[EL] ELB News and Commentary 4/2/18

[Rick Hasen]

“Scalia’s Goal Of Unwinding Voter Protections Is Becoming A Reality”<http://electionlawblog.org/?p=98487>
Posted on April 2, 2018 2:44 pm<http://electionlawblog.org/?p=98487> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://talkingpointsmemo.com/news/scalias-goal-of-unwinding-voter-protections-is-becoming-a-reality> for TPM Cafe. It begins:

In a Supreme Court term already bursting with election cases, from two<http://www.scotusblog.com/case-files/cases/gill-v-whitford/?wpmp_switcher=desktop> partisan gerrymandering disputes<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/?wpmp_switcher=desktop> to a fight<http://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/?wpmp_switcher=desktop> about the permissibility of Ohio’s voter purges to a lawsuit<http://www.scotusblog.com/case-files/cases/minnesota-voters-alliance-v-mansky/?wpmp_switcher=desktop> challenging bans on political clothing in Minnesota polling places, it’s easy to overlook yet another significant voting appeal the Court will hear later this month. In Abbott v. Perez<http://www.scotusblog.com/case-files/cases/abbott-v-perez-2/?wpmp_switcher=desktop>, the Court will examine whether the state of Texas violated the Voting Rights Act and the United States Constitution when it drew congressional and state legislative district lines in ways that hurt Latino and African-American voters. The protracted and difficult litigation involves redistricting plans from way back in 2011 and shows how much was lost when the Supreme Court killed another key provision of the Voting Rights Act in its 2013 Shelby County v. Holder<https://scholar.google.com/scholar_case?case=1305449212751290785&hl=en&as_sdt=6&as_vis=1&oi=scholarr> case.

Abbott v. Perez<http://www.scotusblog.com/case-files/cases/abbott-v-perez-2/?wpmp_switcher=desktop> could well preview what’s likely to come in the next few years. All three branches of government have pulled back on protecting voting rights, and the effects of that move are becoming clear. We may soon fulfill the late Justice Antonin Scalia’s vision of an emasculated Voting Rights Act and much weaker protections for minority voters by the federal courts.

It concludes:

And the Supreme Court is poised to make things worse. With rumors circulating that perennial swing Justice Anthony Kennedy could retire as soon as this term, the Court is likely to lurch to the right<https://www.cnn.com/2018/03/27/politics/supreme-court-prepares-for-right-turn/index.html>. As I argue in my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=sr_1_1?ie=UTF8&qid=1516904231&sr=8-1&keywords=richard+l.+hasen>, the late conservative Justice Antonin Scalia took an even narrower view of Voting Rights than the Court as a whole, and now, after his death, Justice Scalia’s influence is only growing<https://slate.com/news-and-politics/2018/03/scalias-legacy-is-stronger-than-ever.html>. If President Trump gets another appointment to the Supreme Court to replace Justice Kennedy, expect the next Justice (like new Justice Neil Gorsuch) to emulate Justice Scalia’s approach and weaken voting rights even further.

Justice Scalia openly expressed disdain for the Act, expressing the view<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-96_7648.pdf> at the Shelby County oral argument that Congress renewed the Act in 2006 by overwhelming majorities because of “a phenomenon that is called perpetuation of racial entitlement.” He believed<https://www.law.cornell.edu/supct/html/05-204.ZX4.html> that Section 2 could well be an unconstitutional racial preference, and argued that, regardless, Section 2 should be read not to apply<https://www.law.cornell.edu/supct/html/91-2012.ZC1.html> to redistricting matters at all.

The bottom line is that the Court’s mixed record on enforcing the Voting Rights Act could soon get worse if Trump gets another Court appointment. Minority voters, already at a disadvantage in many parts of the country because of enduring racism and the unwillingness of white voters to support minority candidates for office<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3107752>, could soon have tougher political battles ahead. And the scariest part is that, thanks in part to Justice Scalia’s influence, the courts may soon no longer be there as a backstop.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Watch Archived Video of Sherillyn Ifill, Pam Karlan, Debo Adegbile, Steve Mulroy and Me Talk Voting Rights at MLK50 Event<http://electionlawblog.org/?p=98485>
Posted on April 2, 2018 2:40 pm<http://electionlawblog.org/?p=98485> by Rick Hasen<http://electionlawblog.org/?author=3>

Alternative link.<https://www.youtube.com/watch?time_continue=3&v=4VcLBVYkI4k>
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


“The Multiple Uses of Justice Scalia”<http://electionlawblog.org/?p=98483>
Posted on April 2, 2018 2:37 pm<http://electionlawblog.org/?p=98483> by Rick Hasen<http://electionlawblog.org/?author=3>

Calvin TerBeek blogs<https://balkin.blogspot.com/2018/04/the-multiple-uses-of-justice-scalia.html> at Balkinization.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>


Standing and Partisan Gerrymandering<http://electionlawblog.org/?p=98481>
Posted on April 1, 2018 8:13 pm<http://electionlawblog.org/?p=98481> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

At first glance, a district-specific theory of partisan gerrymandering (like the one presented in Benisek) seems to approach the issue of standing very differently from a statewide gerrymandering theory (like the one presented in Whitford). After all, a plaintiff in a district-specific case complains only about her inability to elect her preferred candidate in her own district. A plaintiff in a statewide case, on the other hand, objects to the entire district map that dilutes the electoral influence of the plaintiff’s party.

