[EL] ELB News and Commentary 9/10/16

Fri Sep 9 21:10:58 PDT 2016

“North Carolina Elections Board Settles Fight Over Voting Guidelines”<http://electionlawblog.org/?p=86411>
Posted on September 9, 2016 9:00 pm<http://electionlawblog.org/?p=86411> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Wines<http://www.nytimes.com/2016/09/10/us/north-carolina-elections-voting-guidelines.html?ref=politics&_r=0> for the NYT:

North Carolina’s state elections board settled a deeply partisan battle over this fall’s election rules on Thursday, largely rejecting a Republican-led effort to write local voting guidelines that would limit Democratic turnout in a political battleground state.

The board’s decisions could influence the course of voting in a state where races for governor and United States senator are close, and where the two major presidential candidates are said to be dead even.

After meeting for more than 11 hours, the Republican-controlled board imposed new election plans that expanded voting hours or added polling places — or sometimes both — in 33 of the state’s 100 counties. In the vast bulk of the counties, the sole Democratic member on the three-person election board was contesting voting rules that the Republican majority had approved.

The expansion of sites and hours was not uniform. In seven counties, the board approved on party-line votes more restrictive voting plans that local Republicans had devised over Democratic objections.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Judge orders campaign-finance question put on Miami-Dade ballot”<http://electionlawblog.org/?p=86409>
Posted on September 9, 2016 8:54 pm<http://electionlawblog.org/?p=86409> by Rick Hasen<http://electionlawblog.org/?author=3>

Miami Herald:<http://www.miamiherald.com/news/local/community/miami-dade/article100895752.html>

A judge Friday ordered that Miami-Dade voters get a chance to decide on new rules for campaign donations, reversing a decision by county commissioners to keep the measure off the November ballot because of alleged legal flaws.

Circuit Court Judge William Thomas ruled the union-backed group behind the proposal to ban county contractors and their lobbyists from donating to county candidates followed all the required steps to secure a ballot slot.

County lawyers promptly appealed Thomas’ decision, setting up a showdown next week before the Third District Court of Appeal in western Miami-Dade.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, direct democracy<http://electionlawblog.org/?cat=62>

“Time is short in fight over Trump MN ballot status”<http://electionlawblog.org/?p=86407>
Posted on September 9, 2016 8:51 pm<http://electionlawblog.org/?p=86407> by Rick Hasen<http://electionlawblog.org/?author=3>

MPR News reports.<http://blogs.mprnews.org/capitol-view/2016/09/time-is-short-in-fight-over-trump-ballot-status/>

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Posted in ballot access<http://electionlawblog.org/?cat=46>, election administration<http://electionlawblog.org/?cat=18>

“Why red state voting laws keep getting struck down”<http://electionlawblog.org/?p=86405>
Posted on September 9, 2016 8:50 pm<http://electionlawblog.org/?p=86405> by Rick Hasen<http://electionlawblog.org/?author=3>

The CS Monitor reports.<http://www.csmonitor.com/USA/Justice/2016/0909/Why-red-state-voting-laws-keep-getting-struck-down>

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

Commissioner Weintraub Proposal Concerning Foreign Money on FEC Agenda<http://electionlawblog.org/?p=86403>
Posted on September 9, 2016 8:46 pm<http://electionlawblog.org/?p=86403> by Rick Hasen<http://electionlawblog.org/?author=3>

Read the memo<https://t.co/O9uFHdliDe> about a proposed rulemaking:

This proposal is narrowly drawn to examine just the role of foreign political spending in U.S. elections post-Citizens United, a topic for which I hope there is greater agreement among Commissioners. No member of the Federal Election Commission should be willing to tolerate the risk of foreign nationals interceding in American elections.

In my New York Times op-ed, I underscored the need for this rulemaking, as without a clarifying rule, arguably the only standard consistent with the flat statutory ban on direct and indirect foreign-national political spending in U.S. elections is a zero-tolerance standard for political spending by corporations with foreign owners. I proposed alternatively that we require corporations to verify that the share of their foreign ownership is less than 20 percent (or some other threshold that a rulemaking process would help us identify).
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“What Happens When Elections Take A Rain Check?”<http://electionlawblog.org/?p=86401>
Posted on September 9, 2016 8:39 pm<http://electionlawblog.org/?p=86401> by Rick Hasen<http://electionlawblog.org/?author=3>

WFSU<http://news.wfsu.org/post/what-happens-when-elections-take-rain-check> on elections and hurricanes.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Democrats Settle Election Dispute with the State of Arizona”<http://electionlawblog.org/?p=86399>
Posted on September 9, 2016 8:32 pm<http://electionlawblog.org/?p=86399> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:

The Democratic National Committee, the Democratic Senatorial Campaign Committee, Ann Kirkpatrick for Arizona, the Arizona Democratic Party, Hillary for America, and Sanders, Inc., announced that they reached a settlement in their joint lawsuit against Maricopa County, Arizona that will make it easier for residents to vote.

