[EL] ELB News and Commentary 3/24/16

Rick Hasen rhasen at law.uci.edu
Thu Mar 24 08:39:43 PDT 2016


    My Thoughts on AZ Long Lines: Incompetence, Not Vote Suppression,
    and Blame #SCOTUS First <http://electionlawblog.org/?p=81186>

Posted onMarch 24, 2016 8:38 am 
<http://electionlawblog.org/?p=81186>byRick Hasen 
<http://electionlawblog.org/?author=3>

The other day, while voting was taking place in AZ, I had a post 
entitled Would Long Lines at AZ Polling Places Have Happened if #SCOTUS 
Hadn’t Killed Voting Rights Act Provision? 
<http://electionlawblog.org/?p=81141>  My point was that Maricopa 
County’s decision to cut the number of polling places by 2/3 would not 
have been possible before the Supreme Court decided the 2013 Shelby 
County v. Holder case because to do so Arizona, which had been covered 
by Section 5 of the Voting Rights Act, would have had to demonstrate 
(and likely would not have been able to demonstrate) that doing so would 
not have made protected minority voters in Maricopa County (lots of 
Latino and Native American voters) worse off.  So this review would have 
made a big difference.

Which brings me to my point today. Section 5 worked not only to stop 
intentional minority vote suppression but also bureaucratic 
incompetence. The election administrator of Maricopa County, Helen 
Purcell, made a decision to cut polling places apparently to save money 
(there is always pressure from state and local governments to skimp on 
resources for election administration), and partially out a mistaken 
vast underestimation of election day turnout.

Now people want off with Purcell’s head, claiming intentional voter 
suppression. People are angry, and justifiably so. Bernie Sanders said 
that waiting5 hours to vote is a disgrace. 
<http://www.cnn.com/2016/03/23/politics/arizona-voting-suppression/index.html>(He’s 
right.)  Here’s Clinton’s campaign lawyerMarc Elias 
<https://www.reddit.com/user/Marc_Elias/> saying that both Sanders and 
Clinton voters were disadvantaged (all voters were); here’sthe mayor of 
Phoenix 
<http://www.azcentral.com/story/news/politics/elections/2016/03/23/maricopa-county-recorder-helen-purcell-admits-fault-long-primary-lines/82165730/>(rightfully) 
calling for a DOJ investigation.  Purcell did not help herself by giving 
an interview 
<https://www.rawstory.com/2016/03/watch-az-recorder-refuses-to-take-blame-for-5-hour-waits-after-cutting-polling-places-from-200-to-60/>where 
the first person she blamed for long lines was “the voters:”

    **“Just to start, obviously you’ve heard of all the frustration. Who
    is to blame for this, these long lines?” Purcell was asked.

    “Well, the voters for getting in line, maybe us for not having
    enough voting places,” she replied.

Purcell has since apologized.

But there’s no good evidence that Purcell was motivated to suppress the 
vote. I have heard from a number of people that Purcell (a Republican)is 
a straight shooter 
<https://twitter.com/bmaz/status/712806583139323904>and works with a 
Democratic head of elections. This seems like a perfect example of 
Hanlon’s razor: don’t explain with malfeasance that which can be 
explained by incompetence.

Purcell screwed up. Maybe she doesn’t deserve to be in office after this 
screw up (thank goodness this was not for the general election and the 
race was not close). But I don’t see evidence she someone like a Kris 
Kobach trying to intentionally make it harder for likely Democrats to vote.

But thank John Roberts and Co. that this did not get a closer look from 
federal officials before the election took place.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,Supreme Court 
<http://electionlawblog.org/?cat=29>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    Super Nerdy #SCOTUS Question for Appellate Gurus
    <http://electionlawblog.org/?p=81184>

Posted onMarch 24, 2016 8:19 am 
<http://electionlawblog.org/?p=81184>byRick Hasen 
<http://electionlawblog.org/?author=3>

When the Supreme Court divides 4-4 in a case coming up on a cert. 
petition, we know that means the lower court ruling stands and that 
there is no precedential value to that decision( i.e., it does not mean 
the lower court decision was right). That means, for example, that in 
the /Zubik /contraception case, if the Court divides 4-4 that does not 
mean the lower court decision was right, and he have the prospect of a 
continued circuit split, with the law in the 8th Circuit being different 
than the law in all the other circuits which have come out the other way.

