[EL] Texas redistricting to SCOTUS; More News

[Rob Richie]

Hi, Jim,

There's been discussion about the unit rule within the RNC this year, as
I'm sure you're aware. If you go back to the 1964 minutes during the debate
over Rule 38's adoption in its current form (clarifying rules that had been
in place for decades before that), you'll see some important discussion
about the power of delegates to break from their state's majority. The
discussion starts at the end of page 64 here, with Rule 38 at that time
part of Rule 18:
http://library.constantcontact.com/download/get/file/1103565212150-4/1964+Unit+Rule+Debate.pdf

Underscoring an alternative interpretation of unit rule, Webster's defines
it as: "a rule, as in national political conventions, that the entire vote
of a delegation, if the state's party apparatus so chooses, shall be cast
as a unit, disregarding minority votes in the delegation." Dictionary.com
has it at "a rule whereby a state's delegation votes, as a unit, not
recognizing minority votes within the delegation"  [
http://dictionary.reference.com/browse/unit+rule]''

Based on such definitions and the 1964 debate, among other things, the
intent of Rule 38 could be interpreted to mean that each convention
delegate has the right to vote for a candidate based on his or her own
convictions rather than as instructed based on the results of a primary or
caucus. The rule provides a _potential_basis of a convention challenge,
especially if the party has been divided during the nomination contests and
delegates believe a nominee has been imposed on them more than chosen by
them -- as arguably was the case with some delegates in 2008, when Sen.
McCain became the inevitable nominee primarily due to non-majority wins in
states. Such a challenge seems especially likely in states with
winner-take-all rules or states where non-Republican voters have provided
the swing vote that tilted states for a certain candidate.

This all ties into the broader reality that the RNC rules contain various
provisions that speak to a time when parties really mattered as
institutions -- not just as "brands," but as organizations of people coming
together, getting organized, articulating platform positions and choosing
candidates to represent those positions. In the modern era, party
conventions are more showcases for candidates, and states can shrug off a
loss of half their delegates because they have some to believe conventions
(and party rules) don't really matter too much.

Our piece is suggesting in the narrow sense that this difference between
the letter of the rules and the way they have come to interpreted could
lead to some surprises next year. Regardless, we think it an important
conversation, as we value people coming together in organized associations.
You can see related writing about this topic on this paper I coauthored
last year on California's new Top 2 law and our suggestions of better ways
to strengthen association rather than weaken it:
http://www.fairvote.org/california-s-proposition-14-weaknesses-and-remedies

By the way, Jim - what do you think of Florida's flagrant violation of the
rule prohibiting winner-take-all primaries before April 1st? Like several
other states, it was penalized for advancing the date of its contest, but
not seemingly for this violation of the rules.
Rob Richie




On Sun, Nov 27, 2011 at 8:38 AM, <JBoppjr at aol.com> wrote:

> **
> Regarding this:
>  “A rogue convention? How GOP party rules may surprise in 2012″<http://electionlawblog.org/?p=25758>
> Posted on November 26, 2011 2:51 pm <http://electionlawblog.org/?p=25758>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Rob Richie and Elise Helgesen have written this *Politico* oped<http://www.politico.com/news/stories/1111/69048.html>
> .
>
>     This article is wrong about the RNC rules. The RNC Rules prohibit a
> "unit rule." A unit rule is a term of art which does not mean a
> winner-take-all primary. A unit rule mean allowing a delegation to vote by
> majority vote to require all delegates in the delegation to vote a certain
> way.
> Click here: unit rule - definition of unit rule by the Free Online
> Dictionary, Thesaurus and Encyclopedia.<http://www.thefreedictionary.com/unit+rule>
>
>   We outlaw a unit rule, in Rule 38, not winner- take-all primaries.
>
> James Bopp, Jr.
> National Committeeman - Indiana
> Vice Chairman
> Republican National Committee
> The Bopp Law Firm
> The National Building
> 1 South 6th Street
> Terre Haute, IN 47807
> voice: 812-232-2434
> fax: 812-235-3685
> cell: 812-243-0825
> e-mail: jboppjr at aol.com
>  In a message dated 11/26/2011 7:07:25 P.M. Eastern Standard Time,
> rhasen at law.uci.edu writes:
>
>  Breaking News: Texas Going to U.S. Supreme Court to Block Congressional
> Redistricting Plan <http://electionlawblog.org/?p=25774>
> Posted on November 26, 2011 4:04 pm <http://electionlawblog.org/?p=25774>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> The state’s press release is here<http://txredistricting.org/post/13369705027/abbott-will-seek-stay-from-supreme-court-on-monday>,
> and it announces Paul Clement as part of Texas’s legal team.  The three
> judge court adopted the congressional plan it announced as tentative on
> Wednesday without any changes.  Judge Smith dissented.  See the opinions
> here <http://tinyurl.com/6oadgqh>.  (There were also opinions with a
> dissen<http://txredistricting.org/post/13354018047/where-things-stand-as-of-saturday-morning>t
> on the state legislative plans, and those too may get brought to SCOTUS in
> the near future.)
>
> The congressional plan adopted by the three-judge court in San Antonio
> (because of the Court’s failure to obtain preclearance in time from a
> three-judge court in DC) is seen to benefit Democrats, and partisan
> politics is the subtext for this voting rights challenge.
>
> Judge Smith in his dissent raises some meaty (and thorny) Supreme Court
> questions, but I am not at all sure the Court would want to wade into this
> now, on such a truncated time frame (filing for the congressional seats is
> Monday, unless blocked by a Supreme Court stay) and for these lines which
> will just be used in these elections.
>
> The Court majority also took a dig at Texas, explaining that it likely
> would not have been in this mess had it applied to DOJ for preclearance
> rather than bypassing DOJ and going instead to a three-judge court.
>
> To keep up on all things related to this case, follow Texas Redistricting<http://txredistricting.org/>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25774&title=Breaking
> News: Texas Going to U.S. Supreme Court to Block Congressional
> Redistricting Plan&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25774&title=Breaking%20News%3A%20Texas%20Going%20to%20U.S.%20Supreme%20Court%20to%20Block%20Congressional%20Redistricting%20Plan&description=>
>  Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
> redistricting <http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>,
> Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>  *WaPo* Profiles Americans Elect <http://electionlawblog.org/?p=25772>
> Posted on November 26, 2011 3:51 pm <http://electionlawblog.org/?p=25772>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Here<http://www.washingtonpost.com/politics/moderate-americans-elect-group-hoping-to-add-third-candidate-to-2012-election-ballot/2011/11/21/gIQAtPpMtN_story.html?tid=pm_pop>.
> And at least it makes a brief mention (near the end of the article) of the
> potential democracy problems<http://www.politico.com/news/stories/1111/67965.html>with the group.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25772&title=<i>WaPo</i>
> Profiles Americans Elect&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25772&title=%3Ci%3EWaPo%3C%2Fi%3E%20Profiles%20Americans%20Elect&description=>
>  Posted in third parties <http://electionlawblog.org/?cat=47> | Comments
> Off
>  12 Charged with Absentee Ballot Fraud in Ga; *Daily Caller* Inexplicably
> Ties this to Need for Voter ID <http://electionlawblog.org/?p=25764>
> Posted on November 26, 2011 3:40 pm <http://electionlawblog.org/?p=25764>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Here<http://dailycaller.com/2011/11/24/12-charged-with-voter-fraud-in-georgia-election/>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25764&title=12
> Charged with Absentee Ballot Fraud in Ga; <i>Daily Caller</i> Inexplicably
