“Kiss any hope goodbye.
“We’re done. Go home. Give up.”
The lyrics to a moody ballad? A depressing Facebook page? No, these are subject lines from a series of frantic e-mail messages sent to Democratic donors in recent days.
To be blunt about it — as some of these fundraising pitches might say — the number of e-mails sent in recent days is SCARY.
The latest from Wisconsin.
Hasen has many criticisms of the per curiam opinion — including its assessment of the evidence challenging the law, and its reading of a Supreme Court case called Purcell v. Gonzales. It isn’t self-evident to me who is right about those things. (You can read his post to decide for yourself.)
But there is something else that troubles me about the per curiam opinion. The Supreme Court has said that the two “most critical” factors in deciding whether to grant a stay are the likelihood of success on the merits and whether the applicant will be irreparably injured absent a stay. The per curiam opinion discusses the state’s likelihood of success on the merits. It doesn’t discuss irreparable injury. So far as I can tell neither word (“irreparable” or “injury”) appears in the opinion at all.
Tom Edsall on the Kochs and the Democracy Alliance:
In the long run, the relatively modest (but growing) dependence of Democrats on dark money, mega-dollar contributors to “super PACs” and other funding mechanisms is corrupting, even as it comes alongside the party’s parallel success in building a powerful small donor base. On issues of taxes, regulation, spending and campaign finance, the Republican Party has established itself as the advocate of the wealthiest Americans. Insofar as the Democratic Party moves in the same direction, it will be unable to act as a counterbalance to the right.
While neither the left nor the right has clean hands, liberals have far more to lose, and much less to gain, from continued hypocrisy.
This item appears at the Recall Elections Blog.
You can read the opinions at this link. Here are my thoughts:
1. The majority opinion, authored by the three judges on the original panel which lifted the stay, strikes me as disingenuous. The biggest flaw is the idea that voters had years to get their id’s, so it is no fault now of the state if they don’t have them. To begin with, the law had been put on hold, and a federal judge had determined the law was likely unconstitutional and a violation of the Voting Rights Act. Why should individuals who lacked the right narrow kind of ID necessary for the law have gone out to get it when there was a good chance (as predicted by a federal judge) that the law would never be implemented? Further, until nearly the time the 7th Circuit considered the case, the procedures put in place by the state of Wisconsin to get the id’s were found by the state supreme Court to be unconstitutional. The WI Supreme Court, by judicial fiat, changed the rules just a few weeks before the 7th Circuit order. And then the state changed them again. So there could not have been years to get the IDs.
2.The opinion is also disingenuous in saying the law is just like the Indiana law upheld by the Supreme Court in the 2008 Crawford case. Put aside the fact that Crawford did not involve a Voting Rights Act challenge, which imposes a different standard. Wisconsin’s law is also stricter (as the dissenters today point out, Indiana’s law allowed for an indigent voter to file an affidavit of indigency to get around the law and WI voters cannot). Further, the record in the Indiana case showed no evidence of actual voters disenfranchised, but the record here did show actual disenfranchised voters who would have a hard time getting the IDs under state law.
3. The opinion is also disingenuous in faulting the law’s challengers for not presenting evidence to the 7th Circuit of the number of people disenfranchised by the law. How could that be? The trial court found that up to 300,000 registered voters don’t have the right id yet. That finding, unless clearly erroneous, should be binding on the appellate court. Indeed, the dissenters point out that the state of WI conceded that 10% of the voters lacked the right ID:
[The state of WI] brazenly responds that the district court found that “more than 90% of Wisconsin’s registered voters already have a qualifying ID” and can vote and that “the voter ID law will have little impact on the vast majority of voters.” But the right to vote is not the province of just the majority. It is not just held by those who have cars and so already have driver’s licenses and by those who travel and so already have passports. The right to vote is also held, and held equally, by all citizens of voting age. It simply cannot be the answer to say that 90% of registered voters can still vote. To say that is to accept the disenfranchisement of 10% of a state’s registered voters; for the state to take this position is shocking.
4. Aside from what the 7th Circuit (or Supreme Court) will ultimately do on the merits of the constitutional and Voting Rights Act claims in the case (and I’m skeptical of ultimate success), the voter id law should not be implemented in such a haphazard way risking the disenfranchisement of thousands of voters. This is the Purcell principle which the Supreme Court has recognized, and which today’s 7th Circuit dissenters rely upon. The dissenters make a compelling case for the Supreme Court to get involved. But, as I said this morning, the longer the delay, the less compelling the Purcell changing the rules argument in midstream becomes. I’ve explained why I think a stay request has (would have had?) a decent chance here and my Slate piece from yesterday puts Wisconsin into broader perspective in the heat up of the voting wars.