But what about if the Court splits 4-4 in a case that has come up on a 
direct appeal, like /Evenwel/, or /Person/, both cases argued this term 
from a direct appeal. We know ordinarily that a Supreme Court opinion 
not to hear a case and to affirm or dismiss /does/mean the lower court 
got the result right, even if not for the right reasons.  Is it the same 
implication if the Court divides 4-4?  Are those decisions binding 
across the country?

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    “Why hasn’t Internet voting caught on? This expert has a nefarious
    theory.” <http://electionlawblog.org/?p=81182>

Posted onMarch 24, 2016 8:00 am 
<http://electionlawblog.org/?p=81182>byRick Hasen 
<http://electionlawblog.org/?author=3>

I don’t buy this 
<https://www.washingtonpost.com/news/the-fix/wp/2016/03/24/why-havent-online-elections-caught-on-this-expert-has-a-nefarious-theory/>at 
all.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,internet voting 
<http://electionlawblog.org/?cat=49>


    “Shadow campaign to deny Trump his delegates begins”
    <http://electionlawblog.org/?p=81180>

Posted onMarch 24, 2016 7:56 am 
<http://electionlawblog.org/?p=81180>byRick Hasen 
<http://electionlawblog.org/?author=3>

Politico 
<http://www.politico.com/story/2016/03/inside-the-shadow-campaign-to-deny-trump-the-gop-nomination-221172>:

    Madrid’s visit to South Dakota on Saturday marked one of the
    earliest signs that the shadow campaign for the Republican
    nomination has begun. Kasich and Cruz are scrambling to secure
    commitments from bound delegates to break off on a second-ballot and
    vote against Trump. In many cases, that means asking delegates to
    buck Republican primary voters in the name of settling on a nominee.

    The fight will heat up in April, when a slew of states — including
    Arizona, Colorado and North Dakota — begin selecting their own slate
    of delegates, using methods ranging from statewide and Congressional
    district conventions to meetings of state party leaders to
    county-level votes or caucuses.

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Posted incampaigns <http://electionlawblog.org/?cat=59>,political 
parties <http://electionlawblog.org/?cat=25>,primaries 
<http://electionlawblog.org/?cat=32>


    “Sanders, Clinton want campaign finance overhaul, but face huge
    obstacles” <http://electionlawblog.org/?p=81178>

Posted onMarch 24, 2016 7:55 am 
<http://electionlawblog.org/?p=81178>byRick Hasen 
<http://electionlawblog.org/?author=3>

Carrie Levine 
<http://www.fairvote.org/trump_moves_into_majority_position_in_gop_nomination_contest>for 
CPI/Yahoo! News:

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “Rep. Brown Investigated by DOJ for Alleged Fraud”
    <http://electionlawblog.org/?p=81176>

Posted onMarch 24, 2016 7:52 am 
<http://electionlawblog.org/?p=81176>byRick Hasen 
<http://electionlawblog.org/?author=3>

Bloomberg BNA 
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=85707329&vname=mpebulallissues&jd=a0j1b1x6j0&split=0>:

    Rep. Corrine Brown (D-Fla.) is being investigated by the Justice
    Department regarding allegations that she might have engaged in a
    conspiracy to solicit fraudulent charitable contributions.
    The DOJ investigation was disclosed in a March 23statement
    <http://ethics.house.gov/sites/ethics.house.gov/files/20160323%20PR.pdf>from
    the House Ethics Committee, which said it was delaying its own probe
    of Brown to defer to the department. Ethics Committee investigations
    usually are delayed while a criminal probe is under way.
    Details of allegations against Brown were not revealed in the Ethics
    Committee statement. The latest action appeared to be related to a
    recent guilty plea by Carla Wiley, the head of the One Door for
    Education Foundation Inc., an organization linked to Brown.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>,chicanery 
<http://electionlawblog.org/?cat=12>


    “Trump Moves into Majority Position in GOP Nomination Contest”
    <http://electionlawblog.org/?p=81174>

Posted onMarch 24, 2016 7:51 am 
<http://electionlawblog.org/?p=81174>byRick Hasen 
<http://electionlawblog.org/?author=3>

