[EL] ELB News and Commentary 1/28/18

[Rick Hasen]

Justice Alito Has Not Yet Acted on Pa. Congressional Gerrymandering Stay Request from Pa. Legislative Republicans. Why?<http://electionlawblog.org/?p=97201>
Posted on January 28, 2018 10:39 am<http://electionlawblog.org/?p=97201> by Rick Hasen<http://electionlawblog.org/?author=3>

On Thursday,<http://electionlawblog.org/?p=97141> Pennsylvania Republicans sought to stop a Pa Supreme Court order requiring that the state’s congressional districts be redrawn because they violate the state Constitution.

The claim to the United States Supreme Court is an extreme long shot<http://electionlawblog.org/?p=97047> because ordinarily interpretations of state constitutions rest with state Supreme Courts, and the Republicans in the federal litigation said<http://abcnews.go.com/US/wireStory/pennsylvania-gop-gerrymandering-case-us-high-court-52611284> that it should be the state courts which resolve this.

The petition went to Justice Alito, and Court watchers expected<https://twitter.com/AHoweBlogger/status/957057182922694657> the Justice could well order a response before the end of the day Friday.  After all, the petition<https://www.supremecourt.gov/DocketPDF/17/17A795/33301/20180125203828316_Emergency%20Application%20for%20Stay%20final5.pdf> asked (at page 23) for the Court to rule on the petition by Wednesday, January 31 if at all possible, given the strict deadlines set by the state Supreme Court. If Justice Alito wanted a response, it would be weird and unfair to wait to order it on Monday, 1/29 when he could have ordered it on Friday, 1/26.

So this makes me think that the Justice will either simply deny the order, or he has referred it to the Court, which will deny the order, either on Monday or by Wednesday at the latest.

If that happens, it could be that another Justice will dissent, but it would be weird too to have a dissent without having first asked for the other side to respond.

Of course, this is all speculation and I could be wrong. But this is how it looks to me right now.

In any case, I see the failure of Justice Alito to order something by Friday as a bad sign for the state Republicans seeking a stay.


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


“The Follower Factory; Everyone wants to be popular online. Some even pay for it. Inside social media’s black market.”<http://electionlawblog.org/?p=97199>
Posted on January 28, 2018 10:28 am<http://electionlawblog.org/?p=97199> by Rick Hasen<http://electionlawblog.org/?author=3>

Fascinating NYT report.<https://www.nytimes.com/interactive/2018/01/27/technology/social-media-bots.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=photo-spot-region&region=top-news&WT.nav=top-news>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>


“Former Colorado GOP chairman sentenced for voter fraud”<http://electionlawblog.org/?p=97196>
Posted on January 28, 2018 10:22 am<http://electionlawblog.org/?p=97196> by Rick Hasen<http://electionlawblog.org/?author=3>

CBS News:<https://www.cbsnews.com/news/steve-curtis-former-colorado-gop-chairman-sentenced-for-voter-fraud/>

The former chairman of the Colorado Republican Party was sentenced to four years of probation and 300 hours of community service for voter fraud. Steve Curtis blamed a “major diabetic episode” for causing him to vote his ex-wife’s absentee ballot in October 2016.

Curtis, 57, told District Judge Julie Hoskins Friday it was “a customary thing” for him to fill out his wife’s ballot and he didn’t know it was illegal, but he said he didn’t remember doing it.

Earlier: Former Colorado GOP Chair, Who Claimed All Voter Fraud is Committed by Democrats, Convicted of Voter Fraud, After Claiming He Voted His Ex-Wife’s Ballot in Diabetic Episode<http://electionlawblog.org/?p=96262>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Koch-aligned group already prepping for next Supreme Court fight”<http://electionlawblog.org/?p=97194>
Posted on January 28, 2018 10:19 am<http://electionlawblog.org/?p=97194> by Rick Hasen<http://electionlawblog.org/?author=3>

McClatchy:<http://www.mcclatchydc.com/news/politics-government/article197071514.html>

There aren’t any openings on the Supreme Court, but that’s not stopping a major conservative group with ties to the billionaire Koch brothers from mobilizing for the next vacancy anyway.

