[EL] ELB News and Commentary 8/4/17

[Rick Hasen]

“Comeback for ‘legalized money laundering’ in party politics?”<http://electionlawblog.org/?p=94185>
Posted on August 4, 2017 7:42 am<http://electionlawblog.org/?p=94185> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI:<https://www.publicintegrity.org/2017/08/04/21048/comeback-legalized-money-laundering-party-politics>
But a new Center for Public Integrity<https://www.publicintegrity.org/politics> analysis of campaign finance data indicates Democrats and Republicans alike are now aggressively trafficking in a new — and perfectly legal — kind of soft money, enabled by a 2014 Supreme Court decision, the latest in a series gutting major parts of McCain’s 2002 law.
The new tactic is also changing political fundamentals.
In a fundraising environment that had come to be dominated by super PACs<https://www.opensecrets.org/pacs/superpacs.php>— committees that may raise and spend unlimited amounts of money to advocate for or against specific candidates — it’s helping national political parties regain some relevancy after years of declining power. It’s also reviving an era when politicians were able to directly solicit six- and seven-figure checks from donors on behalf of the political parties, raising the specter of corruption and scandals that dogged politicos during the 1990s.
Here’s how this shell game works: Top donors spent the 2016 election cycle legally writing six-figure checks to so-called joint fundraising committees — committees that can dole their contributions out to multiple allies, notably including state political parties.
But rather than keep all the cash, the state parties have been quickly steering the money to the national parties, taking advantage of their ability to transfer unlimited cash to their national affiliates.
The joint fundraising vehicles aren’t new, but the Supreme Court’s 2014 decision to eliminate some obscure but important campaign contribution limits in McCutcheon v. Federal Election Commission<https://www.publicintegrity.org/2014/04/22/14611/mccutcheon-decision-explained-more-money-pour-political-process> had the effect of supercharging them. The 2016 election provided a first, full glimpse at what the new legal landscape would mean in reality.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Here’s your chance to comment on shape of maps to correct NC gerrymanders”<http://electionlawblog.org/?p=94183>
Posted on August 3, 2017 6:08 pm<http://electionlawblog.org/?p=94183> by Rick Hasen<http://electionlawblog.org/?author=3>
News & Observer<http://amp.newsobserver.com/news/politics-government/state-politics/article165323017.html>:
North Carolina Republicans have begun to release details of their schedule for drawing new boundaries to correct legislative districts found unconstitutional by the federal courts.
But they have not presented any maps to the public yet.
The General Assembly, which met for what was expected to be a one-day legislative session on Thursday, is tentatively set to vote on new maps on Aug. 24 or 25, according to Rep. David Lewis, the state House member shepherding the redistricting process.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Trial over Broward’s disputed voting lists ends”<http://electionlawblog.org/?p=94180>
Posted on August 3, 2017 6:03 pm<http://electionlawblog.org/?p=94180> by Rick Hasen<http://electionlawblog.org/?author=3>
Sun Sentinel:<http://www.sun-sentinel.com/local/broward/fl-sb-broward-elections-trial-wrap-20170801-story.html>
A ruling by U.S. District Court Judge Beth Bloom isn’t expected for several months.
The ACRU, which filed the suit<http://www.sun-sentinel.com/local/broward/fl-sb-broward-voter-lists-challenged-federal-court-20170724-story.html> a year ago, is being represented by the Public Interest Legal Foundation. Both are conservative organizations that say their efforts to purge voter rolls of ineligible voters are designed to restore election integrity and reduce the potential of voter fraud. In 2015 alone, the foundation sent letters to elected officials in 141 counties in 21 states threatening lawsuits if those counties didn’t step up efforts to remove ineligible voters from their voter rolls.
Bloom gave the parties until Sept. 15 to submit their proposed findings of fact and conclusions of law that she will use in making her determination. Voters can be removed from the rolls if they die, become felons, are mentally incapacitated or move out of the county.
The current case could set a national precedent as it is the first to have a complete trial. A few have ended with settlements, but attorney Burnadette Norris-Weeks said Snipes isn’t interested in anything that indicates the elections office isn’t doing its job.
“We believe that we’ve shown that we follow Florida law,” Norris-Weeks said.
One of the chief indicators the suit used to claim the county’s rolls had thousands of ineligible voters was an analysis that showed more registered voters than eligible voting-age residents in the county. The suit said one year the number of registered voters amounted to 103 percent of voting-age residents in the county.
During the trial in Miami federal court on Wednesday, University of Florida Professor Daniel Smith testified those rates were flawed and unreliable because they used “two different databases designed for two different things.”
Smith, an expert witness for the defense and political science professor, said even if the percentage were as high as indicated, that still wouldn’t mean poor practices regarding ineligible voters was the reason.
Smith’s own review showed that between January 2015 and January 2017, about 192,000 people were removed from the county’s voter rolls and another 148,645 had had their addresses changed.
“That seems to be pretty clear evidence … of some type of list maintenance going on,” Smith said.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>


