[EL] Blogging and the listserv

Mon Nov 14 12:32:47 PST 2016

Thanks for keeping the listserv running and so up-to-date during the election, Rick. I regularly sent articles from it to a wide variety of people who had questions about the election.

Bill

________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Sent: Monday, November 14, 2016 12:20 PM
To: Election Law Listserv
Subject: [EL] (FULL) ELB News and Commentary 11/14/16

The technical issues have been resolved. Thanks for your patience.

ELB Blogging, Tweeting, Commenting Slowdown for Next Few Months<http://electionlawblog.org/?p=89262>

Posted on November 14, 2016 12:15 pm<http://electionlawblog.org/?p=89262> by Rick Hasen<http://electionlawblog.org/?author=3>

The last election season was all consuming. I gave hundreds of interviews, wrote thousands of blog posts, and offered many opeds and commentaries. No election season has been nearly as busy as this one, and they are all busy (I have been blogging, essentially nonstop, since 2003 and the California recall), The only thing to come close to this election season is the post-2000 election season and Bush v. Gore.

While I have enjoyed the blogging, tweeting, and commenting, and think of it as a public service, it came at a price. Among other things, the schedule of public commentary put me behind on a book project and other academic writing.

My plan is to slow down considerably, at least for the next few months, as I try to concentrate on larger work and to recharge a bit.

For those who get their news on the election law listserv, expect less frequent updates.

Thanks for understanding!

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89262&title=ELB%20Blogging%2C%20Tweeting%2C%20Commenting%20Slowdown%20for%20Next%20Few%20Months>

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

Exciting News: Nick Stephanopoulos Joining Lowenstein Election Law Casebook (6th Edition), Becoming #ELB Contributor<http://electionlawblog.org/?p=89260>

Posted on November 14, 2016 12:06 pm<http://electionlawblog.org/?p=89260> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Tokaji and I are thrilled to announce that University of Chicago’s Nick Stephanopoulous<http://www.law.uchicago.edu/faculty/stephanopoulos> will be coming on as co-author to the 6th edition of Election Law–Cases and Materials (5th edition (2012)—Lowenstein, Hasen, Tokaji<http://www.cap-press.com/books/isbn/9781611631784/Election-Law-Fifth-Edition>), which will be out in time for the fall classes. Dan Lowenstein, while no longer working on editions of the book since his retirement, says he is delighted about the addition of Nick to the book and strengths Nick will bring to the project. Nick also joins the roster of ELB contributors, chiming in<https://electionlawblog.org/?author=12> from time to time.

Nick’s scholarly work<http://www.law.uchicago.edu/node/10610/publications> is at the intersection of law and empirical political science, bringing together rigorous data analysis and normative insights on election law issues issues from partisan gerrymandering to campaign finance to voting rights. He is the perfect addition to a book whose strengths have always been found at this intersection. Nick also asks the good, tough questions, and his inquisitiveness will help us to strengthen and update key parts of the casebook.

We have many exciting plans for the new edition, but more about that in coming months.

Welcome aboard, Nick!

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89260&title=Exciting%20News%3A%20Nick%20Stephanopoulos%20Joining%20Lowenstein%20Election%20Law%20Casebook%20(6th%20Edition)%2C%20Becoming%20%23ELB%20Contributor>

Posted in election law biz<http://electionlawblog.org/?cat=51>, pedagogy<http://electionlawblog.org/?cat=23>

Rep. Issa, Clinging to Narrow Lead as Ballots are Counted, Says Democrats Will Force Counting of Ballots from “Illegal, Unregistered Voters”<http://electionlawblog.org/?p=89258>

Posted on November 14, 2016 11:51 am<http://electionlawblog.org/?p=89258> by Rick Hasen<http://electionlawblog.org/?author=3>

At the time of this writing, Rep. Darrell Issa leads<http://vote.sos.ca.gov/returns/us-rep/district/49/> challenger Doug Applegate for California’s 49th congressional district by about 3,700 votes. But there are still an unknown number of provisional and other ballots left to be counted.  On Friday afternoon, Rep. Issa sent out the following incendiary fundraising email:

See, I won my race by 2.2%, but there are still as many as 103,787 ballots left to count, including many provisional ballots. . . .

Because of those lies many later voters were influenced and could bring the count to within 1%. Once the count is that close, Democrats will attempt to force the Registrars to allow thousands of illegal, unregistered voters to influence the election. We cannot let that happen.

I will not allow my consituents (sic) voices to be cancelled by those who do not have the right to vote in our elections.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89258&title=Rep.%20Issa%2C%20Clinging%20to%20Narrow%20Lead%20as%20Ballots%20are%20Counted%2C%20Says%20Democrats%20Will%20Force%20Counting%20of%20Ballots%20from%20%E2%80%9CIllegal%2C%20Unregistered%20Voters%E2%>

Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, provisional ballots<http://electionlawblog.org/?cat=67>, recounts<http://electionlawblog.org/?cat=50>, The Voting Wars<http://electionlawblog.org/?cat=60>

“NC GOPer Denies Republicans May Try To Pack State’s Highest Court”<http://electionlawblog.org/?p=89256>

Posted on November 14, 2016 11:41 am<http://electionlawblog.org/?p=89256> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM reports.<https://talkingpointsmemo.com/livewire/potential-north-carolina-republicans-pack-state-court>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89256&title=%E2%80%9CNC%20GOPer%20Denies%20Republicans%20May%20Try%20To%20Pack%20State%E2%80%99s%20Highest%20Court%E2%80%9D>

Posted in chicanery<http://electionlawblog.org/?cat=12>

“Durham defends handling of 90K ballots in NC governor’s race”<http://electionlawblog.org/?p=89254>

Posted on November 14, 2016 11:38 am<http://electionlawblog.org/?p=89254> by Rick Hasen<http://electionlawblog.org/?author=3>

The News and Observer reports.<http://www.newsobserver.com/news/state/north-carolina/article114638193.html>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89254&title=%E2%80%9CDurham%20defends%20handling%20of%2090K%20ballots%20in%20NC%20governor%E2%80%99s%20race%E2%80%9D>

Posted in recounts<http://electionlawblog.org/?cat=50>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Campaign Finance Laws Poised for Rollback Under Trump”<http://electionlawblog.org/?p=89252>

Posted on November 14, 2016 11:30 am<http://electionlawblog.org/?p=89252> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read<http://www.rollcall.com/news/politics/campaign-finance-laws-poised-rollback-trump> Roll Call:

Von Spakovsky, who manages the Election Law Reform Initiative at the conservative Heritage Foundation, says he’s hopeful that McConnell and Trump, along with a Republican House, will greatly increase the limits on donations to party committees and candidates, or undo the limits altogether. Individual donors can give no more than $2,700 directly to candidates per election in the 2016 cycle.

