[EL] ELB News and Commentary 2/16/18

Fri Feb 16 08:03:44 PST 2018

Justice Scalia Recognized the Constitutionality of Some Gun Control Measures, And For That He Was Criticized as Not Sufficiently Originalist<http://electionlawblog.org/?p=97543>
Posted on February 16, 2018 7:58 am<http://electionlawblog.org/?p=97543> by Rick Hasen<http://electionlawblog.org/?author=3>

Cass Sunstein column on Justice Scalia’s Heller opinion:<https://www.bloomberg.com/view/articles/2018-02-15/florida-shooting-second-amendment-does-not-block-gun-control>

Justice Scalia’s opinion did not come close to embracing the arguments made by those who invoke the Second Amendment as an all-purpose weapon against democratic efforts to prevent the murder of high-school kids. On the contrary, his opinion is full of permission slips for federal, state and local governments to act.

In a crucial sentence, Justice Scalia wrote, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Justice Scalia also emphasized that the Second Amendment is restricted to weapons “in common use at the time.” He added that the Constitution leaves government with many tools for combating the problem of handgun violence, including regulation.

As I note in 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>

But even Heller  was not fully originalist. As Sara Anonchick Solow and Barry Friedman explain, it was less originalism than lawyerly interpretation. Heller  “deals not only with text and original meaning, but with pre- and post-ratification practice, precedent, evolved understandings, normative justification, and consequentialist limitations on the right. It is by surveying this broad array of sources that Justice Scalia locates the ethos of self-defense purportedly at the center of the Second Amendment.” Or, as Professor Laurence Tribe and Joshua Matz put it, “Focusing . . . on how Heller works—the sources it cites, the logic, the scope of the rights it creates— we discover a ruling exquisitely attuned to the living constitutionalism that Scalia so vehemently disdains.”

Professor Nelson Lund goes further, saying that Scalia’s reasoning in Heller  is “at critical points so defective—and in some respects so transparently nonoriginalist—that Heller should be seen as an embarrassment for those who joined the majority opinion. It may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial exponents.” Although Lund agreed that Scalia was right on originalist grounds in finding within the Second Amendment an individual right to bear arms, he found the rest of the analysis on the permissibility of the D.C. handgun ban to be both non-originalist and ahistorical.
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Posted in Scalia<http://electionlawblog.org/?cat=123>

“Trump’s Inaugural Committee Paid $26 Million to Firm of First Lady’s Adviser”<http://electionlawblog.org/?p=97541>
Posted on February 16, 2018 7:51 am<http://electionlawblog.org/?p=97541> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2018/02/15/us/politics/trumps-inaugural-committee-paid-26-million-to-first-ladys-friend.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=sectionfront>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Citizens United Loses Free Speech Appeal Over New York Donor Rules”<http://electionlawblog.org/?p=97538>
Posted on February 16, 2018 7:41 am<http://electionlawblog.org/?p=97538> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters:<https://www.usnews.com/news/us/articles/2018-02-15/citizens-united-loses-free-speech-appeal-over-new-york-donor-rules>

A federal appeals court on Thursday threw out a constitutional challenge by the conservative group Citizens United to New York state’s requirement that registered charities disclose their donors annually.

The 2nd U.S. Circuit Court of Appeals in Manhattan rejected claims that the requirement violated the First Amendment because it intimidated donors from contributing, cutting off money needed to conduct free speech, and was a prior restraint on the ability to solicit donations.

Writing for a 3-0 panel, Circuit Judge Rosemary Pooler said New York has important interests in stopping fraud and abuse by charities, and requiring them to disclose names, addresses and contributions of their largest donors makes enforcement easier.

