[EL] ELB News and Commentary 6/9/18

Fri Jun 8 17:23:57 PDT 2018

“GOP Lawmakers Flirt With Drastic Change To How U.S. House Map Is Drawn”<http://electionlawblog.org/?p=99425>
Posted on June 8, 2018 5:16 pm<http://electionlawblog.org/?p=99425> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/republicans-congressional-apportionment-census-hearing>

Multiple witnesses appeared in front of a House Judiciary subcommittee hearing Friday to testify in favor or against the addition of a citizenship question to the 2020 census — a Trump administration move that is roiling the civil rights community and prompting numerous lawsuits.

But the Republican lawmakers who showed up to participate in the hearing seemed most interested in speaking to Alabama Attorney General Steve Marshall, who is bringing a lawsuit seeking to alter how the U.S. congressional map is drawn to diminish the political power of immigrant-friendly states.

His lawsuit is parallel to the push for a census citizenship question, but if successful, could have just as drastic of an effect, if not more. Whereas the Trump administration has claimed it needs census citizenship data for Voting Rights Act enforcement (a claim viewed skeptically by voting rights activists), the Alabama lawsuit explicitly seeks to exclude undocumented immigrants from how U.S. congressional seats are apportioned.

Has the Alabama AG read that part of the Constitution<https://www.senate.gov/civics/constitution_item/constitution.htm#amdt_14_(1868)> reading: “.Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed”?
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The needs of California voters — not the parties — must be heeded”<http://electionlawblog.org/?p=99423>
Posted on June 8, 2018 5:11 pm<http://electionlawblog.org/?p=99423> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Howle and Rob Richie oped<http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-california-primary-voters-20180608-story.html> in the SD Union-Tribune:

We, the Independent Voter Project and FairVote, have and continue to have our different perspectives and opinions about what is the “best” way to conduct our elections. But at a fundamental level, we agree that elections should serve voters, maximize choice and broaden our representatives’ accountability.

For that reason we oppose any attempt to restore California’s old system. Its low level of competition was appalling, both in primaries and in general elections. Even when third parties and independents were on the November ballot, the vote-for-one, plurality voting system sidelined them as “spoilers” or “irrelevant.”

The biggest complaints about the nonpartisan primary system are tied to only two candidates advancing from the primary. The practical effect of only advancing two candidates, especially when several candidates are on the ballot, is that some credible candidates may not advance to November. This can leave third parties, independents and even a major party from having a candidate on the general election ballot.

The Independent Voter Project supported the top-two format, specifically, to ensure that a candidate needs a majority vote to win in November. But we should not, and do not have to, go back to the old, party-centric, and uncompetitive system to expand voter choice, provide more opportunity for third parties and independents, and advance voter-centric reform even further.

Enter the application of ranked choice voting to a primary that advances the top four candidates instead of just two. It’s simple. Double the November choices by advancing four candidates out of the primary, allow write-in candidates, and enact ranked choice voting to give voters more voice, avoid vote-splitting and ensure majority rule.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

“How California can keep advantages of the top two primary while curing its defects”<http://electionlawblog.org/?p=99421>
Posted on June 8, 2018 4:50 pm<http://electionlawblog.org/?p=99421> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Winger oped<http://www.sandiegouniontribune.com/opinion/commentary/sd-utbg-california-primary-winger-20180608-story.html> in San Diego Union-Tribune.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

Now Available: Final Versions of 3 of My Papers, on Cheap Speech, Race or Party in Redistricting and Voting Rights Cases, and the 2016 Voting Wars<http://electionlawblog.org/?p=99404>
Posted on June 8, 2018 4:11 pm<http://electionlawblog.org/?p=99404> by Rick Hasen<http://electionlawblog.org/?author=3>

Cheap Speech and What It Has Done (to American Democracy)<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>, 16 First Amendment Law Review 200 (2018)

The 2016 U.S. Voting Wars: From Bad to Worse<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257>, 26 William and Mary Bill of Rights Journal 529 (2018)

Essay: Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>, 59 William and Mary Law Review 1837 2018)
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Posted in pedagogy<http://electionlawblog.org/?cat=23>

“UPDATE: What we know about the LA County primary election ‘glitch'”<http://electionlawblog.org/?p=99415>
Posted on June 8, 2018 3:50 pm<http://electionlawblog.org/?p=99415> by Rick Hasen<http://electionlawblog.org/?author=3>

