[EL] Evenwel brief

Sun Aug 2 09:58:38 PDT 2015

As a not-completely-consistent originalist\textualist\contextualist, I’d suggest that key constitutional texts that ought to be at issue are (1) sections 2 and 5 of the 14th Amendment (restating, in section 2, to some degree, Art. I, sec. 2, cl. 3); Art. I, sec. 4, cl. 1; and the 15th, 19th, and 26th Amendments (together with their provisions for enforcement by Congress). Note the repeated emphasis on voting rights of citizens and also the principle of counting all persons (not just citizens) for purposes of apportioning House seats.

The congressional debates over the history of section 2 of the 14th Amendment show a keen concern for allowing citizen voters power to represent non-citizens’ or non-eligible-for-voting citizens’ interests (except, in section 2 of the 14th Amendment, representation of persons who are disenfranchised despite citizenship etc.). See my article on the failed DC House Voting Rights Act.

There is plenty of room for a state to use either citizens or total population in apportionment.

None of this is original with me, of course.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Marty Lederman
Sent: Sunday, August 02, 2015 5:39 AM
To: Jboppjr
Cc: law-election at uci.edu
Subject: Re: [EL] Evenwel brief

Jim:  Here's the pertinent constitutional text that the Framers wrote:  "nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws."  I'm curious which of these results you think those words command:

1.  States must draw their districts to roughly equalize population in each.

2.  States must draw their districts to roughly equalize numbers of citizens in each.

3.  States must draw their districts to roughly equalize numbers of citizens of voting age in each.

4.  States must draw their districts to roughly equalize numbers of registered voters in each.

5. States must choose from among one of Choices 2-5, at their discretion.

6.  States are free to draw their districts without regard to the number of persons, citizens, registered voters, or citizens of voting age within each district.

Also, I'm heartened to see that you think "prior decisions" of the Court ought to be (in some sense) "sacrosanct."  I assumes this means you've had a change of heart about Austin and FEC v. McConnell (and the 60+ years of practice that they had ratified).

On Sun, Aug 2, 2015 at 8:18 AM, <JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
The problem with this well argued critique of the Evenwel brief is that, in the age of the Living Constitution, it is just irrelevant. What the Framers adopted in the Constitution and what they intended when they wrote it does not address our evolving, new and improved understanding of what is right and just for America today.  And when the "Legislature" means the "People," and "established by the States" means "established by the States and the federal government," honestly who cares what the Framers wrote.

And if prior decisions of the Court are just to be rewritten or discarded at will to get the new and improved result, then what is sacrosanct about Garza or Los Angeles County or Burns that they should stand in the way?

So the problem here is that if the Court is not tethered to the Constitution and the plain meaning of its text when liberal results obtain, why is it suddenly limited by the words of the Constitution when liberals think that the Framers actually got it right?  Jim

PS I have not studied this issue so I have no opinion on who is right or what the right answer is.

In a message dated 8/1/2015 9:28:43 P.M. Eastern Daylight Time, ely at compass-demographics.com<mailto:ely at compass-demographics.com> writes:
I don’t know whether to thank you or curse you for posting this but I can’t prevent myself from responding to a few of the arguments in the brief.

1. The federal analogy.  The brief repeats an error that Los Angeles County made and Roberts pointed out in Garza. The federal analogy that the courts have rejected is the geographic entity representation (primarily Senate) analogy. In the Federal design the Senate represents the states while the House represents the people. Therefore the geographical representation model of the Senate is inapplicable within the States, especially when applied to the House of Representatives. The federal model of apportionment by population in the house on the other hand is directly applicable to apportionment within states since "the people" are still the people. The part of the federal model relative to the house that is inapplicable is the lack of population equality resulting from the guarantee of 1 representative to each state, and the indivisibly of individual representatives between states. It is the analogy of States to Counties or other municipalities that is rejected.

2. Equal Protection and the right to vote vs the right to representation. The right to vote is limited to "eligible voters", but the right to representation belongs to the "great body of the people".  The brief quotes the 14th amendment "in relevant part:"

            No State shall ... deny to any person within its
            jurisdiction the equal protection of the laws.

They are correct that this is the relevant part. However they proceed to completely ignore it, confusing it with another part of the 14th Amendment which protects only Citizens. The Equal Protection Clause is explicit in its application to "any person within its jurisdiction". It does nothing to elevate the protection of eligible voters over those not eligible to vote. The apportionment clause of the 14th amendment makes clear again that representation is based on what Madison called "the great body of the people". It excludes "Indians not taxed" since they were not subject to a State's Jurisdiction, only to the Federal Government, and because before the 17th amendment, taxation and representation were intended to have the same basis. In addition the apportionment clause includes a punitive measure for states who deny the right to vote on an illegitimate basis. They are to lose representation, not according to the number who are denied that right but rather based on the percentage denied of those who should be able to vote, applied to the total apportionment population. This again clearly identifies the eligible voter population as a subset of the apportionment population, and not a proxy or substitute for it.

