[EL] ELB News and Commentary 11/10/16

Thu Nov 10 09:33:37 PST 2016

Democrats Blame “Voter Suppression” for Clinton Loss at Their Peril<http://electionlawblog.org/?p=89133>
Posted on November 10, 2016 9:26 am<http://electionlawblog.org/?p=89133> by Rick Hasen<http://electionlawblog.org/?author=3>
Let me start by getting a few important points out of the way, so it is clear what I’m saying.
Yes, Republican legislatures have passed a series of laws making it harder to register and vote. It is not just voter id laws, but laws affecting how ballots are counted, when voting takes place, and what rules are used for resolving disputes. They have done this for partisan (or in some circumstances perhaps a mix of partisan and racial)<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/> reasons, and not to prevent fraud, promote public confidence, or further government efficiency. (I make this claim most fully in my 2012 book, The Voting Wars<https://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300198248/ref=la_B0089NJCR2_1_3?s=books&ie=UTF8&qid=1478796815&sr=1-3>, but it is one of the top topics on this blog.)
Yes, the conservative Supreme Court made it easier for Republican legislatures to pass these laws by gutting a key part of the Voting Rights Act in the 2013 Shelby County v. Holder<https://scholar.google.com/scholar_case?case=5108914727330958790&hl=en&as_sdt=6&as_vis=1&oi=scholarr> case and by giving the green light to restrictive voter id laws in the 2008 case, Crawford v. Marion County Elections Board<https://scholar.google.com/scholar_case?case=9378098557660608267&q=crawford+v.+marion+county+election+board&hl=en&as_sdt=2006&as_vis=1>. (And, thanks in part to the irresponsible decision of Justice Ginsburg <http://electionlawblog.org/?p=89103> not to retire early in Obama’s second term and the Democrats’ losses in the 2016 election, the moment for a new progressive Supreme Court has passed and we are likely to see an even more conservative Supreme Court which will give these Republicans the green light to pass ever restrictive voting rules.)
Yes, as Ari Berman has argued,<https://www.thenation.com/article/the-gops-attack-on-voting-rights-was-the-most-under-covered-story-of-2016/> the story of these suppressive efforts have been underreported by the popular press. There were some excellent reporters on this beat this year (including Ari, Pam Fessler, Michael Wines, Sari Horwitz, Tierney Sneed, and Zack Roth), but it did not get reported enough, especially on television (Rachel Maddow and Joy Reid discussed it, but it was barely a blip elsewhere).
BUT….
There is thus far not enough evidence (as I’ve shown in this post<http://electionlawblog.org/?p=89101>) that these laws actually afffected the outcome of the presidential election. We have statistics on a fewer number of polls open or early voting days in some of these states, and we know courts have found in some cases that up to hundreds of thousands of voters lacked the right kind of ID to vote in some strict voter id states. But it is a big empirical leap to claim that these cutbacks caused the losses for Democrats in states that mattered for the outcome of the electoral college. Lots of people who lacked id could have gotten it and voted. (A more plausible case could be made in some of these states that these laws mattered in races which are very, very close.)
More importantly, even in states that had eased their voting and registration rules in recent years, such as Minnesota<https://twitter.com/karpmj/status/796698126111412224>, Democratic turnout was way down. This is key: Hilllary Clinton is down millions of Democrats; votes (right now about 7 million votes)<https://twitter.com/jonathanwebber/status/796448989931417600?ref_src=twsrc%5Etfw> compared to Obama in 2012. People stayed home for reasons unrelated to voter suppression.
From Philip Bump<https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/>:
In Michigan, Clinton got 13 percent fewer votes than Obama. Trump got 7 percent more than Romney.
In Pennsylvania, Clinton got 5 percent fewer votes than Obama. Trump got 9 percent more than Romney.
In Wisconsin, Clinton got 15 percent fewer votes than Obama. Trump did slightly worse than Romney — in a state that was home to Romney’s running mate.
Of these states, only Wisconsin had stricter voting laws this election.
So there’s something going on here besides changes in voting rules.  Now some can blame the Comey email motivating Republicans to “return home,” Russian/wikileaks stolen Podesta emails, the treatment of Sanders’ voters by Clinton, or Clinton’s ties to big donors<http://www.slate.com/articles/news_and_politics/politics/2016/11/the_democratic_party_establishment_is_finished_after_trump.html> and lack of a plan to reach out to rural white voters or give a message that would have resonated more with the Democratic base. It is an important debate to have, and I don’t have answers to what the main problems are. But this is the debate that needs to be had.
Democrats now face two structural disadvantages in running for president going forward. First, they need to overcome the electoral college, which helps Republicans (thanks to smaller states leaning red). Once again, we will have a Democratic candidate getting more popular votes than the Republican. I suspect we would see the same results (but we don’t know) if both candidates ran for the popular vote. Second, going forward we can expect more laws making it harder to register and vote in battleground states controlled by Republicans, and a Supreme Court likely to continue to give the green light.
That makes things tougher. But there’s something more fundamental at play here.  Blaming voter suppression in this election will be just as effective as the increasing calls on social media for Republican electors to not vote for Donald Trump when the electoral college votes. It’s not going to help, and ignores the larger problems facing the party and the nation that the party, and those on the left, need to face.

