[EL] ELB News and Commentary 2/22/16
Rick Hasen
rhasen at law.uci.edu
Mon Feb 22 08:38:38 PST 2016
“Appoint a few more Scalias, kiss democracy goodbye”
<http://electionlawblog.org/?p=80198>
Posted onFebruary 22, 2016 8:36 am
<http://electionlawblog.org/?p=80198>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis oped
<http://blogs.reuters.com/great-debate/2016/02/21/appoint-another-scalia-kiss-democracy-goodbye/>for
Reuters Opinion. It begins:
Republican presidential candidates such as Senator Ted Cruz (R-Tex.)
have pledged to appoint a justice like Antonin Scalia to the U.S.
Supreme Court, if given the opportunity. Yet Scalia’s record on
issues related to American democracy and elections was dismal — even
when judged againstthe standards of the conservative Roberts court
<http://blogs.reuters.com/great-debate/2016/02/17/the-supreme-court-wasnt-designed-for-this-political-heat/>.
Placing a few more Scalias on the Supreme Court would likely put
America’s current participatory democracy at risk….
There was only one respect in which Scalia took a
democracy-protecting position in election cases. Splitting with
fellow conservative Thomas, Scalia was a strong believer in the
value of disclosure of those funding U.S. elections.He famously
wrote <https://www.law.cornell.edu/supct/html/09-559.ZC4.html>: “For
my part, I do not look forward to a society which, thanks to the
Supreme Court, campaigns anonymously /(McIntyre) /and even exercises
the direct democracy of initiative and referendum hidden from public
scrutiny and protected from the accountability of criticism. This
does not resemble the Home of the Brave.”
Ironically, this is the one case whereCruz might disagree
<http://business.time.com/2013/10/18/heres-why-sen-ted-cruz-is-blocking-fcc-nominee-tom-wheeler/>with
Scalia because the senator supports the right to undisclosed
spending. Indeed, should Cruz win the 2016 presidential election,
the next justice he appoints could be well to the right of Scalia on
issues of democracy.
So, the nation would see that there is room to roll back voting
rights even further than Scalia would have gone — or where the court
hasalready gone
<http://www.nytimes.com/2016/02/18/opinion/resetting-the-post-scalia-supreme-court.html?_r=0>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Virginia’s voter ID law faces challenge in federal trial”
<http://electionlawblog.org/?p=80196>
Posted onFebruary 22, 2016 8:29 am
<http://electionlawblog.org/?p=80196>byRick Hasen
<http://electionlawblog.org/?author=3>
Reuters
<https://bangordailynews.com/2016/02/22/news/nation/virginias-voter-id-law-faces-challenge-in-federal-trial/>:
A Virginia law requiring voters to show photo identification goes on
trial in federal court Monday, with Democratic officials claiming it
is discriminatory and aimed at keeping party voters from casting
ballots.
Defenders of the 2013 Virginia law say that it is aimed at
preventing voter fraud. The trial, in U.S. district court in
Richmond, Virginia, is one of several voting rights legal battles in
process as Democrats and Republicans square off ahead of November’s
presidential election
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
Today: Live Event with Ed Whelan on #SCOTUS and 2016 Elections
<http://electionlawblog.org/?p=80193>
Posted onFebruary 22, 2016 8:17 am
<http://electionlawblog.org/?p=80193>byRick Hasen
<http://electionlawblog.org/?author=3>
Looking forward to this event
<http://www.law.uci.edu/events/election-law/scotus-elections-2016feb22.html> today
at UCI Law (which will belivestreamed)
<https://www.youtube.com/watch?v=tL-Qx7WWVQA>:
UCI Law ProfessorRick Hasen
<http://www.law.uci.edu/faculty/full-time/hasen/index.html>andEd
Whelan <http://eppc.org/author/edward_whelan/>, president of the
Ethics and Public Policy Center (EPPC), a conservative D.C. think
tank, will offer perspectives on the Supreme Court and the 2016
elections. The event will be moderated by UCI Law professorHenry
Weinstein
<http://www.law.uci.edu/faculty/full-time/weinstein/index.html>. The
panelists will discuss questions such as why Democratic-appointed
and Republican-appointed Justices differ on constitutional law and
statutory interpretation, the extent to which the Supreme Court will
be an issue in the 2016 election, and the extent to which the 2016
elections will influence the future of the Supreme Court….
