[EL] ELB News and Commentary 5/15/17

[Rick Hasen]

Supreme Court, Without Noted Dissent, Rejects Challenge to Hawaii’s Open Primary Law<http://electionlawblog.org/?p=92530>
Posted on May 15, 2017 6:53 am<http://electionlawblog.org/?p=92530> by Rick Hasen<http://electionlawblog.org/?author=3>
No noted dissents. <https://www.supremecourt.gov/orders/courtorders/051517zor_986b.pdf>
Back in August 2016, when the 9th Circuit decided the case<https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/15/13-17545.pdf>, I questioned <http://electionlawblog.org/?p=85333> whether the case was properly decided and if it changed the standard for considering how a party can object to the form of the primary.
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Posted in political parties<http://electionlawblog.org/?cat=25>
Breaking and Analysis: Supreme Court Denies Cert. in North Carolina Voting Case; Chief Justice Issues Statement<http://electionlawblog.org/?p=92522>
Posted on May 15, 2017 6:34 am<http://electionlawblog.org/?p=92522> by Rick Hasen<http://electionlawblog.org/?author=3>
Today the Supreme Court declined to hear<https://www.supremecourt.gov/orders/courtorders/051517zor_986b.pdf> a challenge to a Fourth Circuit decision<https://electionlawblog.org/wp-content/uploads/nc-4th.pdf> holding that a North Carolina voting law (one I’ve called the strictest set of voting rules rolled into one law passed since at least the passage of the 1965 Voting Rights Act) could not be enforced because it was passed with racially discriminatory intent.
As I have explained in this forthcoming paper,<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403> the 4th Circuit used partisan discrimination as a proxy for race discrimination in determining that North Carolina had racially discriminatory intent. This controversial theory is an important one going forward in dealing with laws passed by white Republican legislatures in Southern states for self-interested reasons. The case is so important that I had urged (in Slate)<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html> the new Democratic governor and AG in North Carolina to withdraw the cert petition. They then tried to do so, and the Legislature fought against it.
In his separate statement regarding the cert denial, the Chief Justice did not say anything on the merits, but indicated that the fight over whether the cert. petition could be withdrawn was behind the Court’s decision not to hear the case, and that this does not mean he agrees with the decision on the merits:
Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260 U. S. 482, 490 (1923).
These days at the Supreme Court, getting the Court not to hear a voting case is a significant victory. While the Court could well issue an adverse decision in the future, the 4th Circuit opinion stays on the books for now, and it has already been relied upon to hold other strict voting laws illegal (as in the Pasadena Texas case, as described in my forthcoming paper).
So to summarize: Whew!
[This post has been updated.]
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“A Seeker of Kansas Voter Fraud Gets a National Soapbox”<http://electionlawblog.org/?p=92520>
Posted on May 14, 2017 9:33 pm<http://electionlawblog.org/?p=92520> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/05/14/us/kris-kobach-voter-fraud.html?ref=politics>
Kris W. Kobach, the Kansas secretary of state, oversees an office whose clerical and regulatory work costs the state’s taxpayers barely $5.5 million a year. But he has parlayed that modest post into a national platform for tough restrictions on voting rights and immigration, becoming both a celebrated voice within the Republican Party and a regular target of lawsuits by civil rights advocates.
Now, as vice chairman of the new Advisory Commission on Election Integrity announced by the White House on Thursday<https://www.nytimes.com/2017/05/11/us/politics/trump-voter-fraud.html?_r=0> (Vice President Mike Pence is the titular chairman), Mr. Kobach has a far bigger soapbox for his views on voter fraud — which Republicans, including President Trump<https://www.nytimes.com/2017/01/25/us/politics/trump-voting-fraud-false-claim-investigation.html>, call a cancer on democracy. Others say it is a pretense for discouraging the poor, minorities and other typically Democratic-leaning voters from casting ballots.
Academic studies regularly show — and most state election officials agree — that fraud is rare, and that the kind of fraud Republicans seek to address with voter ID laws is minuscule.
Mr. Kobach promised an impartial inquiry into election vulnerabilities during an interview on Friday, saying the commission would “go where the facts take us.” But in Kansas, the facts appear at best mixed, and critics say he is one of the most partisan and polarizing figures imaginable to preside over a fair inquiry on voter fraud.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


