[EL] ELB News and Commentary 6/27/17

[Rick Hasen]

“Gorsuch is the new Scalia, just like Trump promised”<http://electionlawblog.org/?p=93394>
Posted on June 27, 2017 8:21 am<http://electionlawblog.org/?p=93394> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this oped <http://www.latimes.com/opinion/op-ed/la-oe-hasen-gorsuch-scalia-20170627-story.html> for the LA Times. It begins:
Whatever else comes of the Donald J. Trump<http://www.latimes.com/topic/politics-government/donald-trump-PEBSL000163-topic.html> presidency, already he has perfectly fulfilled one campaign pledge in a way that will affect the entire United States for a generation or more: putting another Antonin Scalia on the Supreme Court<http://www.latimes.com/nation/la-na-trump-supreme-court-20161122-story.html>. The early signs from Justice Neil Gorsuch<http://www.latimes.com/topic/crime-law-justice/justice-system/neil-gorsuch-PEGPF00222-topic.html>, who joined the Court in April, show that he will hew to the late Justice Scalia’s brand of jurisprudence, both in his conservatism and his boldness.
Usually it takes a few years to get the full sense of a new justice. The job provides awesome power, and new justices often are reluctant to issue stark opinions or stake out strong positions early on. Chief Justice John Roberts<http://www.latimes.com/topic/crime-law-justice/justice-system/john-roberts-PEPLT00008040-topic.html> and Justice Samuel Alito<http://www.latimes.com/topic/crime-law-justice/justice-system/samuel-a.-alito-PEPLT00008041-topic.html>, for example, were at first cautious on campaign finance<https://www.law.cornell.edu/supct/html/06-969.ZO.html> and voting rights issues<https://supreme.justia.com/cases/federal/us/557/193/opinion.html>. Only later did they sign on to blockbuster decisions like 2010’s Citizens United<https://www.law.cornell.edu/supct/html/08-205.ZS.html> campaign finance case (allowing corporations to spend unlimited sums in elections) or 2013’s Shelby County<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> voting case (effectively killing off a key Voting Rights Act provision).
Not so with Gorsuch. In a flurry of orders and opinions issued Monday, Gorsuch went his own way. The majority affirmed<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf> the right of same-sex parents to have both their names appear on birth certificates, but Gorsuch dissented. The majority chose not to hear<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf> a challenge to California’s public carry gun law, thus leaving it in place, but Gorsuch dissented. Gorsuch also wrote separately in the Trinity Lutheran case<https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf>, on whether a parochial school may take government money for playground safety equipment. The court found in favor of the school, but Gorsuch went even further to the right in endorsing the government’s ability to aid religious organizations. This followed his dissent with Justice Clarence Thomas<http://electionlawblog.org/?p=92665> a few weeks ago over the court’s failure to consider overturning the “soft money ban” contained in the McCain-Feingold campaign finance law.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“A Cautious Supreme Court Sets a Modern Record for Consensus”<http://electionlawblog.org/?p=93392>
Posted on June 27, 2017 8:20 am<http://electionlawblog.org/?p=93392> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Adam Liptak<https://www.nytimes.com/2017/06/27/us/politics/supreme-court-term-consensus.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=sectionfront&_r=0> in the NYT:
The Supreme Court was shorthanded for most of the term that ended Monday, and it responded with caution, setting a modern record for consensus.
“Having eight was unusual and awkward,” Justice Samuel A. Alito Jr. told a judicial conference<https://blogs.wsj.com/washwire/2017/04/21/with-court-at-full-strength-alito-foresees-more-aggressive-conservative-majority/> a few days after Justice Neil M. Gorsuch joined the court in April. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.”
As Justice Alito’s remarks suggested, the next term, starting in October, will be very different from the past one, which was defined by the long vacancy caused by the death of Justice Antonin Scalia<https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html> in February 2016 and the court’s strenuous efforts to avoid 4-4 votes.
The court has already agreed to hear cases on President Trump’s travel ban<https://www.nytimes.com/2017/06/26/us/politics/supreme-court-trump-travel-ban-case.html?_r=0>, a clash between gay rights and claims of religious freedom<https://www.nytimes.com/2017/06/26/us/politics/supreme-court-wedding-cake-gay-couple-masterpiece-cakeshop.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news>, constitutional limits on partisan gerrymandering,<https://www.nytimes.com/2017/06/19/us/politics/justices-to-hear-major-challenge-to-partisan-gerrymandering.html> cellphone privacy<https://www.nytimes.com/2017/06/05/us/politics/supreme-court-cellphone-tracking.html>, human rights violations by corporations<https://www.nytimes.com/2017/04/03/us/politics/supreme-court-human-rights-arab-bank-terrorism.html> and the ability of employees to band together to address workplace issues.<https://www.nytimes.com/2017/01/13/us/politics/scotus-mandatory-employee-arbitration.html>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“The real voter fraud; Republicans are using fake voter fraud to crush voting rights”<http://electionlawblog.org/?p=93390>
Posted on June 27, 2017 8:14 am<http://electionlawblog.org/?p=93390> by Rick Hasen<http://electionlawblog.org/?author=3>
VICE News reports.<https://news.vice.com/story/republicans-are-using-fake-voter-fraud-to-crush-voting-rights>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“A Tale of (at Least) Two Gerrymanders”<http://electionlawblog.org/?p=93388>
Posted on June 27, 2017 8:05 am<http://electionlawblog.org/?p=93388> by Rick Hasen<http://electionlawblog.org/?author=3>
Goldfeder and Perez<http://www.stroock.com/siteFiles/Publications/TaleOfTwoGerrymanders.pdf> in NYLJ.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


