[EL] ELB News and Commentary 7/10/18

Daniel Tokaji dtokaji at gmail.com
Tue Jul 10 09:42:13 PDT 2018 

 Coverage of Kavanaugh Nomination <http://electionlawblog.org/?p=99976>
Posted on July 10, 2018 9:35 am <http://electionlawblog.org/?p=99976> by Dan
Tokaji <http://electionlawblog.org/?author=5>

[Bumped to top]

   - NYT calls
   <https://www.nytimes.com/2018/07/09/us/politics/brett-kavanaugh-supreme-court-trump.html>
    Judge Kavanaugh a “Conservative Stalwart,” noting his involvement in an
   “extraordinary number of political controversies” since early in his legal
   career, including Ken Starr’s investigation of President Clinton and the
   2000 Florida recount litigation.  It also has these charts
   <https://www.nytimes.com/interactive/2018/07/09/us/politics/supreme-court-kavanaugh-justice-conservative.html?hp&action=click&pgtype=Homepage&clickSource=g-artboard%20g-artboard-v4&module=b-lede-package-region&region=top-news&WT.nav=top-news>
on
   his ideology.  Based in part on his campaign contributions — including to
   Rich Cordray — Judge Kavanaugh is estimated be somewhat less conservative
   than Judge Gorsuch, though unlikely to drift ideologically.
   - LA Times reports
   <http://www.latimes.com/politics/la-na-pol-brett-kavanaugh-supreme-court-20180709-story.html>
    that Judge Kavanaugh is “a well-credentialed Washington insider who
   compiled a long record as a reliable conservative and won the respect of
   White House lawyers and the outside groups that advise them.”  The article
   quotes his former law clerk Justin Walker of University of Louisville:
   “Brett Kavanaugh is courageous, tough and defiant. He will never, ever go
   wobbly,” and “I predict that he would be a rock-solid conservative in the
   Alito-Thomas mold.”  We may hear this quotation again in weeks to come.
   - WSJ says
   <https://www.wsj.com/articles/nominee-has-shown-deep-skepticism-of-regulatory-state-1531186402>
    that Judge Kavanaugh has “sought to put a tighter leash on the
   regulatory state” in his dozen years on the bench, often concluding that
   agencies “stretched their power too far.”  The article references dissents
   on Obama-era rules on net neutrality and greenhouse gases.
   - Politico reports
   <https://www.politico.com/story/2018/07/09/brett-kavanaugh-trump-private-meeting-706137>
    on the selection process, concluding that President Trump was leaning
   toward Judge Kavanaugh from the beginning, even as the White House took
   care to avoid tipping his hand: “What was listed as a deal-breaker to some
   on the right — his long paper trail — was actually the thing that drew
   Trump to Kavanaugh.”
   - National Review calls
   <https://www.nationalreview.com/2018/07/brett-kavanaugh-worthy-pick-for-supreme-court/>
Judge
   Kavanaugh “A Worthy Pick,” noting that:  “He has vindicated the right to
   free speech (against certain campaign-finance regulations), to bear arms
   (against the D.C. government’s attempts to implement sweeping bans), and to
   religious liberty (against a version of the Obama administration’s
   “contraceptive mandate”). And he has followed Supreme Court precedents even
   when gently suggesting they should be rethought.”
   - Law.com
   <https://www.law.com/nationallawjournal/2018/07/09/big-law-academia-advocates-early-lines-on-kavanaugh/>
    quotes various lawyers and professors on Judge Kavanaugh, including
   Jonathan Adler of Case Law who says: “Kavanaugh nomination shows Trump
   Administration is serious about taming the administrative state. His
   opinions on AdLaw issues already get SCOTUS attention. Now he’ll be at the
   table.”  But according to Tara Malloy of Campaign Legal Center: “Judge
   Kavanaugh’s view on election law ignores the current reality of our
   campaign finance system, which is awash in secret, unaccountable money.”
   - 538
   <https://fivethirtyeight.com/features/how-brett-kavanaugh-would-change-the-supreme-court/>
    reports on judicial ideology scores, concluding that “Kavanaugh, if
   confirmed, would likely represent a reliably conservative voice and vote on
   the high court, tipping its balance significantly to the right for years to
   come.”
   - Vox
   <https://www.vox.com/explainers/2018/7/9/17540334/brett-kavanaugh-trump-supreme-court-anthony-kennedy>
    says that Kavanaugh “he has suggested enhancing the president’s power
   to block criminal and civil actions against him, a potentially worrisome
   position when the president nominating him is under investigation and
   facing multiple lawsuits.”

