[EL] ELB News and Commentary 6/14/17

Wed Jun 14 07:53:53 PDT 2017

“Resurrection: Cooper v. Harris and the Transformation of Racial Gerrymandering into a Voting Rights Tool”<http://electionlawblog.org/?p=93108>
Posted on June 14, 2017 7:48 am<http://electionlawblog.org/?p=93108> by Rick Hasen<http://electionlawblog.org/?author=3>
I have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2985755> on SSRN (forthcoming, ACS Supreme Court Review).  Here is the abstract:
The United States Supreme Court, like the Lord, sometimes works in mysterious ways.
Back in the 1990s, a group of conservative activists convinced a majority of conservative Justices on the United States Supreme Court to create a new cause of action under the Fourteenth Amendment’s Equal Protection Clause for “racial gerrymandering.” Unlike claims of “vote dilution”—where redistricting authorities draw lines for electing members of Congress, or state or local legislators to order to diminish someone’s political power—“racial gerrymandering” was said to be about an “expressive harm,” or the message sent by government action. In the 1993 case, Shaw v. Reno, the Court held that the “bizarre” shape of two North Carolina congressional districts sent a message to the public that the government was separating voters on the basis of race without adequate justification. The Court later refined the claim to focus less on a district’s shape and more on a legislature’s “predominant motive” in taking race into account in constructing districts. Some liberals and others objected that the racial gerrymandering claim made no sense either as an empirical matter, because people did not get any “message” from the shape of district lines in these racially integrated districts, or normatively, because “expressive harms” were not real harms. For a variety of reasons, racial gerrymandering claims mostly disappeared after the early 2000s.
More than two decades after Shaw, the racial gerrymandering claim has been resurrected, but in a form almost beyond recognition. By the 2016 Supreme Court term, minority voters and Democrats regularly used the racial gerrymandering cause of action to attack Republican gerrymanders in states with large minority populations. It had become another tool for voting rights activists. The transformation became complete in the Supreme Court case of Cooper v. Harris, where the Court recognized that a state’s strong use of race in districting to achieve partisan ends or suppress minority voters’ power violated the Constitution.
Harris reveals the malleability of Supreme Court constitutional doctrine, especially in the area of election law. But again, like the Lord, what the Supreme Court giveth, it could also taketh away, and it would not be surprising to see a new, more conservative Supreme Court revert to its original treatment of the gerrymandering claim as a tool to limit minority voting power.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Today’s Must Read from Kim Zetter for Politico: “Will the Georgia Special Election Get Hacked?”<http://electionlawblog.org/?p=93127>
Posted on June 14, 2017 7:34 am<http://electionlawblog.org/?p=93127> by Rick Hasen<http://electionlawblog.org/?author=3>
Stunning reporting by Kim Zetter for Politico Magazine:<http://www.politico.com/magazine/story/2017/06/14/will-the-georgia-special-election-get-hacked-215255>
As Georgia prepares for a special runoff election this month in one of the country’s most closely watched congressional races, and as new reports emerge about Russian attempts to breach American election systems, serious questions are being raised about the state’s ability to safeguard the vote. Lamb’s discovery, which he shared out of concern that state officials and the center ignored or brushed off serious problems highlighted by his breach, is at the heart of voting activists’ fears that there’s no way to be sure the upcoming race—which pits Democratic neophyte Jon Ossoff against Republican former Secretary of State Karen Handel—will be secure. The special election has already become the most expensive House race in U.S. history and has drawn the attention of President Donald Trump, who has tweeted his support of Handel and ridiculed Ossoff, whose campaign is seen as a litmus test for the Trump resistance movement.
Marilyn Marks, executive director of the Rocky Mountain Foundation, which sued the state last month to prevent it from using the voting machines in the upcoming runoff, says Americans have reason to be concerned about the integrity of Georgia’s election system—and the state’s puzzling lack of interest in addressing its vulnerabilities. “The security weaknesses recently exposed would be a welcome mat for bad actors.”
***
Within the mother lode Lamb found on the center’s website was a database containing registration records for the state’s 6.7 million voters; multiple PDFs with instructions and passwords for election workers to sign in to a central server on Election Day; and software files for the state’s ExpressPoll pollbooks — electronic devices used by pollworkers to verify that a voter is registered before allowing them to cast a ballot. There also appeared to be databases for the so-called GEMS servers. These Global Election Management Systems are used to prepare paper and electronic ballots, tabulate votes and produce summaries of vote totals.
The files were supposed to be behind a password-protected firewall, but the center had misconfigured its server so they were accessible to anyone, according to Lamb. “You could just go to the root of where they were hosting all the files and just download everything without logging in,” Lamb says.
It’s the incompetence that’s going to get us.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

