Editorials: What About the Voters? Requiring Proof of Citizenship to Register to Vote in Federal Elections | Franita Tolson/Huffington Post

Last week, in Kobach v. Election Assistance Commission, a United States federal district court held that the Election Assistance Commission (EAC) could not prevent Kansas and Arizona from requesting documentary evidence of citizenship as a prerequisite to registering to vote in federal elections. Last year, the U.S. Supreme Court, in Arizona v. Inter Tribal Council, held that the National Voter Registration Act (NVRA) preempted the Arizona law because the NVRA requires that states “accept and use” a uniform federal form that allows individuals who attest to U.S. citizenship to register to vote in federal elections without having to provide proof of their citizenship status. Many commentators were pleased with the Inter Tribaldecision, viewing it as a win for federal power. However, I was wary of the opinion because the Court maintained that, despite the existence of broad congressional authority over federal elections, Arizona must be allowed to alter the federal form if the state proves that it cannot properly exercise its constitutional authority to regulate voter qualifications by using the form alone.

Editorials: How ‘the next Citizens United’ could bring more corruption — but less gridlock | Rick Hasen/The Washington Post

An opinion could come as early as this coming week in the Supreme Court case being called “the next Citizens United,” and groups concerned about the influence of money in American politics are bracing themselves for the result. Public Citizen has planned more than 100 events across the country in anticipation of a McCutcheon v. Federal Election Commission ruling that further dismantles our campaign finance laws and strikes down a key federal campaign contribution limit. I, too, am troubled by the prospect of an awful decision that would clear the way for more corruption. But I find some solace in the thought that such a ruling could have a surprising positive side effect: reducing gridlock in Washington. At issue in the McCutcheon case is the constitutionality of caps on an individual’s total donations to federal candidates, parties and certain political committees in a two-year election cycle. Alabama Republican Shaun McCutcheon wanted to give $1,776 to each of 28 candidates in the 2012 cycle, but that would have exceeded the $48,600 aggregate limit on direct contributions to candidates. He and the Republican National Committee are challenging that limit, along with the $123,200 cap on total donations.

National: Once-Obscure State Job Is Now Attracting Millions Of Campaign Dollars | NPR

Iowa was one of the few states that saw voter turnout increase in 2012. Brad Anderson is proud of the role he played in encouraging turnout there as state director of President Obama’s campaign. Now he’s running for secretary of state, which would put him in charge of overseeing elections. “I have a plan to make Iowa No. 1 in voter turnout,” Anderson says. The fact that a former Obama operative wants to run elections makes some people nervous. But he’s part of a trend of overtly partisan figures running for a job designed to be neutral when it comes to election administration. No fewer than three superPACs have been formed in recent weeks — two on the left, one on the right — with plans to spend millions of dollars this year influencing elections for what used to be a low-profile post in most states.

Editorials: Political ignorance and early voting | Washington Post

Some conservative commentators – including co-blogger Eugene Kontorovich and John McGinnis, and former Justice Department voting rights specialist J. Christian Adams, have recently criticized early voting, on the grounds that it exacerbates the problem of political ignorance. I agree that widespread political ignorance is a serious problem. But I doubt that early voting makes it any worse than it would be otherwise. As leading voting rights scholar Rick Hasen points out, social science research shows that early voters are, on average, better-informed than those who vote on election day. They also tend to have stronger partisan loyalties, and are therefore unlikely to change their minds based on last-minute election ads or news developments.

Voting Blogs: Coordinating with a Super PAC, Raising Money for It, and the Difference Between the Two | More Soft Money Hard Law

How much can a candidate do for a Super PAC without illegally “coordinating” with it? Recent proposals would answer that she has to keep her distance—no publicly (or privately) stated support and no fundraising for the independent committee. A bit of a surprise has developed in the debate. While questioning how far these restrictions can go, Rick Hasen concludes that as a matter of constitutional law, Congress may prohibit the fundraising, and on this point, he sides in theory with Brad Smith of the Center for Competitive Politics. Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War Over Coordination, Duke Journal of Constitutional Law & Public Policy (forthcoming), 16-17, available here; Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 635 (2013). Rick Hasen and Brad Smith are not often found in the same jurisprudential company.  So it is interesting to consider how they may have arrived there and why, in their judgments about the regulation Buckley would allow, they appear to have erred.

