[EL] more news 2/22/18

Thu Feb 22 15:10:44 PST 2018

“Commentary: In Pair of Opinions, Fight Over Textualism Lives On; When Justice Kagan declared at a 2015 “Scalia Lecture” at Harvard Law School that ‘we are all textualists now,’ she may have been a bit premature.”<http://electionlawblog.org/?p=97703>
Posted on February 22, 2018 3:06 pm<http://electionlawblog.org/?p=97703> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped<https://www.law.com/nationallawjournal/2018/02/22/in-pair-of-opinions-justices-take-up-anti-textualism-cause/> for the National Law Journal. It begins:

The battle over Justice Antonin Scalia’s approach to interpreting federal statutes shows no signs of abating even two years after his death<https://www.washingtonpost.com/news/posteverything/wp/2018/02/13/antonin-scalias-disruption-of-the-supreme-courts-ways-is-here-to-stay/?utm_term=.e954dd02a5e8>, as a pair of opinions issued Wednesday by Justice Sonia Sotomayor, a concurring opinion by Justice Clarence Thomas and a surprising concurring vote of Justice Samuel Alito show.

Scalia’s most lasting influence on the Supreme Court is likely to be “textualism,” an approach to deciding the meaning of statutes by relying upon the words of the statutory text as a reader at the time of the statute’s enactment would have understood them. Scalia would frequently turn to dictionary or “canons” of construction (rules of thumb for deciding cases, such as interpreting criminal law statutes leniently to help defendants) as an aid to construction. What he would almost never do is consult legislative history (such as the statement of a senator on the floor of the Senate or a House of Representatives committee report accompanying legislation) to understand the statute’s meaning. He thought such legislative history was unreliable, manipulable and not the law passed by Congress….

Sotomayor took up the cause of anti-textualism Wednesday in a concurring opinion in Digital Realty Trust v. Somers<https://www.supremecourt.gov/opinions/17pdf/16-1276_b0nd.pdf>, a case concerning a technical provision of the 2010 Dodd-Frank anti-corporate fraud statute protecting whistleblowers. All nine justices on the high court agreed with the result reached by Justice Ruth Bader Ginsburg’s majority opinion on the meaning of the whistleblower provision. Ginsburg’s majority opinion relied not only on the words in the statute but also a Senate report explaining its meaning.

Justice Clarence Thomas, joined by Justices Alito and Neil Gorsuch, issued a separate opinion agreeing with the parts of Ginsburg’s opinion using the textualist approach, but rejected any reliance on the Senate report or legislative history. Thomas wrote, quoting in part Scalia, that “Even assuming a majority of Congress read the Senate Report, agreed with it, and voted for Dodd-Frank with the same intent, ‘we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended.’”

Especially interesting was Alito’s agreement to sign on to the Thomas concurrence. While Gorsuch is a professed textualist, Alito has been willing to look at legislative history, which dismayed Scalia<https://www.law.cornell.edu/supct/html/05-5992.ZC.html>. Perhaps the passage of time has turned Alito into more of a textualist.

The short Thomas concurrence prompted a response from Sotomayor, who argued for the relevance of legislative history in understanding the meaning of a statute in context. She relied upon Second Circuit Chief Judge Robert Katzmann’s excellent rejoinder to Scalia, his 2014 book, “Judging Statutes<https://www.amazon.com/Judging-Statutes-Robert-Katzmann/dp/0190263296>,” as well as the work of professors Abbe Gluck and Lisa Schultz Bressman<https://www.stanfordlawreview.org/print/article/statutory-interpretation-from-the-inside-an-empirical-study-of-congressional-drafting-delegation-and-the-canons-part-i/>, showing that congressional staffers viewed committee reports as the most reliable type of legislative history. Sotomayor wrote that “legislative history can be particularly helpful when a statute is ambiguous or deals with especially complex matters. But even when, as here, a statute’s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text.”