KPCC reports.<https://www.scpr.org/news/2018/06/07/83794/what-we-know-about-the-la-county-primary-election/>

KPCC has confirmed election officials at four additional counties in California know of active registered voters whose names were missing from printed poll rosters on Tuesday. Those counties include Inyo, Kings, Sonoma and Yuba. Election officials at several other counties have told KPCC they did not experience problems. The number of names in Inyo, Kings, Sonoma and Yuba counties are small: so far fewer than a dozen registered voters whose names should have appeared on the rosters are known to have been missing in error.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Judge Tymkovich, in Concurrence to Denial of En Banc Rehearing in Utah Political Party Case, Calls on SCOTUS to Revisit Political Party Regulation<http://electionlawblog.org/?p=99413>
Posted on June 8, 2018 3:20 pm<http://electionlawblog.org/?p=99413> by Rick Hasen<http://electionlawblog.org/?author=3>

Tenth Circuit Chief Judge Timothy Tymkovich, who regularly teaches election law<https://lawweb.colorado.edu/profiles/profile.jsp?id=290> (and has used our casebook), wrote this interesting statement today concurring in the denial of rehearing en banc in the Utah Republican Party case:

I concur in the court’s denial of rehearing en banc. The majority and dissent clearly laid out the dueling arguments. I write separately to note the issues raised here deserve the Supreme Court’s attention. The panel majority pledges continued faith in an oft-repeated strand of Supreme Court dicta which, as my dissent argues, has outlived its reliability. At this point, the Supreme Court’s homage to State regulation of the primary election process is little more than a nod to received wisdom. Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000); see, e.g., American Party of Tex. v. White, 415 U.S. 767, 781 (1974).

Yet circumstances are much changed. Recent Supreme Court cases like California Democratic Party v. Jones suggest this dicta does not provide the whole truth. So too, do facts on the ground. The behemoth, corrupt party machines we imagine to have caused the progressive era’s turn to primaries are now, in many respects, out of commission. In important ways, the party system is the weakest it has ever been—a sobering reality given parties’ importance to our republic’s stability. And given new evidence of the substantial associational burdens, even distortions, caused by forcibly expanding a party’s nomination process, a closer look seems in order. The time appears ripe for the Court to reconsider (or rather, as I see it, consider for the first time) the scope of government regulation of political party primaries and the attendant harms to associational rights and substantive ends.
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Posted in political parties<http://electionlawblog.org/?cat=25>, Supreme Court<http://electionlawblog.org/?cat=29>

Common Cause Wins Preliminary Injunction Against Indiana Voter Purge Program Based on Kobach-Led Cross-Check Program<http://electionlawblog.org/?p=99411>
Posted on June 8, 2018 2:54 pm<http://electionlawblog.org/?p=99411> by Rick Hasen<http://electionlawblog.org/?author=3>

From the court’s decision<https://assets.documentcloud.org/documents/4499916/Indiana-order-on-preliminary-injunction.pdf> preliminarily enjoining Indiana’s purge system as violating the NVRA:

Regarding the likelihood of success on the merits, the Court determines that Common Cause has a high likelihood of success on the merits of its claim that SEA 442 violates some of the requirements of the NVRA and threatens disenfranchisement of eligible voters.

The NVRA plainly requires that a state “shall not remove the name of a registrant from the official list of eligible voters . . . on the ground that the registrant has changed residence unless theegistrant,” (1) “confirms in writing that [they have] changed residence,” or (2) has failed to respond to a mailed notification and has not voted or appeared to vote in two federal election cycles. 52 U.S.C. § 20507(d)(1). These are simple procedural safeguards to protect registered voters, and states are required to follow these safeguards. Before its amendment by SEA 442, Indiana Code § 3-7-38.2-5(d)–(e) provided for the notice and a waiting period required by the NVRA when a voter did not confirm in writing of their change in residence or did not request to be removed from the voter rolls. SEA 442 removes this procedural safeguard. The Defendants’ reliance on the new “confidence factors” is misplaced because they do nothing to address the NVRA’s requirement in particular cases to provide for notice and a waiting period.

