[EL] ELB News and Commentary 2/23/18

Fri Feb 23 09:23:34 PST 2018

“Pennsylvania Republicans lost the redistricting battle. Now, they’re declaring war on the courts.”<http://electionlawblog.org/?p=97723>
Posted on February 23, 2018 9:16 am<http://electionlawblog.org/?p=97723> by Rick Hasen<http://electionlawblog.org/?author=3>

Christopher Ingraham for WaPo.<https://www.washingtonpost.com/news/wonk/wp/2018/02/22/pennsylvania-republicans-lost-the-redistricting-battle-now-theyre-declaring-war-on-the-courts/?utm_term=.fc1c60f8e74f>
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Posted in judicial elections<http://electionlawblog.org/?cat=19>, redistricting<http://electionlawblog.org/?cat=6>

“Argument preview: Justices to hear challenge to Minnesota voting dress code”<http://electionlawblog.org/?p=97721>
Posted on February 23, 2018 9:09 am<http://electionlawblog.org/?p=97721> by Rick Hasen<http://electionlawblog.org/?author=3>

Amy Howe preview<http://www.scotusblog.com/2018/02/argument-preview-justices-hear-challenge-minnesota-voting-dress-code/#more-266685> for SCOTUSBlog.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

“Constitutional Preservation and the Judicial Review of Partisan Gerrymanders”<http://electionlawblog.org/?p=97719>
Posted on February 23, 2018 8:58 am<http://electionlawblog.org/?p=97719> by Rick Hasen<http://electionlawblog.org/?author=3>

Ned Foley has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3128936> on SSRN. Here is the abstract:

This essay makes three contributions to the debate over whether the Constitution contains a judicially enforceable constraint on gerrymanders. First, it directly tackles the Chief Justice’s fear of the judiciary appearing partisan, observing that the same fear would exist if the Constitution explicitly banned gerrymanders and explaining why an implicit ban should be no less judicially enforceable than an explicit ban under Marbury v. Madison. Second, invoking the idea of “institutional forbearance” in the important new book How Democracies Die, the essay shows how the Elections Clause can be construed to protect congressional districting from abuses of legislative discretion committed by state legislatures. Together, these two points lead to a third: the most essential duty of the Court, according to originalist theories of constitutional interpretation, is to preserve the Constitution against changes that would undermine its provisions or its overall core commitment to the creation of a federal republic for the United States; thus, insofar as virulent gerrymanders increasingly threaten the measure of popular sovereignty that elections to the federal House of Representatives were designed to achieve, the preservationist function of originalism requires judicial invalidation of those gerrymanders.

This looks very interesting!
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“An Empirical Examination of Agency Statutory Interpretation”<http://electionlawblog.org/?p=97717>
Posted on February 23, 2018 8:56 am<http://electionlawblog.org/?p=97717> by Rick Hasen<http://electionlawblog.org/?author=3>

Amy Semet has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3120504> on SSRN.  Here is the abstract:

ow do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking.
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

Supreme Court Sets Oral Argument in Texas Redistricting Cases for April 24<http://electionlawblog.org/?p=97715>
Posted on February 23, 2018 8:53 am<http://electionlawblog.org/?p=97715> by Rick Hasen<http://electionlawblog.org/?author=3>

Calendar<https://twitter.com/KimberlyRobinsn/status/967066786716901376> via Kimberly Robinson.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Arizona: “GOP Power Play Would Move This State Backward On Gerrymandering”<http://electionlawblog.org/?p=97713>
Posted on February 23, 2018 8:51 am<http://electionlawblog.org/?p=97713> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM reports.<https://talkingpointsmemo.com/muckraker/republican-redistricting-proposal-threatens-arizona-reputation-gold-standard-fair-maps>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Introducing PlanScore — Historical Data<http://electionlawblog.org/?p=97711>
Posted on February 23, 2018 8:48 am<http://electionlawblog.org/?p=97711> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

Over the past week, I’ve<https://electionlawblog.org/?p=97502> repeatedly<https://electionlawblog.org/?p=97521> blogged<https://electionlawblog.org/?p=97606> about PlanScore’s upload feature, which allows users instantly to receive analyses of the partisan implications of proposed district maps. I also wanted to mention the site’s other half<https://planscore.org/#!2016-ushouse>: comprehensive data about current and former plans’ partisan asymmetries. PlanScore currently covers congressional and state house plans from 1972 to the present (and it will be adding state senate plans soon). For each of these plans, the site reports three different measures of partisan asymmetry: the efficiency gap, partisan bias, and the mean-median difference. The site also indicates, for each metric, how the plan compares to the entire historical distribution.

