[EL] ELB News and Commentary 4/7/17

Fri Apr 7 08:23:28 PDT 2017

The Republican Supreme Court<http://electionlawblog.org/?p=92013>
Posted on April 7, 2017 8:20 am<http://electionlawblog.org/?p=92013> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ve noted before<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause> that these days all the liberals on the Court have been appointed by Democratic presidents and all the conservatives on the Court by Republican presidents. This wasn’t true until Justice Stevens retired.
With today’s confirmation of Neil Gorsuch to the Supreme Court, not only does the trend continue but it is likely to accelerate thanks to the use of the nuclear option.
We can expect Republicans to pick reliably very conservative nominees when there is a Republican president and Senate, and Democrats to pick reliably liberal nominees when there is a Democratic president and Senate. (We well may have stalemate, as we had with Merrick Garland, when government is divided.)  There will be less need to pick someone who can satisfy a handful of the other side given the loss of the filibuster.
And as it becomes clear that we have “Republican” and “Democratic” Justices, views of the Supreme Court as a more partisan institution will grow.
With Justice Gorsuch, we have the first product of the partisan Supreme Court. One thing that sticks in my mind from the confirmation hearings is J. Gorsuch’s frequent use of the term “Democrat Party” rather than “Democratic Party.” He’s a smart guy. He knows that’s an insult to Democrats and a dog whistle to the right. There was no need even for an appearance of accommodation to the other side, despite the pose of being a neutral arbiter of the law calling balls and strikes.
It is a Republican Supreme Court because it is majority Republican. If things change, we may have a Democratic Supreme Court. The Justices won’t see themselves this way, because they are not acting in a consciously partisan matter. But they were chosen because the way they will vote will line up with their party’s partisan interests.
It is hard to know what the future holds fully but this is not a promising development.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Goodbye, U.S. Senate”<http://electionlawblog.org/?p=92010>
Posted on April 7, 2017 8:06 am<http://electionlawblog.org/?p=92010> by Rick Hasen<http://electionlawblog.org/?author=3>
Abbe Gluck with a great LA Times oped today<http://www.latimes.com/opinion/op-ed/la-oe-gluck-filibuster-20170407-story.html>, which concludes:
Yes, Congress is more gridlocked and partisan than at any time in our history. Yes, the era of the “Schoolhouse Rock” legislative process is dead. But the answer to those problems should not be to give up on the concept of a deliberative, bipartisan government, or to turn the Senate into the House. Instead, the answer should be to change our political culture and find ways for government to function again.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

Chevron Corp., Private Prison Corporation Give Money to Super-PAC Running Islamophobic Ad Against Jon Ossoff<http://electionlawblog.org/?p=92008>
Posted on April 7, 2017 7:54 am<http://electionlawblog.org/?p=92008> by Rick Hasen<http://electionlawblog.org/?author=3>
Good catch<https://projects.propublica.org/itemizer/filing/1155345/schedule/sa> by Adam Smith<https://twitter.com/asmith83/status/850359253487542272>.
More here<http://thehill.com/homenews/campaign/327418-gop-ad-tries-to-tie-ga-dem-to-osama-bin-laden> on the ad tying the Democratic candidate in the GA special election to Osama bin Laden.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“U.S. Attorney Contacts North St. Louis Voters in Election Investigation”<http://electionlawblog.org/?p=92006>
Posted on April 7, 2017 7:44 am<http://electionlawblog.org/?p=92006> by Rick Hasen<http://electionlawblog.org/?author=3>
The Riverfront Times reports.<http://www.riverfronttimes.com/newsblog/2017/04/07/us-attorney-contacts-north-st-louis-voters-in-election-investigation>
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Senate Republicans Deploy ‘Nuclear Option’ to Clear Path for Gorsuch”<http://electionlawblog.org/?p=92004>
Posted on April 7, 2017 7:39 am<http://electionlawblog.org/?p=92004> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html?_r=1>
Senate Republicans on Thursday engineered a dramatic change in how the chamber confirms Supreme Court<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org> nominations, bypassing a Democratic blockade of Judge Neil M. Gorsuch in a move that will most likely reshape both the Senate and the court.
After Democrats held together Thursday morning and filibustered President Trump’s nominee, Republicans voted to lower the threshold for advancing Supreme Court nominations from 60 votes to a simple majority.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, Supreme Court<http://electionlawblog.org/?cat=29>

