“Secretary of State candidate violates election law”
Secretary of State candidate Beth White and current Marion County clerk will be facing penalties after the midterm election on Nov. 4.
The Democratic challenger to incumbent Connie Lawson was outed by the Indiana Republican Party last week for not having a financial disclaimer on postcard-sized campaign literature.
According to Indiana campaign finance regulations, all campaign literature must disclose who paid for it.
“Two Billionaires Contribute Yet Another $1,280,000 to ‘Yes’ Campaign for Top-Two in Oregon”
Wow.
“Document: Statewide network of Republican lawyers ready to intervene on Election Day”
The Kansas Republican Party plans to have a statewide network of GOP lawyers ready to intervene on Election Day, and it will analyze close races for potential legal action — as its director warns of “dubious tactics” from Democrats.
The network of attorneys is part of the Republicans’ plan for a poll-watching program as well as an Election Day war room with a complement of lawyers on standby. The party will target some polling locations for all-day observation and is urging candidates, county officers and precinct leaders to become poll agents (often called poll watchers) and visit polling locations.
“Missouri A.G. Chris Koster rebuts report that campaign money steered office away from investigations”
Missouri Attorney General Chris Koster vehemently denied allegations published Wednesday in The New York Times that his office gave preferential treatment to companies it was investigating in exchange for campaign contributions.
Koster, a Democrat who is his party’s presumptive nominee for governor in 2016, was featured prominently in the story that explored lobbyists’ influence on state attorneys general around the nation.
He denied any wrongdoing and slammed the Times’ reporting.
“With New Campaign Finance Rules, You Can’t Really Follow The Money”
Nick Confessore on NPR’s Fresh Air.
“Campaign Spending On State Judicial Elections”
“Fact Checker: Could noncitizen voters swing Senate?”
“Does Election Law Serve the Electorate?”
I am very excited to participate in this event for the University of Chicago Legal Forum. (I’ll be presenting a paper on uniformity in election administration.) Here are the details:
Legal Forum Symposium: Does Election Law Serve the Electorate?
Date:Friday, November 7, 2014 - 9:00am - 3:30pm
Contact info (email or phone):The Symposium will take place in Room V, from 9:00 a.m.- 11:45 a.m. and continue after lunch and the keynote from 1:45 p.m. – 3:30 p.m..
The keynote speaker at this year’s event will be Cass Sunstein, Felix Frankfurter Professor of Law.
The keynote will take place at 12 p.m. in Room II
PANELS
Governance, Polarization, and the Role of Election Law: 9 a.m. – 10:30 a.m.
Voters and Redistricting: 10:45 a.m. – 12 p.m.
Campaign Finance: 1:45 p.m. – 2:15 p.m.
Rules and Regulations: 2:30 p.m. – 3:30 p.m.Participants
Richard Briffault, Columbia Law School
Josh Chafetz, Cornell University Law School
Guy-Uriel Charles, Duke University School of Law
Edward Foley, The Ohio State University Michael E. Moritz College of Law
Luis Fuentes-Rohwer, Indiana University Maurer School of Law
Richard Hasen, University of California, Irvine School of Law
Ellen Katz, University of Michigan Law School
Nolan McCarty, Woodrow Wilson School of Public and International Affairs
Michael Morley, Barry University School of Law
Nathaniel Persily, Stanford Law School
Michael Pitts, Indiana University Robert H. McKinney School of Law
James Sample, Hofstra University School of Law
David Schleicher, George Mason University School of Law
Nicholas Stephanopoulos, University of Chicago Law School
David Strauss, University of Chicago Law School
Zephyr Teachout, Fordham University School of LawAll events are open to the public.
For more information, please contact Erica Jaffe at ericajaffe@uchicago.edu
For special assistance or needs, please contact Lucienne Goodman at 773-702-0877.
