[EL] ELB News and Commentary 9/9/16

Thu Sep 8 20:56:43 PDT 2016

  #SCOTUS Sometimes Decides Even When It Doesn’t Decide: The Strange MI Voting Case<http://electionlawblog.org/?p=86369>
Posted on September 8, 2016 8:37 pm<http://electionlawblog.org/?p=86369> by Rick Hasen<http://electionlawblog.org/?author=3>

It is almost midnight on the East Coast, and we still have no ruling from the Supreme Court on Michigan’s application to allow it to eliminate straight ticket voting<http://electionlawblog.org/?p=86158> (a mechanism which allows a person to vote for all party offices with a single vote). A federal court had ruled preliminarily that Michigan’s abandonment of this device (which many states have eliminated) would adversely harm African-American voters, in part by increasing the lines in polling places (maybe by 2 minutes or more per person, a real concern on election day). This looks like a Voting Rights Act violation.

A panel of the Sixth Circuit refused to stay that order (meaning straight ticket voting would remain for November), and the entire Sixth Circuit, sitting en banc refused (on a split vote to get involved).

Michigan rushed to the Supreme Court for relief, and told the Court it needed an answer by today, September 8, in order to know how to print ballot materials. So I, as well as many others, expected the Court would rule today. They usually rule before deadlines like this. I also thought for various reasons<http://electionlawblog.org/?p=86158> Michigan had a very low chance of getting relief on this motion.

So here we are with almost the day over and nothing.

Michigan might be able to stall tomorrow for a few hours if the order does not come by morning (in 2014, we had a Texas voter id ruling and Justice Ginsburg dissent issued at 5 am on the Saturday before early voting was starting in Texas). But it has to treat this as equivalent to the denial of relief from the Supreme Court.

I strongly suspect that the reason for the delay is a dissent from one or more Justices (the likely suspects are Justices Alito and Thomas). After all, if the Court was going to grant relief, it knew it had to do so by the end of September 8.

We will probably know soon enough, but here, deciding not to decide is also deciding.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Sunday voting, additional early voting sites and hours restored in some counties despite GOP opposition”<http://electionlawblog.org/?p=86365>
Posted on September 8, 2016 8:12 pm<http://electionlawblog.org/?p=86365> by Rick Hasen<http://electionlawblog.org/?author=3>

News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article100772547.html>

RALEIGH

Noting the watchful eye of a federal court, the State Board of Elections voted to restore Sunday early voting hours in several counties that had offered the option – popular among African-American voters – in 2012.

The board also voted to add early voting hours in counties where schedules had been cut<http://www.newsobserver.com/news/politics-government/election/article100284162.html>. But in party line votes, the board’s Republican majority rejected efforts to add Sunday voting in counties that hadn’t previously offered it.

Some of the decisions put members of the board’s Republican majority at odds with their party’s leaders, who had lobbied extensively for fewer early voting opportunities and the elimination of Sunday voting. The board was charged with settling disputed early voting schedules in 33 counties where the local board vote wasn’t unanimous….

In Mecklenburg, the Republican election board majority reduced early voting hours from 2012, providing six sites during the first week of the early voting period. The Democrat on the board wanted 22 sites during that week – the same number offered during the rest of the period. The state board instead opted for 10 sites in the first week.

“I don’t see how the majority plan can function for the needs of Mecklenburg County,” Baker said. The state board’s attorney, Josh Lawson, said the GOP plan would be a “risky move” that could run afoul of a federal court ruling on North Carolina’s election law.

Making the case for less early voting, Mecklenburg election board member Liz McDowell said the lack of precinct judges at early voting sites leads to problems such as “voter harassment.” She says voters are “victimized by too enthusiastic campaign officials” who follow them into the polls and tell them how to vote. State law bans campaigning inside polling places.

”Are you serious?” state board member Joshua Malcolm asked McDowell.

