[EL] ELB News and Commentary 5/18/16
Rick Hasen
rhasen at law.uci.edu
Wed May 18 07:34:02 PDT 2016
“A Supreme Court Not So Much Deadlocked as Diminished”
<http://electionlawblog.org/?p=82874>
Posted onMay 18, 2016 7:27 am
<http://electionlawblog.org/?p=82874>byRick Hasen
<http://electionlawblog.org/?author=3>
Smart Adam Liptak piece.
<http://www.nytimes.com/2016/05/18/us/politics/consensus-supreme-court-roberts.html?ref=politics>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Why ‘Getting Money Out Of Politics’ Hurts The Little Guy”
<http://electionlawblog.org/?p=82872>
Posted onMay 18, 2016 7:25 am
<http://electionlawblog.org/?p=82872>byRick Hasen
<http://electionlawblog.org/?author=3>
Brad Smith
writes<http://thefederalist.com/2016/05/18/why-getting-money-out-of-politics-hurts-the-little-guy/>for
The Federalist.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Democrats’ latest Supreme Court tactic: No recess till
confirmation” <http://electionlawblog.org/?p=82870>
Posted onMay 18, 2016 7:23 am
<http://electionlawblog.org/?p=82870>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo:
<https://www.washingtonpost.com/news/powerpost/wp/2016/05/18/democrats-latest-supreme-court-tactic-no-recess-till-confirmation/>
For three months, Senate Democrats have hammered their Republican
counterparts over their refusal to take up President Obama’s Supreme
Court nominee. Now House Democrats are looking to do some hammering
of their own.
Six of them plan to introduce a House bill Wednesday aimed at
pressuring Republicans in both houses on the Supreme Court issue.
The “Senate’s Court Obligations Trump Unconstitutional Stalling,” or
SCOTUS, resolution would force Congress to remain in session through
the summer recess — and hence the national party conventions — if
the Senate has not held hearings on a pending Supreme Court
nomination by July 19.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Is Sanders Undermining Democratic Party with Claims of Rigged
Nomination? <http://electionlawblog.org/?p=82868>
Posted onMay 18, 2016 7:08 am
<http://electionlawblog.org/?p=82868>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Marshall:
<http://talkingpointsmemo.com/edblog/it-comes-from-the-very-top>
Sanders narrative today has essentially been that he*/is/*political
legitimacy. The Democratic party needs to realize that. This, as I
said earlier, is the problem with lying to your supporters. Sanders
is telling his supporters that he can still win, which he can’t.
He’s suggesting that the win is being stolen by a corrupt
establishment, an impression which will be validated when his phony
prediction turns out not to be true. Lying like this sets you up for
stuff like happened over the weekend in Nevada.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Judge slams Kansas voter ID law’s ‘magnitude of harm'”
<http://electionlawblog.org/?p=82866>
Posted onMay 18, 2016 7:01 am
<http://electionlawblog.org/?p=82866>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://www.cbsnews.com/news/judge-kansas-rejects-citizenship-proof-to-vote/>:
A judge said Tuesday that Kansas can’t require people to show proof
of U.S. citizenship when registering to vote for federal elections
at motor vehicle offices.
U.S. District Judge Julie Robinson ruled that the state’s
proof-of-citizenship requirements likely violate a provision in the
National Voter Registration Act that requires only “minimal
information” to determine a voter’s eligibility. She ordered Kansas
to register thousands of voters whose paperwork is on hold because
they did not comply with the requirement. But she put her
preliminary injunction on hold until May 31 to give the state a
chance to appeal.
The state immediately said it would appeal. Unless a higher court
halts Robinson’s order before the end of the month, it would take
effect then, clearing the way for those residents to cast a ballot
in the upcoming federal elections.
Robinson wrote that “even if instances of noncitizens voting cause
indirect voter disenfranchisement by diluting the votes of citizens,
such instances pale in comparison to the number of qualified
citizens who have been disenfranchised by this law.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Bauer on “Oligarchy” and Campaign Finance Reform
<http://electionlawblog.org/?p=82864>
Posted onMay 18, 2016 6:55 am
<http://electionlawblog.org/?p=82864>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer
<http://www.moresoftmoneyhardlaw.com/2016/05/evidence-reform-anti-reform-argument/>:
The related but still distinguishable argument about political
inequality has meant the same search for clinching proof that policy
follows money and makes for a “rigged” system. This week, the
Center for Competitive Politicstook after
<http://www.campaignfreedom.org/2016/05/13/are-plutocrats-really-uniting/>a
widely reported paper about the correlation between the aspirations
of the wealthy and the manufacture of public policy. Noting that
Rick Hasen and Larry Lessig had made use of the paper in arguing for
a political equality theory of regulation, the CCP cited to critics
of the scholarship and its conclusions. In this critical view,
which CCP evidently favors, there is substantial agreement across
income groups about policy. So the study that purportedly shows
that we have a democracy of the rich cannot survive close scrutiny.
