[EL] ELB News and Commentary 1/27/20

Sun Jan 26 20:40:07 PST 2020

“Caucusing in Iowa With a Disability: Red Tape and Unreturned Calls”<https://electionlawblog.org/?p=109159>
Posted on January 26, 2020 8:38 pm<https://electionlawblog.org/?p=109159> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2020/01/26/us/politics/iowa-caucuses-disabilities.html>

Talk to Iowans with disabilities and you will hear the same story over and over: a nightmarish experience in 2016, and repeated pleas that bring only vague assurances that 2020 will be better.

The state Democratic and Republican Parties say they have worked hard to make it so. The Democrats have an online form<https://docs.google.com/forms/d/e/1FAIpQLSc32D8h8WIfM74ulDb3vi9DUfI7t4bS2XsgwVI9oKtXNRCx5g/viewform> for people to request accommodations by Monday; the Republicans list a phone number<https://www.iowagop.org/caucus_accommodation>, an email address and a Friday deadline. But they have publicized the processes perfunctorily if at all.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109159&title=%E2%80%9CCaucusing%20in%20Iowa%20With%20a%20Disability%3A%20Red%20Tape%20and%20Unreturned%20Calls%E2%80%9D>
Posted in primaries<https://electionlawblog.org/?cat=32>, voters with disabilities<https://electionlawblog.org/?cat=71>

For Slate Plus Listeners, an Extended Discussion with Maine SOS Matt Dunlap on the Pence-Kobach Voter Fraud Commission<https://electionlawblog.org/?p=109157>
Posted on January 26, 2020 6:37 pm<https://electionlawblog.org/?p=109157> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday I posted about Episode 1 of the Election Meltdown podcast<https://megaphone.link/SLT6839728202> in conjunction with Slate Amicus co-hosted by Dahlia Lithwick. It features Matt Dunlap, Nina Perales and a cameo by Dale Ho.

You can listen here<https://megaphone.link/SLT6839728202>.

New today, for Slate Plus listeners, you can hear an extended version<https://slate.com/podcasts/amicus/2020/01/widespread-voter-fraud> of my interview with SOS Dunlap.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109157&title=For%20Slate%20Plus%20Listeners%2C%20an%20Extended%20Discussion%20with%20Maine%20SOS%20Matt%20Dunlap%20on%20the%20Pence-Kobach%20Voter%20Fraud%20Commission>

Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

Crum: The Fifteenth Amendment at 150<https://electionlawblog.org/?p=109155>
Posted on January 26, 2020 6:33 pm<https://electionlawblog.org/?p=109155> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is the first in a series of guest posts by Travis Crum<https://www.law.uchicago.edu/faculty/crum> on the 150th anniversary of the 15th amendment:

The Fifteenth Amendment at 150

Travis Crum

On February 3, 2020, the Fifteenth Amendment celebrates its 150th anniversary. In the run-up to this sesquicentennial, I’ll be posting this week about the Fifteenth Amendment’s history and contemporary place in our constitutional system.

The final act in the trilogy of Reconstruction Amendments, the Fifteenth Amendment<https://www.law.cornell.edu/constitution/amendmentxv> prohibits the “deni[al] or abridge[ment]” of the “right … to vote” “on account of race, color, or previous condition of servitude”  and empowers Congress to “enforce” its provisions by “appropriate legislation.” The Fifteenth Amendment was a tectonic shift in political power and race relations. In less than a decade, the United States transformed itself from a slaveholding nation to a multi-racial democracy.

For much of its 150-year history, however, the Fifteenth Amendment was a parchment promise. Throughout the Jim Crow South, racist officials employed literacy tests, grandfather clauses, and poll taxes to disenfranchise black voters. Violence and intimidation also deterred blacks from going to the polls. It would take the sacrifices of the civil rights movement and the protections of the Voting Rights Act of 1965 to make the promise of the Fifteenth Amendment a reality in the modern era.

Perhaps because of this tragic history, the conventional narrative of Reconstruction treats the Fifteenth Amendment as an afterthought. Compared to the attention given to the other Reconstruction Amendments, the Fifteenth Amendment has been largely overlooked.

This historical omission is further compounded by the central role of the Fourteenth Amendment and the VRA in current doctrine. Unlike during Reconstruction, the Fourteenth Amendment is now interpreted to prohibit racial discrimination in voting. Indeed, the Court has construed the Equal Protection Clause to prohibit racial vote dilution—a technical term for what most people call gerrymandering—while repeatedly declining to decide whether the Fifteenth Amendment also prohibits such redistricting plans. And Section 2 of the VRA’s discriminatory-effects standard is broader than either the Fourteenth or Fifteenth Amendment standards and normally easier to prove in litigation than a constitutional claim. The Fifteenth Amendment is thus largely redundant<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3524597>.

