[EL] ELB News and Commentary 1/23/17

Mon Jan 23 07:21:32 PST 2017

No Word from Supreme Court in NC Racial Gerrymandering Case<http://electionlawblog.org/?p=90592>
Posted on January 23, 2017 7:16 am<http://electionlawblog.org/?p=90592> by Rick Hasen<http://electionlawblog.org/?author=3>

Today's Court orders<https://www.supremecourt.gov/orders/courtorders/012317zor_qol1.pdf> contain no order related to North Carolina v. Covington,<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-649.htm> one of the North Carolina racial gerrymandering cases (and the case involving the special election for 2017 ordered by the district court and put on hold by the Supreme Court).

We will see, probably later today, if the case is relisted for the next conference. If it is, it means it is still under active consideration as a case the Court could hear.  If it is not, then that likely means the case will be held for the ongoing Bethune Hill (VA) and Harris (NC) racial gerrymandering cases the Court heard earlier this term, and could well be sent back to the lower court in light of whatever decisions are made in those cases.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Supreme Court Declines to Hear Texas Voter ID Case, But CJ Roberts Signals Review Likely Later<http://electionlawblog.org/?p=90590>
Posted on January 23, 2017 7:10 am<http://electionlawblog.org/?p=90590> by Rick Hasen<http://electionlawblog.org/?author=3>

The Supreme Court declined to review the Texas voter id case today, but Chief Justice Roberts strongly signaled<https://www.supremecourt.gov/orders/courtorders/012317zor_qol1.pdf#page=7> that the Court could well grant review when the case is fully complete in the lower court (and when, it is likely, there will be five conservative votes yet again on the Supreme Court):

The Texas officials who are defendants in this lawsuit have petitioned for certiorari. Their petition asks the Court to review whether the Texas Legislature enacted SB14 with a discriminatory purpose and whether the law results in a denial or abridgment of the right to vote under §2. Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration. As for the §2 claim, the District Court has yet to enter a final remedial order. Petitioners may raise either or both issues again after entry of final judgment. The issues will be better suited for certiorari review at that time.

What does this mean?  In the short term this is good news for Texas voters (who get the benefit of the softened Texas voter id rules ordered by the Fifth Circuit and trial court) and for voting rights activists, who have the benefit of a Section 2 precedent from the Fifth Circuit that helps to strike down some of these more restrictive laws. And the trial court gets to make the record on whether Texas passed its law with a discriminatory purpose.

In the long run, however, things are much less certain. Either in this case, and/or in the North Carolina voting case (cert. petition now pending), the Court could eventually rein in the meaning of Section 2 (both intent and effect) to deal with restrictive voting laws. Within a few years, I expect the Court will likely do so, making it harder to challenge these laws and encouraging more Republican legislatures to enact similar laws.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

"Trump Promised to Resign From His Companies - But There's No Record He's Done So"<http://electionlawblog.org/?p=90588>
Posted on January 22, 2017 7:58 pm<http://electionlawblog.org/?p=90588> by Rick Hasen<http://electionlawblog.org/?author=3>

Pro Publica reports.<https://www.propublica.org/article/trump-promised-to-resign-from-his-companies-but-no-record-hes-done-so?utm_campaign=bt_twitter&utm_medium=social&utm_source=twitter&utm_content=1485025926>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>
"Foreign Payments to Trump Firms Violate Constitution, Suit Will Claim"<http://electionlawblog.org/?p=90586>
Posted on January 22, 2017 5:12 pm<http://electionlawblog.org/?p=90586> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric Lipton and Adam Liptak for the NYT:<https://www.nytimes.com/2017/01/22/us/politics/trump-foreign-payments-constitution-lawsuit.html>

A team of prominent constitutional scholars, Supreme Court litigators and former White House ethics lawyers intends to file a lawsuit Monday morning alleging that President Trump is violating the Constitution by allowing his hotels and other business operations to accept payments from foreign governments.

The lawsuit is among a barrage of legal actions against the Trump administration that have been initiated or are being planned by major liberal advocacy organizations. Such suits are among the few outlets they have to challenge the administration now that Republicans are in control of the government.

In the new case, the lawyers argue that a provision in the Constitution<https://www.nytimes.com/2016/11/21/us/politics/donald-trump-conflict-of-interest.html?_r=0> known as the E<http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause>moluments C<http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause>lause<http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause> amounts to a ban on payments from foreign powers like the ones to Mr. Trump's companies. They cite fears by the framers of the Constitution that United States officials could be corrupted by gifts or payments.

The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise....

