[EL] ELB News and Commentary 2/22/18

Thu Feb 22 08:20:56 PST 2018

“The challenge facing the challenge to winner-take-all systems in the Electoral College”<http://electionlawblog.org/?p=97688>
Posted on February 22, 2018 7:55 am<http://electionlawblog.org/?p=97688> by Rick Hasen<http://electionlawblog.org/?author=3>

Derek Muller:<http://excessofdemocracy.com/blog/2018/2/the-challenge-facing-the-challenge-to-winner-take-all-systems-in-the-electoral-college>

David Boies is leading an effort<http://electionlawblog.org/wp-content/uploads/2018-02-21-WTA_PressRelease_FINAL-12-PM.pdf> to challenge the winner-take-all method that most states use when awarding presidential electors. There are different ways states might award electors (which I used to project alternative electoral outcomes<http://excessofdemocracy.com/blog/2017/2/five-fictional-electoral-college-outcomes-from-the-2016-presidential-election> in 2016).

Brenden Cline in 2017 nicely summarized<https://medium.com/@BrendenCline/problems-with-the-equal-protection-argument-against-winner-take-all-in-the-electoral-college-8cedc5b722b7> the series of major problems with this litigation. It’s been argued and rejected before. Simply put, states have essentially plenary authority to choose the method of appointing electors, and the winner-take-all method has been around for 200 years, and used basically everywhere since the Civil War–with brief exceptions in Colorado in 1876 (legislative selection), Michigan in 1892 (district method), and Nebraska and Maine (district method) in recent years. (I discuss this plenary authority in 2007<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=979537> and 2008<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033853> Election Law Journal pieces, which conclude that that plenary authority does not extend to states entering into interstate compacts with one another concerning the award of electors–at least not without congressional consent. I also discuss it as an element of federalism in Invisible Federalism and the Electoral College<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049630>, 44 Arizona State Law Journal 1237 (2012).)

Since Election Day, a number of litigants–admittedly, mostly (if not all!) pro se–have attempted to file just such challenges. They’ve lost every time (0-6 by my count)….
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Posted in electoral college<http://electionlawblog.org/?cat=44>

“Section 5’s Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan”<http://electionlawblog.org/?p=97686>
Posted on February 22, 2018 7:48 am<http://electionlawblog.org/?p=97686> by Rick Hasen<http://electionlawblog.org/?author=3>

Christopher Schmidt has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3120092> on SSRN (forthcoming Northwestern U. Law Review). Here is the abstract:

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan (1966). Justice Brennan’s opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation” the rights enumerated in that amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in Boerne v. Flores (1997) the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today Morgan stands largely as an aberration of American constitutional law.

This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history of Section 5 during a period when most have assumed it had no presence, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“‘I’d Tell You, But Then…’: State Election Officials Get Classified Security Briefings”<http://electionlawblog.org/?p=97684>
Posted on February 22, 2018 7:44 am<http://electionlawblog.org/?p=97684> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2018/02/22/id-tell-you-but-then-state-election-officials-get-classified-security-briefings/?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHElections+%28The+Election+Academy%29>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“In the aftermath of Russian interference, local election officials say security efforts are crucial”<http://electionlawblog.org/?p=97682>
Posted on February 22, 2018 7:41 am<http://electionlawblog.org/?p=97682> by Rick Hasen<http://electionlawblog.org/?author=3>

The Chicago Tribune reports.<http://www.chicagotribune.com/suburbs/northbrook/news/ct-dfr-election-security-forum-tl-0301-story.html>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“Republicans Have an Ingenious Plan to Stop Losing Special Elections: Don’t hold them.”<http://electionlawblog.org/?p=97680>
Posted on February 22, 2018 7:34 am<http://electionlawblog.org/?p=97680> by Rick Hasen<http://electionlawblog.org/?author=3>