Americans for Prosperity has hired a vice president of judicial strategy who will spearhead the organization’s push for confirmation of a strict constructionist — someone who interprets the Constitution narrowly, avoiding what conservatives see as judicial activistm — when the next opening arises. It’s part of a broader commitment from the influential Koch network to spend heavily on judicial engagement in 2018, and it’s the organization’s most significant move on the issue this year.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


Fictitious Quote of the Day: George W. Bush Edition<http://electionlawblog.org/?p=97192>
Posted on January 28, 2018 10:14 am<http://electionlawblog.org/?p=97192> by Rick Hasen<http://electionlawblog.org/?author=3>

“We both won the election despite losing the popular vote, though back in my day we didn’t let Russians rig our elections. We used the Supreme Court—like Americans.”
—“George W. Bush” (Will Ferrell on SNL).<br< p=""></br<>
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Posted in Bush v. Gore reflections<http://electionlawblog.org/?cat=5>, election law "humor"<http://electionlawblog.org/?cat=52>


Full Employment for @Persily Month<http://electionlawblog.org/?p=97190>
Posted on January 28, 2018 10:05 am<http://electionlawblog.org/?p=97190> by Rick Hasen<http://electionlawblog.org/?author=3>

Penn Live:<http://www.pennlive.com/politics/index.ssf/2018/01/gov_tom_wolf_tabs_tufts_mathem.html>

The Pennsylvania Supreme Court has retained a special advisor and asked for technical data in the event it needs to become more directly involved in creating Pennsylvania’s next Congressional district map.<http://www.pennlive.com/politics/index.ssf/2018/01/redistricting_order_means_its.html>

The court issued an order Friday naming Stanford University law professor Nathan Persily “to assist the court in adopting, if necessary, a remedial congressional redistricting plan.”

Persily is an elections law expert who has been retained by courts in several states to help draw new legislative district lines.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“The courts may address partisan gerrymandering. Virginia and Maryland, take note.”<http://electionlawblog.org/?p=97188>
Posted on January 28, 2018 10:03 am<http://electionlawblog.org/?p=97188> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo editorial.<https://www.washingtonpost.com/opinions/the-courts-may-address-partisan-gerrymandering-virginia-and-maryland-take-note/2018/01/26/3f234de8-01e5-11e8-8acf-ad2991367d9d_story.html?utm_term=.d75cc6b34d5d>
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“How Hedge Funds (Secretly) Get Their Way in Washington”<http://electionlawblog.org/?p=97186>
Posted on January 28, 2018 10:01 am<http://electionlawblog.org/?p=97186> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg Businessweek.<https://www.bloomberg.com/news/features/2018-01-25/how-hedge-funds-secretly-get-their-way-in-washington>


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Posted in lobbying<http://electionlawblog.org/?cat=28>


“‘Democracy in America?’: An interview with authors Ben Page and Martin Gilens”<http://electionlawblog.org/?p=97184>
Posted on January 28, 2018 10:00 am<http://electionlawblog.org/?p=97184> by Rick Hasen<http://electionlawblog.org/?author=3>

Jared Bernstein interviews.<https://www.washingtonpost.com/news/posteverything/wp/2018/01/23/democracy-in-america-an-interview-with-authors-ben-page-and-martin-gilens/?utm_term=.67f3e088b877>
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Posted in Plutocrats United<http://electionlawblog.org/?cat=104>


“Real ‘Fake News’ and Fake ‘Fake News'”<http://electionlawblog.org/?p=97182>
Posted on January 28, 2018 9:58 am<http://electionlawblog.org/?p=97182> by Rick Hasen<http://electionlawblog.org/?author=3>

Lili Levi has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097200> on SSRN (forthcoming, First Amendment Law Review).  Here is the abstract:

“Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are self-evidently very dangerous for democracy. As if this were not a sufficient threat to the democratic order, however, “fake news” is also a threat, inter alia, to the stability of the financial markets as well. Whether for competitive advantage, terror, or geopolitical gamesmanship, the deployment of market-affecting fabricated information is a looming danger ahead. Simply put, therefore, “fake news” presents profound—and likely increasing—challenges for both the public and private spheres today.

