[EL] Instead of a recess appointment of Garland, what about an escalation in Constitutional hardball?

[Wang, Samuel S.]

Dear all,

I have read with interest the arguments against making a recess appointment of Merrick Garland. They seem sound, especially since Garland would be basically putting his career on the D.C. Circuit at risk with such a move.

But what about the idea of a flat-out appointment on Tuesday, January 3rd? It has been suggested that for a brief moment, when 34 Senators' terms end at noon that day, the Senate will be comprised of 36 Democrats+Independents, and 30 Republicans. Can Vice-President Biden and briefly-Majority-Leader Durbin do the deed? See a summary of the idea here: http://election.princeton.edu/2016/12/25/constitutional-hardball-can-democrats-confirm-merrick-garland-on-january-3rd/

At this point the idea is unlikely to come to pass. It's an escalation in Constitutional hardball that seems to go against Obama's grain. But I am interested in reactions to it.

All the best and happy new year,
Sam Wang

--------------------------
Samuel S.-H. Wang, Ph.D.
Faculty Associate, Program in Law and Public Affairs
Professor, Neuroscience Institute and Department of Molecular Biology
Princeton University
Princeton, NJ 08544
http://election.princeton.edu/


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Today's Topics:

   1. ELB Quick Hits (Rick Hasen)
   2. 2016 Election Litigation Not Over Yet (Rick Hasen)
   3. IMPORTANT CORRECTION Re: 2016 Election Litigation Not Over
      Yet (Rick Hasen)


----------------------------------------------------------------------

Message: 1
Date: Fri, 30 Dec 2016 20:18:39 +0000
From: Rick Hasen <rhasen at law.uci.edu>
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] ELB Quick Hits
Message-ID: <785E7848-076F-461F-A4A2-78B5BE485D58 at law.uci.edu>
Content-Type: text/plain; charset="utf-8"

?Obama Strikes Back at Russia for Election Hacking?<http://electionlawblog.org/?p=90199>
Posted on December 30, 2016 12:17 pm<http://electionlawblog.org/?p=90199> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT<http://www.nytimes.com/2016/12/29/us/politics/russia-election-hacking-sanctions.html?ref=politics&_r=0>:
President Obama<http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per> struck back at Russia<http://topics.nytimes.com/top/news/international/countriesandterritories/russiaandtheformersovietunion/index.html?inline=nyt-geo> on Thursday for its efforts to influence the 2016 election, ejecting 35 suspected Russian intelligence operatives from the United States and imposing sanctions on Russia?s two leading intelligence services.
The administration also penalized four top officers of one of those services, the powerful military intelligence unit known as the G.R.U.
Intelligence agencies have concluded that the G.R.U. ordered the attacks on the Democratic National Committee and other political organizations, with the approval of the Kremlin, and ultimately enabled the publication of the emails it harvested to benefit Donald J. Trump<http://www.nytimes.com/topic/person/donald-trump?inline=nyt-per>?s campaign.
President elect Trump on Twitter<https://twitter.com/realDonaldTrump/status/814919370711461890>, after Putin declined to eject American diplomats: ?Great move on delay (by V. Putin) ? I always knew he was very smart!?
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90199&title=Obama%20Strikes%20Back%20at%20Russia%20for%20Election%20Hacking%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>


