[EL] my Abbott analysis/more news

Mon Jun 25 11:25:21 PDT 2018

“Suppression of Minority Voting Rights Is About to Get Way Worse; The Supreme Court has put its thumb on the scales in favor of discriminatory states.”<http://electionlawblog.org/?p=99775>
Posted on June 25, 2018 11:23 am<http://electionlawblog.org/?p=99775> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/06/the-abbott-v-perez-case-echoes-shelby-county-v-holder-as-a-further-death-blow-for-the-voting-rights-act.html> for Slate. It begins:

On Monday, five years<http://electionlawblog.org/?p=99752> to the day<https://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html> that the Supreme Court decided Shelby County v. Holder<https://scholar.google.com/scholar_case?case=1305449212751290785&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, a case in which the court struck down a key provision of the Voting Rights Act with assurances that other parts of the act would still protect minority voters, the court proved those assurances false in Abbott v. Perez<https://www.supremecourt.gov/opinions/17pdf/17-586_o7kq.pdf>. In Abbott, the Roberts court on a 5–4 vote eschewed the judicial minimalism it has used to avoid other contentious issues—such as partisan<http://electionlawblog.org/?p=99759> gerrymandering<https://slate.com/news-and-politics/2018/06/anthony-kennedy-wont-rule-on-gerrymandering.html> and the clash<https://slate.com/news-and-politics/2018/06/the-supreme-courts-decision-in-masterpiece-cakeshop-is-a-kennedy-compromise.html> between anti-discrimination laws and religious liberties—to contort rules limiting its own jurisdiction so that it could give states like Texas freer rein for repression of minority voting rights. The signals from Justice Neil Gorsuch, who signed onto a Clarence Thomas concurrence, show that things will only get worse going forward, especially if Justice Anthony Kennedy retires in the near future….

In perhaps the most important part of Justice Samuel Alito’s majority opinion, the court emphasized that courts must “presume” the “good faith” of the legislatures in determining whether a state was engaged in racial discrimination. Further, because race and party overlap so much in places like Texas, what looks like racial motivation may be partisan motivation.

The upshot of this analysis is that it is going to be well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3. With this thumb on the scale in favor of states, and the ability to say they were just being partisan<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403> and not engaged in race discrimination<https://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>, they will have a freer rein to engage in discriminatory action. That’s happening not only in Texas, but in states like North Carolina (also subject to federal oversight before Shelby), which the Fourth Circuit found had targeted black Americans “with almost surgical precision”<https://www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf> in passing an earlier strict set of voting rules and that is back at it again, trying to reimpose voter ID<http://electionlawblog.org/?p=99746> and pass a host of other discriminatory measures.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“A Counterattack on Voting Rights”<http://electionlawblog.org/?p=99773>
Posted on June 25, 2018 10:51 am<http://electionlawblog.org/?p=99773> by Rick Hasen<http://electionlawblog.org/?author=3>

David Leonardt<https://www.nytimes.com/2018/06/24/opinion/voting-rights-utah-vote-by-mail.html?smid=tw-nytopinion&smtyp=cur> for NYT Opinion.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“‘It takes five minutes or less.’ Court ruling means new Kansas voters sign up easily”<http://electionlawblog.org/?p=99771>
Posted on June 25, 2018 10:48 am<http://electionlawblog.org/?p=99771> by Rick Hasen<http://electionlawblog.org/?author=3>

KC Star:<http://www.kansascity.com/news/politics-government/article213666814.html>

Four days after a federal judge threw out<http://www.kansascity.com/news/politics-government/article213415624.html> a Kansas voting restriction, 72 newly naturalized Americans became registered voters in the same courthouse where the landmark voting rights trial took place.<http://www.kansascity.com/news/politics-government/article206025749.html>

“That’s the reason why I became a citizen: to be able to vote,” said Patricia Mascote, who owns a convenience store in Overland Park and has lived in the United States for nearly 30 years after emigrating from Mexico.

If Mascote’s naturalization ceremony had taken place just a week earlier, Mascote could have been required to submit her naturalization documents to complete the registration process.

Instead, all she and the other newly registered voters had to do was write down their names and addresses and attest to their new status as citizens….

“I understand Kobach needs to take classes on the law again. It makes you think,” said Manuel Novas-Garcia, a voter who became naturalized Friday and was aware of the judge’s order in the case.

