[EL] ELB News and Commentary 3/2/17

Wed Mar 1 21:30:35 PST 2017

“Dartmouth researchers find no evidence of bused-in voters”<http://electionlawblog.org/?p=91432>
Posted on March 1, 2017 9:27 pm<http://electionlawblog.org/?p=91432> by Rick Hasen<http://electionlawblog.org/?author=3>
Concord Monitor:<http://www.concordmonitor.com/dartmouth-researchers-no-voter-fraud-NH-8394339>
If crowds of Massachusetts residents came into New Hampshire on Election Day as part of widespread voter fraud – a claim made by President Donald Trump’s administration and others – they managed to do so without creating any spikes in voter turnout and without creating any unusual changes in town-by-town support for Kelly Ayotte.
That’s the conclusion of a study from a trio of Dartmouth researchers, whose work follows their previous studies that failed to find evidence of any voter fraud during the 2016 presidential election in six states.
“Because of these results and a total lack of photographic evidence of buses infiltrating New Hampshire on Election Day 2016, we believe that Trump’s claims about a tainted election in New Hampshire are at best unsupported and at worst an intentional mistruth,” says the report from two professors and a postdoctoral fellow.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Measure S mailers are probably protected free speech, law expert says”<http://electionlawblog.org/?p=91430>
Posted on March 1, 2017 6:17 pm<http://electionlawblog.org/?p=91430> by Rick Hasen<http://electionlawblog.org/?author=3>
KPCC:<http://www.scpr.org/programs/take-two/2017/03/01/55369/measure-s-mailers-are-probably-protected-free-spee/>
You might have gotten a nasty surprise in the mail recently that read, “County of Los Angeles Sheriff’s Department. EVICTION NOTICE.”
It’s not real, though. It’s a political mailer.
And Los Angeles County officials were not happy.
“The political mailer depicted in the photos attached to this message is counterfeit and could mislead members of the public to believe they are subject to legal action by the Sheriff’s Department,” the Sheriff’s department said in a statement.<http://www.scpr.org/news/2017/02/24/69373/la-sheriff-s-department-sends-cease-and-desist-ove/>
Sheriffs then sent a cease and desist order to the campaign behind Measure S.
But then the campaign shot back that officials were trying to “censor the free speech rights of the proponents.”<http://www.scpr.org/news/2017/02/28/69406/measure-s-campaign-says-controversial-mailers-are/>
Could a misleading mailer like this be protected by the First Amendment?
“It probably is,” says Rick Hasen, election law expert at UC-Irvine. “It’s really a First Amendment problem to try to limit what people say in campaigns, even if it’s false.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>

Bethune-Hill News Roundup<http://electionlawblog.org/?p=91426>
Posted on March 1, 2017 5:37 pm<http://electionlawblog.org/?p=91426> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT<https://www.nytimes.com/2017/03/01/us/politics/supreme-court-virginia-house-delegates-gerrymandering.html>
WaPo<https://www.washingtonpost.com/politics/courts_law/supreme-court-says-virginia-redistricting-must-be-reexamined-for-racial-bias/2017/03/01/3bde8b66-fe99-11e6-99b4-9e613afeb09f_story.html?utm_term=.87cfd7809a35>
AP<http://www.startribune.com/supreme-court-mainly-rules-for-black-voters-in-virginia-case/415101544/>
Bloomberg<https://www.bloomberg.com/politics/articles/2017-03-01/supreme-court-orders-new-look-at-virginia-voting-district-suit>
LAT<http://www.latimes.com/politics/washington/la-na-essential-washington-updates-supreme-court-balks-at-reining-in-1488384626-htmlstory.html>
USA Today<http://www.usatoday.com/story/news/politics/2017/03/01/supreme-court-race-election-districts-virginia-north-carolina/98577348/>
Reuters<http://www.reuters.com/article/us-usa-court-redistricting-idUSKBN1684VG>
WSJ<https://www.wsj.com/articles/supreme-court-revives-gerrymander-challenge-to-virginia-legislative-districts-1488396113>
HuffPo<http://www.huffingtonpost.com/entry/supreme-court-virginia-gerrymandering_us_58b6ecbae4b0a8a9b787fac2>
Amy Howe<http://www.scotusblog.com/2017/03/opinion-analysis-court-sends-majority-minority-districts-back-another-look-virginia-gerrymandering-case/> (SCOTUSBlog)
Politico<http://www.politico.com/story/2017/03/virginia-gerrymandering-supreme-court-235565>
More to come
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Stetson Symposium: Can Corporations Be Good Citizens? How Corporate Law, Litigation, Lobbying and Money in Politics Intersect<http://electionlawblog.org/?p=91424>
Posted on March 1, 2017 5:25 pm<http://electionlawblog.org/?p=91424> by Rick Hasen<http://electionlawblog.org/?author=3>
The Stetson Law Review will be hosting a symposium<http://www.stetson.edu/law/conferences/homepages/law-review-symposium.php> on the intersection of election law and corporate law on Friday, March 24, 2017.
Great line-up and live webcast!

