All posts by Rick Hasen

Announcing the New Fair Elections and Free Speech Center at UCI Law

I’m delighted to share the news, scooped by Politico, that my UCI Law colleague David Kaye and I have started the Fair Elections and Free Speech Center at the law school. Why such a Center?

As I state in our opening press release, American democracy is under increasing strain, and the 2020 election exacerbated threats to the rule of law and to public confidence in fair elections. Much of that is thanks to the rise of social media. The new Center will look at what’s wrong, and what can be done, to strengthen democratic institutions in the U.S. and around the world.

And as David Kaye says, ““We are launching the Center at a moment when democratic participation is under attack not only in the United States but worldwide. In addition to a domestic focus rooted in the fundamentals of American law, we will bring a global perspective, using human rights norms to research and advocate for freedom of expression and public participation as central pillars of democratic societies.”

As we explain at the Center’s website:

Established in 2021 after the contentious 2020 U.S. Presidential elections, which culminated in the dangerous January 6, 2021 insurrection in the United States Capitol, the Fair Elections and Free Speech Center at UCI Law is unique in its focus among U.S. and global institutions. It is dedicated solely to advancing an understanding of, and offering means to counter, threats to the stability and legitimacy of democratic governments exacerbated by the unregulated growth of digital media and other technological changes in mass communication. The Center will facilitate deep scholarship on American law, politics, and democracy as well as on global norms and institutions.

We have assembled a world-class advisory board to help guide our mission, which is to strengthen democracy and the rule of law in the digital age both in the U.S. and around the world. I’m blown away by the folks who signed on to advise us.

And we are going to hit the ground running, with a series of free, virtual events, open to all in the fall. Among the most important events is a conference on Election Subversion, on Friday Sept. 24. Speakers include Georgia SOS Brad Raffensperger. Here’s the tentative agenda:

The Fair Elections and Free Speech Center will also have a three-part lunch series on challenges in global elections, beginning w a Sept. 1 event looking at disinformation in elections in Uganda, Israel, and the Netherlands.

will also have a three-part lunch series on disinformation in American elections. One panel features Michigan Secretary of State Jocelyn Benson and Orange County Registrar Neal Kelly. Others will feature social scientists and law profs.

I’m also excited to moderate a Fair Elections and Free Speech Center conversation on Sept. 9, Is the U.S. Constitution Up to the Task of Preserving American Democracy?, with Jack Balkin, Michele Goodwin, and Michael Klarman.

We have much bigger plans for the Center going forward, as we begin our building and fundraising efforts. David Kaye and I cannot thank former UCI Law Dean Song Richardson enough for her early leadership on this project, and the tremendous law school staff.

You can watch this video, in which David Kaye and I explain why we started the Fair Elections and Free Speech Center, and what we hope to do:

Share this:

Has the Federalist Society Booted Insurrectionist John Eastman from His Leadership Role in the Organization, Or Just Hidden His Role?

This weekend I tangled with some folks on Twitter because I had the temerity to tweet “Read this @Slate” with a link to Nicholas Wallace’s piece urging a boycott of the Federalist Society because it has not taken any actions to remove those in leadership positions who supporting Trump’s attempt to steal the election in 2020 or the violent insurrection in the Capitol.

I asked why the Federalist Society in particular did not disavow John Eastman, the former Chapman professor who represented Trump in his legally and factually frivolous and dangerous lawsuits to try to overturn the results of the election and who appeared at the Jan. 6 rally just before the insurrection. When the response I got was the the Federalist Society cannot police its members for orthodoxy, I wrote, “So what? There are some things beyond the pale and deserving condemnation. If @fedsoc had in leadership a Nazi sympathizer, you would rightly demand condemnation or quit.”

After writing this, someone sent me a direct message asking if I confirmed that John Eastman was still in a leadership position at FedSoc. (He was chair of the Federalism and Separation of Powers Practice Group—some apologists responding on Twitter tried to say this is not “really” a leadership position but it seems pretty prominent to me.) I had not heard that there had been a change in Eastman’s status, but there’s been an interesting change to his profile. Here’s how his profile read as recently as this March:

And here is how his profile reads now:

Was he removed, following controversy over how to treat people like him within FedSoc? Or are they just trying to hide his involvement in a leadership role, while still listing him as a contributor?

I understand from the person who contacted me that FedSoc used to list the leaders of these practice groups on the website, but I can find no such list now.

If FedSoc did the right thing, one would hope they would take credit for it, rather than making the change in the middle of the night. Inquiring minds want to know.

Share this:

Guest Post/Poem from A Wuffle (footnotes by Bernie Grofman): Countdown to (VRA) Renewal

You can find the full text from A Wuffle (footnotes by Bernie Grofman) at this link.

