[EL] ELB News and Commentary 6/21/18

[Rick Hasen]

Texas Redistricting Cases Could Be Issued as Early as Tomorrow, and Justice Thomas or Alito Could Well Have the Court’s Opinion<http://electionlawblog.org/?p=99702>
Posted on June 21, 2018 8:26 am<http://electionlawblog.org/?p=99702> by Rick Hasen<http://electionlawblog.org/?author=3>

The Supreme Court issued four opinions today, and signalled a rare Friday opinion release tomorrow with 10 cases remaining. The Court is likely to finish its term and release of the remaining opinions some time next week.

Only three Justices<https://twitter.com/LeahLitman/status/1009803881386110977> have not yet written for the April sitting—the Chief Justice, and Justices Thomas and Alito. The travel ban case is pending, and I expect the Chief Justice will have that opinion if he is in the majority.

That means it is likely, but not certain, that Justices Alito or Thomas have the Texas redistricting cases if there is a majority opinion. That would likely not be good news for voting rights plaintiffs.

But this term has been a strange one full of punts and unusual configurations<https://twitter.com/AdamSFeldman/status/1009814470833524736> of Justices. So we will have to wait and see.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Crosscheck: “Security Concerns Stall Kris Kobach’s Controversial Voter Tracking Program in Kansas”<http://electionlawblog.org/?p=99700>
Posted on June 21, 2018 8:17 am<http://electionlawblog.org/?p=99700> by Rick Hasen<http://electionlawblog.org/?author=3>

KMUW:<http://kmuw.org/post/security-concerns-stall-kris-kobach-s-controversial-voter-tracking-program-kansas>

A massive voter-tracking program run by Kansas Secretary of State Kris Kobach — which purports to help states keep voter rolls accurate — has halted operations over concerns about its own accuracy and security.

The Interstate Crosscheck system, which Kobach’s office promised would be working ahead of the 2018 elections, has been sidelined while the U.S. Department of Homeland Security conducts a security assessment following the unintended release of hundreds of voters’ private information.

Each year, the Crosscheck program compares voter registration lists from more than two dozen states, searching for duplicate names. The stated goal is to prevent people from voting in more than one state and eliminate voter fraud — although being registered to vote in two states is not illegal. Crosscheck then sends a list of duplicate names to each participating state, the first step in a long process of voter list maintenance.

Crosscheck, at one time, held data on half the registered voters in the country, and critics have warned that the program isn’t keeping the voter data safe. Crosscheck recently came under fire for a data security breach<https://www.propublica.org/article/crosscheck-the-voter-fraud-commission-wants-your-data-keep-it-safe> that made public the names, dates of birth and partial Social Security numbers of 945 Kansas voters. Others say Crosscheck is being used as a tool for voter suppression.<https://www.brennancenter.org/sites/default/files/publications/Voter_Purges_The_Risks_in_2018.pdf>

On Tuesday, the system came under further criticism when the ACLU of Kansas filed a federal class-action lawsuit<https://www.aclukansas.org/sites/default/files/field_documents/final_moore_v._kobach_filed_complaint.pdf> charging that Kobach’s “reckless maintenance” of Crosscheck violated voters’ constitutional right to privacy. The suit seeks the removal of Kansas from Crosscheck until proper cyber-security safeguards are put in place.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


Colorado: “After federal judge’s ruling, all Colorado campaign finance complaints will be vetted by secretary of state’s office”<http://electionlawblog.org/?p=99698>
Posted on June 21, 2018 8:14 am<http://electionlawblog.org/?p=99698> by Rick Hasen<http://electionlawblog.org/?author=3>

The Denver Post reports.<https://www.denverpost.com/2018/06/20/colorado-campaign-finance-complaint-rules/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Voter fraud much greater threat than election hacking, Missouri’s Jay Ashcroft says”<http://electionlawblog.org/?p=99696>
Posted on June 21, 2018 8:12 am<http://electionlawblog.org/?p=99696> by Rick Hasen<http://electionlawblog.org/?author=3>

KC Star:<https://www.kansascity.com/news/politics-government/article213550254.html>

“While these are serious allegations, it is vitally important to understand that after two years of investigation there is no credible — and I can strike credible and just put evidence — there is no evidence that these incidents caused a single vote or a single voter registration to be improperly altered during the 2016 election cycle,” Ashcroft said. “It was not our votes or our election systems that were hacked — it was the people’s perception of our elections.”

