[EL] ELB News and Commentary 11/18/16

[Rick Hasen]

My One Personal Interaction with Sen. Sessions Does Not Give Me Confidence About Strong Voting Rights Enforcement with Him as AG<http://electionlawblog.org/?p=89363>
Posted on November 18, 2016 8:30 am<http://electionlawblog.org/?p=89363> by Rick Hasen<http://electionlawblog.org/?author=3>
Others have written<http://www.nytimes.com/2016/11/17/us/politics/specter-of-race-shadows-jeff-sessions-potential-trump-nominee-for-cabinet.html?action=click&contentCollection=Politics&module=RelatedCoverage&region=EndOfArticle&pgtype=article> about Senator Jeff Sessions<https://www.thenation.com/article/jeff-sessions-trumps-pick-for-attorney-general-is-a-fierce-opponent-of-civil-rights/>,  President-Elect Trump’s expected nominee<http://www.nytimes.com/2016/11/19/us/politics/jeff-sessions-donald-trump-attorney-general.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news> for Attorney General, and questions of race and voting rights. I can add only one thing from personal experience. In 2006, I testified<https://www.gpo.gov/fdsys/pkg/CHRG-109shrg28213/pdf/CHRG-109shrg28213.pdf> (that day, along with Professors Sam Issacharoff and Rick Pildes) before the Senate Judiciary Committee on the then-expiring preclearance provisions of the Voting Rights Act. I had earlier written a law review article<https://kb.osu.edu/dspace/bitstream/handle/1811/70998/OSLJ_V66N1_0177.pdf> (edited by Chris Geidner) expressing concern that if Congress did not alter the coverage formula for which states had to get federal approval before changing their voting rules, the conservative Supreme Court could well strike the law down as an unconstitutional exercise of congressional power. (We know how this story ends. Congress did not make the changes, and the Supreme Court indeed struck these provisions down inthe Shelby County case<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.)
The hearing was odd, a bunch of liberal law professors called to question the constitutionality of the Voting Rights Act. Sen. Arlen Specter headed the committee, but he was seen as too liberal, and to keep his job more conservative Senators (including Sen. Sessions) insisted he have conservative staff, and it is this staff which put together the hearing.  At the hearing, Senator Sessions was very cordial, and in our exchanges<https://www.gpo.gov/fdsys/pkg/CHRG-109shrg28213/pdf/CHRG-109shrg28213.pdf> he expressed the view, which Chief Justice Roberts later echoed in Shelby County, that things were now much better in the South and preclearance was unwarranted if directed only there :
Senator SESSIONS. You know, as I indicated in my remarks, there was very, very real discrimination, particularly in the South, and perhaps other areas of the country, but certainly in the South, for a number of years, and over these 40 years a lot has changed. It really has. I would like to ask, Mr. Hasen, if you would explain the purpose or the theory, as you understand it, for the fact that Section 5 was not permanent at the time it passed and how we should think about that today in your view.
