[EL] ELB News and Commentary 12/9/15

Wed Dec 9 08:08:00 PST 2015

It's interesting that he accepts the possibility that some data set other than the census *could* be used, but appears to ignore completely the possibility that one might simply use a state's list of registered voters to draw districts.  Such a list would certainly more accurate and timely than either the American Community Survey or the US Census.

      From: Rick Hasen <rhasen at law.uci.edu>
 To: Sal Peralta <oregon.properties at yahoo.com> 
Cc: "law-election at UCI.edu" <law-election at uci.edu>
 Sent: Wednesday, December 9, 2015 7:08 AM
 Subject: Re: [EL] ELB News and Commentary 12/9/15

  The link to Nate Persily's blog post on this point somehow got deleted:

 http://electionlawblog.org/?p=78146

 On 12/8/15 10:29 PM, Sal Peralta wrote:

 I don't understand your claim in the article  that states do not "have the data" to draw districts based on the number of registered voters in the district.   That is certainly not the case in Oregon.  We have a statewide voter registration system that anyone can use to plot the physical address of every registered voter in .  I doubt that Oregon is exceptional in this regard.  What am I missing?

 Sent from my iPad 
 On Dec 8, 2015, at 9:26 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

“Justices will get no satisfaction with a new ‘one person, one vote’ rule”
  Posted on  December 8, 2015 9:22 pm by Rick Hasen   I have written this oped on Evenwel for the LA Times oped page.  It begins: 
 At the Supreme Court on Tuesday, the justices struggled over the meaning of the 1960s-era “one person, one vote” rule. Should Texas legislative districts contain an equal number of people — as they do now — or an equal number of eligible voters, as the plaintiffs in Evenwel vs. Abbott demand? Ultimately, the justices may have no choice but to heed some other words written in the 1960s: You can’t always get what you want. Another snippet: At the oral argument Tuesday, Justice Anthony Kennedy tried to split the difference. He pondered whether Texas — and other states — could draw districts with an equal number of people and an equal number of voters. “Why can’t you have both?” he asked Texas Solicitor General Scott Keller. And this is where the Rolling Stones principle comes in: A total population standard isn’t what everyone wants, but it’s what we need to avoid chaos. A legislative map equalizing both total voters and total population would violate all sound redistricting principles, breaking up cities, separating communities of interests and producing grotesque shapes. Indeed, after Keller made these points, Kennedy seemed to concede the point: “That sounds highly probable to me.” An attempt to equalize both population and voters would have especially bad consequences for minority representation. In a forthcoming paper Vanderbilt law and mathematics professor Paul Edelman shows that it is mathematically possible to draw districts that equalize both voters and population — but only at a big cost. He concludes that “dual districting may well be antithetical to achieving majority-minority districts,” a cornerstone of the Voting Rights Act. It’s also impossible at this point to reliably draw districts with an equal number of voters. As Nathaniel Persily of Stanford Law School has argued, we simply don’t have the data to do it. 
  <share_save_171_16.png>   Posted in redistricting, Supreme Court 
“Argument analysis: Justices hard to read on Arizona redistricting plan”
  Posted on  December 8, 2015 9:19 pm by Rick Hasen   Amy Howe on Harris oral argument: 
 “Where’s the beef?”  That was the question from Washington attorney Paul Smith, arguing at the Court today on behalf of the five-member independent commission charged with drawing new state legislative maps for Arizona.  The Justices heard oral arguments in a challenge by several Arizona voters to the maps that the commission drew after the 2010 census; the voters allege that the commission violated the principle of “one person, one vote” when it intentionally put too many residents into Republican-leaning districts while putting too few into Democratic-leaning districts.  The Court’s four more liberal Justices seemed inclined to agree with Smith, but some of the Court’s more conservative Justices were harder to read.  Because a ruling in favor of the challengers could potentially affect redistricting maps around the country, both sides could be on tenterhooks waiting for the Court’s eventual decision. 
 My own read of the transcript was that Thor was really getting hung up even with the conservatives in dealing with the lower court’s factual finding that the Commission’s predominant motivation in deviating from perfect equality in drawing the districts was a good faith belief it was required by  the Voting Rights Act. That, and the fact that he offered no good standard for determining how much partisanship in districting is too much to allow deviations from one person, one vote made me think the challengers are likely to lose this one.  <share_save_171_16.png>   Posted in redistricting, Supreme Court 
“Supreme Court Landmark Case Baker v. Carr”
  Posted on  December 8, 2015 9:15 pm by Rick Hasen   Well-timed C-SPAN landmark case discussion.  <share_save_171_16.png>   Posted in redistricting, Supreme Court 
