[EL] ELB News and Commentary April 1, 2018

[Rick Hasen]

Justice Breyer Floats Idea of Nine-Part Burden Shifting Test for Partisan Gerrymandering Claims, Suggests He and Kennedy Flesh It Out Over Three Years<http://electionlawblog.org/?p=98472>
Posted on April 1, 2018 2:29 pm<http://electionlawblog.org/?p=98472> by Rick Hasen<http://electionlawblog.org/?author=3>

SCOTUSBlog<https://www.independent.co.uk/news/april-fools-day-2018-news-live-roundup-updating-fake-pranks-headlines-jokes-easter-a8283586.html>:

During an oral argument monologue lasting more than 15 minutes<http://joshblackman.com/blog/2017/10/03/justice-breyer-asked-for-exactly-30-seconds-he-gave-us-a-record-breaking-57-line-breyer-page/> in a Maryland partisan gerrymandering case, Justice Stephen Breyer suggested that solving the partisan gerrymandering problem would be “simple” if the Justices simply spent enough time to develop “a multi-factor totality of the circumstances test containing at least nine elements with a burden-shifting component to ferret out unjustified partisan entrenchment.” He implored Justice Kennedy to remain on the Court<https://twitter.com/adamliptak/status/979023117346537473> through the 2020 elections to see the project through.

Following the monologue, Chief Justice Roberts commented,<https://books.google.com/books?id=jHsmCwAAQBAJ&pg=PT168&lpg=PT168&dq=chief+justice+roberts+oh+please&source=bl&ots=mDFrrFo8yz&sig=qdUtkFgI_9N3XQntM7RQ0Cd1IFo&hl=en&sa=X&ved=0ahUKEwjX8d3ngZraAhVoiFQKHVdxDCIQ6AEIaDAJ#v=onepage&q=chief%20justice%20roberts%20oh%20please&f=false> “Oh please.”
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Posted in election law "humor"<http://electionlawblog.org/?cat=52>


“Just how big of a hurdle is gerrymandering to Democrats’ taking back the House this November?”<http://electionlawblog.org/?p=98470>
Posted on April 1, 2018 1:39 pm<http://electionlawblog.org/?p=98470> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix:<https://www.washingtonpost.com/news/the-fix/wp/2018/03/31/just-how-big-of-a-hurdle-is-gerrymandering-to-democrats-taking-back-the-house-this-november/?utm_term=.16853b32eecf>

But not everyone agrees with the Brennan Center’s conclusion that gerrymandering will be a nearly insurmountable hurdle to Democrats’ chances this November to win back the House. Yes, gerrymandering is something Democrats need to overcome, but it may be one they can — and have in the not-too-distant past — overcome.

Democrats probably only need to win the popular vote by 7 percent to obtain a bare majority in the House, calculates David Wasserman, the House editor for the nonpartisan Cook Political Report, which analyzes congressional races. And while it may not seem like much of a difference, winning 7 percent of the popular vote is a more doable number than 11 percent in politics. Both parties have performed that well in wave elections.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Trump to Revive Voter Fraud Commission, Naming Roseanne Barr as Chair<http://electionlawblog.org/?p=98467>
Posted on April 1, 2018 1:29 pm<http://electionlawblog.org/?p=98467> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.theverge.com/2018/4/1/17185652/april-fools-day-2018-pranks-jokes-best-worst-lamest>

After the embarrassing collapse<https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html> earlier this year of President Trump’s handpicked commission headed by Vice Mike Pence and Kansas Secretary of State Kris Kobach to investigate purported voter fraud in the 2016 elections, the President is trying again but with a new leader, comedian Rosanne Barr.

Barr, whose reboot of the “Roseanne” television series about white working class voters drew record viewership last week, attracted the attention of Trump for channelling the views of core Trump voters. Trump has lately turned to television stars for leadership positions in the administration, but this is the first time he has picked a sitcom star.

Trump explained the decision in a series of tweets. One read<https://thinkprogress.org/kobach-trial-mess-b617c85bf0c4/>: “Kris Kobach did not even know the basic rules of evidence when he tried to defend Kansas’s law to prevent hordes of non-citizens from voting. Sad!” Another read<https://twitter.com/ElectProject/status/951607020498677761>: “It’s not true that @VP called the last commission a ‘shit sandwich<https://www.huffingtonpost.com/entry/kris-kobach-proof-of-citizenship_us_5a9f44c2e4b0d4f5b66b5b9d>.’ Fake news!”

