[EL] ELB News and Commentary 9/13/18

[Rick Hasen]

California: “Supreme Court permanently bars split-California initiative”<https://electionlawblog.org/?p=101129>
Posted on September 12, 2018 9:01 pm<https://electionlawblog.org/?p=101129> by Rick Hasen<https://electionlawblog.org/?author=3>

3-Californias is dead.<http://www.atthelectern.com/supreme-court-permanently-bars-split-california-initiative/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101129&title=California%3A%20%E2%80%9CSupreme%20Court%20permanently%20bars%20split-California%20initiative%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


NYT Reviews of Carol Anderson and Allan Lichtman Books on the Voting Wars<https://electionlawblog.org/?p=101127>
Posted on September 12, 2018 9:00 pm<https://electionlawblog.org/?p=101127> by Rick Hasen<https://electionlawblog.org/?author=3>

Anderson review.<https://www.nytimes.com/2018/09/12/books/review-one-person-no-vote-carol-anderson.html?rref=collection%2Fsectioncollection%2Fbooks&action=click&contentCollection=books%C2%AEion=rank&module=package&version=highlights&contentPlacement=1&pgtype=sectionfront>

Lichtman review.<https://www.nytimes.com/2018/09/12/books/review/allan-j-lichtman-embattled-vote-in-america.html?rref=collection%2Fsectioncollection%2Fbooks&action=click&contentCollection=books%C2%AEion=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101127&title=NYT%20Reviews%20of%20Carol%20Anderson%20and%20Allan%20Lichtman%20Books%20on%20the%20Voting%20Wars>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Or to the People: Popular Sovereignty and the Power to Choose a Government”<https://electionlawblog.org/?p=101125>
Posted on September 12, 2018 4:25 pm<https://electionlawblog.org/?p=101125> by Rick Hasen<https://electionlawblog.org/?author=3>

Elizabeth Reese has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3198398#%23> on SSRN (Cardozo Law Review). Here is the abstract:

To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states’ rights amendment, these textualists have inexplicably glossed over the Tenth Amendment’s final four words, which reserve powers to “the people.” This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment’s final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of wielding specific powers — particularly those powers that the Constitution places beyond the reach of our governments. Primarily, the Tenth Amendment protects that power which is at the heart of popular sovereignty as well as the foundation of our democracy, the power of the people to choose their government. The Tenth Amendment ought to protect popular sovereignty — as it protects state sovereignty — by serving as a source for robust judicial review of federal and state laws that infringe on popular sovereignty. Recognizing this overlooked portion of the Tenth Amendment could alter current legal doctrine surrounding voting rights by treating free, fair, and accessible elections as a matter of competing sovereign powers rather than individual voting rights. By ignoring the people in the Tenth Amendment, American jurisprudence has ignored a vital structural protection against federal and state tyranny and risked government-driven erosion of democracy in America.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101125&title=%E2%80%9COr%20to%20the%20People%3A%20Popular%20Sovereignty%20and%20the%20Power%20to%20Choose%20a%20Government%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Divided Ninth Circuit Panel Rejects Voting Rights Challenge to Arizona Law on Absentee Ballot “Harvesting” and Counting Ballots Cast in Wrong Precincts<https://electionlawblog.org/?p=101123>
Posted on September 12, 2018 4:24 pm<https://electionlawblog.org/?p=101123> by Rick Hasen<https://electionlawblog.org/?author=3>

This is a major case,<http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf> that could go en banc.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101123&title=Divided%20Ninth%20Circuit%20Panel%20Rejects%20Voting%20Rights%20Challenge%20to%20Arizona%20Law%20on%20Absentee%20Ballot%20%E2%80%9CHarvesting%E2%80%9D%20and%20Counting%20Ballots%20Cast%20in%20Wrong%20Precincts>
Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


3-Judge Court Stays Its Own Order, with Conditions, in North Carolina Partisan Gerrymandering Case, and It Excoriates the North Carolina Legislators’ Briefing<https://electionlawblog.org/?p=101121>
Posted on September 12, 2018 2:53 pm<https://electionlawblog.org/?p=101121> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the order here<https://www.brennancenter.org/sites/default/files/legal-work/2018-09-12-155-Order.pdf>.

Neither Legislative Defendants’ Motion nor their supporting brief explicitly addresses any of the well-established factors set forth in Hilton. Normally, that failure alone would be fatal to Legislative Defendants’ Motion. See, e.g., Hickman-Bey v. Livingston, No. 2:13-CV-266, 2013 WL 6890767, at *2 (S.D. Tex. Dec. 31, 2013). Nonetheless, given the parties’ agreement, we grant the Motion, subject to the two agreed upon conditions: (1) Legislative Defendants file their Jurisdictional Statement with the Supreme Court by October 1, 2018, and (2) Legislative Defendants seek no requests for extension of time while their appeal is pending before the Supreme Court. If Legislative Defendants breach either of these conditions, the stay will immediately, and without any action by this Court, dissolve. Additionally, if Legislative Defendants breach either of these conditions, this Court will move forward immediately with drawing its own remedial districting plan.

