Via Josh Gerstein comes news of this latest ruling in League of Women Voters v. Newby, concerning a directive from EAC director Newby allowing states (including SOS Kobach’s Kansas) to require documentary proof of citizenship before using the federal form to register in federal elections. This is a long-running dispute that has played out in numerous lawsuits and numerous courts across the country. Judge Leon has already been reversed once by the D.C. Circuit on his temporary order.
Judge Leon sees this as a morass:
But having the Election Assistance Commission decide this will put it in a tough spot, and it could well come down to the position of the new chair, Commissioner Masterson. It was clear in earlier aspects of this dispute that Commissioner Hicks believes Newby acted without authority and Commissioner McCormick likely believes Newby had authority. Masterson, like McCormick, is a Republican appointee but a straight shooter. Hicks is the Democratic appointee and the other Democratic seat remains vacant.
In the oral argument in today’s Wisconsin [corrected] case, around the 29 minute mark, Judge Easterbrook asks plaintiffs’ counsel: “A large part your brief reads as if the argument is: ‘When Democrats are in control they are free to expand voting. When Republicans in control they are prohibited from making any pro-Republican changes.’ That can’t be right… Why are the standards when Republicans are in control any different from when Democrats are in control?”
So “pro-Republican changes” must equal contracting the right to vote. And that’s ok?
I do address the one-way ratchet issue in these vote denial cases in this piece,
Another issue in the case is whether treating counties rather than voters is constitutional. I address that question in: When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”, 2015 University of Chicago Legal Forum 193 (2015).
Cause of Action responds to Bob Bauer’s post on FEC Commissioner Weintraub.
Tony Gaughan has posted this draft on SSRN (Fordham Law Review). Here is the abstract:
Although the presidency is the most powerful public office in the United States, the federal government plays a modest role in presidential elections. Reflecting the nation’s foundation on federalist principles, federal involvement in the presidential election system is largely limited to protecting voting rights and regulating campaign contributions. The extremely decentralized nature of the American presidential election system may reflect the triumph of federalism, but it is a shambolic and ramshackle version of federalism. The uncomfortable truth is the United States relies on an archaic and dysfunctional process for electing the most powerful leader in the world.
We can and must do better. Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.
Tony Gaughan has posted this draft on SSRN (Ohio State Law Journal). Here is the abstract:
This article examines the 40 year history of the post-Watergate campaign finance reforms. Since Watergate, federal campaign finance law has been based on a model of low contribution limits and unlimited expenditures. That long experience provides sufficient evidence to ask and answer a fundamental question: Are we better off today than we were before the Watergate era campaign finance reforms? The thesis of this article is that the answer to that question is no. In fact, in many respects, the current system is worse than that which prevailed before Watergate.
This article concludes that contrary to the polarizing rhetoric that surrounds the national debate over campaign finance law, the historical record indicates that both reformers and their opponents offer reasonable policy alternatives to the dysfunctional system that prevails today. For example, twentieth-century political history at the federal level and ongoing experience at the state level demonstrate that a deregulated campaign finance system does not lead inevitably or necessarily to plutocracy. At the same rate, however, Canada’s experience with expenditure caps over the last 40 years shows that robust political debate and high levels of incumbent turnover are possible even within a comprehensively regulated campaign finance environment. Thus, the historical record makes clear that either approach — comprehensive regulation or sweeping deregulation — is preferable to the hybrid campaign finance system that governs American elections today.
Nour Abdul-Razzak, Carlo Prato and Stéphane Wolton in the Monkey Cage:
Our research focuses on state legislative elections because we can more easily isolate the effect of Citizens United compared with other factors that influence election outcomes at various levels (such as the popularity of the president). Before 2010, 23 states had bans on corporations and union funding of outside spending. As a result of the court’s ruling, these states had to change their campaign laws. We can then compare the changes before and after Citizens United in these 23 states with the same changes in the 27 states whose laws did not change. The effect of the court’s ruling is then simply the differences between these two before-and-after comparisons.
