[EL] ELB News and Commentary 9/14/17

Wed Sep 13 20:42:53 PDT 2017

Sen. McConnell Wants to Kill Blue Slips for Federal Appellate Court Nominees<http://electionlawblog.org/?p=94804>
Posted on September 13, 2017 8:38 pm<http://electionlawblog.org/?p=94804> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/09/13/us/politics/mcconnell-federal-judges-trump.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=6&pgtype=sectionfront&_r=0>
Though the Senate has virtually eliminated the ability of the minority party to block appointments to the bench from the Supreme Court on down, individual senators can still thwart nominees from their home states by refusing to sign off on a form popularly known for its color — the blue slip.
Now, with some Democrats refusing to consent as the Trump administration moves to fill scores of judicial vacancies, Senator Mitch McConnell, the Kentucky Republican and majority leader, is for the first time publicly advocating that the blue slip be made strictly advisory when it comes to appeals court nominees — the most powerful judges after those on the Supreme Court.
“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” Mr. McConnell said in an interview with The New York Times for “The New Washington” podcast. He said he favored retaining the blue slip authority for lower-level district court judges.
With the conflict escalating, Senator Chuck Schumer of New York, the Democratic leader, has requested a meeting with Mr. McConnell and the top Republican and Democratic members of the Judiciary Committee to dissuade Republicans from weakening the blue slip.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Dunlap blasts head of election integrity commission over N.H. voter fraud assertion”<http://electionlawblog.org/?p=94802>
Posted on September 13, 2017 8:27 pm<http://electionlawblog.org/?p=94802> by Rick Hasen<http://electionlawblog.org/?author=3>
Maine’s secretary of state wakes up:<http://www.pressherald.com/2017/09/13/matt-dunlap-questions-kris-kobachs-voter-fraud-assertions-at-n-h-meeting/>
A day after admonishing the vice chairman of President Trump’s election integrity commission for making unsubstantiated allegations of voter fraud in New Hampshire, Maine Secretary of State Matthew Dunlap said it is becoming clear that most of his fellow commissioners define voter fraud not as violations of voting laws but as having policies that make it easy for people they don’t want to see voting having too easy a time doing so.
“Maybe I’m being too cynical,” Dunlap said Wednesday, “but they are looking at voter fraud as being if legislatures are making it too easy for people who don’t own property in a town to register there.”
It’s not too late for him to resign.<http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Trump ethics watchdog moves to allow anonymous gifts to legal defense funds”<http://electionlawblog.org/?p=94800>
Posted on September 13, 2017 8:17 pm<http://electionlawblog.org/?p=94800> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/09/13/trump-ethics-watchdog-legal-defense-242690>
The U.S. Office of Government Ethics has quietly reversed its own internal policy prohibiting anonymous donations from lobbyists to White House staffers who have legal defense funds.
The little-noticed change could help President Donald Trump’s aides raise the money they need to pay attorneys as the Russia probe expands — but raises the potential for hidden conflicts of interest or other ethics trouble.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

“Democrats on Voter Fraud Panel Join Those Criticizing It”<http://electionlawblog.org/?p=94798>
Posted on September 13, 2017 4:13 pm<http://electionlawblog.org/?p=94798> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Wines <https://www.nytimes.com/2017/09/12/us/voter-fraud-panel.html?smid=tw-nytnational&smtyp=cur> for the NYT.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

