[EL] ELB News and Commentary 8/11/17

Thu Aug 10 20:23:15 PDT 2017

“Our Hackable Democracy”<http://electionlawblog.org/?p=94270>
Posted on August 10, 2017 6:01 pm<http://electionlawblog.org/?p=94270> by Rick Hasen<http://electionlawblog.org/?author=3>
Sue Halpern NYRB.<http://www.nybooks.com/daily/2017/08/10/our-hackable-democracy/>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

NC: “Redistricting criteria call for partisan maps, no consideration of race”<http://electionlawblog.org/?p=94268>
Posted on August 10, 2017 5:10 pm<http://electionlawblog.org/?p=94268> by Rick Hasen<http://electionlawblog.org/?author=3>
WRAL:<http://www.wral.com/redistricting-criteria-call-for-partisan-maps-no-consideration-of-race/16871238/>
Map makers can use election data to achieve political goals as they redraw North Carolina’s legislative districts, but they’re forbidden from considering voters’ race under criteria approved Thursday by the House and Senate committees overseeing the process.
These rules also say incumbents can be protected in the new maps, allowing map makers to make “reasonable efforts” to avoid drawing sitting legislators into the same district. The decision disappointed reformers who had hoped to see a less partisan process emerge as the General Assembly complies with a federal court order to replace unconstitutional maps….
Some attention to race is typically required, though, because North Carolina must comply with parts of the federal Voting Rights Act, which is meant to protect minority voters’ ability to elect candidates of their choice. It is unclear how new maps will satisfy this point. When asked, Republican leaders repeatedly quoted from a court opinion that not only declared race was the predominant factor in drawing the old maps, but said GOP legislators failed to produce evidence showing they needed to rely on racial data to satisfy VRA requirements.
“The only way to comply … is not to consider race in that process,” Lewis said.
Democrats, and particularly black Democrats, were incredulous.
“Do you understand that, by not using race, you’re defeating your own purpose?” asked Rep.
Mickey Michaux<http://wral.com/14549734/?ncga_id=61>
, D-Durham. “The districts were declared unconstitutional because of race. If you don’t use race to correct it, how are you going to show the court that they’re not still unconstitutional?”Lewis pointed again to the court’s opinion. Smith-Ingram and others asked again: What metrics will show minority voters are treated fairly? Lewis asked to “refocus this conversation on the criteria.”
“We live in the South,” Sen.
Paul Lowe<http://wral.com/14549734/?ncga_id=126>
, D-Forsyth, said at one point. “When in the South has race not been a factor? Because what I’m hearing doesn’t really add up.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Likely the Most Important Brief Filed in the WI Partisan Gerrymandering Case Supports Neither Party<http://electionlawblog.org/?p=94266>
Posted on August 10, 2017 3:23 pm<http://electionlawblog.org/?p=94266> by Rick Hasen<http://electionlawblog.org/?author=3>
This<http://www.campaignlegalcenter.org/sites/default/files/16-1161acBernardGrofmanAndRonaldGaddie.pdf> from Bernie Grofman and Keith Gaddie (with the great Josh Rosenkranz as counsel of record) may be the most important brief filed in the Gill case case:
Amici seek to assist the Court in understanding recent developments in social science methodologies for identifying and measuring the extent of partisan gerrymanders. They do not take a position on whether, given the particular facts and expert witness analysis, the district court correctly decided this case. But amici firmly believe that partisan gerrymanders are justiciable, and that this Court should adopt an articulable standard for adjudicating partisan gerrymandering claims. Social science tools now allow courts to diagnose partisan gerrymanders with accuracy and precision. They also allow courts to distinguish ordinary, acceptable politicking from conduct that rises to the level of unconstitutional discrimination against voters based on their political views. If the Court again declines to adopt a standard for unconstitutional partisan gerrymandering, politicians will have free rein to violate associational and representational rights….
Modern, computer-driven redistricting now allows the political party in power to craft extremely sophisticated partisan gerrymanders. With vastly improved computer speed, memory, and storage, map drawers can design district lines so precisely that they simultaneously maximize their party’s gains and eliminate most competitive districts—ensuring that the party in power enjoys an electoral advantage that endures throughout the following decade, irrespective of voters’ subsequent choices.
Left unchecked, partisan gerrymandering fundamentally undermines our democracy. It is a basic tenet of fair elections that the parties must play by the same rules. But a partisan gerrymander violates that core principle: Under a successful partisan gerrymander, one party needs fewer votes to win representation than the other party. A partisan gerrymander places unequal burdens on voters’ opportunity to elect their representatives, based on the party with which they associate. And where the partisan gerrymander is unresponsive to electoral shifts, only the courts can provide a remedy.
This Court should hold that partisan gerrymandering claims are justiciable. To be precise, partisan gerrymandering occurs when a districting plan penalizes the minority in its ability to translate its voting support into seats compared to what might be expected from a plan drawn on the basis of neutral principles. But not all partisan gerrymanders are unconstitutional. The Court should adopt a test for unconstitutional partisan gerrymandering that requires a showing of three specific elements: partisan asymmetry, lack of responsiveness, and causation.
The first element, partisan asymmetry, is based on the idea that a citizen’s representational rights must not depend on the party with which he chooses to affiliate. Unlike a claim that the plaintiff is entitled to a specified number of seats, an asymmetry standard requires only that the parties and their supporters receive equal treatment—that they have like opportunity to translate their votes into representation. Thus, if Party A would garner, say, 60% of the seats when it wins 53% of the votes, Party B should also garner about 60% of the seats when it wins 53% of the votes. If it would not, partisan asymmetry is present. The second element, lack of responsiveness, screens out cases where the political process can provide a remedy. It examines whether a map is responsive to shifts in voters’ allegiances, such that any disparate effect on voters is unlikely to persist throughout the decade following redistricting. If a map is responsive, then when voters change their allegiances, their representation also changes, making judicial intervention unnecessary. If a map is not responsive, the courts may step in. The third element, causation, requires that, to be actionable, a disparate effect on voters must be the result of invidious, intentional discrimination against disfavored voters—and not merely the natural byproduct of ordinary districting practices or chance.4
These three elements are derived from the Court’s Equal Protection and First Amendment jurisprudence, and the social sciences offer tools for measuring each. Because each of these elements reflects a different concept, it is important to recognize that no one number tells it all. Rather, the Court should adopt a test for partisan gerrymandering that makes each of these three elements a necessary, but not sufficient, condition of a claim. In none of the Court’s prior partisan gerrymandering cases did the plaintiffs propose such a test, much less offer evidence of all three elements. And the statistical tools for detecting and measuring partisan gerrymanders have improved greatly since the Court last considered partisan gerrymandering in LULAC. Courts—assisted by competent experts—can now reliably and accurately identify and measure the impact of partisan gerrymanders, including determining whether invidious discrimination is the cause of any disparate burden on one political party, or whether any disadvantage results instead from permissible, neutral factors or random chance. The courts can, and should, play a role in policing improper partisan gerrymanders.