CCP suggests that this should bring sharply into question the “lofty
solutions” of reformers.
This fight holds unfortunate temptations for both sides. The
advocates for more regulation want considerably more, and more
aggressive, rules, and with the Congress in hostile hands and, until
recently, a majority the Court unsympathetic, they can be drawn to
improve their prospects with dramatic evidence. Studies of interest
but not fully conclusive or persuasive come to be promoted with a
surplus of zeal: the marketing can go a little far, outpacing the
strength of the product. Along with this appetite for “smoking gun”
evidence is a taste for the anecdotal, usually the contemporary
“scandal” that is supposed to prove their point.
But the adversaries of regulation have their own irresistible
impulses: to get carried away in their rebuttals. That a particular
evidentiary claim is overstated is a point fairly made against
overstatement. It does not justify overlooking or dismissing what
is left of substance in the claim. Often this rejection of the
evidence is rooted in ideology, which requires flat-out resistance
to the reform project and a refusal to acknowledge any value in the
data.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Donors can give nearly $500,000 to new joint fundraising effort
between Trump and RNC” <http://electionlawblog.org/?p=82862>
Posted onMay 17, 2016 8:32 pm
<http://electionlawblog.org/?p=82862>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<https://www.washingtonpost.com/news/post-politics/wp/2016/05/17/donors-can-give-nearly-500000-to-new-joint-fundraising-effort-between-trump-and-rnc/?postshare=7171463541278955&tid=ss_tw>:
Presumptive GOP presidential nominee Donald Trump will ask donors to
give as much as $449,400 to support his White House bid and
down-ballot candidates through a new fundraising agreement with the
Republican National Committee announced Tuesday night.
The**Trump Victory Fund — a joint committee between the Trump
campaign, the RNC and 11 state parties — will solicit larger checks
than have ever been sought by presidential nominees through such
ventures, thanks to legal changes made in 2014 that expanded the
fundraising abilities of national parties. Trump follows Democratic
front-runner Hillary Clinton, who set up a joint fundraising
committee with the Democratic National Committee last year that can
accept up to $356,100 annually per donor.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Judge rules Kobach must register 18,000 suspended Kansas voters”
<http://electionlawblog.org/?p=82857>
Posted onMay 17, 2016 5:52 pm
<http://electionlawblog.org/?p=82857>byRick Hasen
<http://electionlawblog.org/?author=3>
The Wichita Eagle reports
<http://www.kansas.com/news/politics-government/article78211487.html>.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“No ballot selfies during June 7 primary, state elections officials
say” <http://electionlawblog.org/?p=82855>
Posted onMay 17, 2016 5:50 pm
<http://electionlawblog.org/?p=82855>byRick Hasen
<http://electionlawblog.org/?author=3>
LAT reports.
<http://www.latimes.com/politics/la-pol-sac-essential-poli-no-ballot-selfies-on-june-7-say-state-elections-o-1463496675-htmlstory.html>
Oops
<http://www.highlandnews.net/news/political/vote-early-and-take-a-ballot-selfie/article_4f2572e0-1bb2-11e6-bf65-4f6b158ff5e6.html#.Vztqia0VD-M.twitter>.
Better tell San Bernardino.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
Breaking: Federal District Court Issues Preliminary Injunction
Against Kansas Proof of Citizenship Requirements for Registration at
DMV <http://electionlawblog.org/?p=82852>
Posted onMay 17, 2016 3:44 pm
<http://electionlawblog.org/?p=82852>byRick Hasen
<http://electionlawblog.org/?author=3>
A federal district court has issuedthis 67-page opinion
<http://electionlawblog.org/wp-content/uploads/fish-v-kobach.pdf>temporarily
preventing Kansas from requiring those registering to vote at the DMV
while getting or renewing licenses to provide documentary proof of
citizenship.
From the Court’s conclusion:
Under the heightened preliminary injunction standard, Plaintiffs
have sustained their burden of making a strong showing that they are
likely to succeed on the merits of their claim that the Kansas DPOC
law violates the NVRA provision that a motor voter
registration application can require only the minimum amount of
information necessary to enable state officials to assess an
applicant’s eligibility to vote, and that they will suffer
irreparable harm without an injunction. Without the injunction,
approximately 18,000 Kansas motor voter registration applicants will
be precluded from registering to vote solely based on their failure
to provide DPOC. The record in this case suggests that there is a
less burdensome way for the State to assess whether applicants meet
the citizenship eligibility requirement; namely, by
asking applicants to complete an attestation of citizenship under
penalty of perjury.
