Gov. Christie Attacks Same-Day Voter Registration in Illinois

He also comments on some ballot access decisions:

“He will try every trick in the book,” Christie said of Quinn. “I see the stuff that’s going on. Same-day registration all of a sudden this year comes to Illinois. Shocking,” he added sarcastically. “I’m sure it was all based upon public policy, good public policy to get same-day registration here in Illinois just this year, when the governor is in the toilet and needs as much help as he can get.”

Christie also questioned a recent decision allowing a Libertarian candidate on the November ballot, but not a Green Party candidate. A Green Party candidate could draw votes away from Quinn while a Libertarian candidate could draw Rauner votes.

“Now I see that the court’s ruled that the Libertarian candidate can be on the ticket but the Green Party can’t. Another interesting development. I told some people this morning: ‘You people in Illinois make New Jersey people blush, it’s unbelievable, right?’ Every obstacle that can be placed in front of Bruce by the establishment in this state will be placed in front of him. The great news is he’s strong enough to overcome those.”

(h/t IBT)

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Interesting 9th Circuit Panel Draw in Guam Racial Voting Case

Following up on this post, the Ninth Circuit panel hearing the Guam case is Chief J. Kozinski, Judge Schroeder, and Judge Randy Smith.  I think at least Kozinski and Smith will be skeptical of the Guam-based law.

This report from oral argument, however, suggests the court might be able to avoid the merits by holding the case moot. If not…:

Assistant Attorney General Robert Weinberg, speaking on behalf of GovGuam, responded to Martin’s argument, saying that it was important to give Guam’s native population a voice in the island’s future

Judges, however, asked Weinberg how the plebiscite would be any different from a state deciding to hold a “whites-only primary.”

Chief Circuit Judge Alex Kozinski asked Weinberg if he believed a state that tried to restrict voters because of race wouldn’t be “laughed out of court.”

Weinberg said, “Guam is different.”

“We have to look at it differently in context,” he said.

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Another Shoe to Drop in Iowa Payment for Endorsement Investigation?

Russ Choma:

Neither Lori Pyeatt, Ron Paul’s granddaughter and the treasurer of his 2012 presidential campaign, nor Jesse Benton, who was Paul’s campaign manager (and is now manager of Senate Minority Leader Mitch McConnell’s re-election campaign), had responded to requests for comment at the time this post was published.

It isn’t clear if the investigation is continuing, but Sorenson has been granted immunity from further prosecution on federal and state charges, as has his wife, according to the plea agreement. OpenSecrets.org has learned that two grand juries have been investigating the events in Iowa, one focused on the Paul campaign and one on Bachmann’s. Last August, OpenSecrets.org published a copy of a memowritten by Aaron Dorr, the head of the Iowa Gun Owners, in which he outlined Sorenson’s demands to switch his endorsement. Included in the emails surrounding the negotiations were several top Paul campaign officials, including Benton.

Nobody has been indicted in connection with making the payments to Sorenson.

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“TV Station Pulls Anti-Shaheen Ads Off Air”

AP:

A super PAC’s negative ads against Sen. Jeanne Shaheen were pulled off the air Wednesday after the New Hampshire Democrat’s attorneys flagged inaccuracies in the spot.

Ending Spending Action Fund, a conservative outside group, claimed in ads that “Shaheen’s wealth has surged while in public office.” Her financial disclosure forms filed with the Senate show the opposite, with her personal wealth dropping by at least $562,000 and perhaps as much as $1 million.

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“Navigating Election and Political Law: Leading Lawyers on Understanding Campaign Finance, Speech, Voting Rights, and the Laws that Govern (Inside the Minds)”

Looks like an interesting new book for election law practitioners with some top notch contributors:

Navigating Election and Political Law provides an authoritative, insider’s perspective on the dynamics of the federal and state laws governing political contributions and spending, and how these laws are impacting practitioners and their clients. Written by partners from some of the nation’s leading law firms, this book guides the reader through the current trends in election and political law, including the latest guidance on the candidate, committee and party side of the ledger, as well as the corporate, non-profit, and association perspective.

These political law experts review and discuss game-changing U.S. Supreme Court decisions, including Citizens United, McCutcheon v. Federal Election Commission, andShelby County v. Holder and their impact on candidates, campaigns, PACs and Super-PACs, and the agencies charged with enforcement of the laws that govern.

In this rapidly changing compliance environment, these industry leaders reflect on the challenges practitioners face, ranging from the defense of First Amendment free speech protections, ensuring the fundamental right to vote for all, and the future of campaign finance, and the role that lawyers will continue to play. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today, as these experienced lawyers offer up their thoughts on the keys to success in this high-stakes field.

