[EL] ELB News and Commentary 2/25/17

Fri Feb 24 19:11:02 PST 2017

Judge Easterbrook Asks in WI Case: Why Can’t Republicans Make “Pro-Republican Changes” to Make It Harder to Vote?<http://electionlawblog.org/?p=91322>
Posted on February 24, 2017 7:07 pm<http://electionlawblog.org/?p=91322> by Rick Hasen<http://electionlawblog.org/?author=3>
In the oral argument in today’s Washington case, around the 29 minute mark<http://media.ca7.uscourts.gov/sound/external/nr.16-3091.16-3091_02_24_2017.mp3>, Judge Easterbrook asks plaintiffs’ counsel: “A large part your brief reads as if the argument is: ‘When Democrats are in control they are free to expand voting. When Republicans in control they are prohibited from making any pro-Republican changes.’ That can’t be right… Why are the standards when Republicans are in control any different from when Democrats are in control?”
So “pro-Republican changes” must equal contracting the right to vote. And that’s ok?
I do address the one-way ratchet issue in these vote denial cases in this piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>,
Another issue in the case is whether treating counties rather than voters is constitutional. I address that question in: When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497192>, 2015 University of Chicago Legal Forum 193 (2015).

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91322&title=Judge%20Easterbrook%20Asks%20in%20WI%20Case%3A%20Why%20Can%E2%80%99t%20Republicans%20Make%20%E2%80%9CPro-Republican%20Changes%E2%80%9D%20to%20Make%20It%20Harder%20to%20Vote%3F>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Bob Bauer Agrees With Us About Commissioner Weintraub, But Doesn’t Want to Do Anything About It”<http://electionlawblog.org/?p=91320>
Posted on February 24, 2017 6:35 pm<http://electionlawblog.org/?p=91320> by Rick Hasen<http://electionlawblog.org/?author=3>
Cause of Action responds<http://causeofaction.org/bob-bauer-agrees-us-commissioner-weintraub-doesnt-want-anything/> to Bob Bauer’s post <http://www.moresoftmoneyhardlaw.com/2017/02/commissioner-weintraub-critics/> on FEC Commissioner Weintraub.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91320&title=%E2%80%9CBob%20Bauer%20Agrees%20With%20Us%20About%20Commissioner%20Weintraub%2C%20But%20Doesn%E2%80%99t%20Want%20to%20Do%20Anything%20About%20It%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

NAACP LDF: Leaders and Academics Should Not Participate in VP Pence’s “Voter Fraud” Task Force<http://electionlawblog.org/?p=91318>
Posted on February 24, 2017 6:32 pm<http://electionlawblog.org/?p=91318> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.naacpldf.org/press-release/voter-fraud-task-force-opens-door-more-voter-suppression>
Recent reports confirm that Vice President Mike Pence will lead a task force to investigate President Trump’s unproven voter fraud claims and is gathering names of individuals who will be part of it. The NAACP Legal Defense and Educational Fund, Inc. (LDF) opposes any effort to convene such a task force, and encourages responsible leaders and academics to play no role in legitimizing this effort.
The proposed White House voter fraud task force essentially doubles down on the wholly unsubstantiated insistence of the President and his team that millions of votes were cast by ineligible voters, resulting in Mr. Trump losing the popular vote. But the proposed task force to investigate unsubstantiated voter fraud claims should not be dismissed as a mere vanity project. It must be recognized for what it is: a prelude to nationwide voter intimidation and suppression. Although the justification for this task force is disconnected from reality, it constitutes a very real threat to the voters and in the communities where its work will most likely be targeted.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91318&title=NAACP%20LDF%3A%20Leaders%20and%20Academics%20Should%20Not%20Participate%20in%20VP%20Pence%E2%80%99s%20%E2%80%9CVoter%20Fraud%E2%80%9D%20Task%20Force>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Talking “Voting Rights in Trump’s America” in Austin on Thursday March 2 at Univ. of Texas Law School<http://electionlawblog.org/?p=91315>
Posted on February 24, 2017 6:27 pm<http://electionlawblog.org/?p=91315> by Rick Hasen<http://electionlawblog.org/?author=3>
Hope to see Austin folks at this ACS event <http://electionlawblog.org/wp-content/uploads/Voting-Rights-in-Trumps-America-Poster1.pdf> (with cookies!).
I’ll be giving a faculty workshop that day too, presenting Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91315&title=Talking%20%E2%80%9CVoting%20Rights%20in%20Trump%E2%80%99s%20America%E2%80%9D%20in%20Austin%20on%20Thursday%20March%202%20at%20Univ.%20of%20Texas%20Law%20School>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Ramshackle Federalism: America’s Archaic and Dysfunctional Presidential Election System”<http://electionlawblog.org/?p=91313>
Posted on February 24, 2017 6:23 pm<http://electionlawblog.org/?p=91313> by Rick Hasen<http://electionlawblog.org/?author=3>
Tony Gaughan has posted this draft<https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2919975> on SSRN (Fordham Law Review).  Here is the abstract:
Although the presidency is the most powerful public office in the United States, the federal government plays a modest role in presidential elections. Reflecting the nation’s foundation on federalist principles, federal involvement in the presidential election system is largely limited to protecting voting rights and regulating campaign contributions. The extremely decentralized nature of the American presidential election system may reflect the triumph of federalism, but it is a shambolic and ramshackle version of federalism. The uncomfortable truth is the United States relies on an archaic and dysfunctional process for electing the most powerful leader in the world.
We can and must do better. Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91313&title=%E2%80%9CRamshackle%20Federalism%3A%20America%E2%80%99s%20Archaic%20and%20Dysfunctional%20Presidential%20Election%20System%E2%80%9D>
Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

