Major New Edition of “The Law of Democracy,” (Issacharoff, Karlan, Pildes, Persily) Available for Fall

The significantly revised new edition of The Law of Democracy, which now includes Professor Nate Persily as our new co-author, is available from us in page proofs and will be published over the summer.  The new edition will also feature a website, available to teachers, where we will post maps and other visual material that can be used to enhance teaching.  We want to thank the many academics who have contributed their suggestions to this new edition.

From the preface to this new edition, here are a few brief excerpts that describe some of the major changes to the book:

Our treatment of campaign finance has been significantly enhanced.  We have reorganized and expanded the materials in Chapter 5 to cover this increasingly dominant subject. We have included more background material to help students appreciate the various critical actors in the system, and for casebook users who have clamored for years for the inclusion of the actual decision in Buckley v. Valeo, your wish has been granted. We have also organized the materials a bit more conceptually, so that the early parts of the Chapter focus on “corruption” and the expenditure/contribution divide, while the later portions of the chapter focus on key organizational entities, such as political parties and corporations. In addition, we have expanded our coverage of SuperPACs and other contemporary financing vehicles; added new material on lobbying and the boundary between crime and ordinary democratic politics; and enhanced our coverage of disclosure, as that issue has taken on greater importance and become more controversial.

While our coverage of campaign finance has expanded, we have condensed some of our coverage of the Voting Rights Act and related issues. We have compressed the four chapters in the Fourth Edition that dealt with qualitative vote-dilution claims into two chapters in the new edition. We have integrated the racial and partisan vote dilution issues in a new approach; a new Chapter 6 now presents the constitutional vote dilution issues first in the race context and then in the partisan gerrymandering context. Chapter 7 is devoted exclusively to the Voting Rights Act. We have shortened the legislative history of Section 2, and tightened our coverage of Section 2 vote-dilution claims, while adding coverage of Section 2 vote-denial claims. In the wake of the Supreme Court’s decision in Shelby County v. Holder, we have streamlined significantly our coverage of the preclearance regime of Section 5, while preserving the core issues that continue to have current implications.

We’ve managed to revise the book without it getting any longer, thereby defying our earlier prediction that casebooks, like people, always grow heavier as they age.  We will not disclose which of the casebook authors cannot say the same about themselves.


“Shareholder Proposal Settlements and the Private Ordering of Public Elections”

Sarah Haan has posted this draft on SSRN (forthcoming, Yale Law Journal). Here is the abstract:

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections – and particularly what is known about corporate “dark money” – comes from disclosures that conform to privately-negotiated contracts.

The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8 – and potentially the rights of other shareholders – for a privately-negotiated social policy commitment by corporate management. Settlements of campaign finance disclosure proposals have been memorialized in detailed private agreements that set the frequency, format, and substance of disclosure reports, are enforced by private actors, and typically are not available to other shareholders, corporate stakeholders, or the public. Proposal settlements are producing a body of private disclosure law that increases corporate transparency to advance First Amendment values, and is exempt from First Amendment scrutiny. The private disclosure standards themselves are a mixed bag: effective at filling some gaps in public campaign finance disclosure law, but inadequate to make corporate electoral spending transparent in advance of elections.

As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as “voluntary” corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward.

I heard Sarah present this at a conference a few months ago and look forward to reading this draft!


Breaking: In Major Decision, Federal Court Blocks Cutback in Ohio Registration/Early Voting “Golden Week”

In a 120-page opinion, [new working link] a federal district court has held that the Ohio legislature’s elimination of “Golden Week,” a week in which Ohio voters could both register to vote and cast an early ballot at the same location, violates both the 14th amendment of the Constitution and section 2 of the Voting Rights Act. This is a big victory for Marc Elias and the Democrats which brought this suit (over much handwringing by some in the voting rights community).  Democrats have relied heavily on Golden Week in the past and fought the Ohio Legislature (dominated by Republicans) to keep it. The theories accepted by the trial court are sure to be controversial, and it is not clear how they will fare in the 6th Circuit. However, the Sixth Circuit has among the most pro-voting rights views of both constitutional and voting rights theories (see the discussions around pages 21 and 31 here). The case could well go en banc to the Sixth Circuit, especially because of a potentially likely 4-4 split at the Supreme Court, leaving the Sixth Circuit as likely the last word on the meaning of the Constitution and the Voting Rights Act in the area covered by the Sixth Circuit for this election.

