Monthly Archives: September 2016

Kobach Loses Again—This Time in Tenth Circuit


Exercising jurisdiction pursuant to 28 U.S.C. § 1292, we hold that the district court did not abuse its discretion in issuing the preliminary injunction. Under the facts of this case, section 5 of the NVRA preempts Kansas’s DPOC requirement as applied to motor voter applications. Further, under the circumstances present here, no constitutional doubt arises as to whether the NVRA precludes Kansas from enforcing its voter qualifications under the Qualifications Clause of the U.S. Constitution. Moreover, the district court did not err in finding that the Plaintiffs-Appellees had made a strong showing ofirreparable harm, that the balance of equities was strongly in their favor, and that an injunction would serve the public interest. Accordingly, we AFFIRM the district court’s grant of the preliminary injunction against Secretary Kobach for reasons to be more fully explained in a forthcoming opinion.

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“Trump’s unusual conflict: Millions in debts to German bank now facing federal fines”


Federal regulators are seeking a $14 billion fine from Deutsche Bank, Trump’s top lender, to settle claims that the bank issued toxic mortgages amid the housing crisis. German media have suggested the bank has sought a state bailout that could lead to partial ownership of the bank by the German government.

A settlement could be reached before a new president takes office, but government-ethics experts say the Deutsche Bank situation is a stark reminder of how Trump could face a conflicting set of interests as the nation’s negotiator in chief.

As head of the executive branch, he’d oversee the Justice Department and the United States’ relations with the rest of the world. But he’d still have a lengthy series of financial relationships with private institutions and countries with business before the United States.

“It’s certainly foreseeable that he could intervene with the DOJ so as to not upset the financing of his companies,” said Trevor Potter, a former Federal Election Commission chairman and general counsel of George H.W. Bush and Sen. John McCain (R-Ariz.).

It’s “unthinkable in recent history,” Potter said, that “there’s the possibility of a president being able to affect his own personal financial interests, conceivably to the detriment of the general public.”

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Federal Court on Its Own Motion in WI Voter ID Case Orders WI to Say How It is Helping Voters Get IDs

Following a report by Ari Berman in the Nation and then Patrick Marley in the Milwaukee Journal Sentinel, the federal district court judge ordered by the 7th Circuit to make sure that Wisconsin is making it easy for voters who start the voter id process at the state’s DMV to get IDs has issued a sua sponte order (an order on its own motion, without a request from one of the sides) for the state to explain what’s going on.

From the order:

These reports, if true, demonstrate that the state is not in compliance with this court’s injunction order, which requires the state to “[p]romptly issue a credential valid as a voting ID to any person who enters the IDPP or who has a petition pending.” Dkt. 234, at 118-19.

Defendants must investigate these allegations and provide a report to the court by October 7, 2016. The report should explain the scope of the investigation, its results, and any corrective action to be taken. Additional reports may be ordered as needed.

Patrick Marley:

The Nation first reported on the recording, which was made by Molly McGrath, the national campaign coordinator with VoteRiders, a group opposed to voter ID laws that also helps people get IDs.

McGrath, who also provided a copy of the recording to the Milwaukee Journal Sentinel, said her group visited 10 DMV stations around Wisconsin. DMV employees gave the visitors answers “all over the board” regarding how long it would take to get an ID, she said…

Kristina Boardman, the head of the DMV, issued a written statement that did not address what specifically occurred, but said such a practice would violate DMV protocols.

“DMV remains committed to working with all eligible voters to ensure they receive free identification, as required for voting,” her statement said.

Johnny Koremenos, a spokesman for the attorney general, said Schimel’s court filing was accurate. He did not explain why DMV employees gave incorrect information to Moore if they had been trained on the voter ID law.

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“So Just Who Are These Undecided Voters?”

Lynn Vavreck for NYT’s The UpShot:

These descriptive differences are negligible compared with differences relating to politics and policy. The YouGov data reveal that undecided voters are much less likely to have positions on issues driving the campaign. On the question of whether the United States should build a wall on its border with Mexico, a position central to Mr. Trump’s campaign for over a year, 28 percent of undecided voters are not sure whether they support or oppose this idea. That’s in contrast to only 7 percent of Mr. Trump’s committed voters (and 11 percent of Mrs. Clinton’s).

Similarly, undecided voters are roughly twice as likely to be unsure whether the minimum wage should be raised or whether college should be free.

The RAND data underscore this indecision. Seventeen percent of undecided registered voters are not sure whether they have a favorable or unfavorable view of the Republican Party (relative to 3 percent of Trump supporters and 13 percent of Clinton supporters). Similarly, 17 percent are unsure about their rating of the Democratic Party. Even on favorability ratings of the president, undecided voters are three times as likely as supporters of either major party candidate to say they “don’t know” how to rate him.

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“Here comes the Republican Senate super PAC blitz”

Matea Gold:

The Republicans’ central Senate super PAC is plowing $21 million more into six key races in the coming weeks as the fight for control of the chamber moves to states more hospitable to GOP candidates.