FairVote 
<http://www.fairvote.org/trump_moves_into_majority_position_in_gop_nomination_contest>:

    Over the past six months, FairVote hasanalyzed
    <http://www.fairvote.org/new_polls_show_that_gop_split_vote_problem_continues>a
    number of Republican presidential nomination polls and collaborated
    with the College of William and Maryon our own national poll
    <http://www.fairvote.org/national_poll_highlights_what_republican_voters_really_think>,
    with an eye toward understanding who would likely win with a ranked
    choice voting rule. Notably, that winner rarely was Donald Trump,
    including in our poll and in most contests won by Trump– and indeed,
    Trump has still not won  a primary or caucus with a majority of the
    vote. However, as the field has been reduced to Trump, Ted Cruz and
    John Kasich, Trump’s frontrunner status is seemingly being accepted
    by more grassroots Republican voters, and he is poised to be a
    majority nominee.

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Posted inalternative voting systems 
<http://electionlawblog.org/?cat=63>,campaigns 
<http://electionlawblog.org/?cat=59>


    Without Comment, #SCOTUS Denies Montana Republicans Relief from Open
    Primary <http://electionlawblog.org/?p=81172>

Posted onMarch 24, 2016 7:50 am 
<http://electionlawblog.org/?p=81172>byRick Hasen 
<http://electionlawblog.org/?author=3>

The Court’s order (without any explanation or noted dissent) ishere 
<http://www.supremecourt.gov/orders/courtorders/032316zr_m648.pdf>.

Given how close this came to the election, the denial of relief for now 
is not a big surprise. But this is a case to keep an eye on concerning 
the merits.

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Posted inpolitical parties 
<http://electionlawblog.org/?cat=25>,political polarization 
<http://electionlawblog.org/?cat=68>


    “The GOP — and its big funders — scramble to insulate Congress from
    Trump” <http://electionlawblog.org/?p=81169>

Posted onMarch 24, 2016 7:47 am 
<http://electionlawblog.org/?p=81169>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo 
<https://www.washingtonpost.com/politics/the-gop--and-its-big-funders--scramble-to-insulate-congress-from-trump/2016/03/23/44b7734c-f10c-11e5-85a6-2132cf446d0a_story.html>:

    Establishment Republicans and their big-money allies are rushing to
    build a multistate defense system to protect Senate and House
    candidates, fearing that the party could lose its hold on Congress
    if Donald Trump is at the top of the ticket in November.

    The anxiety about Trump’s potential spillover effect on down-ballot
    races was underscored Wednesday when House Speaker Paul D. Ryan of
    Wisconsin lamented the “disheartened” state of the campaign and
    criticized the “identity politics” on display in the increasingly
    toxic race for the GOP presidential nomination.

    The efforts are being driven by major players such as the Koch
    brothers’ political network, which has already begun laying
    groundwork in Colorado, Ohio and Pennsylvania, along with the
    Crossroads organizations and the U.S. Chamber of Commerce.

      The behemoth Koch operation — which aims to spend almost $900
    million before the November elections — is now considering
    abandoning Trump as a nominee and focusing its resources on behalf
    of GOP congressional candidates.

See alsoBloomberg’s With GOP in Disarray, Super PACs Target Congress 
<http://www.bloomberg.com/politics/articles/2016-03-22/with-gop-in-disarray-super-pacs-target-congress?cmpid=BBD032316_POL>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “New York’s Coming ConCon Battle” <http://electionlawblog.org/?p=81167>

Posted onMarch 24, 2016 7:46 am 
<http://electionlawblog.org/?p=81167>byRick Hasen 
<http://electionlawblog.org/?author=3>

J.H. Snider 
<http://www.gothamgazette.com/index.php/opinion/6239-new-yorks-coming-concon-battle>for 
the Gotham Gazette.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    Drip, Drip, Drip Dept <http://electionlawblog.org/?p=81165>

Posted onMarch 24, 2016 7:33 am 
<http://electionlawblog.org/?p=81165>byRick Hasen 
<http://electionlawblog.org/?author=3>

Philly.com 
<http://www.philly.com/philly/blogs/capitolinq/Toomey-will-meet-with-SCOTUS-nominee.html?utm_source=hs_email&utm_medium=email&utm_content=27654219&_hsenc=p2ANqtz-_snkfZodQt4MEEv3Sn4zFQktQexAuxY9HEWJbdpq1mxNqtlIzUoFFLgyvl2g43GeAGxAPd9bFyBehgZ4lemnYmU8dn2w&_hsmi=27654219>:

    In a shift, Pennsylvania Sen. Pat Toomey said Wednesday he will meet
    with Supreme Court nominee Merrick Garland, but still insisted that
    the high court vacancy should not be filled until after November’s
    election.

