[EL] ELB News and Commentary 7/10/15
Rick Hasen
rhasen at law.uci.edu
Fri Jul 10 08:25:37 PDT 2015
“Florida Court Rules Eight Congressional Districts Must Be Redrawn”
<http://electionlawblog.org/?p=74223>
Posted onJuly 10, 2015 8:23 am
<http://electionlawblog.org/?p=74223>byRick Hasen
<http://electionlawblog.org/?author=3>
NPR reports.
<http://www.npr.org/2015/07/10/421684403/florida-court-rules-eight-congressional-districts-must-be-redrawn>
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“What’s At Stake In The Trial Over North Carolina Voting
Restrictions” <http://electionlawblog.org/?p=74221>
Posted onJuly 10, 2015 7:48 am
<http://electionlawblog.org/?p=74221>byRick Hasen
<http://electionlawblog.org/?author=3>
Samantha Lachman
<http://www.huffingtonpost.com/2015/07/10/north-carolina-voting-trial_n_7754876.html>for
HuffPo.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Consensus Reached on Recommendations Toward the Future of Internet
Voting” <http://electionlawblog.org/?p=74219>
Posted onJuly 10, 2015 7:48 am
<http://electionlawblog.org/?p=74219>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release <https://www.usvotefoundation.org/news/E2E-VIV-press>:
Today’s release ofThe Future of Voting: End-to-End Verifiable
Internet Voting Specification and Feasibility Assessment Study
<https://www.usvotefoundation.org/e2e-viv/summary> by U.S. Vote
Foundation establishes a new reference for the security, usability
and transparency requirements essential to the U.S. in any
consideration of Internet voting for public elections.
Developed by a team of the nation’s leading experts in election
integrity, election administration, high-assurance systems
engineering, and cryptography, the report starts from the premise
that public elections in the U.S. are a matter of national security.
The authors assert that Internet voting systems must be transparent
and designed to run in a manner that embraces the constructs of
end-to-end verifiability – a property missing from existing Internet
voting systems.
An end-to-end verifiable (E2E-V) voting system allows voters to 1)
check that the system recorded their votes correctly; 2) check that
the system included their votes in the final tally; 3) count the
recorded votes and double-check the announced outcome of the
election. An Internet voting system that is end-to-end verifiable
is an E2E-VIV system. The new set of system specifications that
could eventually lead to a model E2E-VIV system includes an ideal
cryptographic foundation, security, audit, and usability
considerations, as well as technical approaches to the system
architecture.
As election technology evolves and more states evaluate Internet
voting, caution on compromises to integrity and security is
warranted, and according to the report, should be particularly
avoided by the premature deployment of Internet voting. The report
aims to list the security challenges that exist with Internet voting
and emphasizes that research should continue as the threat landscape
continues to shift. Existing proprietary systems that meet only a
subset of the requirements cannot be considered secure enough for
use in the U.S.
**Key recommendations in the report to make Internet voting more
secure and transparent include**:
1.
**Any public elections conducted over the Internet must be
end-to-end verifiable **– The report asserts that the use of
Internet voting systems without end-to-end verifiability is
irresponsible, and E2E-V is the only publicly available
technology that provides assurance an Internet voting system is
secure and transparent.
2.
**End-to-End Verifiable systems must be in-person and supervised
first **– It is critical to first enhance the security of
in-person voting systems with E2E-V, and learn from its
deployment, before assuming the more complex task of deploying
E2E-VIV systems.
3.
**End-to-End Verifiable Internet Voting systems must be high
assurance**– E2E-VIV systems must be designed, constructed,
verified, certified, operated and supported according to the
most rigorous engineering requirements of mission- and
safety-critical systems. A voting system vulnerable to privacy
violations, programming errors, and security issues will
undermine the trust of the electorate and validity of the results.
4.
**End-to-End Verifiable Internet Voting systems must be usable
and accessible to all voters**– E2E-VIV systems must ensure
usability and accessibility for all voters including those with
disabilities.
