[EL] ELB News and Commentary 7/6/18

Fri Jul 6 07:53:29 PDT 2018

Off the Grid Next Week; Dan Tokaji Guest Blogging<http://electionlawblog.org/?p=99929>
Posted on July 6, 2018 7:48 am<http://electionlawblog.org/?p=99929> by Rick Hasen<http://electionlawblog.org/?author=3>

After Monday’s SCOTUS term-in-review event<http://electionlawblog.org/?p=99927> at UCI Law, I’m taking a vacation. I might put up one post on Trump’s nominee.

The great Dan Tokaji<http://moritzlaw.osu.edu/faculty/professor/daniel-p-tokaji/> will be guest blogging June 9-15. Please direct any pitches or ELB inquiries to him<mailto:tokaji.1 at osu.edu>.

I’ll be back on July 16.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Coming Monday at 1:30 PM Eastern: Live Webcast of 8th Annual UCI Law Supreme Court Term in Review<http://electionlawblog.org/?p=99927>
Posted on July 6, 2018 7:41 am<http://electionlawblog.org/?p=99927> by Rick Hasen<http://electionlawblog.org/?author=3>

Can’t wait for this,<http://www.law.uci.edu/events/supreme-court-term-review/2018.html> coming on the day of the expected announcement of President Trump’s nominee to replace Justice Kennedy:

Livestream ><https://livestream.com/accounts/867536/events/8239872>

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2017 term, with an all-star panel of Supreme Court jurists, journalists, and legal scholars.

Panelists

Moderated by Rick Hasen<http://www.law.uci.edu/faculty/full-time/hasen/index.html>, Chancellor’s Professor, UCI Law
·         Erwin Chemerinsky<https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/>, Dean and Jesse H. Choper Distinguished Professor of Law, Berkeley Law
·         Hon. Goodwin Liu<http://www.courts.ca.gov/15450.htm>, Associate Justice, California Supreme Court
·         Erin E. Murphy<https://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=12020>, Partner, Kirkland & Ellis LLP
·         Alexandra Natapoff<http://www.law.uci.edu/faculty/full-time/natapoff/index.html>, Professor, UCI Law
·         Leah Litman<http://www.law.uci.edu/faculty/full-time/litman/index.html>, Assistant Professor, UCI Law (Q&A panel only)
·         Nina Totenberg<https://www.npr.org/people/2101289/nina-totenberg>, NPR Legal Affairs Correspondent*

*Please note, Nina Totenberg will instead be appearing via video interview due to the anticipated announcement of a Supreme Court nominee on July 9.

Viewers may submit questions via Twitter (@UCILaw<http://twitter.com/ucilaw> or @rickhasen<https://twitter.com/rickhasen>), using the hashtag #ucilawscotus at the end of your question.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“How the Efficiency Gap Might Ruin the Fun of Stealing American Elections”<http://electionlawblog.org/?p=99925>
Posted on July 6, 2018 7:25 am<http://electionlawblog.org/?p=99925> by Rick Hasen<http://electionlawblog.org/?author=3>

Valentin Vandendaele has this post<https://leidenlawblog.nl/articles/how-the-efficiency-gap-might-ruin-the-fun-of-stealing-american-elections> at the Leiden Law Blog.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Senate report affirms intelligence community’s conclusion that Russia favored Trump over Clinton”<http://electionlawblog.org/?p=99923>
Posted on July 5, 2018 11:23 am<http://electionlawblog.org/?p=99923> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/powerpost/senate-report-affirms-intelligence-communitys-conclusion-that-russia-favored-trump-over-clinton/2018/07/03/4f0f03a2-7ef7-11e8-bb6b-c1cb691f1402_story.html?utm_term=.56ca1452b566>

A Senate panel investigating Russia’s interference in the 2016 presidential election released Tuesday a written summary of its determination that the U.S. intelligence community correctly concluded Moscow sought to help Donald Trump win.

The Senate Intelligence Committee’s report<https://www.burr.senate.gov/imo/media/doc/SSCI%20ICA%20ASSESSMENT_FINALJULY3.pdf> affirms conclusions that its members first announced in May. It stands in sharp contrast with a parallel investigation by the House Intelligence Committee, whose Republican members questioned the intelligence community’s tradecraft in concluding the Kremlin aimed to help Trump.