No, “Liberal Professors” are Not “Trad[ing] Secret Emails” About Trump Voter Fraud Commission<http://electionlawblog.org/?p=92518>
Posted on May 14, 2017 9:03 pm<http://electionlawblog.org/?p=92518> by Rick Hasen<http://electionlawblog.org/?author=3>
A breathless <http://freebeacon.com/issues/liberal-professors-trade-secret-emails-effort-undermine-trump-commission/> Free Beacon story (like stories on Breitbar<http://www.breitbart.com/big-government/2017/05/11/rutgers-prof-launches-effort-to-oppose-trumps-election-integrity-commission/>t and the Daily Calle<http://dailycaller.com/2017/05/12/liberal-prof-calls-on-election-law-experts-to-boycott-trumps-voter-fraud-commission/>r) points to Professor Lorraine Minnite’s efforts via the Election Law listserv to enlist other election law academics and professionals to organize a counter effort to Trump’s “voter fraud” commission.
The Free Beacon story is worse than the others because it tries to market Professor Minnite’s efforts as part of some secret conspiracy. The headline is: “Liberal Professors Trade Secret Emails in Effort to Undermine Trump Commission.”
To begin with, the Election Law listserv, which I have managed with Professor Dan Lowenstein since 1994, has over 1000 members, and many of them are not “liberal professors.” Certainly Jim Bopp and Brad Smith, who are active participants on the list, are no one’s liberals. Nor is Lowenstein himself.
Second, the email is not secret. It is publicly posted<http://department-lists.uci.edu/pipermail/law-election/2017-May/014345.html> in the listserv’s archives.
Third, the idea of forming a counter commission to Trump’s faux “voter fraud” commission is neither new or private. On January 25, I wrote at Slate:<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/trump_s_voting_fraud_investigation_is_a_great_idea.html?wpsrc=sh_all_dt_tw_top>
Baseless allegations of voter fraud hurt our democracy. You would think after the Department of Justice under President George W. Bush spent five years investigating voter fraud with nothing to show for it<https://mobile.nytimes.com/2007/04/12/washington/12fraud.html>, the voter fraud canard would have been put to bed years ago. This call for a major investigation, if done fairly, could finally put the issue to bed. Let’s not fool ourselves into believing President Trump would order a fair investigation. But if he doesn’t, we will need a shadow investigation to counter whatever a Trump commission might put out to support its boss’ baseless conclusions.
 (My emphasis.)
So why was Prof. Minnite so exercised about the question of who sent the emails to these far right publications? Because it violates the posted rules of the listserv<http://department-lists.uci.edu/mailman/listinfo/law-election>:
Members of the press may subscribe to the listserv and may describe in general terms the substance of discussion on the list, but should not quote posted comments or attribute ideas to specific individuals without the consent of the individuals.
The listserv has operated on the idea that it is a public list, and that archives are valuable for research and educational purposes, but that people will show courtesy to others before passing messages directly to the press. Someone was quite discourteous here. But that doesn’t translate, as Free Beacon makes it, into uncovering the work of a secret liberal cabal.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Maryland Democrats’ faux redistricting reform”<http://electionlawblog.org/?p=92516>
Posted on May 14, 2017 4:21 pm<http://electionlawblog.org/?p=92516> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo editorial:<https://www.washingtonpost.com/opinions/maryland-democrats-faux-redistricting-reform/2017/05/12/e33fafa8-3683-11e7-b373-418f6849a004_story.html?utm_term=.acefec8e4a64&wpmk=MK0000200>
WITH ITS preposterously gerrymandered congressional voting districts, Maryland is an outstanding example of why states need nonpartisan redistricting reform. But the redistricting bill that emerged this year in Annapolis — in equal parts cynical and ludicrous — makes clear that the Democrats who dominate both houses of the General Assembly there remain loath to part with the incumbent-protection racket that enables them to choose their voters and perpetuate their grip on power with scant regard for good governance.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


15 Years of the Indispensable “How Appealing” Blog<http://electionlawblog.org/?p=92514>
Posted on May 14, 2017 4:18 pm<http://electionlawblog.org/?p=92514> by Rick Hasen<http://electionlawblog.org/?author=3>
I offer my thoughts and congratulation<http://howappealing.abovethelaw.com/051417.html#071576>s on Howard’s bloggiversary.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Follow the data: does a legal document link Brexit campaigns to US billionaire?”<http://electionlawblog.org/?p=92512>
Posted on May 14, 2017 4:13 pm<http://electionlawblog.org/?p=92512> by Rick Hasen<http://electionlawblog.org/?author=3>
The Guardian:<https://www.theguardian.com/technology/2017/may/14/robert-mercer-cambridge-analytica-leave-eu-referendum-brexit-campaigns>
But this signed legal document – a document that was never meant to be made public and was leaked by a concerned source – connects both Vote Leave and Leave.EU’s data firms directly to Robert Mercer, the American billionaire who bankrolled Donald Trump<https://www.theguardian.com/politics/2017/feb/26/robert-mercer-breitbart-war-on-media-steve-bannon-donald-trump-nigel-farage>.
This is a deeply complex story. It has taken three months of investigation to unravel the web of connections – both human and contractual. But these connections and threads linking two separate foreign data analytics companies – one based in Canada and one based in London – raise profound and troubling questions about our democratic process. Because these intricate links lead, in not many steps, to Robert Mercer.
This ordinary-looking document is at the heart of a web of relationships that link Mercer with the referendum to take Britain out of the EU. What impact did Mercer have on Brexit? Did the campaigns know of the link? Did they deliberately conceal it? Or could they, too, have been in the dark?
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Posted in campaigns<http://electionlawblog.org/?cat=59>