When you combine this case, the North Carolina voting case (currently on fast track appeal to the 4th Circuit) and the Texas voter id appeal (heard today by an en banc court in the 5th Circuit), along with two additional challenges to Wisconsin’s voter id law (which was upheld by the 7th Circuit, after a 5-5 split over whether to take that case en banc), there is sorely a need for clarification of the scope of Section 2 when it comes to the “new vote denial” cases. Yet the Scalia-less and Garland-less Court may not be in a position to take these cases now, in that they may split 4-4 on their resolution. It just shows a cost of the vacancy right now.

While the court accepted the attack on the elimination of Golden Week, it rejected plaintiffs’ other challenges, such as those as to the number of early voting sites per county and availability of DRE voting machines. The court rejected these other challenges, finding there was either no burden or the minimal burden was justified.

One interesting question is why the court focuses so heavily on the impact of these Ohio laws on African-American voters during the part of its analysis applying the Anderson/Burdick balancing test.  All of this seems more germane to the Voting Rights Act arguments.

On the Voting Rights Act section 2 claim (the issue that has come up in NC, WI, TX and here), the Court follows Sixth Circuit precedent on how to measure the burden, and also makes clear (1) that what other states do should be irrelevant to the analysis and (2) the “non-retrgoression” standard of Section 5 should not be imported into Section 2.  In other words, in deciding whether Golden Week’s cutback violates the VRA, it doesn’t matter if places like New York have much more restrictive voting, and just because Ohio offered more in the past does not mean it can never cut back on its voting rules. Both of these points have been hotly debated in the cases and commentary. On the elimination of Golden Week, the Court piggybacks its constitutional analysis to find a burden on African-American voters which is not justified.

And now a bit more on the judge’s ruling today.

  1. The judge found that the elimination of golden week was a minor and not a major burden on voting, but the court found a disparate impact. “The elimination of the extra days for EIP voting provided by Golden Week will disproportionately burden African Americans, as expert and anecdotal evidence reflects that African Americans vote EIP, and specifically EIP during Golden Week, at a significantly higher rate than other voters….Moreover, to the extent the voters who would have voted during Golden Week choose to vote on other early voting days or on Election Day, that will likely result in longer lines at the polls, thereby increasing the burdens for those who must wait in those lines and deterring voting.”
  2. Further, “The opportunity for SDR during Golden Week alleviated the costs to voters of having to register and vote at separate times. Indeed, it may be more difficult for voters with time, resource, transportation, and childcare restraints to make two separate trips to register and vote, and Golden Week allowed individuals to do both at once.”
  3. “In so finding, the Court, as in N.A.A.C.P. v. Husted, is mindful of the numerous opportunities to cast a ballot in Ohio, including vote by mail, in person on Election Day, and on other EIP voting days. Similar to N.A.A. C.P. v. Husted, however. the Court finds that while these opportunities mitigate some of the burdens imposed by S.B. 238, the record reflects that they do not eliminate or significantly decrease those burdens. Specifically, the anecdotal evidence suggests that voting by mail is not viable alternative to EIP voting for many African Americans. First, the record reflects that African Americans are distrustful of voting by mail.”
  4. On the state’s interests in imposing the “modest” burden: “Having found that S.B. 238 imposes a modest burden on the right to vote of African Americans in Ohio, the Court must apply the Anderson/Burdick standard to weigh that burden against the precise interests offered by Defendants as justifications for that burden….First, while the record includes general opinion evidence that Golden Week increases the opportunity for voter fraud, see Tr. Trans. 112, ECF No. 104 (Damschroder); Tr. Trans. 253, ECF No. 103 (Ward); DX 15 at 15 (Hood Rep.), actual instances of voter fraud during Golden Week are extremely rare.” “Defendants’ cost justification also fails to outweigh the burden imposed by S.B. 238. First, cost savings from the elimination of Golden Week are minimal.” After rejecting an “administrative burden argument, the court concluded: “Finally, Defendants have adduced insufficient evidence in support of their final justification for S.B. 238-increasing voter confidence and preventing voter confusion-citing only two elections officials’ concerns that voters could become confused about deadlines for registration as a result of Golden Week. See, e.g.,Tr. Trans. 98, ECF No. 102 (Munroe). Defendants adduced insufficient evidence of actual voter confusion to substantiate those concerns.”
  5. The court rejected a one location per county rule for early voting as a constitutional violation (I’m quite critical of Ohio’s justification for this as explained in When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”, 2015University of Chicago Legal Forum 193 (2015)).
  6. On the Voting Rights Act section 2 claim, the court concludes: “Having considered all of the Senate Factors and the totality of the circumstances, the Court agrees with the reasoning in N.A.A. C.P. v. Husted I and N.A.A.C.P. v. Husted If and concludes that S.B. 238 interacts with the historical and social conditions facing African Americans in Ohio to reduce their opportunity to participate in Ohio’s political process relative to other groups of voters and that Plaintiffs have succeeded on a§ 2 claim. N.A.A.C.P. v. Husted II, 768 F.3d at 556-57 (“African Americans’ lower-socioeconomic status in turn plays a key role in explaining why the disproportionate impact of SB 238 and Directive 2014-17 burdens African Americans’ voting opportunities.”); N.A.A.C.P. v. Husted I, 43 F.Supp. 3d at 849-50 (finding the plaintiffs showed a strong likelihood of success on their § 2 claim).”
  7. The court rejected a finding that Ohio engaged in intentional racial discrimination in eliminating Golden Week, obliquely wading into the “race or party” question: “It requires too much speculation to find that the historical background of the challenged decisions or the sequence of events preceding the state action show a racial motivation. Indeed, Plaintiffs seem to argue more that it was Democratic successes in 2008, rather than racial bias, that prompted the General Assembly and Secretary Husted to take the challenged actions.”
  8. The court rejected a number of other claims, including the “partisan fencing” claim, which is a way to raise the race or party question a bit more directly.

