[EL] ELB News and Commentary 4/14/17

[Rick Hasen]

In Surprise Move, Trump DOJ Defends McCain-Feingold’s Soft Money Limits at #SCOTUS<http://electionlawblog.org/?p=92109>
Posted on April 13, 2017 9:03 pm<http://electionlawblog.org/?p=92109> by Rick Hasen<http://electionlawblog.org/?author=3>
Via Bloomberg BNA, comes news of this motion to dismiss or affirm<https://www.justice.gov/sites/default/files/briefs/2017/04/12/16-865_republican_party_of_louisiana_mot_to_dismiss_or_affirm.pdf> a challenge brought by the Republican Party of Louisiana to the soft money limits in the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold law). The Court upheld those limits in McConnell v. FEC, but there have been a number of subsequent challenges to the provisions, and this one is the latest.
I was expecting that a Trump Administration with White House counsel Don McGahn (who is a big believer that campaign finance deregulation is mandated by the First Amendment) might do something unusual in defending the case, perhaps even filing two briefs (one on each side), similar to what happened in Buckley v. Valeo.
But the motion reads like a motion that would have been filed by the Obama DOJ; there’s not a hint that the issue is one the Court should hear. It has just the right tone for a brief of this type to say: nothing new here, and this is not the right vehicle to make a big change in campaign finance law.
So that’s a surprise, and good news for reformers.
Now the bad news: I still think the Court is fairly likely to take the case. From a post of mine on this case<http://electionlawblog.org/?p=88945> the day before the election:
Back in August I wrote at NLJ<http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself> about Republicans’ third attempt to overturn McCain-Feingold’s limits on how much political parties can raise from donors for election related advertising and other things. I wrote that if the Republicans would be successful in getting a three-judge court, that would put the Supreme Court in a position where, because of technical procedural reasons, it would almost certainly take the case. When I wrote that in August, Justice Scalia was still on the Court, and I said there was a good chance that the Roberts Court, if confronted with the soft money rules, could well overturn them, killing the second part of McCain-Feingold. (The Court killed the first part, the limit on corporate and labor union independent spending, in Citizens United).
Well today the three judge court ruled unanimously ruled,<https://t.co/tAQJ54CKFu> and rightly so, that it is bound by the Supreme Court’s earlier decision in the McConnell case upholding the soft money rules.
So the issue is perfectly teed up through appeal to the Supreme Court. But…
No more Justice Scalia means that Court is likely evenly divided at best on the question. So little prospect now the ban would be overturned.
If we get a ninth Justice things could change. A Clinton-appointed Justice would almost certainly vote to uphold the limits, while a Trump-appointed Justice would almost certainly vote to strike them down.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>


Must-Read Lyle Denniston on the Coming Fight over Voting Rights Act Bail-in in Texas<http://electionlawblog.org/?p=92107>
Posted on April 13, 2017 8:47 pm<http://electionlawblog.org/?p=92107> by Rick Hasen<http://electionlawblog.org/?author=3>
Lyle:<http://lyldenlawnews.com/2017/04/13/new-threat-rising-voting-rights-act/>
Earlier this year, however, a federal trial judge in Houston, District Judge Lee H. Rosenthal, became the first since the demise of Section 5 pre-clearance to impose Section 3 pre-clearance as a remedy for a discriminatory voting practice. That case involves a shift of the way voters in Pasadena, Texas, elect the members of the city council. Judge Rosenthal, after finding that the change discriminated intentionally against the city’s Hispanic voters, adopted a six-year period of pre-clearance for any future change in voting laws in that locality.
That case has now moved on up to the U.S. Court of Appeals for the Fifth Circuit. And that is where one major threat to Section 3 remedies has arisen. It came in a legal brief filed by the state of Texas last month, supporting an appeal by the city of Pasadena as far as the city is challenging the remedy of Section 3 pre-clearance. That remedy, the state brief asserted, “must be sparingly and cautiously applied.”
The state’s filing argued that “misuse” of that mode of pre-clearance “threatens to re-impose the same unwarranted federal intrusion that Shelby County found could not be justified under the Constitution.” The brief contended that Judge Rosenthal had engaged in such a “misuse” of this provision by imposing it for only a single incident of discrimination – the one-time change in the method of electing the Pasadena city council.
The only circumstance in which a Section 3 pre-clearance remedy is valid, under either the specific language of Section 3, the reasoning of the Supreme Court in 2013, or the Constitution, the Texas brief contended, is when a judge can conclude that the discrimination was “pervasive, flagrant, widespread, and rampant.”
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


