[EL] ELB News and Commentary 6/27/19

[Rick Hasen]

Pa. Republicans Will Agree to Fund Voting Machine Upgrade with a Paper Trail Only If Law Also Eliminates Straight Ticket Voting Favored by Democrats<https://electionlawblog.org/?p=105803>
Posted on June 26, 2019 8:22 pm<https://electionlawblog.org/?p=105803> by Rick Hasen<https://electionlawblog.org/?author=3>

Holding election integrity hostage<https://www.usnews.com/news/best-states/pennsylvania/articles/2019-06-26/republicans-tie-voting-machine-cash-to-election-law-changes> to a political change.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105803&title=Pa.%20Republicans%20Will%20Agree%20to%20Fund%20Voting%20Machine%20Upgrade%20with%20a%20Paper%20Trail%20Only%20If%20Law%20Also%20Eliminates%20Straight%20Ticket%20Voting%20Favored%20by%20Democrats>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Formalism and Realism in Campaign Finance”<https://electionlawblog.org/?p=105797>
Posted on June 26, 2019 8:07 pm<https://electionlawblog.org/?p=105797> by Rick Hasen<https://electionlawblog.org/?author=3>

Jacob Eisler has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3410455> on SSRN (forthcoming, Cambridge Law Journal). Here is the abstract:

R. v MACKINLAY [2018] UKSC 42, [2018] 3 W.L.R. 556 addressed a narrow question of statutory construction, with implications for two weighty influences upon elections: party support of local candidates, and campaign funding. The case considered an interlocutory pure question of law for an ongoing criminal prosecution. The Supreme Court imposed statutory reporting restrictions and answered the legal question without applying its conclusions to the specific facts of the case. Nevertheless, the facts are important for the general substantive context. In issue was whether a candidate must explicitly authorise campaign resources that are provided to the candidate gratis (“notional expenditures”) for the resources to qualify as candidate “election expenses” under the Representation of the People Act 1983 (RPA). While Mackinlay rightly concluded that such notional expenditures do not require authorisation to be treated as candidate election expenses, the Supreme Court undertook a tortured reading of statutory language to avoid engagement with substantive political realities. Its unwillingness to face these underlying issues may in time undermine the regulatory regime.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105797&title=%E2%80%9CFormalism%20and%20Realism%20in%20Campaign%20Finance%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>


“A Lot of Candidates May Make It Seem Like Democracy Is Working, But It Isn’t”<https://electionlawblog.org/?p=105790>
Posted on June 26, 2019 2:18 pm<https://electionlawblog.org/?p=105790> by Richard Pildes<https://electionlawblog.org/?author=7>

That’s the title on Larry Bartel’s op-ed<https://www.nytimes.com/2019/06/25/opinion/2020-candidates.html> in today’s NYT about reforming the presidential primary process. It’s noteworthy that there’s been an outpouring of commentary and academic work in the past few years urging re-consideration of the nominations process we stumbled into in the 1970s and have lived with since. As readers here know, I’ve been pushing on this issue for a number of years, as can be found here<https://www.nytimes.com/2019/06/25/opinion/2020-candidates.html> and here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064938>.

After providing some excerpts from Bartel’s piece, I’ll offer a brief comment on it. From the piece:

Research<https://www.amazon.com/Presidential-Primaries-Dynamics-Public-Choice/dp/0691022836> on primary voting demonstrates that voters make better-informed and more coherent choices when the race involves just two or three major contenders. That’s why political elites and political institutions have a crucial role to play in shaping the options presented to primary voters. . . .

What is largely missing from this process is the professional judgment<https://www.amazon.com/Consequences-Reform-Nelson-Polsby-1983-04-07/dp/B01K3LYBOG> of people who actually know the candidates — officeholders and party officials. But the Democratic Party’s attempt to insert the judgment of “superdelegates” at the end of the nominating process, after primary voters have already had their say, has generated bitter complaints<https://www.politico.com/magazine/story/2018/08/30/bernie-sanders-superdelegate-democrats-1968-219619> about “undemocratic”<https://www.latimes.com/opinion/op-ed/la-oe-0502-bartels-achen-primary-obsession-20160502-story.html> elites overriding the will of the party rank and file. . . .

A better approach would be for the party itself to conduct systematic polls of Democratic senators, members of Congress, big-city mayors and state party officials — not to determine which one candidate they support, but to solicit their confidential evaluations of each candidate on his or her own merits. The results could be used to formalize and accelerate winnowing the field, allowing voters to tackle the more manageable task of choosing from a short list of candidates vetted by the political professionals they themselves have already elected.

It’s unclear to me what it would mean to use these polls of party figures to “formalize and accelerate winnowing the field.” That sounds like giving party figures distinctive, formal weight in the process — which in turn sounds like a partial return to a significant, formal role for “peer review” in the nominations process, though Bartels does not seem willing to quite come out and say that.