The act of registering to vote in a second state as determined by Crosscheck cannot constitute a written request to be removed from Indiana’s voter rolls or a confirmation in writing from the voter that they have changed their address. A voter’s act of registering to vote is simply that—a registration to vote. There is no request for removal, and the voter is not confirming for Indiana that they have had a change in residence. Notably this information is not coming from the voter but rather from Crosscheck, which may or may not be reliable. It is significant that the NVRA still requires the notice and waiting period before cancelling a voter registration when a change in address has been confirmed through the U.S. Postal Service, which might be more reliable than Crosscheck. The information provided by the U.S. Postal Service originates from the voter, yet notice and a waiting period are still required by the NVRA before cancelling the registration. 52 U.S.C. § 20507(c)(1). Because SEA 442 removes the NVRA’s procedural safeguard required in particular cases of providing for notice and a waiting period, the Court determines that Common Cause has a high likelihood of success on the merits of its claim.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

In Odd Racial Gerrymandering Case, 3-Judge Court Finds Compelling Evidence Race Predominated Drawing Georgia Districts But Denies Preliminary Injunction<http://electionlawblog.org/?p=99406>
Posted on June 8, 2018 2:36 pm<http://electionlawblog.org/?p=99406> by Rick Hasen<http://electionlawblog.org/?author=3>

Via this AJC news story <https://politics.myajc.com/news/state--regional-govt--politics/court-finds-compelling-evidence-race-based-redistricting/lBkVuwXe31sbeR6p4Lk9hK/> comes this ruling<https://politics.myajc.com/news/state--regional-govt--politics/court-finds-compelling-evidence-race-based-redistricting/lBkVuwXe31sbeR6p4Lk9hK/> from a 3-judge court issued June 1 (with one of the judges concurring the result only).

Here’s what’s odd: the court concludes that “The plaintiffs’ evidence that race predominated this redistricting process is compelling.” And the court rejects the “race or party”<https://wmlawreview.org/sites/default/files/Hasen.pdf> issue in a well written paragraph, relying on Coope<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2985755>r just as I suspected lower courts would:

No party to this lawsuit disputes that redrawing Districts 105 and 111 made them more white and less black. But to state a claim for racial gerrymandering, the plaintiffs must show more than that. They must show “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. ___, 137 S. Ct. 788, 794 (2017) (quotation omitted). A plaintiff can make that showing “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose.” Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 2488 (1995). This is particularly hard to do when the State offers a defense rooted in partisan gerrymandering, as it did here. We did not move these voters because they are black, the State tells us. We moved them because they were Democrats. And under current Supreme Court precedent, the State tells us this motive is perfectly acceptable. But if the State has “placed a significant number of voters within or without a district predominantly because of their race,” they have engaged in unconstitutional racial gerrymandering, even if the ultimate objective of  those moves was partisan advantage. Cooper v. Harris, 581 U.S. ___, 137 S. Ct. 1455, 1473 n.7 (2017) (quotation omitted and alteration adopted). This record documents that Ms. Wright had racial data available

And yet the majority concludes it can’t issue a preliminary injunction because there was not enough evidence to satisfy the standard: (“Yet we recognize that it does not rise to the level of the evidence found sufficient in Bush v. Vera, 517 U.S. 952, 116 S. Ct. 1941 (1996). There, the Supreme Court pointed to the surgical precision with which redistricters drew lines around black neighborhoods and the “extreme and bizarre” district lines that resulted.”) In a footnote they suggest plaintiffs are unlikely to succeed on the merits in proving racial gerrymandering. Elsewhere they suggest there are credibility issues which await trial. The court never considers the other preliminary injunction factors, meaning it stopped because it did not find race predominated enough (much less whether the line drawing was justified by a compelling interest).

This is just a mess.

The concurring opinion concurs in the result only, and rejects the idea that there was evidence that race predominated.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Kobach can be investigated by citizen grand jury, Kansas Court of Appeals rules”<http://electionlawblog.org/?p=99402>
Posted on June 8, 2018 9:27 am<http://electionlawblog.org/?p=99402> by Rick Hasen<http://electionlawblog.org/?author=3>

KC Star:<http://www.kansascity.com/news/politics-government/article212811854.html>

The Kansas Court of Appeals ruled Friday that a citizen grand jury can proceed with an investigation of Kansas Secretary of State Kris Kobach in Douglas County.

Steven Davis, a Democratic candidate for the Kansas House, first filed a petition in 2016 to investigate Kobach <http://www.kansas.com/news/politics-government/election/article92136447.html> on the allegation that he had intentionally failed to register voters who had tried to register through the state’s online registration system.

The Douglas County District Court rejected the petition, finding a lack of sufficient evidence to support the allegations.

In 2017, the Kansas Legislature amended the law to enable people to appeal when the petition for a grand jury is rejected, Davis said.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

--
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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