[EL] PA Congressional Maps Issued/ELB News and Commentary 2/19/18

[Rick Hasen]

Correction: Persily is an advisor to the Pa. Supreme Court and not a special master.


From: Rick Hasen <rhasen at law.uci.edu>
Date: Monday, February 19, 2018 at 12:31 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: PA Congressional Maps Issued/ELB News and Commentary 2/19/18

Pa Supreme Court on 4-3 Adopts Special Master Persily’s Maps for Pennsylvania Congressional Redistricting; GOP’s Litigation Options Do Not Look Good<http://electionlawblog.org/?p=97581>
Posted on February 19, 2018 12:15 pm<http://electionlawblog.org/?p=97581> by Rick Hasen<http://electionlawblog.org/?author=3>

The Pennsylvania Supreme Court<http://www.pacourts.us/assets/files/setting-6015/file-6852.pdf?cb=df65be> (with<http://www.pacourts.us/assets/files/setting-6015/file-6850.pdf?cb=0c5bfc> three<http://www.pacourts.us/assets/files/setting-6015/file-6851.pdf?cb=a1d195> dissents<http://www.pacourts.us/assets/files/setting-6015/file-6849.pdf?cb=561609>) has adopted  <https://twitter.com/bycoffe/status/965669707171934208> Nate Persily’s maps for redrawing congressional districts. (One of the districts–18—looks surprisingly<https://twitter.com/rickhasen/status/965676388941406208> like Penn State’s Nittany Lion.)

[http://electionlawblog.org/wp-content/uploads/pa-map-300x200.png]<http://electionlawblog.org/wp-content/uploads/pa-map.png>

Philly Inquirer:<http://www.philly.com/philly/news/politics/pennsylvania-gerrymandering-supreme-court-map-congressional-districts-2018-elections-20180219.html>

Its plan splits only 13 counties. Of those, four counties are split into three districts and nine are split into two districts. It also includes significant changes to the state map, including dividing Philadelphia into only two congressional districts; currently three House members represent parts of the city.

By contrast the most recent map, enacted in 2011, split 28 counties.
 “The  Remedial  Plan  is  superior  or comparable  to all  plans submitted by  the parties,  the intervenors, and amici, by  whichever  Census, provided  definition  one employs,” the court wrote in its order.
The early indications are that this is a much more competitive map which will help the Democrats compared to the gerrymandered maps drawn by the Republican legislature. Given Nate Persily’s general reputation for fairness, I expect that these maps will be fair and comply with the requirements set out by the state Supreme Court.
Because this was a case decided under the state constitution by the state supreme court, the usual path for review of this case by the U.S. Supreme Court is limited. The only plausible argument I see is that the maps violate the Elections Clause of the Constitution, which vests in the state legislature the power to choose rules for congressional elections (unless Congress acts to preempt them).
The problem with this argument is that the Pa Republicans already went to the Supreme Court when the state supreme court announced a redistricting– and Republicans raised the very same argument. At the time it was raised, I called the argument a long shot<http://electionlawblog.org/?p=97047>, given a line of cases (most recently a 2015 case from Arizona) <https://www.supremecourt.gov/opinions/14pdf/13-1314_3ea4.pdf> reading the word legislature much more broadly in the context of the elections clause. The emergency stay request went to Justice Alito, who denied it without even referring it to the Court<http://electionlawblog.org/?p=97340>. So he likely did not think much of it at the time.
Now it is quite possible that Pa. Republicans will go back to Justice Alito, arguing that things are even worse now that the state Supreme Court has adopted a map itself. That’s the job first and foremost for the legislature. But remember that the Pa. legislature did not even come up with an official passed plan for the state supreme court to reject. (A pair of legislative leaders had a plan, but it was not passed by the legislature.) This seems to give Pa. Republicans even less standing to complain about things. I expect something new filed with Justice Alito will get no further. (After all, we are even later into the election season.)
The alternative, which I’ve been hearing a lot about from reporters, is Pa. Republicans filing a new and separate federal court challenge in a federal district court raising the same Elections Clause challenge. This seems like a super longshot. Not only does it present the same problem on the merits as what Justice Alito already rejected. But this would be a collateral attack on a state supreme court decision in federal court (rather than a direct appeal from the state Supreme Court to the U.S. Supreme Court). Various abstention doctrines, including the Rooker-Feldman doctrine, would counsel federal courts against issuing orders directly against the orders of state courts. There are principles of comity and federalism that make such challenges extremely hard to bring.
Bottom line: it is hard to see where Republicans go from here to successfully fight these maps.
[This post has been updated.]
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Arizona: “Panel okays proposal for state lawmakers to tap U.S. Senate nominees”<http://electionlawblog.org/?p=97579>
Posted on February 19, 2018 11:27 am<http://electionlawblog.org/?p=97579> by Rick Hasen<http://electionlawblog.org/?author=3>

Arizona Capitol Times reports.<https://azcapitoltimes.com/news/2018/02/14/panel-okays-proposal-for-state-lawmakers-to-tap-u-s-senate-nominees/>
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Posted in voting<http://electionlawblog.org/?cat=31>


Did My Predictions at Slate About What President Trump Would Mean for Voting Rights Come True?<http://electionlawblog.org/?p=97577>
Posted on February 19, 2018 11:02 am<http://electionlawblog.org/?p=97577> by Rick Hasen<http://electionlawblog.org/?author=3>

Last year the staff at Slate asked me to predict what would happen with voting rights in the Trump era, as part of a broader set of predictions<http://www.slate.com/articles/news_and_politics/politics/2017/01/how_trump_will_change_america_predictions.html> about Trump’s effects on politics, law, and culture. Well they’ve now gone back to look<https://slate.com/news-and-politics/2018/02/how-has-trump-changed-america.html> at whether the predictions have come true, and here’s my contribution:

Prediction, Voting Rights: The Department of Justice under new attorney general Jeff Sessions will reverse his department’s challenges to the legality of Texas’ voter ID law and North Carolina’s law making it harder to register and to vote, leading more Republican states to adopt similar restrictive laws even before the Supreme Court may weigh in on these issues.

