[EL] ELB News and Commentary 8/15/19

[Rick Hasen]

EAC Chair McCormick Defends Her Opposition to Automatic Voter Registration<https://electionlawblog.org/?p=106923>
Posted on August 14, 2019 8:40 pm<https://electionlawblog.org/?p=106923> by Rick Hasen<https://electionlawblog.org/?author=3>

The Fulcrum:<https://thefulcrum.us/automatic-voter-registration-2639823562>

The chairwoman of the Election Assistance Commission told the nation’s state legislators last week that she’s opposed to automatic voter registration.

Adding qualified citizens to the rolls whenever they do business with a state agency, unless they choose to opt out, has quickly become a widely accepted component of most democracy reform agendas. Eighteen states will have so-called AVR in place in time for the 2020 election after a surge of acceptance in state legislatures this decade. And the practice would be nationally mandated under HR 1, the comprehensive campaign finance, election and ethics legislation the House passed in March.

But Christy McCormick argues that registering to vote is a form of speech protected by the First Amendment and that “not registering to vote is a choice – we should respect our citizens’ choices.”

Rick Hasen, a law professor at the University of California Irvine, published an item about the presentation on his election law blog, saying that the presentation “raised some eyebrows” at the gathering in Nashville of the National Conference of State Legislatures….

In a statement Wednesday, McCormick said she was “specifically asked by NCSL to provide a counterpoint and share some of the challenges to implementing automatic voter registration.” McCormick said she favors so-called automated registration, which often occurs at motor vehicle bureaus, in which people renewing drivers’ licenses are invited to register.

“Voters should give prior consent to registering to vote for a variety of reasons, including, but not limited to, indicating political affiliation, choosing to register in a different state, or declining to register based on religious objection,” she said.
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Posted in Election Assistance Commission<https://electionlawblog.org/?cat=34>, voter registration<https://electionlawblog.org/?cat=37>


“Dynamic Legislation”<https://electionlawblog.org/?p=106919>
Posted on August 14, 2019 5:47 pm<https://electionlawblog.org/?p=106919> by Rick Hasen<https://electionlawblog.org/?author=3>

Rebecca Kysar has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3425542&dgcid=ejournal_htmlemail_legislation:statutory:interpretation:ejournal_abstractlink> on SSRN (forthcoming, U, Pa. L. Rev.). Here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3425542&dgcid=ejournal_htmlemail_legislation:statutory:interpretation:ejournal_abstractlink> is the abstract:

To overcome congressional gridlock, lawmakers have developed devices that, under certain conditions, provide easier paths to policy change. Procedural mechanisms may eliminate the threat of filibuster and other barriers to legislating. Laws may prompt Congress to act through sunset dates, penalties like sequestration, or other undesirable policy outcomes. Alternatively, the legislative product itself may spontaneously update without further action by Congress, a category I label “dynamic legislation.” For instance, during consideration of recent tax legislation, lawmakers proposed that certain tax cuts be automatically ratcheted down if the bill failed to generate sufficient economic growth and that delayed tax increases not go into effect if revenue hurdles were met.

Of these various tools, I argue that dynamic legislation has the most potential to combat legislative inertia while also meeting the challenges of the democratic process. Specifically, dynamic legislation outperforms the other tools because it leverages the resources of the administrative state without succumbing to excessive deference, it does not impermissibly entrench the current majority, and it is not as susceptible to the pathologies of the political economy and budget processes. Dynamic legislation also provides a mechanism by which Congress can evaluate itself, automatically adjusting laws depending on how well they are performing. Dynamic legislation holds particular promise in areas, like fiscal policy, where these concerns are acute, and where its design is not too costly.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>


“The Supreme Court in a Polarized Era: Is Legitimacy at Risk?”<https://electionlawblog.org/?p=106917>
Posted on August 14, 2019 5:45 pm<https://electionlawblog.org/?p=106917> by Rick Hasen<https://electionlawblog.org/?author=3>

Logan Struther and Shana Kushner Gadarian have posted this draft on SSRN. Here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3426819&dgcid=ejournal_htmlemail_law:positive:political:theory:ejournal_abstractlink> is the abstract:

We examine the role that mass perceptions of the Supreme Court’s institutional nature—particularly how “political” it is—plays in assessments of its legitimacy. In a series of original studies, we find that policy disagreement with Supreme Court decisions leads individuals to view that decision, and the Court itself, as being political in nature. We then show that the more political people think the Court is, the less legitimate they consider it to be. In this way, we show that policy disagreement with decisions strongly and directly reduces Court legitimacy.
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Posted in political polarization<https://electionlawblog.org/?cat=68>, Supreme Court<https://electionlawblog.org/?cat=29>


