[EL] ELB News and Commentary 8/28/17

Sun Aug 27 20:29:00 PDT 2017

Texas Attorney General Asks 5th Circuit to Keep Using Its Struck Down Voter ID Law Pending Appeal<http://electionlawblog.org/?p=94453>
Posted on August 27, 2017 3:56 pm<http://electionlawblog.org/?p=94453> by Rick Hasen<http://electionlawblog.org/?author=3>
Stay motion.<https://www.texasattorneygeneral.gov/files/epress/Appellants_Emergency_Motion_to_Stay_Pending_Appeal_-_FM.pdf?cachebuster:93>
If Texas loses this stay motion, I expect they will try to get the Supreme Court to issue the stay,
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94453&title=Texas%20Attorney%20General%20Asks%205th%20Circuit%20to%20Keep%20Using%20Its%20Struck%20Down%20Voter%20ID%20Law%20Pending%20Appeal>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Judge: Amherst term limits don’t bar clerk from run for supervisor”<http://electionlawblog.org/?p=94451>
Posted on August 27, 2017 3:50 pm<http://electionlawblog.org/?p=94451> by Rick Hasen<http://electionlawblog.org/?author=3>
Buffalo News reports.<http://buffalonews.com/2017/08/11/judge-term-limits-dont-bar-amherst-town-clerk-running-supervisor/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94451&title=%E2%80%9CJudge%3A%20Amherst%20term%20limits%20don%E2%80%99t%20bar%20clerk%20from%20run%20for%20supervisor%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>

“A judge ruled Texas’s second try at voter ID laws is illegal. She’s right.”<http://electionlawblog.org/?p=94449>
Posted on August 27, 2017 3:48 pm<http://electionlawblog.org/?p=94449> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo editorial.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94449&title=%E2%80%9CA%20judge%20ruled%20Texas%E2%80%99s%20second%20try%20at%20voter%20ID%20laws%20is%20illegal.%20She%E2%80%99s%20right.%E2%80%9D>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“My Conversation with a Leading Election Technology Researcher Should Terrify You”<http://electionlawblog.org/?p=94447>
Posted on August 27, 2017 3:47 pm<http://electionlawblog.org/?p=94447> by Rick Hasen<http://electionlawblog.org/?author=3>
Interview<http://patriotnotpartisan.com/elections/my-conversation-with-a-leading-election-technology-researcher-should-terrify-you/> with Harri Hursti.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94447&title=%E2%80%9CMy%20Conversation%20with%20a%20Leading%20Election%20Technology%20Researcher%20Should%20Terrify%20You%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