We find that Citizens United increased the GOP’s average seat share in the state legislature by five percentage points. That is a large effect — large enough that, were it applied to the past twelve Congresses, partisan control of the House would have switched eight times. In line with a previous study, we also find that the vote share of Republican candidates increased three to four points, on average.
We also uncovered evidence that these results stem from the influence of corporations and unions. In states where union membership is relatively high and corporations relatively weak, Citizens United did not have a discernible effect on the partisan balance of the state legislature. But in states with weak unions and strong corporations, the decision appeared to increase Republican seat share by as much as 12 points.
News and Observer:
Through November, Republican lawmakers had spent more than $10.5 million over five years defending laws on everything from redistricting to voter ID to HB2. Almost half the money – $4.9 million – went to defend a sweeping voter law, which was overturned by a panel of federal judges but now faces possible review by the U.S. Supreme Court.
Lawmakers spent another $3.7 million defending redistricting plans, several of which are also before the high court. And they’ve spent more than $1.2 million on behalf of HB2, which faces multiple legal challenges.
Plaintiffs in the voting case will waive their right to up to $12 million in attorney’s fees from NC, if the attempt to withdraw the cert. petition is successful (the legislature is fighting it).
Andy Kroll for Mother Jones:
A strange thing happened last week at the Federal Election Commission, the nation’s watchdog for campaigns and elections. On Friday evening, the FEC’s three Republican members quietly released a slew of missing legal memos related to cases dating back as far as 10 years. The commissioners gave no reason for why they decided to act now, after a decade of silence on the cases in question.
But it turns out that the newly released memos were the result of a Freedom of Information Act request recently filed by Mother Jones. The request was a modest one and asked only for a list of all such overdue legal documents at the FEC. That list would show every case for which FEC commissioners had failed to perform a customary part of their jobs: explaining to the public why they had voted a certain way on cases that had come before the agency. Dismiss a complaint, open an investigation, assess a fine—whichever way a commissioner decides, he or she is expected to explain that decision in a memo made available to the public.
In a move that perplexed several legal experts, the FEC denied our FOIA request. Yet soon after that, the FEC’s three Republican commissioners hastily wrote and released to the public 11 of these long-overdue legal memos. When Mother Jonesasked the three Republican commissioners if our FOIA request had anything to do with their decision to act, two of them, Lee Goodman and Matthew Petersen, confirmed that it had. “Most of these were on the back burner as our reasons were either already clear or changes in the law made the issues moot,” Petersen says. “Your request was a useful reminder to bolster the record with formal statements.”
Patrick Marley for the Milwaukee Journal-Sentinel:
Three federal judges expressed deep skepticism Friday over claims that Wisconsin Republicans had deliberately made it harder for minorities to vote, raising the prospect they would reinstate limits on early voting.
Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals said those challenging Wisconsin’s voting laws were contending that Democrats can expand voting rules to help their party at the polls but Republicans can’t tighten them to their advantage.
“That can’t be right,” he said during arguments in a pair of Wisconsin cases.
And let’s hope the EAC continues to exist throughout his tenure as chair.
This is a big deal. (Background on why the Court will likely hear the case on the merits.)
Will Justice Kennedy agree to police partisan gerrymandering as his parting gift from SCOTUS?
A federal district court, following a remand from the Fifth Circuit, is considering whether Texas acted with racially discriminatory intent when it passed its controversial voter identification law. The district court had already made a finding that Texas had such intent, which could provide the basis for striking down Texas’s entire voter id law, and potentially (under Section 3 of the Voting Rights Act), put the state back under federal preclearance of its voting changes for up to 10 years.
The litigation had been pushed by private plaintiffs and the US Department of Justice under the Obama Administration. But the Trump administration (which touts unsubstantiated claims of voter fraud regularly) is likely to have a different view on these issues, and could potentially switch sides.