Evenwel Oral Argument News Roundup
  Posted on  December 8, 2015 9:14 pm by Rick Hasen   NYT LAT WSJ NPR Buzzfeed USA Today AP Reuters SCOTUSBlog            <share_save_171_16.png>   Posted in redistricting, Supreme Court 
“What Exactly Does ‘One Person, One Vote’ Mean, Anyway? The Supreme Court justices turn a simple question into something more complicated.”
  Posted on  December 8, 2015 9:08 pm by Rick Hasen   Dahlia Lithwick writes for Slate.  <share_save_171_16.png>   Posted in redistricting, Supreme Court 
“At the Supreme Court, Equal Representation Is in Danger”
  Posted on  December 8, 2015 8:53 pm by Rick Hasen   David Gans writes for TNR.  <share_save_171_16.png>   Posted in redistricting, Supreme Court 
WI AG: “John Doe II Must End”
  Posted on  December 8, 2015 8:52 pm by Rick Hasen   Statement:          
 The Wisconsin Supreme Court has issued yet another decision in John Doe II, the protracted and secret investigation into whether a political group exercising free  political speech rights improperly coordinated with Governor Walker during the recall election. For the second time this year, the Wisconsin Supreme Court directed that the John Doe proceeding be halted based upon the Court’s conclusion that prosecutors did not have a legal basis to investigate these political groups when they commenced John Doe II.  The Court found that campaign finance statutes upon which the prosecutors relied violate free political speech rights guaranteed by both the United States Constitution and the Wisconsin Constitution.   Thus, the Court said that the matter is closed, and the evidence seized through subpoenas and search warrants issued as part of the investigation must be returned. That has not yet  occurred, and the owners of that property are understandably upset.   The special prosecutor has indicated that he intends to appeal. The only level of appeal left is to the Supreme Court of the United States (SCOTUS), but it is very unlikely  SCOTUS would take the case. In the unlikely scenario that SCOTUS were to accept the case, it would more than likely uphold the Wisconsin Supreme Court’s decision.   I write because I have indirectly been asked as Wisconsin Attorney General to intervene on behalf of the John Doe targets. The Wisconsin DOJ played a role in the proceedings  before the Wisconsin Supreme Court, although it was not a leading role. DOJ represented the judge who was assigned to John Doe II after the initial judge recused herself. The new judge quashed subpoenas issued in the John Doe proceeding, finding that the special prosecutor’s theory of the case was not supported by Wisconsin law. The special  prosecutor appealed that ruling, and DOJ represented the judge in the Wisconsin Supreme Court.   Last week, the Wisconsin Supreme Court again ordered that the seized evidence be returned to its owners. Given that DOJ represented the judge who first found that the John Doe  proceeding was invalid, DOJ certainly has no intention of standing in the way of those orders. The Supreme Court’s order should be carried out forthwith. DOJ has no authority to represent those individual property owners in their effort to enforce the Supreme Court’s order. 
   This has been a long, unfortunate chapter in Wisconsin’s history. The courts have unequivocally rejected the John Doe investigation, both in the manner in which it was carried out, as well as  the legal arguments brought by the prosecutors. The Wisconsin Supreme Court has now ordered that the property seized be returned. For everyone involved, the special prosecutor should end the case, and the property seized from the individuals in this case should be returned immediately.             <share_save_171_16.png>   Posted in chicanery 
“Be careful what you wish for in Evenwel, Justice Kennedy”
  Posted on  December 8, 2015 8:47 pm by Rick Hasen   Joey Fishkin blogs.  <share_save_171_16.png>   Posted in redistricting, Supreme Court 
Six Takeaways from the Evenwel Argument
  Posted on  December 8, 2015 4:07 pm by Richard Pildes   The argument, which I attended this morning, was unusually subdued.  I think that’s because the prior case, challenging the Arizona Independent Redistricting Commission’s plan, was tedious and frustrating to the Court, with the lawyers challenging the Commission’s plan not able to give the Court clear, consistent answers regarding their basic theory of the case.  The Court was energetic in the first case but then seemed a bit worn down from the unsatisyfing first argument.  But in terms of how Evenwel is likely to come out, here are my views on six central points:    
   -  The Court is not going to hold that voter equality (equal numbers of eligible voters per district) is constitutionally required.  Justice Kennedy showed no interest in that position and asked no questions that suggested he was wrestling with embracing that view.  That is consistent with my view going into the case that it was always unlikely this Court would conclude that voter equality is required.  Some early journalistic coverage of the argument, such as here, portray the Court as likely to adopt the voter equality standard, but I think those stories misunderstand the nature of the questions Justice Kennedy was asking.
