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

Wed Jan 17 20:49:45 PST 2018

Pennsylvania Republicans Hint at U.S. Supreme Court Appeal in State Gerrymandering Case<http://electionlawblog.org/?p=96968>
Posted on January 17, 2018 8:46 pm<http://electionlawblog.org/?p=96968> by Rick Hasen<http://electionlawblog.org/?author=3>
Today the Pennsylvania Supreme Court heard<http://howappealing.abovethelaw.com/011718.html#074320> oral argument in the case arguing that Pennsylvania’s congressional districts violate the state Constitution.
Ordinarily a ruling on state constitutional grounds cannot be appealed to the U.S. Supreme Court, because there are no federal issues involved, but state Republicans are hinting<https://www.huffingtonpost.com/entry/pennsylvania-gerrymandering_us_5a5f8856e4b046f0811c5bbe> at a SCOTUS appeal if they lose:
Drew Crompton, a lawyer for Senate President Pro Tempore Joseph Scarnati (R), hinted that Republicans were considering how to appeal to the U.S. Supreme Court should the Pennsylvania high court rule against them. He added that the League of Women Voters was using the lawsuit as a means to get more Democrats in Congress.
“If they create new law and new policy, then we’re just going to see what they do and what the remedy is and then decide whether or not we go to the U.S. Supreme Court,” Crompton told reporters. “Regardless of the plaintiffs trying to say that this is all state Supreme Court law and state constitutional, in the world that we live in, the federal law and the state law are intertwined. There’s no getting around that. And we should highlight the fact that these are congressional issues, so federal issues. I think we have a right to an appeal to the U.S. Supreme Court, I hope it doesn’t come to that.”
R. Stanton Jones, a lawyer for the plaintiffs, said such an appeal to the U.S. Supreme Court was “absolutely not available,” because the congressional map was only being challenged under the state constitution.
I’m trying to think of what the federal argument could be, and the only thing I can see at this point is an argument that Article I vests in the state legislature, and not the state courts, the power to set the rules for congressional elections (subject to congressional override). These kinds of arguments have done done well in recent years (think of the Arizona redistricting case<http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/>), but perhaps that’s what the Republicans have in mind. Shades of Bush v. Gore….
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Don’t ‘reward gamesmanship and obstinacy,’ NC gerrymander challengers say”<http://electionlawblog.org/?p=96966>
Posted on January 17, 2018 8:38 pm<http://electionlawblog.org/?p=96966> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article195113674.html>
Attorneys representing voters who successfully challenged North Carolina’s congressional districts as unconstitutional partisan gerrymanders are protesting lawmakers’ attempt to use the election maps again this year.
U.S. Supreme Court Justice John Roberts had given attorneys until noon Wednesday to offer response to a request last week from Republican legislative leaders<http://www.newsobserver.com/news/politics-government/state-politics/article194451309.html> for the country’s high court to get involved in another gerrymandering case in North Carolina.
See also this video of the reaction of NC legislative leader Phil Berger.<http://www.newsobserver.com/news/politics-government/state-politics/article195118784.html>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96966&title=%E2%80%9CDon%E2%80%99t%20%E2%80%98reward%20gamesmanship%20and%20obstinacy%2C%E2%80%99%20NC%20gerrymander%20challengers%20say%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Highly Recommended: Larry Baum’s “Ideology in the Supreme Court”<http://electionlawblog.org/?p=96964>
Posted on January 17, 2018 5:00 pm<http://electionlawblog.org/?p=96964> by Rick Hasen<http://electionlawblog.org/?author=3>
I just had a chance to read Lawrence Baum, Ideology in the Supreme Court<https://www.amazon.com/Ideology-Supreme-Court-Lawrence-Baum/dp/0691175527/ref=sr_1_1?ie=UTF8&qid=1516237038&sr=8-1&keywords=ideology+in+the+supreme+court> (Princeton University Press 2017). It is really a terrific book which says something new and different about the role of ideology in Supreme Court decisionmaking (something that I think is very hard to do). I’ll have more to say on the book in a review essay I’m writing, but in the meantime, here is the book’s description:
Ideology in the Supreme Court is the first book to analyze the process by which the ideological stances of U.S. Supreme Court justices translate into the positions they take on the issues that the Court addresses. Eminent Supreme Court scholar Lawrence Baum argues that the links between ideology and issues are not simply a matter of reasoning logically from general premises. Rather, they reflect the development of shared understandings among political elites, including Supreme Court justices. And broad values about matters such as equality are not the only source of these understandings. Another potentially important source is the justices’ attitudes about social or political groups, such as the business community and the Republican and Democratic parties.
The book probes these sources by analyzing three issues on which the relative positions of liberal and conservative justices changed between 1910 and 2013: freedom of expression, criminal justice, and government “takings” of property. Analyzing the Court’s decisions and other developments during that period, Baum finds that the values underlying liberalism and conservatism help to explain these changes, but that justices’ attitudes toward social and political groups also played a powerful role.
Providing a new perspective on how ideology functions in Supreme Court decision making, Ideology in the Supreme Court has important implications for how we think about the Court and its justices.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Kirkus Reviews My New Book on Justice Scalia’s Legacy, The Justice of Contradictions<http://electionlawblog.org/?p=96962>
Posted on January 17, 2018 2:54 pm<http://electionlawblog.org/?p=96962> by Rick Hasen<http://electionlawblog.org/?author=3>
Read it here.<https://www.kirkusreviews.com/book-reviews/richard-l-hasen/the-justice-of-contradictions/> My favorite snippet:
Hasen effectively supports his critique with incisive analysis of pertinent cases and legal commentary, clearly explaining the fundamental theoretical and practical weaknesses of these methodologies.
You can preorder the book at Amazon<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643?SubscriptionId=AKIAIXFKFJI6IH6DO5KQ&tag=kirkus-20&linkCode=xm2&camp=2025&creative=165953&creativeASIN=0300228643>. (Audible audiobook also coming.)
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Posted in Scalia<http://electionlawblog.org/?cat=123>