The misunderstanding of the interaction between the right to vote and the right to representation leads to a misapplication of the concept of an equally weighted vote. There is in fact no conflict between equal representation and equal vote weight. The purpose of single member districts is to tie representation of people to specific representatives, not as a tool for convenient voting. If a voter in one part of the state has 1 vote to cast for 1 representative who represents 1,000,000 people while a voter in another part of the state has 1 vote to cast for 1 representative who represents 100,000 people then the one has a vote that has 10 times the weight of the other, regardless of how many other eligible voters there are in either district. This is what Reynolds and other decisions find unacceptable. If each district represents an equal population and is not illegal on some basis other than size, then all eligible voters within a given district are similarly situated and have an equal vote, while all persons in the state are similarly situated and have equal representation.  Each voter is entitled to 1 vote for 1 representative in a single member district system. Other systems which are used for other parts of government behave differently. Each voter is entitled to a single vote for Governor for example and in those elections areas with more eligible voters have more influence because the interaction between the right to vote and the right to representation is different. Other systems for election of multiple representatives would have still different interactions. The benefit of a single member district system is that it allows the people to have equal and accessible representation while also giving similarly situated voters equal votes. If that function is lost then people do not have equal protection, they have protection that is proportional to the subset who are eligible to vote.
There is clearly nothing in the 14th amendment that was intended to change the universal right to representation, or to deny equal protection of the laws to those who do not have the right to vote. In fact the opposite is true. Drawing districts is about the allocation of representation (universal), and is quite distinct from the right to vote (limited). Each representative has voting power that is roughly proportional to the number of persons within his district. Thus for representational purposes, one person (is proportional to) one vote, while for election purposes one voter has one vote.

3. Burns. The brief misinterprets the logic of Burns. Hawaii's use of registered voters as a basis for apportionment was clearly not an acceptable one on its face. The court's examination of it was not a question of whether the state had the right to make that choice. Instead it was a question of whether it's use provided a reasonable approximation of a basis that was acceptable. The most important part of that analysis dealt with the exclusion of non-resident population such as tourists and military personnel en-route to overseas deployment. Most of these people were US citizens with voting rights, but they were only temporarily in Hawaii, while resident and represented elsewhere. They were not being excluded from representation. The court's determination was that the use of registered voters resulted in an acceptable apportionment of resident population or locally eligible voter population, and that there was no showing that either of these unconstitutionally included or excluded population from the apportionment base.

The district court here (Evenwel) was correct to dismiss this suit because it makes no claim that any population was unconstitutionally included or excluded from the apportionment base. The brief merely claims that the inclusion of population not eligible to vote was somehow made unconstitutional by the fact that it produces a significantly different outcome than the choice of apportioning based on eligible voters. But the Burns court made clear that significantly different outcomes could be expected and that the difference reflected legitimate choices about the nature of representation.

            "At several points, we discussed substantial equivalence in terms of voter population or citizen population, making no distinction between the acceptability of such a test and a test based on total population. 20 Indeed, in WMCA, Inc. v. Lomenzo, 377 U.S. 633 , decided the same day, we treated an apportionment based upon United States citizen population as presenting problems [384 U.S. 73, 92]   no different from apportionments using a total population measure. Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. 21 The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, cf., e. g., Carrington v. Rash, 380 U.S. 89 , the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.
This does not mean that the choice of a legitimate apportionment base is immune to challenge. The choice is subject to challenge if it has the purpose or effect of minimizing the voting strength of racial or other protected minorities, but no such infirmity was shown or alleged in Burns. Similarly, no such infirmity has been alleged in Evenwel. For the Evenwel theory to prevail it would need to show that voters who live in neighborhoods with higher than average voters per person are a protected minority defined by a suspect classification, but no such allegation has been made.

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Josh Blackman
Sent: Saturday, August 01, 2015 6:07 AM
To: Marty Lederman
Cc: law-election at UCI.edu
Subject: Re: [EL] Evenwel brief

Attached is the Evenwel brief.

---------------------------------------------------------------------------
Josh Blackman
http://JoshBlackman.com<http://joshblackman.com/>
Unprecedented: The Constitutional Challenge to Obamacare<http://www.amazon.com/gp/product/1610393287/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=1610393287&linkCode=as2&tag=joshblaccom-20>

On Fri, Jul 31, 2015 at 2:38 PM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:
If anyone obtains a copy of, or link to, the topside brief, due today, please send it to the list.  Thanks very much.

Sent from my iPhone

On Jul 31, 2015, at 12:06 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Note: Heather Gerken's post<http://electionlawblog.org/?p=74682> on the Charles/Feuntes-Rohwer Iowa piece on the Voting Rights Act had the wrong link to their piece.  You can find it at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2377470.

