Call for Papers – Voting Rights Act Symposium

From the Cumberland Law Review:

The Cumberland Law Review is doggedly searching for articles, insights, and ideas that implicate a subject that we believe our journal is uniquely situated (and arguably obligated) to explore: a sort of retrospective of the Voting Rights Act of 1965. Our host city, Birmingham, Ala., is one of the more prominent characters in our national recollection of the Civil Rights era and the 20th century ills that necessitated legislation such as the VRA and the Civil Rights Act.

In light of the VRA’s 50th anniversary and recent SCOTUS decisions (from Shelby Co. to Ala. Legislative Black Caucus), we think it appropriate to devote enough space in one of our forthcoming editions to an articles symposium on point. As of now, though, the quantity and quality of articles we’ve received along this vein have been underwhelming, so we’re casting a wide net in soliciting contributions from such discerning and intelligent minds as yours.

If you have the time or interest in submitting or pitching articles, or just touching base with thoughts and suggestions re: other people to reach out to, please don’t hesitate to reach out to either me or our Articles Editor, Stewart Alvis. Thanks in advance! Enjoy your summers.

 

Yours truly,

Walker Mason Beauchamp

Editor-in-Chief, Cumberland Law Review

wbeaucha@samford.edu / 205-821-5800

 

Stewart J. Alvis

Acquisitions Editor, Cumberland Law Review

salvis@samford.edu

 

P.S.—Please feel free to reach out about pieces that are only tangentially related to the VRA, too! We have other pieces in the works that implicate Civil Rights, but not necessarily the VRA or election law. E.g., UNC’s Al Brophy is writing a short legal history for us on early 20th-century Southern jurisprudence, and we’ve uncovered some (hopefully) excerptable material from Judge Horton’s papers (of Scottsboro Boys fame), archived here at our campus library.

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Before the Supreme Court Term Ends, It Could Take Another Blockbuster Elections Case

Kobach v. EAC is getting close to the end of briefing and a decision on whether to take the case. [Update: The government’s brief in opposition is here.]   The case could be a doozy on the question of federal vs. state power in setting the rules for federal elections, and I think there’s a pretty good chance the Supreme Court agrees to hear it. Here was my coverage of the 10th Circuit’s ruling:

Breaking: 10th Circuit, in Major Voting Case, Rejects Kansas and Arizona Citizenship Proof Requirement

You can read the unanimous 10th Circuit opinion in Kobach v. U.S. EAC, reversing the lower court,at this link.  Kansas and Arizona tried to force the federal government to require those who register to vote using a simple federal form for voter registration include proof of citizenship if the voter is a KS or AZ resident. (Update: To be clear, this case concerns only whether AZ or KS have to accept federal form without additional proof of citizenship. For those who register with AZ or KS forms, the states can still demand proof of citizenship.)

The lower court sided with the states, but the federal government won with a reversal on appeal. The case could well be headed to the Supreme Court as a major dispute over federal versus state power in voting.

From the opinion’s conclusion:

Kobach’s and Bennett’s argument that the states’ Qualifications Clause powers trump Congress’ Elections Clause powers is foreclosed by precedent. In ITCA, the Court clearly held that Congress’ Elections Clause powers preempt state laws governing the “Times, Places and Manner” of federal elections, including voter registration laws. 133 S. Ct. at 2253. Citing the Federalist Papers, the Court noted that the Framers expressly rejected giving the states exclusive authority to regulate federal elections because “an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy.” Id.Only the dissenting opinion by Justice Thomas endorses the theory that Arizona and Kansas press before this court. Id. at 2266-69 (Thomas, J., dissenting). The dissent proves the point….

In sum, the EAC had valid authority under HAVA to subdelegate decisionmaking authority to its Executive Director relating to the contents of the Federal Form. Under the unique circumstances of this case (involving a quorum-less EAC), an appeal from the Executive Director’s decision to deny the states’ requests to modify the contents of the Federal Form was impracticable. Consequently, the Executive Director’s decision constitutes final agency action. And that action—which fell within the bounds of the subdelegation that the EAC issued when it had a quorum—was procedurally valid.

Contrary to Kobach’s and Bennett’s claims, the NVRA does not impose a ministerial duty on the EAC to approve state requests to change the Federal Form. The Executive Director’s denial of the states’ requests survives our APA review, and the states’ constitutional claims are unavailing. We therefore REVERSE the ruling of the district court and REMAND the case to the district court with instructions to vacate its order instructing the EAC to modify the Federal Form.

