[EL] ELB News and Commentary 4/10/17

[Rick Hasen]

"In the future, John Roberts could be the Supreme Court's swing vote"<http://electionlawblog.org/?p=92036>
Posted on April 10, 2017 7:33 am<http://electionlawblog.org/?p=92036> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped<http://www.latimes.com/opinion/op-ed/la-oe-hasen-roberts-swing-vote-20170410-story.html> for the LA Times. It begins:

Even before the Senate confirmed Neil Gorsuch as a justice of the Supreme Court, and before it "nuked" the filibuster for nominees, the Trump administration and conservatives were already plotting<http://electionlawblog.org/?p=91991> to fill the next vacancy. Indeed, they have made overtures<http://www.politico.com/story/2017/04/donald-trump-supreme-court-236925> to swing Justice Anthony M. Kennedy to get him to feel comfortable with retirement. If Kennedy goes, or if a liberal justice gets sick or dies, Democrats have few levers to stop Republicans from confirming a nominee even more conservative than Gorsuch. The future, then, holds a Supreme Court where Chief Justice John G. Roberts Jr. is the swing vote - a scary eventuality for progressives....

Sad as it may be, liberals may have no choice but to put faith in Roberts as a political actor. With Justices Samuel A. Alito Jr., Clarence Thomas, Gorsuch and another hard conservative to his right, Roberts could calculate that overturning Roe vs. Wade - and turning the abortion question over to the states - would actually be disastrous for the Republican Party. Suddenly every state election would become a battle over abortion, and many apathetic liberals could turn into motivated ones. Granted, Roberts would almost certainly not fight to save Roe - but he might vote to kill it with 1,000 cuts rather than overturn it outright.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"Iowa Secretary Of State's Office Released Statistics That Its Own Staff Objected To"<http://electionlawblog.org/?p=92034>
Posted on April 10, 2017 7:30 am<http://electionlawblog.org/?p=92034> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPo:<http://www.huffingtonpost.com/entry/iowa-voter-id-fraud_us_58e909e1e4b05413bfe365dd?platform=hootsuite>

In an effort to highlight voter irregularities and push for stricter voting laws, Iowa's top election official pushed statistics on alleged voter fraud that even a member of his own staff privately suggested were misleading, emails obtained by the Huffington Post reveal.

This past January, Iowa's Secretary of State Paul Pate (R) introduced a bill<http://www.huffingtonpost.com/entry/iowa-voter-id_us_586ebcabe4b099cdb0fc552b> that required those who wanted to cast a ballot to show official identification, eliminated straight party voting, and established post election audits of the vote.

This effort was part of a nationwide push by Republicans to enforce voter ID laws, even though voter fraud is virtually nonexistent<https://www.brennancenter.org/analysis/debunking-voter-fraud-myth>. And to sell the measure, his office did what other Republicans have as well: it argued that while there's been no evidence of voter fraud in Iowa, elections are insecure and could potentially be cheated<https://www.nytimes.com/2017/03/23/us/election-fraud-voter-ids.html?rref=collection%2Fbyline%2Fmichael-wines&action=click&contentCollection=undefined&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=collection>.

To substantiate his argument, Pate's office drafted a statement for a reporter from the local Gazette newspaper, noting that in Iowa it appeared 41 felons had cast ballots and that more than 200 election day voter registrations, or EDRs, had bounced back. The draft statement included the caveats that the irregularities "do not necessarily constitute fraud" and that the state would have a more complete picture of election data come March. Pate urged his staff to release it.

"We need to release info and these stats are public already. When an auditor turns them over to the county attorney or sheriff for action that pretty much makes it public. Am I missing something?," he wrote in an email.

But releasing the statistics drew an objection from Carol Olson, Pate's deputy secretary of state for elections, who suggested they were misleading.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


"Neil Gorsuch's confirmation shattered political conventions. Here is why."<http://electionlawblog.org/?p=92032>
Posted on April 10, 2017 7:27 am<http://electionlawblog.org/?p=92032> by Rick Hasen<http://electionlawblog.org/?author=3>

Important Rick Pildes<https://www.washingtonpost.com/news/monkey-cage/wp/2017/04/10/neil-gorsuchs-confirmation-shattered-political-conventions-here-is-why/?utm_term=.55f70255168e> at WaPo's The Monkey Cage:

The Supreme Court confirmation wars will become less heated only if the stakes in individual appointments diminish. One way to bring that about would be a constitutional amendment limiting Supreme Court terms to 18 years, staggered so that vacancies would occur at regular two-year intervals. Academic authorities on the Court and others<http://www.washingtonpost.com/wp-dyn/content/article/2005/08/05/AR2005080501999_pf.html> have been floating versions of such proposals<http://www.vox.com/2016/2/13/10987256/supreme-court-term-limits> for years, but they have gotten little political traction. Absent change of this sort, the confirmation wars are likely to grow hotter.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"GOP is trying to shape elections by reshaping North Carolina's election boards"<http://electionlawblog.org/?p=92030>
Posted on April 9, 2017 7:57 pm<http://electionlawblog.org/?p=92030> by Rick Hasen<http://electionlawblog.org/?author=3>

