[EL] ELB News and Commentary 12/10/19

Tue Dec 10 08:06:00 PST 2019

“Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It”<https://electionlawblog.org/?p=108348>
Posted on December 10, 2019 7:55 am<https://electionlawblog.org/?p=108348> by Rick Hasen<https://electionlawblog.org/?author=3>

Leah Litman and I have posted this draf<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501114>t on SSRN (forthcoming, Georgetown Law Journal). Here is the abstract:

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s 100-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the amendment merely prohibits states from enacting laws that prohibit women from voting, once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.

This piece argues the Nineteenth Amendment does more. A thick understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting rights plaintiffs to attack restrictive voting laws burdening women, especially when those laws burden young women of color, who are guaranteed nondiscrimination in voting on the basis of age and race as well. And a thick understanding of Congress’s power to enforce the Nineteenth Amendment offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach, and to reinforce the democratic legitimacy of the Constitution. The thick understanding of Congress’s enforcement power would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108348&title=%E2%80%9CThin%20and%20Thick%20Conceptions%20of%20the%20Nineteenth%20Amendment%20Right%20to%20Vote%20and%20Congress%E2%80%99s%20Power%20to%20Enforce%20It%E2%80%9D>
Posted in 19th Amendment<https://electionlawblog.org/?cat=128>

“House Democrats Unveil Articles of Impeachment Against Trump”<https://electionlawblog.org/?p=108346>
Posted on December 10, 2019 7:52 am<https://electionlawblog.org/?p=108346> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/12/10/us/politics/trump-impeachment-articles.html>

House Democrats announced on Tuesday that they would move ahead this week with two articles of impeachment charging President Trump with abuse of power and obstruction of Congress, as they accused him of violating the Constitution by pressuring Ukraine for help in the 2020 election….

The announcement comes a day after Democrats summed up the central allegations<https://www.nytimes.com/2019/12/09/us/politics/impeachment-hearings.html> in their impeachment case against Mr. Trump: that he pressured Ukraine to announce investigations into his political rivals while withholding as leverage a coveted White House meeting for its president and $391 million in critical security assistance. His actions, they argued in a lengthy hearing at the Judiciary Committee, had placed the president’s personal political interests above those of the country, threatening the integrity of the election and national security in the process.

After more than two months of investigating<https://www.nytimes.com/interactive/2019/10/04/us/politics/president-trump-impeachment-inquiry.html> the Ukraine matter, and a year of confrontation between the Democratic House and Mr. Trump, the impeachment process is now likely to unfold quickly. The Judiciary Committee plans to promptly begin debating the articles as soon as Wednesday, and could vote by Thursday to recommend them to the full House of Representatives for final approval. If the House follows through as expected next week, Mr. Trump could stand trial in the Senate early in the new year.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108346&title=%E2%80%9CHouse%20Democrats%20Unveil%20Articles%20of%20Impeachment%20Against%20Trump%E2%80%9D>
Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Securing Fair Elections: Challenges to Voting in the United States and Georgia”<https://electionlawblog.org/?p=108344>
Posted on December 10, 2019 7:47 am<https://electionlawblog.org/?p=108344> by Rick Hasen<https://electionlawblog.org/?author=3>

New report <https://scholars.org/fairelections?utm_campaign=8d52d6d101-EMAIL_CAMPAIGN_2019_12_09_05_22_COPY_01&utm_medium=email&utm_source=SSN%20Members&utm_term=0_a9780588d0-8d52d6d101-160642345> from SSN.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108344&title=%E2%80%9CSecuring%20Fair%20Elections%3A%20Challenges%20to%20Voting%20in%20the%20United%20States%20and%20Georgia%E2%80%9D>
Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Defining ‘political activity’ for the internet: Learning from the IRS”<https://electionlawblog.org/?p=108342>
Posted on December 9, 2019 3:58 pm<https://electionlawblog.org/?p=108342> by Rick Hasen<https://electionlawblog.org/?author=3>