“Congressional Democrats to file emoluments lawsuit against Trump”<http://electionlawblog.org/?p=93125>
Posted on June 14, 2017 7:27 am<http://electionlawblog.org/?p=93125> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/congressional-democrats-to-file-emoluments-lawsuit-against-trump/2017/06/13/270e60e6-506d-11e7-be25-3a519335381c_story.html?utm_term=.bcb43cf00891>
Nearly 200 Democratic members of Congress agreed to file a lawsuit Wednesday against President Trump alleging that by retaining interests in a global business empire he has violated constitutional restrictions on taking gifts and benefits from foreign leaders.
The lead senator filing the complaint in federal district court, Sen. Richard Blumenthal (D-Conn.), said Tuesday that the lawsuit has already drawn more congressional plaintiffs — 196 — than any legal action previously taken against a president. No Republicans had joined in the lawsuit so far, although they will be invited to do so, Blumenthal said.
An advance copy of the legal complaint reviewed by The Washington Post argues that those in Congress have special standing because the Constitution’s “foreign emoluments clause” requires the president to obtain “the consent of Congress” before accepting any gifts.
I’m skeptical of the standing requirements here. Members of Congress have an alternative enforcement mechanism, when there are enough of them: impeachment.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

“Trump is ushering in a kleptocracy. That’s why he is being sued”<http://electionlawblog.org/?p=93123>
Posted on June 14, 2017 7:25 am<http://electionlawblog.org/?p=93123> by Rick Hasen<http://electionlawblog.org/?author=3>
Joshua Matz<https://www.theguardian.com/commentisfree/2017/jun/14/trump-ushering-kleptocracy-why-being-sued> in The Guardian:
The legal response to Trump’s emoluments clause violations has taken shape more slowly. And understandably so: until recently, most Americans had never heard of “emoluments”. Only in the past few months – aided by creative public art<https://www.theguardian.com/commentisfree/2017/mar/09/trump-administration-an-aura-of-lawlessness>and a high-profile lawsuit<https://www.citizensforethics.org/press-release/crew-sues-trump-emoluments/> – has the public come to appreciate that Trump’s conflicts on interest are forbidden by the constitution.
It’s no coincidence that this arcane issue has newfound salience. We’re now witnessing kleptocracy on an unprecedented scale in America. And there’s barely even a fig leaf of cover<https://takecareblog.com/blog/trump-s-foreign-emoluments-another-fig-leaf-falls-away>. Trump has openly enmeshed his private financial interests in national policy. To say that this creates an appearance of corruption would be far too polite. This is the real deal: sketchy dealings all the way down.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