III. Although we exercise our discretion to grant Legislative Defendants’ motion, we admonish counsel for Legislative Defendants regarding their briefing submitted allegedly “in support” of the Motion. Under Federal Rule of Civil Procedure 11, “[b]y presenting to the court a [brief]—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the brief “is not being presented for any improper purpose” and that “the factual contentions [therein] have evidentiary support[.]” Rather than addressing the relevant legal standard and why Legislative Defendants are entitled to the extraordinary relief of a stay under that standard, counsel for Legislative Defendants devote much of their briefing to making baseless ad hominem attacks against the motives and integrity of this Court and appealing to irrelevant extra-legal sources….
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101121&title=3-Judge%20Court%20Stays%20Its%20Own%20Order%2C%20with%20Conditions%2C%20in%20North%20Carolina%20Partisan%20Gerrymandering%20Case%2C%20and%20It%20Excoriates%20the%20North%20Carolina%20Legislators%E2%80%99%20Briefing>
Posted in redistricting<https://electionlawblog.org/?cat=6>


8th Circuit Rejects as Moot Challenge to Faithful Presidential Electors Law<https://electionlawblog.org/?p=101119>
Posted on September 12, 2018 2:35 pm<https://electionlawblog.org/?p=101119> by Rick Hasen<https://electionlawblog.org/?author=3>

Howard<https://howappealing.abovethelaw.com/2018/09/12/#81590> with the details.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101119&title=8th%20Circuit%20Rejects%20as%20Moot%20Challenge%20to%20Faithful%20Presidential%20Electors%20Law>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Scorecard Charts Pro-Democracy Positions for Members of the 115th Congress”<https://electionlawblog.org/?p=101117>
Posted on September 12, 2018 2:32 pm<https://electionlawblog.org/?p=101117> by Rick Hasen<https://electionlawblog.org/?author=3>

Common Cause ratings. <https://www.commoncause.org/press-release/new-scorecard-charts-pro-democracy-positions-for-members-of-the-115th-congress/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101117&title=%E2%80%9CNew%20Scorecard%20Charts%20Pro-Democracy%20Positions%20for%20Members%20of%20the%20115th%20Congress%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New Jersey: “Top 25 Special Interest Groups Spent More than $74 Million in 2017”<https://electionlawblog.org/?p=101115>
Posted on September 12, 2018 2:31 pm<https://electionlawblog.org/?p=101115> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://www.elec.state.nj.us/pdffiles/press_releases/pr_2018/pr_09122018.pdf>

The top 25 special interest groups in 2017 spent more than $74 million trying to influence elections and government policy in New Jersey, according to a new analysis by the New Jersey Election Law Enforcement Commission (ELEC). The analysis seeks to measure the full clout of the pressure groups by totaling their direct contributions and independent spending, which influence elections, and lobbying, which influences policy. A similar analysis was done in 2013. In both years, there were elections for the governor’s post and all 120 legislative seats. Comparing 2017 with 2013, a mix of unions, 527 political committees, business groups and ideological organizations spent almost $18.6 million (34 percent) more in 2017 than the top 25 in 2013. Fifteen groups listed in 2013 also appear on the 2017 list….
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101115&title=New%20Jersey%3A%20%E2%80%9CTop%2025%20Special%20Interest%20Groups%20Spent%20More%20than%20%2474%20Million%20in%202017%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
“Susan Collins Complains of ‘Bribery’ After Nonbillionaires Try to Influence Her Kavanaugh Vote”<https://electionlawblog.org/?p=101113>
Posted on September 12, 2018 10:35 am<https://electionlawblog.org/?p=101113> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/09/susan-collins-complains-of-bribery-after-nonbillionaires-try-to-influence-her-kavanaugh-vote.html> for Slate. It begins:

On Monday, Sen. Susan Collins accused political opponents of Judge Brett Kavanaugh of attempted “bribery.” The charge itself is without any legal merit whatsoever. That complaints about the campaign finance effort came from Collins<http://thehill.com/homenews/senate/406041-collins-calls-crowdfunding-to-get-her-to-oppose-kavanaugh-a-bribe>, Republican election lawyer Cleta Mitchell, and an aide to Senate Majority Leader Mitch McConnell make the episode almost too rich to be believed. Their cries of bribery, illegality, and lack of principle lay bare the bankrupt campaign finance system that Mitchell and McConnell helped create and that Collins has contributed to with previous Supreme Court votes and will supersize with her likely vote to confirm Kavanaugh.

