[EL] ELB News and Commentary 1/21/17

[Rick Hasen]

“Court: Texas House map intentionally diluted minority votes”<http://electionlawblog.org/?p=92186>
Posted on April 21, 2017 7:44 am<http://electionlawblog.org/?p=92186> by Rick Hasen<http://electionlawblog.org/?author=3>
The Texas Tribune reports.<https://www.texastribune.org/2017/04/20/court-texas-house-map-intentionally-diluted-votes/>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“‘Pivotal Moment’ for Democrats? Gerrymandering Heads to Supreme Court”<http://electionlawblog.org/?p=92184>
Posted on April 21, 2017 7:42 am<http://electionlawblog.org/?p=92184> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Wines<https://www.nytimes.com/2017/04/21/us/democrats-gerrymander-supreme-court.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=sectionfront&_r=0> on the Wisconsin partisan gerrymandering case heading to SCOTUS.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“‘Dark money’ vs. corporate cash: Democratic rivals clash over funding”<http://electionlawblog.org/?p=92182>
Posted on April 21, 2017 7:39 am<http://electionlawblog.org/?p=92182> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo on the Va governor’s race.<https://www.washingtonpost.com/local/virginia-politics/dark-money-vs-corporate-cash-democratic-rivals-clash-over-funding/2017/04/21/cc91253c-25d7-11e7-a1b3-faff0034e2de_story.html?utm_term=.e5169b3c0db3>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Helping Judges Deal with Election Cases”<http://electionlawblog.org/?p=92180>
Posted on April 20, 2017 3:30 pm<http://electionlawblog.org/?p=92180> by Rick Hasen<http://electionlawblog.org/?author=3>
David Levine:<http://www.electionline.org/index.php/electionline-weekly>
As noted by the Election Law Program<http://law.wm.edu/academics/intellectuallife/researchcenters/electionlaw/>, a joint project of William & Mary Law School and the National Center for State Courts, the United States has witnessed a dramatic increase in election-related litigation over the past ten years.
Legal challenges to election laws and procedures are now commonplace, and a source of considerable uncertainty and confusion.
Election administrators can be an important resource for judges deciding election disputes — they understand the laws covering voter registration and elections in their jurisdiction(s) and the practicalities of administering and implementing those laws.
Election administrators are often automatically drawn into election disputes. They may, for example, be the named defendant in a lawsuit, in which case they will be the client of (and likely principal witness/resource for) the lawyer handling the case for the jurisdiction. In other cases, the court (or a party to the case) will contact or subpoena an election official to testify as the “local expert” on the subject matter of the case.
But even if an election official is not pulled into a case, there may be ways for him/her to help a judge….
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Suit claims Georgia voter registration violates federal law”: No one can vote in Osoff-Handel Unless Registered in March<http://electionlawblog.org/?p=92177>
Posted on April 20, 2017 3:25 pm<http://electionlawblog.org/?p=92177> by Rick Hasen<http://electionlawblog.org/?author=3>
Atlanta Journal-Constitution:<http://www.ajc.com/news/state--regional-govt--politics/suit-claims-georgia-voter-registration-violates-federal-law/5boPRxoDMGhK8wM8ecSyoK/>
A Washington-based advocacy group has filed a federal lawsuit accusing Georgia of violating federal law by reducing the amount of time residents have to register to vote.
The Lawyers’ Committee for Civil Rights Under Law filed the complaint in federal court in Georgia on behalf of five civil rights and voting rights organizations. It claims Georgia law cuts off voter registration for federal run-off elections two months earlier than guaranteed under federal law.
Secretary of State Brian Kemp’s office dismisssed the suit as a “completely political effort to attack Secretary Kemp.”
“This law has been in place since Cathy Cox was in office and we will fight it in court,” Kemp chief of staff David Dove said.
A key example, the committee said, is the coming June runoff for the 6th Congressional District. Anyone who had not registered to vote in March cannot register to participate in the June runoff between Democrat Jon Ossoff and Republican Karen Handel.
You can read the complaint here.<http://electionlawblog.org/wp-content/uploads/ga-complaint.pdf>
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>