Faculty:
“Uncounted Votes The Racially Discriminatory Effects of Provisional Ballots”
New report from the Center for American Progress. From the emailed press release:
RELEASE: The Racially Discriminatory Effects of Provisional Ballots
Washington, D.C. — One week ahead of the 2014 midterm elections, much has been made of the new, more suppressive voting laws in states across the country. These laws often disproportionately impact communities of color and could disenfranchise hundreds of thousands of voters, but new data show that the votes of those who make it to the voting booth may not be counted either. A first-of-its-kind look at 2012 data from the Center for American Progress has identified 16 states where the casting of provisional ballots significantly correlated with high shares of minority and non-English-speaking voting populations. Meanwhile, an increase in restrictive laws could mean that provisional ballots will play a key role in competitive 2014 elections.
There were 2.7 million provisional ballots filed in the United States in 2012, and nearly one-third of those were not counted. Rejections happen for many reasons, including cumbersome voter registration procedures, restrictive voting laws, poorly maintained voter lists, election office mismanagement, and voter error. But the analysis found a statistically significant correlation between minority voting-age population and the number of provisional ballots cast at the county level in 16 states: Arizona, California, Colorado, Kansas, Maryland, Montana, North Carolina, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, and Utah. The list of states and the number of provisional ballots cast—nearly 2 percent of all in-person ballots—suggest the option is being used beyond what was originally intended.
“Provisional ballots were designed to be a fail safe to ensure voters can have their voice heard under unusual circumstances,” said Michele Jawando, Vice President for Legal Progress at the Center for American Progress. “The sheer number of provisional ballots being cast suggests that some states are using them in place of effective election administration. That nearly 25 percent of these ballots are rejected entirely suggests that more than 500,000 Americans are being silenced on Election Day, and they are often minority voters.”
Many states use provisional ballots for different reasons. New York and New Jersey saw high numbers of provisional ballots in 2012 because both states allowed voters displaced by Hurricane Sandy to cast provisional ballots at any polling location in the state. But a state such as California—where all five of the demographic groups tested were disproportionately affected by provisional balloting—shows that while laws lowering barriers to access certainly help with access, there is still work ahead to ensure eligible voters are enfranchised at polling places.
However, instead of addressing issues such as poll worker education and more-progressive voting laws, many states have gone in reverse since 2012. Several states have implemented more-restrictive voting laws, including adding voter ID requirements, cutting same-day registration and early-voting days, and even limiting provisional balloting in North Carolina. Georgia is currently struggling with questions about unaccounted for voter registration forms that could lead to the casting of provisional ballots, making the state’s failure to report their use of provisional ballots in 2012 troubling. Five other states were not required to report this data because they have same-day registration or only one jurisdiction, in Alaska’s case. No reason was given for Georgia’s failure to report. Colorado is one of a few states that have improved voting laws since 2012, including moving to mail-in balloting.
“It is important to recognize that this analysis only looks at one way a voter can be left out on Election Day,” Jawando said. “In many states, strict laws prevent people from ever even entering a polling place to cast a ballot. Our voting laws should ensure that all eligible voters have open access to voting, and we need more research to understand the impact of more-restrictive voting laws. Today, there are too many obstacles for too many voters, preventing hundreds of thousands of voices from being heard in our elections.”
Background
The analysis found a statistically significant correlation between minority voting-age population and the number of provisional ballots cast at the county level in 16 states: Arizona, California, Colorado, Kansas, Maryland, Montana, North Carolina, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, and Utah. It tested for relationships between the allocation of provisional ballots and five county-based demographic variables:
- Percentage of citizen voting-age population that is African American
- Percentage of citizen voting-age population that is Hispanic
- Percentage of citizen voting-age population that is Asian
- Percentage of citizen voting-age population that is overall minority
- Voting Rights Act Section 203 counties—those with significant voting-age populations who speak a language other than English
In 2012, 2.7 million provisional ballots were submitted, up from 2.1 million in 2008. Of those, 24.1 percent were rejected entirely, and 6.7 percent were only partially counted—meaning not all of the races on the ballot were counted.
“This is what it’s like to try to get a Voter ID when you’re disabled, poor or don’t drive”
“Ann Ravel’s Shakespearian Tragedy”
“‘Wall Street Journal’ Editorial Misses the Point on Coordination”
“As Texas votes early, voter ID sparks frustration and motivation”
“Could Tom Steyer’s Environmental Ad Campaign Swing the Senate?”
