[EL] resend: ELB News and Commentary 2/7/17
Rick Hasen
hasenr at gmail.com
Tue Feb 7 08:36:23 PST 2017
<http://electionlawblog.org/?p=90939> "Race or Party, Party as Race, or
Party All the Time: Three Uneasy Approaches to Conjoined Polarization In
Redistricting and Voting Cases"
Posted on <http://electionlawblog.org/?p=90939> February 7, 2017 7:30 am by
<http://electionlawblog.org/?author=3> Rick Hasen
I have posted this
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403> draft on SSRN,
for the forthcoming <http://electionlawblog.org/?p=90854> symposium on
Redistricting after 2020 at William and Mary. I think this piece brings
together a lot of my thinking (and others' thinking) on the "race or party"
question in election law these days. It discusses a number of pending (and
perhaps soon to be pending) Supreme Court cases on racial gerymandering,
partisan gerrymandering, and vote denial.
Here is the abstract:
The last few decades have witnessed the emergence of what Bruce Cain and
Emily Zhang term "conjoined polarization," the overlapping of partisan and
racial political identity, especially in the American South. Election law
doctrine, which developed at a time when partisanship and racial identity
did not overlap so neatly, has not caught up. The Essay looks at three
potential approaches to conjoined polarization in redistricting and voting
rights cases, and the problems with each approach.
"Race or party" is the first approach to conjoined polarization. In this
approach, a court's task is to decide whether a case is "really" about race
rather than party, with certain legal consequences flowing from the
determination. Some of the racial gerrymandering cases fit into this
category. Under Easley v. Cromartie, the courts' task has been to decide
whether race or party predominated in drawing district lines. If race
predominated, the lines are likely impermissible, but party preferences are
allowed. Beneath the surface, this racial gerrymandering doctrine has
allowed for partisan and political fights over redistricting in the guise of
discussing racial separation. The idea has now also emerged in some Voting
Rights Act section 2 cases; in this view, courts must determine whether
minority voters face less opportunity to participate in the political
process because of their race or ethnicity rather than facing reduced
opportunity for partisan reasons. In jurisdictions where conjoined
polarization is prevalent, a race or party analysis is nonsensical and can
lead to arbitrary results. It also may undermine enforcement of the Voting
Rights Act.
An alternative approach is to treat party as a proxy for race, equating
proof of discriminatory partisan intent with proof of discriminatory racial
intent. The United States Court of Appeals for the Fourth Circuit used this
approach in a recent case involving the constitutionality of a major North
Carolina voting law which imposed a strict voter identification requirement
and made cutbacks to other voting rules. The Fourth Circuit, in striking the
state's law as a violation of Section 2 of the Voting Rights Act, held that
the state acted with a racially discriminatory intent. The court reached
this conclusion despite finding little evidence of racial animus. The court
wrote that legislators relied upon racial data to achieve partisan ends in
designing this law, and that this reliance made party discrimination a form
of race discrimination. This approach of "party as race," while more
realistic about conjoined polarization than race or party, raises a host of
new questions, such as whether Republican legislatures in areas of conjoined
polarization could ever roll back earlier easing of voting laws enacted by
Democratic legislatures and administrators without risking a court holding
that the legislature engaged in intentional race discrimination. It also
means that a law that is illegal in North Carolina may be legal in
Wisconsin, even if motivated by the same partisan intent, because of a
difference in racial makeup of the two states.
A third approach to conjoined polarization, suggested a bit in the Fourth
Circuit case, but advanced more fully by some scholars including Sam
Issacharoff and me, seeks to deemphasize the racial aspect of these laws.
