[EL] ELB News and Commentary 8/25/16

Thu Aug 25 08:04:41 PDT 2016

“How many votes will Trump give up by not running a professional campaign? A lot.”<http://electionlawblog.org/?p=85856>
Posted on August 25, 2016 7:57 am<http://electionlawblog.org/?p=85856> by Rick Hasen<http://electionlawblog.org/?author=3>

John Sides<https://www.washingtonpost.com/news/monkey-cage/wp/2016/08/25/how-many-votes-will-trump-give-up-by-not-running-a-professional-campaign-a-lot/> for The Monkey Cage.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Rich Upper East Siders Are Spending Millions to Mess With Elections in Brooklyn and the Bronx”<http://electionlawblog.org/?p=85854>
Posted on August 25, 2016 7:53 am<http://electionlawblog.org/?p=85854> by Rick Hasen<http://electionlawblog.org/?author=3>

Because they can.<http://www.villagevoice.com/news/rich-upper-east-siders-are-spending-millions-to-mess-with-elections-in-brooklyn-and-the-bronx-9017921>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“GOP FAIL: Donald Trump Not Listed on Minnesota Ballot”<http://electionlawblog.org/?p=85852>
Posted on August 25, 2016 7:52 am<http://electionlawblog.org/?p=85852> by Rick Hasen<http://electionlawblog.org/?author=3>

It’s the little things<http://www.thegatewaypundit.com/2016/08/gop-fail-donald-trump-not-listed-minnesota-ballot/> (via Political Wire<https://politicalwire.com/2016/08/25/trump-not-on-minnesota-ballot/>).
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Posted in ballot access<http://electionlawblog.org/?cat=46>, campaigns<http://electionlawblog.org/?cat=59>

Roger Stone Now Scam Fundraising Off Unsupported Vote Rigging Allegations<http://electionlawblog.org/?p=85850>
Posted on August 25, 2016 7:50 am<http://electionlawblog.org/?p=85850> by Rick Hasen<http://electionlawblog.org/?author=3>

Because of course he is:
<https://twitter.com/RogerJStoneJr>
 Follow<https://twitter.com/RogerJStoneJr>
[https://pbs.twimg.com/profile_images/759370361926455297/Jo9lI-qP_normal.jpg]Roger Stone @RogerJStoneJr<https://twitter.com/RogerJStoneJr>

I am absolutely positive the Clintons will try to rig the election against @realDonaldTrump<https://twitter.com/realDonaldTrump> Let's stop them http://stopthesteal.org/ <https://t.co/ZZGHq562va>
12:34 AM - 25 Aug 2016<https://twitter.com/RogerJStoneJr/status/768713245809147904>
·         <https://twitter.com/intent/tweet?in_reply_to=768713245809147904>

·         <https://twitter.com/intent/retweet?tweet_id=768713245809147904>
 329329 Retweets<https://twitter.com/intent/retweet?tweet_id=768713245809147904>

·         <https://twitter.com/intent/like?tweet_id=768713245809147904>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Trump’s Lawyers Had a Very Good Summer. Why His He Paying Them So Much Money?”<http://electionlawblog.org/?p=85848>
Posted on August 24, 2016 4:17 pm<http://electionlawblog.org/?p=85848> by Rick Hasen<http://electionlawblog.org/?author=3>

Russ Choma for Mother Jones.<http://www.motherjones.com/politics/2016/08/donald-trump-lawyers-campaign-spending>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, election law biz<http://electionlawblog.org/?cat=51>

“‘Natural Born’ Disputes in the 2016 Presidential Election”<http://electionlawblog.org/?p=85846>
Posted on August 24, 2016 3:42 pm<http://electionlawblog.org/?p=85846> by Rick Hasen<http://electionlawblog.org/?author=3>

Derek Muller has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828329> on SSRN (forthcoming, Fordham Law Review).  Here is the abstract:

The 2016 presidential election brought forth new disputes concerning the definition of a “natural born citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates’ qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad—and incorrect—pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a “natural born citizen.” This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Ruling clears way for Pasadena voting rights suit to go to trial”<http://electionlawblog.org/?p=85844>
Posted on August 24, 2016 3:08 pm<http://electionlawblog.org/?p=85844> by Rick Hasen<http://electionlawblog.org/?author=3>

Houston Chronicle:<http://www.chron.com/local/article/Judge-denies-challenge-to-Pasadena-voting-rights-9181807.php?cmpid=twitter-desktop>

A federal judge has denied Pasadena’s request to throw out a lawsuit challenging its controversial city council redistricting plan, which a group of Hispanic and Latino residents alleges dilutes the voting rights of the suburb’s growing minority population.

