[EL] ELB News and Commentary 5/23/17

Mon May 22 18:53:15 PDT 2017

“The Supreme Court may just have given voting rights activists a powerful new tool”<http://electionlawblog.org/?p=92753>
Posted on May 22, 2017 6:49 pm<http://electionlawblog.org/?p=92753> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped<https://www.washingtonpost.com/opinions/voting-rights-activists-should-love-todays-supreme-court-ruling/2017/05/22/9443d726-3f2f-11e7-9869-bac8b446820a_story.html?tid=ss_tw&utm_term=.37bd766d2120> for the Washington Post. It begins:

Sometimes the most important stuff in Supreme Court opinions is hidden in the footnotes. In Monday’s Supreme Court ruling<https://www.washingtonpost.com/politics/courts_law/supreme-court-rules-race-improperly-dominated-nc-redistricting-efforts/2017/05/22/c159fc70-3efa-11e7-8c25-44d09ff5a4a8_story.html?hpid=hp_hp-top-table-main_court-1150a%3Ahomepage%2Fstory&utm_term=.a8220baba907> striking down two North Carolina congressional districts as unconstitutionally influenced by race, the majority buried a doozy, a potentially powerful new tool to attack voting rights violations in the South and elsewhere….

This seems to be a much more realistic approach<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403> to the interrelated matters of race and party than the court’s earlier treatment of them as either-or propositions for purposes of assessing the legality of gerrymandering. Indeed, political scientists refer to places such as North Carolina as states with “conjoined polarization<http://web.b.ebscohost.com/abstract?direct=true&profile=ehost&scope=site&authtype=crawler&jrnl=00481572&AN=120562793&h=7Ma4cQFFwdRg%2fwUCAvkFW3QGQOCtoA1%2bLq8cdmX3Bm8Q7xlEVMp5iSbYHF4zRjv%2f%2bqRD8wPjpJVFfXePTBBN0w%3d%3d&crl=c&resultNs=AdminWebAuth>,” where racial and partisan categories overlap. In North Carolina, about 90 percent of black voters are Democrats; conversely, the overwhelming majority of whites are Republicans. When the Republican legislature passes a plan to limit Democratic voting power, it necessarily affects black voters.

Under this logic, legislators will no longer be able to hide behind claims of partisan motivation to protect themselves from racial gerrymandering claims. Kagan’s approach should allow voting rights plaintiffs to bring more successful racial gerrymandering claims.

And this approach has broader application — especially important given the Supreme Court’s landmark 2013 decision overturning key portions of the Voting Rights Act that had required states such as North Carolina to get federal approval before making new voting rules that could hurt minority voters: Last week, the Supreme Court declined to review<https://www.washingtonpost.com/politics/courts_law/despite-high-courts-decision-on-nc-voting-law-activists-worry-about-chief-justice/2017/05/19/2ef705bc-3ca7-11e7-9e48-c4f199710b69_story.html?utm_term=.8c2f23795429> a North Carolina case involving voter identification and other strict voting laws. The U.S. Court of Appeals for the 4th Circuit had also treated race and party<http://www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf> as proxies for one another and said that a partisan-driven voting law also constituted intentional race discrimination.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Another Explanation for Justice Thomas’s Joining of Racial Gerrymandering Majority Opinion<http://electionlawblog.org/?p=92751>
Posted on May 22, 2017 6:44 pm<http://electionlawblog.org/?p=92751> by Rick Hasen<http://electionlawblog.org/?author=3>

I’ve already opined <http://electionlawblog.org/?p=92707> on what might have motivated Justice Thomas (and Justice Kennedy) so side how they did today.

An ELB reader passes along these additional thoughts about Justice Thomas and what comes next:
I’ve always been struck by Justice Thomas’ personal story that, when he couldn’t find a job despite graduating in the top third of his class at YLS, he was convinced that affirmative action led employers to think black attorneys’ law degrees weren’t worth the same. I could well see him thinking that gerrymandering has led to similar devaluation of black Representatives. Similarly, I could see him as offended that the boundary-drawers would see black voters’ race as a data point in predicting how they’ll vote. This may be armchair psychology, but I think it’s important for anti-gerrymandering advocates to figure Thomas out in time for the MD and NC political gerrymandering challenges. It’s possible that the arguments most likely to sway Thomas would be repugnant to the voting rights groups — such as an unflattering comparison of mixed-motive gerrymandering to plus-factor affirmative action programs. I think it’s critical for there to be a Thomas-focused amicus brief, preferably authored by a former Thomas clerk with better insights into his personal views.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Interview with Me on The Takeaway About Today’s NC Gerrymandering Decision<http://electionlawblog.org/?p=92749>
Posted on May 22, 2017 6:33 pm<http://electionlawblog.org/?p=92749> by Rick Hasen<http://electionlawblog.org/?author=3>

