[EL] ELB News and Commentary 5/31/17

Wed May 31 07:44:19 PDT 2017

“Clinton: Voter suppression helped cost me the election”<http://electionlawblog.org/?p=92877>
Posted on May 31, 2017 7:39 am<http://electionlawblog.org/?p=92877> by Rick Hasen<http://electionlawblog.org/?author=3>
Zack Roth<https://thedailydemocracy.org/2017/05/29/clinton-voter-suppression-helped-cost-me-the-election/> for The Daily Democracy:
Hillary Clinton has suggested she’d be president today were it not for restrictions on voting in place in last year’s election. The truth is probably more complicated.
In an interview<http://nymag.com/daily/intelligencer/2017/05/hillary-clinton-life-after-election.html?mid=nymag_press> with New York magazine, Clinton was asked about the performance of her campaign team, which has come in for criticism since her shock loss last November.
“What I was doing was working,” Clinton responded. “I would have won had I not been subjected to the unprecedented attacks by Comey and the Russians, aided and abetted by the suppression of the vote, particularly in Wisconsin.”
Clinton’s identification of Comey, the Russians, and voter suppression as making up the trifecta of factors that doomed her presidential bid is in sync with the views of many Democrats. But a closer look at the impact of voting restrictions suggests a murkier picture.
The day after the election, I wrote at TPM: Democrats Blame ‘Voter Suppression’ For Clinton Loss At Their Peril<http://talkingpointsmemo.com/cafe/dems-blame-voter-suppression-for-loss>. It is pretty clear that some on the left are still looking for excuses rather than addressing how to make the party more appealing to voters.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

GOP Illinois Governor Will Sign Automatic Voter Registration After Vetoing It Last Year”<http://electionlawblog.org/?p=92875>
Posted on May 31, 2017 7:33 am<http://electionlawblog.org/?p=92875> by Rick Hasen<http://electionlawblog.org/?author=3>
Sam Levine<http://www.huffingtonpost.com/entry/illinois-automatic-voter-registration_us_592dd842e4b0c0608e8c320f> for HuffPo:
Illinois Gov. Bruce Rauner (R) intends to sign legislation supported by both chambers of the Illinois legislature that will automatically register people to vote when they interact with state drivers’ facilities and other state agencies.
The decision to sign the legislation marks a big victory for voting rights advocates. Rauner vetoed a similar<http://www.chicagotribune.com/news/local/politics/ct-bruce-rauner-veto-automatic-voter-registration-met-0813-20160812-story.html> measure last year. At the time, he said the legislation would “inadvertently open the door to voter fraud and run afoul of federal election law.”
But a few changes were apparently enough to convince Rauner to sign on to automatic voter registration, which has already led to considerable gains in the number of registered voters in Oregon, the first state to implement it last year. Illinois would be the ninth state to adopt automatic voter registration, and advocates estimate it could add over 1 million voters to the state’s rolls.
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Posted in voter registration<http://electionlawblog.org/?cat=37>

“Maine’s citizens passed ‘ranked-choice voting.’ Why did Republicans shoot it down?”<http://electionlawblog.org/?p=92873>
Posted on May 31, 2017 7:28 am<http://electionlawblog.org/?p=92873> by Rick Hasen<http://electionlawblog.org/?author=3>
Jack Santucci <https://www.washingtonpost.com/news/monkey-cage/wp/2017/05/31/maines-citizens-passed-ranked-choice-voting-why-did-republicans-shoot-it-down/?utm_term=.2ff79823c76e> for the Monkey Cage:
Last fall, Maine voters passed an experiment in voting that no state has ever before tried: ranked-choice voting. It’s an experiment some say could change the national calculus against third parties, as I’ll explain below. But the state’s Republican-led Senate asked Maine’s Supreme Court to rule on the system — and the court recently issued an advisory ruling<http://bangordailynews.com/2017/05/23/politics/maine-supreme-judicial-court-rules-ranked-choice-voting-unconstitutional/> that ranked-choice violates the state constitution.
So why would anyone be interested in ranked-choice voting — and why are Maine’s Republicans fighting it?
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