The Senate panel called the overall assessment a “sound intelligence product,” saying evidence presented by the FBI, CIA and National Security Agency supported their collective conclusion that the Russian government had “developed a clear preference for Trump” over his opponent in the race, Hillary Clinton. Where the agencies disagreed, the Senate panel found those differences were “reasonable.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Judge Kethledge, Trump Short-Lister, Joined Troubling 2008 6th Circuit En Banc Majority Opinion (Reversed by Supreme Court), Risking Disenfranchising Ohio Voters<http://electionlawblog.org/?p=99921>
Posted on July 5, 2018 9:06 am<http://electionlawblog.org/?p=99921> by Rick Hasen<http://electionlawblog.org/?author=3>

Tweet thread.<https://twitter.com/rickhasen/status/1014899029816180736>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Our campaign finance laws can’t be solved by a constitutional convention”<http://electionlawblog.org/?p=99919>
Posted on July 5, 2018 8:23 am<http://electionlawblog.org/?p=99919> by Rick Hasen<http://electionlawblog.org/?author=3>

Fred Wertheimer oped<http://thehill.com/opinion/campaign/395264-our-campaign-finance-laws-cant-be-solved-by-a-constitutional-convention> in The Hill.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Texas redistricting ain’t over yet<http://electionlawblog.org/?p=99914>
Posted on July 5, 2018 7:51 am<http://electionlawblog.org/?p=99914> by Justin Levitt<http://electionlawblog.org/?author=4>

Just before the holiday, Rick posted a Texas redistricting update<http://electionlawblog.org/?p=99894>: the trial court issued a briefing order asking what’s left of the case after SCOTUS remand.  Rick thought “there’s not much left to do.”  But while most of the fireworks may be over, the few remaining may have a pretty big bang.

He’s right that there’s little fight left over in the current maps.  One district – State House District 90, in Fort Worth – has to be redrawn (and, necessarily, some of the districts that border it).  Barring another re-redistricting<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2816711>, the other districts are pretty much set until 2021.

But another part of the case is very much live, and immensely important.  Two<http://electionlawblog.org/wp-content/uploads/texas-redistricting-district-court.pdf> three-judge<http://redistricting.lls.edu/files/TX%20perez%2020170502%20am%20order%20on%20congressional%20plan.pdf> federal courts found that when Texas drew lines in 2011, it intended to discriminate against its Latino citizens.  Indeed, Texas did almost the same thing — in the very same area of southwest Texas — that 2006-era Justice Kennedy said smelled of intentional discrimination.  That’s recidivism, in what we purport to understand as one of government’s worst offenses against its own constituents.  And that’s on top of a 2011 voter ID law also found<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey-Order041017.pdf> to be intentionally discriminatory.  Not to mention state history beyond this decade.

The facts behind those findings don’t vanish.  The latest holdings of the 5th Circuit<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey-5thCirOpinion042718.pdf> (in the ID case) and the Supreme Court<http://redistricting.lls.edu/files/TX%20perez%2020180625%20opinion.pdf> (in the redistricting case) expressly disclaimed any assessment of the 2011 laws.  Indeed, both of those decisions have to do with new statutes passed by the Texas legislature only after litigation set in.

On their own, these new cases teach a dangerous lesson<https://takecareblog.com/blog/this-week-s-blockbuster-scotus-cases-share-a-troublesome-common-issue>: there are no meaningful consequences to intentional discrimination.  These cases encourage legislators who perceive a benefit from discriminating on the basis of race to go ahead and indulge; worst case, they have to redecorate the edges if they get caught, and the longer they can tie up litigation, the more opportunity they have to take advantage in the meantime.

There’s little reason to believe that the legislature that saw advantage in 2003 and advantage in 2011 wouldn’t also see advantage in 2021.  Which is why the part of the case that’s still live is so important.  There is a specific statutory provision for addressing jurisdictions that can’t keep themselves from intentionally discriminating in the election process: federal supervision under section 3 of the Voting Rights Act – the “bail-in” provision<https://www.yalelawjournal.org/pdf/895_hxmt6m44.pdf>.  The day that Shelby County was delivered, I predicted<http://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/> an increase in bail-in filings.  And after Shelby County, a bunch of plaintiffs<http://redistricting.lls.edu/cases-TX.php#TXbailin> asked to return Texas to preclearance based on the 2011 maps.  Indeed, that’s the only real claim that the DOJ ever asserted<http://redistricting.lls.edu/files/TX/20130925%20US%20complaint.pdf> in the case.  (Note: I worked on some relatively minor briefing in the case while at DOJ, but this decision was made far before I arrived.)

Now that SCOTUS let Texas off the hook for the lingering impact of past discrimination, bail-in may be the only remaining practical deterrent for distressingly predictable bad behavior.  It won’t affect maps before 2021, but it could have an enormous impact on maps thereafter.  And though I can’t predict how the trial court will rule, I’d be shocked if there weren’t a whole lot of fight left.  The parties have to advise the court about issues left in the case by August 29.  Stay tuned.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, 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
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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