Supreme Court Won’t Hurry Consideration of Maryland Partisan Gerrymandering Case<http://electionlawblog.org/?p=94796>
Posted on September 13, 2017 2:42 pm<http://electionlawblog.org/?p=94796> by Rick Hasen<http://electionlawblog.org/?author=3>
Kimberly Robinson<https://twitter.com/KimberlyRobinsn/status/908052901825859586> with the order.
I linked to the jurisdictional statement here.<http://electionlawblog.org/?p=94757>
I expect this means that the Maryland case, like the North Carolina partisan gerrymandering case, will be held for resolution of Gill v. Whitford, and then sent back for reconsideration in light of that case.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Political Geographers’ Amicus On Distinguishing Partisan Gerrymandering From Natural Geographic Clustering<http://electionlawblog.org/?p=94789>
Posted on September 13, 2017 2:16 pm<http://electionlawblog.org/?p=94789> by Richard Pildes<http://electionlawblog.org/?author=7>
I want to single out, in two posts, two amicus briefs in Whitford.  I am co-counsel on the first, filed on behalf of a group of academic experts in political geography (see here<http://www.scotusblog.com/wp-content/uploads/2017/09/16-1161-bsac-political-geography.pdf>).
I chose to represent these experts because I considered it particularly important that the Court be aware of the social-scientific techniques that now exist, and that are being further developed, that enable courts to determine objectively whether the partisan advantages in a districting plan are the result of intentional partisan gerrymandering or of “neutral factors,” such as the greater natural geographic clustering of one party’s voters (typically, Democrats in cities). Many of the other briefs in the case, from both the challengers and the State, as well as from other amici, refer to the work described in this brief, which is being done by academics such as Jonathan Rodden, Jowei Chen, Wesley Pegden, Wendy Tam, and others.   This brief provides a full explanation of these techniques, which are now available and can help provide a judicially manageable standard for adjudicating partisan gerrymandering claims.
In determining whether partisan gerrymandering has occurred and to what extent, other social scientists have developed means of analyzing whether districting plans treat the two major parties in symmetric fashion:  if Democrats win 55% of the vote but gain 65% of the seats, that is not necessarily a problem of partisan gerrymandering if Republicans would also gain 65% of the seats if they won 55% of the vote.  But while being able to determine whether a plan treats voters of each party the same or “asymmetrically” is an important first step, it is still just that.  For it remains possible that this difference in how the two parties fare might be the result, as noted above for example, of the natural geographic clustering of one party’s voters.   Indeed, the Appellants and the Wisconsin legislature both defend Wisconsin’s plan party on this basis.
The techniques described in this brief enable the next step of analysis:  distinguishing between plans that favor one party, but for legitimate or neutral reasons, and those that can best be explained as doing so only as a result of intentional partisan gerrymandering.  At the time of the Court’s last major confrontation with the issue of partisan gerrymandering in the Vieth case (2004), Justice Kennedy withheld judgment but recognized that “new technologies may “produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose,” which would “facilitate court efforts to identify and remedy th[ose] burdens.”  This brief describes precisely these important new methods of analysis that have emerged since Vieth.
The political geographers’ amicus brief describes three related techniques.  I won’t try to re-create all of that discussion here.  But the first technique, which has become the most widely known and has been judicially endorsed, by the Fourth Circuit in this <http://valawyersweekly.com/fulltext-opinions/2016/07/08/016-2-113-raleigh-wake-citizens-assn-v-wake-county-board-of-elections/> opinion, takes advantage of modern computing power to create vast numbers of simulated districting plans based on traditional districting criteria, which can then be compared to the enacted plan.  As the Fourth Circuit put it, the logic of this technique is that “if a computer randomly draws five hundred redistricting plans following traditional redistricting criteria, and the actual enacted plans fall completely outside the range of what the computer has drawn, one can conclude that the traditional criteria do not explain that enacted plan.”
In the Wisconsin case, each of these three analytical methods for measuring the effect of political geography support the conclusion that the Wisconsin plan is an extreme, intentional partisan gerrymander.  That is particularly noteworthy, because two of the signatories to the brief — Professors Rodden and Chen — had concluded in an important article applying the simulated-plans technique that part of the Republican advantage in the House was best explained not by partisan gerrymandering, but by the greater natural geographic clustering of Democratic voters.  Yet applying that same technique here, they conclude the Wisconsin plan cannot be explained by “clustering” but only by intentional partisan gerrymandering.

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

von Spakovsky Says He Did Not Send Email to Attorney General But to Others and It Was Forwarded<http://electionlawblog.org/?p=94791>
Posted on September 13, 2017 1:51 pm<http://electionlawblog.org/?p=94791> by Rick Hasen<http://electionlawblog.org/?author=3>
Statement to Jessica Huseman<https://twitter.com/JessicaHuseman/status/908012495968890880>.
There doesn’t appear to be a question he wrote the letter against including Democrats, mainstream Republicans or academics on the Commission. The question is over who he sent it to.
Looking at how things were forwarded, it is consistent with von Spakovsky sending the letter to someone who forwarded it to someone at DOJ.
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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
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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