[EL] ELB News and Commentary 2/23/17

[Rick Hasen]

“Pence filling out voter fraud task force”<http://electionlawblog.org/?p=91273>
Posted on February 22, 2017 7:51 pm<http://electionlawblog.org/?p=91273> by Rick Hasen<http://electionlawblog.org/?author=3>
The Hill:<http://thehill.com/homenews/administration/320666-pence-filling-out-voter-fraud-task-force>
“He’s announcing that Vice President Mike Pence<http://thehill.com/people/mike-michael-pence> will lead a task force on this,” Spicer said when asked about Trump’s accusations that 3 million to 5 million people voted illegally in 2016. The White House so far has not offered evidence that so many people filed illegal ballots.
“He named the task force, and the vice president is starting to gather names and individuals to be a part of it.”
Bob Bauer, who co-chaired the Presidential Commission on Election Administration, has written <http://www.moresoftmoneyhardlaw.com/2017/02/choosing-respond-pence-commission/> that election professionals should not be part of this effort. Marc Elias, Hillary Clinton’s lawyer, says no Democrats <https://twitter.com/marceelias/status/834607780220788736> should take part.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Texas, Trump administration seek to delay voter ID hearing”<http://electionlawblog.org/?p=91270>
Posted on February 22, 2017 7:36 pm<http://electionlawblog.org/?p=91270> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://www.pbs.org/newshour/rundown/texas-trump-administration-seek-delay-voter-id-hearing/>
The U.S. Justice Department joined Texas’ attorney general Wednesday in asking a federal court to delay a hearing on the state’s voter ID law, the latest signal that the federal government might drop its opposition to the law now that Donald Trump is president.
In the joint filing, the Justice Department and Texas Attorney General Ken Paxton asked to delay next Tuesday’s hearing until summer because the Texas Legislature is considering changes to the existing law, which a federal court has found to be discriminatory. Barack Obama’s Justice Department had joined the lawsuit contesting it.
You can find the joint motion (which I expect the private plaintiffs to oppose) at this link.<http://electionlawblog.org/wp-content/uploads/veasey-joint-motion.pdf>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


NC Voting Case Not Over (Yet) at #SCOTUS? [Corrected post]<http://electionlawblog.org/?p=91263>
Posted on February 22, 2017 3:36 pm<http://electionlawblog.org/?p=91263> by Rick Hasen<http://electionlawblog.org/?author=3>
Note: An earlier version of this post said that there was a party line vote at the North Carolina Board of Elections not to withdraw from the case.  That’s correct, but it was not the end of the story. I have just received the following lette<http://electionlawblog.org/wp-content/uploads/Correspondence_SBE_Stein_2017-02-22.pdf>r indicating that the Board takes the position it is not involved in the case:
The State Board of Elections this evening voted unanimously to communicate that it has not taken, and does not take, a position in the above-referenced action. The Board wishes also to communicate that it does not believe the agency is presently represented by private counsel in this matter, nor has the agency acted to retain private counsel in the past.
If the governor and AG have withdrawn the cert. petition, and the Board of Elections has no position in the litigation, it seems that the case should be withdrawn from SCOTUS, unless the Legislature seeks to intervene and argue that the governor lacked the power to withdraw from the case.  As of now, the Legislature is not a party to the case, and it is not clear to me how this would get resolved.
Does this get resolved in state court? Does SCOTUS put consideration of the cert. petition on hold or does it allow the withdrawal of the petition?
I will update this post further if I get more information.
This post has been corrected.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Voter ID bills try to solve problems that don’t exist”<http://electionlawblog.org/?p=91261>
Posted on February 22, 2017 3:30 pm<http://electionlawblog.org/?p=91261> by Rick Hasen<http://electionlawblog.org/?author=3>
Douglas Hess oped<http://www.desmoinesregister.com/story/opinion/columnists/iowa-view/2017/02/22/voter-id-bills-try-solve-problems-dont-exist/98196278/> for the Des Moines Register:
Iowans should take pride in knowing that our state, like many Midwestern states, has a reputation for relatively even-handed public administration. Unfortunately, some officials are bruising that reputation with proposals to add new identification requirements to vote in Iowa and restricting access to absentee ballots.
Secretary of State Paul Pate is correct when he asserts that elections in Iowa need more funding. Moreover, his office’s proposed bills (here<https://www.legis.iowa.gov/docs/publications/BP/852027.pdf> and here<https://www.legis.iowa.gov/docs/publications/BP/852026.pdf>) include some reforms that could increase convenience for voters. Unfortunately, his proposal also includes unnecessary voter ID requirements.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


