[EL] ELB News and Commentary 6/11/18

[Rick Hasen]

“A Better Electoral System in Maine”<http://electionlawblog.org/?p=99444>
Posted on June 10, 2018 7:53 pm<http://electionlawblog.org/?p=99444> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric Maskin and Amartya Sen NYT oped:<https://www.nytimes.com/2018/06/10/opinion/electoral-system-maine.html>

A great deal turns on Tuesday’s primary elections in Maine. For the first time in America, ranked-choice voting — a system likely to reduce political polarization — will be used to choose candidates for governor and Congress. And the system itself, approved by Maine voters in 2016, will also be on the ballot, as a referendum. If voters rescind it, Maine will return to the prevailing system in this country — one that often elects leaders who lack majority support, and turns off many citizens.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


“Census Bureau’s chief scientist warned secretary in memo against adding citizenship question”<http://electionlawblog.org/?p=99442>
Posted on June 10, 2018 7:48 pm<http://electionlawblog.org/?p=99442> by Rick Hasen<http://electionlawblog.org/?author=3>

The Hill:<https://www.msn.com/en-us/news/politics/census-bureau-e2-80-99s-chief-scientist-warned-secretary-in-memo-against-adding-citizenship-question/ar-AAyrWCx:>

An internal memo from the chief scientist of the U.S. Census Bureau warned Commerce Secretary Wilbur Ross against adding a question on citizenship to the 2020 census.

John Abowd, the agency’s chief scientist and associate director for research and methodology, wrote in the January memo<http://www.osec.doc.gov/opog/FOIA/Documents/AR%20-%20FINAL%20FILED%20-%20ALL%20DOCS%20%5bCERTIFICATION-INDEX-DOCUMENTS%5d%206.8.18.pdf#page=1289> that adding a citizenship question would be “very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available from administrative sources.”

The document also states that adding the questions would create “major potential quality and cost disruptions” for the 2020 census.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Iraq election: Fire at Baghdad ballot paper depot”<http://electionlawblog.org/?p=99440>
Posted on June 10, 2018 7:36 pm<http://electionlawblog.org/?p=99440> by Rick Hasen<http://electionlawblog.org/?author=3>

BBC reports.<https://www.bbc.com/news/world-middle-east-44432047>


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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“SOS Kris Kobach’s office paid $1,000 fine in federal case with state-issued credit card”<http://electionlawblog.org/?p=99438>
Posted on June 10, 2018 9:30 am<http://electionlawblog.org/?p=99438> by Rick Hasen<http://electionlawblog.org/?author=3>

Topeka Capital-Journal:<http://www.cjonline.com/news/20180608/sos-kris-kobachs-office-paid-1000-fine-in-federal-case-with-state-issued-credit-card>

Micah Kubic, executive director of the ACLU of Kansas, said three weeks ago Kobach had paid the penalty “out of his own pocket.”

However, a Kansas Open Records Act request of the Kansas Department of Administration produced records Friday showing the payment was processed July 21, 2017, with a credit card issued by the state to Craig McCullah, who at that time was deputy assistant secretary of state under Kobach and is now seeking the Republican Party’s nomination as secretary of state.

In an interview, McCullah said he was deployed to Ukraine with the Oklahoma Army National Guard when the secretary of state’s office used his card to pay the penalty. He had left the card in the care of secretary of state personnel through a deployment ending in December.

“I was out of the country,” McCullah said. “I was never told about this.”

The credit card receipt from the U.S. District Court in Topeka said the courthouse transaction was executed by Bryan Harden, who was Kobach’s chief of staff.

A spokeswoman for Kobach confirmed the money came from the state treasury because “the office is the defendant in the case.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“Barry C. Burden: Same-day registration could save the day”<http://electionlawblog.org/?p=99436>
Posted on June 10, 2018 9:28 am<http://electionlawblog.org/?p=99436> by Rick Hasen<http://electionlawblog.org/?author=3>

Wisconsin State Journal oped:<https://host.madison.com/wsj/opinion/column/barry-c-burden-same-day-registration-could-save-the-day/article_fc4705c0-a930-5c69-8cef-ea2926e89a20.html>

The national attention on election security shows that sometimes the solution to a complex problem is not high-tech or even new.

A “playbook” recently released by a bipartisan team of experts at Harvard recommends securing U.S. elections using sophisticated solutions such as beefing up login credentials, but also analog solutions such as maintaining a paper trail for every ballot. This smart advice is increasingly being followed by election officials around the country. States including Wisconsin also are using new federal funds to enhance security in the lead up to the 2018 general election.
But it turns out an old practice — Election Day voter registration — also could save the day, even if voter registration databases are compromised.
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Posted in election administration<http://electionlawblog.org/?cat=18>


Kobach’s Hand in Citizenship Census Question<http://electionlawblog.org/?p=99434>
Posted on June 9, 2018 9:02 pm<http://electionlawblog.org/?p=99434> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://mobile.nytimes.com/2018/06/09/nyregion/kobach-bannon-lobbying-census-question-on-citizenship-documents.html?rref=collection%2Fsectioncollection%2Fnyregion&action=click&contentCollection=nyregion%C2%AEion=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=sectionfront>

Documents released in a lawsuit attempting to block the inclusion of a question about citizenship in the 2020 census show lobbying by anti-immigration hard-liners for the question’s inclusion, and resistance on the part of some census officials to asking it.

