[EL] ELB News and Commentary 1/16/18

Mon Jan 15 20:50:08 PST 2018

“Trump Official On Russian Hacking: ‘A National Security Issue'”<http://electionlawblog.org/?p=96927>
Posted on January 15, 2018 8:38 pm<http://electionlawblog.org/?p=96927> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler for NPR:<https://www.npr.org/2018/01/12/577401812/trump-official-on-russian-hacking-a-national-security-issue>
President Trump has shown little interest in fighting the threat of Russians hacking U.S. elections. He’s shown a lot of interest in fighting voter fraud, something he insists — without evidence — is widespread.
Parts of his administration are doing just the opposite.
Bob Kolasky, an acting deputy undersecretary at the Department of Homeland Security (DHS), told a group of election officials gathered in Washington, D.C., this week that the threat of Russian hacking in future elections is “a national security issue.”
“We have seen no evidence that the Russian government has changed its intent or changed its capability to cause duress to our election system. That may not be the only concern we have in the future,” Kolasky said, adding that another nation-state or bad actor could also attempt to interfere in U.S. voting….
Election officials say they’ve been privately assured by DHS that administrators there have no plans to get involved in a search for voter fraud, which could jeopardize the working relationship that’s been built up in recent months to address the threat of cyberattacks.
That threat appears to be foremost in many election officials’ minds, according to those speaking at the Washington meeting, which was organized by the U.S. Election Assistance Commission.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Alabama: “House committee approves bill revising special U.S. Senate election law”<http://electionlawblog.org/?p=96925>
Posted on January 15, 2018 8:32 pm<http://electionlawblog.org/?p=96925> by Rick Hasen<http://electionlawblog.org/?author=3>
Montgomery Advertiser:<http://www.montgomeryadvertiser.com/story/news/politics/southunionstreet/2018/01/10/house-committee-approves-bill-revising-special-u-s-senate-election-law/1020493001/>
A House committee Wednesday morning approved a bill that would require special elections for U.S. Senate to take place at the next statewide general election.
“What this bill simply does is set any U.S. Senate vacancies for regularly scheduled elections every two years,” sponsor Rep. Steve Clouse, R-Ozark, told the House Constitution, Campaigns and Elections Committee before the vote.
 The measure comes after last year’s lengthy and twist-filled campaign for Alabama’s junior U.S. Senate seat, vacated after longtime senator Jeff Sessions became U.S. attorney general. Had the bill’s provisions been in place last year, former U.S. Sen. Luther Strange would likely still be in his seat
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“A Case for Math, Not ‘Gobbledygook,’ in Judging Partisan Voting Maps”<http://electionlawblog.org/?p=96923>
Posted on January 15, 2018 8:22 pm<http://electionlawblog.org/?p=96923> by Rick Hasen<http://electionlawblog.org/?author=3>
Adam Liptak NYT Sidebar column<https://www.nytimes.com/2018/01/15/us/politics/gerrymandering-math.html>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“On Partisan Gerrymandering, What’s Up?”<http://electionlawblog.org/?p=96921>
Posted on January 15, 2018 8:17 pm<http://electionlawblog.org/?p=96921> by Rick Hasen<http://electionlawblog.org/?author=3>
Jost on Justice.<http://www.jostonjustice.com/2018/01/on-partisan-gerrymandering-times-up.html>