“From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders”<http://electionlawblog.org/?p=91259>
Posted on February 22, 2017 3:28 pm<http://electionlawblog.org/?p=91259> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Elmendorf has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2916294> on SSRN.  Here is the abstract:
For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution, that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school-finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions, and possibly under Article I or the Fourteenth Amendment of the U.S. Constitution. I also suggest that by anchoring claims to the generally-worded provisions about representation found in state constitutions and Article I, litigants can mitigate the substantial downside risk of success under the Equal Protection Clause — namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational-adequacy litigation.
I read an earlier draft of this—very creative and recommended!
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Texas Republicans pitch new voter ID law”<http://electionlawblog.org/?p=91257>
Posted on February 22, 2017 3:24 pm<http://electionlawblog.org/?p=91257> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/02/21/texas-republicans-pitch-new-voter-id-law/>
Top Texas Republicans unveiled legislation Tuesday that would overhaul the state’s voter identification rules, an effort to comply with court rulings that have found that the current law discriminates against minority groups.
Filed by Sen. Joan Huffman<https://www.texastribune.org/directory/joan-huffman/>, Senate Bill 5<https://www.texasattorneygeneral.gov/files/epress/SB00005I.pdf?cachebuster%3A59=&utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=> would add options for Texans who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.
Lt. Gov. Dan Patrick<https://www.texastribune.org/directory/dan-patrick/> has granted the bill “priority” status, carving it a faster route through the Legislature. Nineteen other senators have signed onto the bill, and Texas Attorney General Ken Paxton<https://www.texastribune.org/directory/ken-paxton/> — who is still defending the current ID law in court — applauded the legislation Tuesday.
In a statement, Paxton said the proposal would both ensure the “the integrity of the voting process” and comply with court rulings that have found fault with the current law, considered the nation’s strictest.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Meet the Math Professor Who’s Fighting Gerrymandering With Geometry”<http://electionlawblog.org/?p=91255>
Posted on February 22, 2017 12:10 pm<http://electionlawblog.org/?p=91255> by Richard Pildes<http://electionlawblog.org/?author=7>
From Chronicle of Higher Education:<http://www.chronicle.com/article/Meet-the-Math-Professor/239260/>
“Changes to voting rules that used to be considered by courts before they could be implemented,” Ms. Duchin says, “are now implemented first and the courts consider them after the fact.” Because of the increase in cases challenging new electoral maps, she says, there’s a need for expert witnesses who understand the mathematical concepts applicable to gerrymandering.
To meet that need, she’s spearheaded the creation of a five-day summer program at Tufts that aims to train mathematicians to do just that. The first three days of the program will be open to the public and available online, with lessons that put redistricting in legal, historical, civil-rights, and mathematical contexts. Attendees of the program’s final two days will participate in one of three specialized tracks on giving expert testimony, teaching, and working with geographic-information systems.
The summer program, created in partnership with the Lawyers’ Committee for Civil Rights Under Law, was announced late in January. Already, Ms. Duchin says, over 900 people have indicated their interest by signing up for a mailing list. “What was really remarkable,” she says, “is that the mailing list didn’t say, Sign up if you care about gerrymandering. It said, We want to train mathematicians as expert witnesses. That’s very specific.”

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


“Explainer: Voting Rules for Saturday’s Election of DNC Chair”<http://electionlawblog.org/?p=91253>
Posted on February 22, 2017 8:06 am<http://electionlawblog.org/?p=91253> by Rick Hasen<http://electionlawblog.org/?author=3>
Rob Richie and EJ Marin.<http://www.huffingtonpost.com/entry/explainer-voting-rules-for-saturdays-election-of_us_58ada887e4b0598627a55ee3>

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Posted in political parties<http://electionlawblog.org/?cat=25>


Read the NC Governor, AG Filings Seeking to Withdraw Cert. Petition in North Carolina Voting Case<http://electionlawblog.org/?p=91250>
Posted on February 22, 2017 8:02 am<http://electionlawblog.org/?p=91250> by Rick Hasen<http://electionlawblog.org/?author=3>
You can find the documents here<http://electionlawblog.org/wp-content/uploads/2017-02-21-NC-Filing.pdf>.
As I noted<http://electionlawblog.org/?p=91231> yesterday<http://electionlawblog.org/?p=91240>, there is a dispute over whether the North Carolina governor can end this litigation while the legislature wants it to continue.
There is also the question, as noted in the filing, about the continued participation of the state board of elections. They will be having a meeting today where the issue may be discussed.

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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
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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