Mr. HASEN. Thank you, Senator. Section 5 was put in place by Congress after it became clear that a number of jurisdictions with a history of discrimination in voting on the basis of race were playing a kind of cat-and-mouse game where the Federal Government would come in, challenge a particular voting rule. That voting rule would then be changed to a different voting rule, which would also be discriminatory. And the purpose of the preclearance provision was to put the burden on those jurisdictions that showed a history of discrimination to justify any changes in their laws to show that they did not have a discriminatory purpose or effect. The reason that the provisions were set up as temporary is because of the unprecedented nature of the kind of remedy that preclearance is. Never before or since has a State or unit of a State ad the requirement to have to get permission to change its laws from the Federal Government. Some have analogized it to a kind of Federal receivership. So it was what the Supreme Court in the Katzenbach case called ‘‘strong medicine.’’ And so given that it was strong medicine, Congress decided, wisely, I believe, that it should be a temporary measure and that by having these periodic sunsets and the ability for these hearings, it gives a chance for Congress to evaluate whether the strong medicine is still necessary. And so I think that as you go forward and think about extension, it would be worthwhile to look at the evidence and determine how far should extension go, both geographically and temporally. Should the same provisions that were in place based on data in 1964 be in place in the future for the next 25 years, up until 2031? And should the same areas be covered? So I think it is Congress’s obligation now to decide whether that strong medicine should continue in the same form as it has or whether changes are necessary given changes that have occurred on the ground in these covered jurisdictions and in the rest of the United States. Senator
SESSIONS. Thank you for saying that. I think it is important. For example, we do have—tend to have racially polarized voting, I believe as Mr. McDonald said. But my home city of Mobile, a majority-white city, just elected an African-American mayor last month. And he mounted very aggressive campaign, and he had biracial support and was funded aggressively and able to compete on TV and that kind of thing and won the race with a rather significant vote. So I think there is progress occurring out there, and whether things are perfect or not—we know that is not so. We know we are not perfect, and we still have problems. With regard to some of the matters that I hear complaints about from district attorneys and county attorneys, maybe, Mr. Hasen, you would comment. For example, if you move a voting place from a school on one side of the street to the courthouse on the other side of the street, the county or the governmental entity must petition the Department of Justice to approve that and demonstrate that it did not have an intent to discriminate. And at some point, you know, people begin to get a little irritated about that. I mean, they had no problems. They may have African-American officials. Maybe every person in the county—all office holders could be African-Americans, as some are. Are there things like that that you think we ought to consider in terms of making the Act fit the challenges of today rather than problems perhaps in the past?…
Senator SESSIONS. Thank you.
I would offer for the record Senator Leahy’s statement into the record on his behalf, and I would like to followup, Professor Issacharoff and Professor Hasen, on the question that Senator Leahy asked you about, the constitutionality question. Based on your review of the House record, do you believe we currently have enough evidence to meet the Supreme Court’s test in City of Boerne? Who wants to go first?
Mr. HASEN. I have not reviewed the entire House record. First let me say that I think that the Supreme Court’s standard is not sufficiently deferential to Congress and that, just speaking generally, the Court has applied too strict of a standard in terms of the kind of evidence that Congress has to come up with. From what I have reviewed so far of the House record, I am concerned that there will be five or more Justices on the Court who will not be satisfied. If the question is whether I would be satisfied, it is a different question. I think that—
Senator SESSIONS. Are you one of those who believes in stare decisis like some of my colleagues on the Democratic side to such a degree that Boerne ought not to be re-evaluated? Or should the Court re-evaluate it if it is appropriate?
Mr. HASEN. Well, Boerne was a change from the standard in Katzenbach, and I would like to see us go back to that. But we are living in the reality that we have now, which is that the Supreme Court is requiring much more evidence than it ever did, and it is not clear to me that the record as I have looked at it so far—and I have not completed the review—that it is going to satisfy a majority of the Supreme Court.
Despite expressing grave doubts about the constitutionality of a renewed Voting Rights Act, Senator Sessions (and the other conservative Senators on the panel and in the Senate) voted to renew the Act. But then, as Nate Persily explains in his excellent overview<http://www.yalelawjournal.org/pdf/606_21wshzpe.pdf> of the renewal process, Senator Sessions and the other conservatives on the Senate Judiciary Committee also had a surprise in store–a post-vote committee report strongly suggesting the law they just voted for was unconstitutional:
The story in the Senate was quite different. The nine Senate Judiciary Committee hearings held between April 27, 2006, and July 13, 2006, featured heated debates concerning the constitutionality and desirability of the legislation.32 Individual Judiciary Committee members had serious reservations about the proposed bill. Those concerns revolved around the maintenance of the current coverage formula and bailout procedures, the twenty-five-year extension period, the new retrogression test, and what some Republican Senators considered the rushed process of deliberation that rejected any substantive amendments to the bill. At various points it appeared that the legislation might be held over to the next Congress, especially once the language assistance provisions of section 203 became framed by the parallel debate over immigration reform.
