[EL] SCOTUS Texas order; more news

Tue Sep 12 18:00:35 PDT 2017

Supreme Court, on 5-4 Party Line Vote, Blocks Texas Redistricting Remedy for Now. What’s Next?<http://electionlawblog.org/?p=94773>
Posted on September 12, 2017 5:56 pm<http://electionlawblog.org/?p=94773> by Rick Hasen<http://electionlawblog.org/?author=3>

In two orders<https://twitter.com/KimberlyRobinsn/status/907763294626349061>, with all of the conservative Republican-appointed Justices voting in favor and all the liberal Democratic-appointed Justices opposed, the Supreme Court put on hold a lower court order for Texas to redraw congressional and state house district lines to cure voting rights problems. The lower court had found that some of the districts were drawn with a racially discriminatory intent, some were drawn with a racially discriminatory effect, and some were unconstitutional racial gerrymanders. Had the lower court order been put into effect, there would have been some new districts (which would have benefitted Democratic and minority voters in Texas) for the 2018 elections. Now, it is unlikely that such a remedy could be in place before 2020, the last elections before the next round of redistricting.

Texas’s request was early—the lower court had not even drawn the district lines yet, and so the Supreme Court’s involvement now is somewhat aggressive (on the other hand, if the 5 Justice majority knew where it was going to go, why prolong the uncertainty?).

What this means is that the 5 conservative Justices, including Justice Kennedy, are sufficiently confident that Texas could win this case (or that the plaintiffs won’t suffer that much harm to have another election under unconstitutional and illegal lines) to grant this stay.

For those who expect Justice Kennedy to be a savior here—or in the Gil partisan gerrymandering case (where he also voted with the Court to stop an interim remedy in Wisconsin pending Supreme Court resolution)—this is one data point against that hope.

Briefing will take months, and a decision not likely before June.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Updated: Someone at Heritage Sent Letter Urging Pence-Kobach to Keep Democrats, Mainstream Republicans, and Academics off Fraud Commission<http://electionlawblog.org/?p=94768>
Posted on September 12, 2017 2:51 pm<http://electionlawblog.org/?p=94768> by Rick Hasen<http://electionlawblog.org/?author=3>

Via a Campaign Legal Center <http://www.campaignlegalcenter.org/sites/default/files/03.%20%20Final%20Response%20%288.22.17%29.pdf> FOIA:

[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-09-12-at-2.47.21-PM.png]Note the reference to “the white paper we sent you” and “the three of us have written more on the voter fraud issue than anyone in the country on our side of the aisle.”  How could this not include von Spakovsky and Adams?

Pretty sure the “white paper” referred to is: J. Christian Adams, Donald Palmer & Hans von Spakovsky, Best Practices for Achieving Integrity in Voter Registration<https://publicinterestlegal.org/files/PILF-best-practices-report-FINAL.pdf> 3 (June 21, 2017),

Update: von Spakovsky told a reporte<https://twitter.com/JessicaHuseman/status/907717332063137797>r he had no knowledge of the letter and does not believe he sent it. But<http://talkingpointsmemo.com/dc/heritage-foundation-did-not-want-dems-on-election-panel> Heritage confirmed <https://twitter.com/dellcam/status/907722857203077121/photo/1> he wrote it.

This is an old pattern<http://electionlawblog.org/?p=19560> with von Spakovsky.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“The Missing Link in Gerrymandering Jurisprudence”<http://electionlawblog.org/?p=94766>
Posted on September 12, 2017 2:26 pm<http://electionlawblog.org/?p=94766> by Rick Hasen<http://electionlawblog.org/?author=3>

Ned Foley on Whitford:<http://moritzlaw.osu.edu/election-law/article/?article=13409>

Thus, this new computer-assisted statistical approach can be used to identify what the constitutional principle was looking for: an egregious partisan gerrymander.  Strictly defined, and precisely measured, an egregious partisan gerrymander is one that is identified as an outlier using this new computer-generated statistical technique.

Several amicus briefs in Gill invoke this new statistical technique as the method for enabling the Court to articulate a judicially manageable standard to identify unconstitutional gerrymanders.  One brief<http://www.scotusblog.com/wp-content/uploads/2017/09/16-1161-bsac-eric-lander.pdf> that discusses the technique in particular detail—and does so lucidly—is submitted on behalf of Eric Lander, the President of the Broad Institute of Harvard and MIT.  The ACLU’s brief<http://www.scotusblog.com/wp-content/uploads/2017/09/16-1161-bsac-ACLU.pdf>, in turn, does an effective job linking the statistical technique to the First Amendment’s requirement that the government regulate political competition between parties without improperly giving one party an excessive competitive advantage.