National: Experts: ‘Dark money’ here to stay | The Hill

A new administration proposal to limit the political activity of tax-exempt groups could fall short of forcing “dark money” out of campaigns, experts say. The new Treasury Department and Internal Revenue Service proposals, which are expected to spark extensive debate, would bar so-called 501(c)(4) organizations from counting certain political activity as part of their social welfare work. But the IRS and Treasury are still going to accept recommendations on how much political activity a group can engage in while still receiving the prized 501(c)(4) status — and their decision is crucial to lawmakers and outside groups trying to ensure that big-time political contributors are public knowledge. But no matter how the decision comes down, campaign finance experts predict lawyers will eventually be able to find a way to help donors avoid public disclosure. “One thing we’ve learned is that very few fixes in this area of the law are permanent, and it requires a consistent regulatory response since lawyers can find their way around these rules,” said Rick Hasen, an election law expert at the University of California, Irvine. According to the current law, groups classified as 501(c)(4), which can accept unlimited amounts of donations, are to be exclusively engaged in promoting social welfare.

Virginia: How the Bush v. Gore Decision Could Factor Into This Close Virginia Race | Mother Jones

All the votes from the November 5 election have been tabulated, and the Virginia attorney general race is as close as they come. Democrat Mark Herring holds a slim 164-vote lead over his Republican opponent, Mark Obenshain. The close count has teed up a likely recount for next month, and the Republican candidate has hinted at an unusual legal strategy: basing a lawsuit on Bush v. Gore, the controversial Supreme Court decision that ended the 2000 presidential election in George W. Bush’s favor. The Supreme Court usually prides itself on respecting the past while keeping an eye toward future legal precedent. But the court trod lightly when it intervened in 2000. The five conservative justices may have handed the election to Bush, but they tried to ensure that their decision would lack wider ramifications. “Our consideration is limited to the present circumstances,” read the majority opinion in Bush v. Gore, “for the problem of equal protection in election processes generally presents many complexities.” The conservative majority wanted to put a stop to the Florida recount, but they hoped their ruling—which extended the 14th Amendment’s equal protection clause to argue that different standards cannot be used to count votes from different counties—wouldn’t set precedent in future cases. For a time the justices got their wish. But the supposed one-time logic of the controversial decision has begun to gain acceptance in the legal community—particularly among campaign lawyers in contentious elections.

Editorials: U.S. elections are still awful. We should fix that. | Washington Post

Over in Virginia today, Democrat Mark Herring today moved into the lead in the Attorney General election over Republican Mark Obenshain by exactly 100 votes out of more than 2.2 million cast. Seems that one precinct in Fairfax forgot to count one of the machines, and once that was found and included, Obenshain’s previous 17 vote lead was reversed. Anyone who has been following this — and I highly recommend Dave Wasserman on Twitter for blow-by-blow, or, rather, ballot-by-ballot, updates — knows that this could reverse again before it’s done. The twists and turns are highly entertaining but hardly something to be proud of. Election law expert Rick Hasen makes the right point: “[E]lections are always this messy. We just never had Twitter before to demonstrate that in real time” (see also Ed Kilgore, who makes the point that we don’t usually care about missing ballot boxes and uncounted machines unless the count is very close).

Editorials: Virginia attorney general’s race: How Democrats could win | Rick Hasen/Slate

The race for Virginia’s attorney general is about as close as it gets in a statewide race: At the moment, about 100 votes separate the two candidates out of 2.2 million votes cast. When I started writing this article, Republican Mark Obenshain was leading Democrat Mark Herring, but that’s now reversed. County election boards are checking their math and deciding which provisional ballots to count. It is anyone’s guess who will be ahead when certification comes Tuesday night. In the meantime, Democrats are up in arms over what they see as a new rule the Republican-dominated state elections board put in place last Friday to make it harder to count provisional ballots in Democrat-leaning Fairfax County. Unless Herring builds up a larger lead, Democrats’ best hope for winning the attorney general’s race probably lies in federal court, and the results there are uncertain and may take a very long time to work out. Any time a race is this close you can expect partisans and political junkies to study every discretionary decision about which votes to count and how decisions get made, a process that has only intensified through crowdsourcing of election results on Twitter. The big fight this time around is over the rules for counting provisional ballots—ballots not counted on Election Day because there was some issue with them. For example, a military voter who had an absentee ballot sent overseas might have returned home before it arrived and tried to cast an in-person ballot at the precinct. In that case, election officials need to make sure the absentee ballot was never counted.