“Rutgers law expert: 3 ways to make every vote count”<http://electionlawblog.org/?p=96960>
Posted on January 17, 2018 1:54 pm<http://electionlawblog.org/?p=96960> by Rick Hasen<http://electionlawblog.org/?author=3>
Frank Askin oped:<http://www.nj.com/opinion/index.ssf/2018/01/make_every_vote_count_opinion.html>
There is an important political campaign being waged all across the country with relatively little publicity, but potentially enormous consequences, over the issue of  legislative gerrymandering<http://www.njherald.com/article/20180115/AP/301159842#//>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Pennsylvania Supreme Court Appears Open To Striking Down Gerrymandered Map”<http://electionlawblog.org/?p=96955>
Posted on January 17, 2018 11:02 am<http://electionlawblog.org/?p=96955> by Rick Hasen<http://electionlawblog.org/?author=3>
Early HuffPost report:<https://www.huffingtonpost.com/entry/pennsylvania-gerrymandering_us_5a5f8856e4b046f0811c5bbe?f7e>
A plurality of state Supreme Court justices seemed open to the possibility that the Pennsylvania congressional map may violate the state’s constitution, but during oral argument on Wednesday seemed unclear as to how to remedy the situation.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Updated: Read the Opposition to SCOTUS Stay Request in North Carolina Congressional Partisan Gerrymandering Case<http://electionlawblog.org/?p=96952>
Posted on January 17, 2018 11:00 am<http://electionlawblog.org/?p=96952> by Rick Hasen<http://electionlawblog.org/?author=3>
You can read it here.  A snippet:<https://www.southerncoalition.org/wp-content/uploads/2017/01/LWVNC-stay-opp.pdf>
[Update: Here<http://electionlawblog.org/wp-content/uploads/17A745-Rucho-v.-Common-Cause-Stay-Resp.-Common-Cause.pdf> is a second opposition to the stay request.]

[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2018-01-17-at-10.59.47-AM.png]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2018-01-17-at-10.59.47-AM.png>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

--
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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