5.
**Maintain aggressive election R&D efforts**– Formidable
challenges in usability, reliability and security remain for the
development of E2E-VIV systems and will require continued
investment in peer-reviewed research and development to overcome.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,internet voting
<http://electionlawblog.org/?cat=49>,voting technology
<http://electionlawblog.org/?cat=40>
“Change Ahead? ElectionlineWeekly On How California Voters, Election
Officials View ‘Ballot Delivery'” <http://electionlawblog.org/?p=74217>
Posted onJuly 10, 2015 7:42 am
<http://electionlawblog.org/?p=74217>byRick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://editions.lib.umn.edu/electionacademy/2015/07/10/change-ahead-electionlineweekly-on-how-california-voters-election-officials-view-ballot-delivery/>
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Posted inabsentee ballots <http://electionlawblog.org/?cat=53>,election
administration <http://electionlawblog.org/?cat=18>
Rep. Brown Likely to Sue Over FL Redistricting
<http://electionlawblog.org/?p=74215>
Posted onJuly 10, 2015 7:41 am
<http://electionlawblog.org/?p=74215>byRick Hasen
<http://electionlawblog.org/?author=3>
Marc Caputo
<http://www.politico.com/floridaplaybook/0715/floridaplaybook19076.html>in
Florida Playbook:
—*Rep. Corrine Brown will likely sue*, arguing a newly drawn seat
could disenfranchise minorities entitled to Voting Rights Act
protections. The ironies and deal-cutting complexities of
redistricting are summed up in the appearance and drafting of her
Jacksonville-to-Orlando seat. It’s designed to snake and slalom to
scoop up black voters (good for the black Democrat) and thereby
“bleach” the other bordering districts (good for the white
Republican districts that surround hers).
As I toldthe NY Times
<http://www.nytimes.com/2015/07/10/us/florida-court-finds-politics-determined-district-lines.html?_r=0>:
“If they don’t take minority interests enough into account, it could
violate theVoting Rights Act
<http://topics.nytimes.com/topics/reference/timestopics/subjects/v/voting_rights_act_1965/index.html?inline=nyt-classifier>,
and if they pack minority voters into too few districts, it could
create an unconstitutional racial gerrymander,” he said, referring
to pending cases making that claim in Virginia and North Carolina.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
“California Pours Big Bucks into Federal Campaigns — Mostly From
Wealthy Cities” <http://electionlawblog.org/?p=74213>
Posted onJuly 10, 2015 7:38 am
<http://electionlawblog.org/?p=74213>byRick Hasen
<http://electionlawblog.org/?author=3>
KQED’s California Reportreports
<http://ww2.kqed.org/news/2015/07/10/richest-CA-ZIP-codes-dominate-campaign-contributions>:
California donors poured $768 million into Senate, House and
presidential races between 2007 and the end of 2014 — money that
largely flowed from wealthy cities in Los Angeles County and the Bay
Area.
An analysis of federal campaign finance data byMapLight.org
<http://maplight.org/>found that residents of California’s most
famous ZIP code — 90210 — gave the most money, $12.8 million, over
the eight-year period. Aside from the Bay Area and LA County’s
dominance of the top 20 most generous ZIP codes, Sacramento and
Newport Beach were also in the mix.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
FL Redistricting Roundup <http://electionlawblog.org/?p=74211>
Posted onJuly 10, 2015 7:34 am
<http://electionlawblog.org/?p=74211>byRick Hasen
<http://electionlawblog.org/?author=3>
How Appealing
<http://howappealing.abovethelaw.com/071015.html#062891>has it.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Freedom is winning the battle over money in politics: Should anyone
celebrate?” <http://electionlawblog.org/?p=74209>
Posted onJuly 10, 2015 7:31 am
<http://electionlawblog.org/?p=74209>byRick Hasen
<http://electionlawblog.org/?author=3>
Brad Smith responds
<http://www.campaignfreedom.org/2015/07/09/freedom-is-winning-the-battle-over-money-in-politics-should-anyone-celebrate/>to
Paul Waldman:
An ongoing problem with “reform” advocacy over the decades has been
the lack of interest in results. The advocates of all this
regulation tend to measure “good government” by the presence of
regulation, rather than by improving living standards, greater
freedom, school performance, respect for civil liberties, or other
substantive criteria. Thus they hold out as an indicia of the
“success” of government financed elections that most candidates take
the free money rather than work under the regulatory handicaps that
exist if they do not; they cite lower spending as being itself
evidence of better government, even as states with lower spending
lag economically; they ignore the fact that passage of campaign
finance regulation never seems to actually boost public confidence
in government, and in fact more often corresponds with a decline in
confidence in government; they eagerly hope for a new government
ethics scandal they can lay at the feet of campaign finance freedom,
while ignoring the scandals that take place during their highly
regulated moments (Cunningham, Abramoff, Ney, Jefferson, runaway
earmarking, etc.).