Wisconsin: Voter ID trial begins | Politico

Voter ID advocates and opponents alike will be watching Wisconsin on Monday as a new federal trial on the state’s photo ID law begins. The case is the first federal trial under the Voting Rights Act since the Supreme Court struck down part of the law in June, and it’s one of the first cases to challenge voter ID under what’s known as Section 2 of the VRA. Section 2, which was unaffected by the Supreme Court’s decision, prohibits procedures that discriminate based on race and other protected groups. “I think that everyone’s going to be looking at what happens in Wisconsin,” said Rick Hasen, a University of California, Irvine, law and political science professor and author of Election Law Blog. “Whoever’s on the successful side will say, ‘See, we told you,’ and whoever’s on the losing side will either say the court got it wrong or point to factual differences [in their state], but it will be important because it’s one of the first Section 2 challenges to the voting ID law.” The trial covers two challenges to the law, one brought by the group Advancement Project, which argues that the Wisconsin law is particularly burdensome on voters of color, and another brought by the American Civil Liberties Union, which focuses on minorities as well as elderly, student, low-income, disabled and homeless voters.

Editorials: More on Judge Posner’s (Now Disavowed?) Mea Culpa on Voter ID Laws | Ed Whelan/National Review

For those interested in another round of Judge Richard Posner’s self–immolation, here’s the latest bizarre twist concerning (to quote his words from pp. 84-85 of his new book Reflections on Judging) his “plead[ing] guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID”: In a postfor the New Republic, Posner now contends that he is not “publicly recanting” his vote and that he has not “switched sides.” I agree with election-law expert (and voter ID-law critic) Rick Hasen, who finds Posner’s latest account “incredible.” For starters (as Hasen points out), in a recent HuffPost Live interview, Mike Sacks, after quoting the passage in Posner’s book, specifically asked Posner whether he thinks that he “got this one [the ruling in the Indiana voter ID case] wrong.” Posner’s response (at 9:08 of the interview) begins: “Yes. Absolutely.” He adds that he thinks the dissenting judge “was right.” (See Hasen’s post for the remainder of the response, none of which contradicts these excerpts.)

Editorials: Why Judge Posner Changed His Mind | Rick Hasen/The Daily Beast

Judge Richard A. Posner, the judge who delivered the landmark decision that upheld voter ID laws in Indiana in 2007, has made legal history again. In his new book, Reflections on Judging, Judge Posner includes a single sentence admitting he made a mistake: “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a law now widely regarded as a means of voter suppression rather than fraud prevention.” Further extrapolating on his turnabout in an interview with HuffPost Live’s Mike Sacks, Judge Posner, who sits on the United States Court of Appeals for the Seventh Circuit, blamed the lawyers for not giving “strong indications that requiring additional voter identification would actually disfranchise people entitled to vote.” Posner further defended himself by saying that even the more liberal Justice John Paul Stevens wrote an opinion for the Supreme Court affirming Posner’s decision. Then Justice Stevens in an interview with the Wall Street Journal defended his decision in Crawford v. Marion County Elections Board and blamed the lawyers too.

Editorials: Voting fight: Is it race or is it politics? | Charlotte Observer

North Carolina’s new restrictions on voting may favor the Republican Party, but Democrats must prove more than that to beat them in court. GOP legislators who passed the rules last summer say they are designed to streamline and modernize the state’s voting while also blocking election fraud, a problem they describe as rampant and undetected. Opponents – including U.S. Attorney General Eric Holder – say the claims of fraud are a ruse and that the laws are part of a national campaign by conservatives to suppress voting by minorities, the poor and the young. Those groups are part of an emerging Democratic coalition that swung North Carolina to President Barack Obama in 2008 and came close again four years later. Who wins in court may hinge on whether judges believe Republicans were motivated by politics or race. In other words, have black voters been discriminated against? Or were they legal targets of hard-ball GOP politics? For now, what Republicans describe as reforms, critics call “the Monster Law.”

