[EL] more news 11/16/18

[Rick Hasen]

“A Judge Upheld Florida Rules Requiring ‘Magic Words’ And ‘Consistency’ To Determine Voter Intent”<https://electionlawblog.org/?p=102341>
Posted on November 16, 2018 8:08 am<https://electionlawblog.org/?p=102341> by Rick Hasen<https://electionlawblog.org/?author=3>

BuzzFeed:<https://www.buzzfeednews.com/article/zoetillman/a-judge-upheld-florida-rules-requiring-magic-words-and>

“They are uniform, nondifferential standards that provide a reasonable procedure to determine the intent of voters. This is not to say the rules are perfect or the best way to do things. But they are constitutional,” Walker wrote in his opinion<https://assets.documentcloud.org/documents/5141076/11-15-18-DSCC-Magic-Words-Order.pdf>.

This seems clearly the right call.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Can’t Make this Up Dept: “Ex-chief investigator of Mercer County elections charged with voter fraud, witness tampering”<https://electionlawblog.org/?p=102337>
Posted on November 16, 2018 7:32 am<https://electionlawblog.org/?p=102337> by Rick Hasen<https://electionlawblog.org/?author=3>

Trentonian:<https://www.trentonian.com/news/local/ex-chief-investigator-of-mercer-county-elections-charged-with-voter/article_36260ad8-e933-11e8-8644-8f650e30e530.html>

A former chief investigator of Mercer County elections has been charged with voter fraud after officials learned she resides in Pennsylvania, yet has voted in New Jersey since at least 2012.

Andrea Palmucci-McGillicuddy, 52, is charged with fraudulent voting, interference with elections and other related offenses, according to court records.

The charges were filed in Princeton Municipal Court and the case has been referred to the Ocean County Prosecutor’s Office due to conflicts of interest in Mercer.

Palmucci-McGillicuddy, a registered Democrat, gained employment with Mercer County in October 2011 as a seasonal assistant, according to records obtained by this newspaper. A year later, she started working full-time with the Superintendent of Elections Office to the Mercer County Board of Elections as a registration clerk. She was promoted to Chief Investigator of Elections in 2014, starting with a yearly salary of $46,000.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“GOP megadonor Miriam Adelson is winning a medal. But are Republicans losing the political money war?”<https://electionlawblog.org/?p=102335>
Posted on November 16, 2018 7:26 am<https://electionlawblog.org/?p=102335> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI:<https://www.publicintegrity.org/2018/11/16/22495/gop-megadonor-miriam-adelson-winning-medal-are-republicans-losing-political-money>

But Adelson’s Presidential Medal of Freedom<https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-names-recipients-presidential-medal-freedom/> — which liberals<https://twitter.com/davidaxelrod/status/1062556117778251777> are mocking<https://twitter.com/adamcbest/status/1061302707758264321> as an award for the $113 million<https://twitter.com/davelevinthal/status/1061274382289506307> Adelson and her billionaire casino mogul husband, Sheldon Adelson, contributed to conservative candidates, super PACs and other political committees during the 2018 midterm elections — comes as some Republicans are  fretting about the party’s reliance on a handful of aging billionaires.

Several prominent Republican fundraisers and major donors  confirmed the GOP is both concerned about keeping current megadonors giving and cultivating a new crop of major bankrollers.

“There’s no next generation of financial leadership on the bench,” said one Republican strategist involved in raising large contributions, who requested anonymity in order to speak candidly.

And some donors and party fundraisers say it’s time for the Republican Party to broaden its donor base beyond the super-rich and move away from a fundraising model that requires a lot of personal contact. Many point to the success Democrats have had raising money online.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Plutocrats United<https://electionlawblog.org/?cat=104>


Manheim: Shifting the Burden and Striking a Balance<https://electionlawblog.org/?p=102333>
Posted on November 16, 2018 7:23 am<https://electionlawblog.org/?p=102333> by Rick Hasen<https://electionlawblog.org/?author=3>

In collaboration with Take Care<http://takecareblog.com/>, Take Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Post from LIsa Manheim

There are the laws on the books, and the laws in practice. Democratic leaders have promised<https://www.npr.org/2018/11/12/665635832/democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home> that their first legislative vote will come on a bill that, among other reforms, resuscitates the Voting Rights Act. For this legislation to be effective rather than symbolic, it will need to include powerful enforcement mechanisms. Among the most powerful of mechanisms is a legal framework that shifts burdens—evidentiary and otherwise—onto the states. This intrusive approach will garner few fans across the aisle. Yet political gridlock is not its only obstacle. Proponents also will need to convince the Supreme Court that Congress has the constitutional authority to intrude so aggressively on the states.