“The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform”<http://electionlawblog.org/?p=91311>
Posted on February 24, 2017 6:22 pm<http://electionlawblog.org/?p=91311> by Rick Hasen<http://electionlawblog.org/?author=3>
Tony Gaughan has posted this draft <https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2919971> on SSRN (Ohio State Law Journal).  Here is the abstract:
This article examines the 40 year history of the post-Watergate campaign finance reforms. Since Watergate, federal campaign finance law has been based on a model of low contribution limits and unlimited expenditures. That long experience provides sufficient evidence to ask and answer a fundamental question: Are we better off today than we were before the Watergate era campaign finance reforms? The thesis of this article is that the answer to that question is no. In fact, in many respects, the current system is worse than that which prevailed before Watergate.
This article concludes that contrary to the polarizing rhetoric that surrounds the national debate over campaign finance law, the historical record indicates that both reformers and their opponents offer reasonable policy alternatives to the dysfunctional system that prevails today. For example, twentieth-century political history at the federal level and ongoing experience at the state level demonstrate that a deregulated campaign finance system does not lead inevitably or necessarily to plutocracy. At the same rate, however, Canada’s experience with expenditure caps over the last 40 years shows that robust political debate and high levels of incumbent turnover are possible even within a comprehensively regulated campaign finance environment. Thus, the historical record makes clear that either approach — comprehensive regulation or sweeping deregulation — is preferable to the hybrid campaign finance system that governs American elections today.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91311&title=%E2%80%9CThe%20Forty-Year%20War%20on%20Money%20in%20Politics%3A%20Watergate%2C%20FECA%2C%20and%20the%20Future%20of%20Campaign%20Finance%20Reform%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“How Citizens United gave Republicans a bonanza of seats in U.S. state legislatures”<http://electionlawblog.org/?p=91308>
Posted on February 24, 2017 6:16 pm<http://electionlawblog.org/?p=91308> by Rick Hasen<http://electionlawblog.org/?author=3>
Nour Abdul-Razzak, Carlo Prato and Stéphane Wolton in the Monkey Cage<https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/24/how-citizens-united-gave-republicans-a-bonanza-of-seats-in-u-s-state-legislatures/?utm_term=.1889a749e69a>:
Our research <https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2823778> focuses on state legislative elections because we can more easily isolate the effect of Citizens United compared with other factors that influence election outcomes at various levels (such as the popularity of the president). Before 2010, 23 states had bans on corporations and union funding of outside spending. As a result of the court’s ruling, these states had to change their campaign laws. We can then compare the changes before and after Citizens United in these 23 states with the same changes in the 27 states whose laws did not change. The effect of the court’s ruling is then simply the differences between these two before-and-after comparisons.
We find that Citizens United increased the GOP’s average seat share in the state legislature by five percentage points. That is a large effect — large enough that, were it applied to the past twelve Congresses, partisan control of the House would have switched eight times. In line with a previous study<http://www.journals.uchicago.edu/doi/abs/10.1086/685691>, we also find that the vote share of Republican candidates increased three to four points, on average.
We also uncovered evidence that these results stem from the influence of corporations and unions. In states where union membership is relatively high and corporations relatively weak, Citizens United did not have a discernible effect on the partisan balance of the state legislature. But in states with weak unions and strong corporations, the decision appeared to increase Republican seat share by as much as 12 points.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91308&title=%E2%80%9CHow%20Citizens%20United%20gave%20Republicans%20a%20bonanza%20of%20seats%20in%20U.S.%20state%20legislatures%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

