Richard Hasen

Tag Archive

Editorials: What an election law expert worries about on election day | Richard Hasen/Los Angeles Times

For those of us who follow elections and election law professionally, election day itself is pretty uneventful—unless of course you work for a campaign. There often are reports of “flipped votes” for one candidate or another thanks to a miscalibrated machine, problems of long lines here or there and various little hiccups, but generally nothing major. This time around, though, I am more nervous than usual. Here are the three things I am most worried about, from least to most concerning. Bureaucratic shenanigans. In recent years, Republican legislatures have passed a slew of laws making it harder to register and vote, especially if you’re poor, a person of color or a student (all populations likely to vote Democratic). In response, Democrats and voting rights groups have sued, claiming the laws violate the Constitution or the Voting Rights Act. Although federal courts in some states, such as Wisconsin and Texas, have imposed interim remedies to assist those who, for example, do not have one of the narrow forms of photographic identification required to cast a ballot, reports from the early voting period suggest that misinformation is widespread. (That’s often because recalcitrant state governments are unwilling to clarify requirements or to fully and fairly implement court orders.)

Full Article: What an election law expert worries about on election day - LA Times.

National: Appeals courts are dismantling stricter voter ID laws | ABA Journal

The rulings came quickly this past summer in a steady drumbeat that pleased progressives and disappointed conservatives. A strict voter identification law in Texas—blocked. A North Carolina law that required voter ID, which reduced early voting and changed registration procedures—struck down for not only having discriminatory effects but also for having been passed with a racially discriminatory motive. North Dakota’s voter ID law—blocked because of bias toward Native Americans. Under an election law in Wisconsin, one federal district judge ordered an affidavit procedure for those without ID; days later, another district judge struck down provisions that limit early voting and increase residency requirements. The string of recent rulings deals serious blows to measures advanced by many Republicans in the name of election integrity, while others view them as discriminatory. The rulings indicate that “there is a limit in how far states can go in rolling back voting rights before the courts are going to step in,” says Richard L. Hasen, a professor of law and political science at the University of California at Irvine School of Law and the founder of the authoritative Election Law Blog. “Still, this is an ongoing battle,” he says. “The one thing we know for certain is these battles won’t be over when the 2016 election is decided. They will go beyond that.”

Full Article: Appeals courts are dismantling stricter voter ID laws.

National: Election law doesn’t care if Donald Trump or Hillary Clinton ever concedes | CNN

The prospect of election night drama seems to dwindle with each new round of polling. But Donald Trump, perhaps trying to author a campaign cliffhanger, is determined to provide Americans with at least a measure of “suspense” on November 8. Barring a remarkable turnaround — “Brexit times five” as Trump put it last week — Americans will begin their post-election Wednesday with a President-elect Clinton on the horizon. But whether her opponent sees fit to embrace defeat and publicly concede is mostly immaterial. “It doesn’t have any independent legal effect,” said Rick Hasen, a University of California-Irvine professor who runs the popular Election Law Blog. “If he concedes or he doesn’t concede, the votes totals will be what they will be.” Recounts are triggered automatically in 20 states and the District of Columbia when the margin of victory is sufficiently narrow, according to different laws in each of those states. The parameters vary — in Florida and Pennsylvania, it’s a margin of 0.5% or less of the total vote, while Michigan requires a deficit of 2,000 votes or less.

Full Article: Election law doesn't care if Donald Trump or Hillary Clinton ever concedes - CNNPolitics.com.

Editorials: Hurricane Matthew could have devastating consequences for the election | Richard Hasen/Slate

If Hurricane Matthew is as devastating to Florida as forecasters have predicted, it could be a human tragedy costing people their lives, health, homes, and personal property. Beyond that initial tragedy, though, the storm also may have dire electoral implications, potentially affecting the outcome of the 2016 presidential election and landing emergency election litigation from Florida once again before the (now-deadlocked) United States Supreme Court. Florida is seen as a state key to Donald Trump’s chances of victory over Hillary Clinton for the presidency, and this storm could have major impacts on voter registration and voting. Voter registration in Florida closes in just five days. According to Professor Dan Smith of the University of Florida, in the last five days of registration in 2012, 50,000 Florida voters signed up to vote. Many who might normally sign up to vote at the last minute are now following Florida Gov. Rick Scott’s order to flee the affected areas of the state, and they are not likely to register to vote on their way out or drop ballots in closed post offices or soon-to-be-flooded post office boxes. Hillary Clinton’s campaign has already called for voter registration deadlines to be extended, but the Republican governor has already turned down that request.

