[EL] ELB News and Commentary 6/19/18

[Rick Hasen]

“9-0 ruling masks deep division on gerrymandering at Supreme Court”<http://electionlawblog.org/?p=99637>
Posted on June 18, 2018 9:06 pm<http://electionlawblog.org/?p=99637> by Rick Hasen<http://electionlawblog.org/?author=3>

Joan Biskupic<https://www.cnn.com/2018/06/18/politics/gerrymandering-roberts-kagan-supreme-court/index.html> for CNN.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Judge strikes down Kansas voter law, orders Kobach to take classes”<http://electionlawblog.org/?p=99635>
Posted on June 18, 2018 9:03 pm<http://electionlawblog.org/?p=99635> by Rick Hasen<http://electionlawblog.org/?author=3>

Wichita Eagle:<http://www.kansas.com/news/politics-government/article213415624.html>

Kobach’s office said he will appeal the ruling. “Judge Robinson is the first judge in the country to come to the extreme conclusion that requiring a voter to prove his citizenship is unconstitutional. Her conclusion is incorrect, and it is inconsistent with precedents of the U.S. Supreme Court,” his office said in a statement.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Will the Court Ever Address Partisan Gerrymandering?”<http://electionlawblog.org/?p=99633>
Posted on June 18, 2018 5:28 pm<http://electionlawblog.org/?p=99633> by Richard Pildes<http://electionlawblog.org/?author=7>

My New York Times op-ed on today’s redistricting decisions is now available here<https://www.nytimes.com/2018/06/18/opinion/will-the-court-ever-address-gerrymandering.html> (as most readers know, the NYT chooses its own title for these).  Here are a couple excerpts:

Among major democracies, only in the United States are self-interested politicians given the exclusive power<https://books.google.com/books/about/Redistricting_in_Comparative_Perspective.html?id=ZcnsCrt1L0EC> to design election districts for themselves and their allies. Other countries lodge this power with independent commissions. In the absence of such institutions, the pressure for courts to impose constitutional constraints on partisan gerrymandering becomes powerful, particularly as the manipulation of electoral districts for partisan advantage has become more brazen, more extreme, more effective and more consequential. . . .

But the court’s rejection of statewide challenges in the Wisconsin case will make gerrymandering litigation more complex. Instead of being able to rely primarily on data showing the overall partisan advantages of a plan, challengers will have to prove how and why specific districts were drawn in the way they were.

Redrawing district maps is typically done on a computer by an expert in consultation with a few key legislators. Hundreds of changes to the map are explored behind closed doors. Challengers then have to try to reconstruct how any particular district ended up the way it did; in other words, why certain areas were left in or out. This can mean lengthy trials and arguments in court teasing out the reasons particular choices were made. . . .

Looming in the wings, and probably to be heard in the next term is the case from North Carolina, which will squarely test how aggressively courts will be in policing partisan manipulation of district design. We are likely to find out then whether it really is legal for legislatures to move voters in or out of a district based on their voting histories for no legitimate purpose other than the party in charge of the redistricting is seeking to gain partisan advantage. . . .

[U]ntil we shift to a more sensible system than having partisan state legislatures create election districts, judicial constraints would be welcome. Monday’s decisions reject one means of challenging partisan gerrymanders under the Constitution, but the court is soon going to be faced with other approaches.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Supreme Court Avoids an Answer on Partisan Gerrymandering”<http://electionlawblog.org/?p=99631>
Posted on June 18, 2018 5:12 pm<http://electionlawblog.org/?p=99631> by Rick Hasen<http://electionlawblog.org/?author=3>

Adam Liptak reports<https://www.nytimes.com/2018/06/18/us/politics/supreme-court-wisconsin-maryland-gerrymander-vote.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=10&pgtype=sectionfront> for the NYT:

But the decisions were a setback for critics of gerrymandering, who had hoped that the Supreme Court would transform American democracy by subjecting to close judicial scrutiny the way districts have been redrawn to accommodate the preferences of the party in power. When the dust settled Monday, the status quo remained in place.