Maricopa County miscalculated voter turnout and underestimated the number of vote centers needed to accommodate voters during the March presidential primaries. In the federal lawsuit, Democrats proffered a line expert explaining why Maricopa County’s allocation formulas were wrong, and offered a number of remedies. In response to the Democrats’ motion for an injunction, Maricopa County represented to the Court that it would be implementing many of those suggestions. In addition, as part of the settlement agreement, Maricopa County agreed to consider further recommendations from line experts to better ensure that voters will not again be subject to unacceptably long lines as a result of unsupported allocation decisions.

Marc Elias:<https://twitter.com/marceelias/status/774419404507328512> “Great result for the voters of Maricopa. The remaining claims remain against the state.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Breaking: DC Circuit Reverses in Kobach-EAC Proof of Citizenship Voting Case<http://electionlawblog.org/?p=86390>
Posted on September 9, 2016 5:16 pm<http://electionlawblog.org/?p=86390> by Rick Hasen<http://electionlawblog.org/?author=3>

Acting very quickly after oral argument, the United States Court of Appeals for the DC Circuit has issued this o<http://electionlawblog.org/wp-content/uploads/LWV-v.-Newby-DC-Cir.-Order-Sept.-9.pdf>rder preliminarily enjoining changing the federal form to allow Kansas, Alabama, and Georgia to require documentary proof of citizenship if registering to vote using a federal voter registration form.

The vote was 2-1, with senior Judge Randolph dissenting.

The ruling is only on the request for a preliminary injunction. There can still be a full hearing on the merits.

The upshot is that for this election, the federal form cannot include a state request for proof of citizenship documentation before voting. That is good news for voters, because it will be easier to register and vote in these states. And it won’t harm voters or the state, because the amount of non-citizen voting is quite small.

Of course, Kobach may try to go to the Supreme Court to reverse this for this election, and he well might, but good luck trying to find a fifth vote<http://electionlawblog.org/?p=86371>. This shows that once again, with an 8-Justice deadlocked SCOTUS, the federal courts of appeal are in charge. (There is also litigation in the 10th Circuit and in Kansas state court over related issues, both of which could be resolved within weeks.)

Here’s the unusual basis for the lawsuit, according to a release from the plaintiffs:

In 2013, the Supreme Court ruled that Arizona could not require documentary proof of citizenship on the federal registration form without EAC approval. Kansas implemented a law similar to Arizona’s the same year, and both states put proof of citizenship requirements into effect for voters using their state forms. Subsequently, the EAC and a federal court ruled it invalid for the federal form. Alabama and Georgia, which passed similar provisions in 2011 and 2009, respectively, had not implemented their laws. Research shows 7 percent of voters<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91800&qid=7957011> do not have documentary proof of citizenship, and tens of thousands of Kansans<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91801&qid=7957011> have been blocked from registering to vote in the state.

On January 29, 2016, Newby sent letters to the secretaries of state of Alabama, Georgia, and Kansas stating, without further explanation, that he would allow the three states to require citizenship documents for applicants using the federal registration form. If the documents, such as birth certificates or passports, are not provided, Americans will be denied the fundamental right to vote. The federal form is designed to guarantee a “simple means of registering to vote<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91802&qid=7957011>,” and already requires applicants to swear that they are U.S. citizens under penalty of perjury.

The executive director did not have authority to allow the three states to enforce documentary proof of citizenship requirements on the federal form, and doing so violated both EAC policy and federal law, according to a complaint submitted today by the Brennan Center for Justice at NYU School of Law<http://www.brennancenter.org/sites/all/modules/civicrm/extern/url.php?u=91803&qid=7957011> with pro bono counsel at Stroock & Stroock & Lavan LLP; the Lawyers’ Committee for Civil Rights Under Law and the American Civil Liberties Union with pro bono counsel Steptoe & Johnson LLP; and Project Vote with pro bono counsel Arnold & Porter LLP.

