“2 Sides Cite Discrimination as Battle on Texas Voting Law Heads to Court”

Manny Fernandez in the NYT:

The case has taken on a bitter political undertone, with Texas alleging that the Justice Department has gone after “only Southern, Republican-led states” and suggesting that the agency ignores the concerns of white Republican voters and favors minority Democratic voters. The allegations have outraged lawyers for the Justice Department and several minority groups, voters and Democratic lawmakers who are part of the agency’s lawsuit against Texas.


True The Vote Suffers Major Loss in #MSSEN Case

Lost in the beginning of the Labor Day weekend and the ruling against Sen. McDaniel’s election challenge against Thad Cochran was a 90-page ruling issued in True the Vote v. Hosemann. TTV lost just about every issue it raised, although the trial court rejected the MS Republican Party’s request for sanctions.

Here is the conclusion of the court’s opinion:

For a variety of reasons, the Court concludes that Plaintiffs’ NVRA claims fail as a matter of law. First, nearly all of Plaintiffs’ requests on which they base their NVRA claims did not meet the notice and cure requirements of 42 U.S.C. § 1973gg-9(b). Second, Plaintiffs are not entitled to any of the Requested Documents they seek in this case under the NVRA. Neither poll books nor absentee ballot applications and envelopes fall within the NVRA Public Disclosure Provision. Mississippi’s Voter Roll does fall within that provision, but Plaintiffs already have a copy of the Voter Roll and Defendant Hosemann has conceded that it is disclosable under the NVRA Public Disclosure Provision. Moreover, Plaintiffs failed to properly request Federal Post Card Applications. Third, even if the NVRA required disclosure of the Requested Documents, the NVRA would not require Defendants to supply Plaintiffs with unredacted records disclosing birthdates under the facts of this case. For all these reasons, summary judgment in favor of Defendants is appropriate on Plaintiffs’ NVRA claims.

The Court recognizes that, in many respects, this is a case of first impression. Future cases are likely to arise where litigants dispute the contours of the NVRA Public Disclosure Provision. To ameliorate confusion among the requesters of NVRA documents and election officials at State and County levels who maintain NVRA records, as well as to avoid potentially conflicting rulings by different courts, the Court urges Congress to clarify the scope of the NVRA Public Disclosure Provision in light of other longstanding laws and the important competing interests of electoral transparency and voter registrants’ privacy.


“Ohio Libertarian Brief Reveals Corrupt Process in Removal of Candidates”

Ballot Access News on a controversy involving Professor Brad Smith (who served as the “hearing officer) referred to below:

On August 31, the Ohio Libertarian Party filed this brief in Libertarian Party of Ohio v Husted, southern district, 2:13cv-953. It summarizes the most significant findings from the party’s discovery conducted over the last month, discovery which reveals that the hearing officer who removed the party’s gubernatorial candidate from the party’s primary ballot had originally ruled in favor of keeping the candidate on the primary ballot.

The brief also shows that the hearing officer was simultaneously acting as an attorney for the Ohio Attorney General. It also reveals that the man who paid the attorney for the individual who challenged the party’s primary petition is a civil servant for the state. His annual salary is $70,000 and he has no other significant income. Yet, he paid over $100,000 to the attorneys for the challenger. Even if you don’t normally read legal briefs, consider reading this one; it is only 19 pages.


AALS Election Law Section Call for Papers

[Bumped to the top with deadline approaching.]

Via Josh Douglas:


Dear Election Law Colleagues,

The brand-new AALS Section on Election Law is issuing a Call for Papers to select two panelists for its inaugural program at the 2015 AALS Annual Meeting in Washington, DC.  The Section’s program will be on Sunday, January 4, 2015, from 2:00-3:45.  The title of the program is “The Voting Rights Act at 50.”  The two panelists selected from the Call for Papers will join an all-star cast including Pam Karlan, Chris Elmendorf, and Kareem Crayton, to discuss the topic.
Selected papers will be published in the Election Law Journal.  The deadline to submit is Friday, September 5. Finished papers or substantially completed drafts are preferred, although you may submit an abstract so long as you will be able to complete the paper in time for the AALS Annual Meeting in January.
To submit, or if you have any questions, please email Josh Douglas at joshuadouglas@uky.edu.
Here is the full program description:

On August 6, 1965, President Lyndon Johnson signed the Voting Rights Act into law.  During the signing ceremony, President Johnson referred to the Act as “one of the most monumental laws in the entire history of American freedom.”  Over the past fifty years, the Supreme Court has issued numerous decisions on various aspects of the Voting Rights Act, Congress has amended it several times, and it remains an important component of public debate.  This panel – the first programming for the new AALS Section on Election Law – will explore the many facets of that debate.  The panel will analyze the current issues regarding voting rights, from the Supreme Court’s recent invalidation of the Section 4 coverage formula in its Shelby County decision – essentially rendering Section 5 inoperable – to Congress’s consideration of a Voting Rights Act Amendment, to the report of the bipartisan Presidential Commission on Election Administration.  Part of this inquiry will include a discussion of whether we have reached the ideals President Johnson aspired to 50 years ago when he signed this Act, and where we should go from here in protecting and effectuating the right to vote.  The papers from this program will appear in the Election Law Journal.


“Ada County wrongly strips more than 750 voter registrations”

Late last week, Rick linked to a story about potential double voters in Maryland and Virginia.  Two groups (Election Integrity Maryland and the Virginia Voters Alliance) claimed to have discovered “tens of thousands” of electors on the rolls in both states, and hundreds of double voters.  Those lists were apparently compiled by “comparing 3.4 million current voter records in Maryland and 5.5 million in Virginia” by name and date of birth.  Elections officials in Fairfax County followed up with a tighter scan, looking for matching SSN digits as well … and found 17 potential double voters.  (Some of the 17 are likely double voters.  Some are likely the product of clerical recordkeeping errors.)

I’m all for the Fairfax follow-up.  But I worry about the less careful trumpeting of the “tens of thousands” of duplicates, based on a comparison of name and birthdate alone.  As Michael McDonald and I have shown, when you compare millions of records with millions of other records, statistics demonstrates that you’re going to unintentionally sweep up different people with the same name and birthdate.  Different people.  Not duplicates.  That’s just how the math works.

This enthusiasm without precision can lead to real trouble.  On the same day that Rick posted his original story, Ada County, Idaho, admitted that it had wrongfully purged 750 registrations — real, eligible voters, and more than the margin of victory in several of Ada’s primary elections in May.  The problem?  It purged based on name and birthdate matches from an interstate comparison of millions of records.  Ada’s David Miller was purged because some other David Miller had later registered in Arizona.

Cleaning up the rolls is a good thing (and upgrading the voter registration system to follow individuals as they move, facilitating cleaner rolls at lower cost, is even better).  But doing it right takes care.  Too much screaming in too much of a hurry just leads to avoidable mistakes.


The Presidential Commission on Election Administration — A New Model for Reform

I was lucky enough to be at the excellent APSA panel Rick Hasen organized on the President’s Commission on Election Administration (and unlucky enough to be staying at the fire-plagued Marriot). I though I’d say a few words about the former. For anyone interested, as am I, in election reform as a field of study, the Commission is especially interesting. Its structure and recommendations prompt at least two questions: Is this the future of election reform, and should we welcome it?

Reform is always hard. Election reform is even harder, on average. There are two unusual obstacles that are always at play for election reform. To begin, you don’t just have to get by the legislators beholden to interest groups; you have to get by the legislators’ own interests. The foxes are guarding this particular henhouse. That means that those who know the most about reform and care the most about it are often the legislators who oppose it.  Second, election reform is always second-order reform because it focuses on process rather than substance. I firmly believe that process shapes substance, but election reform is still one step removed from bread-and-butter issues like healthcare and jobs. That makes organizing harder.

In the face of these political tides running against reform, note how differently the President’s Commission looks than most reform commissions of the past.

First, while it’s bipartisan, it’s not you father’s bipartisan commission. Usually bipartisan commissions are headlined by high-profile former elected officials – the big names at the top of the political parties. This one is led by two lawyers with deep experience in the field and deep respect for one another. They aren’t above the fray, but – like all lawyers — they are trained to be in the fray without becoming enemies. As a result, they don’t mistake a political fight for a real one. Otherwise, the Commission is made up of election administrators and corporate CEO’s. They aren’t so much bipartisan or even nonpartisan as a-partisan.

Second, the commission is premised on a model that assumes that the levers of change are bureaucrats. Most election reform is aimed at getting attention of legislators (and usually federal ones at that). This report focuses almost entirely on election administrators. To be sure, some of its recommendations will require the participation of state legislators, but even those reforms are the type that election administrators would be requesting in the first place. The focus on election administrators is particularly intriguing. We often act as if election administrators are the objects of reform rather than the catalysts – as if change can only come if there is pressure from without, with outside groups or legislators making election administrators do the right thing. This report is largely premised on the idea that change can come from within, from those who work every day inside the system.

