“Turnout, Tenuousness, and Getting Results in Section 2 Vote Denial Claims”

Pam Karlan has posted this draft on SSRN (forthcoming, Ohio St. L.J.). Here is the abstract:

In recent years, courts have been called on to adjudicate a new series of cases involving vote denial — practices that prevent individuals from casting a ballot or having that ballot counted. The upsurge in cases claiming vote denial (as opposed to vote dilution) is the product of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and to cut back on expansions previously implemented by Democrats.

How should courts analyze these claims under the Voting Rights Act? Recently, the courts have appeals have begun to coalesce on a two-part framework: First, the challenged practice “must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Second, “that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” But they continue to recognize that their inquiry must be shaped by the statute’s totality of the circumstances requirement and show be informed by a series of factors laid out by the Supreme Court and Congress in the context of vote dilution claims.

This article explores how those factors should work in vote denial cases. First, neither an actual nor a predicted decrease in minority turnout should serve as a necessary precondition to a section 2 results claim alleging vote denial. There are theoretical, doctrinal, and practical reasons for treating election results as a relatively minor consideration with respect to the discriminatory burden prong of the emerging framework. If anything, data or predictions about turnout effects are more relevant to the question whether the challenged practice is tainted by an impermissible purpose than they are to determining the existence of a discriminatory burden.

Second, courts in section 2 vote-denial cases should be guided by the Voting Rights Act’s overall commitment to expanding the opportunity for minority citizens to participate in the political process. Particularly when confronted with a challenge involving a provision that reduces preexisting opportunities to vote, courts should not hesitate to find that the new provision constitutes a “burden” under the emerging framework. Giving evidentiary weight to the existence of a change does not impermissibly import the retrogression standard of section 5 into section 2.

Third, whether the policy underlying the challenged practice is “tenuous” (the final Senate Report factor) of necessity plays a more central role in vote denial cases than it has in vote dilution cases. This does not transform the results test into a purpose inquiry; rather, it is a question of the fit between the policy and the burden. The strength of the government’s proffered policy justifications goes to the heart of whether the practice imposes a burden and whether that burden is discriminatory. More particularly, in vote denial cases, partisan motivations, regardless of whether they rise to the level of an independent constitutional violation or suffice to prove a racially discriminatory purpose, are tenuous as a matter of law and should impose a burden of justification on a defendant jurisdiction.

This goes to the top of the reading pile.


“Broward election supervisor referred to state attorney for publishing results early”

Tampa Bay Times:

Secretary of State Ken Detzner has referred Broward County Supervisor of Elections Brenda Snipes to the state attorney and sheriff after election results in the county were released online about 20 minutes prior to the primary election ending Tuesday night….Asked if Snipes could be fined by following action by the state attorney, Detzner said, “It’s a little more serious than that.”

Threatening jail time? Really? For something likely done by a staffer inadvertently?


“The Real Clinton Foundation Revelation”

Richard Painter NYT oped:

This kind of access is the most corrupting brand of favoritism and pervades the entire government. Under both Republican and Democratic presidents, top ambassadorial posts routinely go to campaign contributors. Yet more campaign contributors hound these and other State Department employees for introductions abroad, preferred access and advancement of trade and other policy agendas. More often than not the State Department does their bidding.

Meanwhile, those of us who know and are frustrated about the way our government works breathe a collective yawn at the unsurprising news that the Clinton Foundation or some other nonprofit also gets what appears to be favorable treatment by a government agency. Lots of people and groups get favorable treatment, and most of these are interested in making money rather than giving it away.

The problem is that it does not matter that no laws were broken, or that the Clinton Foundation is principally about doing good deeds. It does not matter that favoritism is inescapable in the federal government and that the Clinton Foundation stories are really nothing new. The appearances surrounding the foundation are problematic, and it is and will be an albatross around Mrs. Clinton’s neck.


“USA TODAY analysis: Rich Democrats surge past GOP in political giving”

USA Today:

Many of the wealthy Republican contributors who raced to write seven-figure checks to influence the nomination battle have shut their wallets on GOP nominee Donald Trump, directing their money instead to downballot contests or opting to sit out the campaign, a USA TODAY analysis of new campaign filings shows.

