[EL] ELB News and Commentary 3/11/17

[Rick Hasen]

Analysis: Texas Redistricting Decision Major Victory for Voting Rights Bar and May Pave Way for Texas to Be Back under Federal Supervision<http://electionlawblog.org/?p=91555>
Posted on March 11, 2017 10:27 am<http://electionlawblog.org/?p=91555> by Rick Hasen<http://electionlawblog.org/?author=3>
Last night<http://electionlawblog.org/?p=91545> I linked to the extensive ruling <http://electionlawblog.org/wp-content/uploads/Perez-congress-opinion-3-10-2017.pdf> and findings of fact and conclusions of law<http://electionlawblog.org/wp-content/uploads/Perez-finding-of-fact-3-10-2017.pdf> in a very long-running dispute about whether Texas’s congressional districting were a violation of the Voting Rights Act and/or the Constitution. I have now had a chance to give an initial review to the opinion. I believe this is a major victory for voting rights plaintiffs (and the United States) in proving that some of the congressional district plans violated Section 2 of the Voting Rights Act, some were unconstitutional racial gerrymanders, and some were passed with racially discriminatory intent. The ruling, if the Supreme Court allows it to stand, will lead to new maps that increase minority voting representation, helping both Hispanics and Democrats in Texas. There is good reason to believe the Supreme Court would allow this ruling to stand, as it closely tracks Justice Kennedy’s views of the issues in this area.  And perhaps most importantly, the ruling provides the predicate to put Texas back under federal approval for its voting rules, for up to 10 years, either in this case or in the pending Texas voter id case. (The one caveat here is that it would be the AG Sessions’ DOJ which would do the preclearance, and I would not expect them to aggressively enforce the non-discrimination requirement). Further, as we are getting close to the end of the decade, this process will soon start again, only this time (unless preclearance is put in place in time) without federal oversight over the plans to start.
Some more detailed thoughts below.
1. Nuance and detail.  The majority engaged in an extremely careful, fact intensive view of the record. It was not just that all the plaintiffs’ claims were accepted or rejected. The court looked very carefully at each claim, and at the details of each district and the alternatives. In examining majority Hispanic districts in “South-West” Texas for example, the court looked not only at the number of Hispanic voters and their turnout, but also whether the plans joined Hispanic voters who had little in common with one another as a matter of economy and geography. This tracks the approach of Justice Kennedy in the Supreme Court’s 2006 LULAC case. The care with which the majority approached these issues makes it quite likely that a majority of the Supreme Court will accept all or most of these findings. Judge Smith’s dissent does not engage in a detailed counter-analysis to provide a hook for a contrary conclusion. He lays all of his firepower on the claim that the issue is moot, and it certainly does not appear moot on at least the claim for intentional discrimination under Section 3 (as I explain below). On the merits, Judge Smith seems to think it is all politics, and not race (more on that below too).
2. Bail in. It probably is not obvious to those not steeped in this area, but the big fight here is not about these particular districts (although that is important) but whether Texas gets put back under Section 5 preclearance for up to 10 years. That is possible under Section 3, the “bail-in” provision of the VRA which gives a court the ability to impose preclearance after a finding of intentional race discrimination. That finding is here, and the case is still going to go forward on that issue (as well as some other issues). Further, the finding of intentional race discrimination will almost certainly be relied on if, as I expect, the trial court in the Texas voter id case, finds intentional racial discrimination and orders bail in. So this is huge. (The caveat is how a Trump DOJ would enforce such rights if Trump is still in office. I’m not optimistic, and there’s no appeal of a DOJ decision to grant preclearance. Preclearance of post-2020 redistricting will depend on who wins the 2020 presidential elections.)
3. Race or party. I have been writing a lot about the race or party question<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>: what to do about claims of racial discrimination when, as in the American South, race and party are so closely correlated. The majority approach, is subtle and sophisticated on this question, and seems to fall mostly on the party as a proxy for race (“party as race”) approach to the question. When you make it harder for minority voters to exercise political power for your own political reasons (such as protecting incumbents or your party), this counts as intentional race discrimination. Judge Smith takes the “race or party” approach, and he believes he knows what’s “really” going on: this is all about party, rather than race. It is either blind to the realities or ignoring the fact that these two criteria are really inseparable in Texas.
4. The remedy and what comes next. The trial court does not order anything to happen right now. The parties will fight about the remedy. Likely Texas will get a chance to redraw districts with some deference to Texas as to that which is not a violation. The parties will fight over the plans. And this will get dragged out. But presumably there will be new maps in place for the 2018 congressional elections, unless the Supreme Court intervenes. I fully expect Texas to try to get the Supreme Court to intervene in the interim. At most these lines would last 2 elections, and then we are back to a new round of redistricting. And this shows what is lost by preclearance. We’ve now had three elections that arguably should never have taken place under these lines.
5. The new role of DOJ. As in the Texas voter id case, I expect the United States to change sides, and now side with Texas. The private voting rights plaintiffs will continue to push this litigation, however. The hard part, as mentioned above, is how DOJ would manage new preclearance if there is bail-in.
6. Judge Smith’s attack on the DOJ. I mentioned last nigh<http://electionlawblog.org/?p=91545>t the attack by Judge Smith on the Obama DOJ. This is very unusual and intemperate, but it reflects the tremendous hostility on the right to how the Obama DOJ handled things, much like how the left hated the Bush DOJ. It is now pretty clear that DOJ is the focus of a lot of the Administration’s priorities and fights, and it is no longer above the political fray (if it ever was).
7. Mootness. If the Supreme Court agrees with Judge Smith that the case is moot (at least as to the drawing of the districts, but maybe not as to bail in), then this case would go away. I did not find the mootness claim of Judge Smith convincing, but it does provide a technical way out for a Supreme Court to side with Texas.
8. A victory, but danger ahead. This is a huge victory for voting rights plaintiffs, but I am increasingly pessimistic in the medium term. I expect the post-Kennedy Gorsuch Supreme Court to be quite hostile to voting rights claims, allowing much partisan gerrymandering and minority vote dilution without adequate court supervision. Much will depend upon what Justice Kennedy leaves in place before he goes, and how quickly a new conservative majority would look to dismantle it.
[This post has been updated.]