*This essay in poetic form was written in 2006, two months prior to the congressional renewal of the VRA renewal. It is reproduced exactly as first written, except that a few outdated references were deleted and, in the present version, President Bush is changed to President Trump. To bring the essay more up to data without changing its original text, however, footnote annotations were added by Bernard Grofman, July 17, 2021. The original version was shared with a number of leading voting rights scholars.  In 2006 Wuffle was told that he was far too pessimistic; it was inconceivable that the Supreme Court could reject such as unconstitutional such a sacred icon as the Voting Rights Act. And, of course it didn’t, it merely made it unenforceable. Wuffle was also told that changing the trigger clause was politically infeasible, and that may well have been true. As we contemplate the hope of renewing the trigger clause in 2021, I (Bernard Grofman) believe that Wuffle’s  2006 advice on renewal remains as relevant today as it was in 2006.

Share this:

2021 Supplement to Lowenstein, Hasen, Tokaji, and Stephanopoulos, Election Law–Cases and Materials, Now Available (Includes Brnovich and AFPF Edited Cases)

The 2021 Supplement to Lowenstein, Hasen, Tokaji, and Stephanopoulos, Election Law–Cases and Materials (6th ed. 2017) is now available for free download at this link: https://electionlawblog.org/wp-content/uploads/2021-election-law-supp-final.pdf.

The 2021 Supplement is up-to-date through the end of the Supreme Court’s October 2020 term ending July 2021. The new material includes coverage of the Supreme Court’s most recent cases on the Voting Rights Act and vote denial (Brnovich), donor disclosure and the First Amendment (AFPF v. Bonta), campaign contributions (Thompson v. Hebdon), bribery (Kelly v. United States), and the Electoral College (Chiafalo v. Washington); discussion of controversies and litigation surrounding the 2020 election, and COVID-19-related election litigation and election administration changes; and a completely rewritten section on partisan gerrymandering, including an edited version of the Supreme Court’s June 2019 decision in Rucho v. Common Cause. It also includes coverage of cases and developments concerning the census, partisan gerrymandering, voter purges, voter identification laws, political apparel at the polling place, campaign finance, bribery, and Voting Rights Act challenges to redistricting.

(The 7th edition of the casebook will be published by Carolina Academic Press in January 2022 in time for Winter/Spring 2022 courses.)

Share this:

Two Ways to Get Election Law Blog Post Links on Twitter

I have long posted links to ELB blog posts on Twitter, but it was a manual process. We’ve now automated it, and there are two ways to keep up.

You can subscribe to my Twitter feed, @rickhasen. It will include automatically generated links to blog posts, beginning #ELB, along with all of my other content on twitter.

Some may not want all of my other content! If you want just the ELB links, you can subscribe to the new Election Law Blog Twitter feed, @electionlawblog. This account does not reply, retweet, or follow anyone back. It’s just an automated service.

(If you are old-fashioned, you can also use our updated RSS reader. Or subscribe to the daily email.)

Share this:

Wildenthal: Time for a DEFEND Act

The following is a guest post from Bryan Wildenthal:

In this time of extreme peril for voting rights and basic election integrity, and given Congress’s obvious inability to pass any major new federal voting or election provisions, I urge consideration of a simple, procedural, defensive bill I call the “DEFEND” (DEFend Elections and National Democracy) Act.

While perhaps a long-shot, I believe this could gain support even from senators who generally favor the filibuster, as it would not enact any new substantive federal policy or mandate, and indeed would promote (at the state level) the ideal of bipartisan consensus cited by filibuster supporters. At any rate, it’s worth trying.

I may have missed it, but has anything like this been discussed in election law circles?

For the proposed draft bill itself, see here — for my JURIST.org essay advocating and explaining it in more detail, see here — and see below for a brief summary of five key points:

#1. The DEFEND Act is carefully designed as nonpartisan, and purely defensive, even conservative (“federalist”) in nature. It would not enact any new federal mandate or policies on voting or elections. It merely works with existing state laws, and would require state legislatures to obtain minimal bipartisan support (at least one third of the members of each of the two largest parties represented in each state legislative house), for any new or amended state laws (since January 2021), affecting federal elections (to avoid tactical evasion, party affiliation could be defined as of the time of a member’s last election).

#2. The DEFEND Act would wipe out, at one swoop, all partisan state-level attacks on voting rights and election integrity passed since January 2021, and block any future legislation of that sort. It would also effectively block any partisan gerrymandering of Congress.

#3. The DEFEND Act would preserve the independent districting commissions in the ten states that currently have them, and protect them against legal challenges. It would encourage (but not require) other states to adopt such commissions. In states that haven’t and don’t, the bill would simply require bipartisan support for any new congressional district maps.

#4. Most Republicans will predictably oppose the DEFEND Act (even though it’s totally nonpartisan and fair), because they know, if they’re prevented from gerrymandering congressional seats based on the 2020 census (as they did after the 2010 census), they will lose the unfair partisan advantage they currently have.