FEC Commissioner Weintraub Suggests Trump “Voter Fraud” Conclusions “Preordained”<http://electionlawblog.org/?p=92509>
Posted on May 12, 2017 1:50 pm<http://electionlawblog.org/?p=92509> by Rick Hasen<http://electionlawblog.org/?author=3>
Statement.<https://www.dropbox.com/s/yirhfsier1y20zq/ELW-statement-election-integrity-commission.pdf?dl=0>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, federal election commission<http://electionlawblog.org/?cat=24>, The Voting Wars<http://electionlawblog.org/?cat=60>


Duke Journal of Constitutional Law & Public Policy Symposium: Voting Rights in Polarized America<http://electionlawblog.org/?p=92507>
Posted on May 12, 2017 1:44 pm<http://electionlawblog.org/?p=92507> by Rick Hasen<http://electionlawblog.org/?author=3>
This looks good<http://djclpp.law.duke.edu/>:
Articles
Resurrecting Retrogression: Will Section 2 of the Voting Rights Act Revive Preclearance Nationwide?<http://djclpp.law.duke.edu/article/resurrecting-retrogression-will-section-2-of-the-voting-rights-act-revive-preclearance-nationwide/>
By: Noel H. Johnson
PDF<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1128&context=djclpp>
“The Only Clear Limitation on Improper Districting Practices”: Using One-Person, One-Vote to Combat Partisan Gerrymandering<http://djclpp.law.duke.edu/article/the-only-clear-limitation-on-improper-districting-practices-using-one-person-one-vote-to-combat-partisan-gerrymandering/>
By: Allison J. Riggs and Anita S. Earls
PDF<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1129&context=djclpp>
Illiberal Democracy: The Toxic Mix of Fake News, Hyperpolarization, and Partisan Election Administration<http://djclpp.law.duke.edu/article/illiberal-democracy-the-toxic-mix-of-fake-news-hyperpolarization-and-partisan-election-administration/>
By: Anthony J. Gaughan
PDF<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1130&context=djclpp>
North Carolina’s Racial Politics: Dred Scott Rules from the Grave<http://djclpp.law.duke.edu/article/north-carolinas-racial-politics-dred-scott-rules-from-the-grave/>
By: Irving Joyner
PDF<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1131&context=djclpp>
Why the South Matters Now: The Voting Rights Act, North Carolina, and the Long Southern Strategy<http://djclpp.law.duke.edu/article/why-the-south-matters-now-the-voting-rights-act-north-carolina-and-the-long-southern-strategy/>
By: Caitlin Swain
PDF<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1132&context=djclpp>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Justin Levitt Comments on the Trump “Voter Fraud” Commission<http://electionlawblog.org/?p=92505>
Posted on May 12, 2017 1:41 pm<http://electionlawblog.org/?p=92505> by Rick Hasen<http://electionlawblog.org/?author=3>
Take Care blog:<https://takecareblog.com/blog/the-commission-to-round-up-the-usual-suspects>
Evidence suggests that the Commission’s conclusions are also already preordained.  Kris Kobach, co-chair of the new Commission, met with President-Elect Donald Trump in November 2016, in an apparent interview to become Secretary of the Department of Homeland Security.  He carried with him a memo, photographed by the press, labeled “Kobach Strategic Plan for First 365 Days<http://www.cnn.com/2016/11/21/politics/kris-kobach-donald-trump-department-of-homeland-security/>.”  The last bullet on the page, number 23, read “Draft Amendments to National Voter …” — and the remainder was covered by Kobach’s sleeve. The full bullet almost certainly read “Draft Amendments to National Voter Registration Act,” the federal law that governs how Americans register to vote in federal elections. We’ll soon know for sure: Kobach has been ordered to turn the page over to plaintiffs<http://www.kansascity.com/news/politics-government/article149757479.html> in a pending lawsuit, by the end of this week.
What all of this likely means is that the person chosen as the new co-chair of the new Commission using federal resources to research and investigate potential election policies had, six months ago, already prepared a wish list of policies to implement.  This Commission is just the process of purporting to justify what has already been decided.
Moreover, there is absolutely no mention in the executive order of any potential costs of the policies the Commission is supposed to consider: no mention that the Commission should investigate the extent to which its preferred security theater policies actually make it more difficult for real, live Americans to exercise the franchise.  That’s a dangerously one-sided calculus<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017228> for tinkering with a fundamental right.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


