[EL] ELB News and Commentary 6/14/18
Rick Hasen
rhasen at law.uci.edu
Thu Jun 14 09:38:36 PDT 2018
“The Supreme Court Made a Good Decision on Election Law; In praise of the ruling in Minnesota Voters Alliance v. Mansky.”<http://electionlawblog.org/?p=99544>
Posted on June 14, 2018 9:35 am<http://electionlawblog.org/?p=99544> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<https://slate.com/news-and-politics/2018/06/in-minnesota-voters-alliance-v-mansky-the-supreme-court-makes-a-good-decision-on-election-law.html> for Slate. It begins:
Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky<https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf> striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law I thought it should have upheld<https://slate.com/news-and-politics/2018/02/the-supreme-court-is-reconsidering-campaigning-at-the-ballot-box-in-minnesota-voters-alliance-v-mansky.html?wpsrc=sh_all_dt_tw_ru>, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation….
First, the court made it clear that a state “may prohibit messages intended to mislead voters about voting requirements and procedures.” So Minnesota likely had the power to ban the “Please I.D. Me” buttons, not because they are political, but because they are misleading. In an era of campaign dirty tricks, “fake news,” and misinformation, this is a welcome recognition that states have broad powers to stop false and misleading speech<https://scholarship.law.umt.edu/mlr/vol74/iss1/4/> about when and how to vote.
Second, when the court described permissible state laws to ban electioneering in polling places, it did not endorse the narrow, formalistic view of what counts as election speech that it has adopted in the campaign finance area. There, the court on First Amendment grounds has said that limits on election spending (say, barring foreign nationals from spending in our elections<https://www.justsecurity.org/57624/supreme-courts-understanding-amendment-thwart-laws-aimed-limiting-foreign-influence-u-s-elections/>) are permissible only when they prohibit express advocacy (like “Vote for Trump”) or its functional equivalent<https://www.oyez.org/cases/2006/06-969>.
In Mansky, the court endorsed a much broader and more functional approach. As an example of a permissible law, it pointed to Texas Elections Code section 61.010<https://www.lawserver.com/law/state/texas/tx-codes/texas_election_code_61-010>, which bans at the polling place and within 100 feet of it “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.” That “relating to” language is much broader than the narrow tests the court has used in campaign finance cases, and it recognizes the reality that campaign-related speech often does not use “magic words” of advocacy.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>
“Divided over partisan election maps, Supreme Court could learn a lesson from divided college campus”<http://electionlawblog.org/?p=99542>
Posted on June 14, 2018 9:30 am<http://electionlawblog.org/?p=99542> by Rick Hasen<http://electionlawblog.org/?author=3>
Richard Wolf<https://www.usatoday.com/story/news/politics/2018/06/14/supreme-court-fight-partisan-maps-divided-college-campus/693842002/> for USA Today.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Presidential Elections: National Popular Vote, Elector Unit Rule Voting and Related Issues”<http://electionlawblog.org/?p=99540>
Posted on June 14, 2018 9:24 am<http://electionlawblog.org/?p=99540> by Rick Hasen<http://electionlawblog.org/?author=3>
William Josephson has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3195747.> on SSRN. Here is the abstract:
How to elect the President was the second most debated issue at the 1787 constitutional convention. The last moment Electoral College compromise between congressional election of the President and popular vote reflected the states’ sovereignty in a federal system of limited national government and of plenary power state governments, except as the Constitution limited state powers.
The NY Times’s Electoral College solution, at least since 2006, is National Popular Vote (NPV). It adheres to it despite the NPV’s vital flaws, which I am about to describe in (excruciating) detail.