He believes that Trump’s aides and advisers, including lawyer Donald McGahn, another former FEC commissioner who advocates for deregulation, reveal where Trump is on the issue. McGahn on Friday was named general counsel of the president-elect’s transition team….

Trump’s election and the continuing GOP control of the Senate also mean that the next Supreme Court justice is expected to be a conservative, along the lines of the late Justice Antonin Scalia. Liberals had viewed the vacancy, left by Scalia’s death on Feb. 13, as an opportunity for a redo of court decisions such as Citizens United v. FEC, which helped usher in big-money super PACs that can accept unlimited contributions from corporations, unions and individuals.

Bopp said Friday he was filing an appeal to the high court in a case, Louisiana Republican Party v. FEC, that challenges soft money bans in state and local parties.

“With the prospect of a Trump appointment of a conservative to the court, that case has very bright prospects,” Bopp said.

As I wrote right after the election: Get Ready for the Supreme Court to Strike Down the Rest of McCain-Feingold, the Soft Money Ban<http://electionlawblog.org/?p=89070>.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89252&title=%E2%80%9CCampaign%20Finance%20Laws%20Poised%20for%20Rollback%20Under%20Trump%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“How President Trump Could Reshape the Supreme Court—and the Country”<http://electionlawblog.org/?p=89250>

Posted on November 14, 2016 11:21 am<http://electionlawblog.org/?p=89250> by Rick Hasen<http://electionlawblog.org/?author=3>

Jeffrey Rosen<http://www.politico.com/magazine/story/2016/11/donald-trump-wins-supreme-court-214449> in Politico:

A 6-3 conservative court could cut back on abortion rights by upholding state regulations on abortion clinics and providers, and eventually even strike down Roe v. Wade. (In the third presidential debate, Trump said that because he would appoint pro-life justices, overturning Roe “will happen, automatically in my opinion.”) The Trump Court also could strike down affirmative action programs on the principle that the Constitution is colorblind. It could uphold voter ID laws and continue to deregulate the campaign finance system, striking down disclosure requirements and limits on campaign contributions that the Roberts court has upheld.

See my earlier “Notorious” Justice Ginsburg Wears Her “Dissent Jabot” While Rome Burns<http://electionlawblog.org/?p=89103>.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89250&title=%E2%80%9CHow%20President%20Trump%20Could%20Reshape%20the%20Supreme%20Court%E2%80%94and%20the%20Country%E2%80%9D>

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

“The State of the Political Reform Program, Post-Election”<http://electionlawblog.org/?p=89248>

Posted on November 14, 2016 11:16 am<http://electionlawblog.org/?p=89248> by Rick Hasen<http://electionlawblog.org/?author=3>

Thoughtful Bob Bauer.<http://www.moresoftmoneyhardlaw.com/2016/11/state-political-reform-program-post-election/>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89248&title=%E2%80%9CThe%20State%20of%20the%20Political%20Reform%20Program%2C%20Post-Election%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>, election administration<http://electionlawblog.org/?cat=18>, electoral college<http://electionlawblog.org/?cat=44>

“After Voter Approval In Maine, Work Begins On Ranked Choice Voting”<http://electionlawblog.org/?p=89246>

Posted on November 14, 2016 11:15 am<http://electionlawblog.org/?p=89246> by Rick Hasen<http://electionlawblog.org/?author=3>

Doug Chapin<http://editions.lib.umn.edu/electionacademy/2016/11/14/after-voter-approval-in-maine-work-begins-on-ranked-choice-voting/>:

Last Tuesday, Maine voters approved a referendum requiring ranked choice voting (RCV). Now, election officials and policymakers are puzzling out how to make the change – and worrying about having it ready in time for the next elections two years away. The Portland Press-Herald has more<http://www.pressherald.com/2016/11/11/logistics-could-put-ranked-choice-voting-on-hold-in-2018/>.

And the newspaper offers an editorial<http://www.pressherald.com/2016/11/14/our-view-ranked-choice-voting-fuels-hope-for-the-future/>, “Our View: Ranked-choice voting fuels hope for the future.”

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89246&title=%E2%80%9CAfter%20Voter%20Approval%20In%20Maine%2C%20Work%20Begins%20On%20Ranked%20Choice%20Voting%E2%80%9D>

Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, election administration<http://electionlawblog.org/?cat=18>

“It’s in the mail, or is it? Broward voters lament vote-by-mail shortfalls”<http://electionlawblog.org/?p=89244>

Posted on November 14, 2016 11:12 am<http://electionlawblog.org/?p=89244> by Rick Hasen<http://electionlawblog.org/?author=3>

Sun Sentinel:<http://www.sun-sentinel.com/local/broward/fl-broward-absentee-ballots-unreceived-20161112-story.html>

Fuming Broward voters — Republicans<http://www.sun-sentinel.com/topic/politics-government/republican-party-ORGOV0000004-topic.html> and Democrats<http://www.sun-sentinel.com/topic/politics-government/democratic-party-ORGOV0000005-topic.html> alike — are complaining that they were shut out of the high-stakes presidential election.

