[EL] ELB News and Commentary 1/12/18

Thu Jan 11 20:43:52 PST 2018

Likely Coming Friday: A Supreme Court Order to Hear the Texas Redistricting Cases<http://electionlawblog.org/?p=96891>
Posted on January 11, 2018 8:35 pm<http://electionlawblog.org/?p=96891> by Rick Hasen<http://electionlawblog.org/?author=3>
Tomorrow is one of the last opportunities for the Supreme Court to set cases to be argued this term, which ends in late June. Last week during its private conference the Court considered whether or not to hear the state<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-626.html> and congressional<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-586.html> Texas redistricting cases. The Court put a decision on what to do with these cases over to this week’s conference. I expect an order tomorrow afternoon setting the cases for full argument.
The cases raise racial gerrymandering, Voting Rights Act, and partisan gerrymandering<http://electionlawblog.org/?p=95844> claims, and they are very complex. The Court already has issued a stay<http://electionlawblog.org/?p=95016> in these cases—the lower court wanted to require drawing new districts to solve the legal problems with the Texas districts, which were drawn by a Republican legislature in a way plaintiffs claim hurt minority voters and Democrats, and take race and partisanship too much into account. The stay is a strong indication<http://electionlawblog.org/?p=94773> the Court is going to get involved here. Further, these cases, like a number of the gerrymandering cases, come up on direct appeal (not a cert petition) from a three judge court, and this mandatory appellate jurisdictionpushes the Court to hear these kinds of cases<https://www.stanfordlawreview.org/print/article/election-laws-path-in-the-roberts-courts-first-decade/>. (A decision to not hear an appeal counts as a decision on the merits.)
The only caveat t<http://electionlawblog.org/?p=96852>o this expectation is that the Court could decide not to hear the cases, and hold them for the partisan gerrymandering cases they are already hearing, from Wisconsin and Maryland. But the Texas cases raise some very different issues as well, which suggests they should get a full hearing.
It is shaping up to be a blockbuster term on gerrymandering at the Supreme Court this term.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96891&title=Likely%20Coming%20Friday%3A%20A%20Supreme%20Court%20Order%20to%20Hear%20the%20Texas%20Redistricting%20Cases>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Court ruling adds even more uncertainty to North Carolina’s 2018 elections”<http://electionlawblog.org/?p=96889>
Posted on January 11, 2018 8:06 pm<http://electionlawblog.org/?p=96889> by Rick Hasen<http://electionlawblog.org/?author=3>
The Charlotte Observer reports.<http://www.charlotteobserver.com/news/politics-government/article194037064.html>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96889&title=%E2%80%9CCourt%20ruling%20adds%20even%20more%20uncertainty%20to%20North%20Carolina%E2%80%99s%202018%20elections%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>

