[EL] ELB News and Commentary 2/20/18

Tue Feb 20 08:10:02 PST 2018

Join Me for a Very Special Conversation in NYC March 5 with Joan Biskupic on Justice Scalia’s Legacy and the Future of the Supreme Court<http://electionlawblog.org/?p=97614>
Posted on February 20, 2018 8:07 am<http://electionlawblog.org/?p=97614> by Rick Hasen<http://electionlawblog.org/?author=3>

Joan Biskupic’<https://www.cnn.com/profiles/joan-biskupic>s 2009 biography of Justice Scalia, American Original,<https://www.amazon.com/American-Original-Constitution-Supreme-Justice/dp/0374532443> is really one of the best and she is one of the most thoughtful students of the Supreme Court and the Justices. I am very excited to be in conversation with her at a Brennan Center event March 5 in NYC<https://www.brennancenter.org/event/rick-hasen-and-joan-biskupic-complex-legacy-justice-antonin-scalia>, talking about my new book<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=tmm_hrd_swatch_0?_encoding=UTF8&qid=1516681541&sr=8-1>about Justice Scalia’s legacy (which is not a biography). We will talk about how the Justice changed the way the Court writes about cases and the Court’s business, as well as the role of the Justices as public intellectuals.

I hope to see many ELB readers there, but you need to RSVP at this link if you’d like to go<https://www.brennancenter.org/event/rick-hasen-and-joan-biskupic-complex-legacy-justice-antonin-scalia> to this free event.

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

Supreme Court Won’t Hear Third Parties’ Case Against Presidential Debates Commission<http://electionlawblog.org/?p=97612>
Posted on February 20, 2018 7:53 am<http://electionlawblog.org/?p=97612> by Rick Hasen<http://electionlawblog.org/?author=3>
1h<https://twitter.com/KimberlyRobinsn/status/965960177697677312>
[https://pbs.twimg.com/profile_images/869288928163090433/bhTkOH3T_normal.jpg]Kimberly Robinson<https://twitter.com/KimberlyRobinsn>
✔@KimberlyRobinsn<https://twitter.com/KimberlyRobinsn>
Replying to @KimberlyRobinsn<https://twitter.com/_/status/965960028715921409>

#SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash> won’t hear No 17-719 Bauer v Becerra upholding firearms transfer fee. No Thomas dissent here.
<https://twitter.com/KimberlyRobinsn/status/965960295968657408>

[https://pbs.twimg.com/profile_images/869288928163090433/bhTkOH3T_normal.jpg]Kimberly Robinson<https://twitter.com/KimberlyRobinsn>
✔@KimberlyRobinsn<https://twitter.com/KimberlyRobinsn>

#SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash> won’t hear No 17-916 Johnson v Comm’n on Presidential Debates dismissing libertarian and green party candidates’ antitrust and First Amendment claims re: attendance at presidential debate
6:44 AM - Feb 20, 2018<https://twitter.com/KimberlyRobinsn/status/965960295968657408>
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See Kimberly Robinson's other Tweets<https://twitter.com/KimberlyRobinsn>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, third parties<http://electionlawblog.org/?cat=47>

“Subversive gerrymandering reform in Pennsylvania”<http://electionlawblog.org/?p=97610>
Posted on February 20, 2018 7:51 am<http://electionlawblog.org/?p=97610> by Rick Hasen<http://electionlawblog.org/?author=3>

Derek Muller:<http://excessofdemocracy.com/blog/2018/2/subversive-gerrymandering-reform-in-pennsylvania>

Let me offer the outset that I am not doubting the sincerity or well-intentioned motives of the justices on the court or those involved in drawing maps. Partisan fairness is, in my view, as legitimate a political criterion to use when thinking about how to draw maps as partisan-blind or neutral criteria.

But the Pennsylvania Supreme Court did not, in my view, act forthrightly in its opinion dictating criteria and its ultimate map. The criteria it enunciated–its three values of compactness, contiguity, and avoidance of dividing jurisdictions–were never really going to cure the problem it had identified.

It’s something like (ed: a metaphor sure to have its limitations!) a doctor diagnosing a patient with a mysterious disease and asking for ideas about how to treat the symptoms of the virus–a runny nose, a cough, a sore throat. When the ideas come in for a decongestant and lozenges, the doctor rejects them, saying, “I have my own decongestant and lozenges”–but one that also comes with blood transfusions. The blood transfusions might be useful, but it was hardly a part of the original proposal.

The Pennsylvania Supreme Court apparently did not want to include language like “seats-votes ratio” or “partisan fariness” into its construction of the commonwealth’s constitution. Perhaps it’s understandable–doing so would be quite controversial and perhaps even politically unpopular by all parties. It would have to articulate standards about how to achieve those results. It would need to spend more time explaining how it could go about achieving those ends, much less political actors in the state.

