[EL] ELB News and Commentary 1/10/18

[Rick Hasen]

“North Carolina Congressional Map Ruled Unconstitutionally Gerrymandered”<http://electionlawblog.org/?p=96843>
Posted on January 10, 2018 7:36 am<http://electionlawblog.org/?p=96843> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports.<https://www.nytimes.com/2018/01/09/us/north-carolina-gerrymander.html?smid=tw-share&_r=0>
My earlier coverage is here.<http://electionlawblog.org/?p=96824>
Nick offers his thoughts<http://electionlawblog.org/?p=96839>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Supreme Court Hears Challenge To Ohio’s ‘Use-It Or Lose-It’ Voter System”<http://electionlawblog.org/?p=96841>
Posted on January 10, 2018 7:34 am<http://electionlawblog.org/?p=96841> by Rick Hasen<http://electionlawblog.org/?author=3>
Nina Totenberg curtain raiser<https://www.npr.org/2018/01/10/576599104/supreme-court-hears-challenge-to-ohio-s-use-it-or-lose-it-voter-system> on Husted.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>


Observations About North Carolina<http://electionlawblog.org/?p=96839>
Posted on January 10, 2018 12:25 am<http://electionlawblog.org/?p=96839> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
Having had some more time to digest the (205-page!) decision<http://www.campaignlegalcenter.org/document/league-women-voters-north-carolina-v-rucho-opinion> striking down North Carolina’s congressional plan, I thought I’d share a few additional observations.
First, the decision demonstrates the manageability of the partisan gerrymandering test that was proposed in Whitford and applied here too. Under this test, a district map is invalid if (1) it was enacted with the discriminatory intent of benefiting a particular party and handicapping its opponent; (2) it has produced a discriminatory effect in the form of a large and durable partisan asymmetry in favor of the mapmaking party; and (3) no legitimate justification exists for this effect. Two federal courts and five judges have now employed the test without apparent difficulty. Even more encouragingly, the five judges were appointed by Carter, Carter, Reagan, George W. Bush, and Obama. In an area of law where outcomes often seem to follow party, this degree of bipartisan agreement is unusual and impressive.
Second, the court properly distinguished between the legal standard itself (the above three-part test) and quantitative evidence that is used to prove violations of the standard. This distinction eluded the defendants both here and in Whitford, who persistently conflated social science metrics with the underlying constitutional command. The court, though, observed that “plaintiffs do not seek to constitutionalize any of the empirical analyses they have put forward,” adding that “these analyses provide evidence that the 2016 Plan violates a number of well-established constitutional standards.” The court further criticized the defendants for their “cynical” view that analysis should be discarded if it has “its genesis in academic research.” “It makes no practical or legal sense for courts to close their eyes to new scientific or statistical methods.” “The Constitution does not require the federal courts to act like Galileo’s Inquisition and enjoin consideration of new academic theories.”
Third, the court clearly understood the core harm of partisan gerrymandering: that it entrenches the gerrymandering party in office, awarding it more legislative power than it deserves given its actual appeal to the electorate. The court repeatedly defined gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” The court also observed that gerrymandering “constitutes a structural [constitutional] violation because it insulates Representatives from having to respond to the popular will.” And warming the heart of constitutional law professors everywhere, the court twice cited John Hart Ely, the progenitor of the argument that judicial intervention is most necessary (and most appropriate in a democracy) when there has been a malfunction of the political process. Gerrymandering, of course, is the quintessential political malfunction.
Fourth, the court relied heavily on all of the evidence that was more abundant in this case than in Whitford. As I previously noted<https://electionlawblog.org/?p=95579>, this evidence included (1) several smoking-gun declarations of discriminatory intent; (2) data about three separate measures of partisan asymmetry: the efficiency gap, partisan bias, and the mean-median difference; (3) maps showing exactly how clusters of Democratic voters were either cracked or packed; and (4) computer simulations comparing the enacted plan to thousands of hypothetical maps. Thanks to this evidence, this case was far from a Whitford rerun. Also thanks to this evidence, it’s hard to imagine a more egregious gerrymander. The authors of the North Carolina plan gleefully boasted of their partisan motives, achieved some of the worst partisan asymmetries of the last half-century, and ensured that their handiwork would be immune to all but the biggest wave—all in a state whose political geography, according to the computer simulations, mildly favors Democrats.
Lastly, the court adopted the same remedy as the panel that previously struck down two North Carolina districts as racial gerrymanders: namely, giving the General Assembly two weeks to enact a lawful plan, and promising to implement a court-drawn map if the Assembly fails to do so. The court also required the Assembly to turn over the information the court will need to assess the legality of its work product: in particular, transcripts of all proceedings, criteria employed, alternative maps considered, and a “stat pack” showing the plan’s likely electoral performance. If this information reveals that the Assembly’s remedial plan continues to favor Republicans, the plan is unlikely to be upheld, and a special master probably will step in to craft a valid remedy.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“White House Official Says Voter Fraud Panel Found Nothing, Will Delete Voter Data”<http://electionlawblog.org/?p=96837>