[This post has been updated.]


“Why the Virginia GOP Can’t Thwart McAuliffe on Voting Rights”

Andrew Cohen for the Marshall Project:

Those who object to the restoration of these voting rights, Howard told us, are conflating Gov. McAuliffe’s duty to individually communicate his reasons for a pardon with his more expansive authority to restore voting rights to those already pardoned. From Howard:

Whatever limit, if any, Article V, Section 12, might be thought to place on the Governor’s actions as to remissions, grants, and commutations, it places none whatever on his decision to remove political disabilities. Such decisions lies within his discretion. He clearly has authority, under the Constitution, to remove disabilities from classes of people, as well as to act in individual cases.

The professor also answered another important question to keep in mind as this lawsuit proceeds. The men and women to whom Gov. McAuliffe has restored voting rights cannot have those rights taken away by a subsequent governor who disagrees with the current governor’s views on disenfranchisement. Nor can this group of Virginia citizens have their voting rights taken away by lawmakers. More from Howard:


“Judge Merrick Garland and the rise of super-PACs”

Steve Weissman in The Hill:

As the White House pursues its public campaign to persuade the Senate to consider Garland’s nomination, it should ask him to explain to senators and the public why he joined the SpeechNow opinion and what he thinks now of the results. Democratic presidential candidates, who may have to make their own decision by November about whether to support his nomination, should make similar requests. Americans deserve to know more about how this Supreme Court nominee thinks about one of the central issues for the 2016 election and American democracy.


“Can Gerrymanders Be Measured? An Examination of Wisconsin’s State Assembly”

Jon Krasno, Daniel Magleby, Michael D. McDonald, Shawn Donahue and Robin Best have posted this draft on SSRN, just as the Wisconsin gerrymandering trial gets underway. Here is the abstract:

In July, 2015 a group of Wisconsin Democrats filed a federal lawsuit claiming that the state’s Assembly map adopted after the 2010 census discriminates against Democrats by systematically underweighting their votes relative to Republicans. This claim of a constitutional violation rooted in the 14th Amendment offers judges a rationale to constrain partisan gerrymandering – provided the plaintiffs can produce objective and compelling evidence that a gerrymander has been created. In this paper we evaluate the Wisconsin Assembly map using a pair of methods proposed to detect and measure gerrymanders, the “efficiency gap” measure employed by the plaintiffs in Wisconsin and the median-mean comparison proposed by the authors. Additionally, we use an innovative new procedure to produce a comparison set of 10,000 neutral maps drawn by computer. The results show that the Assembly map in Wisconsin is clearly a fairly egregious gerrymander using the median-mean comparison but not via the efficiency gap calculation. We examine the measurement qualities of the efficiency gap to explain its shortcomings, especially in Wisconsin, and review the remaining evidence to conclude that Wisconsin’s Assembly map is the substantial pro-Republican gerrymander that the plaintiffs claim it to be despite dubious results using the efficiency-gap calculation.


