[EL] ELB News and Commentary 6/5/17

Mon Jun 5 07:53:13 PDT 2017

Breaking: Supreme Court Summarily Affirms NC Racial Gerrymandering Case, Revives Chance of Special Election in 2017 Pending New Hearing<http://electionlawblog.org/?p=92936>
Posted on June 5, 2017 6:39 am<http://electionlawblog.org/?p=92936> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court without noted dissent has summarily affirmed<https://www.supremecourt.gov/orders/courtorders/060517zor_e18f.pdf> in North Carolina v. Covington<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-649.htm>, a  racial challenge to state leg. districts, at SCOTUS (Justin’s summary<http://electionlawblog.org/?p=92837>). The lower court had ordered North Carolina to run special elections in 2017 to cure the racial gerrymander. The Supreme Court had put that on hold after the state requested a stay.
Today the Supreme Court in an unsigned (per curiam) opinion wrote that the lower court was too cursory in deciding whether or not a special election made sense, and it remanded for a new hearing with a more nuanced analysis.  From the per curiam (appearing at the end of the order list):
Relief in redistricting cases is “‘fashioned in the light of well-known principles of equity.’” Reynolds v. Sims, 377 U. S. 533, 585 (1964). A district court therefore must undertake an “equitable weighing process” to select a fitting remedy for the legal violations it has identified, NAACP v. Hampton County Election Comm’n, 470 U. S. 166, 183, n. 36 (1985), taking account of “‘what is necessary, what is fair, and what is workable,’” New York v. Cathedral Academy, 434 U. S. 125, 129 (1977). And in the context of deciding whether to truncate existing legislators’ terms and order a special election, there is much for a court to weigh. Although this Court has never addressed whether or when a special election may be a proper remedy for a racial gerrymander, obvious considerations include the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty. We do not suggest anything about the relative weight of these factors (or others), but they are among the matters a court would generally be expected to consider in its “balancing of the individual and collective interests” at stake. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971).
Rather than undertaking such an analysis in this case, the District Court addressed the balance of equities in only the most cursory fashion. As noted above, the court simply announced that “[w]hile special elections have costs,” those unspecified costs “pale in comparison” to the prospect that citizens will be “represented by legislators elected pursuant to a racial gerrymander.” App. to Juris. Statement 200. That minimal reasoning would appear to justify a special election in every racial-gerrymandering case—a result clearly at odds with our demand for careful case-specific analysis. For that reason, we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us. And because the District Court’s discretion “was barely exercised here,” its order provides no meaningful basis for even deferential review. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 27 (2008).
For these reasons, we vacate the District Court’s remedial order and remand the case for further proceedings consistent with this opinion.
This leaves open the possibility that on remand the lower court can conduct a new hearing, and issue a more nuanced order that puts special elections in place for 2017. That will be much harder, now that we are in the middle of 2017, but it is not impossible. If the lower court orders it, North Carolina may be back before the Supreme Court again seeking a new stay (full employment for NC election lawyers continues!).
Still pending is Harris v. Cooper<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-166.htm>, a partisan gerrymandering challenge to the remedy in the congressional case. The Court has ordered new briefing<https://www.supremecourt.gov/orders/courtorders/052617zr_21o3.pdf> due June 6 on this question. Perhaps the Court will vote to hear this one or hold it for the Wisconsin partisan gerrymandering case also coming up at June conference. But there may be procedural issues there.
On the merits, the balancing test that the Court puts forward for when a special election should be held makes great sense, and will extend beyond the racial gerrymandering cases. Indeed, with this new multipart test (“the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty”) I would expect plaintiffs to now ask for special elections more regularly and courts applying these sensible factors. So a ruling counseling restraint might actually create more disruption.
[This post has been edited.]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Twitter’s Pro-Trump Bot Crisis Is Really A Human Crisis”<http://electionlawblog.org/?p=92934>
Posted on June 4, 2017 6:25 pm<http://electionlawblog.org/?p=92934> by Rick Hasen<http://electionlawblog.org/?author=3>
Charlie Warze<https://www.buzzfeed.com/charliewarzel/twitters-pro-trump-bot-crisis-is-really-a-human-crisis?utm_term=.uiAOW4rdj#.tfBX9ABrv>l for BuzzFeed:
Twitter is certainly clogged with bots — a number of which are designed to elegantly spread information that’s far from credible and push narratives. Scholars at Oxford suggest<https://go.redirectingat.com/?id=74679X1524629&sref=https%3A%2F%2Fwww.buzzfeed.com%2Fcharliewarzel%2Ftwitters-pro-trump-bot-crisis-is-really-a-human-crisis&url=https%3A%2F%2Fwww.nytimes.com%2F2016%2F11%2F18%2Ftechnology%2Fautomated-pro-trump-bots-overwhelmed-pro-clinton-messages-researchers-say.html%3F_r%3D0&xcust=4548967%7CBFLITE&xs=1> bots accounted for 18 percent of Twitter’s traffic related to the 2016 election and that roughly one-third of pro-Trump tweets came from bots.
Yet while the numbers sound substantial, the true effect these bots have on political discourse is still incredibly hard to quantify. And focusing on Twitter’s bot scourge is an enticing but partial explanation for a far more difficult problem. It’s also ignorant of the very real, very human media machine bent on pushing a pro-Trump narrative and trolling its opponents at all costs, for whom bots are just one of many tools.