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More on Texas’s Argument DOJ Too Partisan to Enforce Voting Rights Act

In an earlier post, I noted  this filing of the state of Texas in the voter id case (particularly pages 13-23), raising an affirmative defense to DOJ’s claims that Texas’s voter id law violates section 2 of the Voting Rights Act and that Texas’s intentional racial discrimination in voting gives the court discretion to cover Texas again under a preclearance regime under section 3 of the Voting Rights Act.  Texas argues that section 3 is not appropriate because DOJ is partisan and has applied the Voting Rights Act in an unfair and unconstitutional manner, especially against Texas and other state formerly covered by section 5.

Texas has now filed a response to DOJ’s motion to strike the affirmative defense. In part, Texas’s response reads:

The United States seeks bail-in and must therefore prove that it is justified. Defendants, in turn, must respond and demonstrate that it is not. See Fed. R. Civ. Pro. 8(b)(1)(A) (“In responding to a pleading, a party must state in short and plain terms its defenses to each claim asserted against it.”). Given the rare and serious nature of bail-in as a remedy, a court weighing its justification should consider all relevant factors, including among other things the manner in which the VRA is enforced by the entity charged with enforcing it. Defendants allege in plain and simple terms that the Voting Section, Civil Rights Division of the Department of Justice enforces the VRA in a partisan and racially discriminatory manner, particularly with regard to voting laws in Texas. See, e.g., ECF No. 417 at 22 (stating that DOJ has declined to use section 2 to challenge similar voter ID laws enacted in eleven other states). Equitable relief under section 3(c) cannot be justified where the body of law under which it exists is enforced inequitably.

Moreover, DOJ’s unequal application of the VRA raises equal protection concerns under the Fourteenth Amendment―concerns that are particularly relevant to a section 3(c) analysis in the wake of Shelby County, where the Supreme Court placed the entire preclearance regime on tenuous constitutional grounds. See Shelby County, 133 S. Ct. at 2620 (holding that the very existence of a “preclearance” requirement raises grave constitutional questions”). Defendants’ allegations and defenses are not offered for nothing; each one of them bears directly on these serious and relevant issues underlying the extraordinary act of bailing-in a State under section 3(c). 

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“Former Iowa State Senator Pleads Guilty to Concealing Federal Campaign Expenditures”

DOJ press release: “According to a statement of facts filed with the plea agreement, Sorenson admitted that he had supported one campaign for the 2012 presidential election, but from October to December 2011, he met and secretly negotiated with a second political campaign to switch his support to that second campaign in exchange for concealed payments that amounted to $73,000.   On Dec. 28, 2011, at a political event in Des Moines, Iowa, Sorenson publicly announced his switch of support and work from one candidate to the other.”

John Gramlich says it was a switch from Michele Bachman to Ron Paul.

 

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“Judge orders Gant to add Lora Hubbel to LG ballot”

I missed this development following up on an earlier blog post:

A federal judge on Monday ordered Secretary of State Jason Gant to print ballots listing Lora Hubbel’s name as Myers’ running mate. Gant had refused to do so, saying there’s no state law allowing an independent candidate to be replaced.

But Judge Lawrence Piersol said that was likely an “oversight” and that not letting Myers replace his running mate would infringe on his rights and impose an “unequal burden” on non-party candidates.

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“The revenge of ex-Secretary of State Charlie White?”

IndyStar:

Disgraced politician Charlie White is seeking to reinvent himself — as a tell-all political blogger.

His target: His Republican colleagues, among others.

The former Indiana Secretary of State recently launched The Indy Sentinel, a new website about “pols and media who are fair & those who live to serve the elites in both parties to the public’s detriment,” according to his Twitter account.

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“Dave Davis Asks Ninth Circuit to Recognize That Racially Exclusive Plebiscite Registration Injures Citizens on Guam”

Election Law Center press release:

The United States Ninth Circuit Court of Appeals will be hearing arguments today, August 27, 2014, in Arnold Davis v. Guam at 10 a.m. (ChST) in the 4th floor courtroom at the federal courthouse in Hagatna, Guam. (The hearing will take place at 8 p.m. EDT on August 26, 2014).

Arnold “Dave” Davis tried to register for the Decolonization Registry so he could vote on a future status plebiscite regarding Guam’s relationship to the United States. His attempt to register to vote was denied because Davis could not trace his ancestry to a native inhabitant of Guam. Guam law prohibits those who do not have the correct ancestors from registering to vote for the status plebiscite. According to an expert report by Davis’ expert, nearly every single ancestor who would vest the modern right to register to vote was of the Chamorro racial group.