“This is why the Voting Rights Act is on trial in North Carolina”<http://electionlawblog.org/?p=74765>
Posted on July 31, 2015 9:01 am<http://electionlawblog.org/?p=74765> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this post<http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/31/this-is-why-the-voting-rights-act-is-on-trial-in-north-carolina/?postshare=1781438352128737> for The Monkey Cage at WaPo.  It begins:

In a Winston-Salem, N.C. federal courthouse, closing arguments<http://www.twcnews.com/nc/triad/news/2015/07/30/closing-arguments-delayed-in-nc-elections-trial.html> are taking place this morning in a hotly-contested trial over North Carolina’s restrictive voting law<http://www.nytimes.com/2015/07/14/us/sides-dispute-basis-of-north-carolina-voting-laws-as-trial-contesting-them-opens.html>. The U.S. Department of Justice and civil rights groups say that the 2013 law<http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v9.pdf>, passed by a Republican legislature over the objections of Democrats, violates the Voting Rights Act and the Constitution. The state defends its law as necessary to prevent voter fraud and keep public confidence in the electoral process.

As the New York Times explained<http://www.nytimes.com/2015/07/14/us/sides-dispute-basis-of-north-carolina-voting-laws-as-trial-contesting-them-opens.html>, “The contested measures reduced early voting days, ended same-day registration, ended out-of-precinct voting and halted the preregistration of 16- and 17-year-old high school students. These measures had been adopted in the past 15 years to increase voter participation and were disproportionately used by black, Hispanic and younger voters.”

Since the Voting Rights Act passed 50 years ago — on Aug. 6, 1965 — there have been many legal disputes over the extent of court protection for minority voting. The outcome of this one, like many cases before it, may depend upon how well murky law matches up with political science evidence.

It concludes:

Judge Schroeder could well be faced with a situation where plaintiffs have trouble proving the law will have a large discriminatory effect on African-American voters, but also ample evidence that North Carolina had no good reason antifraud or voter confidence reason for passing this law. The law was probably intended to help Republicans — who are overwhelmingly supported by white voters and not African-Americans in North Carolina — stay in office.

With this evidence and a murky legal standard, it is unclear what Judge Schroeder will do, but he was skeptical of plaintiffs’ case at an earlier stage of the case, denying a preliminary injunction<http://electionlawblog.org/?p=64152> against some of these practices.

Whatever Judge Schroeder decides, the North Carolina case could well end up before the Supreme Court. And if the history of the Supreme Court’s cases over 50 years of the Voting Rights Act is any guide, the fate of North Carolina’s law may depend less upon the political science evidence before the Court and more on the Justices’ ideological commitments and beliefs about the appropriate scope of voting protections for minorities.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74765&title=%E2%80%9CThis%20is%20why%20the%20Voting%20Rights%20Act%20is%20on%20trial%20in%20North%20Carolina%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Symposium: Ideology, partisanship, and the new ‘one person, one vote’ case”<http://electionlawblog.org/?p=74763>
Posted on July 31, 2015 8:59 am<http://electionlawblog.org/?p=74763> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this contribution<http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case/> to SCOTUSBlog’s symposium on Evenwel v. Abbott.<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/?wpmp_switcher=desktop>  It begins:

It is tempting to think of the plaintiffs in Evenwel v. Abbott<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/?wpmp_switcher=desktop> as conservatives. After all, the brainchild<http://electionlawblog.org/?p=72739>behind this new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation<http://www.nytimes.com/2012/02/24/us/edward-blum-and-the-project-on-fair-representation-head-to-the-supreme-court-to-fight-race-based-laws.html>, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County<https://supreme.justia.com/cases/federal/us/570/12-96/> v. Holder case and continued attacks on affirmative action in the second coming of theFisher case<http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin-2/?wpmp_switcher=desktop>. But the theory the Evenwelplaintiffs pursue is anything but conservative: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice. Evenwel should be seen for what it is: not a conservative case but an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.

It concludes:

Evenwel is a case which should be equally disturbing for conservatives and liberals. For conservatives, it is a case which challenges existing precedent for no reason, undermines federalism concerns, and goes against constitutional text, history and practice. For liberals, the case looks like little more than a Republican power grab, seeking to have the Court take away discretion for states in an arena in which states should have some leeway in deciding on the appropriate means of equal representation. It forces states to draw districts under a court-mandated theory that those without the vote, including children, felons, and non-citizens, do not deserve representations in state legislatures.

