[EL] ELB News and Commentary 12/12/16

[Rick Hasen]

The 16th Anniversary of Bush v. Gore<http://electionlawblog.org/?p=89872>
Posted on December 11, 2016 8:00 pm<http://electionlawblog.org/?p=89872> by Rick Hasen<http://electionlawblog.org/?author=3>
Monday, December 12 marks the 16th anniversary of Bush v. Gore. There’s not much to celebrate.
True, the lines have gotten much better, and in many places the machinery of running elections has improved. But we still have nationally embarrassing election architecture in some places. Thank God the overheated 2016 presidential election did not come down to a recount of the votes<http://www.freep.com/story/news/local/michigan/2016/12/10/what-if-michigan-held-key-presidential-election/95142214/> in Detroit.
We still have partisans in charge of our election procedures.  As I wrote in the Orlando Sentinel last year<http://www.orlandosentinel.com/opinion/os-ed-bush-gore-anniversary-121115-20151210-story.html> on the 15th anniversary:
This month marks the 15th anniversary of the U.S. Supreme Court’s 2000 decision in Bush v. Gore, which ended a recount of ballots in Florida, and assured the election of Republican George W. Bush over Al Gore as our 43rd president. We can all breathe a sigh of relief that we haven’t had another election meltdown with such stark national ramifications for the past decade and a half, but that’s because we’ve been lucky, not smart.
And now, we have irresponsible claims of millions of illegal votes, claims which have no basis in reality.<http://www.miamiherald.com/news/politics-government/election/article116742673.html>
We can expect the years ahead to include a wave of new voting restrictions proposed in some states, and maybe even in Congress, and how much courts will step in to protect the franchise is an open question.
The voting wars seem to be heating up at a time when we should move toward consensus on the ideal of our American election system: that all eligible voters, but only eligible voters, can easily register and cast a vote which will be accurately counted.
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Posted in Bush v. Gore reflections<http://electionlawblog.org/?cat=5>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Recount mess: What if Michigan had held the key to election?”<http://electionlawblog.org/?p=89870>
Posted on December 11, 2016 7:36 pm<http://electionlawblog.org/?p=89870> by Rick Hasen<http://electionlawblog.org/?author=3>
Detroit Free Press:I<http://www.freep.com/story/news/local/michigan/2016/12/10/what-if-michigan-held-key-presidential-election/95142214/>
Imagine for a moment: What if Michigan’s 2016 presidential election had been a repeat of Florida’s in 2000?
Imagine that Donald Trump’s lead over Hillary Clinton had been just 200 votes instead of 10,000  and that the whole country was waiting on one last state to pick its winner.
Instead of examining hanging chads in Palm Beach County, the eyes of the world would instead be riveted on Wayne County, where one ballot box was sealed with duct tape and hundreds of precincts couldn’t be recounted because of other errors.
A recount in Michigan in 2016 almost certainly wouldn’t have mattered. But what if it would have?
“If this had been a scenario where Michigan would have been the deciding factor in a presidential election, we would have been embarrassed as a state,” said Jocelyn Benson, a law professor at Wayne State University who founded the nonpartisan Michigan Center for Election Law. “It would have brought national attention to the inadequacies of an election system that is in desperate need of reform.”
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Trump says blacks who stayed home were ‘almost as good’ as those who voted for him”<http://electionlawblog.org/?p=89868>
Posted on December 11, 2016 7:31 pm<http://electionlawblog.org/?p=89868> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/post-politics/wp/2016/12/09/trump-says-blacks-who-stayed-home-were-almost-as-good-as-those-who-voted-for-him/?utm_term=.c851ccd346d1>
President-elect Donald Trump claimed Friday night that African Americans came through for him “big league” in the November election and said those who stayed home were “almost as good” as those who voted for him.
Trump’s comments came during a rally in Grand Rapids, Mich., the latest stop on an ongoing “thank you” tour of states where the Republican prevailed against Democratic nominee Hillary Clinton.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


“Pro-Trump Group Blew by Basic Campaign Finance Laws”<http://electionlawblog.org/?p=89866>
Posted on December 11, 2016 7:29 pm<http://electionlawblog.org/?p=89866> by Rick Hasen<http://electionlawblog.org/?author=3>
ProPublica:<https://www.propublica.org/article/pro-trump-group-blew-by-basic-campaign-finance-laws>
A group that gave more money to one of President-elect Trump’s fundraising efforts than any other political action committee failed to disclose its donors before Election Day and exceeded caps on contribution amounts.
America Comes First PAC<https://projects.propublica.org/itemizer/committee/C00623256/2016> was created in early August. But for the next three months, it disclosed nothing about how much it raised, who its donors were or how it was spending its money.
 That eventually prompted a warning from federal regulators.
“It is important that you file this report immediately,” read an October 31 letter<http://docquery.fec.gov/cgi-bin/fecimg/?_201610310300066996+0> from the Federal Election Commission.
But Election Day came and went — and still nothing.
As federal regulators continued to wait for the required disclosures, the group posted a photo two days after the election showing Trump meeting with America Comes First secretary David Schamens
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Sorry But Alleged Russian Influence in Presidential Election Won’t Lead to a ‘Do-Over’”<http://electionlawblog.org/?p=89864>
Posted on December 11, 2016 7:24 pm<http://electionlawblog.org/?p=89864> by Rick Hasen<http://electionlawblog.org/?author=3>
LawNewz reports.<http://lawnewz.com/video/sorry-but-alleged-russian-influence-in-presidential-election-wont-lead-to-a-do-over/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>