Earlier this week, DOJ joined with Texas, but against the wishes of the private plaintiffs, asking for the trial to be put off until July, as Texas considers whether to pass legislation modifying its voter id law. A postponement would have allowed DOJ to avoid coming in, at least now, and switch positions in the case.
But today the district court denied the motion for a continuance, meaning the Feb. 28 hearing is back on, and putting DOJ on the spot. I expect it will either now take a neutral position and pull out of the litigation, or perhaps even actively support Texas.
See this filing.
So it looks like the Court is very likely to dismiss the case, unless the NC Legislature gets involved and can convince the Court that it can assert the interests of the state of North Carolina.
So far, nothing from the Legislature on the docket.
“He’s announcing that Vice President Mike Pence will lead a task force on this,” Spicer said when asked about Trump’s accusations that 3 million to 5 million people voted illegally in 2016. The White House so far has not offered evidence that so many people filed illegal ballots.
“He named the task force, and the vice president is starting to gather names and individuals to be a part of it.”
Bob Bauer, who co-chaired the Presidential Commission on Election Administration, has written that election professionals should not be part of this effort. Marc Elias, Hillary Clinton’s lawyer, says no Democrats should take part.
The U.S. Justice Department joined Texas’ attorney general Wednesday in asking a federal court to delay a hearing on the state’s voter ID law, the latest signal that the federal government might drop its opposition to the law now that Donald Trump is president.
In the joint filing, the Justice Department and Texas Attorney General Ken Paxton asked to delay next Tuesday’s hearing until summer because the Texas Legislature is considering changes to the existing law, which a federal court has found to be discriminatory. Barack Obama’s Justice Department had joined the lawsuit contesting it.
You can find the joint motion (which I expect the private plaintiffs to oppose) at this link.
Note: An earlier version of this post said that there was a party line vote at the North Carolina Board of Elections not to withdraw from the case. That’s correct, but it was not the end of the story. I have just received the following letter indicating that the Board takes the position it is not involved in the case:
The State Board of Elections this evening voted unanimously to communicate that it has not taken, and does not take, a position in the above-referenced action. The Board wishes also to communicate that it does not believe the agency is presently represented by private counsel in this matter, nor has the agency acted to retain private counsel in the past.
If the governor and AG have withdrawn the cert. petition, and the Board of Elections has no position in the litigation, it seems that the case should be withdrawn from SCOTUS, unless the Legislature seeks to intervene and argue that the governor lacked the power to withdraw from the case. As of now, the Legislature is not a party to the case, and it is not clear to me how this would get resolved.
Does this get resolved in state court? Does SCOTUS put consideration of the cert. petition on hold or does it allow the withdrawal of the petition?
I will update this post further if I get more information.
This post has been corrected.
Douglas Hess oped for the Des Moines Register:
Iowans should take pride in knowing that our state, like many Midwestern states, has a reputation for relatively even-handed public administration. Unfortunately, some officials are bruising that reputation with proposals to add new identification requirements to vote in Iowa and restricting access to absentee ballots.
Secretary of State Paul Pate is correct when he asserts that elections in Iowa need more funding. Moreover, his office’s proposed bills (here and here) include some reforms that could increase convenience for voters. Unfortunately, his proposal also includes unnecessary voter ID requirements.
Chris Elmendorf has posted this draft on SSRN. Here is the abstract:
For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution, that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school-finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions, and possibly under Article I or the Fourteenth Amendment of the U.S. Constitution. I also suggest that by anchoring claims to the generally-worded provisions about representation found in state constitutions and Article I, litigants can mitigate the substantial downside risk of success under the Equal Protection Clause — namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational-adequacy litigation.
I read an earlier draft of this—very creative and recommended!
You can find the documents here.
As I noted yesterday, there is a dispute over whether the North Carolina governor can end this litigation while the legislature wants it to continue.
There is also the question, as noted in the filing, about the continued participation of the state board of elections. They will be having a meeting today where the issue may be discussed.
Laurie Roberts AZ Republic column.