*Update:*

   - WaPo identifies
   <https://www.washingtonpost.com/news/the-fix/wp/2018/07/10/winners-and-losers-from-brett-kavanaughs-supreme-court-nomination/?utm_term=.07b3d03634ba>
    winners (including AMK, GWB, “Russia-investigation intriguists”) and
   losers (including LGBT activists, gun control activists, some campaign
   finance activists and women’s rights groups) from the nomination.
   - Forbes touts
   <https://www.forbes.com/sites/briankmiller/2018/07/10/judge-kavanaughs-principled-record-on-free-speech/#2fc002b6519b>
    Judge Kavanaugh’s record on free speech, including his opinion in a
   campaign finance case, Emily’s List v. FEC
   <https://caselaw.findlaw.com/us-dc-circuit/1159943.html>.
   - Mother Jones worries
   <https://www.motherjones.com/politics/2018/07/kavanaughs-record-doesnt-bode-well-for-voting-rights/>
    about the effect on voting rights.
   - NBC reports
   <https://www.nbcnews.com/politics/first-read/how-mueller-probe-could-complicate-kavanaugh-s-confirmation-n890156>
    on the ongoing Mueller probe and a 2009 law review article
   <http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf>
    by Judge Kavanaugh  in which he wrote: “I believe it vital that the
   President be able to focus on his never-ending tasks with as few
   distractions as possible…. I believe that the President should be excused
   from some of the burdens of ordinary citizenship while serving in office”

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
Montana Court Grants Relief in Challenge to Green Party Petition
<http://electionlawblog.org/?p=99986>
Posted on July 10, 2018 9:17 am <http://electionlawblog.org/?p=99986> by Dan
Tokaji <http://electionlawblog.org/?author=5>

>From the conclusion of the district court order
<http://electionlawblog.org/wp-content/uploads/district-court-order.pdf> in
the case <http://electionlawblog.org/?p=98504> challenging
<http://electionlawblog.org/?p=98890> the Green Party’s candidate petition:

1. Certain signatures on the Petition are declared invalid …. Removal of
these signatures results in the Petition not qualifying in the 34 House
districts required by § 13-10-601,MCA.2. Plaintiffs’ complaint for a
declaratory judgment removing the Montana Green Party from the election
ballot is GRANTED.

2. The Green Party’s Petition is declared invalid and the Secretary is
directed to remove the Montana Green Party from the election ballot. The
Secretary, his agents, officers,
employees, and successors, and all persons acting in concert with each or
any of them, are enjoined from implementing, enforcing, or giving any
effect to certification of the Green Party’s Petition.
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Posted in petition signature gathering
<http://electionlawblog.org/?cat=39>
“With Russian meddling in mind, California invests $134 million to
safeguard election systems” <http://electionlawblog.org/?p=99984>
Posted on July 10, 2018 9:04 am <http://electionlawblog.org/?p=99984> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Sacramento Bee
<https://www.sacbee.com/news/politics-government/capitol-alert/article214379674.html>
:

With increased attention to cybersecurity lately, California is making a
sizable investment in its election infrastructure.

This year’s state budget provides $134 million for counties to modernize
voting systems. It also provides $3 million for the creation of the Office
of Elections Cybersecurity and the Office of Enterprise Risk Management.
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Posted in voting technology
<http://electionlawblog.org/?cat=40>
“Environmental group files lawsuit to block California’s split-the-state
measure from November ballot” <http://electionlawblog.org/?p=99981>
Posted on July 10, 2018 6:47 am <http://electionlawblog.org/?p=99981> by Dan
Tokaji <http://electionlawblog.org/?author=5>

LAT reports
<http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-may-2018-environmental-group-files-lawsuit-to-1531180698-htmlstory.html>
 on a case filed yesterday in the California Supreme Court to block Prop.
9, which would divide California into three states.
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Posted in direct democracy
<http://electionlawblog.org/?cat=62>
President Trump Picks Kavanaugh <http://electionlawblog.org/?p=99974>
Posted on July 9, 2018 6:06 pm <http://electionlawblog.org/?p=99974> by Dan
Tokaji <http://electionlawblog.org/?author=5>

More to come!
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Posted in Supreme Court
<http://electionlawblog.org/?cat=29>
Derek Muller’s “The Democracy Ratchet” <http://electionlawblog.org/?p=99971>
Posted on July 9, 2018 4:41 pm <http://electionlawblog.org/?p=99971> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Available on SSRN
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201247>.  From the
abstract:

Litigants seeking to lift burdens on the right to vote and judges
adjudicating these claims have an unremarkable problem—what is the
benchmark for measuring the nature of these burdens? Legal theories abound
for claims under the constellation of rights known as the “right to vote.”
And when a legislature changes a voting practice or procedure, courts may
have an easy benchmark—they can consider what the right to vote looked like
before and after the enactment of the new law, and they can evaluate a
litigant’s claim on that basis.  Recently, federal courts have been relying
on this benchmark for the principal causes of action litigants might raise
after a new law has been enacted—a Section 2 challenge under the Voting
Rights Act, a freedom of association claim subject to the Burdick balancing
test, and an Equal Protection analysis derived from Bush v. Gore. And
frequently, courts have found that new laws that eliminate once-available
voting practices or procedures fail.