Listen.<http://www.wnyc.org/story/scotus-strikes-down-racially-gerrymandered-congressional-maps/?hootPostID=5f67b0bbc35bff96d07ee45c0012ed7c>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Neil Gorsuch can’t wait to get his hands on America’s campaign finance laws”<http://electionlawblog.org/?p=92747>
Posted on May 22, 2017 6:25 pm<http://electionlawblog.org/?p=92747> by Rick Hasen<http://electionlawblog.org/?author=3>

Ian Millhiser <https://thinkprogress.org/neil-gorsuch-campaign-finance-laws-5bd2848755d1> for Think Progress.

I made a similar point here.<http://electionlawblog.org/?p=92665>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Two poll workers plead guilty to illegal voting”<http://electionlawblog.org/?p=92745>
Posted on May 22, 2017 6:19 pm<http://electionlawblog.org/?p=92745> by Rick Hasen<http://electionlawblog.org/?author=3>

Houston Chronicle:<http://www.houstonchronicle.com/news/houston-texas/houston/article/Two-poll-workers-plead-guilty-to-illegal-voting-11165525.php>

Two people who worked as election clerks during the May 2016 primary runoff have pleaded guilty to unlawfully casting a ballot for another person, Harris County Clerk Stan Stanart announced Monday.

Jeanene Johnson, 63, and Latunia Thomas, 46, pleaded guilty to a misdemeanor charge of “unlawful deposit of ballot” earlier this month. They served one day in jail, and were released, according to the Harris County District Attorney’s office.

With Johnson’s help, Thomas cast a ballot for her daughter at a Harris County Public Health and Environmental Services building during early voting for the May 24, 2016 primary runoff, according to Dane Schiller, a spokesman for the district attorney’s office. He said Thomas’ daughter was not present at the polling location….

Both defendants were charged with a felony, but pleaded guilty to a misdemeanor charge. The two were investigated after other clerks noticed the pair casting the ballot, Stanart said.

Stanart said that obtaining convictions on such crimes is rare. He said this month’s convictions were the most significant finding and prosecution of voter fraud in the last decade-and-a-half.

The Texas attorney general’s office has received more than 700 reports of voter fraud since 2002, but has prosecuted only 93 since 2005.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Power struggle intensifies between White House and ethics office”<http://electionlawblog.org/?p=92743>
Posted on May 22, 2017 5:43 pm<http://electionlawblog.org/?p=92743> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold for WaPo:<https://www.washingtonpost.com/politics/power-struggle-intensifies-between-white-house-and-ethics-office/2017/05/22/fff898b8-3f0b-11e7-adba-394ee67a7582_story.html?utm_term=.164014a70eae>

But in a May 17 letter, Mick Mulvaney, director of the Office of Management and Budget, questioned <https://extapps2.oge.gov/FOIAStatus/FOIAResponse.nsf/OGE%20FOIA%20Responses/852580AC00659E1D85258128006BA36F/$FILE/OGE%20FOIA%20FY%2017-328_redacted.pdf?open> whether the Office of Government Ethics has legal jurisdiction to get information about waivers that have been granted. He said the Justice Department’s Office of Legal Counsel may needed to be consulted.

“I therefore request that you stay the data call until these questions are resolved,” Mulvaney wrote Shaub in a letter first <https://www.nytimes.com/2017/05/22/us/politics/trump-white-house-government-ethics-lobbyists.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0> reported by the New York Times.

Shaub responded forcefully with a nine-page letter<https://oge.app.box.com/s/131103o6wmmy65tecqxp9pjks7361y9s> to Mulvaney Monday night, denying his request to back off.

“The unusual nature of your letter highlights OGE’s responsibility to lead the executive branch ethics program with independence, free from political pressure,” he wrote. “Accordingly, OGE declines your request to suspend its ethics inquiry.”