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Why Have Elites Reacted Differently to Treatment of Gov. Perry and Gov. Cuomo Investigations?

Bob Bauer offers his thoughts:

One such factor may be suspicions about an officeholder’s motives in setting up a Commission and then disbanding it when it appeared to some that it was performing well and had more work to do.  And this suspicion is heightened against a background of concerns about endemic corruption in New York State politics.  Governor Perry is helped by the assumption that Texas politics is brass-knuckled and partisan, but with the DeLay case in the background, there is also a tendency, rightly or wrongly, to believe that this partisanship has seeped into the criminal justice system.  In one state, the expectation is nasty politics, which, it is believed, should be kept out of the criminal justice system; and in the other, the fear is corrupt politics and the response is ardent support for aggressive criminal enforcement.

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What’s the Matter with Kobach?

By “Kobach,” I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

What the Case Is About

Kobach involves a narrow but important issue, left unresolved after the U.S. Supreme Court’s decision last year in Arizona v. Inter Tribal Council of Arizona. That case involved Arizona’s attempt to impose a proof-of-citizenship requirement for voter registration, an issue that has been percolating for many years.

Arizona law requires would-be voters to provide documents proving their citizenship when they register, documents that some eligible citizens don’t have. But the National Voter Registration Act (NVRA) requires states to “accept and use” the national voter registration form, commonly known as the “federal form.” And that form’s instructions don’t require documentary proof of citizenship. In Arizona, the Supreme Court said that states must register voters who used the federal form, even without these documents. But the Court allowed Arizona to ask the U.S. Election Assistance Commission (EAC) to add the state’s proof-of-citizenship requirement to the federal form.

That’s exactly what Arizona, along with Kansas, sought to do. But there’s a problem. The EAC had no sitting commissioners – hasn’t had any for years, in fact, due to gridlock in Congress. With no Commissioners to vote on the states’ requests, they went to federal court to force the commissioner-less EAC to incorporate their proof-of-citizenship requirements on the federal form’s instructions.

While the Supreme Court saidthat Arizona may ask the EAC to change the federal form, it didn’t say that the EAC must grant the state’s request. The central issue in Kobach is whether and when state requests to add proof-of-citizenship requirements to the federal form must be granted.

What the District Court Did

Arizona and Kansas won in the lower court. The district court in Kobach first directed the EAC to make a decision on Arizona’s and Kansas’ requests, even without commissioners. EAC’s staff – specifically its acting executive director – complied with this order but denied the requests, concluding that the federal form shouldn’t be modified to add the states’ citizenship requirements. The district court then concluded that the EAC (staff) was wrong to deny Arizona’s and Kansas’ requests and that the states’ proof-of-citizenship requirements must be added to the federal form instructions.

There are two problems with what the district court did in Kobach. One is that the EAC isn’t legally obligated to grant Arizona’s and Kansas’ requests. These states argue that the EAC had a “ministerial” duty to change the federal form to add their proof-of-citizenship requirements. In effect, they argue that the EAC has to rubber-stamp states’ requests. But that’s not what the relevant statute, the NVRA, says – nor is it what the Supreme Court said. The NVRA says that the federal form should only include information that is “necessary” to assess eligibility to vote. This is consistent with what the Supreme Court said in Arizona – that it would raise serious constitutional questions if states couldn’t obtain information “necessary” to assess voter qualifications.

In this case, the relevant qualification is citizenship. So the dispositive question is whether these two states’ proof-of-citizenship requirements are “necessary” to assess voter qualifications. The answer is that they’re not. The federal form already requires voter to swear or affirm, under penalty of perjury, that they are U.S. citizens. It’s also telling that Congress declined to add language authorizing states to impose additional proof-of-citizenship requirements when it enacted the NVRA, as the EAC notes in its brief (p. 35).

If we had an epidemic of noncitizens voting, then Arizona’s and Kansas’ arguments would be stronger. But there’s no such evidence in the record — which shows 196 noncitizens registered in Arizona and 21 who either registered or tried to register in Kansas, paltry numbers in states with 3.7 and 1.8 million registered voters respectively as of 2012. And there was no evidence on how many of the handful of noncitizens on the rolls used the federal form, as opposed to other means of registration. For all the concerns that Secretary of State Kobach has expressed about noncitizen voting, Arizona and Kansas’ brief is conspicuously fuzzy on this point. They claim there may be more (p. 57) . . . but can’t prove it.

