[EL] ELB News and Commentary 10/4/17

[Rick Hasen]

Should Plaintiffs Push Their Luck in Wisconsin Gerrymandering Case?<http://electionlawblog.org/?p=95199>
Posted on October 3, 2017 8:06 pm<http://electionlawblog.org/?p=95199> by Rick Hasen<http://electionlawblog.org/?author=3>
By most accounts<https://www.nytimes.com/2017/10/03/us/politics/gerrymandering-supreme-court-wisconsin.html?_r=0>, perennial swing voter Anthony Kennedy was very much in play in the Gill v. Whitford partisan gerrymandering case from Wisconsin. He and the four liberals could finally decide to rein in the most egregious partisan gerrymanders.
But, ELB readers may recall that about an hour after the Court agreed to hear Gill, the Court, on a 5-4 vote, with the liberal justices dissenting, issued a stay<http://www.scotusblog.com/wp-content/uploads/2017/06/16A1149-Gill-v.-Whitford-Order.pdf> of the lower court’s order requiring the Wisconsin legislature to draw new districts by November to solve the partisan gerrymander by 2018.
Plaintiffs could now move to lift the stay, on the theory that Justice Kennedy probably has a good idea what he’s going to do in this case, and Wisconsin voters should not be subject to yet another election where their First Amendment rights (in Kennedy speak) are violated by an egregious partisan gerrymander.
My guess is that plaintiffs won’t do it.  As I’ve noted, even in cases where plaintiffs ultimately win the Court has gotten into a habit of stopping lower courts from enforcing remedies in redistricting cases before the Supreme Court has spoken. (The Supreme Court is in No Hurry to Protect Voters from Gerrymandering<https://www.washingtonpost.com/news/posteverything/wp/2017/06/28/the-supreme-court-is-in-no-hurry-to-protect-voters-from-gerrymandering/?utm_term=.1c6b6216e091>, Washington Post (Post Everything), June 28, 2017.) The Court did it most recently in the Texas redistricting cases. And maybe it will annoy the Court to go back to think about this issue again.
But on the merits, why should Wisconsin voters endure another election with an unconstitutional map, if we know where this thing is going to end up?
Justice Alito, if he’s in the dissent, could try to drag this out till June to minimize the impact of the ruling. More justice delayed being justice denied on the horizon.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95199&title=Should%20Plaintiffs%20Push%20Their%20Luck%20in%20Wisconsin%20Gerrrymandering%20Case%3F>

