campaigns than people in similar cities with plurality elections. People in cities with preferential voting were also less likely to view campaigns as negative, and less likely to respond that candidates were frequently criticizing each other. Results are consistent across a series of robustness checks.



Posted in alternative voting systems

ELB Podcast Episode 10. Janai Nelson: Minority Voting Rights in 2016

Posted on March 9, 2016 8:51 pm by Rick Hasen

What has happened to African-American voting rights after the Supreme Court’s 2013 decision in Shelby County v. Holder? Can the Voting Rights Act still protect minority voting rights in states such as Alabama and Texas? What are the prospects that a new Congress will step in to protect everyone’s right to vote?

On Episode 10 of the ELB Podcast, we talk to the NAACP Legal Defense and Education Fund’sJanai Nelson.

You can listen to the ELB Podcast Episode 10 on Soundcloud or subscribe at iTunes.

(Note: This interview was recorded just before the 5th Circuit decided to hear the Texas voter identification case en banc.)



Posted in ELB Podcast, The Voting Wars, Voting Rights Act

Beth Garrett NYT Obitiuary

Posted on March 9, 2016 3:50 pm by Rick Hasen

Here.

My brief thoughts about Beth’s passing here, and remembrances from other (updated) here.





Posted in election law biz

Breaking: 5th Circuit to Hear Texas Voter ID Case En Banc, And This Could Be Final Court to Hear Case

Posted on March 9, 2016 3:15 pm by Rick Hasen

It is not clear what internal deliberations were taking place at the 5th Circuit which took the Court more than 5 months to issue this order, but the full 5th Circuit will consider Veasey v. Abbott en banc by the full court.  Veasey was significant because this was a case where the court gave a narrow but real victory to voter id plaintiffs in finding a Voting Rights Act Section 2 violation.  The stakes are especially high because this is a case which could divide 4-4 before the current Supreme Court, meaning what the entire 5th circuit does may be the final word on Texas’s law.

Given the makeup of the 5th Circuit, as well as the panel members in the original decision, it is not clear how the panel will vote in this case, but if I were plaintiffs I would not be too happy with this order.

There is also the issue of timing—the Fifth Circuit will rule, and who knows how close this will be to the election, and if the Court will let the voter id law be in effect for this election.  One can imagine judges on the 5th Circuit who want Texas to use the voter id law in this election to drag their feet long enough to assure a decision does not come until after the election.

Here is my analysis of the earlier panel decision:

A unanimous panel of the United States Court of Appeals for the Fifth Circuit has issuedan opinionwhich is a great (but not complete) victory for those challenging Texas’s strict voter id law. The court affirms that the law violates Section 2 of the Voting Rights Act, but rejects the claim of discriminatory purpose and that the law constitutes a poll tax. The court remands for more findings on discriminatory purpose and for a decision on the remedy to the Section 2 violation. That remedy could allow Texas to keep enforcing its law for most people, so long as it gives ways to vote for those who face burdens under the law.

This is a narrow but important victory coming on the eve of the 50th anniversary of the passage of the Voting Rights Act.

As I noted when this panel was drawn, this is a relatively liberal panel in the 5th Circuit. [Note: the original version of this post referred to the panel as the “most liberal” and upon hearing from a lot of folks who follow the Fifth Circuit more than I do, this is incorrect.]

It is quite possible that Texas will try to take this case en banc to the full 5th Circuit, or perhaps to the Supreme Court. It is also possible that Texas would let this play out in another round at the district court and then appeal, but that seems less likely.

This also strikes me as an opinion written as narrowly as possible to still give a victory to the plaintiffs.  (Perhaps that was the price of a unanimous opinion?)  Winning on a Section 2 claim, even given the narrow remedial scope (more on that below) is still a significant victory for Voting Rights plaintiffs and the Department of Justice. We will see if it holds.

