[EL] ELB News and Commentary 2/9/17

[Rick Hasen]

“Kobach spars with ACLU over bill to close ‘loophole’ for voting without proof of citizenship”<http://electionlawblog.org/?p=90977>
Posted on February 8, 2017 8:01 am<http://electionlawblog.org/?p=90977> by Rick Hasen<http://electionlawblog.org/?author=3>
Topeka Capital Journal:<http://cjonline.com/news/state-government/2017-02-07/kobach-spars-aclu-over-bill-close-loophole-voting-without-proof?platform=hootsuite>
Kansas Secretary of State Kris Kobach on Tuesday faced impassioned opposition from civic groups and lawyers as he urged a panel of lawmakers to authorize a two-ballot system for state and federal voting…..
“We have discovered a very significant problem with noncitizens voting in Kansas,” Kobach said, citing Sedgwick County as an example and saying an academic analysis had concluded as many as 18,000 noncitizens could be on Kansas’ voter rolls.
Sedgwick County Election Commissioner Tabitha Lehman, elaborating on the situation in her county, told the panel her office had learned of 32 people since Jan. 1, 2013, who had filled out voter registration forms though they weren’t citizens at the time.
Fourteen noncitizens succeeded in registering, she said, before Kansas instituted a proof of citizenship requirement, and five of the 14 voted.
“Without having the ability to check our entire database, I have no way (of) knowing how many more registrants may not be citizens,” she said.
Doug Bonney, the ACLU’s chief counsel and legal director, submitted testimony arguing the bill “would contribute to what a federal court has already called the ‘mass denial of a fundamental constitutional right.’ ”
Bonney was referring to a 2016 decision by the 10th U.S. Circuit Court of Appeals.
“Voter registration by noncitizens is simply not a real problem in Kansas or elsewhere,” his testimony said. “The Secretary of State has not brought a single case against a noncitizen for registering or voting.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Kansans Caught In Crosscheck System Singled Out for Kobach’s Voter Fraud Campaign”<http://electionlawblog.org/?p=90975>
Posted on February 8, 2017 7:53 am<http://electionlawblog.org/?p=90975> by Rick Hasen<http://electionlawblog.org/?author=3>
Extensive report <http://kmuw.org/post/kansans-caught-crosscheck-system-singled-out-kobach-s-voter-fraud-campaign> from KMUW, Witchita’s NPR station:
Housing half of all U.S. voter registrations, Crosscheck gained national attention this year after Kobach advised President Donald Trump in connection with the president’s false claims of pervasive voter fraud in the 2016 presidential election.
In Kobach’s hands in Kansas, Crosscheck has evolved into a tool for shoring up claims of voter fraud instead of its original intention of keeping voter rolls accurate. And critics say that mission inappropriately targets voters who made innocent mistakes and shouldn’t be criminally charged….
It is illegal, however, to vote in two states during the same election, a law most of us don’t know about. It also very rarely happens. An academic analysis released last month titled “One Person, One Vote<http://mediad.publicbroadcasting.net/p/kmuw/files/201702/OnePersonOneVote.pdf?_ga=1.91319580.748866261.1480971595>,” found that double voting in the 2012 election was 0.02 percent, and likely much lower.
That hasn’t stopped Kobach, who inherited the Crosscheck program when he came into office in 2011 and used it to, not only seek convictions, but to support his unproven claims of high numbers of illegal voting.
During an August 2015 edition of KCUR’s “Statehouse Blend” podcast<http://kcur.org/post/statehouse-blend-kansas-secretary-state-kris-kobach#stream/0>, Kobach was promoting another of his criticized plans — requiring an ID before voting, a controversial plan he says will catch illegal immigrants; that plan is now being challenged in the courts.
Kobach turned to double voting, which he said was one of the easiest ways to perpetrate voter fraud. He said 125,000 people were registered to vote in Kansas and another state. But that doesn’t jibe with a presentation he gave to the National Association of State Election Directors <http://www.nased.org/NASED_Winter_2013_PP_Presentations/KANSAS.pdf> in 2013 when he said Crosscheck found around 80,000 double registrations from Kansas. And Kobach never answered whether those matching registrations, which are not illegal, lead to double voting, potentially not legal.
Even Kobach’s office admits, in a Crosscheck participation guide <https://wei.sos.wa.gov/agency/osos/en/press_and_research/weekly/Documents/Participation%20Guide%20with%20Comments.pdf> given to states, that the system is rife with “false positives and not double votes,” as it only looks for matches of first name, last name and date of birth, so lots of people with common names are found. If each state doesn’t spend the money to investigative all the dual registrations, it could erroneously knock too many names from voter rolls, critics charge.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Proposed election law changes called unfair to students”<http://electionlawblog.org/?p=90973>
Posted on February 8, 2017 7:49 am<http://electionlawblog.org/?p=90973> by Rick Hasen<http://electionlawblog.org/?author=3>
NH<http://www.unionleader.com/state-government/Proposed-election-law-changes-called-unfair-to-students-02082017> looking to block students from voting.
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Posted in voting<http://electionlawblog.org/?cat=31>