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, lobbying<http://electionlawblog.org/?cat=28>

“Why Gorsuch could lead court in wrong direction”<http://electionlawblog.org/?p=91422>
Posted on March 1, 2017 2:42 pm<http://electionlawblog.org/?p=91422> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece <http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/> for CNN Opinion.  It begins:
It’s no big deal, the thinking goes, that the Senate seems likely to confirm Judge Neil Gorsuch for the Supreme Court, as President Trump urged in his speech<http://www.cnn.com/2017/02/28/politics/donald-trump-speech-transcript-full-text/> Tuesday night.
The President encouraged this line of thought — that elevating the judge from the United States Court of Appeals for the 10th Circuit “fills [Justice Antonin] Scalia’s seat” with another conservative and just returns the court to a five-justice conservative majority that it had before Scalia passed away last February. Nothing to see here, supposedly; the real action will come when swing Justice Anthony Kennedy or one of the liberal justices leaves, moving the court further to the right. Democrats should hold their fire until it counts.
Unfortunately, this approach obscures the fact that keeping the steady course with a conservative replacement for Scalia will be bad enough across a range of topics important to many Americans, from environmental protection to immigration law to the ability of labor unions to collect dues from their members. Even though Gorsuch is not a Scalia clone, things are likely to be pretty bad on these key issues, because Gorsuch is likely to vote like Scalia, and the court with Scalia already was moving in a very bad direction.
Consider how things will likely get worse in two areas that are the focus of my work, campaign finance and voting rights.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Ethics, Money, & Politics Conference March 24 in St. Louis<http://electionlawblog.org/?p=91420>
Posted on March 1, 2017 1:23 pm<http://electionlawblog.org/?p=91420> by Rick Hasen<http://electionlawblog.org/?author=3>
Looking forward to participating in this event <http://cepl.umsl.edu/cepl-conference-2017-ethics-money-politics-2/> put on by the Center for Ethics in Public Life at the University of Missouri, St. Louis.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, conflict of interest laws<http://electionlawblog.org/?cat=20>

Remember When I Said FEC Commissioner Ravel Could Be Replaced with a Non-Democrat Deregulationist?<http://electionlawblog.org/?p=91418>
Posted on March 1, 2017 1:18 pm<http://electionlawblog.org/?p=91418> by Rick Hasen<http://electionlawblog.org/?author=3>
I got a lot of pushback for making that suggestion, as in this NYT piece<https://www.nytimes.com/2017/02/19/us/politics/fec-elections-ann-ravel-campaign-finance.html>. People said I was giving him ideas, but I have no doubt this occurred to them before I mentioned it.
But now HuffPo reports<http://www.huffingtonpost.com/entry/trump-administration-pulling-regulatory-nominees_us_58b703dbe4b0284854b32eba?dmhvloc8y1cbx1or> this is coming closer to reality:
The administration’s efforts, these sources told The Huffington Post, could result in commissions tasked with overseeing trade enforcement, election law, and financial and energy regulation being stacked with nominees sympathetic to the president.
Pending positions on the Federal Communications Commission, Federal Trade Commission, Commodity Futures Trading Commission, U.S. Securities and Exchange Commission, Federal Election Commission and Federal Energy Regulatory Commission are among those at stake. And President Donald Trump<http://www.huffingtonpost.com/topic/donald-trump>, according to these sources, is looking to rescind both Republican-backed nominees as well as Democratic ones.
By statute, these five- and six-member commissions can have no more than three members from the majority party. For six-member commissions, that assures bipartisan cooperation ― or, as has happened at the FEC, utter gridlock. The narrow majority on five-member commissions requires a commission to govern closer to the center. A chair who loses just one vote from his or her own party loses everything.
As the article suggests, the real question is whether Senate Majority Leader Mitch McConnell will go along with this.
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Posted in federal election commission<http://electionlawblog.org/?cat=24>