The Kansas secretary of state, Kris W. Kobach, who has taken a strong position against illegal immigration and was appointed by President Trump to a now-defunct panel on voter fraud, had advocated the question directly with the secretary of commerce, Wilbur Ross, according to the documents. In a July 2017 email to an aide to Mr. Ross, Mr. Kobach said that he had reached out to the secretary a few months earlier “on the direction of Steve Bannon,” then the White House chief strategist.

In an email to Mr. Ross, Mr. Kobach urged the addition of the question, saying that including undocumented immigrants in the decennial count of the United States population would, among other things, lead to the problem “that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”

The documents were released by the Justice Department late Friday night in response to a federal lawsuit from the attorneys general of 18 states aimed at blocking the inclusion of the question, which was added to the census questionnaire in March.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


NYT Editorial Endorses Ranked Choice Voting<http://electionlawblog.org/?p=99432>
Posted on June 9, 2018 4:05 pm<http://electionlawblog.org/?p=99432> by Rick Hasen<http://electionlawblog.org/?author=3>

This<https://www.nytimes.com/2018/06/09/opinion/ranked-choice-voting-maine-san-francisco.html> is a big deal:

Ranked-choice voting can’t single-handedly fix America’s broken elections, but it’s a worthwhile experiment, and it’s already proved to make for a better process, particularly in candidate-heavy primaries. If it’s combined with other electoral reforms, like multimember districts that can more accurately reflect the political makeup of a region, it could do even more to help voters feel that their voices are being heard, even if they’re in the minority. And that could help drive up turnout, which is notoriously bad in midterm elections.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


“Maine Voters to Rank All Candidates Rather Than Pick One”<http://electionlawblog.org/?p=99430>
Posted on June 9, 2018 11:51 am<http://electionlawblog.org/?p=99430> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<https://www.wsj.com/articles/maine-puts-new-voting-system-to-the-test-1528450201>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


Eighth Circuit, Citing Purcell Principle About Not Changing Election Rules Close to Elections, Rejects North Dakota’s Attempt to Revive Voter ID Law for Now<http://electionlawblog.org/?p=99427>
Posted on June 8, 2018 6:40 pm<http://electionlawblog.org/?p=99427> by Rick Hasen<http://electionlawblog.org/?author=3>

Order:<http://electionlawblog.org/wp-content/uploads/00191165.pdf>

The State of North Dakota moves to stay the district court’s injunction of April 3, 2018, concerning certain subsections of the North Dakota elections statute, N.D.C.C. § 16.1-01- 04.1. Based primarily on the imminent primary election date of June 12, 2018, the motion for stay is denied. See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam); Williams v. Rhodes, 393 U.S. 23, 34-35 (1968); Veasey v. Perry, 769 F.3d 890, 892-95 (5th Cir. 2014). The denial is without prejudice to the filing of a renewed motion for stay after the completion of briefing on the merits of this appeal.

See here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676> for more on the Purcell Principle.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


“GOP Lawmakers Flirt With Drastic Change To How U.S. House Map Is Drawn”<http://electionlawblog.org/?p=99425>
Posted on June 8, 2018 5:16 pm<http://electionlawblog.org/?p=99425> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/republicans-congressional-apportionment-census-hearing>

Multiple witnesses appeared in front of a House Judiciary subcommittee hearing Friday to testify in favor or against the addition of a citizenship question to the 2020 census — a Trump administration move that is roiling the civil rights community and prompting numerous lawsuits.

But the Republican lawmakers who showed up to participate in the hearing seemed most interested in speaking to Alabama Attorney General Steve Marshall, who is bringing a lawsuit seeking to alter how the U.S. congressional map is drawn to diminish the political power of immigrant-friendly states.

His lawsuit is parallel to the push for a census citizenship question, but if successful, could have just as drastic of an effect, if not more. Whereas the Trump administration has claimed it needs census citizenship data for Voting Rights Act enforcement (a claim viewed skeptically by voting rights activists), the Alabama lawsuit explicitly seeks to exclude undocumented immigrants from how U.S. congressional seats are apportioned.

Has the Alabama AG read that part of the Constitution<https://www.senate.gov/civics/constitution_item/constitution.htm#amdt_14_(1868)> reading: “.Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed”?
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“The needs of California voters — not the parties — must be heeded”<http://electionlawblog.org/?p=99423>
Posted on June 8, 2018 5:11 pm<http://electionlawblog.org/?p=99423> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Howle and Rob Richie oped<http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-california-primary-voters-20180608-story.html> in the SD Union-Tribune:

We, the Independent Voter Project and FairVote, have and continue to have our different perspectives and opinions about what is the “best” way to conduct our elections. But at a fundamental level, we agree that elections should serve voters, maximize choice and broaden our representatives’ accountability.