Breaking: Divided District Court Finds Texas Engaged in Intentional Race Discrimination in Drawing TX House Districts<http://electionlawblog.org/?p=92173>
Posted on April 20, 2017 12:44 pm<http://electionlawblog.org/?p=92173> by Rick Hasen<http://electionlawblog.org/?author=3>
The same three-judge court that recently held that Texas’s congressional redistricting violated the Constitution and the Voting Rights Act in drawing some districts has now issued this new decision<http://electionlawblog.org/wp-content/uploads/order-house-plan-Perez-v.-Abbott-4-20-2017.pdf> and these findings of fact<http://electionlawblog.org/wp-content/uploads/fact-findings-house-plan-Perez-v.-perry-4-20-2017.pdf> in relation to the challenge to the state house districts.
From the summary of the majority decision:
With regard to the § 2 results claims, the Court finds that remedied claims are moot (specifically in El Paso, Bexar, and Harris Counties). With regard to non-remedied claims, the Court finds that Plaintiffs have either failed to prove a § 2 results claim as to Plan H283 or that such claims are best resolved in the 2013 plan case.
With regard to the intentional vote dilution claims under § 2 and the Fourteenth Amendment, the Court finds that Plaintiffs proved their claims in El Paso County (HD78), Bexar County (HD117), Nueces County (the elimination of HD33 and the configuration of HD32 and HD34), HD41 in the Valley, Harris County, western Dallas County (HD103, HD104, and HD105), Tarrant County (HD90, HD93), Bell County (HD54), and with regard to Plan H283 as a whole.
With regard to the Shaw-type racial gerrymandering claims, the Court finds that only the Task Force alleged such claims, and its claim against HD117 in Bexar County succeeds but its claim against HD77 and HD78 in El Paso County does not.
With regard to the Shaw-type racial gerrymandering claims, the Court finds that only the Task Force alleged such claims, and its claim against HD117 in Bexar County succeeds but its claim against HD77 and HD78 in El Paso County does not.
With regard to the one person, one vote Larios-type claims, the Court finds that Plaintiffs’ statewide claims fail, but they succeed in proving violations in the Nueces County districts (HD32 and HD34), the Hidalgo County districts (HD31, HD36, HD39, HD40, and HD41), and the Bell/Lampasas County districts (HD54 and HD55).
There will have to be further proceedings in regard to the 2013 maps later passed by the Texas legislature.
Judge Jerry Smith of the 5th Circuit, as he did in the congressional case, dissented.  A large part of his dissent is a dialogue with a forthcoming piece of mine<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403> on race and party:
Back to the law. The issue is whether the Legislature drew lines for reasons of “race for the sake of race” or, instead, for reasons of politics. The issue is complicated, for example, by whether there are limits to non-racial partisan gerrymandering and by the extent to which, if any, a given record reflects the use of partisanship as a proxy for race. To analyze this crucial issue, I rely, in part, on a new essay by Professor Richard L. Hasen of the University of California, Irvine School of Law, entitled “Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases.” Though 5 Professor Hasen zealously advances his policy preferences as an advocate for more aggressive application of the VRA and Equal Protection Clause, his recitation of the law and his analysis of possible outcomes are resourceful and evenhanded.
Professor Hasen discusses what has been called “conjoined polarization,” defined as “[t]he more consistent alignment of race, party, and ideology since 1965.”6 Importantly, he acknowledges that “legal doctrine has not yet found a comfortable way to deal with it.”7 Indeed, that is the challenge in the instant case. There are significant clues from various Supreme Court decisions, culminating, as I have said, in Bethune-Hill’s reiteration of the “race for its own sake” test. The appeal of this court’s ultimate judgment will give the Supreme Court the opportunity to be more precise in explaining¯with the 2020 decennial census on the horizon¯how much latitude legislatures have to fashion districts for purely political purposes, to take advantage of earned wins at the ballot box, where racial considerations play a part in the process and where (as always) compliance with the VRA and the Constitution is paramount.
Professor Hasen presents three possible approaches that the Supreme Court could adopt: (1) “race or party”; (2) “party as race”; and (3) “party all the time.” Professor Hasen is least fond of the first, although, as I will discuss, that is the exegesis most consonant with Texas’s electoral landscape and, more importantly, is the methodology that the en banc Fifth Circuit has announced without using that nomenclature. For “race or party,” “a court’s task is to decide whether a case is ‘really about race rather than party.”8 As Professor Hasen candidly admits, if the task is to decide whether the legislature acted on the basis of race or party, redistricting plaintiffs “most importantly”9 must confront Easley v. Cromartie, 532 U.S. 234 (2001). Unaware of Professor Hasen’s writings, I nonetheless noted Cromartie’s centrality in my congressional dissent, observing that the Court found no error where “the legislature drew boundaries that, in general, placed more-reliably Democratic voters inside the
district, while placing less-reliable Democratic voters outside the district.”10 That is the situation here, which Professor Hasen recognizes but this panel majority does not….
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“There’s also a partisan split in *when* people vote.”<http://electionlawblog.org/?p=92171>
Posted on April 20, 2017 10:04 am<http://electionlawblog.org/?p=92171> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/politics/wp/2017/04/19/theres-also-a-partisan-split-in-when-people-vote/?utm_term=.69c1ec33bf1f&wpisrc=nl_politics-pm&wpmm=1>
Those two examples aside, it’s worth considering Wasserman’s assessment more broadly. Are Georgia and Florida simply outliers? Is it the case more broadly that early voting tends to favor the Democrat in a race more heavily?
Looking at last year, the answer is clearly “yes.”…
The more important implication is how it frames efforts to curtail early voting. If early voting is used more heavily by Democrats, it stands to reason that cutting early voting would reduce the number of Democrats who vote.
Which itself explains another manifestation of partisan polarization: opposition to early voting efforts by Republicans.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