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Posted in electoral college<http://electionlawblog.org/?cat=44>
“Fred Wertheimer is NOT Retiring: Celebrating 50 Years of Advocacy”<http://electionlawblog.org/?p=99538>
Posted on June 14, 2018 9:22 am<http://electionlawblog.org/?p=99538> by Rick Hasen<http://electionlawblog.org/?author=3>
Congrats to Fred Wertheimer, celebrating 50 years of advocacy! I received the following release from Common Cause about an event tonight:
One of Washington’s most well-known advocates, Fred Wertheimer, will be celebrated by friends, media, and members of Congress Thursday night from 5-7 pm at the offices of Common Cause. The celebration marks Wertheimer’s 50 years of advocacy opening government to public scrutiny and making sure the people’s voices are heard in our democracy. Wertheimer is founder and president of Democracy 21, advocating for government integrity, accountability and transparency, and worked for 24 years at Common Cause, serving as the non-partisan government watchdog group’s president from 1981-1995.
But if there is one thing Fred Wertheimer wants people to know as he celebrates this milestone, it is that he is NOT retiring. He’ll address why the work of the democracy movement is more important now than ever before in his remarks at the celebration.
Wertheimer has been described by The New York Times as “the country’s leading proponent of campaign finance reform,” and “the dean of campaign finance reformers,” by Washington Post columnist E. J. Dionne as “the eminence grise of the campaign reform movement” and by The Boston Globe as a “legendary open-government activist.” He was named as one of Washington’s 90 greatest lawyers of the last 30 years by Legal Times in 2008 and as one of Washington’s top lobbyists for several years by The Hill, a Capitol Hill newspaper.
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Posted in election law biz<http://electionlawblog.org/?cat=51>
“No bright line ruling likely on SCOTUS gerrymandering cases”<http://electionlawblog.org/?p=99536>
Posted on June 14, 2018 9:18 am<http://electionlawblog.org/?p=99536> by Rick Hasen<http://electionlawblog.org/?author=3>
Barry Burden and Rob Yablon<http://thehill.com/opinion/campaign/391680-no-bright-line-ruling-likely-on-scotus-gerrymandering-cases> for The Hill.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“You have the right to vote. Use it or lose it, the Supreme Court says.”<http://electionlawblog.org/?p=99533>
Posted on June 14, 2018 9:13 am<http://electionlawblog.org/?p=99533> by Rick Hasen<http://electionlawblog.org/?author=3>
Chiraag Bains oped<https://www.washingtonpost.com/opinions/vote-or-be-purged-thats-wrong/2018/06/13/5e9730d6-6f27-11e8-afd5-778aca903bbe_story.html?noredirect=on&utm_term=.0c2dc7ead308> for WaPo.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>
Breaking: Supreme Court on 7-2 Vote Holds Minnesota’s Ban on Political Apparel at the Polling Place Unconstitutionally Overbroad<http://electionlawblog.org/?p=99530>
Posted on June 14, 2018 7:11 am<http://electionlawblog.org/?p=99530> by Rick Hasen<http://electionlawblog.org/?author=3>
You can read the majority opinion by Chief Justice Roberts (with a dissent from Sotomayor, joined by Breyer) at this link<https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf>.
[My analysis to come.]
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>
New Voting System Coming to LA County—and PSAs on the Scale of “Carmageddon”<http://electionlawblog.org/?p=99528>
Posted on June 13, 2018 4:25 pm<http://electionlawblog.org/?p=99528> by Rick Hasen<http://electionlawblog.org/?author=3>
ABC7:<http://abc7.com/3595736/>
A week after a huge glitch during the California Primary, Los Angeles County moved to modernize its voting system. It comes with a big price tag and a lot of questions.
The mystery of the 118,000 missing names on L.A County voter rosters<http://abc7.com/politics/la-county-launches-independent-review-of-voting-rosters-error/3579464/> remains under investigation, yet the troubling lapse did not deter the Board of Supervisors from delivering a huge vote of support to County Registrar-Recorder Dean Logan on Tuesday.
The board voted unanimously to fund Logan’s plan for a massive overhaul of the the voting system. A contractor, Smartmatic, will be hired for terms that could reach $282 million.
Logan said safeguards for the county are built in.
“The contract is a performance-based contract based on key deliverables and service-level agreements,” said Logan.
The supervisors said that last week’s massive glitch is symptomatic of an antiquated system.
Logan said that the system is not a panacea, but it will make trouble-shooting much faster.