“For Law Profs, Beware the Perils of Twitter”<http://electionlawblog.org/?p=96887>
Posted on January 11, 2018 8:02 pm<http://electionlawblog.org/?p=96887> by Rick Hasen<http://electionlawblog.org/?author=3>
Karen Sloan for Law.com:<https://www.law.com/sites/almstaff/2018/01/11/for-law-profs-beware-the-perils-of-twitter/>
Twitter was awash with law professors proffering legal opinions a year ago when activists sued President Donald Trump for alleged violations of the emoluments clause.
Not all those weighing in were constitutional law experts with a firm grasp on the somewhat obscure statute barring officials in the federal government from receiving gifts from foreign governments, however.
That’s a problem, according to Carissa Byrne Hessick, a professor at the University of North Carolina School of Law and author of a new essay urging her colleagues to exercise caution on Twitter in order to protect their professional reputations and preserve the standing of the legal academy.
With more law professors using Twitter to weigh in on the issues of the day—and sometimes veering into the platform’s culture of snark and incivility—it’s time for law professors to have a conversation about how best to use the medium, Hessick argues in her draft article, “Towards a Series of Academic Norms for #LawProf Twitter,”<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3095014>  which will appear in an upcoming edition of the Marquette Law Review….
The current Twitter debate echoes the discussion law professors had 15 years ago about the value of blogging, said Richard Hasen, a professor at the University of California, Irvine School of Law who has nearly 30,000 followers.
“It seems to me to be a perennial question as to whether law professors, as law professors, should be using new media to communicate to new sets of people,” he said. “It’s not quite a new debate, its just shifted from one platform to another.”
In fact, more than half of the traffic to Hasen’s Election Law Blog comes from Twitter, he said.
According to Hasen, Twitter is an effective tool to reach a broad audience and can lead to unexpected exchanges. Just last month he and talk show host Montel Williams traded tweets regarding Alabama Secretary of State John Merrill’s handling of the state’s recent senate election. Williams qualified a tweet supportive of Merrill based on facts provided by Hasen. “It’s not like I could otherwise get to Montel Williams,” Hasen said of Twitter’s ability bring users together.
In October, U.S. Supreme Court Justice Elena Kagan outed herself as a Twitter user to Hasen after he live-tweeted a talk she gave at Chicago-Kent College of Law. When Hasen introduced himself to the Justice later that day, she asked if he had been the one tweeting her talk.
“It was pretty obvious that not only is Justice Kagan lurking on Twitter, but she was interested enough that she was checking it between the reception and the next event,” Hasen said.
And no, Kagan does not have an account under her real name. Her twitter handle is a source of speculation among the lawyers who call themselves #AppellateTwitter<https://www.law.com/sites/almstaff/2017/02/13/trumps-court-challenges-popularize-appellatetwitter/>.
For all Twitter’s benefits, Hasen said it can be difficult to discern when fellow law professors are giving their political opinions on Twitter and when they are offering up legal ones, particularly during the polarizing Trump presidency. Law professors shouldn’t be precluded from sharing their political views on Twitter, he said, but they should make clear that they aren’t offering a legal opinion when they do.

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

Matt Dunlap Interview Gives Inside Story on His Attempts to Get Info from Pence-Kobach<http://electionlawblog.org/?p=96885>
Posted on January 11, 2018 3:44 pm<http://electionlawblog.org/?p=96885> by Rick Hasen<http://electionlawblog.org/?author=3>
Here at Who.What.Why.<https://whowhatwhy.org/2018/01/11/exclusive-threat-exposure-killed-trumps-voter-fraud-commission/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96885&title=Matt%20Dunlap%20Interview%20Gives%20Inside%20Story%20on%20His%20Attempts%20to%20Get%20Info%20from%20Pence-Kobach>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Speaking February 7 at National Constitution Center About My New Scalia Book, The Justice of Contradictions<http://electionlawblog.org/?p=96882>
Posted on January 11, 2018 1:39 pm<http://electionlawblog.org/?p=96882> by Rick Hasen<http://electionlawblog.org/?author=3>
National Constitution Center:<https://constitutioncenter.org/calendar/justice-antonin-scalia-life-and-legacy>
JUSTICE ANTONIN SCALIA: LIFE AND LEGACY
Wednesday, February 7, 2018 • 6 – 7:45 P.M.
Free for 1787 Society Members
$10 Members, teachers & students
$18 Non-Members
$55 Members w/ 1.5 credit of CLE
$60 Non-Members w/ 1.5 credit of CLE
Pre-order your book bundle of Scalia Speaks and The Justice of Contradictions at check out for just $48.60!
Become a Member today to receive discounted admission for this program, free admission for daytime events, and more! Click here<http://constitutioncenter.org/support-join/membership> to join and learn more or call 215-409-6767.
GET TICKETS<https://14948p.blackbaudhosting.com/14948p/tickets?tab=2&txobjid=334bef2d-1ad1-467d-88b6-f1199e367eef>
The National Constitution Center commemorates the constitutional legacy of the late Justice Antonin Scalia two years after his death. Edward Whelan<https://eppc.org/author/edward_whelan/>, leading Supreme Court commentator and editor of Scalia Speaks: Reflections on Law, Faith, and Life Well Lived<http://www.scaliaspeaks.com/> (featuring a foward by Justice Ruth Bader Ginsburg), will present Justice Scalia’s opinions in his own words. A conversation with Richard Hasen<http://www.law.uci.edu/faculty/full-time/hasen/>, author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=sr_1_1?ie=UTF8&qid=1515706150&sr=8-1&keywords=richard+l.+hasen>, and Kannon Shanmugam<https://www.wc.com/Profiles/Kannon-K-Shanmugam>, leading Supreme Court advocate and former Scalia law clerk, and others follows. A brief ten minute break will take place between panels.
NEW! Program attendees can now pre-order books by featured Town Hall speakers with a 25% discount when registering. Pre-ordered books will be available for pickup at registration upon arrival. Additional copies of Scalia Speaks and The Justice of Contridictions will be available for sale at the museum before and after the program.
Watch this America’s Town Hall program live at constitutioncenter.org/live<https://constitutioncenter.org/experience/programs-initiatives/live/>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96882&title=Speaking%20February%207%20at%20National%20Constitution%20Center%20About%20My%20New%20Scalia%20Book%2C%20The%20Justice%20of%20Contradictions>
Posted in Scalia<http://electionlawblog.org/?cat=123>