Judge Sri Srinivasan on 3-Judge Court Considering Major Soft Money Challenge

Bloomberg BNA:

A three-judge federal district court considering a challenge to rules restricting “soft money” contributions to political parties will hold a June 24 hearing to consider whether to go ahead with the case (Republican Party of La. v. Federal Election Commission, D.D.C., No. 15-cv-1241, order, 5/20/16).
The hearing, set by a May 20 court order from the U.S. District Court for the District of Columbia, will take place before U.S. Circuit Judge Sri Srinivasan and U.S. District Judges Christopher Cooper and Tanya Chutkan. They are expected to hear from attorney James Bopp, who has challenged party contribution limits, and attorneys for the Federal Election Commission, which is defending the limits.
The court order said the hearing will address pending motions for summary judgment as well as an FEC motion to dissolve the three-judge court. In that motion, the FEC sought to derail the soft-money challenge before the case is put on a fast track to the U.S. Supreme Court (4255 Money & Politics Report, 5/10/16).
The soft-money challenge was brought by Bopp, a prominent Republican election lawyer with the Bopp Law Firm in Terre Haute, Ind., on behalf of the Louisiana Republican Party and two local Republican committees.
If I am seeing this right, this is three Obama appointees for this panel, which has got to be a pretty good draw.
But the real action in this case, assuming it is not dismissed on standing grounds, is at the Supreme Court. See my piece in The Atlantic, The Supreme Court”s Next Big Fight Over Big Money in Politics.

“Why the Fifth Circuit’s Decision This Week Could Decide the Fate of Texas’ Voter ID Law”


On Tuesday a federal appeals court will take a second look at Texas’ controversial voter ID law. It’s one of the biggest voting rights battles ahead of this year’s presidential election, and a ruling from this court could be a final say on whether the state’s law is in violation of the Voting Rights Act.

This will be the second time the Fifth Circuit Court of Appeals hears the case Veasey v. Abbott. This time, all 15 active judges on the court will weigh in. The case was brought by a coalition of Texas voters and civil rights groups who say a state law requiring photo ID at the polls is unconstitutional.

I will post a link to the oral argument recording when it is available.


Big Money Affects All Candidates Besides Me Dep’t


But during the lead-up to this year’s New Hampshire primary, Mr. Trump repeatedly pointed to Mr. Johnson as an example of the type of donor whose special interest money he was not interested in.

“First of all, I actually feel that I could run the same kind of campaign that I ran before,” Mr. Trump said, when asked about the old remarks. He spent comparatively little money in the primaries, which he lent his campaign or raised in smaller contributions, as people like Mr. Bush burned through tens of millions of dollars. “But we’re raising money for the Republicans, for the R.N.C., for Congress and the Senate.”


Va Redistricting Case Roundup


he Court also ruled today in Wittman v. Personhuballah, finding that the members of Congress who intervened to defend Virginia’s congressional redistricting plan do not have standing to appeal. Coverage comes from Lyle Denniston for this blog, Adam Liptak of The New York Times, Lydia Wheeler of The Hill, Richard Wolf of USA Today, Robert Barnes of The Washington Post, Jess Bravin of The Wall Street Journal, and Debra Cassens Weiss of ABA Journal.

Commentary comes from Rick Hasen at Election Law Blog, Ian Millhiser of ThinkProgress, Greg Stohr of Bloomberg, Libby Nelson of Vox, and Mark Joseph Stern of Slate, who also covered today’s opinion in Green v. Brennan in the same article.


“Getting a photo ID so you can vote is easy. Unless you’re poor, black, Latino or elderly”

Sari Horwitz for WaPo:

In November, 17 states will have voting restrictions in place for the first time in a presidential election. Eleven of those states will require their residents to show a photo ID. They include swing states such as Wisconsin and states with large African American and Latino populations, such as North Carolina and Texas. On Tuesday, the entire 15-judge U.S. Court of Appeals for the 5th Circuit, in New Orleans, begins hearing a case regarding the legality of the Texas law, considered to be the most stringent in the country.

Supporters say that everyone should easily be able to get a photo ID and that the requirement is needed to combat voter fraud. But many election experts say that the process for obtaining a photo ID can be far more difficult than it looks for hundreds of thousands of people across the country who do not have the required photo identification cards. Those most likely to be affected are elderly citizens, African Americans, Hispanics, and low-income residents.


2016 Supplement for Lowenstein, Hasen, and Tokaji Election Law Casebook Coming in time for Fall Classes


Election Law, Fifth Edition: 2016 Supplement

by Richard L. Hasen, Daniel Hays Lowenstein, Daniel P. Tokaji

Forthcoming August 2016 ISBN: 978-1-5310-0089-9

Tags: Election Law

The 2016 Supplement to the fifth edition of Election Law: Cases and Materials is up to date through the end of the Supreme Court’s October 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act.