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


Roundup of Stories on Gill Oral Argument<http://electionlawblog.org/?p=95197>
Posted on October 3, 2017 7:49 pm<http://electionlawblog.org/?p=95197> by Rick Hasen<http://electionlawblog.org/?author=3>
Howard has it.<http://howappealing.abovethelaw.com/100317.html#073052>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95197&title=Roundup%20of%20Stories%20on%20Gill%20Oral%20Argument>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Exclusive: Russian-linked Facebook ads targeted Michigan and Wisconsin”<http://electionlawblog.org/?p=95195>
Posted on October 3, 2017 7:42 pm<http://electionlawblog.org/?p=95195> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN:<http://www.cnn.com/2017/10/03/politics/russian-facebook-ads-michigan-wisconsin/index.html?utm_source=CNN+Media%3A+Reliable+Sources&utm_campaign=9321499c47-EMAIL_CAMPAIGN_2017_06_06&utm_medium=email&utm_term=0_e95cdc16a9-9321499c47-82746257>
A number of Russian-linked Facebook ads specifically targeted Michigan and Wisconsin, two states crucial to Donald Trump’s victory last November, according to four sources with direct knowledge of the situation.
Some of the Russian ads appeared highly sophisticated in their targeting of key demographic groups in areas of the states that turned out to be pivotal, two of the sources said. The ads employed a series of divisive messages aimed at breaking through the clutter of campaign ads online, including promoting anti-Muslim messages, sources said.
It has been unclear until now exactly which regions of the country were targeted by the ads. And while one source said that a large number of ads appeared in areas of the country that were not heavily contested in the elections, some clearly were geared at swaying public opinion<http://money.cnn.com/2017/09/26/media/facebook-russia-ads/index.html> in the most heavily contested battlegrounds.
Michigan saw the closest presidential contest in the country — Trump beat Democratic nominee Hillary Clinton by about 10,700 votes out of nearly 4.8 million ballots cast. Wisconsin was also one of the tightest states, and Trump won there by only about 22,700 votes. Both states, which Trump carried by less than 1%, were key to his victory in the Electoral College.
The sources did not specify when in 2016 the ads ran in Michigan and Wisconsin.
As part of their investigations, both special counsel Robert Mueller and congressional committees are seeking to determine whether the Russians received any help from Trump associates in where to target the ads.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95195&title=%E2%80%9CExclusive%3A%20Russian-linked%20Facebook%20ads%20targeted%20Michigan%20and%20Wisconsin%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Fake news comes to the Supreme Court”<http://electionlawblog.org/?p=95193>
Posted on October 3, 2017 7:39 pm<http://electionlawblog.org/?p=95193> by Rick Hasen<http://electionlawblog.org/?author=3>
Dana Milbank:<https://www.washingtonpost.com/opinions/fake-news-comes-to-the-supreme-court/2017/10/03/3a17f86c-a87b-11e7-92d1-58c702d2d975_story.html?utm_term=.9e6379b90175>
“You paint a very dire picture about gerrymandering and its effects,” Alito said, “but I was struck by something in the seminal article by your expert, Mr. McGhee, and he says there, ‘I show that the effects of party control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests.’ So he was wrong in that?”
The question baffled Smith, who said he would need to see the context.
“Well,” Alito retorted, “that’s what he said.”
No, it isn’t.
I called Eric McGhee, the expert, after the argument. The quote Alito pulled was not from the “seminal article” McGhee co-wrote proposing the legal standard for gerrymandering at the center of the case. It was from an earlier McGhee paper, using data from the 1970s through 1990s. In the paper at the center of the case, by contrast, “we used updated data from the 2000s,” McGhee told me, “and the story is very different. It’s gotten a lot worse in the last two cycles. . . . The data are clear.”
Why would Alito resort to this sleight of hand? Perhaps because it’s clear that if he stuck to the facts, he’d have to acknowledge that the growing abuse of gerrymandering threatens democracy.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95193&title=%E2%80%9CFake%20news%20comes%20to%20the%20Supreme%20Court%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Steve Mazie on Chief Justice Roberts’ and Justice Gorsuch’s Approach to Social Science at Gill Oral Argument<http://electionlawblog.org/?p=95191>
Posted on October 3, 2017 5:43 pm<http://electionlawblog.org/?p=95191> by Rick Hasen<http://electionlawblog.org/?author=3>
Thread <https://twitter.com/stevenmazie/status/915350121214300161> .
And here’s his Economist story<https://www.economist.com/blogs/democracyinamerica/2017/10/slaying-gerrymander> on the oral argument.
And Jesse Wegman <https://mobile.nytimes.com/2017/10/03/opinion/editorials/gerrymandering-supreme-court-wisconsin.html?_r=0&referer=> for the NY Times opinion sounding similar themes.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95191&title=Steve%20Mazie%20on%20Chief%20Justice%20Roberts%E2%80%99%20and%20Justice%20Gorsuch%E2%80%99s%20Approach%20to%20Social%20Science%20at%20Gill%20Oral%20Argument>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Interesting Commentaries on Gill Partisan Gerrymandering Argument from Fishkin, Foley<http://electionlawblog.org/?p=95189>
Posted on October 3, 2017 4:20 pm<http://electionlawblog.org/?p=95189> by Rick Hasen<http://electionlawblog.org/?author=3>
Joey Fishkin, The Authority of the Court.<https://balkin.blogspot.com/2017/10/the-authority-of-court.html>
Ned Foley, Of X-Rays, CT Scans and Gerrymanders<http://moritzlaw.osu.edu/election-law/article/?article=13415>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95189&title=Interesting%20Commentaries%20on%20Gill%20Partisan%20Gerrymandering%20Argument%20from%20Fishkin%2C%20Foley>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