Judge Lee Rosenthal’s ruling Wednesday after a roughly two-hour court hearing means the case continues toward trial, which Rosenthal has tentatively set for November.
 Wednesday’s session was one of the first significant hearings in the voting rights case, which has received national attention as emblematic of modern-day battles<http://www.houstonchronicle.com/news/houston-texas/houston/article/Fifty-years-later-Pasadena-case-emblematic-of-6427697.php> over the issue more than 50 years after the Voting Rights Act was passed.

The city had asked Rosenthal to rule on a motion for summary judgment in favor of the city’s 3-year-old method of electing the council, which called for races for six single-member seats and two at-large seats, stating that the plan allows the Hispanic minority population the opportunity to elect four members.

Rosenthal rejected that argument, stating that the new method creates a majority of Hispanic citizens of voting age in three districts, compared to four in the previous election system, when there were eight single-member districts.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Clock running out on challenges to voting rights cases in key states”<http://electionlawblog.org/?p=85842>
Posted on August 24, 2016 2:11 pm<http://electionlawblog.org/?p=85842> by Rick Hasen<http://electionlawblog.org/?author=3>

Ariane de Vogue for CNN.<http://www.cnn.com/2016/08/24/politics/voter-id-rights-cases/index.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“County Votes To Remove Planning Commission Member”<http://electionlawblog.org/?p=85840>
Posted on August 24, 2016 2:06 pm<http://electionlawblog.org/?p=85840> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting story out of Reno:<http://thisisreno.com/2016/08/county-votes-to-remove-planning-commission-member/>

Washoe County Planning Commission Member Thomas Daly was removed from his seat yesterday by the Washoe Board of County Commissioners.

At issue was Daly’s opinion article last spring in the Reno Gazette-Journal<http://thisisreno.com/2016/08/county-seeks-to-oust-planning-commission-member/> in which he expressed opposition to a development near Mt. Rose highway.

While some said that Daly was exercising his First Amendment rights and advocating for his constituents, the county argued that that he violated rules governing his role on the commission and the due process rights of the developer.

I see a possible First Amendment lawsuit in the offing.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Voting Rights Victory for Disabled Voters<http://electionlawblog.org/?p=85838>
Posted on August 24, 2016 2:02 pm<http://electionlawblog.org/?p=85838> by Rick Hasen<http://electionlawblog.org/?author=3>

Jack Pitney blogs.<http://www.autismpolicyblog.com/2016/08/voting-rights-in-california.html>
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Posted in voters with disabilities<http://electionlawblog.org/?cat=71>

“WMP/CRP Special Report Outside Group Activity, 2000-2016”<http://electionlawblog.org/?p=85836>
Posted on August 24, 2016 12:48 pm<http://electionlawblog.org/?p=85836> by Rick Hasen<http://electionlawblog.org/?author=3>

New report<http://mediaproject.wesleyan.edu/releases/disclosure-report/> highlights:
·         There has been a vast increase in the volume of advertising sponsored by outside groups between 2000 and 2016.
·         The share of ads sponsored by outside groups between 2000 and 2016 has increased dramatically.
·         Whereas 527 organizations dominated advertising in 2004, super PACs now sponsor the most outside group advertising.
·         Dark money groups (also known as non-disclosing groups) have been a consistent presence since 2000 and are much more active before the FEC’s 60-day reporting window. The overall volume of ad buys from dark money groups has increased in recent cycles, and even though the share of ads from dark money groups has declined relative to super PACs, their raw ad totals remain high.
·         The vast majority of groups are active in a single election cycle.

[http://election-ad.research.wesleyan.edu/files/2014/04/1.jpg]
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, tax law and election law<http://electionlawblog.org/?cat=22>

“McCain rips big donor, warns of future campaign finance scandals”<http://electionlawblog.org/?p=85834>
Posted on August 24, 2016 12:43 pm<http://electionlawblog.org/?p=85834> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports.<http://www.politico.com/story/2016/08/mccain-robert-mercer-kelli-ward-donor-227365>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Hillary Clinton is exploring the outer limits of fundraising like no presidential nominee ever has”<http://electionlawblog.org/?p=85832>
Posted on August 24, 2016 12:31 pm<http://electionlawblog.org/?p=85832> by Rick Hasen<http://electionlawblog.org/?author=3>

LAT<http://www.latimes.com/politics/la-na-pol-hillary-clinton-fundraising-20160824-snap-story.html>:

If there were a moment in this presidential race when Hillary Clinton could act on her stated outrage over the obscene amount of money in politics, it is probably now, having eclipsed her rival Donald Trump in terms of cash in the bank and blocked off his most direct paths to victory.