On closer inspection, however, the two views of standing become almost indistinguishable, at least for certain categories of voters. Consider the plaintiff in the district-specific case. Another way to describe her grievance is that she could have been placed in a district where she would have been able to elect her candidate of choice. But instead, the state chose to break apart the partisan group to which the plaintiff belongs, rendering that group unable to elect its preferred candidates in any of the districts in which the group’s members found themselves.

Do any plaintiffs in statewide cases incur the same injury? Absolutely. Some of them (1) live in districts where they can’t elect their candidates of choice; yet (2) could have been placed in districts where they would have been able to elect their preferred candidates. These plaintiffs are in a position identical to that of the district-specific litigant. They are voters who are—but didn’t have to be—cracked.

Unsurprisingly, the complaint in Whitford is full of stories of plaintiffs in this situation. Take Mary Lynne Donohue of Sheboygan, Wisconsin. “Ms. Donohue was harmed when the City of Sheboygan was split into Districts 26 and 27.” Her district “was cracked and converted from a Democratic to a Republican district.” If Sheboygan hadn’t been split, she would still have been in a Democratic district. Or consider Jerome Wallace, a resident of the suburbs north of Milwaukee. “Mr. Wallace was harmed when Democrats in [his old district] were cracked so that his previously Democratic district is now a Republican district.” If the litigant in the district-specific case has standing, so must plaintiffs like Ms. Donohue and Mr. Wallace.

Now, it’s true that statewide cases also include plaintiffs who allege packing rather than cracking. In Whitford, for instance, Wendy Sue Johnson lives in a heavily Democratic district in Eau Claire, and Janet Mitchell lives in another very Democratic district in Racine. Both Eau Claire and Racine could have yielded additional Democratic seats—and did yield them under Wisconsin’s previous map, which didn’t overconcentrate Democrats to the same degree.

So do plaintiffs like Ms. Johnson and Ms. Mitchell have standing too? The district-specific case doesn’t answer the question, but Supreme Court precedents in the related area of racial vote dilution make clear that packing is just as harmful as cracking. “[M]anipulation of district lines can dilute the voting strength of . . . minority group members . . . by fragmenting the minority voters among several districts . . . or by packing them into one or a small number of districts,” the Court explained in Johnson v. De Grandy. “How such concentration or ‘packing’ may dilute minority voting strength is not difficult to conceptualize,” the Court added in Voinovich v. Quilter, using as an example a minority group large enough “to constitute a majority in three districts” but instead “packed into two districts.” Under these precedents, cracking and packing are indistinguishable for standing purposes.

It’s true as well that statewide partisan gerrymandering cases include plaintiffs who aren’t deliberately cracked or packed themselves. The lead plaintiff in Whitford, Mr. William Whitford, lives in Madison and would be in a heavily Democratic district under any plausible map. Similarly, Democratic voters in Milwaukee’s ruby-red “WOW” suburbs would be in Republican districts unless traditional line-drawing criteria were brazenly flouted.

I think these plaintiffs nevertheless have standing. They are supporters of Democratic candidates and policies, and their collective representation in the Wisconsin legislature has been undermined by the district plan. Crucially, however, their status is legally irrelevant, because even if they don’t have standing, other plaintiffs undeniably do. In other words, the Court doesn’t have to decide whether party affiliation alone gives rise to an injury-in-fact, because that isn’t the only theory of harm presented in Whitford. Again, Ms. Donohue and Mr. Wallace have personally been cracked. Ms. Johnson and Ms. Mitchell have themselves been packed. Their claims to standing thus rest not just on party affiliation, but also on the cracking and packing that have long been recognized as sufficient bases to sue.

But can these plaintiffs challenge the district map in its entirety? They sure can, if the Court’s related cases are any guide. In a one person, one vote suit, a single voter in a single overpopulated district has standing to attack the whole malapportioned plan. Additional plaintiffs in all of the plan’s other overpopulated districts aren’t required. In Voting Rights Act litigation, likewise, a single minority voter living in the area of the alleged vote dilution has standing to attack all of the ostensibly dilutive districts. Again, separate plaintiffs aren’t necessary in every place that cracking and packing may have occurred.