Documentary proof of citizenship requirements undermine the groups’ efforts to increase civic participation and make it more difficult for individuals to vote, according to the court filing.

And the case was super-unusual as litigated, because the federal government did not back the EAC, and Kris Kobach (the Kansas SOS behind these shenanigans) argued the case in court. See this Josh Gerstein <http://www.politico.com/blogs/under-the-radar/2016/02/feds-back-court-ban-on-proof-of-citizenship-for-voter-registration-219618> report.

[This post has been updated.]

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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>

“Third-Party Candidates Don’t Have to Be Spoiler”<http://electionlawblog.org/?p=86388>
Posted on September 9, 2016 12:30 pm<http://electionlawblog.org/?p=86388> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<http://www.wsj.com/articles/third-party-candidates-dont-have-to-be-spoilers-1473436855>

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

“Despite North Carolina Vote Changes, Groups May Go to Court”<http://electionlawblog.org/?p=86386>
Posted on September 9, 2016 12:29 pm<http://electionlawblog.org/?p=86386> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports.<http://abcnews.go.com/Politics/wireStory/ruling-north-carolina-board-careful-vote-41968963>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Democracy NC: State Board meeting an ‘overall victory’ for North Carolina voters”<http://electionlawblog.org/?p=86384>
Posted on September 9, 2016 11:39 am<http://electionlawblog.org/?p=86384> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://nc-democracy.org/democracy-nc-state-board-meeting-an-overall-victory-for-north-carolina-voters/>

Yesterday, in a 12-hour marathon meeting, the N.C. State Board of Elections resolved the contested Early Voting plans from 33 of the state’s 100 counties. In 26 bipartisan votes, the three Republicans and two Democrats on the board chose plans that added more hours or voting sites, or both; but in seven party-line votes, they approved the weakest option before them.

Democracy North Carolina, the state’s largest voting-rights organization, called the meeting an “overall victory” and lauded the actions of the State Board, its staff, and the local leaders who fought for strong Early Voting plans.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Seventh Circuit Removes Independent U.S. House Candidate David Gill from Illinois Ballot”<http://electionlawblog.org/?p=86382>
Posted on September 9, 2016 11:22 am<http://electionlawblog.org/?p=86382> by Rick Hasen<http://electionlawblog.org/?author=3>

BAN:<http://ballot-access.org/2016/09/09/seventh-circuit-removes-independent-u-s-house-candidate-david-gill-from-november-ballot/>

On September 9, three judges of the Seventh Circuit granted a stay<http://ballot-access.org/wp-content/uploads/2016/09/seventh-circuit-gill-stay.pdf> of the U.S. District Court order in Gill v Scholz. This means that Dr. David Gill, independent candidate for U.S. House, 13th district of Illinois, is now off the ballot. The U.S. District Court had put him on, on the basis that a petition of 5% of the last vote, combined with only 90 days to collect the signatures, is probably unconstitutional.

The three judges of the Seventh Circuit who took this action are Richard Posner, a Reagan appointee; David F. Hamilton, an Obama appointee; and William J. Bauer, a Ford appointee. Judge Bauer is not a full-time judge and will turn age 90 next week.

The 7th Circuit offered no reasoning for removing the candidate from the ballot. This too could end up before SCOTUS on an emergency basis.
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Posted in ballot access<http://electionlawblog.org/?cat=46>

More Shenanigans from Texas in Voter ID Case: Threats to Investigate Voters Who Sign Affidavits<http://electionlawblog.org/?p=86380>
Posted on September 9, 2016 11:16 am<http://electionlawblog.org/?p=86380> by Rick Hasen<http://electionlawblog.org/?author=3>

From a newly filed motion<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey-PrivatePlaintiffsMotionToEnforce090716.pdf> from the private plaintiffs, apart from the DOJ filing<http://electionlawblog.org/?p=86291>, and now to be heard at a Sept. 19 hearing<https://pbs.twimg.com/media/Cr7GXrbUkAEWxy7.jpg>:

Private Plaintiffs’1 Motion for Further Relief to Enforce Interim Remedial Order is triggered by a series of statements attributed to Texas officials stating or insinuating that they will conduct criminal investigations of “everyone” who executes the Declaration of Reasonable Impediment, which this Court ordered as part of its interim relief. Those statements are contrar yto the terms of this Court’s Interim Remedial Order, and are intimidating to the very persons that the Order is intended to protect.