But Clinton isn’t tapping the brakes. She is instead on an extended tour through the nation’s elite enclaves — from Laguna Beach to the Hamptons, Martha’s Vineyard to Magic Johnson’s house in Los Angeles – in an unrestrained fundraising blitz that makes even some supporters chafe.

The price of entry at several of the stops, such as Monday’s dinner at the Beverly Hills home of entertainment mogul Haim Saban, is $50,000 per person. On the Vineyard on Saturday, Clinton netted roughly $2 million at a single cocktail party, then darted off to a small dinner event at a billionaire’s home that generated another $1 million.

By midweek, the Clinton war chest had grown by many millions more, as Clinton hopscotched on a three-day California swing from Johnson’s house to the Saban affair and then to the home of Justin Timberlake and Jessica Biel, where Jennifer Aniston, Jamie Foxx and Tobey Maguire also showed up. Then it was off to the Bay Area for multiple events, including one hosted by Apple Chief Executive Tim Cook<http://www.latimes.com/topic/business/technology-industry/tim-cook-PEBSL000519-topic.html>.

Along the way, Clinton’s campaign is pushing the boundaries of fundraising further than any presidential nominee ever has. She has seized on loose federal campaign financing enforcement to substantially drive up the amount of money that can be accepted from the wealthiest donors. And her campaign has also taken advantage of GOP disarray to build a considerably more aggressive network of state and federal committees that often work merely as pass-throughs to step around legal donation limits.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

Helpful from Kevin Drum on Hillary, the State Department, and Access<http://electionlawblog.org/?p=85830>
Posted on August 24, 2016 11:49 am<http://electionlawblog.org/?p=85830> by Rick Hasen<http://electionlawblog.org/?author=3>

Kevin respond<http://www.motherjones.com/kevin-drum/2016/08/yes-politics-sort-grubby-business>s at Mother Jones to my USA Today oped.<http://www.usatoday.com/story/opinion/2016/08/24/even-trump-and-clinton-need-big-money-donors-column/89229902/> Here’s the key part:

This is fine. If the beef with Hillary is that she’s an ordinary politician who’s more likely to see you if you’re (a) important, (b) a party wheelhorse, and (c) an important donor, then I have no argument. I also have no argument that this is unseemly.

But it’s also something I can’t get too upset about. It’s not just that everyone does this. It’s not just that everyone in American politics does this. It’s the fact that everyone, everywhere, throughout all of human history has done this. It’s just the way human societies work. I’m all in favor of trying to reduce the influence of money on politics, but I doubt there’s any way to truly make much of a dent in it.And as I’ve mentioned before,<http://www.motherjones.com/kevin-drum/2016/05/todays-liberal-heresy-campaign-finance-reform-not-big-deal> I don’t consider it one of our nation’s biggest problems anyway….

If you want to criticize the outsize influence of the connected and powerful, that’s fine. If you want to criticize Hillary Clinton for being an ordinary part of this system—as Bernie Sanders did—that’s fine. (As long as you’re not also part of that same system, of course.) But is there some kind of special scandal associated with Hillary in the State Department? I sure don’t see it.

This is nice and clarifying. I agree there is no special scandal associated with Hillary at the State Department. It is business as usual for our politicians.

And that’s the problem.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

33 Donors Gave 90% of Money to Pro-Clinton Super PAC<http://electionlawblog.org/?p=85828>
Posted on August 24, 2016 11:05 am<http://electionlawblog.org/?p=85828> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI.<https://www.publicintegrity.org/2016/08/24/20141/liberal-billionaires-bankroll-hillary-clinton-s-super-pac-attack-dog>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Donald Trump Used Campaign Donations to Buy $55,000 of His Own Book”<http://electionlawblog.org/?p=85826>
Posted on August 24, 2016 10:17 am<http://electionlawblog.org/?p=85826> by Rick Hasen<http://electionlawblog.org/?author=3>

Daily Beast:<http://www.thedailybeast.com/articles/2016/08/24/donald-trump-used-campaign-donations-to-buy-55-000-of-his-own-book.html?via=desktop>

Paul Ryan (not that one), of the nonpartisan nonprofit Campaign Legal Center, said that Trump would have to forgo accepting royalties for sales on the book in order for the transaction to be legal, under Federal Election Committee rules.