The upshot of this discussion is that the Court can’t punt in Whitford by holding that Mr. Whitford (and other plaintiffs in his position) lack standing. Even if they lack it, other plaintiffs don’t. And under the Court’s precedents, those other plaintiffs are free to challenge the district map as a whole.

Moreover, if the Court were to punt in Whitford, it would barely delay its confrontation with the merits of partisan gerrymandering claims. The Whitford litigants would surely seek leave to amend their complaint, and would add as plaintiffs many more Democratic voters as well as organizations with clear statewide interests, like the Democratic Party of Wisconsin. With every possible standing objection resolved, the Whitford litigants would then quickly return to the Court’s doorstep.

Additionally, every possible standing objection has been resolved in another partisan gerrymandering case that’s already pending before the Court. In the litigation over North Carolina’s congressional plan, the plaintiffs include Democratic voters in every congressional district in the state, two good-government groups with statewide interests (Common Cause and the League of Women Voters), and the Democratic Party of North Carolina. A punt in Whitford would thus give the Court only a few months’ respite before it has to decide another dispute in which no punt is possible.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Top Recent Downloads in Election Law on SSRN<http://electionlawblog.org/?p=98476>
Posted on April 1, 2018 5:07 pm<http://electionlawblog.org/?p=98476> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:

Recent Top Papers (60 days)

As of: 31 Jan 2018 – 01 Apr 2018
Rank

Paper

Downloads

1.

Online Political Microtargeting: Promises and Threats for Democracy<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3128787>
Frederik Zuiderveen Borgesius<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1896949>, Judith Moeller<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2533834>, Sanne Kruikemeier<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2918680>, Ronan Ó Fathaigh<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1877361>, Kristina Irion<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=792109>, Tom Dobber<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2918681>, Balázs Bodó<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=666310> and Claes H. de Vreese<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=627839>
University of Amsterdam – IViR Institute for Information Law (IViR), University of Amsterdam, University of Amsterdam, University of Amsterdam – Institute for Information Law (IViR), University of Amsterdam, University of Amsterdam, University of Amsterdam – Institute for Information Law (IViR) and University of Amsterdam

Date Posted: 26 Feb 2018
Last Revised: 26 Feb 2018

133

2.

The Consequences of Citizens United: What Do the Lawyers Say?<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3137211>
Ann Southworth<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=372621>
University of California, Irvine School of Law

Date Posted: 12 Mar 2018
Last Revised: 12 Mar 2018

87

3.

Constitutional Preservation and the Judicial Review of Partisan Gerrymanders<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3128936>
Edward B. Foley<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=33055>
Ohio State University (OSU) – Michael E. Moritz College of Law

Date Posted: 24 Feb 2018
Last Revised: 20 Mar 2018

87

4.

The Disparate Impact Canon<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3110990>
Michael Morley<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2159971>
Barry University School of Law

Date Posted: 05 Feb 2018
Last Revised: 05 Feb 2018

77

5.

‘Civil Right No. 1:’ Dr. King’s Unfinished Voting Rights Revolution<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3107752>
Richard L. Hasen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>
University of California, Irvine School of Law

Date Posted: 29 Jan 2018
Last Revised: 21 Feb 2018

76

6.

Campaign Finance, Free Speech, and Boycotts<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3102454>
Ciara Torres-Spelliscy<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=584767>
Stetson University – College of Law

Date Posted: 23 Jan 2018
Last Revised: 22 Feb 2018

57

7.

A Voice in the Wilderness: John Paul Stevens, Election Law, and a Theory of Impartial Governance<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3134212>
Joshua Douglas<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=683935> and Cody Barnett<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2852338>
University of Kentucky – College of Law and Independent

Date Posted: 09 Mar 2018
Last Revised: 09 Mar 2018

57

8.

The Supreme Court, Judicial Elections, and Dark Money<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3119858>
Richard Briffault<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199186>
Columbia Law School

Date Posted: 08 Feb 2018
Last Revised: 08 Feb 2018

48

9.

Taking Virtual Representation Seriously<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3118775>
Joseph Fishkin<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=664357>
University of Texas at Austin – School of Law

Date Posted: 16 Feb 2018
Last Revised: 23 Feb 2018

48

10.

Race and Representation Revisited: The New Racial Gerrymandering Cases and Section 2 of the VRA<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3138260>
Guy-Uriel E. Charles<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=282370> and Luis E. Fuentes-Rohwer<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=282368>
Duke University School of Law and Indiana University Maurer School of Law

Date Posted: 14 Mar 2018
Last Revised: 14 Mar 2018

45

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--
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>
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http://electionlawblog.org<http://electionlawblog.org/>


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