[EL] ELB News and Commentary 1/8/17

Sun Jan 8 12:43:30 PST 2017

North Carolina Files Supreme Court Cert. Petition in Major Voting Law Case; What Happens Now with Democratic Gov. and AG?<http://electionlawblog.org/?p=90374>
Posted on January 8, 2017 12:06 pm<http://electionlawblog.org/?p=90374> by Rick Hasen<http://electionlawblog.org/?author=3>
Back in July, the Fourth Circuit struck down<https://electionlawblog.org/wp-content/uploads/nc-4th.pdf>  North Carolina’s “monster” voting law, a law which among other things imposed a strict voter id requirement (later watered down in the face of litigation), cutback early voting, killed same day voter registration, eliminated the counting of out-of precinct ballots, and ended preregistration of 16- and 17-year-old high school students. The court, reversing the trial court, held the law was motivated by racially discriminatory intent.
Just before the end of the year and five days before the change in governors from Republican McCrory to Democrat Cooper (and after two extensions<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-833.htm>), North Carolina filed this brief<http://electionlawblog.org/wp-content/uploads/North-Carolina-Voter-ID-Cert-Petition-FINAL.pdf> seeking Supreme Court review of the decision. The brief offers three arguments for review, including this one:
Second, the Fourth Circuit’s decision addresses an extraordinarily important question in a way that is egregiously misguided and that threatens numerous State election laws. Simply put, the decision insults the people of North Carolina and their elected representatives by convicting them of abject racism. That charge is incredible on its face given the pains the legislature took to ensure that no one’s right to vote would be abridged, and the fact that the reforms align North Carolina with the majority of current State practices. It becomes even more perplexing given that the Fourth Circuit did not disturb the district court’s findings that the reforms have no discriminatory effect. And it becomes downright absurd given that the Fourth Circuit bluntly overrode the district court’s meticulous findings on a classic fact question—intent—reached after weeks of trial. Worst of all, the basis for the Fourth Circuit’s decision is not specific to North Carolina. On the contrary, the panel’s “evidence” showing discriminatory intent would overturn election laws in numerous States. A federal circuit should not take a step of such enormity without this Court’s review.
I think there is a fairly good chance the Supreme Court takes this case for review, if the Court’s conservatives believe they will soon be joined by a fifth member. It is also possible the case will be held for resolution of Texas’s voter id cert. decision (a decision on cert in that case could come as early<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-393.htm> as tomorrow).  Texas’s case, though, concerns the discriminatory effects test under Section 2 and the North Carolina case concerns discriminatory intent. Still the NC cert. petition tries to tie the two together (perhaps hoping for an eventual GVR in light of Texas).
But one interesting question is what happens to this litigation now that the governor is a Democrat who has opposed this law. When the new Governor (Cooper) was the attorney general, the old governor (McCrory) appointed private counsel to represent the state’s interest in the case. (See this interesting LA Times oped by Neal Devins and Sai Prakash <http://www.latimes.com/opinion/op-ed/la-oe-0418-devinsprakash-attorneys-general-refusal-to-defend-20160418-story.html> on what happens when attorneys general won’t defend laws they disagree with.)  But now there’s Governor Cooper. What power does he have here? Can we withdraw the case?  Concede issues in the reply brief? Can the Legislature seek to intervene at this point and take over the litigation?
These all seem to me to be questions of state law as to who can speak for North Carolina, and I don’t know the answers to those questions.  Would love to hear from those who do.
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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>

President Obama Mentions Redistricting in Explaining Democratic Losses During His Tenure<http://electionlawblog.org/?p=90370>
Posted on January 8, 2017 11:08 am<http://electionlawblog.org/?p=90370> by Rick Hasen<http://electionlawblog.org/?author=3>
ABC “This Week” interview via Politico Playbook:
“I take some responsibility on that. I — I think that some of it was circumstances. If you look at — what happened, I came in in the middle of the worst financial crisis since the Great Depression. And unlike FDR who waited– well, didn’t take office until about three years into the Great Depression, it was happening just as I was elected. I think we did a really good job in saving this economy and putting us back on the track of growth. But what that meant is in 2010 there were a lot of folks who were still out of work. There were a lot of folks who had lost their homes or saw their home values plummet, their 401k’s plummet. And we were just at the beginnings of a recovery. And the, you know, whoever is president at that point is gonna get hit and his party’s gonna get hit. That then means that suddenly you’ve got a redistricting in which a lot of state legislatures are now Republican. They draw lines that give a huge structural advantage in subsequent elections.
“So — so some of this was circumstances . But what I think that what is also true is that partly because my docket was really full here, so I couldn’t be both chief organizer of the Democratic Party and function as Commander-in-Chief and President of the United States. We did not begin what I think needs to happen over the long haul, and that is rebuild the Democratic Party at the ground level.”