Ellen Aprill oped<https://thehill.com/opinion/technology/473658-defining-political-activity-for-the-internet-learning-from-the-irs> in The Hill.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108342&title=%E2%80%9CDefining%20%E2%80%98political%20activity%E2%80%99%20for%20the%20internet%3A%20Learning%20from%20the%20IRS%E2%80%9D>
Posted in tax law and election law<https://electionlawblog.org/?cat=22>

“Comparative Election Administration: A Legal Perspective on Electoral Institutions”<https://electionlawblog.org/?p=108340>
Posted on December 9, 2019 12:52 pm<https://electionlawblog.org/?p=108340> by Rick Hasen<https://electionlawblog.org/?author=3>

Dan Tokaji has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3500868> on SSRN (forthcoming, Edward Elgar volume on comparative election law edited by Jim Gardner). Here is the abstract:

This chapter examines the institutions responsible for administering elections around the world and considers what law, lawyers, and legal scholars might do to strengthen democracy through their improvement. A now-substantial body of literature examines election management bodies in both emerging and established democracies. The consensus is that independent election administration is essential to electoral integrity. This chapter challenges the conventional wisdom in two respects. First, it argues that the formal independence of election management bodies is less important than their functional impartiality. Interactions between election institutions and political parties often promote evenhanded administration better than complete insulation from politics. Thus, formal independence may ultimately detract from functional impartiality. Second, this chapter challenges the narrow focus on election management bodies and attendant disregard for other institutions involved in elections, especially judicial and quasi-judicial actors. It argues that comparative analysis should focus on the interaction among the various entities that collectively comprise the electoral system, including both administrative and adjudicative bodies. The chapter concludes by proposing criteria for assessing electoral systems and suggesting that election lawyers and scholars engage more deeply in international election observation.

Looking forward to reading this!
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108340&title=%E2%80%9CComparative%20Election%20Administration%3A%20A%20Legal%20Perspective%20on%20Electoral%20Institutions%E2%80%9D>
Posted in comparative election law<https://electionlawblog.org/?cat=107>

Uniform Law Commission Urges Supreme Court to Hear Colorado “Faithless Elector” Electoral College Case<https://electionlawblog.org/?p=108338>
Posted on December 9, 2019 10:40 am<https://electionlawblog.org/?p=108338> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the brief (Jim Bopp counsel of record) here<https://www.bopplaw.com/images/colorado-department-of-state-v-baca-amicus-curiae.pdf>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108338&title=Uniform%20Law%20Commission%20Urges%20Supreme%20Court%20to%20Hear%20Colorado%20%E2%80%9CFaithless%20Elector%E2%80%9D%20Electoral%20College%20Case>
Posted in electoral college<https://electionlawblog.org/?cat=44>

“Politics as Pretext”<https://electionlawblog.org/?p=108336>
Posted on December 9, 2019 9:15 am<https://electionlawblog.org/?p=108336> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Sellers has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3486577&dgcid=ejournal_htmlemail_u.s.:constitutional:law:rights:liberties:ejournal_abstractlink> on SSRN (Howard Law Journal). Here is the abstract:

One of the more convoluted dilemmas in election law involves distinguishing government actions motivated by race from those motivated by partisanship. In this Essay, prepared for the Howard Law Journal’s 15th Annual Wiley Branton Symposium, I argue that the race or party dilemma is simply a variant of a dilemma that law has confronted before. It is a dilemma about the extent of law’s — and by extension, society’s — comprehension and definition of “institutional” or “systemic” discrimination.

In support of this claim, the Essay examines two doctrines in which the Supreme Court attended to institutional or systemic discrimination: the state action doctrine and the Civil Rights Act of 1964’s Title VII doctrine, as encapsulated in the Court’s 1971 decision, Griggs v. Duke Power Company. More precisely, it compares the assumptions and inferences about the nature of racial discrimination informing both the leading state action cases and Griggs, with those informing current election law doctrines in which the race or party distinction obtains.

Ultimately, the Essay argues that if the elimination of institutional or systemic discrimination is the goal, then the stark dichotomy between race and partisanship found in election law doctrines should be dispensed with.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D108336&title=%E2%80%9CPolitics%20as%20Pretext%E2%80%9D>
Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

--
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20191210/00a3302f/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/20191210/00a3302f/attachment.png>