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Posted in political parties<http://electionlawblog.org/?cat=25>, The Voting Wars<http://electionlawblog.org/?cat=60>

“What the Trump Presidency Means for the Supreme Court”<http://electionlawblog.org/?p=89131>
Posted on November 10, 2016 8:49 am<http://electionlawblog.org/?p=89131> by Rick Hasen<http://electionlawblog.org/?author=3>
Adam Liptak for the NYT.<http://www.nytimes.com/2016/11/10/us/politics/trump-supreme-court.html>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“The Electoral College Is Hated by Many. So Why Does It Endure?”<http://electionlawblog.org/?p=89129>
Posted on November 10, 2016 8:46 am<http://electionlawblog.org/?p=89129> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports.<http://www.nytimes.com/2016/11/11/us/politics/the-electoral-college-is-hated-by-many-so-why-does-it-endure.html?ref=politics&_r=0>
See my post from yesterday, Democrats Will Push Electoral College Reform, But Odds Remain Heavily Against Change<http://electionlawblog.org/?p=89094>.

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Posted in electoral college<http://electionlawblog.org/?cat=44>

“Trump’s victory has enormous consequences for the Supreme Court”<http://electionlawblog.org/?p=89127>
Posted on November 10, 2016 8:39 am<http://electionlawblog.org/?p=89127> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Barnes:<http://www.philly.com/philly/news/politics/20161110_Trump_s_victory_has_enormous_consequences_for_the_Supreme_Court.html>
The political earthquake that hit Tuesday night has enormous consequences for the future of the Supreme Court, swallowing up Judge Merrick Garland’s nomination and dismantling Democratic hopes for a liberal majority on the high court for the first time in nearly half a century.
In the short term, Donald Trump’s victory means that at some point next year, the nine-member court will be restored to full capacity with a majority of Republican-appointed justices, just as it has been for decades.
Trump’s upset victory likely changes the court’s docket, as well: With a stroke of the pen, the new president could cancel President Obama’s regulations regarding the environment, immigrants, and the provision of contraceptives under the Affordable Care Act, all issues that have preoccupied the justices in recent terms.
The long-term question will be Trump’s ultimate impact on the court’s membership and further down the line on the rest of the federal courts, where numerous openings on the bench await nominations.
Besides replacing Justice Antonin Scalia, who died in February, Trump may get the chance to replace liberal justices and move the court to the right for generations.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“How Gary Johnson and Jill Stein helped elect Donald Trump”<http://electionlawblog.org/?p=89117>
Posted on November 10, 2016 8:33 am<http://electionlawblog.org/?p=89117> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN<http://www.cnn.com/2016/11/10/politics/gary-johnson-jill-stein-spoiler/index.html>:
Neither Libertarian Party nominee Gary Johnson nor the Green Party’s Jill Stein managed to make a dent in the Electoral College, but they did post a significant enough showing in several states arguably to help elect Donald Trump.
Trump won 290 Electoral College votes to 232 for Hillary Clinton, as of Wednesday evening, with Clinton topping him in the popular vote. But had the Democrats managed to capture the bulk of third-party voters in some of the closest contests — Wisconsin (10), Pennsylvania (20), Michigan (16) and Florida (29) — Clinton would have defeated Trump by earning 307 Electoral College votes, enough to secure the presidency.
The entire scenario conjures up memories of Ralph Nader’s Green Party run in 2000. Nader’s share of the vote in that year’s razor-thin Florida contest was 1.63%, according to the final totals from the Federal Election Commission<http://www.fec.gov/pubrec/fe2000/2000presge.htm>. Bush won the state by just .05%, which tipped the Electoral College in his favor. (Nader has for years denied his candidacy played a role in Bush’s 2000 victory.)
It’s impossible to know how an election could have gone under hypothetical scenarios, but the Johnson campaign regularly said they thought they were pulling support equally from would-be Trump supporters and would-be Clinton voters. Stein’s campaign, meanwhile, made a constant, explicit appeal to disenchanted Democrats and former supporters of Vermont Sen. Bernie Sanders.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>