The court’s decision to duck rather than decide the central issues turned on Justice Anthony M. Kennedy, said Richard L. Hasen, who teaches election law at the University of California, Irvine.

In 2004, Justice Kennedy wrote in a concurring opinion<https://www.law.cornell.edu/supct/html/02-1580.ZC.html> that he might consider a challenge to partisan gerrymandering if there were “a workable standard” to decide when such tactics crossed a constitutional line. But he said he had not seen such a standard.

Professor Hasen said he is apparently still looking.

“Justice Hamlet lives,” he said. “After a decade and a half of ruminating on how to separate permissible from impermissible consideration of party in redistricting, Justice Kennedy has decided he — or his successor — needs still more time for rumination.”

The question may return to the court soon enough. A new challenge<https://www.nytimes.com/2018/01/18/us/politics/supreme-court-north-carolina-gerrymandering.html>, from North Carolina, is waiting in the wings and could allow the justices to try again to find a standard that could allow constitutional challenges to voting maps warped by politics.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Federal District Court Finds One Person, One Vote Rule Does Not Apply to Large Texas Groundwater District<http://electionlawblog.org/?p=99628>
Posted on June 18, 2018 4:22 pm<http://electionlawblog.org/?p=99628> by Rick Hasen<http://electionlawblog.org/?author=3>

Read the opinion<http://electionlawblog.org/wp-content/uploads/eaa-opov.pdf> in LULAC v. EAA.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Supreme Court Leaves ‘Wild West’ Of Partisan Gerrymandering In Place — For Now”<http://electionlawblog.org/?p=99626>
Posted on June 18, 2018 3:49 pm<http://electionlawblog.org/?p=99626> by Rick Hasen<http://electionlawblog.org/?author=3>

Nina Totenberg reports<https://www.npr.org/2018/06/18/606017026/supreme-court-punts-on-partisan-gerrymandering-leaving-status-quo-in-place> for NPR.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Is NC partisan gerrymander case up next after Supreme Court ‘punts’ on Wisconsin and Maryland?”<http://electionlawblog.org/?p=99622>
Posted on June 18, 2018 3:46 pm<http://electionlawblog.org/?p=99622> by Rick Hasen<http://electionlawblog.org/?author=3>

McClatchy reports.<http://www.mcclatchydc.com/news/politics-government/article213376004.html>
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Breaking: Federal District Court Sides with ACLU over SOS Kris Kobach in Proof of Citizenship Voting Case<http://electionlawblog.org/?p=99605>
Posted on June 18, 2018 3:01 pm<http://electionlawblog.org/?p=99605> by Rick Hasen<http://electionlawblog.org/?author=3>

Given how things went at trial (Kobach got held in contempt at one point—though had the fine paid off with a government credit card), this is no surprise. In addition to injunctive and declaratory relief, “the Court imposes sanctions responsive to Defendant’s repeated and flagrant violations of discovery and disclosure rules.”

This is a complete victory for the ACLU in a careful, detailed opinion by a Republican-appointed judge that is unlikely to be overturned on appeal. A well deserved loss for Kris Kobach.

Here is the 118-page opinion.<http://electionlawblog.org/wp-content/uploads/fish-kobach-decision.pdf>

The judge rejected really questionable evidence put forward by Kansas and its experts about the extent of noncitizen voter registration. Below I have some quotes rejecting the key testimony of charlatan Hans von Spakovsky and Professor Jesse Richman. But the bottom line is the court found Kansas put forward no evidence of a “substantial” amount of noncitizen voter registration to justify the requirement that people provide documentary proof of citizenship before they can vote in federal elections. Here is the key conclusion on that point:

For the reasons already explained, the Court finds no credible evidence that a substantial number of noncitizens registered to vote under the attestation regime. The only information about Kansas registration rates relied upon by Mr. von Spakovsky was provided to him by Mr Caskey, and the Court has already evaluated that underlying data in more detail than Mr. vo Spakovsky, who simply accepted the numbers as true. His generalized opinions about the rate of noncitizen registration were likewise based on misleading evidence, and largely based on hi preconceived beliefs about this issue, which has led to his aggressive public advocacy of strict proof of citizenship laws. The Court likewise does not find Dr. Richman’s opinion as to the numbers of noncitizen registration carry weight given the numerous methodological flaws set forth in the Court’s findings of fact.