It can’t be the case, moreover, that the EAC has to rubber stamp every state request to add new registration requirements, however unreasonable. If Arizona and Kansas can implement their proof-of-citizenship requirements, can states require government-issued photo ID to register? DNA? A criminal background check? A statement of mental competency from a licensed physician? All of these documents bear some relationship to state voter qualifications. But that doesn’t mean that states are justified in demanding them – much less that the EAC is required to accommodate state demands to include them with the federal form. Eligible citizens could easily slide down this slippery slope – and right off the voting rolls.

The other problem concerns the district court’s directive that the EAC act on Arizona’s and Kansas’ request even though the Commission had no commissioners. At the end of their brief (p. 59), the states argue that the EAC lacked the authority to make this decision because it had no sitting commissioners. I think Arizona and Kansas are right on this point, given that the Help America Vote Act requires at least three commissioners for the EAC to take action. (In fairness to the district court, it appears to have ordered EAC to act based on the DOJ’s representation that EAC staff had this power.) But without a quorum, the EAC lacked statutory authority to decide the states’ requests. Arizona and Kansas are right on this point – although it doesn’t follow that they should win.

What the Tenth Circuit Should Do

Where does all this leave us? This is the really difficult question presented by the Kobach case, on which the Tenth Circuit judges seem to have been focused, as Doug Chapin highlights. Kansas and Arizona say that the EAC had no choice but to modify the federal form as they asked – but they’re wrong on the law, as I’ve explained.

There are at least two viable options for the Tenth Circuit. One is to punt, by vacating the district court’s ruling and remanding with instructions to send the case back to the EAC. The agency still has no commissioners – but nominations have been announced so it’s possible there will be a quorum before too long. Even if the EAC gets new commissioners, however, we can expect them to stalemate along party lines. And then what? In Arizona, this controversy has already been going on for almost a decade. While I don’t agree with Arizona’s and Kansas’ legal position, they’ve waited long enough for a judicial ruling on whether the EAC must grant their requests. The old adage about justice delayed sometimes applies to states as well as individuals.

There was, moreover, a thorough airing of the facts and law in the district court, which was crystal clear on its view of the law – and would have been the same regardless of whether the EAC had commissioners. We don’t have to speculate. The district court explicitly said that its “decision would be the same if a full commission had voted 4-0 to deny the states’ requests.” Sending the case back to the district court for further EAC consideration would serve no purpose.

The other option is for the Tenth Circuit to decide the case on the merits. While the district court may have been wrong to order EAC staff to act on the states’ requests, it could have ordered the EAC – with or without commissioners – to modify the federal form if required by federal law. A footnote in the Supreme Court’s Arizona opinion mentions this possibility, saying: “If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to ‘compel agency action unlawfully withheld or unreasonably delayed.’” Although the Court reserved the question whether such relief should be granted, it would be transparently unfair to deny states a ruling and, if warranted, relief due to circumstances beyond their control – in this case, congressional gridlock that left the EAC commissioner-less.

Thus, the Tenth Circuit can and should decide the case on the merits, treating the district court’s order as one to “compel agency action withheld or unreasonably delayed.” There’s no point in sending it back to the district court, which left no doubt on what it would have done, with or without a quorum on the EAC. The lack of the quorum does mean that the EAC’s “decision,” which it had no authority to make, shouldn’t get any judicial deference. But the Tenth Circuit should reverse the district court, on the ground that Arizona isn’t entitled to the relief it seeks under any standard of review. Federal law doesn’t require the EAC to amend the federal form, because the states’ requirements aren’t “necessary” to show that registrants are qualified to vote.

In other words, Arizona and Kansas are right that the EAC lacked authority to make the decision it purported to make. But they’re wrong to argue that the EAC – with or without a quorum of commissioners – was obliged to add the proof-of-citizenship requirements they seek. Whatever one’s view on the merits, there’s no good reason for the Tenth Circuit to delay a ruling on that disputed question.

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“Bloomberg Law: Suit Over Voter ID Law Expedited (Audio)”

Podcast:

Professor Daniel Tokaji, an elections law expert at the University of Ohio Moritz College of Law, discusses a lawsuit filed by Kansas and Arizona seeking to force federal election officials to impose proof-of-citizenship requirements on national voter registration forms. He speaks with June Grasso and Mark Mills on Bloomberg Radio’s “Bloomberg Law.”

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“Election Panel Enacts Policies by Not Acting”

Nick Confessore in the NYT on FEC 3-3 splits:

Campaign lawyers of both parties say the deadlocks have profoundly, if informally, affected the rules governing campaigns, particularly on questions involving whether political nonprofit groups must disclose their finances and the threshold for starting an investigation.