News Observer editorial:<http://www.newsobserver.com/opinion/editorials/article143624584.html>
 A three-judge panel issued a clear ruling last month that Republican shenanigans trying to change the makeup of local elections boards and the structure of the state Board of Elections and the state ethics board were illegal and unconstitutional. The reason was simple enough: Authority to appoint local elections boards - with three members of the governor's party and two of the other party, and the separate State Elections Board and the ethics panel fall under the authority of the executive branch.

Despite being repudiated by judges, Republicans in the state House are continuing to monkey with the elections board setup to weaken the governor's authority, so they're again wasting the public's time and money with a new bill to allow the governor to appoint all eight members of a new elections and ethics board - but membership would be evenly divided between Republicans and Democrats. The governor would name four members, and four names would be submitted from lists provided by the state's largest political parties.

County elections boards would go from three to four members, evenly split between the parties, and county boards would pick their own chairmen or chairwomen, although Republicans would be chairs in even-numbered election years - in other words, the most important election years.
 The bill in the House as drawn by Republicans was hastily done and Democrats rightly complained they didn't get much of a look at it until the last minute.

The substance of the bill is just wrong, and the haste with which Republicans leaders wanted to move it makes it all the more suspect.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


"A Polarized Supreme Court, Growing More So"<http://electionlawblog.org/?p=92028>
Posted on April 9, 2017 4:35 pm<http://electionlawblog.org/?p=92028> by Rick Hasen<http://electionlawblog.org/?author=3>

Adam Liptak<https://www.nytimes.com/2017/04/09/us/politics/gorsuch-supreme-court.html?ref=politics&_r=0> in the NYT:

In losing the 2016 presidential election, Democrats may have given up the chance to change the balance of power on the Supreme Court for a generation. Judge Gorsuch is 49. If he serves as long as Justice Stevens, the last member of the court to retire, he will still be hearing cases in 2052. He would be 84, as old as Justice Ruth Bader Ginsburg is now.

Actuarial realities suggest that President Trump will have additional chances to move the court to the right. The court's three oldest members are Justice Anthony M. Kennedy, 80, a moderate conservative who holds the decisive vote in many closely divided cases, and the court's two senior liberals, Justice Stephen G. Breyer, 78, and Justice Ginsburg.

Were Mr. Trump to replace any of the three, a court that generally leans right would have a rock-solid conservative majority.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"Republican Governors Keep Vetoing Legislation That Would Make Voting Easier"<http://electionlawblog.org/?p=92026>
Posted on April 9, 2017 12:14 pm<http://electionlawblog.org/?p=92026> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumental for HuffPo:<http://www.huffingtonpost.com/entry/republicans-automatic-voter-registration_us_58e3b8e6e4b03a26a3665ec8>

On March 21, Nevada Gov. Brian Sandoval (R) vetoed legislation<https://thenevadaindependent.com/article/sandoval-vetoes-motor-voter-petition-sending-2018-ballot> that would have automatically registered eligible voters when they sought services from the Department of Motor Vehicles. The veto made Sandoval the third Republican<http://www.huffingtonpost.com/topic/republican-party> governor to sink automatic voter registration legislation ― and all three of them have seats that will be up for grabs in the next two years.

New Jersey Gov. Chris Christie (R) vetoed similar legislation twice ― once in 2015 and again in 2016. Illinois Gov. Bruce Rauner (R) also vetoed legislation in 2016. Christie, the most unpopular governor in the country<http://time.com/4592420/chris-christie-approval-rating/>, is term-limited and will not be on the ballot again this year. Sandoval will be term-limited out of office in 2018, while Rauner is up for re-election next year.

It's not surprising that Republican governors in those states lack enthusiasm for automatic voter registration, which tends to benefit Democratic candidates. Hillary Clinton<http://www.huffingtonpost.com/topic/hillary-clinton> won all three of those states in the 2016 election<http://www.huffingtonpost.com/news/elections-2016/>, and Democrats<http://www.huffingtonpost.com/topic/democratic-party> see them as top targets for next year's midterms. New Jersey will vote for a new governor this November, and Democratic candidate Phil Murphy, a Goldman Sachs banker who has endorsed automatic registration, is currently leading the polls.

