[EL] ELB News and Commentary 2/9/18

[Rick Hasen]

Scalia Legacy: Trump Wants Originalists, Textualists and Flamethrowers on the Federal Bench<http://electionlawblog.org/?p=97418>
Posted on February 8, 2018 7:18 pm<http://electionlawblog.org/?p=97418> by Rick Hasen<http://electionlawblog.org/?author=3>

From TIME’s Inside Trump’s Plan to Dramatically Reshape U.S. Courts:<http://time.com/5139118/inside-trumps-plan-to-dramatically-reshape-us-courts/>

Trump’s own participation in the selection process varies based on the court. For the Supreme Court opening, he personally interviewed four candidates, making his final decision after meeting each of them once. For circuit and district judges, the President signs off on the final decision after the interview and vetting process is complete. But Trump and his team are in sync on what they want in a nominee: judges who are originalists and textualists, meaning they interpret laws based on what they say is the original intent of the Constitution’s framers and based purely on the text, without considering shifting social values or paying much heed to legislative history. They also want judges who worry about regulations and what they see as the increasing power of unelected bureaucrats, a phenomenon McGahn calls the administrative state.

Some of Trump’s picks have a history of inflammatory statements or decisions that might have been disqualifying under the vetting procedures used by previous Republican Administrations, according to Nan Aron, head of the liberal group Alliance for Justice. “The standards are so much lower now,” she says. In fact, provocation is part of the point. In one of his rare public appearances–a speech before the Federalist Society in November at Washington’s Mayflower Hotel–McGahn joked that his team would work with two lists of potential nominees. The first list contains “mainstream” and “pragmatic folks.” The second list, he said, includes judges who are “too hot for prime time … The kind of people that make some people nervous.”

“The first list we’re going to throw in the trash,” McGahn said to laughter and applause. “The second list, that’s the one we’re going to put before the U.S. Senate, because I know leader McConnell is going to get it done.”
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>


Jim Gardner Analysis of PA Redistricting Decision: “Federalism complicates the analysis as a state court opens a second front in the struggle against gerrymandering”<http://electionlawblog.org/?p=97403>
Posted on February 8, 2018 6:48 pm<http://electionlawblog.org/?p=97403> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is a guest post from the great Jim Gardner<http://www.law.buffalo.edu/faculty/facultyDirectory/GardnerJames.html>:

On January 22, the Pennsylvania Supreme Court issued a brief order invalidating Pennsylvania’s 2011 congressional districting plan on the ground that it violated state constitutional prohibitions on partisan gerrymandering.  On Wednesday, the court released the full opinions in the case, League of Women Voters v. Pennsylvania.  The Court’s 4-1-2 opinion invalidating the districting plan under the Pennsylvania Constitution’s “Free and Equal Elections” Clause is highly unusual, and represents a potentially significant development in gerrymandering jurisprudence.

The decision’s significance is three-fold.  Most concretely, the decision marks a significant change of direction for the Pennsylvania Supreme Court, a court not previously known for its attachment to a generous account of state constitutional rights.  Second and more speculatively, the ruling might be a harbinger of a new willingness on the part of state courts to occupy the jurisprudential vacuum left by the long failure of federal constitutional law to control, or even to moderate, the increasingly routine practice of partisan gerrymandering.  Third, again speculatively, the ruling could conceivably be the first step in the emergence of a state-level consensus on partisan gerrymandering claims that could in turn influence the substantive content of federal constitutional law.

The Decision.  Prior to this decision, there was no reason to expect the Pennsylvania Supreme Court to respond positively to the plaintiffs’ claims.  Until the last year, when lower federal courts in several states invalidated districting plans as unconstitutional partisan gerrymanders, it had long been understood that a partisan gerrymandering claim under the U.S. Constitution was futile.  Claims under state constitutions thus appeared more promising.  Unlike the federal Constitution, which says almost nothing about democratic processes, every state constitution contains numerous provisions that define and regulate democratic procedures, including the drawing of election districts.  State constitutions also often contain explicit individual rights, including an express right to vote; and because of their jurisprudential independence from federal law, state constitutions are free to provide greater protection for individual rights than does the federal Constitution.  Thus, many state supreme courts have interpreted their state constitutions to provide higher levels of protection for rights against unreasonable search and seizure, for example, or the right of criminal defendants to counsel, or even the right to free speech itself.

