[EL] ELB News and Commentary 4/26/18

Wed Apr 25 20:58:10 PDT 2018

Indiana: “Judge orders early satellite voting precincts for Marion County”<http://electionlawblog.org/?p=98835>
Posted on April 25, 2018 8:56 pm<http://electionlawblog.org/?p=98835> by Rick Hasen<http://electionlawblog.org/?author=3>

Indiana Lawyer:<https://www.theindianalawyer.com/articles/46807-judge-orders-early-satellite-voting-precincts-for-marion-county>

A federal judge Wednesday ordered Marion County to establish at least two early satellite voting precincts in time for the November general election, though the court refrained from requiring them in time for the May 8 primary election.

Senior Judge Sarah Evans Barker issued an injunction<http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2018/april/injunction-vote.pdf> in a suit brought by Common Cause and the NAACP. The suit<https://www.theindianalawyer.com/articles/43598-common-cause-naacp-sue-over-marion-county-early-voting> filed in 2017 alleged that the county election board’s decision in recent years to permit early voting in just one location countywide provided unequal access to the ballot and violated voting rights in Indianapolis, particularly for minority voters.

Barker’s injunction was issued contemporaneously with a 48-page order that found that there was too little time before the May 8 primary to order early voting precincts, creating too great a burden on the Marion County Election Board.

“The benefits to Plaintiffs at this late hour, meanwhile, would be comparatively modest. Finally, while the character and magnitude of Plaintiffs’ injury does not vary with the type of election (primary or general), the public’s interest in an electoral market free from arbitrary governmental interference in favor of one political party over another is less impaired in the primary-election context. And the public, too, would be ill served by last-minute upheaval and confusion in the administration of the May primary,” Barker wrote in Common Cause Indiana, et al. v. Marion County Election Board, <https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12017cv1388-76> et al<https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12017cv1388-76>, 1:17-cv-1388.

As to the November general election, however, we find that the balance of equities tips in Plaintiffs’ favor,” Barker wrote. “… Plaintiffs’ fair likelihood of success on the merits, and the constitutionally fundamental nature of their asserted injury, justify the imposition of this reduced burden. “Both Plaintiffs and the public are positioned to enjoy the full benefits of (early in-person) voting restored to its 2008 levels, while the public will suffer minimal disruption to any ongoing election preparation efforts, and will reap the harvest of an electoral contest conducted without a governmental thumb on the scale.”
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Posted in election administration<http://electionlawblog.org/?cat=18>

Florida: “Appeals court delays changes in felon voting-rights system”<http://electionlawblog.org/?p=98832>
Posted on April 25, 2018 8:46 pm<http://electionlawblog.org/?p=98832> by Rick Hasen<http://electionlawblog.org/?author=3>

Orlando Sentinel:<http://www.orlandosentinel.com/news/politics/political-pulse/os-clemency-voting-rights-late-20180425-story.html>

 Florida’s system of restoring voting rights to ex-felons remains intact, for now at least, after a federal appeals court Wednesday night delayed a judge’s ruling issued in February that had struck down the system.

The decision from the Atlanta-based U.S. 11th Circuit Court of Appeals prevented a late-night meeting of the Florida Clemency Board, which was called by Gov. Rick Scott<http://www.orlandosentinel.com/topic/politics-government/government/rick-scott-PEPLT00007609-topic.html> to comply with the lower court’s Thursday deadline to adopt new voting rights restoration rules.

“We are glad that the 11th Circuit Court of Appeals has stayed the lower court’s reckless ruling,’’ said Scott spokesman John Tupps. “Judges should interpret the law, not create it.’’

The ruling is only temporary until the underlying appeal is resolved, but the order indicates the state is likely to win.

You can find the majority opinion and partial dissent at this link<http://media.ca11.uscourts.gov/opinions/pub/files/201811388.pdf> (via How Appealing)<https://howappealing.abovethelaw.com/2018/04/25/#76684>.
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Posted in felon voting<http://electionlawblog.org/?cat=66>

Why Justice Kennedy Might Still Write the Court’s Opinion in the Wisconsin Partisan Gerrymandering Case<http://electionlawblog.org/?p=98823>
Posted on April 25, 2018 1:27 pm<http://electionlawblog.org/?p=98823> by Richard Pildes<http://electionlawblog.org/?author=7>

After yesterday, the only two Justices who have not issued opinions for the Court from the October sitting, when Gill v. Whitford was argued, are Chief Justice Roberts and Justice Gorsuch.  This has given rise to speculation, including on this blog<http://electionlawblog.org/?p=98799>, that one of those two Justice is therefore likely to have been assigned the lead opinion in Gill.

Since it’s hard to imagine the most junior Justice on the Court in his second year would be assigned a case as significant as Gill, that would suggest Chief Justice Roberts is holding the metaphorical pen.

On this view, Justice Kennedy is out of the picture because he was the lead author in yesterday’s fractured majority decision in the Alien Tort Statute case, Jesner v. Arab Bank.  For only two Parts of the legal analysis in his opinion is Justice Kennedy writing for a majority; the bulk of his opinion is for only a plurality of the Court, because the majority couldn’t reach agreement on these aspects of the issues.

But here’s a different speculation, which Linda Greenhouse suggested to me in conversation, based on her years of reading tea leaves about such matters:  given the sharp internal conflicts among the five-member majority in Jesner, perhaps Justice Gorsuch was initially assigned after conference the Jesner opinion. Yet the draft opinion he circulated  could not command a majority, because his position — as reflected in his long concurrence, which on this story was initially designed to be part of a majority opinion — was too extreme to garner five votes.

Instead, as drafts circulated it turned out that Justice Kennedy’s approach was able to attract five votes, at least for certain parts of the analysis.  As a result, the majority in Jesner was re-assigned to Justice Kennedy.

If that story is right, the actual assignment Justice Kennedy got out of the first sitting would be one of the two cases still outstanding, Epic Systems or Gill.  Since Chief Justice Roberts hasn’t written yet, he’s likely in the majority in one or both of those cases.  If he is in the majority in both, it’s possible to see him choosing either case for his majority opinion; Epic Systems is a major case involving procedure and access-to-the court issues that interest the Chief.  That would leave Gill for assignment to Justice Kennedy.  Or if the Chief and Justice Kennedy are on opposite sides in Gill, that would leave Kennedy to assign himself the opinion in Gill.

So perhaps Justice Kennedy could still be line to write the  lead opinion in Gill, despite his opinion yesterday in the ATS case.  Of course, Gill could fail to produce a majority opinion.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Under New Rules, Zuckerberg Will Be Our Top Propaganda Cop”<http://electionlawblog.org/?p=98825>
Posted on April 25, 2018 11:00 am<http://electionlawblog.org/?p=98825> by Rick Hasen<http://electionlawblog.org/?author=3>

Steven Rosenfeld writes.<http://www.nationalmemo.com/new-rules-zuckerberg-top-propaganda-cop/>
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Posted in campaigns<http://electionlawblog.org/?cat=59>

--
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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