Malcolm, a Democrat, said the 10-site plan the state board approved will still lead to problems in Mecklenburg. “I think this is going to be the poster child of what not to do,” he said.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“U.S. Voting System So ‘Clunky’ It Is Insulated From Hacking, FBI Director Says”<http://electionlawblog.org/?p=86363>
Posted on September 8, 2016 7:58 pm<http://electionlawblog.org/?p=86363> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<http://www.wsj.com/articles/u-s-voting-system-so-clunky-it-is-insulated-from-hacking-fbi-director-says-1473368396>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Minnesota Democrats Seek to Remove Trump’s Name from Ballot<http://electionlawblog.org/?p=86361>
Posted on September 8, 2016 7:46 pm<http://electionlawblog.org/?p=86361> by Rick Hasen<http://electionlawblog.org/?author=3>

Filing in state supreme court.<https://twitter.com/mbrodkorb/status/774068356483649538>

UPDATE:  I should add my opinion, though it will be obvious to regular readers. Of course<https://t.co/QbmhMDRXuZ>Minnesota voters should have a real choice between Trump and Clinton on the ballot, and Trump should not be kicked off because of the procedures followed by the state Republican Party.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, campaigns<http://electionlawblog.org/?cat=59>

Three Judge Court Dismisses Maryland Legislative Gerrymander Case on Procedural Grounds<http://electionlawblog.org/?p=86358>
Posted on September 8, 2016 7:37 pm<http://electionlawblog.org/?p=86358> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the unanimous opinion, finding that the plaintiff, representing himself was precluded from suing on a gerrymander because he brought an earlier suit before the election, here.<http://electionlawblog.org/wp-content/uploads/Bouchat.pdf>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Important Ballot Access Case from 1980 Ordering GA to Put John Anderson on the Ballot Now Available<http://electionlawblog.org/?p=86356>
Posted on September 8, 2016 7:30 pm<http://electionlawblog.org/?p=86356> by Rick Hasen<http://electionlawblog.org/?author=3>

The case is Anderson v Poythress, an unreported 14-page US District Court decision in 1980 that put John Anderson on the ballot on due process grounds.

Richard Winger of Ballot Access News<http://ballot-access.org/> tracked down a copy which I have posted here<https://www.scribd.com/document/323408399/AndersonvvPoythress>. It is not in Westlaw or any other database.

Richard reports that “the Fifth Circuit in 1981 did not reverse this decision; it just said the case is moot.  The Fifth Circuit opinion isn’t reported either, except for a table citation which says ‘vacated and remanded”‘ which is somewhat misleading.”
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Posted in ballot access<http://electionlawblog.org/?cat=46>

Read OH Opposition to Dem’s “Golden Week” Emergency SCOTUS Motion<http://electionlawblog.org/?p=86354>
Posted on September 8, 2016 5:41 pm<http://electionlawblog.org/?p=86354> by Rick Hasen<http://electionlawblog.org/?author=3>

It’s here.<https://t.co/DgMz00i7dd>

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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>

“Loretta Sanchez listed as guest at ‘informational luncheon’ for her Super PAC”<http://electionlawblog.org/?p=86352>
Posted on September 8, 2016 5:31 pm<http://electionlawblog.org/?p=86352> by Rick Hasen<http://electionlawblog.org/?author=3>

SacBee reports.<http://www.sacbee.com/news/politics-government/capitol-alert/article100248277.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump bragged that his money bought off politicians. Just not this time.”<http://electionlawblog.org/?p=86350>
Posted on September 8, 2016 5:29 pm<http://electionlawblog.org/?p=86350> by Rick Hasen<http://electionlawblog.org/?author=3>

Missed this WaPo piece <https://www.washingtonpost.com/politics/trump-bragged-that-his-money-bought-off-politicians-just-not-this-time/2016/09/07/00a9d1e4-750b-11e6-be4f-3f42f2e5a49e_story.html> yesterday on Trump-Bondi.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Appeals court sympathetic to challenge over voter rules” (Kobach, EAC Case)<http://electionlawblog.org/?p=86348>
Posted on September 8, 2016 5:23 pm<http://electionlawblog.org/?p=86348> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://www.pbs.org/newshour/rundown/appeals-court-challenge-voter-rules/>

A federal appeals court on Thursday seemed likely to side with voting rights groups<http://www.pbs.org/newshour/rundown/matters-voting-rights/>seeking to block Kansas, Georgia and Alabama from requiring residents to prove they are U.S. citizens when registering to vote using a national form.

