Cowgirl Blog’s latest on the Montana mailer.
Well worth the read.
I suggested in this Slate piece that Justice Ginsburg decided to pull an all nighter to write her dissent as a “5 am wake up call” on the issue of voting rights. Now comes some confirmation.
But Justice Ginsburg, speaking at the University of California’s Washington Center, said she “decided this case really needs a dissent to highlight how far Texas had gone, and the populations that would be most affected by the voter ID” requirements.
She said she worked in her chambers till 10 p.m., then went home and kept working until dawn. The court released the Texas order and the dissent, joined by Justices Sonia Sotomayor and Elena Kagan , at 5:05 a.m.
Having turned in her assignment, the 81-year-old justice was a bit too wired to hit the hay. “I didn’t sleep at 5 a.m. either. I took a leisurely shower,” then wound down with some reading, she said.
And like many a student, Justice Ginsburg said she wished she had had a bit more time.
“I would have liked to have held it for one more read. Maybe I would have caught the error if I had done that,” Justice Ginsburg said.
On the small error, see here.
But two recent stories in the election realm raise a cautionary tale about what happens if we’re not careful (as practitioners or consumers) about the use of political science to learn more about elections.
The first comes from Montana, where researchers interested in studying how partisan cues might affect voting in nonpartisan judicial races have thrown the state into a frenzy. The problem is their use of a mailer that (perhaps illegally and certainly ill-advisedly) uses the Great Seal of Montana. [It looks like similar mailers have gone to California and New Hampshire too.] That piece, which critics claim is misleading to voters, is leading many people inside and outside of Montana to worry that the mailer (and the resulting controversy) could end up having an impact on the outcome. Worse, one defender of the project has sought to justify the mailer’s impact on Montana by suggesting that the concept of nonpartisan judicial elections isn’t such a good idea in the first place.
The second story involves a recent guest posting about non-citizen voting on the Washington Post’sMonkey Cage blog. The Monkey Cage – a well-respected political science blog – recently joined the Post, and has become a terrific source of political science-driven analysis and commentary on a wide range of issues. In their recent guest post, however, two researchers who have been studying non-citizen voting claimed that their analysis suggests that non-citizen voting is higher than previously thought and could be skewing outcomes. Not surprisingly, both sides in the ongoing “voting wars” (trademark Rick Hasen) have seized on the piece (as of midday Tuesday it had more than 3,000 comments) and it will be a centerpiece in voter ID and proof-of-citizenship fights for years to come. But several academics and analysts who are familiar with the data used in the study are saying that it doesn’t necessarily support the conclusions reached AND that even if it did that would indicate the need to study further, not publish the results.
This is the part where I remind you that I have been beating the drum for years about the need for more field experiments (like in Montana) that – by their very definition – look to measure the effect of a studied practice on voter behavior, and data-driven analysis (like in the Monkey Cage post). Properly executed, they are a powerful force for change in election administration and a means to rise above rhetoric and partisanship in shaping election policy.
But I would suggest that neither of these projects was properly executed.
Must-read A1 Eric Lipton for the NYT:
Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.
A robust industry of lobbyists and lawyers has blossomed as attorneys general have joined to conduct multistate investigations and pushed into areas as diverse as securities fraud and Internet crimes.
But unlike the lobbying rules covering other elected officials, there are few revolving-door restrictions or disclosure requirements governing state attorneys general, who serve as “the people’s lawyers” by protecting consumers and individual citizens.
A result is that the routine lobbying and deal-making occur largely out of view. But the extent of the cause and effect is laid bare in The Times’s review of more than 6,000 emails obtained through open records laws in more than two dozen states, interviews with dozens of participants in cases and attendance at several conferences where corporate representatives had easy access to attorneys general.
“You can vote all week. You can only vote once. This isn’t Chicago,” Mr. Obama said. “I’m teasing, Chicago. I’m messing with you. That was a long time ago.”
—President Obama, at a Wisconsin campaign rally.
Jay Heck blogs at Common Cause in Wisconsin.
In an unusual “open letter to the voters and citizens of Montana,” the presidents of Dartmouth College and Stanford University urged Montana voters Tuesday to ignore a mailer sent recently by their researchers that caused considerable controversy in the run up the November election. They also apologized for the “confusion and concern” the mailer caused.
A Georgia judge declined Tuesday to intervene in Georgia’s voter registration process, letting stand existing measures by state and local election officials to help applicants ahead of the Nov. 4 election.
The decision came after a two-hour hearing Friday, during which Fulton County Superior Court Judge Christopher Brasher seemed skeptical of a lawsuit that sought what he called an “extraordinary legal remedy.”
You can read the judge’s 14-page opinion here.
AP: “A group whose tax-exempt status allows it to keep its donors and spending secret is asking a federal appeals court to block several Montana laws regulating campaign contributions and expenditures before next Tuesday’s elections.”
Common Cause released a new report: Did We Fix That?: Evaluating Implementation of the Presidential Commission on Election Administration’s Recommendations in Ten Swing States. The Executive Summary is available here.
Extensive report in The Guardian.
NYT’s The Upshot weighs in.
Michael Morley has posted this draft on SSRN. Here is the abstract:
Article I’s Elections Clause and Article II’s Presidential Electors Clause confer authority to regulate congressional and presidential elections, respectively, specifically to State “legislatures,” rather than to States as a whole. In the pending case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court will decide whether the Elections Clause allows a State to remove the authority to draw congressional districts from its legislature, and confer it instead in an independent commission. Its ruling will have tremendous ramifications not only for similar redistricting commissions across the nation, but for a wide range of other doctrines, principles, and protections that stem from the Elections Clause and Presidential Electors Clause.
