[EL] ELB News and Commentary 7/12/18

[Daniel Tokaji]

 Judge Kavanaugh on Free Speech and Campaign Finance
<http://electionlawblog.org/?p=100038>
Posted on July 12, 2018 9:01 am <http://electionlawblog.org/?p=100038> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Ken White writes
<https://www.popehat.com/2018/07/10/youll-hate-this-post-on-brett-kavanaugh-and-free-speech/>
 that Judge Kavanaugh’s opinions “are consistent with the Supreme Court’s
strong protection of free speech rights this century,” and that he has
“voted to strike down campaign financing laws and regulations under the
First Amendment.” Jonathan Adler
<https://reason.com/volokh/2018/07/11/judge-kavanaugh-and-justice-kennedys-fre>
agrees:
“Justice Kavanaugh has adopted a very speech protective record on the D.C.
Circuit, including in areas that were of particular importance to Justice
Kennedy, such as campaign-related speech.”  The Intercept
<https://theintercept.com/2018/07/12/brett-kavanaugh-supreme-court-donor-disclosure/>
offers
a critical perspective: “Kavanaugh’s appellate court decisions and public
comments suggest that he will accelerate the trend toward a political
system dominated by wealthy elites — often operating in the shadows,
without any form of disclosure.”
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100038&title=Judge%20Kavanaugh%20on%20Free%20Speech%20and%20Campaign%20Finance>
Posted in campaign finance
<http://electionlawblog.org/?cat=10>
Ways of Establishing Standing Post-Whitford
<http://electionlawblog.org/?p=100028>
Posted on July 12, 2018 8:49 am <http://electionlawblog.org/?p=100028>
by Nicholas
Stephanopoulos <http://electionlawblog.org/?author=12>

As Dan mentioned, the League of Women Voters
<https://campaignlegal.org/document/rucho-v-league-women-voters-north-carolina-district-court-middle-district-north-carolina-0>
 and Common Cause
<https://www.commoncause.org/wp-content/uploads/2018/07/Brief-of-Common-Cause-Plaintiffs-in-Response-to-Order-of-June-27-2018.pdf>
each
filed a brief yesterday explaining how *Gill v. Whitford* affects the North
Carolina partisan gerrymandering case. I wanted to flag the litigants’
subtly different (but complementary) ways of establishing standing. The
League, first, identifies a particular alternative map that beats the
enacted plan on every nonpartisan criterion and also treats the parties
perfectly symmetrically. The League then identifies a series of its members
who live in cracked or packed districts in the enacted plan, but who would
live in uncracked or unpacked districts in the alternative map. You can see
the enacted plan and the particular alternative map below, with all of
their districts shaded based on the defendants’ partisan scores.

Common Cause, in contrast, relies on a couple thousand computer-generated
maps rather than a single alternative map. It shows that, across this range
of maps, most of its plaintiffs are uncracked or unpacked most of the time.
The below chart displays the partisan score of each plaintiff’s district
under the enacted plan as well as the *distribution* of partisan scores for
the districts in which each plaintiff ends up in the computer-generated
maps.

Both of these approaches lead to the same conclusion: Specific people
living in specific places have standing to challenge the vast majority of
the enacted plan’s districts, because they were unnecessarily cracked or
packed. The point stands whether the baseline for comparison is a single
alternative map or thousands of them.
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100028&title=Ways%20of%20Establishing%20Standing%20Post-Whitford>
Posted in Uncategorized <http://electionlawblog.org/?cat=1>
Why Santa Monica Is Fighting California VRA Claim
<http://electionlawblog.org/?p=100032>
Posted on July 12, 2018 8:44 am <http://electionlawblog.org/?p=100032> by Dan
Tokaji <http://electionlawblog.org/?author=5>

LAT has this op-ed
<http://www.latimes.com/opinion/op-ed/la-oe-winterer-davis-santa-monica-20180712-story.html>
 from two members of the city council on a threatened challenge to the
city’s at-large election system, arguing that “carving the city into
districts will not meaningfully enhance local Latino political
representation.”
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100032&title=Why%20Santa%20Monica%20Is%20Fighting%20California%20VRA%20Claim>
Posted in Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Secret money funds more than 40% of outside congressional ads”
<http://electionlawblog.org/?p=100030>
Posted on July 12, 2018 8:37 am <http://electionlawblog.org/?p=100030> by Dan
Tokaji <http://electionlawblog.org/?author=5>

USA Today
<https://www.usatoday.com/story/news/politics/2018/07/12/secret-money-funds-more-than-40-percent-outside-congressional-tv-ads-midterm-elections/777536002/>
 on TV spending by groups that don’t disclose their donors in the current
congressional election cycle.
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100030&title=%E2%80%9CSecret%20money%20funds%20more%20than%2040%25%20of%20outside%20congressional%20ads%E2%80%9D>
Posted in campaign finance
<http://electionlawblog.org/?cat=10>
“Preliminary opposition requested in split-California initiative challenge.
What further action might the court take?”
<http://electionlawblog.org/?p=100025>
Posted on July 12, 2018 8:23 am <http://electionlawblog.org/?p=100025> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Horvitz & Levy
<http://www.atthelectern.com/preliminary-opposition-requested-in-split-california-initiative-challenge-what-further-action-might-the-court-take/>
on
the lawsuit filed earlier this week
<http://electionlawblog.org/?p=99981> challenging
the proposed initiative to divide California in three.  More coverage of
the case from the SF Chronicle
<https://www.sfchronicle.com/news/article/California-s-three-way-split-Lawsuit-may-take-13067886.php>
.
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100025&title=%E2%80%9CPreliminary%20opposition%20requested%20in%20split-California%20initiative%20challenge.%20What%20further%20action%20might%20the%20court%20take%3F%E2%80%9D>
Posted in direct democracy
<http://electionlawblog.org/?cat=62>
Congressional Hearings on Election Cybersecurity
<http://electionlawblog.org/?p=100023>
Posted on July 12, 2018 8:11 am <http://electionlawblog.org/?p=100023> by Dan
Tokaji <http://electionlawblog.org/?author=5>