The system will employ touch-screen ballots. Neighborhood polling sites will be replaced by regional polling centers. Paper ballots will record each vote and be fully auditable. The system will go through mock elections later this year.
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Posted in election administration<http://electionlawblog.org/?cat=18>
A More Fundamental Legal Problem with the 3-Californias Ballot Measure<http://electionlawblog.org/?p=99526>
Posted on June 13, 2018 11:44 am<http://electionlawblog.org/?p=99526> by Rick Hasen<http://electionlawblog.org/?author=3>
Last night I flagged<http://electionlawblog.org/?p=99512> the revision/amendment issue as a major obstacle to 3-Californias going forward, but Bob Wolfe sees<https://www.facebook.com/heybobster/posts/10215073427164301?comment_id=10215073439084599&comment_tracking=%7B%22tn%22%3A%22R2%22%7D> a more fundamental problem:
At first glance, I thought the initiative is unconstitutional because it “contemplates such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.” (See Raven v. Deukmejian (1990) 52 Cal.3d 336.)
But this initiative is even flimsier than that. To my huge surprise, it doesn’t even purport to be a constitutional amendment; instead, it’s an initiative statute, which has a much lower signature requirement. The amendment merely amends the Government Code section 173 to establish three new states. It doesn’t change the California Constitution.
This statutory initiative contravenes the letter and intent of virtually every provision of the California constitution. The initiative relies upon a provision in the California constitution which allows the state’s boundaries to be modified “pursuant to statute.” (Cal. Const., Art. III, §2.) That presumably could happen if a river changes course, or if there was a surveyor’s mistake. But the same constitutional section – which the initiative cannot amend, also provides that “Sacramento is the capital of California.” (Cal. Const., Art. III, §2.)
Yet, according to the initiative, Sacramento no longer is in the state of California; it’s now to be located in the new state of Northern California.
How can this be without a constitutional amendment?
The California Constitution provides that the University of California is a public trust, to be administered by the Regents of the University of California, who “shall be vested with the legal title and the management and disposition of the property of the university and of property held for its benefit . . . “ (Cal. Const., Art IX, §9.) Yet, under the initiative measure, UC Berkeley, UCLA and UC Irvine are now to be located in different states. Again, there is no way that a statute can alter a constitutional provision.
I doubt (and hope) that this statutory initiative measure will even make it onto the November ballot. The Calif. Supreme Court has the power to engage in “preelection review” to strike an unconstitutional initiative before anyone votes on it. (See Senate of State of Calif. v. Jones (1999) 21 Cal.4th 1142.) In Jones, the Supreme Court invalidated an initiative measure from the ballot just 11 days after receiving the final brief, and 3 days after oral argument. It never went before the voters.
So who is going to file a writ to get this knocked off the ballot before the November election?
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
New Voting Rights Action Section 2 Lawsuits Filed in Alabama, Georgia, and Louisiana<http://electionlawblog.org/?p=99523>
Posted on June 13, 2018 11:22 am<http://electionlawblog.org/?p=99523> by Rick Hasen<http://electionlawblog.org/?author=3>
[https://pbs.twimg.com/profile_images/1000507826861621248/zZ9ztVG0_normal.jpg]<https://twitter.com/marceelias>
<https://twitter.com/marceelias>
Marc E. Elias<https://twitter.com/marceelias>
✔@marceelias<https://twitter.com/marceelias>
<https://twitter.com/marceelias/status/1006961268975112192>
Today we sued Alabama, Georgia and Louisiana for violating Sec. 2 of the Voting Rights Act in how they drew congressional district lines to disadvantage minority voters. Here are copies of the lawsuits: http://bit.ly/2LKt0YW <https://t.co/U8t3KjZfJK> , http://bit.ly/2t9l3oC <https://t.co/xbHhOBEV9R> , http://bit.ly/2sRNjNa <https://t.co/0MF0SGG0FF>
11:07 AM - Jun 13, 2018<https://twitter.com/marceelias/status/1006961268975112192>
· <https://twitter.com/intent/like?tweet_id=1006961268975112192>
109<https://twitter.com/intent/like?tweet_id=1006961268975112192>
· <https://twitter.com/marceelias/status/1006961268975112192>
45 people are talking about this<https://twitter.com/marceelias/status/1006961268975112192>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>
Priorities USA Files State Lawsuit Challenging Missouri Voter ID Law<http://electionlawblog.org/?p=99520>
Posted on June 13, 2018 9:47 am<http://electionlawblog.org/?p=99520> by Rick Hasen<http://electionlawblog.org/?author=3>
This is a really interesting state lawsuit. To simplify a bit: Missouri had a voter id law, which the state supreme court struck down as unconstitutional under the state constitution. So Missouri legislators put a voter id requirement into the state constitution, and then passed implementing legislation prescribing which forms of id were acceptable etc.
