[EL] ELB News and Commentary 4/3/18

Tue Apr 3 07:52:55 PDT 2018

nteresting Concurring Opinion by Judge Motz in Unpublished 4th Circuit Order on North Carolina Change to Primary Rules<http://electionlawblog.org/?p=98498>
Posted on April 3, 2018 7:51 am<http://electionlawblog.org/?p=98498> by Rick Hasen<http://electionlawblog.org/?author=3>

Read it here.<http://www.ca4.uscourts.gov/Opinions/181150.U.pdf>

It considers the kind of post-hoc arguments that can be made to justify a law affecting voting rights.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

"Don't let big and dark money 'drown out the truth and drown out your voice'"<http://electionlawblog.org/?p=98496>
Posted on April 3, 2018 7:43 am<http://electionlawblog.org/?p=98496> by Rick Hasen<http://electionlawblog.org/?author=3>

Katrina vanden Heuvel WaPo column.<https://www.washingtonpost.com/opinions/that-november-blue-wave-could-be-green-instead/2018/04/02/147d85a8-368e-11e8-8fd2-49fe3c675a89_story.html?utm_term=.306b4f1860ff>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Eric Segall: "Scalia the Justice: A Career of Contradictions (A Book Review)"<http://electionlawblog.org/?p=98494>
Posted on April 3, 2018 7:38 am<http://electionlawblog.org/?p=98494> by Rick Hasen<http://electionlawblog.org/?author=3>

Generous book review by Eric Segall<http://www.dorfonlaw.org/2018/04/scalia-justice-career-of-contradictions.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"CFI Launches Groundbreaking Database of 50 State Laws"<http://electionlawblog.org/?p=98492>
Posted on April 3, 2018 7:29 am<http://electionlawblog.org/?p=98492> by Rick Hasen<http://electionlawblog.org/?author=3>

Release: <http://www.cfinst.org/Press/PReleases/18-04-03/CFI%E2%80%99s_Groundbreaking_Database_Of_State_Campaign_Finance_Laws.aspx>

he Campaign Finance Institute is pleased to release a groundbreaking new tool, "CFI's Historical Database of State Campaign Finance Laws<http://cfinst.org/statelaws.aspx>". The database covers all of the states' campaign finance laws every two years since 1996. It is designed for everything from interactive and visualized lookups to downloadable datasets.

<http://cfinst.org/statelaws.aspx>Anyone with a serious interest in politics is bound to have made, heard, or wondered about claims to the effect that the laws governing money in politics "make a difference". These claims may be about who runs for office, how they campaign, who wins, how they govern, or what policies come out in the end. But until now it has been impossible to evaluate most of these claims properly. You cannot really understand a law's effects unless you can compare jurisdictions with different laws to themselves and each other over time.

CFI's new tool<http://cfinst.org/statelaws.aspx> opens the door to let everyone make those comparisons. It covers every state since 1996 and is structured to handle queries from the simplest to the most complex. Because not everyone will want to use the tool in the same way, the material comes in two formats.

One is a remarkably compact and attractive visualization that will let users look up the answers to what we expect will be their most common questions. For example:
*         What are the laws in my state? When did they change?
*         Which states disclose what kinds of information about independent spending?
*         Which ones changed their contribution limits after Citizens United?
*         Which states offer public financing or political contribution tax credits?
*         In rank order, which states had higher and lower disclosure thresholds (or contribution limits, etc.) in any given year?

All of these kinds of questions can be answered through the visualization tool<http://cfinst.org/statelaws.aspx>. But the tool is based on only a fraction of what the data can offer. The full database has literally hundreds of pieces of information for each state and year. The visualization only covers about 10% of these. The full set can be downloaded in whole, or part. It then can be manipulated or merged with other data sets at the user's pleasure. Downloading is the first step for answering "what difference" questions. For example:

*         What difference does it make to have higher or lower limits?

*         Is the law really responsible for a particular effect - whether positive or negative?...
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

"It's harder for Democrats to gerrymander effectively"<http://electionlawblog.org/?p=98490>
Posted on April 3, 2018 7:23 am<http://electionlawblog.org/?p=98490> by Rick Hasen<http://electionlawblog.org/?author=3>

Vox reports.<https://www.vox.com/policy-and-politics/2018/4/2/17173158/democrats-gerrymander-segregation>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

"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>

--
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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