[EL] ELB News and Commentary 7/7/20

[Rick Hasen]

“Can We Please Pick the President by Popular Vote Now? The Supreme Court’s unanimous decision in the faithless electors’ case is another reminder of how antiquated and undemocratic the Electoral College is.”<https://electionlawblog.org/?p=112875>
Posted on July 6, 2020 9:19 pm<https://electionlawblog.org/?p=112875> by Rick Hasen<https://electionlawblog.org/?author=3>

Jesse Wegman NYT column.<https://www.nytimes.com/2020/07/06/opinion/supreme-court-electoral-college-faithless.html?action=click&module=Opinion&pgtype=Homepage>
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Supreme Court<https://electionlawblog.org/?cat=29>


“Did the Popular Vote Get a Win Today? A Supreme Court ruling on faithless electors could indirectly help those who want to circumvent the Electoral College entirely.”<https://electionlawblog.org/?p=112873>
Posted on July 6, 2020 9:14 pm<https://electionlawblog.org/?p=112873> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2020/07/06/us/politics/supreme-court-popular-vote.html?searchResultPosition=1>
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Posted in electoral college<https://electionlawblog.org/?cat=44>, Uncategorized<https://electionlawblog.org/?cat=1>


“New GOP-aligned group in Kansas has Kris Kobach as apparent target”<https://electionlawblog.org/?p=112870>
Posted on July 6, 2020 9:06 pm<https://electionlawblog.org/?p=112870> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2020/07/06/politics/kris-kobach-senate-gop-group/index.html>

An anonymous group with ties to Republicans has just emerged with the apparent aim of targeting Senate candidate Kris Kobach of Kansas<https://www.cnn.com/2020/02/14/politics/kris-kobach-kansas-senate-run-republican-reaction/index.html>, according to sources familiar with the effort.Kobach is an anti-immigration firebrand and voter-fraud crusader whose primary campaign has sparked fears among GOP leaders that he could jeopardize a seat crucial to keeping control of the chamber.

Plains PAC filed with the Federal Election Commission on July 1 and has booked more than $1.6 million in ads to air from now until August 3, the day before the GOP primary, according to Kantar’s Campaign Media Analysis Group. The group has informed television stations that it plans to drop negative ads against Kobach, according to the sources.It is unclear who is behind the Plains PAC. The public may not know until after the election; its FEC filing says its first report is due on August 20.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


How Appealing Rounds Up Stories on Faithless Elector Decision<https://electionlawblog.org/?p=112868>
Posted on July 6, 2020 9:02 pm<https://electionlawblog.org/?p=112868> by Rick Hasen<https://electionlawblog.org/?author=3>

Find them here<https://howappealing.abovethelaw.com/2020/07/06/#124661>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Supreme Court Allows States to Punish ‘Faithless’ Electoral College Voters”<https://electionlawblog.org/?p=112866>
Posted on July 6, 2020 8:52 pm<https://electionlawblog.org/?p=112866> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs<https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-allows-states-punish-faithless-electoral-college-voters>.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Supreme Court Rules State ‘Faithless Elector’ Laws Constitutional”<https://electionlawblog.org/?p=112863>
Posted on July 6, 2020 3:44 pm<https://electionlawblog.org/?p=112863> by Rick Hasen<https://electionlawblog.org/?author=3>

Nina Totenberg <https://www.npr.org/2020/07/06/885168480/supreme-court-rules-state-faithless-elector-laws-constitutional?live=1> for NPR:

Even Harvard Law School professor Lawrence Lessig, who represented the rogue electors before the Supreme Court, appeared only mildly disappointed at the loss. “We took this case initially because we just thought this needed to be resolved before it created a constitutional crisis,” he said.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


“Supreme Court ‘faithless electors’ ruling aims to stabilize the election, but will it work?”<https://electionlawblog.org/?p=112861>
Posted on July 6, 2020 3:41 pm<https://electionlawblog.org/?p=112861> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley USA Today oped<https://www.usatoday.com/story/opinion/2020/07/06/supreme-court-decision-faithless-electors-2020-chaos-column/5384625002/>:

Thus, if the court has its way, there will be no risk of a faithless elector being a wild card in this year’s election.  But, unfortunately, it is not so simple. The justices’ ruling permits states to prevent faithless electors, but it does not require that they do so.

Only 32 states<https://www.fairvote.org/faithless_elector_state_laws> currently have laws attempting to bind electors to the state’s popular vote, and not all of them discount the deviant vote. And 18 states still have laws giving electors the freedom to vote independently if they so choose. Thus, absent change between now and November, there is the risk of chaos injecting itself into the system despite the court’s decision. ‘
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Virus vs. voting: Behind the high-risk presidential primary elections; As November’s election showdown looms, officials nationwide are scrambling to preserve voter rights while minimizing coronavirus transmission.”<https://electionlawblog.org/?p=112859>
Posted on July 6, 2020 3:39 pm<https://electionlawblog.org/?p=112859> by Rick Hasen<https://electionlawblog.org/?author=3>

Smart Cities reports.<https://www.smartcitiesdive.com/news/virus-vs-voting-behind-the-high-risk-presidential-primary-elections/580844/>
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“The Franchise, Policing, and Race: Evidence from Arrests Data and the Voting Rights Act”<https://electionlawblog.org/?p=112857>
Posted on July 6, 2020 3:33 pm<https://electionlawblog.org/?p=112857> by Rick Hasen<https://electionlawblog.org/?author=3>

Giovanni Facchini<https://www.nber.org/people/giovanni_facchini>, Brian G. Knight<https://www.nber.org/people/brian_knight>, Cecilia Testa<https://www.nber.org/people/cecilia_testa> for NBER<https://www.nber.org/papers/w27463>:

This paper investigates the relationship between the franchise and law enforcement practices using evidence from the Voting Rights Act (VRA) of 1965. We find that, following the VRA, black arrest rates fell in counties that were both covered by the legislation and had a large number of newly enfranchised black voters. We uncover no corresponding patterns for white arrest rates. The reduction in black arrest rates is driven by less serious offenses, for which police might have more enforcement discretion. Importantly, our results are driven by arrests carried out by sheriffs – who are always elected. While there are no corresponding changes for municipal police chiefs in aggregate, we do find similar patterns in covered counties with elected rather than appointed chiefs. We also show that our findings cannot be rationalized by alternative explanations, such as differences in collective bargaining, changes in the underlying propensity to commit crimes, responses to changes in policing practices, and changes in the suppression of civil right protests. Taken together, these results document that voting rights, when combined with elected, rather than appointed, chief law enforcement officers, can lead to improved treatment of minority groups by police.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“The Federal Judiciary Tells Disenfranchised Voters: You’re On Your Own; In four awful decisions over the last two weeks, federal courts cleared the way for voter suppression in November.”<https://electionlawblog.org/?p=112855>
Posted on July 6, 2020 3:32 pm<https://electionlawblog.org/?p=112855> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Joseph Stern <https://slate.com/news-and-politics/2020/07/supreme-court-voting-rights-alabama-texas-wisconsin-florida.html> for Slate.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Conservative Groups Sue to Make Pandemic Voting Even Harder”<https://electionlawblog.org/?p=112853>
Posted on July 6, 2020 3:15 pm<https://electionlawblog.org/?p=112853> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

My latest<https://slate.com/news-and-politics/2020/07/conservative-groups-sue-to-make-pandemic-voting-even-harder.html> for Slate. Here’s how the piece begins:

Until recently, litigation about voting during the COVID-19 crisis followed a predictable pattern. Voters would complain about states’ restrictive regulations, conservatives would rush to the laws’ defense, and courts would referee the disputes. Powerhouse right-wing lawyers, however, have now opened a troubling new front in the voting wars. They now claim that it’s unconstitutional for states to make it easier to vote while the pandemic rages. Relaxations of voting rules supposedly give rise to fraudulent votes that impermissibly dilute the ballots cast by law-abiding citizens. This novel argument should—but probably won’t—be laughed out of court. As it spreads across the country, it threatens to put states in an impossible position: exposed to liability not just if they ignore, but also if they try to alleviate, the pandemic’s effects on the electoral process.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Fourth Circuit Upholds North Carolina March 3 Petition Deadline for Independent Candidates”<https://electionlawblog.org/?p=112850>
Posted on July 6, 2020 9:11 am<https://electionlawblog.org/?p=112850> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN<http://ballot-access.org/2020/07/06/fourth-circuit-upholds-north-carolina-march-3-petition-deadline-for-independent-candidates/>:

On July 6, the Fourth Circuit issued an opinion<http://ballot-access.org/wp-content/uploads/2020/07/Document160.pdf> in Buscemi v Bell, 19-2355, a North Carolina ballot access case. The Fourth Circuit said the March 3 petition deadline for independent candidates, even presidential candidates, is constitutional. This completely contradicts the U.S. Supreme Court opinion Anderson v Celebrezze, 460 U.S. 780, which struck down Ohio’s independent presidential petition deadline of March 20. Furthermore in the Ohio case, only 5,000 signatures were required; but in North Carolina in 2020, independent candidates need 70,666 signatures.