Statement of Commissioner Ellen L. Weintraub Regarding Request for Investigation1 Filed With FEC Inspector General
As a Commissioner on the Federal Election Commission, I am acutely aware that our democracy rests on the faith of the American people in the integrity of their elections.
The President of the United States has, without providing evidence, alleged a massive conspiracy to bus thousands of voters from one state to another to cast illegal votes in the 2016 elections.
Any such allegation challenging the legitimacy of federal elections would be of great concern to me. As it happens, this particular allegation falls squarely within the jurisdiction of the Federal Election Commission, since the expense of these buses has not been accounted for on any campaign-finance filing. Accordingly, I have asked the President for his evidence.
But let there be no doubt: It is absolutely within my official duties as a federal election official to comment publicly on any aspect of the integrity of federal elections in the United States. I will not be silenced.
Update: Weintraub tweets:: Here’s the “request for investigation” that a nonprofit filed today with Inspector Gen., seeking to muzzle me. “
It’s unclear what the practical effect of this step will be. Ordinarily, a plaintiff withdrawing from a lawsuit would leave the lower court ruling in place. However, in North Carolina, General Assembly leaders have the ability to defend lawsuits on behalf of the state.
A spokeswoman for Senate President Pro Tem Phil Bergernoted that Cooper and Stein aren’t the clients of the outside attorneys, so they cannot fire them, and the attorneys will continue representing the state.
“Roy Cooper’s and Josh Stein’s desperate and politically motivated stunt to derail North Carolina’s voter ID law is not only illegal, it also raises serious questions about whether they’ve allowed their own personal and political prejudices and conflicts of interest to cloud their professional judgment,” Berger and House Speaker Tim Mooresaid in a joint statement.
The State Board of Elections also remains a defendant in the case, but a spokesman for the agency could say only that lawyers for the board are reviewing the matter.
I’ve gone into the morass before trying to figure out who can control NC litigation in these circumstances and I will have to leave this to NC law gurus. It may end up having to be sorted out in state courts.
In the meantime, if the case is not formally withdrawn soon, I’d bet some good money that the four conservative Justices, expecting a Justice Gorsuch, will vote to grant cert.
Important Molly McGrath LA Times oped:
States that have implemented voter ID laws have shown little to no interest in helping their citizens comply. And the advocacy organizations that oppose these laws have few resources for direct voter assistance. Instead, groups like the American Civil Liberties Union have focused on challenging voter ID mandates in court. That’s essential, but it’s not enough. As court battles proceed, we must acknowledge our collective obligation to voters like Cinderria by investing in on-the-ground, in-person support.
Tabatha Abu El-Haj has posted this draft on SSRN. Here is the abstract:
Hardly a day goes by without a headline decrying the hyperpolarization and dysfunction of Congress. While the 2016 election has heightened these concerns, the fact is that for nearly a decade those who follow politics closely have been sounding alarm bells about the myriad ways our party system is failing to live up to its democratic function. Some have been preoccupied with ideological polarization and legislative gridlock; others with the apparent disconnect between the policies pursued and the preferences of the constituencies represented; others still with an important secondary effect — the aggrandizement of executive power. Whatever the emphasis, there is little question that the growing academic consensus is that the party system is in need of fundamental reform if responsible and responsive governance is to emerge. The results of the 2016 election strongly indicate that this is one arena in which the public and experts agree.
This Article argues that it is time to bite the bullet and admit that a large part of the problem is that the governing theory of how to achieve responsible and responsive parties is just not working. Party reformers — both academics and practitioners — need to accept that “responsible party government” has run its course as a means for achieving democratic accountability, that the Supreme Court ought to abandon its attachment to the theory as a driver of its decisions pertaining to the First Amendment rights of political parties, and that it should be eschewed as the theoretical underpinning of all regulatory proposals.
