[EL] ELB News and Commentary 12/11/17

Sun Dec 10 20:35:24 PST 2017

“In major reform, 2020 Iowa caucuses would include absentee voting, public vote totals”<http://electionlawblog.org/?p=96323>
Posted on December 10, 2017 8:28 pm<http://electionlawblog.org/?p=96323> by Rick Hasen<http://electionlawblog.org/?author=3>
Des Moines Register:<https://www.desmoinesregister.com/story/news/2017/12/09/major-reform-2020-iowa-caucuses-include-absentee-voting-public-vote-totals/934913001/>
Iowa’s first-in-the-nation Democratic presidential caucuses would break with decades of tradition in 2020 by allowing voters to cast absentee ballots and then releasing the raw total of votes won by each candidate.
A Democratic National Committee panel known as the Unity Reform Commission set those changes into motion during a meeting here on Saturday, clearing the way for perhaps the most significant changes to the Iowa caucuses since they emerged as a key step in the presidential nominating process five decades ago.
“There’s never been an absentee process. We’ve never released raw vote totals,” said Scott Brennan, a Des Moines attorney who serves on the DNC. “Those would seem to be pretty darn big changes.”
Reform commission members and national party leaders predicted the changes, which affect other caucus-holding states as well as Iowa, would increase voter participation, bring transparency to the nominating process and bolster grassroots activism — particularly in rural and Republican-leaning places….
In other business, the commission moved to scale back the influence of so-called “super-delegates” — the party leaders and insiders who were not bound to support a particular presidential candidate in previous national conventions.
In a series of recommendations, the commission sharply reduced the number of super-delegates who can back a candidate regardless of how that candidate performed in their home state’s caucus or primary. The move is a response to 2016 convention delegates and particularly supporters of Bernie Sanders who believed Hillary Clinton’s nomination was unfairly bolstered by super-delegates who were unaccountable to the will of voters in their states.
If approved, only members of Congress, governors and top party leaders like former presidents would enter the national convention with no requirement to back a certain candidate on the first ballot. Two other categories of super-delegates would be required to support the candidate based on the outcome of state primary and caucus results.
The Unity Commission also outlined reforms for increasing voter access in states that hold primaries — primarily by encouraging same-day or automatic voter registration and same-day party switching for voters registered as a Republican or independent, and in some cases creating penalties for states that don’t.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96323&title=%E2%80%9CIn%20major%20reform%2C%202020%20Iowa%20caucuses%20would%20include%20absentee%20voting%2C%20public%20vote%20totals%E2%80%9D>
Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

