[EL] Reason to worry about Evenwel? (ELB News and Commentary 12/3/15)

[Eric J Segall]

I would just say that conservatives have embraced the non-originalist, non-textualist, non-federalism based rationale of color blindness in affirmative action cases. If Rick is right, it won't be because of principles theories of constitutional interpretation.

Best,

Eric



Sent from my iPhone

On Dec 4, 2015, at 12:23 PM, "Marty Lederman" <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

Two quick responses to Rick's column about whether (and why or why not) to worry about Evenwel.

First, I agree that it's unlikely the Court will rule for the appellants, mostly for the reasons Rick canvasses.  But the real action is on the question of whether and how it will take up Texas's invitation to hold (even though the case doesn't require the Court to opine on it) that states can exclude nonvoting populations, including, most importantly, noncitizens, in drawing districts for state office.  Will the Court endeavor to send a strong signal to state legislatures to go that route, even absent any concrete circumstances in which to assess whether and why and how a particular state would do so?  That, IMHO, is one big thing to watch for in Evenwel.

Second, when he was Deputy SG, John Roberts did not argue that "it would be quite anomalous . . . [to hold] 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."

He argued, instead, that it would be quite anomalous to hold that the Constitution requires the use of total population in drawing congressional (or state) districts within states (a proposition for which he cited Wesberry), and yet forbids such use of total population in drawing state districts.

(See my post, citing his BIO, here:  http://balkin.blogspot.com/2015/05/the-curious-result-urged-by-appellants.html)

And in this respect, the other very significant thing to watch for in Evenwel is what, if anything, the Court says or implies about the required population base for intrastate congressional districting.  In their reply brief, petitioners actually argue that the premise of Deputy SG Roberts's argument "is flawed."  They argue that neither Wesberry nor any other case has decided that question yet . . . thereby sending a clear signal that it's next in their sights, assuming the Court holds either that legislatures must or can exclude noncitizens in state-house districting.  As for the merits of the question on congressional districts, they say only this:

 The Court need not resolve that question here. Appellants
do not challenge a congressional map, and congressional and
state-level districting, while not “wholly inapposite,” are “based
on different constitutional considerations and [are] addressed to
rather distinct problems.” Reynolds, 377 U.S. at 560.

Therefore I think the other important thing-- perhaps the most important thing-- to watch for at argument next week, and in the opinion, is whether and how the Justices describe the constitutional requirements for congressional district line-drawing, because that is, I think, the proverbial two-ton gorilla in the middle of the room.  The Justices would be wise to let it lie; but whether they will do so? . . .

On Thu, Dec 3, 2015 at 11:19 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Why I’m Optimistic About Evenwel, #SCOTUS One Person, One Vote Case<http://electionlawblog.org/?p=77988>
Posted on December 3, 2015 8:18 am<http://electionlawblog.org/?p=77988> by Rick 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 as I 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 the Evenwel 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 in Slate<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 at SCOTUSBlog<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 is not 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 be the ironclad case<http://electionlawblog.org/wp-content/uploads/evenwel-persily-Brief.pdf>that actually putting a total voter standard into practice would 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).

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77988&title=Why%20I%26%238217%3Bm%20Optimistic%20About%20Evenwel%2C%20%23SCOTUS%20One%20Person%2C%20One%20Vote%20Case&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Evenwel and the Next Case”<http://electionlawblog.org/?p=77990>
Posted on December 3, 2015 8:15 am<http://electionlawblog.org/?p=77990> by Rick 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. Buthow 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 in redistricting<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 on December 3, 2015 7:41 am<http://electionlawblog.org/?p=77986> by Rick 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 in broadcast 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 a Center 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 in 45 states<https://www.publicintegrity.org/2014/09/22/15623/state-ad-wars-tracker>.

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77986&title=%26%238220%3BNational%20Political%20Groups%20Ran%20More%20Ads%20in%20State%20Races%20This%20Year%26%238221%3B&description=>
Posted in campaign 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 on December 3, 2015 7:39 am<http://electionlawblog.org/?p=77984> by Rick 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.

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77984&title=%26%238220%3BDavid%20Cohen%2C%20Pioneer%20of%20Public%20Interest%20Lobbying%2C%20Dies%20at%2079%26%238221%3B&description=>
Posted in election law biz<http://electionlawblog.org/?cat=51>
“U.S. Attorney reviewing voting rights lawsuit filed against Alabama”<http://electionlawblog.org/?p=77982>
Posted on December 3, 2015 7:37 am<http://electionlawblog.org/?p=77982> by Rick 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 a lawsuit 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 in election 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 on December 3, 2015 7:31 am<http://electionlawblog.org/?p=77980> by Rick 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 Unitedcampaign 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 in campaign 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 on December 3, 2015 7:25 am<http://electionlawblog.org/?p=77978> by Rick 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 in campaign 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 on December 3, 2015 7:23 am<http://electionlawblog.org/?p=77976> by Rick 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 in redistricting<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 on December 2, 2015 7:06 pm<http://electionlawblog.org/?p=77973> by Rick 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 in Supreme 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 on December 2, 2015 7:03 pm<http://electionlawblog.org/?p=77971> by Rick 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 in Supreme Court<http://electionlawblog.org/?cat=29>, voting<http://electionlawblog.org/?cat=31>
CAC Telebriefing on Evenwel Case<http://electionlawblog.org/?p=77969>
Posted on December 2, 2015 6:58 pm<http://electionlawblog.org/?p=77969> by Rick 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

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77969&title=CAC%20Telebriefing%20on%20Evenwel%20Case&description=>
Posted in redistricting<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 on December 2, 2015 6:57 pm<http://electionlawblog.org/?p=77967> by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew Grossman has written this 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 decidingEvenwel 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 in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

--
Rick Hasen
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