That leaves Defendant’s empirical evidence of noncitizen registration. He has submitted evidence of 129 instances of noncitizen registration or attempted registration since 1999, bu looking closely at those records reduces that number to 67 at most. Even these 67 instances are liberal estimate because it includes attempted registrations after the DPOC law was passed, a larger universe than what the Tenth Circuit asked the Court to evaluate. Only 39 successfully registered to vote. And several of the individual records of those who registered or attempted to register show errors on the part of State employees, and/or confusion on the part of applicants. They do not evidence intentional fraud…. Moreover, the Court is unable to find empirical evidence that a substantial number of noncitizens successfully registered to vote under the attestation regime….

Defendant insists that these numbers are just “the tip of the iceberg.” This trial was his opportunity to produce credible evidence of that iceberg, but he failed to do so. The Court will not rely on extrapolated numbers from tiny sample sizes and otherwise flawed data.

The court also found there were less draconian ways to insure that noncitizens do not register and vote besides requiring documentary proof of citizenship. It found the documentary proof of citizenship requirement to be quite burdensome: “The Court determines that the magnitude of potentially disenfranchised voters impacted by the DPOC law and its enforcement scheme cannot be justified by the scant evidence of noncitizen voter fraud before and after the law was passed, by the need to ensure the voter rolls are accurate, or by the State’s interest in promoting public confidence in elections.”

Finally, the court sanctioned Kobach himself for not knowing the rules of evidence:  “It is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules. Therefore, the Court finds that an additional sanction is appropriate in the form of Continuing Legal Education.” Ouch!

Quotes about expert testimony of Von Spakovsky and Prof. Richman

“The Court gives little weight to Mr. von Spakovsky’s opinion and report because they are premised on several misleading and unsupported examples of noncitizen voter registration, mostly outside the State of Kansas. His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the Court that Mr. von Spakovsky testified as an advocate and not as an objective expert witness…. Mr. von Spakovsky wrote an editorial in 2011, alleging that 50 noncitizens from Somalia voted in an election in Missouri. Yet, nearly one year earlier, the Missouri Court of Appeals issued an opinion, Royster v. Rizzo, affirming the trial court’s finding that no fraud had taken place in that Missouri election. While he testified that he was not aware of the court opinion at  the time he wrote the op-ed, Mr. von Spakovsky admitted that he never published a written retraction of his assertion about Somalian voters illegally participating in that election. The record is replete with further evidence of Mr. von Spakovsky’s bias. Dr. Minnite testified to, and Mr. von Spakovsky’s CV demonstrates, his longtime advocacy of voting restrictions….As stated above, the Court gives little weight to Mr. von Spakovsky’s opinions. While his lack of academic background is not fatal to his credibility in this matter, the lack of academic rigor in his report, in conjunction with his clear agenda and misleading statements, render his opinions unpersuasive.”

“Indeed, Dr. Richman’s published findings about noncitizen voting can be accounted for entirely by citizenship misreporting. In fact, a group of approximately 200 political scientists signed an open letter criticizing Richman’s work on essentially the same grounds. …The Court finds Dr. Richman’s testimony and report about the methodology and basis for concluding that a statistically significant number of noncitizens have registered to vote in Kansas, are confusing, inconsistent, and methodologically flawed. Most importantly, his refusal to opine as to the accuracy of any one estimate undercuts this Court’s ability to determine that any one of his wildly varying estimates is correct.”