Collins labeled as a “bribe” a fundraising plan by two progressive Maine groups, aided by the company Crowdpac<https://www.crowdpac.com/>, to raise funds for Collins’ eventual opponent in 2020. People are pledging to give money via Crowdpac to that unknown future opponent, but donors will only be charged for the donation if Collins votes “yes” on Kavanaugh’s nomination to the Supreme Court. As of Tuesday night, the groups reported<https://www.crowdpac.com/campaigns/387413/either-sen-collins-votes-no-on-kavanaugh-or-we-fund-her-future-opponent?ref_code=carousel> pledged donations of more than $1 million, with a $1.3 million goal. There were more than 39,000 individual pledges ranging from $1 to the maximum allowable donation to a candidate of $2,700….

And what about reading this statute or other federal statutes to prevent what might look like extortion of Collins to vote in a particular way? Well, the Supreme Court has told us in cases like 2010’s Citizens United that large amounts of money sloshing around the system are just fine so long as they are not given by an individual directly to candidates. So long as there is no direct quid pro quo—dollars for political favors—all is fine.

And the behavior of the two Maine progressive groups is not unusual, expect for the fact that it is funded by small donors. This is demonstrated easily by looking at the behavior of those shouting bribery the loudest. As Adam Smith<https://twitter.com/asmith83/status/1039679780659101697> noted, although Sen. John Cornyn boosted Collins’ bribery complaints, back in January he was urging the Koch brothers to spend hundreds of millions of dollars to reward the Republican Party for tax cuts benefiting wealthy donors. This came after big donors threatened to withhold<https://nypost.com/2017/11/06/gops-big-donors-threaten-to-close-wallets-if-tax-reform-isnt-passed/> money until Republicans got that tax bill passed. That’s closer to Mitchell’s claims of “bribery” than what the Maine groups are doing. Indeed, a 2014 report<https://moritzlaw.osu.edu/thenewsoftmoney/wp-content/uploads/sites/57/2014/06/the-new-soft-money-WEB.pdf> by Ohio State University law professors Dan Tokaji and Renata Strause found that threats by super PACs to spend against incumbents if they don’t vote the way the super PAC donors want is an everyday Washington occurrence.

Perhaps the chutzpah award<https://twitter.com/asmith83/status/1039674107804246016>, though, should go to Sen. McConnell’s deputy chief of staff Don Stewart, who urged<https://twitter.com/StewSays/status/1039660485354893313> “every Maine Democrat … to refuse to accept this tainted funding” as the “principled” thing to do.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101113&title=%E2%80%9CSusan%20Collins%20Complains%20of%20%E2%80%98Bribery%E2%80%99%20After%20Nonbillionaires%20Try%20to%20Influence%20Her%20Kavanaugh%20Vote%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Dark Money Illuminated Issue One shines a light on the top 15 secretive groups spending millions of dollars to sway voters and malign candidates”<https://electionlawblog.org/?p=101111>
Posted on September 12, 2018 6:40 am<https://electionlawblog.org/?p=101111> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://www.issueone.org/dark-money-press-release/>

Just 15 dark money groups in the post-Citizens United era accounted for over 75 percent of the more than $800 million in political dark money spent between January 2010 and December 2016, according to Issue One’s new year-long investigation, “Dark Money Illuminated.”<https://www.issueone.org/dark-money/>

During this period, these groups — some of which spent to help Democrats and some of which aided Republicans — reported spending more than $600 million in political dark money to the Federal Election Commission (FEC) and were ranked as the top 15 dark money spenders, according to an Issue One analysis of data from the Center for Responsive Politics and FEC.

[https://www.issueone.org/wp-content/uploads/2018/09/TopGroupsWebsiteLogo.png]<https://www.issueone.org/wp-content/uploads/2018/09/TopGroupsWebsiteLogo.png>“Dark Money Illuminated” shines light on approximately 400 donors and donor organizations who have funded these leading dark money groups that specialize in the attack ads and negative campaigns that are poisoning our elections. These donors are being made searchable in an extensive, first-of-its-kind database<https://docs.google.com/spreadsheets/d/1vpImNT1tSNoBWpSIg7Hx_gqG85hcM70CJ_5DtPcIYBI/edit#gid=0>containing nearly 1,200 transactions, each supported by primary source documents. You can also see these records in ProPublica’s FEC Itemizer database<https://projects.propublica.org/itemizer/dark-money>.

