[EL] ELB News and Commentary 11/22/16

Tue Nov 22 08:46:01 PST 2016

“Donald Trump’s Business Dealings Test a Constitutional Limit”<http://electionlawblog.org/?p=89446>
Posted on November 22, 2016 8:41 am<http://electionlawblog.org/?p=89446> by Rick Hasen<http://electionlawblog.org/?author=3>
Adam Liptak<http://www.nytimes.com/2016/11/21/us/politics/donald-trump-conflict-of-interest.html?ref=politics> for the NYT:
“Emolument” means compensation for labor or services. And the clause says that “no person holding any office of profit or trust” shall “accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” unless Congress consents….
But he said that the answer would be different if a foreign government sought to make a payment to a sitting president. In a footnote, Mr. Barron added, “Corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause.”
Mr. Trump’s companies do business with entities controlled by foreign governments and people with ties to them. The ventures include multimillion-dollar real estate arrangements — with Mr. Trump’s companies either as a full owner or a “branding” partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower<http://www.nytimes.com/2016/11/15/us/politics/donald-trump-holdings-conflict-of-interest.html> and a lender for another building<http://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html> in Midtown Manhattan where Mr. Trump has a significant partnership interest.
Experts in legal ethics say those kinds of arrangements could easily run afoul of the Emoluments Clause if they continue after Mr. Trump takes office. “The founders very clearly intended that officers of the United States, including the president, not accept presents from foreign sovereigns,” said Norman Eisen<https://www.brookings.edu/experts/norman-eisen/>, who was the chief White House ethics lawyer for Mr. Obama from 2009 to 2011.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