This year’s supplement covers recent redistricting cases from Alabama, Arizona, Texas, and Virginia, including Evenwel v. Abbott, the latest word on the meaning of one person, one vote. The supplement also considers new developments in voting rights, including ongoing lawsuits over voter identification, early voting, and voter registration, as well as litigation over citizenship requirements under the Elections Clause following the Supreme Court’s opinion in Arizona v. Inter Tribal Council. Finally the supplement covers the Court’s decision in Susan B. Anthony List v. Driehaus regarding false campaign speech.

This Supplement Accompanies:

Election Law jacket

Election Law: Cases and Materials, Fifth Edition

by Daniel Hays Lowenstein, Richard L. Hasen, Daniel P. Tokaji

Add to cart

2012, 1012 pp, casebound, ISBN: 978-1-61163-178-4$115.00Electronic Teaching Materials available

Complimentary Copy RequestIf you are a professor teaching in this field you may request a complimentary copy.


“First on CNN: Virginia Gov. Terry McAuliffe under federal investigation for campaign contributions”


Virginia Democratic Gov. Terry McAuliffe is the subject of an ongoing investigation by the FBI and prosecutors from the Justice Department’s public integrity unit, U.S. officials briefed on the probe say.

The investigation dates to at least last year and has focused, at least in part, on whether donations to his gubernatorial campaign violated the law, the officials said.
McAuliffe wasn’t notified by investigators that he is a target of the probe, according to the officials.
“The Governor will certainly cooperate with the government if he is contacted about it,” said Marc Elias, attorney for McAuliffe campaign, in a statement to CNN.

“Critics argued with our analysis of U.S. political inequality. Here are 5 ways they’re wrong”

Gilens and Page:

In 2014 we published a study of political inequality in America, called “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens.” Our central finding was this: Economic elites and interest groups can shape U.S. government policy — but Americans who are less well off have essentially no influence over what their government does. This was in line with a good deal of previous research by Larry Bartels, Martin Gilens, Larry Jacobs and Benjamin Page, Elizabeth Rigby and Gerald Wright, and others. But for some reason, our paper caught the media’s attention in a way that few academic journal articles do.

Since then, a number of questions and criticisms have been raised about our work — some offering sensible critiques and alternative perspectives and others simply mistaken. We have responded in print to some of these, and will list some of those responses at the end of this post. Here we will respond briefly to the most important challenges to our research. In brief, we don’t believe that any of these critiques, individually or collectively, undermine our central claims.


“Will Democrats Try To Beat Trump By Discouraging Conservative Voters?”

I have written this new piece for Talking Points Memo. It begins:

Democrats love to talk about Republican voter suppression, and various ways, such as strict voter identification laws, that have been employed to keep Democrats from registering and casting effective votes. But ironically, the path to Democratic victory in November could be to adopt some methods to depress the Republican vote, specifically to encourage conservatives to stay home on Election Day or to vote for third party candidates. This may be an unsavory tactic but smart politics. The better long-run solution for Democrats is automatic voter registration, or even mandatory voting.

There’s a long tradition of trying to push down the turnout of one’s opponents. Back in 2010, Democrats and progressives denounced ads from a Republican front group, “Latinos for Reform,” which urged Spanish-speaking Latino voters “¡No votes!” (or “Don’t Vote”) in upcoming congressional elections. The ad’s pitch was that President Obama and Democratic voters had not done enough on immigration reform to deserve Latino votes and that these voters should stay home.

The ads seemed aimed at depressing Democratic turnout in congressional elections in order to help Republicans. The person behind Latinos for Reform, Robert de Posada, was a former official for the Republican National Committee who opposed President Obama’s immigration policies. The largest donor to Latinos for Reform was a non-Latino pro-life activist living in Southern California.

Democrats could easily follow a similar strategy in November. Republican and conservative voters have very negative views of Hillary Clinton, and it seems unlikely that any amount of advertising or persuading will get many of these voters to vote for her. But these same voters are ill at ease with Donald Trump, who has not always (and still does not always) take conservative positions on issues that these voters care about.

It is easy to imagine Democratic Super PACs and non-disclosing 501(c)(4) groups running ads aimed at these voters in swing states such as North Carolina, Florida, and Ohio highlighting Donald Trump statements indicating his earlier support for abortion rights and his current support for some of Planned Parenthood’s work; Trump’s comments on same-sex marriage and the rights of transgender people in the current disputes over bathroom access; and Trump’s views on taxes and the economy. Every conservative who stays home helps Democratic candidates.


“Assembly Republicans sue McAuliffe over mass rights restoration order”

Richmond Times-Dispatch:

Republicans in the Virginia General Assembly will file suit later today in the Supreme Court of Virginia challenging Gov. Terry McAuliffe’s authority to order a mass restoration of rights April 22, covering more than 200,000 former felons.