This is the rare case where liberals and conservatives can unite behind the state of Texas. Texas has properly asked<http://sblog.s3.amazonaws.com/wp-content/uploads/2015/05/14-940-bio.pdf> the Supreme Court to leave the “one person, one vote” question where it has resided for almost fifty years: with the states.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74763&title=%E2%80%9CSymposium%3A%20Ideology%2C%20partisanship%2C%20and%20the%20new%20%E2%80%98one%20person%2C%20one%20vote%E2%80%99%20case%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
Revealing @SeanTrende- at Dale_E_Ho Exchange in NC Voting Rights Trial<http://electionlawblog.org/?p=74760>
Posted on July 31, 2015 8:57 am<http://electionlawblog.org/?p=74760> by Rick Hasen<http://electionlawblog.org/?author=3>

I excerpt it in this post<http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/07/31/this-is-why-the-voting-rights-act-is-on-trial-in-north-carolina/?postshare=1781438352128737> at The Monkey Cage:

North Carolina passed its 2013 restrictive voting law just a month afterShelby. So is the change connected to is history of race discrimination? Real Clear Politics’ Sean Trende, testifying as an expert<http://www.digitaljournal.com/news/politics/expert-says-viva-made-north-carolina-s-voting-laws-mainstream/article/439587> political analyst for North Carolina, noted that seven other states besides North Carolina had no same-day registration, no out-of-precinct voting, less than 17 days of early voting, no preregistration, and a photo ID requirement—all five changes that were being challenged. Many states lacked one, two or three of these voting rules. But only eight states lacked all five.  That testimony led to a very interesting exchange with ACLU lawyer Dale Ho,<https://www.aclu.org/bio/dale-ho> representing the plaintiffs, on cross-examination:

    Ho: Could you read those eight states into the record, please?

Trende: Alabama, Michigan, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia.

Ho:  Now, according to your opinion in this case, these eight states are in the mainstream; correct, Mr. Trende?

Trende: With respect to the voting practices at issue in this case, yes.

Ho: Now, it is true, is it not, Mr. Trende, that all eight of these states, with the exception of Tennessee, were at one point covered in whole or in part by Section 5 of the Voting Rights Act?

Trende: I do not know.

Ho of course was right that these seven were former preclearance states, suggesting that the vestiges of intentional racial discrimination still linger 50 years after the Voting Rights Act’s passage, something Trende did not factor into his analysis.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74760&title=Revealing%20%40SeanTrende-%40Dale_E_Ho%20Exchange%20in%20NC%20Voting%20Rights%20Trial&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Bush-aligned super PAC nets more than $100 million”<http://electionlawblog.org/?p=74758>
Posted on July 31, 2015 8:51 am<http://electionlawblog.org/?p=74758> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<http://www.washingtonpost.com/news/post-politics/wp/2015/07/31/bush-aligned-super-pac-nets-more-than-100-million/>
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74758&title=%E2%80%9CBush-aligned%20super%20PAC%20nets%20more%20than%20%24100%20million%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
The Kinder, Gentler Koch Bros. (Spending Up to $889 Million with their Partners on Campaigns in 2016)<http://electionlawblog.org/?p=74756>
Posted on July 31, 2015 8:49 am<http://electionlawblog.org/?p=74756> by Rick Hasen<http://electionlawblog.org/?author=3>

Nick Confessore<http://www.nytimes.com/2015/07/31/us/koch-brothers-brave-spotlight-to-try-to-alter-their-image.html?_r=1> in the NYT on Kochs’ vaseline on the lens <http://www.huffingtonpost.com/2015/04/14/vaseline-camera-trick-effect_n_7062900.html> trick.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74756&title=The%20Kinder%2C%20Gentler%20Koch%20Bros.%20%28Spending%20Up%20to%20%24889%20Million%20with%20their%20Partners%20on%20Campaigns%20in%202016%29&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Embattled Florida elections chief goes on the defense”<http://electionlawblog.org/?p=74754>
Posted on July 31, 2015 8:47 am<http://electionlawblog.org/?p=74754> by Rick Hasen<http://electionlawblog.org/?author=3>

Tampa Bay Times<http://www.tampabay.com/news/politics/legislature/embattled-florida-elections-chief-goes-on-the-defense/2239495>:

Under fire once again for lapses in oversight of Florida’s voter database and lax communication, Gov. Rick Scott’s top elections official says he’ll “over-communicate” in the future.

For embattled Secretary of State Ken Detzner, it’s an all-too-familiar refrain as he tries to improve his strained relationships with county election supervisors, who depend on a reliable database as they tabulate votes in Florida elections.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74754&title=%E2%80%9CEmbattled%20Florida%20elections%20chief%20goes%20on%20the%20defense%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>
“Democrats far behind GOP in raising money for ’16 super PACs”<http://electionlawblog.org/?p=74752>
Posted on July 31, 2015 8:46 am<http://electionlawblog.org/?p=74752> by Rick Hasen<http://electionlawblog.org/?author=3>

Juile Bykowicz AP<http://news.yahoo.com/democrats-far-behind-gop-raising-money-16-super-071744542--election.html>:

But most of those [super PACs] aligned with specific presidential candidates have already said how much they raised between January and the end of June. So far, they account for roughly $2 of every $3 given in the 2016 presidential race, with the vast majority of those donations aimed at helping Republicans win back the White House.

