[EL] ELB News and Commentary 2/17/17

[Rick Hasen]

At William and Mary Redistricting in 2020 Symposium<http://electionlawblog.org/?p=91162>
Posted on February 16, 2017 7:52 pm<http://electionlawblog.org/?p=91162> by Rick Hasen<http://electionlawblog.org/?author=3>
The next few days should be great at this event.<http://electionlawblog.org/?p=90854>
I’ll be presenting  Race or Party, Party as Race, 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>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


What Does Judge Gorsuch Disagree with in His 2005 National Review Online Piece? Ask Him at Hearing<http://electionlawblog.org/?p=91160>
Posted on February 16, 2017 7:42 pm<http://electionlawblog.org/?p=91160> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://abcnews.go.com/Politics/wireStory/senate-hearings-supreme-court-pick-begin-march-20-45534914>
Durbin, D-Ill., also said Gorsuch indicated support for criminal justice reform — a Durbin priority — and disavowed a 2005 National Review article he’d written criticizing Democrats and liberals.
“He said it was probably one of the biggest mistakes he ever made,” Durbin recalled Thursday. “It’s a terrible article. He wishes it would just disappear.”
Here is a snippet from the article:<http://www.nationalreview.com/article/213590/liberalsnlawsuits-joseph-6>
There’s no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.
So what does he think is the “big mistake” here?  What does he no longer believe? The answer would be illuminating as to the judge’s approach to access to the courts and constitutional rights.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Trump’s Labor Pick Has a History of Attacking Voting Rights”<http://electionlawblog.org/?p=91158>
Posted on February 16, 2017 7:30 pm<http://electionlawblog.org/?p=91158> by Rick Hasen<http://electionlawblog.org/?author=3>
John Nichols<https://www.thenation.com/article/trumps-labor-pick-has-a-history-of-attacking-voting-rights/> for the Nation:
Robert Kengle, the deputy chief of the Voting Section, said he left his position because of the extreme politicization<http://talkingpointsmemo.com/muckraker/former-doj-official-i-left-due-to-institutional-sabotage> of the department during the time of Acosta’s leadership. Kengle said<http://www.mcclatchydc.com/latest-news/article24465595.html#1> the controversial letter brief in the Ohio case amounted to “cheerleading for the Republican defendants.” “It was doubly outrageous because the allegation in the litigation was that these were overwhelmingly African-American voters that were on the challenge list,” he explained to the McClatchy Newspapers DC bureau, which reported in 2007 that “Former Justice Department civil rights officials and election watchdog groups charge that [Acosta’s] letter sided with Republicans engaging in an illegal, racially motivated tactic known as ‘vote-caging’ in a state that would be pivotal in delivering President Bush a second term in the White House.”…
Lawyers’ Committee for Civil Rights Under Law<https://lawyerscommittee.org/> President and Executive Director Kristen Clarke said she was “astonished by the nomination of Alexander Acosta to serve as Secretary of the US Department of Labor.”
“Mr. Acosta led the Civil Rights Division at a time that was marked by stark politicization, and other improper hiring and personnel decisions that were fully laid to bare in a 2008 report issued by the Office of Inspector General (OIG),” said Clarke. “The OIG found that actions taken during Mr. Acosta’s tenure violated Justice Department policy and federal law. Political and ideological affiliations were used as a litmus test to evaluate job candidates and career attorneys, wreaking havoc on the work of the Division. This egregious conduct played out under Mr. Acosta’s watch and undermined the integrity of the Civil Rights Division. It is hard to believe that Mr. Acosta would now be nominated to lead a federal agency tasked with promoting lawful hiring practices and safe workplaces.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Not Buying It, Ivanka”<http://electionlawblog.org/?p=91156>
Posted on February 16, 2017 7:25 pm<http://electionlawblog.org/?p=91156> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres Spelliscy blogs.<https://www.brennancenter.org/blog/not-buying-it-ivanka>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


Debating the Merits of Arizona’s Public Financing System<http://electionlawblog.org/?p=91154>
Posted on February 16, 2017 7:14 pm<http://electionlawblog.org/?p=91154> by Rick Hasen<http://electionlawblog.org/?author=3>
Scot Mussi: Clean Elections has reached a dead end<http://azcapitoltimes.com/news/2017/02/16/clean-elections-has-reached-a-dead-end/>
Tom Collins: Claims against Arizona Clean Elections Commission are misleading<http://azcapitoltimes.com/news/2017/02/16/claims-against-arizona-clean-elections-commission-are-misleading/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