New CFI Report: Unlimited Party Contributions Don’t Help Ease Polarization<http://electionlawblog.org/?p=93385>
Posted on June 27, 2017 7:44 am<http://electionlawblog.org/?p=93385> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.cfinst.org/Press/PReleases/17-06-27/Party_Contribution_Limits_and_Polarization.aspx> (my emphasis)
The Campaign Finance Institute (CFI) today is releasing a new study entitled Party Contribution Limits and Polarization<http://www.cfinst.org/pdf/papers/PartyContributionLimits_Polarization.pdf>. The study refutes one of the policy solutions put forward in recent years for a problem that almost everyone acknowledges to be serious.
The new study was co-authored by Michael J. Malbin and Charles R. Hunt. Malbin is CFI’s co-founder and executive director as well as being Professor of Political Science at the University at Albany, SUNY. Hunt is a graduate research assistant at CFI as well as a Ph.D. student in Government and Politics at the University of Maryland.
Roughly two years ago, at about the time John Boehner’s speakership was unraveling, there was a significant public dispute among scholars about the causes of the polarization and gridlock that led to the Speaker’s undoing. Since then, the scholarly dispute has receded from public attention. However, the political and governing issues remain with us. The level of toxicity in Congress and many state legislatures remains high. As a result, there is ample reason to re-open the conversation.
One much-cited book at the time offered evidence claiming to show that removing limits on contributions to the political parties (to put them on an equal footing with Super-PACs) would strengthen the parties, leading to the election of more moderate public officials, thereby decreasing polarization in legislatures. Offered to support this was comparative state evidence claiming to show legislatures to be less polarized in states without contribution limits.
Subsequent to this book, another was published that showed polarization to be closely linked to the competition for majority control over the branches of government. Where legislators saw a plausible chance to gain or lose their party’s majority, they were less likely to cooperate across the aisle to reach policy solutions.
Both studies seemed plausible. Unfortunately, neither tested the two explanations against each other. The current CFI study does that. The results were definitive. Removing party contribution limits would do nothing to affect polarization in Congress or state legislatures.
Make no mistake: polarization is a major problem. However, there are also major problems with mega-donors encouraged by unlimited contributions, as well as with the low rates of donor participation by American citizens. Each should be addressed. This study makes us feel confident that one does not have to be at the direct expense of another.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>


