[EL] ELB News and Commentary 1/11/18

[Rick Hasen]

“White House says it will destroy Trump voter panel data, send no records to DHS”<http://electionlawblog.org/?p=96857>
Posted on January 10, 2018 5:13 pm<http://electionlawblog.org/?p=96857> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/local/public-safety/white-house-says-it-will-destroy-trump-voter-panel-data-send-no-records-to-dhs/2018/01/10/e70704a8-f616-11e7-b34a-b85626af34ef_story.html?utm_term=.032d5b89fe81>
The White House’s new filing came as Dunlap urged the court to order the commission to preserve all records pending compliance with the judge’s order. Government attorneys asked the judge to toss out her order, saying it was moot now that the panel is no more.
In Wednesday’s conference call, Justice Department lawyers reiterated that the commission produced no findings and that the White House Counsel’s Office and the office of records management would decide what records to archive, according to Dunlap’s lawyers.
The call did not clear up what former commissioners or staff could do with other data or materials gathered or produced for the panel, said Melanie Sloan, senior adviser to American Oversight, a watchdog group representing Dunlap. The judge ordered more briefings.
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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>


The State of Play on Partisan Gerrymandering Cases at the Supreme Court<http://electionlawblog.org/?p=96852>
Posted on January 10, 2018 4:22 pm<http://electionlawblog.org/?p=96852> by Rick Hasen<http://electionlawblog.org/?author=3>
There has been so much action on partisan gerrymandering recently, I thought it is worth gaming out what is likely to happen over the next few months in relation to a number of cases at, or heading, to SCOTUS.
Back in 2004 the Supreme Court in Vieth v. Jublelirer split 4-1-4 over what to do about claims that partisan gerrymandering violates the U.S. Constitution. Four Justices said it was non-justiciable, four Justices said it was justiciable and raised a variety of challenges, and Justice Kennedy, in the middle, agreed with the Court’s liberals that the cases were justiciable, but agreed with the Court’s conservatives that the proposed standards didn’t work.  He essentially told everyone to keep working on the issue and come back, maybe looking at the First Amendment, maybe history, and maybe computers.  The cases at or coming to the Court seek to satisfy Justice Kennedy in various ways.
Here’s the state of play; the Supreme Court heard argument in October in Gil v. Whitford<http://www.scotusblog.com/case-files/cases/gill-v-whitford/?wpmp_switcher=desktop> involving a challenge to state legislative districts in Wisconsin. Gil raises a partisan gerrymandering challenge under the Equal Protection Clause, and the McGhee/Stephanopoulos “efficiency gap<https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=http://scholar.google.com/&httpsredir=1&article=12542&context=journal_articles>” figured in (but was not the entire basis) for the analysis. Last month, the Court somewhat surprisingly also agreed to hear full argument in a case challenging a Maryland congressional district as a partisan gerrymander under the First Amendment. I explained in this LA Times piece<https://www.ohio.com/akron/editorial/commentary/richard-l-hasen-is-the-supreme-court-preparing-to-police-partisan-gerrymandering> why the Court might have agreed to full argument in Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/?wpmp_switcher=desktop>. Argument in the Maryland case will be later in the Spring.
The Court as soon as this week could agree to hear a few challenges to Texas redistricting, including to state House districts and to congressional districts. Although most of the issues in this case involve claims of Voting Rights Act violations and racial gerrymandering, one of the petitions <http://electionlawblog.org/wp-content/uploads/TDP-Quesada-Jurisdictional-Statement-3.pdf> raises a partisan gerrymandering claim from Texas. That part of the case could be held for Gil and Benisek, or set for argument. Indeed, it is possible this delays all of the claims.
In North Carolina, meanwhile, a three-judge court yesterday held<http://electionlawblog.org/?p=96824> North Carolina’s congressional redistricting plan, enacted after its earlier plan was found to be a racial gerrymander, was an unconstitutional partisan gerrrymander.  The Court accepted claims under the Equal Protection Clause, the First Amendment, and the Elections Clause. And today, a three judge court rejected<http://electionlawblog.org/?p=96847> the Elections Clause claim to a Pennsylvania congressional redistricting plan. (It had earlier rejected the other theories too).
The three judge court in North Carolina put the drawing of new districts on the fast track. I expect the state legislature will seek a Supreme Court stay pending final resolution, and given the Court’s track record (as I explained in this Washington Post piece<https://www.washingtonpost.com/news/posteverything/wp/2017/06/28/the-supreme-court-is-in-no-hurry-to-protect-voters-from-gerrymandering/?utm_term=.1c6b6216e091>) the Court is likely to get it.
Given the timing of briefing at the Supreme Court, petitions on the merits in North Carolina and Pennsylvania would reach the Court too late for it to order briefing (at least under the normal procedures) this term. The most likely scenario is that such petitions will be held for the other partisan gerrymandering cases decided this term, and then remanded for reconsideration to the lower courts in late June.
One further wrinkle in Pennsylvania: there’s a state Supreme Court case pending over whether Pennsylvania’s redistricting violates the state constitution. That would not end up at the Supreme Court and could moot the federal case.
And in North Carolina: we are expecting an order as to state legislative districts found to be racial gerrymanders in the next few weeks. Expect that too, to end up on a quick trip to SCOTUS, where the state will ask anything that happens not to affect 2018.
What have I missed?