He explained the choice of Barr by tweeting: “Did you see those ‘Roseanne’ ratings? If she can reboot that show so well she can reboot the VOTER FRAUD commission figure out how many ILLEGALS are voting in our elections. Democrats support voter fraud and hate America. HAPPY EASTER.”


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Posted in election law "humor"<http://electionlawblog.org/?cat=52>


Final Version of My “Cheap Speech” Paper Now Posted on SSRN<http://electionlawblog.org/?p=98465>
Posted on April 1, 2018 1:12 pm<http://electionlawblog.org/?p=98465> by Rick Hasen<http://electionlawblog.org/?author=3>

I have posted on SSRN the final version of my paper, Cheap Speech and What It Has Done (to American Democracy), 16 First Amendment Law Review 200 (2018).

Here is the abstract:

In a remarkably prescient article in a 1995 Yale Law Journal symposium on “Emerging Media Technology and the First Amendment,” Professor Eugene Volokh looked ahead to the coming Internet era and correctly predicted many changes. In Cheap Speech and What It Will Do, Volokh could foresee the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how cheap speech would usher in radical new opportunities for readers, viewers, and listeners to custom design what they read, see, and hear, while concomitantly undermining the power of intermediaries including publishers and book store owners.

To Volokh, these changes were exciting and democratizing. The overall picture he painted was a positive one, especially as First Amendment doctrine no longer had to deal with the scarcity of broadcast media to craft special First Amendment rules curtailing some aspects of free speech. As this article for a First Amendment Law Review symposium on “Fake News” argues, twenty-two years later, the picture of what cheap speech has already done and is likely to still do — in particular to American democracy — is considerably darker than Volokh’s vision. No doubt cheap speech has increased convenience, dramatically lowered the costs of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech also have undermined mediating and stabilizing institutions of American democracy including newspapers and political parties, with negative social and political consequences. In place of media scarcity, we now have a media firehose which has diluted trusted sources of information and led to the rise of “fake news” — falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Rather than democratizing our politics, cheap speech appears to be hastening the irrelevancy of political parties by facilitating the ability of demagogues to secure support from voters by appealing directly to them, sometimes with incendiary appeals. Social media also can both increase intolerance and overcome collective action problems, both allowing for peaceful protest but also supercharging polarization and raising the dangers of violence in the United States.

The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap speech, but it may stand in the way of needed reforms. For example, in the campaign finance arena the Court’s doctrine and accompanying libertarian ethos may stymie efforts to limit foreign money flowing into elections, including money being spent to propagate “fake news.” The Court’s reluctance to allow the government to regulate false speech in the political arena could limit laws aimed at requiring social media sites to curb false political advertising. Loose, optimistic dicta in the Justice Kennedy’s majority opinion for the Court in 2017’s Packingham v. North Carolina case also may have unintended consequences with its infinitely capacious language about First Amendment protection for social media. In the era of cheap speech, some shifts in First Amendment doctrine seem desirable to assist citizens in ascertaining truth and bolstering stabilizing institutions. Nonetheless, it is important not to fundamentally rework First Amendment doctrine, which also serves as a bulwark against government censorship and oppression potentially undertaken in an ostensible effort to battle “fake news.”

Non-governmental actors, rather than the courts and government, are in the best position to ameliorate some of the darker effects of cheap speech. Social media hosts and search sites such as Facebook, Google, and Twitter can assist readers, viewers, and listeners in ferreting out the truth if there is the commercial will to do so. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved. Fact checks can also help. Subsidies for (especially local) investigative reporting can also help the problems of corruption and bolster the credibility of newspapers and other supports for civil society. But nothing is certain to work in these precarious times, and the great freedom of information which Volokh rightly foresaw in the era of cheap speech is coming with a steep price for our democracy.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


“Republican Legislatures in Wisconsin, North Carolina Consider Delaying, Cancelling 2018 Congressional Elections”<http://electionlawblog.org/?p=98463>
Posted on April 1, 2018 1:07 pm<http://electionlawblog.org/?p=98463> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://www.youtube.com/watch?v=dQw4w9WgXcQ>

Fresh off an unsuccessful attempt<https://www.jsonline.com/story/news/politics/2018/03/23/senate-gop-leader-wants-bill-undercut-judges-order-gov-scott-walker-schedule-special-election/453291002/> to ignore state law and a overturn a state court order requiring the holding of special legislative elections to fill unplanned vacancies, Wisconsin legislative leaders have been examining proposals to cancel  or delay the 2018 elections for Wisconsin’s eight congressional seats. Facing a Democratic electorate mobilized against the Trump presidency and ready to vote in November and worried about the prospect of losing Republican control of the House of Representatives, the North Carolina general assembly is considering similar legislation, after successfully manipulating<https://twitter.com/Taniel/status/980523780891119616> the rules for judicial elections in the state for 2018 only.