“It’s fine for a candidate’s book to be purchased by his committee, but it’s impermissible to receive royalties from the publisher,” Ryan said. “That amounts to an illegal conversion of campaign funds to personal use. There’s a well established precedent from the FEC that funds from the campaign account can’t end up in your own pocket.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

North Carolina County Considers Armed Civilians to Patrol Polling Places<http://electionlawblog.org/?p=85824>
Posted on August 24, 2016 10:15 am<http://electionlawblog.org/?p=85824> by Rick Hasen<http://electionlawblog.org/?author=3>

Wish this Gannett report was a joke<http://www.citizen-times.com/story/news/local/2016/08/23/elections-chair-discussed-arming-civilians-polls/89096582/>:

The highest appointed elections officer in Henderson County has explored deputizing civilians to patrol the polls on Election Day.

At an Aug. 16 public meeting, Bob Heltman, chair of the Henderson County Board of Elections, discussed the idea of a “posse comitatus,” in which civilians would be deputized and armed to serve the sheriff. He said he asked the sheriff whether such a posse could patrol the polls, but he has since discovered the idea is unfeasible.

“‘I said ‘have you heard of a posse comitatus? What’s the story?”” he said. “Well, the net result of all that is there’s no time to even try to do it.”

Heltman, who was appointed to the board five years ago by the Republican party, said he discussed the idea as part of the board’s safety plan to prevent terrorism, but he has abandoned it.

This is a natural consequence of Trump’s election rigging talk.<http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

6th Cir., in Thoughtful J. Sutton Opinion, Upholds Ban on Endorsements by Judicial Candidates<http://electionlawblog.org/?p=85822>
Posted on August 24, 2016 9:23 am<http://electionlawblog.org/?p=85822> by Rick Hasen<http://electionlawblog.org/?author=3>

This strikes me <http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0206p-06.pdf> as an exceptionally thoughtful opinion, upholding some judicial campaign regulations and striking down others.

It also shows how the Supreme Court’s Williams-Yulee decision has changed the calculus on which judicial campaign regulations can survive First Amendment attack.

Here’s a bit from the opinion upholding the ban on endorsements in other races:

Because endorsements often are “exchanged between political actors on a quid pro quo basis,” id., the endorsements clause is narrowly tailored to Kentucky’s compelling interest in preventing judges from becoming (or being perceived as becoming) part of partisan political machines. As long as Kentucky “does not regulate speech with regard to any underlying issues,” it may target “the act of endorsement itself, which . . . is a direct expression of bias in favor of or against potential parties to a case, or at the very least, damages the appearance of impartiality.” Wersal v. Sexton, 674 F.3d 1010, 1026 (8th Cir. 2012). A ban on such endorsements also guards against the risk that, once a judge is elected, he will not be able to (and he will not be perceived as being able to) referee disputes involving elected officials he did or did not endorse. The clause does not suffer from the too-much and too-little coverage problems that the speeches and contributions clauses do. The plaintiffs have not identified any protected speech banned by the endorsements clause that makes it over-inclusive. It does not prohibit speech in opposition to one’s own opponent any more than it prohibits “endorsing” oneself. Yet it does ban the endorsement of a candidate in a different race, an act that, like the personal solicitations in Williams-Yulee, signals the judicial candidate’s “active[] engage[ment] in political campaigns.” Wolfson, 811 F.3d at 1184 (upholding Arizona’s endorsement clause). While the clause is narrowly drawn, it is not perfectly drawn. It has a modest underinclusivity problem because, as the plaintiffs point out, and the Commentary to Canon 5 confirms, a judicial candidate may “privately express[] his or her views on judicial candidates or other candidates for public office.” True enough. But private expressions of approval or disapproval create far fewer quid pro quo appearance problems than the candidate formally putting his name and reputation behind another. The endorsements clause “aims squarely at the conduct most likely to undermine” non-partisanship in judicial elections and is thus narrowly tailored to that interest. Williams-Yulee, 135 S. Ct. at 1668.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>

