[EL] ELB News and Commentary 12/18/17

Sun Dec 17 20:16:30 PST 2017

Private Plaintiffs (But Not the U.S.) Ask 5th Circuit to Immediately Lift the Stay in the Texas Voter ID case<http://electionlawblog.org/?p=96463>
Posted on December 17, 2017 4:09 pm<http://electionlawblog.org/?p=96463> by Rick Hasen<http://electionlawblog.org/?author=3>
Back in September, a 5th Circuit’s motions panel, on a 2-1 vote, stayed a trial court order<http://electionlawblog.org/?p=94600> which would have blocked Texas from implementing its revised voter id law pending appeal.
The order specifically was not binding on the panel of 5th Circuit judges eventually assigned to hear the merits.
Now, after oral argument, the private plaintiffs in the case, but not the United States as a plaintiff (which since the Trump election has sided with Texas), have asked the 5th Circuit merits panel to immediately lift the stay pending appeal. You can read the motion at this link.<http://electionlawblog.org/wp-content/uploads/veasey-stay.pdf>
Judge Jones on the merits panel was very hostile to the plaintiffs<http://electionlawblog.org/?p=96234>, and so this likely rests on the views of Judge Higgenbotham.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Republicans keep on telling voter-fraud fairy tales”<http://electionlawblog.org/?p=96461>
Posted on December 17, 2017 3:53 pm<http://electionlawblog.org/?p=96461> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo editorial:<https://www.washingtonpost.com/opinions/republicans-keep-on-telling-voter-fraud-fairy-tales/2017/12/16/0fefdf1c-db9f-11e7-a841-2066faf731ef_story.html?utm_term=.41ace905401c>
SHORTLY BEFORE Virginia’s elections last month, we asked the three Republicans on the statewide ballot — Ed Gillespie, the gubernatorial candidate; Jill Vogel, the lieutenant gubernatorial candidate; and John Adams, the attorney general candidate — if they believed voter fraud was rampant in the state. None gave a straightforward answer; all three mentioned the isolated case<http://www.richmond.com/news/virginia/jmu-student-gets---days-in-prison-for-registering/article_577ec944-75ad-58d8-b706-d658c186cd57.html> of an undergraduate at James Madison University who filed 18 falsified voter registration forms last year, none of which resulted in a fraudulent vote being cast.
The JMU case is the near-exception that proves the rule: Voting officials and scholars in Virginia, as in other states, say election fraud is rare across the United States; even more seldom does it result in falsified votes at the ballot box.
Nonetheless, the robotic responses by the three Virginia Republicans, who all lost by sizable margins, reflected the party’s intellectual corruption in an age of truthlessness. In the party of President Trump, who asserted, without a scintilla of evidence, that he lost the popular vote in the presidential election because up to 5 million people<https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tells-congressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/?utm_term=.95bfc0e48a41> voted fraudulently, veracity has gone out of fashion. Consequently, many GOP candidates, including Mr. Gillespie, Mr. Adams and Ms. Vogel, lack the spine to utter what is plainly true — namely, that there is no evidence whatsoever that voter fraud is prevalent in the United States.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Asking Better Questions About Voter Identification Laws”<http://electionlawblog.org/?p=96459>
Posted on December 17, 2017 3:46 pm<http://electionlawblog.org/?p=96459> by Rick Hasen<http://electionlawblog.org/?author=3>
Eli Poupko<https://thefranchiseproject.com/asking-better-questions-about-voter-identification-laws/>:
Everyone agrees that voters must be identified before casting a ballot. The debate is over the particulars of the identification procedure. Specifically, we might ask: How much of the burden of this administrative process may a state place on any individual citizen seeking to exercise the right to vote?
However, the questions more commonly being asked and answered in current debates over voter identification laws, both in the public sphere and in the courts, are generally quite different. These questions have centered mostly on empirical issues, such as: What is the measurable effect<https://www.brennancenter.org/sites/default/files/legacy/Democracy/VRE/Mycoff%20et%20al.pdf> of these laws on voter turnout<https://fivethirtyeight.blogs.nytimes.com/2012/07/15/measuring-the-effects-of-voter-identification-laws/>, in general<http://onlinelibrary.wiley.com/doi/10.1111/jels.12142/full> and for people of color<http://www.journals.uchicago.edu/doi/abs/10.1086/688343> in particular? How many prospective voters actually lack<http://www.projectvote.org/wp-content/uploads/2015/06/AMERICANS-WITH-PHOTO-ID-Research-Memo-February-2015.pdf> the types of photo ID required by the Texas law<http://www.uh.edu/class/hobby/voterid2016/>? And of course, how probable is it that strict voter identification laws might affect the outcome in major elections<https://www.thenation.com/article/wisconsins-voter-id-law-suppressed-200000-votes-trump-won-by-23000/>?