Some of the nation’s richest Democrats, meanwhile, have escalated their giving to boost Hillary Clinton’s presidential hopes and to seize on the prospect of a Democratic takeover in the Senate, according to the review of contributions by the election’s most generous donors.

Wealthy Democrats and liberal organizations have plowed $134 million into super PACs since early April as Clinton pulled away from rival Bernie Sanders and Trump won a string of primaries on his way to effectively clinching the GOP nomination in early May. By comparison, the Republican Party’s biggest donors contributed $51 million to super PACs during the same period.


Ohio “Golden Week” Early Voting Case Heading to #SCOTUS

The 6th Circuit panel that reversed a trial court order restoring Ohio’s “Golden Week” (when a voter could register to vote and early vote in the same trip) has on a 2-1 vote denied a requested stay of its order. The court offered no reasoning.

Before the stay issued, the plaintiffs’ attorney Marc Elias promised an emergency motion at the Supreme Court should the stay be denied.

So stay tuned. (I rate the chances the Court would grant such a stay, thereby restoring Golden Week for this election, to be quite small.)


Buried Deep in the Republican Party Platform, a Slam on Latino Voting Power That’s At Odds with the Constitution

Going mostly (but not completely) unnoticed is the following statement in the Republican Party platform: “In order to preserve the principle of one person, one vote, we urge our elected representatives to ensure that citizenship, rather than mere residency, be made the basis for the apportionment of representatives among the states.”

Currently, congressional districts are apportioned based upon total population. If Republicans were able to actually follow through on this, it would mean that areas with large Latino populations, where there are more non-citizens, would lose representation compared to whiter, more Republican districts. It would shift more power in Congress to the Republicans.

But there’s a problem with this aspirational plan, something called the Fourteenth Amendment to the U.S. Constitution, which provides in Section 2 that “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.” Last time I checked, non-citizens were still “persons.” So maybe this part of the platform is an oblique call for a constitutional amendment?Screen Shot 2016-08-30 at 3.05.01 PM

Note this issue is a bit different from the issue in the Supreme Court’s recent Evenwel case, in which conservatives from Texas argued that the state had to draw state legislative districts with equal numbers of voters, not total population. That was an argument made under the equal protection clause, which applies to drawing of districts within states, not apportionment among states for Congress. The Supreme Court rejected that argument, but left open the possibility that states could draw legislative districts within states using total voters as the denominator. If a state, like Texas, tries to do that after the 2020 census, I expect there will be a lawsuit claiming that the state must use total population rather than total voters. Total voters is not the same as citizens (think citizen children, felons), but total voters, like total citizens, would create more white Republican districts.

In any case, the proposal in the Republican party platform is not going to be enacted soon, but it does provide fodder for Democrats to argue that the Republican platform is against Latino voting power.

UPDATE: An astute reader points out that because the Republican party proposal involves apportionment for Congress among the states, and not allocation of members of congress or legislative seats within states, this rule would hurt states with large populations.  And it is an empirical question whether those states are states that are Democratic or Republican.

This is a good point.  Here’s a chart of citizenship and non-citizen populations within states. The states with the largest non-citizen populations are: California, Arizona, Texas, New Jersey and New York.  So this could be a wash in terms of the party representation within Congress. It would take more analysis.

But further, once a change was made to do this, I presume the push would be to allow (or require) states doing districting within states to use citizenship only as the basis. And that would lead to a diminution in minority voting power (and doing that may or may not be constitutional).


“The Court After Scalia: Standing at the Crossroads on Voting Rights”

SCOTUSBlog has a new symposium over the next few weeks on how the Court may change after Justice Scalia is (eventually) replaced on the Court. And I kick it off with a post on Scalia and voting rights. It begins:

When it comes to jurisprudence on voting rights, the Supreme Court stands at a crossroads. If the Court ends up with a new liberal majority, it could limit the ability of states to pass restrictive voting rules such as voter identification laws, boost minority voting power in legislative and congressional districts under the Voting Rights Act, and continue using the constitutional racial gerrymandering cause of action to protect minority opportunity districts.