Republican National Committee Files SCOTUS Brief Arguing Against Finding of Partisan Gerrymandering in WI Case<http://electionlawblog.org/?p=94177>
Posted on August 3, 2017 5:58 pm<http://electionlawblog.org/?p=94177> by Rick Hasen<http://electionlawblog.org/?author=3>
Read it here.<http://electionlawblog.org/wp-content/uploads/gil-rnc-amicus.pdf>

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Amicus Brief: NC General Assembly’s Attempt to Entrench One-Party Power is Unconstitutional Threat to Democratic Institutions”<http://electionlawblog.org/?p=94175>
Posted on August 3, 2017 3:20 pm<http://electionlawblog.org/?p=94175> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://www.brennancenter.org/press-release/amicus-brief-nc-general-assembly%E2%80%99s-attempt-entrench-one-party-power-unconstitutional>
Today, the Brennan Center for Justice at NYU School of Law and Democracy North Carolina filed an amicus brief<https://www.brennancenter.org/sites/default/files/legal-work/Cooper%20v.%20Berger%20-%20Brennan%20Center%20Amicus%20Brief%20%28filed%29.pdf> with the North Carolina Supreme Court in Cooper v. Berger<https://www.brennancenter.org/legal-work/cooper-v-berger-amicus-brief>, in which the state’s newly-elected Governor, Roy Cooper, is challenging the General Assembly’s attempt to reorganize state and county election boards so that they will no longer be controlled by the Governor’s party, as they have been for more than a century. Among other things, the new law prevents replacement of the Republican-appointed Executive Director and provides that the election boards will be chaired by Republicans in every presidential and gubernatorial election year.
According to the brief, the General Assembly’s action is an attempt to entrench its majority party, the Republicans, in control over North Carolina’s electoral system regardless of their loss of voter support. This clashes with bedrock principles underlying the Constitutions of the United States and the State of North Carolina. Based on these principles, courts have interpreted the law to thwart political entrenchment in many circumstances involving the electoral and political processes. The North Carolina Supreme Court should do the same here.



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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“The Institutional Case for Partisan Gerrymandering Claims”<http://electionlawblog.org/?p=94173>
Posted on August 3, 2017 2:01 pm<http://electionlawblog.org/?p=94173> by Rick Hasen<http://electionlawblog.org/?author=3>
Mike Parsons has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3012283> on SSRN.  Here is the abstract:
For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well for voters.
This Essay challenges an assumption at the core of that concern: the alleged tension between strong intervention and strong institutions. The Constitution’s structural principles were designed not only to prevent arbitrary and tyrannical rule, but to protect individual liberties and provide institutional accountability as well. The Court pays these principles no respect by standing silent when politicians insulate themselves from popular dissent and consolidate their grip on power through the violation of individual constitutional rights. As Justice Kennedy once wrote, “Abdication of responsibility is not part of the constitutional design.” By mistaking inaction for neutrality and avoidance for deference, the Court fails to fulfill its own role in the constitutional scheme and destabilizes the institutions it seeks to protect.
To honor structural principles, respect state legislators, and maintain judicial integrity, this Essay proposes a return to the Court’s traditional tools of principled neutrality: clear rules and coherent doctrine. Clear rules would distinguish general partisan intent (which is the intent to win voters’ political preferences and is legitimate even to an extreme degree) from invidious partisan intent (which is the intent to suppress voters because of their political preferences and is illegitimate regardless of degree). Meanwhile, the effects question in dilution cases should not be “how much suppression is too much suppression,” but rather whether the preferences of a targeted group will or will not usually be defeated.
Coherent doctrine could also be established in the coming term if the Court affirms in Gill v. Whitford and reverses in Harris v. Cooper. Doing so would end the “legal arbitrage” between racial and political redistricting law; harmonize the treatment of racial and political “advantage” arguments across equal-population, dilution, and sorting case law; and bring redistricting law into closer alignment with the Court’s broader equal-protection and First Amendment jurisprudence.
The Court may fear that judicial intervention will be too disruptive or that legislative compliance will be too difficult. These concerns are misplaced, overstated, and underestimate the institutional and structural consequences of the Court’s inaction or exit from the field. Instead, a precise and predictable jurisprudence provides what the Court, the Constitution, and the country all require: strong, accountable institutions, and a forceful defense of individual rights.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


CCP Files Brief in SCOTUS Travel Ban Case on Free Speech of Candidates<http://electionlawblog.org/?p=94171>
Posted on August 3, 2017 12:07 pm<http://electionlawblog.org/?p=94171> by Rick Hasen<http://electionlawblog.org/?author=3>
Interesting read.<http://www.campaignfreedom.org/wp-content/uploads/2017/08/Trump-v.-IRAP_8.3.17.pdf>
You can find my contrary views in this Slate piece.<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/03/the_9th_circuit_s_alex_kozinski_defends_trump_s_travel_ban_on_first_amendment.html>

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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>