Intratextualism is a powerful technique for interpreting the Constitution that can yield valuable insights into the proper meaning of the term “Legislature,” as it appears in both provisions. A careful intratextual analysis of the Constitution as a whole reveals that the term “Legislature” is best understood as referring to the entity within each state comprised of representatives that has the general authority to pass laws, and excludes executive officials, judges, and independent agencies or commissions. Such an interpretation is bolstered by both the original understanding of the term “Legislature,” as well as the “independent state legislature” doctrine, which recognized that the U.S. Constitution directly confers authority to regulate federal elections directly and specifically on institutional legislatures, and a State constitution may not impose substantive limits on the scope of that authority. Thus, to the extent laws establishing independent commissions purport to prohibit State legislatures from regulating federal elections or drawing congressional districts, they are unconstitutional under the Elections Clause.
Politico: “Organizing for Action is getting the jump on a post-midterms shake-up, with staff changes and the beginning of a reconstituting that will begin President Barack Obama’s shift toward thinking about his role after leaving office….OFA is winding down its advocacy and plans to become part of the Obama library and foundation after Obama leaves office, according to sources.”
FairVote wants to use “fair representation voting at-large”—which I think must be cumulative voting with a fancy name—to remedy a Voting Rights Act violation.
UPDATE: In this context, Fairvote is supporting Yakima’s efforts to use “limited voting.” FairVote uses the term “fair representation voting’” for a variety of alternative voting mechanisms.
Texas Tribune: ”Two-thirds of registered Texas voters have a favorable opinion of the state’s voter photo ID law, and more than half have a “very favorable” view, according to the latest University of Texas/Texas Tribune Poll….While 19 percent of Democrats have a ‘very favorable’ opinion of the law, 51 percent of independents and 85 percent of Republicans do.”
Read Jeff Toobin in the New Yorker on the recent SCOTUS WI and TX voting case orders.
Jerry Goldfeder and Myrna Perez write in the NY Law Journal.
Andy Kroll for Mother Jones.
Bloomberg BNA: “Following rejection of petition for an en banc review by the U.S. Court of Appeals for the Seventh Circuit, the Wisconsin Club for Growth will ask the Supreme Court to overturn an appellate panel decision reaffirming the state government’s authority to regulate coordination between political campaigns and purportedly independent outside groups (O’Keefe v. Chisholm,, 7th Cir., , No. 14-1822, , en banc review denied 10/23/14; 3854 Money & Politics Report, 9/26/14)).”
The latest from the Virgin Islands (but no signs of a SCOTUS appeal from Hansen).
The latest from the CNMI.
Andrew Tutt has posted this draft on SSRN (Columbia Law Review Sidebar). Here is the abstract:
In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo corruption or its appearance. But two recurring themes in the McCutcheon opinion indicate that this standard will from hereon be more difficult to meet. One is that campaign-finance laws prevent individuals from participating meaningfully in democratic change. The second is that Congress cannot be trusted to pass campaign-finance laws because such laws are tainted by self-interest. As Chief Justice Roberts wrote in McCutcheon’s plurality opinion, “[T]hose who govern should be the last people to help decide who should govern.” This Essay argues that these two themes actually chart a way forward for those who wish to see greater regulation of campaign financing. If Congress were to hold a national referendum to reenact the limits the Supreme Court struck down in McCutcheon, those limits would be constitutional even though the same limits passed by Congress were not. The reason is that limits backed by a popular vote would satisfy McCutcheon’s concerns with congressional self-dealing while vindicating directly its concern with maximizing each individual’s opportunity to take an active part in democratic self-governance. Moreover, an answer from the People themselves to the most relevant question in any campaign-finance case — whether a practice gives rise to the appearance of corruption — is the best way one could imagine for discovering whether it does so. One might say that McCutcheon literally calls for a referendum on campaign finance. This Essay explores this notion in depth and closes by assessing the constitutionality and practicality of the referendum option.
On the Media talks with Heather Gerken.
Gannett: ”The Ohio Elections Commission can’t crack down on Tweets — even if those 140-character messages include false political information, a Cincinnati federal judge ruled on Monday.”
You can find the majority and dissent at this link.
I do not understand why this is an unpublished opinion. Seems to cover some important and novel issues with an interesting discussion and thoughtful disent.
Brian Sweeney on voter registration problems in New Mexico.
Release: “The Center for Media and Democracy has filed a complaint with the Internal Revenue Service alleging that the Wisconsin Club for Growth lied to the IRS in 2011 and 2012, violated its tax-exempt status by operating as a political committee, and operated primarily for the private partisan benefit of the Republican Party, rather than for any sort of ‘social welfare.’”
BLT: “An Internal Revenue Service employee caught up in the controversy over tax-exempt groups wants a federal judge to block a subpoena for her videotaped testimony. The official, Holly Paz, cites privacy and safety fears.”
That kind of makes me like it more.
Last week Dan Tokaji and I did a 30-minute webinar for the Center for State Governments.
You can now listen via the archive here. We discussed voting litigation in a number of places this election, including Ohio, North Carolina, Texas, Wisconsin, Arizona and Kansas.
Michael Tesler blogs at the Monkey Cage. See also my earlier post, About that Monkey Cage Item on Non-Citizen Voting, Calm Down.
Great Adam Liptak Sidebar.