[EL] ELB News and Commentary 10/30/18

[Rick Hasen]

“How Democrats Can Reverse Years of Voter Suppression. It doesn’t require packing the Supreme Court.”<https://electionlawblog.org/?p=101817>
Posted on October 30, 2018 7:25 am<https://electionlawblog.org/?p=101817> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/10/democrats-2020-election-voting-reform-nuclear-option.html> for Slate. It begins:

Faced with the latest flurry of hardball Republican tactics on voting issues this election cycle, Democrats are grappling with the reality of an opposition that now seems determined to cement long-term minority<https://balkin.blogspot.com/2018/10/majority-leverage-against-minority-rule.html> rule. In order to combat this dynamic, progressives need a plan of their own for the next time they control both houses of Congress and the presidency. The single best step that Democrats could take under a future unified control would be to use the “nuclear option” to expand voting rights. This would let Democrats, by a simple majority vote, enact wide-ranging voting reform, from restoring a key part of the Voting Rights Act, to automatic voter registration, to statehood for D.C.

This progressive version of electoral hardball—which would merely mean killing the filibuster for voting rights legislation—is an appropriate response to the hardball tactics Republicans have used to manipulate the U.S. political system in recent years. Consider the most prominent example of recent Republican hardball: the Republican Senate in 2016 denying Obama-nominated Judge Merrick Garland a hearing for a Supreme Court spot after the death of Justice Antonin Scalia. In 2017, meanwhile, the Republican Senate invoked the so-called nuclear option, which lowered from 60 votes to a simple majority the number of senators necessary to confirm a Supreme Court nominee, leading to the confirmations of Justices Neil Gorsuch and, more recently, Brett Kavanaugh….

Republican Party. Sargent mines the political science and legal literature on norm devolution and constitutional hardball to urge Democrats to think carefully about the kind of change they might undertake should they retake the levers of power in 2021 or beyond. Drawing on the work of professors Joseph Fishkin and David Pozen<https://columbialawreview.org/content/asymmetric-constitutional-hardball/>, Sargent cogently argues that “Democrats will have to do whatever they can to, in effect, take the weaponry out of GOP hands (in effect, out of both parties’ hands) whenever possible.”
Using the nuclear option to promote democracy makes sense.

Sargent is on the right track, and the key is finding the right balance between restoring political equality and fomenting an all-out political war. Rather than begin with a radical step like court packing, Democrats could, by simple majority, vote to adopt a procedure whereby all future voting rights measures need only a simple majority to pass. Not only would killing of the filibuster here be the exact same move that Republicans did to allow for the majority votes on Kavanaugh and Gorsuch, Democrats could correctly claim that such a move will further the values of equality embedded in the 14th and 15th amendments of the Constitution.
Once Democrats go nuclear on voting rights, here are some pieces of legislation that could pass by majority vote:

• Legislation restoring the preclearance provisions of the Voting Rights Act, which the Supreme Court killed in 2013’s Shelby County v. Holder, using a new coverage formula to satisfy the court’s standard in that case.

• Legislation passed under Congress’s Article I powers to require states to establish independent redistricting commissions<https://blog.harvardlawreview.org/the-next-threat-to-redistricting-reform/>, using neutral standards, for the drawing of congressional district lines.

• Legislation admitting Puerto Rico and D.C. as states in the union, creating four more Senate seats.

• Legislation giving greater voting rights to American citizens living in U.S. territories.

• Legislation establishing automatic voter registration for congressional elections, complete with a national registration system that would both ensure that eligible people are registered to vote and that ineligible people are kept off the rolls.

• Legislation establishing generous public financing for elections (perhaps through the use of campaign finance vouchers<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1961263>), barring foreign interference in U.S.
elections, requiring greater transparency in political giving, and limiting contributions to independent groups like super PACs….


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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Elections in America: Concerns Over Security, Divisions Over Expanding Access to Voting”<https://electionlawblog.org/?p=101815>
Posted on October 30, 2018 7:07 am<https://electionlawblog.org/?p=101815> by Rick Hasen<https://electionlawblog.org/?author=3>

Pew Research Center:<http://www.people-press.org/2018/10/29/elections-in-america-concerns-over-security-divisions-over-expanding-access-to-voting/>

With a week to go before Election Day, Americans are confident their local election authorities are up to the essential tasks of making sure that elections are run smoothly and that votes are counted accurately. Nearly nine-in-ten (89%) have confidence in poll workers in their community to do a good job, and majorities say the same about local and state election officials.