Warrington and Buzas: Are Chen and Cotrell Right About Net Partisan Gains in Partisan Gerrymandering Cases?<http://electionlawblog.org/?p=94161>
Posted on August 3, 2017 7:56 am<http://electionlawblog.org/?p=94161> by Rick Hasen<http://electionlawblog.org/?author=3>
The following is a guest post from Greg Warrington<http://www.cems.uvm.edu/~gswarrin/> and Jeff Buzas<https://blog.uvm.edu/webwizrd-jbuzas/>, which may be relevant to the upcoming Supreme Court partisan gerrymandering case:
I am grateful to Rick Hasen for the opportunity to post here about my recent preprint<https://arxiv.org/pdf/1707.08681.pdf> with Jeff Buzas.
Quantitative research into partisan gerrymandering serves at least two important ends. One is the goal of identifying partisan gerrymander and quantifying how extreme they are. Measures such as the compactness of an electoral district and the efficiency gap of an election can help do this. These measures can, and do, play a supporting role in litigation. Another is the goal of evaluating the impact of gerrymandered districts on people and their representative bodies. While there are many questions one could ask about the effects, we will focus here on one question in particular: To what extent does partisan gerrymandering influence the partisan composition of the US House?
In a February 2017 post<http://electionlawblog.org/?p=91074> on this blog, Rick Pildes describes a 2016 paper<http://www-personal.umich.edu/~jowei/gerrymandering.pdf> by Jowei Chen and David Cottrell that tries to answer this question. Their conclusion in the paper is that the Republicans only benefited from partisan gerrymandering by a single extra seat (net) in the US House in 2012. (In a follow-up<https://electionlawblog.org/?p=91110> to Rick Pildes’s post, Justin Levitt explores what this study does not tell us as well as some of the limitations of the Chen-Cottrell approach.) But as Rick Pildes presciently noted, "[a]ny complex study of this sort poses many methodological issues." In our preprint, Jeff Buzas and I identify one such methodological problem in their paper. We believe it is serious enough to invalidate their conclusion.
The Chen-Cottrell approach consists of two main parts. The first is the generation of simulated district plans that provide a basis to which enacted district plans can be compared. There are many challenges to generating appropriate distributions of districts (and even defining what one means by "appropriate"). Even so, we view the general approach of utilizing simulations as fundamentally sound. The flaw in their methodology occurs in the second part of their approach. There, they compute the expected number of democratic seats associated to a given district plan (whether real or simulated). Our critique of Chen-Cottrell lies in the particular way in which they approach this second part. Chen and Cottrell are not the only ones to compute the number of seats each party wins in a simulated district plan. But they are the only ones we know of who make this computation using a logistic regression. Unfortunately, a logistic regression is not sensitive to the packing and cracking by which partisan gerrymanders occur. Fortunately, our critique does not apply to any other papers we know of.
We will not attempt to give a detailed explanation in this post of why the logistic regression should not be used in this way. However, we can sketch the problem. What Chen and Cottrell do is assign a probability that each district elect a Democrat based solely on the presidential vote in that district. They determine this probability by fitting a logistic regression using historical data. In this context, such a model will generate probabilities that change gradually. For example, if the presidential vote in a district is 45%, the probability of electing a democratic legislator as determined by their logistic regression model will only be moderately lower than if the presidential vote there had been 55%. These probabilities are not wrong, they are merely the natural consequences of determining a probability from hundreds of historical races, each with its own idiosyncrasies.
The problem faced by the model is that map drawers are concerned not with what happens on average, but what will happen in a few particular districts of which they know a lot about. A gerrymander they create may fade in potency over time and may be susceptible to wave elections. But in the short term, reducing the democratic presence in a district from (say) 55% to 45% can be enough to effectively guarantee that what was a democratic district becomes a republican one. This substantial change in probabilities simply isn’t captured by Chen and Cottrell’s application of a logistic regression.
In our preprint, we offer our own computation of the net influence of partisan bias on the composition of the House using the declination introduced in this preprint<https://arxiv.org/pdf/1705.09393.pdf>. Our conclusion is consistent with that of a report<https://www.brennancenter.org/publication/extreme-maps> from the Brennan Center authored by Michael Li and Laura Royden: the Republicans won more than 20 extra seats in 2012. But since our preprint does not utilize simulations, it is unable to distinguish between extra seats due to partisan gerrymandering and extra seats due to inherent geographic advantages. The very limited investigations we have done suggest that little is due to geography, however further investigation on this point is certainly warranted.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“To Protect Voting, Use Open-Source Software”<http://electionlawblog.org/?p=94159>
Posted on August 3, 2017 7:00 am<http://electionlawblog.org/?p=94159> by Rick Hasen<http://electionlawblog.org/?author=3>
R. James Woolsey and Brian Fox NYT oped<https://www.nytimes.com/2017/08/03/opinion/open-source-software-hacker-voting.html?emc=edit_th_20170803&nl=todaysheadlines&nlid=36477829&_r=1&referer=>.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>


--
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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