Despite Sotomayor’s valiant defense of more holistic statutory interpretation, she did not mention a bit of legislative history in her unanimous opinion for the court Wednesday in Rubin v. Islamic Republic of Iran<https://www.supremecourt.gov/opinions/17pdf/16-534_6jfm.pdf>. Rubin concerned whether the Foreign Sovereign Immunities Act of 1976 prevented a plaintiff, who held a judgment against Iran for assisting in terrorist act, from obtaining Iranian artifacts held at the University of Chicago to satisfy the judgment. The unanimous court held that the FSIA gave Iran immunity from this attempt to satisfy the judgment….

Despite the fact that all<http://www.scotusblog.com/wp-content/uploads/2017/09/16-534-ts.pdf> of the Supreme Court merits<http://www.scotusblog.com/wp-content/uploads/2017/11/16-534-bs-The-University-of-Chicago.pdf> briefs<http://www.supremecourt.gov/DocketPDF/16/16-534/21375/20171122173514140_35483%20pdf%20Perlin%20br.pdf> in Rubin, as well as an amicus brief of the United States<http://www.scotusblog.com/wp-content/uploads/2017/11/16-534-bsac-united-states.pdf>, cited the legislative history of the FSIA—including a floor statement of Sen. Frank Lautenberg, D-NJ—Sotomayor’s opinion did not mention legislative history at all.

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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

New Federal Lawsuit in Pennsylvania Congressional Redistricting Litigation Seeks 3 Judge Court Order to Hold Elections Under Old 2011 Maps; Case is Longshot<http://electionlawblog.org/?p=97701>
Posted on February 22, 2018 1:28 pm<http://electionlawblog.org/?p=97701> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the complaint (which may or may not have already been filed) at this link. <http://senatorcorman.com/wp-content/uploads/sites/38/2018/02/corman-folmer-complaint-022218.pdf>

Some of the plaintiffs are members of Congress who are not parties to the other litigation, so the Rooker-Feldman doctrine may not apply to bar their suit. But there are other abstention and standing doctrines that will stand in the way. Basically, it is hard to get a federal court to act to essentially enjoin the actions of a state court when there is a direct route to go after the state court action to the Supreme Court (which some PA legislators have already done (or apparently<http://electionlawblog.org/?p=97695> done)).

So it is not clear a court will reach the merits. On the merits, the complaint raises only Elections Clause issues, which appear to be a long shot for reasons I’ve explained<http://electionlawblog.org/?p=97664>.

The complaint requests a three-judge court. That’s important because it provides a direct route to appeal the case to the Supreme Court for relief.

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

“Texas Workforce Commission changes voter registration practices after pressure from civil rights groups”<http://electionlawblog.org/?p=97699>
Posted on February 22, 2018 1:19 pm<http://electionlawblog.org/?p=97699> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://texascivilrightsproject.org/release-texas-workforce-commission-changes-voter-registration-practices-pressure-civil-rights-groups/>

 In a change of course, effective February 21, 2018, the Texas Workforce Commission (“TWC”) will begin the process of implementing voter registration services to those served by its Vocational Rehabilitation program. The change comes after the agency received a notice<http://www.mystatesman.com/news/disability-group-threatens-sue-texas-over-voter-registration-policy/ZH7TmoxXmjGZ3FL54NIosO/> from civil rights groups earlier this month notifying it of potential litigation if it failed to change its practices.

Since TWC took over vocational rehabilitation services from the Department of Assistive and Rehabilitative Services (“DARS”) in September of 2016, it has failed to provide voter registration services to Texans with disabilities using its rehabilitation services. This inaction violated the federal National Voter Registration Act (“NVRA”), which requires Texas to provide voter registration services to people with disabilities who obtain vocational rehabilitation services from state agencies, and affected over 74,000 people with disabilities annually.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“The Price of Democracy: Splitting the bill for elections; New report from the National Conference of State Legislatures”<http://electionlawblog.org/?p=97697>
Posted on February 22, 2018 1:17 pm<http://electionlawblog.org/?p=97697> by Rick Hasen<http://electionlawblog.org/?author=3>

Electionline:<http://www.electionline.org/index.php/electionline-weekly>

This new NCSL report<http://www.ncsl.org/research/elections-and-campaigns/the-price-of-democracy-splitting-the-bill-for-elections.aspx>, “The Price of Democracy: Splitting the Bill for Elections,” is the result of two years of studying all things related to elections and costs, addressing questions such as:  What are the costs associated with running elections? What state policy choices relate to costs? What funding mechanisms are in use in the states? Can money buy security?