 

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Common Cause “Gerrymander Standard” Winners Will Be Announced Next Week

Last year Common Cause launched the inaugural Democracy Prize Writing Competition to identify the best “gerrymander standard.”  We had the honor of serving as co-chairs of the judging panel.  Our goal was to encourage fresh thinking about a standard for partisan gerrymandering that can be used to challenge some of the most egregious examples of drawing districts for political advantage. With the Supreme Court poised to issue a decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, identifying a standard that empowers citizens to challenge unfair maps is more important than ever.

Scholars and students from around the country submitted papers putting forth a wide variety of ideas. Our distinguished panel of judges identified three winning entries.  Each of these papers represents especially thought-provoking and creative scholarship, making important contributions to the study of elections and democracy. On Monday, Tuesday, and Wednesday of next week, we’ll announce each of the winning entries in daily blog posts summarizing their ideas and linking to the papers. All three of the winning papers will be published in Election Law Journal this fall.

We’d like to thank our fellow judges for their hard work and thoughtful analysis of the submissions. Our judging panel included Wayne State University Law School Dean Jocelyn Benson, Duke Law Professor and Center on Law, Race and Politics Director Guy-Uriel Charles, Office of Congressional Ethics Board Member Alison Hayward, and Pepperdine School of Law Professor Derek Muller.

Thanks also to all of those who submitted papers. Many of those we didn’t select represent exciting contributions to the field, which we hope to see in print soon.

Norm Ornstein & Dan Tokaji

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Clinton Lawyer Marc Elias Among Those Behind Major New Voting Rights Lawsuit in Wisconsin

Here is how the complaint for the lawsuit filed in federal court in Wisconsin begins:

This lawsuit concerns the most fundamental of rights guaranteed citizens in our representative democracy—the right to vote. That right has been under attack in Wisconsin since Republicans gained control of the governor’s office and both houses of the State Legislature in the 2010 election. Indeed, since 2011, the State of Wisconsin has twice reduced in-person absentee (“early”) voting, introduced restrictions on voter registration, changed its residency requirements, enacted a law that encourages invasive poll monitoring, eliminated straight-ticket voting, eliminated for most (but not all) citizens the option to obtain an absentee ballot by fax or email, and imposed a voter identification (“voter ID”) requirement. These measures were intended to burden, abridge, and deny, and have had and will have the effect of burdening, abridging, and denying, the voting rights of Wisconsinites generally and of African-American, Latino, young, and/or Democratic voters in Wisconsin in particular.

As set forth below, these and the other provisions challenged in this Complaint (the “challenged provisions”) violate Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, and/or the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and/or the Twenty-Sixth Amendment to the United States Constitution. The challenged provisions should therefore be declared illegal and enjoined.

A few thoughts:

1. As with the new Ohio litigation, the case is not officially being brought by the Clinton campaign but is being backed by the Clinton’s general counsel, Marc Elias. It is hard to believe such a suit would not be brought with Marc’s involvement without political vetting by the Clinton campaign.

2. These lawsuits serve a political purpose even if they are not successful legally. They keep the issue of voter suppression in the minds of Democratic constituencies and help galvanize Democratic voters. It puts Democrats on the offensive rather than the defensive.

3. As to the chances of success, if this case gets before the same federal judge which initially struck down Wisconsin’s voter id law, this case could well have a good chance of success. [Update: The case was filed in Western district, and Judge Adelman (as well as Judge Randa, who would not be a good draw for Democrats) is in the Eastern district.] But its fate is much less certain before the 7th Circuit (which reversed that district court opinion) or the Supreme Court. These cases are hard to win, especially if they are premised on a “retrogression” theory.  But we’ll see.  It is really too early for me to to say.

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AALS Election Law Call for Papers

From Josh Douglas:

The AALS Section on Election Law is is seeking abstracts or drafts of papers to be presented at the 2016 Annual Meeting in New York, NY.  This year’s program is entitled:  Election Law at the Local Level.

Here the program description:

Although national election controversies grab the headlines, decisions made at the local level impact our elections in important ways – and even contribute to those national issues.  Local and state actors play a front-line role in administering elections for all levels of government.  This panel will focus on how local jurisdictions handle important issues such as ballot access, voting rights, early voting, Election Day processes, and post-election disputes.  Panelists will explain how these issues relate to the smooth running of the election, and how they might impact the 2016 presidential election season.  One panelist will be chosen from a Call for Papers.