[This post has been updated.]
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“US Supreme Court ‘Punts’ On Wisconsin Gerrymandering Case”<http://electionlawblog.org/?p=99603>
Posted on June 18, 2018 2:42 pm<http://electionlawblog.org/?p=99603> by Rick Hasen<http://electionlawblog.org/?author=3>

Wisconsin Public Radio<https://www.wpr.org/us-supreme-court-punts-wisconsin-gerrymandering-case> reports.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Participating in ACS’s “The 2017-2018 Supreme Court Review” on June 28<http://electionlawblog.org/?p=99601>
Posted on June 18, 2018 2:29 pm<http://electionlawblog.org/?p=99601> by Rick Hasen<http://electionlawblog.org/?author=3>

Looking forward to this i<https://events.acslaw.org/rsvp?id=a0Y0f00000GVFhZEAX>n DC.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Three reasons to (cautiously) celebrate Supreme Court on gerrymandering”<http://electionlawblog.org/?p=99599>
Posted on June 18, 2018 2:24 pm<http://electionlawblog.org/?p=99599> by Rick Hasen<http://electionlawblog.org/?author=3>

Josh Douglas<https://www.cnn.com/2018/06/18/opinions/supreme-court-kicks-gerrymandering-can-down-road-douglas/index.html> for CNN Opinion.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Uncategorized<http://electionlawblog.org/?cat=1>


“Nonnonjusticiability”<http://electionlawblog.org/?p=99597>
Posted on June 18, 2018 1:54 pm<http://electionlawblog.org/?p=99597> by Rick Hasen<http://electionlawblog.org/?author=3>

Joey Fishkin:<https://balkin.blogspot.com/2018/06/nonnonjusticiability.html>

If you read Justice Kennedy’s opinion in Vieth<https://www.oyez.org/cases/2003/02-1580> in 2004 together with the Court’s opinions this morning in Gill v. Whitford<https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf> and Benisek<https://www.supremecourt.gov/opinions/17pdf/17-333_b97c.pdf>, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.”  The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Whitford’s Hints of Promise<http://electionlawblog.org/?p=99595>
Posted on June 18, 2018 12:56 pm<http://electionlawblog.org/?p=99595> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

The Court’s decision today holding that the plaintiffs in Gill v. Whitford have not proven their standing is disappointing. I’ll identify what I think are the weaknesses in the Court’s reasoning in a subsequent post. Here, though, I want to emphasize the significant signs of promise in the Court’s decision. First, the Court clearly left the door open to future partisan gerrymandering litigation. Second, the Court accepted, at least tacitly, the plaintiffs’ primary theory of gerrymandering: that it dilutes the votes of supporters of the disadvantaged party by cracking and packing these voters. And third, the Court’s standing requirements easily can be satisfied by future litigants—and will soon be satisfied by the Whitford plaintiffs.

Starting with the first point, Wisconsin and its amici had urged the Court to hold that partisan gerrymandering claims are inherently nonjusticiable—or that even if they may be brought, individual voters may not bring them. The Court, however, didn’t say a word about the intrinsic nonjusticiability of gerrymandering. The Court, that is, didn’t do the one thing that would have definitively terminated all gerrymandering litigation. Nor did the Court rule that individual voters may not bring gerrymandering claims (on the ground that no voter has the right to be placed in any particular type of district). To the contrary, the Court affirmatively confirmed the standing of a great many voters: all those residing in unnecessarily cracked or packed districts.

Second, while the Court purported only to address standing, it implicitly recognized the coherence (if not the merit) of the Whitford plaintiffs’ vote dilution theory. The Court had no choice but to engage with the theory’s substance because who has standing necessarily depends on what a suit is all about. And regarding what a vote dilution suit is all about, the Court agreed with the plaintiffs that its essence is the cracking and packing of the disadvantaged party’s supporters. “Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted,” the Court stated in a key passage. “That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district.” Or again: “Four of the plaintiffs in this case . . . . alleged that Act 43 ‘dilut[ed] the influence’ of their votes as a result of packing or cracking in their legislative districts.”

It’s important not to overstate this point. The Court did not hold that vote dilution is a justiciable theory of partisan gerrymandering. Nor did the Court announce any kind of standard for a claim of partisan vote dilution. Nevertheless, the Court plainly understood what vote dilution is and how it operates to enhance one party’s power and to diminish the electoral influence of the opposition. If not exactly a great leap forward, this is still non-trivial progress in the fight against gerrymandering.