This program is co-sponsored by the UCI Law Speakers Series, and the
UCI Law student chapters of theAmerican Constitution Society
<http://www.law.uci.edu/campus-life/student-organizations/orgs/acs.html#acs>andThe
Federalist Society
<http://www.law.uci.edu/campus-life/student-organizations/orgs/tfs.html>.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Redistricting plaintiffs ask federal judges to act quickly”
<http://electionlawblog.org/?p=80191>
Posted onFebruary 22, 2016 8:15 am
<http://electionlawblog.org/?p=80191>byRick Hasen
<http://electionlawblog.org/?author=3>
News and Observer
<http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article61728597.html>:
Critics of the congressional redistricting process that took place
in 2011, and who successfully sued to overturn it on the basis of
racial gerrymandering, on Monday filed a brief in federal court
saying they don’t like the new map, either.
The plaintiffs asked the three-judge panel of the federal court that
ordered the map redrawn to establish an expedited schedule to
determine if the new map, approved by the General Assembly on
Friday, is valid under constitutional considerations. They ask that
the court make that determination by March 18.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
We Get Letters Dep’t: Rubio Anchor Baby Edition
<http://electionlawblog.org/?p=80189>
Posted onFebruary 22, 2016 8:12 am
<http://electionlawblog.org/?p=80189>byRick Hasen
<http://electionlawblog.org/?author=3>
In response tomy quote here
<http://lawnewz.com/high-profile/senator-marco-rubio-is-absolutely-eligible-to-be-president/>,
I’ve received some letters, including this one:
Do you realize that you have opined that all anchor babies are
eligible to be POTUS? No reasonable person would think that was what
the Founders meant by their higher standard for that office, natural
born citizen. Moreover, that idea should scare everyone to death!
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
#PlutocratsUnited Talks in Brooklyn, Atlanta, Miami
<http://electionlawblog.org/?p=80187>
Posted onFebruary 22, 2016 8:09 am
<http://electionlawblog.org/?p=80187>byRick Hasen
<http://electionlawblog.org/?author=3>
Upcoming event <http://electionlawblog.org/?p=77845>s related tomy book
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=la_B0089NJCR2_1_7?s=books&ie=UTF8&qid=1430416698&sr=1-7>:
*February 26*, Brooklyn, Brooklyn Law School (First Amendment
symposium) (details and rsvp
<https://www.brooklaw.edu/newsandevents/events/2016/02-26-2016?>)
*February 29*, Decatur, Ga, Georgia Center for the Book at DeKalb
County Public Library, 7:15 pm (details
<http://www.georgiacenterforthebook.org/Events/show.php?id=850>)
*March 1*, Miami, University of Miami (12:30 pm talk at law school)
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Posted inPlutocrats United <http://electionlawblog.org/?cat=104>
“Campaign finance divides ACLU panel”
<http://electionlawblog.org/?p=80185>
Posted onFebruary 21, 2016 7:18 pm
<http://electionlawblog.org/?p=80185>byRick Hasen
<http://electionlawblog.org/?author=3>
Arkansas Online reports
<http://www.arkansasonline.com/news/2016/feb/21/campaign-finance-divides-aclu-panel-201/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Bully of the Week: Voter Intimidation Squad Claims Hillary Wants to
Steal Presidency” <http://electionlawblog.org/?p=80183>
Posted onFebruary 21, 2016 7:16 pm
<http://electionlawblog.org/?p=80183>byRick Hasen
<http://electionlawblog.org/?author=3>
Daily
Beast<http://www.thedailybeast.com/articles/2016/02/21/bully-of-the-week-voter-intimidation-squad-claims-hillary-wants-to-steal-presidency.html>on
TTV.
