[EL] ELB News and Commentary 12/3/15
Rick Hasen
rhasen at law.uci.edu
Thu Dec 3 08:19:31 PST 2015
Why I’m Optimistic About Evenwel, #SCOTUS One Person, One Vote Case
<http://electionlawblog.org/?p=77988>
Posted onDecember 3, 2015 8:18 am
<http://electionlawblog.org/?p=77988>byRick Hasen
<http://electionlawblog.org/?author=3>
Regular readers of ELB know that I’m often sounding the alarm about
Supreme Court cases with the potential to hurt our democracy. For
example,I recently wrote <http://electionlawblog.org/?p=77857>of big
procedural victory for campaign finance opponents which makes it fairly
likely the Supreme Court will strike down the soft money provisions of
the McCain-Feingold law within a few years. Indeed,in a current draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902>which I’ll
be presenting at a/Stanford Law Review/symposium in February, I ask the
question why the Roberts Court, despite cases such as/Citizens
United/and/Shelby County/, has not moved even further to the right asI
had predicted
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850544>when the
Roberts Court began in 2006.
So I’m somewhat surprised myself that I am not all that worried about
what the Court is going to do in theEvenwel v. Abbott
<http://www.scotusblog.com/case-files/cases/evenwel-v-abbott/?wpmp_switcher=desktop>one
person, one vote case, being heard next week at the Supreme Court. In
/Evenwel/, plaintiffs ask for the Court to declare that the only proper
basis to fulfill the Court’s ruling cases such as /Reynolds v.
Sims/requiring creation of equipopulous legislative districts is to draw
such districts with the same number of (eligible or registered?) voters,
rather than people. If the argument is successful, it would radically
change the way most states conduct their elections, and it would shift
power in state (and likely congressional) elections away from Democratic
and Latino areas (which tend to have larger Latino non-citizen
populations) and toward Republican and rural ones. Indeed, I have argued
inSlate
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/evenwel_v_abbott_supreme_court_case_state_districts_count_voters_or_total.html>and
atSCOTUSBlog
<http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case/>that
the best way to understand this lawsuit is not as a principled
conservative argument, but as an attempted Republican power grab.
So why am I optimistic?
First, I don’t think the Court wanted to take this case. I’ve explained
this a lot in my earlier writings on this case, so I’ll be brief here.
The Court has had the chance to hear this issue a number of times, and
refused. In 2001, only Justice Thomas dissented from a cert. denial
where this issue was raised. But Ed Blum managed to get this case heard
before a three-judge court, with direct appeal to the Supreme Court. The
Court feels a much greater obligation to take these cases, because a
decision not to hear the case (unlike a cert denial) is a ruling on the
merits. Here’s Chief Justice Robertsspeaking at oral argument
<http://electionlawblog.org/?p=77284>in another case earlier in the term
on the three judge courts:
CHIEF JUSTICE ROBERTS: I mean, the other
alternative is it’s a three-judge district court, and
then we have to take it on the merits.
Imean, that’s aserious problem because there are a lot of cases that
come up in three-judge district courts that would be the
kind of case – I speak for myself, anyway–
that wemight deny cert in, to let the issue percolate. And now
with the three judge district court, no, we have to
decide it on the merits…
So I don’t think the Court particularly wanted to take this case. And I
expect only Justice Thomas, and Justice Alito,who expressed doubts about
the one person one vote rule many decades ag
<https://electionlawblog.org/?p=72780>o, are likely to be in play.
Second, this issue seems like it was already settled in the 1966
case/Burns v. Richardson
<https://scholar.google.com/scholar_case?case=900318815708885571&hl=en&as_sdt=6&as_vis=1&oi=scholarr>.
/There, the Court approved Hawaii’s use of total registered voters
rather than total population, saying that the issue of what to use as
the denominator in drawing equal districts resided in the states, at
least when total voters does not sway too much from total population. So
precedent is on Texas’s side.