The legal team filing the lawsuit includes Laurence H. Tribe<http://hls.harvard.edu/faculty/directory/10899/Tribe>, a Harvard constitutional scholar; Norman L. Eisen<https://www.brookings.edu/experts/norman-eisen/>, an Obama administration ethics lawyer; and Erwin Chemerinsky<http://www.law.uci.edu/faculty/full-time/chemerinsky/>, the dean of the law school at the University of California, Irvine. Among the others are Richard W. Painter<https://www.law.umn.edu/profiles/richard-w-painter>, an ethics counsel in the administration of George W. Bush; Mr. Gupta<http://guptawessler.com/people/deepak-gupta/>, a Supreme Court litigator who has three cases pending before the court; and Zephyr Teachout<https://www.fordham.edu/info/23186/zephyr_teachout>, a Fordham University law professor and former congressional candidate who has been studying and writing about the Emoluments Clause for nearly a decade....

But Andy Grewal<https://law.uiowa.edu/andy-grewal>, a University of Iowa law school professor, argued in an academic paper published last week<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902391> that a payment to a hotel owned by the Trump family - like the Trump International Hotel in Washington<https://www.nytimes.com/2017/01/19/us/politics/trump-international-hotel-ethics.html?_r=0> - would not violate the Emoluments Clause because the money is paid to a corporate entity and not to Mr. Trump directly.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

"McCrory didn't hand over social media keys to Cooper"<http://electionlawblog.org/?p=90583>
Posted on January 21, 2017 5:47 pm<http://electionlawblog.org/?p=90583> by Rick Hasen<http://electionlawblog.org/?author=3>

WRAL:<http://www.wral.com/mccrory-didn-t-hand-over-social-media-keys-to-cooper/16448169/>

When former Gov. Pat McCrory turned over the keys to North Carolina's Executive Mansion to Gov. Roy Cooper on Jan. 1, his staff didn't include the keys to the social media accounts used by the Governor's Office.

The Republican's picture still adorns what were his office's official Facebook, Twitter, and Instagram accounts, and the last post on those platforms dates to a Dec. 31 goodbye message from McCrory.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

"Voting rights advocates seek to rein in Kansas election laws"<http://electionlawblog.org/?p=90581>
Posted on January 21, 2017 5:28 pm<http://electionlawblog.org/?p=90581> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports.<http://www2.ljworld.com/news/2017/jan/21/voting-rights-advocates-seek-rein-kansas-election-/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"Voter fraud 'test' could backfire"<http://electionlawblog.org/?p=90579>
Posted on January 20, 2017 4:57 pm<http://electionlawblog.org/?p=90579> by Rick Hasen<http://electionlawblog.org/?author=3>

Martin Wisckol<http://www.ocregister.com/articles/burns-741784-vote-state.html> for the OC Register:

Huntington Beach's Chuck Burns grew concerned as he heard repeated - but mostly unsubstantiated - allegations of voter fraud last year. So once the November election was over, he decided to see how easy it was to use fake information.

He was able to register to vote as Clyde Barrow, the name inspired by the Bonnie-and-Clyde outlaw.
 "They're not very thorough when you go to vote," Burns said. "And last month I decided to try this and see if it would go through."

But like the real life Barrow, Burns may soon find himself with the law on his trail.

While Burns' "Barrow" registration did make it to the state voter rolls, his fake drivers license number was caught and he would have been required to show valid ID the first time he tried to vote under the false name.

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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

It Begins: DOJ Asks for Extra Time in Texas Voter ID Case Because of Likely Change of Positions in Case<http://electionlawblog.org/?p=90574>
Posted on January 20, 2017 2:10 pm<http://electionlawblog.org/?p=90574> by Rick Hasen<http://electionlawblog.org/?author=3>

DOJ has filed this request<http://electionlawblog.org/wp-content/uploads/984-DOJ-Continuance-Motion.pdf> for a one month extension of a hearing in the trial court hearing the latest round in the Texas voter id case. The motion, which is opposed by the private plaintiffs in the case but supported by the state of Texas, asks for the extension for the following reason: "Because of the change in administration, the Department of Justice also experienced a transition in leadership. The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court."

I expect that in both the North Carolina and Texas voting cases pending in the Supreme Court, and that aspect of the Texas case now pending in the district court, the U.S. DOJ will switch sides and align with the states that passed restrictive voting rules and against the voting rights plaintiffs.

UPDATE: The court has postponed<http://www.politico.com/blogs/under-the-radar/2017/01/trump-transition-texas-voter-id-233946> the hearing for a month.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, 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>

--
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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