[EL] ELB News and Commentary 7/9/18

Mon Jul 9 08:39:36 PDT 2018

 If You Follow Election Law Blog on Twitter . . .
<http://electionlawblog.org/?p=99959>
Posted on July 9, 2018 8:21 am <http://electionlawblog.org/?p=99959> by Dan
Tokaji <http://electionlawblog.org/?author=5>

I’ll post updates on my Twitter account (@Title52law
<https://twitter.com/Title52law>) while Rick is out this week
<http://electionlawblog.org/?p=99929>. And don’t worry, I almost never use
it for anything else.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
SCOTUS Decision Day Roundup <http://electionlawblog.org/?p=99949>
Posted on July 9, 2018 8:17 am <http://electionlawblog.org/?p=99949> by Dan
Tokaji <http://electionlawblog.org/?author=5>

President Trump is scheduled to announce his nominee in prime time tonight,
with Amy Coney Barrett, Brett Kavanaugh, Raymond Kethledge, and Thomas
Hardiman the four reported finalists.  Coverage and analysis from 538
<https://fivethirtyeight.com/features/how-4-potential-nominees-would-change-the-supreme-court/>
, NYT
<https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-nominee.html?rref=collection%2Fsectioncollection%2Fpolitics>
, Politico
<https://www.politico.com/story/2018/07/09/trumps-supreme-court-pick-thomas-hardiman-and-brett-kavanaugh-702297>
, RCP
<https://www.realclearpolitics.com/articles/2018/07/06/ranking_trumps_supreme_court_choices.html>
, WSJ
<https://www.wsj.com/articles/trump-weighs-supreme-court-candidates-as-decision-nears-1531086183>
, WaPo
<https://www.washingtonpost.com/politics/courts_law/trump-weighs-top-picks-for-supreme-court-amid-last-minute-maneuvering/2018/07/08/4a65b1b8-82d3-11e8-8553-a3ce89036c78_story.html?utm_term=.c77658e0cd91>
.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
Trey Grayson on Automatic Voter Registration
<http://electionlawblog.org/?p=99957>
Posted on July 9, 2018 8:07 am <http://electionlawblog.org/?p=99957> by Dan
Tokaji <http://electionlawblog.org/?author=5>

The former Kentucky Secretary of State (2004-11) and NASS president
(2009-10), a Republican, offers his thoughts
<https://www.cincinnati.com/story/opinion/2018/07/09/opinion-ohio-should-adopt-automated-voter-registration-verification/751148002/>:
“We can all agree that outdated voter rolls are a problem that must be
addressed to safeguard the integrity of our elections. Automated Voter
Registration Verification is a nonpartisan solution that ensures that voter
lists are accurate and that eligible voters can participate in our
elections.”
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Posted in voter registration <http://electionlawblog.org/?cat=37>
Tokaji on Abbott v. Perez: Bad Reading Invites Discriminatory Redistricting
<http://electionlawblog.org/?p=99951>
Posted on July 9, 2018 7:49 am <http://electionlawblog.org/?p=99951> by Dan
Tokaji <http://electionlawblog.org/?author=5>

My thoughts on the Take Care Blog
<https://takecareblog.com/blog/abbott-v-perez-bad-reading-invites-discriminatory-redistricting>
.
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Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting Rights
Act <http://electionlawblog.org/?cat=15>
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 9, 2018 7:45 am <http://electionlawblog.org/?p=99927> by Rick
Hasen <http://electionlawblog.org/?author=3>

[Bumping to the top.]

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>
“The Supreme Court vs. Democracy” <http://electionlawblog.org/?p=99945>
Posted on July 9, 2018 7:27 am <http://electionlawblog.org/?p=99945> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Ezra Klein at Vox
<https://www.vox.com/2018/7/9/17546170/supreme-court-donald-trump-nominee>:

[T]he Supreme Court’s conservative bloc doesn’t just reflect the outcomes
of America’s undemocratic electoral rules; it is writing and, in some
cases, rewriting them, to favor the Republican Party — making it easier to
suppress votes, simpler for corporations and billionaires to buy elections,
and legal for incumbents to gerrymander districts to protect and enhance
their majorities.

The Supreme Court has always been undemocratic. What it’s becoming is
something more dangerous: anti-democratic.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
Eighth Circuit Opinion in Ferguson VRA Case
<http://electionlawblog.org/?p=99942>
Posted on July 9, 2018 7:20 am <http://electionlawblog.org/?p=99942> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Judge Kelly’s opinion
<http://electionlawblog.org/wp-content/uploads/FF-Circuit-Court-Opinion-2018.pdf>
 in *Missouri St. Conf. NAACP v. Ferguson-Florissant Sch. Dist*.  affirms
the district court’s decision <http://electionlawblog.org/?s=ffsd&x=0&y=0> that
the school district’s at-large elections violate Section 2 of the Voting
Rights Act.  The Eighth Circuit concludes that African American voters can
make a Section 2 claim even if they’re a numerical majority of the voting
age population (pp. 7-9). It also affirms the district court’s conclusion
that plaintiffs had proven white bloc voting, including its finding that
“special circumstances” in 2014 and 2015 explain black-preferred candidates
success in those years (pp. 11-16).
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
Grofman on Proving Partisan Gerrymandering
<http://electionlawblog.org/?p=99939>
Posted on July 9, 2018 6:56 am <http://electionlawblog.org/?p=99939> by Dan
Tokaji <http://electionlawblog.org/?author=5>