“Transparency is Solution to Shameful Lack of Security For U.S. Voting Systems Revealed by NSA Leak”<http://electionlawblog.org/?p=93383>
Posted on June 27, 2017 7:24 am<http://electionlawblog.org/?p=93383> by Rick Hasen<http://electionlawblog.org/?author=3>
Lisa Rosenbloom for the ACLU.<https://www.aclu.org/blog/free-future/transparency-solution-shameful-lack-security-us-voting-systems-revealed-nsa-leak>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>


No, DHS Did Not Try to Hack Into Georgia’s Voting System<http://electionlawblog.org/?p=93381>
Posted on June 26, 2017 8:56 pm<http://electionlawblog.org/?p=93381> by Rick Hasen<http://electionlawblog.org/?author=3>
It is a common claim<https://twitter.com/TheRepLawyer/status/878275685516808192> I hear from the righ<https://twitter.com/TheRepLawyer/status/878270797487394816>t, and now an Inspector General report debunks it and Georgia SOS accepts the conclusion.
AP<https://www.washingtonpost.com/national/federal-review-debunks-georgia-election-hack-accusation/2017/06/26/9143f630-5aac-11e7-aa69-3964a7d55207_story.html?utm_term=.b96b2f2fe92e>:
Allegations that the federal government tried to hack Georgia’s election systems were unfounded, according to a letter the Department of Homeland Security’s inspector general sent Monday to Congress.
The conclusion comes more than six months after Georgia’s Republican Secretary of State Brian Kemp accused the department of attempting to “breach our firewall” a week after the November presidential election.
The letter said investigators with the inspector general’s Digital Forensics and Analysis Unit reviewed computer data from the federal agency, Kemp’s office and also interviewed a contractor. They also recreated the contractor’s actions. The data, Roth wrote, confirmed the contractor’s statements that on Nov. 15 he used a public page on Kemp’s website to verify security guards’ weapons certification licensing, which he then copied into a spreadsheet.
“Based on this work, we did not substantiate the allegations that DHS attempted to scan or infiltrate the Georgia computer networks,” the agency’s inspector general John Roth wrote in the letter. “Rather, the evidence demonstrated normal and appropriate use of Georgia’s public website.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“GOP wants new election maps for NC judges and prosecutors”<http://electionlawblog.org/?p=93379>
Posted on June 26, 2017 5:01 pm<http://electionlawblog.org/?p=93379> by Rick Hasen<http://electionlawblog.org/?author=3>
News & Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article158264799.html>
A proposal to redraw North Carolina’s court districts has emerged in the final days of the General Assembly’s session.
A state House judiciary committee considered proposed maps for Superior Court and District Court judges and district attorneys<http://ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=2017&BillID=h717&submitButton=Go> on Monday afternoon.
The redistricting divides some single urban districts into multiple smaller districts, which could benefit Republican candidates’ chances to win elections.
If this passes, expect more litigation in North Carolina. (But that goes without saying, right?)
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Posted in chicanery<http://electionlawblog.org/?cat=12>, judicial elections<http://electionlawblog.org/?cat=19>, redistricting<http://electionlawblog.org/?cat=6>