Dahlia Lithwick Talks to Marc Elias on Partisan Gerrymandering and Carolyn Shapiro on the Electoral College<http://electionlawblog.org/?p=89862>
Posted on December 11, 2016 3:04 pm<http://electionlawblog.org/?p=89862> by Rick Hasen<http://electionlawblog.org/?author=3>
Listen<http://www.slate.com/articles/podcasts/amicus/2016/12/racial_gerrymandering_at_the_supreme_court.html> at Slate Amicus.
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Posted in electoral college<http://electionlawblog.org/?cat=44>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Some responses to Prof. Schuck<http://electionlawblog.org/?p=89860>
Posted on December 10, 2016 5:51 am<http://electionlawblog.org/?p=89860> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
Professor Peter Schuck is the author of an important 1987 article<https://www.jstor.org/stable/1122527?seq=1#page_scan_tab_contents> expressing doubt that the courts can successfully combat partisan gerrymandering. In a recent guest post<http://electionlawblog.org/?p=89747> on the Election Law Blog, Professor Schuck extends his skepticism to last month’s decision by a Wisconsin district court to strike down the state’s Assembly plan as an unconstitutional partisan gerrymander. As one of the attorneys in the Wisconsin litigation—and also as a longtime admirer of Professor Schuck’s work—I’d like to say a few words in response to his critiques.
First, Professor Schuck is correct that a plan’s partisan skew is sometimes the result of a state’s political geography—and not any intent to disadvantage the opposing party. As he puts it, “Increased clustering of partisans in discrete communities would assure many wasted votes even with no packing.” However, the skew of Wisconsin’s current Assembly plan is plainly not the product of geography. We know this because one of the plaintiffs’ experts, Professor Kenneth Mayer, designed a map that improved on the actual plan in terms of every traditional criterion, while also treating the parties far more symmetrically. Even more persuasively, Professor Jowei Chen<http://www.umich.edu/~jowei/Wisconsin_Act_43_Analysis.pdf> used a computer algorithm to create hundreds of maps, all superior to the actual plan on every traditional measure. Every one of these simulated maps was more symmetric than the actual plan too, and many had no skew whatsoever.
Moreover, if political geography is responsible for a plan’s partisan distortion, then there is no liability under the plaintiffs’ proposed test. In that case, the distortion is justified and the test’s final prong is not satisfied. In the words of the district court, “the defendants [can] avoid liability if they can justify[the plan’s] effects on the basis of legitimate districting goals or Wisconsin’s natural political geography.”
Second, Professor Schuck states that “the test’s outcome can turn on slight changes in the distribution of votes among districts.” It’s true that small variations in votes received can have big effects on seats won; consider the mere two-vote difference between losing a seat 49-to-51 and winning it 51-to-49. But the possibility of such shifts is explicitly taken into account by the plaintiffs’ test, which requires a partisan asymmetry that is not just large but also durable. Political scientists routinely assess durability using what’s known as “sensitivity testing”—moving the parties’ vote shares in each district up and down by several percentage points, and seeing what happens to the parties’ seat shares as a result. If a plan’s asymmetry evaporates under sensitivity testing, then the asymmetry is not resilient and the plan is valid.
Third, sensitivity testing also resolves Professor Schuck’s concern that “independent voters, third-party voters, and party-switching might make past voting a less reliable guide to predicting future [voting].” That many voters do not affiliate with either major party, and that a few voters support third parties or switch from one major party to the other, are reasons why the major parties’ vote shares may change from one election to the next. These changes, though, are precisely what are captured by sensitivity testing. Again, if there is a plausible electoral environment under which a plan would become fair, then the plan would be permissible under plaintiffs’ test.
Fourth, Professor Schuck correctly notes that once the extent of partisan gerrymandering can be quantified, “it makes much turn on precisely how large a gap courts will tolerate.” But this is exactly the same issue courts confronted half a century ago in the context of malapportionment. Over a series of cases, the Supreme Court decided that population deviations above 10% are presumptively unconstitutional, while smaller deviations are usually lawful. The same sort of doctrinal move—not at once, but rather over several cases as courts grow more familiar with the area—should be possible in the partisan gerrymandering domain.
