[EL] ELB News and Commentary 7/3/17

Mon Jul 3 09:42:42 PDT 2017

Connecticut SOS Changes Her Mind About Cooperating with Pence-Kobach Commission<http://electionlawblog.org/?p=93524>
Posted on July 3, 2017 9:35 am<http://electionlawblog.org/?p=93524> by Rick Hasen<http://electionlawblog.org/?author=3>
Celeste Katz:<https://mic.com/articles/181347/connecticuts-secretary-of-state-has-a-few-questions-about-donald-trumps-voter-fraud-panel?utm_campaign=ckatz+twitter&utm_content=buffer3f57b&utm_medium=social&utm_source=twitter.com#.XIlOsWLpp>
When President Donald Trump’s new Commission on Election Integrity<https://mic.com/articles/180997/as-white-house-election-integrity-panel-begins-work-civil-rights-watchdogs-set-up-a-hotline#.Mg6ke0OYF> sent out a request<https://www.scribd.com/document/352564920/Correspondence-PEIC-Letter-to-North-Carolina-06282017> for reams of personal information about voters, Denise Merrill was skeptical — but tentatively cooperative.
The Connecticut secretary of state released a statement<http://www.sots.ct.gov/sots/lib/sots/releases/2017/06-29-2017_-kobach_commission.pdf> saying that “in the spirit of transparency,” she would release publicly available information, while still “ensuring that the privacy of voters is honored by withholding protected data.”
But that very issue of transparency — specifically, questions about how the commission intends to use the data — led Merrill to inform the panel she won’t be playing along after all.
“I am in receipt of your request for information and have concluded that fulfilling your request is not in the best interest of Connecticut residents,” Merrill wrote to her Kansas counterpart, Kris Kobach, who’s chairing the panel with Vice President Mike Pence<https://mic.com/topic/mike-pence>.
Merrill’s letter<https://www.scribd.com/document/352805756/Merrill-Response-to-Kris-Kobach-Presidential-Advisory-Commission-on-Election-Integrity> is dated July 2, the day after Trump questioned what states are “trying to hide” by refusing to hand over information to the “very distinguished VOTER FRAUD PANEL.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Confident and Assertive, Gorsuch Hurries to Make His Mark”<http://electionlawblog.org/?p=93522>
Posted on July 3, 2017 9:32 am<http://electionlawblog.org/?p=93522> by Rick Hasen<http://electionlawblog.org/?author=3>
Adam Liptak NYT Sidebar:<https://www.nytimes.com/2017/07/03/us/politics/neil-gorsuch-supreme-court.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=sectionfront&_r=0>
Justice Robert H. Jackson rejected Chief Justice Charles Evans Hughes’s estimate of three years to “get acclimated,” saying it was “nearer to five.”
Judging by Justice Gorsuch’s early opinions, he is fully acclimated.
In June alone, in addition to his only majority opinion of the term, he wrote seven others: three dissents, three concurrences and a statement<https://www.supremecourt.gov/opinions/16pdf/16-1077_p8k0.pdf> urging the court to take up a legal question “at its next opportunity.” By comparison<https://twitter.com/steve_vladeck/status/879702294178144256>, Justice Elena Kagan, the next most junior justice, wrote seven dissents and concurrences in her first two terms.
Justice Gorsuch cheered his supporters with conservative votes on President Trump’s travel ban<https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf>, gun rights<https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf>, money in politics<https://www.supremecourt.gov/orders/courtorders/052217zor_4gd5.pdf>, the separation of church and state<https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf> and the sweep of<https://www.supremecourt.gov/opinions/16pdf/16-992_868c.pdf> the court’s 2015 decision<https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf> establishing a right to same-sex marriage.
But his most forceful statements came in otherwise forgettable decisions.
