[EL] ELB News and Commentary 12/12/17

Mon Dec 11 20:32:42 PST 2017

“Civil Rights Division Lawyers And Staff Gave Low Marks To Justice Department Leadership In A Workplace Survey”<http://electionlawblog.org/?p=96359>
Posted on December 11, 2017 8:22 pm<http://electionlawblog.org/?p=96359> by Rick Hasen<http://electionlawblog.org/?author=3>
Zoe Tillman:<https://www.buzzfeed.com/zoetillman/civil-rights-division-lawyers-and-staff-gave-low-marks-to?utm_term=.mirgg8XJz#.egngg2XKp>
Fewer than a third of attorneys and staff in the Justice Department’s Civil Rights Division who participated in a workplace survey this year reported feeling “satisfied” with the policies and practices of senior DOJ leadership, according to a report<https://assets.documentcloud.org/documents/4326343/Civil-Rights-Division-FEVS-Report.pdf> obtained by BuzzFeed News.
A high percentage of Civil Rights Division employees reported feeling satisfied with their work, their immediate supervisors, and their colleagues, but the positive responses dropped when it came to senior leadership. Under Attorney General Jeff Sessions, the Justice Department has changed course on a number of civil rights issues, including arguing against<https://www.buzzfeed.com/dominicholden/the-justice-department-just-argued-against-gay-rights-in-a?utm_term=.imGzOPmEgM#.csL290rxay>federal protections for gay workers and scaling back<https://www.buzzfeed.com/dominicholden/doj-and-police-reforms?utm_term=.ibBQE1RVM2#.jnn86NDXbB> oversight of local police departments.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>

“Montana political watchdog says Democratic Party violated campaign finance laws”<http://electionlawblog.org/?p=96357>
Posted on December 11, 2017 7:58 pm<http://electionlawblog.org/?p=96357> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://helenair.com/news/state-and-regional/montana-political-watchdog-says-democratic-party-violated-campaign-finance-laws/article_215947a0-7637-5ef3-8975-30718959a90b.html>
The Montana Democratic Party failed to identify the issues and candidates that benefited from its spending of about $375,000 on the 2016 general election, the state’s top election watchdog found.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Odd Fight Among Political Science Experts in Pa. Redistricting Case<http://electionlawblog.org/?p=96355>
Posted on December 11, 2017 7:45 pm<http://electionlawblog.org/?p=96355> by Rick Hasen<http://electionlawblog.org/?author=3>
See this motion.<https://www.pubintlaw.org/wp-content/uploads/2017/06/2017-12-10-Petitioners-MIL-re-Cho.pdf>
(via Michael McDonald<https://twitter.com/ElectProject/status/940425925707096065>)
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Judge orders Alabama not to destroy voting records in Tuesday’s Senate election” (with link to court order)<http://electionlawblog.org/?p=96352>
Posted on December 11, 2017 2:28 pm<http://electionlawblog.org/?p=96352> by Rick Hasen<http://electionlawblog.org/?author=3>
AL.com:<http://www.al.com/news/index.ssf/2017/12/judge_orders_alabama_not_to_de.html>
A judge directed Alabama election officials Monday afternoon to preserve all digital ballot images in Tuesday’s hotly contested U.S. Senate special election.
An order granting a preliminary injunction was filed at 1:36 p.m. Monday – less than 24 hours before voting is to begin. The order came in response to a lawsuit filed Thursday on behalf of four Alabama voters who argued that the state is required to maintain the images under state and federal law.
“All counties employing digital ballot scanners in the Dec. 12, 2017 election are hereby ordered to set their voting machines to save all processed images in order to preserve all digital ballot images,” Montgomery County Circuit Judge Roman Ashley Shaul wrote in the order.
You can find the two-page order here<https://www.scribd.com/document/366926327/Temporary-Restraining-Order#from_embed>.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Secret super PAC backing Jones in Alabama exposed”<http://electionlawblog.org/?p=96350>
Posted on December 11, 2017 2:22 pm<http://electionlawblog.org/?p=96350> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico<https://www.politico.com/story/2017/12/11/secret-super-pac-backing-jones-exposed-alabama-senate-290502>:
A mystery super PAC backing Democrat Doug Jones in Alabama is controlled by a pair of groups closely aligned with the national Democratic Party, even as the candidate strives to dissociate himself from Washington interests.