NC: “Civitas Sues to Block Counting of Same-Day Votes”<http://electionlawblog.org/?p=89442>
Posted on November 22, 2016 8:34 am<http://electionlawblog.org/?p=89442> by Rick Hasen<http://electionlawblog.org/?author=3>
WTVD reports.<http://abc11.com/politics/civitas-sues-to-block-counting-of-same-day-votes/1619939/>
Given that the Fourth Circuit ordered this provision restored, hard to me to see that this complaint<https://t.co/ykL2BOjVNY> is about anything other than trying to stir up more doubts about the election.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Judges Find Wisconsin Redistricting Unfairly Favored Republicans”<http://electionlawblog.org/?p=89440>
Posted on November 22, 2016 8:31 am<http://electionlawblog.org/?p=89440> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports.<http://www.nytimes.com/2016/11/21/us/wisconsin-redistricting-found-to-unfairly-favor-republicans.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Judge to IRS: ‘Strong showing’ on Tea Party bias claim”<http://electionlawblog.org/?p=89438>
Posted on November 22, 2016 8:14 am<http://electionlawblog.org/?p=89438> by Rick Hasen<http://electionlawblog.org/?author=3>
USA Today:<http://www.usatoday.com/story/news/nation-now/2016/11/17/judge-irs-strong-showing-tea-party-bias-claim/94040806/>
A federal judge ruled this month in a lawsuit in the ongoing IRS Tea Party saga that there was “a strong showing” that the agency had discriminated against conservative groups<http://cin.ci/2fAQMtH> because of their political stances.
And U.S. District Court Judge Michael R. Barrett wrote in a decision that a group suing the IRS “has made a strong showing of a likelihood of success” on its claim that its free speech rights were violated by the delay in processing the application.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Billionaires vs. the Press in the Era of Trump”<http://electionlawblog.org/?p=89435>
Posted on November 22, 2016 8:10 am<http://electionlawblog.org/?p=89435> by Rick Hasen<http://electionlawblog.org/?author=3>
Emily Bazelon<http://www.nytimes.com/2016/11/22/magazine/billionaires-vs-the-press-in-the-era-of-trump.html?_r=1> for NYT Magazine:
The new president will be a man who constantly accuses the media of getting things wrong but routinely misrepresents and twists facts himself. “Their single goal will be to burnish their reputation,” Tim O’Brien predicts of the Trump administration. There are signs, too, of new efforts to harness the law to the cause of cowing the press. Trump’s choice for chief adviser, Stephen Bannon, ran the alt-right Breitbart News Network before joining Trump’s campaign last summer. Breitbart announced<http://thehill.com/homenews/media/306106-breitbart-news-planning-lawsuit-against-major-media-company> last week that it was “preparing a multimillion-dollar lawsuit against a major media company” for calling Breitbart a “ ‘white nationalist’ website.” Even if Breitbart is bluffing, the threat will discourage other news outlets from using that term to describe it, and that will in turn help Breitbart and Bannon seem more acceptable to the mainstream. Trump was right about one thing: You don’t have to win every case to advance in the larger legal war.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“FEC hits Trump on 1,100 errors, totaling roughly $1.3M”<http://electionlawblog.org/?p=89433>
Posted on November 22, 2016 8:06 am<http://electionlawblog.org/?p=89433> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN:<http://www.cnn.com/2016/11/21/politics/fec-trump-violations/>
The Federal Election Commission is asking the campaign of Donald Trump to correct more than 1,000 errors in its latest financial filing.
The FEC determined that the Trump campaign accepted close to 1,100 donations, which amounted to roughly $1.3 million, that violated one of a handful of campaign finance laws….
Larry Noble of the Campaign Legal Center said the FEC letter is fairly routine.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“FEC Deadlocks on Charges Candidate Sought ‘Soft Money’”<http://electionlawblog.org/?p=89431>
Posted on November 22, 2016 8:02 am<http://electionlawblog.org/?p=89431> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=100804275&vname=mpebulallissues&jd=a0k4t9w7d6&split=0>
The Federal Election Commission dismissed on a deadlocked, party-line vote allegations that Jon Keyser, a Republican U.S. Senate candidate from Colorado illegally solicited $3 million in unlimited “soft money” contributions to aid his 2016 campaign.
Documents released by the FEC showed the allegations against Keyser, a former Colorado state legislator, focused on news reports that, while he was considering running for the U.S. Senate, he traveled to Washington, D.C. to meet potential supporters and attend a forum sponsored by the Republican Jewish Coalition….