   - The Court is not going to embrace the other clean, polar position either, which is that the Constitution requires that total population be the measure.  That issue was not properly teed up for the Court, with none of the counsel before the Court arguing that the Court should adopt total population.  The issue here is whether the Court will expressly leave this question open and keep alive the possibility that, if and when the Court has to confront that question, the Court would then clearly be free to decide that total population is the required standard.
   - So the Court will either affirm the status quo or adopt an intermediate position to which Justice Kennedy appears drawn.  That is the view that states have to at least consider voter equality asone factor to take into account.  He consistently returned to this question and it seemed his central instinct about the case.  Texas acknowledges that it did not take voter equality into account at all (the State Constitution prohibits that) and this case was tossed out at the very first stage of the litigation, on a motion to dismiss.  Justice Kennedy asked more than once whether, given this context, states should have at least the minimal obligation to see whether they could do a better job at diminishing inequalities among eligible voters across districts, without perhaps sacrificing too much other constitutional and redistricting values. If the Court adopts this approach, that would be slicing the issues  pretty thinly between the two sides.  If this view prevails, it would impose a process-oriented obligation:  voter equality is a factor that must be “considered.”
   - This would look like a victory for the appellants, but it would be a win on the most minimal grounds.   Moreover, even that holding might be accompanied by qualifications concerning the reliability of the ACS data that counts citizens and non-citizens.  There is a debate among the briefs, reflected at the argument, over the reliability of this data, and I don’t know if the Court would want to resolve that issue for itself in the first instance.  So even this narrow holding might come in this form:  states have to at least consider voter equality, to the extent there is accurate and reliable data on that, and we leave it to the lower courts in specific cases to address that reliability question.
   - If the Court holds that states have to take voter equality “into account” as “a factor,” what would that mean on the ground?  The key question would then become:  how much weight do states have to give this factor, compared to total population, once they start “taking it into account?”  The Court is not likely to answer that question and it will likely take years of litigation to sort it out.  But I think the most the Court would ultimately hold is that if states can do more to promote voter equality, while not allowing their districts to vary in total population by more than 10% and while not violating traditional districting principles, then within those constraints, states would need to avoid unnecessary departures from voter equality.  That is a long way away from a requirement that districts be based on voter equality — as a practical matter, even if there is a majority for the position Justice Kennedy was debating, I think the practical effect would be very modest changes in outcomes concerning how districts are designed and how the distribution of political power is affected.
   - The most important effect of Evenwel is not, therefore, likely to be doctrinal.  The case itself — as is often true of Supreme Court cases — raises the visibility of an option that many jurisdictions might well not have considered before.  Redistricters have been routinely using the Census data, which is total population data.  In some areas where the politics over immigration are particularly heated, some states or local government bodies might now start talking about shifting to CVAP data in the next redistricting cycle.  Will the litigation itself become a catalyst for some states to choose of their own accord to start districting based on voter equality, rather than total population — even if the Court’s decision does nothing more than affirm the status quo, in which this option has always been possible. That is the most politically consequential question surrounding this case, given that the Court is not going to hold that districting based on voter equality is constitutionally required.
  <share_save_171_16.png>   Posted in Uncategorized 
Clearing the Brush in Today’s One-Person, One-Vote Case