“Could This Put an End to Gerrymandering?”<http://electionlawblog.org/?p=93377>
Posted on June 26, 2017 1:50 pm<http://electionlawblog.org/?p=93377> by Rick Hasen<http://electionlawblog.org/?author=3>
Anita Earls <https://www.thenation.com/article/could-this-put-an-end-to-gerrymandering/> in The Nation:
For 30 years I have fought for election districts that are fair to people of color and make it possible for everyone to participate equally. I’ve filed lawsuits challenging districts drawn by Democrats and districts drawn by Republicans. At various times in our history, Democrats and Republicans alike have built barriers for racial minorities. But a new bill before Congress, the Fair Representation Act<mailto:http://www.fairvote.org/fair_rep_in_congress%23why_rcv_for_congress>—a comprehensive new approach that rethinks our approach to districting and voting itself—offers a real way to transcend the redistricting wars….
There is a way forward<https://www.brennancenter.org/sites/default/files/legal-work/How_the_Efficiency_Gap_Standard_Works.pdf>. If we want to stop gerrymandering, and move beyond constant litigation over how lines are drawn, we must rethink the way we do districting itself. That’s why the Fair Representation Act, recently introduced before Congress by Representative Don Beyer of Virginia and Representative Jamie Raskin of Maryland, creates such an exciting path forward. It would stipulate that all 435 US House members be elected by ranked-choice voting. States with fewer than six seats will elect all members at-large. Larger states will have independent commissions draw multi-winner districts of three, four, or five representatives.
Yes, at-large elections have historically been used to dilute the votes of racial-minority communities. But that’s been made possible by winner-take-all voting rules that allow a handful of voters to control all the seats. With ranked-choice voting, winning requires a lower share of the vote. FairVote has simulated the impact with two national plans: Both times, the number of racial minority voters in a position to elect a candidate of their choosing has soared—from 38 percent in our current system, to nearly 60 percent. The number of potential minority seats jumps significantly as well, from 71 now to 101.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


Understanding Today’s Travel Ban Partial Stay as Sound Politics<http://electionlawblog.org/?p=93375>
Posted on June 26, 2017 9:35 am<http://electionlawblog.org/?p=93375> by Rick Hasen<http://electionlawblog.org/?author=3>
Today’s partial stay <https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf> in the travel ban case is a bit puzzling as law but may make more sense as politics. Following up on my colleague Leah Litman’s excellent post<https://takecareblog.com/blog/on-the-travel-ban-the-supreme-court-says-stay-tuned> suggesting Court may never reach the merits, here are some thoughts.
I see the partial stay (which allows people with connections to U.S. family, business or university) as a political compromise. It has fingerprints of Breyer (especially the writing style) all over it. Likely with support from CJ Roberts, Kagan, Kennedy. It splits the difference–let’s each side declare victory, as is clear from early reactions–and says little on the merits.
And, as @LeahLitman<https://twitter.com/LeahLitman> says, there’s a good chance the Court never needs to reach the merits. So the partial stay avoids hardships but lets the government credibly claim it can keep out those most likely to do U.S. harm and preserves President’s general prerogatives. It might be administratively messy (as Leah suggests) and perhaps incoherent as law, but makes sense as centrist political compromise.
More broadly it lets us divide #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash> into three camps in these kinds of cases centrist block, hard right, and hard left:
centrists-Breyer, Kagan, Kennedy, Roberts
hard right–Alito, Gorsuch, Thomas
hard left–Ginsburg, Sotomayor
If this is right, then when Kennedy leaves and Roberts is the swing Justice, he’s likely to be more institutionalist than hard right.What I mean by that is Roberts is more likely to vote in the center for pragmatic reasons even if his ideology lines up with hard right.Best institutionalist option in #travelban<https://twitter.com/hashtag/travelban?src=hash> is this partial compromise stay, followed by a decision NEVER reaching merits. and today’s order seems to tee up that possibility nicely (if so, expect strong dissent from Gorsuch, Alito, Thomas).
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


Koch Bros Network Plans to Spend $300 to $400 Million on Politics and Policy During the 2018 Election Cycle<http://electionlawblog.org/?p=93373>
Posted on June 26, 2017 8:56 am<http://electionlawblog.org/?p=93373> by Rick Hasen<http://electionlawblog.org/?author=3>
This<http://www.politico.com/story/2017/06/24/koch-brothers-pence-trump-239928> is what Plutocrats United <https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453> looks like.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Plutocrats United<http://electionlawblog.org/?cat=104>


