[EL] ELB News and Commentary 2/26/18

Mon Feb 26 07:42:34 PST 2018

"Democrats Did Better Than on Hundreds of Simulated Pennsylvania Maps"<http://electionlawblog.org/?p=97757>
Posted on February 26, 2018 7:37 am<http://electionlawblog.org/?p=97757> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT's The UpShot:<https://www.nytimes.com/2018/02/26/upshot/democrats-did-better-than-on-hundreds-of-simulated-pennsylvania-maps.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=5&pgtype=sectionfront>

The strong Democratic showing compared with Mr. Chen's simulations doesn't necessarily indicate that the map is a Democratic gerrymander. For one, the simulations aren't perfect. And they aren't necessarily representative of realistic partisan-blind maps. To take a concrete example: The simulations often split the city of Pittsburgh, something few human map-drawers would choose to do given the requirement to avoid unnecessarily splitting municipalities.

Perhaps more important, the remedial map still slightly favors the Republicans with respect to the statewide popular vote.

In the average 2016 contest on the new map, Democrats would have carried an average of 8.4 districts (out of 18), even though Democrats won the statewide popular vote in the average contest. The median congressional district favored the Republicans by a point in the average 2016 contest.

Over all, the new court-ordered map comes very close to achieving partisan symmetry in an evenly divided state.

The seeming contradiction between the analysis based on partisan symmetry and one based on simulated nonpartisan congressional districts gets at the heart of what may be the next big debate in gerrymandering: whether nonpartisan maps should strive for partisan symmetry, or whether they should try to avoid political considerations altogether.

The question is important because both methods of analysis are routinely employed to identify Republican gerrymanders.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

"10 super-rich people dominate giving to super PACs active in midterm elections for Congress"<http://electionlawblog.org/?p=97755>
Posted on February 26, 2018 7:27 am<http://electionlawblog.org/?p=97755> by Rick Hasen<http://electionlawblog.org/?author=3>

USA Today:<https://www.usatoday.com/story/news/politics/2018/02/23/10-super-rich-people-dominate-giving-super-pacs-active-midterm-elections-congress/366887002/>

 Donations from 10 super-rich individuals account for more than 20% of the money filling the bank accounts of federal super PACs, a USA TODAY analysis shows, highlighting how a small group of wealthy patrons is racing to influence which party will control Congress for the remainder of President Trump's first term.

Leading the pack: Illinois-based packaging and shipping magnate Richard "Dick" Uihlein, who has donated nearly $19.5 million so far to groups working to elect conservative Republicans to Congress from Mississippi to Montana. Uihlein-funded groups have trained much of their millions on advertising in Wisconsin to attack first-term Democratic Sen. Tammy Baldwin and to boost a political newcomer, Republican Kevin Nicholson.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

"The True Source of the N.R.A.'s Clout: Mobilization, Not Donations"<http://electionlawblog.org/?p=97753>
Posted on February 25, 2018 9:47 pm<http://electionlawblog.org/?p=97753> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/02/24/us/politics/nra-gun-control-florida.html?rref=collection%2Fbyline%2Feric-lipton&action=click&contentCollection=undefined&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=collection>

To many of its opponents, that decades-long string of victories is proof that the N.R.A. has bought its political support. But the numbers tell a more complicated story: The organization's political action committee over the last decade has not made a single direct contribution<https://www.followthemoney.org/show-me?y=2018,2017,2016,2015,2014,2013,2012,2011,2010,2009,2008,2007&f-fc=2&c-exi=1&d-eid=1854#%5B%7B1%7Cgro=c-t-eid%7B1%7Cgro=c-t-sts%7B1%7Cgro=c-t-ico%7B1%7Cgro=c-t-p%7B1%7Cgro=s> to any current member of the Florida House or Senate, according to campaign finance records.

In Florida and other states across the country, as well as on Capitol Hill, the N.R.A. derives its political influence instead from a muscular electioneering machine, fueled by tens of millions of dollars' worth of campaign ads and voter-guide mailings, that scrutinizes candidates for their views on guns and propels members to the polls.

"It's really not the contributions," said Cleta Mitchell, a former N.R.A. board member. "It's the ability of the N.R.A. to tell its members: Here's who's good on the Second Amendment."