  Posted on  December 8, 2015 2:22 pm by npersily   The oral argument today in Evenwel v. Abbott was revealing in many respects, as such arguments often are,  in highlighting which points in the briefs command the most attention from the Justices.  However, as is also often the case, the oral argument can serve to obscure certain points, as advocates attempt to use their time to complicate issues that really are quite simple.  Such is the case, I believe, with the debate in Evenwel over whether redistricting on some basis other than total population is possible.  On this question, I should note I am hardly a disinterested observer, having filed an amicus brief based on my experience as a Special Master and court-appointed redistricting expert, and having written about the issue in Politico, Scotusblog, and the Washington Post. To be clear, the issue is not whether one is physically able to draw districts on the basis on some data source other than the census population numbers.  Of course, one could.  The question is whether the available data are consistent with the theory of one person, one vote – even according to the Appellants’ novel interpretation of that rule.   There is a fundamental incongruity between the interpretation of the Equal Protection Clause proposed by the Appellants and the data they use to demonstrate a constitutional violation and suggest as a remedy. First, no dataset of eligible voters exists.  All of the debate about the American Community Survey’s (ACS) citizen voting age population (CVAP) data is somewhat beside the point.  Even that dataset does not pretend to capture the relevant statistic — eligible voters —  that the Appellants contend is necessary for compliance with one person, one vote.  The ACS data do not account for 168,000 people in Texas prisons or the roughly 350,000 others who are disfranchised because of a felony conviction.  Nor do they account for the roughly half million eligible voters who live abroad but can vote in Texas elections.  These large  categories of persons do not amount to rounding errors or statistical nit-picks – even if the ACS were accurate, it does not satisfy Appellants own constitutional standard for one person, one vote compliance. Second, the problem with the ACS CVAP data is not that you are unable to put it into a computer and use it for redistricting.  You could do that with any dataset.  Rather, what you would be putting into the computer at the time of redistricting are old estimates of what the population was, not what it is.  Everyone, including Appellants, agrees that the yearly ACS surveys are not usable for redistricting because they only sample 2.5% of households and are released only for communities in excess of 65,000 people.  Therefore, they say, you should use the averages of the ACS surveys from the previous five years – that is, use five-year old data to redistrict for a ten-year redistricting cycle!  At the time of the 2011 redistricting, for example, you would have had to use data averaged from the 2006 to 2010 surveys.  Some of the 17 year olds not counted in the 2006 CVAP numbers, for example, would be 23 years old by the time of the first elections held under the new lines. Third, the granularity of the data and the presence of error margins introduce novel questions regarding one person, one vote.  Again, the point here is not whether one is able to redistrict on the basis of survey results: You could draw lines to equalize between districts the number of Donald Trump supporters according to presidential preference surveys.  Rather, the idea of a survey – as compared to a census – is in tension with the notion of one-person, one-vote.  The linedrawer who draws a district using the ACS survey data is, in effect, saying that he or she is 90 percent certain (the ACS’s reported confidence intervals)  that the population in that district is within the margin of error as reported by the survey.  As explained in my amicus brief, these error margins are sometimes quite large, especially at the local level.  Such errors will increase further in size, if one needs to break up the block groups into blocks, as one often would do, in order to accommodate any number of other redistricting considerations. (Even the five-year averages of ACS data are not released below the block group level.)  When it comes to ACS citizenship data, moreover, some of the data are imputed by the Census Bureau, itself:  For five percent of respondents in the 2013 ACS, the Bureau “allocated” (i.e., filled in) the answer to the citizenship question. Finally, and perhaps most obviously, the ACS can be eliminated at any time.  This is not a theoretical possibility:  the House of Representatives voted to eliminate it in 2012.  Further, because of the government shutdown in 2013 and a reduction in funding in 2004, ACS surveys in those years suffered from a high margin of error. I hope the ACS stays around, as it is an invaluable tool to inform public policy, including the redistricting process.  But the possibility that it might disappear highlights the irony in the EvenwelAppellants’ argument.   They maintain that the only constitutionally required population dataset – namely, the census enumeration of persons – is actually forbidden by the Constitution for use in redistricting.  That just cannot be right.  <share_save_171_16.png>   Posted in Uncategorized 
Evewel and Harris Transcripts Now Available
  Posted on  December 8, 2015 10:59 am by Rick Hasen   Tuesday, December 08 
| 14-232 | Harris v. Arizona Independent Redistricting Comm’n | Transcript | 
  |
| 14-940 | Evenwel v. Abbott | Transcript |        |

 I’m off to a long meeting and to give a talk, so commentary from me about these tonight or tomorrow.  <share_save_171_16.png>   Posted in Uncategorized -- 
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org  

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 -- 
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org 

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