The issue is also a priority for Democrats in states where they are looking to consolidate power in 2018. Thirty-eight Republican governorships are up for election next year, including six in states Clinton won last fall. Democrats hope that President Donald Trump<http://www.huffingtonpost.com/topic/donald-trump>'s poll numbers will remain low and help drag down the party's candidates. In states like Washington, Democrats just need to win a small number of seats to get full control of the state legislature. While automatic voter registration may not be at the top of voters' minds, Democrats will almost surely advance the issue anywhere they claim a governor's house and legislature next year.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


"A voting law meant to increase minority representation has generated many more lawsuits than seats for people of color"<http://electionlawblog.org/?p=92024>
Posted on April 9, 2017 12:11 pm<http://electionlawblog.org/?p=92024> by Rick Hasen<http://electionlawblog.org/?author=3>

Important LA Times piece<http://www.latimes.com/politics/la-pol-ca-voting-rights-minorities-california-20170409-story.html> on the effect of the CA Voting Rights Act.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


AL: "Rebekah Mason suggested closure of DMV offices in majority black counties, report shows"<http://electionlawblog.org/?p=92022>
Posted on April 8, 2017 9:28 am<http://electionlawblog.org/?p=92022> by Rick Hasen<http://electionlawblog.org/?author=3>

Wow:<http://www.al.com/news/mobile/index.ssf/2017/04/rebekah_mason_suggested_closur.html>

Governor Robert Bentley's former top advisor and secret paramour Rebekah Mason led a politically-motivated effort in 2015 to close 31 driver's license offices in mostly black counties, a move that embarrassed the state and was later reversed.

The decision also led to a federal investigation and drew civil rights protesters such as Jesse Jackson to the state.<http://www.al.com/news/birmingham/index.ssf/2015/10/jesse_jackson_denounces_alabam.html>

Mason's role was highlighted in a 131-page report released Friday by the investigator leading impeachment efforts against Gov. Bentley<http://www.al.com/news/birmingham/index.ssf/2017/04/alabama_gov_robert_bentley_imp.html#incart_big-photo>, a report largely focused on the relationship between Mason and Bentley.

The report and exhibits can be found here.<http://bentleyinvestigation.com/>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


"Why you should stop blaming gerrymandering so much. Really."<http://electionlawblog.org/?p=92020>
Posted on April 8, 2017 9:26 am<http://electionlawblog.org/?p=92020> by Rick Hasen<http://electionlawblog.org/?author=3>

Aaron Blake:<https://www.washingtonpost.com/news/the-fix/wp/2017/04/08/why-you-should-stop-blaming-gerrymandering-so-much-really/?utm_term=.1b6ec2b3c2ba&wpmk=MK0000200>

But gerrymandering is also blamed too much for too many things - especially for our political polarization and for Republicans' strong advantage in the House. Just last week, an op-ed in The Washington Post blamed gerrymandering for breeding the conservative Freedom Caucus<https://www.washingtonpost.com/posteverything/wp/2017/03/29/trump-cant-stop-the-freedom-caucus-he-has-gop-gerrymandering-to-blame/?utm_term=.20bea4ac747f>, which thwarted the GOP health-care bill.

Some new data from the Cook Political Report shows how overwrought this is.

In their report debuting Cook's famous Partisan Voting Index (PVI) ratings<http://cookpolitical.com/file/Cook_Political_Report_Partisan_Voter_Index.4.pdf> for all 435 House districts, David Wasserman and Ally Flinn also reflect upon the decline of the swing district. Twenty years ago, 164 districts had a PVI of between Republican +5 and Democratic +5 - basically what you'd consider a swing district. Today, it's less than half of that: just 72 districts.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


"Troubled Mayoral Race in St. Louis Shows Need for Ranked Choice Voting"<http://electionlawblog.org/?p=92018>
Posted on April 7, 2017 2:51 pm<http://electionlawblog.org/?p=92018> by Rick Hasen<http://electionlawblog.org/?author=3>

Steven Hill<http://inthesetimes.com/article/20022/troubled-mayoral-race-in-st.-louis-shows-need-for-ranked-choice-voting> for In These Times.  More here.<http://www.stltoday.com/...for.../article_5200a425-1671-59f5-ba2c-4e90e202937e.html>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


NM: "Governor vetoes campaign finance reform"<http://electionlawblog.org/?p=92015>
Posted on April 7, 2017 1:56 pm<http://electionlawblog.org/?p=92015> by Rick Hasen<http://electionlawblog.org/?author=3>

New Mexico in Depth:<http://nmindepth.com/2017/04/07/governor-vetoes-campaign-finance-reform/>

Gov. Susana Martinez, who has touted herself as a champion of transparency, on Friday vetoed a piece of legislation that would have required greater public disclosure by those who spend big money in New Mexico political races.

The governor vetoed<https://www.documentcloud.org/documents/3540104-SB96-2017-Vetoed.html> Senate Bill 96, a goal long sought by good-government groups and those who wanted greater information on the influence of money in politics.

The governor also vetoed a bill <http://nmindepth.com/2017/04/06/martinez-vetoes-bill-to-close-lobbyist-loophole/> to close a lobbying loophole.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


--
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
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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