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Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>
“How John Roberts Can Save the Supreme Court”
<http://electionlawblog.org/?p=80181>
Posted onFebruary 21, 2016 7:09 pm
<http://electionlawblog.org/?p=80181>byRick Hasen
<http://electionlawblog.org/?author=3>
Simon Lazarus for TNR
<https://newrepublic.com/article/130210/john-roberts-can-save-supreme-court>.
FWIW, I continue to believe /Evenwel/will not be 4-4 (nor was it likely
to have been 5-4 before Justice Scalia’s death).
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“16 Years After Bush v. Gore, Still Wrestling With Ballot-Box Rules”
<http://electionlawblog.org/?p=80179>
Posted onFebruary 21, 2016 7:08 pm
<http://electionlawblog.org/?p=80179>byRick Hasen
<http://electionlawblog.org/?author=3>
Retro
Report/NYT<http://www.nytimes.com/2016/02/22/us/politics/16-years-after-bush-v-gore-still-wrestling-with-ballot-box-rules.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us®ion=rank&module=package&version=highlights&contentPlacement=9&pgtype=sectionfront&_r=0>on
/Bush v. Gore/and the rise of the voting wars.
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Posted inBush v. Gore reflections
<http://electionlawblog.org/?cat=5>,election administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Campaign Money Being Used for Lavish Personal Expenditures by MS
Elected Officials with Inadequate Disclosure
<http://electionlawblog.org/?p=80177>
Posted onFebruary 21, 2016 12:03 pm
<http://electionlawblog.org/?p=80177>byRick Hasen
<http://electionlawblog.org/?author=3>
Blockbuster Clarion-Ledger story.
<http://www.clarionledger.com/story/news/politics/2016/02/20/personal-campaign-spending/80400584/>
This is one time when the term “legalized bribery” does appear apt.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“2016 Trump rewrites campaign cash rules”
<http://electionlawblog.org/?p=80175>
Posted onFebruary 21, 2016 10:45 am
<http://electionlawblog.org/?p=80175>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico reports.
<http://www.politico.com/story/2016/02/super-pac-fec-campaign-spending-2016-219579>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“A New Proposal to Address Local Voting Discrimination”
<http://electionlawblog.org/?p=80173>
Posted onFebruary 21, 2016 10:41 am
<http://electionlawblog.org/?p=80173>byRick Hasen
<http://electionlawblog.org/?author=3>
Cody Gray has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704664>on SSRN
(/University of Richmond Law Review/). Here is the abstract:
Many scholars writing about the Voting Rights Act today are
grappling with doctrinal questions related to the Supreme Court’s
decision in Shelby County v. Holder. Far fewer are examining the
structural apparatus that remains for enforcing federal voting rights.
This Article subjects that enforcement apparatus to scrutiny. It
finds the remaining means to challenge voting impediments in the
post-Shelby County world — (1) individual lawsuits by private
citizens, (2) impact-litigation by law firms and non-profits, and
(3) bureaucratic enforcement by the U.S. Department of Justice — are
woefully inadequate. There are two problems. First, the local level
is where the majority of discriminatory changes were discovered over
the last fifty years, but law firms, non-profits, and the federal
government tend to litigate only large, high profile voting
disputes. Second, the remaining enforcement regime too closely
resembles a “police-patrol” regulatory model. In such a model, an
active and centralized principal (DOJ) examines a subset of their
agents’ actions (goes on police patrols) in order to detect and
remedy violations while simultaneously deterring misconduct. In the
post-Shelby County world, this model is flawed: it is inefficient,
it misses local voting violations, and it is easily susceptible to
partisan manipulation.
This Article argues that a “fire-alarm” regulatory model would
better address local voting discrimination. Under the fire-alarm
system, in lieu of examining a sample of jurisdictions to detect
violations, the principal establishes a system of rules, procedures,
or informal practices that enable individual citizens or organized
groups to complain about a jurisdiction (sound the “alarm”), charge
it with a violation, and seek a remedy in court. This model is more
efficient, more expansive, and less susceptible to partisan
manipulation.