The six FEC commissioners divided 3-3 in a vote on whether to pursue enforcement action. The FEC general counsel’s office recommended that the commissioners find “no reason to believe” that Keyser violated a campaign finance law that bars a federal candidate from soliciting soft money.
The FEC’s three Republican commissioners voted to follow staff recommendations in a report from the general counsel’s office on the enforcement complaint, designated Matter Under Review (MUR) 7008. The report relied on a response letter from Keyser’s attorney and an affidavit from the candidate acknowledging that he met with potential supporters before declaring his Senate candidacy but “did not solicit or accept any contributions during this time.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“Don McGahn, Trump Transition Lawyer, Has Long Courted Controversy”<http://electionlawblog.org/?p=89429>
Posted on November 22, 2016 7:52 am<http://electionlawblog.org/?p=89429> by Rick Hasen<http://electionlawblog.org/?author=3>
Arn Pearson blogs.<http://www.exposedbycmd.org/2016/11/22/controversial-figure-trump-transition-legal-counsel/>
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“No, NC Republicans can’t just declare Pat McCrory a winner without courts having a say”<http://electionlawblog.org/?p=89427>
Posted on November 21, 2016 8:29 pm<http://electionlawblog.org/?p=89427> by Rick Hasen<http://electionlawblog.org/?author=3>
Peter St. Onge <http://www.charlotteobserver.com/opinion/opn-columns-blogs/peter-st-onge/article116348258.html> for Charlotte Observer:
So what’s the misinformation? The New York Times wrote Saturday<http://www.nytimes.com/2016/11/19/us/north-carolina-governor-election.html?_r=0>, and Slate repeated Monday<http://www.slate.com/blogs/outward/2016/11/21/pat_mccrory_is_trying_to_steal_the_north_carolina_governorship.html>, that N.C. law not only allows the General Assembly to declare a winner in the governor’s race, but that the decision is “not reviewable” by the courts.
 Yes, N.C. lawmakers can declare a winner, a power given to them both by the N.C. constitution, which says the General Assembly can settle “contested” state races, but also the law cited by the New York Times and Slate that says losers in Council of State races can appeal the results to the legislature.
As for whether the legislature’s decision can be reviewed by courts, here’s what that N.C. statute <http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_163/GS_163-182.13A.html> actually says: “The decision of the General Assembly in determining the contest of the election pursuant to this section may not be reviewed by the General Court of Justice.”
While that might mean that N.C. courts can’t question such a decision, federal courts definitely can. So says Richard Hasen, election law expert and professor at the University of California-Irvine.
Hasen told me Monday night that if lawmakers declare McCrory the winner: “It could certainly be reviewable by a federal court regardless of what the legislature says.” He went into some detail a few moments later on his election law blog<http://electionlawblog.org/?p=89420>. It’s worth a read, but to summarize: If there’s clear evidence that Cooper got more votes, and there’s no plausible argument for fraud, then Cooper could claim both a Due Process and Equal Protection Clause violation if the race were handed to McCrory. There’s precedent for courts taking such a look.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Supreme Court won’t investigate leaks”<http://electionlawblog.org/?p=89425>
Posted on November 21, 2016 8:21 pm<http://electionlawblog.org/?p=89425> by Rick Hasen<http://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel:<http://www.jsonline.com/story/news/politics/2016/11/21/94243672/>
The Wisconsin Supreme Court declined Monday to appoint a special master to investigate leaks from a long-running John Doe probe to a newspaper, leaving it to Attorney General Brad Schimel to look into it on his own.
The Republican attorney general last month asked the state’s high court<http://www.jsonline.com/story/news/politics/2016/10/27/schimel-asks-leak-investigation/92852050/> to appoint the special master to investigate the leak of more than 1,300 pages of sealed documents to the Guardian U.S.<http://www.jsonline.com/story/news/politics/2016/09/14/report-lead-paint-makers-helped-gov-walker/90349256/> The documents came from a probe of Republican Gov. Scott Walker’s campaign that the state Supreme Court shut down in 2015.
The justices ruled 3-1 that it was for prosecutors — not the court — to decide whether to pursue a criminal investigation of the leaks.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