A new conservative majority would be more likely, although not certain, to allow states greater leeway to pass laws which make it harder to register or vote, limit minority voting power in legislative and congressional districts under the Voting Rights Act (perhaps even holding Section 2 of the act, which gives minorities a greater share of political power, unconstitutional), and retool the constitutional racial gerrymandering cause of action to make it harder to draw minority opportunity districts.


“Some could have trouble getting ID near election”

Patrick Marley:

Three members of the state Elections Commission said they were worried people who wait to obtain IDs until close to the election won’t be able to get them in time to have their votes counted.

That’s because the state Division of Motor Vehicles typically provides IDs and voting credentials by mail, rather than in person. That raises the risk that those who visit a DMV center close to the election won’t get their voting credentials until too late.

“Everyone has a constitutional right to have their ballot counted,” said Mark Thomsen, chairman of the commission. “It’s up to us to do everything we can (to make sure people can vote).”

Commissioner Ann Jacobs said at Tuesday’s meeting she would like to see the DMV provide voting credentials to voters over the counter instead of through the mail when it gets close to the election.

Commissioner Steve King agreed with that approach in an interview.

“The mail won’t cut it if they’re coming in the week before the election,” he said.

Jacobs and Thomsen are Democrats; King is a Republican.

[Updated with the updated version of Patrick’s story]



Devil in the Details of WI Voter ID Softening


State Election Commission members during a meeting Tuesday questioned how the DOT can get such credentials to people who try to get a photo ID on Election Day. Since the agency mails the credentials, those people likely wouldn’t receive their credentials until the next week.

They could vote by provisional ballot but the deadline for confirming those ballots is the Friday after the election. People waiting for credentials would see their ballots invalidated.

Looks like the district court judge in the One Wisconsin Now case may have to get back involved with this.



“For SF candidates, Chinese name can spell edge at poll”

SF Chronicle:

Perhaps the most infamous example is Michael Nava, who ran for San Francisco Superior Court judge in 2010. His chosen given name, Zhengping, translates to “correct and fair” — tailor-made for someone running for judge. And his surname, Li, made him recognizable to Chinese voters. (Nava still lost the election).

Attorney General Kamala Harris, now a candidate for U.S. Senate, also took major liberties with her Chinese name — He Jinli. Her given name, which sounds nothing like Kamala, translates to “intricate and beautiful,” and her surname means “celebrate.”

Some Chinese candidates, who don’t have the benefit of re-creating their name to gain a political advantage, become frustrated, said former supervisor and now state Board of Equalization member Fiona Ma, or Ma Shiyun. Her surname means “horse,” and her given name means “worldly cloud.”

“If you are running against someone and you’re Chinese, you have to use your name. My name sounds masculine. And someone picks out ‘beautiful golden child.’ It’s not really fair,” Ma said.


Right on Time: Sen. Grassley Starts to Cave on Garland #SCOTUS Confirmation in Lame Duck

I’ve long said I expect Judge Garland to be confirmed in lame duck, if, as expected, Clinton wins the presidency and Democrats narrowly take over the Senate. The bet would be that Garland is both older and more moderate than whoever Clinton would nominate instead of Garland (and no, I don’t expect Obama to withdraw Garland’s nomination or Garland to withdraw).

Now, via Zoe Tillman, comes this story of a local rotary club Q&A with Senator Grassley, the Senate Judiciary chair, who has said it, like Sen. Majority leader McConnell, that it is up to the next president to choose the Supreme Court nominee:

Grassley said there has been a well-accepted “understanding” in Senate since 1987 that no Supreme Court vacancies should be filled in the final year of a presidential term.

“It had nothing to do with Garland (personally),” Grassley said.

Grassley said the only way his stance could change is if a large number of senators strongly urged him to consider the nomination during a so-called “lame-duck session” of Congress, during the time after the Nov. 8 election and before the new Congress takes office in January.

Watch this crack in the wall grow larger.


“Criminal Justice George Soros’ quiet overhaul of the U.S. justice system”


While America’s political kingmakers inject their millions into high-profile presidential and congressional contests, Democratic mega-donor George Soros has directed his wealth into an under-the-radar 2016 campaign to advance one of the progressive movement’s core goals — reshaping the American justice system.