I outline two proposals that would move the system closer to a
fire-alarm model, and in the process, make it easier for litigants
of all stripes to address the soft underbelly of our current
enforcement apparatus — local voting discrimination.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Every Vote Matters: The Power of Your Voice, from Student Elections
to the Supreme Court” <http://electionlawblog.org/?p=80171>
Posted onFebruary 21, 2016 10:40 am
<http://electionlawblog.org/?p=80171>byRick Hasen
<http://electionlawblog.org/?author=3>
New book for teens
<http://www.freespirit.com/counseling-and-social-emotional-learning/every-vote-matters-teens-and-the-law-tom-jacobs-natalie-jacobs>from
Judge Tom Jacobs and Natalie Jacobs.
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Posted invoting <http://electionlawblog.org/?cat=31>
Did the Supreme Court Kill the “Purcell Principle” for Election
Litigation? Maybe, Maybe Not <http://electionlawblog.org/?p=80165>
Posted onFebruary 20, 2016 1:26 pm
<http://electionlawblog.org/?p=80165>byRick Hasen
<http://electionlawblog.org/?author=3>
Last night the Supreme Courtrefused to stay
<http://electionlawblog.org/?p=80149>a three-judge district court order
which required North Carolina to come up with a new redistricting plan
within two weeks which did not constitute a “racial gerrymander”
violating the equal protection clause. The court issued the order when
absentee balloting had already begun. It would require a new election
under the new rules. I hadpredicted <https://t.co/DpqyCgnQAO> a stay of
the district court’s order, based upon what I term in an upcoming
paperthePurcell Principle
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>. Looking
at the pattern of the 2014 emergency orders issued before the 2014
election in cases from Ohio, North Carolina, Texas, and Wisconsin, it
appeared the Supreme Court stopped courts from changing the rules of the
game just before the election. So the Court said courts could not stop
Texas from using its voter identification law before the election, but
could stop Wisconsin, who was freed by the 7th Circuit to immediately
use its law which had been put on hold. The difference appeared to be
that Texas had already been using its voter id law but the id law had
not been rolled out in Wisconsin before the 2014 election.
Talking about the Purcell principle (whose name comes from an earlier
case where the Court stopped the 9th Circuit from putting a last minute
stop to implementation of AZ’s voter id law, which was already underway)
is guess work because these orders form part of what Will Baude calls
theshadow docket
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiQy5vXpIfLAhUC1mMKHYLNCYIQFggcMAA&url=http%3A%2F%2Fssrn.com%2Fabstract%3D2545130&usg=AFQjCNEvT1N91PkHPBedUR572iMLdHRd-g&sig2=yB7WCXg7is6t7zqKHBhWMQ&bvm=bv.114733917,d.cGc>:
the Court decides these cases generally without issuing opinion or
reasoning, and so we have to use concurrences, dissents, and other clues
to figure out what’s really going on.
So was the Supreme Court’s decision to allow this last minute change to
NC’s congressional elections a repudiation of the Purcell Principle, as
some havesuggested
<https://twitter.com/dale_e_ho/status/701040651736117248>? Perhaps.
To begin with,as I noted <https://t.co/DpqyCgnQAO> earlier this week,
Justice Scalia’s death may have changed the calculation. I had assumed
that Justice Kennedy (who I think would go along with the liberals on
the merits of NC’s voting claim) could well be persuaded that changing
the election date and rules this close to the election violated Purcell.
If all the conservatives agreed, that would have given 5 votes to stay
the change for this election. With Scalia gone, perhaps the Court went
4-4 on this issue.We don’t know <http://electionlawblog.org/?p=80149>,
because the Court’s order denying the stay is just as consistent with a
4-4 vote as a 0-8 vote for a stay. So maybe the Purcell principle has
lost its majority. Then again I counted Justice Breyer, one of the
liberals, and perhaps Justice Kagan, as agreeing with the principle in
part too, based on the votes in the 2014 cases. So maybe that’s not
what’s going on.
Another possibility is that the Justices were too upset/preoccupied by
Justice Scalia’s death to devote the energy to duking this one out.