Any potential roadblocks to passage were removed once President Bush became involved, however. He scheduled his first presidential speech to the NAACP for July 20, 2006, and used the opportunity to stress his support for reauthorization “without amendment.” Majority Leader Bill Frist placed the House bill on the Senate calendar for the same day as the President’s speech with rules that prevented any amendments on the floor. On the day before the Senate vote on the House bill, the Senate Judiciary Committee reported its own bill, which was identical to the House version, save for the addition of César Chávez’s name to the title.36 This raised an interesting procedural question: if the Senate passed a bill that had a different title but exactly the same substance as the one passed by the House, would a conference committee nevertheless need to be assembled? To avoid that possibility, to prevent any Senate dillydallying on its bill, and to ensure the Senate vote would take place on the day of the President’s speech to the NAACP, Majority Leader Frist simply moved the House bill to the Senate floor.37 The Senate unanimously approved (98-0) the House bill shortly after the President’s speech.
Six days after the Senate passed the House bill and one day before the President signed the bill into law on July 27, the Judiciary Committee “Report” on its version of the bill was filed. Not only was a presidential “stick” instrumental in propelling the House bill to passage in the Senate, but the unprecedented character of the after-the-fact committee report strongly suggests that the opportunity to alter the Senate Report provided a carrot that appeased some of the Senate Republicans who had reservations. In fact, despite a unanimous vote on the Senate bill both in the committee and on the floor, only half of the eighteen members of the Judiciary Committee—all of whom were Republicans—signed on to the Report. The final draft of the Report itself was not circulated to Democratic senators on the Committee until the day the President signed the bill into law. In their “additional views” included with the Report, the Democrats on the Committee emphasized, “We object and do not subscribe to this Committee Report . . . which . . . has become a very different document than the draft Report circulated by the Chairman on July 24, 2006.”
The evolution of the Senate Judiciary Committee Report offers the best window into the fragility of the political compromise that undergirds the new VRA and the basic disagreement that exists concerning its key provision. It also provides a unique case study in the self-conscious manipulation of legislative history for partisan ends and the shadow cast on the legislative bargaining process by the Supreme Court’s recent federalism precedents. Moreover, given the importance the Court has attributed to legislative history in previous reauthorizations—namely, the centrality of the “Senate Factors” to the Court’s subsequent interpretation of the 1982 Amendments to the VRA—the unique character and procedural background of the Committee Report should cause concern regarding how courts or the Department of Justice (DOJ) might apply the law in concrete cases. The hope of supporters of reauthorization was that the Senate Report would take the form of the House Report. Akin to a lawyer’s brief, it would present the legislative record as unambiguously supporting reauthorization, and as providing substantial evidence to support its constitutionality. To do so, the Report would need to credit the damning examples of voting rights violations in covered jurisdictions and interpret the previous twenty-five years of experience under section 5 as demonstrating the VRA’s continued utility. The proposed “Statement of Joint Views of Senate Judiciary Committee Members,” which the Committee Democrats originally crafted but never released, did exactly that. It is unsurprising that the Republican members  ofthe Committee could not sign onto this “Statement of Joint Views.” As is clear from the final product, the Republicans did not want to condemn the covered jurisdictions with as broad and resounding a declaration as did the House Committee. They also disagreed fundamentally with the Democrats’ interpretation of the retrogression standard and wanted to provide what they considered to be a more balanced view of the record, which would place greater emphasis on voting rights progress. The final Report bears no resemblance to the initial “Statement of Joint Views.”

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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“NC voting complications expected to delay outcome of races”<http://electionlawblog.org/?p=89361>
Posted on November 18, 2016 7:39 am<http://electionlawblog.org/?p=89361> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article115400748.html>
Uncertainty over how many as-yet uncounted votes will be added to the results of last week’s election is not likely to be resolved by Friday’s deadline, delaying the outcome of close races for governor and other offices.
Counties are dealing with several complications, including election protests and accommodating a late court order to count the votes of those who say they registered at motor-vehicle offices but did not show up on voter rolls…..