In light of this complexity, no single—or simple—tactic is sufficient to address the variety of challenges posed by the multi-headed phenomenon of “fake news.” This Article suggests beginning with a three-pronged approach—focusing on platform self-regulation, audience information literacy, and—perhaps counterintuitively—empowerment of the press itself. First, despite distrust of platform self-regulation, there is reason to believe that the threats posed by “fake news” to commercial interests may stimulate constructive solutions. Second, while cognitive science reveals limits to traditional information literacy approaches, interdisciplinary engagement may enhance the effectiveness of inevitably iterative information literacy initiatives in the “fake news” context. Third, in contrast to suggested solutions exploring express governmental attempts to prohibit or limit “fake news” directly, the Article instead recommends a reversal of current doctrine and practice in the form of a broad-based expansion of affirmative rights for the press. If given expanded protections, the professional press can transform the modern context of “fake news” into an opportunity to shine as watchdog and, hopefully, thereby rebuild public trust. Tools to empower the professional press can help forge alliances between the conservative and liberal wings of the traditional media, thereby isolating and minimizing the impact of newly-rising alt-right media entrants. The results will surely be imperfect, but the alternative is worse: a neutered and supine press operating merely to entertain a fragmented and polarized audience in an increasingly authoritarian global political and commercial environment.

The mainstream press today is both demonized by the right and at risk from the left’s recent attempts to desacralize the First Amendment on the ground of its rightward ideological drift. In questioning that development, the Article suggests that progressive scholars’ critiques of recent libertarian doctrinal developments regarding the freedom of speech should in no way impede the recognition and enhancement of the First Amendment’s protections for a free and independent press. In that spirit, the Article appeals to courts, legislators, and government actors at every level to back up an ostensible commitment to free speech with an equally robust commitment to a free press. It also calls on the press to revise its practices in response.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>


“Republicans in Pennsylvania ask the Supreme Court to restore their map”<http://electionlawblog.org/?p=97180>
Posted on January 28, 2018 9:55 am<http://electionlawblog.org/?p=97180> by Rick Hasen<http://electionlawblog.org/?author=3>

Steve Mazie blogs<https://www.economist.com/blogs/democracyinamerica/2018/01/strange-territory> for The Economist.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Lawyers’ Committee for Civil Rights Under Law Files New Lawsuit Against Trump Administration For Concealing Its Actions to Engage DOJ and DHS in Work of Commission on Election Integrity”<http://electionlawblog.org/?p=97178>
Posted on January 28, 2018 9:54 am<http://electionlawblog.org/?p=97178> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<https://lawyerscommittee.org/press-release/lawyers-committee-civil-rights-law-files-new-lawsuit-trump-administration-concealing-actions-engage-doj-dhs-work-election-integrity-commission/>

The Lawyers’ Committee for Civil Rights Under Law on Friday filed a lawsuit against the Departments of Justice (DOJ) and Homeland Security (DHS) for blocking the public release of information related to their efforts to investigate unfounded claims of voter fraud, including by coordinating with the now-defunct Presidential Advisory Commission on Election Integrity.  The lawsuit was filed one day after news reports revealed<https://gizmodo.com/kris-kobach-s-office-leaks-last-4-social-security-digit-1822415622> that former Commission Vice Chair and Kansas Secretary of State Kris Kobach exposed the personally identifiable information of thousands of Kansas state employees.
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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>


“Filibusters are Not for Shutdowns”<http://electionlawblog.org/?p=97176>
Posted on January 28, 2018 9:51 am<http://electionlawblog.org/?p=97176> by Rick Hasen<http://electionlawblog.org/?author=3>

