[EL] ELB News and Commentary 4/23/18

[Rick Hasen]

“Seven years later: Why everyone is mad in the Texas redistricting fight”<http://electionlawblog.org/?p=98779>
Posted on April 22, 2018 9:14 pm<http://electionlawblog.org/?p=98779> by Rick Hasen<http://electionlawblog.org/?author=3>

Alexa Ura<https://www.texastribune.org/2018/04/04/texas-redistricting-fight-seven-years-mad/> with the lede of the day (though this curtain raiser is a few weeks old):

Everyone in the Texas redistricting fight is pissed off.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“14 states can’t guarantee accurate election results”<http://electionlawblog.org/?p=98775>
Posted on April 22, 2018 9:02 pm<http://electionlawblog.org/?p=98775> by Rick Hasen<http://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/9-states-paper-ballots-elections-c8045d92-4aad-48a9-bfbe-bd3e8c385a7a.html?utm_source=twitter&utm_medium=twsocialshare&utm_campaign=organic>

Multiple states lack the ability to guarantee the accuracy of election outcomes in the event of a suspected breach.

The big picture: Five states — Louisiana, Georgia, South Carolina, New Jersey and Delaware — have no paper trails of votes<https://www.axios.com/five-states-without-paper-trail-of-votes-32801015-4ba1-4b41-80ca-ebab2cdda087.html>. The other nine are in better shape, but still do not have all their counties’ machines spitting out a paper record….

Why it matters: Russia is likely hacking again this year<https://www.cnn.com/2018/02/13/politics/intelligence-chiefs-russia-2018-elections-target/index.html>, according to intelligence directors. And a hacker who wanted to insert doubt in the outcome of an election would just have to target the counties and states that lack 100% verification capabilities.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Scalia’s Goal Of Unwinding Voter Protections Is Becoming A Reality”<http://electionlawblog.org/?p=98487>
Posted on April 22, 2018 9:01 pm<http://electionlawblog.org/?p=98487> by Rick Hasen<http://electionlawblog.org/?author=3>


[bumping to the top given the upcoming Tuesday argument in the Texas redistricting cases]

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>


“Fearing Chaos, National Democrats Plunge Into Midterm Primary Fights”<http://electionlawblog.org/?p=98773>
Posted on April 22, 2018 9:00 pm<http://electionlawblog.org/?p=98773> by Rick Hasen<http://electionlawblog.org/?author=3>

Alex Burns in the NYT:<https://www.nytimes.com/2018/04/21/us/politics/democrats-house-midterms-california.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=sectionfront>

But in some areas, Democratic leaders have concluded it is worth enduring backlash to help a prized recruit or tame a chaotic primary field.

They are moving most aggressively in California<https://www.nytimes.com/2017/07/14/us/politics/house-democrats-california.html>, where the state’s nonpartisan primaries<https://www.nytimes.com/2018/02/14/us/california-midterms-republicans-democrats-house.html> present a unique hazard: State law requires all candidates to compete in the same preliminary election, with the top two finishers advancing to November. In a crowded field, if Democrats spread their votes across too many candidates, two Republicans could come out on top and advance together to the general election.

There are at least four races in California where Democrats fear such a lockout, including the 39th Congressional District, where in addition to Mr. Cisneros and Ms. Tran there are two other Democrats running: Sam Jammal, a youthful former congressional aide, and Andy Thorburn, a wealthy health insurance executive who is backed by allies of Senator Bernie Sanders, independent of Vermont. The district is among the most coveted for Democrats nationwide — a seat left open by the retirement of Representative Ed Royce<https://www.nytimes.com/2018/01/09/us/california-today-gop-rep-ed-royce-wont-seek-reelection.html>, a popular Republican, in an area Hillary Clinton won by about 8 percentage points.

National Democrats may also intervene in the Southern California districts held by Representatives Dana Rohrabacher and Jeff Denham, where multiple Republicans and Democrats are running, and in the seat held by Representative Darrell Issa, a Republican who is retiring<https://www.nytimes.com/2018/01/10/us/politics/darrell-issa-retirement.html>. Voters receive mail-in ballots starting in early May, making the next few weeks exceptionally important.

House Majority PAC, a heavily financed Democratic group that spends millions in congressional elections, recently polled all four races and has been conducting digital surveys that simulate the complicated California ballot, according to people briefed on the group’s strategy. The super PAC has run ads in California in the past when Democrats have faced disaster in primary season.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


“Gun control advocates push to make voter registration the legacy of Parkland shooting”<http://electionlawblog.org/?p=98771>
Posted on April 22, 2018 8:42 pm<http://electionlawblog.org/?p=98771> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/national/gun-control-advocates-push-to-make-voter-registration-the-legacy-of-parkland-shooting/2018/04/21/e4f9bd8a-43d8-11e8-8569-26fda6b404c7_story.html?utm_term=.8b7480e53688>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“DNC chairman defends lawsuit against Russia, Trump campaign, WikiLeaks”<http://electionlawblog.org/?p=98769>
Posted on April 22, 2018 8:29 pm<http://electionlawblog.org/?p=98769> by Rick Hasen<http://electionlawblog.org/?author=3>

Weigel:<https://www.washingtonpost.com/news/powerpost/wp/2018/04/22/dnc-chairman-defends-lawsuit-against-russia-trump-campaign-wikileaks/?utm_term=.706ba3a9f78e>

The chairman of the Democratic National Committee on Sunday defended a new multimillion-dollar lawsuit<https://www.washingtonpost.com/politics/democratic-party-files-lawsuit-alleging-russia-the-trump-campaign-and-wikileaks-conspired-to-disrupt-the-2016-campaign/2018/04/20/befe8364-4418-11e8-8569-26fda6b404c7_story.html?utm_term=.b95e0c8a474a> against the Russian government, the Trump campaign and WikiLeaks, with talk show hosts asking whether it was distracting from efforts to rebuild the Democratic Party.

