[EL] ELB News and Commentary 4/3/17

[Rick Hasen]

"Neil Gorsuch got where he is because of a form of affirmative action"<http://electionlawblog.org/?p=91923>
Posted on April 3, 2017 7:20 am<http://electionlawblog.org/?p=91923> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece <https://www.washingtonpost.com/posteverything/wp/2017/04/03/neil-gorsuch-got-where-he-is-because-of-a-form-of-affirmative-action/?utm_term=.83ace6b3cb04> for Washington Post's "Post Everything."  It begins:

Judge Neil Gorsuch, whose nomination to the Supreme Court is expected to be voted on by the Senate Judiciary Committee<https://www.judiciary.senate.gov/meetings/04/03/2017/executive-business-meeting> on Monday, is an affirmative action baby. But there's no reason to believe that if he's confirmed, his rulings on the high court would reflect the fact that he did not get where he is today solely based on his merits - or extend to others the benefit of a helping hand.

Let's start with how Gorsuch got to the point of being nominated in the first place. The judge secured a clerkship on the Supreme Court in 1993 after a post-law school year at Oxford University, quite an accomplishment for a new lawyer. But the clerkship began with Justice Byron White. White was known to favor his home state of Colorado, and it was unsurprising that he handed a clerkship to a bright, politically connected fourth-generation Coloradan. White had just retired, though, and a clerkship with a retired justice is not nearly as prestigious as one with sitting justices, because they do not work on Supreme Court cases. As a courtesy<https://www.nytimes.com/2017/03/03/us/politics/neil-gorsuch-anthony-kennedy-supreme-court.html?_r=0> to White's clerks, Gorsuch got to work in Justice Anthony M. Kennedy's chambers, too - not because Kennedy hired him through a process based only on merit, but instead, because Kennedy wanted to help a fellow justice.

Then there's the question of how Gorsuch got his seat on the U.S. Court of Appeals for the 10th Circuit. To be nominated for such a prestigious position, it helps to be politically connected. Gorsuch's mother was a Republican Colorado state legislator and later held a top position in President Ronald Reagan's administration. Gorsuch was a lawyer to Philip Anschutz, one of the wealthiest people in the state and country, who advocated on his behalf. The conservative billionaire helped push Gorsuch's case<http://www.denverpost.com/2017/03/17/colorado-powerbrokers-rally-behind-neil-gorsuch/> for nomination to the appeals court with President George W. Bush. Gorsuch must be grateful, because even as a 10th Circuit judge, he has continued to speak at off-the-record events for Anschutz<https://www.nytimes.com/2017/03/14/us/politics/neil-gorsuch-supreme-court.html?smid=tw-nytimes&smtyp=cur&_r=0>.

It concludes:

Adding to the fears about how a Justice Gorsuch would vote on issues of race has been his unwillingness<http://www.huffingtonpost.com/entry/neil-gorsuch-senate-democrats_us_58de7fc8e4b0ba3595948896?y780bnk99vefhzd7vi> or inability<https://apnews.com/e57a00a9497b4666a4649680452fa61c/Gorsuch-team:-Schedules,-not-reluctance-prevented-meeting> to schedule courtesy meetings with three senators who are all women of color, Tammy Duckworth (D-Ill.), Catherine Cortez Masto (D-Nev.), and Kamala D. Harris (D-Calif.). It is not that these Democratic women are likely to vote for him, but a meeting would be a sign of respect for the Senate and its institutions. Justices Elena Kagan and Sonia Sotomayor<http://www.huffingtonpost.com/entry/58dd9a8fe4b0efcf4c66a741>, for example, offered to meet with every senator when nominated, and Sotomayor met with 93. This is the last time Gorsuch will be answerable to anyone and have to listen to others' concerns with a job on the line.

Race-based affirmative action is visible and divisive, but it offers no more advantages to its beneficiaries than the invisible helping hand that folks such as Gorsuch received. I don't begrudge him for taking advantage of the opportunities that presented themselves to him as he was pursuing a legal career. He has shined as a legal star after receiving those benefits.