You can read the very well done opinion at this link.<http://electionlawblog.org/wp-content/uploads/16-3310_opn.pdf>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“District judge: Amendment that made it harder to change Colorado’s Constitution may be unconstitutional”<http://electionlawblog.org/?p=97536>
Posted on February 16, 2018 7:37 am<http://electionlawblog.org/?p=97536> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting:<https://www.denverite.com/district-judge-amendment-made-harder-change-colorados-constitution-may-unconstitutional-48705/>

A district court judge gave an initial win Wednesday to a group that claims Amendment 71 unconstitutionally raised the bar for petitioners hoping to change the Colorado Constitution.

Judge William J. Martínez denied a request from the Secretary of State’s Office that asked to dismiss the lawsuit against the amendment<https://www.denverite.com/raise-the-bar-what-you-need-to-know-amendment-71-18966/>. Martínez also gave the state until March 9 to say why a permanent injunction should not be placed on the part of the law that requires 2 percent of signatures from each Senate district in Colorado.

Court documents show Martínez believes that because there is a substantial difference in the registered voter population from Senate district to Senate district, Amendment 71 could violate the Fourteenth Amendment’s Equal Protection Clause<https://www.law.cornell.edu/wex/equal_protection>. The clause protects “one person, one vote.”

One could interpret Amendment 71 as giving each legislative district one “vote” in favor of or against placing a proposed constitutional initiative on the ballot — like the measures that gave us legal cannabis and the Taxpayer’s Bill of Rights. District 21, where Commerce City is located, needs only 1,610 signatures to cast a “yea” vote. However, District 23, where Johnstown is located, needs 2,644 signatures, the documents show.

“But if Colorado has a good faith basis for believing it can develop empirical data showing that vote dilution is not actually occurring as between the various state Senate districts, the court will not foreclose that opportunity,” the documents state.
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Posted in voting<http://electionlawblog.org/?cat=31>

“K Street Reinvents Itself in the Era of Trump”<http://electionlawblog.org/?p=97533>
Posted on February 16, 2018 7:33 am<http://electionlawblog.org/?p=97533> by Rick Hasen<http://electionlawblog.org/?author=3>

Roll Call reports.<https://www.rollcall.com/news/politics/k-street-reinvents-itself-in-the-era-of-trump>
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Posted in lobbying<http://electionlawblog.org/?cat=28>

“Impacts of registration and ID laws on transgender voters”<http://electionlawblog.org/?p=97531>
Posted on February 16, 2018 7:32 am<http://electionlawblog.org/?p=97531> by Rick Hasen<http://electionlawblog.org/?author=3>

That’s the lead story in this week’s Electionline Weekly.<http://www.electionline.org/index.php/electionline-weekly>
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Don’t Expect Dems To Seek Redistricting Revenge Where They Get The Chance”<http://electionlawblog.org/?p=97529>
Posted on February 16, 2018 7:30 am<http://electionlawblog.org/?p=97529> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/why-democrats-probably-wont-gerrymander-much-2021>

The National Democratic Redistricting Committee (NDRC), backed by Obama and spearheaded by former Attorney General Eric Holder, is teaming up with other Democratic campaign organizations to target<https://talkingpointsmemo.com/news/obama-backed-national-democratic-redistricting-committee-invest-11-state-level-elections> specific governorships, legislative chambers, and ballot initiatives in 2020 with an eye on getting a say in the redistricting process.

So far, at least, Democrats appear focused more on fighting for fairer maps than <http://www.commoncause.org/issues/voting-and-elections/redistricting/redistricting-principles.html> on letting themselves draw maps that advantage their party.

“Our goal is to restore fairness to the system,” NDRC Communications Director Patrick Rodenbush told TPM Thursday. “If you look at our list of target states, we’re trying to break trifectas in states that were most badly gerrymandered by Republicans and then protect against gerrymandering in a handful of other ones.”