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Posted in election administration<http://electionlawblog.org/?cat=18>

Unanimous Sixth Circuit Upholds First Amendment and Other Challenges to Six Ohio Judicial Candidate Speech/Conduct Rules<http://electionlawblog.org/?p=99769>
Posted on June 25, 2018 10:41 am<http://electionlawblog.org/?p=99769> by Rick Hasen<http://electionlawblog.org/?author=3>

Today’s opinion in Platt v. Board of Commissioner<http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0120p-06.pdf>s continues the trend since the Supreme Court’s Williams-Yulee case upholding a number of judicial speech and conduct rules (more about that coming in the 2018 Election Law casebook supplement).

The provisions upheld were:

• Rule 4.1(A)(2), which prohibits a candidate from making speeches on behalf of a political party or another candidate for public office

• Rule 4.1(A)(3), which prohibits a candidate from publicly endorsing or opposing a candidate for another public office

• Rule 4.4(A), which, save for three exceptions, prohibits a judicial candidate from personally soliciting campaign contributions

• Rule 4.4(E), which creates a permissible window for soliciting and receiving campaign contributions, starting 120 days before the primary and ending 120 days after the general election

• Rule 4.4(F), which limits the solicitation and receipt of contributions for candidates defeated before the general election, until the earlier of 120 days after the primary election or until the candidate pays off her campaign-related debts

• Rule 4.4(G), which regulates the solicitation and receipt of contributions for candidates who die or withdraw from the election, until the earlier of 120 days after death or withdrawal or until the candidate pays off her campaign-related debts.

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Posted in judicial elections<http://electionlawblog.org/?cat=19>

“NAACP v. Alabama after 60 Years: Should Associational Privacy Still Be Protected by the Constitution?”<http://electionlawblog.org/?p=99767>
Posted on June 25, 2018 10:02 am<http://electionlawblog.org/?p=99767> by Rick Hasen<http://electionlawblog.org/?author=3>

This event<https://www.cato.org/events/naacp-v-alabama-after-60-years-should-associational-privacy-still-be-protected-constitution> at Cato on June 28 should be good:

Featuring Bradley Smith, Chairman and Founder, Institute for Free Speech and Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, Capital University; Lawrence Noble, former General Counsel, Federal Election Commission; moderated by John Samples, Vice President, Cato Institute.

Sixty years ago, the United States Supreme Court decided the landmark case of NAACP v. Alabama. In 1956, as part of the civil rights struggle, the state of Alabama sought the membership lists of the NAACP chapter in that state. The Court ruled against the state and discerned a “vital relationship between freedom to associate and privacy in one’s associations.” The decision remains a high point from the civil rights era. However, many now deny the Court’s assertion that a broad right to privacy offers a vital protection for the freedom to associate and to speak.

Since the decision, the Court has placed few limits on government’s power to mandate disclosure of political activities and associations. As the new online era of speech dawns, the principles at stake in NAACP v. Alabama remain at the center of public debates. Is the right to associational privacy recognized in NAACP v. Alabama still good law? Or should the Court reconsider the tie between privacy and association? Please join us for a vigorous debate that takes this important anniversary as a starting point for our common future.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Listen to New Books in Political Science Podcast, with Me Talking to Heath Brown About My Scalia book<http://electionlawblog.org/?p=99765>
Posted on June 25, 2018 9:59 am<http://electionlawblog.org/?p=99765> by Rick Hasen<http://electionlawblog.org/?author=3>
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NB Political Science at NewBooksPoliSci<https://twitter.com/NewBooksPoliSci>

<https://twitter.com/NewBooksPoliSci/status/1011275025780035584>

Funny, rude & innovative, Antonin Scalia was a disrupter on the court. @rickhasen<https://twitter.com/rickhasen>'s THE JUSTICE OF CONTRADICTIONS (@yalepress<https://twitter.com/yalepress>) wrestles w/Scalia’s favored ways of interpreting the law, textualism & originalism. He joins @heathbrown<https://twitter.com/heathbrown> for this #podcast<https://twitter.com/hashtag/podcast?src=hash>. http://newbooksnetwork.com/rick-hasen-the-justice-of-contradictions-antonin-scalia-and-the-politics-of-disruption-yale-up-2018/ …<https://t.co/gzK2tSsWLo>
8:48 AM - Jun 25, 2018<https://twitter.com/NewBooksPoliSci/status/1011275025780035584>

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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

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