ELB Quick Hits<http://electionlawblog.org/?p=90191>
Posted on December 30, 2016 12:13 pm<http://electionlawblog.org/?p=90191> by Rick Hasen<http://electionlawblog.org/?author=3>
Electionline Weekly<http://www.electionline.org/index.php/electionline-weekly>: The List (What?s In and Out in Election Administration for 2017)
Politico, Ward picked to lead Obama-Holder redistricting project<http://www.politico.com/story/2016/12/obama-redistricting-kelly-ward-232995>
NLJ, McDonnell Case Casts Long Shadow in Public-Corruption Prosecutions<http://www.nationallawjournal.com/home/id=1202775543648?kw=McDonnell%20Case%20Casts%20Long%20Shadow%20in%20Public-Corruption%20Prosecutions&et=editorial&bu=National%20Law%20Journal&cn=20161228&src=EMC-Email&pt=Daily%20Headlines&slreturn=20161128115527>
Jonathan Adler<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/29/the-real-reason-president-obama-wont-recess-appoint-merrick-garland-to-the-supreme-court/?utm_term=.974e81fe8093> and Seth Tillman<http://tinyurl.com/jvfbtl9> each weigh in on Ed Kilgore?s silly call for President Obama to recess appoint Merrick Garland to the Supreme Court.
New depressing poll<https://www.washingtonpost.com/news/rampage/wp/2016/12/28/americans-especially-but-not-exclusively-trump-voters-believe-crazy-wrong-things/?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.fff290ad05f3> on voters who believe conspiracy theories such as the idea that millions of illegal votes were cast in the 2016 election.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90191&title=ELB%20Quick%20Hits>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
NC: ?Judge puts NC GOP elections board makeover on hold after Roy Cooper sues?<http://electionlawblog.org/?p=90195>
Posted on December 30, 2016 11:53 am<http://electionlawblog.org/?p=90195> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer<http://www.newsobserver.com/news/politics-government/state-politics/article123763694.html>:
Governor-elect Roy Cooper filed a lawsuit on Friday challenging the General Assembly?s special session law that revamps the state elections board.
Cooper?s attorneys asked a Wake County Superior Court judge to block the law from taking effect while the lawsuit pends. Judge Donald Stephens granted the request after a one-hour hearing Friday afternoon.
The law was set to take effect on Sunday, when the North Carolina State Board of Elections would officially have ceased to exist. That change will be delayed for at least a week, and Stephens set another hearing on the case for Thursday.
The law would merge the elections board with the State Ethics Commission, which administers ethics laws governing lobbyists, elected officials and government employees. The merger was approved by the Republican-led legislature during its special session earlier this month and signed by Republican Gov. Pat McCrory, one of several changes attempting to limit the power Cooper.
Cooper?s attorneys argue in the lawsuit filing that the change violates the state?s constitution.
?The General Assembly passed a bill that, among other things, radically changes the structure and composition of the executive agency responsible for administrating our state?s election laws,? the lawsuit says. ?Those changes are unconstitutional because they violate the separation of powers provisions enshrined in the North Carolina Constitution by shifting control over that agency away from the governor to the General Assembly.??
Under the new law, the new elections and ethics board wouldn?t be able to take action with a simple majority ? six of eight members must vote in favor. If the board deadlocks, matters could then be appealed to a Wake County Superior Court judge.
Cooper?s lawsuit argues that the supermajority requirement means the new board is ?likely to be consistently deadlocked and unable to act? and therefore ?will not be able to execute the election laws.?
The lawsuit also notes that if the board can?t get bipartisan agreement on early voting schedules ? and courts decline to intervene ? the schedules would default to the minimum number of hours allowed by law: A single site open only during weekday business hours and the Saturday before the election.
Cooper referenced that scenario in a news release Friday afternoon. ?A tie on a partisan vote would accomplish what many Republicans want: making it harder for North Carolinians to vote,? he said. ?It will result in elections with longer lines, reduced early voting, fewer voting places, little enforcement of campaign finance laws, indecision by officials and mass confusion.?
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90195&title=NC%3A%20%E2%80%9CJudge%20puts%20NC%20GOP%20elections%20board%20makeover%20on%20hold%20after%20Roy%20Cooper%20sues%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


US DOT Settles with Alabama over Access to Drivers License Offices, Relevant to Voter ID<http://electionlawblog.org/?p=90193>
Posted on December 30, 2016 11:49 am<http://electionlawblog.org/?p=90193> by Rick Hasen<http://electionlawblog.org/?author=3>
Release<https://www.transportation.gov/briefing-room/us-department-transportation-reaches-agreement-alabama-law-enforcement-agency-ensure>:
After a year-long investigation, U.S. Transportation Secretary Anthony Foxx today announced that the U.S. Department of Transportation (USDOT) has reached an agreement<http://www.transportation.gov/briefing-room/MOA-between-us-department-transportation-and-alabama-law-enforcement> with the Alabama Law Enforcement Agency (ALEA) to ensure that driver licensing services in the state will be available to all residents, regardless of race, color or national origin, in compliance with Title VI of the 1964 Civil Rights Act.
?The U.S. Department of Transportation took on this issue as part of our responsibility under Title VI to prevent discriminatory behavior, and I?m pleased to have reached this agreement with the State of Alabama,? said U.S. Transportation Secretary Anthony Foxx. ?DMVs play a critical role in the day-to-day functioning of the American people, including ensuring their ability to drive to work and other essential services and to get proper identification needed to vote or open a bank account. No one should be prevented from accessing these services based on their race, color or national origin ? Title VI is not optional.?
In late 2015, the State of Alabama announced that it planned to close or reduce service to 31 driver license offices throughout the state. Because its preliminary analysis of the closures suggested that the service modifications would disproportionately impact African American residents in the state?s ?Black Belt? region, USDOT opened an investigation into whether this action violated Title VI, which prohibits entities that receive federal funding from discriminating on the basis of race, color or national origin in their programs and activities. The State of Alabama and ALEA, in particular, receive Federal assistance from the Department and, therefore, are subject to Title VI?s nondiscrimination prohibition.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90193&title=US%20DOT%20Settles%20with%20Alabama%20over%20Access%20to%20Drivers%20License%20Offices%2C%20Relevant%20to%20Voter%20ID>
Posted in Uncategorized<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
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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Message: 2
Date: Fri, 30 Dec 2016 21:55:29 +0000
From: Rick Hasen <rhasen at law.uci.edu>
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] 2016 Election Litigation Not Over Yet
Message-ID: <EBD8C5E3-86EC-4011-A72A-CD4E29D4109E at law.uci.edu>
Content-Type: text/plain; charset="utf-8"