Here is some more detailed analysis of the case:

1. Discriminatory purpose. In a key loss for plaintiffs, the 5th Circuit remanded the question of racially discriminatory purpose to the trial court, under a standard that will likely be very hard to meet. Discriminatory purpose matters for a really important reason: not only will lead to a finding of the law’s unconstitutionality and violation of section 2 of the Voting Rights Act, it can also provide the basis (under Section 3 of the Act) for the court to order Texas “bailed-in” for federal oversight (“preclearance”) for up to 10 years. The 5th Circuit started its purpose analysis by noting: “We recognize the charged nature of accusations of racism, particularly against a legislative body, but we also recognize the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.” It said that the trial court erred in finding discriminatory purpose based upon (1) old evidence of Texas’s official racial discrimination in voting; (2) statements from opponents of the law about the purpose of the majority passing it; and (3) post-enactment statements, again mostly by opponents of the law. It said the trial court needs to find stronger evidence of contemporaneous statements and actions of the legislature in reaching this decision. So this issue gets remanded, but the onerous standards means it will be very tough to prove such purpose.

2. Discriminatory effect under Section 2. This is the big win for the plaintiffs. The 5th Circuit adopted the two part “vote denial” test for Section 2 claims used by the 4th and 6th circuits (which is probably the standard that the trial court in the North Carolina voter id case will apply).  Applying the test, the 5th Circuit affirmed the trial court’s finding of a Section 2 violation. It upheld the finding that the law will have a discriminatory impact on minority voters—that is, minority voters are disproportionately likely to lack one of the types of ID which are allowed under Texas law. Then, applying the “totality of circumstances” test/Gingles/Zimmer/Senate factors, the 5th Circuit found enough evidence to sustain a finding that SB 14 “produces a discriminatory result that is actionable because [it] . . . interact[s] with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters.” Particularly interesting in this analysis is the question whether Texas’s explanations for why it needed its law (antifraud, voter confidence) were tenuous. The trial court found that they were because the evidence did not support the need for voter id for either of these purposes, and this factor worked in favor of finding of a Section 2 violation. Also interesting is that the 5th Circuit relied (as I anticipated) on the Supreme Court’s recent Texas housing case in finding enough evidence of disparate impact. “As such, we conclude that the district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities’ voting rights in violation of Section 2 of the Voting Rights Act. As discussed below, we remand for a consideration of the appropriate remedy in light of this finding in the event that the discriminatory purpose finding is different.”

3. First and Fourteenth Amendment violations. Using the principle of constitutional avoidance, the 5th Circuit refused to consider whether the laws violated the fundamental right to vote, an issue which could be revived if, for example, an en banc 5th Circuit rejects the panel’s views on the Section 2 violation.

4. Poll tax. The court rejected the poll tax argument, in part because since the district court decision Texas amended its law to get rid of a payment to get underlying documents to get a state issued id. “As amended by SB 983, Texas law no longer imposes any direct fee for any of the documentation required to obtain a qualifying voter ID.” The court also held the indirect costs of voting could not constitute a poll tax. The court added this: “This record reveals that Plaintiffs and those who lack both SB 14 ID and underlying documentation face more difficulty than many Texas voters in obtaining SB 14 ID. Plaintiffs and others similarly situated often struggle to gather the required documentation, make travel arrangements and obtain time off from work to travel to the county clerk or local registrar, and then to the DPS, all to receive an EIC. These greater difficulties receive consideration in the Section 2 discriminatory effect analysis, but Supreme Court jurisprudence has not equated these difficulties, standing alone, to a poll tax.”

5. Remedy. The 5th Circuit held that a remedy after a finding of discriminatory effects should be narrower, and more deferential to the state, than one where there is also a finding of discriminatory purpose. The 5th Circuit strongly suggests that if the trial court on remand finds no discriminatory purpose, it needs to consider a narrower remedy than simply declaring the voter id law as something which cannot be used under any circumstances:

“Clearly, the Legislature wished to reduce the risk of in-person voter fraud by strengthening the forms of identification presented for voting. Simply reverting to the system in place before SB 14’s passage would not fully respect these policy choices—it would allow voters to cast ballots after presenting less secure forms of identification like utility bills, bank statements, or paychecks. SeeTEX. ELEC. CODE § 63.001(b) (West 2010). One possibility would be to reinstate voter registration cards as documents that qualify as acceptable identification under the Texas Election Code. The court could also decree that, upon execution of an affidavit that a person does not have an acceptable form of photo identification, that person must be allowed to vote with their voter registration card.” This considerably narrows the scope of a Section 2 victory.

6. Timing. The court cautions that this case should not run up against election deadlines, as it did last time, raising “Purcell principle” issues: “We urge the parties to work cooperatively with the district court to provide a prompt resolution of this matter to avoid election eve uncertainties and emergencies.”