Highway 31, which has dropped more than $4.1 million in support of Jones and against Roy Moore ahead of Tuesday’s Senate special election, is a joint project of two of the largest national Democratic super PACs — Senate Majority PAC and Priorities USA Action — along with a group of Alabama Democrats, multiple senior officials familiar with the arrangement told POLITICO.
Highway 31 was created in November, Federal Election Commission filings show. Though Birmingham lawyer Edward Still is listed as the group’s treasurer, it was, in fact, founded jointly with Senate Majority PAC, the outside group closely tied to Democratic leadership in the Senate. Highway 31 has been funded jointly by Senate Majority PAC and Priorities USA Action, the Democratic super PAC that backed Barack Obama in 2012 and Hillary Clinton in 2016, the Democrats briefed on the arrangement told POLITICO.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Analyzing the Maryland Case on a Statewide Basis<http://electionlawblog.org/?p=96348>
Posted on December 11, 2017 1:10 pm<http://electionlawblog.org/?p=96348> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
The Supreme Court’s new partisan gerrymandering case features a district-specific (rather than a statewide) claim, as the plaintiffs challenge only Maryland’s Sixth Congressional District. It’s worth noting, though, that had the plaintiffs attacked Maryland’s entire congressional map, they (likely) would have been entitled to prevail under the test adopted by the Whitford trial court:

  1.  Discriminatory intent: Democrats had unified control of the Maryland state government in 2011, and it’s evident from the Benisek record that they sought to benefit themselves, and disadvantage Republican candidates and voters, when they redrew Maryland’s congressional districts.
  2.  Discriminatory effect: Maryland’s congressional plan had an average pro-Democratic efficiency gap of about 13% in the 2012, 2014, and 2016 elections. Only eight plans over the last half-century have been more skewed, on net, and five of those are currently in effect. It would also take a nine-point pro-Republican swing for Republicans to capture even a single additional seat. The Maryland map’s tilt is thus impervious to most electoral shifts.
  3.  Justification: Compared to hundreds of maps simulated<http://www-personal.umich.edu/~jowei/gerrymandering.pdf> by Jowei Chen and David Cottrell, Maryland’s congressional plan is much more skewed in a Democratic direction. It’s therefore improbable that Maryland’s political geography or legitimate redistricting objectives can explain the plan’s tilt. (To prove this point, however, more detailed simulations incorporating Maryland’s specific line-drawing goals would be necessary.)
To be clear, district-specific and statewide theories of partisan gerrymandering don’t always point in the same direction. In a subsequent post, I’ll explore where the theories converge and where they diverge. At least in Benisek, though, both types of claims support the invalidation of Maryland’s congressional plan.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Mobilizing Black Voters in Alabama: Who Does it and Why It’s Become Harder<http://electionlawblog.org/?p=96342>
Posted on December 11, 2017 12:09 pm<http://electionlawblog.org/?p=96342> by Richard Pildes<http://electionlawblog.org/?author=7>
For many decades the most significant organization in Alabama for mobilizing black turnout has been the Alabama Democratic Conference (ADC).  The ADC goes back deep into Alabama’s history, even pre-dating the Voting Rights Act.  It was founded after the successful 1960 challenge, in the Supreme Court case of Gomillion v. Lightfoot, to Tuskegee’s attempt to re-draw its municipal boundaries into a 28-sided “uncouth” figure that put virtually every black resident outside the city’s boundaries.
Having won that case, Dr. Gomillion then helped found the ADC to help mobilize and organize black political participation.  The unusually long existence of the ADC has given it a recognition and stature built up over years, particularly among black voters, that has made it a central player in get-out-the-vote (GOTV) efforts.
Successful organizations for GOTV drives are less likely to be pop-up vehicles  created overnight for a particular election, because they rely on the credibility that comes from years of having developed personal relationships and the infrastructure to get black voters to the polls, particularly in rural areas.
But  the ADC’s capacity to do that in tomorrow’s election and going forward has been dramatically undermined by a recent Alabama law that bans any political group from contributing financially to support any other political group for any purpose.  Given the economic position of many blacks in Alabama, the ADC charges membership dues of only $15/year, and less than half its financial resources traditionally came from these dues.  More than half its financing for things like GOTV efforts came from organizations representing teachers and trial lawyers, which shared ADC’s political aims.