Nevertheless, most state courts have been very reluctant to construe state constitutional rights to vote, or to “self-government,” or to “free” or “fair” elections to extend further than their federal counterparts, a practice known as “lockstep” interpretation.  In this regard, the Pennsylvania Supreme Court has a long history of timidity.  In a 1981 case, the court expressly held that “the federal constitutional requirement of equal protection . . . is incorporated as a matter of state constitutional law in” provisions of the state constitution requiring compactness, contiguity, and population equality in redistricting, thereby committing the court to follow federal gerrymandering jurisprudence.  And in a 2002 case, Erfer v. Commonwealth, the court expressly adopted as a matter of state constitutional law the toothless federal Bandemerstandard for adjudicating partisan gerrymandering.  Thus, there was no reason to expect the court to go out on a limb by departing in the slightest from the ineffectual approach marked out by the U.S. Supreme Court.

The court’s decision is thus quite surprising.  In a move of unusual boldness, the court distinguished Erfer (not very persuasively, in my view), but for good measure openly repudiated it to the extent it could be read to commit the court to a narrow view of the protections afforded to Pennsylvania voters under the state constitution.  Instead, the court undertook a fairly involved analysis of the genesis of the Free and Equal Elections Clause, finding it rooted in a long-standing commitment to universal suffrage and a desire to end early practices of vote dilution.

At the same time, the court did not break much new jurisprudential ground.  It did not, for example, deduce from the language and history of the Free and Equal Elections Clause any new or uniquely Pennsylvania standard for identifying when partisan gerrymandering crosses the line from permissible to unconstitutional.  Nor did it choose to adopt any of the new standards lately proposed in federal litigation, such as the “efficiency gap” measurement.  Instead, it held only that constitutional suspicion is raised when the traditional redistricting principles of equal population, compactness, contiguity, and respect for the integrity of local government boundaries are subordinated to other considerations — essentially the same place where the U.S. Supreme Court has repeatedly ended up.  Where the Pennsylvania court entered new territory is in its willingness, upon applying that standard, to find in the facts the degree of subordination of traditional districting principles necessary to trigger the constitutional prohibition.

Federalism implications.  This interplay of state and federal constitutional law necessarily implicates issues of federalism.  In our system, it is expected that the state and national governments will contend for ascendency in politically salient policy domains.  Where the two levels of government agree on the best course, then there is no need to expect state pushback against federal policies imposed with preemptive effect.  But where states disagree with national policy —  for example, regarding gay marriage, medical marijuana, or immigration — state pushback is to be expected, and state courts sometimes play a significant role in advancing state interests in such disputes.  Similarly, where the national government has not effectively occupied a policy domain, states sometimes act, singly or in groups, to occupy the vacant domain with policies of their own design.  For example, nearly universal state adoption of the Uniform Commercial Code has effectively pushed the federal government out of the business of regulating many aspects of commercial relations.

The decision in League of Women Voters bears the hallmarks of this approach.  A court that had been relatively content to follow, with approval, the federal approach to redistricting now finds itself sitting in a state poisoned by a toxic and unpopular gerrymander, with federal law showing itself increasingly unable to provide any recourse whatsoever, even against the most egregiously partisan abuses of the redistricting process.  The Pennsylvania decision thus looks very much like either a kind of pushback against federal leadership now reluctantly acknowledged to be misguided; or a move to occupy a policy space now understood to have been left vacant by what amounts to federal inaction.

Implications for federal gerrymandering jurisprudence.  This term, the U.S. Supreme Court will have the opportunity to take the bull by the horns and issue a decisive ruling identifying once and for all the line between acceptable and unconstitutional manipulation of district lines.  If it does so, then the Pennsylvania Supreme Court’s decision in League of Women Voters may quickly become irrelevant.  If, however, the Court issues yet another splintered, indecisive decision, League of Women Voters could in the long run exercise some influence on federal constitutional law regardless of what the U.S. Supreme Court thinks or does.  This is because the Supreme Court’s constitutional jurisprudence often treats with great respect constitutional principles shown to be the subject of subnational consensus.  In some instances, the showing of such a consensus among the states has influenced the Court to adopt the state-level standard; this has been the case, for example, with the adoption of the exclusionary rule and the Court’s eventual recognition of the protected status of same-sex relationships.  The emergence of a state-level consensus concerning the permissible limits of partisan gerrymandering might thus ultimately persuade the Court, as Justice Kennedy signaled in Vieth, to adopt as a matter of federal constitutional a standard developed at the state level.

In any case, these developments in Pennsylvania will only increase the drama of the long-awaited intervention by the Supreme Court later this Term in the field of partisan gerrymandering.

—Jim Gardner




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Posted in redistricting<http://electionlawblog.org/?cat=6>


“As deadline looms, Republicans consider new strategy for Pa. congressional maps”<http://electionlawblog.org/?p=97413>
Posted on February 8, 2018 5:50 pm<http://electionlawblog.org/?p=97413> by Rick Hasen<http://electionlawblog.org/?author=3>

Philly Inquirer:<http://www.philly.com/philly/news/politics/state/pennsylvania-gerrymander-case-deadline-republicans-strategy-20180208.html>

It’s official: The state legislature will not pass a new congressional map before the Pennsylvania Supreme Court’s Friday deadline.