The lawsuit, led by Speaker of the House William J. Howell, R-Stafford, and Senate Majority Leader Thomas K. Norment, Jr., R-James City, argues that McAuliffe exceeded his executive authority under the state constitution when he issued the April 22 order.

The suit petitions the state’s highest court to stop implementation of the order, and any subsequent mass rights restoration actions taken by the governor.


“If Citizens United Falls, Will Progressives Notice?”

Brad Smith in the Atlantic:

Notable, however, was that the Supreme Court’s progressive wing dissented not merely from the judgment, but from the grant of certiorari itself, because there was no “significant possibility of reconsideration” of Citizens United by the majority. The Court’s progressive wing, lacking the votes to overturn the Citizens United precedent, would not even concede that the decision, until overruled, should be enforced.

So Citizens United appears to be a goner at the first opportunity. But how much difference will that make? Much less than people think.


Breaking: Unanimous Supreme Court Dismisses Va. Racial Gerrymandering Case on Standing Grounds, Making No New Voting Law

The Supreme Court has decided Wittman v. Personhuballah, ruling against members of Congress on standing grounds. The lower court found that the congressional plan was an unconstitutional racial gerrymander, and the members of Congress challenged this holding.

In a short unanimous opinion (8 pages including the syllabus), Justice Breyer held that these members of Congress lacked standing. By deciding the case on standing grounds, the Court was able to avoid saying anything new about the racial gerrymandering cause of action it revived in a surprising way last term in a case from Alabama.  (See my analysis in Racial Gerrymandering’s Questionable Revival, part of an Alabama Law Review symposium on the 50th Anniversary of the Voting Rights Act.)

There are other racial gerrymandering cases working their way to the Court, including one from North Carolina. The Alabama case remains pending before the three-judge court on remand.

So how did the Court get to a unanimous opinion here? Well, combine the conservatives’ tough line on standing with the liberals’ likely belief that the lower court got it right on the merits that the Va. legislature took race too much into account in drawing districts which packed African Americans and helped Republicans get elected to Congress and you have he recipe for compromise. Add to that combination the fact that the Breyer opinion decides almost nothing. It leaves open the question whether a member of Congress might have standing to challenge a congressional districting plan if there were proof it would hurt his or her chances of reelection. In this case, the Court said there was no such evidence from those members who argued they had standing.

With this decision, the only remaining election law case of the current term is the Gov. McDonnell corruption case, another case out of Virginia. That one will likely await near the end of the term, even if it is also unanimous.  It was argued the last day of the term.

[This post has been updated]


“Deadlock and Ominous Uncertainty at the FEC”


The FEC has once again deadlocked on an enforcement case and left an important question dangerously open.  Months ago, the FEC could do nothing useful with a case about the use of LLCs to make contributions.  Now it is inviting trouble, and not for the first time, with a case about how hard a corporation may press its employees to support the employer’s political program.

In the recent case, the FEC was forced by the usual 3-3 division to dismiss a complaint that a company pressured employees to make political contributions to its PAC and favored candidates.  The question before the agency was whether to investigate. There were reasons, including internal company documents.  In one of them, the company advised managers that “we have been insulted by every salaried employee who does not support our efforts.”  There was a press report recounting the experience of unnamed employees with coercive practices, and one employee put her complaint on the public record as part of a wrongful termination action.

It cannot be known if, on investigation, the FEC would have found enough to support a conclusive finding of violation.  The dissenting Commissioners who declined to support further inquiry may have had their so far unexplained reasons.  But with the dismissal of the Complaint and nothing more heard from the agency, the regulated community has a fresh signal of either Commission paralysis on an issue of central importance, or of ominous possibilities now available to employers in soliciting political contributions from their eligible managerial ranks.


“Bernie Sanders supporters sue to have California’s voter registration extended until election day”


A federal lawsuit alleging widespread confusion over California’s presidential primary rules asks that voter registration be extended past Monday’s deadline until the day of the state’s primary election on June 7.

“Mistakes are being made,” said William Simpich, an Oakland civil rights attorney who filed the lawsuit Friday.

At issue is whether voters understand the rules for the presidential primary, which differ from those governing other elections in California….

Neal Kelley, registrar of voters in Orange County and president of the state association of elections officials, said that about 23% of his county’s “no party preference” voters have asked for partisan ballots. And he said that the outreach effort was carefully planned.

“Counties have been gearing up for this for well over a year,” Kelley said.

While he would not comment on the allegations contained in the federal lawsuit, Kelley said it’s not possible for elections officials to register voters on election day. California has plans to move to a “same-day registration” system in 2018 after certifying its new statewide voter database.