The new lawsuit claims that the implementing legislation violates the new voter id requirement in the state constitution.
You can find the complaint here.<http://electionlawblog.org/wp-content/uploads/Priorities-USA-v.-State-of-Missouri-as-filed-Complaint2.pdf>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
“Low-Information Voting: Evidence from Instant-Runoff Elections”<http://electionlawblog.org/?p=99518>
Posted on June 13, 2018 9:41 am<http://electionlawblog.org/?p=99518> by Rick Hasen<http://electionlawblog.org/?author=3>
Mike Alvarez, Thad Hall, and Ines Levin have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3152649> on SSRN (forthcoming, American Politics Research). Here is the abstract:
How do voters make decisions in low-information contests? Although some research has looked at low-information voter decision-making, scant research has focused on data from actual ballots cast in low-information elections. We focus on three 2008 Pierce County (Washington) Instant-Runoff Voting (IRV) elections. Using individual-level ballot image data, we evaluate the structure of individual rankings for specific contests to determine whether partisan cues underlying partisan rankings are correlated with choices made in nonpartisan races. This is the first time that individual-level data from real elections has been used to evaluate the role of partisan cues in nonpartisan races. We find that, in partisan contests, voters make avid use of partisan cues in constructing their preference rankings, rank-ordering candidates based on the correspondence between voters’ own partisan preferences and candidates’ reported partisan affiliation. However, in nonpartisan contests where candidates have no explicit partisan affiliation, voters rely on cues other than partisanship to develop complete candidate rankings.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Sonia Sotomayor Is the Only Justice to Connect Voter Purge Laws With Their Real-Life Consequences”<http://electionlawblog.org/?p=99516>
Posted on June 13, 2018 9:35 am<http://electionlawblog.org/?p=99516> by Rick Hasen<http://electionlawblog.org/?author=3>
Imani Gandy<https://rewire.news/ablc/2018/06/12/sonia-sotomayor-connect-voter-purge-laws-consequences/> for Rewire.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, Supreme Court<http://electionlawblog.org/?cat=29>
“Mainers vote to keep ranked-choice voting, with supporters holding commanding lead”<http://electionlawblog.org/?p=99514>
Posted on June 13, 2018 9:27 am<http://electionlawblog.org/?p=99514> by Rick Hasen<http://electionlawblog.org/?author=3>
Portland Press-Herald:<https://www.pressherald.com/2018/06/12/ranked-choice-voting-takes-lead-in-early-balloting/>
<https://www.pressherald.com/politics/elections/election-2018/> Mainers supported ranked-choice voting for the second time in two years with the passage of a people’s veto on Tuesday, making the state the first in modern times to overhaul its system for choosing candidates.
Supporters of Question 1 held a big lead statewide as of 10:15 a.m. Wednesday morning, according to unofficial results from the Associated Press. With 77 percent of precincts reporting, the measure to proceed with ranked-choice voting had a total of 127,048 yes votes, and 106,607 no votes, results showed. The race was called early Wednesday morning.
Maine voters first approved ranked-choice voting by referendum in November 2016, but the law was mired in legal challenges for nearly a year. The Republican-led Legislature passed a bill in October 2017 that sought to delay implementation, and supporters then responded by gathering enough signatures to force a people’s veto. That’s what was on the ballot Tuesday.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>
--
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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