[EL] ELB News and Commentary 2/7/17

Wed Feb 7 08:06:02 PST 2018

Coming Up Today: I’ll Be Part of Live Webcast of Justice Scalia’s Legacy Event at the National Constitution Center<http://electionlawblog.org/?p=97379>
Posted on February 7, 2018 7:58 am<http://electionlawblog.org/?p=97379> by Rick Hasen<http://electionlawblog.org/?author=3>

Really looking forward<https://constitutioncenter.org/calendar/justice-antonin-scalia-life-and-legacy> to this today, talking about my upcoming 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>, on a great panel with Kannon Shanmugam and Elizabeth Wydra, moderated by Jeff Rosen. (Ed Whelan will be on an earlier panel). The panel I’m on starts around 7 pm eastern. You can watch the webcast<https://constitutioncenter.org/debate/live> if you can’t make it to Philly:

The National Constitution Center commemorates the constitutional legacy of the late Justice Antonin Scalia two years after his death. Edward Whelan<https://eppc.org/author/edward_whelan/>, leading Supreme Court commentator and editor of Scalia Speaks: Reflections on Law, Faith, and Life Well Lived<http://www.scaliaspeaks.com/> (featuring a forward by Justice Ruth Bader Ginsburg), will present Justice Scalia’s opinions in his own words. A conversation with Richard Hasen<http://www.law.uci.edu/faculty/full-time/hasen/>, author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption<https://yalebooks.yale.edu/book/9780300228649/justice-contradictions>, Kannon Shanmugam<https://www.wc.com/Profiles/Kannon-K-Shanmugam>, leading Supreme Court advocate and former Scalia law clerk, and Elizabeth Wydra<https://theusconstitution.org/about/people/director-staff/elizabeth-b-wydra>, president of the Constitutional Accountability Center, follows. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. A brief ten minute break will take place between panels.

NEW! Program attendees can now pre-order books by featured Town Hall speakers with a 25% discount when registering. Pre-ordered books will be available for pickup at registration upon arrival. Additional copies of Scalia Speaks will be available for sale at the museum before and after the program. You can also pre-order your copy of The Justice of Contradictions, publishing March 20, here<https://yalebooks.yale.edu/book/9780300228649/justice-contradictions>.

Watch this America’s Town Hall program live at constitutioncenter.org/live<https://constitutioncenter.org/experience/programs-initiatives/live/>.

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Posted in Scalia<http://electionlawblog.org/?cat=123>

Understanding the Supreme Court’s Two Orders in the North Carolina Gerrymandering Cases, and How It Fits into the Bigger Picture<http://electionlawblog.org/?p=97376>
Posted on February 7, 2018 7:51 am<http://electionlawblog.org/?p=97376> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday (when I was on the road), the Supreme Court issued two orders related to redistricting cases. In the North Carolina partisan gerrymandering case (involving congressional districts), the Supreme Court denied a motion<https://www.supremecourt.gov/orders/courtorders/020618zr_7758.pdf> by Common Cause to expedite consideration<https://www.supremecourt.gov/orders/courtorders/020618zr_7758.pdf> of the case. Justices Ginsburg and Sotomayor dissented, saying they would have expedited consideration of the case. This comes after the Court stayed the lower court order which would have put North Carolina on the path to new congressional districts in 2018. Now, the case will likely be held for decision in the Maryland and Wisconsin partisan gerrymandering cases, and even if the Court recognizes a right to go after partisan gerrymandering, it will likely be too late to do anything for the 2018 elections.

Later yesterday, the Supreme Court issued a partial stay in a case where a different three judge court had required new district lines be drawn for state legislative elections to deal with problems of racial (not partisan) gerrymandering. The Court put on hold<https://www.supremecourt.gov/orders/courtorders/020618zr1_1b8e.pdf> only redistricting for House districts in Wake and Mecklenburg counties. Justices Thomas and Alito would have put any new districts across the state on hold pending further Supreme Court action. Justices Ginsburg and Sotomayor would have let even the Wake and Mecklenburg district lines be redrawn. Michael Li explains<https://twitter.com/mcpli/status/961028485111271425> that the state legislature redrew the lines in those two counties that were not found to be racial gerrymanders. The plaintiffs contended that this violated a state constitutional prohibition on mid-decade redistricting. The three-judge court agreed and had the special master redraw those lines too. Now the elections in those counties will be held under the lines drawn by the state. The rest will be under the lines drawn by the special master.