A review of the century after the Reconstruction Amendments helps to explain why burden-shifting is so critical for voting-rights legislation to be effective. During this time, minority voters enjoyed the impartial administration of elections, but only in name. In practice, the discrimination against minority voters was aggressive, widespread, and brazen. The lessons of this period confirm what any plaintiff-side attorney already knows. Namely, it’s not enough to have a legal theory. You have to be able to prove it up. And you need to be able to do so before your case no longer matters.

The ingenuity of the Voting Rights Act of 1965—the brilliance of its crown jewel<https://slate.com/news-and-politics/2013/06/supreme-court-and-the-voting-rights-act-goodbye-to-section-5.html>, Section 5—was its recognition of this reality. Through the adoption of a unique legal structure<https://www.justice.gov/crt/about-section-5-voting-rights-act>, Section 5 accomplished what prior reforms could not: the rapid and meaningful enfranchisement of minority voters. Section 5 operated by freezing in place the election laws and practices of covered jurisdictions (primarily in the South) and requiring those jurisdictions to establish the lawfulness of any changes before they could go into effect. This preclearance regime implied more than a shifting of the burden; it turned the voting-rights framework on its head. No longer were voters forced to investigate the government, initiate complicated legal claims, and, often, endure multiple election cycles tainted by unlawful suppression before they could begin the lengthy and expensive process of seeking relief. Instead, the jurisdiction was the one forced to raise the issue, develop the record, and wait.

The effects were striking—both after Section 5’s enactment, when minority registration rates increased dramatically, and after its 2013 collapse, when the U.S. Supreme Court functionally invalidated<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> Section 5. Since that latter development, formerly covered jurisdictions have been passing restrictive measures<https://www.brennancenter.org/analysis/effects-shelby-county-v-holder> for which it would have been difficult, or impossible, to achieve Section 5 preclearance. This wave of suppressive measures continued<https://www.brennancenter.org/new-voting-restrictions-america> through the 2018 elections, with the trend showing little sign of abating<https://talkingpointsmemo.com/feature/the-amazing-disappearing-voter>. In the absence of the Voting Rights Act’s preclearance regime, these restrictive measures go into effect immediately, with voters left to scramble.

These voters have turned to fallback claims—claims that do not have the prophylactic protections of Section 5. This legal strategy has been predictably lacking. Plaintiffs relying on Section 2 of the Voting Rights Act, for example, have found it to be an “inadequate, costly, and often slow method for protecting voting rights<https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf>.” These fallback claims rely on a much more traditional structure than does Section 5. They do not shift the burden, and they otherwise were not designed to even the playing field between voters and the jurisdictions seeking to suppress those voters. As a result, they cannot accomplish what Section 5 did.

Instead, the limitations of these claims allow recalcitrant jurisdictions to evade effective review by exploiting the control they have over the entire election process. Without their procedures frozen in place, jurisdictions can wear down challengers through a flood<https://www.nytimes.com/2018/10/11/us/politics/georgia-voter-registration-kemp-abrams.html> of different tactics, push through changes whose suppressive effects are hard to quantify<https://projects.propublica.org/electionland/national/what-we-dont-know-the-full-effects-of-voter-suppression/>, make questionable decisions at the last minute<https://www.washingtonpost.com/politics/broken-machines-rejected-ballots-and-long-lines-voting-problems-emerge-as-americans-go-to-the-polls/2018/11/06/ffd11e52-dfa8-11e8-b3f0-62607289efee_story.html?utm_term=.97c8a773803a>, bury relevant evidence<https://www.politico.com/blogs/under-the-radar/2018/06/18/kobach-citizenship-vote-court-rules-652867>, and drag out<https://www.apnews.com/fe17f062ece847ccbeeb57bb8642b7c0>legal challenges—all while elections occur at regular intervals. The results of these elections allow officials to serve out their terms regardless of whether expensive and time-consuming lawsuits later reveal that unlawful conduct had tainted the process.

In light of these realities, in a parallel universe, where members of both parties took seriously their obligation to preserve citizens’ voting rights (and reforms of the 116th Congress therefore had a chance of success), it would be imperative for the House’s legislation to feature prominently the burden-shifting framework of Section 5. Without this framework, voting-rights plaintiffs necessarily are forced to play catch up—in regularly scheduled races where the winners never retroactively lose their titles.