In the meantime, the current elections process relies on paper documents at each polling place listing eligible voters.

“The infrastructure’s not in place,” said Kelley.


“Possible Conflict at Heart of Clinton Foundation”

Al Hunt:

The Clintons have been targeted by accusations of wrongdoing from Whitewater to Benghazi. There also are self-inflicted wounds: President Bill Clinton’s dalliance with Monica Lewinsky and Hillary Clinton’s use of private email servers while secretary of state.

They may be on the verge of creating another one: The Clinton Foundation, which has done a number of good works over the past 15 years, would appear to present an inherent conflict of interest should Mrs. Clinton become president, and possibly does even now with her as a candidate.

Mrs. Clinton has suggested that if she is elected, the foundation — which collects contributions from wealthy interests, including foreign governments — would continue basically as is. “The work that it’s done has been extraordinary,” she said in March when asked whether there would be any ethical concerns about continuing the foundation. “The answer is transparency.”

Ethics experts reject that answer. They say there wouldn’t be any way to avoid the appearance of conflicts if she wins the presidency.


“Maryland Gov. Larry Hogan should veto the Anne Arundel student nomination”

J.H. Snider for WaPo:

In Anne Arundel County, the student member of the Board of Education has the same voting rights as the adult members. For a school system with more than a $1.1 billion operating budget, 10,000 employees and 80,000 students, that’s substantial power.

As of July 1, Anne Arundel’s school board is likely to be divided equally among its adult members by party identification. By then, Gov. Larry Hogan (R) will have appointed four of its eight adult members.

The result is that the next student member of the board will potentially be the board’s swing vote. That is, the student member could be not only one of nine votes, but the decisive vote, just as Anthony Anthony Kennedy often is on the nine-member Supreme Court.


“Symposium 2015: 50th Anniversary of the Voting Rights Act.”

Alabama Law Review, Vol. 67, Issue 2:

Symposium 2015: 50th Anniversary of the Voting Rights Act.

Richard L. Hasen, Racial Gerrymandering’s Questionable Revival, 67 Ala. L. Rev. 365 (2016).

Samuel Issacharoff, Voting Rights at 50, 67 Ala. L. Rev. 387 (2016).

Pamela S. Karlan, The Alabama Foundations of the Law of Democracy, 67 Ala. L. Rev. 415 (2016).

Franita Tolson, What is Abridgment?: A Critique of Two Section Twos,  67 Ala. L. Rev. 433 (2016).

Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Reynolds Reconsidered, 67 Ala. L. Rev. 485 (2016).

Jack Bass, The Selma March and the Judge Who Made It Happen, 67 Ala. L. Rev. 537 (2016).


“FEC Deadlocks on Murray Energy Coercion Case”

Bloomberg BNA:

The Federal Election Commission deadlocked on whether to investigate charges that coal company owner Robert Murray violated campaign finance laws by coercing employees to make campaign contributions, according to documents released May 20.
The action on Murray and his Ohio-based Murray Energy Corp. followed a similar deadlock last year over charges that employees and their families were required to attend a 2012 rally for Republican presidential candidate Mitt Romney (4059 Money & Politics Report, 7/27/15).
The three FEC commissioners holding Democratic seats issued a May 20 statement sharply criticizing their three Republican colleagues for voting to dismiss the latest case, designated Matter Under Review (MUR) 6661.
“This case of political coercion in the workplace reverberates beyond the realm of U.S. elections,” said the statement from FEC Democrats Ann Ravel and Ellen Weintraub, along with FEC Vice Chairman Steven Walther, an independent who holds a Democratic FEC seat.
The Murray case “goes to the very core of the relationship between employer and employee,” the three commissioners added. “Every citizen should feel free to give—or not to give—to the candidates and political causes of their choice, inspired by their own convictions, and free from outside pressure or coercion.”
The three Republican FEC commissioners—Chairman Matthew Petersen and Commissioners Lee Goodman and Caroline Hunter—did not issue a statement on the matter.

“We must weed out ignorant Americans from the electorate”

Truly reprehensible WaPo oped from David Harsanyi:

Now, if voting is a consecrated rite of democracy, as liberals often argue, surely society can have certain minimal expectations for those participating. And if citizenship itself is as hallowed as Republicans argue, then surely the prospective voter can be asked to know just as much as the prospective citizen. Let’s give voters a test. The citizenship civics test will do just fine….