“Tucson asks Supreme Court not to overturn its unique council-election system”<http://electionlawblog.org/?p=90971>
Posted on February 8, 2017 7:34 am<http://electionlawblog.org/?p=90971> by Rick Hasen<http://electionlawblog.org/?author=3>
Tuscon.com reports.<http://tucson.com/news/local/govt-and-politics/elections/tucson-asks-supreme-court-not-to-overturn-its-unique-council/article_3e982fd9-90da-5c65-802e-10e7a64321a5.html>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, voting<http://electionlawblog.org/?cat=31>


Alabama Governor Under Investigation May Appoint AG Investigating Him to Sen. Sessions’ Seat<http://electionlawblog.org/?p=90968>
Posted on February 8, 2017 7:24 am<http://electionlawblog.org/?p=90968> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico.<http://www.politico.com/story/2017/02/alabama-senate-session-bentley-234782>

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


“Corporate America should get on board with political accountability”<http://electionlawblog.org/?p=90966>
Posted on February 8, 2017 7:22 am<http://electionlawblog.org/?p=90966> by Rick Hasen<http://electionlawblog.org/?author=3>
Bruce Freed and Charles Kolb<http://thehill.com/blogs/pundits-blog/finance/318318-why-corporate-america-should-get-on-board-with-political> oped in The Hill.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Nations turn to lobbyists amid Trump upheaval”<http://electionlawblog.org/?p=90964>
Posted on February 8, 2017 7:19 am<http://electionlawblog.org/?p=90964> by Rick Hasen<http://electionlawblog.org/?author=3>
The Hill reports.<http://thehill.com/business-a-lobbying/318417-nations-turn-to-lobbyists-amid-trump-upheaval>
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Posted in lobbying<http://electionlawblog.org/?cat=28>


“The Pence Commission on Voting Fraud”<http://electionlawblog.org/?p=90962>
Posted on February 8, 2017 7:18 am<http://electionlawblog.org/?p=90962> by Rick Hasen<http://electionlawblog.org/?author=3>
Bauer:<http://www.moresoftmoneyhardlaw.com/2017/02/pence-commission-voting-fraud/>
President Trump’s arrangement for an inquiry into election voting fraud is fatally compromised by political self-interest. Before the November election, he insisted<http://www.politico.com/story/2016/11/will-trump-accept-2016-election-results-230932> that voter fraud might cost him the victory. After he had won, he decided that it robbed him of success in the popular vote. He put the number of illegal voters at 3 to 5 million<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/?hpid=hp_hp-more-top-stories_trumpvotes-0826pm-winner%3Ahomepage%2Fstory&tid=a_inl&utm_term=.8009153b2083>, all of it allegedly committed at his expense.
And having taken this position, he is not only looking back. He is already a candidate for reelection<http://docquery.fec.gov/cgi-bin/fecimg?_201701209041436569+0>, and this project would serve his purpose of reducing the risk of another popular vote disappointment. So he will establish a presidential commission to look into voting fraud, and he intends to appoint as its chair<http://www.cbsnews.com/news/trump-taps-mike-pence-to-lead-panel-investigating-mass-voter-fraud/> his Vice President, who was his presidential running mate in the last election and will very probably be on the ticket again 2020.
This process has lacked credibility from the start, and if it were only a matter of appreciating the nature and limitations of this political project, then not much more attention would need to be paid to it. But in what happens next, once this Pence Commission is formed and launched, the long-term cost to bipartisanship in voting reform could prove high.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Schumer Says Gorsuch Avoided His Questions ‘Like the Plague”<http://electionlawblog.org/?p=90960>
Posted on February 8, 2017 7:16 am<http://electionlawblog.org/?p=90960> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg:<https://www.bloomberg.com/politics/articles/2017-02-07/schumer-says-gorsuch-avoided-his-questions-like-the-plague>
“The judge today avoided answering questions like the plague,” Schumer told reporters. He said he also asked for Gorsuch’s views on the Supreme Court’s 2010 Citizens United campaign-finance decision and the Constitution’s emoluments clause that bars officeholders like Trump from accepting gifts from foreign states.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