They say their mail-in ballots never arrived.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89244&title=%E2%80%9CIt%E2%80%99s%20in%20the%20mail%2C%20or%20is%20it%3F%20Broward%20voters%20lament%20vote-by-mail%20shortfalls%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“The Year Ahead in Racial and Political Gerrymandering Law”<http://electionlawblog.org/?p=89242>

Posted on November 14, 2016 11:06 am<http://electionlawblog.org/?p=89242> by Rick Hasen<http://electionlawblog.org/?author=3>

Extensive analysis<https://moderndemocracyblog.com/2016/11/13/the-year-ahead-in-racial-and-political-gerrymandering-law/> from Michael Parsons.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89242&title=%E2%80%9CThe%20Year%20Ahead%20in%20Racial%20and%20Political%20Gerrymandering%20Law%E2%80%9D>

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

“The Resurgence of Campaign Finance Regulation, Trumped?”<http://electionlawblog.org/?p=89240>

Posted on November 14, 2016 11:01 am<http://electionlawblog.org/?p=89240> by Rick Hasen<http://electionlawblog.org/?author=3>

Steve Klein blogs.<http://www.fed-soc.org/blog/detail/the-resurgence-of-campaign-finance-regulation-trumped>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89240&title=%E2%80%9CThe%20Resurgence%20of%20Campaign%20Finance%20Regulation%2C%20Trumped%3F%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Could NC lawmakers choose the next governor?”<http://electionlawblog.org/?p=89238>

Posted on November 14, 2016 10:58 am<http://electionlawblog.org/?p=89238> by Rick Hasen<http://electionlawblog.org/?author=3>

WRAL:<http://www.wral.com/could-nc-lawmakers-choose-the-next-governor-/16234656/>

It may be an outside possibility, but the ghosts of a contested election for school superintendent in 2004 could haunt this year’s gubernatorial race, allowing the Republican-led legislature to settle the contest between Republican Gov. Pat McCrory and Democrat Roy Cooper, the state’s attorney general.

Over the weekend, several political operatives and others with interest in the election began circulating a 2007 article by Robert Joyce of the University of North Carolina School of Government<http://www.wral.com/news/state/nccapitol/document/16234657/>. That article recapped the 2004 contest between June Atkinson, a Democrat, and Bill Fletcher, a Republican, and sketched out the process that eventually allowed the General Assembly to decide the race.

The question now becomes whether the same process, created by a legislature controlled by Democrats, could be used to put the governor’s race in the hands of Republican lawmakers.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89238&title=%E2%80%9CCould%20NC%20lawmakers%20choose%20the%20next%20governor%3F%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Sad News: David Adamany Has Passed Away (Tribute by Dan Lowenstein)<http://electionlawblog.org/?p=89222>

Posted on November 14, 2016 10:49 am<http://electionlawblog.org/?p=89222> by Rick Hasen<http://electionlawblog.org/?author=3>

I am sorry to report that election law scholar and former university president David Adamany has passed away at 80<http://www.philly.com/philly/education/20161112_Former_Temple_president_David_Adamany_dead_at_80.html>.  Dan Lowenstein offers this tribute:

DAVID ADAMANY

When I began academic work in election law around 1980, there was a body of excellent commentary on particular subjects, such as voting rights and constitutional aspects of redistricting.  Otherwise, scholarly work in the field was scarce and high-quality work even scarcer.  A major exception was David Adamany’s 1975 book written with George Agree, Political Money: A Strategy for Campaign Financing in America.  That book was a model for the very best election-law work that would be produced in the coming decades, as the field burgeoned.  Adamany and Agree explained and defended their policy views, but more importantly they set forth a balanced and comprehensive account of the subject, including thorough consideration of then-existing research but grounded in Adamany’s extensive political experience.  The relevant landscape has of course changed enormously since that pre-Buckley, pre-media-diversification book was published, but one chapter stands to this day as possibly the best statement of the merits and limitations of campaign finance disclosure.

One personal benefit for me of Adamany’s book was that, as I entered the field, it led to my meeting him and to an enduring friendship.  Although Adamany retained an interest in election law to the day of his death, it perforce became a sideline for him as he took on major administrative responsibilities, especially as president of Wayne State and Temple Universities.  Not surprisingly to anyone who knew him, he fulfilled those responsibilities with courage, determination, and achievement.

Despite the importance of Adamany’s political, scholarly, and administrative accomplishments, I expect most of us who knew him will remember him foremost for his personal qualities.  Adamany was the perfect gentleman, in the best sense of that old-fashioned word.  He was courtly and gentle in his manner, firm in his views, respectful of all, and pervasively thoughtful and generous.  O brave new world, that has such people in’t.

                                                            — Daniel Lowenstein

                                                              Director, UCLA Center for the Liberal Arts and Free Institutions

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89222&title=Sad%20News%3A%20David%20Adamany%20Has%20Passed%20Away%20(Tribute%20by%20Dan%20Lowenstein)>

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

The Election Law Blog is Having Technical Troubles<http://electionlawblog.org/?p=89223>

Posted on November 13, 2016 1:01 pm<http://electionlawblog.org/?p=89223> by Rick Hasen<http://electionlawblog.org/?author=3>

Back soon, we hope.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89223&title=The%20Election%20Law%20Blog%20is%20Having%20Technical%20Troubles>

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

Voter Turnout in 2016 Appears About the Same as in 2012<http://electionlawblog.org/?p=89216>

Posted on November 13, 2016 6:56 am<http://electionlawblog.org/?p=89216> by Richard Pildes<http://electionlawblog.org/?author=7>

Yes, that’s right.  One fact obscured by analysis that focuses only on the Trump and Clinton vote totals is that overall turnout this year is likely to end up being essentially the same as in 2012.  A big difference is that this year, there were at least 6.5 million votes cast for third-party or independent candidates, while in 2012, there were only 2.24 million such votes (2012 final results are here<http://www.fec.gov/pubrec/fe2012/federalelections2012.shtml>).

In addition, as more people are becoming aware, the number of ballots still to be counted post-Election Day is large and growing each election.  Current estimates<http://www.theatlantic.com/politics/archive/2016/11/clintons-popular-vote-lead-will-grow-and-grow/507455/> put it at 5-7 million.  This number has been increasing, as more states go to all vote-by-mail (three states now), absentee ballot rules become more liberalized, and more ballots are cast as provisional ballots than before the Help America Vote Act was enacted.