926-Page Record in Tomorrow’s NC Gov McCrory Challenge Hearing<http://electionlawblog.org/?p=89423>
Posted on November 21, 2016 8:08 pm<http://electionlawblog.org/?p=89423> by Rick Hasen<http://electionlawblog.org/?author=3>
Here. <https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/2016-11-22/Record_and_Order_of_Proceedings.pdf>
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Posted in recounts<http://electionlawblog.org/?cat=50>, The Voting Wars<http://electionlawblog.org/?cat=60>
If the NC Legislature Overturns NC Gov’s Election, Expect a Federal Lawsuit Despite State Law, One Which Could Well Succeed<http://electionlawblog.org/?p=89420>
Posted on November 21, 2016 5:25 pm<http://electionlawblog.org/?p=89420> by Rick Hasen<http://electionlawblog.org/?author=3>
Some have pointed<http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article116265693.html> to the fact that the North Carolina legislature’s decision in an election contest is “unreviewable” by the courts. Whether or not that is true in North Carolina state courts, the NC legislature through a statute cannot divest the federal courts of jurisdiction to consider U.S. constitutional claims.
If there is clear evidence both that Roy Cooper got more votes in North Carolina, with no plausible basis to claim that fraud infected the result (and by all indications so far, both of these facts are true), it could well be both a Due Process and Equal Protection Clause violation for the North Carolina legislature on a partisan basis to consider a “contest” and overturn the results and hand them to Pat McCrory. There are cases where federal courts have gotten involved in these kinds of ugly election disputes (think Roe v. Alabama, Bush v. Gore). But a brazen power grab without a plausible basis for overturning the results of a democratically conducted election?  I expect the federal courts would take a very close look at such a thing.