Elizabeth Kolbert New Yorker comment.
Republicans Claim Voter Suppression, Descry Dark Money in WA Top-Two Race
Gotta love the role reversal.
“Political mailer includes opponent’s SSN and driver’s license number”
“US court denies motion to sequester Article XII ballots”
The latest from the CNMI voting dispute.
“Beyond Ferguson – Unrepresentative Democracy in City Elections”
“Big out-of-state money pours into Missouri judicial race”
“Souls to the Polls” is Real
NYT’s “The Upshot:” The Big Role of Black Churches in Two Senate Races.
“Mega-influence: These 42 dominate super PAC donations”
“Black Turnout and the 2014 Midterms”
New report from the Joint Center.
“Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights After Shelby County v. Holder”
Paul Wiley has written this very (and timely, given Texas) important student note for the Washington and Lee Law Review. From the Introduction:
One of those portions of the Voting Rights Act that remained untouched by Shelby County is § 3(c)15—the “bail-in” or “pocket trigger” provision.16 Section 3(c) authorizes a court presiding over a successful voting rights suit to impose a preclearance regime on the defendant jurisdiction, thus requiring the jurisdiction’s subsequent voting-related changes to be approved by the court before they can go into effect. In the wake of Shelby County, Attorney General Holder specifically mentioned § 3(c) as one of the tools the Department of Justice would use to continue protecting voting rights. Lawsuits filed in North Carolina and Texas have backed up the Attorney General’s promise, with the federal government invoking § 3(c) in its prayers for relief. These decisions by federal authorities reflect the view of voting rights scholars that the § 3(c) pocket trigger is one of the better immediate, short-term solutions to continuing to protect voting rights after Shelby County.
But using § 3(c) more frequently poses several practical questions about its implementation. To date, only eighteen jurisdictions have been brought under § 3(c)’s provisions, almost all by consent decree. This scant implementation, specifically in the adverse litigation context, provides little guidance about how courts should apply § 3(c)’s retention-of-jurisdiction provision. This Note addresses three major questions about implementing § 3(c) after Shelby County. First, which party bears, or should bear, the burden of proof on the element of discriminatory purpose for proposed voting changes subject to § 3(c) preclearance, and should there be a presumption of discriminatory purpose? Second, how long can courts retain jurisdiction under § 3(c), should there be a default time period, and under what conditions should a covered jurisdiction be released? And third, what is the standard for appellate review for § 3(c) relief, and does it change depending on whether the appellant is challenging the initial imposition or challenging later decisions by the court to disallow voting changes?
“The Dumbing Down of Statutory Interpretation”
Glen Staszewski has posted this draft on SSRN (Boston University Law Review). Here is the abstract:
This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. The Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law, and they assume that the traditional hierarchy of legal sources is exclusive, and that the function of statutory interpretation is to ascertain the meaning of the law.
This Article challenges each of these assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and “interpretive methodology” and “agency decision making” should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. The Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems.
“Questions Emerge About Potential Conflict of Interest Between Mailergate and Silicon Valley Start-up”
Cowgirl Blog’s latest on the Montana mailer.
Garrett Epps on Racial and Partisan Discrimination in Texas Voter ID Case
Well worth the read.
“Flush with mystery money, Kentucky nonprofit haunts Grimes’ Senate bid”
Justice Ginsburg Gives More Insight Into Her Texas Voter ID Dissent, and Its Small Error
I suggested in this Slate piece that Justice Ginsburg decided to pull an all nighter to write her dissent as a “5 am wake up call” on the issue of voting rights. Now comes some confirmation.
But Justice Ginsburg, speaking at the University of California’s Washington Center, said she “decided this case really needs a dissent to highlight how far Texas had gone, and the populations that would be most affected by the voter ID” requirements.
She said she worked in her chambers till 10 p.m., then went home and kept working until dawn. The court released the Texas order and the dissent, joined by Justices Sonia Sotomayor and Elena Kagan , at 5:05 a.m.
Having turned in her assignment, the 81-year-old justice was a bit too wired to hit the hay. “I didn’t sleep at 5 a.m. either. I took a leisurely shower,” then wound down with some reading, she said.