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

“Justice Scalia Spoke Favorably of Trump’s Presidential Run, Author Bryan Garner Says”<http://electionlawblog.org/?p=96919>
Posted on January 15, 2018 8:15 pm<http://electionlawblog.org/?p=96919> by Rick Hasen<http://electionlawblog.org/?author=3>
Jess Bravin for the WSJ:<https://www.wsj.com/articles/justice-scalia-spoke-favorably-of-trumps-presidential-run-author-bryan-garner-says-1516031467?shareToken=stfeb66a805ac54a72b46b1f847c1626f4&reflink=article_email_share>
Shortly before his death in February 2016, Supreme Court Justice Antonin Scalia spoke favorably of Donald Trump’s presidential run.
“Justice Scalia thought it was most refreshing to have a candidate who was pretty much unfiltered and utterly frank,” said the late jurist’s literary collaborator, Bryan Garner, a legal dictionary editor who spent two weeks in 2016 traveling with Justice Scalia through several Asian countries.
The justice thought well of Scott Walker, the Wisconsin governor whose campaign for the Republican nomination stalled, said Mr. Garner, whose memoir of a decadelong friendship, “Nino and Me,” comes out Tuesday. “But he was fascinated by the fact that Trump was so outspoken in an unfiltered way, and therefore we were seeing something a little more genuine than a candidate whose every utterance is airbrushed,” Mr. Garner said in an interview.
While Justice Scalia may have approved of many of Mr. Trump’s conservative judicial nominations, Mr. Garner declined to speculate on how he might have viewed other aspects of his presidency. “These [were] early days in the campaign. It shouldn’t be looked at through the lens of everything that’s happened since,” he said.
Given what I know of the Justice’s views, which will appear in my March book, 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_3?ie=UTF8&qid=1514765717&sr=8-3&keywords=richard+l.+hasen>, this revelation does not surprise me at all.
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Posted in Scalia<http://electionlawblog.org/?cat=123>

“White racial resentment has been gaining political power for decades”<http://electionlawblog.org/?p=96917>
Posted on January 15, 2018 6:26 pm<http://electionlawblog.org/?p=96917> by Rick Hasen<http://electionlawblog.org/?author=3>
Adam M. Enders and Jamil S. Scott for the Monkey Cage<https://www.washingtonpost.com/news/monkey-cage/wp/2018/01/15/white-racial-resentment-has-been-gaining-political-power-for-decades/?utm_term=.32acf8d78e0f&wpmk=MK0000200>:
Let’s be more particular. White racial resentment has remained remarkably stable over time. But that racial resentment has become much more highly correlated with particular political attitudes, behaviors and orientations. More and more, white Americans use their racial attitudes to help them decide their positions on political questions such as whom to vote for or what stance to take on important issues including welfare and health care.

