[EL] breaking NC gerrymandering news/more news

Thu Jan 18 15:47:31 PST 2018

Breaking: Supreme Court, with Two Dissents, Stays Order to Redraw Congressional Districts After Lower Court Finding of a Partisan Gerrymander<http://electionlawblog.org/?p=96985>
Posted on January 18, 2018 3:41 pm<http://electionlawblog.org/?p=96985> by Rick Hasen<http://electionlawblog.org/?author=3>
This just in:<https://www.supremecourt.gov/orders/courtorders/011818zr1_b97c.pdf>
The application for stay presented to The Chief Justice and by him referred to the Court is granted, and it is ordered that the order of the United States District Court for the Middle District of North Carolina, case Nos. 1:16-CV-1026 and 1:16-CV1164, entered January 9, 2018, is stayed pending the timely filing and disposition of an appeal in this Court. Justice Ginsburg and Justice Sotomayor would deny the application for stay.
This is what I expected<http://electionlawblog.org/?p=96983>, and is consistent with how the Court has been treating emergency motions in redistricting and voting cases (see my: The Supreme Court is in No Hurry to Protect Voters from Gerrymandering<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>, Washington Post (Post Everything), June 28, 2017).
What this means is that it is very unlikely that even if the Supreme Court agrees with the lower court that this is an unconstitutional partisan gerrymander, there will not be time to consider the issue in time for the 2018 elections. This is especially true because the Court did not expedite things in this order, and it will take a few months before the Court decides whether to hear the case, and that means either a remand after the other partisan gerrymandering cases are decided this term or setting the case for argument (almost certainly next term).
As I’ve said, on the merits North Carolina’s gerrymandering is the most brazen and egregious (they essentially admitted to the practice, but argue the practice of drawing districts for maximum partisan advantage is perfectly legal). The Justices know that if they give the green light to partisan gerrymandering going forward, we will see more redistricting that looks like North Carolina’s.
[This post has been updated.]

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

North Carolina Files Reply Brief for Stay in Partisan Gerrymandering Case; Supreme Court Can Issue Ruling at Any Time<http://electionlawblog.org/?p=96983>
Posted on January 18, 2018 1:51 pm<http://electionlawblog.org/?p=96983> by Rick Hasen<http://electionlawblog.org/?author=3>
 Paul Clement’s reply brief<https://www.supremecourt.gov/DocketPDF/17/17A745/28337/20180118162251342_2018-01-18%20Common%20Cause%20Stay%20Reply%20PDFA.pdf> for North Carolina.
Here’<http://electionlawblog.org/?p=96895>s what I wrote last week about the stay request’s chances:
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.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Maryland: “Governor Larry Hogan Announces Nonpartisan Redistricting Reform Legislation, Joins Amicus Brief; Governor Will Support Plaintiffs in Benisek v. Lamone”<http://electionlawblog.org/?p=96981>
Posted on January 18, 2018 1:28 pm<http://electionlawblog.org/?p=96981> by Rick Hasen<http://electionlawblog.org/?author=3>
Republican governor in Democratic state will sign brief arguing<https://governor.maryland.gov/2018/01/18/governor-larry-hogan-announces-nonpartisan-redistricting-reform-legislation-joins-amicus-brief/> the Supreme Court should rein in partisan gerrymandering.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
Louisiana, Texas, Michigan, and South Carolina File Supreme Court Brief Supporting North Carolina’s Right to Engage in Unlimited Partisan Gerrymandering<http://electionlawblog.org/?p=96979>
Posted on January 18, 2018 12:15 pm<http://electionlawblog.org/?p=96979> by Rick Hasen<http://electionlawblog.org/?author=3>
Another amicus brief<https://www.supremecourt.gov/DocketPDF/17/17A745/28117/20180117142517031_LA%20States%20Amicus%20Brief%20Rucho.pdf> in connection to the stay request, this one from four Republican states:
Fundamentally, partisan gerrymandering is the undeniable and historically permitted consequence of entrusting reapportionment to an inherently political body: state legislatures. Notwithstanding the misgivings that fact arises in this, or any other federal court, the simple truth is that there exists now—and has always existed—a non-judicial remedy to partisan gerrymandering claims: the power of the people to choose their State representatives.
Docket.<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17a745.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Wisconsin: “Haas Asks Senators for Hearing and Confirmation Vote”<http://electionlawblog.org/?p=96977>
Posted on January 18, 2018 8:39 am<http://electionlawblog.org/?p=96977> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://elections.wi.gov/node/5530>
Michael Haas, interim administrator of the Wisconsin Elections Commission, has written to members of the Wisconsin Senate, asking them to hold a public hearing prior to the confirmation vote scheduled for January 23.
“In the event that I am not allowed the courtesy of a public hearing, I am providing this correspondence to share some of what I would include in my testimony, to outline my qualifications and approach to my job, and to set the record straight,” Haas wrote in a letter Wednesday.
“When I visited with all State Senators during introductory meetings in late 2016 and early 2017, the vast majority of you, Republicans and Democrats alike, expressed your support for my appointment and leadership of the agency. I believe that my performance to date has justified your initial confidence in my appointment as well as that of the Commission and its staff, and any fair assessment of my record must conclude that it warrants the Senate’s confirmation of my appointment.”
In the letter, Haas outlines his extensive legal experience in the private and public sectors, including a decade of service to the State of Wisconsin in election administration. He notes that he was recently granted “interim secret clearance” by the Department of Homeland Security, which will permit federal officials to share classified information directly with him about potential cybersecurity and physical threats to Wisconsin’s elections infrastructure.
Haas also addresses concerns raised by some Senators related to his service at the former Government Accountability Board.
“Obviously, the Attorney General’s publication of a report related to investigations of the G.A.B. has rekindled strong feelings about that agency, and it is apparent that some Republican Senators require reassurance regarding my impartiality. My confirmation has become a lightning rod for any complaint ever lodged against the G.A.B., whether or not it was justified in the first place,” he wrote.
“The DOJ report merely indicates that I assisted in reviewing and minor editing of legal documents, not for the G.A.B.’s actual investigation but in subsequent litigation. If that is deemed a disqualifying act, then you must consider that I have also reviewed and edited many legal briefs and other court documents drafted by the Department of Justice for litigation defending Wisconsin election laws. The Department of Justice has sometimes ended up on the losing side of those court decisions. And yet nobody has asked for the resignation of those DOJ attorneys or for my resignation because I assisted in defending laws enacted by the Legislature, simply because a court ruled against the State’s legal position.”
“It is certainly your prerogative to vote to confirm or not confirm my appointment, despite the qualifications and value I offer to the State and have outlined above. But doing so would not be based on an objective view of my credentials or the performance of the agency under my leadership. It would be based on a vague and unsubstantiated claim of “lack of confidence.” This was not the message I received from almost all Senators during my introductory visits, and there is no valid reason for a change in that opinion based on the agency’s performance since that time. We also know that there is no lack of confidence among either our customers or partners, or among the public. If there were, I would surely know about it, as clerks and the public have never been shy about expressing their concerns directly to the agency. Furthermore, no legislator has forwarded any concerns from constituents to me or the WEC regarding my qualifications or performance as Administrator of the WEC.”
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Posted in election administration<http://electionlawblog.org/?cat=18>

