[EL] ELB News and Commentary 8/29/17

Tue Aug 29 07:27:46 PDT 2017

APSA/Pre-APSA Election Integrity Mini-Conference; Light Blogging Through Labor Day<http://electionlawblog.org/?p=94489>
Posted on August 29, 2017 7:25 am<http://electionlawblog.org/?p=94489> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ll be participating in this terrific Electoral Integrity Project event<https://www.electoralintegrityproject.com/san-francisco-workshop> tomorrow, “Protecting Electoral Security & Voting Rights: The 2016 U.S. Elections in Comparative Perspective” (I’ll be presenting: The 2016 U.S. Voting Wars: From Bad to Worse<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257>) and on an APSA panel Friday organized by the Law and Political Process Study group on Racial and Partisan Gerrymandering: New Approaches for the Next Decade<https://convention2.allacademic.com/one/apsa/apsa17/index.php?cmd=Online+Program+View+Session&selected_session_id=1268333&PHPSESSID=ku0to263uhi6k47idntdcbd714> with a truly great panel (I’ll be presenting: Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases).<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>
Blogging will be light through Labor Day.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The New Front in the Gerrymandering Wars: Democracy vs. Math”<http://electionlawblog.org/?p=94487>
Posted on August 29, 2017 7:18 am<http://electionlawblog.org/?p=94487> by Rick Hasen<http://electionlawblog.org/?author=3>
Emily Bazelon<https://www.nytimes.com/2017/08/29/magazine/the-new-front-in-the-gerrymandering-wars-democracy-vs-math.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=sectionfront&_r=0> for NYT Magazine:
The Republicans tried hard to keep the mapmaking process a secret. But they weren’t successful. In the first of two lawsuits brought by Democratic voters, three federal judges berated Republican leaders<https://www.leagle.com/decision/infdco20120104786> in 2012 for ‘‘flailing wildly in a desperate attempt to hide’’ their methods. A year later, the court ordered Republicans to turn over three computers. One appeared to have been tampered with, and a hard drive on a second computer had been wiped clean. But in 2016, a computer expert hired by the plaintiffs in the second lawsuit found, on another hard drive, spreadsheets that used a powerful new gerrymandering tool, based on sophisticated computer modeling.
The tool was created by Keith Gaddie, a political-science professor at the University of Oklahoma. Gaddie devised a way to measure partisanship for every precinct, which two Republican aides and a consultant used to draw a series of possible maps. They matched those maps against a regression analysis that Gaddie devised, which showed how the districts would perform, in the aggregate, in the event of any likely electoral outcome. By modeling everything from a typical split between Republicans and Democrats to a big swing toward either party, Gaddie’s techniques allowed the mapmakers to distribute voters with maximum advantage for Republicans, without fear of spreading their own supporters too thinly and thus imperiling safe seats….
Among the experts who think the means now exist for courts to referee gerrymandering fairly is Keith Gaddie, whose work enabled Wisconsin’s Republican mapmakers. In a brief<http://www.scotusblog.com/wp-content/uploads/2017/08/16-1161-ac-Bernard-Grofman.pdf> submitted to the Supreme Court in August, Gaddie and Grofman argue that social scientists can identify exactly how much the differential treatment of voters is ‘‘man-made’’ — a result of deliberate efforts by the party in power to penalize the opposition. I called Gaddie to ask how his stance squares with his earlier role. ‘‘I didn’t draw any maps in Wisconsin,’’ he said. ‘‘I helped them construct measures and tools. They made decisions and drew lines.’’ When I asked if he would do the same thing again, Gaddie said, ‘‘I don’t do this work anymore,’’ and hung up.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“State seeks to keep voter ID law in place for handful of elections”<http://electionlawblog.org/?p=94484>
Posted on August 29, 2017 7:05 am<http://electionlawblog.org/?p=94484> by Rick Hasen<http://electionlawblog.org/?author=3>
Express News:<http://www.expressnews.com/news/local/article/State-seeks-to-keep-controversial-voter-ID-law-in-12105968.php?platform=hootsuite>
Less than a week after a judge tossed Texas’ voter identification law, the state is asking permission to keep the requirements in place for a handful of upcoming elections in which early voting had already been underway.