Turnout in 2012 was 58.6% of eligible voters.  Based on the indispensable Election Project website<http://www.electproject.org/2016g>, run by Michael McDonald, the current estimate for 2016 once all the ballots are counted is 57.9%.  Turnout was higher in 2008 and 2004 – political polarization increases turnout – but other than those years, we have to go back to 1968 to find higher turnout elections.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89216&title=Voter%20Turnout%20in%202016%20Appears%20About%20the%20Same%20as%20in%202012>

Posted in third parties<http://electionlawblog.org/?cat=47>, voting<http://electionlawblog.org/?cat=31>

“After a Fraught Election, Questions Over the Impact of a Balky Voting Process”<http://electionlawblog.org/?p=89212>

Posted on November 12, 2016 1:43 pm<http://electionlawblog.org/?p=89212> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Wines<http://www.nytimes.com/2016/11/13/us/politics/voter-registration-election-2016.html> for the NYT:

Some scholars and election analysts questioned this week whether a better run and less politically influenced voting process might have changed the outcome in some close races and made the presidential contest even closer.

The headline example is Wisconsin, where a Republican-backed law requiring voters to produce one of a limited number of acceptable photo IDs was in effect for the first time. Studies show — and some Republicans admit — that such laws disproportionately reduce Democratic turnout because many of the laws require IDs that low-income and immigrant voters, who are often Democrats, frequently lack.

In Milwaukee, where turnout dropped 41,000 votes from the 2012 total, the chief elections official said on Friday<http://www.channel3000.com/news/politics/milwaukee-elections-chief-voter-id-law-caused-problems-at-the-polls/42468388> that declines in voting were greatest in areas where lack of IDs was most common. Donald J. Trump won Wisconsin by about 27,000 votes.

No conclusion can be drawn on the impact of the ID requirement until voting data is analyzed, said Nicholas Stephanopoulos, a law professor at the University of Chicago and an election law expert. But “it’s at least a reasonable hypothesis that voting restrictions made a major difference in places like Wisconsin,” he said.

Others said they remained skeptical until election data could be sifted. Some of the strictest voter-identification laws that Republican legislatures had enacted were struck down by courts before balloting began, they noted, and support for <https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/> Hillary Clinton declined across the board f<https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/>rom 2012 levels<https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/hillary-clintons-campaign-was-crippled-by-voters-who-stayed-home/>, not just in states with stricter voter ID requirements.

“With their election debacle, Democrats are looking for a scapegoat,” said Richard L. Hasen, a law professor at the University of California, Irvine, and a leading election scholar. “And as much as I am upset with the efforts of Republican legislatures to make it harder to register and vote, I don’t think that’s the primary explanation for the Democrats’ failure at the top of the ticket.”

There is nevertheless broad agreement that the electoral system failed large numbers of would-be voters this year, and substantial doubt that many of those failings will be remedied anytime soon.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89212&title=%E2%80%9CAfter%20a%20Fraught%20Election%2C%20Questions%20Over%20the%20Impact%20of%20a%20Balky%20Voting%20Process%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Where the money came from, not how much, mattered in the presidential race”<http://electionlawblog.org/?p=89210>

Posted on November 12, 2016 12:37 pm<http://electionlawblog.org/?p=89210> by Rick Hasen<http://electionlawblog.org/?author=3>

Open Secrets looks <https://www.opensecrets.org/news/2016/11/where-the-money-came-from-not-how-much-mattered-in-the-presidential-race/> at Election 2016.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89210&title=%E2%80%9CWhere%20the%20money%20came%20from%2C%20not%20how%20much%2C%20mattered%20in%20the%20presidential%20race%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>

“The year when money won nobody nothing”<http://electionlawblog.org/?p=89208>

Posted on November 12, 2016 12:35 pm<http://electionlawblog.org/?p=89208> by Rick Hasen<http://electionlawblog.org/?author=3>

Teddy Schleifer <http://www.cnn.com/2016/11/12/politics/money-campaign-spending/index.html> for CNN:

Almost all players, Republican and Democrat, acknowledge that their dollars had a far more limited impact than they themselves had predicted at the campaign’s starting gun.

What has perplexed the nation’s political financiers, according to more than a dozen interviews with leading players, is what 2016 has signaled — if anything — about the changing country. Some, including loyalists to Trump and Bernie Sanders, argue that they have crafted the new normal, pooh-poohing the rich as self-important and — in a painful indictment of the entire big-money world — proven to be powerless. A high-wattage, carefully cultivated super PAC? No need, they say. Have a real movement, and watch the money bloom eternal.

The other train of thought — often from the spurned corps of professionals who have, at some point, been cast as the elite bogeymen: Trump is a self-financed, larger-than-life aberration that tells us next to nothing about how money will rule in the post-Trump era. Super PACs, attack ads and the luxury fundraising circuit? How the game is played — now and forever.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89208&title=%E2%80%9CThe%20year%20when%20money%20won%20nobody%20nothing%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>

NC: “McCrory calls for recount of Durham votes, cites other “irregularities””<http://electionlawblog.org/?p=89206>

Posted on November 12, 2016 11:42 am<http://electionlawblog.org/?p=89206> by Rick Hasen<http://electionlawblog.org/?author=3>

News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article114391848.html>

Gov. Pat McCrory, trailing in a close race for re-election behind Attorney General Roy Cooper, claims there was “malfeasance” in tabulating votes in Durham County and “irregularities” reported around the state.

Cooper’s campaign said nothing improper happened in Durham, and accused McCrory of tryingn to undermine the election.