Of course, in this parallel world, Congress also might need a different Supreme Court: one prepared to accept Congress’s constitutional authority to impose such a deeply intrusive framework on the states. This reflects the reality that the burden-shifting framework of Section 5 is indeed an “extraordinary departure from the traditional course of relations between the States and the Federal Government<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>.”

This leads to a broader observation. For congressional voting-related reforms—of any variety—to have real teeth, Congress will need to be very careful about designing its legislation in a way that comports with the Supreme Court’s narrowing view of congressional authority. To that end, perhaps it can take advantage of the Court’s recent acknowledgement<https://supreme.justia.com/cases/federal/us/570/12-71/#tab-opinion-1970710> that the Elections Clause empowers Congress broadly<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3152638> (and, accordingly, be prepared to push back on arguments<http://www.scotusblog.com/wp-content/uploads/2017/08/16-980-ts-merit-brief.pdf>, which may be gaining traction<https://www.law.cornell.edu/supremecourt/text/16-980#writing-16-980_CONCUR_4>, that it empowers Congress only on the margins). Or maybe it can convince a majority of the Supreme Court to rethink the assumptions underlying its 2013 decision—to recognize that, amid the “largest wave of franchise restrictions since the dark days of Jim Crow<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232079>,” the United States may not in fact have “changed<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>” so much that Congress can’t justify a decision to renew protections similar to those imposed by the original Voting Rights Act.

To be clear, there is a real tension here: between imposing effective reforms, on the one hand, and ensuring they are insulated against constitutional challenge, on the other. Striking the appropriate balance is not for the faint of heart; it requires dispassionate assessment of enforcement challenges and uncertain predictions about what a changing Supreme Court will tolerate. But, ultimately, conducting this analysis—and relying on those assessments to push the legal limits—may be critical. Otherwise, Congress may find itself unable to protect the concept of “one person, one vote” as a practical reality, rather than as mere words on a page.


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


Federal District Court Rejects Argument that Due Process Requires Gov. Scott to Recuse From Election-Related Duties, But Finds His Rhetoric and Actions Close to the Line<https://electionlawblog.org/?p=102331>
Posted on November 16, 2018 7:21 am<https://electionlawblog.org/?p=102331> by Rick Hasen<https://electionlawblog.org/?author=3>

Interesting opinion. <https://protectdemocracy.org/resource-library/document/league-of-women-voters-of-florida-v-scott-order/>
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>


Undervotes in Broward County U.S. Senate Race Appear Due to Ballot Design and Not Machine Error, All But Ending Bill Nelson’s Chances of Succeeding in the Recount<https://electionlawblog.org/?p=102329>
Posted on November 16, 2018 7:16 am<https://electionlawblog.org/?p=102329> by Rick Hasen<https://electionlawblog.org/?author=3>

Pema Levy:<https://twitter.com/pemalevy/status/1063434131395223552>
[https://pbs.twimg.com/profile_images/587029223186903040/bVK3wDfa_normal.jpg]<https://twitter.com/pemalevy>
<https://twitter.com/pemalevy>
Pema Levy<https://twitter.com/pemalevy>
✔@pemalevy<https://twitter.com/pemalevy>

 · 1h<https://twitter.com/pemalevy/status/1063434131395223552>
<https://twitter.com/pemalevy/status/1063434131395223552>

Replying to @pemalevy<https://twitter.com/_/status/1063427507091906563>

Folks on the floor here in Broward seem to agree that the vast majority of ballots here are “no votes” in the Senate race. Bad news for Nelson, who needs to pick up thousands here. Not on track to do that.
[https://pbs.twimg.com/profile_images/587029223186903040/bVK3wDfa_normal.jpg]<https://twitter.com/pemalevy>
<https://twitter.com/pemalevy>
Pema Levy<https://twitter.com/pemalevy>
✔@pemalevy<https://twitter.com/pemalevy>


Breaking: Broward County just finished its hand recount in the Senate race. Waaaaay ahead of schedule. This is bad news for Nelson/Democrats
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300<https://twitter.com/intent/like?tweet_id=1063445440782311425>
6:55 AM - Nov 16, 2018<https://twitter.com/pemalevy/status/1063445440782311425> · Lauderhill, FL<https://twitter.com/search?q=place%3A0fbf6b3abebf121b>
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201 people are talking about this<https://twitter.com/pemalevy/status/1063445440782311425>

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


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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