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

NC House Speaker Doesn’t Rule Out Overturning NCGov Elections, Packing NC Supreme Court<http://electionlawblog.org/?p=89417>
Posted on November 21, 2016 4:54 pm<http://electionlawblog.org/?p=89417> by Rick Hasen<http://electionlawblog.org/?author=3>
Such a move<http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article116265693.html> would be a brazen power grab with really no modern analogue.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Does Kris Kobach Have Plans to Amend National Voter Registration Act, Presumably to Make Registration Tougher?<http://electionlawblog.org/?p=89415>
Posted on November 21, 2016 1:15 pm<http://electionlawblog.org/?p=89415> by Rick Hasen<http://electionlawblog.org/?author=3>
Via Ryan Reilly<https://twitter.com/ryanjreilly/status/800770794246852608>
22h<https://twitter.com/ryanjreilly/status/800769205687590912>
[https://pbs.twimg.com/profile_images/793678316024762368/2XDyfIe8_normal.jpg]Ryan J. Reilly <https://twitter.com/ryanjreilly>
✔ @ryanjreilly<https://twitter.com/ryanjreilly>
Revised plan:

1. From this point on, remember to place sensitive documents inside the folder before posing for photographers. https://twitter.com/cjonline/status/800766763545796608 …<https://t.co/mnVzoidkKN>
<https://twitter.com/ryanjreilly>
 Follow<https://twitter.com/ryanjreilly>
[https://pbs.twimg.com/profile_images/793678316024762368/2XDyfIe8_normal.jpg]Ryan J. Reilly <https://twitter.com/ryanjreilly>
✔@ryanjreilly<https://twitter.com/ryanjreilly>
Kobach memo: "Draft Amendments to National Voter…." https://twitter.com/CJOnline/status/800766763545796608 …<https://t.co/pmB28YeHF1> (CC: @rickhasen<https://twitter.com/rickhasen>)
10:40 AM - 21 Nov 2016<https://twitter.com/ryanjreilly/status/800770794246852608>

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

Election Data Services Offers Its 2016 Election Results Poster<http://electionlawblog.org/?p=89411>
Posted on November 21, 2016 1:11 pm<http://electionlawblog.org/?p=89411> by Rick Hasen<http://electionlawblog.org/?author=3>
Ordering info.<https://www.electiondataservices.com/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Breaking: 3-Judge Federal Court, on 2-1 Vote Holds WI Assembly Districts Unconstitutional Partisan Gerrymander, Teeing Up Issue for #SCOTUS<http://electionlawblog.org/?p=89402>
Posted on November 21, 2016 12:42 pm<http://electionlawblog.org/?p=89402> by Rick Hasen<http://electionlawblog.org/?author=3>
In a major victory for those who believe that courts should be in the business of policing redistricting plans that give partisan advantage to one party or another, a three-judge court has ruled 2-1<http://wispolitics.com/1006/161121Ruling.pdf> that the Wisconsin assembly districts drawn by the WI Republican legislature are an unconstitutional partisan gerrymander. There’s still more to do in the case—namely figure out the correct remedy—but this is a case that will be headed directly to the Supreme Court, where its fate might depend upon who President-elect Trump nominates to the Supreme Court.
Here’s the quick overview f<http://electionlawblog.org/?p=78439>or those who need to get up to speed:
The state of play in partisan gerrymandering claims is a crazy one: thanks to the position of Justice Kennedy in the Supreme Court (in the Vieth case and others), partisan gerrymandering claims are “justiciable” (meaning the courthouse door is open to raising the claims), but every usual standard that plaintiffs have raised to try to prove a partisan gerrymander has been rejected by Justice Kennedy. Kennedy’s message in essence is: keep trying to come up with a judicially manageable standard that separates permissible from impermissible consideration of party in redistricting.  So if you are a plaintiff bringing such suits, you have to raise something different from what’s already been raised as well as something which could well attract the votes of five Justices, including Justice Kennedy.
Plaintiffs in the Wisconsin case have raised a kind of partisan symmetry argument, one which J. Kennedy did not completely close the door to in earlier cases. In particular, plaintiffs in this case are relying on the “efficiency gap” measurement set forth in Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap<https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/82_2/04%20Stephanopoulos_McGhee_ART.pdf>, 82 U. Chi. L. Rev. 831 (2015).
In today’s opinion, the majority looks to the efficiency gap as evidence of illegal partisan entrenchment, but it alone does not prove the case. Here is how the majority sets forth the elements of the cause of action:
As our description of the case law reveals, the law governing political gerrymandering, still in its incipient stages, is in a state of considerable flux. We must, however, accept that situation and seek in these authorities a solution to the case before us. Therefore, while not discounting the difficulty of the task before us, we now identify the guideposts available to us. We begin with a principle that is beyond dispute. State legislative apportionment is the prerogative and therefore a duty of the political branches of the state government. We must “recognize[] the delicacy of intruding on this most political of legislative functions.” Bandemer, 478 U.S. at 143.166 We also know that we cannot rely on the simple finding “that political classifications were applied.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Similarly, “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” Bandemer, 478 U.S. at 132 (plurality opinion). It is clear that the First Amendment and the Equal Protection Clause protect a citizen against state discrimination as to the weight of his or her vote when that discrimination is based on the political preferences of the voter.167 This principle applies not simply to disparities in raw population, but also to other aspects of districting that “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson, 379 U.S. at 439. Specifically, apportionment plans that “invidiously minimize[]” the voting strength of “political groups” “may be vulnerable” to constitutional challenges, Gaffney, 412 U.S. at 754, because “each political group in a State should have the same chance to elect representatives of its choice as any other political group,” Bandemer, 478 U.S. at 124.
We conclude, therefore, that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.