Under the "party all the time" approach, courts shift toward policing
partisan election laws more directly. It is not that race does not matter on
the ground in states and areas with conjoined polarization, but that a legal
focus on the racial aspects of the dispute obscures rather than elucidates
the stakes and the appropriate remedies. A move toward this approach would
have courts focus on partisan gerrymandering and dilution in the
redistricting context, and on partisan intent and effect as to voting
restrictions. "Party all the time" has two main drawbacks. First, it can
obscure situations in which race is more salient than party and needs direct
redress from the courts. Second, the approach injects courts further into
the political thicket, potentially leading to more partisanship in judicial
decisionmaking and lack of a principled stopping point for judicial
policing. Still, this third approach seems the best alternative, and better
than leaving the political thicket.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90939&title=%E2%80%9CRace%20or%20Party%2C%20Party%20as%20Race%2C%20or%20Pa
rty%20All%20the%20Time%3A%20Three%20Uneasy%20Approaches%20to%20Conjoined%20P
olarization%20In%20Redistricting%20and%20Voting%20Cases%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=68> political polarization,
<http://electionlawblog.org/?cat=6> redistricting,
<http://electionlawblog.org/?cat=29> Supreme Court,
<http://electionlawblog.org/?cat=15> Voting Rights Act
<http://electionlawblog.org/?p=90949> "Stephen Colbert calls 'bullshit' on
Trump's voter fraud claims"
Posted on <http://electionlawblog.org/?p=90949> February 7, 2017 7:25 am by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://www.vox.com/policy-and-politics/2017/2/7/14532318/stephen-colbert-tr
ump-voter-fraud> Watch.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90949&title=%E2%80%9CStephen%20Colbert%20calls%20%E2%80%98bullshit%E2%80%9
9%20on%20Trump%E2%80%99s%20voter%20fraud%20claims%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=18> election administration,
<http://electionlawblog.org/?cat=52> election law "humor",
<http://electionlawblog.org/?cat=60> The Voting Wars
<http://electionlawblog.org/?p=90947> "Lobbyists, Corporate Clients Open
Wallets for Trump"
Posted on <http://electionlawblog.org/?p=90947> February 7, 2017 7:19 am by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://www.rollcall.com/news/lobbyists-corporate-clients-open-wallets-for-t
rump?utm_name=newsletters&utm_source=rollcallheadlines&utm_medium=email>
Roll Call:
K Street has entered the Trump era.
Lobbyists and organizations that seek to influence Washington mostly
neglected the presidential campaign of Donald Trump early last year, but by
the end of 2016, the sector had begun to embrace him, new lobbying
disclosures show.
K Streeters disclosed $5.3 million in donations to Trump - much of that
going to the Jan. 20 inauguration - from July through December of last year.
That was a huge increase from the 14 donations totaling about $35,000 that
lobbyists and their business clients reported during the first six months of
last year.-
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90947&title=%E2%80%9CLobbyists%2C%20Corporate%20Clients%20Open%20Wallets%2
0for%20Trump%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=10> campaign finance,
<http://electionlawblog.org/?cat=28> lobbying
<http://electionlawblog.org/?p=90945> "Jason Kander Launches Let America
Vote To Fight Voter Suppression Laws Across The Country"
Posted on <http://electionlawblog.org/?p=90945> February 7, 2017 7:16 am by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://us15.campaign-archive1.com/?u=daa9d4bdff7c8f29b3f318b3a&id=02a05802a
7&e=%5bUNIQID> Release:
Jason Kander today launched Let America Vote, an organization dedicated to
winning the public debate over voter suppression in the United States. For
several years, challenges to voter suppression efforts have taken place
almost exclusively in courts of law. With the launch of
<http://www.letamericavote.org/> Let America Vote, the fight expands to the
court of public opinion.
Kander is joined by a Board of Advisors committed to voting rights,
including human rights activist Martin Luther King III, Planned Parenthood
Action Fund president Cecile Richards, former White House Press Secretary
Josh Earnest, and renowned voting rights and election attorney Marc Elias.
The 27 members of the Board of Advisors, who are listed below, bring diverse
experience in advocacy, public policy and grassroots organizing to the Let
America Vote team.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90945&title=%E2%80%9CJason%20Kander%20Launches%20Let%20America%20Vote%20To
%20Fight%20Voter%20Suppression%20Laws%20Across%20The%20Country%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=60> The Voting Wars
<http://electionlawblog.org/?p=90942> "Citizens United lawyer targets Texas
campaign finance laws"
Posted on <http://electionlawblog.org/?p=90942> February 7, 2017 7:10 am by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://www.seattletimes.com/nation-world/citizens-united-lawyer-targets-tex
as-campaign-finance-laws/> AP:
Houston tea party group King Street Patriots, started by Catherine
Engelbrecht, has been the focus of a longstanding lawsuit by the Texas
Democratic Party accusing the organization of violating state campaign
finance laws by engaging in political behavior when it dispatched poll
watchers on behalf of the Texas Republican Party during the 2010 election.