NC Gov. McCrory, Day Before Leaving Office, Tries for Emergency SCOTUS Relief in Racial Gerrymandering Case<http://electionlawblog.org/?p=90201>
Posted on December 30, 2016 1:53 pm<http://electionlawblog.org/?p=90201> by Rick Hasen<http://electionlawblog.org/?author=3>
Back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered<http://electionlawblog.org/?p=89590> that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. That motion remains pending, and ordinarily things would wait for the lower court order to issue.
But now, literally a day before leaving office, Gov. McCrory has filed this emergency motion<http://electionlawblog.org/wp-content/uploads/2016-12-30-Covington-Stay-Application-FINAL.pdf> with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The petition, with Paul Clement as counsel of record, seems unlikely to succeed. To begin with, as noted, the Court would ordinarily wait for the lower court to rule before ruling itself. And although Jan. 11 is the beginning of the new NC term, nothing requires the legislature to begin work on the petition that day. The work must be done by March 15.  So this seems like an odd rush. Why not at least wait until after the first of the year to file this, so that Justice, clerk, and lawyer time can be better preserved over the holidays?
The timing is no mystery. McCrory leaves office tomorrow night. The new incoming governor, Roy Cooper, is a Democrat likely to have different views on these issues than McCrory.  Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration.
The goal here is to preserve as much Republican power in the state as possible despite the election of a Democratic governor, attorney general, and now majority on the State Supreme Court. Republicans could suffer losses in 2017 elections, and this motion would forestall it. It is of a piece with efforts to take away Cooper?s appointment powers and to mess with the election commissions<http://electionlawblog.org/?p=90195> to take away Democratic majorities on those commissions.
On the merits, given that the lower court could have imposed new districts for 2016, it does not seem like a special election in 2017 is a great impingement on voters? rights as the petition alleges. Indeed, the harm to the other side is two more years of districts found to be unconstitutional.
My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state?s governor and attorney general.
UPDATE: More<https://www.buzzfeed.com/chrisgeidner/north-carolina-governor-moves-to-stop-special-legislative-el?utm_term=.egg0ovNJ7b> from Chris Geidner.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90201&title=NC%20Gov.%20McCrory%2C%20Day%20Before%20Leaving%20Office%2C%20Tries%20for%20Emergency%20SCOTUS%20Relief%20in%20Racial%20Gerrymandering%20Case>
Posted in election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


--
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
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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Message: 3
Date: Sat, 31 Dec 2016 05:49:59 +0000
From: Rick Hasen <rhasen at law.uci.edu>
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] IMPORTANT CORRECTION Re: 2016 Election Litigation Not
        Over Yet
Message-ID: <A3756331-4978-40CC-99A9-76DD097D923C at law.uci.edu>
Content-Type: text/plain; charset="utf-8"