“California: Petitioners hand in 95,000 signatures against Santa Clara Judge Aaron Persky; Likely to be first recall of a judge since 1982”<http://electionlawblog.org/?p=96880>
Posted on January 11, 2018 1:08 pm<http://electionlawblog.org/?p=96880> by Rick Hasen<http://electionlawblog.org/?author=3>
The Recall Elections Blog reports<http://recallelections.blogspot.com/2018/01/california-petitioners-hand-in-95000.html>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96880&title=%E2%80%9CCalifornia%3A%20Petitioners%20hand%20in%2095%2C000%20signatures%20against%20Santa%20Clara%20Judge%20Aaron%20Persky%3B%20Likely%20to%20be%20first%20recall%20of%20a%20judge%20since%201982%E2>
Posted in judicial elections<http://electionlawblog.org/?cat=19>, recall elections<http://electionlawblog.org/?cat=11>

10 Things to Watch in Election Administration This Year<http://electionlawblog.org/?p=96878>
Posted on January 11, 2018 11:48 am<http://electionlawblog.org/?p=96878> by Rick Hasen<http://electionlawblog.org/?author=3>
Good list<http://electionline.cmail20.com/t/n/d-l-cbbdabcdf6fe11e786ab2306bb62fc10-l-r-r-l/> from Electionline.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96878&title=10%20Things%20to%20Watch%20in%20Election%20Administration%20This%20Year>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Tweet of the Day, Gerrymandering Edition<http://electionlawblog.org/?p=96876>
Posted on January 11, 2018 7:59 am<http://electionlawblog.org/?p=96876> by Rick Hasen<http://electionlawblog.org/?author=3>
The fact that every report about #gerrymandering<https://twitter.com/hashtag/gerrymandering?src=hash&ref_src=twsrc%5Etfw> has to include a history lesson about how I "invented" drawing unfair maps. Me, and not Ichabod Whats-His-Name or whoever it was that actually drew the maps & convinced me to sign them #AnnoysMeMoreThanAnything<https://twitter.com/hashtag/AnnoysMeMoreThanAnything?src=hash&ref_src=twsrc%5Etfw>
— Elbridge Gerry (@GovGerry) January 11, 2018<https://twitter.com/GovGerry/status/951269483192176641?ref_src=twsrc%5Etfw>

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

Roundup of Stories on Yesterday’s Ohio Voter Purge Oral Argument<http://electionlawblog.org/?p=96874>
Posted on January 11, 2018 7:58 am<http://electionlawblog.org/?p=96874> by Rick Hasen<http://electionlawblog.org/?author=3>
Howard’s got it.<http://howappealing.abovethelaw.com/011118.html#074248>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96874&title=Roundup%20of%20Stories%20on%20Yesterday%E2%80%99s%20Ohio%20Voter%20Purge%20Oral%20Argument>
Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>