“Fight Looming in NH Senate Over Voting Rights”<http://electionlawblog.org/?p=96320>
Posted on December 10, 2017 8:06 pm<http://electionlawblog.org/?p=96320> by Rick Hasen<http://electionlawblog.org/?author=3>
The latest from New Hampsire.<http://www.fosters.com/news/20171210/fight-looming-in-nh-senate-over-voting-rights>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96320&title=%E2%80%9CFight%20Looming%20in%20NH%20Senate%20Over%20Voting%20Rights%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Must-Read Ellen Aprill NYT Oped: “Leave the Johnson Amendment Alone”<http://electionlawblog.org/?p=96318>
Posted on December 10, 2017 7:51 pm<http://electionlawblog.org/?p=96318> by Rick Hasen<http://electionlawblog.org/?author=3>
Ellen in the NYT:<https://www.nytimes.com/2017/12/10/opinion/johnson-amendment-campaigns.html?_r=0>
Contributions to charities are deductible; contributions to PACs and section 501(c)(4) social welfare organizations are not. Because charities can have enormous influence on political campaigns with very little expense, many who wish to intervene in political campaigns will shift their contribution from PACs and social welfare organizations to charities. Currently, the House proposal operates for five years, from Jan. 1, 2019, to Dec. 31, 2023. The Joint Committee on Taxation estimates the revenue loss for this five-year period at $2.1 billion. This number probably underestimates the actual cost of the House’s proposed change to the Johnson amendment. Charities that make a decision to electioneer will attract large donations from donors who would like to obtain deductions and influence elections in one fell swoop.
The House proposal also encourages the establishment of new entities to take advantage of the revised rules. These newly created organizations would establish their own norms as to what is “regular and customary.” In short order, organizations would be formed precisely to take advantage of this new electioneering rule.
Under our current campaign finance regime, only dollars that have been subject to income tax can be used for electioneering. A de minimis exception for electioneering by charities will undermine this basic principle. It will harm both the law regulating charities and the law regulating campaign finance. Our country will be far poorer for such changes.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96318&title=Must-Read%20Ellen%20Aprill%20NYT%20Oped%3A%20%E2%80%9CLeave%20the%20Johnson%20Amendment%20Alone%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Detroit’s Election Administration Remains a National Embarrassment<http://electionlawblog.org/?p=96313>
Posted on December 10, 2017 11:58 am<http://electionlawblog.org/?p=96313> by Rick Hasen<http://electionlawblog.org/?author=3>
In this forthcoming piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257> on the 2016 voting wars in the U.S., I describe in some detail the debacle that was the Detroit recount, part of the (eventually abandoned) recall attempt by Jill Stein after the 2016 presidential election. The state promised it was going to get its act together, but this new story <http://michiganradio.org/post/detroit-recount-ends-no-changed-results-lingering-questions> says that not much has changed:
The recount confirmed Winfrey’s win. But 33 precincts representing more than 7,000 votes couldn’t be re-tallied at all.
“It was just disheartening to see canister after canister that were deemed un-recountable, because the seals were broken, because the ballot canisters themselves were broken, or because the numbers didn’t match,” Gilchrist said.
Michigan election law doesn’t allow precincts to be recounted when the number of voters in poll books doesn’t match the number of ballots in the box.
In the case of precinct 156, from Detroit’s St. John Presbyterian Church, poll books showed that 145 voters cast ballots. But when election workers opened up the canister, there were only five ballots inside.
Detroit director of elections Daniel Baxter says those missing ballots were later found in a storage container. Still, he said the incident is “high on our radar.”
The report attributed much of the 2016 problems to human error.  They need a lot more resources towards training.
As I argue in the paper, thank goodness the 2016 election did not hinge on the results  of Michigan. There was so much incompetence there and so much angry polarization that it would have been a horrible combination.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96313&title=Detroit%E2%80%99s%20Election%20Administration%20Remains%20a%20National%20Embarrassment>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Virginia’s House election is irreparably tainted”<http://electionlawblog.org/?p=96311>
Posted on December 10, 2017 11:52 am<http://electionlawblog.org/?p=96311> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo editorial:<https://www.washingtonpost.com/opinions/virginias-house-election-is-irreparably-tainted/2017/12/08/be19f042-dc57-11e7-a841-2066faf731ef_story.html?utm_term=.37b1b2ccbb72&wpmk=MK0000200>
THE MYSTERY of how, why and by whom a few hundred Northern Virginians were registered to vote in the wrong state legislative districts<https://www.washingtonpost.com/local/virginia-politics/with-uncanny-twists-and-an-allegedly-rogue-registrar-virginia-house-left-in-limbo/2017/11/26/9c6d41fa-cfce-11e7-9d3a-bcbe2af58c3a_story.html?utm_term=.4cbab31859e2> in this fall’s elections does not look as though it will be resolved soon. For one thing, the registrar who might have been able to shed some light on the issue died last spring.
The more pressing question is what to do about the razor-thin result in one of the districts, on which partisan control of the state House of Delegates may hinge. Short answer: A federal judge now reviewing the mess should order a do-over<https://www.washingtonpost.com/local/virginia-politics/democrats-ask-federal-judge-for-new-election-in-tainted-va-house-race/2017/12/07/340f81c8-dadb-11e7-a841-2066faf731ef_story.html?utm_term=.619ccf3120ba>.
That would be an unusual recourse for the race in the 28th House District, including parts of Stafford County and Fredericksburg, where Republican Robert Thomas leads Democrat Joshua Cole by 82 votes. It would also be warranted.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96311&title=%E2%80%9CVirginia%E2%80%99s%20House%20election%20is%20irreparably%20tainted%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

“Preparing For Hawaii’s Next Constitutional Convention Vote”<http://electionlawblog.org/?p=96309>
Posted on December 10, 2017 11:48 am<http://electionlawblog.org/?p=96309> by Rick Hasen<http://electionlawblog.org/?author=3>
J.H. Snider<http://www.civilbeat.org/2017/12/preparing-for-hawaiis-next-constitutional-convention-vote/> planning ahead.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96309&title=%E2%80%9CPreparing%20For%20Hawaii%E2%80%99s%20Next%20Constitutional%20Convention%20Vote%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Maybe Justice Kennedy is Reading Ned Foley on Why the Maryland Redistricting Case is a Better One Than Wisconsin?<http://electionlawblog.org/?p=96307>
Posted on December 10, 2017 11:46 am<http://electionlawblog.org/?p=96307> by Rick Hasen<http://electionlawblog.org/?author=3>
Just a reminder that Ned’s piece upcoming in the blockbuster William and Mary Law Review symposium on gerrymandering makes the case for Justice Kennedy to use the Maryland case (which the Court just agreed to hear) rather than the Wisconsin case (which is pending) to rein in partisan gerrymandering. Here is a draft of The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999738> Here is the abstract:
It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander—the one provided the name for this category of pernicious partisanship—a fixed historical benchmark by which to judge the distortion of legislative districts.
This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives—after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch—not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96307&title=Maybe%20Justice%20Kennedy%20is%20Reading%20Ned%20Foley%20on%20Why%20the%20Maryland%20Redistricting%20Case%20is%20a%20Better%20One%20Than%20Wisconsin%3F>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

--
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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171211/376984c8/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20171211/376984c8/attachment.png>