Less than 9 percent of the money given to candidate-specific super PACs so far will benefit Clinton and her rivals for the Democratic nomination, according to an Associated Press analysis. The AP compared money raised by formal presidential campaigns with what the super PACs say they plan to report having raised on Friday.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74752&title=%E2%80%9CDemocrats%20far%20behind%20GOP%20in%20raising%20money%20for%20%E2%80%9916%20super%20PACs%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“In Money Race, Rick Perry’s Campaign Shows the Power of Few”<http://electionlawblog.org/?p=74750>
Posted on July 31, 2015 8:42 am<http://electionlawblog.org/?p=74750> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg reports.<http://www.bloomberg.com/politics/articles/2015-07-31/perry-s-campaign-shows-the-power-of-few?cmpid=BBD073115_POL>
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74750&title=%E2%80%9CIn%20Money%20Race%2C%20Rick%20Perry%E2%80%99s%20Campaign%20Shows%20the%20Power%20of%20Few%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Zephyr Teachout on Getting Big Money Out of Politics”<http://electionlawblog.org/?p=74748>
Posted on July 31, 2015 8:41 am<http://electionlawblog.org/?p=74748> by Rick Hasen<http://electionlawblog.org/?author=3>

Justin Miller interviews Zephyr at TAP.<http://prospect.org/article/zephyr-teachout-getting-big-money-out-politics>
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74748&title=%E2%80%9CZephyr%20Teachout%20on%20Getting%20Big%20Money%20Out%20of%20Politics%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“In the Dark About ‘Dark Money'”<http://electionlawblog.org/?p=74746>
Posted on July 31, 2015 8:40 am<http://electionlawblog.org/?p=74746> by Rick Hasen<http://electionlawblog.org/?author=3>

Brad Smith<http://www.campaignfreedom.org/2015/07/30/in-the-dark-about-dark-money/>:

What should be clear is that the very label “dark money,” whether it can be adequately defined or not, is intended as a pejorative to skew the difficult discussion about political speech and participation, government power, and the influence of money and wealthy donors. It’s handy and catchy, so it sticks, but it is not, and is not intended to be, a neutral description. And it’s definition is indeed malleable, so that the merry regulators can use it as they please. When they think a number sounds scary, they use it, as if “dark money” were some clearly defined and measurable concept. When their own numbers are turned back on them (as in pointing out that it is a very small part of total spending), “dark money” again becomes a vague concept, in which no one can know what is lurking below the surface, like some malevolent iceberg or killer shark.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74746&title=%E2%80%9CIn%20the%20Dark%20About%20%E2%80%98Dark%20Money%27%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Ignorant Voters are the Problem: Campaign Finance Laws Won’t Save the Nation from Uninformed Voters”<http://electionlawblog.org/?p=74744>
Posted on July 31, 2015 8:37 am<http://electionlawblog.org/?p=74744> by Rick Hasen<http://electionlawblog.org/?author=3>

Tony Gaughan oped<http://www.usnews.com/news/the-report/articles/2015/07/31/campaign-finance-cant-be-reformed-because-of-ignorant-voters> at US News.  He’s also written What the Scott Walker fundraising controversy means for 2016<https://theconversation.com/what-the-scott-walker-fundraising-controversy-means-for-2016-45147>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Quote of the Day: #SCOTUS Edition<http://electionlawblog.org/?p=74742>
Posted on July 30, 2015 4:34 pm<http://electionlawblog.org/?p=74742> by Rick Hasen<http://electionlawblog.org/?author=3>

“Sometimes people say the Supreme Court is there to protect the voice of a minority… Perhaps, but over time I think most Supreme Court decisions have been accepted as consistent with the views and beliefs and commitments and ideas and hopes and dreams of the people.”

—Justice Anthony Kennedy<http://fox13now.com/2015/07/30/u-s-supreme-court-justice-kennedy-suggests-constitution-evolves-references-same-sex-marriage-case/>, addressing the Utah Bar Association.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
“Why is an obscure Montana company one of John Kasich’s biggest boosters? One day after forming, the LLC gave $500,000 to group backing Ohio governor”<http://electionlawblog.org/?p=74740>
Posted on July 30, 2015 3:06 pm<http://electionlawblog.org/?p=74740> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI<http://www.publicintegrity.org/2015/07/30/17733/why-obscure-montana-company-one-john-kasichs-biggest-boosters>:

A group backing Republican John Kasich‘s presidential aspirations received $500,000 in seed money from a seemingly odd source, according to documents filed today<https://www.documentcloud.org/documents/2187104-new-day-independent-media-committee.html>: an obscure limited liability company in Montana.

But a Center for Public Integrity<http://www.publicintegrity.org/> review of business filings indicates the company is linked to someone quite familiar to Kasich, the current governor of Ohio — a venture capitalist who served in Kasich’s administration.

The limited liability company, called MMWP12 LLC, made a half-million-dollar donation to the pro-Kasich New Day Independent Media Committee the day after the company formed.