The splits are consistent enough in spelling out the likely direction of enforcement, they say, that they now advise clients that a 3-to-3 split comes close to official commission policy.

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“Fairfax County Electoral Board Refers Potential Voter Fraud Cases for Investigation”

Press release:

The Fairfax County Electoral Board has referred 17 individuals to the Fairfax County Commonwealth’s Attorney, the Office of the Attorney General of Virginia and the federal Department of Justice for investigation of possible voter fraud. The individuals appear to have voted in both Fairfax County and various localities in Maryland during the 2012 General Election, and in some cases, multiple federal elections over the last decade.

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10th Circuit May (or May Not) Side with States Over Federal Government in Voting Dispute Because the EAC Has No Commissioners [Updated]

According to an early AP report.

This would not be a surprising result and would save the 10th Circuit from having to deal with the difficult constitutional question of where Congress’s power to set the “manner” of Congressional elections ends and the states’ power to set voter “qualifications” begins.

UPDATE: The updated AP report suggests the opposite reading to what I mentioned above: that the failure of the EAC to have a commission means the federal government should win.  Here is the new lede: “A federal appeals panel in Denver on Monday suggested a partisan stalemate in Congress may mean Republicans in Kansas and Arizona will be unable to force federal election officials to impose proof-of-citizenship requirements on voter registration forms.”

I would have a hard time seeing the Supreme Court upholding a ruling that would prevent the states from enforcing voter qualifications (if this is indeed enforcing voter qualifications) because the EAC has no commissioners. A court could order the EAC’s staff to require the information on the form.

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7th Circuit Won’t Consider Lifting Stay of Wisconsin Voter ID Law Until After Sept. 12 Oral Argument

The Seventh Circuit’s order issued last Thursday:

The court will reserve decision on appellantʹs motion to stay the permanent injunction
until after oral argument on September 12, 2014. The court notes that Wisconsin is free to implement immediately the portions of the decisions by the Supreme Court of
Wisconsin concerning the provision of photo ID to persons who cannot afford a birth
certificate or other documents required by statute. See Milwaukee Branch of the NAACP v. Walker, 2014 WI 98, 2014 WL 3744073, at *14 (Wis. 2014).

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Now Available: Hasen, Legislation, Statutory Interpretation, and Election Law: Examples and Explanations

[Bumping to the top for the start of classes.]

[UPDATE: You can now order the book at Amazon, or electronically as a Kindle Book, or directly from the publisher.]

I am happy to annouHasen LSIEnce that you can now buy my new book, Legislation, Statutory Interpretation and Election Law: Examples and Explanations. The book is appropriate as a supplement or study aid (with mini-essay questions and answers) for courses in in Legislation, Leg/Reg, Statutory Interpretation, Election Law, Voting Rights, and Campaign Finance. It is also intended as a treatise for practitioners in the field and a resource for lawyers, professors and judges, summing up my basic approach to these subjects that I have been studying for many years.  I have prepared a Correlation Table which shows how the book works with 11 different Legislation and Election Law casebooks.  You can also review the Table of Contents and the Index.

 

 

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Collins & Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment

[This is the latest in a series of short reflections on new books in campaign finance which I am working my way through as I write my own manuscript on the subject.]

Professors Ron Collins and David Skover, two law professors with expertise on the First Amendment, have written When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. They wrote the book while the McCutcheon Supreme Court case was pending, and finished the final chapters within a few days after the decision in the case. The book describes the course of the McCutcheon litigation, and along the way weaves in a discussion of the First Amendment issues and Supreme Court cases concerning campaign finance law from before Buckley v. Valeo to the present.

The book is primarily useful as an introduction for undergraduates to the world of Supreme Court litigation and campaign finance. It includes interviews with Shaun McCutcheon and others, descriptions of the briefs and oral argument, as well as an analysis of the decision. The book does not take a strong side in how the litigation should come out, and presents both sides of the case. There is also a lot of description of litigation strategy and the players behind the scenes.

For those already familiar with the world of campaign financing, there is not much new ground. The primary benefit of this book comes through the interviews with the players, giving flavor to some of the behind the scenes maneuvering regarding legal representation in the case. It is worth reading to have a sense of how campaign finance cases get constructed and litigated through the court system.

One frustrating aspect of the book is its lack of footnotes. The authors often quote or describe someone’s argument, and there is a bibliography at the end of the book. But if you want to track down a particular quote or idea and match it to a specific source, you cannot do so just from the book itself.

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