Third, and most importantly, the Court’s new standing requirements for vote dilution plaintiffs should be easy to satisfy in many cases (including Whitford itself). The Court ruled that vote dilution plaintiffs (though not necessarily other kinds of gerrymandering plaintiffs) must “live in districts where [voters] like them have been packed or cracked.” Packing and cracking, according to the Court, are relative concepts, not absolute ones. A district’s own partisan composition, in other words, is not enough to establish packing or cracking. Rather, the district’s makeup must be compared to that of a benchmark district (for example, a district in the same region in a prior map, a demonstration map, or a computer-simulated map). Only if the actual district is more packed or cracked than the benchmark district does a resident of the actual district have standing. In this case alone, the resident’s vote “carr[ies] less weight than it would carry in another, hypothetical district.”

In suits (like Whitford) where intentional, severe, and unjustified vote dilution has occurred, these new standing criteria should not be difficult to meet. Packed or cracked districts must be identified. Well, there are dozens of such districts in Wisconsin’s state house map, and they are necessarily ubiquitous in any other plan where a party’s votes have been significantly diluted. Less packed or cracked alternatives to these districts must also be established. They too are not hard to find if the challenged map is really a gerrymander. An earlier plan, a plan drawn by the plaintiffs, and/or a plan produced by a computer algorithm all may contain districts in the same areas as the plaintiffs’ districts that would enable the plaintiffs’ votes to carry more weight.

What will happen next in Whitford, then, is that the plaintiffs will amend their complaint to add more voters and to explain how their districts have been packed or cracked relative to alternative districts. Because packing and cracking took place throughout Wisconsin’s state house map, plaintiffs with standing will be easy to locate in every corner of the plan. Thus even if a subsequent remedy is limited to the districts where voters with standing live, this will not amount to a severe restriction. Curing the vote dilution in these districts will be quite similar to fixing the problem statewide.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Justice Kennedy Still Won’t Rule on Gerrymandering”<http://electionlawblog.org/?p=99591>
Posted on June 18, 2018 10:07 am<http://electionlawblog.org/?p=99591> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/06/anthony-kennedy-wont-rule-on-gerrymandering.html> for Slate. It begins:

Justice Hamlet lives.

For years, those who’d like the Supreme Court to rein in partisan gerrymanders have been teeing up cases with various theories to try to get Justice Anthony Kennedy, the swing Justice, to agree that sometimes the drawing of district lines to favor Republicans or Democrats goes too far. In 2004, Kennedy famously wrote an opinion<https://scholar.google.com/scholar_case?case=16656282825028631654&hl=en&as_sdt=6&as_vis=1&oi=scholarr> that both kept the door open for future redistricting challenges but also rejected a variety of legal theories that had been paraded before him like beauty pageant contestants<https://www.theatlantic.com/politics/archive/2017/06/justice-kennedys-beauty-pageant/530790/> for separating permissible from impermissible consideration of political party in drawing congressional and state legislative district lines. Since then, plaintiffs have tried to get new cases before the court for Kennedy to make up his mind.

On Monday, the Supreme Court ducked the issue again, after years of plaintiffs litigating cases in Wisconsin and Maryland in hopes of prompting a larger ruling. The court sent Gill v. Whitford<https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf>, the Wisconsin case, back for partisan gerrymandering challenges to be litigated on a district-by-district, rather than statewide, basis. According to the opinion, plaintiffs had no “standing” to assert a statewide injury. The court also said preliminary relief was not proper in Benisek v. Lamone<https://www.supremecourt.gov/opinions/17pdf/17-333_b97c.pdf>, the Maryland case, sending it back to the lower court to determine whether relief is warranted when the case is fully complete.

Although people will focus on the court’s ducking of the issue, what’s really going on is that two of the court’s savviest justices on the right and left, Chief Justice John Roberts and Justice Elena Kagan, are continuing a battle for the soul of Justice Kennedy on the question of politics in redistricting, and Kennedy, who apparently is not leaving the court anytime soon, watches, broods, and stays silent.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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