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


Are Justice Breyer or Justice Gorsuch in Play in the Ohio Voter Purge Case, Will the Justices Divide Along Familiar Party Lines, or Is It All Kennedy Again?<http://electionlawblog.org/?p=96850>
Posted on January 10, 2018 3:54 pm<http://electionlawblog.org/?p=96850> by Rick Hasen<http://electionlawblog.org/?author=3>
Today the voting wars reached the Supreme Court, which heard oral argument in Husted v. A Philip Randolph Institute<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-980_5426.pdf>, a case which concerns an Ohio law which makes it relatively easy to remove voters from the rolls. While there might be some reason to believe that Justices Breyer or Gorsuch could be in play, or that Kennedy could side with the liberals, I ultimately expect this case to come down to our now familiar 5-4 split between the 5 conservative Republican-appointed Justices and the 4 liberal Democratic-appointed Justices.
First a quick word of background: if they fail to vote in one election fail to respond to a post card asking if they want to remain registered, and then don’t vote in two more consecutive federal elections. The post card is forwardable, so this is not based on mail reported as return to sender because someone moved. At issue are provisions in two laws (the National Voter Registration Act of 1993 and the Help America Vote Act of 2002). Slate’s Dahlia Lithwick had a great interview<http://www.slate.com/articles/podcasts/amicus/2018/01/ohio_s_voter_purge_comes_before_the_supreme_court.html> with an Ohio voter who was in the army and came back to discover he’d been removed from the voting rolls. (There’s also a very helpful interview with the ACLU’s Dale Ho.)
The laws limit the circumstances under which voters may be removed from the rolls. One circumstance is that they can be removed from the rolls if they’ve moved out of the jurisdiction; but they cannot be removed for non-voting. At issue (what I consider to be) a tough and close question of statutory interpretation.
Some the early reporting on today’s oral argument, including Adam Liptak’s NYT report<https://www.nytimes.com/2018/01/10/us/politics/supreme-court-ohio-voting-rolls-purge.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0> suggests Justice Breyer could side with conservatives in the case because of his concern about the need to keep voting rolls clean:
But Justices Anthony M. Kennedy and Stephen G. Breyer expressed concern about maintaining the integrity of the state’s list of eligible voters.
“The reason they’re purging them,” Justice Kennedy said, “is they want to protect the voter rolls from people that have moved.”
Justice Breyer fleshed out the point. “Every year a certain number of people die, and every year a certain number move to California,” he said. “We don’t want them on the voter roll. That used to be a big problem, voting dead people.”
Far be it for me to second guess Adam, who was in the courtroom, when all I’ve got is the cold transcript, but my read of Breyer was different. It seemed to me that he was not really up to speed on the case, and was struggling with how the regular polling project works.  At one point Breyer said “I am very ignorant in this field.”  My sense is that when Breyer gets up to speed on how states are able to maintain clean voter rolls without resorting to this method that seems to run a serious risk of disenfranchising people for simple non-voting, and when he sees that this has a disparate impact on poor and minority voters, he will side with Justices Sotomayor (who hammered the disenfranchisement point and the government’s change of longstanding position in the case), and Justices Kagan and Ginsburg, who focused more on parsing the statutory language of HAVA and the NVRA.
On the other side, Chief Justice Roberts and Alito pushed their own textualist version of the statute, the one that supported Ohio’s position. Justice Alito also called it a “very important” and “sensitive” subject where Congress struck a compromise.
I had indicated before oral argumen<http://electionlawblog.org/?p=95103>t that I saw a strong textualist argument in the Bagenstos (former DOJ) brief<https://www.dropbox.com/s/m5nstp4r600kwnm/16-980%20bsac%20Eric%20Holder%2C%20Jr.pdf?dl=0> that could convince Gorsuch. Justice Gorsuch said nothing at oral argument, but it would not be surprising to see him and Justice Thomas agree with the textualist arguments set out especially by the Chief.
So does this really (again!) come down to Justice Kennedy? It is possible to see Justice Kennedy side with the liberals, but he did not seem to express much problem with Ohio’s interpretation of the relevant statutory language, making it more likely he sides with the conservatives leading us to a 5-4 vote.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>


Three-Judge Federal Court, on 2-1 Vote, Rejects Partisan Gerrymandering Challenge to Pa. Congressional Districts Under the Elections Clause<http://electionlawblog.org/?p=96847>
Posted on January 10, 2018 3:24 pm<http://electionlawblog.org/?p=96847> by Rick Hasen<http://electionlawblog.org/?author=3>
Via the Brennan Center’s Agre v. Wolf page<https://www.brennancenter.org/legal-work/agre-v-wolf>, there are the three opinions (the final one is the dissent):

  *   Final Judgment<https://www.brennancenter.org/sites/default/files/legal-work/images/Agre_v_Wolf_Judgment_1.10.18.pdf> (January 10, 2018)
  *   Memorandum by Honorable Judge Smith<https://www.brennancenter.org/sites/default/files/legal-work/images/Agre_v_Wolf_Memorandum-Judge-Smith.1.10.18.pdf> (January 10, 2018)
  *   Memorandum by Honorable Judge Shwartz<https://www.brennancenter.org/sites/default/files/legal-work/images/Agre_v_Wolf_Memorandum-Judge-Shwartz.1.10.18.pdf> (January 10, 2018)
  *   Memorandum by Honorable Judge Baylson <https://www.brennancenter.org/sites/default/files/legal-work/images/Agre_v_Wolf_Memorandum-Judge-Baylson.1.10.18.pdf> (January 10, 2018)
No doubt the plaintiffs will appeal to the Supreme Court, which could well hold the case pending the outcome of the pending partisan gerrymandering claims.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Read the Transcript in Today’s Ohio Voter Purge Case (Husted)<http://electionlawblog.org/?p=96845>
Posted on January 10, 2018 11:19 am<http://electionlawblog.org/?p=96845> by Rick Hasen<http://electionlawblog.org/?author=3>
It is posted here.<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-980_5426.pdf>
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, 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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