John Nichols<https://www.thenation.com/article/republicans-have-an-ingenious-plan-to-stop-losing-special-elections/> for The Nation.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Who Needs Congressional Districts?” and a Possible Answer<http://electionlawblog.org/?p=97678>
Posted on February 22, 2018 7:20 am<http://electionlawblog.org/?p=97678> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Tomasky NYT oped:<https://www.nytimes.com/2018/02/20/opinion/who-needs-congressional-districts.html>

Now imagine that the state’s House delegation were chosen differently — nine from districts, and nine via general ticket. That latter group would have to win statewide. That means they’d be more likely to tailor a message that could win a respectable percentage of the vote in the Philadelphia suburbs, where most Pennsylvania statewide elections are won or lost. That might produce a different kind of representative — one who had incentives to compromise instead of incentives to obstruct.

Michael Li:<https://twitter.com/mcpli/status/966416666576998406>
<https://twitter.com/mcpli/status/966416666576998406>

[https://pbs.twimg.com/profile_images/757344014/mail_normal.jpeg]Michael Li<https://twitter.com/mcpli>
✔@mcpli<https://twitter.com/mcpli>

It’s amazing - but, alas, not surprising - that a piece like this could get written without any reference to minority voters. https://twitter.com/bowtiepolitics/status/966415594051563520 …<https://t.co/YA53XdVfFU>
12:57 PM - Feb 21, 2018<https://twitter.com/mcpli/status/966416666576998406>
·         <https://twitter.com/intent/like?tweet_id=966416666576998406>
22<https://twitter.com/intent/like?tweet_id=966416666576998406>
·         <https://twitter.com/mcpli>
See Michael Li's other Tweets<https://twitter.com/mcpli>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, redistricting<http://electionlawblog.org/?cat=6>

“Memphis City Council quietly works on anti-instant runoffs bill”<http://electionlawblog.org/?p=97676>
Posted on February 22, 2018 7:17 am<http://electionlawblog.org/?p=97676> by Rick Hasen<http://electionlawblog.org/?author=3>

Gannett:<https://www.commercialappeal.com/story/news/government/city/2018/02/19/memphis-council-quietly-works-anti-instant-runoffs-bill/351732002/>

The Memphis City Council worked behind the scenes to find a sponsor for legislation this year that could ban instant-runoff elections statewide and forestall the Shelby County Election Commission from using the method for the first time in 2019.

The council recently instructed The Ingram Group — a well-connected, Nashville-based lobbying firm the council hired for $120,000 per year in November<https://www.commercialappeal.com/story/news/government/city/2017/09/15/memphis-council-may-hire-high-powered-nashville-lobbyist-ingram-group/670936001/> — to ask Republican Sen. Ken Yager of Kingston to carry the bill this year, council attorney Allan Wade confirmed Monday.

Republican Rep. Mark White of Memphis, who proposed the bill last year but made little headway, said the firm also approached him on the council’s behalf to ask if he would again sponsor the bill in the House.

Memphis Flyer Editorial: Memphis City Council Duplicity<https://www.memphisflyer.com/memphis/memphis-city-council-duplicity/Content?oid=11381761>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

A VRA Claim in Pennsylvania?<http://electionlawblog.org/?p=97674>
Posted on February 21, 2018 8:07 pm<http://electionlawblog.org/?p=97674> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

Rick noted<http://electionlawblog.org/?p=97669> that there’s been some talk of a VRA challenge to the new Pennsylvania congressional districts. An initial obstacle to such a claim is that the relevant new districts are nearly identical, demographically, to their predecessors. PlanScore’s pages for the old<https://planscore.org/plan.html?enacted-PA5-ushouse-JP> and new<https://planscore.org/plan.html?20180219T202039.596761160Z> plans include the most up-to-date minority citizen voting-age population (CVAP) shares for all of the districts. The old plan had one black-majority district (District 2, 57.5% black CVAP) and one arguable coalition district (District 1, 33.3% black CVAP, 12.6% Hispanic CVAP). The new plan also has one black-majority district (District 3, 57.3% CVAP) and one arguable coalition district (District 2, 25.3% black CVAP, 19.7% Hispanic CVAP). It seems unlikely that if the old districts didn’t dilute minorities’ votes, the new ones, with their almost indistinguishable minority CVAP shares, would. (This is to say nothing of all the other hurdles a VRA claim would face: showing that two compact majority-minority districts could be drawn in the area, proving sufficient racial polarization in voting, demonstrating political cohesion between black and Hispanic voters, and so on.)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