At its core, “Dark Money Illuminated” also highlights how little even the most seasoned experts are able to unearth about the secretive, dark money groups that are coming to define congressional elections.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101111&title=%E2%80%9CDark%20Money%20Illuminated%20Issue%20One%20shines%20a%20light%20on%20the%20top%2015%20secretive%20groups%20spending%20millions%20of%20dollars%20to%20sway%20voters%20and%20malign%20candidates%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>


“U.S. Commission on Civil Rights Releases Report: An Assessment of Minority Voting Rights Access in the United States”<https://electionlawblog.org/?p=101109>
Posted on September 12, 2018 6:38 am<https://electionlawblog.org/?p=101109> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://www.usccr.gov/press/2018/09-12-18-PR.pdf>

Today, the U.S. Commission on Civil Rights released its report, An
Assessment of Minority Voting Rights Access in the United States. Based on extensive
research and expert and public testimony, the report assesses minority voter access
around the country, and evaluates the Department of Justice’s enforcement of the
Voting Rights Act (VRA) since 2006, in particular after the Supreme Court’s Shelby
County v. Holder decision. In Shelby County, the Supreme Court held that preclearance
provisions of the VRA unconstitutionally determined which jurisdictions needed federal
government pre-approval to change voting procedures.
Chair Catherine E. Lhamon said, “Today’s report reflects the reality that citizens in the
United States – across many states, not limited only to some parts of the country –
continue to suffer significant, and profoundly unequal, limitations on their ability to
vote. That stark reality denigrates our democracy and diminishes our ideals. This level
of ongoing discrimination confirms what was true before 1965, when the Voting Rights
Act became law, and has remained true since 1965: Americans need strong and effective
federal protections to guarantee that ours is a real democracy.”
Key unanimous findings and recommendations from the Commission include:
• In states across the country — and particularly in many previously covered under
the preclearance requirements of the VRA — new laws and voting
procedures are impacting minority voting rights. Examples of such laws
and procedures include:
o Strict voter ID laws;
o Closing polling places;
o Cutting early voting;
o Voting roll purges and challenges to eligibility.
• Since Shelby County halted the federal preclearance regime, elections have
taken place under laws that were later found in court to be
intentionally discriminatory against communities of color

• In the face of ongoing discrimination in voting procedures enacted by states
across the country, enforcement and litigation under Section 2 of the VRA is an
inadequate, costly and often slow method for protecting voting rights.
2
• Because of the nature of voting rules being broadly applicable to all eligible
voters, a single change in law, procedure, or practice can disproportionately affect
large numbers of eligible voters and possibly discriminate against certain groups
of people whose voting rights are protected by the VRA.
The Commission, unanimously, calls on Congress to:
• Amend the VRA to restore and expand protections against
discrimination, including federal preclearance.
• When establishing the reach of an amended VRA preclearance coverage
provision, include current evidence of, and historical and persisting
patterns of, discrimination.• Consider the reality that infringement of voting rights may arise in
jurisdictions that do not have extensive histories of discrimination, as
minority populations shift.
• Provide a streamlined remedy to review changes with known risks of
discrimination, before they take effect — not after potentially tainted
elections.
The Commission, unanimously, calls on the Department of Justice to:
• Pursue more VRA enforcement to address the aggressive efforts by
state and local officials to limit the vote of citizens of color, citizens with
disabilities, and those with limited-English proficiency.
In North Carolina, we held a public briefing on voting rights, receiving testimony from
23 current and government officials, legal experts, academics, civil society actors, and
some 40 members of the public. Twelve Commission state Advisory Committees –
Alabama, Alaska, Arizona, California, Illinois, Indiana, Kansas, Louisiana, Maine, New
Hampshire, Ohio, and Texas – have carried out their own voting rights investigations,
contributing to this Commission report.
The Commission was established in 1957 with the initial charge of addressing voting
rights. Commission reporting on pervasive voting discrimination in the 1950s and 60s
contributed to the passage of the Voting Rights Act.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101109&title=%E2%80%9CU.S.%20Commission%20on%20Civil%20Rights%20Releases%20Report%3A%20An%20Assessment%20of%20Minority%20Voting%20Rights%20Access%20in%20the%20United%20States%E2%80%9D>
Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Libertarian Party threatens legal action against Ohio Debate Commission over exclusion from gubernatorial debate”<https://electionlawblog.org/?p=101107>
Posted on September 12, 2018 6:35 am<https://electionlawblog.org/?p=101107> by Rick Hasen<https://electionlawblog.org/?author=3>

The Cleveland Plain Dealer reports.<https://www.cleveland.com/open/index.ssf/2018/09/libertarian_party_threatens_le.html>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101107&title=%E2%80%9CLibertarian%20Party%20threatens%20legal%20action%20against%20Ohio%20Debate%20Commission%20over%20exclusion%20from%20gubernatorial%20debate%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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/>
[/Users/rhasen/Library/Containers/com.microsoft.Outlook/Data/Library/Caches/Signatures/signature_832332601]


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180913/8a01640a/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180913/8a01640a/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 210384 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180913/8a01640a/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 92163 bytes
Desc: image003.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180913/8a01640a/attachment-0002.png>