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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Why Did Federal Court Issue 600 Pages of Opinions and Findings in Non-Urgent Texas Redistricting Case?<http://electionlawblog.org/?p=91552>
Posted on March 11, 2017 8:12 am<http://electionlawblog.org/?p=91552> by Rick Hasen<http://electionlawblog.org/?author=3>
I noted last nigh<http://electionlawblog.org/?p=91545>t the rulings in the long-awaited Texas redistricting case.
I and many others have been extremely critical of the very long delays in the case. I see the release late Friday night when early Monday morning would do as either a signal that this was put out the very minute it was ready.
It was Judge Smith, in the dissent, who defended the delay, and said the record was huge and the findings difficult:
The majority’s massive product, including its opinion and its findings and conclusions, is commendable, to say the least. I trust that the attorneys and litigants appreciate the efforts of my two colleagues and their staffs. Though I disagree with a good number of their ultimate conclusions, no one can reasonably question the integrity and dedication that underlie each statement and every decision. The majority’s detailed recitation of the record is remarkable in its detail. It is evenhanded, thorough, and fair. It will permit the Supreme Court, on direct appeal, the opportunity to know every nuance of the case in the unlikely event that that Court concludes that the matter is not moot.
There is good news and bad news from the fact that the majority has tackled this colossal task with such proficiency. The good news is that, as I have already said, the reviewing court—as well as the public and, perhaps ultimately the legislature—has the advantage of a full record and a complete explication of the majority’s conclusions. The bad news is that that project has taken about 2 1/2 years to complete, measured from the end of trial in August 2014.
No one can reasonably criticize the delay. Some of the parties have made repeated but polite inquiries and have filed motions reminding the court of the need for expeditious resolution in light of the statutory schedule for the 2018 elections. I can appreciate the litigants’ and attorneys’ frustration that these proceedings have pended for almost six years. But assuming that this panel needed to wade through the huge record and caselaw to announce a result (beyond a declaration of mootness), the time it spent was absolutely necessary.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