The injunction requires the Secretary of State to register to vote
those applicants whose only infirmity was not having the opportunity
to produce DPOC contemporaneously with their driver’s license
applications, or later because of lack of consistent notice or
reasonable opportunity to cure that infirmity. Although the Court is
cognizant that the injunction will cause some administrative burden
to the State, it is a burden that is outweighed by the risk of
thousands of otherwise eligible voters being disenfranchised in
upcoming federal elections. On balance, the public interest in the
enfranchisement of otherwise eligible voters, the irreparable harm
to prospective voters, the balance of harms, and Plaintiffs’ strong
showing that they are likely to succeed on their claim that the DPOC
law is preempted by NVRA § 5’s provision that the State only require
the minimum amount of information necessary for the State to assess
citizenship of the applicant, justifies entry of this preliminary
injunction.
The order is stayed until the end of the month to give Kansas time to
implement this or seek a stay from the 10th Circuit.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“The Conspiracy Theory That the Clinton Campaign Stole Votes Makes
No Sense” <http://electionlawblog.org/?p=82850>
Posted onMay 17, 2016 2:04 pm
<http://electionlawblog.org/?p=82850>byRick Hasen
<http://electionlawblog.org/?author=3>
The Nation reports.
<http://www.thenation.com/article/the-conspiracy-theory-that-the-clinton-campaign-stole-votes-makes-no-sense/>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,fraudulent fraud squad
<http://electionlawblog.org/?cat=8>
Breaking: Federal Court Strikes Down Key Montana Contribution
Limits, Setting Up Quick 9th Circuit Battle and Potential SCOTUS
Deadlock <http://electionlawblog.org/?p=82847>
Posted onMay 17, 2016 12:52 pm
<http://electionlawblog.org/?p=82847>byRick Hasen
<http://electionlawblog.org/?author=3>
Senior federal district court judgeCharles Lovell
<https://en.wikipedia.org/wiki/Charles_C._Lovell>has issuedthis 30 page
opinion
<http://electionlawblog.org/wp-content/uploads/lair.pdf> granting
summary judgment to plaintiffs challenging key provisions of Montana’s
campaign finance law, including individual and committee contributions
to candidates for governor and state offices. This case has been
bouncing around for years, and has been on remand from the 9th Circuit,
but at bottom the trial court found the following: applying the 9th
Circuit’s earlier opinion in this case and the Supreme Court’s
definition of corruption from/Citizens United/, the court could only
uphold Montana’s limits if they were justified to prevent quid pro quo
corruption or its appearance, and that the limits were closely drawn
toward that purpose. In a brief (I’d say quite superficial) analysis,
the court held that Montana satisfied neither prong of this test. The
court held that there was not enough evidence of corruption or its
appearance to justify the law, and in any case the real motivation for
the law was to promote political equality, an impermissible interest.
(There are shades of the debate at the Supreme Court in the /Arizona
Free Enterprise//Club/case here.) The court further held there was not
enough evidence that the limits were closely drawn (no surprise, since
the judge found no real interest in the law).
So what happens next? I expect the state of Montana to seek emergency
relief from the Ninth Circuit, and in the meantime (as happened last
time) I expect the Republican Party of Montana to /quickly/flood the
coffers of those they want to support while this order is in effect (see
the end of the opinion, where this happened with a $500,000 contribution
from the party the last time around). Right now there are NO individual
contribution limits in Montana, and the judge invites the state to enact
new limits the next time the Legislature is in session.
Not sure what the Ninth Circuit motions panel will do, but I expect that
this case could well end up /en banc/before the Ninth Circuit, where the
questionable earlier decision in this case (which seems to require way
too much evidence of quid pro quo corruption to justify campaign
contribution limits given Supreme Court precedent) will be reconsidered.
There’s a good chance if this happens that the district court will be
reversed. Then again,as I’ve argued
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html>,
the McCutcheon case (which gets very little attention in Judge Lovell’s
opinion) contains some language making it much easier to challenge
contribution limit laws as violating the First Amendment.
Either way, the matter could come before the Supreme Court, which is
currently divided 4-4 on these issues, leaving the matter in the hands
of the Ninth Circuit. As I’ve said, the absence of Justice Scalia has
empowered the circuit courts and state supreme courts tremendously.
Here
<http://www.kxlh.com/story/31996565/federal-judge-strikes-down-montanas-campaign-contribution-limits>is
an early news story on what should be a case that will garner national
attention.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Ben & Jerry’s Just Started A New Political Fight In North Carolina”
<http://electionlawblog.org/?p=82845>
Posted onMay 17, 2016 9:56 am
<http://electionlawblog.org/?p=82845>byRick Hasen
<http://electionlawblog.org/?author=3>
HuffPo:
<http://www.huffingtonpost.com/entry/ben-jerrys-voter-suppression_us_573a2c72e4b077d4d6f3bfa8>
Ben & Jerry’s is churning out a campaign against laws that restrict
access to voting.