Third, it would be quite anomalous (as Chief Justice Roberts argued when
he was a lawyer in the 9th Circuit Garza case), that the Constitution
/requires/the use of total population in apportioning congressional
districts among the states (that’s in the 14th Amendment) but it
/forbids/the use of total population in drawing congressional (or state)
districts within states. To the extent that the 14th Amendment is
silent, certainly it would be odd to think the 14th amendment would have
these two wildly different rules in these cases.
Fourth, and related to the third point, there’s no strong originalist
argument for this position. It is certainly possible to take a
principled conservative position that these cases should have remained
non-justiciable (that is, to argue /Baker v. Carr/was wrong) or that the
14th amendment does not require any kind of equality in the drawing of
districts (that is, to argue /Reynolds/and the cases which followed it
are wrong), but it is not a principled conservative position to argue
that the 14th amendment /must/be interpreted to take discretion away
from the states. This argument isnot trolling
<http://electionlawblog.org/?p=77967>, as Andrew Grossman suggested. It
is a recognition that it will be hard to attract conservative Justices
to a position which is supported neither by originalist interpretation
nor by principles of federalism.
Fifth, and perhaps most importantly:Nate Persily
<http://www.washingtonpost.com/news/in-theory/wp/2015/10/19/theres-nothing-conservative-about-destabilizing-our-election-system/>had
made what I consider to bethe ironclad case
<http://electionlawblog.org/wp-content/uploads/evenwel-persily-Brief.pdf>that
actually putting a total voter standard into practicewould be
<http://electionlawblog.org/?p=77303>very, very difficult.We do not have
good data
<https://soundcloud.com/cac-constitution/evenwel-v-abbott-telebriefing-1222015>,
and we don’t come close to having good data, on voters as opposed to
people in districts. Is the Court going to order that the census try
collecting these data, or allow districts to be drawn based upon sample
data, which is not up to date? It is hard to imagine.
OK, so I may eat my words after oral argument. But this case (unlike
others) is not causing me to lose sleep at night (yet).
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Evenwel and the Next Case” <http://electionlawblog.org/?p=77990>
Posted onDecember 3, 2015 8:15 am
<http://electionlawblog.org/?p=77990>byRick Hasen
<http://electionlawblog.org/?author=3>
Dan Tokaji: <https://www.acslaw.org/acsblog/evenwel-and-the-next-case>
Although I’m generally loath to predict outcomes, I expect the Court
to reject the appellants’ argument that the Constitution requires
equalization of eligible voters among districts. But/how/it rejects
this argument is very much up in the air. If/Evenwel/relies mainly
on the principle of representational equality, it will tend to
preserve the status quo in which state legislative districts are
drawn based on total population. On the other hand, if the Court
relies primarily on federalism, it will invite states to stop
counting children, non-citizens, and other non-voters when drawing
districts. Blue states will surely continue to draw districts based
on total population, but we can expect red states to choose a
narrower metric, one that diminishes the voting strength of minority
communities and others with large non-voting populations. Those
states might not even wait until the next census, given that the
Court opened the door to mid-decade redistricting in another case
from Texas,/LULAC v. Perry/
<https://www.law.cornell.edu/supct/html/05-204.ZS.html>.
In sum, the issue before the Court in/Evenwel/is less difficult than
the question whether states must equalize total population in
drawing legislative districts. But/Evenwel/is still very important,
because what the Court says in this case will affect, if not
determine, the result of the next case. The decision will also
affect how states – especially those controlled by Republicans –
will draw districts after the 2020 census, and possibly whether
they’ll redraw their current districts before then.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“National Political Groups Ran More Ads in State Races This Year”
<http://electionlawblog.org/?p=77986>
Posted onDecember 3, 2015 7:41 am
<http://electionlawblog.org/?p=77986>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI <http://time.com/4134259/campaign-finance-state-ads/>:
In total, 33 outside groups poured more than $32 million into their
own political ads this year, accounting for more than one-third of
the estimated $86 million inbroadcast TV ad spending in the seven
states
<https://www.publicintegrity.org/2015/10/01/18101/2015-state-ad-wars-tracker>with
major races, according to aCenter for Public Integrity
<https://www.publicintegrity.org/>analysis of data from media
tracking firm Kantar Media/CMAG.