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Must-Read: “Russian Cyberattack Targeted Elections Vendor Tied To Voting Day Disruptions”<http://electionlawblog.org/?p=94261>
Posted on August 10, 2017 1:34 pm<http://electionlawblog.org/?p=94261> by Rick Hasen<http://electionlawblog.org/?author=3>
Must-read Pam Fessler for NPR:<http://www.npr.org/2017/08/10/542634370/russian-cyberattack-targeted-elections-vendor-tied-to-voting-day-disruptions>
When people showed up in several North Carolina precincts to vote last November, weird things started to happen with the electronic systems used to check them in.
“Voters were going in and being told that they had already voted — and they hadn’t,” recalls Allison Riggs, an attorney with the Southern Coalition for Social Justice.
The electronic systems — known as pollbooks — also indicated that some voters had to show identification, even though they did not.
Investigators later discovered the company that provided those pollbooks had been the target of a Russian cyberattack.
There’s no evidence the two incidents are linked. But the episode has revealed serious gaps in U.S. efforts to secure elections. Nine months later, officials are still trying to sort out the details.
Update: See also Report from North Carolina Makes Reality Winner Leak Far More Important<https://www.emptywheel.net/2017/08/10/report-from-north-carolina-makes-reality-winner-leak-far-more-important/> at EmptyWheel.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, 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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