Similarly, in legal challenges to identification requirements, courts have typically looked to the magnitude of the administrative burden, and specifically whether these laws “unduly burden<https://www.oyez.org/cases/2007/07-21>” the right to vote. Notably, courts seem to have interpreted this as weighing the overall impact across groups of potential voters, and they have focused mostly on the question of whether these laws are discriminatory—the main question in the Texas case.
Such questions are no doubt important, but given the state of current debates, these might not be the best questions to be asking in the interests of protecting voting rights and expanding participation. What, then, may be better questions at this time? Election law scholar Richard Hasen has asserted<https://electionlawblog.org/?p=89101> repeatedly<https://electionlawblog.org/?p=92447>that questions about administrative burdens like strict voter identification laws should focus not so much on turnout effects, nor exclusively on questions of discrimination<https://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>, but rather on “the dignity of voters<https://electionlawblog.org/?p=89101>,” and whether a state like Texas has any good reason for making voting procedures more burdensome than they actually need to be.
We could take this a step further and assert that the right questions have to do with the value of voting at the individual level. How valuable is any one citizen’s vote? How much responsibility should a state have to prevent the disenfranchisement of just one individual? To what lengths must a state go in helping even just one voter<http://news.bbc.co.uk/2/hi/south_asia/8009522.stm> to participate?
Only by answering these types of questions—which involve problems of participatory democratic theory more than empirical issues—can we rightly assess the weight of administrative burdens. For in order to determine whether a state has a good enough reason for its voter identification law, or whether it unduly burdens the right to vote, we must first determine how much weight to give to the individual interest in participation.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Roy Moore’s End Game in the Alabama Senate Race<http://electionlawblog.org/?p=96457>
Posted on December 15, 2017 5:26 pm<http://electionlawblog.org/?p=96457> by Rick Hasen<http://electionlawblog.org/?author=3>
Roy Moore has not conceded in a race where he is down by about 1.5 percent, and today he has announced <https://twitter.com/bkamisar/status/941807044121722881> an election “integrity” fund for a possible recount.
There’s an automatic recount for a difference less than 0.5%, and he’s very unlikely to reach that threshold with the remaining provisional ballots.
A recount could cost up to a million dollars according to some estimates I’ve seen, and my reading of Alabama law i<http://electionlawblog.org/?p=96376>s that he is not entitled to pay for one as a federal candidate (though the Secretary of State of Alabama seems to think otherwise).  Any recount would be exceedingly unlikely to change results.
So what is Moore up to?
One possibility is that he believes a recount would make a difference.
The other, more likely possibility, is that he will use it as a way to raise funds for himself, which he could use in a future federal race or for some other purposes. He wouldn’t be the first candidate to use a recount in this way. Some say that’s just what Jill Stein did in the 2016 presidential election.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them”<http://electionlawblog.org/?p=96455>
Posted on December 15, 2017 5:10 pm<http://electionlawblog.org/?p=96455> by Rick Hasen<http://electionlawblog.org/?author=3>
Matt Zapatosky reports<https://www.washingtonpost.com/world/national-security/nine-more-women-say-judge-subjected-them-to-inappropriate-behavior-including-four-who-say-he-touched-or-kissed-them/2017/12/15/8729b736-e105-11e7-8679-a9728984779c_story.html?tid=ss_tw&utm_term=.5df615ae15ef> for WaPo.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Should FEC Commissioner Matt Petersen’s Performance at Senate Judiciary Hearing Be Disqualifying for Federal Bench? That’s Not an Easy Question<http://electionlawblog.org/?p=96453>
Posted on December 15, 2017 8:10 am<http://electionlawblog.org/?p=96453> by Rick Hasen<http://electionlawblog.org/?author=3>
Earlier this week I linked<http://electionlawblog.org/?p=96403> to an NLJ story about FEC Commissioner Petersen’s performance at a Senate Judiciary Committee hearing on whether he should be confirmed to a position as a federal district judge in DC.
Since that time, the following video has gone viral:
<https://twitter.com/SenWhitehouse/status/941484131757838337>
[https://pbs.twimg.com/amplify_video_thumb/941403179840831489/img/UDeArV9l4fzFp5R1.jpg]<https://twitter.com/SenWhitehouse/status/941484131757838337>
<https://twitter.com/SenWhitehouse/status/941484131757838337>