Posted on January 9, 2018 10:25 pm<http://electionlawblog.org/?p=96837> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPost:<https://www.huffingtonpost.com/entry/white-house-voter-fraud-data_us_5a559104e4b03417e87337da?section=us_politics>
A White House official told a federal judge Tuesday that President Donald Trump’s<https://www.huffingtonpost.com/topic/donald-trump> now-defunct voter fraud commission plans to delete the voter data it collected from about 20 states and contradicted the administration’s public statements saying the Department of Homeland Security would take up the panel’s work.
Trump suddenly dissolved<https://www.huffingtonpost.com/entry/trump-voter-fraud-panel_us_5a4d6ca1e4b0b0e5a7aad716> the commission Wednesday but said its work would be moved to DHS. White House press secretary Sarah Huckabee Sanders said the agency would take up the panel’s “preliminary findings,” and Kansas Secretary of State Kris Kobach (R), the panel’s vice chair, said DHS<https://www.politico.com/story/2018/01/03/trump-disbands-voter-fraud-commission-322621> would run voter information against databases of immigrants to try to find voters illegally on the rolls.
But Charles Herndon, the director of White House Information Technology, said in a sworn court declaration<https://www.documentcloud.org/documents/4345914-Charles-Herndon-declaration.html> filed Tuesday that that wasn’t the case. Herndon said the panel “did not create any preliminary findings.” He added that “no Commission records or data will be transferred to the DHS or another agency,” except for the National Archives and Records Administration.
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Unanimous North Carolina Decision<http://electionlawblog.org/?p=96828>
Posted on January 9, 2018 2:48 pm<http://electionlawblog.org/?p=96828> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
I’ll have more to say soon about the important district court decision<http://electionlawblog.org/wp-content/uploads/rucho-opinion.pdf> striking down North Carolina’s congressional plan on partisan gerrymandering grounds. (This is a case in which I’ve been involved as a lawyer.) For now, let me just note two things: First, this is the first time a federal court has everinvalidated a congressional (as opposed to a state legislative) map as a partisan gerrymander. And second, the court’s decision was actually unanimous, not split. Judge Osteen disagreed with the majority about some of the other theories asserted, but on the core equal protection claim, he agreed that the plan was unconstitutional.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Breaking: Three-Judge Court Rules North Carolina Congressional Districts an Unconstitutional Partisan Gerrymander<http://electionlawblog.org/?p=96824>
Posted on January 9, 2018 2:32 pm<http://electionlawblog.org/?p=96824> by Rick Hasen<http://electionlawblog.org/?author=3>
In a case sure to be appealed to the United States Supreme Court,  three-judge federal court has has struck North Carolina’s congressional districting as a unconstitutional partisan gerrymander. One judge partially dissented on some grounds, but agreed with the other two judges that the redistricting plan violated the Equal Protection Clause. The Curt also fast tracked a remedy in the case, giving the state a deadline to pass the plan and appointing a special master in case, as expected, the NC General Assembly resists.
The opinion is here.<http://electionlawblog.org/wp-content/uploads/rucho-opinion.pdf>
The majority opinion by Judge Wynn is an unqualified victory for the plaintiffs, finding multiple grounds (including equal protection, the First Amendment, and the Elections Clause) for ruling that North Carolina’s plan is unconstitutional.
The result is not a big surprise given what North Carolina did here. After its earlier redistricting was declared a racial gerrymander, it came up with a new plan using only political data that it described as a partisan gerrymander on its own terms. It did this as a defense against a future racial gerrymandering claim. As the court explained at page 16, NC “Representative Lewis
said that he “propose[d] that [the Committee] draw the maps to give a partisan advantage
to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible
to draw a map with 11 Republicans and 2 Democrats.”  If there’s any case that could be a partisan gerrymander, it’s this one.
The Supreme Court is already considering two partisan gerrymandering cases, one from Wisconsin and one from Maryland. No doubt NC will appeal this case to the Supreme Court, which is likely to hold it in light of the decision in those cases (it would be too late, absent extraordinary briefing, to set the case for argument this term). It likely will be sent back to this court to reconsider in light of what the Court does.
But in the meantime the fight will be over the 2018 elections, and I expect NC may seek to get the Supreme Court to stop the fast tracking of redistricting changes in time for the 2018 elections. The Supreme Court could well agree to stay the district court proceedings, at least based on its recent track record.
This is a huge win for the plaintiffs but with an uncertain future at the Supreme Court.
[This post has been updated.]
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Decades-Old Consent Decree Lifted Against RNC’s ‘Ballot Security’ Measures”<http://electionlawblog.org/?p=96822>
Posted on January 9, 2018 2:15 pm<http://electionlawblog.org/?p=96822> by Rick Hasen<http://electionlawblog.org/?author=3>
I talked<https://www.npr.org/2018/01/09/576858203/decades-old-consent-decree-lifted-against-rncs-ballot-security-measures> to Ari Shapiro on NPR’s “All Things Considered.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