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

FCC Issues Orders Related to Broadcasters’ Obligations to Disclose Information About Political Advertising<http://electionlawblog.org/?p=90366>
Posted on January 8, 2017 11:05 am<http://electionlawblog.org/?p=90366> by Rick Hasen<http://electionlawblog.org/?author=3>
After complaints from the Campaign Legal Center and the Sunlight Foundation, the FCC issued these two<http://electionlawblog.org/wp-content/uploads/2017-01-06-MB-Order-re-WCPO-political-file-complaint-DA-17-15A1.pdf> orders<http://electionlawblog.org/wp-content/uploads/2017-01-06-MB-Order-re-2014-political-file-complaints-DA-17-14A11.pdf> admonishing some broadcasters for not following disclosure rules and clarifying those disclosure rules for the future.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

8th Circuit Denies ACLU Request to Use Cumulative Voting in Ferguson MO. School Board Voting Case<http://electionlawblog.org/?p=90362>
Posted on January 7, 2017 1:57 pm<http://electionlawblog.org/?p=90362> by Rick Hasen<http://electionlawblog.org/?author=3>
A few months ago<https://www.aclu.org/news/federal-court-rules-ferguson-school-district-violated-voting-rights-act> a federal district court ruled that the use of at-large voting in Missouri’s Ferguson-Florrisant school district diluted African-American voting rights in violation of the Voting Rights Act and the Court ordered cumulative voting as a remedy.
Then the judge decided to grant a stay so that the ruling would not apply to the upcoming elections, allowing those elections to go forward using regular, at-large voting.
The ACLU asked<http://news.stlpublicradio.org/post/appeals-court-denies-aclus-request-ferguson-florissant-voting-rights-appeal#stream/0> the Eighth Circuit to require cumulative voting for the upcoming elections, givent the earlier findings.
The Eighth Circuit has now denied the request,<https://www.documentcloud.org/documents/3253329-NACCP-FERg-Flor-Appeal-Denied.html> without explanation.
The appeal remains pending.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Senate Confirmation Hearings to Begin Without All Background Checks”<http://electionlawblog.org/?p=90360>
Posted on January 7, 2017 11:25 am<http://electionlawblog.org/?p=90360> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2017/01/07/us/politics/senate-confirmation-hearings-background-checks.html?_r=0>
In a letter to Senators Chuck Schumer of New York and Elizabeth Warren of Massachusetts, the head of the Office of Government Ethics, Walter M. Shaub Jr., said on Friday that “the announced hearing schedule for several nominees who have not completed the ethics review process is of great concern to me.”
He said the packed schedule had put “undue pressure” on the office to rush its reviews of the nominees and he knew of no other occasion in the office’s four decades when the Senate had held a confirmation hearing before the review was completed.
Mr. Schumer responded on Saturday by saying that the letter had made clear that the Trump transition team colluded with Senate Republicans to “jam through” the nominees. Several of the nominees are millionaires or billionaires and have vast webs of financial interests that must be untangled.
Richard W. Painter, a law professor at the University of Minnesota who served as chief ethics counsel to President George W. Bush, said he thought none of the nominees could receive a full vote on the Senate floor before the vetting was complete. Norman Eisen, Mr. Obama’s ethics counsel in his first term, said the paperwork delays were “totally unheard-of.”
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>

“Every RCV Election in the Bay Area So Far Has Produced Condorcet Winners”<http://electionlawblog.org/?p=90358>
Posted on January 7, 2017 10:49 am<http://electionlawblog.org/?p=90358> by Rick Hasen<http://electionlawblog.org/?author=3>
FairVote blogs.<http://www.fairvote.org/every_rcv_election_in_the_bay_area_so_far_has_produced_condorcet_winners>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“FEC Draft Would End Socialists’ Waiver of Disclosure”<http://electionlawblog.org/?p=90356>
Posted on January 7, 2017 10:22 am<http://electionlawblog.org/?p=90356> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=103008925&vname=mpebulallissues&jd=a0k6x8m1g7&split=0>:
The Federal Election Commission would end the Socialist Workers Party’s nearly 40-year-old exemption from campaign finance disclosure laws under a proposed ruling set to be considered by the FEC commissioners Jan. 12.
A draft advisory opinion (AO 2016-23) requested by lawyers for the party, known as the SWP, and its national campaign committee was released by the FEC Jan. 6. The draft would deny what previously has been almost routine renewal over four decades of the party’s exemption from disclosure rules. The party was exempted from disclosure of its donors and vendors due to evidence of threats to its supporters….
The newly released FEC draft regarding the Socialist Workers Party said: “The Commission concludes that the public interest would be served by disclosure of SWP’s contributors and vendors … and that the SWP has not demonstrated a reasonable probability that disclosing its contributors and vendors will subject those persons to threats, harassment, or reprisals.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Read the NC Three-Judge Court Order Grant. Gov. Cooper’s Preliminary Injunction Against Killing NC Election Commission<http://electionlawblog.org/?p=90354>
Posted on January 7, 2017 10:20 am<http://electionlawblog.org/?p=90354> by Rick Hasen<http://electionlawblog.org/?author=3>
Read it here.<https://www.dropbox.com/s/zpr6s67c73phdcu/Order_PI_(signed)_2017-01-07.pdf?dl=0>
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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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