[EL] ELB News and Commentary 2/15/18

Thu Feb 15 07:10:54 PST 2018

“Stop treating Ruth Bader Ginsburg — a.k.a. ‘Notorious R.B.G.’ — like a celebrity”<http://electionlawblog.org/?p=97519>
Posted on February 15, 2018 7:09 am<http://electionlawblog.org/?p=97519> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped<http://www.latimes.com/opinion/op-ed/la-oe-hasen-ruth-bader-ginsburg-celebrity-justices-supreme-court-20180215-story.html> for the LA Times. A snippet:

But there is something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era. We’ve divided the Supreme Court into teams. We have our justices, champions who push our side’s agenda. The other side has their justices, villains intent on destroying America.

We can blame the late Justice Antonin Scalia for reinventing the notion<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> of the celebrity justice<http://www.greenbag.org/v19n2/v19n2_articles_hasen.pdf> and paving the way for this kind of excess.

In the 1960s, some justices, such as William O. Douglas and Arthur Goldberg, made frequent appearances and were considered public figures. For the most part, they didn’t relitigate the court’s business in public.

When Scalia got to the Supreme Court, in 1986, he revived the role of justice as public intellectual. Over the three decades that he was on the bench, Scalia made many appearances, gave speeches and went on book tours. But, unlike Douglas and Goldberg, he pushed his particular brand of jurisprudence — and was known to insult and demean the theories of the other justices. In public, he was provocative and acerbic….

Now Ginsburg has taken up the mantle of the court’s most provocative public justice. She is not afraid to share provocative political opinions. She has dropped hints<https://www.politico.com/story/2012/06/ginsburg-predicts-sharp-disagreement-among-justices-077479> about upcoming decisions. She called Colin Kaepernick’s protest of racial injustice by kneeling during the national anthem “dumb and disrespectful,” remarks for which she later apologized<https://www.washingtonpost.com/news/early-lead/wp/2016/10/14/justice-ruth-bader-ginsberg-apologizes-for-criticism-of-colin-kaepernick/?utm_term=.239bfda6e609>.

Most controversially, she repeatedly expressed concern in 2016 that Trump might be elected president — statements that raised serious issues<https://www.reuters.com/article/us-election-trump-ginsburg-commentary/commentary-ruth-bader-ginsburgs-slam-of-trump-does-the-nation-no-favors-idUSKCN0ZT2IM> about whether she needed to recuse herself from cases involving his campaign, and for which she also apologized.

As her public persona has grown, Ginsburg has embraced<https://www.youtube.com/watch?v=DcqoPcSLDXc> the “Notorious R.B.G.” label<https://www.npr.org/sections/itsallpolitics/2015/10/26/450547606/notorious-rbg-the-supreme-court-justice-turned-cultural-icon>. She’s encouraged a cult of worship to grow up around her. There’s hagiography like the “Notorious RBG<https://www.amazon.com/Notorious-RBG-Times-Bader-Ginsburg/dp/0062415832>” book and the “The RBG Workout<https://www.amazon.com/RBG-Workout-How-Stays-Strong/dp/1328919129/ref=pd_lpo_sbs_14_t_2?_encoding=UTF8&psc=1&refRID=Q6TFWWKWE1M63AJ9C4DK>,” an illustrated book by her personal trainer. There’s a Ginsburg tumblr<http://notoriousrbg.tumblr.com/> and Ginsburg T-shirts<https://shop.spreadshirt.com/notoriousrbg/#_=_>.

Just this week, despite swearing off political statements, she said sexism played a prominent role<https://www.washingtontimes.com/news/2018/feb/12/ruth-bader-ginsberg-sexism-played-prominent-role-h/> in Hillary Clinton’s election defeat. That may be true, but a sitting Supreme Court justice should not be weighing in on such questions.

It’s dangerous for Supreme Court justices to assume such political roles, particularly when faith in our institutions is declining. If justices are going to be public figures, they should do so in ways that reinforce the rule of law, not partisan politics.