Adam’s column is in line with my own view <http://www.latimes.com/opinion/op-ed/la-oe-hasen-gorsuch-scalia-20170627-story.html> from my oped in last week’s LA Times:
Usually it takes a few years to get the full sense of a new justice. The job provides awesome power, and new justices often are reluctant to issue stark opinions or stake out strong positions early on. Chief Justice John Roberts<http://www.latimes.com/topic/crime-law-justice/justice-system/john-roberts-PEPLT00008040-topic.html> and Justice Samuel Alito<http://www.latimes.com/topic/crime-law-justice/justice-system/samuel-a.-alito-PEPLT00008041-topic.html>, for example, were at first cautious on campaign finance<https://www.law.cornell.edu/supct/html/06-969.ZO.html> and voting rights issues<https://supreme.justia.com/cases/federal/us/557/193/opinion.html>. Only later did they sign on to blockbuster decisions like 2010’s Citizens United<https://www.law.cornell.edu/supct/html/08-205.ZS.html> campaign finance case (allowing corporations to spend unlimited sums in elections) or 2013’s Shelby County<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> voting case (in effect killing off a key Voting Rights Act provision).
Not so with Gorsuch. In a flurry of orders and opinions issued Monday, Gorsuch went his own way. The majority affirmed<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf> the right of same-sex parents to have both their names appear on birth certificates, but Gorsuch dissented. The majority chose not to hear<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf> a challenge to California’s public carry gun law, thus leaving it in place, but Gorsuch dissented. Gorsuch also wrote separately in the Trinity Lutheran case<https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf>, on whether a parochial school may take government money for playground safety equipment. The court found in favor of the school, but Gorsuch went even further to the right in endorsing the government’s ability to aid religious organizations. This followed his dissent with Justice Clarence Thomas<http://electionlawblog.org/?p=92665> a few weeks ago over the court’s failure to consider overturning the “soft money ban” in the McCain-Feingold campaign finance law.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Trump says states are ‘trying to hide’ things from his voter fraud commission. Here’s what they actually say.”<http://electionlawblog.org/?p=93519>
Posted on July 3, 2017 9:23 am<http://electionlawblog.org/?p=93519> by Rick Hasen<http://electionlawblog.org/?author=3>
WonkBlog.<https://www.washingtonpost.com/news/wonk/wp/2017/07/01/trump-says-states-are-trying-to-hide-things-from-his-voter-fraud-commission-heres-what-they-actually-say/?utm_term=.5e3c640d4a17>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Trump launches his opening voter suppression salvo”<http://electionlawblog.org/?p=93517>
Posted on July 3, 2017 9:11 am<http://electionlawblog.org/?p=93517> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo editorial.<https://www.washingtonpost.com/opinions/trump-launches-his-opening-voter-suppression-salvo/2017/07/02/a525561a-5dd3-11e7-9b7d-14576dc0f39d_story.html?utm_term=.70ae68c6fbd7&wpmk=MK0000200>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“House Republicans Want to Eliminate Federal Election Assistance Agency”<http://electionlawblog.org/?p=93515>
Posted on July 3, 2017 8:46 am<http://electionlawblog.org/?p=93515> by Rick Hasen<http://electionlawblog.org/?author=3>
Government Executive:<http://m.govexec.com/management/2017/06/house-republicans-want-eliminate-federal-election-assistance-agency/139123/>
A spending bill from the House Appropriations Committee unveiled Thursday would give the Election Assistance Commission<https://www.eac.gov/election-officials/election-management-guidelines/> 60 days to terminate itself. The small agency was created after the tightly contested 2000 presidential election. It has an annual budget of about $10 million and had just 31 employees on its rolls as of March. The agency writes election management guidelines and develops specifications for testing and certifying voting systems, among other tasks.
The House Administration Committee first proposed the elimination earlier this year before the fiscal 2018 appropriations bill also slated the agency to shutter its doors. Republicans argued during a markup Thursday the agency was always intended to be temporary and other federal offices, such as the Federal Elections Commission, could easily assume its responsibilities.