But the Republican leaders who control both chambers weren’t ready Thursday to cede the redrawing of districts to the state’s highest court, which has a Democratic majority.

Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny) were considering submitting a draft map to the governor Friday, staffers said. Then they could call lawmakers back in the coming days to vote on that map, or a different one.

“We’re blazing new ground here, and we’re trying to meet as many markers as we possibly can,” said Drew Crompton, chief of staff to Scarnati and the Senate’s top lawyer. “I don’t sit here and say this is the perfect solution, but we’re trying to do the best we can.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Orange County, Calif. Election Academy aims to educate voters”<http://electionlawblog.org/?p=97411>
Posted on February 8, 2018 5:47 pm<http://electionlawblog.org/?p=97411> by Rick Hasen<http://electionlawblog.org/?author=3>

Electionline:<http://www.electionline.org/index.php/electionline-weekly>

Nelson Mandela once said that education is the most powerful weapon which you can use to change the world and U.S. Rep. John Lewis once said that the vote is the most powerful nonviolent tool we have.

Orange County, California Registrar of Voters<https://www.ocvote.com/> Neal Kelly is combining education and voting to create powerful nonviolent weapons in the form of informed voters through the county’s Election Academy.

The Election Academy is a six-course program that began in 2010 as an effort to expand the “superficial” knowledge that many, although well intentioned, candidates, campaigns and consultants have about elections are actually run.

“But, what we learned along the way was that there was also a strong desire among voters to gain a deeper understanding of the process — hence not only the birth, but the expansion of our Academy,” Kelley said.

To-date nearly 240 Orange County residents have participated in the Academy. Kelley said the residents taking the class is a real mix of people. He estimated that the average class is made up of 25 percent candidates and/or elected officials, 20 percent city, school district, special district employees, 10 percent students (college age) and 45 percent voters and interested members of the public.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Cybersecurity Threats Loom, Nation’s Outdated Election Infrastructure Must Be Upgraded”<http://electionlawblog.org/?p=97409>
Posted on February 8, 2018 5:45 pm<http://electionlawblog.org/?p=97409> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://www.brennancenter.org/press-release/nations-voting-infrastructure-outdated-vulnerable-cyberattacks>

Election officials across the country say they are heading into the 2018 midterms with outdated voting machines and computer systems, and many of them do not have the resources to replace them. In response to a nationwide survey distributed by the Brennan Center for Justice at NYU Law, 229 officials in 33 states reported they need to replace their voting machines by 2020. Most of these officials do not currently have enough funds for those replacements. The Brennan Center says these old machines are more vulnerable to breakdown, malfunction, and hacking<https://www.brennancenter.org/publication/americas-voting-machines-risk>.

“Too much of the nation’s election infrastructure is crumbling,” said Larry Norden<https://www.brennancenter.org/expert/lawrence-norden>, deputy director of the democracy program at the Brennan Center. “More than two-thirds of officials who told us they need to replace their machines before 2020 also said they have inadequate funds to do so. Continuing to use this equipment not only makes our elections more vulnerable to breakdown and malfunction, but to hacking as well. Election officials across the country are ringing the alarm. And so far, lawmakers have failed to listen.”

Election experts warn<https://www.nased.org/PCEA_FINAL_REPORT_JAN_2014.pdf> that by the end of the decade, most of the nation’s vote-tabulation machines will reach the end of their natural lives. More than 500 election officials in 41 states surveyed told the Brennan Center they will use machines and computers in this year’s midterms that are more than a decade old. This comes as the secretary of state and the head of the CIA have both said U.S. election systems are vulnerable to outside intrusion this year
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Posted in election administration<http://electionlawblog.org/?cat=18>


Yale Law Journal Forum symposium: Five Years After Shelby County v. Holder: The Ongoing Fight for Voting Rights<http://electionlawblog.org/?p=97407>
Posted on February 8, 2018 5:25 pm<http://electionlawblog.org/?p=97407> by Rick Hasen<http://electionlawblog.org/?author=3>

Can’t wait to read all of these<https://www.yalelawjournal.org/collection/five-years-after-shelby-county>:
VOLUME
127
2017-2018
COLLECTION
Five Years After Shelby County v. Holder: The Ongoing Fight for Voting Rights
08 FEB 2018

In the five years since Shelby County v. Holder, voting rights litigators have resorted to other claims under the Voting Rights Act. This Collection traces these litigation strategies—focusing on Sections 2 and 3—and introduces “vote dissociation,” which recognizes systemic problems of democratic governance as a voting rights issue.