VP Pence “Voter Fraud” Commission Has Not Even Contacted Usual Suspects Yet About Joining<http://electionlawblog.org/?p=91550>
Posted on March 11, 2017 8:00 am<http://electionlawblog.org/?p=91550> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler<http://www.npr.org/2017/03/11/519709448/president-trumps-voter-fraud-investigation-is-off-to-a-slow-start?sc=17&f=1014&utm_source=iosnewsapp&utm_medium=Email&utm_campaign=app> for NPR:
Hans von Spakovsky<http://www.heritage.org/staff/hans-von-spakovsky> of the Heritage Foundation says he’s neither been asked to participate in the investigation or been consulted about it. “Which seems a bit odd given that I’m one of the leading experts on voter fraud,” he wrote in an e-mail. Von Spakovsky is a former Justice Department official, who’s been talking and writing about the issue for well over a decade and maintains a database of voter fraud cases around the country.
What about David Becker, author of a 2012 Pew Center on the States report<http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/pewupgradingvoterregistrationpdf.pdf> that Trump and White House aides have cited numerous times — often inaccurately — to back up their claims of widespread voter fraud? Becker says he hasn’t been consulted either, and doesn’t know of anyone who has. (For the record, Becker says his study found that state voter rolls were filled with outdated and duplicate registrations, but no evidence of fraud.)
Maybe Tammy Patrick<https://bipartisanpolicy.org/person/tammy-patrick/>, a former Arizona election official, who served on President Obama’s bipartisan commission on election administration? She’s a highly respected — and well connected — expert in the field. But she hasn’t heard anything either.
Catherine Engelbrecht? She heads True the Vote<https://truethevote.org/>, a grassroots group based in Texas that has been at the forefront of a national campaign to ferret out fraudulent votes. “I haven’t been contacted,” she replied.
But a few people, when contacted, were more vague.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Breaking: District Court, Splitting 2-1, Finds Some Texas Congressional Districts Violate Voting Rights Act or Constitution<http://electionlawblog.org/?p=91545>
Posted on March 10, 2017 8:03 pm<http://electionlawblog.org/?p=91545> by Rick Hasen<http://electionlawblog.org/?author=3>
The long awaited lengthy opinion on the congressional plan, with a dissent by Judge Smith, is here<http://electionlawblog.org/wp-content/uploads/Perez-congress-opinion-3-10-2017.pdf>. The numerous findings of fact and conclusions of law are here<http://electionlawblog.org/wp-content/uploads/Perez-finding-of-fact-3-10-2017.pdf>. (The court has not released findings yet on the state House challenge). If this stands at the Supreme Court it could lead to the creation of more Texas minority opportunity districts.
I will have a fuller analysis once I have read all these pages. But for now, here’s a taste.
From the majority opinion:
Plaintiffs have established a § 2 violation, both in terms of intent and effect, in South/West Texas. Plaintiffs have shown that seven compact majority-HCVAP districts could and should be drawn there that would substantially address the § 2 rights of Hispanic voters in South/West Texas, including Nueces County. Defendants’ decision to place Nueces County Hispanic voters in an Anglo district had the effect and was intended to dilute their opportunity to elect their candidate of choice.
Meanwhile, race predominated in the drawing of CD35, and Defendants’ decision to place majority- in Travis County was not to comply with the VRA but to minimize the number of Democrat districts in the plan overall. Plaintiffs have established a Shaw-type equal protection violation with regard to CD35. Plaintiffs also establish a Shaw-type equal protection violation with regard to CD23. In addition, Defendants’ manipulation of Latino voter turnout and cohesion in CD23 denied Latino voters equal opportunity and had the intent and effect of diluting Latino voter opportunity. Nueces County Hispanics and Hispanic voters in CD23 have proved their § 2 results and intentional vote dilution claims. The configurations of CD23, CD27, and CD35 in Plan C185 are therefore invalid.
Plaintiffs fail to proffer a demonstration plan accompanied by sufficient evidence to demonstrate that additional compact minority districts could be drawn in DFW or Houston, taking into account traditional redistricting principles and communities of interest. However, they are not precluded from raising § 2 results claims with regard to Plan C235 during the trial on that plan. Plaintiffs have proved intentional vote dilution through packing and cracking in DFW and also establish a Shaw-type racial gerrymandering claim with regard to CD26, but not CD6. However, they fail to prove intentional vote dilution in the Houston area, and fail to prove that mapdrawers acted with racially discriminatory purpose when drawing the districts represented by the African-American Congresspersons.
Judge Smith dissented, believing that the case is moot. But he reserved his sharpest words for the U.S. Department of Justice’s intervention in this case:
And then there is the United States, appearing through attorneys from the Department of Justice. I have no criticism of their knowledge of the law, and their zeal is, to say the least, more than adequate. But they entered these proceedings with arrogance and condescension. One of the Department’s lawyers even exhibited her contempt for Texas and its representatives and her disdain for these proceedings by regularly rolling her eyes at State witnesses’ answers that she did not like, and she amused herself by chewing gum while court was in session.
It was obvious, from the start, that the DoJ attorneys viewed state officials and the legislative majority and their staffs as a bunch of backwoods hayseed bigots who bemoan the abolition of the poll tax and pine for the days of literacy tests and lynchings. And the DoJ lawyers saw themselves as an expeditionary landing party arriving here, just in time, to rescue the state from oppression, obviously presuming that plaintiffs’ counsel were not up to the task. The Department of Justice moreover views Texas redistricting litigation as the potential grand prize and lusts for the day when it can reimpose preclearance via Section 3(c).
Of course, these are just personal impressions based on demeanor and attitude. More objectively verifiable are the witch hunts and fishing expeditions that the DoJ conducted in pursuit of its goals. I give two examples….
The DoJ wholly failed, but not for lack of trying. There was, and is, no smoking gun in this record, nor has the United States shown that the State hid or failed to disclose one. The DoJ’s scheme to build a record on which to urge opt-in relief via Section 3(c) has initially failed. Of course, if this court is deemed to have jurisdiction, the judges will consider any remaining claims pressed by any party, including Section 3(c) claims, as appropriate.
The Department of Justice has overplayed its hand and, in the process, has lost credibility. The wound is self-inflicted. The grand theory on which its intervention was mainly based—that invidious racial motives infect and predominate in the drawing of the 2011 district lines—has crashed and burned.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>