“Even Trump and Clinton need big-money donors: Column”<http://electionlawblog.org/?p=85820>
Posted on August 24, 2016 8:16 am<http://electionlawblog.org/?p=85820> by Rick Hasen<http://electionlawblog.org/?author=3>

Coinciding with the paperback release of Plutocrats United<https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300223544/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=&sr=>, I have written this oped for USA Today<http://www.usatoday.com/story/opinion/2016/08/24/even-trump-and-clinton-need-big-money-donors-column/89229902/>. It concludes:

None of these things — Trump courting super PAC donors, Clinton getting paid by the wealthiest companies as a private citizen, or Clinton as secretary of State giving access to big donors to her foundation — amounts to criminal activity or even what we might term corruption. In the Supreme Court’s Citizens United<https://www.supremecourt.gov/opinions/09pdf/08-205.pdf> case, Justice Anthony Kennedy, writing for the Court, declared that “ingratiation and access are not corruption.”

But there’s still something wrong with a political system in which access goes to the highest bidder. The Clinton team is quick to argue that there’s no evidence the meetings Clinton gave to big donors led to any official actions. But those donors get more than just a picture with a candidate; they get a chance to make their pitch for the policies they want pursued or blocked, a pitch the rest of us don’t get to make because we don’t have hundreds of thousands of dollars or more to contribute to campaigns.

And presidential hopefuls have the least need of any candidates to suck up to rich individual donors, because their campaigns attract so much money from so many different sources.

Consider the race for control of the Senate, where as of last month over $100 million was raised by super PACs and non-disclosing outside groups to try to influence the outcome of these races. Paul Blumenthal of the Huffington Post reports<http://www.huffingtonpost.com/entry/2016-senate-super-pacs_us_57854c6ee4b03fc3ee4e54bd> that $70 million of this money has supported Republicans, with much of the money coming from the Koch Brothers Network and the U.S. Chamber of Commerce. Democrats are funneling most of their money through a super PAC allied with retiring Senate Minority LeaderHarry Reid.

The pressure on Senate candidates to court this money distorts not only our elections but our politics. In House races, and in state and local races, the pressure is even more intense.

It is not true that our elections go to the highest bidders. But what is true is that the highest bidders get the ear of those in politics, and the rest of us have to settle for what’s left over after they have made their case. Even this year, when a billionaire is facing off against a multimillionaire.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, Plutocrats United<http://electionlawblog.org/?cat=104>

Federal Court, on 2-1 Vote, Lets Maryland Partisan Gerrymandering Claim Go Forward<http://electionlawblog.org/?p=85813>
Posted on August 24, 2016 7:48 am<http://electionlawblog.org/?p=85813> by Rick Hasen<http://electionlawblog.org/?author=3>

A three-judge court, on remand in Shapiro v. McManus, has ruled 2-1<http://electionlawblog.org/wp-content/uploads/mcmanus.pdf> that the first amendment-based partisan gerrymandering claim brought against Maryland’s sixth congressional district states a valid claim and now proceeds further (to summary judgment or trial). The opinion is important because, like another case out of Wisconsin<https://electionlawblog.org/?p=81678> and a third (already before the Court from North Carolina<https://electionlawblog.org/?p=84931>) will present a new Supreme Court with different theories under which the Court may finally rein in more egregious political gerrymanders.  And this particular opinion is written by Judge Niemeyer, who, as Steve Klepper notes,<https://twitter.com/MDAppeal/status/768450464144777216> is a respected conservative judge who serves as a feeder for clerks to the more conservative Supreme Court Justices.

There’s bound to be some jockeying and competition among the lawyers in the three cases, which will be presenting alternative theories as to how to separate permissible from impermissible consideration of political party data in redistricting.

Here is the key holding of the majority:

When applying First Amendment jurisprudence to redistricting, we conclude that, to state a claim, the plaintiff must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution. But vote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury. Instead, to establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. In other words, the vote dilution must make some practical difference. Finally, the plaintiff must allege causation — that, absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.