A formal protest filed Saturday with the Durham County Board of Elections calls for a recount of disputed votes there. About 90,000 votes weren’t counted until late on Election Day. Durham officials said it was due to malfunctioning equipment earlier in the day that led to a backlog, and that it had no impact on the votes cast.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89206&title=NC%3A%20%E2%80%9CMcCrory%20calls%20for%20recount%20of%20Durham%20votes%2C%20cites%20other%20%E2%80%9Cirregularities%E2%80%9D%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>

“Donors and lobbyists already shaping Trump’s ‘drain the swamp’ administration”<http://electionlawblog.org/?p=89204>

Posted on November 11, 2016 4:29 pm<http://electionlawblog.org/?p=89204> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/donors-and-lobbyists-already-shaping-trumps-drain-the-swamp-administration/2016/11/11/d1c13704-a828-11e6-ba59-a7d93165c6d4_story.html>

See also NYT’s Trump Campaigned Against Lobbyists, but Now They’re on His Transition Team<http://www.nytimes.com/2016/11/12/us/politics/trump-campaigned-against-lobbyists-now-theyre-on-his-transition-team.html?smid=tw-share>.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89204&title=%E2%80%9CDonors%20and%20lobbyists%20already%20shaping%20Trump%E2%80%99s%20%E2%80%98drain%20the%20swamp%E2%80%99%20administration%E2%80%9D>

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

NC: “State GOP leaders could neutralize Democrats’ Supreme Court majority by adding justices”<http://electionlawblog.org/?p=89202>

Posted on November 11, 2016 3:44 pm<http://electionlawblog.org/?p=89202> by Rick Hasen<http://electionlawblog.org/?author=3>

More<http://www.journalnow.com/news/elections/state/state-gop-leaders-could-neutralize-democrats-supreme-court-majority-by/article_510c2c00-f7ea-5c8d-9251-26a784d6cb9c.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share> from North Carolina.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89202&title=NC%3A%20%E2%80%9CState%20GOP%20leaders%20could%20neutralize%20Democrats%E2%80%99%20Supreme%20Court%20majority%20by%20adding%20justices%E2%80%9D>

Posted in chicanery<http://electionlawblog.org/?cat=12>, judicial elections<http://electionlawblog.org/?cat=19>

“Florida orders recount in Miami-Dade House race where margin is just 68 votes”<http://electionlawblog.org/?p=89200>

Posted on November 11, 2016 2:03 pm<http://electionlawblog.org/?p=89200> by Rick Hasen<http://electionlawblog.org/?author=3>

The Miami Herald reports.<http://www.miamiherald.com/news/politics-government/state-politics/article114158618.html>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89200&title=%E2%80%9CFlorida%20orders%20recount%20in%20Miami-Dade%20House%20race%20where%20margin%20is%20just%2068%20votes%E2%80%9D>

Posted in recounts<http://electionlawblog.org/?cat=50>

“Voter Suppression Laws Cost Americans Their Voices at the Polls”<http://electionlawblog.org/?p=89197>

Posted on November 11, 2016 1:49 pm<http://electionlawblog.org/?p=89197> by Rick Hasen<http://electionlawblog.org/?author=3>

Liz Kennedy<https://www.americanprogress.org/issues/democracy/reports/2016/11/11/292322/voter-suppression-laws-cost-americans-their-voices-at-the-polls/> for CAP.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89197&title=%E2%80%9CVoter%20Suppression%20Laws%20Cost%20Americans%20Their%20Voices%20at%20the%20Polls%E2%80%9D>

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

“GOP legislative leaders could make rare court-packing move to keep partisan control of state Supreme Court”<http://electionlawblog.org/?p=89195>

Posted on November 11, 2016 1:33 pm<http://electionlawblog.org/?p=89195> by Rick Hasen<http://electionlawblog.org/?author=3>

NC Policy Watch. <http://www.ncpolicywatch.com/2016/11/11/gop-legislative-leaders-make-rare-court-packing-move-keep-partisan-control-state-supreme-court/>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89195&title=%E2%80%9CGOP%20legislative%20leaders%20could%20make%20rare%20court-packing%20move%20to%20keep%20partisan%20control%20of%20state%20Supreme%20Court%E2%80%9D>

Posted in judicial elections<http://electionlawblog.org/?cat=19>

“Court challenges likely for photo ID, campaign contribution amendments approved by Missouri voters”<http://electionlawblog.org/?p=89193>

Posted on November 11, 2016 1:28 pm<http://electionlawblog.org/?p=89193> by Rick Hasen<http://electionlawblog.org/?author=3>

The St. Louis Post-Dispatch<http://www.stltoday.com/news/local/govt-and-politics/court-challenges-likely-for-photo-id-campaign-contribution-amendments-approved/article_b970d0d3-9ea4-5602-a890-f1c36a9803d4.html?utm_medium=social&utm_source=twitter&utm_campaign=user-share> reports.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89193&title=%E2%80%9CCourt%20challenges%20likely%20for%20photo%20ID%2C%20campaign%20contribution%20amendments%20approved%20by%20Missouri%20voters%E2%80%9D>

Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>

“The dual meaning of evidence-based judicial review of legislation”<http://electionlawblog.org/?p=89191>

Posted on November 11, 2016 1:25 pm<http://electionlawblog.org/?p=89191> by Rick Hasen<http://electionlawblog.org/?author=3>

Ittai Bar Siman-Tov has written this article<http://www.tandfonline.com/eprint/7UJscKBBZnbaPqU5syxM/full> for The Theory and Practice of Legislation. Here is the abstract:

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualisation of evidence-based judicial review. It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making. The article then employs this novel insight about the overlooked dual meaning of evidence-based judicial review to shed new light on some of the major debates about this phenomenon, such as: whether it should be understood as part of substantive or procedural judicial review; the relationship between evidence-based judicial review and evidence-based law-making; and the role of legislative findings in constitutional adjudication.

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

“Rare big win for Democrats tilts party balance on NC Supreme Court”<http://electionlawblog.org/?p=89189>

Posted on November 11, 2016 1:19 pm<http://electionlawblog.org/?p=89189> by Rick Hasen<http://electionlawblog.org/?author=3>

Charlotte Observer:<http://www.charlotteobserver.com/news/politics-government/article114053308.html>

As people pore over election results, trying to make sense of a year that has baffled many, some in North Carolina are trying to decipher the reasons for Wake County Superior Court Judge Mike Morgan’s resounding victory over Justice Bob Edmunds for the only open seat on the state Supreme Court.

The victory for Morgan, a Democrat, over Edmunds, a Republican, means the ideological balance of the state’s highest court swings back to favor the Democrats, who will hold four of the seven seats.