That represents more than 1 in 4 political spots aired, compared
with fewer than 1 in 5 ads in both 2011 when the same states had
comparable races and in 2014 when major races occurred in45 states
<https://www.publicintegrity.org/2014/09/22/15623/state-ad-wars-tracker>.
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“David Cohen, Pioneer of Public Interest Lobbying, Dies at 79”
<http://electionlawblog.org/?p=77984>
Posted onDecember 3, 2015 7:39 am
<http://electionlawblog.org/?p=77984>byRick Hasen
<http://electionlawblog.org/?author=3>
Sad news
<http://www.nytimes.com/2015/12/03/us/politics/david-cohen-pioneer-of-public-interest-lobbying-dies-at-79.html?ref=politics&_r=0>from
the NYT:
David Cohen, a self-styled Washington white-hat lobbyist who as the
president of Common Cause successfully fought for post-Watergate
laws on ethics, campaign financing and public disclosure, died on
Sunday in Westport, Conn. He was 79.
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Posted inelection law biz <http://electionlawblog.org/?cat=51>
“U.S. Attorney reviewing voting rights lawsuit filed against
Alabama” <http://electionlawblog.org/?p=77982>
Posted onDecember 3, 2015 7:37 am
<http://electionlawblog.org/?p=77982>byRick Hasen
<http://electionlawblog.org/?author=3>
Al.com:
<http://www.al.com/news/birmingham/index.ssf/2015/12/us_attorney_reviewing_voting_r.html>
The top federal prosecutor in North Alabama says she is reviewing
alawsuit filed Wednesday
<http://www.al.com/news/birmingham/index.ssf/2015/12/greater_birmingham_ministries.html>by
groups challenging Alabama’s law requiring people to present photo
identification before they can vote.
“We received a copy of the lawsuit … We are certainly reading the
lawsuit with great interest,” said U.S. Attorney Joyce Vance.
But Vance said it was “too speculative” at this point on whether the
U.S. Department of Justice would get involved in the issue. But, she
added, “we are acutely concerned with protecting the right to vote.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Who’s Behind the Ghost Companies Funding Jeb Bush’s Super-PAC?”
<http://electionlawblog.org/?p=77980>
Posted onDecember 3, 2015 7:31 am
<http://electionlawblog.org/?p=77980>byRick Hasen
<http://electionlawblog.org/?author=3>
Russ
Choma<http://www.motherjones.com/politics/2015/11/ghost-companies-funding-jeb-bush-super-pac-right-to-rise>for
Mother Jones:
In February, a limited liability company called TH Holdings LLC
donated $100,000 to Right to Rise, the super-PAC supporting Jeb
Bush’s bid for the GOP presidential nomination. That’s not
extraordinary; quite a few LLCs have donated to the super-PAC, which
has so far raised more than $103 million. But TH Holdings is a
special case—one that represents the worst-case scenario in the
post-/Citizens United/campaign finance landscape: untraceable
corporations shoveling untraceable cash into the political system.
Beyond this six-figure contribution, the company appears to have no
history of doing business anywhere. And its incorporation records
reveal no owners, managers, or officers.
As far as the public record goes, this looks like a ghost company.
So who is behind this contribution?
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Liberals, conservatives battle McConnell on plan to boost political
parties” <http://electionlawblog.org/?p=77978>
Posted onDecember 3, 2015 7:25 am
<http://electionlawblog.org/?p=77978>byRick Hasen
<http://electionlawblog.org/?author=3>
Fredreka
Schouten<http://www.usatoday.com/story/news/politics/2015/12/02/liberals-conservatives-battle-mcconnell/76686414/>for
USA Today:
Despite the resistance from House conservatives and liberal
watchdogs, the push to strengthen political parties is gaining
traction from establishment Republicans and Democrats.