Linda Greenhouse, Changing Tone, Urges CJ Roberts to Rise Above Politics in North Carolina Voting Case<http://electionlawblog.org/?p=89115>
Posted on November 10, 2016 7:53 am<http://electionlawblog.org/?p=89115> by Rick Hasen<http://electionlawblog.org/?author=3>
Linda sees<http://www.nytimes.com/2016/11/10/opinion/the-choice-confronting-the-supreme-courts-chief-justice.html?emc=eta1&_r=1> what I see<http://electionlawblog.org/?p=89052>, which is the prospect of an even more conservative Court for the next generation. And now rather than criticizing CJ Roberts’ positions on race and voting, she has a different argument:
He needs to make it clear that the Roberts court is not a tool of partisan politics, that the Supreme Court has not turned irrevocably away from protecting civil rights, including the right to vote. Three years ago, he was the author of the 5-to-4 decision in Shelby County v. Holder<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>, which gutted the Voting Rights Act of 1965 on the ground that “things have changed dramatically” and the protections of the law were no longer needed. That was a dubious sentiment in 2013. In 2016, it reads like an insult to reality<http://www.nytimes.com/2016/11/07/magazine/the-supreme-court-ruled-that-voting-restrictions-were-a-bygone-problem-early-voting-results-suggest-otherwise.html?action=click&pgtype=Homepage&clickSource=story-heading&module=span-abc-region&region=span-abc-region&WT.nav=span-abc-region>.
Does the chief justice understand this? The signs are not encouraging. In late summer, North Carolina asked the justices to put on hold an appeals court decision that invalidated the state’s new voter ID requirement and other election law changes that the appeals court found had been devised “with almost surgical precision” to suppress the African-American vote. The stay sought by the state would have put the law back into effect for Tuesday’s election.
Whether there are eight justices or nine, it takes five votes to grant a stay. The state fell one vote short. Those voting to grant the stay were Justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Chief Justice Roberts. Usually, when a stay request fails to get five votes, the court simply announces “stay denied,” and those who voted to grant the motion remain silent. Why did these four announce themselves, gratuitously and contrary to custom, with voting rights and the Supreme Court itself squarely in the political spotlight? I wish I knew the answer, and I hope it wasn’t to send a signal to the Republican base of how important it was to fill the current vacancy with a conservative. Had Justice Scalia been alive and voting, the stay would have been granted.
This episode is not over. North Carolina’s formal appeal of the lower court’s decision, North Carolina v. North Carolina Conference of the N.A.A.C.P., is due at the court<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16a362.htm> on Nov. 28. Sometime after the first of the year, the court will decide whether to hear it. The decision to hear a case, as opposed to the decision to grant a stay, takes only four votes, so the four dissenters have the power to grant North Carolina a hearing. The question then would be whether a ninth justice — a Trump justice — is seated in time for the argument and decision, and what the decision would be.
So Chief Justice Roberts has a choice of how to handle the gift of continued relevance that Tuesday’s election granted him.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Electoral College Lesson: More Voters Chose Clinton, but Trump Will Be President”<http://electionlawblog.org/?p=89113>
Posted on November 10, 2016 7:43 am<http://electionlawblog.org/?p=89113> by Rick Hasen<http://electionlawblog.org/?author=3>
Zack Roth for NBC News.<http://www.nbcnews.com/politics/elections/electoral-collage-lesson-more-voters-chose-hillary-clinton-trump-will-n681701>
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Posted in electoral college<http://electionlawblog.org/?cat=44>
“Trump victory could mean big business for K Street”<http://electionlawblog.org/?p=89111>
Posted on November 10, 2016 7:42 am<http://electionlawblog.org/?p=89111> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/news/powerpost/wp/2016/11/09/trump-blasted-lobbyists-on-the-campaign-trail-but-his-victory-could-mean-big-business-for-k-street/>