So why should we care about the Fifteenth Amendment? Because there is substantial risk in relying on the Fourteenth Amendment as the primary guarantor of minority voting rights. While the Fourteenth Amendment’s scope was expanded in the early-to-mid twentieth century to prohibit racial discrimination in voting, its protections have contracted in recent decades. In particular, the Court has applied its colorblind vision of the Equal Protection Clause to the voting rights realm. Is so doing, the Court has called into question the constitutionality of race-based redistricting and Section 2’s discriminatory effects standard.

By contrast, the Court has neglected the Fifteenth Amendment. In addition to not deciding whether the Fifteenth Amendment proscribes vote dilution, the Court has left open whether the Fifteenth Amendment requires a showing of discriminatory intent. And with regards to enforcement authority, the Court has never applied Boerne’s congruence-and-proportionality standard to the Fifteenth Amendment—or any case involving race or voting—and the most on-point precedent remains Katzenbach’s deferential rationality standard. Congress, therefore, has a freer hand under the Fifteenth Amendment to pass enforcement legislation, like the VRA<https://electionlawblog.org/?p=102281>.

In my subsequent posts this week, I’ll elaborate on how there is ample space to rethink voting rights protections under a Fifteenth Amendment framework.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109155&title=Crum%3A%20The%20Fifteenth%20Amendment%20at%20150>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“California OKs highly questioned LA County voting system”<https://electionlawblog.org/?p=109153>
Posted on January 26, 2020 6:31 pm<https://electionlawblog.org/?p=109153> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://apnews.com/7e8a976b9835a39786304118b0336c37>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109153&title=%E2%80%9CCalifornia%20OKs%20highly%20questioned%20LA%20County%20voting%20system%E2%80%9D>
Posted in voting technology<https://electionlawblog.org/?cat=40>

Episode 1 of the Election Meltdown Podcast, in Conjunction with Slate Amicus, Now Available<https://electionlawblog.org/?p=109148>
Posted on January 25, 2020 4:18 pm<https://electionlawblog.org/?p=109148> by Rick Hasen<https://electionlawblog.org/?author=3>

I can’t contain my excitement: Episode 1 of the Election Meltdown podcast in conjunction with Slate Amicus co-hosted by Dahlia Lithwick and me has just dropped. With Matt Dunlap, Nina Perales and a cameo by Dale Ho (more of him in a later episode).

You can listen here<https://megaphone.link/SLT6839728202>.

Here’s ticket information<https://slate.com/live/amicus-live-w-dahlia-lithwick-andrew-gillum-and-more.html> about the live Amicus show in DC on Feb. 19, with Dahlia Lithwick, Danielle Citron, Andrew Gillum, Dale Ho, and me.

Preorders<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr> of Election Meltdown; Book Tour info<https://sites.uci.edu/electionmeltdown/book-tour/>; Washington Post Sunday Outlook preview<https://www.washingtonpost.com/outlook/the-loser-of-novembers-election-may-not-concede-their-voters-wont-either/2020/01/23/4d81be8c-3d6c-11ea-baca-eb7ace0a3455_story.html>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109148&title=Episode%201%20of%20the%20Election%20Meltdown%20Podcast%2C%20in%20Conjunction%20with%20Slate%20Amicus%2C%20Now%20Available>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“The loser of November’s election may not concede. Their voters won’t, either.”<https://electionlawblog.org/?p=109146>
Posted on January 24, 2020 8:37 am<https://electionlawblog.org/?p=109146> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this commentary for the Washington Post Sunday Outlook<https://www.washingtonpost.com/outlook/the-loser-of-novembers-election-may-not-concede-their-voters-wont-either/2020/01/23/4d81be8c-3d6c-11ea-baca-eb7ace0a3455_story.html>, a preview of my book, Election Meltdown<https://www.amazon.com/gp/product/0300248199/ref=as_li_qf_asin_il_tl?ie=UTF8&tag=slatmaga-20&creative=9325&linkCode=as2&creativeASIN=0300248199&linkId=69abbd9d274db52e081b6d392baf38c8>, out Feb. 4. It begins:

When the polls closed on Nov. 5, 2019, the initial count showed the governor of Kentucky, Republican Matt Bevins, losing to his Democratic challenger, Andy Beshear. But rather than concede that he fell short in what should have been an easy reelection, Bevins claimed<https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> that “irregularities” had muddled the result — producing no evidence to support his accusations. At first, some Kentucky legislative leaders appeared to back him, and some pointed to the legislature’s power to resolve an election dispute and choose the governor regardless of the vote. But Bevins was not popular even within his own party, and eventually, he had to concede when the local GOP did not go along with him.

We could imagine a similar scenario this November: What would happen if President Trump had an early lead that evaporated as votes were counted, and then he refused to concede? The idea isn’t too far-fetched; Trump has raised it himself. Before the 2016 election, he wouldn’t agree<https://www.washingtonpost.com/news/post-politics/wp/2016/10/20/donald-trump-says-he-will-accept-the-results-of-the-election-if-i-win/?tid=lk_inline_manual_2> to accept the results if he lost. After winning in the electoral college but losing the popular count by about 3 million votes, Trump claimed<https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tells-congressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/?tid=lk_inline_manual_2> — with no evidence whatsoever — that at least 3 million fraudulent votes had been cast for his opponent, Hillary Clinton. He set up an “election integrity” commission headed by then-Kansas secretary of state Kris Kobach to try to prove that “voter fraud” is a major problem. But after the commission faced attacks from the left and the right for demanding state voter records with an apparent plan to use them to call for stricter registration rules, Trump disbanded it<https://www.washingtonpost.com/politics/trump-abolishes-controversial-commission-studying-voter-fraud/2018/01/03/665b1878-f0e2-11e7-b3bf-ab90a706e175_story.html?tid=lk_inline_manual_2>, with no work accomplished. In 2018, the president criticized elections in Florida<https://perma.cc/GT7Q-8MRE> and California<https://perma.cc/S7BK-VWFW>, where late-counted votes shifted toward Democrats, suggesting without evidence that there was foul play.

It’s not just Trump who might not accept election results. Imagine that he wins in the electoral college, this time thanks to what Democrats believe is voter suppression in Florida. The Florida legislature and governor have already sought to stymie Amendment 4, a 2018 ballot initiative to restore voting rights to formerly incarcerated felons. When the state Supreme Court agreed<https://www.washingtonpost.com/national/florida-high-court-sides-with-governor-on-felon-voter-rights/2020/01/16/848f2d68-3882-11ea-a1ff-c48c1d59a4a1_story.html?tid=lk_inline_manual_3> that felons could not register to vote until paying all their outstanding fines, Gov. Ron DeSantis (R) praised the ruling and called voting a “privilege<https://twitter.com/GovRonDeSantis/status/1217867897906913282?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1217867897906913282&ref_url=http%3A%2F%2Felectionlawblog.org%2F>,” rather than a right. Some Democrats have called<https://www.thecentersquare.com/florida/democrats-gillum-say-florida-poll-tax-on-felons-will-fuel/article_dca6e4ac-70fd-11e9-90ab-57f1557e168e.html> the new rules a “poll tax,” and a Florida public TV station concluded<https://www.wuft.org/news/2020/01/16/florida-supreme-court-sides-with-desantis-in-felon-voter-rights-case/> that “the implications of the bill passed by a majority-Republican legislature preventing former felons from voting could work to ensure Trump wins the 2020 presidential election.” During Trump’s impeachment trial this past week, Rep. Adam Schiff (D-Calif.) said<https://www.axios.com/schiff-trump-impeachment-election-a5162595-dea0-404d-b099-582ae7e51b78.html> “we cannot be assured that the vote will be fairly won” in November because of the allegations that Trump was trying to “cheat” by pressuring Ukraine to announce an investigation into Joe Biden and his family.

External forces could cause an election meltdown, too. A recent NPR-News Hour-Marist poll<https://www.npr.org/2020/01/21/797101409/npr-poll-majority-of-americans-believe-trump-encourages-election-interference?utm_medium=RSS&utm_campaign=storiesfromnpr> found that “almost 4 in 10 Americans . . . believe it is likely another country will tamper with the votes cast in 2020 in order to change the result.” What if Russians hack into Detroit’s power grid and knock out electricity on Election Day, seriously depressing turnout — and Trump wins the electoral college because he carries Michigan? Most states do not have<https://www.washingtonpost.com/opinions/our-elections-are-wide-open-for-a-constitutional-crisis/2018/10/26/317cb7e0-d86a-11e8-83a2-d1c3da28d6b6_story.html?tid=lk_inline_manual_6> a Plan B to deal with a terrorist attack or natural disaster affecting part of a presidential election.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109146&title=%E2%80%9CThe%20loser%20of%20November%E2%80%99s%20election%20may%20not%20concede.%20Their%20voters%20won%E2%80%99t%2C%20either.%E2%80%9D>
Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

--
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/20200127/c2109b23/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/20200127/c2109b23/attachment.png>