Full Article: Hurricane Matthew could have devastating consequences for the election..

National: As voter rights cases churn through courts, rights are uncertain. But confusion is guaranteed. | Rick Hasen/The Washington Post

After a notable string of voting rights decisions in the past few weeks — throwing out or weakening voter identification and other restrictive voting laws in Texas, North Carolina, Wisconsin, and elsewhere — you might think that the rules are settled for November. But the rules are far from settled. Things are very much in flux, and the possibility of disenfranchisement through confusion or reversals of recent gains remains. Indeed, just Wednesday an appeals court put on hold a softening of Wisconsin’s voter ID law imposed a few weeks ago by a trial court. To recap, since the disputed 2000 presidential election, which convinced the Democratic and Republican parties that the rules of the game really matter, there’s been an uptick in the amount of legislation governing voting rules, such as the length of the early voting period, and the amount of litigation around those rules. Litigation rates have more than doubled in the post-2000 period. Mostly Republican legislatures passed laws making it harder to register and vote, citing the need to prevent voter fraud and instill voter confidence, even though there is little evidence of fraud or that the laws help instill voter confidence in the fairness of elections.

Full Article: As voter rights cases churn through courts, rights are uncertain. But confusion is guaranteed. - The Washington Post.

Voting Blogs: Breaking and Analysis: Partially Divided 4th Circuit Strikes NC Strict Voting Law, Finds Discriminatory Intent | Rick Hasen/Election Law Blog

You can find the 83 pages of decisions at this link. A partially divided panel of 4th Circuit judges reversed a massive trial court opinion which had rejected a number of constitutional and Voting Rights Act challenges to North Carolina’s strict voting law, a law I had said was the largest collection of voting rollbacks contained in a single law that I could find since the 1965 passage of the Voting Rights Act. The key part of the holding is that North Carolina acted with racially discriminatory intent. However, despite this finding of discriminatory intent, the 4th Circuit refused to use its discretion to put North Carolina back under federal supervision for up to 10 years for its voting. “Such remedies ‘[are] rarely used]’ and are not necessary here in light of our injunction.” Nonetheless, the finding of intentional discrimination could be the basis for a future argument for section 3 should North Carolina pass other discriminatory voting laws. What happens next? North Carolina could decide to go along (there’s nothing to do on remand in this opinion as the 4th Circuit wrote it). Or it could seek to take the case to the 4th Circuit en banc or to the Supreme Court. The state could well go to the 4th Circuit en banc; although that court is not nearly as conservative as it once was, not sure what North Carolina has to lose. And NC could go to the Supreme Court, as the case presents the very rich question of what it means to to engage in racially discriminatory intent when race and party so overlap. (I addressed this question in this Harvard Law Review forum piece: Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere). It is not clear that the evenly divided and shorthanded Supreme Court will bite, and I expect any attempt to get emergency relief from the Supreme Court will fail.

Full Article: Breaking and Analysis: Partially Divided 4th Circuit Strikes NC Strict Voting Law, Finds Discriminatory Intent | Election Law Blog.

Editorials: Radically Revise Campaign Laws to Give People, Not Billionaires, a Voice | Richard Hasen/New York Times

It’s not a new story: Some Americans are looking to the super wealthy to get us out of a political jam. This time, it might be billionaire Michael Bloomberg supposedly saving the country from a Donald Trump-Bernie Sanders race that could leave many voters without an acceptable alternative. Back in 1967, it was the GM heir Stewart Mott providing (what was then considered to be) lots of money to allow Sen. Eugene McCarthy of Wisconsin to challenge President Lyndon B. Johnson for the Democratic nomination. Johnson, mired in the Vietnam War and wounded by McCarthy, eventually withdrew from the race. We’d rely less on rich white knights If each voter in each election got $100 in publicly financed vouchers for political contributions. 

Full Article: Radically Revise Campaign Laws to Give People, Not Billionaires, a Voice - NYTimes.com.