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

“Martin Luther King’s Call to ‘Give Us the Ballot’ Is As Relevant Today as It Was in 1957”<http://electionlawblog.org/?p=96915>
Posted on January 15, 2018 6:24 pm<http://electionlawblog.org/?p=96915> by Rick Hasen<http://electionlawblog.org/?author=3>
Barbara Arnwine and John Nichols:<https://www.thenation.com/article/martin-luther-kings-call-to-give-us-the-ballot-is-as-relevant-today-as-it-was-in-1957/>
To bend that arc, a new National Commission for Voter Justice has been constituted at the urging of the Reverend Jesse L. Jackson Sr., leaders of the National Bar Association and scholars and activists from across the country. This nonpartisan commission, which will launch this week in Washington, begins with the premise that Americans need reliable information about threats to voting rights, and that the information can and should be employed not merely to address those threats but to establish a voter-justice ethic that says every community and every state should be striving for the highest level of voter participation in every election. Working with existing organizations, it will build upon the research and insights of the country’s burgeoning coalition of democracy advocates.
The commission will explore a range of responses to voter suppression and to patterns of low voter turnout—including universal early voting, automatic voter registration at 18, restoration of voting rights for citizens who are returning from incarceration, and the provision of funding and structural support for safe and secure elections. It will also explore the democracy deficit that leaves Americans in Washington, DC, as well as Puerto Rico, the Virgin Islands, and other US territories, with inadequate representation or no representation at all. The commission, which expects to conduct its work from January 2018, through December 2019, will hold at least 18 regional and special hearings, sponsor national training events, and publish at least eight briefing papers, advisories, and reports.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“The Supreme Court takes on two redistricting cases from Texas”<http://electionlawblog.org/?p=96913>
Posted on January 15, 2018 6:23 pm<http://electionlawblog.org/?p=96913> by Rick Hasen<http://electionlawblog.org/?author=3>
Error! Hyperlink reference not valid.<http://the%20supreme%20court%20takes%20on%20two%20redistricting%20cases%20from%20texas/> for The Economist.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96913&title=%E2%80%9CThe%20Supreme%20Court%20takes%20on%20two%20redistricting%20cases%20from%20Texas%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Roundup of Stories on SCOTUS Decision to Hear Texas Redistricting Cases<http://electionlawblog.org/?p=96911>
Posted on January 15, 2018 6:22 pm<http://electionlawblog.org/?p=96911> by Rick Hasen<http://electionlawblog.org/?author=3>
Read it here.<http://howappealing.abovethelaw.com/011318.html#074280>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Dark Money” Documentary Selected for Sundance Film Festival<http://electionlawblog.org/?p=96909>
Posted on January 14, 2018 1:45 pm<http://electionlawblog.org/?p=96909> by Rick Hasen<http://electionlawblog.org/?author=3>
Looking forward to seeing this<http://darkmoneyfilm.com/> (alas not at Sundance):
A century ago corrupt money scarred Montana’s democracy and landscape, but Montanans voted to prohibit corporate campaign contributions.
Today, after the Citizens United ruling, dark money floods elections nationwide, but Montanans are standing up to stop history from repeating itself in a struggle that has the potential to change the way elections happen nationwide.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Supreme Court clears way for ranked-choice voting in Santa Fe”<http://electionlawblog.org/?p=96904>
Posted on January 12, 2018 1:40 pm<http://electionlawblog.org/?p=96904> by Rick Hasen<http://electionlawblog.org/?author=3>
Albuquerque Journal reports.<https://www.abqjournal.com/1116919/supreme-court-clears-way-for-ranked-choice-voting-in-santa-fe.html>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“No, Republicans haven’t ‘always’ supported voting rights until now. This is the real story”<http://electionlawblog.org/?p=96902>
Posted on January 12, 2018 1:39 pm<http://electionlawblog.org/?p=96902> by Rick Hasen<http://electionlawblog.org/?author=3>
Jesse Rhodes<https://www.washingtonpost.com/news/monkey-cage/wp/2018/01/11/have-republicans-always-supported-voting-rights-until-now-nope-heres-the-real-story/?utm_term=.aa037e84aa5e&wpmk=MK0000200> for The Monkey Cage
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Will the Court Kill the Gerrymander?”<http://electionlawblog.org/?p=96900>
Posted on January 12, 2018 1:36 pm<http://electionlawblog.org/?p=96900> by Rick Hasen<http://electionlawblog.org/?author=3>
Zachary Roth<http://www.nybooks.com/daily/2018/01/11/will-the-court-kill-the-gerrymander/> for the NYRB.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Arguments in Husted v. A. Philip Randolph Institute – What’s a state to do?”<http://electionlawblog.org/?p=96898>
Posted on January 12, 2018 1:35 pm<http://electionlawblog.org/?p=96898> by Rick Hasen<http://electionlawblog.org/?author=3>
David Becker:<https://electioninnovation.org/2018/01/12/arguments-husted-v-a-philip-randolph-institute-whats-a-state-to-do/>
So again, Justice Breyer’s question reflects what states have been going through with regard to list maintenance. Despite the false choice often presented by partisans, states don’t want a list maintenance procedure that’s overbroad, leading to false positives and disenfranchised voters. But they also cannot simply abdicate their responsibility and do no list maintenance, leaving large numbers of records on the lists even though those voters have moved or died. So, if a state can’t do too much maintenance, or too little, what’s a state to do? How are they supposed to find out who really moved or died, while keeping those who were still eligible on the lists?
Up until recently, that question was nearly unanswerable. Many will say, “just look at the death lists, or postal lists,” as counsel suggested yesterday, but that demonstrates a lack of understanding about how data is used. Matching “John Smith” or “Maria Rodriguez” from a voter list to any other list has been exceedingly difficult to do with any accuracy. Until 2012.
That’s when the Electronic Registration Information Center, or ERIC, was founded. I led the creation of ERIC, in partnership with several states representing both parties, who all wanted to solve this problem outside of the usual partisan wrangling. ERIC is a sophisticated data center that uses state of the art software to compare state data (including voter lists and motor vehicles data) along with information from the postal service and Social Security Administration (SSA). As a result, states learn whether someone has moved in-state (usually as a result of a more recent DMV address), has moved cross-state (either because they registered to vote or applied for a license in another ERIC state), or has died (as indicated in SSA records). Thus, ERIC answers the exact questions the Justices were asking during the debate….
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, Supreme Court<http://electionlawblog.org/?cat=29>