On August 26, in a news article appearing in Houston Press, Harris County Clerk Stan Stanart was directly quoted or paraphrased as follows:

Stanart says he will investigate everyone who signs that form to assure they are not lying. Whether anything happens, that’s up to the [Harris County District Attorney’s Office]. But after the votes are counted and the election ends, Stanart said his office will be checking to see whether a person who signed the sworn statement has a Texas Department of Public Safety-issued ID through the DPS database.” Meagan Flynn, Harris County Clerk Will Vet Voters Who Claim to Lack Photo ID, HOUSTON PRESS, Aug. 26, 2016 (attached hereto as Exhibit A) (emphasis added).3 On August 30,

Private Plaintiffs wrote to the State, asking the State to confirm (1) whether Stanart made these remarks, and, (2) irrespective of whether he did, take action to cure the damaging effects of the publication of such statements. Letter from Counsel for the Private Plaintiffs to Angela Colmenero and Matthew Frederick (Aug. 30, 2016) (attached hereto as Exhibit C). Private Plaintiffs expressed concern that these statements will intimidate voters and chill participation in the November election by dissuading voters—who may no longer have once-issued SB 14 ID, or may have forgotten that they have SB 14 ID—from participating in the election or, worse yet, subjecting them to potential prosecution if they execute a Declaration of Reasonable Impediment in good faith. Despite Private Plaintiffs’ attempt to meet-and-confer before presenting this important matter to the Court, Defendants have indicated that they plan to do nothing about and, in effect, condone these remarks. Indeed, Defendants responded to Private Plaintiffs on September 2, stating that Mr. Stanart’s “statements provide no reason to believe that the Harris County clerk ‘will engage in a wholesale investigation of every voter who signs a Reasonable Impediment [Declaration].’” Letter from Angela Colmenero to Ezra Rosenberg (Sept. 2, 2016), at 2 (quoting Private Plaintiffs’ August 30 letter) (attached hereto as Exhibit D). Private Plaintiffs do not understand why the Harris County Clerk’s quoted statement that he will investigate “everyone who signs that form” provides “no reason” to believe he will do just that.

Moreover, Defendants flatly refused to inquire whether Mr. Stanart made these remarks, and took the troubling position that they have no responsibility for the actions of Texas county and local election officials, including Mr. Stanart—the chief election officer of the largest county in the state, with more than 2 million voters—even when they are implementing this Court’s Interim Remedial Order: “Mr. Stanart is the Harris County Clerk; he is not an employee or agent of any of the named State Defendants in this case. The State Defendants do not have any control over Mr. Stanart or his dealings with the press.” Id. at 3. Finally, Defendants’ September 2 response indicated that they find no problem with Mr. Stanart’s quoted statements and asserted that they have no responsibility to cure any adverse effects of the publicity given to those statements. Id. Defendants’ position—disclaiming the clear intimidating effect of Mr. Stanart’s remarks and any responsibility for the statements or actions of election officials implementing the Court’s order—is a serious confirmation that this Court’s Interim Remedial Order and, indeed, any meaningful remedy resulting from the decision of the Court of Appeals, are at risk in this upcoming election. This is increasingly clear from Defendants’ refusal to correct their own misrepresentations in state-produced materials, even after Plaintiffs have brought those misrepresentations to their attention. See Motion to Enforce Interim Remedial Order by the United States (Doc. 924) (documenting Plaintiffs’ efforts since August 12 to show Defendants that, per the interim remedy order, the standard for signing a Declaration of Reasonable Impediment is if a voter does not possess and cannot reasonably obtain a SB 14 ID). Common sense dictates that, under even normal circumstances, statements by an official that authorities will “investigate everyone” who executes a Declaration of Reasonable Impediment, and threatens to refer them to the District Attorney is self-evidently intimidating. But these are not normal circumstances. The Interim Remedial Order was issued for the express purpose of protecting voters who are the victims of the discriminatory effect of SB 14, who are largely poor and Black and Hispanic Texans. Indeed, it was expressly designed to facilitate their ability to vote, not scare them from coming to the polls. But, as stated in the affidavits of those whose mission is to get out the vote, the publicized statements of Attorney General Paxton and Mr. Stanart are having the opposite effect
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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>