Editorials: Bush v. Gore as Precedent in Ohio and Beyond | Richard Hasen/ACS

Almost from the moment in December 2000 that the Supreme Court decided its controversial opinion in Bush v. Gore ending the recount in Florida, there has been great debate about whether the case had any precedential value and, assuming it did, what precisely its equal protection principle stood for. Was it a one-day-only ticket? Is it a case about equality of procedures in the conduct of a jurisdiction-wide recount? Or does it require broader equal treatment of voters, so as to fulfill Bush v. Gore’s admonition against the government, by “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another”? We may finally find out the case’s precedential value as soon as the 2016 elections. At the Supreme Court, Bush v. Gore has been a legal Voldemort, a case whose name a Court majority has dare not spoken since 2000. Only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not speaking on its equal protection principles.

Full Article: Bush v. Gore as Precedent in Ohio and Beyond | ACS.

Editorials: Justices will get no satisfaction with a new ‘one person, one vote’ rule | Richard Hasen/Los Angeles Times

At the Supreme Court on Tuesday, the justices struggled over the meaning of the 1960s-era “one person, one vote” rule. Should Texas legislative districts contain an equal number of people — as they do now — or an equal number of eligible voters, as the plaintiffs in Evenwel vs. Abbott demand? Ultimately, the justices may have no choice but to heed some other words written in the 1960s: You can’t always get what you want. Before the 1960s and the “reapportionment revolution,” there were few federal constitutional constraints on how district lines were drawn. In practice, this meant that many states gave much greater voting power to rural areas (with much smaller populations) than urban areas. In California, for example, as J. Douglas Smith explained in his book “On Democracy’s Doorstep,” despite huge increases in the state’s urban population, control of the Senate “remained in the hands of a shrinking rural and small-town minority.”

Full Article: Justices will get no satisfaction with a new 'one person, one vote' rule - LA Times.

Editorials: Texas Two-Steps All Over Voting Rights | Richard Hasen/Slate

In 1965, Congress passed the Voting Rights Act, one of the most important pieces of legislation in U.S. history. It contained key protections for minority voters, especially blacks, who had been effectively disenfranchised in the South. The act was a remarkable success, increasing minority voter registration and turnout rates within a few years. In 1982, an important amendment made it much easier for minority voters to elect candidates of their choice. Then, following the contested 2000 elections, states started passing new voting rules along partisan lines. As part of these voting wars, conservative states began passing laws making it harder to register and vote, restrictions that seemed to fall most on poor and minority voters. In the midst of all of this, the Supreme Court in 2013 struck down a key component of the Voting Rights Act. It had required states and jurisdictions with a history of racial discrimination in voting to get permission from the federal government before making a voting change by proving that the proposed change would not make it harder for minority voters to vote and to elect their preferred candidates. Don’t worry, Chief Justice John Roberts assured the American public in that 2013 case, Shelby County v. Holder. Although states with a history of racial discrimination would no longer be subject to federal “preclearance” of voting changes because preclearance offends the “equal sovereignty” of states such as Texas, there’s always Section 2 of the Voting Rights Act. That provision, Roberts explained, is available “in appropriate cases to block voting laws from going into effect. … Section 2 is permanent, applies nationwide, and is not at issue in this case.”

Full Article: Voting Rights Act Sections 2 and 5: Texas defends voter ID laws..

National: With flourish, Trump rejects independent bid if he loses GOP nomination | Los Angeles Times

With his typical showmanship and a hint of the absurd, Donald Trump promised Thursday to forgo an independent bid for the White House if he loses his quest for the Republican nomination, a move that was aimed at easing worries of the party establishment but may only serve to boost his unpredictable, rogue campaign. Standing in the opulent and packed lobby of his Trump Tower in midtown Manhattan, Trump held up the document — which was mistakenly dated Aug. 3 instead of Sept. 3. — at a midday news conference and declared he was “pledging allegiance to the Republican Party and the conservative principles for which it stands.” … Republican Party officials circulated the 70-word pledge to all 17 GOP candidates this week, but the effort was aimed squarely at the one leading the pack in most polls. The billionaire celebrity was the only top-tier candidate who would not publicly promise to rule out an independent bid in the general election when he was asked to do so at the first primary debate last month.

Full Article: With flourish, Trump rejects independent bid if he loses GOP nomination - LA Times.