The letter, posted by OGE’s official Twitter account, was accompanied by voluminous documents attesting to the agency’s authority to collect information, examples of the executive branch complying with past requests and previous calls by lawmakers for OGE to disclose such data in a public format.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

SCOTUSBlog Symposium on NC Racial Gerrymandering Decision<http://electionlawblog.org/?p=92741>
Posted on May 22, 2017 5:31 pm<http://electionlawblog.org/?p=92741> by Rick Hasen<http://electionlawblog.org/?author=3>

Amy Howe <http://www.scotusblog.com/2017/05/opinion-analysis-court-strikes-n-c-districts-racial-gerrymandering-challenge/> (description of the case)

Rick Pildes<http://www.scotusblog.com/2017/05/symposium-court-continues-winding-unnecessary-racial-redistricting/>

Ezra Rosenberg and Kristen Clarke<http://www.scotusblog.com/2017/05/symposium-court-clarifies-review-racial-gerrymandering-not-impose-strict-scrutiny-every-intentional-creation-majority-minority-district/>

(and more coming)

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

How Appealing Rounds Up Coverage So Far of #SCOTUS Election Law Action Monday<http://electionlawblog.org/?p=92739>
Posted on May 22, 2017 5:28 pm<http://electionlawblog.org/?p=92739> by Rick Hasen<http://electionlawblog.org/?author=3>

North Carolina racial gerrymandering case<http://howappealing.abovethelaw.com/052217.html#071659>

Summary affirmance in soft money case.<http://howappealing.abovethelaw.com/052217.html#071657>

The soft money case would have gotten much more attention had it not been crowded out by the important NC case (not to mention all the other news these days).
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

American Law Institute Approves Final Part of ALI Project on Election Administration<http://electionlawblog.org/?p=92737>
Posted on May 22, 2017 5:25 pm<http://electionlawblog.org/?p=92737> by Rick Hasen<http://electionlawblog.org/?author=3>

Kudos<https://twitter.com/AmLawInst/status/866730840457449472> to Ned Foley and Steve Huefner!

I’ll have more to say about the project coming up.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“North Carolina Is Once Again Found Guilty of Discriminating Against Black Voters”<http://electionlawblog.org/?p=92735>
Posted on May 22, 2017 5:23 pm<http://electionlawblog.org/?p=92735> by Rick Hasen<http://electionlawblog.org/?author=3>

Ari Berman writes<https://www.thenation.com/article/north-carolina-found-guilty-discriminating-black-voters/> for The Nation.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Supreme Court Upholds Rejection Of North Carolina Congressional Districts”<http://electionlawblog.org/?p=92733>
Posted on May 22, 2017 3:14 pm<http://electionlawblog.org/?p=92733> by Rick Hasen<http://electionlawblog.org/?author=3>

Nina Totenberg reports<http://www.npr.org/2017/05/22/529550282/supreme-court-upholds-rejection-of-north-carolina-congressional-districts> for NPR.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

We May Soon Get a Hint on What the Supreme Court Thinks of Wisconsin Partisan Gerrymandering Case<http://electionlawblog.org/?p=92731>
Posted on May 22, 2017 3:05 pm<http://electionlawblog.org/?p=92731> by Rick Hasen<http://electionlawblog.org/?author=3>

Via the Milwaukee Journal-Sentinel<http://www.jsonline.com/story/news/politics/2017/05/22/attorney-general-brad-schimel-asks-u-s-supreme-court-block-order-voting-maps/337619001/>, comes this stay application<https://www.doj.state.wi.us/sites/default/files/news-media/5.22.2017_Redistricting_Stay_Application.pdf> in the Wisconsin partisan gerrymandering case (Gill v. Whitford). The state wants<https://www.doj.state.wi.us/sites/default/files/news-media/5.22.2017_Redistricting_Stay_Application.pdf> the Supreme Court to put on hold a requirement that Wisconsin state legislative districts by November 1.

The Supreme Court will likely rule on this request before the end of the term, at the same time it tells us whether it will hear an appeal of the partisan gerrymandering case next term. If five Justices vote to grant this stay, it will be a good indication that the lower court holding of partisan gerrymandering will ultimately fail. A denial of the stay is a good indication that it won’t fail.

That won’t be a perfect predictor, but it is the most useful tea leaf we would be likely to get before oral argument.

