[EL] ELB News and Commentary 10/23/18

[Rick Hasen]

“Is the Assault on Voting Rights Getting Worse, or Are We Just Noticing It More?”<https://electionlawblog.org/?p=101683>
Posted on October 23, 2018 7:24 am<https://electionlawblog.org/?p=101683> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/10/brian-kemp-kris-kobach-voter-suppression.html> for Slate. It begins:

Over the weekend, President Donald Trump threatened prosecutions<https://twitter.com/realDonaldTrump/status/1053807130120200192> against nonexistent voter fraud, a message likely aimed at intimidating voters and stopping some from voting. With Trump’s heightened rhetoric and a seemingly increasing number of stories about voter suppression around the country, it is worth asking: Has voter suppression actually gotten worse in the 2018 midterm election season? Or are we just hearing about it more thanks to the hyperpolarized political environment? The truth depends on which state you are talking about.

In many parts of the U.S., even in many Republican states, registering to vote and voting is becoming easier. But in some key Republican states, Supreme Court decisions have allowed states to put up new hurdles for voting. Just ask Native Americans in North Dakota, black voters in Georgia, or Latinos in Dodge City, Kansas. Whether or not these hurdles actually affect election outcomes, they are outrageous, unjustified, and a drain on state resources.

In some ways we are really talking about two Americas. In one part of America, voting is getting easier<http://prospect.org/article/good-news-voting-wars-0>. Many blue states, and even some red ones, have moved to adopt<https://www.brennancenter.org/analysis/automatic-voter-registration> automatic voter registration. Many red and purple states have much more generous periods of early voting than blue states; early in-person voting started Oct. 10 in Ohio<https://www.sos.state.oh.us/elections/voters/voting-schedule/#gref>, yet does not exist at all in New York. And both red and blue states have moved to adopt online voter registration<http://www.ncsl.org/research/elections-and-campaigns/electronic-or-online-voter-registration.aspx>, which is a convenience for voters and avoids errors in data entry. Other bipartisan reforms include the sharing of information across states through the ERIC database<https://www.ericstates.org/> to avoid duplicate voter registrations.

That is all good news, and it is often ignored in the fight over voter fraud and voter suppression. Such actions deserve praise and support as election officials and legislatures do their jobs to ensure that all eligible voters can easily cast a ballot that will be fairly counted.

But there’s the other part of America too. There’s North Dakota<https://www.nytimes.com/2018/10/19/us/politics/north-dakota-voter-identification-registration.html>, which changed its voter identification law after the razor-thin election of Sen. Heidi Heitkamp in 2012 to make it harder for Native American voters living on reservations and lacking a residential street address to be able to vote. There’s Georgia<https://politics.myajc.com/news/state--regional-govt--politics/lawsuit-challenges-000-stalled-georgia-voter-registrations/PK3tylRO9Z1ICNzDcH0FyH/>, where Secretary of State (and current gubernatorial candidate) Brian Kemp has been holding for administrative review up to 53,000 voter registration cards for failing to have an exact match (like a missing hyphen) between the official record of a person’s name and the name appearing on the registration card. And there’s Dodge City, Kansas<https://www.kansas.com/news/business/article220286260.html>, a Latino-majority city with only a single polling place for 27,000 people—a polling place that was recently moved out of town and a mile from public transportation for the 2018 midterm elections.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Voters Sue Georgia So They Can Cast Ballots in Hot Governor’s Race”<https://electionlawblog.org/?p=101681>
Posted on October 23, 2018 7:20 am<https://electionlawblog.org/?p=101681> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://www.bloomberg.com/news/articles/2018-10-23/georgia-lawsuits-cite-train-wreck-plan-tossing-out-ballots>

Allegations that Georgia’s Republican-led election officials are unfairly throwing out mailed ballots over hyper-technical errors are set to go before a federal judge two weeks before Election Day.

Hundreds — perhaps thousands — of ballots are being rejected because voters’ signatures don’t appear to match the ones on file, or because the voter oath is signed on the wrong line, two lawsuits claim. And would-be voters don’t get a chance to fix the errors or provide explanations, they say.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


New Election Day Educator Pledge Aims to Get Educators to Encourage Student Voting<https://electionlawblog.org/?p=101679>
Posted on October 23, 2018 7:15 am<https://electionlawblog.org/?p=101679> by Rick Hasen<https://electionlawblog.org/?author=3>

I expect this list<https://www.educatorpledge.com/> to grow substantially.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Independent Spending Continues Record Pace; Party Groups Lead The Way”<https://electionlawblog.org/?p=101677>
Posted on October 23, 2018 7:13 am<https://electionlawblog.org/?p=101677> by Rick Hasen<https://electionlawblog.org/?author=3>

Campaign Finance Institute:<http://www.cfinst.org/Press/PReleases/18-10-23/INDEPENDENT_SPENDING_CONTINUES_RECORD_PACE_PARTY_GROUPS_LEAD_THE_WAY.aspx>

Independent expenditures (IEs) reported to the Federal Election Commission (FEC) for general election House and Senate contests have continued on a record pace, totaling $695 million through October 21st. This is $103 million more than on the same date in 2016, based on a Campaign Finance Institute (CFI) analysis of data supplied by the FEC. Detailed data on all races with independent expenditures, and on the organizations making the IEs, are available and updated daily on CFI’s website via these links: House<http://cfinst.org/data/2018_House_Independent.aspx> | Senate<http://cfinst.org/data/2018_Senate_Independent.aspx> | Spenders<http://cfinst.org/data/2018_Org_IndependentSpending.aspx>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“Prairie View A&M students sue Waller County over early voting sites”<https://electionlawblog.org/?p=101675>
Posted on October 23, 2018 7:11 am<https://electionlawblog.org/?p=101675> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2018/10/22/prairie-view-m-students-sue-waller-county-over-early-voting-sites/>

Five students at Prairie View A&M University are suing Waller County, which is home to the historically black university, over allegations that the county is suppressing the voting rights of its black residents.

