[EL] ELB News and Commentary 1/22/18

[Rick Hasen]

“GOP legislators ask altered North Carolina maps be delayed”<http://electionlawblog.org/?p=97031>
Posted on January 21, 2018 7:37 pm<http://electionlawblog.org/?p=97031> by Rick Hasen<http://electionlawblog.org/?author=3>

WRAL:<http://www.wral.com/gop-legislators-ask-altered-north-carolina-maps-be-delayed/17279007/>

The GOP lawmakers’ lawyers filed Sunday a motion asking the federal judges stay their order accepting new boundary lines from a special master while legislators appeal that order to the U.S. Supreme Court. They want a decision by Monday because they plan to request a similar delay before the Supreme Court if the judges deny it.

On Friday I explained<http://electionlawblog.org/?p=97015> why such a stay request in this racial gerrymandering case is not likely to fare as well as other recent stay requests to the Supreme Court.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Trump’s attempts to show voter fraud appear to have stalled”<http://electionlawblog.org/?p=97029>
Posted on January 21, 2018 6:10 pm<http://electionlawblog.org/?p=97029> by Rick Hasen<http://electionlawblog.org/?author=3>

The PBS News Hour reports.<https://www.pbs.org/newshour/politics/trumps-attempts-to-show-voter-fraud-appear-to-have-stalled>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Wisconsin Gov. Scott Walker won’t say if he wants to oust state ethics and elections chiefs”<http://electionlawblog.org/?p=97027>
Posted on January 21, 2018 3:43 pm<http://electionlawblog.org/?p=97027> by Rick Hasen<http://electionlawblog.org/?author=3>

Patrick Marley:<https://www.jsonline.com/story/news/politics/2018/01/21/wisconsin-gov-scott-walker-wont-say-if-he-wants-oust-state-ethics-and-elections-chiefs/1048424001/>

As Republican state senators prepare to oust the state’s ethics and elections chiefs, GOP Gov. Scott Walker won’t say if he agrees the pair should go.

Three times on Friday, Walker sidestepped questions about whether he thought the Senate should deny the confirmations of ethics director Brian Bell<https://www.jsonline.com/story/news/politics/2018/01/17/brian-bell-says-he-left-wisconsin-government-accountability-board-part-because-concerns-political-bi/1042366001/> and elections director Michael Haas.

“I’ll leave that up to them and focus on our ambitious agenda,” Walker told reporters.

And see this thread from Don Moynihan:

This really ought to be a national story: WI GOP replaced election & ethics watchdog two years ago, now trying fire the heads of its successor. No evidence of wrongdoing, simply a desire to establish partisan control over an independent agency. https://t.co/pVH0kdy7Ab

— Don Moynihan (@donmoyn) January 13, 2018<https://twitter.com/donmoyn/status/952233054101262337?ref_src=twsrc%5Etfw>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Judge Knocks DOJ Claim That Kobach Can’t Speak For Voter Fraud Panel”<http://electionlawblog.org/?p=97025>
Posted on January 20, 2018 12:03 pm<http://electionlawblog.org/?p=97025> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/doj-kobach-declaration-voter-fraud-commission-panel>

A federal judge didn’t buy the Justice Department’s argument<https://talkingpointsmemo.com/muckraker/doj-kobach-voter-fraud-panel-data> that Kansas Secretary of State Kris Kobach couldn’t speak to what was being done with the data collected by the now-defunct voter fraud commission he led. The judge ordered that Kobach or another commission member file a declaration giving a full explanation.

The declaration will state “what information was collected or created by the
Commission and/or its members on behalf of the Commission, where that information was and is being stored, by whom the information has been accessed, and what plans were made by the Commission to maintain or dispose of the information,” U.S. District Judge Marcia Cooke said Thursday.

The order came in a lawsuit brought by the ACLU of Florida against the commission and Florida last year, for turning over state voter roll data Kobach had requested.
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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>


“Drawing the Line on Redistricting”<http://electionlawblog.org/?p=97023>
Posted on January 20, 2018 11:50 am<http://electionlawblog.org/?p=97023> by Rick Hasen<http://electionlawblog.org/?author=3>

New Bruce Cain column<https://www.the-american-interest.com/2018/01/17/drawing-line-redistricting/> in the American Interest:

The Supreme Court has decided to review three partisan redistricting cases this term. One case centers on an alleged Republican partisan gerrymander in Wisconsin (Gill v. Whitford), another on an alleged Democratic gerrymander in Maryland (Benisek v. Lamone) and the third, an alleged Texas racial gerrymander undertaken for partisan reasons (Perez v. Abbott). Taking these cases up in the same term suggests that the Supreme Court may have something meaningful in mind, but it is not at all clear what that something is.