Making matters murkier: MMWP12 LLC is actually controlled by another Montana-based company called K2M LLC, according to state business records<https://www.documentcloud.org/documents/2187165-mmwp12-llc-montana-business-records.html>.

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74740&title=%E2%80%9CWhy%20is%20an%20obscure%20Montana%20company%20one%20of%20John%20Kasich%E2%80%99s%20biggest%20boosters%3F%20One%20day%20after%20forming%2C%20the%20LLC%20gave%20%24500%2C000%20to%20group%20b>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Larry Noble Testifies on the IRS and ‘Dark Money’ Before Senate Judiciary Subcommittee”<http://electionlawblog.org/?p=74737>
Posted on July 30, 2015 2:11 pm<http://electionlawblog.org/?p=74737> by Rick Hasen<http://electionlawblog.org/?author=3>

See here.<http://www.campaignlegalcenter.org/sites/default/files/Larry%20Noble%20Testimony%20before%20Senate%20Judiciary%20on%20-%20IRS%20501cs%207-29-15.pdf>
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74737&title=%E2%80%9CLarry%20Noble%20Testifies%20on%20the%20IRS%20and%20%E2%80%98Dark%20Money%E2%80%99%20Before%20Senate%20Judiciary%20Subcommittee%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
State Expert in NC Trial: Walking 3 Miles (Each Way) to Vote Not a Big Deal<http://electionlawblog.org/?p=74735>
Posted on July 30, 2015 1:23 pm<http://electionlawblog.org/?p=74735> by Rick Hasen<http://electionlawblog.org/?author=3>

From the uncorrected transcript of 7/28 from the North Carolina voting trial (my emphasis):

BY MS. EARLS

Q Thank you, Your Honor. I have just a couple of questions. Dr. Hofeller, in your analysis of the proximity to early voting sites, you concluded that a 5-mile range is a reasonable distance; is that correct?

A I’m sorry. I think it was 3 miles, was it not?

Q If it’s a 3-mile range, are you assuming that people will have access to a car or a motor vehicle or are you assuming that they would walk 3 miles?

A Well, I mean, some will have a motor vehicle and some won’t have a motor vehicle.

Q So —

A I know you could probably walk 3 miles. I walk 2 miles a day, and it doesn’t wear me out very much.

Q So you didn’t make any assumption either way as to whether or not people have access to motor vehicles?

A You are correct. I did not make an assumption.

Wow.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74735&title=State%20Expert%20in%20NC%20Trial%3A%20Walking%203%20Miles%20%28Each%20Way%29%20to%20Vote%20Not%20a%20Big%20Deal&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“GOP criticizes ‘offensive’ posts of NC elections appointee”<http://electionlawblog.org/?p=74733>
Posted on July 30, 2015 1:05 pm<http://electionlawblog.org/?p=74733> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.journalnow.com/news/state_region/gop-criticizes-offensive-posts-of-nc-elections-appointee/article_118d62c8-36f5-11e5-8aa5-8ffa1cbb8f94.html>: “North Carolina Republican Party officials say they were unaware of racially tinged social media posts by a man appointed to a county elections board.”
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Posted in election administration<http://electionlawblog.org/?cat=18>
“Pillar of Law Calls on Texas Court to Prevent Criminalization of Politics”<http://electionlawblog.org/?p=74731>
Posted on July 30, 2015 12:45 pm<http://electionlawblog.org/?p=74731> by Rick Hasen<http://electionlawblog.org/?author=3>

Press release<https://pillaroflaw.org/index.php/blog/entry/pillar-of-law-calls-on-texas-court-to-prevent-criminalization-of-politics>:

The Pillar of Law Institute filed an amicus curiae<https://pillaroflaw.org/images/Article_PDFs/Cary_v._Texas_II-to_file_7.30.15.pdf> (friend-of-the-court) brief with the Texas Court of Criminal Appeals in the case Cary v. Texas today, arguing that the Texas Attorney General’s Office unconstitutionally applied the state’s bribery, money laundering and organized crime statutes to what were actually campaign finance violations.

I’m one who is generally concerned about the criminalization of politics<http://talkingpointsmemo.com/cafe/rick-perry-and-the-criminalization-of-politics>, but from my quick look I worry this would greatly expand first amendment protections for bribery.

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Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
“N.C. attorneys rest their case in federal voting rights trial”<http://electionlawblog.org/?p=74728>
Posted on July 30, 2015 10:53 am<http://electionlawblog.org/?p=74728> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.journalnow.com/news/elections/n-c-attorneys-rest-their-case-in-federal-voting-rights/article_54025a12-36d9-11e5-bb9d-3b2faeae03ea.html> from the NC voting trial. “Closing arguments were scheduled for this afternoon, but it now appears that they won’t happen until Friday morning. U.S. District Judge Thomas Schroeder will issue a written opinion sometime later this year.”