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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“Trump Lawyer’s Payment to Porn Star Raises New Questions”<http://electionlawblog.org/?p=97517>
Posted on February 15, 2018 7:03 am<http://electionlawblog.org/?p=97517> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/02/14/us/politics/stormy-daniels-michael-cohen-trump.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=sectionfront>

But Mr. Cohen’s assertions left many questions unanswered, including whether the payment was truly a personal gift by him or whether he was reimbursed by some other party, like Mr. Trump or an associate of Mr. Trump.

In a brief interview on Wednesday, Mr. Cohen declined to answer questions about whether Mr. Trump had reimbursed him, whether the two men had made any arrangement at the time of the payment, or whether he had made any payments to other women or accusers of the president.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

“Democrats outline roster of election security measures”<http://electionlawblog.org/?p=97515>
Posted on February 15, 2018 6:58 am<http://electionlawblog.org/?p=97515> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/powerpost/democrats-outline-roster-of-election-security-measures/2018/02/14/742f0528-11b1-11e8-9065-e55346f6de81_story.html?utm_term=.f884f2fa0e00>

House Democratic leaders want the federal government to approve more than $1 billion to help states improve ballot security, part of a set of measures they say are necessary to mitigate foreign interference in future election cycles.

The proposals are part of a new report from a task force House Democrats convened last year to examine responses to Russian meddling in the 2016 election. They include establishing grant programs to help states update voting machines and improve cybersecurity protocols, adopting basic standards for voting systems, requiring the federal government to issue regular pre-election threat assessments, and designing a national strategy to counter foreign interference.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“The Fight for Corporations to Reveal Political Spending”<http://electionlawblog.org/?p=97513>
Posted on February 15, 2018 6:52 am<http://electionlawblog.org/?p=97513> by Rick Hasen<http://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.brennancenter.org/blog/fight-corporations-reveal-political-spending> at the Brennan Center.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Republicans are poised to dominate redistricting again. Can Eric Holder stop them?”<http://electionlawblog.org/?p=97510>
Posted on February 14, 2018 4:30 pm<http://electionlawblog.org/?p=97510> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo Wonkblog.<https://www.washingtonpost.com/news/wonk/wp/2018/02/14/republicans-are-poised-to-dominate-redistricting-again-can-eric-holder-stop-them/?utm_term=.2d34ba31d5e1>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“We need to hack-proof our elections. An old technology can help.”<http://electionlawblog.org/?p=97508>
Posted on February 14, 2018 4:28 pm<http://electionlawblog.org/?p=97508> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Chertoff and Grover Norquist WaPo oped:<https://www.washingtonpost.com/opinions/we-need-to-hack-proof-our-elections-an-old-technology-can-help/2018/02/14/27a805bc-0c4b-11e8-95a5-c396801049ef_story.html?utm_term=.a6478820e964&wpmk=MK0000200>

The nation’s top intelligence officers warned<https://www.washingtonpost.com/world/national-security/fbi-director-to-face-questions-on-security-clearances-and-agents-independence/2018/02/13/f3e4c706-105f-11e8-9570-29c9830535e5_story.html?utm_term=.b84193b516de> Congress this week that Russia is continuing its efforts to target the 2018 elections.

This should come as no surprise: A few months ago, the Department of Homeland Security notified<https://www.washingtonpost.com/world/national-security/dhs-tells-states-about-russian-hacking-during-2016-election/2017/09/22/fd263a2c-9fe2-11e7-8ea1-ed975285475e_story.html?utm_term=.fa4719c4d3df> 21 states that hackers had targeted their election systems in 2016. Yet Congress still has not passed legislation to meaningfully address election cybersecurity.