Third, note how the commission hopes to influence those bureaucrats. The focus here isn’t on grand bargains, but technocratic solutions. Moreover, it relies on soft law not hard law – on the effects best practices and base-lining have on professionals rather than on top-down legal mandates. And as I’ve often written, best practices and base lining turn out to be an excellent strategies for influencing professional peer groups.

Fourth, the Commission doesn’t rely on professional peer pressure alone to drive reform. It relies on dollars and cents. Sometimes I despair that reform wouldn’t happen even if Almighty God came down from on high and ordered it. But these days I have some faith in the Almighty Dollar. And the Commissions’ recommendations are built around the Almighty Dollar. The online registration proposal is a big cost saver, for instance. Pushing the feds to take the lead on certifying new machines will save local jurisdictions time and money as well. And the “tool kit” the Commission provides for election administrators are something most election administrators couldn’t afford to create for themselves and designed to help them spread their limited resources as far as possible. Election administrators are strapped for cash, especially as their HAVA money has basically run out. They are desperate for tools like these. This is thus a classic solution to problem of decentralization, where no individual jurisdiction can afford to create these tools but every jurisdiction needs them. The tool kit, in particular, follows the Field of Dreams model for reform: If you build it, they will come. You can get better administered elections just by giving states and localities better tools to administer them.

Finally, the commission isn’t announcing the need for ambitious, earth-shaking reform, but fixing what’s obviously broken. It’s improving the status quo without disturbing it. Deeply pragmatic and clear-eyed about what’s possible, the report is not the stuff of which many reformers’’ dreams are made.

Given that the Commission is not the stuff of which many reformers’ dreams are made, how should we think about it? While I don’t think that this model is going to displace the more traditional model – bipartisan commissions pursuing ambitious aims and offering grand bargains negotiated by party leaders – I do think the Commission is going to be part of a growing trend in election reform. I also think we should welcome it as a supplement to more traditional reform commissions. The Commission was pragmatic, problem-centered, and focused on modest ideas rather than grand bargains. The success of its recommendations will depend on bureaucratic pride rather than political coalitions, best practices rather than top-down legislation, soft law not hard law. And I think that’s a good thing. I recognize that some think that the Commission wasn’t ambitious enough, but I think the Commission was quite ambitious because it set about to achieve reform rather than just talk about it. That kind of approach may not make headlines, but it is likely to make headway.



A little too much excitement at APSA this year.  Those of us in the central tower of the Marriott Wardman Park hotel were evacuated from the hotel at 1 am thanks to series of suspicious fires set in the stairwell at the hotel. As I was leaving my room there was smoke coming in the hallway.

We were kept outside until after 3 am, when they moved us into the lobby. Some slept on the floor. Eventually they gathered us in an overcrowded ballroom until they swept the hotel thoroughly looking for possible arsonists  We were allowed to return to our rooms at about 8 am.

The DC Fire Department and DC Police Department did an excellent job keeping us safe. Fortunately no one was hurt.  I was much less impressed with the management of the Marriott.  The evacuation was difficult. We had to evacuate in part through areas with no lighting.  There was virtually no communication from the hotel’s management for hours as we were kept outside.  Then we were given contradictory information. They were slow to react and did not seem to have a good disaster planning in place. Unfortunately, having attended too many APSA and AALS meetings at the hotel, this met my expectations of this hotel. Next time I’ll stay at the excellent Omni Shoreham.

It was certainly inconvenient to have stayed up all night and then had to moderate the Bauer-Ginsberg election reform panel a few hours later. But in the scheme of life it could have been a heck of a lot worse.

UPDATE: More from Julia Azari. And Julie adds the important point that the cleaning and service staff were excellent. The problem was one of planning and management.


“In state Capitol, intransigence gives way to bipartisan deal-making”

Important report from Chris Megerian in the LAT. 

What’s really interesting is that Chris does not mention either the top-two primary or citizen redistricting as connected to this new (perhaps temporary) period of bipartisan cooperation.  I’ve been skeptical of claims that either of these measures is producing moderation. But I wonder if this is some evidence of the success of these measures.  I await more studies of the California case.