“I don’t know when Director Mueller’s investigation is going to end, so we need to file now to protect our rights,” Tom Perez said in an interview with ABC News’s George Stephanopoulos, referring to special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 election. “We’ve got elections coming up in November. It’s hard to win elections when you have interference in elections. They’ve done it with impunity, and I’m concerned that it’s going to happen again. So, that’s why we did it now.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


While WI Republicans Sought to Cancel a Special Election in that State, TX Governor Abbott Trying to Rush a Special Election to Replace Rep. Farenthold<http://electionlawblog.org/?p=98767>
Posted on April 21, 2018 11:55 am<http://electionlawblog.org/?p=98767> by Rick Hasen<http://electionlawblog.org/?author=3>

Statesman:<https://www.statesman.com/news/abbott-seeking-call-special-election-replace-rep-farenthold/NDM00EYN569luz8FrVFM9O/>
 Gov. Greg Abbott has asked Attorney General Ken Paxton for a legal opinion on whether Abbott can suspend state election law to call a special election “as soon as is legally possible” to fill the congressional seat left vacant when embattled U.S. Rep. Blake Farenthold, R-Corpus Christi, resigned two weeks ago.

In a letter to Attorney General Ken Paxton<http://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTgwNDIwLjg4NzA5NTYxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE4MDQyMC44ODcwOTU2MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MjY2NTUwJmVtYWlsaWQ9YXNoZXJwcmljZUBzdGF0ZXNtYW4uY29tJnVzZXJpZD1hc2hlcnByaWNlQHN0YXRlc21hbi5jb20mZmw9JmV4dHJhPU11bHRpdmFyaWF0ZUlkPSYmJg==&&&101&&&https://www.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2018/pdf/RQ0223KP.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=%22%20target=> Thursday, Abbott said he is concerned that state and federal law may not allow an election earlier than September.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Argument preview: Texas redistricting battles return to the court”<http://electionlawblog.org/?p=98765>
Posted on April 21, 2018 11:51 am<http://electionlawblog.org/?p=98765> by Rick Hasen<http://electionlawblog.org/?author=3>

Amy Howe<http://www.scotusblog.com/2018/04/argument-preview-texas-redistricting-battles-return-to-the-court/> preview for SCOTUSBlog.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“U.S. Supreme Court wades into Texas political district fight”<http://electionlawblog.org/?p=98763>
Posted on April 21, 2018 11:49 am<http://electionlawblog.org/?p=98763> by Rick Hasen<http://electionlawblog.org/?author=3>

Chuck Lindell<https://www.mystatesman.com/news/state--regional-govt--politics/supreme-court-wades-into-texas-political-district-fight/14YyBXyQPOPIwNeiqBi8oI/> for the Austin-American Statesman.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“D.N.C. Lawsuit Alleges Trump-Russia Conspiracy”<http://electionlawblog.org/?p=98761>
Posted on April 20, 2018 11:21 am<http://electionlawblog.org/?p=98761> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/04/20/us/politics/dnc-russia-trump-lawsuit.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>

The Democratic National Committee opened a new legal assault on President Trump on Friday by filing a lawsuit in federal court alleging that the organization was the victim of a conspiracy by Russian officials, the Trump campaign and WikiLeaks to damage Hillary Clinton’s presidential run.

The 66-page lawsuit<https://assets.documentcloud.org/documents/4443383/The-DNC-s-lawsuit-against-the-Russian-government.pdf>, filed in federal court in New York, assembles the publicly known facts of the investigation into Russia’s election meddling to accuse Mr. Trump’s associates of illegally working with Russian intelligence agents to interfere with the outcome of the election.

“The conspiracy constituted an act of previously unimaginable treachery: the campaign of the presidential nominee of a major party in league with a hostile foreign power to bolster its own chance to win the presidency,” the D.N.C. wrote in its lawsuit, which was first reported by The Washington Post<https://www.washingtonpost.com/politics/democratic-party-files-lawsuit-alleging-russia-the-trump-campaign-and-wikileaks-conspired-to-disrupt-the-2016-campaign/2018/04/20/befe8364-4418-11e8-8569-26fda6b404c7_story.html?utm_term=.a6a90c6f879f>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Testimony ends in trial to determine if Dallas County discriminates against white voters”<http://electionlawblog.org/?p=98759>
Posted on April 20, 2018 11:04 am<http://electionlawblog.org/?p=98759> by Rick Hasen<http://electionlawblog.org/?author=3>

The Dallas News reports.<https://www.dallasnews.com/news/dallas-county/2018/04/20/testimony-ends-trial-determine-dallas-county-discriminates-white-voters>
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Posted in 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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