Monthly Archives: May 2017

PunditFact Rates “False” FOX News Host’s Claim That a Candidate Can Collude With A Foreign Government in U.S. Elections


Jarrett said that “you can collude all you want with a foreign government in an election,” because there’s no law that says collusion is a crime.

Three prominent election law scholars said there are at least four laws that would prohibit the sort of activities under investigation, whether those laws mention collusion or not. Jarrett’s focus on a single word fails to reflect the reach of the criminal code.

We rate this claim False.

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“SCOTUS’s Last Chance to Rein in Partisan Gerrymandering?”

Kimberly Robinson for Bloomberg BNA:

The U.S. Supreme Court could radically change how states draw their districts for federal and state elections as Republicans and Democrats are preparing to battle over the next redistricting cycle.
More than 30 years ago, the high court said that considering party affiliation too much in redistricting could cross the line into unconstitutional gerrymandering. But the Supreme Court provided little guidance and federal courts have since struggled to find where that line is.
As a result, states defending allegations that they unconstitutionally relied on race when drawing voting maps often say they were merely relying on politics.
That could end—or at least be seriously curtailed—if the Supreme Court decides to hear Gill v. Whitford.
There, Democratic voters challenging the maps in Wisconsin think they’ve found a way to measure when political consideration in redistricting crosses the line. And a lower court agreed.
Wisconsin Republicans unconstitutionally created maps that disadvantaged Democratic candidates when they drew up new voting maps in 2010, a special three-judge district court panel said in a stunning decision last November. The panel relied on a new standard—the “efficiency gap”—to measure that disadvantage.
That standard attempts to measure the efficiency with which the parties can elect their candidates by calculating the number of votes their voters “wasted.” An efficiency gap in favor of one party suggests that the other was disadvantaged in the voting process.
Now Wisconsin—supported by a dozen other states—is asking the Supreme Court to step in.
The new standard the lower court blessed doesn’t take into account political realities, they argue…..
It’s highly likely the Supreme Court will agree to take up the case due to procedural oddities with redistricting cases, Paul M. Smith, of the Campaign Legal Center, Washington, told Bloomberg BNA. Its “hard to imagine” the justices turning this case away, Smith, who represents the voters challenging the voting maps, said.
This may be one of the last opportunities to convince a majority of justices that the judiciary is capable of policing these claims, Rick Hasen, an election law professor at University of California, Irvine, School of Law, told Bloomberg BNA.
Rumors that Justice Anthony M. Kennedy will retire soon are swirling, and he could provide the critical fifth vote in this area that has often split along ideological lines.
The court will consider whether to hear the case during its June 8 private conference….
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Heading Soon to the Printer: New 6th Edition of Election Law, Cases and Materials

I’m delighted to announce that the Sixth edition of our casebook, with new co-author Nick Stephanopoulos, will be heading to the printer soon, and is available for fall classes. (The ISBN is 978-1-5310-0472-9). There will be a revised teacher’s manual coming soon as well. Instructors who wish to use page proofs for planning fall classes should contact Carolina Academic Press.

I am extremely excited about this new edition, especially the greatly revised chapters on voting rights, partisan and racial gerrymandering, and election administration and remedies. This book is better than ever, thanks to my wonderful co-authors.

It is also up to date, including developments this month at the Supreme Court (the new NC racial gerrymandering case, the summary affirmance in the soft money case, and the cert grant in the NVRA case).

Whether you want to use it for a full election law course, or a seminar on voting rights, campaign finance, election administration or redistricting, I think you will find the materials both comprehensive and student friendly.

As we wrote in our introductory remarks:

The Sixth Edition of this casebook appears twenty-two years after the first edition, written by Dan Lowenstein alone. When Lowenstein wrote, he was one of a half-dozen law professors in the country focusing on issues of election law and democracy. These days, the field has grown so large that there are many casebooks, other books, articles, and journals devoted to the subject. While that is good news for those who wish to study material at the intersection of law and politics, it reflects that election law has been the source of much controversy, not just in academia but in American politics and culture. The boom in interest coincided with the disputed 2000 election, and it does not appear to have dissipated. If anything, people have come to expect that judicial action will be front-and-center in electoral campaigns. This may not reflect well on the health of American democracy, but at least those who study the field will be able to understand the disputes.

The goals of this Sixth Edition of the casebook are the same as Lowenstein’s ambition with the first: to shed more light than heat on a disputed subject; to give students and their instructors a fair presentation of the cases and scholarship in the key areas of election law; to bring in political science evidence with which to evaluate legislative and judicial interventions into democratic processes; and to do all of this in clear language. We have strived to live up to Lowenstein’s example, although we acknowledge this book does not reflect his distinctive voice more evident in the earlier editions.

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“Clinton: Voter suppression helped cost me the election”

Zack Roth for The Daily Democracy:

Hillary Clinton has suggested she’d be president today were it not for restrictions on voting in place in last year’s election. The truth is probably more complicated.

In an interview with New York magazine, Clinton was asked about the performance of her campaign team, which has come in for criticism since her shock loss last November.