Given that the Court does not have to give reasons, a decision here has
really no effect on other cases. The fact that the order came a few
hours after NC notified the Court it HAD come up with a redistricting
plan may have put some Justices at ease that the lower court order was
not too onerous for the state. (Though the new lines could well bean
overstep <http://electionlawblog.org/?p=80163>by the NC legislature,
violating both section 2 of the Voting Rights Act and perhaps convincing
Justice Kennedy there is a partisan gerrymander—having a 50/50 state
divide congressional seats 10/3 looks pretty egregious.)
Further, it might be that this kind of case presents a different kind of
concern than the other Purcell principle cases. In the 2014 elections,
voting was already underway or about to start, and it was not going to
be delayed. Here, there is considerable confusion, and voting has begun,
but there will be ample time to educate the public in time for a special
election in June.
The last possibility is that the Court /has/reconsidered the Purcell
principle. In my paper, I argue that the principle is inconsistent with
how the Court usually decides emergency litigation. Aside from the
question of changing the rules in the process of the election, which
goes to the public interest factor, the Court /should/consider
irreparable harm to both parties and likelihood of success on the
merits. So it might be that the Court used all of these factors, and
Justice Kennedy and the liberals were persuaded not to grant a stay
because NC is so likely to lose when the case comes up on appeal.
The worst part of all of this is that we have to guess. One
recommendation I make in my paper for emergency election litigation is
that the Court /should/explain itself, even if the explanation has to
come later. Lower courts and litigants need guidance, which is sorely
lacking in shadow docket cases.
As you can tell, this issue is quite difficult to disentangle, and
raises difficult questions of institutional rules and competence to
adjudicate these issues with a potentially deadlocked Court. So despite
Marc Elias’sfacile
<https://twitter.com/marceelias/status/700914435573968896>trolling
<https://twitter.com/marceelias/status/700934882927779840>, it was
reasonable to expect the Court to apply the principle again in this
case, even though, after the death of one of the Justices, the Court did
not.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Supreme Court Won’t Intervene in North Carolina Election Fight”
<http://electionlawblog.org/?p=80163>
Posted onFebruary 20, 2016 1:01 pm
<http://electionlawblog.org/?p=80163>byRick Hasen
<http://electionlawblog.org/?author=3>
Richard Fausset
<http://www.nytimes.com/2016/02/20/us/north-carolina-fights-over-its-election-rules.html?_r=0>for
the NYT:
The court ordered the legislature to redraw the maps, and this week,
lawmakers set about their work in a special session. But this time,
there would be a key difference: Race would not be factored into the
mapmaking at all.
“Race was not considered, and is not present in these reports,”
State Representative David R. Lewis, a Republican and co-chairman of
the redistricting committee, told his colleagues on the House floor
Friday. But Democrats argued that Republicans erred in ignoring race
altogether. Representative G. K. Butterfield, an African-American,
wrote to state legislative leaders, saying that the court “stated
that race should not be the predominant factor in drawing the
districts. However, the court did not say that race should not be a
factor at all.”…
House Democrats on Friday also assailed Republicans for stating that
the new map was drawn up to ensure that they would enjoy a partisan
advantage. While Democrats also acknowledged that their party had
engaged in its share of partisan gerrymandering in the many decades
that it controlled the legislature, they argued that Democrats did
not engage in the practice to the same degree.
State Senator Josh Stein, a Democratic candidate for attorney
general, noted that North Carolina was the state that President
Obama most narrowly won in 2008 and most narrowly lost in 2012.
“North Carolina is a 50-50 state, and yet this map all but
guarantees 10 out of our 13 congressional delegations will be
Republican,” he said. “We live in North Carolina, not North Korea.
The voters should choose their representatives, not the other way
around.”