WaPo
<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/07/12/the-cybersecurity-202-election-security-legislation-may-be-gaining-steam-in-congress/5b462e181b326b3348adde52/?utm_term=.974009376c2e>
on
yesterday’s hearings on both sides of Capitol Hill: “Momentum may finally
be building in Congress to take new action to secure the elections from
cyberthreats as the midterms approach.”  Politico
<https://www.politico.com/newsletters/morning-cybersecurity/2018/07/12/voting-machine-vendors-under-pressure-277054>
 reports that: “The top Democrat on the Senate Rules Committee [Sen.
Klobachur] wants more answers from voting machine vendors after two of the
three largest companies skipped Wednesday’s election security hearing
<https://www.rules.senate.gov/hearings/election-security-preparations-federal-and-vendor-perspectives>.”
More coverage from McClatchy
<https://www.thestate.com/news/politics-government/article214714370.html>
 and The Hill
<http://thehill.com/policy/cybersecurity/396538-senators-press-election-commission-on-cybersecurity-of-states-elections>
.
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100023&title=Congressional%20Hearings%20on%20Election%20Cybersecurity>
Posted in election administration <http://electionlawblog.org/?cat=18>, voting
technology
<http://electionlawblog.org/?cat=40>
New Filings in NC Partisan Gerrymandering Case
<http://electionlawblog.org/?p=100020>
Posted on July 12, 2018 7:53 am <http://electionlawblog.org/?p=100020> by Dan
Tokaji <http://electionlawblog.org/?author=5>

Plaintiffs in *Common Cause v. Rucho *have filed a new brief
<https://www.commoncause.org/wp-content/uploads/2018/07/Brief-of-Common-Cause-Plaintiffs-in-Response-to-Order-of-June-27-2018.pdf>
 before the three-judge district court addressing *Gill*‘s impact on both
standing and the merits of their constitutional claims.  The brief and
exhibits along with a press release are available here
<https://www.commoncause.org/press-release/common-cause-plaintiffs-urge-swift-return-of-north-carolina-partisan-gerrymandering-challenge-to-u-s-supreme-court/>
.  An excerpt from *Common Cause *plaintiffs’ response to four questions
posed by the court:

1. Gill has no impact on this Court’s prior holdings that the 2016 Plan
violates both
the First Amendment and Article I, §§ 2 and 4 of the Constitution….

2. The existing factual record is adequate to support this Court’s previous
finding of
fact that the Common Cause Plaintiffs’ votes were diluted under the 2016
Plan and its
holding that they have standing ….

3. No supplementation of the record is required to establish the *Common
Cause*
Plaintiffs’ standing …. Nevertheless, in light of the remand by the Supreme
Court, this
Court can and should make supplemental findings based on the
already-existing record in
… further support of its previous holding that the *Common Cause* Plaintiffs
have established
district-specific standing.

4. Under *Gill*, the *Common Cause* Plaintiffs have standing to assert
district-specific
vote dilution claims under the Equal Protection Clause challenging the
apportionment of
their respective individual districts [and standing to assert associational
and structural claims].

The plaintiffs have also submitted proposed findings of fact
<https://www.commoncause.org/wp-content/uploads/2018/07/130-01-2018-07-11-Exhibit-A.pdf>
and
a declaration from Jowei Chen
<https://www.commoncause.org/wp-content/uploads/2018/07/130-02-2018-07-11-Exhibit-B.pdf>
comparing
the enacted plan to alternative districts.

*Update:*  The *League of Women Voters *plaintiffs’ brief is here
<https://campaignlegal.org/document/rucho-v-league-women-voters-north-carolina-district-court-middle-district-north-carolina-0>
on
CLC’s site (along with Appendices 1
<https://campaignlegal.org/document/rucho-v-league-women-voters-north-carolina-district-court-middle-district-north-carolina-1>
, 2
<https://campaignlegal.org/document/rucho-v-league-women-voters-north-carolina-district-court-middle-district-north-carolina-2>
 & 3
<https://campaignlegal.org/document/rucho-v-league-women-voters-north-carolina-district-court-middle-district-north-carolina-3>).
The last appendix nicely shows how the packed districts in the enacted plan
compare to hypothetical alternatives.
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100020&title=New%20Filings%20in%20NC%20Partisan%20Gerrymandering%20Case>
Posted in redistricting
<http://electionlawblog.org/?cat=6>
FairVote on RCV in 2018 <http://electionlawblog.org/?p=100018>
Posted on July 12, 2018 7:30 am <http://electionlawblog.org/?p=100018> by Dan
Tokaji <http://electionlawblog.org/?author=5>

White paper available here
<http://www.fairvote.org/ranked_choice_voting_s_midterm_report>.  See also this
Elite Daily story
<https://www.elitedaily.com/p/what-is-ranked-choice-voting-it-may-benefit-diverse-candidates-9716465>
 and this FairVote post <http://www.fairvote.org/santa_clara_votes_on_stv> on
Santa Clara’s single transferable vote proposal.
[image: Share]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100018&title=FairVote%20on%20RCV%20in%202018>
Posted in alternative voting systems <http://electionlawblog.org/?cat=63>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180712/ec77a8b3/attachment.html>