Confirmed panelists include Jocelyn Benson (Wayne State), Rich Ford (Stanford), David Schleicher (Yale), and Trey Greyson (former Kentucky Secretary of State).  We are looking for one additional panelist to join this distinguished group.

The program will take place on Friday, January 8, 2016 from 10:30 am-12:15 pm.

Please submit an abstract or draft paper to Section Chair Josh Douglas at joshuadouglas@uky.edu.  The deadline is August 15, 2015.

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Misleading 538 Headline on the Effect of Evenwel on Congressional Reapportionment

538 has a post, The Supreme Court Could Give The GOP Another 8 Seats In Congress, by the very smart David Wassernman and Harry Enten, but its headline is quite misleading.

As I’ve explained at Slateat stake in the Evenwel case is whether state legislative districts might have to be redrawn to take into account total numbers of (eligible or registered) voters, rather than total population. This could hurt Latino representation (and have other effects) within state legislatures.

It is possible, but not necessarily certain, that such a ruling could be extended to districting of congressional districts within states.

However, as I explained in a post, No, The Evenwel Case Does Not Put the Apportionment of Congressional Districts to the States in Play, it is extremely unlikely such a rule would apply to the apportionment of congressional districts among states.  That’s because of how the Constitution sets forth the means of apportionment.

Yet the headline at 538 saying 8 states could shift to GOP is premised on the idea that the Supreme Court would put this up for grabs.  If you read the article, however, it admits it is very unlikely to happen before going through an extensive analysis:

A move toward counting only eligible voters, as logistically difficult as it may be, would drastically shift political power away from the urban environs with minorities and noncitizens, and toward whiter areas with larger native-born populations. That’s bad news for Democrats: Of the 50 congressional districts with the lowest shares of eligible voters, 41 are occupied by Democrats (nearly all are Latino-majority seats). Meanwhile, of the 50 districts with the highest shares of eligible voters, 38 are represented by the GOP.

Most legal scholars are skeptical that this case will change the way House seats and Electoral College votes are apportioned to states every 10 years; after all, the Constitution pretty clearly references the role of the Census’s population count in this process.

But let’s lay out a hypothetical for a minute. What would happen if counts ofvoters rather than people were used for both reapportionment (allotting seats among the states) and redistricting (drawing boundaries within states)? States with large Latino populations would be penalized. Based on the 2013 ACS data, California would lose six House seats, Texas would lose four and New York one, while a smattering of other states would each gain one seat.

Very, very misleading.

UPDATE: To its credit, 538 has changed the headline to: The Supreme Court Could Transfer A Lot Of Political Power Away From Cities and added this update:

UPDATE (May 29, 7:53 p.m.): Rick Hasen, an election law professor at the University of California, Irvine, pointed out that the original headline on this article gave the impression this case was likely to change the apportionment of House seats and Electoral College votes. As the story points out, such a change is unlikely. We’ve changed the headline to avoid any confusion.

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“Overcoming Voting Obstacles The Use of Convenience Voting by Voters With Disabilities”

Peter Miller and Sierra Powell have written this article for American Politics Research.  Here is the abstract:

We examine the extent to which Americans with disabilities vote at the polls or take advantage of convenience voting reforms relative to voters without disabilities. The Help America Vote Act (2002) sought, in part, to increase polling place accessibility for the voters with disabilities, with a particular focus on those with vision disabilities. We construct two operationalizations of disability from the November Voting and Registration Supplement of the Current Population Survey over eight elections. A multinomial logistic model shows voters with a disability are significantly less likely to vote but are more likely to vote by mail ballot. Early in-person voting reforms have a marginal effect on the voting behavior of voters with disabilities. A matching model reveals adopting no-excuse absentee voting, permanent absentee voting, or both reforms increases the likelihood of voters with a disability casting a mail ballot.

This is an important contribution by two UCI grad students whose doctoral committees I sat on.  Highly recommended!

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Derek Muller with the Conservative Case Against Evenwel

Must-read:

It might be that population-based redistricting in Texas, and for that matter in most states, is unwise for this reason. The argument that these practices are quite administrable and wholly consistent with decades of practice, while true, may not end up being the decisive one. The Court has, for once, largely left this matter to the political process to decide. But the plaintiffs have lost this political battle in Texas, so they now seek to read a newer, narrow theory of political representation into the Constitution, a stage beyond what even the Warren Court felt comfortable doing—creating an ever-more uniform political theory derived under a construction of the words “the equal protection of the laws.”

