[EL] ELB News and Commentary 7/28/17

Fri Jul 28 08:21:14 PDT 2017

“Kris Kobach says Trump’s voter fraud panel will keep voter data secure. Some states aren’t buying it”<http://electionlawblog.org/?p=94085>
Posted on July 28, 2017 8:16 am<http://electionlawblog.org/?p=94085> by Rick Hasen<http://electionlawblog.org/?author=3>
LAT reports.<http://www.latimes.com/nation/la-na-pol-voter-fraud-commission-20170727-story.html>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94085&title=%E2%80%9CKris%20Kobach%20says%20Trump%E2%80%99s%20voter%20fraud%20panel%20will%20keep%20voter%20data%20secure.%20Some%20states%20aren%E2%80%99t%20buying%20it%E2%80%9D>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“‘You don’t seem serious,’ federal judge tells NC legislative leaders about redistricting efforts”<http://electionlawblog.org/?p=94083>
Posted on July 28, 2017 8:11 am<http://electionlawblog.org/?p=94083> by Rick Hasen<http://electionlawblog.org/?author=3>
News & Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article164028932.html>
Federal judges had pointed questions and comments Thursday for the lawyer representing North Carolina lawmakers who have not yet complied with the panel’s order to draw new districts for electing General Assembly members.
The judges want the legislature to fix what they have called unconstitutional “racial gerrymanders.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94083&title=%E2%80%9C%E2%80%98You%20don%E2%80%99t%20seem%20serious%2C%E2%80%99%20federal%20judge%20tells%20NC%20legislative%20leaders%20about%20redistricting%20efforts%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Partisan Gerrymandering and the Illusion of Unfairness”<http://electionlawblog.org/?p=94081>
Posted on July 28, 2017 8:07 am<http://electionlawblog.org/?p=94081> by Rick Hasen<http://electionlawblog.org/?author=3>
Jacob Eisler has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2993876> on SSRN (forthcoming, Catholic Law Review).  Here is the abstract:
Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test.
This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“How Oregon Increased Voter Turnout More Than Any Other State”<http://electionlawblog.org/?p=94079>
Posted on July 28, 2017 8:02 am<http://electionlawblog.org/?p=94079> by Rick Hasen<http://electionlawblog.org/?author=3>
The Nation:<https://www.thenation.com/article/how-oregon-increased-voter-turnout-more-than-any-other-state/>
Recently, policy-makers have begun examining automatic voter registration (AVR). It has generated a lot of excitement, and rightly so. New research from Demos examines<http://www.demos.org/publication/oregon-automatic-voter-registration-methodology-and-data> the effects of Oregon’s recent adoption of AVR on the level and composition of turnout in the 2016 federal election. Using unique individual-level data, we provide new evidence that AVR increased the racial diversity of Oregon’s electorate. Our findings suggest that AVR is effective in raising voter turnout, especially among individuals who are voting for the first time or are less-frequent voters. These patterns point to a positive relationship between AVR and increased voter participation, and demonstrates that AVR is a successful reform to reduce political inequities stemming from the historic underrepresentation of young people, people of color, and low-income people in the electorate.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voter registration<http://electionlawblog.org/?cat=37>

CA: “DA: Hackers Penetrated Voter Registrations in 2016 Through State’s Election Site”<http://electionlawblog.org/?p=94077>
Posted on July 28, 2017 8:00 am<http://electionlawblog.org/?p=94077> by Rick Hasen<http://electionlawblog.org/?author=3>
KQED:<https://ww2.kqed.org/news/2017/07/21/hackers-penetrated-voter-registrations-in-2016-through-states-election-site/>
Hackers successfully penetrated state-run online voter registration systems in 2016, triggering confusion and heated exchanges between voters, poll workers and poll watchers during California’s June 7 primary, Riverside County District Attorney Michael Hestrin said Friday.
“I think that pretty quickly, as is sort of the case around our politics, partisanship got into it,” Hestrin told The California Report. “And frankly the victims of these changes were both Republicans and Democrats.”
Hestrin’s investigation would ultimately show that hackers accessed voter registration information, indiscriminate of party, through the California Secretary of State’s election website<http://www.sos.ca.gov/elections/>, and changed some voters’ party affiliations. But because the state did not collect the IP addresses of the visits, there’s no way to know where the hacker — or hackers — were based.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“Steve Bannon has a shadow press office. It may violate federal law.”<http://electionlawblog.org/?p=94075>
Posted on July 28, 2017 7:57 am<http://electionlawblog.org/?p=94075> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI:<https://www.publicintegrity.org/2017/07/26/21014/steve-bannon-has-shadow-press-office-it-may-violate-federal-law>
In an arrangement prominent ethics experts say is without precedent and potentially illegal, the White House is referring questions for senior presidential adviser Stephen K. Bannon<https://www.publicintegrity.org/2017/07/13/20983/steve-bannon-misreports-2-million-debt-financial-disclosure> to an outside public relations agent whose firm says she is working for free.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