Some Democrats were also hoping that the three-judge panel of the
lower court would now reject the altered map on the grounds that it
violated the Voting Rights Act. Republican legislators had held out
hope on Friday that the Supreme Court would issue a stay.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“North Carolina redistricting delay denied”
<http://electionlawblog.org/?p=80161>
Posted onFebruary 20, 2016 12:43 pm
<http://electionlawblog.org/?p=80161>byRick Hasen
<http://electionlawblog.org/?author=3>
Lyle Denniston for SCOTUSBlog:
<http://www.scotusblog.com/2016/02/north-carolina-redistricting-delay-denied/>
Without an explanation, the Supreme Court on Friday night left
intact a lower court decision that had forced the North
Carolina legislature to draw up a new election district map for
congressional seats, to cure “racial gerrymandering” in two of its
districts. There were no noted dissents fromthe order.
<http://www.scotusblog.com/wp-content/uploads/2016/02/15A809McCroryv.HarrisOrder.pdf>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Supreme Court declines to intervene in North Carolina redistricting
ruling” <http://electionlawblog.org/?p=80157>
Posted onFebruary 20, 2016 12:40 pm
<http://electionlawblog.org/?p=80157>byRick Hasen
<http://electionlawblog.org/?author=3>
Ariane de Vogue reports
<http://www.cnn.com/2016/02/20/politics/north-carolina-redistricting-supreme-court/index.html>for
CNN.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
Breaking: SCOTUS, Without Noted Dissent, Denies Stay in NC
Redistricting Case. What Does It Mean?
<http://electionlawblog.org/?p=80149>
Posted onFebruary 19, 2016 7:08 pm
<http://electionlawblog.org/?p=80149>byRick Hasen
<http://electionlawblog.org/?author=3>
(I knew this would happen while I was (1) on a plane and (2) just
finished my ELB blogging for the night.)
The Supreme Court, without noted dissent, hasdenied the stay
<https://twitter.com/chrisgeidner/status/700876916623073280/photo/1>in
the North Carolina redistricting case. What does this mean?
1. Before the death of Justice Scalia, I had thought the Court would
grant the stay, not because there would be a majority of Justices
who would necessarily agree on the merits, but because there were
likely at least 5 who would see the problem with changing the rules
so close to the election (absentee ballots had already been voted in
some races). (This is the “Purcell principle.” If the Court divided
5-4 before Scalia, it could now be evenly divided without Scalia.
Because the Court isso opaque
<http://electionlawblog.org/?p=79942>, especially on its ‘shadow
docket,” we don’t know what the vote count is. It could be 4-4, it
could be 3-5 or 0-8. Justice Scalia’s absence might have been
decisive here.
2. What a mess in North Carolina. The state has passed a new
redistricting law which not only changes all of the congressional
districts; it also changes the timing of elections and eliminates a
runoff primary. It is certainly a partisan gerrymander. What happens
if the new plan is challenged as a partisan gerrymander? In Vieth
the Court divided 4-1-4. Now with Scalia is is presumably (we’re not
sure because of some new Justices) 4 Justices that believe such
claims raise constitutional problems, 1 (Kennedy) who is not sure,
and 3 (from 4, now minus Scalia) who believe such claims are
non-justiciable. Is there a new majority to police partisan
gerrymandering? [Update: I’m having doubts about my point about the
partisan gerrymandering. I guess it depends on how we would count
Justice Kennedy’s vote in such a case. Probably more likely it
would be a 4-4. Do others see it this way?]
3. And it is quite possible that there could be a Voting Rights Act
violation now. The problem with the last plan was that North
Carolina took race /too much/into account. But now perhaps NC did
not take race /enough /into account to assure that the districts
comply with Section 2 of the Act, which requires the creation of
minority opportunity districts under certain circumstances.
4. It is quite possible that the 3-judge court then, seeing these
potential problems, rejects the maps submitted by the state and
orders its own maps. That would take some time, but with the primary
now potentially put off until June there is time.
5. Now of course virtually none of this would have happened if the
Supreme Court had not ruled in /Shelby County /to strike down the
trigger for the preclearance provisions of the VRA. North Carolina
would have had to submit any new maps to DOJ, which then could have
withheld preclearance if they made protected minority voters worse off.
6. There’s a lot of confusion on the ground, and I expect that the
three-judge court will quickly hold a hearing and figure out what
the heck comes next. Wow!
[This post has been updated.]
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Posted inredistricting <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
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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