So, it didn’t include that language. But there is no doubt, from every commentator looking at the outcomes, that that is precisely what it did when drawing the new map. It consciously engaged in a partisan fairness inquiry of mapmaking, when that was not articulated expressly as one of the three criteria it asked the legislature to use in its new map, and when that was not expressly one of the criteria that it found required by the commonwealth’s constitution.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“How Democrats use ‘dark money’ — and win elections”<http://electionlawblog.org/?p=97608>
Posted on February 20, 2018 7:43 am<http://electionlawblog.org/?p=97608> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI:<https://www.publicintegrity.org/2018/02/20/21559/how-democrats-use-dark-money-and-win-elections>

Democrats love decrying “dark money<https://www.publicintegrity.org/2016/01/20/19156/what-political-dark-money-and-it-bad>” — political contributions for which the source of funds is a mystery. But that isn’t stopping them from accepting “dark money” themselves or making it difficult to determine the original underwriter of a political donation, as a recent Southern contest vividly illustrates.

Alabama’s special U.S. Senate election<http://www.montgomeryadvertiser.com/story/news/politics/2017/12/28/its-official-board-certifies-jones-winner-senate-electionstate-canvassing-board-officially-certifies/987546001/> in December is a case study in the lengths national Democrats, who this year are racing to win back Congress from Republicans, are willing to go to hide their cash in the name of political expediency.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

The Pennsylvania Remedy<http://electionlawblog.org/?p=97606>
Posted on February 19, 2018 9:47 pm<http://electionlawblog.org/?p=97606> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

According to PlanScore’s basic model, the remedial plan<https://planscore.org/plan.html?20180219T202039.596761160Z> adopted today by the Pennsylvania Supreme Court is impressively symmetric—both in absolute terms and compared to its predecessor<https://planscore.org/plan.html?enacted-PA5-ushouse>. Its likely efficiency gap is -2% (versus its predecessor’s -10%), its likely partisan bias is -4% (versus -12%), and its likely mean-median difference is -3% (versus -4%). In my view, this is the single most important fact about the remedial plan. It’s not just comprised of aesthetically appealing districts (though its districts are, in fact, much prettier than their antecedents). Rather, it promises actually to cure the underlying constitutional violation—to eliminate the majority of the previous plan’s pro-Republican skew. This is exactly what a partisan gerrymandering remedy should do, I think.

Another notable feature of the remedial plan is its competitiveness. According to PlanScore’s basic model, five of the plan’s eighteen districts are between 45% and 55% Democratic (and a sixth is just a hair outside this range). The plan could thus plausibly elect anywhere from eleven Democrats to thirteen Republicans depending on candidate quality and the overall electoral environment. This high level of competitiveness is reflected in PlanScore’s sensitivity testing<https://planscore.org/plan.html?20180219T202039.596761160Z>. In a good Democratic year, Democrats could win several more seats, thus tilting the plan’s efficiency gap in their favor. Conversely, in a good Republican year, Republicans could pocket even more seats, thus swinging the plan’s efficiency gap even further in their direction.

I’ve referred a couple times now to PlanScore’s “basic” model. It’s basic because it doesn’t take incumbency into account, instead relying on 2016 election results and demographic data. What happens if incumbency is incorporated into the model? (This feature is not yet available on the website, though it’s coming soon.)

For one thing, the model’s predictive power improves a bit, explaining 89% (rather than 84%) of the variance in the precinct-level congressional vote. More interestingly, it turns out that incumbency is a bigger electoral advantage in Pennsylvania than in most states today<http://www.journals.uchicago.edu/doi/abs/10.1086/681670>. The typical Democratic incumbent enjoys a 10% boost (compared to a Democratic candidate in an open seat), and the typical Republican incumbent benefits from a 6% lift. These figures are reminiscent of the 1980s and 1990s, and are more than double the usual contemporary levels.

Once the model includes incumbency, it becomes possible to analyze an array of electoral scenarios. For example, what if every seat in Pennsylvania was an open seat, with no incumbent running? Then Democrats would be expected to win nine seats (compared to eight using the basic model). District 17 would flip from barely Republican to narrowly Democratic.

Alternatively, what if we based the analysis on the actual incumbents’ current plans? As of today, there are twelve incumbents running for reelection in Pennsylvania: three Democrats and nine Republicans. Under this candidate configuration, Democrats would be expected to win just six seats. Three districts that would be marginally Democratic if they were open seats (1, 6, and 17) would flip to the Republican side of the ledger thanks to their Republican incumbents. This result renders particularly hollow the argument that the court’s remedial plan is “pretty close to a Democratic wet dream,” as one Republican consultant colorfully put it<https://www.politico.com/story/2018/02/19/pennsylvania-redistrict-democrats-midterms-354432>. In fact, given incumbents’ current plans, Republicans could keep their congressional supermajority, at least in an electoral environment similar to 2016.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Court-Drawn Map in Pennsylvania May Lift Democrats’ House Chances”<http://electionlawblog.org/?p=97604>
Posted on February 19, 2018 8:39 pm<http://electionlawblog.org/?p=97604> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<http://Court-Drawn%20Map%20in%20Pennsylvania%20May%20Lift%20Democrats%E2%80%99%20House%20Chances/>