Far more than any check the N.R.A. could write, it is this mobilization operation that has made the organization such a challenging adversary for Democrats and gun control advocates - one that, after the massacre at a school in Parkland, Fla., is struggling to confront an emotional student-led push for new restrictions<https://www.nytimes.com/2018/02/20/us/parkland-students-shooting-florida.html>.

The N.R.A.'s impact comes, in large part, from the simplicity of the incentives it presents to political candidates: letter grades, based on their record on the Second Amendment, that guide the N.R.A.'s involvement in elections. Lawmakers who earn an "A" rating can count on the group not to oppose them when they run for re-election or higher office.

For candidates who earn lower grades, the group deploys a range of blunt-force methods against them. The N.R.A. mails the voter guides to its five million members, displaying images of favored candidates on the front, and some state chapters bombard supporters with emails about coming elections.

The organization's calculation is that its money is better spent on maintaining a motivated base of gun rights supporters than on bankrolling candidates directly.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

"Trump Endorses G.O.P. Fight to Keep Gerrymandered Congressional Map"<http://electionlawblog.org/?p=97751>
Posted on February 25, 2018 9:40 pm<http://electionlawblog.org/?p=97751> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/02/24/us/politics/trump-pennsylvania-gerrymandering.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=10&pgtype=sectionfront>

President Trump added his voice on Saturday to the continued conservative outcry over the court-ordered redistricting of the Pennsylvania congressional map, calling the decision "very unfair to Republicans and to our country."

"Democrat judges have totally redrawn election lines in the great State of Pennsylvania," Mr. Trump wrote on Twitter<https://twitter.com/realDonaldTrump/status/967493467046899712>. "This is very unfair to Republicans and to our country as a whole. Must be appealed to the United States Supreme Court ASAP!"
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

"Redistricting battles heighten the stakes for 2018 gubernatorial races"<http://electionlawblog.org/?p=97749>
Posted on February 25, 2018 9:33 pm<http://electionlawblog.org/?p=97749> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Balz:<https://www.washingtonpost.com/politics/redistricting-battles-heighten-the-stakes-for-2018-gubernatorial-races/2018/02/24/8c581846-19aa-11e8-92c9-376b4fe57ff7_story.html?utm_term=.954ffc9003f5>

Democrats talk about the years since 2010 as the Lost Decade, a time when a generation of future leaders was wiped out by a pair of devastating midterm elections and the absence of a strategic plan to recoup from those losses. That's one reason this year's gubernatorial elections are the most important in years.

Most of the current political focus, understandably, is on the upcoming congressional elections, when Democrats could retake control of the House and possibly even the Senate. Democratic control of the House would put a roadblock in the path of President Trump and dramatically alter the terms of debate heading toward the 2020 election.

But the Democrats need significant gains in the gubernatorial elections this November if they want to begin a broader rebuilding effort to restore the party to the kind of strength it once enjoyed. Without vitality in the states, the Democrats will remain what they became in recent years: a hollowed-out political institution.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

CA: "Redondo sues state over election law"<http://electionlawblog.org/?p=97746>
Posted on February 25, 2018 9:27 pm<http://electionlawblog.org/?p=97746> by Rick Hasen<http://electionlawblog.org/?author=3>

Easy Reader News:<https://www.easyreadernews.com/redondo-sues-state-election-law/>

The City of Redondo Beach has filed a lawsuit against the State of California, challenging a law that requires cities to change their election dates to match statewide, even-year elections.

According to the complaint, filed in state court on Feb. 13, the City is petitioning for a writ of mandate prohibiting the State from enforcing Senate Bill 415 against Redondo Beach, arguing that the law either doesn't apply to charter cities or that the law violates the California State Constitution's Home Rule provisions.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

NC: "New progressive groups target legislative races, test state campaign finance laws"<http://electionlawblog.org/?p=97744>
Posted on February 25, 2018 9:16 pm<http://electionlawblog.org/?p=97744> by Rick Hasen<http://electionlawblog.org/?author=3>

WRAL:<http://www.wral.com/new-progressive-groups-target-legislative-races-test-state-campaign-finance-laws/17357344/>
FLIP NC looks like a professional political operation.

It's got slick graphics, a website and deep analysis of state legislative districts, which organizers are using to target areas where Republicans may be vulnerable and Democrats can chip away this year at the GOP super-majority.

