[EL] ELB News and Commentary 3/14/17

[Rick Hasen]

Michael Li: "What's Next in the Texas Redistricting Case?"<http://electionlawblog.org/?p=91603>
Posted on March 14, 2017 7:25 am<http://electionlawblog.org/?p=91603> by Rick Hasen<http://electionlawblog.org/?author=3>

I asked Michael Li<https://www.brennancenter.org/expert/michael-li>, who knows Texas redistricting<http://txredistricting.org/> issues as well as anyone, to explain some of the confusion surrounding the next stages of the case.  The following guest post is very informative:

What's Next in the Texas Redistricting Case?

Last Friday's late night 2-1 decision<http://electionlawblog.org/?p=91545> in the Texas redistricting case inevitably brings the big question - what next? But perhaps fittingly for a case where it took over 2.5 years after trial to get a decision (and only a partial one at that), the question is a bit harder to answer than in the normal redistricting case. There are several reasons why.
1.       The court needs to find a way to rule on the 2013 map. While Friday's ruling was a sweeping one, it also was a ruling on an old plan - the state's 2011 congressional plan (Plan C185<http://gis1.tlc.state.tx.us/?PlanHeader=PLANc185>). But Texas never implemented that plan. Instead, it was replaced in early 2012 by a court-ordered interim map (Plan C235<http://gis1.tlc.state.tx.us/?PlanHeader=PLANc235>) that Texas subsequently adopted on a permanent basis in 2013 without changes. This fact led Fifth Circuit Judge Jerry Smith to argue in his dissent that claims about the 2011 map had been mooted by the 2013 map. Texas Attorney General Ken Paxton echoed this position in a press release<https://www.texasattorneygeneral.gov/news/releases/ag-paxton-statement-on-redistricting-panels-decision> Monday in which he said<https://www.texasattorneygeneral.gov/news/releases/ag-paxton-statement-on-redistricting-panels-decision> no changes whatsoever were needed to the current map.

Things aren't quite so simple, however. For one thing, several of the districts that the majority found problematic in the 2011 plan also exist unchanged in the 2013 plan. Take, for example, TX-35<http://www.fyi.legis.state.tx.us/fyiwebdocs/PDF/congress/dist35/m1.pdf> - the long, spindly district between Austin and San Antonio represented by Lloyd Doggett - which the court found had been drawn predominately on the basis of race and could not be justified as a majority-minority district under Section 2 of the Voting Rights Act. Ditto TX-27<http://www.fyi.legis.state.tx.us/fyiwebdocs/PDF/congress/dist27/m1.pdf>, where the court found the placement of the large Latino population of Nueces County in "an Anglo district had the effect and intent to dilute" Latino votes. Both these districts are exactly identical in the two maps, and the changes needed to address infirmities identified by the court could be significant. Dismantling of TX-35, in particular, likely would require sizeable changes to districts in Central Texas as the Austin and San Antonio portions of TX-35 get separated and reallocated. (General Paxton may be on firmer ground in North Texas where the court's interim plan redrew TX-33 to create an additional minority opportunity district in the DFW area, thus arguably addressing the bulk of the problems the court found in the region.)

But if General Paxton is wrong about the eventual need for changes to the configuration of Texas' current congressional districts, he is right that no changes are required at this time. That's because the court bifurcated trial on claims about the 2011 and 2013 maps and thus far has held trial and ruled only on the 2011 congressional map.

To block use of the current map, the plaintiffs will need to find a way to tee up and get a ruling on the 2013 map. There are at least a couple of ways this could happen. One way would be for the court to proceed with trial on the 2013 claims. But given the very substantial overlap of factual allegations about the two maps, a full trial might not be necessary. It is possible that the plaintiffs could file a motion for an injunction of the 2013 map and ask for an expedited ruling. If granted, this would then put Texas in the position of needing to adopt a remedial map before candidate filing opens on November 14 for the 2018 primary.