Trump: “Not the Republican people our that representatives are representing.”<http://electionlawblog.org/?p=91152>
Posted on February 16, 2017 7:06 pm<http://electionlawblog.org/?p=91152> by Rick Hasen<http://electionlawblog.org/?author=3>
From the transcrip<https://www.nytimes.com/2017/02/16/us/politics/donald-trump-press-conference-transcript.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0>t of today’s crazy<https://www.nytimes.com/2017/02/16/us/politics/trump-news-conference.html?ref=politics> news conference, President Trump said:
We’ve begun preparing to repeal and replace Obamacare. Obamacare is a disaster, folks. It is’s disaster. I know you can say, oh, Obamacare. I mean, they fill up our alleys with people that you wonder how they get there, but they are not the Republican people our that representatives are representing.
I thought representatives represent everyone in their area.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Basis, Intent, and the Blood Sport Republic: A Voting Rights Framework for a Constitutional Democracy”<http://electionlawblog.org/?p=91150>
Posted on February 16, 2017 12:12 pm<http://electionlawblog.org/?p=91150> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Parsons blogs.<https://moderndemocracyblog.com/2017/02/16/basis-intent-and-the-blood-sport-republic-a-voting-rights-framework-for-a-constitutional-democracy/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Favoring the Press”<http://electionlawblog.org/?p=91148>
Posted on February 16, 2017 12:07 pm<http://electionlawblog.org/?p=91148> by Rick Hasen<http://electionlawblog.org/?author=3>
New draft paper <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2913790> by Sonja West that looks great (and explores some of the issues I did in Plutocrats United).  Here is the abstract:
In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”
To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction—the treatment of news media corporations. The Court assumed that there is no constitutional difference between media corporations and other corporations and that if the government were able to limit the speech of some corporations, then it would also be free to censor the speech of media corporations. This was a thought that the majority called “dangerous, and unacceptable” and that Justice Antonin Scalia said “boggles the mind.” To the Citizens United majority, the news media corporation example settled the question on corporate speech rights, because any other rule would be unconstitutional speaker-based discrimination and open the doors for regulation of the news media.
But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corp. than it is of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the Press Clause (and not just the Speech Clause) play a role in this analysis?
In this article, I push back on the claim that the First Amendment prohibits speaker-based classifications by the government. Rather than ban such distinctions, the Press Clause traditionally has worked in support of differential treatment for the press. History, court precedent and legislative practice, moreover, demonstrate how favoritism for press speakers has been condoned and often encouraged.
This debate over the meaning of the Press Clause could have significant ramifications. A jurisprudential drift of press rights away from a protection of core press functions and toward a constraint on the ability of the government to recognize the differing roles of press speakers could significantly threaten the vital structural safeguards of the Fourth Estate.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


With Democratic Governor Silent, North Carolina Tees Up #SCOTUS Review of Its Strict Voting Law<http://electionlawblog.org/?p=91144>
Posted on February 16, 2017 11:44 am<http://electionlawblog.org/?p=91144> by Rick Hasen<http://electionlawblog.org/?author=3>
North Carolina has filed its reply brief<http://electionlawblog.org/wp-content/uploads/16-833-Reply-Brief.pdf> in the North Carolina voting case, and the Supreme Court is set to review it<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-833.htm> at its March 3 conference. (If the Court does grant review, it typically takes at least two conferences before that announcement is made.)
A few weeks ago, I wrote<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html> at Slate that “in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court<http://electionlawblog.org/wp-content/uploads/North-Carolina-Voter-ID-Cert-Petition-FINAL.pdf> to review the 4th Circuit’s decision<http://electionlawblog.org/wp-content/uploads/nc-4th.pdf> striking down North Carolina’s strict voting law.”  I followed that up with a blog post<http://electionlawblog.org/?p=90895> stating that NC law was not clear on whether the Governor had the authority to withdraw the petition, but at the least he could put in a letter expressing his disagreement with the argument that the Supreme Court should review the case.
The governor and AG were non-committal,<http://www.wral.com/cooper-not-tipping-hand-on-whether-he-ll-withdraw-nc-voter-id-appeal/16495766/> and now it appears they’ve filed nothing. Without explanation. And with a lot riding on this. By the time the Court would hear the case, we likely will have a Fifth conservative Justice and this important opinion could be reversed.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


--
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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