“Iowa’s New Voter-ID Law Would Have Disenfranchised My Grandmother”<http://electionlawblog.org/?p=92105>
Posted on April 13, 2017 8:42 pm<http://electionlawblog.org/?p=92105> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Berman<https://www.thenation.com/article/iowas-new-voter-id-law-would-have-disenfranchised-my-grandmother/> for The Nation:
My grandmother Sylvia moved from Brooklyn to Iowa when she was 89 years old. It was a culture shock, to say the least. When my mom took her to vote, she complained of the candidates, “There isn’t anybody who’s Jewish!”
I thought of my grandmother, who passed away in 2005 at 99, when the Iowa Legislature passed a strict voter-ID law<https://twitter.com/desmoinesdem/status/852563709536948224> today. She didn’t have a driver’s license because she never drove (she’d frequently walk two miles from her apartment to the grocery store). Her passport expired long ago. She never had a US birth certificate because she was born in Poland and fled the Holocaust. She used her Medicare card as identification. She didn’t possess any of the forms of government-issued photo identification that Iowa will soon require to vote.
The ACLU of Iowa reports that 11 percent<https://www.aclu-ia.org/en/news/paul-pates-voter-id-bill-would-disenfranchise-thousands> of eligible Iowa voters—260,000 people—don’t have a driver’s license or non-operator ID, according to the US Census and the Iowa Department of Transportation, and could be disenfranchised by the bill. My grandmother, if she were still alive today, would have been one of them.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92105&title=%E2%80%9CIowa%E2%80%99s%20New%20Voter-ID%20Law%20Would%20Have%20Disenfranchised%20My%20Grandmother%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Contentious voter ID bill advances in Iowa Senate”<http://electionlawblog.org/?p=92103>
Posted on April 13, 2017 2:18 pm<http://electionlawblog.org/?p=92103> by Rick Hasen<http://electionlawblog.org/?author=3>
Des Moines Register:<http://www.desmoinesregister.com/story/news/politics/2017/03/01/contentious-voter-id-bill-advances-iowa-senate/98576798/>
A contentious voter identification bill cleared an Iowa Senate subcommittee Wednesday, although critics said there is no evidence it’s needed and a Democratic lawmaker scolded a state elections official for suggesting there is a lack of confidence in Iowa’s election system.
Senate Study Bill 1163<https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=SSB%201163>, which is proposed by Republican Secretary of State Paul Pate, was approved on a 2-1 vote, advancing the bill to the Senate State Government Committee. Republican Sens. Roby Smith of Davenport and Jake Chapman of Adel supported the bill, while Democratic Sen. Tony Bisignano opposed it. The Iowa House is considering its own version<http://www.desmoinesregister.com/story/news/politics/2017/03/01/voter-id-legislation-move-house-floor-debate/98554654/> of Pate’s bill, which is House Study Bill 93<https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=HSB93>.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Territorial Voting Rights Brief Filed in Seventh Circuit”<http://electionlawblog.org/?p=92101>
Posted on April 13, 2017 1:50 pm<http://electionlawblog.org/?p=92101> by Rick Hasen<http://electionlawblog.org/?author=3>
We the People project:<http://www.equalrightsnow.org/territorial_voting_rights_brief_filed_in_seventh_circuit>
Earlier today Plaintiffs from Guam, the U.S. Virgin Islands, and Puerto Rico filed their opening brief before the U.S. Court of Appeals for the Seventh Circuit challenging discriminatory overseas voting laws and making the case that where you live shouldn’t impact your right to vote for President. The brief comes just days after the Harvard Law Review published a special feature, “Developments in the Law: U.S. Territories<http://harvardlawreview.org/topics/devo-us-territories/>,” addressing the unequal status facing the over 4 million citizens who live in the Territories.
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Posted in voting<http://electionlawblog.org/?cat=31>