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Texas Redistricting Case Will Now Face New Delay Thanks to Today’s SCOTUS NC Decision<http://electionlawblog.org/?p=92728>
Posted on May 22, 2017 2:42 pm<http://electionlawblog.org/?p=92728> by Rick Hasen<http://electionlawblog.org/?author=3>

The briefing<http://electionlawblog.org/wp-content/uploads/Briefing-order-Perez.pdf> never ends in Texas redistricting case. and another plea for the TX Legislature to get involved again:

In light of today’s Supreme Court decision in Cooper v. Harris, the Court invites the parties to file supplemental briefs, in whatever length they find appropriate, addressing the effect of Cooper (and, if desired, Bethune-Hill v. Virginia State Board of Elections) on the various claims in the congressional and Texas House cases. Such briefs shall be due June 6, 2017. It would be most helpful, to the extent reasonably possible, for any such comments to designate the specific districts to which they are addressed and (if applicable) any specific 2017 findings/conclusions and legal analysis from this panel to which the comments pertain.

In addition to any such briefing, the Court directs Defendants’ counsel to confer with their client(s) about whether the State wishes to voluntarily undertake redistricting in a special session in light of the Cooper opinion and counsel shall report their clients’ position to this Court no later than May 26, 2017.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Partisan Gerrymandering Case Status<http://electionlawblog.org/?p=92722>
Posted on May 22, 2017 2:00 pm<http://electionlawblog.org/?p=92722> by Justin Levitt<http://electionlawblog.org/?author=4>

The Court’s decision this morning in the North Carolina redistricting case<https://www.supremecourt.gov/opinions/16pdf/15-1262_db8e.pdf> addressed allegations of predominant and unjustified racial intent.  The state attempted to defend its actions, in part, by saying that it was just acting for partisan reasons.

The legal status of “just acting for partisan reasons” in the redistricting context is also a hot topic these days.  The last time SCOTUS really took the issue on was 2004<https://scholar.google.com/scholar_case?case=16656282825028631654>, in a fractured opinion that left the state of the law a bit of a mess<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2849655>.  Only 4 of the 9 sitting Justices were then on the Court.  And there are a few relevant cases headed straight back toward them.

Some of the challenges are out of North Carolina.  One case is directly related to the one decided this morning<https://www.supremecourt.gov/opinions/16pdf/15-1262_db8e.pdf>.  (This morning was Cooper v. Harris<http://www.scotusblog.com/case-files/cases/mccrory-v-harris/>; the case coming up is Harris v. Cooper<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-166.htm>.  It’s all based on who won and who lost in the lower court.)  This is the remand from this morning’s case — while SCOTUS was hearing the race case, the legislature drew new lines, saying explicitly that they intended to draw the new lines “to gain partisan advantage.”  The lower court approved the new legislative remedy, despite plaintiffs’ protest that it amounted to an unlawful partisan gerrymander.  There’s a dispute among the parties about the proper scope of the court’s consideration (and in the meantime, there have been two new cases challenging the new map as a partisan gerrymander, moving at a slower pace).  The lower court’s approved remedy is now up on appeal<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-166.htm> before SCOTUS, and a decision on whether to hear the case in full is likely coming in the next few weeks, perhaps as early as next week.

The other leading case is out of Wisconsin<http://www.scotusblog.com/case-files/cases/gill-v-whitford/>.  It’s a challenge to the state legislative map as an unlawful partisan gerrymander.  Here, the lower court struck down the state map, and the state is now appealing to SCOTUS<https://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/16-1161.htm>.  A decision on whether to hear the case in full is also likely coming in the next few weeks — I think there’s a broadly shared expectation based on the procedural posture and the result below that SCOTUS will hear this case in full.

A decision to consider either case in full would mean briefing over late summer and early fall, an argument date likely in the fall, and a decision likely in the spring or early summer of 2018.   Of course, that timing is entirely up to the Court, and the timing is really just a guess: the cases could easily move faster or slower.

(There are also other partisan gerrymandering cases — including a case out of Maryland<http://redistricting.lls.edu/cases-MD.php#MD> — that are a little farther behind in the queue.)

For those looking forward, there’s some intriguing dicta in this morning’s decision<https://www.supremecourt.gov/opinions/16pdf/15-1262_db8e.pdf>: Justice Alito, with the Chief Justice and Justice Kennedy joining, seems to emphasize that some partisan gerrymandering is OK (p. 5 of his separate opinion).  That wasn’t actually the issue in this morning’s decision, and it’s not clear how much those few sentences will impact any individual Justice’s take in a case squarely about partisan gerrymandering (much less an opinion about how much partisanship is too much partisanship).  But tea-leaf-readers gonna tea-leaf-read.