Looks like there’s a strong case for that under the Purcell Principle.<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Dark money, super PAC spending surges ahead of 2018 midterms”<http://electionlawblog.org/?p=94482>
Posted on August 29, 2017 7:03 am<http://electionlawblog.org/?p=94482> by Rick Hasen<http://electionlawblog.org/?author=3>
Open Secrets:<https://www.opensecrets.org/news/2017/08/dark-money-super-pac-spending-surges-ahead-of-2018-midterms/>
Outside groups, such as super PACs and their more secretive brethren politically active nonprofits, spent more money during the first eight months of the 2018 election cycle than over the same period in any previous cycle.
Outside groups have spent nearly $48 million<https://www.opensecrets.org/outsidespending/cycle_tots.php?cycle=2018&view=Y&chart=A#viewpt> as of August 24 – or more than double the $20.7 million the groups spent at this point during the 2016 presidential elections and the $18 million doled out at this point in 2014, the last midterm cycle.
The record $48 million should be considered the minimum total, however, given the FEC doesn’t require groups to disclose spending on ads discussing issues and those mentioning candidates for office outside of the agency’s reporting windows (30 days before a primary election; 60 days before a general election).
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Members of Congress scoring personal loans from political supporters”<http://electionlawblog.org/?p=94480>
Posted on August 29, 2017 7:01 am<http://electionlawblog.org/?p=94480> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI reports:<https://www.publicintegrity.org/2017/08/29/21136/members-congress-scoring-personal-loans-political-supporters>
A review of mandatory personal financial disclosure forms filed by all current members of the House and Senate reveals at least 19 have accepted loans from organizations or moneyed individuals instead of a bank or traditional financial institution. Often, these organizations and individuals rank among the lawmakers’ key political supporters. In two of these cases, the loans were made to members’ spouses.
Two of the loans were made in the early 1990s; the rest were made in 2003 or later. While two of the congressional members in question have recently paid off their loans, the other 17 or their spouses remain in debt to their benefactors. The loans range in value from $15,000 to $5 million.
Some of the members in question borrowed the money before being elected to Congress, effectively indebting them to wealthy benefactors during their initial days and months as elected federal officials.
There’s nothing illegal about such loans, even when the lender is also a campaign contributor. And there’s no explicit evidence of a quid pro quo in which legislative action was taken in exchange for the loan. But government watchdog groups and others say such arrangements raise serious concerns about possible conflicts of interest.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

“NC Supreme Court takes up redistricting, power struggle between Cooper, legislature”<http://electionlawblog.org/?p=94478>
Posted on August 28, 2017 8:12 pm<http://electionlawblog.org/?p=94478> by Rick Hasen<http://electionlawblog.org/?author=3>
Progressive Pulse.<https://pulse.ncpolicywatch.org/2017/08/28/nc-supreme-court-takes-redistricting-power-struggle-cooper-legislature/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Gardner invites chief panel critic to voter commission meeting in NH”<http://electionlawblog.org/?p=94476>
Posted on August 28, 2017 7:58 pm<http://electionlawblog.org/?p=94476> by Rick Hasen<http://electionlawblog.org/?author=3>
Union Leader:<http://www.unionleader.com/politics/Gardner-invites-chief-panel-critic-to-voter-commission-meeting-in-NH-08272017>
Secretary of State Bill Gardner has invited Senate Minority Leader Charles E. Schumer of New York to address President Trump’s Advisory Commission on Election Integrity when it meets in New Hampshire next month.
The invitation comes days after Schumer, in a national opinion column, called on Trump to disband the commission saying it was critical in the wake of the racist march on Charlottesville that turned deadly this month….Gardner said he will urge Chairman and Vice President Mike Pence and Vice Chairman Kris Kobach to permit Schumer to speak.