Time is running out. Lawmakers need to act immediately if we are to protect the 2018 and 2020 elections.
 …

We believe there is a framework to secure our elections that can win bipartisan support, minimize costs to taxpayers and respect the constitutional balance between state and federal authorities in managing elections. In September, Mark Meadows (R-N.C.), who chairs the conservative House Freedom Caucus, introduced<https://meadows.house.gov/news/documentsingle.aspx?DocumentID=493> legislation that would help solve the problem with an elegantly simple fix: paper ballots. Meadows’s Paper Act<https://www.atr.org/sites/default/files/assets/HR%203751%20PAPER%20Act%20Letter%20of%20Support.pdf> would authorize cost-sharing with states for the replacement of insecure electronic systems with those that produce a voter-verified physical record. The bill also lays the groundwork for states to regularly implement risk-limiting audits — procedures that check a small random sample of paper records to quickly and affordably provide high assurance that an election outcome was correct.

President Trump has already endorsed this framework, declaring<https://twitter.com/foxnews/status/796070398534320128>: “There’s something really nice about the old paper ballot system. . . . You don’t worry about hacking.” And in the Senate, a bipartisan group<https://www.electiondefense.org/senate-bill-2261-the-election-security-act/> of six lawmakers recently introduced the Secure Elections Act<https://www.lankford.senate.gov/imo/media/doc/Secure%20Elections%20Act.pdf>, which presents a sweeping set of security fixes including federal grants to install systems that use voter-verified paper ballots. The best estimates<https://www.brennancenter.org/sites/default/files/publications/Securing_Elections_From_Foreign_Interference_1.pdf> show that we can replace all paperless voting machines in the United States for about the cost of a single F-22 fighter jet<https://www.popularmechanics.com/military/weapons/news/a25678/the-cost-of-new-fighters-keeps-going-up-up-up/> — and in fact, the Senate bill would not add to the deficit because it offsets any new spending.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Judges Say Throw Out the Map. Lawmakers Say Throw Out the Judges.”<http://electionlawblog.org/?p=97506>
Posted on February 14, 2018 1:49 pm<http://electionlawblog.org/?p=97506> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/02/14/us/pennsylvania-gerrymandering-courts.html>

 In Pennsylvania, a Republican lawmaker unhappy with a State Supreme Court ruling on gerrymandering wants to impeach the Democratic justices who authored it.

In Iowa, a running dispute over allowing firearms in courthouses has prompted bills by Republican sponsors to slash judges’ pay and require them to personally pay rent for courtrooms<https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=SF%202044> that are gun-free.

In North Carolina, the Republican Party is working on sweeping changes to rein in state courts that have repeatedly undercut or blocked laws passed by the legislature.

Rather than simply fighting judicial rulings, elected officials in some states across the country — largely Republicans, but Democrats as well — are increasingly seeking to punish or restrain judges who hand down unfavorable decisions, accusing them of making law instead of interpreting it.
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Posted in judicial elections<http://electionlawblog.org/?cat=19>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>

“Was the Payment to Stormy Daniels a Campaign Contribution?”<http://electionlawblog.org/?p=97503>
Posted on February 14, 2018 1:47 pm<http://electionlawblog.org/?p=97503> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<https://www.wsj.com/articles/was-the-payment-to-stormy-daniels-a-campaign-contribution-1518643885>

More at TIME.<http://time.com/5158096/donald-trump-porn-star-stormy-daniels-payment-michael-cohen/>

Still MORE from CNN.<https://www.cnn.com/2018/02/14/politics/michael-cohen-statement-legal/index.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Celebrity Justice<http://electionlawblog.org/?cat=109>, chicanery<http://electionlawblog.org/?cat=12>

Introducing PlanScore — Evaluating New Maps<http://electionlawblog.org/?p=97502>
Posted on February 14, 2018 1:46 pm<http://electionlawblog.org/?p=97502> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

If the Supreme Court specifies a standard for partisan gerrymandering claims this term, it will become very important to be able to evaluate the partisan implications of new district plans. Whether these new plans are remedial (designed after an existing map has been invalidated) or simply enacted after the next Census, their likely partisan consequences will be relevant to their legality.