Political campaigns are not always pretty, and they are not always
models of civic discourse as presented by the utopians. But on
balance, campaign finance freedom works, and works well. It’s far
better than leaving the regulation of political discourse to
incumbent congressmen and the party in power, to be guided,
presumably, by the prejudices of the Paul Waldmans of the world.
That’s why we have a First Amendment.
Should we celebrate our freedom to speak freely about candidates,
parties, issues, and Paul Waldman?
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Bush Outstrips Rivals in Fund-Raising as ‘Super PACs’ Swell
Candidates’ Coffers” <http://electionlawblog.org/?p=74206>
Posted onJuly 9, 2015 6:08 pm
<http://electionlawblog.org/?p=74206>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2015/07/10/us/politics/jeb-bush-races-past-rivals-in-fund-raising-aided-by-super-pac-cash.html?hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news>‘s
Nick Confessore:
The full cash position of the campaigns — and the names of who,
exactly, is supplying all this money — will not be clear until the
end of the month, when each candidate is to have filed formal
disclosures with the Federal Election Commission. But the rapid
influx of super PAC money suggests that theRepublican Party
<http://topics.nytimes.com/top/reference/timestopics/organizations/r/republican_party/index.html?inline=nyt-org>could
be in for a particularly long and bloody nomination fight, one that
could drag on well into next year.
“Having a well-funded campaign and a really well-funded super PAC
will allow a lot of candidates to stick around a lot longer than
they traditionally would, to drag out the process, and to make it
harder for the nominee to pivot to the Democrat,” said Scott W.
Reed, senior political strategist for the U.S. Chamber of Commerce.
The scale and pace of the fund-raising are unprecedented. Together,
the Republican candidates and their super PACs have already reported
raising at least five times more money than the entire 2012 field
had raised by June 2011.
At one point this winter, Mr. Bush’s super PAC discouraged donors
from giving more than $1 million, so as not to create the appearance
of undue influence by wealthy supporters. On Thursday the super PAC
put out a news release boasting of thousands of donors who had given
no more than $25,000 — the super PAC equivalent of pocket change.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Florida Court Finds Politics Determined District Lines”
<http://electionlawblog.org/?p=74204>
Posted onJuly 9, 2015 6:05 pm
<http://electionlawblog.org/?p=74204>byRick Hasen
<http://electionlawblog.org/?author=3>
Nick Madigan reports
<http://www.nytimes.com/2015/07/10/us/florida-court-finds-politics-determined-district-lines.html>for
the NYT.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Florida Supreme Court Throws Out Congressional Map, Orders
Battleground Districts Redrawn” <http://electionlawblog.org/?p=74199>
Posted onJuly 9, 2015 12:58 pm
<http://electionlawblog.org/?p=74199>byRick Hasen
<http://electionlawblog.org/?author=3>
Jack Fitzpatrick reports
<http://www.nationaljournal.com/politics/florida-redistricting-congressional-map-supreme-court-20150709>for
the /National Journal./
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Jiggery-Pokery” in Today’s Florida Supreme Court Redistricting
Opinion <http://electionlawblog.org/?p=74197>
Posted onJuly 9, 2015 12:36 pm
<http://electionlawblog.org/?p=74197>byRick Hasen
<http://electionlawblog.org/?author=3>
From the opinion
<http://www.floridasupremecourt.org/decisions/2015/OP-SC14-1905_LEAGUE%20OF%20WOMEN%20VOTERS_JULY09.pdf>:
A reader of Justice Canady’s dissent in isolation could be forgiven
for believing that this Court’s decision here amounts to a creative
maneuver designed to overstep its proper bounds, done in order to
usurp the Legislature’s role in the redistricting process. The
dissent’s attacks on this Court’s analysis are extravagant, even
when measured against prior dissenting opinions in our recent
redistricting cases that have accused this Court of devising “a
radical alteration in the operation of the separation of powers.”
