[EL] ELB News and Commentary 3/23/16
Rick Hasen
rhasen at law.uci.edu
Tue Mar 22 20:48:55 PDT 2016
Montana Files #SCOTUS Opposition in Emergency Open Primary Case
<http://electionlawblog.org/?p=81149>
Posted onMarch 22, 2016 8:44 pm
<http://electionlawblog.org/?p=81149>byRick Hasen
<http://electionlawblog.org/?author=3>
Find it atBallot Access News
<http://ballot-access.org/2016/03/22/montana-secretary-of-state-files-brief-with-u-s-supreme-court-in-defense-of-open-primary/>.
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Election Law’s Path in the Roberts Court’s First Decade: A Sharp
Right Turn but with Speed Bumps and Surprising Twists”
<http://electionlawblog.org/?p=81147>
Posted onMarch 22, 2016 8:41 pm
<http://electionlawblog.org/?p=81147>byRick Hasen
<http://electionlawblog.org/?author=3>
I have posted a revised version ofthis paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902>(forthcoming, /Stanford
Law Review/) to take into account the death of Justice Scalia. Here is
the revised abstract:
This Essay describes the path of election law jurisprudence in the
Roberts Court and then considers two questions. First, what explains
why the Court, while shifting in a strongly conservative direction,
had not moved more extremely to the right? Second, what options has
the Court left for election reformers who are unhappy with the
strongly conservative, although not maximally conservative, status quo?
On the first question, a combination of factors appears to explain
the trajectory and speed of the Roberts Court’s election law
decisions. The Roberts Court had been fundamentally conservative,
but for jurisprudential, temperamental, or strategic reasons,
Justices who have held the balance of power appear to prefer
incrementalism to radical change. Mandatory appellate jurisdiction
appeared the best way to force the Roberts Court’s hand, and it
often but not always led to a conservative result. Nearly half of
the Roberts Court’s election cases came on mandatory jurisdiction.
Finally, the five conservative Justices were not monolithic in their
views and are capable of surprise.
On the second question, the Court had left very limited space for
reform in certain areas, such as campaign finance. Where the Court
has greatly constrained choice, only minor improvements are possible
absent a change in the Supreme Court’s personnel. In these areas,
the problem is not that reformers have a “romanticized” vision of
democracy; it is that the structural impediments erected by the
Court have hobbled meaningful reform efforts. In contrast, in areas
in which the Court has mostly left room for decentralized election
law approaches, such as in the arena of election administration,
election fights are becoming both legal and political. Much of the
space for reform efforts depends upon the future composition of the
Court.
Part I briefly describes the path of election law in the Roberts era
across key election law areas including campaign finance, voting
rights, and election administration. Part II explains why the
Roberts Court was deeply conservative but not consistently
maximalist. Part III considers the space for election reform in the
Roberts Court era and beyond.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
administration <http://electionlawblog.org/?cat=18>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“New lawsuit challenges Montana campaign finance laws”
<http://electionlawblog.org/?p=81145>
Posted onMarch 22, 2016 8:38 pm
<http://electionlawblog.org/?p=81145>byRick Hasen
<http://electionlawblog.org/?author=3>
AP:
<http://www.nbcmontana.com/news/New-lawsuit-challenges-Montana-campaign-finance-laws/38638588>
The National Association for Gun Rights says it wants to send
mailers to voters about political candidates’ position on guns, but
worries the law would brand it a political committee subject to
disclosure of its donors and spending.
The Virginia-based issue-advocacy group filed a similar lawsuit in
2012, before last year’s revisions to the state’s campaign laws, and
lost.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Utah Republicans are holding a first-ever online presidential
primary. And it’s not going so well.”
<http://electionlawblog.org/?p=81143>
Posted onMarch 22, 2016 7:25 pm
<http://electionlawblog.org/?p=81143>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<https://www.washingtonpost.com/news/the-fix/wp/2016/03/22/utah-republicans-are-holding-a-first-ever-online-primary-and-its-not-going-so-well/?postshare=3511458699560427&tid=ss_tw>:
Unfortunately, Utah’s digital election night doesn’t seem to be
going as smoothly as Utah Republicans had hoped.