Today’s Important Decision in Bethune-Hill<http://electionlawblog.org/?p=91415>
Posted on March 1, 2017 11:21 am<http://electionlawblog.org/?p=91415> by Richard Pildes<http://electionlawblog.org/?author=7>
As someone who litigates these cases and has written extensively about racial redistricting, I consider today’s decision a major new precedent with broad implications, not just for racial gerrymandering issues, but for partisan gerrymandering ones potentially as well.  Because I am involved in pending litigation on these issues, I will be cautious about how much I say, but I do not want journalists to get the wrong impression about the significance of this case.
On racial gerrymandering and the Constitution, the Court’s opinion today is more forceful and clear than it has ever been that unconstitutional racial gerrymandering can occur even when a State draws districts that look regular and follow traditional districting principles.  As the Court holds, “a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering.”  Similarly, “[r]ace may predominate even when a reapportionment plan respects traditional principles.”  Litigants and advocates are going to differ in whether they like the clarity of this principle, but this clarification from the Court is extremely significant.  Lower courts have been in confusion about this very important question, as evident in today’s reversal.  This principle is going to make it significantly easier for plaintiffs to win racial gerrymandering claims.  Conversely, States are not going to be able to move voters around by race without adequate justification, yet claim that they can do so because they nonetheless are following traditional districting principles.
In addition, the Court indicated considerable sophistication about the changing dynamics through which States engage in unconstitutional racial gerrymanders.  As the Court points out, the leading prior cases all involved ones where legislatures had drawn contorted district boundaries for at least some of the district lines.  Now, the Court is beginning to see cases in which legislatures are no longer doing that, yet still using unjustified racial classifications.  As Justice Kennedy writes: “Yet the law responds to proper evidence and valid inferences in ever-changing circumstances, as it learns more about ways in which its commands are circumvented.”  This is a strong signal to lower courts not to apply prior cases formalistically or mechanically, but to ferret out unconstitutional racial gerrymanders that take ever-evolving form.
Moreover, the Court had decided the major precedent leading up to today’s decision, Alabama Legislative Black Caucus (which I argued) by a 5-4 vote.  But the dissenting Justices (Scalia, Alito, Roberts, Thomas) dissented on procedural grounds; it had been unclear how sympathetic they would be to the position of Southern states that have to comply with the Voting Rights Act versus the view that the Constitution sharply constrains the States, even when they purport to comply with the VRA.  Justice Alito has now made clear that, on the merits, he views the Constitution as sharply constraining the States here and would have been in the majority in the Alabama case.  As Justice Thomas puts it in his separate opinion:  “Despite my sympathy for the State, I cannot ignore the Constitutional clear prohibition on state-sponsored race discrimination.”  One might have expected Justice Thomas to take that view, but he too did not reach the merits in the Alabama case.  As an aside, note that in both the Alabama and Virginia cases, the Court is addressing Republican-drawn districting plans.   The fact that such a substantial majority of Justices are prepared to police aggressively the State’s use of race in redistricting is also significant, in light of the 5-4 vote in Alabama.
Finally, there is a direct relationship, potentially, between today’s decision and a central issue in the partisan gerrymandering case from Wisconsin, Whitford v. Gill.  The case is presently on appeal to the Supreme Court.  A crucial issue there is Wisconsin’s position that, because it followed traditional districting principles in drawing its districts, it cannot have created an unconstitutional partisan gerrymander. If the Court applies the same principle in the partisan case as in the race case today and holds that what would otherwise be an unconstitutional partisan gerrymander cannot be immunized merely because the legislature the districts comply with traditional districting principles, that would enormous consequence for the Whitford case on appeal to the Supreme Court.
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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
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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