No, the Attempt to Block the Unmasking of Trump Critic on Twitter Does Not Mean Campaign Finance Disclosure is Unconstitutional<http://electionlawblog.org/?p=92001>
Posted on April 7, 2017 7:26 am<http://electionlawblog.org/?p=92001> by Rick Hasen<http://electionlawblog.org/?author=3>
Some on the right have claimed that the complaint filed by Twitter<http://electionlawblog.org/wp-content/uploads/twitter-complaint.pdf> (via Seth Waxman) seeking to block the Trump administration from forcing Twitter to reveal the identity of a Twitter user critical of the government (and perhaps working for the government) demonstrates the unconstitutionality of campaign finance disclosure laws and the right to anonymity. Waxman has been part of legal teams defending the constitutionality of campaign finance laws, including disclosure laws.
Not at all.
1. I imagine Twitter is a paying client for Seth Waxman, and this does not necessarily represent his personal views.
2. Even for those of us who support strong disclosure laws, there is an exemption when the government singles out people for harassment (Brown v. Socialist Workers Party).  From the Twitter complaint: “Such fears are likely to be especially great for users of “alternative agency” accounts who are currently employed by the very agency that is a principal target of the commentary, in light of the retaliation, harassment, or even loss of livelihood that might occur if their real identities became known to their superiors.”
3. Will all the campaign finance deregulation groups that oppose disclosure come out and condemn the attempt to unmask the identity of the Twitter user?

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Posted in social media and social protests<http://electionlawblog.org/?cat=58>

“A Department of Justice, But For Whom?”<http://electionlawblog.org/?p=91999>
Posted on April 7, 2017 7:17 am<http://electionlawblog.org/?p=91999> by Rick Hasen<http://electionlawblog.org/?author=3>
Joshua Matz and Leah Litman<http://takecareblog.com/blog/a-department-of-justice-but-for-whom>:
At the end of March, a group of conservative activists sent Attorney General Jeff Sessions an unsolicited letter<https://www.scribd.com/document/343306400/Letter-to-AG-Sessions-on-Civil-Rights-Division> with some detailed suggestions about how to “fix” the Civil Rights Division of the Department of Justice. (The letter’s crucial premise is that the Division is badly broken because it fails adequately to prosecute a supposed avalanche of voter fraud.)  This letter doesn’t say anything that critics of Sessions had not foreseen. But it does align with many worst-case predictions about what Sessions (and his lieutenants) will do to DOJ’s Civil Rights Division.
In short, not only do Trump and Sessions’ more vocal supporters hope that this administration will stop using the Civil Rights Division to shield people of color from discrimination, but they also hope to use the Civil Rights Division as a sword to subject vulnerable minorities to still more discrimination.  Their letter thus awkwardly fuses two opposition narratives to anti-discrimination law—the idea of a “post-racial world” and the ugly undertones of white racial resentment.  These two ideas are (obviously) in tension, and the letter to Sessions underscores the toxicity of that combination.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Federal Court Denies Motion to Dismiss NAACP LDF’s Lawsuit Against Discriminatory Alabama Voter ID Law”<http://electionlawblog.org/?p=91997>
Posted on April 6, 2017 4:05 pm<http://electionlawblog.org/?p=91997> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.naacpldf.org/press-release/federal-court-denies-motion-dismiss-naacp-ldf%E2%80%99s-lawsuit-against-discriminatory-alabama>
A federal court today denied a motion to dismiss a challenge to Alabama’s discriminatory voter ID law brought by plaintiffs represented by the NAACP Legal Defense and Educational Fund, Inc. The ruling comes in the case of Greater Birmingham Ministries v. Merrill<http://www.naacpldf.org/case-issue/greater-birmingham-ministries-v-alabama>, which LDF filed in the Northern District of Alabama in December of 2015 on behalf of Greater Birmingham Ministries, the Alabama NAACP, Giovana Ambrosio, Shameka Harris, Debra Silvers, and Elizabeth Ware.
In 2011, Alabama passed a law requiring voters to present photo identification before casting their ballots. LDF’s suit contends that the law violates the Constitution and the Voting Rights Act of 1965 by intentionally placing disproportionate burdens on African American and Latino voters.  Expert reports estimate<http://www.al.com/news/birmingham/index.ssf/2017/03/naacp_legal_defense_fund_more.html> that more than 100,000 registered Alabama voters do not have a photo ID that complies with the law, and that black and Latino voters in the state are about twice as likely as white voters to lack such forms of identification.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

--
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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