One Year Later: Mostly Correct. The Department of Justice indeed has flipped to side with Texas<http://electionlawblog.org/?p=96556> in the case challenging the state’s strict voter identification law and flipped to side with Ohio<http://www.slate.com/articles/podcasts/amicus/2018/01/ohio_s_voter_purge_comes_before_the_supreme_court.html> in a case about the state making it easier to purge eligible voters from the voting rolls. (The Supreme Court did not take<https://electionlawblog.org/?p=92522> the North Carolina voting case on technical reasons that I hope I inspired<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html>.) Republican states continue to push<https://www.brennancenter.org/analysis/voting-laws-roundup-2018> for new laws making it harder to register and vote as the rest of us wait for eventual signals from the Supreme Court over whether actions like Texas’ and Ohio’s are acceptable.
—Richard L. Hasen, professor of law and political science at the University of California–Irvine School of Law
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“The Supreme Court, Judicial Elections, and Dark Money”<http://electionlawblog.org/?p=97575>
Posted on February 19, 2018 10:54 am<http://electionlawblog.org/?p=97575> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Briffault has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3119858> on SSRN (forthcoming, DePaul Law Review).  Here is the abstract:

In its cases dealing with judicial elections, the Court has cycled back and forth over whether to treat judges as representatives of the voters, like other elected officials, with judicial elections subject to the same constitutional rules as other elections or to emphasize the distinctive nature of the judicial role, which could support special limits on judicial campaign activity. Over a trilogy of cases decided between 2002 and 2015 – Republican Party of Minnesota v. White, Caperton v. A.T. Massey Coal Co., and Williams-Yulee v. Florida Bar – a divided Court has struggled to hold together the First Amendment’s commitment to robust and unrestricted campaign speech with a growing concern for the Due Process value of impartial judicial decision-making and the need to preserve public confidence in judicial integrity. Overall, judicial elections have been treated as very similar to, but not quite the same as, other elections, and some campaign speech restrictions that would be unconstitutional in most elections may be constitutional in judicial elections. This has implications for the regulation of dark money in judicial elections. As in other elections, dark money spending in judicial elections can be subject to disclosure requirements but not spending limitations. Unlike in other elections, in certain circumstances dark money spending in judicial elections could trigger recusal requirements, but the circumstances are poorly defined. In any event recusal is unlikely to be an effective response to the concerns raised by dark money.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>


“The Charging Mystery in the Russia Indictments—And Its Indication of What Comes Next in the Mueller Investigation”<http://electionlawblog.org/?p=97573>
Posted on February 18, 2018 4:11 pm<http://electionlawblog.org/?p=97573> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Bauer<https://www.justsecurity.org/52610/charging-mystery-russia-indictments-and-indication-mueller-investigation/> at Just Security:

In other words, if Mueller’s case for campaign finance violations affected only Russians, there would be no obvious reason to exclude Federal Election Campaign Act violations from the indictment. Russians spent substantial sums to influence an election, as expressly laid out in the charging document, and this is an unambiguous violation of federal law. If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.

On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions.  Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.

The Mueller indictment is conceivably one way to solve this problem. It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails.  The conspiracy to defraud<https://www.justice.gov/usam/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us> the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.

The special counsel may well have concluded that he could deal with any instances of U.S. citizen complicity without getting bogged down in unresolved questions of what constitutes “soliciting” support or providing the foreign national with “substantial assistance.”  In sum, Mr. Mueller and his team may have adopted this theory of the case to facilitate the charging of Americans who helped their Russian allies interfere in the 2016 election.  This is most plausible solution to the Mueller indictment mystery.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Campaign Finance and Freedom of Speech – A Transatlantic Perspective”<http://electionlawblog.org/?p=97571>
Posted on February 18, 2018 4:05 pm<http://electionlawblog.org/?p=97571> by Rick Hasen<http://electionlawblog.org/?author=3>

Mathias Hong has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3123045> on SSRN. Here is the abstract:

If freedom of speech protects a marketplace of ideas – what is its proper currency? Is it only the force of the arguments brought forth – or is it money as well? For the current majority of the U. S. Supreme Court the answer under the U. S. Constitution seems clear: Freedom of speech must include the right to unfettered use of money in the competition. For the Court, the marketplace of ideas turns into a literal, economic marketplace. In what follows I will agree with most American scholars who sharply criticize this reading of the First Amendment. I will join in this critique, however, as somebody who genuinely admires the strong protection of free speech in the United States. I think Europe stands to learn a lot from the American model – but I agree with most scholars in the United States that the Supreme Court’s campaign finance decisions, especially since Citizens United (2010), do not do justice to that worthy American free speech tradition itself.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


--
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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http://electionlawblog.org<http://electionlawblog.org/>
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