Morgan won by more than nine percentage points even though Republicans won the state’s votes for president, Senate, five state Court of Appeals seats and six other statewide races. Democrats lead narrowly in three more contests, including for governor, but Morgan and Secretary of State Elaine Marshall were the only Democrats with decisive statewide wins….Some wondered, too, whether the attempt to create retention elections hurt Edmunds’ chances for re-election….

The race between Morgan, 60, and Edmunds, 67, this year would not have come about had it not been for Sabra Faires, a Raleigh attorney who successfully challenged a 2015 law that would have changed how sitting justices stood for re-election. A Superior Court judge panel found the law, which would have shielded sitting justices from opposition on the ballot unless they lost a “retention election,” to be a violation of the state Constitution. Because the Supreme Court split 3-3 on the question, with Edmunds abstaining, the lower court ruling forced a competitive race.

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Posted in judicial elections<http://electionlawblog.org/?cat=19>

Super PAC Donor Literally Given a Seat at the Table for Trump’s Transition<http://electionlawblog.org/?p=89187>

Posted on November 11, 2016 11:27 am<http://electionlawblog.org/?p=89187> by Rick Hasen<http://electionlawblog.org/?author=3>

Announcement<https://twitter.com/sahilkapur/status/797157219066413057> from transition team that Rebekah Mercer is joining.

Now’s the time to go back and study Matea Gold’s must-read<https://www.washingtonpost.com/politics/the-rise-of-gop-mega-donor-rebekah-mercer/2016/09/13/85ae3c32-79bf-11e6-beac-57a4a412e93a_story.html> profile of Mercer.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89187&title=Super%20PAC%20Donor%20Literally%20Given%20a%20Seat%20at%20the%20Table%20for%20Trump%E2%80%99s%20Transition>

Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, Plutocrats United<http://electionlawblog.org/?cat=104>

ATL: Supreme Court Releases Statement Signalling Justice Kennedy Not Planning to Leave Court Soon<http://electionlawblog.org/?p=89183>

Posted on November 11, 2016 10:43 am<http://electionlawblog.org/?p=89183> by Rick Hasen<http://electionlawblog.org/?author=3>

Following up on this post,<http://electionlawblog.org/?p=89140> David Lat of Above the Law<http://abovethelaw.com/2016/11/anatomy-of-a-rumor-on-justice-kennedys-retirement-next-year/> has obtained this statement from the Court:

Justice Kennedy is in the process of hiring clerks for 2017. The Justice didn’t go to Salzburg this past summer because it conflicted with some plans with his family, but he is scheduled to return to teach there in 2017. The reunion is scheduled for the end of this Term because the Justice’s law clerks wanted to hold it during the Justice’s 80th year to mark his birthday.

David adds:

 This statement, which presumably reflects input from Justice Kennedy, strikes me as a persuasive and well-founded rebuttal to the rumors. If AMK were planning to retire next year, the easiest thing would have been for the Court to offer a simple “no comment.”

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

“Effect of voting laws seen, but not enough to sway outcome”<http://electionlawblog.org/?p=89181>

Posted on November 11, 2016 10:39 am<http://electionlawblog.org/?p=89181> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://www.seattletimes.com/nation-world/nation-politics/effect-of-voting-laws-seen-but-not-enough-to-sway-outcome/>

Fourteen states had new voting or registration restrictions in place for the 2016 presidential election, raising concerns that minority voters in particular would have a harder time accessing the ballot box.

Voting experts believe the laws had some effect on turnout this year, but said it would be difficult to measure against other factors — such as a lack of enthusiasm for either Donald Trump or Hillary Clinton and the decision of many people simply not to vote.

They expressed frustration that some states had made it more difficult for voters to participate, even if there is no evidence the changes influenced the outcome of the presidential election.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89181&title=%E2%80%9CEffect%20of%20voting%20laws%20seen%2C%20but%20not%20enough%20to%20sway%20outcome%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“‘Prediction professor’ who called Trump’s big win also made another forecast: Trump will be impeached”<http://electionlawblog.org/?p=89179>

Posted on November 11, 2016 9:23 am<http://electionlawblog.org/?p=89179> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/the-fix/wp/2016/11/11/prediction-professor-who-called-trumps-big-win-also-made-another-forecast-trump-will-be-impeached/>

At the end of our September conversation, Lichtman made another call: That if elected, Trump would eventually be impeached by a Republican Congress that would prefer a President Mike Pence — someone who establishment Republicans know and trust.

“I’m going to make another prediction,” he said. “This one is not based on a system, it’s just my gut. They don’t want Trump as president, because they can’t control him. He’s unpredictable. They’d love to have Pence — an absolutely down the line, conservative, controllable Republican. And I’m quite certain Trump will give someone grounds for impeachment, either by doing something that endangers national security or because it helps his pocketbook.”

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89179&title=%E2%80%9C%E2%80%98Prediction%20professor%E2%80%99%20who%20called%20Trump%E2%80%99s%20big%20win%20also%20made%20another%20forecast%3A%20Trump%20will%20be%20impeached%E2%80%9D>

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

“Voters reject voucher system for political contributions”<http://electionlawblog.org/?p=89177>

Posted on November 11, 2016 9:19 am<http://electionlawblog.org/?p=89177> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://komonews.com/news/local/voters-reject-voucher-system-for-political-contributions>

Washington voters have rejected a measure that creates a publicly funded voucher system for political contributions.

Initiative 1464’s voucher system would have given voters three $50 “democracy credits” that they could use in state races every two years. To pay for the statewide system, the measure would have repealed the non-resident sales tax exemption for residents of sales-tax-free states like Oregon and Montana who shop in Washington.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89177&title=%E2%80%9CVoters%20reject%20voucher%20system%20for%20political%20contributions%E2%80%9D>

Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Hard Choice for Mitch McConnell: End the Filibuster or Preserve Tradition”<http://electionlawblog.org/?p=89175>

Posted on November 11, 2016 9:09 am<http://electionlawblog.org/?p=89175> by Rick Hasen<http://electionlawblog.org/?author=3>

Carl Hulse NYT:<http://www.nytimes.com/2016/11/12/us/politics/republicans-house-senate.html?_r=0>

In the afterglow of their election success, Republicans prefer not to discuss this unpleasant possibility. They would rather rhapsodize about a sunny legislative future in which the two parties work in harmony, negating the need for all those troublesome Senate cloture votes to try to break filibusters (a tactic that they, in fact, employed very effectively to stymie President Obama).