Wishing a Full and Speedy Recovery to Congressman Scalise and Congressional Staffers Shot Today<http://electionlawblog.org/?p=93121>
Posted on June 14, 2017 7:23 am<http://electionlawblog.org/?p=93121> by Rick Hasen<http://electionlawblog.org/?author=3>
An attack on those who serve our country is an attack on all of us.
We all stand together.
Our democracy depends upon peaceful resolution of differences, something we can no longer take for granted.
Our thoughts with those injured today and their family and friends.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Most Trump real estate now sold to secretive buyers”<http://electionlawblog.org/?p=93119>
Posted on June 13, 2017 7:09 pm<http://electionlawblog.org/?p=93119> by Rick Hasen<http://electionlawblog.org/?author=3>
USA Today:<https://www.usatoday.com/story/news/2017/06/13/trump-property-buyers-make-clear-shift-secretive-llcs/102399558/>
Since President Trump won the Republican nomination, the majority of his companies’ real estate sales are to secretive shell companies that obscure the buyers’ identities, a USA TODAY investigation has found.
Over the last 12 months, about 70% of buyers of Trump properties were limited liability companies – corporate entities that allow people to purchase property without revealing all of the owners’ names. That compares with about 4% of buyers in the two years before.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Schultz, Deardorff, and Vile’s Constitutional Law in Contemporary America, Volume 1: Institutions, Politics, and Process<http://electionlawblog.org/?p=93115>
Posted on June 13, 2017 6:56 pm<http://electionlawblog.org/?p=93115> by Rick Hasen<http://electionlawblog.org/?author=3>
New con law book<http://www.westacademic.com/Professors/ProductDetails.aspx?NSIID=160657> from David Schultz et al with a chapter on election law:
This engaging and accessible new Constitutional Law title covers contemporary topics and feature meticulously edited cases that include all the major Supreme Court opinions that should be in a text, as determined by political scientists who teach in the field. Cases aren’t boiled down to capsule summaries. Instead, the case content is presented in such a way as to allow students to dig deeply into the case meaning, while timelines put the cases into historical context. Additionally, there is comprehensive cross referencing of other important cases, case commentary, and analysis.
This is the only constitutional law book on the market that has a chapter on election law, and also contains significant chapters on the Constitution and foreign policy, and property rights. The opening chapter covers the elements of judicial review and how courts operate.
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Posted in pedagogy<http://electionlawblog.org/?cat=23>

Election Law Academics Update<http://electionlawblog.org/?p=93110>
Posted on June 13, 2017 6:54 pm<http://electionlawblog.org/?p=93110> by Rick Hasen<http://electionlawblog.org/?author=3>
Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:
Benjamin Plener Cover<https://www.uidaho.edu/law/people/faculty/bcover> will be starting as Associate Professor of Law at the University of Idaho College of Law.
Josh Douglas<http://law.uky.edu/directory/joshua-a-douglas> of Kentucky Law was a Visiting Scholar at the University of Edinburgh Law School in May 2017.
Jim Gardner<http://www.law.buffalo.edu/faculty/facultyDirectory/GardnerJames.html> will finish his 2.5 year stint as interim dean of Buffalo Law.
Heather Gerken<https://law.yale.edu/heather-gerken> was named the new dean at Yale Law.
Sarah Haan<https://www.uidaho.edu/law/people/faculty/shaan> received tenure at Idaho Law and will be moving to Washington & Lee.
Eitan Hersh<http://www.eitanhersh.com/> will be moving to a tenured position in the Tufts political science department.
Justin Levitt<http://www.lls.edu/faculty/facultylistl-r/levittjustin/>, after finishing a stint at DOJ, returns to Loyola Law School (LA) as the new Associate Dean for Research.
Lisa Manheim<https://www.law.washington.edu/directory/profile.aspx?ID=603> received tenure and promotion to associate professor at the University of Washington School of Law.
Derek Muller<http://law.pepperdine.edu/faculty-research/derek-muller/> received tenure at Pepperdine University School of Law and is visiting at the University of Iowa College of Law for the Fall 2017 semester.
Nate Persily<http://www.persily.com/> will be a fellow next year at the Center for  Advanced Study in the Behavioral Sciences.
Miles Rapoport <https://ash.harvard.edu/news/harvard-ash-center-appoints-miles-rapoport-longtime-democracy-advocate-senior-fellow> was appointed in January of 2017 to a newly created Senior Practice Fellowship in American Democracy at the Ash Center for Democratic Governance and Innovation at the Kennedy School at Harvard.
David Schleicher<https://law.yale.edu/david-n-schleicher> received tenure at Yale Law.
Dan Smith<https://people.clas.ufl.edu/dasmith/> will chair the U Florida political science department.
Doug Spencer<http://www.dougspencer.org/> was granted tenure at UConn Law.
Nick Stephanopoulos<http://www.law.uchicago.edu/faculty/stephanopoulos> was granted tenure at Chicago Law.
Franita Tolson <http://www.law.fsu.edu/our-faculty/profiles/tolson> accepted a move to USC Law.
Ciara Torres-Spelliscy<http://www.stetson.edu/law/faculty/torres-spelliscy-ciara/> was awarded the Leroy Highbaugh Sr. Research Chair by Stetson University College of Law in 2017.