“What I was doing was working,” Clinton responded. “I would have won had I not been subjected to the unprecedented attacks by Comey and the Russians, aided and abetted by the suppression of the vote, particularly in Wisconsin.”

Clinton’s identification of Comey, the Russians, and voter suppression as making up the trifecta of factors that doomed her presidential bid is in sync with the views of many Democrats. But a closer look at the impact of voting restrictions suggests a murkier picture.

The day after the election, I wrote at TPM: Democrats Blame ‘Voter Suppression’ For Clinton Loss At Their Peril. It is pretty clear that some on the left are still looking for excuses rather than addressing how to make the party more appealing to voters.

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GOP Illinois Governor Will Sign Automatic Voter Registration After Vetoing It Last Year”

Sam Levine for HuffPo:

Illinois Gov. Bruce Rauner (R) intends to sign legislation supported by both chambers of the Illinois legislature that will automatically register people to vote when they interact with state drivers’ facilities and other state agencies.

The decision to sign the legislation marks a big victory for voting rights advocates. Rauner vetoed a similar measure last year. At the time, he said the legislation would “inadvertently open the door to voter fraud and run afoul of federal election law.”

But a few changes were apparently enough to convince Rauner to sign on to automatic voter registration, which has already led to considerable gains in the number of registered voters in Oregon, the first state to implement it last year. Illinois would be the ninth state to adopt automatic voter registration, and advocates estimate it could add over 1 million voters to the state’s rolls.

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“Maine’s citizens passed ‘ranked-choice voting.’ Why did Republicans shoot it down?”

Jack Santucci for the Monkey Cage:

Last fall, Maine voters passed an experiment in voting that no state has ever before tried: ranked-choice voting. It’s an experiment some say could change the national calculus against third parties, as I’ll explain below. But the state’s Republican-led Senate asked Maine’s Supreme Court to rule on the system — and the court recently issued an advisory ruling that ranked-choice violates the state constitution.

So why would anyone be interested in ranked-choice voting — and why are Maine’s Republicans fighting it?

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Red State Election Law and Blue State Election Law Gap Widening

I’ve long talked about the emergence of “red state” election law and “blue state” election law, and the trend seems to be accelerating.

Paul Waldman:

America, as we all know, is a deeply divided nation, split along lines of class and race and culture and politics. And in this most polarized time, the two parties are pulling the places where they dominate further apart, creating a red and blue America that can be profoundly different depending on what side of a state line you stand on.

In few areas is this more evident than in the way the parties treat the ballot.


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“Optimal Entrenchment of Legal Rules”

Mike Gilbert has posted this draft on SSRN.  Here is the abstract:

Should law respond readily to society’s evolving views, or should it remain fixed? This is the question of entrenchment, meaning the insulation of law from change through supermajority rules and other mechanisms. Entrenchment stabilizes law, which promotes reliance and predictability, but it also frustrates democratic majorities. This paper uses economic theory to study this tension. It argues that nearly all laws should be minimally entrenched. This is because bare majority rule can systematically harm society – even when voters are rational, and even when no intense minority is present. Then it argues that minimum entrenchment is conceptually straightforward but optimal entrenchment is not. It depends on factors like whether the costs of legal instability are variable or fixed and who has power to set the agenda. Existing scholarship ignores these factors, casting doubt on its prescriptions. The paper provides guidance for legal designers, and it has implications for constitutional law, including Article V, amendments, conventions, and judicial updating.

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“PLF asks Supreme Court to invalidate Minnesota dress code for voters”

Pacific Legal Foundation:

On Election Day, millions of Americans trek to polling places in all corners of this Nation. On the way to casting their vote, many proudly wear shirts, buttons, and badges of organizations that share their views. Union members, for example, may wear SEIU t-shirts; gun owners, National Rifle Association badges; readers of this blog, Pacific Legal Foundation lapels.

To most, wearing shirts, buttons, and badges saying “Pacific Legal Foundation,” “AFL-CIO,” and so on is just another form of political expression — much like voting itself. To regulators in Minnesota, however, it’s a criminal act that subjects voters to the criminal penalties assessed for a misdemeanor and civil penalties of up to $5,000.

That’s because Minnesota law forbids voters from wearing any apparel that a bureaucrat deems “political.” That includes shirts featuring the logo of the American Legion, Veterans of Foreign Wars, AFL-CIO, MoveOn.Org, the Chamber of Commerce, or the NAACP, just to name a few examples. That also includes two items of apparel that PLF client Andy Cilek wore to the polling place: a Tea Party t-shirt that said “Don’t tread on me” next to a picture of the Gadsden Flag, and a “Please I.D. me” button created by Andy’s organization: Minnesota Voters Alliance.

After a poll worker told Andy it was illegal for him to vote while wearing the forbidden apparel, Andy filed a federal lawsuit to vindicate his constitutional right to free speech. Unfortunately, the lower courts rejected Andy’s claim, reasoning that the government may ban all expression, besides voting, at the polling place.

Fortunately, we have a Supreme Court of the United States. PLF is representing Andy, Minnesota Voters Alliance, and election judge Sue Jeffers in asking the Supreme Court to review — and invalidate — Minnesota’s political apparel ban.

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