For Justices on the Court who are historically minded in their overall constitutional jurisprudence, and who thus wish to ground the constitutional analysis of partisan gerrymandering on relevant historical considerations, the new computer-generated statistical technique also can be linked to a history-based approach.  How so? First, the relevant history demonstrates that the original Gerry-mander of 1812—along with all partisan manipulations of legislative maps that are similarly egregious—has been regularly and vigorously condemned as inconsistent with the fundamental principles of popular sovereignty established in the original Constitution and reaffirmed in the Fourteenth Amendment.  Indeed, throughout the nineteenth century, the very practitioners of these egregious partisan gerrymanders recognized that they were acting contrary to constitutional principles, but the pressure of partisan politics prevented them from adhering to the Constitution as they knew they should.  This point is made effectively in an amicus brief<http://www.scotusblog.com/wp-content/uploads/2017/09/16-1161-bsac-historians.pdf> submitted by a group of distinguished historians, and it is also emphasized in my own recent scholarship<http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/03%20Foley_ART_IC.pdf>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Ballot Blocked: The Political Erosion of the Voting Rights Act”<http://electionlawblog.org/?p=94764>
Posted on September 12, 2017 7:40 am<http://electionlawblog.org/?p=94764> by Rick Hasen<http://electionlawblog.org/?author=3>

New book<http://www.sup.org/books/title/?id=26493> from Jesse Rhodes:

Voting rights are a perennial topic in American politics. Recent elections and the Supreme Court’s decision in Shelby County v. Holder, which struck down key enforcement provisions in the Voting Rights Act (VRA), have only placed further emphasis on the debate over voter disenfranchaisement. Over the past five decades, both Democrats and Republicans in Congress have consistently voted to expand the protections offered to vulnerable voters by the Voting Rights Act. And yet, the administration of the VRA has become more fragmented and judicial interpretation of its terms has become much less generous. Why have Republicans consistently adopted administrative and judicial decisions that undermine legislation they repeatedly endorse?

Ballot Blocked shows how the divergent trajectories of legislation, administration, and judicial interpretation in voting rights policymaking derive largely from efforts by conservative politicians to narrow the scope of federal enforcement while at the same time preserving their public reputations as supporters of racial equality and minority voting rights. Jesse H. Rhodes argues that conservatives adopt a paradoxical strategy in which they acquiesce to expansive voting rights protections in Congress (where decisions are visible and easily traceable) while simultaneously narrowing the scope of federal enforcement via administrative and judicial maneuvers (which are less visible and harder to trace). Over time, the repeated execution of this strategy has enabled a conservative Supreme Court to exercise preponderant influence over the scope of federal enforcement.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Court blocks penalties in new New Hampshire voting law”<http://electionlawblog.org/?p=94762>
Posted on September 12, 2017 7:35 am<http://electionlawblog.org/?p=94762> by Rick Hasen<http://electionlawblog.org/?author=3>

Josh Gerstein:<http://www.politico.com/blogs/under-the-radar/2017/09/12/new-hampshire-voting-law-court-ruling-242587>

New Hampshire’s Supreme Court has blocked recent changes to the state’s voting laws that would have exposed some first-time voters to a fine or jail time if they failed to submit residence paperwork within 10 days of registering.

New Hampshire Supreme Court Presiding Justice Charles Temple granted a temporary restraining order Tuesday against part of the law signed into law by Republican Gov. Chris Sununu in July and known as State Bill 3.

From the opinion<http://www.politico.com/f/?id=0000015e-7641-dad5-a77f-7ee52c790000>:

In the Court’s view, at least for the limited purposes of a temporary restraining order, the new civil and criminal penalties established by SB 3, codified in RSA 654:12, I(c)(2)(A) and RSA 659:34 are “severe” restrictions on the right to vote. Based upon its time-constrained review of the record and the relevant law, the Court cannot find that these restrictions are “narrowly drawn” by any stretch of the imagination. There are simply too many unanswered questions at this stage in the litigation. For instance, what if a same-day voter has the required documents at home, swears he/she will provide them, but the voter then cannot get them to the clerk’s office in time for one reason or another (such as illness, family emergency, or even a lack of a printer)? Under the plain language of the statute, it appears that such a voter will be subject to a $5,000 fine or even a year in jail for simply failing to return paperwork. The State’s argument at the hearing today—that these harsh penalties would be saved by prosecutorial discretion— was unconvincing to say the least. The average voter seeking to register for the firsttime very well may decide that casting a vote is not worth a possible $5,000 fine, a year in jail, or throwing himself/herself at the mercy of the prosecutor’s “discretion.” To the Court, these provisions of SB 3 act as a very serious deterrent on the right to vote, and if there is indeed a “compelling” need for them, the Court has yet to see it. Accordingly, the Court finds that the plaintiffs are entitled to a temporary order restraining the defendants from enforcing any of the new penalties associated with SB 3. Therefore, in the event any voter fails to provide documentation as required by RSA 654:12, I(c)(2)(A), the defendants are enjoined from seeking civil or criminal penalties.

While the Court has serious concerns regarding other parts of SB 3, the Court recognizes that the law is entitled a presumption of constitutionality. See AFT— N.H., 167 N.H. at 300. The Court therefore will not enter any additional temporary relief at this time.
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Posted in voting<http://electionlawblog.org/?cat=31>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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