Democrats have used the case to press for disclosure of the group's donors.
But the nonprofit, represented by attorney James Bopp Jr., architect of the
landmark Citizens United case that opened the door for corporations and
unions to make unlimited independent expenditures in U.S. elections has
fired back with a counterclaim challenging numerous provisions of Texas
campaign finance law. The case has played out for years in Texas courts on
whether key components of the state's campaign finance and disclosure system
are constitutional.
The Supreme Court has passed up several opportunities to strike down the
corporate contribution ban. I talk about that somewhat surprising reluctance
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639902> in this
Stanford Law Review article.I don't expect this luck to last with a Justice
Gorsuch.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90942&title=%E2%80%9CCitizens%20United%20lawyer%20targets%20Texas%20campai
gn%20finance%20laws%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=10> campaign finance
<http://electionlawblog.org/?p=90937> "Secret money fueling pro-Betsy DeVos
ad campaigns"
Posted on <http://electionlawblog.org/?p=90937> February 6, 2017 8:05 pm by
<http://electionlawblog.org/?author=3> Rick Hasen
<https://www.publicintegrity.org/2017/02/06/20674/secret-money-fueling-pro-b
etsy-devos-ad-campaigns> CPI reports.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90937&title=%E2%80%9CSecret%20money%20fueling%20pro-Betsy%20DeVos%20ad%20c
ampaigns%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=59> campaigns
<http://electionlawblog.org/?p=90935> "Reform Groups Oppose Efforts by
House Admin Committee to Terminate Presidential Public Financing & EAC"
Posted on <http://electionlawblog.org/?p=90935> February 6, 2017 1:41 pm by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://www.democracy21.org/homepage/reform-groups-oppose-efforts-by-house-a
dmin-committee-to-terminate-presidential-public-financing-eac/> Letter.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90935&title=%E2%80%9CReform%20Groups%20Oppose%20Efforts%20by%20House%20Adm
in%20Committee%20to%20Terminate%20Presidential%20Public%20Financing%20%26%20
EAC%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=10> campaign finance,
<http://electionlawblog.org/?cat=18> election administration,
<http://electionlawblog.org/?cat=34> Election Assistance Commission
<http://electionlawblog.org/?p=90933> SCOTUSBlog Petition of the Day:
Public Integrity Alliance, Inc. v. City of Tucson
Posted on <http://electionlawblog.org/?p=90933> February 6, 2017 1:39 pm by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://www.scotusblog.com/2017/02/petition-of-the-day-1086/> Fascinating
voting question that the Court could well decide to hear.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90933&title=SCOTUSBlog%20Petition%20of%20the%20Day%3A%20Public%20Integrity
%20Alliance%2C%20Inc.%20v.%20City%20of%20Tucson>
Posted in <http://electionlawblog.org/?cat=29> Supreme Court,
<http://electionlawblog.org/?cat=31> voting
<http://electionlawblog.org/?p=90931> "We Still Need the EAC"
Posted on <http://electionlawblog.org/?p=90931> February 6, 2017 8:27 am by
<http://electionlawblog.org/?author=3> Rick Hasen
<http://editions.lib.umn.edu/electionacademy/2017/02/06/we-still-need-the-ea
c/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+HHHElections+
%28The+Election+Academy%29> A ChapinBlog.
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%
3D90931&title=%E2%80%9CWe%20Still%20Need%20the%20EAC%E2%80%9D>
Posted in <http://electionlawblog.org/?cat=18> election administration,
<http://electionlawblog.org/?cat=34> Election Assistance Commission,
<http://electionlawblog.org/?cat=60> The Voting Wars
--
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
<mailto:rhasen at law.uci.edu> rhasen at law.uci.edu
<http://www.law.uci.edu/faculty/full-time/hasen/>
http://www.law.uci.edu/faculty/full-time/hasen/
<http://electionlawblog.org/> http://electionlawblog.org
Rick Hasen
hasenr at gmail.com
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