2. There's the question of what to do about the "bail in" claims.

At the same time, another issue could impact how the Texas case plays out and that's the question of what to do with the plaintiffs' claims to have Texas put back under preclearance coverage using the "bail in" provisions<http://www.yalelawjournal.org/note/the-voting-rights-acts-secret-weapon-pocket-trigger-litigation-and-dynamic-preclearance> of Section 3 of the Voting Rights Act.

The plaintiffs have asserted that the Texas Legislature intentionally discriminated against minorities when it drew the 2011 congressional plan. And while that plan is no longer in effect, the plaintiffs have argued that intentional discrimination in the drawing of the plan can and should serve as the basis for bail-in.

But although the court agreed Friday with the plaintiffs that the 2011 plan was intentionally discriminatory, the timing of bail-in proceedings remains unclear. That's because in addition to claims challenging the 2011 congressional plan, most of the plaintiffs also raised intentional discrimination claims about 2011 Texas state house plan (Plan H283<http://gis1.tlc.state.tx.us/?PlanHeader=PLANh283>), which the court has not yet decided. If the court decides to wait to hear the bail-in claims until it decides the state-house claims - a logical enough position given similar and often overlapping factual allegations - it could still be some time until the bail-in process begins.

In the meantime, a delay in bail-in could delay consideration of claims plaintiffs have made related to the 2013 maps. Indeed, at least some of the plaintiffs argued at the time of trial that the bail-in question should be decided first because bail-in would change the standard under which the 2013 maps are reviewed. And a delay in review of the 2013 maps, in turn, could delay an appeal of Friday's ruling to the Supreme Court since absent an injunction of the 2013 map or a resolution of all claims in the case (or severance of some of the claims), there simply is no appealable order under applicable jurisdictional statutes.

3. It is unclear who will redraw the Texas map. A final wrinkle is uncertainty about who will eventually redraw the Texas map.

Ordinarily, when maps are struck down, longstanding and accepted precedent is that legislatures should be given the first crack at fixing them, and Texas is likely to insist that be the case here.

However, because the congressional plan was found to be intentionally discriminatory, plaintiffs could ask the court to redraw the map itself or appoint a special master to do so, and courts have granted such relief in similar situations.

In short, a big win for the Texas plaintiffs but still lots of unknowns.


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91603&title=Michael%20Li%3A%20%E2%80%9CWhat%E2%80%99s%20Next%20in%20the%20Texas%20Redistricting%20Case%3F%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>

"Ethics Issues and Resolutions: The Conway Case"<http://electionlawblog.org/?p=91601>
Posted on March 14, 2017 7:11 am<http://electionlawblog.org/?p=91601> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Bauer<http://www.moresoftmoneyhardlaw.com/2017/03/ethics-issues-resolutions-conway-case/>, a former White House Counsel, on what the message to Kellyane Conway from the White House Counsel's office should have said.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91601&title=%E2%80%9CEthics%20Issues%20and%20Resolutions%3A%20The%20Conway%20Case%E2%80%9D>
Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>

"Shalom Lamm Voter Fraud Trial Begins This Week"<http://electionlawblog.org/?p=91599>
Posted on March 13, 2017 9:06 pm<http://electionlawblog.org/?p=91599> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest in<http://forward.com/fast-forward/365897/shalom-lamm-voter-fraud-trial-begins-this-week/> the Bloomingburg saga.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91599&title=%E2%80%9CShalom%20Lamm%20Voter%20Fraud%20Trial%20Begins%20This%20Week%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>

"Texas lost a ruling over its congressional map. So what's next for the state?"<http://electionlawblog.org/?p=91597>
Posted on March 13, 2017 8:53 pm<http://electionlawblog.org/?p=91597> by Rick Hasen<http://electionlawblog.org/?author=3>

Jim Malewitz <https://www.texastribune.org/2017/03/13/texas-redistricting-ruling-whats-next/> for Texas Tribune.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91597&title=%E2%80%9CTexas%20lost%20a%20ruling%20over%20its%20congressional%20map.%20So%20what%E2%80%99s%20next%20for%20the%20state%3F%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>