From the dissent:

But even accepting that the First Amendment supplies the relevant constitutional principle, and even assuming that official misconduct may be afoot on the discrete facts of this case, I cannot responsibly endorse Plaintiffs’ proposed standard (or otherwise approve continued litigation in this matter) unless I first conclude that the standard would be viable and manageable throughout the life of this case andbeyond the facts of this case. Two substantial hurdles prevent me from drawing such a conclusion. The first hurdle relates to precedent: the Supreme Court has expressed some degree of tolerance for partisanship in the districting context, but that tolerance creates intractable line-drawing problems. A per se rule flatly prohibiting state legislatures from taking account of voting history or voter affiliation in their mapmaking would streamline the preliminary analysis, but it is not clear that such a rule is available in light of controlling law (or desirable in light of competing interests and objectives).

Even were this Court to implement such a per se rule, there remains a second, insurmountable barrier. Courts are simply not equipped to ascertain those unusual circumstances in which redistricting inflicts an actual, measurable burden on voters’ representational rights. Yet that is precisely what the Supreme Court has required.Compare Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality opinion) (“We . . . agree . . . that in order to succeed the . . . plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”), and Vieth, 541 U.S. at 295 (plurality opinion) (“This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms.”), with League of United Latin Am. Citizens[LULAC] v. Perry, 548 U.S. 399, 418 (2006) (Kennedy, J.) (“[A] successful claim attempting to identify unconstitutional acts of partisan gerrymandering  must . . . show a burden, as measured by a reliable standard, on the complainants’ representational rights.”). Courts cannot reliably distinguish between what Plaintiffs would term impermissible “vote dilution” and the ordinary consequences of an American political process that is organic, fluid, and often unpredictable.

I think the dissent has the better of the argument that framing this injury as a First Amendment one rather than an Equal Protection one cannot solve the line-drawing problems that the Court has recognized in cases such as Vieth. That said, the Court could now be willing (especially with a 9th Justice appointed by a Democratic president) to engage in the line drawing, and this First Amendment theory offers a nice fig leaf for saying one is not overturning any cases or precedent to now allow the policing of partisan gerrymandering claims.

This case now moves to the next stage, and I expect action on this issue will shift to the North Carolina partisan gerrymandering case<https://electionlawblog.org/?p=84931>, which is now closer to Supreme Court review, where I expect at least amici to offer Judge Niemeyer’s theory as a plausible way to resolve these cases.

[This post has been updated.]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Johnson/Weld Will Appear on OH Ballot, But Still Not Certain with Libertarian Label<http://electionlawblog.org/?p=85811>
Posted on August 24, 2016 7:41 am<http://electionlawblog.org/?p=85811> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s the latest AP report<https://www.apnews.com/57c745f40c8e4edb903c8fe973c0d6f0/The-Latest:-Libertarian-Johnson-to-appear-on-Ohio-ballot>, but it is unclear to me if SOS Husted will be listing them as Libertarians, the subject of the emergency SCOTUS motion.<http://electionlawblog.org/?p=85762>
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Posted in ballot access<http://electionlawblog.org/?cat=46>, political parties<http://electionlawblog.org/?cat=25>

“Bernie Sanders’s New Political Group Is Met by Staff Revolt”<http://electionlawblog.org/?p=85809>
Posted on August 24, 2016 7:35 am<http://electionlawblog.org/?p=85809> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/08/25/us/politics/bernie-sanders-our-revolution-group.html?ref=politics>

Senator Bernie Sanders<http://www.nytimes.com/interactive/2016/us/elections/bernie-sanders-on-the-issues.html?inline=nyt-per> of Vermont, his presidential campaign now behind him, will look to advance the movement he built during the Democratic primary race, with the public unveiling on Wednesday of a political organization focused on addressing economic inequality and taking on special interests.

But while the establishment of the new group, Our Revolution, has been eagerly awaited by many of his most ardent supporters, it has been met with criticism and controversy over its financing and management.

A principal concern among backers of Mr. Sanders, whose condemnation of the campaign finance system was a pillar of his presidential bid, is that the group can draw from the same pool of “dark money” that Mr. Sanders condemned for lacking transparency.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“With an ally closing its doors, Evan McMullin has no clear path to ballot access”<http://electionlawblog.org/?p=85807>
Posted on August 24, 2016 7:30 am<http://electionlawblog.org/?p=85807> by Rick Hasen<http://electionlawblog.org/?author=3>

Wiegel.<https://www.washingtonpost.com/news/post-politics/wp/2016/08/23/with-an-ally-closing-its-doors-evan-mcmullin-has-no-clear-path-to-ballot-access/>
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Posted in ballot access<http://electionlawblog.org/?cat=46>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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