Ned Foley blogs.<http://moritzlaw.osu.edu/election-law/article/?article=13425>


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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>


“The Disparate Impact Canon”<http://electionlawblog.org/?p=97174>
Posted on January 28, 2018 9:50 am<http://electionlawblog.org/?p=97174> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Morley has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3110990> on SSRN (forthcoming, U Pa L. Rev. Online).  Here is the abstract:

During a recent oral argument, Justice Sonia Sotomayor raised the possibility of rejecting a proposed interpretation of a federal statute, the National Voting Rights Act, on the grounds it would have a disproportionate adverse impact on racial minorities. This Essay expands upon Justice Sotomayor’s comment, considering the possibility of recognizing a new substantive canon of statutory construction: a “disparate impact canon” that would require courts to construe ambiguous federal statutes in a manner that avoids, combats, or prevents racially disparate impacts. The Essay considers how well a disparate impact canon fits with the standard justifications for substantive canons, as well as its constitutional implications. It concludes by pointing out that debate over a disparate impact canon is a proxy for larger disputes over the proper role of judges and empathy in the adjudicative process — issues that arose during Justice Sotomayor’s confirmation hearings. Recognizing a disparate impact canon would be a natural, albeit substantial, extension of her jurisprudence.
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Posted in election administration<http://electionlawblog.org/?cat=18>, statutory interpretation<http://electionlawblog.org/?cat=21>, Supreme Court<http://electionlawblog.org/?cat=29>


“Letting people vote at home increases voter turnout. Here’s proof.”<http://electionlawblog.org/?p=97172>
Posted on January 28, 2018 9:48 am<http://electionlawblog.org/?p=97172> by Rick Hasen<http://electionlawblog.org/?author=3>

Gilad Edelman and Paul Glastris WaPo oped.<https://www.washingtonpost.com/outlook/letting-people-vote-at-home-increases-voter-turnout-heres-proof/2018/01/26/d637b9d2-017a-11e8-bb03-722769454f82_story.html?utm_term=.d2c53fbb4420>
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Posted in election administration<http://electionlawblog.org/?cat=18>, voter registration<http://electionlawblog.org/?cat=37>


NC: “In power struggle with GOP lawmakers, Cooper wins election board revamp lawsuit”<http://electionlawblog.org/?p=97170>
Posted on January 28, 2018 9:47 am<http://electionlawblog.org/?p=97170> by Rick Hasen<http://electionlawblog.org/?author=3>

News & Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article196932269.html>

For the second time since Democratic Gov. Roy Cooper took office, the state Supreme Court issued a ruling striking down an attempt by the Republican-led General Assembly to revamp the state elections board.

In a 4-3 ruling<https://appellate.nccourts.org/opinions/?c=1&pdf=36529> that breaks down along the court’s partisan lines, the justices found that a law passed in 2017 that merged the state Board of Elections with the state Ethics Commission and limited Cooper’s power to appoint a majority of its members violated the state Constitution’s separation of powers clause.

The ruling, in a case that has attracted national attention, means that the governor’s party will control elections boards at the state and county levels, as has been the case for decades before Cooper defeated one-term Republican Gov. Pat McCrory. That could have implications for voting hours and poll locations in this year’s elections.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“As Gridlock Deepens in Congress, Only Gloom Is Bipartisan”<http://electionlawblog.org/?p=97168>
Posted on January 28, 2018 9:44 am<http://electionlawblog.org/?p=97168> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2018/01/27/us/politics/congress-dysfunction-conspiracies-trump.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news#story-continues-1>
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>