TPM: <http://talkingpointsmemo.com/livewire/kobach-schumer-pathetic-voter-fraud-commission-charlottesville> Kobach Blasts Dems’ ‘Pathetic’ Attempt To Link C’Ville, Bogus Voter Fraud Panel
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“California Superior Court Says the Legislature in 2016 Violated the State Constitution when it Passed a Bill Authorizing Public Funding”<http://electionlawblog.org/?p=94474>
Posted on August 28, 2017 4:59 pm<http://electionlawblog.org/?p=94474> by Rick Hasen<http://electionlawblog.org/?author=3>
BAN reports.<http://ballot-access.org/2017/08/28/california-superior-court-says-the-legislature-in-2016-violated-the-california-constitution-when-it-passed-a-bill-authorizing/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Read the Brief for Appellees in WI Partisan Gerrymandering Case<http://electionlawblog.org/?p=94472>
Posted on August 28, 2017 1:29 pm<http://electionlawblog.org/?p=94472> by Rick Hasen<http://electionlawblog.org/?author=3>
With Paul Smith <https://www.brennancenter.org/sites/default/files/legal-work/Gill_Brief_for_the_Appellees.pdf> as counsel of record.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94472&title=Read%20the%20Brief%20for%20Appellees%20in%20WI%20Partisan%20Gerrymandering%20Case>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Illinois Governor Signs Automatic Voter Registration Law”<http://electionlawblog.org/?p=94470>
Posted on August 28, 2017 1:23 pm<http://electionlawblog.org/?p=94470> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://www.wbez.org/shows/wbez-news/illinois-governor-signs-automatic-voter-registration-law/5e0821fb-55ac-4e55-bdd1-f03b87250de7>
Republican Gov. Bruce Rauner signed a measure Monday allowing automatic voter registration in Illinois, a move that comes a year after he rejected a similar measure over concerns about voter fraud.
 Illinois joins more than half a dozen other states with some form of automatic voter registration, which proponents say boosts civic participation.
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Posted in election administration<http://electionlawblog.org/?cat=18>

Justice Alito Stays Order to Redo Texas Congressional Districts Pending Further Briefing at Supreme Court<http://electionlawblog.org/?p=94468>
Posted on August 28, 2017 1:05 pm<http://electionlawblog.org/?p=94468> by Rick Hasen<http://electionlawblog.org/?author=3>
This short stay<https://twitter.com/adamliptak/status/902259188914466816> (briefing done right after Labor Day) preserves the status quo until the full Court can consider the questions presented after further briefing.
I would not read too much into this order at this point, other than that Texas’s argument deserves a full look by the Court.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“The Determinants of State Legislator Support for Restrictive Voter ID Laws”<http://electionlawblog.org/?p=94466>
Posted on August 28, 2017 12:29 pm<http://electionlawblog.org/?p=94466> by Rick Hasen<http://electionlawblog.org/?author=3>
William Hicks, Seth McKee, and Dan Smith have written this article <http://journals.sagepub.com/doi/full/10.1177/1532440016630752?utm_source=Adestra&utm_medium=email&utm_content=The+Determinants+of+State+Legislator+Support+for+Restrictive+Voter+ID+Laws&utm_campaign=7JA234&utm_term=&> for State Politics & Policy Quarterly. Here is the abstract:
We examine state legislator behavior on restrictive voter identification (ID) bills from 2005 to 2013. Partisan polarization of state lawmakers on voter ID laws is well known, but we know very little with respect to other determinants driving this political division. A major shortcoming of extant research evaluating the passage of voter ID bills stems from using the state legislature as the unit of analysis. We depart from existing scholarship by using the state legislator as our unit of analysis, and we cover the entirety of the period when restrictive voter ID laws became a frequent agenda item in state legislatures. Beyond the obviously significant effect of party affiliation, we find a notable relationship between the racial composition of a member’s district, region, and electoral competition and the likelihood that a state lawmaker supports a voter ID bill. Democratic lawmakers representing substantial black district populations are more opposed to restrictive voter ID laws, whereas Republican legislators with substantial black district populations are more supportive. We also find Southern lawmakers (particularly Democrats) are more opposed to restrictive voter ID legislation. In particular, we find black legislators in the South are the least supportive of restrictive voter ID bills, which is likely tied to the historical context associated with state laws restricting electoral participation. Finally, in those state legislatures where electoral competition is not intense, polarization over voter ID laws is less stark, which likely reflects the expectation that the reform will have little bearing on the outcome of state legislative contests.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Courting Corruption”<http://electionlawblog.org/?p=94464>
Posted on August 28, 2017 12:22 pm<http://electionlawblog.org/?p=94464> by Rick Hasen<http://electionlawblog.org/?author=3>
Stephen Weissman<https://www.the-american-interest.com/2017/08/25/courting-corruption/> for The American Interest:
In January 2010, the nation’s highest court issued its opinion in the Citizens United campaign finance case, its most controversial ruling in this century. Yet despite the widespread criticism it has provoked, the full meaning and impact of this decision is still poorly understood by political leaders and the general public. While the court’s specific holding—that corporations can spend independently of candidates in elections—is widely recognized, its underlying constitutional rationale is rarely discussed. This is important because that rationale has nearly erased the court’s longtime standard for evaluating campaign finance restrictions, casting a shadow over every local, state, and Federal effort to control money in politics. In just seven years, the role of the wealthy few in financing Federal elections has increased geometrically.