"Whoops! Sorry about that frigid camp-out, but ballot placement is a lottery"<http://electionlawblog.org/?p=91595>
Posted on March 13, 2017 8:49 pm<http://electionlawblog.org/?p=91595> by Rick Hasen<http://electionlawblog.org/?author=3>

Whoops indeed.<https://www.washingtonpost.com/local/virginia-politics/whoops-sorry-about-that-frigid-camp-out-but-ballot-placement-is-a-lottery/2017/03/13/b859acc0-0803-11e7-b77c-0047d15a24e0_story.html?utm_term=.338e948f82d5&wpmk=MK0000200>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91595&title=%E2%80%9CWhoops!%20Sorry%20about%20that%20frigid%20camp-out%2C%20but%20ballot%20placement%20is%20a%20lottery%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

"CRP unveils 'Foreign Lobby Watch' to expose influence efforts by foreign governments and others"<http://electionlawblog.org/?p=91593>
Posted on March 13, 2017 2:40 pm<http://electionlawblog.org/?p=91593> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<https://www.opensecrets.org/news/2017/03/crp-unveils-foreign-lobby-watch/>

Today, in the spirit of Sunshine Week, the Center for Responsive Politics introduces Foreign Lobby Watch<https://www.opensecrets.org/fara>, allowing users of its OpenSecrets.org website to search filings required under the Foreign Agents Registration Act (FARA).
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91593&title=%E2%80%9CCRP%20unveils%20%E2%80%98Foreign%20Lobby%20Watch%E2%80%99%20to%20expose%20influence%20efforts%20by%20foreign%20governments%20and%20others%E2%80%9D>
Posted in lobbying<http://electionlawblog.org/?cat=28>

"Lawsuit to Restore Former Felons' Voting Rights in Florida"<http://electionlawblog.org/?p=91591>
Posted on March 13, 2017 2:38 pm<http://electionlawblog.org/?p=91591> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://fairelectionsnetwork.com/hand-v-scott/>

On Monday, March 13 the Fair Elections Legal Network and Cohen Milstein Sellers & Toll PLLC filed a class action lawsuit that seeks to automatically restore former felons' voting rights and eliminate Florida's arbitrary process for re-enfranchisement. The plaintiffs include seven former felons who have applied for restoration of voting rights and have been denied for minor infractions, like traffic violations, or for no provided reason at all.

Full Text of the Hand v. Scott Complaint<http://fairelectionsnetwork.com/wp-content/uploads/Hand-v.-Scott-Complaint-filed-and-stamped.pdf>


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91591&title=%E2%80%9CLawsuit%20to%20Restore%20Former%20Felons%E2%80%99%20Voting%20Rights%20in%20Florida%E2%80%9D>
Posted in felon voting<http://electionlawblog.org/?cat=66>

"Voting Rights Advocates Announce Agreement with State of Nevada to Modernize Voter Registration Opportunities"<http://electionlawblog.org/?p=91589>
Posted on March 13, 2017 1:51 pm<http://electionlawblog.org/?p=91589> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://www.projectvote.org/press-releases/voting-rights-advocates-announce-agreement-state-nevada-modernize-voter-registration-opportunities/>

Voting rights advocates and Nevada officials announced today that they have signed a Memorandum of Understanding<http://www.projectvote.org/wp-content/uploads/MOU-NV-DMV-3.13.17.pdf> in order to streamline and modernize voter registration opportunities through the Nevada Department of Motor Vehicles (DMV). Demos<http://www.demos.org/>, Project Vote<http://www.projectvote.org/>, the American Civil Liberties Union of Nevada<https://www.aclunv.org/> (ACLU), and the law firm Armstrong Teasdale LLP,<http://www.armstrongteasdale.com/Las-Vegas/> working on behalf of the Mi Familia Vota Education Fund, the League of Women Voters of Nevada, and voter Eleanor Newell, held discussions with the office of the Governor, the DMV and Secretary of State Barbara Cegavske's office to develop a protocol and timeline for bringing Nevada into compliance with the National Voter Registration Act of 1993 (NVRA).
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91589&title=%E2%80%9CVoting%20Rights%20Advocates%20Announce%20Agreement%20with%20State%20of%20Nevada%20to%20Modernize%20Voter%20Registration%20Opportunities%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>