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Posted in lobbying<http://electionlawblog.org/?cat=28>

“Party Splits, Not Progressives; The Origins of Proportional Representation in American Local Government”<http://electionlawblog.org/?p=89109>
Posted on November 10, 2016 7:40 am<http://electionlawblog.org/?p=89109> by Rick Hasen<http://electionlawblog.org/?author=3>
Jack Santucci has written this article<http://m.apr.sagepub.com/content/early/2016/11/09/1532673X16674774> for American Politics Research. Here is the abstract:
The choice of proportional representation (PR) is rarely included in work on American local politics. Yet we have long known that 24 cities adopted the single transferable vote form of PR from 1915 to 1948. Breaking with a machine–reform dichotomy that dominates the PR historiography, I investigate two partisan hypotheses about PR’s origins. One concerns the emergence of third parties. A second involves splits in ruling parties. In at least 15 cases, PR choice involved an alliance of convenience between ruling-party defectors and local minority parties. Evidence includes narratives on the partisanship of elite PR backers, comparison of case history and precinct-level referendum outcomes for three similar cities, and aggregate data on big-city charter change referenda from 1900 to 1950. New in this article is comparison of PR adopters with non-adopters. Party splits in places with sizable out-parties emerge as a distinctly American path to proportional electoral rules.1
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“The GOP’s Attack on Voting Rights Was the Most Under-Covered Story of 2016”<http://electionlawblog.org/?p=89107>
Posted on November 9, 2016 11:57 am<http://electionlawblog.org/?p=89107> by Rick Hasen<http://electionlawblog.org/?author=3>
Must-read Ari Berman:<https://www.thenation.com/article/the-gops-attack-on-voting-rights-was-the-most-under-covered-story-of-2016/>
How many people were turned away from the polls? How many others didn’t bother to show up in the first place? These are questions we need to take far more seriously. In 2014, a study<http://www.bakerinstitute.org/media/files/files/e0029eb8/Politics-VoterID-Jones-080615.pdf> by Rice University and the University of Houston of Texas’s 23rdCongressional district found that 12.8 percent of registered voters who didn’t vote in the election cited lack of required photo ID as a reason they didn’t cast a ballot, even though only 2.7 percent of registered voters actually lacked an acceptable ID. Texas’s strict voter-ID law blocked some voters from the polls while having an ever larger deterrent effect on others. Eighty percent of these voters were Latino and strongly preferred Democratic candidates.
On Election Day, there were 868 fewer polling places<https://www.thenation.com/article/there-are-868-fewer-places-to-vote-in-2016-because-the-supreme-court-gutted-the-voting-rights-act/?nc=1> in states with a long history of voting discrimination, like Arizona, Texas and North Carolina. These changes impacted hundreds of thousands of voters, yet received almost no coverage. In North Carolina, as my colleague Joan Walsh reported<https://www.thenation.com/article/will-north-carolina-lead-the-way-to-a-new-south/>, black turnout decreased 16 percent<http://www.nytimes.com/2016/11/02/us/politics/black-turnout-falls-in-early-voting-boding-ill-for-hillary-clinton.html>during the first week of early voting because “in 40 heavily black counties, there were 158 fewer early polling places.”
Even if these restrictions had no outcome on the election, it’s fundamentally immoral to keep people from voting in a democracy. The media devoted hours and hours to Trump’s absurd claim that the election was rigged against him, while spending precious little time on the real threat that voters faced.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

--
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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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