Analysis: Supreme Court Agrees to Hear (Part of) Texas Redistricting Cases, But Not Partisan Gerrymandering; What Does It Mean, and What About North Carolina?<http://electionlawblog.org/?p=96895>
Posted on January 12, 2018 1:13 pm<http://electionlawblog.org/?p=96895> by Rick Hasen<http://electionlawblog.org/?author=3>
As expected<http://electionlawblog.org/?p=96891>, the Supreme Court today agreed to hear<https://www.supremecourt.gov/orders/courtorders/011218zr_3d9g.pdf> both 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, consolidating them, postponing a decision on jurisdiction (more on that below), and likely (but not certainly) setting them up for argument in April and a decision by late June. The Court did not, however, take up the Texas Democratic Party’s petition<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-680.html>, which raised a partisan gerrymandering claim. That claim will almost certainly be held until after the Court decides the Maryland and Wisconsin partisan gerrymandering cases and then likely sent back to the lower court in light of those decisions.
The Texas cases are big, important, and exceedingly complex. The record is crazy with details. Issues include violations of the Voting Rights Act, findings of unconstitutional racial gerrymandering, and a finding that Texas acted with racially discriminatory intent. That finding, if upheld, could provide the basis to put Texas back under federal preclearance (or approval) for changes in its voting rules for up to 10 years.
So I was kind of surprised given the complexity and detailed factual record that the Court thought the cases could be consolidated for briefing and argument in one hour.
As for postponing jurisdiction This is an appeal, and usually the Court notes probable jurisdiction (rather than grants cert) when it decides to hear one of these appeals after full briefing. But in both the Wisconsin and Maryland case the Court did the same thing. There, it might make sense, because one of the questions in those cases is whether partisan gerrymandering claims can be heard by the courts or if they are non-justiciable questions. Maybe it makes less sense here, unless the Court thinks Texas’s claims do not present a substantial federal question (though that’s at odds with the Court granting stays in the cases). So this is a mystery that may or may not be solved later on down the line. (Update on the jurisdictional point: There are so many of these cases, I had forgotten this important detail until reminded by a reader: in the Texas case, Texas moved for a stay before there was any final judgment or remedy imposed. And the plaintiffs have argued that the case is not one that the Court can hear at this stage. I remember thinking the Court would not grant a stay until later on in the case, but it did anyway.  It could be that there are at least some Justices who think this appeal is premature.)
Meanwhile, Paul Clement just filed a stay motion<http://electionlawblog.org/wp-content/uploads/17A745-Rucho-v.-Common-Cause-Stay-App..pdf> in the North Carolina partisan gerrymandering case, where the lower court had just ordered the creation of new, less partisan districts under a very short timetable. I expect that the Court will order a response [UPDATE: The Court has requested a response by Wednesday], and there’s a good chance this stay is granted. But in the ordinary course the Court would not get briefing in time to agree to hear the case this term. Most likely is that it will get a petition before the end of the term, and then remand in light of the Wisconsin and Maryland cases. But the Court could grant the appeal, which was already filed as well on an expedited basis, and set this one too for argument.
The benefit of hearing the North Carolina case separately is that it presents the cleanest case for a finding of partisan gerrymandering, given that the state admitted it.  As I recently explained<http://electionlawblog.org/?p=96824>:
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.
What Justice Kennedy must know is that future gerrymandering will look like NC, if the Court does not act in Wisconsin or Maryland.
I said yesterday this could well be a blockbuster term on redistricting, and the Texas order today just raises the stakes. We might say they are now Texas-sized stakes.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

--
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
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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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