NC’s Defense of Voter ID Law Cost State $4.9 Million, With Up to $12 Million More in Plaintiffs’ Attorneys Fees Possible<http://electionlawblog.org/?p=91306>
Posted on February 24, 2017 12:57 pm<http://electionlawblog.org/?p=91306> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article134758844.html>
Through November, Republican lawmakers had spent more than $10.5 million over five years defending laws on everything from redistricting to voter ID to HB2. Almost half the money – $4.9 million – went to defend a sweeping voter law, which was overturned by a panel of federal judges but now faces possible review by the U.S. Supreme Court.
Lawmakers spent another $3.7 million defending redistricting plans, several of which are also before the high court. And they’ve spent more than $1.2 million on behalf of HB2, which faces multiple legal challenges.
Plaintiffs in the voting case will waive their right to up to $12 million in attorney’s fees from NC, if the attempt to withdraw the cert. petition is successful (the legislature is fighting it).
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91306&title=NC%E2%80%99s%20Defense%20of%20Voter%20ID%20Law%20Cost%20State%20%244.9%20Million%2C%20With%20Up%20to%20%2412%20Million%20More%20in%20Plaintiffs%E2%80%99%20Attorneys%20Fees%20Possible>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Republican Election Commissioners Just Released Key Legal Documents—Nearly a Decade Too Late”<http://electionlawblog.org/?p=91303>
Posted on February 24, 2017 10:59 am<http://electionlawblog.org/?p=91303> by Rick Hasen<http://electionlawblog.org/?author=3>
Andy Kroll<http://www.motherjones.com/politics/2017/02/federal-election-commission-republicans-mother-jones> for Mother Jones:
A strange thing happened last week at the Federal Election Commission, the nation’s watchdog for campaigns and elections. On Friday evening, the FEC’s three Republican members quietly released a slew of missing legal memos related to cases dating back as far as 10 years. The commissioners gave no reason for why they decided to act now, after a decade of silence on the cases in question.
But it turns out that the newly released memos were the result of a Freedom of Information Act request recently filed by Mother Jones. The request was a modest one and asked only for a list of all such overdue legal documents at the FEC. That list would show every case for which FEC commissioners had failed to perform a customary part of their jobs: explaining to the public why they had voted a certain way on cases that had come before the agency. Dismiss a complaint, open an investigation, assess a fine—whichever way a commissioner decides, he or she is expected to explain that decision in a memo made available to the public.
In a move that perplexed several legal experts, the FEC denied our FOIA request. Yet soon after that, the FEC’s three Republican commissioners hastily wrote and released to the public 11 of these long-overdue legal memos. When Mother Jonesasked the three Republican commissioners if our FOIA request had anything to do with their decision to act, two of them, Lee Goodman and Matthew Petersen, confirmed that it had. “Most of these were on the back burner as our reasons were either already clear or changes in the law made the issues moot,” Petersen says. “Your request was a useful reminder to bolster the record with formal statements.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91303&title=%E2%80%9CRepublican%20Election%20Commissioners%20Just%20Released%20Key%20Legal%20Documents%E2%80%94Nearly%20a%20Decade%20Too%20Late%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“Federal appeals court could reinstate Wisconsin’s early voting limits”<http://electionlawblog.org/?p=91301>
Posted on February 24, 2017 10:56 am<http://electionlawblog.org/?p=91301> by Rick Hasen<http://electionlawblog.org/?author=3>
Patrick Marley<http://www.jsonline.com/story/news/politics/2017/02/24/federal-appeals-court-hear-wisconsins-voter-id-early-voting-cases-friday/98308938/> for the Milwaukee Journal-Sentinel:
Three federal judges expressed deep skepticism Friday over claims that Wisconsin Republicans had deliberately made it harder for minorities to vote, raising the prospect they would reinstate limits on early voting.
Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals said those challenging Wisconsin’s voting laws were contending that Democrats can expand voting rules to help their party at the polls but Republicans can’t tighten them to their advantage.
“That can’t be right,” he said during arguments in a pair of Wisconsin cases.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91301&title=%E2%80%9CFederal%20appeals%20court%20could%20reinstate%20Wisconsin%E2%80%99s%20early%20voting%20limits%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Masterson Named New EAC Chairman”<http://electionlawblog.org/?p=91299>
Posted on February 24, 2017 10:40 am<http://electionlawblog.org/?p=91299> by Rick Hasen<http://electionlawblog.org/?author=3>
Congratulations!<https://www.eac.gov/masterson_named_new_eac_chairman/>
And let’s hope the EAC continues to exist throughout his tenure as chair.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91299&title=%E2%80%9CMasterson%20Named%20New%20EAC%20Chairman%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