NAACP LDF Files Brief in Eleventh Circuit on Legality of Alabama Voter ID Law.<http://electionlawblog.org/?p=97672>
Posted on February 21, 2018 6:07 pm<http://electionlawblog.org/?p=97672> by Rick Hasen<http://electionlawblog.org/?author=3>

Read the brief<http://www.naacpldf.org/files/about-us/2018.02.21_Brief%20for%20Plaintiffs-Appellants.pdf> and press release<http://www.naacpldf.org/press-release/ldf-urges-11th-circuit-give-plaintiffs-day-court-challenge-alabamas-racially-discrimin>.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“New Pa. congressional district map could be challenged by Common Cause, NAACP on civil rights grounds”<http://electionlawblog.org/?p=97669>
Posted on February 21, 2018 6:01 pm<http://electionlawblog.org/?p=97669> by Rick Hasen<http://electionlawblog.org/?author=3>

This development<http://www.philly.com/philly/news/politics/pennsylvania-congressional-district-map-challenge-civil-rights-naacp-common-cause-philadelphia-gerrymandering-20180221.html> is unexpected:

Micah Sims, executive director of Common Cause Pennsylvania, said his organization and the state NAACP are considering filing suit in federal court to challenge the new map imposed by the Pennsylvania Supreme Court this week.

He said it may violate the 1965 Voting Rights Act, which banned obstacles to voting by minorities.

Under Pennsylvania’s former 2011 map, drawn by Republicans, nonwhites make up a majority of residents in two Philadelphia-based congressional districts. In the new map, people of color appear to be the majority in only one district, he said….

A challenge to the map under the Voting Rights Act would require substantial evidence beyond simple demographics, said Michael McDonald, a political science professor at the University of Florida who has served as an expert witness or consultant in multiple redistricting and election lawsuits.

If there is a significant minority community in a geographic area, the Voting Rights Act does not require that the congressional district be drawn to be majority-minority, McDonald said. The law requires that the minority be able to effectively elect the candidate of its choosing.

“It’s going to be difficult to mount the evidence,” McDonald said. “If the evidence is going to fall back to, ‘The district was reduced in African American population,’ that’s not sufficient. You’ve got to establish that the African American community is not effective in electing its candidate of choice.”

That can be complicated, he said. For one thing, the minority community’s preferred candidate can be white, or of another racial or ethnic group…..
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“The Myth of the Hacker-Proof Voting Machine”<http://electionlawblog.org/?p=97667>
Posted on February 21, 2018 4:47 pm<http://electionlawblog.org/?p=97667> by Rick Hasen<http://electionlawblog.org/?author=3>

Kim Zetter<https://www.nytimes.com/2018/02/21/magazine/the-myth-of-the-hacker-proof-voting-machine.html> for NYT Magazine:

But for as long as experts have warned about security problems, voting machine makers and election officials have denied that the machines can be remotely hacked. The reason, they say, is that the systems are not connected to the internet — an assurance the public has largely accepted. This defense was never more loudly expressed than in 2016, when the government disclosed that Russian hackers were probing American voter-registration systems and had breached at least one of them. Concerned that hacking fears could make the public less likely to vote, the United States Election Assistance Commission and state election officials rushed to assert that there was no need to worry about the votes because voting machines themselves were isolated from the internet.

The reality, as the incident in Venango County makes clear, is far more complicated.