“Pillar of Law Institute Challenges ‘Ballot Selfie’ Ban in Michigan”<http://electionlawblog.org/?p=86378>
Posted on September 9, 2016 9:25 am<http://electionlawblog.org/?p=86378> by Rick Hasen<http://electionlawblog.org/?author=3>

Release.<https://www.pillaroflaw.org/index.php/blog/entry/pillar-of-law-institute-files-ballot-selfie-lawsuit-in-michigan>

Boo!<http://blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is-a-threat-to-democracy/>

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

“Trump charity gave $100,000 to David Bossie’s Citizens United that helped fund lawsuit against mogul’s foe”<http://electionlawblog.org/?p=86376>
Posted on September 9, 2016 9:24 am<http://electionlawblog.org/?p=86376> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Isikioff:<https://www.yahoo.com/news/trump-charity-gave-100000-to-david-bossies-citizens-united-that-helped-fund-lawsuit-against-moguls-foe-151337835.html?soc_src=mail&soc_trk=ma>

Donald Trump’s charitable foundation gave $100,000 in 2014 to a conservative activist group that was used to help finance a federal lawsuit against New York state Attorney General Eric Schneiderman — the same public official who was suing the real estate mogul for fraud over the operations of Trump University.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Mass. conservative group drops mailers following change in disclosure law”<http://electionlawblog.org/?p=86373>
Posted on September 9, 2016 7:47 am<http://electionlawblog.org/?p=86373> by Rick Hasen<http://electionlawblog.org/?author=3>

Lowell Sun<http://www.lowellsun.com/breakingnews/ci_30341359/mass-conservative-group-drops-mailers-following-change-disclosure> reports.

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

Supreme Court, With Justices Thomas and Alito Dissenting, Refuses Michigan Voting Stay; Three Ideological Camps at SCOTUS<http://electionlawblog.org/?p=86371>
Posted on September 9, 2016 7:19 am<http://electionlawblog.org/?p=86371> by Rick Hasen<http://electionlawblog.org/?author=3>

After an unexplained delay<http://electionlawblog.org/?p=86369> in ruling last night, the Supreme Court without comment<https://twitter.com/chrisgeidner/status/774244060865368065> has turned down Michigan’s request to overturn a stay blocking the state’s elimination of straight ticket voting. Justices Thomas and Alito would have granted the stay.

This to me reflects less a ruling on the merits than the fundamental weakness<http://electionlawblog.org/?p=86158> in how Michigan has litigated its case so far. It could well win after a full trial and a chance to develop its evidence (that is, it may not be that the elimination of straight ticket voting actually violates Section 2 of the Voting Rights Act).

As is typical with the Court’s shadow docket<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130> (especially in election cases<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>), the Court gave no explanation for its ruling, and Justices Thomas and Alito did not explain the reason for their dissent. So why the delay and no decision last night? It could well have been that at least four Justices had indicated they would not grant the stay, but more Justices were waiting to weigh in. Since they were not granting the stay anyway, waiting a little longer did not change the outcome.

More interesting is the noted dissent of Justices Alito and Thomas. That these two very conservative Justices would side with Michigan, even given the weak procedural case, is not surprising<http://electionlawblog.org/?p=86369>. But the fact that their dissents are publicly noted is a bit surprising. The Justices do not always publicly reveal their votes in ruling on these types of motions. My sense is that Justices Alito and Thomas have become more assertive in expressing their views since the February death of Justice Scalia.  On the left, we are more likely to see such noted dissents coming from Justices Sotomayor and Ginsburg.

So it is fair to view our current 8-Justice Supreme Court as falling into three camps. Two on the left (SS and RBG), two on the right (SA and CT), and four Justices in the middle: Breyer, Kagan, Kennedy, and Roberts, whose votes could be up for grabs in a compelling enough case.

And this is the answer to the question of how do you write a brief<http://electionlawblog.org/?p=86119> to get 5 votes on an evenly divided ideological Supreme Court: you aim for the four in the middle and expect one of the tails to come along.

Let’s watch what happens in the upcoming Ohio case. I expect it will lose, perhaps on a 6-2 vote,<http://electionlawblog.org/?p=86121>with Justices Sotomayor and Ginsburg dissenting.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D86371&title=Supreme%20Court%2C%20With%20Justices%20Thomas%20and%20Alito%20Dissenting%2C%20Refuses%20Michigan%20Voting%20Stay%3B%20Three%20Ideological%20Camps%20at%20SCOTUS&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
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