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Posted in social media and social protests<http://electionlawblog.org/?cat=58>
“How G.O.P. Leaders Came to View Climate Change as Fake Science”<http://electionlawblog.org/?p=92932>
Posted on June 4, 2017 3:30 pm<http://electionlawblog.org/?p=92932> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/06/03/us/politics/republican-leaders-climate-change.html?ref=politics&_r=0>
Those divisions did not happen by themselves. Republican lawmakers were moved along by a campaign carefully crafted by fossil fuel industry players, most notably Charles D. and David H. Koch, the Kansas-based billionaires who run a chain of refineries (which can process 600,000 barrels of crude oil per day<https://www.fhr.com/products-services/fuels-and-aromatics>) as well as a subsidiary that owns or operates 4,000 miles of pipelines<https://www.kochpipeline.com/about-us/kpl-facts/> that move crude oil.
Government rules intended to slow climate change are “making people’s lives worse rather than better,” Charles Koch explained in a rare interview last year<http://fortune.com/2016/07/12/transcript-charles-koch-fortune/> with Fortune, arguing that despite the costs, these efforts would make “very little difference in the future on what the temperature or the weather will be.”
Republican leadership has also been dominated by lawmakers whose constituents were genuinely threatened by policies that would raise the cost of burning fossil fuels, especially coal<https://www.nytimes.com/2016/02/10/us/politics/supreme-court-blocks-obama-epa-coal-emissions-regulations.html?mcubz=0>. Senator Mitch McConnell of Kentucky, always sensitive to the coal fields in his state, rose through the ranks to become majority leader. Senator John Barrasso of Wyoming also climbed into leadership, then the chairmanship of the Committee on Environment and Public Works, as a champion of his coal state.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“How a ‘shadow’ universe of charities joined with political warriors to fuel Trump’s rise”<http://electionlawblog.org/?p=92928>
Posted on June 4, 2017 3:17 pm<http://electionlawblog.org/?p=92928> by Rick Hasen<http://electionlawblog.org/?author=3>
Must-read WaPo:<https://www.washingtonpost.com/investigations/how-a-shadow-universe-of-charities-joined-with-political-warriors-to-fuel-trumps-rise/2017/06/03/ff5626ac-3a77-11e7-a058-ddbb23c75d82_story.html?utm_term=.bb506f418838>
Long before Trump promised to build a wall, ban Muslims and abandon the Paris climate accord, Horowitz used his tax-exempt group to rail against illegal immigrants, the spread of Islam and global warming. Center officials described Hillary Clinton as evil, President Barack Obama as a secret communist and the Democratic Party as a front for enemies of the United States.
The Freedom Center has declared itself a “School for Political Warfare,” and it is part of a loose nationwide network of like-minded charities linked together by ideology, personalities, conservative funders and websites, including the for-profit Breitbart News.
Horowitz’s story shows how charities have become essential to modern political campaigns, amid lax enforcement of the federal limits on their involvement in politics, while taking advantage of millions of dollars in what amount to taxpayer subsidies….
Horowitz makes a good living as the Freedom Center chief executive, earning $583,000 from a charity that received $5.4 million in donations in 2015, according to the latest available records. But he said he has come to believe that his group and others across the political spectrum ought to be reined in to ensure they fulfill the original spirit of the Internal Revenue Service’s charitable rules, even though such overhauls would be “personally devastating for me.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
“Constitutional Connections: Race, partisan gerrymandering and the Constitution”<http://electionlawblog.org/?p=92926>
Posted on June 4, 2017 3:12 pm<http://electionlawblog.org/?p=92926> by Rick Hasen<http://electionlawblog.org/?author=3>
John Greabe writes<http://www.concordmonitor.com/Race-partisan-gerrymandering-and-the-Constitution-10435367> on Cooper v. Harris for the Concord Monitor.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
Quote of the Day: NC Looking Out for Interests of African-American Voters Edition<http://electionlawblog.org/?p=92924>
Posted on June 2, 2017 1:18 pm<http://electionlawblog.org/?p=92924> by Rick Hasen<http://electionlawblog.org/?author=3>
From a supplemental brief <http://pulse.ncpolicywatch.org/wp-content/uploads/2017/06/Covington-response-brief.pdf> of plaintiffs in Covington, the NC racial gerrymandering case involve state legislative districts (which had been on hold pending resolution of Cooper v. Harris):
Finally on the merits, Appellants’ suggestion that the opinion of the court below will have “dire consequences” for minority representation, Supp. Br. at 4, and that they—unlike the court below—have the best interests of minority groups at heart is risible. Every African-American legislator in the legislature in 2011 voted against these districts and groups such as the NAACP and the A. Philip Randolph Institute in the Dickson litigation, and the individual African-American plaintiffs in this case, then mounted challenges to these districts. If the State were truly concerned about minority representation, it would have undertaken an actual Section 2 analysis when it engaged in redistricting—including evaluating all of the Gingles prongs—rather than using the pretext of the Voting Rights Act to racially gerrymander. Appellants’ newfound concern for minority representation rings remarkably hollow.
Read also North Carolina’s supplemental brief<http://pulse.ncpolicywatch.org/wp-content/uploads/2017/06/Covington-state-brief.pdf> (Paul Clement, counsel of record) (via NC Policy Watch<http://pulse.ncpolicywatch.org/2017/06/02/new-briefs-u-s-supreme-court-filed-pending-gerrymandering-case-remedial-special-election/#sthash.P1R5FVxE.nQ8Ulfa2.dpbs>).
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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