Texas, along with the other 49 states, has remained free to adopt one of several theories of representative government within the confines of Reynolds v. Sims. But Evenwel threatens not only to deprive the states of their authority to do so, but also to impose a standard that is squarely at odds with the structural design of the Constitution: representative government includes representation of all persons, not simply voters.

And one can hope that the Court will leave the development of additional political theory to the political branches.

I raised similar concerns about Evenwel, from a different political perspective, over at Slate.

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“Elections and campaigns are not the same thing”

George Will:

A simple apology would suffice. Instead, campaign finance reformers, horrified by the predictable results of their handiwork, aspire to yet more regulatory wrinkles to limit political speech. These, too, would have consequences unintended and undesired by reformers, “requiring” a new round of reforms. But the Constitution, properly construed, requires a wall of separation between campaign and state.

Reformers detest the emergence of super PACs that fund advocacy supportive of, but not “coordinated” with, particular candidates. These vast reservoirs of money are, however, inevitable, reasonable and, on balance, wholesome responses to the reformers’ attempts to combat what they call “too much money” in politics. Reformers have limited the amounts that can be contributed to parties and to candidates’ campaigns, thereby limiting the quantity of political advocacy — a.k.a. speech.

 

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“Why States’ Campaign Donation Limits Could Be in Jeopardy”

Alan Greenblatt writes for Governing on the 9th Circuit’s recent Lair v. Bullock case, which I blogged about earlier this week.

I’m quite skeptical that this case marks much of a change of any standard for contribution limits. It is a way to put issues off for another day. This is especially true given other recent 9th Circuit cases, including this one from Hawaii.

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“Polling’s Secrecy Problem”

Nate Cohn:

The debunking of a recent academic paper on changing views about same-sex marriage has raised concerns about whether other political science research is being properly vetted and verified. But the scandal may actually point to vulnerabilities in a different field: public polls.

After all, the graduate student who wrote the paper on same-sex marriage, Michael LaCour, was called to account. Basic academic standards for transparency required him to disclose the information that ultimately empowered other researchers to cast doubt on his findings.

But even before the LaCour case, it was becoming obvious that a different group of public opinion researchers — public pollsters — adhere to much lower levels of transparency than academic social science does. Much of the polling world remains shielded from the kind of scrutiny that is necessary to identify and deter questionable practices.

 

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“House, Obama Administration Clash Over Health Care Law”

Mike Sacks for the NLJ:

U.S. District Judge Rosemary Collyer in Washington cast a skeptical eye Thursday over the Justice Department’s effort to keep the House of Representatives’ health care suit out of court.

The House filed suit in November against the U.S. Department of Health and Human Services, alleging the administration illegally delayed the Affordable Care Act’s mandate that certain employers provide health insurance to their workers and unconstitutionally funded individual subsidies with money Congress refused to appropriate.

When DOJ’s Joel McElvain urged Collyer to dismiss the case on the basis that the House had no standing in an “abstract dispute” over legislative power, Collyer shot back.

“You don’t really think that,” the judge said, setting the tone for the rest of McElvain’s argument on behalf of the Department of Health and Human Services.

The case, as Collyer saw it, was over “how close have the secretaries [of HHS and Department of Treasury] come to the bone of the House’s authority” to appropriate funds under Article I, Section 9 of the Constitution.

 

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“Challenger to Va. House speaker sues state over absentee ballot issue”

WaPo:

At issue is a May 13 decision by the Board of Elections to let voters sign absentee-ballot request forms electronically instead of printing out the forms, signing them with a pen and e-mailing back a scanned attachment or mailing the forms through the post office. The all-digital process lets voters skip the step of printing out the forms.

 It also makes it easier for campaigns, parties and groups to submit requests on voters’ behalf — as Howell’s campaign does through his Web site.

Stimpson said the board acted beyond its authority and circumvented the legislature to make a sweeping change in the rules at Howell’s request. Howell’s spokesman called the claim ­“ridiculous.”

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“Enough: Anti-corruption/pro-equality Dems must draw the line with Clinton (aka, Clinton has a Johnson problem)”

Lessig:

I’ve got a piece in The Atlantic today that’s been a bit prettified by the headline (”Could Hillary Clinton Be the Champion Campaign-Finance Reform Needs?”). That makes the essay sound more optimistic (about Clinton) than it is. Also left on the cutting room floor were the following paragraphs (the part in brackets precedes and then follows the omitted paragraphs).   Reading this all together I hope conveys my strong sense here: That pro-reform Dems need to draw a line. What we’ve seen so far is no where close to enough to overcome the grave doubts raised by this mess.