Editorials: Why the selfie is a threat to democracy | Richard Hasen/Reuters

What could be more patriotic in our narcissistic social-media age than posting a picture of yourself on Facebook with your marked ballot for president? Show off your support for former Secretary of State Hillary Clinton, Donald Trump, Senator Bernie Sanders (D-Vt.) or former Florida Governor Jeb Bush.  Last week, a federal court in New Hampshire struck down that state’s ban on ballot selfies as a violation of the First Amendment right of free-speech expression. That might seem like a victory for the American Way. But the judge made a huge mistake because without the ballot-selfie ban, we could see the reemergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others.

Full Article: Why the selfie is a threat to democracy.

Editorials: The McCain-Feingold Act May Doom Itself | Richard Hasen/National Law Journal

Did the congressional drafters of the 2002 McCain-Feingold campaign-finance law build within it the seeds for its own destruction? Tucked within the Bipartisan Cam­paign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money. If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.

Full Article: Op-Ed: The McCain-Feingold Act May Doom Itself | National Law Journal.

Editorials: How to save the Voting Rights Act: Voting rights shouldn’t rely on parsing racism and partisanship. | Richard Hasen/Slate

In 2010, the Simpsons featured a news helicopter emblazoned with the logo: “FOX News: Not Racist, But #1 with Racists.” That slogan might be applied to today’s Republican Party, which in recent years has actively passed voting laws that make it harder for poor and minority voters to vote. Whether to label the Republican Party “racist” isn’t an academic exercise. The question is actually at the heart of lawsuits over the future of voting rights in Texas and North Carolina. It’s also a question with historical resonance, particularly on the eve of the Voting Rights Act’s 50th anniversary this week. The five-decade history of the Voting Rights Act is told masterfully in Ari Berman’s new book, Give Us the Ballot: The Modern Struggle for Voting Rights in America. Berman starts around the time of the Selma, Alabama, marches, but unlike the movie Selma, Berman goes on to give us the rest of the history: the expansion of voting rights protections in 1970 and 1975 to include Latinos, Native Americans, and others over the objections of racists, many in the Democratic Party; the important 1982 rewriting of Section 2 of the Voting Rights Act, providing additional protections for minority voters nationally, and (now Chief Justice) John Roberts’ key role for the Reagan administration in unsuccessfully fighting against the expansion; hot disputes over voting rights in Florida in the 2000 election; the controversial renewal of the expiring “preclearance provisions” of the act in 2006 that continued to require states with a history of discrimination to get federal approval before changing their voting laws; and the ongoing “voting wars” that accelerated when Roberts led the court’s conservatives in striking down the 2006 preclearance renewal in Shelby County v. Holder.

Full Article: How to save the Voting Rights Act: Voting rights shouldn’t rely on parsing racism and partisanship..

Editorials: Mindlessly Literal Reading Loses Again: This Supreme Court decision is a dig at Bush v. Gore | Richard Hasen/Slate

The Supreme Court ended its term Monday with another major rejection of conservative attempts to use wooden, textualist arguments to upset sensible policies. The result in Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld the use of independent commissions to draw Arizona’s congressional districts, is a big win for election reformers and supporters of direct democracy. The Arizona decision also undermines the strongest conservative argument in favor of George W. Bush in Bush v. Gore, the case that handed him the 2000 presidential election. Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

Full Article: Arizona Supreme Court decision: Redistricting ruling undermines Bush v. Gore..

Editorials: Big Dangers for the Next Election | Elizabeth Drew/The New York Review of Books

While people are wasting their time speculating about who will win the presidency more than a year from now—Can Hillary beat Jeb? Can anybody beat Hillary? Is the GOP nominee going to be Jeb or Walker?—growing dangers to a democratic election, ones that could decide the outcome, are being essentially overlooked. The three dangers are voting restrictions, redistricting, and loose rules on large amounts of money being spent to influence voters. In recent years, we’ve been moving further and further away from a truly democratic election system. The considerable outrage in 2012 over the systematic effort in Republican-dominated states to prevent blacks, Hispanics, students, and the elderly from being able to vote—mainly aimed at limiting the votes of blacks and Hispanics—might have been expected to lead to a serious effort to fix the voting system. But quite the reverse occurred. In fact, in some of the major races in 2014, according to the highly respected Brennan Center for Justice, the difference in the number of votes between the victor and the loser closely mirrored the estimated number of people who had been deprived of the right to vote. And in the North Carolina Senate race, the number of people prevented from voting exceeded the margin between the loser and the winner.

Full Article: Big Dangers for the Next Election by Elizabeth Drew | The New York Review of Books.