The billionaire financier has channeled more than $3 million into seven local district-attorney campaigns in six states over the past year — a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors.

Who says the left doesn’t have its share of Plutocrats?


Why Didn’t Justice Kennedy Go to Salzburg This Summer?

Fix the Court has tracked the Justices’ summer travel, but this from their email blast caught my eye (in bold, my emphasis):

Supreme Court justices’ travel – summer 2016

Chief Justice John Roberts

No public events


Justice Anthony Kennedy

July 11: Speaking engagement; Big Sky, Montana; Ninth Circuit Judicial Conference, host

Note: Justice Kennedy did not make his customary trip to teach in Salzburg this summer (confirmed by McGeorge School of Law press office)


Justice Clarence Thomas

June 26-July 21: Teaching engagement; Nice, France; Thomas Jefferson School of Law and University of Nice School of Law, hosts


Justice Ruth Bader Ginsburg

July 16: Cultural engagement; Castleton, Virginia; Castleton Festival, host

Mid-July (undetermined date): Speaking engagement; Barcelona, Spain; NYU, host

July 27: Cultural engagement; Venice, Italy; host unclear

August 4: Speaking engagement; Washington, D.C.; Duke Law School and Jones Day, hosts

August 19: Speaking engagement; Santa Fe, New Mexico; State Bar of New Mexico, host

August 26: Cultural engagement; Cooperstown, New York; Glimmerglass Festival, host

September 14: Speaking engagement; McLean, Virginia; Association of Corporate Counsel, host

September 21: Speaking engagement; New York, New York; Temple Emanu-El, host


Justice Stephen Breyer

July 13-14: Speaking engagement; Sun Valley, Idaho; Sun Valley Writers’ Conference, host

September 29: Speaking engagement; Portsmouth, New Hampshire; New Hampshire Public Radio and The Music Hall, hosts


Justice Samuel Alito

July 25-27: Teaching engagement; Paris, France; Tulane University Law School, host


Justice Sonia Sotomayor

July 4: Speaking engagement; Orient, New York; Oysterponds Historical Society, host

August 14: Speaking engagement; Fairbanks, Alaska; University of Alaska Fairbanks, host

August 17: Speaking engagement; Anchorage, Alaska; Alaska Bar Association, host

September 1: Speaking engagement; Colorado Springs, Colorado; Tenth Circuit Bench and Bar, host

September 1: Speaking engagement; Denver, Colorado; Metropolitan State University of Denver, host

September 2: Speaking engagement; Boulder, Colorado; Byron R. White Center at Colorado Law School, host

September 8: Speaking engagement; Madison, Wisconsin; University of Madison-Wisconsin, host

September 17: Speaking engagement; New York, New York; Just The Beginning Foundation, host

September 22: Awards reception; Washington, D.C.; Hispanic Heritage Foundation, host


Justice Elena Kagan

August 10: Speaking engagement; Washington, D.C.; Harvard Club of Washington and Hogan Lovells, hosts

August 31: Speaking engagement; Tucson, Arizona; University of Arizona College of Law, host

September 2: Speaking engagement; Colorado Springs, Colorado; Tenth Circuit Bench and Bar, host

September 8: Speaking engagement; Cambridge, Massachusetts; Harvard Law School, host

September 15: Awards reception; Louisville, Kentucky; University of Louisville Brandeis School of Law, host


“How the Senate could safeguard the election”

Josh Douglas for CNN:

This problem could be calamitous. If we have another post-election dispute such as Bush v. Gore, then the court could deadlock 4-4. The result in Trump v. Clinton would then affirm whatever lower court heard the case — likely a state supreme court. Most state supreme court justices are elected.
Therefore, without a full bench on the US Supreme Court, the presidential election could come down to some elected judges in a swing state. That is no way to run a democracy. To be sure, many people view the Supreme Court’s 5-4 decision in Bush v. Gore as incorrect, but at least we had a judicial body that covers the entire country resolve the lingering dispute. This helped to provide finality and certainty.