And like many a student, Justice Ginsburg said she wished she had had a bit more time.
“I would have liked to have held it for one more read. Maybe I would have caught the error if I had done that,” Justice Ginsburg said.
On the small error, see here.
“Is Political Science Blowing Its Close-Up?”
But two recent stories in the election realm raise a cautionary tale about what happens if we’re not careful (as practitioners or consumers) about the use of political science to learn more about elections.
The first comes from Montana, where researchers interested in studying how partisan cues might affect voting in nonpartisan judicial races have thrown the state into a frenzy. The problem is their use of a mailer that (perhaps illegally and certainly ill-advisedly) uses the Great Seal of Montana. [It looks like similar mailers have gone to California and New Hampshire too.] That piece, which critics claim is misleading to voters, is leading many people inside and outside of Montana to worry that the mailer (and the resulting controversy) could end up having an impact on the outcome. Worse, one defender of the project has sought to justify the mailer’s impact on Montana by suggesting that the concept of nonpartisan judicial elections isn’t such a good idea in the first place.
The second story involves a recent guest posting about non-citizen voting on the Washington Post’sMonkey Cage blog. The Monkey Cage – a well-respected political science blog – recently joined the Post, and has become a terrific source of political science-driven analysis and commentary on a wide range of issues. In their recent guest post, however, two researchers who have been studying non-citizen voting claimed that their analysis suggests that non-citizen voting is higher than previously thought and could be skewing outcomes. Not surprisingly, both sides in the ongoing “voting wars” (trademark Rick Hasen) have seized on the piece (as of midday Tuesday it had more than 3,000 comments) and it will be a centerpiece in voter ID and proof-of-citizenship fights for years to come. But several academics and analysts who are familiar with the data used in the study are saying that it doesn’t necessarily support the conclusions reached AND that even if it did that would indicate the need to study further, not publish the results.
This is the part where I remind you that I have been beating the drum for years about the need for more field experiments (like in Montana) that – by their very definition – look to measure the effect of a studied practice on voter behavior, and data-driven analysis (like in the Monkey Cage post). Properly executed, they are a powerful force for change in election administration and a means to rise above rhetoric and partisanship in shaping election policy.
But I would suggest that neither of these projects was properly executed.
“Lobbyists, Bearing Gifts, Pursue Attorneys General”
Must-read A1 Eric Lipton for the NYT:
Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.
A robust industry of lobbyists and lawyers has blossomed as attorneys general have joined to conduct multistate investigations and pushed into areas as diverse as securities fraud and Internet crimes.
But unlike the lobbying rules covering other elected officials, there are few revolving-door restrictions or disclosure requirements governing state attorneys general, who serve as “the people’s lawyers” by protecting consumers and individual citizens.
A result is that the routine lobbying and deal-making occur largely out of view. But the extent of the cause and effect is laid bare in The Times’s review of more than 6,000 emails obtained through open records laws in more than two dozen states, interviews with dozens of participants in cases and attendance at several conferences where corporate representatives had easy access to attorneys general.
Quote of the Day: Obama Voter Fraud Edition
“You can vote all week. You can only vote once. This isn’t Chicago,” Mr. Obama said. “I’m teasing, Chicago. I’m messing with you. That was a long time ago.”
—President Obama, at a Wisconsin campaign rally.
“George Will’s Hit Piece on Wisconsin Undermined by Factual Inaccuracy and Non-Disclosure”
Jay Heck blogs at Common Cause in Wisconsin.
“Stanford And Dartmouth Urge Voters To ‘Ignore’ Their Controversial Mailer”
TPM:
In an unusual “open letter to the voters and citizens of Montana,” the presidents of Dartmouth College and Stanford University urged Montana voters Tuesday to ignore a mailer sent recently by their researchers that caused considerable controversy in the run up the November election. They also apologized for the “confusion and concern” the mailer caused.
“Hans von Spakovsky’s ‘voter fraud’ fraud: Creating a panic over a minor problem”
“Georgia judge declines to intervene in ‘missing’ voters lawsuit”
AJC:
A Georgia judge declined Tuesday to intervene in Georgia’s voter registration process, letting stand existing measures by state and local election officials to help applicants ahead of the Nov. 4 election.