While Utah Republicans headed to their caucus in person on Tuesday
evening, anyone who had registered online by March 17 can log on
to utah.gop to vote between 7 a.m. and 11 p.m. local time and cast
their vote. But the Deseret Newsreports
<http://www.deseretnews.com/article/865650643/Utah-GOP-voters-encounter-troubles-voting-online.html>some
voters got error messages when they tried to navigate beyond the
first page.
“I must have tried eight or nine times without success,” Greg
Ericksen told the newspaper.
Others say they got stuck on the candidate page and couldn’t cast
their ballot. And still others say they got confused by links to the
candidates’ bios, thinking a click meant they were voting for a
certain candidate only to find they were suddenly on a different
website.
As of Tuesday night, party officials said about 10,000 of the 40,000
Utahns who applied to vote online were rejected because their IDs
couldn’t be verified. In an interviewwith the Salt Lake Tribune
<http://www.sltrib.com/news/3694691-155/utah-gops-online-voting-experiment-has>,
GOP Party Chairman Evans seemed to suggest the error was on the user
end: “Primarily it was people thinking they were approved to vote
online [but were not],” Evans said. “The other category were people
who received their PIN and it went to their spam folder or they just
deleted it.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,internet voting
<http://electionlawblog.org/?cat=49>,voting technology
<http://electionlawblog.org/?cat=40>
Would Long Lines at AZ Polling Places Have Happened if #SCOTUS
Hadn’t Killed Voting Rights Act Provision?
<http://electionlawblog.org/?p=81141>
Posted onMarch 22, 2016 5:38 pm
<http://electionlawblog.org/?p=81141>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://azcapitoltimes.com/news/2016/03/22/long-lines-bog-down-arizona-presidential-primary/>:
The Arizona presidential primary drew long lines Tuesday as people
waited at least an hour in many polling spots to cast their ballots
amid heightened interest in the polarizing contest for the White House….
Long lines were expected all day at polling places, Maricopa County
Elections Department spokeswoman Elizabeth Bartholomew said.
Lines snaked up to almost every one of the 60 polling sites across
the county, with the exception of remote locations such as Gila Bend
or Wickenburg.
“All we can do is thank them for their patience,” Bartholomew said
of voters enduring the delays. “They’re going to have to wait in line.”
The county cut the number of polling sites for this year’s
presidential primary from 200 in 2012 mainly as a money-saving
measure. In addition, the majority of voters get mail-in ballots,
and independents who can’t vote make up more than a third of the
electorate.
Evan Wyloge:
<https://twitter.com/EvanWyloge/status/712386380823801856>“I wonder if
the number of polling places we have in Maricopa County today would have
been OK’d under VRA Sect.5. Good thing that’s gone.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Sixth Circuit loses patience with the IRS”
<http://electionlawblog.org/?p=81136>
Posted onMarch 22, 2016 11:49 am
<http://electionlawblog.org/?p=81136>byRick Hasen
<http://electionlawblog.org/?author=3>
Jonathan Adler
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/22/sixth-circuit-loses-patience-with-the-irs/?utm_medium=twitter&utm_source=twitterfeed>:
Today,nearly 1,050 days
<http://taxprof.typepad.com/taxprof_blog/2016/03/the-irs-scandal-day-1048.html/>since
the start of the IRS scandal triggered by allegations that the IRS
unlawfully and unethically targeted tea party and other conservative
organizations for special scrutiny, the litigation continues. One
allegedly targeted group brought suit against the IRS for its
conduct, and the IRS has resisted the litigation with the same
dilatory tactics that infuriated members of Congress.
In the latest development, a federal district court ordered the IRS
to turn over information concerning groups that were subject to the
mistreatment identified by the agency’s inspector general. The IRS
didn’t like this and is now seeking a writ of mandamus in order to
avoid having to disclose more information. The U.S. Court of Appeals
for the 6th Circuit is not amused.
Today’s opinion in/In re United States of America/United States v.
NorCal Tea Party Patriots
<http://www.ca6.uscourts.gov/opinions.pdf/16a0069p-06.pdf>/ denying
the IRS petition begins:
Among the most serious allegations a federal court can address are
that an executive agency has targeted citizens for mistreatment
based on their political views. No citizen—Republican or Democrat,
socialist or libertarian —should be targeted or even have to fear
being targeted on those grounds. Yet those are the grounds on which
the plaintiffs allege they were mistreated by the IRS here. The
allegations are substantial: most are drawn from findings made by
the Treasury Department’s own Inspector General for Tax
Administration. Those findings include that the IRS used political
criteria to round up applications for tax-exempt status filed by so
called tea-party groups; that the IRS often took four times as long
to process tea-party applications as other applications; and that
the IRS served tea-party applicants with crushing demands for what
the Inspector General called “unnecessary information.”