There is a lot of detail and technical specifics I haven’t worked through yet, but this is the essence of the court’s analysis. To the dissenting judge, Judge Griesbach, plaintiffs’ claims are no different from the claims in earlier cases in which the Supreme Court has found there is no manageable standard for separating permissible information about partisan affiliation from unconstitutional partisan gerrymandering:
The Supreme Court heard this same story in 1986. It was unmoved. In 2004 the Court rejected a similar claim, and the reasons the Justices cited only twelve years ago apply with equal force now. What made this case different is the Plaintiffs’ claim that they had discovered the holy grail of election law jurisprudence—the long sought after “judicially discernable and manageable standard” by which political gerrymander cases are to be decided. Yet, even the majority has declined Plaintiffs’ request that the efficiency gap standard be adopted as the presumptive test, choosing instead to use it merely as corroborative evidence of its own entrenchment test. Slip Op. at 86. As I have attempted to show above, however, the majority’s entrenchment test offers no improvement over the tests that have already been rejected by the Supreme Court. And the efficiency gap theory on which the Plaintiffs founded their case fatally relies on premises the courts have already rejected, including proportional representation, and it suffers from a number of practical problems as well. Simply put, I do not believe the Supreme Court would direct courts to meddle in a state districting plan when that plan adequately hews to traditional and legitimate districting principles; contains no “gerrymander,” as traditionally understood; and when the plan only modestly extends the map-drawing party’s electoral advantage beyond what would exist naturally. This is particularly true given that the gerrymandering party very likely would have won both elections conducted under the challenged plan even without gerrymandering. Under these circumstances, and given the Justices’ reluctance to review gerrymandering claims, the Plaintiffs’ theory does not persuade me that a majority of the Supreme Court would find an unconstitutional gerrymander in this case. Accordingly, I would find in favor of the Defendants and therefore respectfully dissent.
Because this case comes directly from a three-judge court, it goes on direct appeal to the Supreme Court where an opinion not to hear the case (and to simply affirm) means the lower court got the right result. That fact (as I explain in this Stanford Law Review piece<https://www.stanfordlawreview.org/print/article/election-laws-path-in-the-roberts-courts-first-decade/>) makes it extremely likely the Court will agree to hear this case on the merits—or at least hold it while it considers another one of these cases (there is one working its way up from Maryland and one from North Carolina—it is not clear to me which one gets there first).
So what happens when this case gets to the Supreme Court? There are four votes (the four liberals) likely to embrace the result in this case, if not necessarily the precise reasoning. There are three Justices (CJ Roberts, and Justices Alito and Thomas) likely to reject the claim in this case as non-justiciable. So to get to a fifth vote there are two possibilities: Justice Kennedy likes what he sees here, in contrast to the other cases where he has waited and rejected other standards, or a new Ninth Justice appointed by President Trump votes for it.  How likely is that? Well Trump has promised to appoint someone like Justice Scalia, if that new Justice votes like Scalia<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2763713>, it’s not likely at all. But this is not an issue that necessarily breaks along party lines, and so we will have to see how things go.
So bottom line: this is a big victory for those who want to see courts rein in partisan gerrymandering. But it is anybody’s guess what happens to this when it gets to the Supreme Court.
[This post has been updated.]
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Restrictive Voter ID Laws and Turnout: What We Might Learn from Texas<http://electionlawblog.org/?p=89399>
Posted on November 21, 2016 9:41 am<http://electionlawblog.org/?p=89399> by Richard Pildes<http://electionlawblog.org/?author=7>
Whether the various new voter-ID laws have a significant effect on voter turnout has been notoriously difficult to assess empirically. The recent election results from Texas, however, might provide a way to get some insight into this question not previously available before.  As a result of federal court litigation, Texas now provides something of a natural experiment to test this question.
Up until now, it has been possible to get data in various states on the number of eligible voters who appear to lack the required forms of identification (typically, photo IDs) that a state’s recent voter ID law now requires.  Those numbers have often been established in litigation.  But the problem in understanding what effects these laws might have on election turnout and outcomes is that we do not know how many of those voters would actually have turned out to vote whether or not the voter ID law was in place.  The voters who lack the relevant IDs tend, not surprisingly, to be from socio-economic groups that have the lowest voter turnout rates as a general matter (in 2012, 47% of those earning under $10,000 voted while 80% of those earning more than $150,000 did<http://www.politico.com/magazine/story/2015/01/income-gap-at-the-polls-113997>, and see today’s NYT story<http://www.nytimes.com/2016/11/21/us/many-in-milwaukee-neighborhood-didnt-vote-and-dont-regret-it.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news> on non-voters in Milwaukee).
Texas enacted what the federal courts declared to be the “strictest law in the country” governing in-person voter identification.  After declaring that law invalid, the courts ruled that the remedy for this election was that anyone who showed up at the polls without any of the relevant IDs could still vote and cast a regular ballot (not a provisional) by signing a form in which they stated that they had a “reasonable impediment” that made them unable to possess or get one of the relevant IDs.  So in this election, Texas essentially had two groups of voters who cast ballots, as the Texas Tribune noted<https://www.texastribune.org/2016/10/24/texplainer-what-id-do-i-need-voting/>:  those who had the relevant IDs and those who did not but signed the reasonable impediment forms.  The form can be found here.<http://www.sos.state.tx.us/elections/forms/pol-sub/reasonable-impediment-declaration.pdf>
I am not aware of any centralized data base for the number of “reasonable impediment” forms signed in Texas this election.  Once some enterprising journalist or social scientist tracks those numbers down, we will have a count of the number of voters who turned out but lacked any of the required IDs under Texas’ strict identification law.  Indeed, to the extent the litigation remains pending in the federal courts, these numbers could come out there.
Of course, this number will be an imperfect measure of how many actual voters this strict voter ID law would have blocked, but for the court-ordered option of voting with this form.  Eligible voters who lacked the IDs might have been deterred from showing up at all, because they did not know they could vote by signing these forms.  Perhaps some number of people showed up without IDs, but left because they were reluctant to sign the forms.
Determining the reason(s) people who did not show up to vote at all failed to do so will almost always be an impossible task.  But the count of these reasonable impediment forms will tell us how many people did show up to vote who would not have been able to vote had the Texas ID law been in effect without the court-ordered remedy in place that permitted these people to vote by signing this form.
Just to be clear, no individual eligible voter should be deterred from voting by unnecessary or unjustifiable barriers to voting.  But for those trying to gauge the systemic effects of laws like that of Texas,  Texas has just inadvertently enabled a useful social-science study.

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

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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