Read Materials from Maine Supreme Judicial Court on Lawsuit over Ranked Choice Voting<http://electionlawblog.org/?p=92099>
Posted on April 13, 2017 1:48 pm<http://electionlawblog.org/?p=92099> by Rick Hasen<http://electionlawblog.org/?author=3>
Good resource.<http://www.courts.maine.gov/maine_courts/supreme/senate_question_2017/index.html>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


“Political Parties and Candidates Dominated the 2016 House Elections While Holding Their Own in the Senate”<http://electionlawblog.org/?p=92097>
Posted on April 13, 2017 9:34 am<http://electionlawblog.org/?p=92097> by Rick Hasen<http://electionlawblog.org/?author=3>
New CFI analysis:<http://www.cfinst.org/Press/PReleases/17-04-13/POLITICAL_PARTIES_AND_CANDIDATES_DOMINATED_THE_2016_HOUSE_ELECTIONS_WHILE_HOLDING_THEIR_OWN_IN_THE_SENATE.aspx>
Perhaps it is time to stop bemoaning the weakness of political parties in financing federal elections. The prevailing opinion is that since the Supreme Court’s 2010 decision in Citizens United v. FEC, “outside groups” accepting unlimited contributions have come to play so important a role in competitive races as to be pushing the candidates and political parties to the sideline. A newly released study by the Campaign Finance Institute (CFI) of 2016 general election campaign spending shows decisively that this is not true.
The basic source of misunderstanding stems from the legal categories under which federal financial activities are reported. Formal political party committees are designated, but all others are lumped together as non-party actors. Within the supposedly “non-party” organizations are four major Super PACs clearly associated with congressional party leaders. The Congressional Leadership Fund and Senate Leadership Fund are associated strongly with the House and Senate Republican leaders; the Senate Majority PAC and House Majority PAC are strongly associated with the Democratic leaders.
[http://www.cfinst.org/images/email/PartyIE_2016_v3.png]When the leadership committees are included in the calculations, the picture comes to look radically different from the conventional wisdom. These four committees were massively important in 2016, spending $232 million in general elections for the House and Senate (see table 1<http://www.cfinst.org/pdf/federal/congress/2016/PartyIE_Table1.pdf>). This more than doubled the $114 million of independent expenditures (IEs) by the comparable committees in 2014*. Substantial increases were posted by each of the four leadership PACs – House and Senate, Democratic and Republican. By comparison, the four formal party committees’ IEs and receipts stayed roughly level. (For party receipts since 2002, see table 4<http://www.cfinst.org/pdf/federal/congress/2016/PartyIE_Table4.pdf>.) The remaining non-party committees spent less on IEs in House races in 2016 than 2014 but more for the Senate, with the combined total going up by about 15%. Taken together the formal party committees and the leadership Super PACs combined to outspend all of the other non-party spenders by a margin that was more than four times as large in 2016 ($132 million) as in 2014 ($29 million).
The results are particularly visible in marginal contests. In House races, the parties (defined here to include the leadership Super PACs) were responsible for 88% of the independent spending in the 34 competitive elections with $2 million or more of IEs in the general election (see table 2<http://www.cfinst.org/pdf/federal/congress/2016/PartyIE_Table2.pdf>). These races accounted for 93% of all general election IEs for the House in 2016. Independent spending in those races exceeded candidate spending by 1.31 to 1.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, political parties<http://electionlawblog.org/?cat=25>


--
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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