Tam Cho on the Efficiency Gap<http://electionlawblog.org/?p=94073>
Posted on July 28, 2017 7:55 am<http://electionlawblog.org/?p=94073> by Rick Hasen<http://electionlawblog.org/?author=3>
Important piece <https://www.pennlawreview.com/essays/index.php?id=59> at the University of Pennsylvania Law Review Online by Wendy Tam Cho on the “efficiency gap,” at the centerpiece of the Wisconsin redistricting case. It begins:
The efficiency gap has recently been touted as a general partisan fairness measure with the ability to “neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court’s ‘unanswerable question’ of ‘[h]ow much political . . . effect is too much.’” The measure was endorsed by the district court in Whitford v. Gill, and is currently on appeal to the Supreme Court. The plaintiffs in Whitford, based on a forty‐two‐year analysis of state legislative elections, have proposed a “conservative” 7% threshold on the efficiency gap as a standard for judging the constitutionality of partisan gerrymandering. If the Court adopts the efficiency gap as a partisan fairness measure, this decision could have far‐reaching implications for redistricting practices and litigation.
We examine the properties of the efficiency gap as a measure of partisan unfairness. With the right to vote, the Court has consistently sought to guard against sophisticated as well as simple‐minded modes of discrimination. We explore whether the efficiency gap is up to this task by first considering the mathematical properties of the efficiency gap. Does it provide a consistent and stable interpretation across electoral maps (for different states, for different types of elections, e.g. Congress or state houses, and for different time periods), allowing us to compare the value of partisan fairness from one map to another? We then evaluate whether the measure is impervious to the data that is used to compute it. We finally explore its ability to tap the concepts of responsiveness and bias, separate and important facets of partisan fairness.

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Don’t Let Our Democracy Collapse: A Q&A with Richard Hasen”<http://electionlawblog.org/?p=94071>
Posted on July 27, 2017 10:07 am<http://electionlawblog.org/?p=94071> by Rick Hasen<http://electionlawblog.org/?author=3>
Interview<http://www.fairvote.org/don_t_let_our_democracy_collapse_a_q_a_with_richard_hasen> over at FairVote.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Pence’s voter fraud commission will almost certainly ‘find’ thousands of duplicate registrations that aren’t duplicates. Here’s why”<http://electionlawblog.org/?p=94069>
Posted on July 27, 2017 7:16 am<http://electionlawblog.org/?p=94069> by Rick Hasen<http://electionlawblog.org/?author=3>
Stephen Pettigrew and Mayya Komisarchik for the Monkey Cage<https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/27/pences-voter-fraud-commission-will-almost-certainly-find-thousands-of-duplicate-registrations-that-arent-duplicates-heres-why/?utm_term=.ebf1ac786695>:
Presumably, the commission will use the names and birthdays in these lists to identify potential duplicate registration records between states. That’s the method used by the Interstate Crosscheck Program<http://www.nased.org/NASED_Winter_2013_PP_Presentations/KANSAS.pdf> pioneered by Kansas Secretary of State Kris Kobach, a co-chair of the commission, which helps states identify voters who have moved to a new state by flagging potential duplicate registration records. In 2012, Crosscheck identified more than 1.4 million potential duplicate registrations.
Recent academic work<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/we_looked_at_130_million_ballots_from_the_2012_election_and_found_zero_fraud.html>, however, found that for every 200 registrations flagged using Crosscheck’s methodology, at least 199 were false matches in which the middle names or Social Security numbers did not line up. That’s one-half of one percent.
And the advisory commission will have considerably less information than is made available to Crosscheck. Twenty-two states<https://www.brennancenter.org/latest-updates-fraud-commission> have refused to comply with the commission’s request. Seventeen other states, such as Colorado<https://www.sos.state.co.us/pubs/newsRoom/pressReleases/2017/CSOScommissionResponse.pdf>, have said that they will provide only the publicly available voter information and omit confidential information like Social Security numbers or month and day of birth. Even more challenging for the commission will be states that only indicate the ages of voters in 10- or 20-year bins.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>
“The way out of partisan gerrymandering”<http://electionlawblog.org/?p=94067>
Posted on July 27, 2017 6:46 am<http://electionlawblog.org/?p=94067> by Rick Hasen<http://electionlawblog.org/?author=3>
Christian Century editorial.<https://www.christiancentury.org/article/way-out-partisan-gerrymandering>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

--
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
949.824.0495 - fax
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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