[EL] ELB News and Commentary 8/25/17

Fri Aug 25 07:55:48 PDT 2017

“U.S. state election officials still in the dark on Russian hacking”<http://electionlawblog.org/?p=94435>
Posted on August 25, 2017 7:42 am<http://electionlawblog.org/?p=94435> by Rick Hasen<http://electionlawblog.org/?author=3>
Reuters:<http://www.reuters.com/article/us-usa-cyber-election-idUSKCN1B5145?utm_campaign=trueAnthem:+Trending+Content&utm_content=59a0321204d3013487dfff5d&utm_medium=trueAnthem&utm_source=twitter>
 The federal government has not notified U.S. state election officials if their voting systems were targeted by suspected Russian hackers during the 2016 presidential campaign, and the information will likely never be made public, a top state election chief told Reuters.
“You’re absolutely never going to learn it, because we don’t even know it,” Judd Choate, state election director for Colorado and president of the National Association of State Election Directors, said in an interview on Thursday during the group’s summer conference.
Nearly 10 months after Republican Donald Trump’s upset presidential victory over Democrat Hillary Clinton, Choate said he had not spoken to a single state election director who had been told by the U.S. Department of Homeland Security if their state was among those attacked.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Quantifying Partisan Gerrymandering: An Evaluation of the Efficiency Gap Proposal”<http://electionlawblog.org/?p=94433>
Posted on August 25, 2017 7:40 am<http://electionlawblog.org/?p=94433> by Rick Hasen<http://electionlawblog.org/?author=3>
Benjamin Cover has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019540> on SSRN (forthcoming, Stanford Law Review).  Here is the abstract:
For three decades, the Court has failed to settle on a legal test for partisan gerrymandering, and such claims have uniformly failed – until now. Leveraging a new measure and associated test for partisan gerrymandering called the “efficiency gap,” plaintiffs challenging Wisconsin’s Assembly plan have prevailed before a three-judge federal panel. The measure defines partisan gerrymandering in terms of two parties’ relative efficiency at translating votes for their party into seats in government. The case is now before the Supreme Court, which may embrace the efficiency gap approach and thereby remake the law of electoral districting.
Through a synthesis of mathematical and legal analysis, this article examines the efficiency gap’s conceptual premises and real-world performance. The measure may produce counterintuitive results because it favors one democratic norm – partisan fairness – over other norms like electoral competitiveness and the proportionality between votes earned and seats won. A mapmaker can achieve a low efficiency gap by drawing a bipartisan gerrymander that carves up the state into safe seats for incumbents and confers a legislative supermajority on a party that earns only a modest majority of ballots cast. Efforts to promote electoral competitiveness or a closer fit between votes earned and seats won may produce a high efficiency gap. And because the efficiency gap is a single measure based on observed election data, it is vulnerable to manipulation: By suppressing turnout of its competitor’s supporters, a party can artificially reduce a plan’s efficiency gap. The measure’s reliance on definitional choices and stylized assumptions about electoral circumstances limits its appeal as one based on observed election results rather than conjecture and hypotheticals. In light of these normative and methodological concerns, the article concludes that the efficiency gap may be a useful indicator of partisan gerrymandering when appropriately applied, but courts should not adopt it as the exclusive legal definition.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Texas’ Discrimination Against Minority Voters May Finally Come Back To Haunt It”<http://electionlawblog.org/?p=94431>
Posted on August 24, 2017 5:28 pm<http://electionlawblog.org/?p=94431> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPost <http://www.huffingtonpost.com/entry/texas-discrimination-minority-voters_us_599f34cbe4b05710aa5af598?43l> on whether Texas will be bailed back into Voting Rights Act preclearance.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Election Law Professor: Public Financing Encourages Diverse Candidates”<http://electionlawblog.org/?p=94429>
Posted on August 24, 2017 5:19 pm<http://electionlawblog.org/?p=94429> by Rick Hasen<http://electionlawblog.org/?author=3>
WFSU reports.<http://news.wfsu.org/post/election-law-professor-public-financing-encourages-diverse-candidates>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“A lawsuit claims California absentee ballots were wrongly rejected because of ‘penmanship’ problems”<http://electionlawblog.org/?p=94427>
Posted on August 24, 2017 5:18 pm<http://electionlawblog.org/?p=94427> by Rick Hasen<http://electionlawblog.org/?author=3>
John Myers <http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-a-lawsuit-claims-california-absentee-1503619134-htmlstory.html> for the LAT:
A lawsuit filed in a California appeals court on Thursday alleges the ballots of as many as 45,000 voters weren’t counted last November because of the state’s flawed rules for verifying the signatures of those who vote by mail.
The lawsuit was filed by the ACLU of Northern California on behalf of a Sonoma County voter who said his ballot wasn’t counted after his signature on the ballot envelope was deemed to not match the one that elections officials had on file.
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>