NC Gov, AG File Reply Brief Arguing #SCOTUS Should Dismiss Cert. Petition in Controversial Voting Case<http://electionlawblog.org/?p=91542>
Posted on March 10, 2017 7:09 am<http://electionlawblog.org/?p=91542> by Rick Hasen<http://electionlawblog.org/?author=3>
Brief:<http://electionlawblog.org/wp-content/uploads/2017-3-9-Reply-Brief-in-Support-of-Petitioners-Motion-to-DismissUnder-R....pdf>
All of the petitioners in this case have moved to withdraw the pending petition. Thus, under normal operation of this Court’s rules, the petition should be dismissed. See S. Ct. R. 46.2(a).
Seeking to derail this ministerial process, the North Carolina General Assembly has fired a barrage of state-law arguments, seeking to create confusion about who controls state-related litigation in North Carolina. The very existence of these state-law issues confirms that the petition here should be dismissed. A state-law dispute over which branch of North Carolina government controls state-related litigation does not belong in this Court.
But even if this Court were to address the state-law arguments that the General Assembly is trying to raise here, those arguments lack merit. The statute that is the linchpin of the General Assembly’s arguments—Section 120-32.6(b) of the North Carolina General Statutes—only allows “the General Assembly [to] hire[ ] outside counsel to represent the General Assembly.” N.C. Gen. Stat. § 120-32.6(b) (emphasis added). It does not empower the General Assembly to step into the shoes of the Attorney General and control litigation on behalf of the State itself. In addition, Section 120-32.6(b) applies only to lawsuits in which the General Assembly is one of the “named parties.” During the three and a half years of this litigation, the General Assembly has never been a party to it. Indeed, before this late juncture, it has never sought to make itself a named party.
Separately, the General Assembly’s attempt to inject state-law-based professional responsibility issues into this case is as unpersuasive as it is
inappropriate. The General Assembly is not a party to this case, so it is not a client of the Attorney General here. The Attorney General is therefore under no professional or legal obligation to abide by the General Assembly’s preferences on the conduct of this litigation. Nor has any conflict of interest arisen from Attorney General Stein’s testimony as a trial witness when he was a State Senator. The Attorney General’s testimony, which mainly involved matters of public record, did not give him a “personal interest” that limits his ability to fulfill his duty to represent the State. In addition, the bar on lawyers’ acting as witnesses and advocates at trial does not extend to a lawyer’s advocacy on appeal. In sum, the General Assembly’s ethical arguments are not only irrelevant, but meritless.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“Iowa House GOP passes voter ID bill, sends to Senate”<http://electionlawblog.org/?p=91540>
Posted on March 9, 2017 10:58 am<http://electionlawblog.org/?p=91540> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://www.nonpareilonline.com/news/state/wire/iowa-house-gop-passes-voter-id-bill-sends-to-senate/article_196dceae-b947-5d08-be6c-bb91a836a562.html>
The Republican-controlled House has approved a contested voter identification bill along party lines after forcing debate to end.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


Pam Fessler: “More States Propose Voter ID Laws”<http://electionlawblog.org/?p=91538>
Posted on March 9, 2017 8:11 am<http://electionlawblog.org/?p=91538> by Rick Hasen<http://electionlawblog.org/?author=3>
Listen at NPR.<http://www.npr.org/2017/03/09/519382840/more-states-propose-voter-id-laws?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


--
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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