What to make of all of this?  A few observations:

1. I don’t agree with Ian Millhiser <https://thinkprogress.org/ginsburg-sotomayor-signal-partisan-gerrymandering-f24d049cdab4/> that we can read into the Sotomayor/Ginsburg dissent in the partisan gerrymandering case that this is a signal that partisan gerrymandering is “doing down.” Ian reasons that “If Ginsburg and Sotomayor know that the Court is about to uphold the Wisconsin gerrymander, it is very unlikely they would want to place another partisan gerrymandering case on the Court’s docket.” Maybe. But maybe it is because they are writing a bitter dissent, and are going to keep voting to hear the issue just like conservatives kept voting to overturn the Austin case in the campaign finance arena (which they eventually succeeded in doing in Citizens United.)  I think the primary lesson to learn from the Court’s refusal to expedite is that the Court continues to believe that voters can wai<https://www.washingtonpost.com/news/posteverything/wp/2017/06/28/the-supreme-court-is-in-no-hurry-to-protect-voters-from-gerrymandering/?utm_term=.1c6b6216e091>t when it comes to curing redistricting. The Court would rather hold another (election or two) under unconstitutional lines than rush things along. If the Court in the Maryland or Wisconsin case recognizes a right to bring a partisan gerrymandering claim, then the NC case will likely be sent back to the lower court for further proceedings in line with the new opinion(s), and potentially another appeal to SCOTUS on how to apply those opinions. We are far from the end of the line.

2. In the racial gerrymandering case, I had been predicting that the Court would deny a stay<http://electionlawblog.org/?p=97104>, because the racial gerrymandering issue had already been considered by the Court last term, and this was just about a remedy that the Court was already anticipating. This prediction proved to be right—I just had not focused on the wrinkle that the lower court went further in those two counties, allowing remedies for a supposed state law violation (something the Supreme Court has not yet considered). So this is somewhat unsurprising. The fact that Justices Sotomayor and Ginsburg dissented on this point lends credence to my theory that they are willing to vote for things that decrease the amount of gerrymandering.

3. The absence of Justice Gorsuch’s name in the second order is notable. I have been seeing him as a likely ally of Thomas and Alito in these cases (on the Court’s right flank, as compared to Sotomayor and Ginsburg on the left flank). He may well vote with them, but this shows he’s not moving in complete lockstep with Thomas and Alito on these issues. This is something to watch.

4. So what does all this tell us about whether or not the Court will police partisan gerrymandering and when? Not very much.  We will likely know more after the oral argument in the Maryland case on March 28.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Eric Holder’s Group Targets All-G.O.P. States to Attack Gerrymandering”<http://electionlawblog.org/?p=97374>
Posted on February 7, 2018 7:19 am<http://electionlawblog.org/?p=97374> by Rick Hasen<http://electionlawblog.org/?author=3>

Alex Burns<https://www.nytimes.com/2018/02/06/us/politics/democrats-gerrymandering-election-maps.html?rref=collection/sectioncollection/politics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=sectionfront> for the NYT:

A Democratic group backed by former President Barack Obama intends to pour millions of dollars into an eclectic array of elections in a dozen states, in an effort to block Republicans from single-handedly drawing congressional maps after 2020, officials leading the group said.

The National Democratic Redistricting Committee, formed last year<https://www.nytimes.com/2017/01/11/us/eric-holder-to-lead-democrats-attack-on-republican-gerrymandering.html> under the leadership of Eric H. Holder Jr., the former attorney general, has settled on a strategy to contest a combination of governorships, legislative seats and more obscure state offices to chip away at Republicans’ sweeping control<https://www.nytimes.com/2018/02/03/us/politics/state-elections-midterms.html> of the redistricting process.