Meanwhile, the Wake board, like others across the state, began the slow trudge through piles of Wake’s provisional, absentee and problematic ballots. While mail-in, damaged or otherwise questionable ballots are part of their chore, the main effort will be to determine whether about 60,000 provisional ballots cast in North Carolina are valid. Typically, fewer than half of them are eligible to be counted.
Hanging in the balance are a number of contests, most prominently the one between Gov. Pat McCrory and Attorney General Roy Cooper for governor. The Democratic attorney general leads the Republican incumbent by about 5,000 votes.
The McCrory campaign announced Thursday evening<http://www.newsobserver.com/news/politics-government/election/article115492333.html> that new complaints alleging voter fraud have been filed in 50 counties. Protests claiming irregularities related to absentee ballots have also been filed in a dozen counties.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Jeff Sessions, Trump’s Pick for Attorney General, Is a Fierce Opponent of Civil Rights”<http://electionlawblog.org/?p=89357>
Posted on November 18, 2016 7:32 am<http://electionlawblog.org/?p=89357> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Berman<https://www.thenation.com/article/jeff-sessions-trumps-pick-for-attorney-general-is-a-fierce-opponent-of-civil-rights/> for The Nation:
In the Democratic primary of September 1984, FBI agents hid behind the bushes of the Perry County post office, waiting for Turner and fellow activist Spencer Hogue to mail 500 absentee ballots on behalf of elderly black voters. When Turner and Hogue left, the feds seized the envelopes from the mail slots. Twenty elderly black voters from Perry County were bused three hours to Mobile, where they were interrogated by law enforcement officials and forced to testify before a grand jury. Ninety-two-year-old Willie Bright was so frightened of “the law” that he wouldn’t even admit he’d voted.
In January 1985, Jefferson Beauregard Sessions III, the 39-year-old US Attorney for the Southern District of Alabama, charged Turner, his wife Evelyn and Hogue with 29 counts of mail fraud, altering absentee ballots and conspiracy to vote more than once. They faced over one hundred years in jail on criminal charges and felony statutes under the VRA – provisions of the law that had scarcely been used to prosecute the white officials who had disenfranchised blacks for so many years. The Turners and Hogue became known as the Marion Three. (This story is best told in Lani Guinier’s book Lift Every Voice<http://www.amazon.com/Lift-Every-Voice-Turning-Setback/dp/B005M4VNUK>.)
The trial was held in Selma, of all places. The jury of seven blacks and five whites deliberated for less than three hours before returning a not guilty verdict on all counts.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>


“Both in court and under Trump, Texas Voter ID law faces uncertain future”<http://electionlawblog.org/?p=89355>
Posted on November 18, 2016 7:29 am<http://electionlawblog.org/?p=89355> by Rick Hasen<http://electionlawblog.org/?author=3>
The Texas Tribune reports.<https://www.texastribune.org/2016/11/17/court-fight-continues-texas-voter-id-law/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


People are Desperately Looking for a Way Around President Trump, and Have Some Crazy Ideas<http://electionlawblog.org/?p=89351>
Posted on November 18, 2016 7:21 am<http://electionlawblog.org/?p=89351> by Rick Hasen<http://electionlawblog.org/?author=3>
There’s a new lawsuit<http://electionlawblog.org/wp-content/uploads/ec-complaint.pdf> against the electoral college<http://www.dailynews.com/general-news/20161115/clinton-supporter-in-la-challenges-election-sues-electoral-college>.
I’ve gotten a slew emails and phone calls (from some people who won’t take no for an answer), who want to sue Trump, or Comey (for Hatch Act violations), or get a FISA warrant or an injunction from the Supreme Court, or prove that Russians hacked the voting machines, all in an effort to stop Trump from coming into office on January 20.