Correction: North Carolina Officials Try for Emergency SCOTUS Relief in Racial Gerrymandering Case<http://electionlawblog.org/?p=90201>
Posted on December 30, 2016 9:40 pm<http://electionlawblog.org/?p=90201> by Rick Hasen<http://electionlawblog.org/?author=3>
Note: This post has been significantly corrected. See below.
Back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered<http://electionlawblog.org/?p=89590> that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. That motion remains pending, and ordinarily things would wait for the lower court order to issue.
But now the state has filed this emergency motion<http://electionlawblog.org/wp-content/uploads/2016-12-30-Covington-Stay-Application-FINAL.pdf> with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The petition, with Paul Clement as counsel of record, seems unlikely to succeed. To begin with, as noted, the Court would ordinarily wait for the lower court to rule before ruling itself. And although Jan. 11 is the beginning of the new NC term, nothing requires the legislature to begin work on the petition that day. The work must be done by March 15.  So this seems like an odd rush. Why not at least wait until after the first of the year to file this, so that Justice, clerk, and lawyer time can be better preserved over the holidays?
The timing is no mystery. Gov. McCrory leaves office tomorrow night. The new incoming governor, Roy Cooper, is a Democrat likely to have different views on these issues than McCrory.  Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration. Although the governor is not a party to the redistricting suit, the Governor and AG will likely express opinions in the litigation going forward, opinions adverse to the Republican legislature.
The goal here is to preserve as much Republican power in the state as possible despite the election of a Democratic governor, attorney general, and now majority on the State Supreme Court. Republicans could suffer losses in 2017 elections, and this motion would forestall it. It is of a piece with efforts to take away Cooper?s appointment powers and to mess with the election commissions<http://electionlawblog.org/?p=90195> to take away Democratic majorities on those commissions.
On the merits, given that the lower court could have imposed new districts for 2016, it does not seem like a special election in 2017 is a great impingement on voters? rights as the petition alleges. Indeed, the harm to the other side is two more years of districts found to be unconstitutional.
My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state?s governor and attorney general.
Important note and correction: The original version of this tweet stated that outgoing Gov. McCrory was involved in filing this emergency petition. This is in error. The state provides no role for the governor in redistricting controversies. Chris Geidner<https://www.buzzfeed.com/chrisgeidner/north-carolina-governor-moves-to-stop-special-legislative-el?utm_term=.vpAnWO7xG7#.snLdvEabxa>: ?A spokesperson for McCrory confirmed to BuzzFeed News that, ?Governor McCrory did not have anything to do with the legal motion filed in the US Supreme Court.? The spokesperson went on to say that the governor?s office is not a party to that lawsuit and not involved in the case.'?
I very much regret the error and apologize to Gov. McCrory.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90201&title=Correction%3A%20North%20Carolina%20Officials%20Try%20for%20Emergency%20SCOTUS%20Relief%20in%20Racial%20Gerrymandering%20Case>
Posted in election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


From: Rick Hasen <rhasen at law.uci.edu>
Date: Friday, December 30, 2016 at 1:55 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: 2016 Election Litigation Not Over Yet

NC Gov. McCrory, Day Before Leaving Office, Tries for Emergency SCOTUS Relief in Racial Gerrymandering Case<http://electionlawblog.org/?p=90201>
Posted on December 30, 2016 1:53 pm<http://electionlawblog.org/?p=90201> by Rick Hasen<http://electionlawblog.org/?author=3>
Back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered<http://electionlawblog.org/?p=89590> that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. That motion remains pending, and ordinarily things would wait for the lower court order to issue.
But now, literally a day before leaving office, Gov. McCrory has filed this emergency motion<http://electionlawblog.org/wp-content/uploads/2016-12-30-Covington-Stay-Application-FINAL.pdf> with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The petition, with Paul Clement as counsel of record, seems unlikely to succeed. To begin with, as noted, the Court would ordinarily wait for the lower court to rule before ruling itself. And although Jan. 11 is the beginning of the new NC term, nothing requires the legislature to begin work on the petition that day. The work must be done by March 15.  So this seems like an odd rush. Why not at least wait until after the first of the year to file this, so that Justice, clerk, and lawyer time can be better preserved over the holidays?
The timing is no mystery. McCrory leaves office tomorrow night. The new incoming governor, Roy Cooper, is a Democrat likely to have different views on these issues than McCrory.  Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration.
The goal here is to preserve as much Republican power in the state as possible despite the election of a Democratic governor, attorney general, and now majority on the State Supreme Court. Republicans could suffer losses in 2017 elections, and this motion would forestall it. It is of a piece with efforts to take away Cooper?s appointment powers and to mess with the election commissions<http://electionlawblog.org/?p=90195> to take away Democratic majorities on those commissions.
On the merits, given that the lower court could have imposed new districts for 2016, it does not seem like a special election in 2017 is a great impingement on voters? rights as the petition alleges. Indeed, the harm to the other side is two more years of districts found to be unconstitutional.
My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state?s governor and attorney general.
UPDATE: More<https://www.buzzfeed.com/chrisgeidner/north-carolina-governor-moves-to-stop-special-legislative-el?utm_term=.egg0ovNJ7b> from Chris Geidner.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90201&title=NC%20Gov.%20McCrory%2C%20Day%20Before%20Leaving%20Office%2C%20Tries%20for%20Emergency%20SCOTUS%20Relief%20in%20Racial%20Gerrymandering%20Case>
Posted in election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


--
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
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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