The liberal-leaning Brennan Center for Justice recently released a
report that proposed easing, or dismantling altogether,
candidate-party coordination limits.
Some Democratic lawyers also want to loosen those restrictions.
“In light of everything that has happened in the last five years on
campaign finance, including the unleashing of super PACs, it’s time
to revisit the effect that McCain-Feingold has had on parties,
especially state and local parties,” said Neil Reiff, a Washington
election lawyer who represents Democrats.
There’s precedent for rewriting campaign-finance laws in year-end
funding bills. Last year, lawmakers tripled the amount of money a
single donor could give to all party committees. The provision
appeared on page 1,599 of a 1,603-page, $1 trillion spending bill.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“How Far Will The Supreme Court Go In The Big New Voting Rights
Case?” <http://electionlawblog.org/?p=77976>
Posted onDecember 3, 2015 7:23 am
<http://electionlawblog.org/?p=77976>byRick Hasen
<http://electionlawblog.org/?author=3>
Tierney Sneed reports
<http://talkingpointsmemo.com/dc/evenwel-supreme-court-texas>on Evenwel
for TPM.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Supreme Court Blocks Native Hawaiian Vote Count”
<http://electionlawblog.org/?p=77973>
Posted onDecember 2, 2015 7:06 pm
<http://electionlawblog.org/?p=77973>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports.
<http://hosted.ap.org/dynamic/stories/U/US_NATIVE_HAWAIIAN_ELECTION?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
“Supreme Court Temporarily Blocks Vote Limited to Native Hawaiians”
<http://electionlawblog.org/?p=77971>
Posted onDecember 2, 2015 7:03 pm
<http://electionlawblog.org/?p=77971>byRick Hasen
<http://electionlawblog.org/?author=3>
Jess Bravin reports
<http://www.wsj.com/articles/supreme-court-temporarily-blocks-vote-limited-to-native-hawaiians-1449103992>for
the WSJ.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,voting
<http://electionlawblog.org/?cat=31>
CAC Telebriefing on Evenwel Case <http://electionlawblog.org/?p=77969>
Posted onDecember 2, 2015 6:58 pm
<http://electionlawblog.org/?p=77969>byRick Hasen
<http://electionlawblog.org/?author=3>
Listen
<https://soundcloud.com/cac-constitution/evenwel-v-abbott-telebriefing-1222015>:
On December 2, 2015, Constitutional Accountability Center hosted a
telebriefing on the case of Evenwel v. Abbott – due to be argued at
the Supreme Court on the morning of December 8. The call featured
insights from:
* CAC Civil Rights Director David Gans
* University of California at Irvine Law Professor Rick Hasen
* Stanford Law Professor Nathaniel Persily
* MALDEF President and General Counsel Thomas Saenz
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Evenwel v. Abbott: What Does One Person, One Vote Really Mean?”
<http://electionlawblog.org/?p=77967>
Posted onDecember 2, 2015 6:57 pm
<http://electionlawblog.org/?p=77967>byRick Hasen
<http://electionlawblog.org/?author=3>
Andrew Grossman has writtenthis
report<http://www.heritage.org/research/reports/2015/12/evenwel-v-abbott-what-does-one-person-one-vote-really-mean#_ftn31>for
the Heritage Foundation. Here is a summary:
/The greatest hope of those committed to the one-person, one-vote
status quo seems to be that in deciding/Evenwel v. Abbott/, the
Supreme Court will simply leave it alone if they raise enough random
objections. Infused in that view is a great deal of dismissiveness
about the merits of the/Evenwel/litigation and a great deal of angst
over its potential political effects. If the Court is true to its
precedents, it will act to enforce Sue Evenwel’s and Edward
Pfenninger’s right to cast votes of the same weight as those of
their fellow Texans. If it does not do that, its decision will mark
a real break in the law of OPOV and, as a practical matter, could
even spell the beginning of the end of the doctrine. That is the
choice the Court faces./
Don’t miss text accompanying n. 31, in which I’m accused of trolling.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
--
Rick Hasen
Chancellor's 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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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