In Monkey Cage. <https://wapo.st/2KWX8TW>  Citing recent racial and
partisan gerrymandering decisions, he concludes:

Many experts, including me, had hoped the Supreme Court would declare a
standard for finding districts had been unconstitutionally gerrymandered
for partisan advantage that looked at effects statewide. A
district-specific standard is the next best thing, and completely
manageable, if we adapt tools from the cases described above.
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Posted in redistricting <http://electionlawblog.org/?cat=6>
“Battle Lines Drawn Over the Census Citizenship Question: Challenges in
Federal Courts Before the Count Begins”
<http://electionlawblog.org/?p=99936>
Posted on July 7, 2018 12:41 pm <http://electionlawblog.org/?p=99936> by Rick
Hasen <http://electionlawblog.org/?author=3>

Jeff Wice writes.
<http://rockinst.org/blog/battle-lines-drawn-over-the-census-citizenship-question/>
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
Michigan Supreme Court, with 5 Justice Republican-backed Majority, Will
Decide Whether Citizen Redistricting Measure Can Go on the Ballot
<http://electionlawblog.org/?p=99933>
Posted on July 6, 2018 1:21 pm <http://electionlawblog.org/?p=99933> by Rick
Hasen <http://electionlawblog.org/?author=3>

The Michigan Supreme Court’s order:
<http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2017-2018/157925/157925_70_MSC%20order_OA.pdf>

On order of the Court, the motions for leave to file briefs amicus curiae
and the motion for leave to file response to amicus curiae brief are
GRANTED. The application for leave to appeal the June 7, 2018 judgment and
order of the Court of Appeals is considered, and it is GRANTED. At oral
argument the parties shall address whether the proposal at issue is
eligible for placement on the November 2018 general election ballot as a
voter-initiated constitutional amendment under Const 1963, art 12, § 2, or
whether it is a revision to the constitution and therefore is ineligible
for placement on the ballot.

We direct the Clerk to schedule the oral argument in this case for July 18,
2018 at 9:30 a.m. The total time allowed for oral argument shall be 60
minutes: 30 minutes for plaintiffs, and 30 minutes for defendants and
intervening defendants, to be divided at their discretion. MCR 7.313(B)(1)
and 7.314(B)(1).

Bridge:
<https://www.bridgemi.com/public-sector/michigan-justices-backed-opponents-redistricting-proposal-may-decide-its-fate>

On the morning of April 17, the campaigns of two Michigan Supreme Court
justices facing reelection this year held a fundraiser inside the
headquarters of the Michigan Chamber of Commerce.

Eight days later, a committee that uses the chamber’s address and has so
far received $185,000 in support from the chamber this year filed a lawsuit
challenging a ballot effort to overhaul how Michigan draws legislative
districts. It’s a suit that may soon land before the two justices
benefitting from the April 17 fundraiser ‒ Kurtis Wilder and Elizabeth
Clement ‒ and their five colleagues on the state Supreme Court.

(H/t Jim Malewitz <https://twitter.com/Jmalewitz/status/1015327517987819521>
)
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Posted in redistricting <http://electionlawblog.org/?cat=6>
Today’s Must-Read: Ned Foley on Justice Kennedy and Voting Rights
<http://electionlawblog.org/?p=99931>
Posted on July 6, 2018 9:00 am <http://electionlawblog.org/?p=99931> by Rick
Hasen <http://electionlawblog.org/?author=3>

Deep, insightful post from Ned
<http://www.scotusblog.com/2018/07/voting-rights-in-justice-kennedys-constitution/>
 at SCOTUSBlog:

Justice Anthony Kennedy’s jurisprudence on voting rights must be understood
in the context of his overall constitutional philosophy. While certainly
appreciative of the role that democratic elections play as part of the
republican form of government established by the Constitution — see, for
example, his concurrences in *U.S. Term Limits, Inc. v. Thorton
<https://www.law.cornell.edu/supct/html/93-1456.ZO.html>* (1996) and *Cook
v. Gralike <https://www.law.cornell.edu/supct/html/99-929.ZO.html>* (2001)
— Kennedy did not view voting rights as having a paramount status within
the pantheon of constitutional rights.

Nor did Kennedy consider the protection of voting rights as legitimating
the rest of the Constitution. Rather, he saw voting rights as important
insofar as they were part of the Constitution. For him, it was the priority
of the Constitution itself that gave voting rights their significance. The
hierarchy of authority, as he saw it, ran from the Constitution to
democracy, not the other way around.

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

Daniel P. Tokaji

Associate Dean for Faculty | Ebersold Professor of Constitutional Law

The Ohio State University | Moritz College of Law

55 W. 12th Ave. | Columbus, OH 43210

614.292.6566 | tokaji.1 at osu.edu

On Fri, Jul 6, 2018 at 10:53 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

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