“After losses on voting laws and districting, Texas turns to Supreme Court”<http://electionlawblog.org/?p=94445>
Posted on August 27, 2017 3:39 pm<http://electionlawblog.org/?p=94445> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Barnes column <https://www.washingtonpost.com/politics/courts_law/after-losses-on-voting-laws-and-districting-texas-turns-to-supreme-court/2017/08/27/cf68fea8-89bc-11e7-a94f-3139abce39f5_story.html?utm_term=.e66436e77327> for WaPo:
The state of Texas is in the midst of an extraordinary losing streak in federal courts over the way it conducts elections. It is hoping the Supreme Court will come to the rescue.
In the past couple of weeks, federal judges in four separate cases ruled that the Texas Legislature discriminated against minorities in drawing congressional and legislative districts, setting ID requirements for voters and even regulating who can assist voters for whom English is not their first language.
Two courts are considering whether the actions intended to discourage African American and Hispanic voters. If the courts find that the efforts were intentional, it could return Texas to the kind of federal oversight from which the Supreme Court freed it and other mostly Southern states in the landmark 2013 decision in Shelby County v. Holder.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“The Equal Districts Efficiency Gap: Fundamental Gerrymandering Theory And An Analysis and Modification of the Efficiency Gap”<http://electionlawblog.org/?p=94443>
Posted on August 27, 2017 3:02 pm<http://electionlawblog.org/?p=94443> by Rick Hasen<http://electionlawblog.org/?author=3>
Ray Wallin has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3027578> on SSRN.  Here is the abstract:
Recently the ‘efficiency gap’ method has gained notoriety by playing an important role in framing the Gill v Whitford gerrymandering case decided in Wisconsin and soon to be heard by the US Supreme Court. The story of the efficiency gap is captivating as it frames all votes it deems unnecessary as ‘wasted votes,’ and it is the sum of these wasted votes that determines whether the outcome of an election is fair.
The first part of this paper uses two tables presented to the district court in the Gill v Whitford and shows that such tables can be heavily manipulated, gerrymandered in ways that the efficiency gap does not measure. The wasted votes in the tables will be shown to be biased toward districts with higher voter turnout, and under further scrutiny, it will be shown that wasted votes are not needed, nor are tables, as the table calculations can be represented in a two-variable equation, which when comparing redistricting plans, will boil down to a one-variable equation that provides little insight into gerrymandering.
The second part of this paper derives a corrected efficiency gap equation, the ‘equal districts efficiency gap equation,’ which produces a more precise efficiency gap measure. The equal districts efficiency gap will show that to date, efficiency gap calculations in literature have been biased, including those presented to the courts, and that a gerrymandering calculation that uses numbers such as ‘party X’s statewide votes’ or ‘statewide wasted votes’ is inherently biased.
But the main purpose of this paper is a clarification of what seems to be general confusion in the literature as to what a vote is and what a seat (or a district) is in gerrymandering calculations. It is shown that, as a fundamental principle, all equations concerning gerrymandering should be written in reference to seats (districts), not votes.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94443&title=%E2%80%9CThe%20Equal%20Districts%20Efficiency%20Gap%3A%20Fundamental%20Gerrymandering%20Theory%20And%20An%20Analysis%20and%20Modification%20of%20the%20Efficiency%20Gap%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Judge Niemeyer and intent in gerrymandering<http://electionlawblog.org/?p=94441>
Posted on August 27, 2017 1:05 pm<http://electionlawblog.org/?p=94441> by Justin Levitt<http://electionlawblog.org/?author=4>
A few days ago, Rick highlighted<http://electionlawblog.org/?p=94425> Judge Niemeyer’s dissent<https://www.brennancenter.org/sites/default/files/legal-work/Benisek_v_Lamone_Memorandum_08.24.17.pdf#page=25> in the latest order in the Maryland partisan gerrymandering case.  There are, as both Judge Niemeyer and the majority pointed out, some differences between the Maryland case and the Gill v. Whitford <http://www.scotusblog.com/case-files/cases/gill-v-whitford/> Wisconsin case about to be argued at the Supreme Court: for example, the plaintiffs are proceeding under somewhat different theories, and the challenge in Wisconsin is statewide while the challenge in Maryland is to a single district.  That said, I agree that Judge Niemeyer’s opinion is likely to be influential in shaping how the Court thinks about the claims in Gill: in some ways, a statewide case is cleaner, and Judge Niemeyer’s focus would make it even easier for the Court to affirm the finding of an unconstitutional gerrymander in Gill.  I’ll also note that Judge Niemeyer’s focus is squarely on the impermissible intent involved in targeting opposing voters based on their partisan affiliation, as Michael Kang<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019390>, Michael Parsons<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2698183>, and some guy named Justin Levitt<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011062> have all argued it should be.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Courts repeatedly chastise Texas for voting-rights violations”<http://electionlawblog.org/?p=94439>
Posted on August 25, 2017 11:15 am<http://electionlawblog.org/?p=94439> by Rick Hasen<http://electionlawblog.org/?author=3>
Steve Mazie<https://www.economist.com/blogs/democracyinamerica/2017/08/designed-discriminate> for the Economist.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Texas, with Paul Clement on Brief, Seeks SCOTUS Stay in Congressional Redistricting Case<http://electionlawblog.org/?p=94437>
Posted on August 25, 2017 11:13 am<http://electionlawblog.org/?p=94437> by Rick Hasen<http://electionlawblog.org/?author=3>
The brief is here<https://www.texasattorneygeneral.gov/files/epress/SCOTUS_Stay_Application.FINAL.pdf?cachebuster:54>.
Procedurally, this may be premature<http://electionlawblog.org/?p=94354>.
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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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