[EL] ELB News and Commentary 7/26/17

Tue Jul 25 20:41:10 PDT 2017

“Pasadena mayor, council could see terms extended more than a year because of new California election law”<http://electionlawblog.org/?p=94046>
Posted on July 25, 2017 8:34 pm<http://electionlawblog.org/?p=94046> by Rick Hasen<http://electionlawblog.org/?author=3>
Pasadena Star-News:<http://www.pasadenastarnews.com/general-news/20170725/pasadena-mayor-council-could-see-terms-extended-more-than-a-year-because-of-new-california-election-law>
Sweeping changes to California’s election dates could extend Pasadena’s mayor and half the City Council’s terms by more than a year.
California Attorney General Xavier Becerra determined earlier this month that charter cities, like Pasadena, must comply with the California Voter Participation Rights Act, a law signed in 2015 that will force cities to hold their elections in even years, when state or federal officers are also on the ballot.
The law specifically forbids cities from holding their own elections when the average turnout is 25 percent less than statewide races.
“This is an issue that is going to consume us into the future,” said Mayor Terry Tornek as the City Council weighed their options Monday.
Becerra’s opinion means Pasadena may also have to shift its election dates.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Federal Court Affirms $1000 Fine Against Kris Kobach for Misleading Court on Voting Documents Presented to Trump<http://electionlawblog.org/?p=94041>
Posted on July 25, 2017 2:33 pm<http://electionlawblog.org/?p=94041> by Rick Hasen<http://electionlawblog.org/?author=3>
So reports<https://twitter.com/jonshorman/status/889960504344662017> Jonathan Shorman.
Update: The district court’s opinion reviewing an earlier magistrate judge’s sanctions order against Kobach is here<http://electionlawblog.org/wp-content/uploads/374-Ord.-Denying-Def.s-Mot.-for-Review.pdf>. Particularly noteworthy is the district court’s comment that SOS Kobach’s conduct “demonstrate a pattern” of misleading statements to the court showing Kobach’s lack of credibility:
The undersigned echoes Judge O’Hara’s warning in the Order compelling production that “when any lawyer takes an unsupportable position in a simple matter such as this, it hurts his or her credibility when the court considers arguments on much more complex and nuanced matters.” Doc. 320 at 8 n.22. These are not the only two statements made or positions taken by Secretary Kobach that have called his credibility into question. See  Doc. 338 at 18–19 & n.59 (discussing xontradictions between position taken in response to class certification, and later on mootness issues); Doc. 145 at 2–4 (discussing Defendant’s misleading recitation of the record before this Court at the time it ruled on the preliminary injunction motion in his motion for stay pending appeal); see also Bednasek v. Kobach , Case No. 15-9300, Doc. 165 at 12 n.23 (documenting Defendant’s mischaracterization of summary judgment exhibit). Indeed, his assertion in this motion for review that his editing explanation was fairly raised before Judge O’Hara in the first instance is precipitously close to unsupportable. While these examples do not form the basis for any sanctions award imposed by Judge O’Hara, they do demonstrate a pattern, which gives further credence to Judge O’Hara’s conclusion that a sanctions award is necessary to deter defense counsel in this case from misleading the Court about the facts and record in the future.