Expectations are all over the map. The reform community hopes that Justice Kennedy will give them a parting gift in the form of a manageable judicial standard striking down partisan gerrymandering once and for all. That expectation could be wrong on two counts: first, that Justice Kennedy is leaving the Court any time soon, and second, that he will finally give them the ruling that they so desperately want. It is just as likely that this predominantly conservative Court could decide to put a stake in the heart of the anti-gerrymandering effort once and for all, or fail to find any clear consensus, leaving the whole matter in a continued state of ambiguity as it has done in the past.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


North Carolina redistricting – where we’re at<http://electionlawblog.org/?p=97018>
Posted on January 19, 2018 6:04 pm<http://electionlawblog.org/?p=97018> by Justin Levitt<http://electionlawblog.org/?author=4>

Justin here: just a quick note for those trying desperately to keep track of what’s where in North Carolina redistricting given the last few days.  (This is the really short version.)  Don’t worry, this’ll all change by the time you get to the end of the post.
·         State legislative maps:  in 2016, a three-judge federal trial court granted judgment on a Shaw claim, finding the 2011 state legislative maps invalid based on the improper use of race; SCOTUS summarily affirmed.  The NC legislature passed a remedial plan in 2017, but the three-judge court found continuing problems with some of those districts, and engaged a Special Master (Stanford Prof. Nate Persily) to remedy the continuing problems with 9 districts.  Earlier today, a three-judge federal court adopted<http://electionlawblog.org/?p=97015> those remedial plans.  Those are now the presumptive state legislative maps for the 2018 elections.  (Elections in 2012, 2014, and 2016 were held under the invalid maps.)
·         Congressional maps:  in 2016, a three-judge federal trial court granted judgment on a Shawclaim, finding the 2011 congressional maps invalid based on the improper use of race; SCOTUS affirmed in 2017.  The NC legislature passed a remedial plan in 2016; the Shaw plaintiffs alleged that this plan was an improper partisan gerrymander, and that claim has since been sitting at SCOTUS<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/16-166.html>, technically live, but dormant. In the meantime, two other groups of plaintiffs challenged the 2016 plan as a partisan gerrymander, and on January 9 of this year<http://electionlawblog.org/?p=96824>, a different three-judge federal trial court agreed, finding the plan invalid and asking for remedial districts.  And then yesterday, SCOTUS stayed that ruling<http://electionlawblog.org/?p=96985>, pending the filing of a full appeal and a decision about whether the Court will hear the case … which will take a while.  So the presumptive congressional maps for the 2018 elections are the maps passed in 2016.  (Elections in 2012, 2014, and 2016 were held under the invalid maps, and elections in 2018 will almost certainly be held under the 2016 maps also invalidated by the trial court.)

And that’s just North Carolina.  There’s still continuing action on congressional plans in Maryland, Michigan, Pennsylvania, and Texas, and on state legislative plans in Georgia, Michigan, Texas, Virginia, and Wisconsin.  Only three years left before we start over again!
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Breaking and Analysis: Three Judge Court in North Carolina Racial Gerrymandering Case Unanimously Adopts Special Master Plans for Remedying Violations; Next Stop SCOTUS?<http://electionlawblog.org/?p=97015>
Posted on January 19, 2018 12:18 pm<http://electionlawblog.org/?p=97015> by Rick Hasen<http://electionlawblog.org/?author=3>

In a unanimous and expected opinion and order (92 page pdf<https://democracync.org/wp-content/uploads/2018/01/Covington-Opinion-1-19-18.pdf>), the three judge court in the Covingtoncase, on remand from the U.S. Supreme Court, adopted special master Nate Persily’s plan to adopt new legislative districts to cure the racial gerrymanders the court had found in certain state legislative districts. (It is notable that one of the judges on the panel, Judge Thomas Schroeder, was the district court judge which had rejected challenges to NC’s broad law constricting voting rights, a decision later reversed by the 4th Circuit. Judge Schroeder is fully on board here). Some of the criticisms of Persily’s work advanced by the NC legislative defendants were laughable.

It is quite possible that North Carolina will go to the Supreme Court to seek to stop these districts for being used in 2018, just as the state successfully stopped the order<http://electionlawblog.org/?p=96985> yesterday, in a separate case, to redraw the state’s congressional districts found by a lower court to be an unconstitutional partisan gerrymander.