Yet in this lawsuit the IRS has only compounded the conduct that
gave rise to it. The plaintiffs seek damages on behalf of themselves
and other groups whose applications the IRS treated in the manner
described by the Inspector General. The lawsuit has progressed as
slowly as the underlying applications themselves: at every turn the
IRS has resisted the plaintiffs’ requests for information regarding
the IRS’s treatment of the plaintiff class, eventually to the open
frustration of the district court. At issue here are IRS “Be On the
Lookout” lists of organizations allegedly targeted for unfavorable
treatment because of their political beliefs. Those organizations in
turn make up the plaintiff class. The district court ordered
production of those lists, and did so again over an IRS motion to
reconsider. Yet, almost a year later, the IRS still has not complied
with the court’s orders. Instead the IRS now seeks from this court a
writ of mandamus, an extraordinary remedy reserved to correct only
the clearest abuses of power by a district court. We deny the petition.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Voting Rights Advocates Ask Court to Immediately Protect the Right
of North Carolinians to Vote” <http://electionlawblog.org/?p=81134>
Posted onMarch 22, 2016 11:47 am
<http://electionlawblog.org/?p=81134>byRick Hasen
<http://electionlawblog.org/?author=3>
Release
<http://www.demos.org/press-release/voting-rights-advocates-ask-court-immediately-protect-right-north-carolina-citizens-vo>:
Yesterday, a coalition of voting rights advocates and North Carolina
citizens asked a federal judge in Winston-Salem to issue an interim
order to prevent widespread disenfranchisement in the November 2016
general election before the lawsuit they filed is resolved.
Action NC, Democracy North Carolina, the A. Philip Randolph
Institute, and three North Carolina voters filed a lawsuit against
state officials in charge of the State Board of Elections (SBOE),
the Department of Health and Human Services (DHHS), and the Division
of Motor Vehicles (DMV) alleging pervasive violations of National
Voter Registration Act of 1993 (NVRA) by DHHS and the DMV. The
plaintiffs in the lawsuit are represented by Morrison & Foerster
LLP, Demos, Project Vote, the Lawyers’ Committee for Civil Rights
Under Law, and Southern Coalition for Social Justice.
“North Carolina’s NVRA violations are keeping eligible North
Carolina citizens off the rolls, and, if uncorrected, will prevent
these citizens from participating in the presidential election in
November,” said Matthew D’Amore, a partner at Morrison & Foerster,
which is representing the coalition pro bono. “The Board of
Elections hasn’t fixed the problems raised in the complaint, and
immediate action by the Court is therefore necessary to ensure that
the state fulfills its obligations to provide critical voter
registration opportunities to the people of North Carolina so they
can vote this fall.”
In their request for a preliminary injunction, the advocates cite
evidence that North Carolinians were turned away from the polls
during last week’s presidential primary election, despite having
attempted to register to vote at the DMV. They also point to
evidence demonstrating that DHHS is systematically ignoring the
NVRA’s requirements that it provides voter registration
opportunities to its clients.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,NVRA (motor voter)
<http://electionlawblog.org/?cat=33>
“Voting Rights 2016: Native Americans Struggle To Overcome Barriers
Ahead Of Arizona Elections” <http://electionlawblog.org/?p=81132>
Posted onMarch 22, 2016 9:14 am
<http://electionlawblog.org/?p=81132>byRick Hasen
<http://electionlawblog.org/?author=3>
IBT reports
<http://www.ibtimes.com/voting-rights-2016-native-americans-struggle-overcome-barriers-ahead-arizona-2340458>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“How to Fight Big Money in 2016 and Beyond”
<http://electionlawblog.org/?p=81130>
Posted onMarch 22, 2016 8:14 am
<http://electionlawblog.org/?p=81130>byRick Hasen
<http://electionlawblog.org/?author=3>
Layne Americaner writes
<http://www.thenation.com/article/how-to-fight-big-money-in-2016-and-beyond/>for
The Nation.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
--
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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