Apportionment IV, 132 So. 3d at 160 (Canady, J., dissenting). The
barrage of epithets employed by the dissent includes the following
colorful array: “fallacious”; “fabricated”; “extreme distortion”;
“revolutionary deformation”; “teeming with judicial overreaching”;
“creatively cobbled”; “aggressive invasion”; “aberrant decision”;
and “unprecedented incursions.”20 Dissenting op. at 110, 111, 112,
117, 127.
*20. Perhaps we should take solace in not being accused of
“jiggery-pokery.” See King v. Burwell, No. 14-114, 2015 WL 2473448,
at *19 (U.S. June 25, 2015) (Scalia, J., dissenting).*
Of course, we categorically reject the dissent’s many derisive
criticisms. And we point out that the dissent’s overblown claims
that this Court has violated the separation of powers, and has done
away with the presumption of constitutionality applied to
legislative acts in the redistricting context, are in fact nothing
new. In Apportionment I, the dissent repeatedly chastised this Court
for “cast[ing] aside the presumption of constitutionality.”
Apportionment I, 83 So. 3d at 696 (Canady, J., concurring in part
and dissenting in part). In Apportionment III, the dissent charged
that this Court had “la[id] the groundwork for the unrestrained
judicial intrusion” into the redistricting process. Apportionment
III, 118 So. 3d at 218 (Canady, J., dissenting) (internal quotation
omitted). And in Apportionment IV, the dissent hyperbolically
accused this Court of “grievously violat[ing] the constitutional
separation of powers.” Apportionment IV, 132 So. 3d at 156 (Canady,
J., dissenting).
My emphasis.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
More Post Remand Alabama Redistricting Documents
<http://electionlawblog.org/?p=74195>
Posted onJuly 9, 2015 12:31 pm
<http://electionlawblog.org/?p=74195>byRick Hasen
<http://electionlawblog.org/?author=3>
Courtesy ofMoritz:
<http://moritzlaw.osu.edu/electionlaw/litigation/DemocraticvAlabama.php>
* ALBC Plaintiffs’ Motion for Reconsideration of Order Readopting
Rulings Not Addressed By the Supreme Court
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ADCMotion06122015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/12/15)
* ALBC Plaintiffs’ Refiled Motion for Summary Judgment in Compliance
With Supreme Court Mandate
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ALBCRefiledMotion06122015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/12/15)
* ALBC Plaintiffs’ Remand Brief in Support of Refiled Motion for
Summary Judgment in Compliance With Supreme Court Mandate
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ALBCRemandBrief06122015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/12/15)
* Defendants’ Unopposed Motion to Substitute Exhibit 475 and Notice of
Filing Corrected Exhibit Disk
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ADCMotiontoSub06122015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/12/15)
* Plaintiffs’ Post-Remand Brief
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ADCPostRemandBrief06122015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/12/15)
* Order Granting Defendants’ Unopposed Motion to Substitute Exhibit
475
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ADCOrder06172015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/17/15)
* Order Scheduling Oral Argument on the Post-Remand Briefing
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ADCOrderSchedule06232015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
6/23/15)
* ALBC Plaintiffs’ Amended Motion for Reconsideration of Order
Readopting Rulings Not Addressed by the Supreme Court
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ALBCMotion07022015.pdf>pdf
file
<http://moritzlaw.osu.edu/electionlaw/litigation/documents/DistrictCourtOpinion122014.pdf>(filed
7/02/15)
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
The Alabama Redistricting Cases and Today’s Decision Invalidating
Eight Congressional Districts in Florida
<http://electionlawblog.org/?p=74191>
Posted onJuly 9, 2015 12:14 pm
<http://electionlawblog.org/?p=74191>byRichard Pildes
<http://electionlawblog.org/?author=7>
A major basis for today’s Florida Supreme Court decision is that the
Florida legislature wrongly believed or purported to believe that the
Voting Rights Act required raising the population of black voters to
certain high levels. Relying on the Supreme Court’s decision this Term
in the Alabama racial-gerrymandering cases, the Florida court found that
the VRA did not require raising the black populations to these levels.