> Ties this to Need for Voter ID&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25764&title=12%20Charged%20with%20Absentee%20Ballot%20Fraud%20in%20Ga%3B%20%3Ci%3EDaily%20Caller%3C%2Fi%3E%20Inexplicably%20Ties%20this%20to%20Need%20for%20Voter%20ID&description=>
>  Posted in election administration <http://electionlawblog.org/?cat=18>, voter
> id <http://electionlawblog.org/?cat=9> | Comments Off
>  “House to Take Up New Bill to Repeal Presidential Campaign Funding, EAC”<http://electionlawblog.org/?p=25761>
> Posted on November 26, 2011 3:36 pm <http://electionlawblog.org/?p=25761>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> BNA<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=23679558&vname=mpebulallissues&fn=23679558&jd=a0c9u8r3g3&split=0>:
> “The House is set to take up new legislation the week of Nov. 28 that would
> seek cuts in federal spending by repealing the 35-year-old federal law
> providing public funding for presidential campaigns and eliminating the
> Election Assistance Commission. The new measure (H.R. 3463) is sponsored by
> Rep. Gregg Harper (R-Miss.) and is set for consideration in the House Rules
> Committee on Nov. 29. House GOP leaders announced they plan to bring the
> bill to the floor as soon as Dec. 1.”
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25761&title=“House
> to Take Up New Bill to Repeal Presidential Campaign Funding, EACâ€
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25761&title=%E2%80%9CHouse%20to%20Take%20Up%20New%20Bill%20to%20Repeal%20Presidential%20Campaign%20Funding%2C%20EAC%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10>, election
> administration <http://electionlawblog.org/?cat=18>, Election Assistance
> Commission <http://electionlawblog.org/?cat=34> | Comments Off
>  “A rogue convention? How GOP party rules may surprise in 2012″<http://electionlawblog.org/?p=25758>
> Posted on November 26, 2011 2:51 pm <http://electionlawblog.org/?p=25758>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Rob Richie and Elise Helgesen have written this *Politico* oped<http://www.politico.com/news/stories/1111/69048.html>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25758&title=“A
> rogue convention? How GOP party rules may surprise in 2012″&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25758&title=%E2%80%9CA%20rogue%20convention%3F%20How%20GOP%20party%20rules%20may%20surprise%20in%202012%E2%80%B3&description=>
>  Posted in political parties <http://electionlawblog.org/?cat=25>,
> primaries <http://electionlawblog.org/?cat=32> | Comments Off
>  What Brings Ds and Rs Together? <http://electionlawblog.org/?p=25755>
> Posted on November 26, 2011 2:48 pm <http://electionlawblog.org/?p=25755>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Concern about election transparency<http://www.aspentimes.com/article/20111124/COLUMN/111129937/1021&parentprofile=1061>in Colorado and support for instant
> runoff voting<http://www.commercialappeal.com/news/2011/nov/25/guest-column-next-election-use-instant-runoff/>in Memphis.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25755&title=What
> Brings Ds and Rs Together?&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25755&title=What%20Brings%20Ds%20and%20Rs%20Together%3F&description=>
>  Posted in alternative voting systems <http://electionlawblog.org/?cat=63>,
> election administration <http://electionlawblog.org/?cat=18> | Comments
> Off
>  “Walmart Wins Big with California Initiatives”<http://electionlawblog.org/?p=25752>
> Posted on November 23, 2011 7:24 pm <http://electionlawblog.org/?p=25752>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> *California Watch* reports<http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/23/BA0O1M3DNR.DTL>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25752&title=“Walmart
> Wins Big with California Initiatives†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25752&title=%E2%80%9CWalmart%20Wins%20Big%20with%20California%20Initiatives%E2%80%9D&description=>
>  Posted in direct democracy <http://electionlawblog.org/?cat=62> | Comments
> Off
>  “Political Disclosure Won’t Inhibit Corporate Speech”<http://electionlawblog.org/?p=25750>
> Posted on November 23, 2011 6:00 pm <http://electionlawblog.org/?p=25750>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Bruce Freed has written this letter to the editor<http://online.wsj.com/article/SB10001424052970204190504577036601127629604.html?mod=djemITP_h>responding to a recent
> *WSJ *oped<http://online.wsj.com/article/SB10001424052970203716204577018623513596432.html>by Brad Smith.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=25750&title=“Political
> Disclosure Won’t Inhibit Corporate Speech†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D25750&title=%E2%80%9CPolitical%20Disclosure%20Won%E2%80%99t%20Inhibit%20Corporate%20Speech%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>
> --
> Rick Hasen
> Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
>
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>
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>



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Rob Richie
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