Editorials: Citizens United, McCain-Feingold Fueled Congress’ Shutdown Politics | Paul Blumenthal/Huffington Post

Dysfunctional politics led a coalition of independent conservative groups and hardline Republican lawmakers to push for a showdown on Obamacare over a continuing resolution to fund the government and thus to shut down the government for more than two weeks. But what empowered a fracturing Republican Party to bring chaos on Washington? The short answer: a one-two punch rewriting of campaign finance law that drove legislators to heed their own parties’ extreme elements. Former Speaker Dennis Hastert (R-Ill.) has blamed the 2002 McCain-Feingold reform law, calling it “the worst thing that ever happened to Congress.” By taking unlimited “soft money” away from the political parties, but especially from the Republican Party, the law empowered the nascent insurgents at the Club for Growth. President Barack Obama said it was the Supreme Court’s 2010 Citizens United decision that “contributed to some of the problems we’re having in Washington right now.” Post-Citizens United, money from independent groups has poured into elections.

Editorials: Limiting Contributions to Candidates Deters Corruption | Rick Hasen/NYTimes.com

For almost 40 years, since the 1976 Buckley v. Valeo decision, the Supreme Court has treated limits on campaign contributions to candidates, parties and committees more permissibly than limits on independent campaign spending when challenged on First Amendment grounds. As to contribution limits, the court’s “standard of review” has been rather lax, and most contribution limits are upheld. Spending limits are subject to “strict scrutiny,” and courts usually strike them down. Senator Mitch McConnell wants the Supreme Court in McCutcheon v. F.E.C. to overturn part of Buckley and to apply that strict standard to review of contribution limits, meaning most of them would fall too. It’s a bad idea. The closer the money comes to the hands of members of Congress, the greater the danger of corruption and undue influence of big donors.

Editorials: Eric Holder’s Big Voting-Rights Gamble | Abby Rapoport/The American Prospect

Just about everyone who goes through a musical-theater phase at some point falls in love with Sky Masterson of Guys and Dolls. In the movie version, Marlon Brando plays the gambler who will wager “sky high” stakes and finds himself singing “Luck Be a Lady” while rolling the dice to see if he gets the girl. Going all in may be what you’d expect in a fictional singing crapshooter, but it’s a bit more surprising in a U.S. attorney general. Eric Holder’s announcement Monday that the Justice Department was going to bring a lawsuit against North Carolina’s new and wide-sweeping election law, which includes a laundry list of voter restrictions and changes making it harder to vote, showcases just how high he’s willing to make the stakes when it comes to voting rights. His department is now going to be litigating two high-profile cases—one against a voter-ID law in Texas, and the other against the omnibus bill in North Carolina. The DOJ is also involved in a case to show that Texas’s redistricting maps intentionally discriminated. Some legal advocates say he’s taking the only logical course of action. Others say he’s going double or nothing.

Michigan: Republican Vote Suppression Hitches Ride on Detroit’s Woes | Bloomberg

According to a study released this month by the AAA Foundation for Traffic Safety, only 54 percent of Americans have a driver’s license before their 18th birthday. One survey found that 46 percent of people in the U.S. ages 18 to 24 would choose access to the Internet over access to their own car. Auto companies are in a panic over teens’ declining interest in their product. The AAA report cites a precipitous “downward trend” in licensing rates among high school seniors, with 85 percent reporting that they had a license in 1996, but only 73 percent reporting that in 2010. The decline increasingly has implications for voting behavior, as well. At least 22 states have introduced Voter ID laws, according to the Brennan Center for Justice at New York University. North Carolina just enacted a whirlwind of vote-suppression tactics that, as Rick Hasen writes here, has already made a mockery of the Supreme Court’s Shelby County v. Holder ruling, which claimed it could curtail the Voting Rights Act without significant impact.