Yet the public expresses less confidence that elections across the United States will be handled as well as local ones. And Americans are deeply concerned about whether the midterms will be secure from foreign hacking.

Two years after Russia interfered with the 2016 presidential election, 67% of Americans say it is very or somewhat likely that either Russia or other foreign governments will try to influence the midterm elections.

Fewer than half (45%) are very or somewhat confident that election systems are secure from hacking, with just 8% saying they are very confident in the security of election systems nationwide.

A major new survey of public attitudes on voting and elections in the U.S. was conducted by Pew Research Center from Sept. 24-Oct. 7 among 10,683 adults, supported by a grant from the Democracy Fund. It finds that, despite concerns over election security, Americans have very positive feelings about voting: Fully 91% say voting in elections is “important,” while 68% say that “voting gives people like me some say about how government runs things.”

[Far more Democrats than Republicans favor making it easy for all to vote]<http://www.people-press.org/?attachment_id=20069166>In addition, a substantial majority (80%) of adults say they expect it will be very or somewhat easy for them to vote in next week’s congressional elections, though just 38% anticipate the experience will be very easy.

These sentiments are notably bipartisan. For example, identical shares in both parties (69% each) say voting gives people a say in government. Yet there are deep partisan disagreements over other aspects of elections in this country, and many are centered on fundamental questions about the voting process.

Perhaps the most telling partisan divisions are on how easy voting should be in the United States. Overall, two-thirds of the public (67%) says “everything possible should be done to make it easy for every citizen to vote,” while only about a third (32%) say citizens “should have to prove they want to vote” by registering in advance.

More than eight-in-ten Democrats and Democratic-leaning independents (84%) say “everything possible should be done to make it easy for every citizen to vote.” By contrast, only about half of Republicans (48%) say this. A similar share of Republicans (51%) think people should have to prove they want to vote by registering ahead of time.

The Republicans’ skepticism about making it easier to vote – and expanding the franchise – is seen across multiple measures in the survey. A majority of Republicans (57%) say that if election rules were changed to make it easier to register and vote, this would result in elections being less secure. Among Democrats, fewer than half as many (22%) express this view; a sizable majority of Democrats (76%) say easing election rules would not make elections less secure….
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“DOJ Asks SCOTUS To Delay Next Week’s Census Citizenship Trial”<https://electionlawblog.org/?p=101813>
Posted on October 29, 2018 3:28 pm<https://electionlawblog.org/?p=101813> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/muckraker/doj-asks-scotus-to-delay-next-weeks-census-citizenship-trial>:

The Trump administration asked the Supreme Court to delay a trial scheduled to start next week in New York over its move to add a citizenship question to the 2020 Census.
The request comes after the Supreme Court earlier this month temporarily halted plans to depose Commerce Secretary Wilbur Ross, while letting a deposition of a top Justice Department official, as well as additional discovery in the case, go forward.

The Justice Department is now asking the Supreme Curt to delay the trial so it can “resolve the question whether the district court must confine its review of the Secretary’s to the administrative record.”

In addition to the request for the trial delay, the Justice Department filed its petition that it consider<https://www.supremecourt.gov/DocketPDF/18/18-557/68321/20181029141407304_In%20re%20United%20States%20Dept%20of%20Commerce%20-%20Pet.pdf> whether a  “a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker.”

That petition argues that the challengers in the case had failed to show that Ross acted in bad faith in adding the question, referencing the “narrow exception” the Supreme Court has recognized “to the general rule prohibiting discovery beyond the administrative record.”
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>


Breaking: Tennessee State Court Issues Order Requiring Shelby County to Implement Procedures to Allow Voters to Correct Deficient or Incomplete Voter Registrations<https://electionlawblog.org/?p=101810>
Posted on October 29, 2018 8:16 am<https://electionlawblog.org/?p=101810> by Rick Hasen<https://electionlawblog.org/?author=3>

See this order.<https://electionlawblog.org/wp-content/uploads/tennessee-order.pdf>
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Posted in election administration<https://electionlawblog.org/?cat=18>

--
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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