VP Pence’s Chief of Staff Urges Big Donors to Threaten Elected Republican Officials with Super PAC Donations to Opponents<http://electionlawblog.org/?p=95187>
Posted on October 3, 2017 1:23 pm<http://electionlawblog.org/?p=95187> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/10/03/purge-anti-trump-republicans-nick-ayers-243416>
One attendee later asked how the donors could “rally the congressional delegation that does support the president and vice president, and rally them and push them to change the current leadership in both the Senate and the House.”
“I’m not speaking on behalf of the president or vice president when I say this,” Ayers responded. “But if I were you, I would not only stop donating, I would form a coalition of all the other major donors, and just say two things. We’re definitely not giving to you, number one. And number two, if you don’t have this done by Dec. 31, we’re going out, we’re recruiting opponents, we’re maxing out to their campaigns, and we’re funding super PACs to defeat all of you.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95187&title=VP%20Pence%E2%80%99s%20Chief%20of%20Staff%20Urges%20Big%20Donors%20to%20Threaten%20Elected%20Republican%20Officials%20with%20Super%20PAC%20Donations%20to%20Opponents>
Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Pasadena drops appeal, will remain under federal oversight of election laws”<http://electionlawblog.org/?p=95184>
Posted on October 3, 2017 12:10 pm<http://electionlawblog.org/?p=95184> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/10/03/pasadena-remain-under-federal-oversight-election-laws/>
In a crucial victory for Hispanic voters in the Houston suburb of Pasadena, the city will remain under federal oversight for any changes to its voting laws until 2023 — the only setup of its kind in Texas.
The Pasadena City Council on Tuesday unanimously approved Mayor Jeff Wagner’s proposal to settle a voting rights lawsuit over how it redrew its council districts<https://www.texastribune.org/2017/07/11/voting-rights-battle-pasadena-could-come-wide-legal-ramifications/> in 2013, agreeing to pay out about $1 million in legal fees. Approval of that settlement will also dissolve the city’s appeal of a lower court’s ruling that Pasadena ran afoul of the federal Voting Rights Act and intentionally discriminated against Hispanic voters in reconfiguring how council members are elected.
The local voting rights squabble had caught the attention of voting rights advocates and legal observers nationwide as some looked to it as a possible test case of whether the Voting Rights Act still serves<https://www.texastribune.org/2017/07/11/voting-rights-battle-pasadena-could-come-wide-legal-ramifications/preview/> as a safeguard for voters of color.
As things stand now, the dispute won’t set broader precedent across Texas or beyond state lines. But in a state embroiled in court-determined voting rights violations on several fronts<https://www.texastribune.org/2017/06/16/voter-wars-kickoff/>, the federal guardianship of Pasadena’s elections is meaningful, particularly following the U.S. Supreme Court’s 2013 finding<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> that conditions for voters of color had “dramatically improved.”
“I think it’s significant that in 2017 we have a trial court finding of intentional racial discrimination by a city in Texas and that the drastic remedy of preclearance has been successfully imposed,” said Rick Hasen, a professor at the University of California, Irvine’s law school who specializes in election law. “The Pasadena ruling indicates that in some places racial discrimination in voting is very much a thing of the present.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95184&title=%E2%80%9CPasadena%20drops%20appeal%2C%20will%20remain%20under%20federal%20oversight%20of%20election%20laws%E2%80%9D>
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>



--
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/20171004/66e8a4cc/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/20171004/66e8a4cc/attachment.png>