Wisconsin Files #SCOTUS Notice of Appeal in Partisan Gerrymandering Case, Triggering Likely High Court Review Next Term<http://electionlawblog.org/?p=91295>
Posted on February 24, 2017 10:36 am<http://electionlawblog.org/?p=91295> by Rick Hasen<http://electionlawblog.org/?author=3>
This <http://www.campaignlegalcenter.org/news/press-releases/landmark-partisan-gerrymandering-case-whitford-v-gill-heads-us-supreme-court> is a big deal. (Background<http://electionlawblog.org/?p=90730> on why the Court will likely hear the case on the merits.)
Will Justice Kennedy agree to police partisan gerrymandering as his parting gift from SCOTUS?
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91295&title=Wisconsin%20Files%20%23SCOTUS%20Notice%20of%20Appeal%20in%20Partisan%20Gerrymandering%20Case%2C%20Triggering%20Likely%20High%20Court%20Review%20Next%20Term>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Breaking: Federal Court Denies Motion to Postpone Texas Voter ID Trial, Putting DOJ in Position to Change Sides in Litigation<http://electionlawblog.org/?p=91292>
Posted on February 24, 2017 8:05 am<http://electionlawblog.org/?p=91292> by Rick Hasen<http://electionlawblog.org/?author=3>
A federal district court, following a remand from the Fifth Circuit, is considering whether Texas acted with racially discriminatory intent when it passed its controversial voter identification law. The district court had already made a finding that Texas had such intent, which could provide the basis for striking down Texas’s entire voter id law, and potentially (under Section 3 of the Voting Rights Act), put the state back under federal preclearance of its voting changes for up to 10 years.
The litigation had been pushed by private plaintiffs and the US Department of Justice under the Obama Administration. But the Trump administration (which touts unsubstantiated claims of voter fraud regularly) is likely to have a different view on these issues, and could potentially switch sides.
Earlier this week, DOJ joined with Texas, but against the wishes of the private plaintiffs, asking for the trial to be put off until July, as Texas considers whether to pass legislation modifying its voter id law. A postponement would have allowed DOJ to avoid coming in, at least now, and switch positions in the case.
But today the district court denied the motion<http://electionlawblog.org/wp-content/uploads/veasey-continue-denied.pdf> for a continuance, meaning the Feb. 28 hearing is back on, and putting DOJ on the spot.  I expect it will either now take a neutral position and pull out of the litigation, or perhaps even actively support Texas.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91292&title=Breaking%3A%20Federal%20Court%20Denies%20Motion%20to%20Postpone%20Texas%20Voter%20ID%20Trial%2C%20Putting%20DOJ%20in%20Position%20to%20Change%20Sides%20in%20Litigation>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, 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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170225/01e95e5b/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/20170225/01e95e5b/attachment.png>