Why has so little attention been paid to this legal transformation? Certainly, America’s byzantine system of campaign finance regulation makes it difficult for observers to comprehend the significance of judicial decisions. But in this case, the Supreme Court itself has been the primary obfuscator. Even as it has claimed to be largely following its long-reigning campaign finance precedent—Buckley v. Valeo (1976)—it has rather surreptitiously undermined Buckley’s justification for campaign finance regulation.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“New disclosure of hidden California campaign donors faces a do-or-die moment”<http://electionlawblog.org/?p=94462>
Posted on August 28, 2017 12:17 pm<http://electionlawblog.org/?p=94462> by Rick Hasen<http://electionlawblog.org/?author=3>
John Myers<http://www.latimes.com/politics/la-pol-ca-road-map-ballot-measure-disclosure-20170827-story.html> for the LAT.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

CA Supreme Court in 5-2 Vote Holds CA Voter Initiative Limiting Taxing Power of Local Governments Does Not Apply to Local Voter Initiatives Raising Taxes<http://electionlawblog.org/?p=94459>
Posted on August 28, 2017 12:13 pm<http://electionlawblog.org/?p=94459> by Rick Hasen<http://electionlawblog.org/?author=3>
David Ettinger:<http://www.atthelectern.com/supreme-court-hits-a-homer-in-loosening-restrictions-on-taxing-by-initiative/>
Employing a Homeric <https://www.britannica.com/biography/Homer-Greek-poet> reference, the Supreme Court today holds in California Cannabis Coalition v. City of Upland<http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2139798&doc_no=S234148> that a state constitutional provision, which was added by initiative to limit the taxing power of “local governments,” does not affect the ability of voters themselves to impose taxes by initiative.  In theUlysses and the Sirens
court’s 5-2 opinion<http://www.courts.ca.gov/opinions/documents/S234148.PDF>, Justice Mariano-Florentino Cuéllar writes, “Only by approving a measure that is unambiguous in its purpose to restrict the electorate’s own initiative power can the voters limit such power, tying themselves to the proverbial mast as Ulysses did.” …
Justice Leondra Kruger, joined by Justice Goodwin Liu, writes a concurring and dissenting opinion.  The majority, which spends considerable time responding to Justice Kruger’s opinion, concludes that “the common understanding of local government does not readily lend itself to include the electorate, instead generally referring to a locality’s governing body, public officials, and bureaucracy.”  Justice Kruger, on the other hand, believes that “[a] tax passed by voter initiative, no less than a tax passed by vote of the city council, is a tax of the local government, to be collected by the local government, to raise revenue for the local government.”
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Posted in direct democracy<http://electionlawblog.org/?cat=62>

“Money, Speech, and Chutzpah”<http://electionlawblog.org/?p=94456>
Posted on August 28, 2017 12:10 pm<http://electionlawblog.org/?p=94456> by Rick Hasen<http://electionlawblog.org/?author=3>
Joel Gora has posted this abstract draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3024129> on SSRN (forthcoming, Litigation).  Here is the abstract:
This article examines the background to the key campaign finance cases of the last 45 years, from before Buckley v. Valeo to after Citizens United. It criticizes the “chutzpah” of those who passed and defended campaign finance laws which directly restrict political speech and association and praises the “chutzpah” of those who challenged those laws as antipathetic to First Amendment rights and democracy’s demands. It traces the origins of the first free speech challenges to modern campaign finance laws, the landmark decisions since then and the most recent legal battles. The author recounts his own experiences as an ACLU lawyer working on many of those landmark cases.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94456&title=%E2%80%9CMoney%2C%20Speech%2C%20and%20Chutzpah%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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>
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http://electionlawblog.org<http://electionlawblog.org/>
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