    “President Obama’s team has asked if I would meet with Judge Merrick
    Garland, and I have agreed to do so out of courtesy and respect for
    both the president and the judge,” Toomey, a Republican, said in a
    statement Wednesday afternoon. “The vacancy left by Justice
    (Antonin) Scalia’s passing will not be filled until after the
    American people weigh in and select a new president, and I believe
    that is the best approach for deciding whether to alter the balance
    of the Supreme Court. I plan on making that clear to Judge Garland
    when I meet with him.”

    Toomey had previously suggested that a meeting would not be helpful
    because his concern is with the court’s make up, not the individual
    nominated.

    His announcement comesamid a week of protests and rallies
    <http://www.philly.com/philly/news/Sen_Toomey_tries_to_deflect_focus_on_his_Supreme_Court_stance.html>that
    Democrats and liberal groups have staged or planned outside his
    Pennsylvania offices and public events, withdemonstrators urging
    Toomey to “do your job.”
    <http://www.philly.com/philly/blogs/capitolinq/Toomey-launches-new-ads-as-Dems-keep-up-SCOTUS-pressure.html>

This isexactly the strategy I’ve recommended 
<http://talkingpointsmemo.com/cafe/take-streets-progressive-supreme-court-justice>to 
maximize the chances of a Garland hearing and possible vote.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    “NEW POLL: Nearly Half of Voters See SCOTUS Vacancy As Among Most
    Important 2016 Issues” <http://electionlawblog.org/?p=81163>

Posted onMarch 24, 2016 7:30 am 
<http://electionlawblog.org/?p=81163>byRick Hasen 
<http://electionlawblog.org/?author=3>

Fix the Court release <http://fixthecourt.com/2016/03/ftcpollpsb/>.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    “Straight Ticket Voting” <http://electionlawblog.org/?p=81161>

Posted onMarch 24, 2016 7:29 am 
<http://electionlawblog.org/?p=81161>byRick Hasen 
<http://electionlawblog.org/?author=3>

News from Indiana 
<http://www.hoosierlawreview.com/2016/03/23/straight-ticket-voting/>. 
  Would this hurt down-ticket Republcians in Indiana if Trump is on top 
of ticket?

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,political parties 
<http://electionlawblog.org/?cat=25>


    What are Donald Trump’s Views on Campaign Finance Regulation?
    <http://electionlawblog.org/?p=81159>

Posted onMarch 23, 2016 3:01 pm 
<http://electionlawblog.org/?p=81159>byRichard Pildes 
<http://electionlawblog.org/?author=7>

Has Donald Trump expressed any position, or been asked his position, on 
how elections should be financed?

We know he thinks large contributions are corrupting (“I give to 
everybody. When they call, I give. And you know what, when I need 
something from them two years later, three years later, I call them. 
They are there for me. That’s a broken system.” 
<http://abcnews.go.com/Politics/donald-trumps-surprisingly-honest-lessons-big-money-politics/story?id=32993736>).  
We know he considers SuperPacs a “scam 
<http://www.cnhttp//www.cnbc.com/2015/10/26/donald-trump-latest-super-pacs-are-a-scam.htmlbc.com/2015/10/26/donald-trump-latest-super-pacs-are-a-scam.html>.”  
And a significant part of his appeal to supporters in the primaries is 
that he is self-funding his campaign.  As others have pointed out, on 
money in politics, he sounds not all that different from Bernie Sanders 
or Hillary Clinton.

So what is his position on how to fix the system he considers broken?  
Would he favor public financing?  Would he favor caps on how much 
outside groups or individuals could spend, which would require 
overturning Buckley?  Or caps on how much campaigns could spend too?  Or 
other approaches?