Texas: We Only Hate Democrats, Not Minorities | Bloomberg

The State of Texas this week filed a rather impolite response to the voting-rights concerns recently expressed by Attorney General Eric Holder. Last month, Holder announced that the Justice Department would deploy a little-used section of the Voting Rights Act to impose federal oversight on some jurisdictions that had been freed, courtesy of a 5-4 conservative majority of the U.S. Supreme Court, from having to “preclear” changes to voting rights (and redistricted election maps) with either a federal court or the Justice Department. Texas is precisely the kind of jurisdiction the Justice Department had in mind. In 2011, Republicans in the state legislature produced redistricting maps that, according to the federal court, had been designed with “discriminatory purpose.” The result was a significant dilution of Hispanic voting power. In a response filed with a three-judge panel in San Antonio, State Attorney General (and Republican gubernatorial candidate) Greg Abbott more or less told the Justice Department what it could do with a Texas longhorn.

Texas: Texas on voting rights: It’s not about race, just politics | MSNBC

Texas didn’t discriminate against minority voters. It was only because they were Democrats. And even if it did, the racial discrimination Texas engaged in is nowhere near as bad as the stuff that happened in the 1960s. These are some of the arguments the state of Texas is making in an attempt to stave off federal supervision of its election laws. In late July, citing the state’s recent history of discrimination, the Justice Department asked a federal court to place the entire state back under “preclearance.” That means the state would have to submit its election law changes in advance to the Justice Department, which would ensure Texas wasn’t disenfranchising voters on the basis of race. This week, Texas submitted a brief arguing that placing the state back under preclearance would be an “extreme” encroachment on state sovereignty and denying that they ever discriminated against minority voters in the state. “I don’t think it’s going to work, frankly. The mere desire to achieve partisan advantage does not give Texas a free hand to engage in racial discrimination,” says Brenda Wright, a voting law expert with the liberal think tank Demos. “If the only way you can protect white incumbents is by diluting the voting strength of Hispanic citizens, you are engaging in intentional racial discrimination, and the courts will see that.”

Texas: Texas Launches New Legal Attack On Voting Rights Act | TPM

Texas escalated a confrontation with the Obama administration this week over the Voting Rights Act, staking out an aggressive new challenge to the landmark 1965 law that could send it back to the Supreme Court for yet another review. “Just a few weeks ago, the Supreme Court invalidated the legislatively imposed preclearance requirement, calling it an ‘extraordinary’ ‘departure from the fundamental principle of equal sovereignty’ of the states,” Attorney General Greg Abbott wrote in a 54-page brief filed this week, in a case about whether the state’s latest redistricting map should be subject to court review before taking effect. “A judicially imposed preclearance requirement is no less extraordinary and no less constitutionally suspect.” Rick Hasen, an election law expert and professor at UC-Irvine, told TPM that the brief is “a signal to DOJ that Texas is not afraid to escalate if necessary, and they may have a receptive audience among the conservative Justices on the Supreme Court.”

Editorials: A Critical Look at Holder’s Texas ‘Gambit’ | Wall Street Journal

Dusting off a little-used section of the 1965 Voting Rights Act, Attorney General Eric Holder made headlines last week when he asked a federal court in San Antonio to take back control of Texas’s voting rules. The move is thought to be a prelude to a broader battle with Republican states following a landmark Supreme Court ruling that gave GOP regions more autonomy over their election laws. But Mr.  Holder’s fight with Texas may not be worth it, at least according to University of California-Irvine law professor Richard Hasen, an electoral law expert who supports tougher voting-rights protections. The best thing that can be said about the Justice Department’s legal strategy is that it’s better than nothing, he said. While the Supreme Court freed nine states and several counties from having to get permission before making changes to voter rules, it left intact Section 3 of the Voting Rights Act. Under that provision, a court can impose special oversight of a jurisdiction. It’s a process known as “bailing in.”

Editorials: North Carolina: First in Voter Suppression | New York Times

Gov. Pat McCrory of North Carolina didn’t like our recent editorial that criticized the state for abandoning its traditions of racial equality, strong public schools, and economic fairness. He wrote a letter to the editor saying he was leading the state to a “powerful comeback.” That’s demonstrably untrue when it comes to the economy and the schools. But as yesterday’s events in the state capital showed, one thing is making a comeback: an old habit of suppressing the votes of minorities, young people and the poor, all in the hopes of preserving Republican power. Freed of federal election supervision by the Supreme Court, the North Carolina legislature passed a bill that combines every idea for suppressing voter turnout that Republicans have advanced in other states. Rick Hasen, an election-law expert at the University of California, Irvine, called it “the most sweeping anti-voter law in at least decades.”