(Also FWIW: there was a magnificent symposium at William & Mary<https://events.wm.edu/event/view/law/84276> in February concerning redistricting, including discussion of the racial and partisan claims in precisely these cases at and heading to SCOTUS.  If your primary complaint is that the morning’s ELB posts have been too short, keep an eye out for the symposium issue of the William & Mary Law Review).
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Posted in political parties<http://electionlawblog.org/?cat=25>, redistricting<http://electionlawblog.org/?cat=6>

Further thoughts on Cooper<http://electionlawblog.org/?p=92717>
Posted on May 22, 2017 1:28 pm<http://electionlawblog.org/?p=92717> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

A few more points to add to the analyses by Rick H., Rick P., and Justin:

1. Ever since Gingles itself, it has been an open question whether the mere fact of racial polarization in voting suffices to satisfy the case’s second and third prongs. (Justice Brennan’s opinion said yes, but it commanded only four votes on this issue. Some lower courts—including the Fifth Circuit—subsequently held that the prongs are not satisfied if partisanship explains racial polarization.)

Today the Court strongly suggests that the causes of racial polarization are irrelevant. In the Court’s long discussion of crossover voting in District 1, it does not mention a single potential explanation for voter behavior: not partisanship, not racial animus (or its absence), not socioeconomic characteristics, not anything. Instead, the Court relies exclusively on the raw election returns, which indicate that substantial crossover voting must be occurring since black-preferred candidates consistently won elections with ~65% of the vote even though blacks made up only ~48% of District 1’s population.

Going forward, I expect that Section 2 plaintiffs will be able to use the Court’s discussion as a powerful rejoinder to any argument that racial polarization should not “count” for Gingles purposes if it is the product of some non-racial factor. This should make it significantly easier for plaintiffs to satisfy the Gingles preconditions, especially in areas (like the Fifth Circuit) where courts had previously probed quite rigorously the reasons for racial polarization.

2. Another question left open by the Court’s case law is whether crossover districts can comply with Section 2 when all three Gingles preconditions are satisfied. This precise fact pattern was not before the Court since there was insufficient white bloc voting in District 1 to meet the third Gingles precondition. However, the Court’s opinion hinted pretty clearly that crossover districts are acceptable Section 2 remedies, even under conditions of severe racial polarization. In the key passage, the Court quoted North Carolina’s position that if “§ 2 does not require crossover districts . . . then § 2 also cannot be satisfied by crossover districts.” This stance, declared the Court, “is at war with our § 2 jurisprudence.”

Several implications follow. First, jurisdictions that are successfully sued under Section 2 should be able to design crossover districts as a remedy for the violation. Second, Section 2 suits should fail if they are used to challenge existing crossover districts (in an effort to replace them with majority-minority districts). And third, as in Cooper, jurisdictions should not be able to use Section 2 compliance as a defense in a racial gerrymandering case if they convert crossover districts into majority-minority districts. Arguably, all of this was implicit in Bartlett, but it’s still important to see the Court providing confirmation.

3. Finally, there are many majority-minority districts, both in the South and elsewhere in the country, where functioning crossover districts could be drawn instead. In an article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749> a few years back, I created the below density curve of minority population share in all districts (congressional and state legislative) in states previously covered by Section 5. The distribution is clearly bimodal, with one of its peaks around 60% minority voting age population. The district distribution also looks nothing like the underlying distribution of minority population share at the precinct level, which is unimodal and normal in shape. This suggests that the district distribution—with its many majority-minority districts—is the product of intentional racial redistricting.

Of course, the mere fact that a crossover district could have been drawn in an area where a majority-minority district was drawn instead does not establish that race was the predominant factor in the district’s creation. The plaintiffs in Cooper had much more damning evidence than that, including the use of an explicit racial target. Nevertheless, it is certainly relevant that many majority-minority districts are more “packed” than they need to be to comply with Section 2—likely intentionally in many cases. This means that Cooper’s reach could be greater than that of the racial gerrymandering cases the Court has previously decided this cycle.

[http://electionlawblog.org/wp-content/uploads/VAP-Distribution-300x224.png]
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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
949.824.0495 - fax
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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