“Gerrymandering is the root of all political evil. Or is it?”<http://electionlawblog.org/?p=97166>
Posted on January 28, 2018 9:42 am<http://electionlawblog.org/?p=97166> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Balz WaPo column.<https://www.washingtonpost.com/politics/gerrymandering-is-the-root-of-all-political-evil-or-is-it/2018/01/27/c12af98a-02e9-11e8-9d31-d72cf78dbeee_story.html?utm_term=.d3d2a82e9e33&wpmk=MK0000200>
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“5 Ways Election Interference Could (And Probably Will) Worsen In 2018 And Beyond”<http://electionlawblog.org/?p=97164>
Posted on January 28, 2018 9:38 am<http://electionlawblog.org/?p=97164> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR reports.<https://www.npr.org/2018/01/27/579683042/5-ways-election-interference-could-and-probably-will-worsen-in-2018-and-beyond>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


NYC: “2 Donors Plead Guilty, but the Mayor Is Not Charged. Why?”<http://electionlawblog.org/?p=97162>
Posted on January 28, 2018 9:37 am<http://electionlawblog.org/?p=97162> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting New York Times report<https://mobile.nytimes.com/2018/01/26/nyregion/2-donors-plead-guilty-but-the-mayor-is-not-charged-why.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=nygeo-promo-region%C2%AEion=nygeo-promo-region&WT.nav=nygeo-promo-region&referer=https://www.nytimes.com/> on Mayor De Blasio. Something stinks.
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Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>


“In our post-television age, a new opening for campaign finance reform”<http://electionlawblog.org/?p=97160>
Posted on January 28, 2018 9:36 am<http://electionlawblog.org/?p=97160> by Rick Hasen<http://electionlawblog.org/?author=3>

David Schultz oped<http://thehill.com/opinion/campaign/371018-in-our-post-television-age-a-new-opening-for-campaign-finance-reform> in The Hill.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Why Can You Buy a Government But You Can’t Pay for Sex?”<http://electionlawblog.org/?p=97158>
Posted on January 28, 2018 9:34 am<http://electionlawblog.org/?p=97158> by Rick Hasen<http://electionlawblog.org/?author=3>

Ron Fein oped<http://www.newsweek.com/why-can-you-buy-government-you-cant-pay-sex-792958> for Newsweek.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Floridians should scrap these retrograde, racist voting laws”<http://electionlawblog.org/?p=97156>
Posted on January 28, 2018 9:32 am<http://electionlawblog.org/?p=97156> by Rick Hasen<http://electionlawblog.org/?author=3>

Washington Post editorial:<https://www.washingtonpost.com/opinions/floridians-should-scrap-these-retrograde-racist-voting-laws/2018/01/27/dbfd2a86-0220-11e8-bb03-722769454f82_story.html?utm_term=.5dbc1852068b&wpmk=MK0000200>

NO STATE comes close to disenfranchising its citizens at the rate Florida does. By doing so, the state extends the iniquities of Jim Crow into the modern era to the detriment of minority and, for the most part, Democratic voters. Now, after years of serving as an anti-democratic model, Florida appears about to see its voters drag it into the 21st century. They should.

Of 6.1 million former felons<https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/> who remain barred from voting across the United States, more than a quarter of them — nearly 1.7 million<https://www.npr.org/2017/10/21/558127043/in-florida-felons-want-their-voting-rights-restored-automatically> — are Floridians. It is one of just three states <https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-florida> that permanently bars all felons from voting unless their rights are individually restored following an arduous, years-long process. The result: More than 10 percent<https://www.nytimes.com/interactive/2016/10/06/us/unequal-effect-of-laws-that-block-felons-from-voting.html> of voting-age adults, and more than 20 percent of African Americans, have no access to the ballot box in Florida. You read that correctly: 1 in 5 black adults in Florida cannot vote.

That’s a disgrace, and it’s a direct legacy of Florida’s post-Confederate history, which included an 1868 state constitution that stripped felons<https://www.brennancenter.org/sites/default/files/legacy/d/download_file_38222.pdf> of voting rights and mandated minimum education requirements for first-time voters, a measure that affected newly freed slaves disproportionately.
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Posted in felon voting<http://electionlawblog.org/?cat=66>


--
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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