Mr. Free Speech, Mitch McConnell, Ladies and Gentlemen<http://electionlawblog.org/?p=90958>
Posted on February 8, 2017 7:12 am<http://electionlawblog.org/?p=90958> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/02/07/us/politics/republican-senators-vote-to-formally-silence-elizabeth-warren.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news&_r=0>
Senator Elizabeth Warren<http://topics.nytimes.com/top/reference/timestopics/people/w/elizabeth_warren/index.html?inline=nyt-per>, Democrat of Massachusetts, had been holding forth on the Senate floor on the eve of Mr. Sessions’s expected confirmation vote, reciting a 1986 letter from Mrs. King that criticized Mr. Sessions’s record on civil rights.
Sensing a stirring beside her a short while later, Ms. Warren stopped herself and scanned the chamber.
Across the room, Senator Mitch McConnell<http://topics.nytimes.com/top/reference/timestopics/people/m/mitch_mcconnell/index.html?inline=nyt-per>, the majority leader, had stepped forward with an objection, setting off an extraordinary confrontation in the Capitol and silencing a colleague, procedurally, in the throes of a contentious debate over President Trump’s cabinet nominee.
“The senator has impugned the motives and conduct of our colleague from Alabama, as warned by the chair,” Mr. McConnell began, alluding to Mrs. King’s letter, which accused Mr. Sessions of using “the awesome powers of his office in a shabby attempt to intimidate and frighten elderly black voters.”
Mr. McConnell called the Senate to order under what is known as Rule XIX<http://www.rules.senate.gov/public/index.cfm?p=RuleXIX>, which prohibits debating senators from ascribing “to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.”
When Mr. McConnell concluded, Ms. Warren said she was “surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate<http://topics.nytimes.com/top/reference/timestopics/organizations/s/senate/index.html?inline=nyt-org>.” She asked to continue her remarks.
Mr. McConnell objected….
“She was warned,” Mr. McConnell said of Ms. Warren. “She was given an explanation. Nevertheless, she persisted.”
Democrats planned to hold the floor into the wee hours of Wednesday to protest Mr. Sessions’s nomination.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Legal challenges leave future NC elections in limbo”<http://electionlawblog.org/?p=90956>
Posted on February 7, 2017 2:25 pm<http://electionlawblog.org/?p=90956> by Rick Hasen<http://electionlawblog.org/?author=3>
Carolina Public Press reports.<http://carolinapublicpress.org/26533/legal-challenges-leave-future-nc-elections-in-limbo/>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>


“House Republicans Just Voted to Eliminate the Only Federal Agency That Makes Sure Voting Machines Can’t Be Hacked”<http://electionlawblog.org/?p=90954>
Posted on February 7, 2017 1:43 pm<http://electionlawblog.org/?p=90954> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Berman:<https://www.thenation.com/article/house-republicans-just-voted-to-eliminate-the-only-federal-agency-that-makes-sure-voting-machines-cant-be-hacked/>
This move is particularly worrisome given reports that suspected Russian hackers attempted to access voter-registration systems in more than 20 states<http://abcnews.go.com/US/russian-hackers-targeted-half-states-voter-registration-systems/story?id=42435822> during the 2016 election. Moreover, the Presidential Commission on Election Administration set up by President Obama in 2014 outlined an “impending crisis” in voting technology and the Brennan Center found that 42 states<https://www.brennancenter.org/publication/americas-voting-machines-risk> used voting machines in 2016 that were at least a decade-old and at risk of failing. The EAC was the agency tasked with making sure these voting systems were both modernized and secure.
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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>


“Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization In Redistricting and Voting Cases”<http://electionlawblog.org/?p=90939>
Posted on February 7, 2017 7:30 am<http://electionlawblog.org/?p=90939> by Rick Hasen<http://electionlawblog.org/?author=3>
I have posted this draft on SSRN<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>, for the forthcoming symposium<http://electionlawblog.org/?p=90854> on Redistricting after 2020 at William and Mary.  I think this piece brings together a lot of my thinking (and others’ thinking) on the “race or party” question in election law these days. It discusses a number of pending (and perhaps soon to be pending) Supreme Court cases on racial gerymandering, partisan gerrymandering, and vote denial.
Here is the abstract:
The last few decades have witnessed the emergence of what Bruce Cain and Emily Zhang term “conjoined polarization,” the overlapping of partisan and racial political identity, especially in the American South. Election law doctrine, which developed at a time when partisanship and racial identity did not overlap so neatly, has not caught up. The Essay looks at three potential approaches to conjoined polarization in redistricting and voting rights cases, and the problems with each approach.
“Race or party” is the first approach to conjoined polarization. In this approach, a court’s task is to decide whether a case is “really” about race rather than party, with certain legal consequences flowing from the determination. Some of the racial gerrymandering cases fit into this category. Under Easley v. Cromartie, the courts’ task has been to decide whether race or party predominated in drawing district lines. If race predominated, the lines are likely impermissible, but party preferences are allowed. Beneath the surface, this racial gerrymandering doctrine has allowed for partisan and political fights over redistricting in the guise of discussing racial separation. The idea has now also emerged in some Voting Rights Act section 2 cases; in this view, courts must determine whether minority voters face less opportunity to participate in the political process because of their race or ethnicity rather than facing reduced opportunity for partisan reasons. In jurisdictions where conjoined polarization is prevalent, a race or party analysis is nonsensical and can lead to arbitrary results. It also may undermine enforcement of the Voting Rights Act.
An alternative approach is to treat party as a proxy for race, equating proof of discriminatory partisan intent with proof of discriminatory racial intent. The United States Court of Appeals for the Fourth Circuit used this approach in a recent case involving the constitutionality of a major North Carolina voting law which imposed a strict voter identification requirement and made cutbacks to other voting rules. The Fourth Circuit, in striking the state’s law as a violation of Section 2 of the Voting Rights Act, held that the state acted with a racially discriminatory intent. The court reached this conclusion despite finding little evidence of racial animus. The court wrote that legislators relied upon racial data to achieve partisan ends in designing this law, and that this reliance made party discrimination a form of race discrimination. This approach of “party as race,” while more realistic about conjoined polarization than race or party, raises a host of new questions, such as whether Republican legislatures in areas of conjoined polarization could ever roll back earlier easing of voting laws enacted by Democratic legislatures and administrators without risking a court holding that the legislature engaged in intentional race discrimination. It also means that a law that is illegal in North Carolina may be legal in Wisconsin, even if motivated by the same partisan intent, because of a difference in racial makeup of the two states.
A third approach to conjoined polarization, suggested a bit in the Fourth Circuit case, but advanced more fully by some scholars including Sam Issacharoff and me, seeks to deemphasize the racial aspect of these laws. Under the “party all the time” approach, courts shift toward policing partisan election laws more directly. It is not that race does not matter on the ground in states and areas with conjoined polarization, but that a legal focus on the racial aspects of the dispute obscures rather than elucidates the stakes and the appropriate remedies. A move toward this approach would have courts focus on partisan gerrymandering and dilution in the redistricting context, and on partisan intent and effect as to voting restrictions. “Party all the time” has two main drawbacks. First, it can obscure situations in which race is more salient than party and needs direct redress from the courts. Second, the approach injects courts further into the political thicket, potentially leading to more partisanship in judicial decisionmaking and lack of a principled stopping point for judicial policing. Still, this third approach seems the best alternative, and better than leaving the political thicket.

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Posted in political polarization<http://electionlawblog.org/?cat=68>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>



--
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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