When Alabama banned political groups from providing financial support to other political groups, it cut off nearly half the money ADC received for its GOTV efforts.  To the extent Alabama had any genuine problems with its campaign-finance laws, there were less sweepingly overbroad ways of dealing with them, rather than a complete bar on the ability of any group to contribute financially to any other group. The much more comprehensive federal campaign laws do not contain anything like this kind of flat prohibition on political groups working together on matters like GOTV efforts.
I thought Alabama’s law was an unconstitutional infringement on political association and political speech, and I represented ADC (along with John Tanner, Ed Still, and Perkins Coie) in its effort to get the Supreme Court to address these issues.  But the Court declined to hear the case.  (Only one other State, Missouri, has a similar bar to Alabama’s on political groups supporting each other with financial contributions, and a federal district court held Missouri’s law unconstitutional after the Supreme Court declined to hear the Alabama case).
Tomorrow’s election is the first major one under the law that bans ADC from receiving money from other political groups to fund its GOTV efforts.  The question of how many black voters turn out for the Democratic candidate, Doug Jones, is of course one of the factors that will be most critical to the outcome.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“A Guide to Election Year Activities of Section 501(c)(3) Organizations”<http://electionlawblog.org/?p=96343>
Posted on December 11, 2017 12:05 pm<http://electionlawblog.org/?p=96343> by Rick Hasen<http://electionlawblog.org/?author=3>
Steven Sholk has published an updated version<https://www.gibbonslaw.com/Files/Publication/dabcaa79-9348-4adf-9c9b-9245a227ed9c/Presentation/PublicationAttachment/e84ae1d5-3cc9-4657-943a-4462f1470830/ElectionYearActivities2017.pdf> of his very useful publication.
Depending on what happens<http://electionlawblog.org/?p=96318> with the tax bill, he may have to write a whole new guide in January.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Is the Supreme Court finally ready to tackle partisan gerrymandering? Signs suggest yes”<http://electionlawblog.org/?p=96336>
Posted on December 11, 2017 9:55 am<http://electionlawblog.org/?p=96336> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this oped <http://www.latimes.com/opinion/op-ed/la-oe-hasen-gerrymandering-maryland-20171211-story.html> for the LA Times.  A snippet:
Maybe there is some technical problem with the Gill case — such as a lack of standing for the plaintiffs — that would prevent the court from deciding it on the merits. Maybe the court will rule that these cases must be decided on a district-by-district basis (as in Benisek) rather than on a statewide basis (as in Gill). Maybe the court does not like the efficiency-gap theory, and prefers the 1st Amendment argument offered in Benisek. (In brief, the theory is that when a legislature draws lines to minimize a political party’s voting strength, it interferes with the associational rights of the party’s voters, discriminating against them simply because they are Republicans or Democrats.)
 After I posted my speculation on Twitter<https://twitter.com/rickhasen/status/939256369705664512> last week, a reader weighed in<https://twitter.com/biesecker1/status/939266496559271936> with another theory, one that I think may be the best of all: “Maybe they want to hear a challenge to a Democratic gerrymander in addition to the Wisconsin Republican gerrymander?”
The tweet reminded me of what Chief Justice John G. Roberts Jr.<http://www.latimes.com/topic/crime-law-justice/justice-system/john-roberts-PEPLT00008040-topic.html> said during the Gill oral arguments<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_bpm1.pdf> about being forced into the business of choosing Democrats or Republicans. He said that if the “intelligent man on the street” sees the court siding with Democrats in one of these disputes, “it must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“That powerful elected office a candidate held years ago? California voters won’t see it when they mark their 2018 ballot”<http://electionlawblog.org/?p=96334>
Posted on December 11, 2017 9:49 am<http://electionlawblog.org/?p=96334> by Rick Hasen<http://electionlawblog.org/?author=3>
John Myers for the LAT o<http://www.latimes.com/politics/la-pol-ca-road-map-ballot-designation-titles-20171210-story.html>n candidate three-word designations of their professions.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

The Maryland Gerrymandering Case: Four Significant Aspects to the Court Deciding to Hear the Case<http://electionlawblog.org/?p=96327>
Posted on December 11, 2017 8:58 am<http://electionlawblog.org/?p=96327> by Richard Pildes<http://electionlawblog.org/?author=7>
1. The significance for the justiciability issue.  Deciding to hear the Maryland case is a significant signal that a majority of the Court is not going to hold partisan gerrymandering claims to be non-justiciable (that is, inappropriate for judicial resolution).  If the Court were moving in the Wisconsin case toward holding partisan gerrymandering to be non-justiciable, it would make little sense for the Court to do anything with the Maryland case except hold it, then send it back to the lower courts to dismiss on the grounds that the entire cause of action was non-justiciable.  Hearing the Maryland case means the Court is quite unlikely to rule in WI that partisan gerrymandering claims should not be addressed by the courts.