7. A Constitutional Challenge to Section 2 for the Supreme Court? Lurking in a footnote is the 5th Circuit’s rejection of the argument that if Texas voter id law violates Section 2 of the Voting Rights Act, then Section 2 is unconstitutional. The issue is one the 5th Circuit likely won’t address, but it could come up for the Supreme Court. (FN 24: “To the extent the State argues that the “results” test is unconstitutional, we note that this court and many others have upheld its constitutional validity. See, e.g., Vera, 517 U.S. at 990–91 (collecting cases upholding Section 2’s constitutionality); Jones, 727 F.2d at 373–74. “Congressional power to adopt prophylactic measures to vindicate the purposes of the fourteenth and fifteenth Amendments is unquestioned” and “[o]n those occasions when the Court has stricken enactments as exceeding congressional power under the enforcement clauses of the fourteenth or fifteenth amendments, the congressional objective has usually deviated from the central purposes of those amendments—to ensure black equality.” Jones, 727 F.2d at 373–74. We are bound by these precedents to conclude that Section 2, as applied here, does not deviate from that purpose.”).





Posted in election administration, The Voting Wars, voter id, Voting Rights Act

“The Supreme Court’s Blind Spot: Understanding How Democracies Function”

Posted on March 9, 2016 11:41 am by Rick Hasen

Senator Sheldon Whitehouse has written this oped in the NLJ:

One need look no further than the Supreme Court’s disastrous decision in Citizens United v. Federal Election Commission and the constellation of cases that followed. These decisions have allowed the “tsunami of slime” of dark money, Orwellian “social welfare groups,” and the endless cycle of negative campaign ads to wreak havoc on our political system.

This result would have been clearly predictable to anyone with experience of the political fray, and the death grip that money can have over elections. But the Citizens Unitedcourt, made up primarily of justices whose professional life experience has mostly consisted of waiting to be on the Supreme Court, was oblivious.

Today we have a Supreme Court institutionally clueless on the realities of workaday democracy and politics. Experience might have constrained the rash and mistaken leaps taken by the Citizens United majority; with experience, the dissenters might have mounted a better defense.



Posted in campaign finance, Supreme Court

Quote of the Day: “Man-Hating Lesbians” Edition

Posted on March 9, 2016 11:26 am by Rick Hasen

“I intend to expose the feminist movement as largely composed of angry, militant, man-hating lesbians who abhor the traditional family”

—Wisconsin Supreme Court Justice Rebecca Bradley, writing in 1992 as a college student.



Posted in judicial elections

“GOP superlawyer on contested convention rule: ‘In fact, that’s not a rule'”

Posted on March 9, 2016 11:20 am by Rick Hasen

Politico:

A Republican presidential candidate doesn’t have to accrue a majority of delegates in eight states to be considered for the nomination during a contested convention in July, former Republican National Committee lawyer Ben Ginsberg — the party’s preeminent election law expert — said Wednesday.

“In fact, that’s not a rule,” Ginsberg told MSNBC early Wednesday morning. “That’s part of what’s called the temporary rules. Each convention has to pass for itself the number of states that put a candidate’s name in nomination.”

In 2012, revisions to Rule 40 raised the required number of states from five to eight, but no number is in effect for the Cleveland convention, according to Ginsberg. “The 2016 convention and its rules committee has to make that decision,” he said. “So there is no eight-state rule in effect right now for the next convention.





Posted in political parties, primaries

“Clerk: Some Genesee voters turned away from polls”

Posted on March 9, 2016 11:18 am by Rick Hasen

Detroit News:

Voters in Flint and several other Genesee County communities were improperly turned away from the polls Tuesday after their local precincts ran out of Democratic primary ballots, according to the county clerk.

“They called our office and we told them to get back in there and get back in line and don’t leave,” County Clerk John Gleason said Wednesday. “One voter told us there was a two-hour wait while they were getting new ballots.

“There’s an indication that voters may have gotten impatient. There’s no way to quantify the statement but I’m sure people got mad and left.”



Posted in election administration

“Rebecca Bradley ‘horribly embarrassed’ by anti-gay comments, Walker declines to condemn them”

Posted on March 9, 2016 9:04 am by Rick Hasen

Fox 6 Now reports.



Posted in judicial elections

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

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rhasen at law.uci.edu

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http://electionlawblog.org

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