The Florida court concluded that the Republican legislature had done
this for partisan political purposes, ie, as a way to pack Democratic
voters into a few districts and limit their power elsewhere. Because
Florida’s Constitution now bans partisan gerrymandering, as a result of
a voter initiative, these districts therefore were in violation of
Florida law.
This is a particularly interesting ramification of the Supreme Court’s
Alabama decision. Today’s decision makes the Supreme Court’s decision
relevant even in cases that involve state-law claims, rather than only
those — like the one at issue in the Alabama cases — that involve the
U.S. Constitution. In the Alabama cases, the claim is that the State
engaged in an unconstitutional racial gerrymander when it used race to
draw districts beyond the point at which the VRA required race to be
taken into account. In today’s case, the Florida court instead
concluded, in essence, that the State had used the VRA as an excuse to
engage in partisan gerrymandering. Florida is now the fourth state, at
least, in which statewide redistricting plans are being challenged based
on the principles recognized in the Supreme Court’s Alabama decision.
The federal court in Virginia has struck down a congressional district
there, and the issues are currently pending before the North Carolina
Supreme Court.
To be more specific about today’s Florida decision, a “focal point” of
the litigation, in the Court’s words, was Congressional District 5,
where Rep. Corrine Brown is the incumbent. This district had an
East-West configuration before redistricting; it was changed to a
North-South configuration based on the assertion that this was necessary
to avoid “retrogression,” under the VRA, in the ability of minorities in
that area to elect a candidate of choice. From 1992, when this district
was first created, through today, it had elected an African-American
candidate; during this period, the black voting-age population (BVAP)
ranged from around 43-47%. In the 2012 redistricting, the Florida
legislature increased the BVAP above 50%; the Florida courts invalidated
that action. On a second try, the legislature made the district 48.1%
BVAP, again on the claim that the VRA required this. Though legislative
staff had proposed a plan in which this district remained drawn east to
west, with a BVAP of 44.96%, the legislature took the position that the
VRA barred it from dropping the BVAP below 48%. But the Florida court,
relying on the Alabama decision, held that black voters would still have
the “ability to elect” at a 45% BVAP and hence there was no legitimate
need to reconfigure the district so dramatically.
This attempted change to how District 5 was designed was said to be the
“linchpin to the Legislature’s effort to draw a map that favors the
Republican Party.” On a quick read, the Florida court appears to have
struck down some of the other congressional districts for the same
reason, while striking down yet others as illegal partisan gerrymanders
for other reasons.
This is an important decision, for many reasons. We now have a court
decision enforcing voter-initiated prohibitions on partisan
gerrymandering. Time will tell what the net effect will be, since the
court gave the Florida legislature another chance to draw these seven
congressional districts in a way consistent with the state
Constitution’s ban on partisan gerrymandering.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“One Robe, One Vote” <http://electionlawblog.org/?p=74192>
Posted onJuly 9, 2015 11:16 am
<http://electionlawblog.org/?p=74192>byRick Hasen
<http://electionlawblog.org/?author=3>
I joined Above the Law’s “Thinking Like a Lawyer” podcast to talk
election law issues with Elie Mystal and Joe Patrice.