I would just hope, against the available evidence, that he would recognize that laws that try to give others more modest advantages do not violate the Constitution, either as originally understood or properly interpreted for these times.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"Ballot Selfies Allowed as U.S. Supreme Court Rebuffs New Hampshire"<http://electionlawblog.org/?p=91920>
Posted on April 3, 2017 7:16 am<http://electionlawblog.org/?p=91920> by Rick Hasen<http://electionlawblog.org/?author=3>

Greg Stohr:<https://www.bloomberg.com/politics/articles/2017-04-03/ballot-selfies-allowed-as-u-s-high-court-rebuffs-new-hampshire>

Voters in New Hampshire are free to take selfies with their election ballots and post the photos online after the U.S. Supreme Court refused to revive a state ban on the practice.

The justices, without comment, left intact a federal appeals court ruling that struck down the ban on free-speech grounds in September. The 2014 law subjected violators to fines of up to $1,000.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>


"Trump aide accused of Hatch Act violation after urging Amash primary challenge"<http://electionlawblog.org/?p=91918>
Posted on April 2, 2017 9:10 pm<http://electionlawblog.org/?p=91918> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<https://secure.politico.com/story/2017/04/dan-scavino-justin-amash-liability-trump-freedom-caucus-236780>

A senior adviser to President Donald Trump on Saturday urged a primary challenge against a House Freedom Caucus member, prompting charges that he may have violated federal law against using his official position to sway an election campaign.

Dan Scavino Jr., director of social media and senior White House adviser, tweeted that Rep. Justin Amash (R-Mich.) is a "big liability" for his state and encouraged a GOP primary opponent to oust him in 2018.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


White House Social Media Director, Who May Have Violated Hatch Act with Anti-Rep. Amash Tweets, Spurns "Ethics Lawyers"<http://electionlawblog.org/?p=91916>
Posted on April 2, 2017 3:00 pm<http://electionlawblog.org/?p=91916> by Rick Hasen<http://electionlawblog.org/?author=3>

Oh my.<https://twitter.com/chrisgeidner/status/848654592405647361>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


"What Makes Sheldon Whitehouse Angry?"<http://electionlawblog.org/?p=91913>
Posted on April 2, 2017 2:54 pm<http://electionlawblog.org/?p=91913> by Rick Hasen<http://electionlawblog.org/?author=3>

Jeffrey Toobin:<http://www.newyorker.com/news/daily-comment/what-makes-sheldon-whitehouse-angry>

Sheldon Whitehouse is a politician with a great name, a bad haircut, and a pissed-off attitude. The second-term Democratic junior senator from Rhode Island has built his career around two seemingly unrelated issues-climate change and money in politics-and he's just written a book to demonstrate how intimately connected they turn out to be.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


"Why Republicans Can't Find the Big Voter Fraud Conspiracy"<http://electionlawblog.org/?p=91911>
Posted on April 2, 2017 2:52 pm<http://electionlawblog.org/?p=91911> by Rick Hasen<http://electionlawblog.org/?author=3>

Lisa Rab<http://www.politico.com/magazine/story/2017/04/why-republicans-cant-find-the-big-voter-fraud-conspiracy-214972> with a must-read Politico magazine feature:

But that wasn't it. Not by a long shot. Eleven years after the books were closed on Ashcroft's probe, another voter fraud investigation is gearing up. Once again, it is being driven by a Republican president who is convinced that he was robbed of the popular vote by a massive conspiracy, larger perhaps than even Bush's administration had contemplated. In late November, Donald Trump tweeted: "I won the popular vote if you deduct the millions of people who voted illegally." In January, he told congressional leaders that 3 million to 5 million people voted illegally and cost him the popular vote. He didn't stop there. Trump promised to form a commission, headed by Vice President Mike Pence, to investigate. In a March 22 interview with Time magazine, Trump said, "I think I will be proved right" about the 3 million illegal votes. He elaborated: "When I say that, I mean mostly they register wrong, in other words, for the votes, they register incorrectly, and/or illegally. And they then vote. You have tremendous numbers of people. In fact I'm forming a committee on it."

Pence has yet to launch his version of what Ashcroft attempted in 2002, and the very fact that the inquiry is not being run out of the Justice Department indicates that it might proceed very differently. But it wouldn't be a waste of time for the former Indiana governor (who himself was accused of voter suppression<https://www.washingtonpost.com/news/post-politics/wp/2016/10/15/group-accuses-mike-pence-of-voter-suppression-after-state-police-raid-registration-program-in-indiana/?utm_term=.dcf8b1b9da15> in October) to spend some time studying what happened the last time a Republican administration went looking for a national web of illegal activity at the ballot box. If anything, the results of Pence's commission might be even less spectacular than before. Elections experts say that's because voter rolls are cleaner now than they were then, voting systems have been updated in many jurisdictions and stricter voter ID laws are in force. Yet, despite skepticism from high-ranking Republicans in Congress, some conservatives who were involved in the original investigation and who are pushing hardest for the new inquiry insist that the failure to prove widespread fraud is not evidence it doesn't exist, only that the pursuit wasn't aggressive enough. It's a fixation that makes voting experts shake their heads.

"This has been done over and over again," Becker says. "You don't waste taxpayer resources without some evidence that an investigation is worthwhile. That's called a fishing expedition."
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


"Judge Gorsuch: Cannot Say if Cannibalism Unconstitutional"<http://electionlawblog.org/?p=91908>
Posted on April 1, 2017 11:17 am<http://electionlawblog.org/?p=91908> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<https://www.youtube.com/watch?v=dQw4w9WgXcQ>:

In written responses<https://store.google.com/magazine/gnome?utm_source=google&utm_medium=HPP&utm_campaign=gnome_aprilfools_2017> to questions from the Senate Judiciary Committee in anticipation of a committee vote to move his nomination forward Monday, Supreme Court nominee Neil Gorsuch declined to express an opinion on whether human cannibalism ordered by a state would violate the Due Process Clause of the Fourteenth Amendment.

Gorsuch replied to a question from Sen. Patrick Leahy (D-Vt.): "Respectfully, the questions posed here may come before me as a judge. Accordingly, I can promise no more than that I will endeavor to follow the law as faithfully as I am able. To offer more would risk violating my ethical obligations as a judge, denying litigants the fair and impartial judge to whom they are entitled, and impairing judicial independence by suggesting that a judge is willing to offer promises or previews in return for confirmation."
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Posted in election law "humor"<http://electionlawblog.org/?cat=52>


"Circuit judge rules against Virginia gerrymandering claims, says districts 'debatable'"<http://electionlawblog.org/?p=91901>
Posted on March 31, 2017 5:03 pm<http://electionlawblog.org/?p=91901> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/virginia-politics/circuit-judge-tosses-virginia-gerrymandering-case-says-districts-debatable/2017/03/31/21b6fc40-1646-11e7-ada0-1489b735b3a3_story.html?utm_term=.cdbcee934dcd>

Richmond Circuit Court judge has ruled against a group that argued 11 of Virginia's legislative districts are so sprawling that they do not meet the constitutional requirement for compactness.

The ruling is a setback for efforts to claim that Virginia's legislative districts have been gerrymandered to favor Republicans and disenfranchise black voters, who tend to vote Democratic, but the matter is likely to be appealed to the state Supreme Court.

You can find the 15-page court opinion at this link<http://electionlawblog.org/wp-content/uploads/3-31-17-Vesilind-Opinion-and-Order-2.pdf>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Judge Gorsuch Hasn't Met, and Apparently Hasn't Tried Hard Enough to Meet, Three Senators, All Women of Color<http://electionlawblog.org/?p=91898>
Posted on March 31, 2017 11:40 am<http://electionlawblog.org/?p=91898> by Rick Hasen<http://electionlawblog.org/?author=3>

I'd like to hear <http://www.huffingtonpost.com/entry/neil-gorsuch-senate-democrats_us_58de7fc8e4b0ba3595948896?y780bnk99vefhzd7vi> Judge Gorsuch supporters explain why these Senators in particular were not extended a normal courtesy.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"Law professor, former Montana justice say Gorsuch will back 'dark money'"<http://electionlawblog.org/?p=91896>
Posted on March 31, 2017 8:20 am<http://electionlawblog.org/?p=91896> by Rick Hasen<http://electionlawblog.org/?author=3>

Missoulian:<http://missoulian.com/news/local/law-professor-former-montana-justice-say-gorsuch-will-back-dark/article_3b4efc0e-1839-554e-ace6-da70710dab8f.html>

Anthony Johnstone - professor at the University of Montana's law school -previously served as state solicitor and during that time wrote an amicus brief in the Citizens United case on behalf of 26 states asking the high court to keep unlimited corporate contribution out of elections.

He said Gorsuch is a "smart, articulate, interesting judge," but added that the 10th Circuit  is "notoriously strict" about what states can do to regulate money in politics, and it's safe to believe his position on the matter would be similar if he was confirmed.

"I think there is one important area in which he may actually diverge from Justice Scalia in a way that is even more encouraging to those who wish to inject unlimited sums of money in politics and that's with respect to dark money," Johnstone said.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"The False Promise of Voter ID"<http://electionlawblog.org/?p=91894>
Posted on March 31, 2017 8:15 am<http://electionlawblog.org/?p=91894> by Rick Hasen<http://electionlawblog.org/?author=3>

Josh Douglas <http://www.governing.com/gov-institute/voices/col-false-promise-photo-id-voting.html> for Governing:

Many states have adopted or are considering enacting strict photo identification requirements for voting. But doing so is a waste of time and money: The laws will not prevent election fraud, and these states will surely face protracted litigation with an uncertain outcome.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


"Arresting the Deterioration of Democracy"<http://electionlawblog.org/?p=91892>
Posted on March 31, 2017 8:12 am<http://electionlawblog.org/?p=91892> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Tokaji<http://takecareblog.com/blog/arresting-the-deterioration-of-democracy> at the Take Care blog:

American democracy is in trouble.  We are deeply divided along lines of race, class, and party. Our political discourse has coarsened as the level of vituperative political rhetoric has intensified. Racism, sexism, and nativism have reappeared at a level that we have not seen in decades. There is not even consensus on basic facts. Our President repeatedly makes statements that are demonstrably false, including claims of widespread vote-rigging that have no evidentiary support, while railing against the press for exposing his mendacity.

Bad as things are, the challenges that our democracy now confronts are bigger than Donald Trump. He did not create the divisions that the 2016 election revealed, though he has surfaced, exploited, and deepened them. The consequence is not only to embitter Americans toward one another during election campaigns, but also to make governance much more difficult after the election is over.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


"J. Wellington Wimpy and the Gorsuch Nomination"<http://electionlawblog.org/?p=91890>
Posted on March 31, 2017 8:11 am<http://electionlawblog.org/?p=91890> by Rick Hasen<http://electionlawblog.org/?author=3>

Bauer blogs.<http://www.moresoftmoneyhardlaw.com/2017/03/j-wellington-wimpy-gorsuch-nomination/>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


"Simple Advice for Democrats Girding for Gorsuch"<http://electionlawblog.org/?p=91888>
Posted on March 31, 2017 8:05 am<http://electionlawblog.org/?p=91888> by Rick Hasen<http://electionlawblog.org/?author=3>

Thoughtful Jonathan Bernstein<https://www.bloomberg.com/view/articles/2017-03-31/simple-advice-for-democrats-girding-for-gorsuch>, taking a different position than I have<http://electionlawblog.org/?p=91838>:

And so barring a real compromise, my advice to Democrats would be pretty simple. Forget about long-term strategy and trying to figure out the ideal time to use their Supreme Court filibuster<http://electionlawblog.org/?p=91838> at its most useful moment but before it goes away. That's just guesswork.

Instead, they should filibuster now if and only if they are confident that Neil Gorsuch would be worse than whoever Trump would replace him with. If so, they should make clear it's no blockade or revenge for Merrick Garland; it's a one-time objection to someone they believe is unusually far from the mainstream. And, if so, they should be prepared for the possibility that they might actually defeat Gorsuch and have to live with a replacement nominee.
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Posted in 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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