I describe this new practice as the Democracy Ratchet. But it is only
recently that a convergence of factors have driven courts to (often
unwittingly) adopt the Democracy Ratchet more broadly. So while a
legislature can expand such opportunities, courts scrutinize cutbacks on
such opportunities with deep skepticism—deeper than had no such opportunity
ever existed. The ratchet tightens options, squeezing the discretion that
legislatures once had.

This Article seeks to solve the puzzle of how courts have scrutinized, and
should scrutinize, legislative changes to election laws….
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Posted in election law and constitutional law
<http://electionlawblog.org/?cat=55>, voting
<http://electionlawblog.org/?cat=31>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Ohio restarts voter purge process with changes to help prevent unnecessary
cancellations” <http://electionlawblog.org/?p=99963>
Posted on July 9, 2018 10:50 am <http://electionlawblog.org/?p=99963> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Cleveland.com
<https://www.cleveland.com/metro/index.ssf/2018/07/ohio_restarts_voter_purge_proc.html#article>
 reports on directives (2018-19
<https://www.sos.state.oh.us/globalassets/elections/directives/2018/dir2018-19.pdf>
, 2018-20
<https://www.sos.state.oh.us/globalassets/elections/directives/2018/dir2018-20.pdf>
, 2018-21
<https://www.sos.state.oh.us/globalassets/elections/directives/2018/dir2018-21.pdf>
 and 2018-22
<https://www.sos.state.oh.us/globalassets/elections/directives/2018/dir2018-22.pdf>)
that Ohio Secretary of State Jon Husted issued today.  They restart Ohio’s
supplemental process for removing voters from the rolls, upheld by the
Supreme Court in *Husted v. APRI*, while providing that no voters will be
removed this year due to that process.  (Disclosure: I’m one of the lawyers
for plaintiffs.)

Directive 2018-22
<https://www.sos.state.oh.us/globalassets/elections/directives/2018/dir2018-22.pdf>
 provides for a “last chance” notice to go out before a voter’s
registration is cancelled. On bottom of p. 1
<http://electionlawblog.org/wp-content/uploads/PurgeNoticeExcerpt.pdf>, it
says that boards of election should send this notice “[n]ot earlier than 30
days, but not later than 45 days” before the scheduled cancellation date.
Shouldn’t that be “not earlier than* 45* days, but not later than *30*
days”?
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Posted in voter registration
<http://electionlawblog.org/?cat=37>
How Should Courts Evaluate Recent Changes to Voting Laws
<http://electionlawblog.org/?p=99961>
Posted on July 9, 2018 8:51 am <http://electionlawblog.org/?p=99961> by Richard
Pildes <http://electionlawblog.org/?author=7>

An increasingly central and recurring issue in voting-rights litigation
today is how courts should evaluate recent *changes* to various laws
regulating the voting system.  How much should the prior status quo matter
in this assessment?  This can present paradoxes for courts:  how should
courts assess the legality of cutbacks in days of early voting, for
example, when some states do not permit early voting at all?

This issue arises in litigation under Section 2 of the Voting Rights Act
and right-to-vote litigation under the Constitution.  I wanted to call
attention to two good academic articles that have appeared recently on this
increasingly central issue.  Both synthesize the existing caselaw, then
provide analysis on how they believe courts ought to handle the issue.

Ellen Katz address the issue in the context of VRA Section 2
litigation in *Section
2 After Section 5:  Voting Rights and the Race to the Bottom.*
<https://wmlawreview.org/section-2-after-section-5-voting-rights-and-race-bottom>
Derek Muller address the issue more broadly, under both the Constitution
and the VRA, in *The Democracy Ratchet
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201247&download=yes>.
*The
effort to think through this issue systematically is important.
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Posted in voting <http://electionlawblog.org/?cat=31>

Daniel P. Tokaji

Associate Dean for Faculty | Ebersold Professor of Constitutional Law

The Ohio State University | Moritz College of Law

55 W. 12th Ave. | Columbus, OH 43210

614.292.6566 | tokaji.1 at osu.edu
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