Of course, we also must remember the ugly history of poll taxes and other prejudicial methods that Americans used to deny black citizens their equal right to vote. Any effort to improve the quality of the voting public should ensure that all races, creeds, genders and sexual orientations and people of every socioeconomic background are similarly inhibited from voting when ignorant. For the good of our democratic institutions.

In the United States, all eligible citizens have an equal right to cast a vote which will be fairly and accurately counted. It is not up to people like Harsanyi to decide who knows enough (or whose English is good enough) to answer questions he’d like answered before he’d deem to give his equals the franchise.


“Testimony: Minorities bear brunt of voter ID law”

Milwaukee Journal-Sentinel:

Minority voters represent a big share of those seeking free photo IDs under the state’s new voter ID law and may also make up the great majority of those who experience the most problems getting one, under figures that emerged in a federal trial this week.

In testimony and filings in the trial before U.S. District Judge James Peterson, the plaintiffs said that blacks and Latinos make up 44% of those seeking a free ID to ensure they can vote but only 9% of the overall voting age population in Wisconsin.

Minorities may also make up the lion’s share of those who struggle to get a photo ID, according to a small sample of voters who lacked the key documents needed to obtain one.

The plaintiffs in the case said that of the 30 such cases they could obtain from the state Division of Motor Vehicles, 84% are for a black or Latino petitioner.


“State review finds ‘significant’ irregularities in Baltimore election”

Baltimore Sun:

About 1,000 more votes were cast during Baltimore’s primary election than there were voters who checked in at the polls, an ongoing state review has found.

State elections officials said Thursday that workers examining Baltimore’s election have uncovered “significant” problems. They have found more than 450 provisional ballots that were not considered by election judges. And nearly 800 provisional ballots — given to voters whose eligibility is in question — were improperly counted before eligibility was verified, officials said.

Most of the problems were caused by untrained judges scanning ballots into the system that they shouldn’t have, said Linda H. Lamone, Maryland’s elections administrator. The state might not get to the bottom of every problem, she told the State Board of Elections.

“There will be precincts that cannot be explained,” Lamone said. “We don’t know what happened. The numbers simply don’t match.”


“Judge: No conspiracy in Libertarians’ bump from Ohio ballot”


A federal judge delivered a legal victory Friday to Ohio’s elections chief and a voter sued by Libertarians for their roles in disqualifying the party’s gubernatorial candidate from 2014 fall ballots.

A lawyer for the Libertarian Party of Ohio said the party plans to appeal.

The party sued Secretary of State Jon Husted and voter Greg Felsoci, alleging they were part of a scheme to selectively enforce Ohio election law to help Republican Gov. John Kasich‘s re-election bid. At the time, the third-party gubernatorial candidacy of Libertarian Charlie Earl was seen as potentially drawing votes from Kasich, who later easily won re-election.


Journalism Works Dept: LA Times Story on American Independent Party Gets Results


A new analysis finds nearly 32,000 voters in California’s American Independent Party changed their official registration and left the party in the two weeks after a Los Angeles Times investigation identified widespread confusion among the party’s members.

The change comes after a series of stories last month about voters who had intended to be politically independent, what’s known in California as having “no party preference.” A poll conducted for The Times found 73% of American Independent Party members did not know they had registered with an actual political party.


“Voters’ clashing options: speed executions or abolish them”

Bob Egelko for the SF Chronicle:

Prosecutors, law enforcement groups and victims’-rights advocates turned in 593,000 signatures for the initiative, which would attempt to fix a system plagued by delays and high costs by tightening legal deadlines and requiring more lawyers to take capital cases. Last month, opponents of the death penalty submitted 601,000 signatures for an initiative to repeal capital punishment and replace it with life in prison without parole. Each measure needs 365,880 valid signatures to qualify for the ballot.

A recent Field poll indicated that Californians were closely divided, with 48 percent in favor of speeding up executions and 47 percent preferring to eliminate them. If both measures win majority votes, a provision in the pro-death penalty initiative says only the one receiving more votes would become law. That has been the rule for conflicting ballot measures in the past, but a leader of the campaign to abolish the death penalty argues that a majority vote for the repeal measure would override any vote for the rival proposal.

“If we repeal the death penalty, they (supporters of the speedup measure) will be modifying procedures for a policy that no longer exists,” said Quintin Mecke, deputy campaign manager for the repeal initiative.

But an expert on election laws said he thinks the courts will uphold whichever measure passes by a higher majority.

“The usual rule is, if they’re in conflict, the one that gets more votes would be the winner,” said Rick Hasen, a UC Irvine law professor. State courts have focused on whether two ballot measures are actually in conflict, he said, and “I don’t see how you can both speed up something and abolish it.”