“I think what the American people are looking for is results,” Senator Mitch McConnell<http://topics.nytimes.com/top/reference/timestopics/people/m/mitch_mcconnell/index.html?inline=nyt-per>of Kentucky, who will retain his majority leader title by virtue of surprising Republican victories, told reporters. “And to get results in the Senate, as all of you know, it requires some Democratic participation and cooperation.”

At the same time, Mr. McConnell said that repealing the Affordable Care Act was a “pretty high item on our agenda,” and he predicted quick action. “The sooner we can go in a different direction, the better,” he said.

Democrats are certain to oppose that. Even if some red-state Democrats up for re-election in 2018 join Republicans, the repeal effort will most likely remain short of the 60 votes now needed.

Republicans can use a special process known as reconciliation to avoid a filibuster. But that effort would take well into 2017 and would require passage of a congressional budget resolution, among other steps.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89175&title=%E2%80%9CHard%20Choice%20for%20Mitch%20McConnell%3A%20End%20the%20Filibuster%20or%20Preserve%20Tradition%E2%80%9D>

Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

Senator-Turned-Lobbyist Trent Lott Promises to Help Trump “Drain the Swamp” in Washington<http://electionlawblog.org/?p=89161>

Posted on November 10, 2016 3:11 pm<http://electionlawblog.org/?p=89161> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/11/11/us/politics/lobbyists-trump.html?_r=0>

“Trump has pledged to change things in Washington — about draining the swamp,” said Mr. Lott, who now works at Squire Patton Boggs,<http://www.squirepattonboggs.com/> a law and lobbying firm. “He is going to need some people to help guide him through the swamp — how do you get in and how you get out? We are prepared to help do that.”

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89161&title=Senator-Turned-Lobbyist%20Trent%20Lott%20Promises%20to%20Help%20Trump%20%E2%80%9CDrain%20the%20Swamp%E2%80%9D%20in%20Washington>

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

Congrats to Election Law Prof Jamie Raskin, Now Elected to Congress<http://electionlawblog.org/?p=89158>

Posted on November 10, 2016 2:32 pm<http://electionlawblog.org/?p=89158> by Rick Hasen<http://electionlawblog.org/?author=3>

Jamie is a great guy <http://www.rollcall.com/news/politics/new-member-democrat-jamie-raskin-elected-marylands-8th-district> and I wish him the best of luck.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89158&title=Congrats%20to%20Election%20Law%20Prof%20Jamie%20Raskin%2C%20Now%20Elected%20to%20Congress>

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

“Lines, glitches, snafus, boobs, in other words a typical election”<http://electionlawblog.org/?p=89156>

Posted on November 10, 2016 2:23 pm<http://electionlawblog.org/?p=89156> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the lead story in this week’s Electionline Weekly.<http://www.electionline.org/index.php/electionline-weekly>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89156&title=%E2%80%9CLines%2C%20glitches%2C%20snafus%2C%20boobs%2C%20in%20other%20words%20a%20typical%20election%E2%80%9D>

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

“Independent Spending Dominated the Closest Senate and House Races in 2016”<http://electionlawblog.org/?p=89152>

Posted on November 10, 2016 2:10 pm<http://electionlawblog.org/?p=89152> by Rick Hasen<http://electionlawblog.org/?author=3>

Important release <http://www.cfinst.org/Press/PReleases/16-11-10/INDEPENDENT_SPENDING_DOMINATED_THE_CLOSEST_SENATE_AND_HOUSE_RACES_IN_2016.aspx> from CFI:

The Campaign Finance Institute today released six tables comparing candidates’ receipts to independent spending in the most competitive Senate and House races of 2016. As several of the tables show in summary form (Tables 3-6), candidates tend to raise more money as their races become more competitive. But in the most competitive ones, independent spending by party, quasi-party and non-party committees this year has far outstripped the spending by candidates.

Table 1<http://www.cfinst.org/pdf/federal/Congress/2016/PostElec_2016_Table1.pdf> covering all Senate races, lists the candidates’ receipts through pre-election disclosure reports alongside summary information for all independent spending through the election. The top race for spending in 2016 was the one in Pennsylvania between incumbent Sen. Patrick Toomey against Kathleen McGinty. Independent spending in that race alone topped $116 million – more than triple the amount raised by the candidates themselves. Seven other Senate races also saw independent spending above the $40 million mark – NV, NH, NC, OH, MO, IN, and FL (see Table 1<http://www.cfinst.org/pdf/federal/Congress/2016/PostElec_2016_Table2.pdf>). In most of these cases, the independent spending was at least double the money raised by the candidates. Subdividing the independent spending showed that there was rough parity between formal party organizations and the four quasi-party Super PACs1 on the one hand, and non-party organizations on the other.

In House contests 40 different districts saw independent spending of at least $1 million (see Table 2<http://www.cfinst.org/pdf/federal/Congress/2016/PostElec_2016_Table6.pdf>). In twenty of the top twenty-two races with $5 million or more of independent spending, that spending exceeded the candidates’ receipts. Relatively speaking, the party and quasi-party committees spent less money on House elections than did non-party organizations.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Bert Rein, Lawyer for Shelby County, Says Maybe #SCOTUS Decision Good Because It Deterred “Some Illegals” from Voting<http://electionlawblog.org/?p=89148>

Posted on November 10, 2016 2:02 pm<http://electionlawblog.org/?p=89148> by Rick Hasen<http://electionlawblog.org/?author=3>

Wow:<https://bol.bna.com/did-new-voter-laws-tip-the-election/>

Both Kang and Hasen said whether the Shelby decision tipped the election is less important than whether it unnecessarily disenfranchised any number of voters, even if it was less than a substantial amount.

We put the same question to Bert Rein, of Wiley Rein, who argued on behalf of Shelby County, Alabama that the Voting Rights Act was unconstitutional.

“You know, I saw that in Rick Hasen’s blog,” he acknowledged.