Congratulations all!
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Posted in election law biz<http://electionlawblog.org/?cat=51>

ABA Panel on the State of Voting Rights, June 28 in DC<http://electionlawblog.org/?p=93106>
Posted on June 13, 2017 5:34 pm<http://electionlawblog.org/?p=93106> by Rick Hasen<http://electionlawblog.org/?author=3>
This looks good:<https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=278735790>
Speaker(s):
Kristen Clarke<https://shop.americanbar.org/ebus/Personify.WebControls.Meetings.UI/>
Robert Bauer<https://shop.americanbar.org/ebus/Personify.WebControls.Meetings.UI/>
Todd A Cox<https://shop.americanbar.org/ebus/Personify.WebControls.Meetings.UI/>
Moderator(s):
Jason Abel<https://shop.americanbar.org/ebus/Personify.WebControls.Meetings.UI/>
Sponsor(s):
Section of Civil Rights and Social Justice<https://shop.americanbar.org/ebus/Personify.WebControls.Meetings.UI/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

MO: “Questions mount on list of charity donors at center of Greitens ethics fine”<http://electionlawblog.org/?p=93104>
Posted on June 13, 2017 5:32 pm<http://electionlawblog.org/?p=93104> by Rick Hasen<http://electionlawblog.org/?author=3>
KC Star:<http://www.kansascity.com/news/politics-government/article155983134.html>
Greitens, a first-term Republican, agreed to pay a $1,000 fine<http://www.kansascity.com/news/politics-government/article147579244.html> in late April for failing to disclose that his campaign had obtained a list of donors to The Mission Continues<https://www.missioncontinues.org/>, a charity he founded in 2007.
But experts in laws governing tax-exempt organizations like The Mission Continues say the legal issues surrounding the donor list may not be so minor. In interviews with The Star, they said they see two possibilities:
▪ The Mission Continues gave its donor list to the governor’s campaign, violating a federal prohibition on charities engaging in political activity.
▪ Or the charity may have been the victim of a crime.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Charlie Crist and Michael Morley Debate Florida Felon Re-Enfranchisement Amendment<http://electionlawblog.org/?p=93102>
Posted on June 13, 2017 5:30 pm<http://electionlawblog.org/?p=93102> by Rick Hasen<http://electionlawblog.org/?author=3>
Orlando Sentinel intro<http://www.orlandosentinel.com/opinion/os-ed-restore-felon-rights-in-florida-front-burner-20170613-story.html>.
Charlie Crist <http://www.orlandosentinel.com/opinion/os-ed-charlie-crist-restore-felon-rights-in-florida-front-burner-20170613-story.html> in favor of state constitutional amendment.
Michael Morley opposed.<http://www.orlandosentinel.com/opinion/os-ed-no-rights-for-felons-front-burner-20170613-story.html>

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Posted in felon voting<http://electionlawblog.org/?cat=66>

As Texas Defends Its Voter ID Law, It Cuts Hours for Motor Vehicle Dep’t (Essential for Voters to Get IDs)<http://electionlawblog.org/?p=93098>
Posted on June 13, 2017 11:33 am<http://electionlawblog.org/?p=93098> by Rick Hasen<http://electionlawblog.org/?author=3>
I expect this news<http://www.houstonchronicle.com/news/houston-texas/houston/article/With-little-notice-DPS-shortens-drivers-license-11214793.php> will make it into a filing before Judge Ramos in the voter id litigation.
Update: Quick reversal.<http://www.houstonchronicle.com/news/houston-texas/article/DPS-reverses-course-on-drivers-license-office-11216860.php>
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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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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