There are two reasons to give such a stay order lower chances in this case. First, this is a case on remand from SCOTUS, where there have already been findings of a racial gerrymander. In contrast, at this point there is uncertainly whether courts will even have the power to rein in partisan gerrymanders. This is on the table in cases before the Supreme Court this term. Second, in this case there are already redrawn districts approved by the district court. There would not be a further delay in implementing an order. In the other case, there were no new districts drawn yet, and the process would have dragged out further.

Thus, although I think the Court has been very willing (too willing in my view<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>) to make voters wait for remedies in redistricting cases, I think a request for a stay of the racial gerrymandering remedial order has a lower chance of success here.

That said, there will still likely be an appeal of the underlying ruling to the Supreme Court. The Court might agree to hear that case, but it could also simply affirm the lower court, which (given that this is the second SCOTUS rodeo) seems a real possibility.
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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>


“Seventh Circuit Rules Against Expanding Territorial Voting Rights”<http://electionlawblog.org/?p=97011>
Posted on January 19, 2018 10:12 am<http://electionlawblog.org/?p=97011> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://www.equalrightsnow.org/seventh_circuit_rules_against_expanding_territorial_voting_rights>

Late yesterday, the U.S. Court of Appeals for the Seventh Circuit ruled against expanding territorial voting rights in Segovia v. United States.  The case presented an equal protection challenge by plaintiffs in Guam, Puerto Rico, and the U.S. Virgin Islands who would be able to absentee vote for President and voting representation in Congress if they lived in other U.S. territories or a foreign country, but are denied such rights based solely on their ZIP code.

In a surprising move, the panel concluded that plaintiffs lacked legal standing to even challenge federal overseas voting laws, a potentially far-reaching conclusion that has previously been rejected by other courts. On the merits, the panel concluded that state overseas voting laws may constitutionally extend absentee voting rights to residents of American Samoa and the Northern Mariana Islands while withholding them from residents of Guam, Puerto Rico, and the U.S. Virgin Islands. The panel also embraced the suggestion of the Trump Administration that even if a constitutional violation was found, the remedy would be to contract rather than expand voting rights in U.S. territories….

Plaintiffs will make a decision whether to appeal the Seventh Circuit’s decision to the Supreme Court in the coming weeks. They have until April 18, 2018 to petition the Supreme Court to review the case.

From the unanimous 7th Circuit opinion<http://electionlawblog.org/wp-content/uploads/segovia.pdf>:

This is a strange case. The plaintiffs seek the right to con‐ tinue to vote in federal elections in Illinois even though they are now residents of United States territories. In effect, the plaintiffs are upset that the territories to which they moved are considered under federal and state law to be part of the United States rather than overseas. They would like overseas voting rights while still living within the United States. No court has ever held that they are so entitled, and we will not be the first.

We hold that the plaintiffs lack standing to challenge the federal UOCAVA because their injury derives not from the federal statute, but from the failure of Illinois law to guarantee them absentee ballots. So we VACATE the portion of the dis‐ trict court’s judgment in favor of the federal defendants and REMAND the case with instructions to dismiss the claims against the federal defendants for want of jurisdiction. With respect to the state defendants, however, we AFFIRM the portion of the judgment below that the Illinois law does not vio‐ late the Equal Protection Clause or the due‐process right to interstate travel.


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Posted in voting<http://electionlawblog.org/?cat=31>


More Trouble for Kobach’s Crosscheck<http://electionlawblog.org/?p=97009>
Posted on January 19, 2018 8:33 am<http://electionlawblog.org/?p=97009> by Rick Hasen<http://electionlawblog.org/?author=3>

McPherson Sentinel:<http://www.mcphersonsentinel.com/news/20180118/kobachs-office-will-delay-data-uploads-for-voter--system>

Secretary of State Kris Kobach’s office will postpone the initial uploading of voter registration data from other states to the Kansas-based Interstate Crosscheck System while it reviews the program’s cybersecurity, a state official said Wednesday.

Bryan Caskey, director of elections in Kobach’s office, told members of the House Elections Committee the Kansas secretary of state’s office began reviewing security protocols for all its election processes in October 2016 due to national concerns over cybersecurity in voting systems. The Crosscheck program, which compares registrations across states to identify duplicate registrants and voters, has come under scrutiny for what critics claim are possible vulnerabilities of its data.
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Posted in election administration<http://electionlawblog.org/?cat=18>



--
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>
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http://electionlawblog.org<http://electionlawblog.org/>


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