FORUM
Vote Dissociation<https://www.yalelawjournal.org/forum/vote-dissociation>
Daniel P. Tokaji

The 2016 election highlighted deep-seated problems in American democracy that voting rights cannot fix. This Essay employs the term “vote dissociation” to refer to a species of voting rights injury that is qualitatively different from both vote denial and vote dilution, in which concentrated wealth …

FORUM
A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights Litigation<https://www.yalelawjournal.org/forum/a-post-shelby-strategy>
Danielle Lang & J. Gerald Hebert

In the wake of Shelby County, voting rights lawyers have pushed to hold jurisdictions fully accountable for their actions by proving claims of intentional discrimination under Section 3 of the VRA. This Essay explores the importance of this strategic move in the latest generation of voting rights ca…

FORUM
Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County<https://www.yalelawjournal.org/forum/the-new-vote-denial-litigation-since-shelby-county>
Dale E. Ho

This Essay traces the post-Shelby County development of a two-part Section 2 vote denial liability test. It also describes the tension as to the necessity of evidence (1) regarding the effect of voting practices on voter turnout and (2) concerning discriminatory intent on the part of a state actor.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“Kobach sits on board of veterans group that isn’t using money to help veterans”<http://electionlawblog.org/?p=97405>
Posted on February 8, 2018 5:23 pm<http://electionlawblog.org/?p=97405> by Rick Hasen<http://electionlawblog.org/?author=3>

Bryan Lowry<http://www.kansascity.com/news/politics-government/article199170469.html> for the KC Star:

Kansas Secretary of State Kris Kobach sits on the advisory board of a Missouri-based veterans’ group that received a failing grade from the Better Business Bureau this week.

Kobach, a candidate for Kansas governor, is listed as a member of the advisory board for Veterans in Defense of Liberty, a Springfield-based nonprofit with a stated mission of upholding the Constitution.

He said he would be reviewing the group’s finances after a Better Business Bureau <https://www.bbb.org/en/us/article/warnings/16990-bbb-fundraisers-take-majority-of-donations-made-to-veterans-in-defense-of-liberty> report that found only a small fraction of the group’s money actually goes toward veterans’ issues.

“This is the first I’ve heard of any suggestion that the monies raised by the charity aren’t going to the various causes for veterans,” Kobach said Thursday….

The bureau, which reviews the integrity of charities and businesses, gave Veterans in Defense of Liberty an “F,” the lowest possible grade on its scale.

A review of the group’s 2014 and 2015 filings with the Internal Revenue Service showed that 94 percent of the money donated to the group went to fundraisers, according to a news release from the Better Business Bureau….

Kobach said that his understanding was that money donated to the group was “going to a variety of causes for veterans … and also to support political causes and issues important to veterans as well.”

Veterans in Defense of Liberty’s website includes a July 2017 post calling on veterans to support the push to repeal the Affordable Care Act.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


Watch Recent Federalist Society Panel on Donor Disclosure and Donor Privacy with Judge Bea, Brad Smith and Me<http://electionlawblog.org/?p=97401>
Posted on February 8, 2018 5:14 pm<http://electionlawblog.org/?p=97401> by Rick Hasen<http://electionlawblog.org/?author=3>

https://www.youtube.com/watch?v=zrCKFCuTS_M&list=PLWwcngsYgoUWmkPUA8YBVelw5fhuubI8g&index=4
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


Watch Videos of Recent Hearings on Voting Rights in North Carolina from the USCCR<http://electionlawblog.org/?p=97399>
Posted on February 8, 2018 5:04 pm<http://electionlawblog.org/?p=97399> by Rick Hasen<http://electionlawblog.org/?author=3>

It’s the most recent three posted here<https://www.youtube.com/user/USCCR/videos>.

See also this news<http://www.newsobserver.com/news/politics-government/state-politics/article198184059.html> story.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


“8 years later: How Citizens United changed campaign finance”<http://electionlawblog.org/?p=97397>
Posted on February 7, 2018 7:48 pm<http://electionlawblog.org/?p=97397> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Biersack<https://www.opensecrets.org/news/2018/02/how-citizens-united-changed-campaign-finance/> for Open Secrets.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>


Watch Video of the Panel on Justice Scalia’s Legacy at National Constitution Center with Kannon Shanmugam, Elizabeth Wydra, Jeff Rosen and Me<http://electionlawblog.org/?p=97394>
Posted on February 7, 2018 7:46 pm<http://electionlawblog.org/?p=97394> by Rick Hasen<http://electionlawblog.org/?author=3>
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Posted in Scalia<http://electionlawblog.org/?cat=123>


--
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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