Event tomorrow at BPC: The Changing Dynamics of Campaign Finance in the U.S.<http://electionlawblog.org/?p=96975>
Posted on January 18, 2018 7:52 am<http://electionlawblog.org/?p=96975> by Rick Hasen<http://electionlawblog.org/?author=3>
The Changing Dynamics of Campaign Finance in the U.S.
WHEN: Friday, January 19, 2018 9:30 a.m. to 11:00 a.m. ET
WHERE: Bipartisan Policy Center, 1225 Eye Street NW, Suite 1000, Washington, DC, 20005

Nate Persily, Bob Bauer, and Ben Ginsberg will release a new report on the U.S. campaign finance system at an event at the Bipartisan Policy Center. The event can be viewed via webcast for any and all who cannot attend in person. Event details and the webcast can be found at https://bipartisanpolicy.org/events/the-changing-dynamics-of-campaign-finance-in-the-u-s/.

The report itself will be available starting Friday morning, along with the underlying research, at https://bipartisanpolicy.org/campaign-finance.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“FBI investigating whether Russian money went to NRA to help Trump”<http://electionlawblog.org/?p=96973>
Posted on January 18, 2018 7:47 am<http://electionlawblog.org/?p=96973> by Rick Hasen<http://electionlawblog.org/?author=3>
McClatchy:<http://www.mcclatchydc.com/news/nation-world/national/article195231139.html>
The FBI is investigating whether a top Russian banker with ties to the Kremlin illegally funneled money to the National Rifle Association to help Donald Trump win the presidency, two sources familiar with the matter have told McClatchy.
FBI counterintelligence investigators have focused on the activities of Alexander Torshin, the deputy governor of Russia’s central bank who is known for his close relationships with both Russian President Vladimir Putin and the NRA, the sources said.
It is illegal to use foreign money to influence federal elections.
It’s unclear how long the Torshin inquiry has been ongoing, but the news comes as Justice Department Special Counsel Robert Mueller’s sweeping investigation of Russian meddling in the 2016 election, including whether the Kremlin colluded with Trump’s campaign, has been heating up.
All of the sources spoke on condition of anonymity because Mueller’s investigation is confidential and mostly involves classified information.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Borenstein: Flawed California law creates tectonic shift in local elections”<http://electionlawblog.org/?p=96971>
Posted on January 18, 2018 7:44 am<http://electionlawblog.org/?p=96971> by Rick Hasen<http://electionlawblog.org/?author=3>
Dan Borenstein column<https://www.mercurynews.com/2018/01/18/borenstein-flawed-state-law-creates-tectonic-shift-in-local-elections/> for the Mercury News:
Cities and school districts across California are facing legal ultimatums: Convert from at-large elections to balloting by district, or risk spending millions of dollars on litigation.
Some jurisdictions are fighting back. But most are capitulating, resulting in a radical revamping of the political process that proponents say will improve the voting power of minority groups.
“It’s really changing the nature of representation in California,” says Richard Hasen, election expert at the UC Irvine Law School. “Many of us think of California as post-racial, but, on the ground, that’s not what we really see.”
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>

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