[This post has been updated.]
The debaters are Vik Amar, Ann Ravel, Brad Smith, and Sean McCucheon.
A Wesleyan Media Project analysis, in partnership with the Center for Responsive Politics, reveals that an estimated $233 million has been spent by outside groups in House, Senate and gubernatorial races this election cycle, starting January 1, 2013; $90 million of that is in the form of dark money—money whose sponsors do not have to be disclosed by law (Table 10). Just in the past two weeks, groups have spent an estimated $33 million, with $10 million in dark money spending.
Table 10: Estimated Spending by Disclosure Type Spending
Last Two Weeks
Dark Money 10.07 M 90.56 M Partial Disclosure 2.46 M 5.93 M Full Disclosure 20.52 M 136.51 M Total 33.04 M 233.01 M Figures in the second column are from September 12, 2014, to September 25, 2014, while figures in the third column are from January 1, 2013, to September 25, 2014. Numbers include broadcast television. Dollar amounts reflect estimated cost of airtime.
CITE SOURCE OF DATA AS: Kantar Media/CMAG with analysis by the Wesleyan Media Project. Disclosure information from the Center for Responsive Politics.
Press release: “Voters overwhelmingly believe that clear rules defining political activity for nonprofits is important, according to a bipartisan poll released today. The poll was commissioned by Public Citizen, which released it in conjunction with the Hudson Institute’s Bradley Center for Philanthropy & Civic Renewal as part of its mission to be a forum for conversations on important issues in the nonprofit sector.”
Dan on yesterday’s decision:
It’s still possible that the Supreme Court will decide the Ohio case on the merits. If it does, further cutbacks to voting rights – under the Constitution and the Voting Rights Act – are likely. On this point, I quite agree with Rick Hasen (despite our disagreement on the merits in Husted v. NAACP). Even if the Court doesn’t rule take the Ohio case, it could decide a case coming out of North Carolina, Texas, Wisconsin, or some other state. Voting rights advocates should be concerned, and surely are, about the prospect of Supreme Court review in any of these cases.
Back in 2008, when the Supreme Court upheld Indiana’s voter ID law in Crawford v. Marion County Election Board, I said: “it could have been worse.” Although I disagreed with the outcome of that case, the balancing test articulated by a majority of justices in that case was reasonable, allowing the burdens of voting restrictions to be weighed against the benefits to the states. Lower courts have used that standard to stop the worst instances of partisan manipulation of voting rules, in Ohio and elsewhere. Yesterday’s ruling is reason to fear that the Supreme Court may tighten the screws on the lower courts, making it more difficult for them to protect the right to vote.
In other words, it could get worse.
I missed this Pam Fessler NPR report from last week.
according to this BLT report from today’s DC Circuit en banc hearing [update: MORE from Josh Gerstein], the reason it could fall is because it is so porous as to not accomplish its goal. That would be a better outcome, from the point of view of salvaging what remains of contribution limits, than a holding which strikes down the ban as too restrictive of the First Amendment rights of government contractors. A snippet:
But Tatel and his colleagues raised concerns about the different ways individual contractors could circumvent the ban. Contractors were allowed to hold political fundraisers and bundle contributions, for example, or could form an LLC and then be free to give as a corporate contributor.
Tatel questioned the FEC’s lawyer—Kevin Deeley, acting associate general counsel for litigation—over whether those alternatives raised questions about what the ban was actually accomplishing.
“Congress has attacked the most dangerous exchange,” Deeley replied, referring to an individual contractor making a direct contribution.
Judge Patricia Millett said she found it hard to reconcile the government’s claim that the ban was necessary with the fact that there was “an easy way out.” Judge Cornelia Pillard raised another concern about the ban’s possible “underinclusiveness”—that would-be contractors could make contributions in anticipation of applying for a contract, since the ban only kicked in once contract negotiations began.
Big news: Election law/legislation professor and current USC Provost Beth Garrett is the new President of Cornell University. Congrats to both!
As I told Wisconsin Public Radio, the longer the delay, the less compelling the Purcell changing the rules argument in midstream becomes. I’ve explained why I think a stay request has (would have had?) a decent chance here and my Slate piece from yesterday puts Wisconsin into broader perspective in the heat up of the voting wars.