Trifectas are where one party controls all three influence-points for the redistricting process: both legislative chambers and the governorship.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“The First Step to Hack-Proofing Our Elections; Our out-of-date voting systems need an upgrade, now.”<http://electionlawblog.org/?p=97526>
Posted on February 16, 2018 7:27 am<http://electionlawblog.org/?p=97526> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Waldman<https://www.politico.com/magazine/story/2018/02/15/russia-hacking-election-security-217008> for Politico Magazine.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

“Republican bill could allow Arizona Legislature to draw map of voters”<http://electionlawblog.org/?p=97524>
Posted on February 16, 2018 7:26 am<http://electionlawblog.org/?p=97524> by Rick Hasen<http://electionlawblog.org/?author=3>

Arizona Republic:<https://www.azcentral.com/story/news/politics/legislature/2018/02/15/republican-bill-could-allow-arizona-legislature-draw-map-voters/338126002/>

Republican state lawmakers are pushing a November ballot proposition that would ask voters to overhaul the panel that draws Arizona’s political boundaries — a move that could affect which party holds power at the state Capitol.

The proposition would also give state legislators the authority to potentially sketch their own district boundaries, as well as those of Arizona’s members of Congress.

Supporters said the proposal is intended to make the Arizona Independent Redistricting Commission — a bipartisan panel that was created to take that power away from the Legislature — larger and, thereby, more bipartisan.

But Democrats and voter-advocacy groups say it’s a veiled attempt to dismantle the commission and let state lawmakers pick their voters through gerrymandering.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>, redistricting<http://electionlawblog.org/?cat=6>

Scoring the Pennsylvania Proposals<http://electionlawblog.org/?p=97521>
Posted on February 16, 2018 7:22 am<http://electionlawblog.org/?p=97521> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

Yesterday was the deadline for parties to submit their proposed remedial maps in the ongoing litigation over Pennsylvania’s congressional plan. In sum, seven maps were submitted<http://www.pacourts.us/news-and-statistics/cases-of-public-interest/league-of-women-voters-et-al-v-the-commonwealth-of-pennsylvania-et-al-159-mm-2017>: two by the plaintiffs, one by the governor, one by the lieutenant governor, one by Pennsylvania House Democrats, one by Pennsylvania Senate Democrats, and one by a group of intervenors. (The state’s Republican legislative leaders also submitted their map a few days earlier.)

All of these maps perform better in terms of traditional redistricting criteria than the enacted Pennsylvania plan. Their districts are more compact, and they split fewer towns and counties. To evaluate the maps’ partisan implications, we uploaded<https://planscore.org/upload.html> them on PlanScore. (For more on PlanScore, see my post<https://electionlawblog.org/?p=97502> from earlier this week.)

As the below chart indicates, the maps vary widely in their likely efficiency gaps. The Republican leaders’ proposal (like the enacted plan) preserves a double-digit Republican advantage. Three maps (from the governor, the lieutenant governor, and the Senate Democrats) have smaller but still substantial pro-Republican skews. And three maps (from the House Democrats and the plaintiffs) are almost completely symmetric.

[http://electionlawblog.org/wp-content/uploads/Graph-300x218.png]

Beyond showing that maps can be assessed quickly using PlanScore, this exercise has two points. First, it reveals that even when traditional criteria are followed (more or less), maps can still have very different partisan consequences. So it is not enough to say that we want an aesthetically attractive map; we also have to specify what kind of aesthetically attractive map we want: one that is skewed in favor of a party or one that is symmetric.

Second, this analysis means that the Pennsylvania Supreme Court will soon have to clarify its conception of partisan gerrymandering. In its decision, the court sometimes defined gerrymandering as drawing district lines with partisan intent and effect. But at other times, the court seemed to understand gerrymandering exclusively as disregard for traditional criteria, regardless of the partisan implications. Under the latter notion, all of the proposed maps are acceptable because all of them are much more compliant with traditional principles than the enacted Pennsylvania plan. But under the former definition, only a few of the proposals actually correct the partisan skew of the enacted plan.

(Two small methodological notes: The intervenors did not provide the necessary files for their proposed map to be evaluated. And all of these asymmetry scores were generated without considering incumbency; as I noted<https://electionlawblog.org/?p=97502> previously, we’re still working on enabling users to incorporate incumbency effects when they upload maps.)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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