[EL] ELB News and Commentary 11/28/17

Tue Nov 28 07:33:11 PST 2017

"State Board of Elections certifies disputed Fredericksburg-area results despite 147 people voting in the wrong House race"<http://electionlawblog.org/?p=96147>
Posted on November 28, 2017 7:31 am<http://electionlawblog.org/?p=96147> by Rick Hasen<http://electionlawblog.org/?author=3>

Richmond Times Dispatch<http://www.richmond.com/news/virginia/government-politics/state-board-of-elections-certifies-disputed-fredericksburg-area-results-despite/article_4c44512a-d4b5-5712-a61d-6356466c05c1.html>:

Virginia's State Board of Elections on Monday certified the results of two Fredericksburg-area House of Delegates elections, despite Democrats asking the board to delay the process because 147 people voted in the wrong House district.

The elections board's 3-0 vote to certify the results showing Republicans winning the 28th and 88th District races does not finalize the outcome. But it closes an initial, chaotic chapter in the legal battle over a close 28th District race that could decide which party controls the House after Democrats picked up at least 15 seats in a wave election on Nov. 7.

In the 28th District, Republican Bob Thomas leads Democrat Joshua Cole by just 82 votes. Democrats who appear to be on the losing end in the 28th and a handful of other tight finishes can still pursue recounts or contest the final results at the General Assembly. Under state law, recounts cannot begin until the elections board certifies the results as official.
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Posted in election administration<http://electionlawblog.org/?cat=18>

"Kris Kobach Wants to Make It Harder to Vote Nationwide-But He's Already Failing Back Home in Kansas"<http://electionlawblog.org/?p=96145>
Posted on November 28, 2017 7:17 am<http://electionlawblog.org/?p=96145> by Rick Hasen<http://electionlawblog.org/?author=3>

Ari Berman<http://www.motherjones.com/politics/2017/11/kris-kobach-wants-to-make-it-harder-to-vote-nationwide-but-hes-already-failing-back-home-in-kansas/> for Mother Jones.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

The Measure of a Metric, Part II<http://electionlawblog.org/?p=96137>
Posted on November 27, 2017 8:06 pm<http://electionlawblog.org/?p=96137> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

Yesterday<http://electionlawblog.org/?p=96127> I laid out a series of criteria that, Eric McGhee and I argue in a forthcoming article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3077766>, can be used to evaluate measures of partisan gerrymandering. Today I'll briefly explain why the efficiency gap satisfies these criteria.

Start with the principle that if a party wins more seats with the same votes, a metric should indicate a larger advantage for this party. To test the efficiency gap's compliance with this principle, we simulated thousands of district plans. In these simulations, we allowed the major parties' vote shares to vary from 25% to 75%, a third party's vote share to range from 0% to 20%, and turnout to diverge across districts by up to a factor of 15. The results of the simulations are below (for both the efficiency gap and several variants that scholars have proposed). It's immediately evident that the efficiency gap never violates the principle. In every electoral setting, the efficiency gap moves in the correct direction when a party secures more seats without appealing to more voters.

[http://electionlawblog.org/wp-content/uploads/1-1-300x200.png]

Next, consider the efficiency gap's distinctness from other electoral values-competitiveness in particular, which some have claimed is related to the measure. Conceptually there's no connection because it's the difference between the parties' average margins of victory (not the average margin itself) that drives the efficiency gap. Empirically too, as the below chart illustrates for state houses from 1972 to 2014, the correlation between the efficiency gap and the average margin of victory in an election is zero. In other words, knowing how competitive a state's districts are tells us nothing about how skewed they are in favor of a party.

[http://electionlawblog.org/wp-content/uploads/2-1.png]

Third, the efficiency gap can be (sensibly) calculated in a wide range of electoral environments. Safe states pose no problem for the metric; it's just as meaningful in, say, Massachusetts as in Michigan. Turnout variations from district to district aren't an issue either; in fact, they're directly incorporated into the wasted vote tallies that are used to compute the efficiency gap. And while we originally presented a two-party version of the efficiency gap, our article shows how it can be extended to the multiparty context.

Lastly, the efficiency gap is highly consistent with American electoral history. The below chart is a density curve of state house efficiency gaps from 1972 to 2014. The distribution is a near-textbook bell curve, centered almost exactly at zero. Most prior maps have thus been symmetric in their treatment of the major parties, and highly skewed plans have been rare. There also is no hint that the country's political geography is tilted in either party's direction. If it were, then the distribution's mean and median would not be so close to perfect symmetry.

[http://electionlawblog.org/wp-content/uploads/3-1.png]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"Vote Suppressors Unleashed: A district judge might be handing Donald Trump a chance to supercharge voter suppression."<http://electionlawblog.org/?p=96135>
Posted on November 27, 2017 12:46 pm<http://electionlawblog.org/?p=96135> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/donald_trump_will_supercharge_voter_suppression_if_the_rnc_consent_decree.html> at Slate.  It begins:

This could be a very bad week for voting rights in the United States.

On Friday, a federal consent decree to stop potential voter suppression by the Republican National Committee-in place since 1982-is set to expire unless further extended by a federal district court in New Jersey. What happens next, with Donald Trump in charge of the Republican Party, will likely not be pretty.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"Amending the Johnson Amendment in the Age of Cheap Speech"<http://electionlawblog.org/?p=96133>
Posted on November 27, 2017 8:01 am<http://electionlawblog.org/?p=96133> by Rick Hasen<http://electionlawblog.org/?author=3>

Ellen Aprill has posted this important draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3077348> on SSRN (forthcoming University of Illinois Law Review On-Line).  Here is the abstract:

On November 2, 2017, the House Ways and Means Committee released its proposed tax reform legislation. It includes a provision amending the provision of the Internal Revenue Code, sometimes called the Johnson Amendment, that prohibits charities, including churches, from intervening in campaigns for elected office, at risk of loss of their exemption under section 501(c)(3). Under the Ways and Means proposal, as later revised and passed by the House, organizations exempt as charities under section 501(c)(3) would be permitted to engage in campaign intervention if "the preparation and presentation of such content . . . is in the ordinary course of the organization's regular and customary activities in carrying out its exempt purpose and . . . results in the organization incurring not more than de minimis incremental expenses."
If such legislation becomes law, the IRS and the Department will be faced with the difficult task of giving guidance as to the meaning of "regular and customary," "de minimis," and "incidental." It would likely have to address whether donations could be earmarked for campaign intervention so long as they were within the organization's de minimis limit and involved regular and customary activities. Whatever rules are announced are sure to be controversial and complicate enforcement of the prohibition for campaign intervention that is more than de minimis. Given the lack of IRS resources and controversy regarding its attempts to regulate political activities of exempt organizations, the IRS may well hesitate to take action against possible violations.
However these terms are defined and enforced, a de minimis exception raises significant issues that demand attention in an era of what Professors Eugene Volokh and Richard Hasen have called "cheap speech." These are issues that require consideration whether or not a de minimis exception is adopted in the current tax reform legislation.
After giving background on the Johnson Amendment, this essay discusses the impact of any de minimis exception regarding campaign intervention in the age of cheap speech. It concludes that the availability of cheap speech may have undermined the most common constitutional justification for the prohibition - that the government has no duty to subsidize speech - such that a new approach to limiting the political speech of charities is needed.
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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/>

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