In a lawsuit filed Monday, the students accused the county of violating the federal Voting Rights Act and the U.S. Constitution by not providing any early voting location on campus or in the city of Prairie View during the first week of early voting. The suit says the county’s decision “imposes a substantial and unwarranted burden” on student voters and denies them “an equal opportunity to vote” compared to the county’s non-black voters.

“There is no legitimate, non-discriminatory reason for defendants to deny opportunities for early voting during the first week to plaintiffs and black voters in Prairie View on an equal basis with other non-black voters of the Waller County,” the lawsuit reads.
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Posted in voting<https://electionlawblog.org/?cat=31>


Supreme Court Blocks Wilbur Ross Deposition in Census Case, Allows John Gore Deposition, For Now<https://electionlawblog.org/?p=101672>
Posted on October 22, 2018 8:11 pm<https://electionlawblog.org/?p=101672> by Rick Hasen<https://electionlawblog.org/?author=3>

SCOTUSBlog:<http://www.scotusblog.com/2018/10/justices-block-ross-deposition-in-census-dispute/>

The Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census. Without any publicly recorded objections, the justices kept on hold plans to depose Wilbur Ross, the Secretary of Commerce, about the decision. And although the justices rejected the government’s request to block other discovery in the case – specifically, the deposition of John Gore, the acting head of the civil rights division of the Department of Justice, and additional discovery outside the administrative record for the decision – they hinted that the government might be able to get broader relief further down the road….

Tonight the full court acted<http://www.scotusblog.com/wp-content/uploads/2018/10/18A375-In-Re-Department-of-Commerce.pdf> on the government’s request. First, the justices granted the government’s plea to block the deposition of Ross, relief for which the government needed at least five votes. There were no publicly recorded dissents from this part of tonight’s order, so there is no way to know whether all of the justices supported this outcome or whether some were opposed but opted not to announce that opposition.

Ross’ deposition will remain on hold at least until next Monday, October 29, at 4 p.m.; if the federal government files a brief seeking review of the district court’s ruling, the deposition will remain on hold until the justices rule on the new request for review and, if that request is granted, rule on the merits of the discovery dispute.

The justices rebuffed the government’s request to block the deposition of Gore and other discovery outside the administrative record. However, the justices made clear in tonight’s order that their denial of the relief would not prevent the government from addressing those issues in its brief seeking review of the district court’s ruling.

NYT<https://www.nytimes.com/2018/10/22/us/politics/supreme-court-wilbur-ross-deposition-census.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=sectionfront>:

The Supreme Court temporarily blocked a court order on Monday that would have required Wilbur Ross, the secretary of commerce, to give a deposition in a lawsuit challenging the addition of a question concerning citizenship to the 2020 census.

As is the Supreme Court’s practice in ruling on stay applications, its brief order gave no reasons. The court said its order staying the deposition would stand until it resolved a petition from the Trump administration. A trial in the case is scheduled to start next month…

On Monday, Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, said the Supreme Court should have gone further, shutting down all pretrial fact-gathering in the census case. Justice Gorsuch added that there was no indication of bad faith in Mr. Ross’s conduct.

“There’s nothing unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Justice Gorsuch wrote. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a cabinet secretary’s motives.”
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


State Court in New Hampshire Blocks Proof of Residency Law Aimed at Curbing Student Voting<https://electionlawblog.org/?p=101670>
Posted on October 22, 2018 11:05 am<https://electionlawblog.org/?p=101670> by Rick Hasen<https://electionlawblog.org/?author=3>

The court’s opinion finding the law likely unconstitutional is here<https://big.assets.huffingtonpost.com/athena/files/2018/10/22/5bce0fade4b055bc94836c93.pdf>. The court gave no credit to the state’s unsupported claim that the law was necessary to prevent voter fraud or instill public confidence.

Despite the proximity to the election, the court enjoined the law’s use in November.
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Posted in voting<https://electionlawblog.org/?cat=31>


Is Texas Doing Enough to Promote Voter ID As It Promised to Do?<https://electionlawblog.org/?p=101668>
Posted on October 22, 2018 10:53 am<https://electionlawblog.org/?p=101668> by Rick Hasen<https://electionlawblog.org/?author=3>

This looks like something good for a journalist to follow up on.  A reader writes: “Texas apparently no longer interested in making voter ID available.I’ve been looking at Texas’s voter ID page (http://www.votetexas.gov/mobile/eic/index.htm) and noticed that, as of today, two weeks before the election, they’ve only had one mobile ID event, and the information about Saturday hours for EICs still discusses availability for March 2018. It seems Texas election officials are no longer interested after all in getting ID in the hands of voters.”

Texas promised educational efforts as part of the lawsuit involving voter id.

Would love to know if this is the sum total of what the state has done.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>


--
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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