AP’s Mark Sherman explains in two tweets: “Why no orders today at #scotus? Tradition gives way to effort to avoid embarrassment of granting cases with lurking procedural hiccups.(1/2) Court taking 2nd look before agreeing to hear cases (begun last year). But still need to fill Jan argument slots. So later this week? (2/2)”
Some day someone should write about the bizarre way that #SCOTUS treats the SCOTUS press corps. Of course ,anyone who writes about the bizarre way that #SCOTUS treats SCOTUS press corps will no longer be welcome by Court as part of corps.
David Primo WSJ oped on CPA-Zicklin index.
Jesse Wegman blogs at NYT’s Taking Note blog: “There are reasonable arguments to be made about why these particular restrictions are not the most burdensome in the country, since Ohio already has four weeks of early voting. Still, the plaintiffs made the argument — accepted by a federal trial court and a three-judge appeals panel — that the cuts violated both the Equal Protection Clause and the battered-but-still-standing Voting Rights Act.”
Reminder from BAN.
Lyle reports: “Justice Elena Kagan turned down without comment a separate request by Ohio’s legislature for the same kind of order postponing some of the early voting options. The legislature has been allowed into the controversy only as a friend-of-the court, not as a full party. Kagan chose to act on that request without referring it to her colleagues.”
And here is a directive from HO SOS Husted explaining what early voting rules are in effect for the upcoming elections in light of the Supreme Court stay.
A three-judge Shawnee County panel did not decide Monday whether Kansas Democrats should be required to pick a replacement for Chad Taylor, who dropped out of the closely contested U.S. Senate campaign against longtime incumbent Sen. Pat Roberts.
The court challenge seeking to force Democrats to fill the vacancy hit a stumbling block Monday when the man who filed the suit failed to show up for his day in court.
The judges did not rule on whether the suit was still viable in light of the plaintiff’s absence, preferring instead to hear more arguments before making a ruling they indicated would come before 2 p.m. Wednesday – the time Secretary of State Kris Kobach says ballots must be sent to printers.
Via SCOTUSBlog comes this Supreme Court order staying the district court’s order preventing various cutbacks in early voting (including a cutback from 35 to 28 days, and elimination of one of the two early voting days on a Sunday, a day African-American churches had been using for “Souls to the Polls” voter drives). [It is not clear from earlier orders which Sunday might be eliminated.]
Although the order is “temporary” in the sense that it will be in place pending a ruling on a cert. petition ultimately to be filed by Ohio in the Supreme Court, that won’t happen before this election, and so for this election the new shorter voting period is in effect—and not the old rules put back in place by the district court and affirmed by the 6th Circuit.
That the Court divided 5-4 along liberal conservative lines is no surprise. As I wrote this morning in Slate of the various election voting wars cases making their way up the the Supreme Court, “For the most part, it has been Democratic and more liberal judges who have issued opinions reading voting rights protection broadly, and it has been Republican and more conservative judges who have issued opinions reading the protections narrowly. There is every reason to expect the same pattern at the Supreme Court, with a 5–4 conservative-liberal split on these questions.”
And while the Court did not offer a reason for its order today, it is very likely that the conservative Supreme Court majority did not believe in the very expansive views of equal protection and section 2 of the Voting Rights Act endorsed by the very liberal district court judge and 6th Circuit panel below.
I think it was a mistake to bring this Ohio case. I am not convinced that it is a significant burden on voters to cut back a week off early voting including the last Sunday. Really, if 28 days is too little early voting, what does this say about New York, with NO period of early voting? I do not buy the “context” argument about Ohio in part because these cutbacks are so minor.
I am worried this case will make bad law, and have bad effects in cases such as challenges to Wisconsin’s voter id law, Texas’s voter id law, and North Carolina’s omnibus bill making it harder to vote. I have argued that when there is a significant burden on voters imposed for no good reason, or imposed for a partisan reason, then courts should shut down voting restrictions. The Ohio case did not involve significant burdens, and the theories accepted by the district court and 6th Circuit panel were vast constitutional expansions of voting rights. As Ned Foley reminded us, not everything that is good policy is constitutionally required.
But now if the Supreme Court reads both the Equal Protection Clause and Section 2 of the Voting Rights Act very narrowly in the Ohio case, it is bad news all around and in cases where the changes matter more. As I concluded in the Slate piece, we ignore these cases at our peril.
[This post has been updated.]
This brief, which it says was prepared in 3 hours time, argues that it is no big deal to force a party to choose a candidate to run in an election against its will.