On Party Line Vote, FEC Rejects Continued Exemption from Disclosure for Socialist Workers Party<http://electionlawblog.org/?p=92168>
Posted on April 20, 2017 9:18 am<http://electionlawblog.org/?p=92168> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court has long recognized that a group facing a realistic threat of harassment for revealing its donors or vendors has a First Amendment right to exemption from generally applicable campaign finance laws. The case establishing this principle, Brown v. Socialist Workers Party ’74 Campaign Committee, <https://supreme.justia.com/cases/federal/us/459/87/> has come up as the SWP has sought a continued exemption.
Today, on a party line vote,<https://twitter.com/davelevinthal/status/855092552529326080> the FEC refused to extend the exemption, based upon the evidence presented that SWP donors still faced a threat of harassment.
We’ll see if this next ends up in court.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


“NC residents and Common Cause accuse lawmakers of holding illegal session”<http://electionlawblog.org/?p=92165>
Posted on April 20, 2017 8:24 am<http://electionlawblog.org/?p=92165> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article145578589.html>
A nonpartisan citizens’ lobbying group and 10 North Carolina residents filed a lawsuit Wednesday accusing the lieutenant governor and legislative leaders of violating the state Constitution in December when they hastily called a special session to consider laws that transform state government.
The executive director of Common Cause, the good-government advocate, and residents from Pamlico, Randolph, Watauga, Guilford and Wake counties stood in front of the Legislative Building after filing their lawsuit. They shared with reporters their frustrations about two laws that shifted long-held power from the governor’s office to legislators, shifted some oversight of the state schools from the state board of education to the elected superintendent and overhauled the makeup of the state board of elections, ethics commission and county elections boards.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


--
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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