Perhaps the biggest takeaway from our work on election costs is this: Money matters.

Not that money is the only factor when making decisions about election policy. There’s also turnout, reliability, accessibility, accuracy and a host of other values. Democracy is not a place for cutting corners.

Here are 10 more takeaways for legislators and other policymakers:…
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Posted in election administration<http://electionlawblog.org/?cat=18>

Has the Pennsylvania Republicans’ Emergency Request to Justice Alito in Congressional Redistricting Cases Not Been Filed?<http://electionlawblog.org/?p=97695>
Posted on February 22, 2018 12:59 pm<http://electionlawblog.org/?p=97695> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday I wrote<http://electionlawblog.org/?p=97664> about a petition<http://electionlawblog.org/wp-content/uploads/pa-alito-2.pdf> that I said had been filed with Justice Alito by Republican legislative leaders in Pennsylvania trying to stop the congressional redistricting ordered by the state Supreme Court. The post explained why I believe the matter is a longshot.

When I posted the petition I noticed that the title of the file had the word “draft” in it, but didn’t think too much of it.

But now it appears that the SCOTUS information office has not indicated it has received the petition.

So perhaps it has not been filed. Maybe they are still tweaking it.

Or maybe they think better of bothering Justice Alito with almost the same argument again.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Red Alert for Election Administration: Matthew Masterson May Be Out at EAC<http://electionlawblog.org/?p=97692>
Posted on February 22, 2018 12:08 pm<http://electionlawblog.org/?p=97692> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters Exclusive:<https://www.reuters.com/article/us-usa-cyber-election-masterson-exclusiv/exclusive-u-s-official-focused-on-election-security-being-shoved-aside-idUSKCN1G62NI>

 The head of a federal agency who has helped U.S. states protect election systems from possible cyber attacks by Russia or others is being removed from his post by Republican House of Representatives Speaker Paul Ryan and the White House.
Matthew Masterson, currently chairman of the U.S. Election Assistance Commission and a former Ohio state official, has been passed over for a second four-year term as one of the agency’s four commissioners, according to sources familiar with the matter.
It is up the House speaker to recommend a nominee for the commissioner post that Masterson currently holds, with the president then making a formal nomination.
Masterson has been a popular figure among state election officials, many of whom have praised his expertise and leadership on cyber security issues and expressed chagrin at his pending departure. The agency was created by Congress in 2002 to assist states in complying with federal election standards.
The action raises fresh questions over the degree to which Republican President Donald Trump and his fellow Republicans who control Congress are taking steps to protect the security of American elections, and some state officials have accused them of doing too little to address the threat.

Masterson, a Republican appointee has been completely nonpartisan and professional, and willing to work across the aisle on issues (unlike the other Republican commissioner, Christy McCormick, who was a member of Trump’s now-disbanded sham election fraud commission). His work with Democratic Commissioner Tom Hicks and others is a rare bright spot of bipartisan professional cooperation in an otherwise politicized field.  (Here’s an ELB Podcast interview<http://electionlawblog.org/?p=84155> with Masterson and Hicks.)

All in all, this is terrible news if true.

And it suggests he’s being canned because he’s not a party hack.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Another redistricting lawsuit filed in NC — this one over Wake election districts”<http://electionlawblog.org/?p=97690>
Posted on February 22, 2018 9:25 am<http://electionlawblog.org/?p=97690> by Rick Hasen<http://electionlawblog.org/?author=3>

News & Observer:<http://www.newsobserver.com/news/local/article201381399.html>

Organizations that have challenged North Carolina redistricting plans are going back to state court over the General Assembly’s redrawing last year of election districts — this time with a new lawsuit challenging four state House districts in Wake County.

The challengers are arguing that lawmakers violated the state constitution when they redrew Wake County election districts mid-decade when federal judges had not ordered them to do so to correct other districts ruled to be racial gerrymanders.

Read the complaint.<https://www.southerncoalition.org/wp-content/uploads/2017/01/NC-NAACP-v.-Lewis-Complaint.pdf>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

--
Rick Hasen
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UC Irvine School of Law
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