McDaniel Doesn’t (Yet) Rule Out Further Legal Action in #MSSEN


McDaniel in statement said, “Republicans are still left wanting justice” by the decision and said he hopes “conservatives in Mississippi will view this decision as a driving factor to get involved in Republican politics.”

Neither McDaniel nor his lead attorney Mitch Tyner answered definitively on Friday whether the ruling will put end to his trying to overturn the election, but McDaniel said, “now is time to turn the page and work to enact true conservative change.” Tyner said that while he disagreed with the ruling, “we are glad the Supreme Court finally ruled and Mississippi conservatives can move forward into 2015.”



Breaking: MS Supreme Court Rejects McDaniel Challenge in #MSSEN Race on 4-2 Vote: My Analysis

You can read the opinion at this link.  Here are some thoughts.

1. The plurality, concurrence and dissent. The Court’s opinion broke down 3-1-2, with 3 Justices not participating.

The plurality opinion held that it was bound by a 1959 case establishing a 20 day deadline for filing an election challenge. Although the legislature amended the statute since 1959, the plurality held that the legislature acted in light of this 1959 statute, and the deadline remains part of the statutory scheme.

A concurring Justice issued an opinion essentially reaching the view that this was a nonjusticiable political question to be decided by the political branches, not the courts.

The two dissenting Justices believed that the 1959 case was not binding on the courts, because the legislature made too many changes in the statutory scheme for it still to apply. Those justices would have sent the case back for further proceedings.

2. What’s next? In the normal world, I would say that this case is over.  Here, the state’s highest court has declared definitively what the meaning of the statute is, and the contest is over. But McDaniel has not operated in a normal world. So here are two ways the case can go on. First, an amicus in the Court raised a federal constitutional question which should remind everyone of Bush v. Gore. Under the Elections Clause, it is the state legislature to set the rules for congressional elections, unless the Congress has spoken. The amicus argued that the 20-day deadline was judicially created, and therefore violated the election’s clause requiring that the legislature set the deadline. The Supreme Court disagreed, saying it was resolving an ambiguity in the statute, not creating a new deadline. (This was very much an issue in the Florida 2000 rulings.) So if McDaniel wanted, he could go to the U.S. Supreme Court seeking emergency relief. I do not expect he would get it.  Second, McDaniel could file a contest with the U.S. Senate, though I can’t imagine that body giving him any relief.

3. Why not reach the merits? As I indicated when the trial court kicked McDaniel’s case out on timing issues, sometimes these rulings are a mercy killing. McDaniel’s evidence of fraud seemed weak, and his legal theories about crossover voting even weaker. This timing ruling was a way for the courts to end the process without going through a long drawn out trial.  Not that the courts would ever admit they were doing that, but I guess this was in the back of at least some Justices’ minds.

4. What’s next for McDaniel? Talk radio? Fox news contributor? Running for office when Cochran dies or retires?  I leave that to people who know MS politics.

[This post has been updated.]


Sixth Circuit on 2-1 Vote Rejects OH Voting Rights Claim of Jailed Voters

The other day I noted a federal district court ruling holding that those jailed (but not convicted) voters have the same rights to vote absentee as late-hospitalized Ohio voters.

Today the Sixth Circuit rejected the claim in a 2-1 opinion. The majority held that the group bringing the claim lacked standing to bring the claim. Chief Judge Cole dissented, disagreeing with the majority on the standing question and agreeing with the trial court on the merits.


“Tennant accused of violating election law”

News from West Va.:

Secretary of State Natalie Tennant’s rally on the steps of the Kanawha County Courthouse on Wednesday to celebrate the start of early voting may have violated state election law, officials said.

Tennant, the Democratic candidate for U.S. Senate, brought a group of supporters to the courthouse Wednesday morning and addressed the group before leading them inside to vote, thanking them for their support of her and West Virginia.


“Analysis: A Missing Piece in the Voter ID Debate”

Ross Ramsey in the Texas Tribune: “Republican state officials working to pass a voter photo ID law in 2011 knew that more than 500,000 of the state’s registered voters did not have the credentials needed to cast ballots under the new requirement. But they did not share that information with lawmakers rushing to pass the legislation.”



Krugman on the Voting Wars

NYT column:

And now you understand why there’s so much furor on the right over the alleged but actually almost nonexistent problem of voter fraud, and so much support for voter ID laws that make it hard for the poor and even the working class to cast ballots. American politicians don’t dare say outright that only the wealthy should have political rights — at least not yet. But if you follow the currents of thought now prevalent on the political right to their logical conclusion, that’s where you end up.

The truth is that a lot of what’s going on in American politics is, at root, a fight between democracy and plutocracy. And it’s by no means clear which side will win.


The Premise of Jim Geraghty’s Question About Voter Fraud is Wrong

He asks: “Isn’t there some happy medium between Democrats’ and liberal journalists’ insistence that there’s no such thing as voter fraud, ever, and the claim that Democrats’ election victories are stolen?”

There are very few people on the left who say there is no voter fraud. The issue is about the kind of voter fraud that voter id laws prevent.

See my open letter to Jonathan Tobin, which still has not been answered.


“Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule”

Jack Chin has posted this draft on SSRN (forthcoming, Boston University Law Review).  Here is the abstract:

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to “preclear” changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution’s Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing – as well as from what little the Court has said – that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

Can’t wait to read this!