One Republican legislator in Wisconsin, speaking on condition of anonymity to avoid antagonizing his constituents, said<https://www.washingtonpost.com/news/the-intersect/wp/2018/04/01/an-updating-infuriating-list-of-all-the-april-fools-pranks-on-the-internet-in-2018/> that “in a wave election, voter id laws just don’t do the job.”
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Posted in election law "humor"<http://electionlawblog.org/?cat=52>


“Companies can expect political money grab ahead of midterms”<http://electionlawblog.org/?p=98461>
Posted on April 1, 2018 12:54 pm<http://electionlawblog.org/?p=98461> by Rick Hasen<http://electionlawblog.org/?author=3>

Bruce Freed oped<http://thehill.com/opinion/campaign/380973-companies-can-expect-political-money-grab-ahead-of-midterms> in The Hill:

It doesn’t take a crystal ball to tell the implications of Democrat Conor Lamb’s special election victory just a few weeks ago for congressional races in November: Corporations should expect a hypercharged grab for their political money.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


Court rejects challenge to Broward list maintenance<http://electionlawblog.org/?p=98458>
Posted on March 30, 2018 2:09 pm<http://electionlawblog.org/?p=98458> by Justin Levitt<http://electionlawblog.org/?author=4>

An update out of south Florida: a federal court just rejected a claim<http://electionlawblog.org/wp-content/uploads/20180330-Bellitto-v-Snipes-decision.pdf> by the ACRU that Broward County has a legal responsibility to purge voters more aggressively.

There’s plenty of detail in the opinion about what Broward does and does not currently do.  One piece that may be of particular interest: on pp. 14-20, the court dug into the comparison of census figures and registration rates, and the talking point that there must be something funny going on when the data ostensibly shows more registered voters than eligible electors.  “Ostensibly” is the key: as the court recognized, the comparison involves apples and oranges, and for many of the reasons I mentioned here<http://electionlawblog.org/?p=95240>, the math may look damning on the surface but is fundamentally flawed.  Or, as the court put it:

ACRU’s argument that Broward County’s registration rates are unreasonably high is, therefore, unsupported by any credible evidence and necessarily fails to support ACRU’s contention that Snipes failed to comply with the NVRA’s list-maintenance requirements.
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Posted in voter registration<http://electionlawblog.org/?cat=37>


“Census Bureau Expert Panel Rebukes Decision to Add Citizenship Question”<http://electionlawblog.org/?p=98456>
Posted on March 30, 2018 12:45 pm<http://electionlawblog.org/?p=98456> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/03/30/us/census-bureau-citizenship.html>

A Census Bureau panel of expert advisers on Friday rebuked the Trump administration’s decision<https://www.nytimes.com/2018/03/26/us/politics/census-citizenship-question-trump.html> to add a question on citizenship to the 2020 census, saying the move relied on “flawed logic” and posed a host of potential threats to the accuracy and confidentiality of the head count.

The panel, the Census Scientific Advisory Committee, said the addition of the citizenship question would depress the response to the census and stir a potentially damaging flood of misinformation about the government’s plans for the citizenship information it collects.

The objections were included in a statement to the acting director of the Census Bureau, Ron Jarmin, issued at the end of the panel’s semiannual meeting. The panel, a group of prominent demographers, economists and other experts, advises Mr. Jarmin on census preparations.

The group’s two-day meeting at the bureau’s headquarters in Suitland, Md., was punctuated by concerns and complaints, some of them anguished, about what the decision would do to the census and to the bureau itself.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“California voters are joining this party by mistake, but lawmakers aren’t doing anything about it”<http://electionlawblog.org/?p=98454>
Posted on March 30, 2018 12:42 pm<http://electionlawblog.org/?p=98454> by Rick Hasen<http://electionlawblog.org/?author=3>

John Myers<http://www.latimes.com/politics/la-pol-ca-road-map-american-independent-party-20180330-story.html> for the LAT.
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Posted in third parties<http://electionlawblog.org/?cat=47>



--
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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