Democrats introduced an amendment at the markup to save the agency, arguing that its role was more important than ever given the attempts by the Russian government to interfere with the 2016 election. Republicans rejected that line of thinking, noting the Homeland Security Department, and not EAC, has jurisdiction over election-related cybersecurity issues.
Brenda Bowser Soder, an EAC spokeswoman, said the agency has been “active in the conversation around cybersecurity for a long time.” EAC, she explained, provides cybersecurity experts with information on election processes. She added the agency helps to increase voting access, boost security and update election equipment.
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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>

“Voting Fights in the States”<http://electionlawblog.org/?p=93513>
Posted on July 3, 2017 8:39 am<http://electionlawblog.org/?p=93513> by Rick Hasen<http://electionlawblog.org/?author=3>
Miles Rapoport:<http://prospect.org/article/voting-fights-states>
Well, it’s now the end of June, and while some legislatures are still in session, the great majority have finished their business for the year. Several states have indeed passed bad bills. But, overall, the results are significantly better, both in staving off voter-suppression efforts and in expanding voting rights and voting access, than one might have expected as the sessions began.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Justice Kennedy Tells October 2018 Clerkship Applicants He’s Considering Retirement, Right Before 2018 Midterms<http://electionlawblog.org/?p=93506>
Posted on July 2, 2017 4:38 pm<http://electionlawblog.org/?p=93506> by Rick Hasen<http://electionlawblog.org/?author=3>
Big news<http://www.npr.org/2017/07/01/535085491/justice-neil-gorsuch-votes-100-percent-of-the-time-with-most-conservative-collea> hiding in Nina Totenberg’s story on Justice Gorsuch voting 100% with Justice Thomas:
But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.
Kennedy’s position on the court is more than consequential. In the most hotly contested and closely divided cases, his vote often decides the outcome. With every passing day, it has become more clear that President Trump’s first Supreme Court nominee, Neil Gorsuch, is probably even more conservative than the justice he replaced, Antonin Scalia.
This would put Justice Kennedy’s retirement right before the 2018 midterms, giving the Republican base reasons to turn out and keep the Senate with a Republican majority <https://t.co/R2TVAQJJ9A> (already a strong possibility in 2018).
He’ll be able to go out on a high note, deciding the fate of partisan gerrymandering, gay rights, and who knows what else.
UPDATE: Republicans in the Senate would have a strategic decision to make: try to confirm a replacement before the elections, or use it as a tool to boost midterm turnout.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Dale Ho on Kobach Sanctions for Misleading Court: “Dog Ate His Homework”<http://electionlawblog.org/?p=93503>
Posted on July 1, 2017 6:20 pm<http://electionlawblog.org/?p=93503> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPo:<http://www.huffingtonpost.com/entry/kris-kobach-sanctions_us_5957b65be4b05c37bb7eaa19>
Kansas Secretary of State Kris Kobach asked a federal court this week to reconsider sanctions imposed against him after the judge ruled he made “patently misleading representations” to the court about the contents of voting rights documents he was photographed holding while meeting with Donald Trump<http://www.huffingtonpost.com/topic/donald-trump> in November…..
Kobach filed a motion to reconsider<https://www.scribd.com/document/352670767/Kris-Kobach-Sanctions-Reconsideration#from_embed> the “manifestly unjust” sanctions Thursday, saying he didn’t intentionally mislead the court. Instead, he said, he eliminated four pages of arguments from a brief his attorney was drafting in order to get it down to the page limit as a filing deadline approached. In the Thursday motion, Kobach says that last-minute cut eliminated crucial context in the 30-page brief<https://www.scribd.com/document/352673988/Kris-Kobach-memo-on-turning-over-documents> for his argument for why the NVRA amendment documents were irrelevant to the lawsuit and that his attorney lacked time to review the edits because Kobach sent them to him at 10:30 p.m. on the day the brief was due….
Dale Ho, director of the ACLU’s voting rights project and a lawyer in the case, summarized Kobach’s editing excuse in an email response to HuffPost.
“Dog ate his homework.”

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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
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