In the Court’s last major confrontation with these issues, the 2004 Vieth   case, four Justices would indeed have held partisan gerrymandering non-justiciable (C.J. Rehnquist and J. O’Connor, of those four, are no longer on the Court). Justice Kennedy had kept the cause of action alive, but just barely, based on his hope that effective, judicially manageable standards would emerge.  In Gill, the possibility always existed that, if Justice Kennedy were  not satisfied that plaintiffs had indeed come up with an effective standard 13 years later, he too might conclude the courts should give up the search as well.  But the Maryland grant signals that, whatever else the Court might do in Gill, it is unlikely to conclude partisan gerrymandering is non-justiciable.
2. The significance for the issue of partisan gerrymandering.  The Wisconsin and Maryland cases take completely different approaches, which means the Court will now have a more comprehensive menu of options before it in deciding how to address partisan gerrymandering.  At the time the Court agreed to hear the Wisconsin case, I wrote<http://electionlawblog.org/?p=91947> that it was unfortunate this case was coming to the Court in isolation, as (1) the first case in which a lower federal court had struck down as unconstitutional a legislative redistricting plan and (2) the first case that had made use of the new metric, the Efficiency Gap, as part of its decision.  In the normal world of Supreme Court practice, the Court might have left the lower court decision alone (by denying cert.) and giving the lower courts more of an opportunity to test both this approach and others that were being pursued under different theories in other states.  But the unique nature of the Court’s mandatory appellate jurisdiction meant that it essentially had to agree to hear the Gill case, rather than waiting and then being able to benefit from numerous lower court decisions.
By granting the Maryland case now, the Court has thus put itself back in the better position of having an at least somewhat broader perspective on the theories and approaches being developed in the lower courts.  The approach in the Maryland case is a more conventional one than in Gil because it focuses on the design of a single district; the Maryland case implies that districts would have to be challenged one by one, with plaintiffs having to prove that any specific district was itself a partisan gerrymander; for that reason, the approach in Maryland, if adopted, would make future litigation more burdensome than in Gill, since Gill attacks state-wide plans as a whole, on a state-wide basis, rather than requiring proof about each district one-by-one.  Of course, the approaches in Gill and the Maryland case could turn out to be complementary, rather than alternatives; the Court could decide that a plan is unconstitutional if it violates the plaintiffs’ approach in Gil or that individual districts could be unconstitutional under the plaintiffs’ theory in Maryland.  But in any event, the Court is going to have a much better overall perspective on how to think about legal theories concerning partisan gerrymandering by virtue of having both cases before it.
3.  The significance for the signal the Court’s decision sends.  When the Court was considering only the Gill case in isolation, the case had been built up into the climatic moment for this issue.  That meant that, if the Court ends up rejecting the plaintiffs’ claims in Gill, the decision would have sent a powerful message to many other key actors — lower court judges, lawyers and plaintiffs considering bringing these cases, and those involved in redistricting — that the Court was unlikely ever to find an instance of unconstitutional partisan gerrymandering.
That would have been true even if the Court had qualified its decision in various ways, and even though there are several unique features of the WI litigation that would not apply to other approaches to litigating partisan gerrymandering.  After years of not holding any plan unconstitutional, if the Court reached that same conclusion in Gil, the undoubted take-away would have been these cases are simply not winnable.
But now, with two options before it, the Court’s signal will depend on how it handles both cases (and the two decisions might  be handed down at the same time).  The Court might affirm in Gill, of course. But if it rejects the plaintiffs’ claims there, and yet affirms the plaintiffs’ claims in the Maryland case, the message from the Court will be dramatically different than if it were deciding Gill alone.
4.  The significance for the (perceived) politics of partisan gerrymandering.  Because many more legislatures were under unified Republican than Democratic control in the 2010 round of redistricting, most of the attacks on partisan gerrymandering — both in the courts and in the media — have tended to be attacks on Republican-drawn plans. To the extent the legal challenge to partisan gerrymandering comes to be perceived as a purely partisan matter, that is not good for the legal issue.