Without denying that parties are associations of ruling elites in the business of seeking election or that educating voters is difficult, the Article draws on the insights of a range of empirical research in sociology and political science to argue that we can demand more from parties and expect more from citizens. An alternate path to responsive governance, it argues, exists once we conceive of political parties primarily as civic associations rather than producers of brands. Viewed as associations, the capacity of political parties to foster responsiveness and accountability would depend less on their capacity to speak and the coherence of their platform, and more on the depth and breadth of their political networks. The strength of a political party ought to be assessed in terms of its capacity to generate informed, representative political engagement through a broad cadre of party activists with ties to a broader more representative swath of the electorate.
The Article concludes by exploring the implications of an associational party perspective for legal doctrine and regulatory reform, by focusing on two related current controversies. The first is the constitutional challenge, pending in the Supreme Court, to the federal ban on using soft-money to fund campaigns. The second is the debate over how to deregulate party financing to level the playing field so they can effectively compete with Super PACs and similar entities.
Looking forward to reading this!
Last week I explained the following:
North Carolina has filed its reply brief in the North Carolina voting case, and the Supreme Court is set to review it at its March 3 conference. (If the Court does grant review, it typically takes at least two conferences before that announcement is made.)
A few weeks ago, I wrote at Slate that “in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court to review the 4th Circuit’s decision striking down North Carolina’s strict voting law.” I followed that up with a blog post stating that NC law was not clear on whether the Governor had the authority to withdraw the petition, but at the least he could put in a letter expressing his disagreement with the argument that the Supreme Court should review the case.
The governor and AG were non-committal, and now it appears they’ve filed nothing. Without explanation. And with a lot riding on this. By the time the Court would hear the case, we likely will have a Fifth conservative Justice and this important opinion could be reversed.
Now comes a press release from the governor’s office:
|FOR IMMEDIATE RELEASE
February 21, 2017
Governor Cooper, AG Stein Take Steps to Withdraw from Voting Restrictions Case
Raleigh: Today, Governor Roy Cooper and Attorney General Josh Stein have taken steps to withdraw the state’s petition for a Writ of Certiorari to the U.S. Supreme Court of State of North Carolina V. North Carolina State Conference of the NAACP, the voting restrictions law overturned by the Fourth Circuit Court of Appeals last year.
Last year, judges on the Fourth Circuit overturned North Carolina’s 2013 voting restrictions law after finding that it sought to “target African Americans with almost surgical precision” in order to limit access to the ballot box. The previous administration joined in petitioning the U.S. Supreme Court to hear the case on December 27th.
This morning, the Governor’s General Counsel and Chief Deputy Attorney General jointly sent a letter discharging outside counsel in the case on behalf of the State. Also today, the Governor’s Office and the NC Department of Justice formally withdrew the State and Governor’s request for the U.S. Supreme Court to review the Fourth Circuit’s decision.
After the Governor’s Office and N.C. Department of Justice withdraw, the State Board of Elections, its individual members, and its Executive Director will remain in the case for the time being.
“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Governor Cooper said. “It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters.”
“The right to vote is our most fundamental right,” said AG Stein. “Voting is how people hold their government accountable. I support efforts to guarantee fair and honest elections, but those efforts should not be used as an excuse to make it harder for people to vote.”
It is unclear to me what it means for the Board of Elections and its executive director to “remain in the case for the time being.” This again is one of those odd aspects as to who controls North Carolina litigation. Not clear to me if they can get or keep outside counsel. Correction: It appears Republicans still have a majority on this board (at least until the courts decide if the structure of this board can change as NC legislature ordered last year). Also, I am not sure if the Legislature can seek to intervene at this time. I welcome clarification from those who understand North Carolina law on this point.
More as I know it. But getting this case withdrawn would be a big deal and a good thing.
UPDATE: The post from the NC AG says the plaintiffs will give up their right to up to $12 million in attorney’s fees in exchange for dropping the case. That’s a nice way to frame the issue for NC voters.
The measure now moves on to the New Mexico House.
Chris Seaman has written this oped for the Roanoke Times.