This is not to say U.S. elections are perfect, that there was no fraud or that there was no unlawful corruption of votes, he said.

“The evidence indicates that voter fraud is an exponentially greater threat than hacking of our election equipment,” he said.

Ashcroft cited a 2010 Missouri House primary election that was determined by a single vote. Missouri Rep. John Joseph Rizzo’s relatives later admitted to illegally claiming<http://www.kansascity.com/news/local/article322208/Missouri-Rep.-John-Joseph-Rizzo%E2%80%99s-relatives-admit-to-voter-fraud.html> a Kansas City address. Their two votes could have changed the results of the primary.

Rizzo said at the time that he wasn’t aware of the illegal votes.

Ashcroft made voter fraud, and the implementation of a photo ID requirement to vote to prevent fraud, a cornerstone of his successful 2016 campaign for secretary of state. The Rizzo race was an oft-cited example of the type of fraud he said exists in Missouri elections.

His critics are quick to note that Rizzo’s relatives committed registration fraud, not voter impersonation fraud, and thus would not have been thwarted by a photo ID requirement to vote. There has never been a reported case of voter impersonation fraud in Missouri.

Ashcroft’s testimony came two days after a federal judge struck down a Kansas law<http://www.kansascity.com/news/politics-government/article213415624.html> intended to prevent voter fraud by requiring people to provide proof of citizenship, such as a passport or birth certificate, before they could register to vote.

In a three-week trial earlier this year, the judge found, Kansas Secretary of State Kris Kobach failed to show convincing evidence of voter fraud. She also found that the law disproportionately affects rightful voters.

Senate Democrats at the hearing took issue with Ashcroft’s assertion that voter fraud was an “exponentially” bigger threat to election security than hacking.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


2018 Supplement to Election Law: Cases and Materials, Sixth Edition<http://electionlawblog.org/?p=99693>
Posted on June 21, 2018 8:06 am<http://electionlawblog.org/?p=99693> by Rick Hasen<http://electionlawblog.org/?author=3>

Announcement from Carolina Academic Press:

2018 Supplement to Election Law: Cases and Materials
Sixth Edition
by Daniel Hays Lowenstein<https://cap-press.us6.list-manage.com/track/click?u=0238b083e9&id=dde9424d5a&e=3832882fab>, Richard L. Hasen,<https://cap-press.us6.list-manage.com/track/click?u=0238b083e9&id=2b97ab18a3&e=3832882fab> Daniel P. Tokaji<https://cap-press.us6.list-manage.com/track/click?u=0238b083e9&id=b3b7f4ba11&e=3832882fab>, Nicholas Stephanopoulos<https://cap-press.us6.list-manage.com/track/click?u=0238b083e9&id=39df346ffa&e=3832882fab>

This 2018 Supplement is up-to-date through the end of the Supreme Court’s October 2017 term. The new material includes coverage of cases on partisan gerrymandering, voter purges, political apparel at the polling place, and Voting Rights Act challenges to redistricting.