Venango removed the remote-access software and isolated its system after Eckhardt and colleagues pointed out the security risk. But it’s likely that the software is still installed on other election systems around the country. ES&S has in the past sometimes sold its election-management system with remote-access software preinstalled, according to one official; and where it wasn’t preloaded, the company advised officials to install it so ES&S technicians could remotely access the systems via modem, as Venango County’s contractor did, to troubleshoot and provide maintenance.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Breaking: Pennsylvania Republican Legislative Leaders Petition Justice Alito AGAIN to Block Pa Congressional Redistricting Plan Ordered by State Supreme Court<http://electionlawblog.org/?p=97664>
Posted on February 21, 2018 4:35 pm<http://electionlawblog.org/?p=97664> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the new petition here.<http://electionlawblog.org/wp-content/uploads/pa-alito-2.pdf> The petition will go to Justice Alito, who can decide the matter himself or refer to the entire Court. Last time Justice Alito decided the matter himself, after asking for a response from the other side.

Like the last petition, this petition argues that the Pennsylvania Supreme Court, by holding that the existing maps violated the state Constitution, usurped the power to draw Congressional maps given to state legislatures (unless Congress overrides). As I recently explained<http://electionlawblog.org/?p=97581>;
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.)

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Kentucky: “‘No voter fraud’ in Bullitt County election, clerk says, despite Johnson campaign’s claims”<http://electionlawblog.org/?p=97662>
Posted on February 21, 2018 1:26 pm<http://electionlawblog.org/?p=97662> by Rick Hasen<http://electionlawblog.org/?author=3>

Courier Journal:<https://www.courier-journal.com/story/news/2018/02/21/bullitt-county-special-election-rebecca-johnson-linda-belcher-no-voter-fraud/358653002/>

The Bullitt County Clerk’s Office rejected claims from Rebecca Johnson’s campaign that her defeat was caused by voter fraud in Tuesday night’s special election.

“There was no voter fraud,” Bullitt County Clerk Kevin Mooney told Courier Journal. “While there was some human error, I don’t believe it was significant … it was a straight forwarded election.” …

Mooney said that there was one subdivision in Mt. Washington that was split between the 26th House District and the 49th House District. Approximately 20 or so voters who were set to vote at Bullitt East High School were sent to Bullitt Middle instead to vote.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Trump’s former bodyguard makes $15,000 a month from a GOP ‘slush fund'”<http://electionlawblog.org/?p=97660>
Posted on February 21, 2018 12:54 pm<http://electionlawblog.org/?p=97660> by Rick Hasen<http://electionlawblog.org/?author=3>

CNBC:<https://www.cnbc.com/2018/02/21/trumps-ex-bodyguard-makes-15000-a-month-from-a-gop-slush-fund.html>

When President Donald Trump<https://www.cnbc.com/donald-trump/>‘s longtime bodyguard Keith Schiller decided to leave his White House job last fall, many in the West Wing wondered how the president would manage without his personal security chief-turned-confidant, who had been working for Trump nearly 20 years.

As it turns out, Schiller didn’t go very far. Within weeks of leaving his job as director of Oval Office operations, Schiller’s private security firm, KS Global Group, began collecting $15,000 a month for “security services” from the Republican National Committee.

According to an RNC official, Schiller is being paid for security consulting on the site selection process for the 2020 Republican National Convention. Schiller’s fee comes out of the RNC’s convention fund, not its campaign fund, the official noted.

Campaign finance watchdog groups, however, were quick to cry foul.

“These sorts of party accounts are notorious for being operated as slush funds — lightly regulated and ripe for abuse,” said Stephen Spaulding, former special counsel at the Federal Election Commission and now chief of strategy at the nonpartisan advocacy group Common Cause.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“FAN 179 (First Amendment News): Does existing First Amendment law endanger our national security and sovereignty? Prof. Hasen says yes”<http://electionlawblog.org/?p=97658>
Posted on February 21, 2018 11:03 am<http://electionlawblog.org/?p=97658> by Rick Hasen<http://electionlawblog.org/?author=3>