Near the end of the brief, Kobach notes that the party ignored Kobach’s demand for a replacement candidate, analogizing the party to the child “who kills his parents then complains of being orphaned,” the dictionary definition of chutzpah.
This is probably one of the most partisan briefs I have seen from a state elections official, and that’s saying a lot.
AP: “Arkansas’ highest court is set to take up a case this week that could decide whether the state’s voters will be required to show photo identification at the polls in the November election. The state Supreme Court on Thursday is scheduled to hear oral arguments in the lawsuit over Arkansas’ voter ID law, which took effect in January. With a U.S. Senate race that could determine which party controls that chamber, how the court rules could have national implications.”
I have added this to my list of Election Law litigation issues this week.
You can read it here.
I already explained why I think the Democrats are likely to win this one.
In addition to the arguments I’ve laid out, the Democrats really hammer home the point that overseas ballots have already been sent out, that SOS Kobach repeatedly assured the Kansas Supreme Court that the deadline for finalizing the ballot has already passed, and that anyone who wants to vote for Chad Taylor or any other Democrat can do so—using a write in vote.
I have written this new piece for Slate. It begins:
The fights in our states over how hard or easy it is to vote have been filling the courts and are headed toward the Supreme Court. The cases range from voter ID laws to early voting rules and beyond. Already there is a case from Ohio, with ones from Wisconsin, North Carolina, and Texas potentially on the way in a matter of days or weeks. The stakes are high, not only for the lazy 2014 midterm elections but also for the 2016 presidential election and for the protection of voting rights in the next decade.
The fact that the cases are making it to the Supreme Court at about the same time is no surprise. Over the past decade, in the period I have called “the voting wars,” we have seen both an increase in restrictive voting rights legislation passed by Republican legislatures, such as voter ID laws, and litigation from both Democrats and Republicans to manipulate the election system to their advantage. In 2008, the Supreme Court rejected a constitutional challenge to Indiana’s voter identification law, and in 2013, the Supreme Court in the Shelby County case struck down a key portion of the Voting Rights Act providing that states with a history of racial discrimination in voting get approval before making changes to their voting rules and procedures.
Freed by these rulings, Republican legislatures have imposed tougher voter ID laws, cutbacks in early voting, limitations on voter registration, and other rules that make it harder to cast a valid ballot, such as North Carolina’s rule saying that if a voter casts a ballot at the wrong precinct, it cannot be counted for any races, even those for which the voter is eligible to vote.
There’s a lot coming up this week.
As soon as today: The Supreme Court could rule in the Ohio early voting suit and challengers to the Wisconsin voter id law could seek emergency relief in the Supreme Court after the 7th Circuit sitting en banc divided 5-5 over stopping early rollout of the law
Today: A three judge court considers whether Democrats need to name a replacement candidate for Chad Taylor on the ballot for the #KSSEN United States Senate race in Kansas.
Tomorrow: The DC Circuit sitting en banc considers the constitutionality of the ban on campaign contributions by federal contractors
Thursday: The MS Supreme Court considers whether a lower court was right to throw out Chris McDaniel’s election challenge against Thad Cochran in the #MSSEN Republican primary as untimely. UPDATE: Also, the Arkansas Supreme Court considers the state’s voter id law.
AP: “A key contest in the fight for control of the Senate could turn on the outcome of an arcane legal argument Monday over whether Democrats must field a candidate against struggling Kansas Republican Sen. Pat Roberts.”
I’ve posted some additional thoughts, including a reply to my friend and colleague Ned Foley, here.
Todd Pettys has posted this draft on SSRN (forthcoming, University of Chicago Law Review Dialogue). Here is the abstract:
In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his opinion for the plurality by declaring that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders.” Retired justice John Paul Stevens has argued that the Court’s ruling in McCutcheon is “a grossly incorrect decision” because (among other things) the case was about “picking other people’s congressmen, not your own.” In this essay for the University of Chicago Law Review Dialogue, I argue two things. First, I contend that Stevens’s criticism of McCutcheon’s opening line is at odds with the understanding of American federalism that Stevens championed while on the Court and is far more compatible with a conception of federalism that he explicitly rejected. Second, even looking at matters through the federalism lens that Stevens now endorses, such that one regards McCutcheon as trying to influence the selection of other people’s representatives, I argue that any effort to restrict McCutcheon’s and other long-armed donors’ campaign spending on those grounds would face an uphill First Amendment climb.