Rein laid out the issue as he sees it: “Were those changes sufficiently impactful to really influence the outcome? I don’t know the answer. Some people would say sure because it dissuaded some Hispanic and other voters who would have voted. But maybe some illegals would also have voted and that’s not good.”

The main impact of Shelby was that it allowed some states to more rapidly change voter laws, he said.

“I’d love to take credit for it and then Donald Trump could write me a nice letter,” said Rein.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89148&title=Bert%20Rein%2C%20Lawyer%20for%20Shelby%20County%2C%20Says%20Maybe%20%23SCOTUS%20Decision%20Good%20Because%20It%20Deterred%20%E2%80%9CSome%20Illegals%E2%80%9D%20from%20Voting>

Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Durham County’s Terrible, Horrible, No Good, Very Bad Election Day”<http://electionlawblog.org/?p=89146>

Posted on November 10, 2016 1:59 pm<http://electionlawblog.org/?p=89146> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2016/11/10/durham-countys-terrible-horrible-no-good-very-bad-election-day/?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHElections+%28The+Election+Academy%29>

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Posted in election administration<http://electionlawblog.org/?cat=18>

“In Close Race for North Carolina Governor, Democrat Claims Victory Though GOP Incumbent Hasn’t Conceded”<http://electionlawblog.org/?p=89144>

Posted on November 10, 2016 1:57 pm<http://electionlawblog.org/?p=89144> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ: <http://www.wsj.com/articles/in-close-race-for-north-carolina-governor-democrat-claims-victory-though-republican-incumbent-hasnt-conceded-1478719475?emailToken=JRr8fvtzY3yXhNM9acw90hgjaq4TBqqTT1jaaX7NIA3Ks2bJoaeqzr8yg9qxqCagQlh3/dYD9SszSDjWi3BjQIqan7d+lEzhZXhWspbewEiXOkPGk07PZ+cEq6PR/yJg6OxaHANNZ9Ie2129sRDuqMwaEV+HbzYSQKzUzmMlOPJ1JXsEWg==>

Next, county canvassers likely will sort through roughly 10,000 absentee vote, as well as about 30,000 provisional votes from people who recently moved or who registered too recently to be reflected in the voting rolls, said Gerry Cohen, former special counsel to the North Carolina legislature and an expert on state election law. Democrats are pinning their hopes on the fact that many provisional ballots are typically filed on college campuses and big cities, he said.

Although Republicans tend to hold a historic advantage in absentee voting, the Democratic nominee Mr. Cooper has been doing comparatively well in that category so far this cycle, Mr. Cohen said.

Mr. McCrory’s backers say he is likely to ask for a recount after the provisional and absentee votes are counted, if the margin stays less than 10,000 votes. County elections officials meet Nov. 18 to begin certifying results, and a recount request must be made no later than Nov. 22, according to state law.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89144&title=%E2%80%9CIn%20Close%20Race%20for%20North%20Carolina%20Governor%2C%20Democrat%20Claims%20Victory%20Though%20GOP%20Incumbent%20Hasn%E2%80%99t%20Conceded%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>

“Frias alleges ‘pervasive mail ballot fraud’ by Mattiello campaign”<http://electionlawblog.org/?p=89142>

Posted on November 10, 2016 1:54 pm<http://electionlawblog.org/?p=89142> by Rick Hasen<http://electionlawblog.org/?author=3>

A big fight <http://www.providencejournal.com/news/20161110/frias-alleges-pervasive-mail-ballot-fraud-by-mattiello-campaign> involving possible absentee ballot fraud and the Rhode Island House speaker.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89142&title=%E2%80%9CFrias%20alleges%20%E2%80%98pervasive%20mail%20ballot%20fraud%E2%80%99%20by%20Mattiello%20campaign%E2%80%9D>

Posted in absentee ballots<http://electionlawblog.org/?cat=53>, chicanery<http://electionlawblog.org/?cat=12>

Justice Kennedy, Not Thomas, the Next to Go from #SCOTUS?<http://electionlawblog.org/?p=89140>

Posted on November 10, 2016 1:51 pm<http://electionlawblog.org/?p=89140> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the rumor,<https://twitter.com/isamuel/status/796824470707142657> and it appears to have some credibility to it. But maybe not.<https://twitter.com/chris_j_walker/status/796831440633786368> (Update: More maybe not from David Lat<https://twitter.com/DavidLat/status/796834564551409664>.)

I had thought<http://electionlawblog.org/?p=89052> Justice Thomas, given what I heard of rumblings he had had enough.

Of course, it could also be Justice Ginsburg<http://electionlawblog.org/?p=89103>, depending upon her health, or any other Justice for that reason.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89140&title=Justice%20Kennedy%2C%20Not%20Thomas%2C%20the%20Next%20to%20Go%20from%20%23SCOTUS%3F>

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

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 affected 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.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89133&title=Democrats%20Blame%20%E2%80%9CVoter%20Suppression%E2%80%9D%20for%20Clinton%20Loss%20at%20Their%20Peril>

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>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89131&title=%E2%80%9CWhat%20the%20Trump%20Presidency%20Means%20for%20the%20Supreme%20Court%E2%80%9D>

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>.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89129&title=%E2%80%9CThe%20Electoral%20College%20Is%20Hated%20by%20Many.%20So%20Why%20Does%20It%20Endure%3F%E2%80%9D>

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.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89127&title=%E2%80%9CTrump%E2%80%99s%20victory%20has%20enormous%20consequences%20for%20the%20Supreme%20Court%E2%80%9D>

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.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89117&title=%E2%80%9CHow%20Gary%20Johnson%20and%20Jill%20Stein%20helped%20elect%20Donald%20Trump%E2%80%9D>

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.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89115&title=Linda%20Greenhouse%2C%20Changing%20Tone%2C%20Urges%20CJ%20Roberts%20to%20Rise%20Above%20Politics%20in%20North%20Carolina%20Voting%20Case>

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>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89113&title=%E2%80%9CElectoral%20College%20Lesson%3A%20More%20Voters%20Chose%20Clinton%2C%20but%20Trump%20Will%20Be%20President%E2%80%9D>

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

--

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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