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Foster Friess Pledges to Spend for Santorum Again, This Time Secretly

Trip Gabriel for the NYT:

One supporter present was Foster Friess, a wealthy investor whose multimillion-dollar donations in 2012 helped Mr. Santorum remain in the race long after he might have quit.

Mr. Friess, in a black cowboy hat, said he would support Mr. Santorum again, but not through a “super PAC,” which reports donors.

“The money I give will be hard to track,” said Mr. Friess, adding that he had spent $26,000 for a private jet to the rally.

Nick Confessore on Twitter: “Consider: a donor says he wants to give money to elect a candidate but will give through groups that claim not to be electing candidates.”

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“Supreme Court Litmus Testing in the 2016 Election”

Linda Greenhouse NYT:

 

It’s somewhat delicious, in fact, to imagine the scene in the Senate Judiciary Committee if a Clinton Supreme Court nominee expresses — as the four dissenting justices did at the time — disagreement with Citizens United. Are Republican senators really going to go to the mat during the confirmation process in defense of a Supreme Court decision that most of their own constituents hate. ?

The effort will be — as it is already in some quarters of the right — to depict anyone who opposes Citizens United as an opponent of free speech. That’s a characterization easily deflected. The problem with Citizens United, it has always seemed to me, is not whether corporations have a right to spend money to express their political views. They do, and they did under decades-old Supreme Court precedent before Citizens United, although many of the decision’s critics don’t seem to realize that fact. The mantra of “money isn’t speech” is too simplistic a critique; speech without money is speech that no one is going to hear.

The problem is the legal reasoning the court employed in opening the floodgates to unlimited corporate spending. The only rationale the First Amendment permits for limiting political spending, the court said, is the prevention of corruption or the appearance of corruption. Fair enough, but then the Citizens United majority made its key move in defining corruption. Justice Anthony M. Kennedy’s majority opinion said “corruption” meant only “quid pro quo” corruption — extracting or giving a promise in exchange for a political expenditure. In a word, bribery.

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“Jury convicts ex-US Senate hopeful of violating election law”

AP:

A South Dakota jury on Wednesday convicted formerU.S. Senate candidate Annette Bosworth of election law violations.

The 43-year-old Sioux Falls physician had been charged with six counts each of perjury and filing false documents stemming from the mishandling of her candidate petitions. Jurors convicted her on all of those counts after deliberating for more than 3 hours.

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No, The Evenwel Case Does Not Put the Apportionment of Congressional Districts to the States in Play

Richard Winger helpfully points out some confusion about the effects of Evenwel on reapportionment. So let’s make this clear.

1. At issue in Evenwel, is whether drawing district for state legislatures and other state purposes must be done on total (eligible or registered) voter basis, as opposed to a choice between that, total population, or perhaps other measures, to comply with the U.S. Constitution’s 14th Amendment equal protection clause.

2. The source of the one person, one vote rule in congressional elections within is Article 1, not the Equal Protection Clause. (See Wesberry v. Sanders.) The rules are somewhat different. OPOV for congressional districts must be exactly equal, but there is some room for minor deviations in state (and local) redistricting. Nonetheless, if the Court in Evenwel requires use of voters in the denominator for OPOV purposes in state elections, its logic would likely carry over to the OPOV rule for congressional elections.

3. Nonetheless, the number of congressional districts across states (commonly called apportionment) is textually committed in the Fourteenth Amendment to one based on total numbers of people. Section 2 reads (with my emphasis):

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

UPDATE: Marty Lederman reminds me of language in Wesberry itself, noting “The history of the Constitution, particularly that part of it relating to the adoption of Art. I, § 2, reveals that those who framed the Constitution meant that, no matter what the mechanics of an election, whether statewide or by districts, it was population which was to be the basis of the House of Representatives.” He suggests this language as well as originalist material throws doubt on my point # 2 (that the logic of a decision in favor of the voter denominator in Evenwel logically could apply to congressional districts as well).  It is a fair point, and I had forgotten about this language.  Nonetheless, if indeed (as I think remains unlikely) the Supreme Court holds in Evenwel that one person, one principles in the equal protection clause require the use of total voters otherwise some voters’ votes are unconstitutionally diluted, it is hard to imagine the court not applying the same logic and denominator to congressional elections.  (This is one of the reasons why, as Marty has suggested, the court is unlikely to require the use of the voters denominator on the state level in Evenwel.)

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