The ice cream giant on Tuesday announced a new flavor,Empower Mint
<http://www.huffingtonpost.com/entry/ben-and-jerrys-empower-mint-ice-cream_us_57363be6e4b08f96c1833be0>,
as part of the nascent effort to register voters in states where new
rules meant to curbvirtually nonexistent
<http://www.huffingtonpost.com/2014/04/29/voter-fraud-wisconsin_n_5235466.html> fraud
threaten to keep eligible voters away from ballot boxes. The mint
ice cream contains chunks of brownie and swirls of fudge.
“There’s been an organized and coordinated attempt to keep certain
groups of voters out of the process — people of color, low-income
people, especially,” Jerry Greenfield, one of the Unilever-owned
company’s co-founders, told The Huffington Post in an interview last
week.
“Instead of expanding voting and making the United States and
democratic as it can be — setting an example for the rest of the
world — there has been this effort to prevent people from voting
when there’s been no evidence there’s any kind of problem with
voting or voting fraud. It’s absurd,” said Greenfield.
Ben & Jerry’s campaign, though national in scope, is centered on
North Carolina, which has become a major political battleground
during this fever-dream of an election year.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
“BREAKING: Connecticut To Automatically Register 400,000 Voters”
<http://electionlawblog.org/?p=82843>
Posted onMay 17, 2016 9:45 am
<http://electionlawblog.org/?p=82843>byRick Hasen
<http://electionlawblog.org/?author=3>
Think Progress reports.
<http://thinkprogress.org/politics/2016/05/17/3778976/connecticut-automatic-registration/>
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Automatic Voter Registration in Oregon Is Revolutionizing American
Democracy” <http://electionlawblog.org/?p=82841>
Posted onMay 17, 2016 9:44 am
<http://electionlawblog.org/?p=82841>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman writes
<http://www.thenation.com/article/automatic-voter-registration-in-oregon-is-revolutionizing-american-democracy/>for
The Nation.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Beyond Severability” <http://electionlawblog.org/?p=82839>
Posted onMay 17, 2016 9:43 am
<http://electionlawblog.org/?p=82839>byRick Hasen
<http://electionlawblog.org/?author=3>
I just had a chance to read Lisa Manheim’sexcellent article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2614124>,
forthcoming in the /Iowa Law Review/. Here is the abstract:
Severability is a wrecking ball. Even the most cautious use of this
doctrine demolishes statutes in contravention of legislative intent
and without adequate justification. It does so through the
imposition of an artificially restrictive framework: one that
requires that courts respond to a statute’s constitutional flaw by
disregarding that statute either in whole or in part. In the last
few years alone, this framework has flattened the Voting Rights Act,
threatened the Bankruptcy Code, and nearly toppled the Affordable
Care Act. Yet courts apply severability reflexively, never demanding
justification for its destructive treatment. Scholars, meanwhile,
assiduously debate the particulars of the severability rules without
questioning whether those rules should apply in the first place.
This Article, the first to insist that severability justify its
prominent position among the tools of statutory construction,
concludes that it should be abolished. Courts should replace it with
a fundamentally broader inquiry into, first, the interpretations of
a constitutionally defective statute that would diffuse its
constitutional defects, and, second, which among these options the
legislature would prefer.
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Super PAC Seeks IRS Audit of Clinton Foundation”
<http://electionlawblog.org/?p=82837>
Posted onMay 17, 2016 9:40 am
<http://electionlawblog.org/?p=82837>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ
<http://blogs.wsj.com/washwire/2016/05/16/super-pac-seeks-irs-audit-of-clinton-foundation/>:
The conservative super PAC American Crossroads said Monday it filed
a complaint with the Internal Revenue Service requesting an audit of
the Clinton Foundation, following articles last week about how the
foundation aided a for-profit company part-owned by people with ties
to Bill and Hillary Clinton.
The complaint by the group—founded by Karl Rove, a former political
adviser to President George W. Bush and a writer for The Wall Street
Journal’s op-ed pages—cites a Journal article as well as a New York
Post article
<http://nypost.com/2016/05/14/clinton-foundations-actions-highly-suspicious-watchdogs> that
quoted government watchdogs criticizing the Clinton Foundation
commitment.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Justice Sotomayor on Signaling in the Contraception Cases”
<http://electionlawblog.org/?p=82835>
Posted onMay 17, 2016 8:21 am
<http://electionlawblog.org/?p=82835>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read Richard Re.
<http://prawfsblawg.blogs.com/prawfsblawg/2016/05/justice-sotomayor-on-signaling-in-zubik.html>
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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