[https://pbs.twimg.com/profile_images/378800000051321410/55ff7ed4f6264c8eec19a81a66be6bb0_bigger.png]Sheldon Whitehouse<https://twitter.com/SenWhitehouse>
✔@SenWhitehouse<https://twitter.com/SenWhitehouse>
MUST WATCH: Republican @SenJohnKennedy<https://twitter.com/SenJohnKennedy> asks one of @realDonaldTrump<https://twitter.com/realDonaldTrump>’s US District Judge nominees basic questions of law & he can’t answer a single one. Hoo-boy.
5:44 PM - Dec 14, 2017<https://twitter.com/SenWhitehouse/status/941484131757838337>

It is a devastating watch and I think it could well sink his nomination.  But should it?
I think that answer is far from easy.
On the one hand, most of these questions were pretty basic questions about trial practice, especially the Daubert and motion in limine questions related to evidence. (I don’t think people need to have Younger and Pullman abstention at their fingertips when they become district judges). Anyone with a decent amount of trial experience should know that, and it is clear from his answers that he didn’t know that.
On the other hand, it is not clear that we want all of our federal judges to be cut from the same cloth. Commissioner Petersen has extensive experience on the FEC, and I have no doubt he could read legal cases and resolve difficult statutory questions in his capacity as a judge. Not every trial judge needs to be a former litigator.
The real problem for me is that it appears that Petersen had not done his homework.  In preparing for a hearing like this, he really should have spent some time learning (or relearning) the kinds of basic things that trial court judges do. This is the only chance to really question someone before a lifetime appointment, and it is fair to expect them to be extra prepared.
I’m not saying I support Commissioner Petersen for a judgeship. He has always been nice in my interactions with him. But he has voted in doctrinaire lockstep fashion on the FEC, first following Don McGahn’s lead to tear down as much campaign finance law as the Republican commissioners could. I don’t like what he’s done on the FEC, and I don’t know how fair he’d be as a judge.
But I’m not sure that a gotcha performance is a reason to disqualify someone. Maybe lack of preparation is.
Not an easy case, as I said.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

After DNC Takes Sean Spicer Deposition About Violation of Consent Decree in RNC v. DNC Case, DNC Wants More Discovery and RNC Wants Court to Acknowledge Consent Decree Over<http://electionlawblog.org/?p=96449>
Posted on December 15, 2017 7:53 am<http://electionlawblog.org/?p=96449> by Rick Hasen<http://electionlawblog.org/?author=3>
Following he Spicer deposition, we see these two<http://electionlawblog.org/wp-content/uploads/rnc-207.pdf> post-deposition letters<http://electionlawblog.org/wp-content/uploads/rnc-208.pdf> from the RNC.  In the second, the RNC writes:
The RNC believes that a mere reading of the deposition transcript will refute the DNC’s assertions, which range from wholly speculative to wishfully inaccurate. In particular, the hearsay from anonymous sources in the Politico article is not probative and cannot rebut Mr. Spicer’s sworn testimony under cross-examination. Further, as to the DNC’s previously-denied request for a deposition of Mr. Priebus (ECF No. 182), the DNC still has no evidence that Mr. Priebus was involved in ballot security activities. As to its new request for depositions of Messrs. Roman and Parscale, the DNC concedes that they were not RNC personnel at all, and thus were not subject to the Decree. Finally, the request flies in the face of this Court’s instruction on November 29, 2017: “[A]sk for [discovery] on any basis you want, but I just want to let you know that I anticipate that unless you have other evidence that what [Mr. Spicer] said is not accurate and it’s material, I’m not going to be inclined to go any further.” Tr. at 50 (emphasis added).
This may all be over very soon.
I wrote here at Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/donald_trump_will_supercharge_voter_suppression_if_the_rnc_consent_decree.html> on what that means.
[This post has been updated.]
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Alabama SOS Office Still Saying, Apparently Contrary to Alabama Law, that Roy Moore Can Pay for a Recount If He Wants One<http://electionlawblog.org/?p=96447>
Posted on December 15, 2017 7:40 am<http://electionlawblog.org/?p=96447> by Rick Hasen<http://electionlawblog.org/?author=3>
Al.com:<http://www.al.com/news/index.ssf/2017/12/roy_moore_recount_could_cost_1.html#incart_river_index>
Alabama’s election handbook <http://ali.state.al.us/documents/election-handbook.pdf> spells out several offices that are not included in state laws for contesting elections: lieutenant governor, U.S. senator, and U.S. representative.
There are other provisions, however, that indicate a candidate or political party could request a recount,
“It’s our contention the votes can be recounted,” John Bennett, Deputy Chief of Staff for the Secretary of State’s office told AL.com<http://al.com/>. “We contend that authority is there.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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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