More at WSJ<https://www.wsj.com/articles/pennsylvania-gets-a-new-district-map-1519089329> and WaPo<https://www.washingtonpost.com/news/wonk/wp/2018/02/19/pennsylvania-supreme-court-draws-a-much-more-competitive-district-map-to-overturn-republican-gerrymander/>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Parkland students show why 16-year-olds should be able to vote”<http://electionlawblog.org/?p=97602>
Posted on February 19, 2018 4:27 pm<http://electionlawblog.org/?p=97602> by Rick Hasen<http://electionlawblog.org/?author=3>

Josh Douglas CNN oped.<https://www.cnn.com/2018/02/19/opinions/parkland-shooting-voting-age-opinion-douglas/index.html>
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Posted in voting<http://electionlawblog.org/?cat=31>

“Attacking the ‘Woke’ Black Vote”<http://electionlawblog.org/?p=97600>
Posted on February 19, 2018 4:04 pm<http://electionlawblog.org/?p=97600> by Rick Hasen<http://electionlawblog.org/?author=3>

Charles Blow<https://www.nytimes.com/2018/02/18/opinion/black-vote-russia.html> NYT column:

One thing that is clear to me following the special counsel’s indictment<https://www.nytimes.com/2018/02/16/us/politics/russians-indicted-mueller-election-interference.html> of 13 Russians and three companies for interfering with our election is that the black vote was specifically under attack, from sources foreign and domestic. And this attack appeared to be particularly focused on young black activist-minded voters passionate about social justice: The “Woke” Vote.

The tragic irony is that these young people, many of whom already felt like the American political system was failing them, were encouraged to lay down one of the most powerful political tools they have, thereby ensuring an amplification of their own oppressions.

The indictment proclaims that the defendants acted as Americans to create social media pages and groups “which addressed divisive U.S. political and social issues.” But that is a phrase so broad and bland as to obscure the piercing truth that the indictment reveals: Referencing actual voter suppression, it says that “in or around the latter half of 2016, Defendants and their co-conspirators, through their personas, began to encourage U.S. minority groups not to vote in the 2016 U.S. presidential election or to vote for a third-party U.S. presidential candidate.”
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

NYT’s The Upshot: New PA Districts Achieve “Partisan Balance”<http://electionlawblog.org/?p=97598>
Posted on February 19, 2018 3:58 pm<http://electionlawblog.org/?p=97598> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/interactive/2018/02/19/upshot/pennsylvania-new-house-districts-gerrymandering.html?smid=tw-share>

In general, partisan balance is not usually a goal when redistricting. You could certainly argue that partisan balance and maximizing the number of competitive districts should be among the criteria, but, in general, they are not. Instead, a nonpartisan map usually means a partisan-blind map. It strives for compact districts that respect communities of interest, with little regard for the partisan outcome.

A decision to pursue partisan balance in Pennsylvania is particularly significant because Democrats are at a clear geographic disadvantage. They waste a lopsided number of votes in heavily Democratic Philadelphia and Pittsburgh; the Republicans don’t waste as many votes in their best areas, and so the rest of the state (and therefore its districts) leans Republican. As a result, a partisan-blind map will tend to favor the Republicans by a notable amount.

The new Pennsylvania map released Monday meets every standard nonpartisan criteria. It’s compact, minimizes county or municipal splits and preserves communities of interest. But it consistently makes subtle choices that suggest that partisan balance was an important consideration.

The court’s apparent prioritization of partisan balance is something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map. That’s also probably why the map is even more favorable to the Democrats than the plans that Democrats submitted themselves. Republicans in the State Legislature will probably be deeply upset and could try to challenge the new maps in federal court.

On the other hand, the new map is quite fair if it’s judged based on the relationship between seats won and the statewide popular vote. By that measure, it may still tilt slightly to the Republicans. If you value partisan fairness, you can cheer the result. If you think maps should be partisan-blind, you can argue that the map was drawn to the advantage of Democrats.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Pa Republicans Going to Fed Court<http://electionlawblog.org/?p=97596>
Posted on February 19, 2018 3:56 pm<http://electionlawblog.org/?p=97596> by Rick Hasen<http://electionlawblog.org/?author=3>

AP: <https://www.washingtonpost.com/politics/the-latest-pennsylvania-court-issues-new-congressional-map/2018/02/19/d6a2adf4-15ad-11e8-930c-45838ad0d77a_story.html?utm_term=.3966400f528f> “Top Senate Republican lawyer Drew Crompton said Monday a separation of powers case will form the essence of the GOP’s argument. Crompton won’t say whether Republicans will go to a district court or the U.S. Supreme Court or what type of legal remedy they’ll seek.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>

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

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