#5. Given predicted partisan opposition, passing the DEFEND Act through Congress will require an extremely limited bypass or exception to the Senate “filibuster” rule. But it does not require abolishing or weakening the filibuster overall. As the JURIST essay explains, the DEFEND Act (which could bypass the filibuster on a “one-time-only” basis), is actually profoundly consistent with the philosophy of bipartisanship expressed by those (such as moderate Democratic Senators Joe Manchin and Kyrsten Sinema) who support preserving the filibuster overall. The DEFEND Act merely requires similar bipartisan consensus at the state level.

Share this:

Senator Mike Lee Demanded That Sen. Padilla and I Apologize for Saying Justice Alito’s Brnovich Decision Goes Against Textualism and Is Not Faithful to the Voting Rights Act; I Doubled Down on the Claim

This all happened at Wednesday’s Senate Judiciary Committee subcommittee hearing on voting rights after Brnovich and Shelby County.

You can watch Senator Padilla ask me the initial question in the video at the 2:56:42 mark.

Senator Lee’s rant, where he demands an apology for my analysis (and suggests the statement was made with reckless disregard for the truth and that Justice Alito is one of the finest Justices to ever serve on the Court) begins at the 3:03:19 mark.

My response (not from Senator Lee, but from Senator Blumenthal, the chair of the committee who asked me to respond) begins at the 3:25:46 mark.

Share this:

Senate Judiciary Committee Subcommittee Hearing: “Restoring the Voting Rights Act after Brnovich and Shelby County”

I’m looking forward to testifying at this hearing Wednesday:

Restoring the Voting Rights Act after Brnovich and Shelby County

Subcommittee on The Constitution

DATE:Wednesday, July 14, 2021ADD TO MY CALENDAR
TIME:02:30 PM
LOCATION:Dirksen Senate Office Building Room 226
PRESIDING:Chair Blumenthal

Check back for live video of this hearing.

WITNESSES


  1. Pro Richard Hasen Chancellor’s Professor Of Law And Political Science University of California, Irvine Irvine, CA
  2. Ms Janai Nelson Associate Director-CounselN AACP Legal Defense and Education Fund, Inc.N ew York, NY
  3. Mr. Jose Garza Law Office of Jose Garza San Antonio, TX
  4. The Honorable Ken Cuccinelli National Chairman Election Transparency Initiative Nokesville, VA
  5. Mr. T. Russell Nobile Senior Attorney Judicial Watch, Inc. Gulfport, MS
Share this:

Now Available: 2021 Teachers’ Update for Laycock & Hasen, Modern American Remedies (5th edition)

The 2021 Teachers’ Update to Laycock and Hasen, Modern American Remedies (5th edition) covers Supreme Court developments through the end of the October 2020 term, including cases touching on the standards for emergency injunctions, the rules for disgorgement, and nominal damages and mootness.  It also discusses current controversies such as disputes over presidential immunity, qualified immunity, universal or nationwide injunctions, and other interesting developments in the lower courts.

You can find and distribute the Teachers’ Update to the regular edition at this link.

You can find and distribute the Teachers’ update to the concise edition at this link.

Share this:

“Four Concrete Ways that Congress Can Act Against Election Subversion”

I have written this piece for Smerconish.com. A snippet:

Around the country, those who stood up to Trump’s attempts to subvert the will of the people in the 2020 elections are being replaced by those who repeat the “Big Lie” that the 2020 election was stolen for Trump. I’ve been studying election law for over 25 years, and I have seen no credible evidence that any state’s election results were fraudulent or illegal in the 2020 elections. Nonetheless, Republican candidates around the country have embraced the false claims, and they may be in a position to manipulate election outcomes in 2024.

Congress needs to step in now and stop the danger of election subversion. Before more moderate Republican Senators like Roy Blunt and Rob Portman retire, Congress needs to move bipartisan legislation pinpointed at this risk.

What should such targeted legislation look like? I see four main provisions that should be included in any bill to minimize the risk of election subversion….

Share this:

Letter in Support of Nomination of Myrna Perez for United States Circuit Judge for the Second Circuit

I rarely write such letters but felt compelled to write this one. A snippet:

From all of my observations, I can say that Ms. Pérez’s skills as a lawyer, advocate, and thinker are consistently excellent. She possesses a keen legal mind, understanding nuanced points of law and crafting fine-tuned legal arguments responsive to applicable legal standards and judicial precedent. She has deep respect for the rule of law and shows great appreciation for the role of the federal courts in both safeguarding rights and assuring fair procedures. She is an effective advocate for her clients’ positions, and a champion of justice.

Ms. Pérez also has the right judicial temperament. Her work is measured and careful, always avoiding hyperbole and rancor that often infects discussions of voting issues. She will be a fair judge, considering all arguments and offering rulings consistent with constitutional and statutory imperatives. She will be committed to justice for all litigants before her, regardless of their backgrounds. And she will be a collegial judge, committed to working on appellate panels to achieve consensus where possible, and respectful disagreement when not.

In short, Ms. Pérez is an inspired choice for a Second Circuit judgeship. I urge her swift confirmation with broad bipartisan support.

Share this: