[EL] ELB News and Commentary 4/6/17

Wed Apr 5 22:28:56 PDT 2017

“Federal Voting Rights Lawsuit in Texas Continues Following Rejection of State’s Motion to Dismiss”<http://electionlawblog.org/?p=91986>
Posted on April 5, 2017 6:43 pm<http://electionlawblog.org/?p=91986> by Rick Hasen<http://electionlawblog.org/?author=3>
Release via email:
This week, a federal district court judge denied the State of Texas’s motion to dismiss<http://electionlawblog.org/wp-content/uploads/lopez.pdf> a lawsuit alleging that the method of electing Texas’s Supreme Court and Court of Criminal Appeals violates the Voting Rights Act.
The two courts are the highest in the state and decide critical issues across the state. The lawsuit alleges that the statewide method of electing judges to these courts is discriminatory and denies Latinos an equal opportunity to elect candidates of their choice.  In Texas, whites vote as a bloc resulting in the defeat of candidates supported by the Latino community.
In the opinion in the case of Lopez v. Abbott, Judge Nelva Ramos held that all Plaintiffs, including seven Latino voters and a Latino civic organization, have standing to bring the suit. Judge Ramos also rejected Texas’s argument that Plaintiffs had failed to state a cause of action under Section 2 of the Voting Rights Act, noting that the Supreme Court has already held that Section 2 applies to judicial elections. The case will now proceed to trial.
“This case makes clear that voting discrimination remains rampant across the state of Texas,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “The courts at issue render decisions that affect all Texans, but the current method of election prevents minority voters from electing candidates of their choice to these important tribunals. From our litigation against the state of Texas regarding their discriminatory photo ID law to this case challenging the discriminatory method of electing judges, much work remains to be done to address voting discrimination across the state.”
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Posted in judicial elections<http://electionlawblog.org/?cat=19>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“How to Quantify (and Fight) Gerrymandering”<http://electionlawblog.org/?p=91983>
Posted on April 5, 2017 4:01 pm<http://electionlawblog.org/?p=91983> by Rick Hasen<http://electionlawblog.org/?author=3>
Big piece<https://www.quantamagazine.org/20170404-gerrymandering-math-standard/> in Quanta Magazine.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Illiberal Democracy: The Toxic Mix of Fake News, Hyperpolarization, and Partisan Election Administration”<http://electionlawblog.org/?p=91981>
Posted on April 5, 2017 3:59 pm<http://electionlawblog.org/?p=91981> by Rick Hasen<http://electionlawblog.org/?author=3>
Tony Gaughan has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2944791> on SSRN (forthcoming, Duke Journal of Constitutional Law and Public Policy). Here is the abstract;
The 2016 presidential election shook American democracy to its foundations. From Russia’s hacking of Democratic National Committee emails to President Trump’s false allegations of widespread voting fraud, America’s democratic institutions emerged from the election battered and bruised. The stunning turn of events and the unprecedented controversy that surrounded the election had a profound impact on public opinion. National surveys now consistently find that a majority of Americans question the integrity of the nation’s election system. Accordingly, this article contends that we have entered into a dangerous new chapter in the nation’s history that not only threatens public confidence in election fairness but potentially could even undermine the long-term health of the nation’s democracy. The unjustified fear of election fraud has itself become a threat to America’s democratic principles.
This article identifies three toxic developments that if left unchecked threaten the future of voting rights in America. The first is the rise of fake news. As the traditional news media has lost its gate-keeper status and as the internet has facilitated the rapid spread of misinformation, false allegations of voting fraud dominate news cycles. The pervasive nature of the claims has triggered a precipitous decline in public confidence in election integrity, even though there is no factual basis to justify the public’s fear of widespread fraud. The second is the phenomenon of hyperpolarization. The partisan divide has reached such historic levels that Republicans and Democrats increasingly view the opposing party as a threat to the nation’s well-being. Hyperpolarization makes partisans more inclined to attempt to limit the political influence of opposing voters, a development that is particularly dangerous in the United States because of the third toxic feature of contemporary politics: partisan control of election administration. Unusual among major democracies, the United States entrusts the majority party with responsibility for administering elections and setting voting rules. In recent years partisans have become increasingly aggressive in adopting election laws that benefit one party at the expense of the other. The real scandal of American politics is not illegal vote rigging or voter fraud but rather the extent to which partisans are legally permitted to manipulate election rules for political advantage.
The United States thus stands at a uniquely dangerous moment in its history. The risk that America may evolve into an illiberal democracy is particularly high in light of the ongoing battle over voter registration restrictions and other laws that limit access to voting. In the name of safeguarding election integrity, legislatures across the country have adopted new voting laws that many courts and scholars have concluded make it harder for poor and minority voters to participate in the democratic process. As Americans increasingly view election stakes in apocalyptic terms, as false allegations of election fraud spread like wildfire, and as partisan officials control election rules, America’s democratic institutions face their most serious domestic challenge since the enactment of the Voting Rights Act in 1965. This article concludes by proposing three steps to defend and preserve the vitality of America’s liberal democratic norms at this dangerous moment in the nation’s history.
Looking forward to reading this!
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Status Conference Order in TX Redistricting Cases Suggests Further Action on State House Case, Issue of Putting Texas Back under Federal Supervision<http://electionlawblog.org/?p=91975>
Posted on April 5, 2017 3:43 pm<http://electionlawblog.org/?p=91975> by Rick Hasen<http://electionlawblog.org/?author=3>
A few weeks ago the three-judge court decided a challenge to the 2011 Texas congressional redistricting plan. Pending is a challenge to the 2011 House districts. That opinion may come any time. There also needs to be a trial on the 2013 changes, and the question whether Texas should be put back under federal supervision for its voting rules under Section 3 of the Voting Rights Act.
Today’s status conference orde<http://electionlawblog.org/wp-content/uploads/Perez-v.-Abbott-status-conference-order-4-5-20171.pdf>r seems to suppose the 2011 House district claims will be decided before the announced April 27 conference. That order also asks about timing of potential Section 3 relief.

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Posted in redistricting<http://electionlawblog.org/?cat=6>

The House Freedom Caucus is Effective Precisely Because it is Not Politically Fragmented<http://electionlawblog.org/?p=91972>
Posted on April 5, 2017 12:35 pm<http://electionlawblog.org/?p=91972> by Richard Pildes<http://electionlawblog.org/?author=7>
Two recent essays at the Washington Post’s Monkey Cage blog, here<https://www.washingtonpost.com/news/monkey-cage/wp/2017/04/05/trump-is-tweeting-threats-at-the-freedom-caucus-good-luck-with-that/?utm_term=.4f453c5886b1> and here,<https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/27/this-is-why-the-freedom-caucus-called-the-shots-on-trumps-health-care-bill/?utm_term=.4f0168b1e4ff> describe the various means through which the Freedom Caucus has turned itself into an effective, unified bloc within the Republican Party.  Until I read these pieces, I had not understood the importance of the Freedom Caucus’ organizational structure.  Maintaining hierarchical control and a disciplined, unified group stance is obviously easier for a smaller group like the Freedom Caucus than for the Republican Party as a whole in the House.  Ironically, it is the ability of the Freedom Caucus to accept hierarchical control and unified decisionmaking that contributes to the political fragmentation of the House Republican Party.
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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
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http://electionlawblog.org<http://electionlawblog.org/>
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