Strange Goings On in 7th Circuit En Banc WI Voter ID Case: A 9th Vote Appears

On Friday, I linked to this per curiam order from the Seventh Circuit in the two WI voter id/voting cases, I then noted:

Two years ago, when the en banc 7th Circuit considered an earlier stage of the Frank v. Walkerlitigation, in which a 7th Circuit panel had upheld WI’s strict voter id law against a facial challenge, the en banc court divided 5-5. But since then one of the conservatives on the court retired, leaving the possibility of a 5-4 vote in Frank to allow people without one of the strict forms of id to vote with an affidavit.

But one of the judges who could have been in such a five-judge majority, Judge Williams, did not participate in the case. We are not told why. It could be health, a need to recuse for some reason, or some other reason.

As Mark Sherman noted when the compromise per curiam order appeared, the unanimous per curiam could mask a 4-4 split.  Imagine if 4 judges wanted to restore the affidavit requirement and 4 did not, and 4 wanted to side with Wisconsin in its other challenge and four did not.  That would leave things standing as they were in any case, and would not do much good.

But now the 7th Circuit has reissued its per curiam order as amended, with Judge Williams listed as participating. The addition of Judge Williams appears to be the only difference to the opinion.

So why was Judge Williams out, and now in?

Here’s a guess, and it is only a guess: Judge Williams was otherwise travelling or not available, and the judge did not participate. But when some of us started asking about this as a compromise for a 4-4 split, Judge Williams decided to add her name to silently dispel that notion.

Or maybe not. Because the judge did not give a reason for not participating the first time, it is hard to know what to make of this.

Thanks to eagle-eyed Wisconsin Election Protection, for noting the amended order.



“Harry Reid Cites Evidence of Russian Tampering in U.S. Vote, and Seeks F.B.I. Inquiry”


The Senate minority leader, Harry Reid of Nevada, asked the F.B.I. on Monday to investigate evidence suggesting that Russia may try to manipulate voting results in November.

In a letter to the F.B.I. director, James B. Comey Jr., Mr. Reid wrote that the threat of Russian interference “is more extensive than is widely known and may include the intent to falsify official election results.” Recent classified briefings from senior intelligence officials, Mr. Reid said in an interview, have left him fearful that President Vladimir V. Putin’s “goal is tampering with this election.”

News reports on Monday said the F.B.I. warned state election officials several weeks ago that foreign hackers had exported voter registration data from computer systems in at least one state, and had pierced the systems of a second one.

The bureau did not name the states, but Yahoo News, which first reported the confidential F.B.I. warning, said they were Arizona and Illinois. Matt Roberts, a spokesman for Arizona’s secretary of state, said the F.B.I. had told state officials that Russians were behind the Arizona attack.


“Donald Trump’s Unorthodoxy Extends to Spending”


Republican Donald Trump has said he isn’t interested in running a traditional presidential campaign. Campaign-finance records show he’s not: Half of the campaign’s 10 highest-paid consultants over the course of the election had never previously worked for a presidential campaign.

Just one of Democrat Hillary Clinton’s top 10 consultants had no presidential campaign experience, according to a Wall Street Journal review of Federal Election Commission records through July that focused on firms paid for consulting services, including on field, digital and strategic efforts.


“Judge: Citizens United must disclose donor information to NY”


A nonprofit conservative organization advocating for less government must reveal information about major donors to the state’s attorney general if it wants to solicit money in the state, a judge ruled Monday as he rejected First Amendment claims.

U.S. District Judge Sidney H. Stein said that states have a strong interest to ensure that charities do not serve as fronts for fraud and crime and the lawsuit by the conservative organization, Citizens United, failed to show that the requirement “lacks a substantial relation to these important governmental interests.”



Breaking: #SCOTUS Will Not Force OH to List Johnson/Weld as Libertarians on the Ballot

The Court, without comment or noted dissent, has turned down the Libertarians’ request to have Johnson and Weld listed as Libertarians on the ballot. This not only would have helped Johnson and Weld by giving them a party label; it also would have helped the Libertarians get back ballot access in Ohio.

Now Johnson/Weld will be on ballot and can get votes in Ohio, but as independents.

There will now be two “Johnsons” listed on the Presidential/VP ballots as independents in Ohio.