Take a listen.
<http://legaltalknetwork.com/podcasts/thinking-like-a-lawyer/2015/07/one-robe-one-vote/>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“How Presidential Candidates Are Pushing Past Campaign Finance
Boundaries This Time” <http://electionlawblog.org/?p=74188>
Posted onJuly 9, 2015 10:08 am
<http://electionlawblog.org/?p=74188>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Blumenthal reports
<http://www.huffingtonpost.com/2015/07/09/2016-campaign-finance_n_7757258.html>for
HuffPo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
The Intercept Talks with Rep. Sarbanes About Campaign Finance Reform
<http://electionlawblog.org/?p=74186>
Posted onJuly 9, 2015 10:05 am
<http://electionlawblog.org/?p=74186>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<https://firstlook.org/theintercept/2015/07/09/rep-john-sarbanes-plan-de-suck-u-s-government-part-ii/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
2015 Election Law Supplement Now Open for Preorders
<http://electionlawblog.org/?p=74184>
Posted onJuly 9, 2015 9:54 am
<http://electionlawblog.org/?p=74184>byRick Hasen
<http://electionlawblog.org/?author=3>
Carolina Academic Presshas opened preorders
<http://www.cap-press.com/books/isbn/9781611638158/Election-Law-Fifth-Edition-2015-Supplement>for
the 2015 supplement to Lowenstein, Hasen & Tokaji,Election Law–Cases and
Materials
<http://www.cap-press.com/books/isbn/9781611631784/Election-Law-Fifth-Edition>(5th
ed. 2012). If you are an instructor using the book, a pdf is available
for your planning purposes now by emailing crutan (at) cap-press.com.
More info on what’s in the supplement ishere
<http://electionlawblog.org/?p=74007>.
The supplement should begin shipping July 28.
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Posted inpedagogy <http://electionlawblog.org/?cat=23>
Breaking: FL Supreme Court Strikes Congressional Redistricting:
Analysis <http://electionlawblog.org/?p=74172>
Posted onJuly 9, 2015 8:17 am
<http://electionlawblog.org/?p=74172>byRick Hasen
<http://electionlawblog.org/?author=3>
The Florida Supreme Court, on a 5-2 vote, has struck down Florida’s
redistricting for congressional districts on state law grounds. See
* SC14-1905 The League of Women Voters of Florida, etc., et al. v.
Ken Detzner, et al. Opinion
<http://www.floridasupremecourt.org/decisions/2015/OP-SC14-1905_LEAGUE%20OF%20WOMEN%20VOTERS_JULY09.pdf>andOrder
<http://www.floridasupremecourt.org/decisions/2015/sc14-1905_ORDER.pdf>
The court found that the plans were a partisan gerrymander, and that
this intent to favor Republicans violated provisions of the state
constitution passed by voters in the “Fair Districts Amendment.” The
court’s decision includes a lengthy discussion of evidence of such
improper intent.
The court has ordered the Florida legislature to create new plans, to
use a particular software package to create that plan, and to submit the
new plan to the state Supreme Court for approval:
Accordingly, while we affirm the trial court’s finding that the
Legislature’s enacted map was “taint[ed]” by unconstitutional
intent, we reverse the trial court’s order upholding the
Legislature’s remedial redistricting plan. We relinquish this case
to the trial court for a period of 100 days from the date of this
opinion, with directions that it require the Legislature to redraw,
on an expedited basis, Congressional Districts 5, 13, 14, 21, 22,
25, 26, 27, and all other districts affected by the redrawing,
pursuant to the guidelines set forth in this opinion. We emphasize
the time-sensitive nature of these proceedings, with candidate
qualifying for the 2016 congressional elections now less than a year
away, and make clear that we take seriously our obligation to
provide certainty to candidates and voters regarding the legality of
the state’s congressional districts. Upon the completion of the
redrawing of the map, the trial court shall hold a hearing where
both sides shall have an opportunity to present their arguments and
any evidence for or against the redrawn map, and the trial court
shall then enter an order either recommending approval or
disapproval of the redrawn map.