For that reason we oppose any attempt to restore California’s old system. Its low level of competition was appalling, both in primaries and in general elections. Even when third parties and independents were on the November ballot, the vote-for-one, plurality voting system sidelined them as “spoilers” or “irrelevant.”

The biggest complaints about the nonpartisan primary system are tied to only two candidates advancing from the primary. The practical effect of only advancing two candidates, especially when several candidates are on the ballot, is that some credible candidates may not advance to November. This can leave third parties, independents and even a major party from having a candidate on the general election ballot.

The Independent Voter Project supported the top-two format, specifically, to ensure that a candidate needs a majority vote to win in November. But we should not, and do not have to, go back to the old, party-centric, and uncompetitive system to expand voter choice, provide more opportunity for third parties and independents, and advance voter-centric reform even further.

Enter the application of ranked choice voting to a primary that advances the top four candidates instead of just two. It’s simple. Double the November choices by advancing four candidates out of the primary, allow write-in candidates, and enact ranked choice voting to give voters more voice, avoid vote-splitting and ensure majority rule.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


“How California can keep advantages of the top two primary while curing its defects”<http://electionlawblog.org/?p=99421>
Posted on June 8, 2018 4:50 pm<http://electionlawblog.org/?p=99421> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Winger oped<http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-california-primary-winger-20180608-story.html> in San Diego Union-Tribune.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


Now Available: Final Versions of 3 of My Papers, on Cheap Speech, Race or Party in Redistricting and Voting Rights Cases, and the 2016 Voting Wars<http://electionlawblog.org/?p=99404>
Posted on June 8, 2018 4:11 pm<http://electionlawblog.org/?p=99404> by Rick Hasen<http://electionlawblog.org/?author=3>

Cheap Speech and What It Has Done (to American Democracy)<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>, 16 First Amendment Law Review 200 (2018)

The 2016 U.S. Voting Wars: From Bad to Worse<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257>, 26 William and Mary Bill of Rights Journal 529 (2018)

Essay: Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>, 59 William and Mary Law Review 1837 2018)
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Posted in pedagogy<http://electionlawblog.org/?cat=23>


“UPDATE: What we know about the LA County primary election ‘glitch'”<http://electionlawblog.org/?p=99415>
Posted on June 8, 2018 3:50 pm<http://electionlawblog.org/?p=99415> by Rick Hasen<http://electionlawblog.org/?author=3>

KPCC reports.<https://www.scpr.org/news/2018/06/07/83794/what-we-know-about-the-la-county-primary-election/>

KPCC has confirmed election officials at four additional counties in California know of active registered voters whose names were missing from printed poll rosters on Tuesday. Those counties include Inyo, Kings, Sonoma and Yuba. Election officials at several other counties have told KPCC they did not experience problems. The number of names in Inyo, Kings, Sonoma and Yuba counties are small: so far fewer than a dozen registered voters whose names should have appeared on the rosters are known to have been missing in error.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Judge Tymkovich, in Concurrence to Denial of En Banc Rehearing in Utah Political Party Case, Calls on SCOTUS to Revisit Political Party Regulation<http://electionlawblog.org/?p=99413>
Posted on June 8, 2018 3:20 pm<http://electionlawblog.org/?p=99413> by Rick Hasen<http://electionlawblog.org/?author=3>

Tenth Circuit Chief Judge Timothy Tymkovich, who regularly teaches election law<https://lawweb.colorado.edu/profiles/profile.jsp?id=290> (and has used our casebook), wrote this interesting statement today concurring in the denial of rehearing en banc in the Utah Republican Party case:

I concur in the court’s denial of rehearing en banc. The majority and dissent clearly laid out the dueling arguments. I write separately to note the issues raised here deserve the Supreme Court’s attention. The panel majority pledges continued faith in an oft-repeated strand of Supreme Court dicta which, as my dissent argues, has outlived its reliability. At this point, the Supreme Court’s homage to State regulation of the primary election process is little more than a nod to received wisdom. Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000); see, e.g., American Party of Tex. v. White, 415 U.S. 767, 781 (1974).

Yet circumstances are much changed. Recent Supreme Court cases like California Democratic Party v. Jones suggest this dicta does not provide the whole truth. So too, do facts on the ground. The behemoth, corrupt party machines we imagine to have caused the progressive era’s turn to primaries are now, in many respects, out of commission. In important ways, the party system is the weakest it has ever been—a sobering reality given parties’ importance to our republic’s stability. And given new evidence of the substantial associational burdens, even distortions, caused by forcibly expanding a party’s nomination process, a closer look seems in order. The time appears ripe for the Court to reconsider (or rather, as I see it, consider for the first time) the scope of government regulation of political party primaries and the attendant harms to associational rights and substantive ends.
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Posted in political parties<http://electionlawblog.org/?cat=25>, 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
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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