“Election to Cost Nearly $4 Billion, CRP Projects, Topping Previous Midterms”

Open Secrets:

Almost $4 billion will be spent for this year’s midterm election, the Center for Responsive Politics is projecting. That figure makes this year’s election by far the most expensive midterm ever. The candidates and parties alone will combine to spend about $2.7 billion, while outside groups will likely spend close to $900 million on their own — a figure that veers close to the $1.3 billion spent by outside groups in 2012, when the hyper-expensive presidential race was fueling the fire.

By the end of the battle, when totals for every category are added together, Team Red will outspend Team Blue, CRP projects. GOP and conservative-leaning candidates, party committees and outside groups will spend at least $1.92 billion, compared to at least $1.76 billion their rivals on the Democratic and liberal-leaning side will spend.



Attacks and Defense of the Wisconsin GAB


An angry Assembly Speaker Robin Vos, R-Rochester, is vowing to change how Wisconsin elections and ethics are regulated.

Vos says the Government Accountability Board (GAB) is “dysfunctional, unresponsive, and totally undemocratic.” The board which oversees elections is composed of six former judges who are appointed by the governor and confirmed by the State Senate.

Vos complains about the board’s handling of legislative-recall petitioning and voting, and its support for the John Doe investigation into possible illegal coordination between Gov. Scott Walker and conservative groups. He also disliked the model ballot offered to county clerks for this year’s general election.


 fI feel compelled to respond to Rep. Robin Vos’ comments about Kevin Kennedy, director of the Government Accountability Board (“Doe effort called ‘death warrant,’” Oct. 8).

I served on both the State of Wisconsin Elections Board and the GAB while Kennedy was the director, and I can tell you that his service was exceptional in each case. Kennedy has a national reputation as an expert in election affairs and has taught and counseled election agencies throughout this nation.

Vos’ criticism is ill-informed. Perhaps his comments reflect partisan priorities over outstanding and faithful public service to the people of his state. Or perhaps he is uncomfortable with an agency that follows the dictates of the Wisconsin Statutes.

In any event, his criticism of the GAB and its director are without any basis.

Judge Gordon Myse (Ret.)



“The Disgust Election”

Tim Egan on CU:

Justice Anthony Kennedy doesn’t strike me as the kind of guy I’d want to share a beer and a brat with, or be stuck next to on a long flight. But I would like for the most influential swing voter on the Supreme Court to step away from his legal aerie, and wade through some of the muck that he and four fellow justices have given us with the 2014 campaign.

How did we lose our democracy? Slowly at first, and then all at once. This fall, voters are more disgusted, more bored and more cynical about the midterm elections than at any time in at least two decades.


“Ginsburg Wasn’t So Wrong About Texas and Veteran’s I.D.s”

Texas Election Law Blog:

Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).

The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.


The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.

Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”


Gov. Christie’s Clarification of His “Voting Mechanism” Remarks Not Clarifying, Still Objectionable

Yesterday I noted with incredulity these comments from Gov. Chris Christie:

Would you rather have Rick Scott in Florida overseeing the voting mechanism, or Charlie Crist? Would you rather have Scott Walker in Wisconsin overseeing the voting mechanism, or would you rather have Mary Burke? Who would you rather have in Ohio, John Kasich or Ed FitzGerald?” he asked.

In the face of criticism for these comments, the Governor today clarified:

Christie, who is chairman of the Republican Governors Association this year, was making a push for electing GOP gubernatorial candidates a the chamber’s Institute for Legal Reform, which advocates for rules and laws to protect companies from lawsuits, when he made the “voting mechanisms” remark. Asked Thursday if that comment meant he supports the strict voter identification laws that some states have adopted, Christie said that is not what he meant.

“Everybody read much too much into that,” he said. “You know who gets to appoint people, who gets to decide in part what the rules are, I’d much rather have Republican governors counting those votes when we run in 2016 as Republicans that I would have Democrats. There was no specific reference to any laws.”

Christie noted that he was specifically talking about electing Republican governors and that it is state legislatures that are passing voter identification requirements.

He still wants to make sure that we have “Republican governors counting those votes.”

Still objectionable. We need nonpartisan election administration.


“Emergency voting measures during Hurricane Sandy violated N.J. law, inviting fraud, study finds”

Emergency measures intended to allow people to vote in the days immediately following Hurricane Sandy violated state law, concludes a highly-critical report released today by the Rutgers School of Law in Newark.

The study said those measures—which included allowing people to request mail-in ballots by fax and email—led to mass confusion, overwhelming many county clerks on election day.

We need better disaster contingency planning for elections. This cannot be created in the midst of an emergency.


“Journal Times editorial: Judge-shopping must be stopped”


A Milwaukee Journal Sentinel report last week disclosed what appeared to be a blatant case of “judge-shopping.”

When the conservative group Citizens for Responsible Government Advocates filed a lawsuit earlier this month, they filled out paperwork in a way as to ensure they could get a particular judge to oversee the case, the Oct. 17 article stated.

The case had to do with campaign finance and how groups and candidates could work together.

Not surprisingly, after the “judge-shopping,” U.S. District Judge Rudolph Randa, who was the presiding judge over the case, “issued an order limiting how campaign finance laws could be enforced, opening the door for groups and candidates to team up in the weeks before the Nov. 4 election,” the Journal Sentinel reported.

Cases are supposed to be randomly assigned, but in this case the group said it was related to other similar cases the judge had presided over and therefore should go to him.