I have no illusions in our current political culture that there is any imminent prospect of restoring a role for party figures and peer review in the nominations process. Still, the fact that more commentators and scholars are willing to raise this issue is worth noting.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105790&title=%E2%80%9CA%20Lot%20of%20Candidates%20May%20Make%20It%20Seem%20Like%20Democracy%20Is%20Working%2C%20But%20It%20Isn%E2%80%99t%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New York Weighs in At SCOTUS in Census Citizenship Question Case to Urge Court Not to Decide Equal Protection Question Not Before It.<https://electionlawblog.org/?p=105791>
Posted on June 26, 2019 2:14 pm<https://electionlawblog.org/?p=105791> by Rick Hasen<https://electionlawblog.org/?author=3>

The latest missive<https://www.supremecourt.gov/DocketPDF/18/18-966/104219/20190626164554061_18-966%20Resps.%20Letter%20to%20Court%206.26.19%20with%20Service%20List.pdf>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105791&title=New%20York%20Weighs%20in%20At%20SCOTUS%20in%20Census%20Citizenship%20Question%20Case%20to%20Urge%20Court%20Not%20to%20Decide%20Equal%20Protection%20Question%20Not%20Before%20It.>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


The End Game Possibilities for the Census Case<https://electionlawblog.org/?p=105786>
Posted on June 26, 2019 8:18 am<https://electionlawblog.org/?p=105786> by Rick Hasen<https://electionlawblog.org/?author=3>

The census decision is coming tomorrow from the Supreme Court. Most likely in my view is a 5-4 decision upholding the inclusion of the citizenship question, without addressing equal protection issue. Alito (if he writes) could include dicta to try to prejudge that issue. Alito setting a time bomb to be used in another case is one of his specialties, as I wrote about here<http://law.emory.edu/elj/content/volume-61/issue-4/thrower-symposium-articles/anticipatory-overrulings-invitations-time-bombs.html>.

If this happens, then I expect if 4th circuit (or district court) excludes citizenship question on equal protection grounds, there will a battle over the summer at the Supreme Court over the case. If that happens, the Court might decide the issue without oral argument or opinion. That’s been dubbed by Will Baude as part of Court’s “shadow docket” and it is very problematic in terms of the Court fully airing issues and explaining reasoning. Far better would be an early September oral argument, with a decision by October (before the real print deadline).

The Court could also NOT decide census case at all tomorrow, and could send it back to trial court for a limited remand on evidence of bad intent from the Hofeller files. It could then hear this case again and 4th Circuit case in September. I don’t think that’s a likely outcome but it is possible. If Alito has opinion, allows inclusion of question, strongly hints at rejection of equal protection claim in separate 4th circuit case, I expect bitter dissents (especially from Sotomayor). We should know in 23 hours.

Update: Josh Blackman offered his own thoughts on the endgame here<https://threadreaderapp.com/thread/1143698702831443968.html>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105786&title=The%20End%20Game%20Possibilities%20for%20the%20Census%20Case>
Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


MALDEF Files SCOTUS Letter in Census Case Saying Not to Decide Equal Protection Issue Not Before the Court<https://electionlawblog.org/?p=105784>
Posted on June 26, 2019 8:04 am<https://electionlawblog.org/?p=105784> by Rick Hasen<https://electionlawblog.org/?author=3>

From the letter:<https://www.supremecourt.gov/DocketPDF/18/18-966/104125/20190625235418903_6-25-19%20SCOTUS%20Reply%20Letter%20FINAL.pdf>

First, the Solicitor General’s request would require this Court to render an improper advisory opinion on issues that have not been briefed or argued before this Court, relating to cases that are not before this Court, based on a trial record that is not before this Court. The Solicitor General filed a Petition for a Writ of Certiorari Before Judgment to the Court of Appeals for the Second Circuit in Department of Commerce, et al. v. New York, et al., No. 18-966, and a Petition for Writ of Certiorari Before Judgment to the Court of Appeals for the Ninth Circuit in the related case of Ross v. State of California, No. 18-1214. The Solicitor General could have, but did not file a similar Petition in LUPE and Kravitz. Because the Solicitor General did not do so, the full record in these consolidated cases is not before this Court and there is no basis for this Court to adjudicate the equal protection claims asserted in LUPE and Kravitz.

Second, the only evidence in the record concerning the deadline to finalize the 2020 Census questionnaire is the testimony of Census Bureau Chief Scientist, Dr. John Abowd, who testified that with additional resources, the final date for locking down the content of the census questionnaire could be extended to October 31, 2019. J.A. 906. The Solicitor General’s assertion that June 30 is an immovable deadline is unsupported by the record and does not require this Court to adjudicate
an issue that is not properly before it.

I wrote about the first point yesterday at Slate<https://slate.com/news-and-politics/2019/06/census-case-john-roberts-bush-v-gore-tragedy.html>.



UPDATE: The Supreme Court clerk has removed the letter, apparently because it was not accepted for filing. You can read the letter here.<http://%20https/electionlawblog.org/wp-content/uploads/maldef-letter.pdf>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105784&title=MALDEF%20Files%20SCOTUS%20Letter%20in%20Census%20Case%20Saying%20Not%20to%20Decide%20Equal%20Protection%20Issue%20Not%20Before%20the%20Court>
Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


--
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/>
[signature_70310516]


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190627/9c5f2680/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/20190627/9c5f2680/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 92163 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190627/9c5f2680/attachment-0001.png>