Fifth, Professor Schuck suggests that there’s more to representation than party; “[e]ven with a comfortable victory margin, a representative must still attend to the concerns of the other party’s voters.” Once upon a time, it was true that legislators’ voting records could not be predicted easily from their partisan affiliations. That era, though, is long past. In today’s hyperpolarized political environment, how a legislator votes is almost a perfect function of the legislator’s party. Legislators hailing from closely contested districts are virtually indistinguishable from representatives from the safest constituencies. For contemporary mapmakers, then, party is just about everything.
Sixth, Professor Schuck rightly observes that plaintiffs’ test would “protect bipartisan gerrymanders protecting both parties’ incumbents from competition.” That is a feature, though, not a bug, since it is only partisan, not bipartisan, gerrymandering that the Supreme Court has recognized as a constitutional harm. The Court has actually declared<http://caselaw.findlaw.com/us-supreme-court/412/735.html> that “judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength.” Right or wrong, this sentiment is the law, and plaintiffs’ test is entirely consistent with it.
Finally, Professor Schuck argues that a viable cause of action for partisan gerrymandering would result in more litigation (“draw[ing] federal courts into new partisan battles”) and produce partisan winners and losers (“because one can usually predict which party will benefit from it”). However, redistricting litigation is already very common; in the current cycle, for example, 224 cases were filed<http://redistricting.lls.edu/cases.php>in 42 states. Adding partisan gerrymandering to litigants’ quiver would just mean that these disputes could be settled based on the partisan factors that drive them—not shunted into other ill-fitting doctrinal categories. As for the possibility that judicial intervention might benefit one party and disadvantage its opponent, it’s important to remember that the status quo already—and unfairly—does so. Surely, eliminating an existing bias is different from, and more commendable than, creating that bias in the first place.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Secret CIA assessment says Russia was trying to help Trump win White House”<http://electionlawblog.org/?p=89857>
Posted on December 9, 2016 7:30 pm<http://electionlawblog.org/?p=89857> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/world/national-security/obama-orders-review-of-russian-hacking-during-presidential-campaign/2016/12/09/31d6b300-be2a-11e6-94ac-3d324840106c_story.html?hpid=hp_hp-top-table-main_russiahack-1215p%3Ahomepage%2Fstory&utm_term=.789f8ef3b159>
The CIA has concluded in a secret assessment that Russia intervened in the 2016 election to help Donald Trump win the presidency, rather than just to undermine confidence in the U.S. electoral system<https://www.washingtonpost.com/world/national-security/intelligence-community-investigating-covert-russian-influence-operations-in-the-united-states/2016/09/04/aec27fa0-7156-11e6-8533-6b0b0ded0253_story.html?utm_term=.0a8e4ed4abcd>, according to officials briefed on the matter.
Intelligence agencies have identified individuals with connections to the Russian government who provided WikiLeaks with thousands of hacked emails<https://www.washingtonpost.com/world/national-security/russian-government-hackers-penetrated-dnc-stole-opposition-research-on-trump/2016/06/14/cf006cb4-316e-11e6-8ff7-7b6c1998b7a0_story.html?tid=a_inl&utm_term=.886403d614f0> from the Democratic National Committee and others, including Hillary Clinton’s campaign chairman, according to U.S. officials. Those officials described the individuals as actors known to the intelligence community and part of a wider Russian operation to boost Trump and hurt Clinton’s chances.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


FEC Comm. Weintraub: “Trump’s pick for White House counsel is wrong for the job”<http://electionlawblog.org/?p=89855>
Posted on December 9, 2016 3:56 pm<http://electionlawblog.org/?p=89855> by Rick Hasen<http://electionlawblog.org/?author=3>
Ellen Weintraub WaPo oped<https://www.washingtonpost.com/opinions/i-worked-with-trumps-pick-for-white-house-counsel-he-doesnt-care-about-corruption/2016/12/09/76f0793c-bcac-11e6-94ac-3d324840106c_story.html?utm_term=.1c47bd6b96c7>:
The White House counsel operates out of the public eye but has the president’s ear. In the Trump administration, with the unprecedented multiplicity of conflict-of-interest challenges facing the businessman-president, the job will take on added importance. As a Democratic commissioner at the Federal Election Commission, I served five years alongside Donald F. McGahn<https://www.washingtonpost.com/politics/trump-fills-white-house-counsel-and-deputy-national-security-posts/2016/11/25/c4dee8d2-b341-11e6-be1c-8cec35b1ad25_story.html?utm_term=.641306023d96>, President-elect Donald Trump’s choice for the post. My experience may be instructive — and disquieting.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


--
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<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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