Mr. Holder said in an interview that the group was chiefly determined to deny Republicans so-called trifectas in state governments — places where a single party controls the governorship and an entire legislature, as Republicans do in Ohio and Florida, among other critical battlegrounds.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Campaign Finance System Of Big Money Now Overshadows Watergate-Era Reforms”<http://electionlawblog.org/?p=97372>
Posted on February 7, 2018 7:16 am<http://electionlawblog.org/?p=97372> by Rick Hasen<http://electionlawblog.org/?author=3>

Peter Overby reports for NPR <https://www.npr.org/2018/02/07/582877375/campaign-finance-system-of-big-money-now-overshadows-watergate-era-reforms> on the findings of the Bauer-Ginsberg-Persily report.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Ohio’s proposed gerrymandering fix is not perfect, but big step (analysis)”<http://electionlawblog.org/?p=97369>
Posted on February 7, 2018 7:13 am<http://electionlawblog.org/?p=97369> by Rick Hasen<http://electionlawblog.org/?author=3>

Cleveland.com:<http://www.cleveland.com/metro/index.ssf/2018/02/ohios_proposed_gerrymanding_fi.html>

The proposed fix to congressional redistricting Ohio voters will be asked to approve in May might not be the best solution, but it’s far better than what exists now.

Think of it this way: should it pass, the politicians will still have their hands in the cookie jar, but Grandma will be lurking around the corner trying to make sure no one gets more than their fair share.

The amendment to the Ohio Constitution the General Assembly is placing on the ballot<http://www.cleveland.com/metro/index.ssf/2018/02/congressional_redistricting_pl.html> includes rules designed to keep most counties together, a directive (not precisely defined) to keep districts compact and encouragement for bipartisan approval.

Ultimately, however, it will be up to the politicians – operating for the first time under state-mandated restraints – to make sure Ohio’s next congressional map created in 2021 isn’t some form of a repeat of the current map that was designed for partisan reasons.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“How the Republicans rigged Congress — new documents reveal an untold story”<http://electionlawblog.org/?p=97367>
Posted on February 6, 2018 8:07 am<http://electionlawblog.org/?p=97367> by Rick Hasen<http://electionlawblog.org/?author=3>

David Daley<https://www.salon.com/2018/02/06/how-the-republicans-rigged-congress-and-poisoned-our-politics/> has written this piece for Salon, with the subhead: “Exclusive: Insider documents unveil Republicans’ years-long scheme to gerrymander America and undermine democracy.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Evidence of a winning-cohesion tradeoff under multi-winner ranked-choice voting”<http://electionlawblog.org/?p=97365>
Posted on February 6, 2018 8:03 am<http://electionlawblog.org/?p=97365> by Rick Hasen<http://electionlawblog.org/?author=3>

Jack Santucci has written this article<https://www.sciencedirect.com/science/article/pii/S0261379417300689> for Electoral Studies. Here is the abstract:

New interest in “multi-winner ranked-choice voting” raises old questions about effects on party cohesion. Earlier scholars thought this single transferable vote (STV) rule was net-problematic for parties. This paper consults the roll-call and electoral records in Cincinnati (1929-57) and Worcester, Mass. (1949-60), two of three American STV implementations that produced conventional wisdom. First, I show how party cohesion could be high or low. Then I show how low-cohesion terms followed elections in which candidates campaigned for themselves over their parties. Finally, I show that parties endorsed such candidates when they needed the votes to expand their seat shares. In sum, the data suggest a strategic environment in which majority-seeking parties reach beyond their traditional bases – potentially at the expense of legislative cohesion. Whether that is good or bad depends on the value we give to cohesion.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“Did Donald Trump profit from his own presidential transition?”<http://electionlawblog.org/?p=97363>
Posted on February 6, 2018 7:59 am<http://electionlawblog.org/?p=97363> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports.<https://www.publicintegrity.org/2018/02/06/21549/did-donald-trump-profit-his-own-presidential-transition>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

--
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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