Ohio Mayor Confronts SOS Husted on Voter Purge on Steps of Supreme Court<http://electionlawblog.org/?p=96871>
Posted on January 11, 2018 7:54 am<http://electionlawblog.org/?p=96871> by Rick Hasen<http://electionlawblog.org/?author=3>
Nina Totenberg’s report<https://www.npr.org/2018/01/10/577163240/supreme-court-appears-divided-over-ohios-use-it-or-lose-it-voter-registration-ru> on yesterday’s oral argument begins with this:
JON HUSTED: We believe our state is one where we make it easy to vote and hard to cheat. We make every effort possible to try to reach out to voters to get them registered to vote.
TOTENBERG: After Husted left the microphones, he was confronted by Joe Helle, the mayor of Oak Harbor, Ohio, and a former Army sergeant who served in Iraq and Afghanistan.
(SOUNDBITE OF ARCHIVED RECORDING)
JOE HELLE: Because I was an active duty soldier that maintained my home of record…
HUSTED: Absolutely.
HELLE: …In the state Ohio, came back home after defending that right and could not exercise it because of this archaic, terrible policy.
HUSTED: All you have to do is use your right to vote.
HELLE: From a mountainside, sir, while driving…
HUSTED: We email you your ballot.
HELLE: What about our soldiers serving overseas anywhere in the world, riding around in a Humvee, conducting missions 20 hours a day…
HUSTED: We’re for them. We’ll help you…
HELLE: What I know is that I was wrongfully purged along with the plaintiff in this case…
HUSTED: You weren’t wrongfully purged.
HELLE: I was. I was six years serving, came home, couldn’t exercise my right to vote.
UNIDENTIFIED CROWD: (Crowd chanting) Shame, shame, shame.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96871&title=Ohio%20Mayor%20Confronts%20SOS%20Husted%20on%20Voter%20Purge%20on%20Steps%20of%20Supreme%20Court>
Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>

North Carolina Requests Stay in Congressional Districting Case<http://electionlawblog.org/?p=96869>
Posted on January 11, 2018 7:51 am<http://electionlawblog.org/?p=96869> by Rick Hasen<http://electionlawblog.org/?author=3>
This<https://www.brennancenter.org/sites/default/files/legal-work/CC_LWV_v_Rucho_Legislative-Defendants-Emergency-Motion-to-Stay.pdf> is to the district court, a precursor to going to SCOTUS. (h/t Michael Li<https://twitter.com/mcpli/status/951466892459429888>)
I explain why NC’s changes of getting a stay are pretty good in this post<http://electionlawblog.org/?p=96852> on the gerrymandering state of play at SCOTUS.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96869&title=North%20Carolina%20Requests%20Stay%20in%20Congressional%20Districting%20Case>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The Brief Life and Predictable Death of the Kobach Commission”<http://electionlawblog.org/?p=96867>
Posted on January 11, 2018 7:42 am<http://electionlawblog.org/?p=96867> by Rick Hasen<http://electionlawblog.org/?author=3>
Miles Rapoport<http://prospect.org/article/brief-life-and-predictable-death-kobach-commission> for TAP.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96867&title=%E2%80%9CThe%20Brief%20Life%20and%20Predictable%20Death%20of%20the%20Kobach%20Commission%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Legal Quandaries in the Alabama Senate Election of 2017”<http://electionlawblog.org/?p=96865>
Posted on January 11, 2018 7:37 am<http://electionlawblog.org/?p=96865> by Rick Hasen<http://electionlawblog.org/?author=3>
Derek Muller has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3100145> on SSRN (forthcoming, Alabama Law Review). Here is the abstract:
President Donald Trump’s decision to nominate Alabama Senator Jeff Session as his Attorney General resulted in a vacancy in the Senate and triggered a special election. The special election, however, revealed the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically.
This Article traces a series of legal quandaries that arose from the special election, some of which remain open questions for future Alabama elections, and for United States Senate elections more generally. Part I examines the scope of the Alabama Governor’s power to call for a special election under the Seventeenth Amendment and state law. Part II scrutinizes the complications for replacing a late-withdrawing candidate and for counting votes cast for a candidate who resigns. Part III identifies proposed gambits, from postponing the election to write-in campaigns, that never came to fruition. Part IV examines the timing surrounding certification of election results in Alabama. Part V looks at gaps in Alabama’s recount and election contest procedures. Finally, Part VI identifies the most significant opportunities to clarify Alabama law and to properly interpret the Seventeenth Amendment to avoid uncertainty in future elections.
Derek is super smart and I can’t wait to read this!
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Precedent, Three-Judge District Courts, and the Law of Democracy”<http://electionlawblog.org/?p=96862>
Posted on January 10, 2018 8:09 pm<http://electionlawblog.org/?p=96862> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Douglas and Michael Solimine have posted this important draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3099771> on SSRN. Here is the abstract:
As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, must three-judge district courts follow, as mandatory authority, circuit precedent in the circuit in which they sit? This problem arises because appeals of three-judge district courts go directly to the U.S. Supreme Court, skipping the courts of appeals. Can an appellate court that does not review their decisions still bind these courts? Second, when the U.S. Supreme Court summarily affirms the decisions of three-judge district courts, are those summary decisions precedential on all future courts?
This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decision making for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive. On the second question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion.
Hardly any previous scholars have considered these important issues involving precedent and three-judge district courts. Resolving these questions is vital to ensuring that three-judge district courts can properly adjudicate the disputes before them, ultimately helping our electoral system function as fairly as possible.
Highly recommended!
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Posted in theory<http://electionlawblog.org/?cat=41>