MORE<http://www.twcnews.com/nc/triad/news/2015/07/30/closing-arguments-delayed-in-nc-elections-trial.html> from TWC.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Outcome of trial on N.C. election law changes will have national effect”<http://electionlawblog.org/?p=74726>
Posted on July 30, 2015 10:51 am<http://electionlawblog.org/?p=74726> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Barnes reports<http://www.washingtonpost.com/politics/courts_law/outcome-of-trial-on-nc-election-law-changes-will-have-national-effect/2015/07/30/00645094-35f4-11e5-b673-1df005a0fb28_story.html> for WaPo.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74726&title=%E2%80%9COutcome%20of%20trial%20on%20N.C.%20election%20law%20changes%20will%20have%20national%20effect%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
On Political Fragmentation<http://electionlawblog.org/?p=74720>
Posted on July 30, 2015 9:21 am<http://electionlawblog.org/?p=74720> by Richard Pildes<http://electionlawblog.org/?author=7>

“Conservatives hold John Boehner hostage”<https://www.washingtonpost.com/opinions/conservatives-hold-john-boehner-hostage/2015/07/29/6fd3060a-362b-11e5-b673-1df005a0fb28_story.html>

“Boehner response to Meadows insurrection: “No Big Deal””<http://www.washingtonpost.com/news/powerpost/wp/2015/07/29/boehner-response-to-meadows-insurrection-no-big-deal/> [corrected link]
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74720&title=On%20Political%20Fragmentation&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“David Prosser says he didn’t need to step aside in Scott Walker probe”<http://electionlawblog.org/?p=74717>
Posted on July 30, 2015 9:05 am<http://electionlawblog.org/?p=74717> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<http://www.jsonline.com/news/statepolitics/david-prosser-says-he-doesnt-need-to-step-aside-in-walker-probe-b99547465z1-319731971.html>

Wisconsin Supreme Court Justice David Prosser issued an opinion Wednesday saying he did not need to step aside from cases over an investigation into Gov. Scott Walker<http://www.jsonline.com/news/statepolitics/scott-walker-290106981.html>‘s campaign even though groups spent millions of dollars to support both him and the governor.

Prosser’s decision<http://media.jrn.com/documents/prosserrecusal.pdf> revealed two of the people caught up in the investigation had been involved in Prosser’s 2011 re-election bid and had stressed the importance of finding donors for him.

Prosser wrote that outside spending to help him was “very valuable to my campaign” but did not rise to a level that would require him to step down from the challenge to the investigation of those groups. That’s because the expenditures were made four years ago, at a time when there was no indication they would appear before the state’s high court.

“The public ultimately decides at the ballot box who is permitted to serve on the Wisconsin Supreme Court,” Prosser wrote. “The special prosecutor seeks to prevent an elected justice from performing that service unless that unelected special prosecutor wants the elected justice to sit on the case. This is not the way the system works.”

Prosser was part of a 4-2 majority that ruled this month<http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html> that the probe into Walker’s campaign must be ended and evidence prosecutors have obtained must be destroyed. It came three days after the GOP governor formally announced his bid for the presidency.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>
NVRA Settlement Reached with Oklahoma<http://electionlawblog.org/?p=74715>
Posted on July 30, 2015 9:03 am<http://electionlawblog.org/?p=74715> by Rick Hasen<http://electionlawblog.org/?author=3>

Demos press release<http://www.demos.org/press-release/voting-rights-advocates-settle-matter-alleging-nvra-violations>:

Voting rights advocates and Oklahoma officials announced today that a settlement has been reached<http://www.demos.org/publication/oklahoma-national-voter-registration-act-settlement>to provide more effective voter registration opportunities to citizens throughout the state.

This effort began last summer when the Metropolitan Tulsa Urban League, the League of Women Voters of Oklahoma and Metropolitan Tulsa, and YWCA Tulsa notified Paul Ziriax, the Secretary of the Oklahoma State Election Board, that it appeared Oklahoma’s public assistance agencies were not offering clients a meaningful opportunity to register to vote. Under the National Voter Registration Act of 1993 (NVRA), state agencies that provide public assistance must ask clients whether they want to register to vote, offer them voter registration materials, and help them complete registration forms.

The community groups said in their letter to Secretary Ziriax that the number of voter registration applications reported statewide by Oklahoma public assistance agencies had dropped 81 percent since the initial implementation of the NVRA in 1995. At the same time, the average monthly participation in the SNAP program, just  one of the programs covered by the NVRA, nearly doubled. Only 61 percent of Oklahoma citizens in low-income households were registered to vote in 2012, compared to 81 percent of those in affluent households. In fieldwork investigations conducted at Oklahoma public assistance agencies on behalf of the community groups, a significant percentage of agency clients interviewed said that they received no voter registration services whatsoever when, under the NVRA, they should have….