Until now, only politicians and their hired experts have had the capacity to properly analyze the partisanship of proposed plans. To conduct such an analysis, it was necessary (1) to compile precinct-level election results, demographic data, and incumbency status; (2) to create a precinct-level model of the legislative vote as a function of the other variables; and (3) to use this model to estimate the likely performance of each district in the new map. This work was too laborious and technical to be done by journalists, legislators, or lawyers—let alone ordinary voters.

PlanScore<https://planscore.org/#!2016-ushouse>, the new website launched by Ruth Greenwood, Simon Jackman, Eric McGhee, Mike Migurski, and me, tries to fill this data void. Perhaps the site’s most unique feature is an upload page<https://planscore.org/upload.html>where a user can upload a district plan—and then immediately receive an analysis of the map’s likely efficiency gap, partisan bias, and mean-median difference. The output page also includes sensitivity testing showing the plan’s probable efficiency gap under different electoral scenarios, a visualization of the plan’s districts, and data about the districts’ racial composition.

To provide this information, we did on the back end all of the work that politicians and their experts perform to analyze a new map. In other words, we compiled all of the precinct-level data, constructed the model, and coded the site so that estimates can be generated instantly for any district configuration that a user submits. The model currently does not incorporate incumbency effects, but we plan to add this capability in the very near future. The upload page also currently supports only Pennsylvania, but again we plan to add more states soon (especially ones that might find themselves in remedial proceedings due to ongoing litigation).

As an example of PlanScore’s utility, consider the remedial plan<https://www.washingtonpost.com/politics/pennsylvania-republicans-weve-revised-gerrymandered-map/2018/02/09/d821b572-0df5-11e8-998c-96deb18cca19_story.html> that was recently offered by Pennsylvania’s Republican legislative leaders after the state’s congressional map was struck down. We uploaded the map on the site, and learned the following<https://planscore.org/plan.html?PA-Joint-Submission-2018-02-JP> about it:
·         Its efficiency gap, partisan bias, and mean-median difference are all likely to be very large and pro-Republican, toward the rightward edge of the historical distribution of all three metrics.
·         If Democrats improve substantially on their 2016 performance, the map will grow ever more skewed in a Republican direction. The Republican advantage under the map, in other words, is highly resistant to pro-Democratic shifts in the vote.
·         Compared to their predecessors, the map’s districts are less irregular and more compact. But this aesthetic progress comes without any accompanying gain in partisan fairness.
·         The map creates one black-majority district and one more district with a large enough black population (42% CVAP) to enable African American voters to elect their preferred candidate.

As the Pennsylvania remedial process continues to unfold, we plan to continue to assess proposed plans on PlanScore. And since the upload page<https://planscore.org/upload.html> is now functional, we invite you to do the same!
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The governor of Pennsylvania rejects Republicans’ new map”<http://electionlawblog.org/?p=97499>
Posted on February 14, 2018 9:10 am<http://electionlawblog.org/?p=97499> by Rick Hasen<http://electionlawblog.org/?author=3>

Steve Mazie<https://www.economist.com/blogs/democracyinamerica/2018/02/cartoonography> for The Economist.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“State and local election infrastructure vulnerable to attacks ahead of midterm elections, Democrats warn in new report”<http://electionlawblog.org/?p=97497>
Posted on February 14, 2018 8:45 am<http://electionlawblog.org/?p=97497> by Rick Hasen<http://electionlawblog.org/?author=3>

ABC News:<http://abcnews.go.com/Politics/state-local-election-infrastructure-vulnerable-attacks-ahead-midterm/story?id=53080509>

State and local election systems remain vulnerable to outside attacks ahead of the upcoming midterm elections<http://abcnews.go.com/topics/news/elections/midterm-elections.htm>, House Democrats warned in a new report obtained by ABC News.

The final report issued by the Congressional Task Force on Election Security, a Democratic working group formed last summer by House Minority Leader Nancy Pelosi<http://abcnews.go.com/topics/news/us/nancy-pelosi.htm>, D-Calif., calls for increased federal resources to protect local and state election systems and replace aging infrastructure and new regulations to help election technology vendors to improve security.
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Posted in election administration<http://electionlawblog.org/?cat=18>

--
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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