The current<https://planscore.org/#!2014-ushouse> data<https://planscore.org/#!2014-statehouse> should be of interest to anyone who wants to know which maps around the country are (and aren’t) highly skewed. Litigators may note, for example, that the Ohio<https://planscore.org/ohio/#!2014-plan-ushouse-eg> and South Carolina<https://planscore.org/south_carolina/#!2014-plan-ushouse-eg>congressional plans, and the Florida<https://planscore.org/florida/#!2014-plan-statehouse-eg> and North Carolina<https://planscore.org/north_carolina/#!2014-plan-statehouse-eg> state house plans, are about as asymmetric as the maps that have already been challenged on partisan gerrymandering grounds. It’s also notable that commission-drawn plans, as in California<https://planscore.org/california/#!2014-plan-ushouse-eg>, New Jersey<https://planscore.org/new_jersey/#!2016-plan-ushouse-eg>, and Washington<https://planscore.org/washington/#!2016-plan-ushouse-eg>, are substantially less skewed than maps designed by politicians.

The historical data is more for redistricting nerds than for the general public, but it still sheds light on many important cases and controversies. For instance: Why were Republicans upset enough about California’s 1982 congressional plan that they launched a (successful) statewide referendum to get rid of it? Because the plan<https://planscore.org/california/#!1982-plan-ushouse-eg> was one of the most pro-Democratic on record, with a double-digit pro-Democratic efficiency gap. What happened after a court replaced Georgia’s 2002 state house plan—the subject of two Supreme<https://www.law.cornell.edu/supct/html/03-1413.ZC.html> Court<https://www.law.cornell.edu/supct/html/02-182.ZO.html> cases—with a map of its own creation? The old plan’s<https://planscore.org/georgia/#!2002-plan-statehouse-eg> large Democratic skew gave way to significantly greater partisan balance in the new map<https://planscore.org/georgia/#!2004-plan-statehouse-eg>. And why were Texas Republicans so keen to re-redistrict the state’s congressional plan in 2004? Because the plan<https://planscore.org/texas/#!2002-plan-ushouse-eg>sharply benefited Democrats, and by redrawing<https://planscore.org/texas/#!2004-plan-ushouse-eg> it Republicans were able to shift its efficiency gap more than ten points in their favor.

This only scratches the surface of the data that is now available through PlanScore. To learn more, please poke around the site—and please let us know what additional analyses and capabilities you’d like to see us offer.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Sen. Toomey shouldn’t ape Trump’s contempt for the judiciary”<http://electionlawblog.org/?p=97709>
Posted on February 23, 2018 8:42 am<http://electionlawblog.org/?p=97709> by Rick Hasen<http://electionlawblog.org/?author=3>

Jennifer Rubin WaPo column<https://www.washingtonpost.com/blogs/right-turn/wp/2018/02/22/sen-toomey-shouldnt-ape-trumps-contempt-for-the-judiciary/?utm_term=.609870dd22b5&wpmk=MK0000200>:

In short, once the president sets the pattern, others will follow, whether it is in attacking federal judges (“so-called” judges, as Trump would say) or state judges. Judges must resist the urge to slap back, and thereby reduce themselves to the level of political street-fighter. That then requires other government officials, the organized bar and ordinary citizens to defend the apolitical administration of justice and the independence of the courts. …So far, Trump has not hit a speed bump in his quest to mow down the judiciary, so he and other Republicans will continue to run roughshod over one of the jewels of our constitutional system.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Common Cause Pennsylvania Concludes Analysis of New Congressional Maps – Finds No Violations of Voting Rights Act”<http://electionlawblog.org/?p=97707>
Posted on February 23, 2018 8:36 am<http://electionlawblog.org/?p=97707> by Rick Hasen<http://electionlawblog.org/?author=3>

Statement.<http://www.commoncause.org/press/press-releases/common-cause-pennsylvania-finds-no-violations-of-voting-rights-act-in-new-congressional-maps.html>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>

BPC’s John Fortier Statement on Florida Moving to Join ERIC Voter Registration Sharing System<http://electionlawblog.org/?p=97705>
Posted on February 23, 2018 8:35 am<http://electionlawblog.org/?p=97705> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<https://bipartisanpolicy.org/press-release/fortier-on-florida-senate-passage-of-interstate-voter-data-sharing-legislation/>

And here’s a BPC podcast<https://bipartisanpolicy.org/blog/launching-the-all-things-election-podcast-with-special-guest-missouri-secretary-of-state-jay-ashcroft/> talking to Missouri SOS Jay Ashcroft about voter registration modernization.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“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>

--
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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