"Report: 17-year-olds voted illegally in Wisconsin primary"<http://electionlawblog.org/?p=91587>
Posted on March 13, 2017 10:09 am<http://electionlawblog.org/?p=91587> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://www.startribune.com/dozens-of-17-year-olds-voted-illegally-in-wisconsin-primary/416032494/>

Dozens of 17-year-olds voted illegally across Wisconsin during last spring's intense presidential primary, apparently wrongly believing they could cast ballots if they turned 18 ahead of the November general election, according to a new state report....

Commission spokesman Reid Magney said Monday that he'd never seen this issue crop up before. The teenagers were likely encouraged to go to the polls by messages flying around social media during the spring primary season saying 17-year-olds can vote in some states as long as they turn 18 before the November election, the report said.

Some political campaigns were also spreading false information about eligibility, the report said. The Sanders campaign specifically was sending out national messages on social media about 17-year-olds being able to vote in presidential primaries, Magney said, although Wisconsin election officials didn't see any misinformation from that campaign about Wisconsin.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91587&title=%E2%80%9CReport%3A%2017-year-olds%20voted%20illegally%20in%20Wisconsin%20primary%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

"Groups settle Ga. suit alleging black voters wrongfully disqualified"<http://electionlawblog.org/?p=91585>
Posted on March 13, 2017 10:07 am<http://electionlawblog.org/?p=91585> by Rick Hasen<http://electionlawblog.org/?author=3>

Atlanta Journal-Constitution:<http://www.ajc.com/news/state--regional-govt--politics/groups-settle-suit-alleging-black-voters-wrongfully-disqualified/XzqFVMtXGH226dnDxkUbjJ/>

Civil rights groups announced a settlement Wednesday with Hancock County over allegations officials improperly removed African American voters from the rolls ahead of a hotly contested local election<http://www.myajc.com/news/state--regional-govt--politics/will-voting-issue-georgia-presidential-election/sPm1R6jcZz9HrmZlQGZgpJ/>.

Groups including the Georgia NAACP and the national Lawyers' Committee for Civil Rights Under Law filed a federal lawsuit against the county in December 2015 after hearing from concerned residents. The suit came after the county Board of Elections and Registration, which has a majority of white members, held a dozen hearings ahead of that fall's election to challenge an estimated 174 of the 988 registered voters in the city of Sparta.

Nearly all of those challenged were black. In some cases, challenges were based on discrepancies in state databases. Others involved residents who had lived their whole lives in Sparta or had never moved out of the county. Others involved unsubstantiated "third party" allegations about individual residents. One elections board member issued her own challenges as a private citizen and then voted to approve those challenges as a member of the board.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91585&title=%E2%80%9CGroups%20settle%20Ga.%20suit%20alleging%20black%20voters%20wrongfully%20disqualified%E2%80%9D>
Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, voting<http://electionlawblog.org/?cat=31>

Large Number of Organizations Opposes Repeal of Johnson Amendment on 501(C)(3) Political Activities<http://electionlawblog.org/?p=91583>
Posted on March 13, 2017 10:05 am<http://electionlawblog.org/?p=91583> by Rick Hasen<http://electionlawblog.org/?author=3>

Letter.<https://static1.squarespace.com/static/568e979c40667a5cc6a4eaf1/t/58c02f6e8419c2fec8012e90/1488990063369/ProtectJohnsonAmendment_Letter_03%E2%80%9308-2017.pdf>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91583&title=Large%20Number%20of%20Organizations%20Opposes%20Repeal%20of%20Johnson%20Amendment%20on%20501(C)(3)%20Political%20Activities>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>




--
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170314/0076b5e4/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170314/0076b5e4/attachment.png>