Editorials: Obama and Eric Holder take on Texas and other states on voting | New Republic

Pro-tip: When you win a big court case giving you the go-ahead to suppress voter turnout for your political opponents, don’t gloat about it. That is surely one of the lessons in the remarkable news that the U.S. Department of Justice is challenging new voting-rights laws in Texas and elsewhere even after the Supreme Court ruling that eviscerated the part of the Voting Rights Act that the feds had relied on for decades to challenge voting restrictions. What made the ruling especially galling was the celebration that followed from Republicans in states, including Texas, who immediately vowed to proceed with voting restrictions that had been challenged under the now-undermined part of the VRA. The alacrity with which Texas, North Carolina and other states have rushed to take advantage of the ruling seriously weakened the sober conservative argument, from Chief Justice John Roberts and others, that Southern states no longer needed to be singled out for special scrutiny because they had long since left their discriminatory ways behind. And it all but invited Attorney General Eric Holder to take this new step, to announce that his department would still do everything in its power to ensure fairness at the polls.

Editorials: The Justice Department’s voting rights gambit, and what it means | Washington Post

The Justice Department on Thursday announced that it is fighting back after the Supreme Court effectively invalidated part of the Voting Rights Act. In its first step, Justice signaled that it would support a lawsuit against Texas’s GOP-drawn redistricting plan and seek to get a federal judge to require the state to continue to obtain pre-clearance for any electoral changes — as it did before part of the VRA was struck down. Justice is also expect to sue to stop Texas’s new Voter ID law. The move is a significant one, for a few reasons. First, it signals that the Obama administration is not going to wait and cross its fingers hoping Congress will replace the VRA language that was struck down. The Supreme Court struck down the formula that determines which states and areas with a history of racial discrimination are required to gain pre-clearance for electoral changes — effectively rendering pre-clearance inoperable until a new formula is established. In its decision, the court noted that Congress can simply replace the formula with a new one.

Editorials: Will the GOP’s North Carolina End Run Backfire? | Rick Hasen/The Daily Beast

Anyone wondering about the importance of the Supreme Court’s recent ruling hobbling a key part of the Voting Rights Act needs look no further than North Carolina, whose Republican legislature is poised to enact one of the strictest voting laws in the Nation, one which will make it harder to register and vote, likely hurting minority voters most. North Carolina is making it harder to vote now because it can, but recent experience in Florida and elsewhere shows it is a decision North Carolina Republicans may come to regret. Until last month, 40 of North Carolina’s 100 counties were covered by Section 5 of the Voting Rights Act. This meant that the state could not make any changes in its voting rules, however major or minor, without first getting permission from either the U.S. Department of Justice or a three-judge court in Washington D.C. To get approval, it was up to North Carolina to demonstrate to the satisfaction of the feds that any proposed voting changes wouldn’t have the purpose or effect of making minority members worse off.

National: Some Republicans quietly cheer end of voting rights act | MSNBC

Several Republicans spoke out against VRA reform today, but softly. Rep. Franks, who is known for his strident abortion views and opposition to the VRA, struck a respectful and bipartisan tone. He hailed John Lewis as a civil rights hero. He emphasized his openness to working with James Sensenbrenner, the most prominent Republican backer of the VRA. But Franks has not changed his mind. After the hearing, he told me that his “heart and mind is open,” but he doesn’t think VRA reform is necessary. He pointed to parts of the law that the Supreme Court didn’t strike down. And he said when he assesses racism in America, he looks to the Court’s standards, voter turnout in the South, and the “mechanisms of discrimination” that were used in the 1960s. “I don’t know all of the suppression that existed at the time,” he volunteered, but still, Franks said he believes under current precedent, DOJ no longer needs to oversee local voting in advance. Several witnesses and Democratic members marshaled data showing the persistence of voter discrimination today, and the need for the VRA’s supervision. But just as Senate Democrats muddled their focus at yesterday’s hearing, some House Democrats hit on themes that are unlikely to recruit GOP support.  (Rick Hasen, an election law expert, has more on that point.)