Read the full settlement here.<http://www.demos.org/publication/oklahoma-national-voter-registration-act-settlement>
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>
The Most Interesting Question in Evenwel<http://electionlawblog.org/?p=74712>
Posted on July 30, 2015 8:30 am<http://electionlawblog.org/?p=74712> by Richard Pildes<http://electionlawblog.org/?author=7>

In my contribution to the SCOTUS blog Symposium<http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott/> in this case, I provide reasons that the Court is unlikely, in my view, to accept the appellants’ position.  But that is not the end of the case.  The more interesting question is whether the Court will decide that the Constitution forbids states from basing districts on eligible voters lone and requires that total population be used (as, in fact, has been existing practice for several decades).  Here is part of what I say about whether states are free to pick and choose between “voter equality” or “representational equality” in designing districts:

Remarkably, the Court has only focused on this substantive question at all in one case, Burns v. Richardson (1966), decided at the dawn of the reapportionment revolution; Burns concluded states could make either choice. Now that the issue is back before the Court nearly fifty years later, the jurisprudential issue is whether all the developments in redistricting and voting-rights law in those intervening years should lead the Court to conclude that equal protection requires a uniform understanding concerning the correct population measure that must be used. (My co-authored casebook, The Law of Democracy, asks whether “Burns survives the subsequent development of voting rights law.”) If the Court does conclude that a uniform understanding of “equality” is required, the most likely outcome is representational equality – equality of the total number of persons across districts.

The argument for a uniform understanding of “equality” is strong, as a matter of both constitutional principle and pragmatic judicial implementation of the Constitution. In the apportionment cases, the Court has spoken eloquently many times about the importance of political equality in designing districts – but equality of whom, people or voters?   If the basic principle is of such constitutional magnitude, there is much force to the conclusion that the Court has an obligation to specify equality of whom, or equality with respect to what value or principle. The choice between electoral equality and representational quality is not a fine-grained technical detail of how to implement the Equal Protection Clause. That choice is a fundamental, categorical one about the essential interpretation and meaning of equal protection in the context of designing our basic democratic institutions. Does the clause require that all persons in a jurisdiction (non-eligible voters as well as voters) have roughly equal political representation? Or does it require that all eligible voters have a roughly equal voting power? Those are fundamentally different-in-kind understandings of equal protection that flow from the Court’s “one person, one vote” jurisprudence – precisely the kind of question, in other contexts, to which the Court would provide the answer.

The reason the Court gave in Burns for leaving this choice instead to state discretion was that the decision of which groups to include in the baseline for districting “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” But in the context of the Reapportionment Cases, this explanation is off-key. After all, it was the vehement position of the dissenting Justices in these cases, such as Justices Harlan and Frankfurter, that the Court should not get involved in these issues at all because to get involved was to require the Court to choose among competing theories of political representation.

The Court crossed that Rubicon when it decided that equal protection did not permit representation to be based on geographic units, such as towns and counties, and did require it to be based on equal numbers of sentient beings (people or voters). Having completely redefined the basis of political representation the Constitution requires, the Court’s reticence about not wanting to choose between competing theories of representation when it comes to voters or people rings hollow. Instead, Burns reads like a tentative, interim, and transitional decision in the early stages of working out the meaning of the Reapportionment Cases. Decided only two months after argument,Burns arose with elections imminently pending and dealt with what was only an interim districting plan; in other words, the stakes were low, the need for an immediate decision pressing.

With the much fuller development of the “one person, one vote” doctrine in the fifty years since, it is not obvious the Court will be comfortable with leaving states as much discretion to choose “equality of whom” in districting. And given the intensity of today’s political conflicts over immigration, it is not difficult to imagine those politics coming to further poison redistricting, if states are free to move back and forth between using voters or persons as the measure of district equality. Given how aware the Court is of the extreme partisan polarization of our era, and how that polarization plays out already in districting, the Justices might conclude that strong pragmatic reasons further support adoption of a uniform principle concerning district “equality.”

The courts of appeals, in the three major cases raising this issue, have all explained why representational equality is the better interpretation of the principles underlying the “one person, one vote” doctrine. But all have recognized that the issue is important and the question close. In Evenwel, this issue arose for the first time in the Court’s non-discretionary appellate jurisdiction; the Court was right to take the case, rather than summarily affirm, and to give this issue the attention it deserves. Texas, as the defendant-appellee, will only ask the Court to affirm the status quo and let Texas (and other States) continue to have discretion to choose whether to create district equality between persons or voters. Texas will succeed to at least that extent, I believe. But now that the Court will be forced to confront these issues, the Court might well conclude that it has an obligation to decide whether there is a right answer to the question under the Equal Protection Clause of “equality of whom” and that the better answer is equality of political representation for all persons.
<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74712&title=The%20Most%20Interesting%20Question%20in%20Evenwel&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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Irvine, CA 92697-8000

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http://electionlawblog.org<http://electionlawblog.org/>
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