Judges hearing arguments in the case considered whether to overturn a decision by a U.S. election official who changed the form’s proof-of-citizenship requirements at the behest of the three states, without public notice.

You can listen to the argument before the D.C. Circuit here<https://www.cadc.uscourts.gov/recordings/recordings.nsf/>.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, The Voting Wars<http://electionlawblog.org/?cat=60>

Trump’s Wink-Wink on Vote Rigging<http://electionlawblog.org/?p=86346>
Posted on September 8, 2016 5:20 pm<http://electionlawblog.org/?p=86346> by Rick Hasen<http://electionlawblog.org/?author=3>

“Larry<https://twitter.com/SopanDeb/status/774037839319138305>…you know exactly what I’m talking about.”

Yeah we do.<http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html>
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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>

Fred Wertheimer, Jan Baran Talk Campaign Finance After Scalia at SCOTUSBlog Symposium<http://electionlawblog.org/?p=86344>
Posted on September 8, 2016 5:13 pm<http://electionlawblog.org/?p=86344> by Rick Hasen<http://electionlawblog.org/?author=3>

Wertheimer<http://www.scotusblog.com/2016/09/the-court-after-scalia-a-new-liberal-justice-means-a-new-campaign-finance-jurisprudence/>

Baran<http://www.scotusblog.com/2016/09/the-court-after-scalia-campaign-finance-law-wonderland/#more-246262>

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

“Prosecutors will drop cases against former Va. governor Robert McDonnell, wife”<http://electionlawblog.org/?p=86342>
Posted on September 8, 2016 5:06 pm<http://electionlawblog.org/?p=86342> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/public-safety/prosecutors-will-drop-case-against-former-va-gov-robert-mcdonnell/2016/09/08/a19dc50a-6878-11e6-ba32-5a4bf5aad4fa_story.html?hpid=hp_hp-banner-low_mcdonnell-230pm%3Ahomepage%2Fstory>

Federal prosecutors will not attempt to retry former Virginia governor Robert F. McDonnell and his wife, Maureen, on corruption charges, ending a years-long saga that rocked the commonwealth’s political class and cut short the rise of a Republican Party star.

The conclusion came unceremoniously, as prosecutors filed one-paragraph documents telling a federal appeals court they would move to dismiss the indictments. It means that the McDonnells — who have always maintained they did nothing illegal — will avoid criminal convictions and prison time.

But the images produced at their trial — the troubled marriage, the lavish vacations, a Ferrari ride, the Rolex watch — can hardly be undone. And the case left in its wake a new legal definition of what constitutes public corruption, based on the Supreme Court’s ruling tossing the former governor’s convictions.
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Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>, Supreme Court<http://electionlawblog.org/?cat=29>

“Big Banks Don’t Follow Goldman on Trump Donation Ban”<http://electionlawblog.org/?p=86340>
Posted on September 8, 2016 2:28 pm<http://electionlawblog.org/?p=86340> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ:<http://www.wsj.com/articles/big-banks-dont-follow-goldman-on-trump-donation-ban-1473361581>

Goldman Sachs Group Inc. has taken a hard line on contributions by its partners to Donald Trump’s campaign for fear of running afoul of municipal bond and pension rules. Its Wall Street peers aren’t following suit.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

Justice Kagan Reflects on Giving Her First Oral Argument Ever, In Citizens United<http://electionlawblog.org/?p=86338>
Posted on September 8, 2016 8:35 am<http://electionlawblog.org/?p=86338> by Rick Hasen<http://electionlawblog.org/?author=3>

Watch,<https://www.c-span.org/video/?414445-1/justice-elena-kagan-supreme-court-constitutional-law> beginning at the 1:06 mark. Funny and interesting.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Some election mailers still say voters will need ID at polls”<http://electionlawblog.org/?p=86336>
Posted on September 8, 2016 7:54 am<http://electionlawblog.org/?p=86336> by Rick Hasen<http://electionlawblog.org/?author=3>

It’s got to be an innocent mistake<http://www.wral.com/some-election-mailers-still-say-voters-will-need-id-at-polls/15995657/?platform=hootsuite>, right?
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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>

--
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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