Charles Stewart on New Trump “Voter Fraud” Commission: This Will Distract From Real Work of Election Reform<http://electionlawblog.org/?p=92502>
Posted on May 12, 2017 6:09 am<http://electionlawblog.org/?p=92502> by Rick Hasen<http://electionlawblog.org/?author=3>
Charles is one of the smartest and fairest people working in the field of election administration from the academic side. From his post<http://electionupdates.caltech.edu/2017/05/11/initial-thoughts-on-the-pence-commission/> today:
4. The lost opportunity.  Most people who work in the field of election administration, academics and practitioners, know that the voter registration system is less than perfect and needs help.  Democrats and Republicans alike have worked in recent years to address the vulnerabilities in this system.  In some cases, they have come together to embrace programs like ERIC (the Electronic Registration Information Center<http://www.ericstates.org/>) , in order to improve list maintenance.  In other cases, they have supported online voter registration, which holds the promise of improving the accuracy of voter lists.  The existence of a commission with a partisan framing will create barriers for non-partisan and dispassionate work in this area to proceed — not because it will necessarily politicize those already doing the hard, tedious work in this area, but because they (we) will yet again have to swat back unfounded rumors, leaving less time for the work that actually needs to get done.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


Doug Chapin Has Questions About New Trump “Voter Fraud” Commission<http://electionlawblog.org/?p=92500>
Posted on May 12, 2017 6:06 am<http://electionlawblog.org/?p=92500> by Rick Hasen<http://electionlawblog.org/?author=3>
Among Doug’s <http://editions.lib.umn.edu/electionacademy/2017/05/12/questions-about-the-new-presidential-election-integrity-commission/> questions:
What impact does this have on members of the commission?
Several members of the new commission are involved in complicated issues elsewhere. Kansas’ Kobach continues to be the target of numerous lawsuits regarding his state’s voter registration laws – and as part of those has been ordered by a court to produce documents<https://www.usnews.com/news/best-states/kansas/articles/2017-05-10/judge-orders-kansas-official-to-disclose-plan-taken-to-trump> he shared with the then President-elect on the topic of voter rolls. Maine’s Dunlap is in the middle of a dispute (which has reached the State Supreme Court<http://editions.lib.umn.edu/electionacademy/2017/03/07/parties-file-supreme-court-briefs-in-maine-ranked-choice-voting-dispute/>) over whether his state will implement ranked-choice voting for federal elections. And the EAC’s McCormick is involved in a lawsuit over the agency’s authority to add state proof-of-citizenship laws to the federal voter registration form – with a June 1 deadline<http://editions.lib.umn.edu/electionacademy/2017/03/02/hot-potato-judge-returns-proof-of-citizenship-decision-to-eac/> for responding to the court on a key issue in the case.
I’ll be curious to see how (if at all) the commission’s work affects these other developments – especially the EAC, which already faces intense Congressional scrutiny and beyond the lawsuit is carrying a heavy and broad workload in support of state and local election officials nationwide.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


Bauer on Trump Voter Fraud Commission: “election administration experts should keep their distance”<http://electionlawblog.org/?p=92498>
Posted on May 12, 2017 6:03 am<http://electionlawblog.org/?p=92498> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Bauer,<http://www.moresoftmoneyhardlaw.com/2017/05/pence-commission-public-confidence-trojan-horses/> former co-chair of the last (bipartisan) Presidential Commission on Election Administration:
This means that the only hope for the Commission to attain respectability is to build a record of consultation with the respectable. And given how the Commission is organized–its leadership, the background of presidential claims, and its disingenuous plan to “enhance” the very public confidence that it is undermining –election administration experts should keep their distance. Or they will be, in a word, used. Their cooperation will allow for the Administration to pretend to have had serious bipartisan support for its work, which can be expected to result in politically charged claims and legislative and other proposals to restrict the right to vote.
One of the named Commissioners has committed to speak up<http://talkingpointsmemo.com/muckraker/dem-on-voter-fraud-panel> if the Commission turns out to be a “Trojan horse” for delivering any such voting rights infringements. But the Trojan horse was an act of cunning, a deception. The Commission has been set up with its purposes quite openly advertised: it has been positioned within the city gates, to spare it the need to be sneaked in. The members of the community under invasion should retreat into their houses and lock their doors<http://www.moresoftmoneyhardlaw.com/2017/02/choosing-respond-pence-commission/>.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


--
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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