FairVote’s 25th: “Krist Novoselic and Rob Richie on Election Reform Efforts”<http://electionlawblog.org/?p=93371>
Posted on June 26, 2017 8:52 am<http://electionlawblog.org/?p=93371> by Rick Hasen<http://electionlawblog.org/?author=3>
CSPAN vide<https://www.c-span.org/video/?430425-4/washington-journal-krist-novoselic-rob-richie-discuss-election-reform-efforts>o coinciding with FairVote’s 25th anniversary (and release of new congressional legislation). More from the group on the release of legislation:
Today, Congressman Don Beyer (VA-08) will introduce the FairVote’s signature reform proposal<http://www.fairvote.org/fair_rep_in_congress?e=e752b2ebebf22bc5f38e358948c77544&utm_source=fairvote&utm_medium=email&utm_campaign=fra_introductio&n=2#why_rcv_for_congress> to Congress to mend our broken politics. Here’s how you can follow the day:
Capitol Hill Press Conference at 3pm ET
Congressman Beyer and supporters of the Fair Representation Act will hold a press conference on Capitol Hill from 3pm-4pm ET. We’ll be streaming the event on Facebook LIVE<http://www.fairvote.org/r?u=https%3A%2F%2Fwww.facebook.com%2FFairVoteReform&e=e752b2ebebf22bc5f38e358948c77544&utm_source=fairvote&utm_medium=email&utm_campaign=fra_introductio&n=3>. Tune in to follow the groundbreaking announcement of the bill being introduced. I encourage you to share our live-stream with your friends on Facebook!
Reception with Friends and Supporters of the Fair Representation Act from 6pm-8pm ET
After the bill has been introduced, board members and supporters will join Congressman Don Beyer for a reception to celebrate the introduction of the Fair Representation Act and FairVote’s 25th anniversary year. If you haven’t RSVP’d to join us in person, you can follow us on Facebook LIVE<http://www.fairvote.org/r?u=https%3A%2F%2Fwww.facebook.com%2FFairVoteReform&e=e752b2ebebf22bc5f38e358948c77544&utm_source=fairvote&utm_medium=email&utm_campaign=fra_introductio&n=4>, where we will live-stream remarks from members of Congress and allied organizations.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


Justice Gorsuch Already Showing Himself to Be Among Court’s Most Conservative Justices<http://electionlawblog.org/?p=93369>
Posted on June 26, 2017 8:26 am<http://electionlawblog.org/?p=93369> by Rick Hasen<http://electionlawblog.org/?author=3>
There was a lot of dissembling when Justice Gorsuch was nominated to the Supreme Court, that he was some kind of blank slate, without preconceived ideas about how he would rule as a Supreme Court Justice. Of course, this was a ruse to blunt public criticism. Many of us knew that he would be a very conservative Justice—the only question is if he will be more like Scalia, Thomas, or Alito.
J. Gorsuch has been on the Court only a few months, and only heard one month’s worth of oral arguments. But today, on the last day of the Supreme Court’s term, we got a very good indication he will be most like Justice Scalia, and often voting with Justices Thomas and Alito, making Justice Gorsuch one of the most, or most, conservative Justices. We also got indications (from the fact that he wrote four separate opinions related to orders today, and joined a fifth–by Justice Thomas) that he will not be shy about getting the Court involved in the most sensitive issues, from gun rights to gay rights. He will not be like Chief Justice Roberts in considering institutional legitimacy and comity.
Already today, Justice Gorsuch dissented from the partial stay<https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf> in the travel ban case, dissented<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf> from a gay rights case involving the right of same sex parents to be on birth certificates, and dissented from the Court’s decision not to hear<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf> a law involving a California concealed carry gun law. Justice Gorsuch also wrote separately in the Trinity Lutheran case<https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf> to take a position further than the Court on the ability of the government to aid religion.
Finally, and what makes me think Justice Gorsuch will be more like Scalia than Alito or Thomas is Justice Gorsuch’s pro-criminal defendant statement in the Hicks case<https://www.supremecourt.gov/orders/courtorders/062617zor_8759.pdf>, over Chief Justice Roberts’ dissent. Justice Scalia, while very conservative, had a pocket of pro-criminal defendant cases. I expect Gorsuch to have the same.
But on most of the issues that get the greatest public attention—abortion, gay rights, voting rights, gun rights, federal power–I expect Justice Gorsuch to be on the far right of the Court. And given his age, he’s likely to be there for a generation or more.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


--
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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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