I ask in all seriousness.  A while back, I noted that historically, the 
demands to regulate the role of money in American democracy had often 
united populist forces on both the right and left of the political 
spectrum. The Jacksonian tradition, to which Trump can perhaps be 
considered an heir, was centrally about reducing the perceived influence 
of big money on American democracy.  On the Supreme Court, Justices from 
the Western United States who usually were considered somewhat 
conservative (White and O’Connor) or conservative (Rehnquist) had voted 
to uphold campaign finance regulations.  In more recent decades, the 
issue became far more polarized in partisan terms, at least among 
elected officials.

Trump’s indictment of the current system has struck a bell with his 
supporters.  Knowing what he would propose to fix the system would be of 
considerable interest.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    “Money Can’t Buy Love — or in Some Cases, Even Elections”
    <http://electionlawblog.org/?p=81157>

Posted onMarch 23, 2016 7:01 am 
<http://electionlawblog.org/?p=81157>byRick Hasen 
<http://electionlawblog.org/?author=3>

Roll Call reports. 
<http://www.rollcall.com/news/home/money-cant-buy-love-cases-even-elections>

See my earlier**Money Can’t Buy Jeb Bush the White House, But It Still 
Skews Politics <http://wapo.st/1KfwFqh>,/Washington Post/, January 14, 2016.

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


    “Voting Rights Institute Receives Prestigious MacArthur Grant”
    <http://electionlawblog.org/?p=81155>

Posted onMarch 23, 2016 7:00 am 
<http://electionlawblog.org/?p=81155>byRick Hasen 
<http://electionlawblog.org/?author=3>

Release. 
<http://www.campaignlegalcenter.org/news/press-releases/voting-rights-institute-receives-prestigious-macarthur-grant>

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Posted inelection law biz <http://electionlawblog.org/?cat=51>


    “Wittman v. Personhuballah – A Standing-Only Recap”
    <http://electionlawblog.org/?p=81153>

Posted onMarch 23, 2016 6:59 am 
<http://electionlawblog.org/?p=81153>byRick Hasen 
<http://electionlawblog.org/?author=3>

Smart thoughts 
<http://narrowestgrounds.blogspot.com/2016/03/wittman-v-personhuballah-standing-only.html>from 
Asher Steinberg.

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>


    “Trump’s top lawyer helped open political spending floodgates”
    <http://electionlawblog.org/?p=81151>

Posted onMarch 23, 2016 6:43 am 
<http://electionlawblog.org/?p=81151>byRick Hasen 
<http://electionlawblog.org/?author=3>

Smart Zach Roth 
<http://www.msnbc.com/msnbc/trumps-top-lawyer-helped-open-political-spending-floodgates>for 
MSNBC:

    Donald Trump has made his opposition to the flood of big money in
    politics a centerpiece of his front-running campaign, frequently
    lamenting the role of super PACs and the outsized sway of wealthy
    donors like the Koch brothers. But Trump’s top campaign lawyer,
    veteran Republican election attorney Donald McGahn, was a crucial
    player in creating the out-of-control campaign finance system that
    his boss now denounces.

    McGahn helped broker Monday’smeeting between Trump and Republican
    congressional leaders
    <http://www.msnbc.com/msnbc/donald-trump-huddle-republicans-dc-law-firm>,
    which took place at the Washington offices of the law and lobbying
    firm Jones Day, where McGahn is a partner. To date, the Trump
    campaign has paid Jones Day more than $500,000, according to Federal
    Election Commission (FEC) filings.

    McGahn’s key role on Team Trump undercuts the brash businessman’s
    claim that he’ll reduce the political influence of billionaires and
    special interests. And it suggests that Trump’s campaign may intend
    to tap into other sources of big money, using McGahn’s expertise to
    push the boundaries of the law.

    As a member of the FEC from 2008 to 2013, campaign finance reformers
    say, McGahn led the successful conservative effort to neuter the
    agency, with the result that today it is unable to respond to even
    seemingly egregious violations of campaign finance law. Soon after
    McGahn joined the FEC as its chair, its three Republican-appointed
    commissioners have consistently voted as a bloc against enforcement,
    stymieing the agency from taking action — a situation that has
    continued since he left.

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-- 
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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