“Early voting in Milwaukee to include remote sites”

Milwaukee Journal-Sentinel:

Milwaukee officials plan to allow early voting on the north and south sides for two weeks starting Oct. 10 in a move that some Democrats are warning could lead to voter confusion.

Under the still-developing plans, the location for early voting would change after two weeks. The plans are “unnecessarily complicated,” said Joe Zepecki, a Democratic strategist.

“Where the objective is making it easier for people to vote, you want to have clarity and consistency throughout,” he said. “(This plan) doesn’t lend itself to everyone in a community knowing where they can vote.”…

The city is able to set such an early voting schedule because of a recent court ruling that struck down limits on early voting approved by GOP Gov. Scott Walker and Republicans who control the Legislature. Under those limits, early voting could not have started until Oct. 24 and could not have included weekend voting.


“State’s chief justice won’t contest moving on to general election with opponent”

Tacoma News Tribune:

For a time, Washington State Supreme Court Chief Justice Barbara Madsen thought her runaway lead over two opponents in the August primary election might send her unopposed into the general election.

She was unsure in early August whether old election rules for judges — which said candidates who got more than 50 percent of vote in the primary didn’t have to face a challenger in the general election — still applied in this year’s election.

Now Madsen says she’s accepting the opinion of the Secretary of State’s Office that, yes, she will face second-place primary finisher Greg Zempel in November.

“I’m not prepared to dispute that with the secretary of state, so that looks like what’s going to happen,” she said last week.



“Many NC counties’ early vote plan not set”

Charlotte Observer:

Early voting schedules for the fall elections remain unresolved in at least one-quarter of North Carolina’s counties after a federal court ruling that struck down key portions of the state’s 2013 voter identification and ballot access law.

The 4th U.S. Circuit Court of Appeals determined Republican legislators acted with discriminatory intent toward black voters when they approved several provisions, including one that reduced the number of early voting days from a maximum of 17 days to 10.

Early in-person voting is popular in North Carolina, used by more than half of the people casting ballots in the 2012 presidential election, when it covered 17 days. Its use could make a difference Nov. 8.

County boards of elections had approved 10-day plans for early voting sites and hours of operation. They had until late last week to give the State Board of Elections revised plans based on a schedule beginning Oct. 20 instead of Oct. 27.

Local boards in 66 of the state’s 100 counties approved their updated plans, according to data provided Friday by the State Board of Elections. Those plans are now essentially finalized.

But 24 counties provided two plans – one approved by a majority on each three-member board and the other backed by a single member. Those counties include several of the state’s largest: Mecklenburg, Wake, New Hanover, Pitt and Union. The Orange County board offered four plans.



“Meet the man siphoning money from Donald Trump”

Shane Goldmacher for Politico:

In just its first three weeks of operation, Hawes’ PAC spent more than $108,000 on Facebook ads, offering an opportunity to win “Dinner with Donald Trump” — and netted itself nearly $350,000 in donations, according to federal records.

The biggest chunk of the money raised — $133,000 — went to a company that Hawes founded and owns, CartSoft LLC. The purpose of the payments is described on federal records as “media” and “media purchasing,” though CartSoft’s website describes itself as an online payment-processing platform.

Since its launch, the PAC has collected more than $1 million, Hawes told POLITICO. It has reportedly spent $0 on behalf of Trump.



“FBI says foreign hackers penetrated state election systems”

Michael Isikoff for Yahoo News:

The FBI has uncovered evidence that foreign hackers penetrated two state election databases in recent weeks, prompting the bureau to warn election officials across the country to take new steps to enhance the security of their computer systems, according to federal and state law enforcement officials.

The FBI warning, contained in a “flash” alert from the FBI’s Cyber Division, a copy of which was obtained by Yahoo News, comes amid heightened concerns among U.S. intelligence officials about the possibility of cyberintrusions, potentially by Russian state-sponsored hackers, aimed at disrupting the November elections.

Those concerns prompted Homeland Security Secretary Jeh Johnson to convene a conference call with state election officials on Aug. 15, in which he offered his department’s help to make state voting systems more secure, including providing federal cyber security experts to scan for vulnerabilities, according to a “readout” of the call released by the department.

Anyone thinking we can use electronic voting machines without a paper trail needs to think harder.