It sells T-shirts and buttons. A 2018 launch party apparently drew 300 people, including Democratic state legislators and the chairman of the state Democratic Party, to an event last month with food donated by as many as six sponsors.

It's got a 28-page toolkit that, among other things, offers a template for publishing voting summaries on Republican candidates with a tagline that says their voting records are "creating a state of chaos."

And, as of this month, it has an attorney: Raleigh's Michael Weisel, a go-to election law attorney for the left.

Weisel said he took on the group, pro bono, to respond to a complaint filed with the State Board of Elections and Ethics Enforcement by the executive director of the state Republican Party. That complaint boils down to this: The group is operating as a political committee without filing any of the paperwork required by state law, amounting to multiple violations of North Carolina campaign finance law.

"There is no way to know who is paying for the events, collaterals or software," Dallas Woodhouse wrote in his 14-page complaint, which is backed by images of gatherings, canvassing materials and official FLIP NC follow-up postcards to voters, all taken from the group's website or Facebook page.

"Who paid for the printing of the postcard?" Woodhouse asked in his complaint. "Who paid for the stamps?"
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

"Ryan move to replace election agency leader stirs outcry"<http://electionlawblog.org/?p=97740>
Posted on February 25, 2018 9:12 pm<http://electionlawblog.org/?p=97740> by Rick Hasen<http://electionlawblog.org/?author=3>

Very bad news from Politico:<https://www.politico.com/story/2018/02/22/paul-ryan-election-agency-replacement-matthew-masterson-422725>

House Speaker Paul Ryan faced Democratic criticism Thursday after choosing not to renew the term of a federal agency head who has helped lead the charge on securing elections from hackers.

Matthew Masterson, chairman of the Election Assistance Commission, will depart once the Senate confirms a successor, three people familiar with the situation told POLITICO. His four-year term as a commissioner expired in December, but he has stayed while Ryan contemplated whom to recommend to President Donald Trump as a nominee for the seat.

Ryan has decided that Masterson won't be on the list. Another commissioner was already scheduled to take the chairman's slot on Saturday, but Masterson could have remained as a commissioner if he were renominated.

The move comes as the government scrambles to ensure that Russian hackers don't repeat the cyberattacks that roiled the 2016 election. The four-member commission, originally founded to help states apply the lessons of the bungled 2000 presidential election, has taken on an increasingly prominent role in promoting security - to the consternation of some Republicans who say it has outlived its purpose.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>

"Russia fears have election vendors feeling the heat"<http://electionlawblog.org/?p=97738>
Posted on February 25, 2018 9:09 pm<http://electionlawblog.org/?p=97738> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric Geller<https://www.politico.com/story/2018/02/24/elections-vendors-russia-423435> for Politico:

At the heart of this election security standoff is an acrimonious relationship between the researchers who analyze voting systems for digital flaws and the vendors trying to preserve their profits and reputations in a small, difficult market. It's a battle that goes back at least to the early 2000s, when counties and states were replacing their antiquated punch-card voting machines after Florida's Bush v. Gore debacle.

Many states ended up adopting paperless, touchscreen machines, which are still used in some states such as Pennsylvania.

In 2006, a team of security researchers published a report<http://go.politicoemail.com/?qs=df23c1b49ef89dfd474a4917d74998c1a62d134f92ed206b5b6d62eadbddd58e47c4e64d351b5346e5f005a16d95af48> saying that touchscreen voting machines made by the notably litigious vendor Diebold were vulnerable to "extremely serious attacks." The researchers were so afraid of being sued by Diebold - now a subsidiary of the voting technology behemoth Dominion - that they broke with longstanding practice and didn't tell the company about their findings before publishing.

The team was "afraid that [Diebold] would try to stop us from speaking publicly about the problems," said J. Alex Halderman, a University of Michigan computer science professor who was one of the report's authors.

When California and Ohio ordered voting technology vendors to comply with independent reviews in 2007, getting access to important data was "like pulling teeth," said Matthew Blaze, a computer science professor at the University of Pennsylvania who worked on both reports and has since analyzed many voting systems.