Short of a trove of faithless elector<http://www.presstelegram.com/government-and-politics/20161117/the-election-isnt-over-yet-long-beach-activist-starts-viral-petition-over-electoral-college>s, this is over.  People need to come to grips with reality.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Automated Pro-Trump Bots Overwhelmed Pro-Clinton Messages, Researchers Say”<http://electionlawblog.org/?p=89349>
Posted on November 18, 2016 7:14 am<http://electionlawblog.org/?p=89349> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/11/18/technology/automated-pro-trump-bots-overwhelmed-pro-clinton-messages-researchers-say.html?smid=tw-nytimes&smtyp=cur&_r=0>
An automated army of pro-Donald J. Trump chatbots overwhelmed similar programs supporting Hillary Clinton five to one in the days leading up to the presidential election, according to a report published Thursday by researchers at Oxford University<http://topics.nytimes.com/top/reference/timestopics/organizations/o/oxford_university/index.html?inline=nyt-org>.
The chatbots — basic software programs with a bit of artificial intelligence and rudimentary communication skills — would send messages on Twitter<http://www.nytimes.com/topic/company/twitter?inline=nyt-org>based on a topic, usually defined on the social network by a word preceded by a hashtag symbol, like #Clinton.
Their purpose: to rant, confuse people on facts, or simply muddy discussions, said Philip N. Howard, a sociologist at the Oxford Internet Institute<https://www.oii.ox.ac.uk/> and one of the authors of the report. If you were looking for a real debate of the issues, you weren’t going to find it with a chatbot….
Because the chatbots were almost entirely anonymous and were frequently bought in secret from companies or individual programmers, it was not possible to directly link the activity to either campaign, except for a handful of “joke” bots created by Mrs. Clinton’s campaign, they noted.
However, there was evidence that the mystery chatbots were part of an organized effort.
“There does seem to be strategy behind the bots,” Dr. Howard said. “By the third debate, Trump bots were launching into their activity early and we noticed that automated accounts were actually colonizing Clinton hashtags.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>


“GOP could nuke filibuster for Supreme Court nominees”<http://electionlawblog.org/?p=89347>
Posted on November 18, 2016 7:08 am<http://electionlawblog.org/?p=89347> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico reports.<http://www.politico.com/story/2016/11/gop-supreme-court-filibuster-nuclear-option-231582>
As I wrote<http://www.nydailynews.com/opinion/rick-hasen-supremely-important-choice-article-1.2858853> before the election:
If Donald Trump wins, however, expect Democrats and Republicans to reverse roles. If Trump wins and Democrats control the Senate, Democrats could try to keep the seat vacant for up to the full length of his term, pointing to McCain’s and Burr’s comments as reasons to do so. And if Trump wins and Republicans control the Senate, then expect Sen. Mitch McConnell, who had opposed Reid’s efforts to otherwise kill the filibuster, to kill it for Supreme Court nominations as well and push through a Trump appointee.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Why Campaign Finance Rules Make Free Speech Expensive For The Little Guy”<http://electionlawblog.org/?p=89345>
Posted on November 18, 2016 7:04 am<http://electionlawblog.org/?p=89345> by Rick Hasen<http://electionlawblog.org/?author=3>
Dan Backer writes.<http://thefederalist.com/2016/11/18/campaign-finance-rules-make-free-speech-expensive-little-guy/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“The Best Delegate Election Process for a New York Constitutional Convention”<http://electionlawblog.org/?p=89343>
Posted on November 18, 2016 7:00 am<http://electionlawblog.org/?p=89343> by Rick Hasen<http://electionlawblog.org/?author=3>
J.H. Snider<http://www.gothamgazette.com/index.php/opinion/6628-the-best-delegate-election-process-for-a-new-york-constitutional-convention> for Gotham Gazette.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Trump Must Divest Himself of All Business Holdings”<http://electionlawblog.org/?p=89341>
Posted on November 17, 2016 10:34 am<http://electionlawblog.org/?p=89341> by Rick Hasen<http://electionlawblog.org/?author=3>
Letter<http://www.campaignlegalcenter.org/news/press-releases/trump-must-divest-himself-all-business-holdings> from reform groups and individuals.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


--
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
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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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