The Senate Leadership Fund, a super PAC that is part of the American Crossroads suite of GOP big-money groups, is expanding its television buys in New Hampshire, North Carolina, Indiana, Missouri, Nevada and Pennsylvania, officials told The Washington Post. At the same time, the group is cutting back most of its planned spending in Ohio, where incumbent Republican Sen. Rob Portman has widened his lead over former governor Ted Strickland.

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Prawfs Election Symposium

Check it out:

Forr October, we are going to try something different with our guest slate. With the election looming, we decided to do a month-long symposium, with expert guests writing about the election, election law, and related issues, such as what might happen after the election and in the new administration. I am happy to introduce  Josh Douglas (Kentucky), Ned Foley (Ohio State-Moritz), Lisa Manheim (Washington),Michael Morley (Barry), Bertrall Ross (Berkeley)  and Franita Tolson (Florida State). They will be with us for October and perhaps through to the election in early November.

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Trump, Piggybacking Off Right Wing Claims that U.S. Rushing Citizenship Applications, Says Clinton Helped Machado

Greg Sargent:

The “sex tape” angle here is sucking up all the attention. (Apparently, sex sells.) That appears to be a reference to reports about a steamy love scene that Machado filmed in 2005, though without further clarification, it’s hard to know for sure. As for her “past,” the Daily Beast recently ran through some of the more lurid allegations from during her days as a Venezuelan celebrity right here.

But all that is less interesting and revealing — no, really — than is Trump’s suggestion that Clinton helped Machado become a U.S. citizen so she could become a prop for Clinton at the debate.

It turns out that Trump is right in one sense. But it isn’t quite how he thinks.

Machado did in fact become a U.S. citizen in order to increase her influence over this presidential contest. She did so apparently to vote against Donald Trump, because she sees this as an an enormously consequential election….

What Trump’s tweet really says is that Machado’s effort to secure the vote for herself is suspect, because Clinton may have helped smooth that process, to Clinton’s own benefit. This is a version of the longtime charge that Democrats only want to create a path to citizenship for Latino immigrants in order to pad the voter rolls in their favor, and surely this will thrill Trumpist voters who are very upset about the ways the country is rigged in favor of various minority groups.

But the merits of that argument aside, it is politically awful for Trump — given his need to expand his appeal — to be questioning this effort at political integration by a former Latina beauty queen who is publicly urging more Latinos to participate in the election and is publicly declaring her pride at becoming a U.S. citizen who can now exercise her right to vote.

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“Textualism and Stare Decisis”

New from Anita Krishnakumar:

On the surface, textualism and the doctrine of statutory stare decisis seem to have much in common — both are rule-bound and emphasize predictability and stability in the law, legislative supremacy, the need to limit judicial discretion, and the need to preserve the legitimacy of the Court as an institution. Yet, in practice, textualist jurists — at least at the Supreme Court level — have proved quite willing to abandon statutory stare decisis and to argue in favor of overruling established statutory precedents. Why? This paper advances a twofold thesis. First, it argues that textualism suffers from a “correct answer” mindset, which makes it especially difficult for its proponents to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. While others have noted that this tension between accuracy and stare decisis poses problems for textualists, they have tended to brush it off as a tension that also affects other interpretive theories and to insist that textualism can and does give way to statutory stare decisis as a matter of necessity. Second, and more importantly, this paper argues that textualist jurists tend to view statutory precedents that create a test for implementing a statute as different from more ordinary parsing-the-text statutory interpretation. That is, textualist jurists regard implementation-test precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test” exception to the heightened stare decisis protection typically afforded to statutory precedents.

The paper begins by providing several examples of cases in which textualist Justices on the U.S. Supreme Court have rejected statutory stare decisis and voted to overturn a statutory precedent. The argument is largely descriptive but has significant theoretical and normative implications. In particular, the implementation-test insight suggests a new and previously unexplored explanation for the judicial treatment of congressional overrides and the shadow precedent phenomenon that some scholars have observed. The distinction between implementation tests and text-parsing statutory construction also highlights important and underappreciated differences between textualist and purposivist visions of the judicial role in statutory interpretation. In the end, the paper both supports and critiques the implementation test exception to statutory stare decisis. It argues that the Supreme Court should be free to reexamine implementation tests that have been criticized by lower courts as confusing or unworkable in practice. But for separation of powers reasons, and in order to preserve stability and predictability, the Court should limit this implementation test exception to only those contexts in which substantial lower court criticism is present.

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The “Turkish Murderer” That True the Vote is Fundraising Around? A U.S. Citizen

Yesterday I reported that True the Vote was fundraising off the alleged Cascade Mall shooter, claiming that the “Turkish murderer” was not a U.S. citizen but voted in multiple elections.

Well it turns out, contrary to earlier reports, that the shooter WAS a U.S. citizen. King5: “On Thursday, a federal official told KING that further investigation revealed that Cetin is a naturalized U.S. citizen. That means he was legally registered to vote. KING’s initial story on Sept. 28 questioned state officials about how Cetin could register and vote without being a citizen.”

I’m sure True the Vote will issue a correction.

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