The decision does not mention Anderson v Celebrezze’s holding. Nor does it mention Anderson v Morris, 636 F.2d 55 (1980), in which the Fourth Circuit invalidated the Maryland independent petition deadline, which by coincidence was also March 3. The Fourth Circuit now says it is constitutional to put the independent candidate deadline on the date of the primary, or the day before. That may be true for independent candidates for non-presidential office, but it is not true for presidential independent candidates. If that were true, it would have been constitutional in 2008 for New Hampshire to have had an independent presidential petition deadline of January 8.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Analysis: Supreme Court Saves the Country from Potential Chaos by Ruling (Unanimously) That States May Replace or Punish “Faithless Electors”<https://electionlawblog.org/?p=112845>
Posted on July 6, 2020 8:22 am<https://electionlawblog.org/?p=112845> by Rick Hasen<https://electionlawblog.org/?author=3>

The Court’s decision in Chiafalo (the Washington election case) is at this link<https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf>. The per curiam opinion in Baca (the Colorado case), with Justice Sotomayor recused, is at this link.<https://www.supremecourt.gov/opinions/19pdf/19-518_6k47.pdf>

The decision is a great relief because a contrary decision, as I explained<https://slate.com/news-and-politics/2019/09/electoral-college-supreme-court-lessig-faithless-electors.html> last September at Slate, could have led to great chaos (a point Rick Pildes explained in more detail here<https://electionlawblog.org/?p=111392>). The opinion for 7 Justices by Justice Kagan relies a great deal on history and the strong historical power of states to set the rules on choosing presidential electors. It is a typically breezy and readable Kagan opinion, compete with references to Veep and “Hamilton.”

I understand that the motivation of Larry Lessig and his compatriots to bring this case was to try to create the conditions to blow up the electoral college and lead to a national popular vote for President. As the Slate piece explained, this is not the way to do that, much as I am no fan of the college. And I think the National Popular Vote plan is dangerous as well, for reasons Ned Foley explains in his new book<https://global.oup.com/academic/product/presidential-elections-and-majority-rule-9780190060152?cc=us&lang=en&>. The way to get rid of the Electoral College is through constitutional amendment, something not likely to happen for a while. (I would suggest a constitutional right to vote is of more pressing urgency and could pave the way for electoral college ref<https://www.nytimes.com/2020/06/29/opinion/sunday/voting-rights.html>orm as well).

A few more points of note about the decision. First, in footnote 4<https://twitter.com/rickhasen/status/1280145382240997377/photo/1> of the Court’s opinion, the Court casts serious doubt on laws that would require presidential candidates to submit tax returns as a condition to running for office. (It also suggests that racially discriminatory practices in choosing presidential electors would be unconstitutional).

Second, the Court included an escape hatch<https://twitter.com/rickhasen/status/1280149050134638592/photo/1> to these rules in the event that a presidential candidate dies between election day and the date for the electors to vote.

Third, the Court once again declined to cite<https://twitter.com/rickhasen/status/1280146453436829696> its 2000 decision in Bush v. Gore despite the fact that the case was directly on point. Only once in a Justice Thomas concurrence has any member of the Court cited that case for any reason.

Finally, as Steve Mazie notes<https://twitter.com/stevenmazie/status/1280149305639219204>, part of the reason for the unanimity (though not on the reasoning, with J. Thomas, joined in part by J. Gorsuch, getting there on a different path) is the lack of a clear ideological or partisan winner on this question. On questions with such valence, 5-4 is much more likely<https://electionlawblog.org/?p=112775>.

(More about the case from Derek Muller<https://excessofdemocracy.com/blog/2020/7/analysis-of-the-supreme-courts-decision-in-the-faithless-electors-cases>.)
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Posted in electoral college<https://electionlawblog.org/?cat=44>, 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/>


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