The decision came after a two-hour hearing Friday, during which Fulton County Superior Court Judge Christopher Brasher seemed skeptical of a lawsuit that sought what he called an “extraordinary legal remedy.”
You can read the judge’s 14-page opinion here.
“Group Accused of ‘Ballot Stuffing’ Demands an Apology at Arizona GOP Headquarters”
“Court to decide quickly on campaign law challenge”
AP: “A group whose tax-exempt status allows it to keep its donors and spending secret is asking a federal appeals court to block several Montana laws regulating campaign contributions and expenditures before next Tuesday’s elections.”
“Did We Fix That?”
Common Cause released a new report: Did We Fix That?: Evaluating Implementation of the Presidential Commission on Election Administration’s Recommendations in Ten Swing States. The Executive Summary is available here.
“Born and raised’ Texans forced to prove identities under new voter ID law”
Extensive report in The Guardian.
“Professors’ Research Project Stirs Political Outrage in Montana”
NYT’s The Upshot weighs in.
“The Intratextual Independent ‘Legislature’ and the Elections Clause”
Michael Morley has posted this draft on SSRN. Here is the abstract:
Article I’s Elections Clause and Article II’s Presidential Electors Clause confer authority to regulate congressional and presidential elections, respectively, specifically to State “legislatures,” rather than to States as a whole. In the pending case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court will decide whether the Elections Clause allows a State to remove the authority to draw congressional districts from its legislature, and confer it instead in an independent commission. Its ruling will have tremendous ramifications not only for similar redistricting commissions across the nation, but for a wide range of other doctrines, principles, and protections that stem from the Elections Clause and Presidential Electors Clause.
Intratextualism is a powerful technique for interpreting the Constitution that can yield valuable insights into the proper meaning of the term “Legislature,” as it appears in both provisions. A careful intratextual analysis of the Constitution as a whole reveals that the term “Legislature” is best understood as referring to the entity within each state comprised of representatives that has the general authority to pass laws, and excludes executive officials, judges, and independent agencies or commissions. Such an interpretation is bolstered by both the original understanding of the term “Legislature,” as well as the “independent state legislature” doctrine, which recognized that the U.S. Constitution directly confers authority to regulate federal elections directly and specifically on institutional legislatures, and a State constitution may not impose substantive limits on the scope of that authority. Thus, to the extent laws establishing independent commissions purport to prohibit State legislatures from regulating federal elections or drawing congressional districts, they are unconstitutional under the Elections Clause.
“Shakeup at Organizing for Action”
Politico: “Organizing for Action is getting the jump on a post-midterms shake-up, with staff changes and the beginning of a reconstituting that will begin President Barack Obama’s shift toward thinking about his role after leaving office….OFA is winding down its advocacy and plans to become part of the Obama library and foundation after Obama leaves office, according to sources.”
“FairVote Joins Voting Rights Case in Washington to Promote Fair Representation”
FairVote wants to use “fair representation voting at-large”—which I think must be cumulative voting with a fancy name—to remedy a Voting Rights Act violation.
UPDATE: In this context, Fairvote is supporting Yakima’s efforts to use “limited voting.” FairVote uses the term “fair representation voting’” for a variety of alternative voting mechanisms.
“UT/TT Poll: Texans Favor Voter ID by 3-to-1 Margin”
Texas Tribune: ”Two-thirds of registered Texas voters have a favorable opinion of the state’s voter photo ID law, and more than half have a “very favorable” view, according to the latest University of Texas/Texas Tribune Poll….While 19 percent of Democrats have a ‘very favorable’ opinion of the law, 51 percent of independents and 85 percent of Republicans do.”
“Freedom Summer, 2015″
Read Jeff Toobin in the New Yorker on the recent SCOTUS WI and TX voting case orders.
“Voting Restrictions: From Statehouses to Courts”
Jerry Goldfeder and Myrna Perez write in the NY Law Journal.
“Is Your Judge for Sale?”
Andy Kroll for Mother Jones.