Arizona: “Prop 106 Organizers Tried to Pay Phoenix Voters $15 to Post Ads on Social Media”<https://electionlawblog.org/?p=106915>
Posted on August 14, 2019 2:53 pm<https://electionlawblog.org/?p=106915> by Rick Hasen<https://electionlawblog.org/?author=3>

A hole<https://www.phoenixnewtimes.com/news/social-media-users-posts-paid-campaign-financing-loophole-11340615> in Arizona campaign disclosure laws.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, social media and social protests<https://electionlawblog.org/?cat=58>


“Do Trump Officials Plan To Break Centuries Of Precedent In Divvying Up Congress?”<https://electionlawblog.org/?p=106913>
Posted on August 14, 2019 10:07 am<https://electionlawblog.org/?p=106913> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2019/08/14/749930756/do-trump-officials-plan-to-break-centuries-of-precedent-in-divvying-up-congress?utm_term=nprnews&utm_campaign=politics&utm_source=twitter.com&utm_medium=social>:

Recent statements by Census Bureau and Justice Department officials have raised the question of whether the Trump administration plans to diverge from more than two centuries of precedent in how the country’s congressional seats and Electoral College votes are divvied up.

Since the first U.S. census in 1790, the Constitution has called for a head count every 10 years of “persons” living in the U.S. to determine the number of congressional seats each state gets. Federal law requires the commerce secretary, who oversees the Census Bureau, to deliver<https://www.law.cornell.edu/uscode/text/13/141> those numbers by the end of a census year to the president, who must report them to Congress<https://www.law.cornell.edu/uscode/text/2/2a> within a week after the start of its new session.

The counts have always included both citizens and noncitizens — regardless of immigration status — although the history of who was counted and how is complicated. Following the Civil War, the 14th Amendment<https://www.ourdocuments.gov/doc.php?flash=false&doc=43&page=transcript> was ratified to require the counting of the “whole number of persons,” ensuring the rights of formerly enslaved people who were once considered “three fifths” of a person. The “Indians not taxed” clause no longer excluded some American Indians by the 1940 census, when the Census Bureau began attempting to include all Native Americans<https://www.census.gov/srd/papers/pdf/ev90-19.pdf> in the counts used for reapportioning seats in Congress.

In recent weeks, however, the Census Bureau’s director, Steven Dillingham, has not been able to provide a clear answer as to whether citizenship will be factored into apportionment after the 2020 census….

Former Census Bureau Director John Thompson tells NPR the ambiguity in the bureau’s statement to Pressley about the apportionment count raises “some serious concerns.”

“I don’t think it’s normal for the Census Bureau” to be vague about what goes into its “most important product,” says Thompson, who was appointed by President Barack Obama and left the bureau in 2017.

With just over five months until the official start of the 2020 census, Thompson says it’s “incredibly important” for the bureau to be transparent about what data will be used to decide how congressional seats and Electoral College votes are redistributed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Will Trump’s Plan B To Use Census For An Anti-Immigrant Power Grab Even Work?”<https://electionlawblog.org/?p=106911>
Posted on August 14, 2019 10:04 am<https://electionlawblog.org/?p=106911> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/news/trump-census-bureau-citizenship-existing-records-accuracy>:

The Census Bureau says it can obtain the data President Trump will need to facilitate a game-changing, GOP-boosting redistricting overhaul. The outside experts who work with redistricting data aren’t so sure.

Having failed in his attempt to add a citizenship question to the 2020 census, Trump resorted to what amounts to a backup plan: an executive order commanding the Census Bureau to use existing government records to come up with citizenship data.

The overhaul is part of a broad effort to let states exclude noncitizens in how they draw legislative maps, which would increase representation for Republican-leaning whites, while diminishing the political power of diverse, immigrant-friendly communities.

The Census Bureau told Congress recently that it would be producing the kinds of citizenship data that would let red states exclude noncitizens from consideration in redistricting. However, redistricting experts and outside census wonks TPM spoke to in the last few weeks raised several concerns about the accuracy of the citizenship data the Census Bureau will be producing.

Doubts about the accuracy and validity of the census data could open lines of legal attack on redistricting efforts that rely on the data, foreshadowing a new wave of redistricting challenges in 2021.
“It is, I think, a very big question and whether or not this thing could really be pulled off,” Kimball Brace, president of Election Data Services Inc. told TPM.

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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
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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