In the end, researchers found "laughable" flaws in the machines, said Joe Hall, the chief technologist with the digital privacy advocate Center for Democracy & Technology, who participated in the Ohio review. "They made us jump through all these hoops for stuff that was just fundamentally insecure and fundamentally low-quality design."
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Federal Court Dismisses Complaint Challenging Constitutionality of California Voting Rights Act on Standing Grounds<http://electionlawblog.org/?p=97736>
Posted on February 25, 2018 9:06 pm<http://electionlawblog.org/?p=97736> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the court's opinion at this link.<https://www.maldef.org/assets/pdf/mot_dismiss_granted_022318.pdf>

The court has given the plaintiff 30 days to try to amend the complaint. Plaintiff may try to do that, appeal the decision denying a preliminary injunction, or give up the litigation.

This is a big win for supporters of the CVRA, but I expect the litigation is not over.
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Posted in voting<http://electionlawblog.org/?cat=31>

"Behind a Key Anti-Labor Case, a Web of Conservative Donors"<http://electionlawblog.org/?p=97734>
Posted on February 25, 2018 8:54 pm<http://electionlawblog.org/?p=97734> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://mobile.nytimes.com/2018/02/25/business/economy/labor-court-conservatives.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region%C2%AEion=top-news&WT.nav=top-news&referer=https://www.nytimes.com/>
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Posted in campaigns<http://electionlawblog.org/?cat=59>

Federal Court Holds Kern County, California Violated Voting Rights Act by Not Creating a Second Latino Opportunity District for Supervisorial Elections<http://electionlawblog.org/?p=97731>
Posted on February 23, 2018 5:09 pm<http://electionlawblog.org/?p=97731> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the district court's opinion here<http://electionlawblog.org/wp-content/uploads/latino-kern-decision.pdf>.

There will be further proceedings to address the remedy.

For the quantitative folks, there's an interesting Morgan Kousser-Jonathan Katz methodological dispute over how to measure racially polarized voting.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Three-Judge Federal District Court in Pa Congressional Redistricting Case Sets Expedited Schedule for Briefing on Preliminary Injunction Request<http://electionlawblog.org/?p=97729>
Posted on February 23, 2018 2:46 pm<http://electionlawblog.org/?p=97729> by Rick Hasen<http://electionlawblog.org/?author=3>

The court denied a temporary restraining orde<https://twitter.com/adambonin/status/967165781124550657>r to prevent the use of the new district lines, holding that the matter "is not so exigent as to justify the issuance of temporary injunctive relief in light of the court's willingness to expedite resolution of plaintiffs' motion for preliminary injunction and the court favoring an opportunity for all parties to be heard."

And it set a very expedited schedule for considering the motion for a preliminary injunction as well as motions to dismiss.

The preliminary relief (the whole ball game for 2018) should all be resolved in a few weeks before this three-judge district court, teeing up yet another chance to petition the Supreme Court of the U.S. for extraordinary relief.

Earlier: Three Judge Court (All Republican Appointees) Chosen to Hear Pennsylvania Partisan Redistricting Case: Will Party of the Judges Matter?<http://electionlawblog.org/?p=97726>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Three Judge Court (All Republican Appointees) Chosen to Hear Pennsylvania Partisan Redistricting Case: Will Party of the Judges Matter?<http://electionlawblog.org/?p=97726>
Posted on February 23, 2018 9:50 am<http://electionlawblog.org/?p=97726> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday I wrot<http://electionlawblog.org/?p=97701>e about the new federal lawsuit being brought against the Pennsylvania Supreme Court's partisan gerrymandering remedy for state congressional redistricts. I explained why this is such a long shot.<http://electionlawblog.org/?p=97664>

I noted then that the challengers sought a three-judge court, with direct appeal to the Supreme Court (bypassing the Third Circuit).

That three judge court has now been chosen<https://twitter.com/mcpli/status/967085245899165698>, and it includes three judges nominated by Republican presidents.

This is unusual. The chief judge who has to appoint these panels usually, but not always, does so with some partisan balance, per research of Michael Solimine.<https://electionlawblog.org/?p=83380>

There is no question that Republican and Democratic judges decide some cases differently, and the research suggests this is especially true in election cases (I have a review essay posting soon touching on this).

But this case seems so weak that I don't expect that the partisan affiliation of the judges will matter here (as I think it did matter in the Pennsylvania Supreme Court's decision).
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

"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>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>

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