Judges realize, of course, that Democrats often gerrymander when they get the chance.  But it makes a difference to have a vivid example and reminder of that fact before the Court at the same time the initial challenge before it was to a Republican plan.  That’s another reason I consider this recent Maryland grant good for the Court’s consideration of partisan gerrymandering.

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

“The Republican Overseeing the Alabama Election Doesn’t Think Voting Should Be Easy”<http://electionlawblog.org/?p=96331>
Posted on December 11, 2017 8:29 am<http://electionlawblog.org/?p=96331> by Rick Hasen<http://electionlawblog.org/?author=3>
Pema Levy:<http://www.motherjones.com/politics/2017/12/the-republican-overseeing-the-alabama-election-doesnt-think-voting-should-be-easy/>
This time last year, Alabama’s chief elections official landed in the national spotlight for delivering a screed against nonvoters that many people interpreted as an attack on African Americans in the state, who have long faced barriers to voting. “If you’re too sorry or lazy to get up off of your rear and to go register to vote, or to register electronically, and then to go vote, then you don’t deserve that privilege,” Republican John Merrill said in an interview<https://www.youtube.com/watch?v=aJe1Hqb5ZMU> with documentary filmmaker Brian Jenkins. Jenkins had asked why he opposed automatically registering Alabamians when they reach voting age, and his response sizzled with anger toward people who “think they deserve the right because they’ve turned 18.” So he made a pledge: “As long as I’m secretary of state of Alabama, you’re going to have to show some initiative to become a registered voter in this state.”
In the year since he made those comments, Merrill has in many ways made good on his promise. When Alabamians go to the polls on Tuesday to elect Republican Roy Moore or Democrat Doug Jones as their new senator, an untold number will not participate due to the decisions made by Merrill’s office—which is in charge of ensuring a fair voting process—and by the Republicans who run the state. These laws and policies overwhelmingly make it harder for minorities to vote.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“The Alabama Senate Race May Have Already Been Decided”<http://electionlawblog.org/?p=96329>
Posted on December 11, 2017 8:11 am<http://electionlawblog.org/?p=96329> by Rick Hasen<http://electionlawblog.org/?author=3>
Scott Douglas NYT oped:<https://www.nytimes.com/2017/12/11/opinion/roy-moore-alabama-senate-voter-suppression.html>
The Senate election in Alabama on Tuesday is not just about the choice between Doug Jones and Roy Moore. It’s also about a voter suppression campaign that may well sway the result of a close race.
In 2011, Alabama lawmakers passed a photo ID law<http://sos.alabama.gov/alabama-votes/voter/voter-id>, ostensibly to combat voter fraud. But “voter impersonation” at polling places virtually never happens<https://www.nytimes.com/2014/06/11/upshot/vote-fraud-is-rare-but-myth-is-widespread.html>. The truth is that the lawmakers wanted to keep black and Latino voters from the ballot box. We know this because they’ve always been clear <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwiRt67e1vjXAhXEQ98KHa9IAfgQFggnMAA&url=http%3A%2F%2Fwww.naacpldf.org%2Ffiles%2Fabout-us%2F255%2520CORRECTED%2520Pls%2520Opp%2520MSJ_GBMvAL.pdf&usg=AOvVaw0Gf2oepjWc-EmkDDL9L_w2> about their intentions<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwiRt67e1vjXAhXEQ98KHa9IAfgQFggnMAA&url=http%3A%2F%2Fwww.naacpldf.org%2Ffiles%2Fabout-us%2F255%2520CORRECTED%2520Pls%2520Opp%2520MSJ_GBMvAL.pdf&usg=AOvVaw0Gf2oepjWc-EmkDDL9L_w2>.
A state senator who had tried for over a decade to get the bill into law, told The Huntsville Times that a photo ID law would undermine Alabama’s “black power structure.” In The Montgomery Advertiser, he said that the absence of an ID law “benefits black elected leaders.”
The bill’s sponsors were even caught on tape<http://www.tuscaloosanews.com/news/20111021/judge-bingo-witnesses-aimed-to-suppress-black--voter-turnout> devising a plan to depress the turnout of black voters — whom they called “aborigines” and “illiterates” who would ride “H.U.D.-financed buses” to the polls — in the 2010 midterm election by keeping a gambling referendum off the ballot. Gambling is popular among black voters in Alabama, so they thought if it had remained on the ballot, black voters would show up to vote in droves….
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Posted in election administration<http://electionlawblog.org/?cat=18>, 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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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