Supplement material will be available free of charge to instructors who have assigned the casebook to their course. Students may also access the supplement material for free. Please visit the casebook’s website to access the material beginning August 1, 2018. <https://cap-press.us6.list-manage.com/track/click?u=0238b083e9&id=b8792cab45&e=3832882fab>
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Posted in pedagogy<http://electionlawblog.org/?cat=23>


“The Supreme Court can’t dodge responsibility on gerrymandering forever”<http://electionlawblog.org/?p=99690>
Posted on June 21, 2018 7:55 am<http://electionlawblog.org/?p=99690> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo editorial.<https://www.washingtonpost.com/opinions/the-supreme-court-cant-dodge-responsibility-on-gerrymandering-forever/2018/06/20/c56eba2e-73f8-11e8-805c-4b67019fcfe4_story.html?utm_term=.e8fdc64777f4&wpmk=MK0000200>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Kobach Finally Tells Clerks To Comply With Court Order On Proof-of-Citizenship”<http://electionlawblog.org/?p=99688>
Posted on June 20, 2018 4:14 pm<http://electionlawblog.org/?p=99688> by Rick Hasen<http://electionlawblog.org/?author=3>

Tierney Sneed<https://talkingpointsmemo.com/muckraker/kobach-proof-of-citizenship-instructions> for TPM:

After two days of confusion — with some but not all county election officials enforcing a Kansas voting restriction struck down by a federal judge Monday — the Kansas Secretary of State’s office instructed local officials Wednesday that proof-of-citizenship was not required to register to vote.

The instructions marked the end — or at least a pause — in a years-long saga of Kansas Secretary of State Kris Kobach fighting tooth and nail to keep his signature voter restriction alive, despite multiple court rulings against it.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“APNewsBreak: Kobach Sought Pardon For VP Of Corporate Donor”<http://electionlawblog.org/?p=99686>
Posted on June 20, 2018 4:11 pm<http://electionlawblog.org/?p=99686> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://hosted.ap.org/semissourian/article/0397af016ddb4a2085193ce06cfe46b1/apnewsbreak-kobach-sought-pardon-vp-corporate-donor>

 Kansas Secretary of State Kris Kobach unsuccessfully sought a governor’s pardon for a corporate campaign donor’s vice president whose crime, police said, involved threatening a cab driver by putting a gun to his head.

Kobach, a Republican and leading candidate for Kansas governor, approached then-GOP Gov. Sam Brownback’s chief counsel about clemency for Kansas City-area resident Ryan Bader in August 2017, state records show. Kobach was Bader’s attorney and initiated the pardon request three years after a state judge expunged the attempted robbery case from Bader’s record.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


The Ease of Showing Standing<http://electionlawblog.org/?p=99684>
Posted on June 20, 2018 1:56 pm<http://electionlawblog.org/?p=99684> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

I mentioned in my post<https://electionlawblog.org/?p=99595> the other day that it shouldn’t be very difficult to satisfy Whitford’s new standing requirements—at least for most plaintiffs in most districts. Cracking and packing are ubiquitous in any district map where significant vote dilution has occurred, and are easy to demonstrate using election results and district diagrams. Alternative district configurations featuring less cracking and packing are also easy to identify thanks to advances in technology that enable large numbers of lawful maps to be generated quickly. Most plaintiffs in most districts could have been placed in less cracked or packed districts (that are themselves components of fairer maps), simply because so many fairer maps exist.

The supplemental brief<https://www.supremecourt.gov/DocketPDF/17/17-1295/50714/20180620124033768_Rucho%20v.%20Common%20Cause%20No%2017-1295_Supplemental%20Brief_FINAL_FILE%20THIS.pdf> that the League of Women Voters of North Carolina filed today with the Supreme Court nicely illustrates my point. (As most ELB readers know, I help represent the League.) The League’s brief explains that all thirteen of North Carolina’s current congressional districts were intended to crack or pack Democratic voters, and did, in fact, crack or pack them in the 2016 election. For twelve of the thirteen districts, the League’s brief also highlights at least one alternative district configuration that would have involved less cracking or packing. Plaintiffs in almost every cracked district could instead have been placed in a district that would have been won by a Democrat. And plaintiffs in every packed district could instead have been distributed among two or more less highly concentrated, but still Democratic, districts.