I have this guest post<https://concurringopinions.com/archives/2018/02/fan-179-first-amendment-news-does-exisiting-first-amendment-law-endanger-our-national-security-and-sovereignty-prof-hasen-says-yes.html> over at Concurring Opinions. It begins:

Last week, special counsel Robert Mueller secured a grand jury indictment of 13 Russian nationals for interfering<https://www.justice.gov/file/1035477/download> with the 2016 U.S. presidential elections by, among other things, paying for political advertisements promoting Donald Trump for President and opposing Hillary Clinton. The claims were based in part on federal law barring most foreign nationals from spending money to influence U.S elections. But thanks to the First Amendment, some of the activity described in the indictment may not be illegal. More importantly, going forward, the indictment gives a roadmap<https://slate.com/news-and-politics/2018/02/the-campaign-finance-loophole-that-could-make-the-next-russian-attack-perfectly-legal.html> for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. Indeed, if Congress acts to curb future foreign interference, the Court could well face the question whether national security and sovereignty concerns should override the current line it has drawn in campaign finance law between express advocacy and issue advocacy.

As I explain in a forthcoming article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598> in the First Amendment Law Review, “Cheap Speech and What It Has Done (to American Democracy),” federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a Federal, State or local election. However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban
.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Breaking: “Legal Team Led by David Boies and LULAC Files Lawsuits Challenging Winner-Take-All Approach to Selecting Electors in Presidential Elections”<http://electionlawblog.org/?p=97652>
Posted on February 21, 2018 9:19 am<http://electionlawblog.org/?p=97652> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://electionlawblog.org/wp-content/uploads/2018-02-21-WTA_PressRelease_FINAL-12-PM.pdf>

A coalition of law firms led by David Boies of Boies Schiller Flexner LLP, and The League of United Latin American Citizens (LULAC) today announced the filing of four landmark lawsuits challenging the winner-take-all method states use to allocate their Electoral College votes. By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The non-partisan effort will draw on the resources of several law firms in advancing legal challenges in two states that are solidly blue, Massachusetts and California, and two others that are solidly red, South Carolina and Texas. All four suits are designed to uphold the Constitution’s guarantee that every vote—whether for a Republican, a Democrat, or third-party candidate—will be treated equally.

Update: Here is the complaint filed in Mass. <http://electionlawblog.org/wp-content/uploads/mass-ec-complaint.pdf>
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Posted in electoral college<http://electionlawblog.org/?cat=44>

Wisconsin: “Burns says his approach to Supreme Court race most honest way to run”<http://electionlawblog.org/?p=97649>
Posted on February 21, 2018 8:32 am<http://electionlawblog.org/?p=97649> by Rick Hasen<http://electionlawblog.org/?author=3>

WisPolitics:<https://www.wispolitics.com/2018/burns-says-his-approach-to-supreme-court-race-most-honest-way-to-run/>

Middleton attorney Tim Burns said he has not started to process whether his approach to the Supreme Court primary was a mistake.

But he believes it is the most honest way to run.

“I am still just 100 percent, wholly committed to the idea that judges need to run this way and they need to behave this way,” said Burns, who ran as an unabashed progressive. “They’re nominated for the court. We can’t just let these guys go controlling our society without demanding what their values are.”

With nearly three-fourths of precincts in, Burns was a distant third in the three-way race, according to unofficial returns collected by The Associated Press.

Patrick Marley:<https://www.jsonline.com/story/news/politics/2018/02/20/wisconsin-supreme-court-primary-michael-screnock-rebecca-dallet-advance-april-3-out-tu-3-esdays-wisc/352693002/>

Burns said he was surprised by the results because people had responded so well when he talked to them about his liberal viewpoint. He said he would spend a couple of days deciding whether to endorse Dallet or stay out of the general election campaign. He said there was no way he would back Screnock.

“I obviously have been pretty vocal about my concerns about the right wing of the Republican Party,” he said. “I just disagree so much with (Screnock’s) political views. I believe it will impact him as a judge.”

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Posted in judicial elections<http://electionlawblog.org/?cat=19>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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