“Judge Niemeyer’s dissent is the real headline in Maryland political gerrymandering case”<http://electionlawblog.org/?p=94425>
Posted on August 24, 2017 5:13 pm<http://electionlawblog.org/?p=94425> by Rick Hasen<http://electionlawblog.org/?author=3>
Steve Klepper<https://mdappblog.com/2017/08/24/judge-niemeyers-dissent-is-the-real-headline-in-maryland-political-gerrymandering-case/>:
Today, a three-judge panel of the U.S. District Court for the District of Maryland stayed proceedings in Maryland’s political gerrymandering case, Benisek v. Lamone<https://www.brennancenter.org/sites/default/files/legal-work/Benisek_v_Lamone_Memorandum_08.24.17.pdf>, pending the Supreme Court’s decision in the Wisconsin political gerrymandering case, Gill v. Whitford<http://www.scotusblog.com/case-files/cases/gill-v-whitford/>. The real headline, though, is Fourth Circuit Judge Paul Niemeyer<http://www.ca4.uscourts.gov/judges/judges-of-the-court/judge-paul-v-niemeyer>’s dissent, which could have real implications for Gill.
The central question in Gill is whether, contrary to Justice Scalia’s 2004 plurality opinion in Vieth v. Jubelirer<http://scholar.google.com/scholar_case?case=16656282825028631654&q=541+U.S.+267+&hl=en&as_sdt=20000006>, there are “judicially discernible and manageable standards for adjudicating political gerrymandering claims.” Justice Kennedy, who prevented that plurality opinion from becoming a majority opinion, concurred because he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Judge Niemeyer’s dissent (which begins on page 25<https://www.brennancenter.org/sites/default/files/legal-work/Benisek_v_Lamone_Memorandum_08.24.17.pdf#page=25>) seeks to establish that Justice Kennedy was right to hold out hope for such a standard…
Some background on Judge Niemeyer helps to understand why his voice is likely to be heard in Gill. Based in Baltimore, Judge Niemeyer is possibly the most conservative member of the Fourth Circuit. Over the years, ten of his clerks<https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supreme_Court_of_the_United_States> have gone on to the clerk on the Supreme Court, mostly for conservative justices (three with Justice Scalia, two each with Chief Justice Roberts and Justice Kennedy, and one each with Chief Justice Rehnquist and Justices O’Connor and Sotomayor). He was most recently in the national news for siding with the Trump Administration in a dissent in International Refugee Assistance Project v. Trump<http://coop.ca4.uscourts.gov/171351.P.pdf>.
Judge Niemeyer’s dissent is critical in highlighting that—even though Republican-drawn maps in North Carolina, Texas, and Wisconsin have drawn the most attention—partisan gerrymandering should not be a partisan issue. No one knows now whether Democrats will enjoy a “wave” election in 2018, but there is a real chance that they could flip control over numerous state legislatures in time for the 2020 census and subsequent redistricting. The forthcoming briefs of the challengers and their amici in Gill are sure to point to Judge Niemeyer’s dissent. It deserves, and likely will receive, significant attention from the justices.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Texas House map must be redrawn, federal court says”<http://electionlawblog.org/?p=94423>
Posted on August 24, 2017 5:08 pm<http://electionlawblog.org/?p=94423> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/08/24/federal-court-ruling-texas-house-map/?utm_campaign=trib-social-buttons&utm_source=twitter&utm_medium=social>
Parts of the Texas House map must be redrawn ahead of the 2018 elections because lawmakers intentionally discriminated against minorities in crafting several legislative districts, federal judges ruled on Thursday.
A three-judge panel in San Antonio unanimously ruled<https://static.texastribune.org/media/documents/Houseruling.pdf> that Texas must address violations that could affect the configuration of House districts in four counties, where lawmakers diluted the strength of voters of color.  In some cases, the court found mapdrawers intentionally undercut minority voting power “to ensure Anglo control” of legislative districts.
In footnote 5 of the ruling, Judge Smith, who had dissented on the rulings related to the 2011 plans did not dissent here, viewing those earlier rulings binding him under the “law of the case” doctrine.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Lawyers’ Committee Announces Settlement of Major Voting Rights Lawsuit in North Carolina”<http://electionlawblog.org/?p=94421>
Posted on August 24, 2017 9:07 am<http://electionlawblog.org/?p=94421> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://lawyerscommittee.org/press-release/lawyers-committee-announces-settlement-major-voting-rights-lawsuit-north-carolina/>
Today, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), with the law firms of Cleary Gottlieb Steen and Hamilton LLP (Cleary Gottlieb), and Patterson Harkavy LLP announced a settlement the federal voting rights lawsuit filed on behalf of African American voters in Jones County, North Carolina. Filed in February, the lawsuit<https://lawyerscommittee.org/wp-content/uploads/2017/02/2017-02-13-Jones-County-Complaint.pdf> alleged that the method of electing the County Board of Commissioners—the five-member body that makes critical and wide-ranging decisions impacting Jones County residents—diluted the voting strength of African-American voters, in violation of Section 2 of the Voting Rights Act. This case was the first case filed under the Voting Rights Act in the nation in 2017.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Next Meeting of Pence-Kobach Voter Fraud Commission Sept. 12, Offering Only Limited Space to the Public; Register NOW If Interested<http://electionlawblog.org/?p=94419>
Posted on August 24, 2017 8:50 am<http://electionlawblog.org/?p=94419> by Rick Hasen<http://electionlawblog.org/?author=3>
Here’s the meeting notice<https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-17968.pdf>.  They are limiting attendance, likely because they don’t want to give the public much access:
The Commission will convene its meeting at the New Hampshire Institute of Politics (Saint Anselm College), 100 Saint Anselm Drive, Manchester, New Hampshire 03102. This location is accessible to individuals with disabilities. Due to space limitations, members of the public interested in attending the meeting must register in advance. To register, please submit your full name, organization (if any), e-mail address, and phone number to Ron Williams at the email address above by 5:00 p.m. Eastern Time on Friday, September 8, 2017. Registrations will no longer be accepted once the room reaches maximum capacity.
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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
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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