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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“What does the US election integrity commission need to be credible? Some actual experts”<http://electionlawblog.org/?p=94039>
Posted on July 25, 2017 1:03 pm<http://electionlawblog.org/?p=94039> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Halpern and Michael Latner in The Guardian<https://www.theguardian.com/science/political-science/2017/jul/25/what-does-the-us-presidential-election-integrity-commission-need-to-be-credible-some-actual-experts>:
But by far the most glaring omission in membership concerns people who can most effectively evaluate data on elections and voter fraud: election scientists. The last commission<https://electionlawblog.org/?p=58109>, headed by Obama White House Counsel Bob Bauer and Mitt Romney’s election lawyer Ben Ginsberg, brought on Stanford political scientist Nathaniel Persily to direct research.
Persily is an expert with a reputation for impartial, careful work. The new commission currently has no political scientists or election experts needed to investigate allegations of voter fraud or voter suppression. Instead, President Trump has packed the commission with attorneys like J. Christian Adams, Hans von Spakovsky, and Christy McCormick, all of whom have specialized in bringing unsupported allegations of voter fraud, and are outspoken advocates for more restrictive voter eligibility requirements.
As a result, the commission’s first meeting sounded more like a bunch of fanatics attempting to justify a self-fulfilling prophecy than experts asking serious questions. Christy McCormick claimed that she had personally witnessed misconduct at polls, and von Spakovsky repeatedly insisted that mass voter fraud exists across the country, even though nobody had any evidence to support such claims. After the meeting, Commission Chair Kris Kobach went so far as to tell the press that “we may never know<https://www.usatoday.com/story/news/politics/onpolitics/2017/07/19/kris-kobach-we-may-never-know-who-won-2016-popular-vote/493190001/>” if President Trump may have won the popular vote.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Due Process of Lawmaking and the Obamacare Repeal”<http://electionlawblog.org/?p=94037>
Posted on July 25, 2017 12:00 pm<http://electionlawblog.org/?p=94037> by Rick Hasen<http://electionlawblog.org/?author=3>
Abbe Gluck:<http://balkin.blogspot.com/2017/07/due-process-of-lawmaking-and-obamacare.html>
So what will they do instead? Instead of having the hard debate<http://www.vox.com/the-big-idea/2017/3/6/14826974/health-care-aca-philosophy-republican-obamacare> about what a health care system really is supposed to do for its citizens  (this is the debate about the tension between solidarity and “every man for himself” that we have seen underlying some of the principled Republican resistance to earlier versions of the repealer), the Republicans are going to pass a bill whose content they don’t know and, if they cannot agree on such a bill, they are going to simply repeal the core components of the ACA without a replacement, throwing the insurance markets that they claim they are working to save from the “Obamacare disaster”  into even greater disarray. (For my previous documentation of how it was largely the Republican sabotage of the law, not the ACA itself, that caused the instability, please see here<https://www.nytimes.com/2017/05/25/opinion/republicans-obamacare-aca.html?_r=0>.)
As for the unorthodox process, it is true, as I write<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2699993> with Anne O’Connell, that “unorthodox lawmaking” is on the rise.  The ACA was not the first bill to be passed using “reconciliation”–a fast-track procedure devised for the budget process that avoids a filibuster–and any potential ACA repealer won’t be the last.
But let’s be clear: Only a very small part of the ACA was actually passed by reconciliation. All of the major components–including the insurance exchanges and subsidies and the Medicaid expansion– were passed by good old fashioned school-house rock voting, filibuster and all.  By contrast, the Republicans, who do not have the votes to avoid a filibuster are going to use the very same unorthodox procedure they pilloried to pull the whole statute down.
This is repeal for repeal’s sake.  It’s not about policy. It’s all about politics. And of course, it’s also about human lives.  What would Hans Linde say?
Our Supreme Court has never been willing to strike down a federal statute for lack of deliberation. Instead it has acted more indirectly, devising deliberation-forcing canons of interpretation that require Congress to speak clearly before a statute would be read to trample on certain values. We have canons that protect federalism, arbitration, bankruptcy, jurisdiction, and countless other subjects, some embracing constitutional values, others simply embracing policy values.  But we do not yet have a canon that protects the basic legislative value of deliberation.  Today’s events in the Senate raise the question whether we should.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“After legal victory, Kobach says states will be sent new letter for voter information”<http://electionlawblog.org/?p=94035>
Posted on July 25, 2017 8:57 am<http://electionlawblog.org/?p=94035> by Rick Hasen<http://electionlawblog.org/?author=3>
The KC Star reports.<http://www.kansascity.com/news/politics-government/article163476738.html>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Voter fraud is rare, Ohio secretary of state tells Trump’s election integrity commission”<http://electionlawblog.org/?p=94033>
Posted on July 25, 2017 7:34 am<http://electionlawblog.org/?p=94033> by Rick Hasen<http://electionlawblog.org/?author=3>
Cleveland.com reports.<http://www.cleveland.com/metro/index.ssf/2017/07/voter_fraud_is_rare_ohio_secre.html>

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Democrats’ short-lived 2012 recall victory led to key evidence in partisan gerrymandering case”<http://electionlawblog.org/?p=94031>
Posted on July 25, 2017 7:31 am<http://electionlawblog.org/?p=94031> by Rick Hasen<http://electionlawblog.org/?author=3>
Madison.com:<http://host.madison.com/news/local/govt-and-politics/article_d5cfb956-6e93-5c81-8403-050493b5412e.html>
By most accounts, the 2011 and 2012 gubernatorial and Senate recall elections were a complete disaster for Wisconsin Democrats.
Gov. Scott Walker’s historic victory boosted his fundraising and re-election prospects. The recall petition became a litmus test for party loyalty. And though Democrats recaptured the Senate majority in June 2012, they lost it five months later and have been shut out of state government ever since.
But some Democrats see a silver lining in the recalls that has gone mostly unnoticed until now: The unearthing of key evidence in a potentially landmark legislative redistricting case now before the U.S. Supreme Court.
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Posted in recall elections<http://electionlawblog.org/?cat=11>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

--
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
949.824.0495 - fax
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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