UN Committee on Racial Discrimination in US Issues Recommendations on Voting Rights


Right to vote
11. The Committee is concerned at the obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote, due inter alia to restrictive voter identification laws, district gerrymandering, and state-level felon disenfranchisement laws. It is also concerned at the Supreme Court decision in Shelby County v. Holder, which struck down Section 4(b) of the Voting Rights Act and made Section 5 inoperable, thus invalidating the procedural safeguards to prevent the implementation of voting regulations that may have discriminatory effect. It expresses further concern at the continued denial of the right of residents of the District of Colombia (D.C.), half of whom are African Americans, to vote for and elect representatives to the United States Senate and voting-members to the House of Representatives (arts. 2 and 5(c)).
The Committee recommends that the State party take effective measures to:
(a) Enforce federal voting rights law throughout the State party in ways that encourage voter participation, and adopt federal legislation to prevent the
implementation of voting regulations which have discriminatory impact in light of the
Shelby County v. Holder decision;
(b) Ensure that indigenous peoples can effectively exercise their right to vote and address their specific concerns;
(c) Ensure that all states reinstate voting rights to persons convicted of felony who have completed their sentences, provide inmates with information about
their voting restoration options, and review automatic denial of the right to vote to
imprisoned felons regardless of the nature of the offence; and
(d) Provide for the full voting rights of residents of Washington, D.C.


“Fairfax officials say some people may have crossed Va.-Md. line to vote twice in 2012″

WaPo: “Tens of thousands of voters were registered to cast ballots in both Virginia and Maryland during the 2012 presidential election — and more than 150 appear to have voted twice, an advocacy group claims…Some Democrats were more skeptical, saying the claims need to be checked carefully.”


“Protecting Political Participation Through the Voter Qualifications Clause of Article I”

Franita Tolson has posted this draft on SSRN (forthcoming Boston College Law Review).  Here is the abtract:

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.


“Overrides: The Super Study”

Victoria Nourse on Christiansen & Eskridge:

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters of those overrides. When the Supreme Court rejects the statutory interpretations of agencies, supported by the Solicitor General, it does so at its peril. This suggests that the common wisdom — that agencies often have a better handle than courts on Congress’s meaning because of their closer connections with Congress (through oversight, expertise about the statute, informal communications, etc.) — is true. It also suggests that broad congressional delegation to agencies — traditionally viewed with suspicion by lawyers — may come with a silver interpretive lining.

The author makes no attempt to survey the richness of this gargantuan study nor the extraordinary effort it must have taken. It should be of interest to readers of court–congress interaction, students of agency action, scholars of statutory interpretation, and the separation of powers. Her aim is not to repeat the study, or even to summarize it, but to provide a parsimonious and helpful lens through which we may understand its intellectual assumptions and accomplishments. In part I, the author addressees its methodological virtues and vices. In part II, she posits a fairly parsimonious model that helps to explain the rich Christiansen and Eskridge findings. In part III, the author provides a brief comment on the authors’ recommendations for future action.


In the Election Law Mailbag

Eric H. Kearney, Pavan V. Parkh and Bethany E. Sanders, Perfect is the Enemy of the Fair: An Analysis of Election Day Error in Ohio’s 2012 General Election Through a Discussion of the Materialaity Principle, Compliance Standards, and the Democracy Canon, 62 Cleveland State Law Review 279 (2014).

Donald Kochan, The Masks of Virtue: Theories of Aretaic Legislation in a Public Choice Perspective, 58 St. Louis University Law Journal 295 (2014).


“Color by Numbers: The New Misreading of the Voting Rights Act”

Justin Levitt has posted this draft on SSRN.  Here is the abstract:

The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and poised to once again take center stage at the Supreme Court this Term. The Court has agreed to hear a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the litigation posture of the case may not make it clear to the Court, Alabama is part of a disturbing pattern. States like Alabama have been applying not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act — substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands.

This short and timely Essay is the first to identify the ways in which multiple states in this redistricting cycle appear to have substituted this cartoon of the Voting Rights Act for the real thing. It identifies the racial essentialism at the heart of the demographic shorthand, and contrasts that retrograde approach with the tailored and nuanced law on the books. It then elaborates the constitutional danger of replacing the real statute with the imagined one, and urges courts, including the Supreme Court, to see the cartoon for what it is.

I can’t wait to read this!


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)


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.


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.


“TV Station Pulls Anti-Shaheen Ads Off Air”


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.


“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.