Voting Blogs: The Chances of a Deal to Fix the VRA After Shelby County? Observations about the Senate Judiciary Committee Hearing | Election Law Blog

I had a chance to watch a good part of the Senate Judiciary Committee hearing today. It makes me more pessimistic about the chances of a deal to improve the Voting Rights Act after the Supreme Court effectively gutted section 5 in the Shelby County case. Back in February I organized a Reuters Opinion symposium on what Congress could do if the Supreme Court struck down section 5. My thinking was that such a decision would be controversial and Republicans might jump at the chance to fix the Act to improve their position with minority voters. (It’s a point I reaffirmed in this NY Times oped.) Symposium participants offered good ideas for improvements, and after the decision Rick Pildes had an important post on increasing the use of “bail in” as another alternative. I noted in the Reuters piece that I did not expect a new coverage formula to emerge, and one question would be whether a VRA fix would look more like a race-based remedy or more like an election administration (“We’ve got to fix that”) remedy. Today’s hearing showed how far apart Democrats and Republicans are.  The Democrats seemed to be grandstanding (as when Sen. Durbin attacked ALEC) or living in a different universe (as when Sen. Klobuchar asked questions about same day voter registration). Sen. Whitehouse talked about voter fraud as a non-existent problem.  These are not the ways to get at a bipartisan compromise on new VRA legislation.

National: Did Scalia add ‘virus’ to Arizona voting opinion? | MSNBC

A Supreme Court decision Monday that struck down an Arizona law requiring people to provide proof of citizenship when registering to vote was hailed by voting-rights advocates as a big win. But several legal scholars say the ruling, written by Justice Antonin Scalia, could in fact set back the voting-rights cause in cases to come. As Spencer Overton, a law professor at George Washington University writing inThe Huffington Post, put it, Scalia “may have implanted today’s opinion with a virus that may hamper federal voting protections in the future.” In his opinion, Scalia found that the Constitution’s “Elections Clause” gives Congress the authority to set the “times, places, and manner” for holding congressional elections. As a result, Scalia ruled, Arizona’s law, known as Proposition 200, is pre-empted by the federal National Voter Registration Act, which requires states to accept a federal form that makes people attest under penalty of perjury that they’re citizens, but doesn’t make them show proof. So far so good for voting rights. But Scalia also ruled—and six other justices agreed—that the Elections Clause does not give Congress the power to set voter qualifications.

New Jersey: Several mull run for U.S. Senate special election while Democrats consider challenging it | NorthJersey.com

Potential U.S. Senate candidates scrambled to muster support as Democrats considered a legal challenge to the special election Governor Christie set for October and questions grew about the $24 million price tag, with one lawmaker pushing to move up the November election. With the primary over and the late Sen. Frank Lautenberg’s funeral behind him, Christie will soon decide on his appointment for the vacant seat, sources close to the governor said Wednesday. During his Tuesday news conference announcing the special election, Christie indicated he wanted to have a replacement in Washington, D.C. next week when Congress debates immigration reform. A spokesman for Newark Mayor Cory Booker said volunteers were out collecting signatures Wednesday, but would not say whether the Democrat would announce a run. Only one person has formally declared his candidacy for the August primary – former Bogota Mayor Steve Lonegan, a conservative Republican. And some potential candidates have already taken themselves out of the running, Republican Sen. Tom Kean Jr. and Sen. Kevin O’Toole both said they are focused on winning reelection to their state offices. Democrats, meanwhile, are still exploring going to court to block the special election.

Voting Blogs: Taking on American Political Dysfunction without Changing the Constitution | FairVote.org

In his draft paper on Political Dysfunction and Constitutional Change, University of California-Irvine professor Rick Hasen makes a powerful case for the need for out-of-the-box thinking on American political reform. But he also makes a curious omission. Fair voting alternatives to winner-take-all elections do not receive a single mention in the paper, even though they were promoted in one of Hasen’s major sources, Thomas Mann and Norman Ornstein’s 2012 book It’s Even Worse Than It Looks. Hasen has a well-deserved reputation as one of our most thoughtful law professors, and his paper has generated considerable reaction in the political blogosphere. It posits three basic claims: 1) The government of the United States is currently dysfunctional, 2) that dysfunction could be solved by switching to a parliamentary system of governance – that is, government where the executive is chosen by the legislature, and 3) switching to a parliamentary system is the only way to end the dysfunction if the problem does not eventually solve itself.