Federal District Court Rejects Constitutional and Voting Rights Act Claims Against Alabama Voter ID Law<http://electionlawblog.org/?p=96860>
Posted on January 10, 2018 8:03 pm<http://electionlawblog.org/?p=96860> by Rick Hasen<http://electionlawblog.org/?author=3>
You can find the 69 page opinion here<https://www.documentcloud.org/documents/4346593-AL-Voter-ID-Decision.html> (via Chris Geidner<https://twitter.com/chrisgeidner/status/951269804123607041>).
I’m not surprised by the result in the case, given that Alabama’s voter id law is much less strict than some other recent id laws, and the tendency of most courts to uphold most of these laws.
But there are some odd parts of the decision, most importantly this part on page which seems to do a bait and switch on the necessity of voter id to allow for voter fraud:
Two additional points remain. First, the Court finds that Alabama had “important regulatory interests” in enacting a photo ID requirement, namely, to combat voter fraud, increase confidence in elections, and modernize election procedures. See, e.g., Common Cause/Georgia, 554 F.3d at 1352. The Eleventh Circuit, adhering to Supreme Court precedent, has held that these policies are legitimate. See id. at 1352-53, citing Crawford, 553 U.S. at 192-97. The undisputed facts show that voter fraud, albeit almost entirely in the context of absentee voting, did exist in Alabama prior to the law’s enactment. In any event, the Supreme Court has held that deterring voter fraud is a legitimate policy for a State even in the absence of any record evidence of voter fraud occurring. Crawford, 553 U.S. at 195 (no record evidence of voter fraud in Indiana). Thus, Secretary Merrill is not required to prove that voter fraud exists (although he has done so), that the Photo ID Law helps deter voter fraud, or that the law increases confidence in elections. Supreme Court precedent mandates that Alabama’s justifications for the law are valid.
Following this, the Court tries to distinguish the 4th Circuit’s opinion striking down North Carolina’s strict voting law. In that case, NC NAACP v. McCrory, the 4th Circuit said racially discriminatory intent was enough to doom the law, even absent a racially discriminatory effect. In this case, the trial judge, after mentioning all the things the plaintiffs alleged about racially discriminatory intent (e.g., from page 22 “racist statements (referring to Black voters as ‘illiterates’ and ‘aborigines’) made by several Legislators during recorded conversations contemporaneous to the passage of the Photo ID Law but that did not involve the Photo ID Law”), said the court didn’t need to decide if there was any racially discriminatory intent, because the law had no negative effect on any Alabama voter given that it is “so easy” to get an ID in Alabama (despite the attempted closure of Motor Vehicle offices precisely to make it harder for African American voters to get id—that was the idea of the former governor’s mistress).
My bottom line: this case is not consistent with the 4th Circuit case (which would hold discriminatory intent is enough), and if the 11th Circuit agrees with the 4th this case would have to be remanded for factual findings on racially discriminatory intent. But barring that, the result is likely to stand even though the reasoning in this particular opinion is not very convincing.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96860&title=Federal%20District%20Court%20Rejects%20Constitutional%20and%20Voting%20Rights%20Act%20Claims%20Against%20Alabama%20Voter%20ID%20Law>
Posted in 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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