Red State Election Law and Blue State Election Law Gap Widening<http://electionlawblog.org/?p=92871>
Posted on May 31, 2017 7:21 am<http://electionlawblog.org/?p=92871> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ve long talked <http://scholarship.law.uci.edu/faculty_scholarship/493/> about the emergence of “red state” election law and “blue state” election law, and the trend seems to be accelerating.
Paul Waldman:<https://www.washingtonpost.com/blogs/plum-line/wp/2017/05/30/on-voting-rights-were-becoming-two-separate-and-unequal-countries/?utm_term=.bbf1e921a211&wpmk=MK0000200>
America, as we all know, is a deeply divided nation, split along lines of class and race and culture and politics. And in this most polarized time, the two parties are pulling the places where they dominate further apart, creating a red and blue America that can be profoundly different depending on what side of a state line you stand on.
In few areas is this more evident than in the way the parties treat the ballot.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Optimal Entrenchment of Legal Rules”<http://electionlawblog.org/?p=92869>
Posted on May 31, 2017 7:16 am<http://electionlawblog.org/?p=92869> by Rick Hasen<http://electionlawblog.org/?author=3>
Mike Gilbert has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2970164> on SSRN.  Here is the abstract:
Should law respond readily to society’s evolving views, or should it remain fixed? This is the question of entrenchment, meaning the insulation of law from change through supermajority rules and other mechanisms. Entrenchment stabilizes law, which promotes reliance and predictability, but it also frustrates democratic majorities. This paper uses economic theory to study this tension. It argues that nearly all laws should be minimally entrenched. This is because bare majority rule can systematically harm society – even when voters are rational, and even when no intense minority is present. Then it argues that minimum entrenchment is conceptually straightforward but optimal entrenchment is not. It depends on factors like whether the costs of legal instability are variable or fixed and who has power to set the agenda. Existing scholarship ignores these factors, casting doubt on its prescriptions. The paper provides guidance for legal designers, and it has implications for constitutional law, including Article V, amendments, conventions, and judicial updating.
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Posted in theory<http://electionlawblog.org/?cat=41>

“PLF asks Supreme Court to invalidate Minnesota dress code for voters”<http://electionlawblog.org/?p=92867>
Posted on May 31, 2017 7:11 am<http://electionlawblog.org/?p=92867> by Rick Hasen<http://electionlawblog.org/?author=3>
Pacific Legal Foundation:<http://blog.pacificlegal.org/plf-asks-supreme-court-invalidate-minnesota-dress-code-voters/>
On Election Day, millions of Americans trek to polling places in all corners of this Nation. On the way to casting their vote, many proudly wear shirts, buttons, and badges of organizations that share their views. Union members, for example, may wear SEIU t-shirts; gun owners, National Rifle Association badges; readers of this blog, Pacific Legal Foundation lapels.
To most, wearing shirts, buttons, and badges saying “Pacific Legal Foundation,” “AFL-CIO,” and so on is just another form of political expression — much like voting itself. To regulators in Minnesota, however, it’s a criminal act <https://www.revisor.leg.state.mn.us/statutes/?id=211b.11> that subjects voters to the criminal penalties assessed for a misdemeanor and civil penalties of up to $5,000<https://www.revisor.leg.state.mn.us/statutes/?id=211B.35>.
That’s because Minnesota law forbids voters from wearing any apparel that a bureaucrat deems “political.” That includes shirts featuring the logo of the American Legion, Veterans of Foreign Wars, AFL-CIO, MoveOn.Org, the Chamber of Commerce, or the NAACP, just to name a few examples. That also includes two items of apparel that PLF client Andy Cilek wore to the polling place: a Tea Party t-shirt that said “Don’t tread on me” next to a picture of the Gadsden Flag<http://www.gadsden.info/history.html>, and a “Please I.D. me” button created by Andy’s organization: Minnesota Voters Alliance.
After a poll worker told Andy it was illegal for him to vote while wearing the forbidden apparel, Andy filed a federal lawsuit to vindicate his constitutional right to free speech. Unfortunately, the lower courts <http://caselaw.findlaw.com/us-8th-circuit/1624956.html> rejected Andy’s claim<https://scholar.google.com/scholar_case?case=3982269151720786100&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, reasoning that the government may ban all expression, besides voting, at the polling place.
Fortunately, we have a Supreme Court of the United States. PLF is representing Andy, Minnesota Voters Alliance, and election judge Sue Jeffers in asking the Supreme Court to review<https://www.pacificlegal.org/file/MVA-Petition-for-Cert.pdf> — and invalidate — Minnesota’s political apparel ban.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

Coverage of Ohio Voter Purge Cert Grant<http://electionlawblog.org/?p=92865>
Posted on May 31, 2017 7:09 am<http://electionlawblog.org/?p=92865> by Rick Hasen<http://electionlawblog.org/?author=3>
Greg Stohr<https://www.bloomberg.com/politics/articles/2017-05-30/voter-purge-effort-by-ohio-gets-u-s-supreme-court-review>
Bob Barnes<https://www.washingtonpost.com/politics/courts_law/high-court-to-review-ohios-method-for-removing-voters-from-registration-rolls/2017/05/30/0e2848ae-4568-11e7-a196-a1bb629f64cb_story.html?tid=ss_tw&utm_term=.c968206ed014>
Ari Berman<https://www.thenation.com/article/supreme-court-make-easier-states-purge-voters/>
Doug Chapin<http://editions.lib.umn.edu/electionacademy/2017/05/31/a-few-notes-on-ohio-case-heading-to-scotus/>
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, Supreme Court<http://electionlawblog.org/?cat=29>, 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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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