| Subject: [EL] Electionlawblog news and commentary 10/28/10 |
| From: Rick Hasen |
| Date: 10/28/2010, 9:02 AM |
| To: Election Law |
Watch at about the 4:30 minute mark in Part 3 of the interview
(lobbying), then at the 6:30 minute mark (discussing filibuster,
redistricting):
Yesterday I reported
that an Alaska state supreme court judge had barred the division
of elections from providing a list of certified write-in
candidate to voters, ruling that this was contrary to Alaska
state law and would be a deviation from past practice. (This was
seen as a blow to Sen. Murkowski, who is now apparently
leading in polls--if voters can get their intent across
adequately on write-in ballots).
As reported by the Anchorage
Daily News, the Alaska Supreme Court issued this
order staying that trial court ruling, ordering that the
write-in information (of candidate names, but not party
affiliation) be provided to voters, and then ordering, if
feasible, elections officials to segregate the ballots of those
voters who voted after requesting the write-in information.
It seems to me that if this is a razor-thin election, which will
depend upon the counting of those ballots, this segregation is
setting up a major fight over those ballots. It also presents
the very difficult kind of clash that I described in my recent Stanford
Law Review article, The
Democracy Canon. On the one hand, providing voters with
information so that they could cast a ballot that is more likely
to be counted consistent with voter intent seems supported by
the canon: if the Alaska statutes and regulations plausibly
could be construed to allow for the provision of this
information (I have not yet examined these statutes and
regulations), the canon suggests they should. But I offer the
canon in my article with a big caveat: it may violate the Due
Process Clause of the United States Constitution to change the
rules for the counting and casting of ballots---even in reliance
on the canon-- during the course (or right after) the election.
Key cases here are Roe v. Alabama and the Franken-Coleman
dispute. The upshot: if it is a razor-thin race whose outcome
depends upon the counting of those segregated ballots, do not be
surprised to see the anti-Murkowski forces (be they Democrats or
Republicans) running to federal court arguing that the
counting of the ballots would be unconstitutional. We may even
see parties go to federal court now, before the election,
raising such an issue.
My former Horvitz and Levy colleague Jon Eisenberg has filed this
amicus brief in the 9th Circuit asking for certification
of a question about the constitutionality of the initiative
process to be certified to the California Supreme Court. In an
article about the brief in the National Law Journal, Dan
Lowenstein says:
"The prospects of the Supreme Court ruling that the initiative
is a revision after it has been in effect for 99 years are
somewhat between nil and zero...This is really nonsense."
That's currently the top press release at the James Madison Center
website.
The Washington Independent reports.
BNA reports.
The National Center for State Courts has issued this
backgrounder.
Jonathan Adler blogs
about this
new decision.
I did an interview with KPCC
about this topic, which also briefly discusses and links to the Slate
piece on judicial elections which Dahlia Lithwick and I
wrote.
News
from Oregon.
This
story begins: "Daytona Beach City Commissioner Derrick
Henry and his campaign manager, Genesis Robinson, were arrested
Wednesday, charged with committing absentee ballot fraud during
Henry's 2010 re-election campaign, the Volusia County Sheriff's
Office said. According to his Facebook page, Henry is
nonpartisan, which means he has no party affiliation."
With the crazy election season, I've let new books and articles
pile up on my desk. I can't see my students anymore, so here's
the list to clear my desk. I hope to turn to these items after
the election.
Seth Stern and Stephen Wermiel, Justice
Brennan: Liberal Champion (this one I'll be reading right
away, as Steve will be speaking here at Loyola on the book next
Friday)
Eskridge, Frickey and Garrett (eds), Statutory
Interpretation Stories
Jay Weiner, This
is Not Florida: How Al Franken Won the Minnesota Recount
James Roger Sharp, The
Deadlocked Election of 1800:L Jefferson, Burr, and the Union
in the Balance
Lorraine Minnite, The
Myth of Voter Fraud (I read parts of this in draft;
highly, highly recommended)
Council of Europe, Supervising
Electoral Processes
Chris Goodman, Examining
'Voter Intent' Behind Proposition 209: Why Recruitment,
Retention, and Scholarship Privileges Should Be Permissible
Under Article I, Section 3, 27 Chicana/o -Latino/o Law
Review 59 (2008), and (M)Ad
Men: Using Persuasion Factors in Media Advertisements to
Prevent a 'Tyranny of the Majority' on Ballot Propositions,
32 Com/Ent 247 (2010).
See this
press release out of New Jersey from the ACLU.
The Las Vegas Sun reports.
Fascinating.
UPDATE: Jess Bravin reports
on the response of the campaign using the ads.
Allison Hayward has written this
piece from NRO, which uses some of Bob Bauer's earlier
writings about disclosure against current Democratic arguments.
-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org