ACLU of Florida Files Emergency Motion Seeking to Stop Defunct Pence-Kobach Commission from Sharing Voter Data<http://electionlawblog.org/?p=96819>
Posted on January 9, 2018 1:18 pm<http://electionlawblog.org/?p=96819> by Rick Hasen<http://electionlawblog.org/?author=3>
Read it here.<https://www.scribd.com/document/368782873/Pacei-Aclu>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“President Trump Endorses Earmarks to Aid Legislative Negotiations”<http://electionlawblog.org/?p=96815>
Posted on January 9, 2018 12:39 pm<http://electionlawblog.org/?p=96815> by Richard Pildes<http://electionlawblog.org/?author=7>
Trump is Right About This<http://www.breitbart.com/big-government/2018/01/09/president-trump-endorses-earmarks-to-aid-legislative-negotiations/>:
President Donald Trump endorsed earmarks at a White House meeting on immigration reform on Tuesday, arguing that it would help build coalitions to pass legislation.
Trump told<https://www.washingtontimes.com/news/2018/jan/9/donald-trump-endorses-return-earmarks/?utm_source=onesignal&utm_campaign=pushnotify&utm_medium=push> congressional lawmakers, “I think we should look at a form of earmarks. One thing it did is it brought everybody together.”
“This system really lends itself to not getting along. It lends itself to hostility and anger. They hate the Republicans and they hate the Democrats,” Trump added.
The 45th president said, “Maybe we should think about it and maybe we should put better controls in because it got out of hand. Maybe that will bring people together.”
The president suggested that reviving earmarks could help restore some level of bipartisanship in Washington, D.C.
President Trump said, “It’s going to bring you together.”

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


“After Trump Commission Setback, Voter Fraud Alarmists May Get Boost From SCOTUS”<http://electionlawblog.org/?p=96813>
Posted on January 9, 2018 8:05 am<http://electionlawblog.org/?p=96813> by Rick Hasen<http://electionlawblog.org/?author=3>
Tierney Sneed<http://talkingpointsmemo.com/muckraker/ohio-nvra-case-voter-commission-supreme-court> for TPM:
Now that President Trump has dissolved<http://talkingpointsmemo.com/muckraker/trump-dissolves-voter-fraud-commission> his shady voter fraud commission, a Supreme Court case being heard Wednesday represents fraud alarmists’ next best chance to boost their voter purge campaigns.
 The case, Husted v. A. Philip Randolph Institute, is a challenge to Ohio’s scheme for purging people who haven’t voted recently from the voter rolls, a scheme the state implemented under pressure from conservative legal activists, including one who later joined the Trump voter fraud commission.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>


Breaking: Court Ends Consent Decree Against RNC “Ballot Security” Activities, Raising New Risks of Voter Suppression<http://electionlawblog.org/?p=96810>
Posted on January 9, 2018 7:56 am<http://electionlawblog.org/?p=96810> by Rick Hasen<http://electionlawblog.org/?author=3>
As I expected,<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/donald_trump_will_supercharge_voter_suppression_if_the_rnc_consent_decree.html> a federal district court has ended a consent decree<http://electionlawblog.org/wp-content/uploads/consent-order.pdf> in place since 1981 against the Republican National Committee against so-called “ballot security” measures which seemed aimed at suppressing minority voter turnout.
I recently explained in Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/donald_trump_will_supercharge_voter_suppression_if_the_rnc_consent_decree.html> why this worries me:
With the consent decree gone, the RNC will for the first time in 35 years be free to begin anew efforts to spur purges of voter rolls and take potentially suppressive ballot security measures in the name of preventing voter fraud. No doubt RNC lawyers would advise against taking these steps, at least for a while, to forestall the DNC from running back to court seeking to have the consent decree reinstated.
But with Trump the real head of the Republican Party these days, it is quite possible he could order a national effort to combat phantom voter fraud, just like he did with his own campaign. Indeed, making false claims about Democratic and minority voter chicanery is a cornerstone of Trump’s divisive agenda. Yelling voter fraud riles up the base, helps with fundraising, and can depress minority voter turnout.
The Trump era has caused voting rights activists to be extra vigilant against efforts to suppress the vote, from Trump’s faux “election integrity” commission<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/donald_trump_s_voter_fraud_commission_is_itself_an_enormous_fraud.html> to the Department of Justice’s reversal of an Obama-era position<https://www.huffingtonpost.com/entry/trump-doj-ohio-voter-purge_us_5989cf05e4b0449ed505917e> against a particular form of voter purging in Ohio. But the removal of the consent decree could supercharge voter suppression efforts, offering Trump the opportunity to hijack the RNC and direct it toward his own efforts to explain away his 3 million voter loss in the American popular vote and rile his base against poor and minority voters.
(h/t Sam Levine<https://twitter.com/srl/status/950749345506263040>)
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


--
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>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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