Further, the Court orders some transparency and fairness to the mapping
process:
We therefore set forth the following guidelines and parameters,
which we urge the Legislature to consider in adopting a redrawn map
that is devoid of partisan intent. First, in order to avoid the
problems apparent in this case as a result of many critical
decisions on where to draw the lines having been made outside of
public view, we encourage the Legislature to conduct all meetings in
which it makes decisions on the new map in public and to record any
non-public meetings for preservation. As we stated in Apportionment
IV, “one of our state constitutional values is a strong and
well-established public policy of transparency and public access to
the legislative process.” Id. at 146. This transparency is critical
in light of both the purpose of the Fair Districts Amendment to
outlaw partisan manipulation in the redistricting process and the
trial court’s finding here that “an entirely different, separate
process” to favor Republicans and incumbents was undertaken contrary
to the Legislature’s assertedly transparent redistricting effort.
Id. at 149.
Second, the Legislature should provide a mechanism for the
challengers and others to submit alternative maps and any testimony
regarding those maps for consideration and should allow debate on
the merits of the alternative maps. The Legislature should also
offer an opportunity for citizens to review and offer feedback
regarding any proposed legislative map before the map is finalized.
Third, the Legislature should preserve all e-mails and documents
related to the redrawing of the map. In order to avoid additional,
protracted discovery and litigation, the Legislature should also
provide a copy of those documents to the challengers upon proper
request. Finally, we encourage the Legislature to publicly document
the justifications for its chosen configurations. That will assist
this Court in fulfilling its own solemn obligation to ensure
compliance with the Florida Constitution in this unique context,
where the trial court found the Legislature to have violated the
constitutional standards during the 2012 redistricting process.
Does the Florida legislature have recourse to the federal courts? After
all, the Constitution gives the state /legislature/the power to set the
rules for congressional redistricting, and this is the product of an
initiative and a state court overruling the legislature. (Echoes of a
Bush v. Gore type argument about legislature.) Until a few weeks ago,
this would have been a plausible argument, but it is now apparently
foreclosed by the U.S. Supreme Court’s opinion in the Arizona
redistricting case. Here’s a footnote from today’s Florida case:
We reject the Legislature’s federal constitutional challenge to the
Fair Districts Amendment. The Supreme Court’s recent opinion in the
Arizona case confirms that neither the “Elections Clause” of the
United States Constitution, U.S. Const. art. I, § 4, cl. 1, nor
federal law, 2 U.S.C. § 2a(c), prohibits the people of a state,
through the citizen initiative process, from directing the way in
which its congressional district boundaries are drawn. As the
Supreme Court explained, “[b]anning lawmaking by initiative to
direct a State’s method of apportioning congressional districts”
would “stymie attempts to curb partisan gerrymandering, by which the
majority in the legislature draws district lines to their party’s
advantage.” Ariz. State Legislature, 2015 WL 2473452, at *20; see
also Brown, 668 F.3d at 1280 (rejecting a federal constitutional
challenge to the Fair Districts Amendment based on reasoning wholly
consistent with the Supreme Court’s reasoning in Arizona State
Legislature).
Think of this as the revenge of Florida in Bush v. Gore on the meaning
of the term legislature (seemy Slate piece
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/06/arizona_supreme_court_decision_redistricting_ruling_undermines_bush_v_gore.html>for
context).
[This post has been updated.]
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Fullerton agrees to voting districts in settling lawsuit”
<http://electionlawblog.org/?p=74170>
Posted onJuly 9, 2015 8:13 am
<http://electionlawblog.org/?p=74170>byRick Hasen
<http://electionlawblog.org/?author=3>
LAT reports.
<http://www.latimes.com/local/orangecounty/la-me-fullerton-voting-20150709-story.html>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
--
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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