[EL] ELB News and Commentary 1/16/19

[Rick Hasen]

10th Circuit Sets Oral Argument in Fish v. Kobach, the Kansas Documentary Proof of Citizenship for Voter Registration Case<https://electionlawblog.org/?p=103198>
Posted on January 16, 2019 7:10 am<https://electionlawblog.org/?p=103198> by Rick Hasen<https://electionlawblog.org/?author=3>

The argument will be on March 18 at the University of Utah School of Law.  I am hoping to attend.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Iowa: "EXCLUSIVE: Gov. Kim Reynolds to propose constitutional amendment lifting felon voting ban in Condition of the State"<https://electionlawblog.org/?p=103196>
Posted on January 16, 2019 7:09 am<https://electionlawblog.org/?p=103196> by Rick Hasen<https://electionlawblog.org/?author=3>

Des Moines Register:<https://www.desmoinesregister.com/story/news/politics/2019/01/15/kim-reynolds-felon-voting-rights-constitutional-amendment-lift-ban-iowa-legislature-proposal-2019/2572308002/>

Gov. Kim Reynolds will propose a constitutional amendment restoring voting rights to convicted felons in a Condition of the State address that highlights "the beauty of grace" and second chances.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


#NC09: "Bladen prosecutor's calls went unreturned as state probed absentee ballot issues"<https://electionlawblog.org/?p=103194>
Posted on January 16, 2019 7:06 am<https://electionlawblog.org/?p=103194> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL:<https://www.wral.com/bladen-prosecutor-s-calls-went-unreturned-as-state-probed-absentee-ballot-issues/18126338/>

In the summer of 2017, the chief prosecutor for Bladen County sent the head of North Carolina's State Board of Elections a series of increasingly insistent emails over the board's voting integrity concerns in his county.

The upshot: Why isn't your office responding?

"The municipal elections are coming up, and I'm interested in knowing the findings of your investigation and what steps can be taken to prevent future irregularities in the process," Assistant District Attorney Quintin McGee wrote to Kim Strach, executive director of the elections board, in late August 2017.

By October, McGee was getting into all caps over his frustration with Joan Fleming, a former FBI agent who heads the state board's investigative unit.
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Posted in campaigns<https://electionlawblog.org/?cat=59>


"Radical Changes Are Coming to the Iowa Caucuses"<https://electionlawblog.org/?p=103190>
Posted on January 15, 2019 9:01 pm<https://electionlawblog.org/?p=103190> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld:<https://www.truthdig.com/articles/radical-changes-are-coming-to-the-iowa-caucuses/>

The Iowa Democratic Party is preparing to implement the most sweeping and radical changes to its first-in-the-nation caucuses in 50 years, including potentially adopting online elements that could increase participation by upward of 100,000 voters, according to party leaders.

"We have spent many, many months and thousands of hours of conversations with a whole lot of different folks about what is the best solution. And we're in the process right now, literally this month, of crafting that into a draft of a delegate selection plan," Iowa Democratic Party executive director Kevin Geiken said Thursday.

"We're down to about three choices," he said. "We're down to an absentee ballot system. We're down to a proxy system. We're down to a tele-caucus system. I would venture to say that we are even down to two potential solutions, because the absentee ballot process is so complicated logistically that I just don't think that is a viable solution for us."
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The Census Citizenship Question Endgame-What Will (and Should) the Supreme Court Do?<https://electionlawblog.org/?p=103186>
Posted on January 15, 2019 12:10 pm<https://electionlawblog.org/?p=103186> by Rick Hasen<https://electionlawblog.org/?author=3>

I have now had a chance to make a first pass through Judge Furman's 277-page opinion<https://assets.documentcloud.org/documents/5684702/Findings-of-Fact-Conclusions-of-Law.pdf> holding that the inclusion of the citizenship question on the census violates the Administrative Procedure Act. The key conclusion was that Commerce Secretary Wilbur Ross wanted the citizenship question on the census for whatever reason (likely political reasons). They gave as a pretext the argument that DOJ needed such data to litigate Voting Rights Act cases, but there was no evidence DOJ needed it for that; no evidence it is more helpful than the data DOJ already gets through the ACS; and no evidence that the Census Dept followed Congressional statutes and its own rules in seeking to add the question on the census.  Mark Joseph Stern has details<https://slate.com/news-and-politics/2019/01/federal-judge-census-ruling-wilbur-ross-trump.html> on Judge Furman's analysis and conclusions, and I agree with Justin Levitt<https://twitter.com/_justinlevitt_/status/1085256951309561856> that "Judge Furman's 277-page decision today on the census is extremely important, extremely thorough, and _extremely_ careful. Indeed, though it chronicles substantial gov't abuse, the opinion itself is remarkably restrained. And a big win for that reason."

The question is what comes next, given the impending June deadline for finalizing the census questions for printing-a massive endeavor.

The Supreme Court is already hearing a case about one aspect of Judge Furman's decisions: whether the judge improperly allowed some discovery into the mindset of Secretary Ross and AAAG John Gore. That question seems mostly moot<https://twitter.com/rickhasen/status/1085258523305361409>: Judge Furman relied only on material in the public record in reaching his decisions, so a remand would simply lead to the same decision. (It may not betechnically moot.<https://twitter.com/JoshuaMatz8/status/1085199045264633856>)

But given the press of time, I expect DOJ will seek a stay of Judge Furman's ruling, perhaps by going directly to the Supreme Court and seeking to bypass the 2nd Circuit. DOJ might even seek cert. directly rather than going through the 2d Circuit, and the Supreme Court might even treat a stay request as a cert. petition and grant it.

Justin suggests that would be procedurally irregular.<https://twitter.com/_justinlevitt_/status/1085260811545698304> But I'm not so sure. Yes DOJ has been running to SCOTUS a lot to try to get it to break its usual procedures and hear cases early. The Court has mostly rebuffed those requests. But not with the census, and for good reason. It seems to me that if the Court does not hear this case fully it would either (1) let plaintiffs run out the clock before the case gets full Court review or (2) the case gets decided as a stay, without a full SCOTUS opinion, on the so-called "shadow docket<https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory>." That's really dissatisfying that we may get a dispositive SCOTUS ruling with no explanation.

So I think things get expedited, and it would not be surprising for the normal schedules to be changed and contracted so that this all gets resolved by June (rendering other cases involving the census moot).

We'll see.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


"Voting-rights groups expect Trump's attorney general nominee William Barr to purge voter rolls and limit protections ahead of 2020 elections"<https://electionlawblog.org/?p=103184>
Posted on January 15, 2019 10:16 am<https://electionlawblog.org/?p=103184> by Rick Hasen<https://electionlawblog.org/?author=3>

CNBC reports.<https://www.cnbc.com/2019/01/15/voting-rights-groups-are-concerned-about-trump-ag-nominee-william-barr.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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