As an example, here is the brief’s discussion of North Carolina’s First Congressional District. (The brief includes similar analyses of the plan’s twelve other districts.)

District 1:

District 1 is located in northeastern North Carolina and contains most of the region’s Democratic voters. Ex.4007; Ex.4071; Ex.4073. Individual plaintiffs William Collins, Carol Faulkner Fox, Larry Hall, Annette Love, Gunther Peck, Elizabeth Torres-Evans, and Willis Williams live in District 1. Dkt.12:4-5; Dkt.41:8-10. The 2016 Plan’s author, Dr. Thomas Hofeller, predicted that District 1 would be a packed Democratic district with a Democratic vote share of 69%. Ex.5116:9. As expected, District 1 was won by the Democratic candidate in 2016 with 69% of the vote. Ex.1018. For these reasons, the district court found that District 1 was one of the districts into which “Dr. Hofeller ‘concentrat[ed]’ Democratic voters.” App.117.

The district court also found that District 1 was significantly more packed (or heavily Democratic) than the analogous district in more than 20,000 simulated district maps. App.102-03; Ex.3040:27. Dr. Hofeller, further, created two draft maps prior to finalizing the 2016 Plan (maps 17A and ST-B) in which District 1’s voters were distributed among three districts. All three of these districts were predicted to be Democratic (e.g., 51%, 52%, and 53% in map 17A).  Ex.4023; Ex.4024. And the League’s expert, Professor Jowei Chen, produced many maps that unpacked District 1’s voters. His map 3-2, for example, contained two moderately Democratic districts (52% and 53%) in place of the overwhelmingly Democratic District 1. Ex.2010:12; Ex.4032.

Obviously, if all of this information can be gathered in less than two days—after litigation conducted without knowledge of Whitford’s standing requirements—then future litigants will have little trouble compiling an even stronger record on standing. Whitford, then, may ultimately come to be seen as the partisan gerrymandering analogue of U.S. v. Hays<https://www.law.cornell.edu/supct/html/94-558.ZS.html>. In Hays, the Supreme Court dismissed a racial gerrymandering challenge because the plaintiffs did not live in the district they were attacking. All subsequent racial gerrymandering litigants made sure to include district residents as plaintiffs, meaning that Hays became irrelevant almost immediately. After Whitford, similarly, partisan gerrymandering litigants will be certain to allege (and prove) unnecessary cracking and packing. Other hurdles may yet frustrate these litigants, but standing is unlikely to be a major obstacle again.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“The elections clause as a structural constraint on partisan gerrymandering of Congress”<http://electionlawblog.org/?p=99682>
Posted on June 20, 2018 11:38 am<http://electionlawblog.org/?p=99682> by Richard Pildes<http://electionlawblog.org/?author=7>

That’s the title for the piece I was asked to contribute to the SCOTUSblog Symposium on the partisan gerrymandering cases. Here<http://www.scotusblog.com/2018/06/symposium-the-elections-clause-as-a-structural-constraint-on-partisan-gerrymandering-of-congress/> is the piece, and here is an excerpt:

There is yet another constitutional provision, not at issue in Gill, that even more naturally moves constitutional analysis away from individual rights to a focus on the statewide effects of partisan gerrymandering, at least when it comes to congressional districts. That is the elections clause of the Constitution, Article I, Section 4. The elections clause delegates power to state legislatures, in the first instance, to establish the “times, places and manner” of congressional elections.

Like the powers of Congress in Article I, the elections clause is a specifically enumerated power that the Constitution grants to states, initially, for specific and limited purposes. The Supreme Court has made clear that the states have no reserved or inherent powers over the regulation and design of congressional districts. Their power to design congressional districts stems only from this enumerated grant and cannot go beyond the scope of that grant.

. . . In several cases, the court has struck down state laws that regulate congressional elections as being beyond the implicit boundaries on state power under the elections clause. In the U.S. Term Limits Inc. v. Thornton<https://www.oyez.org/cases/1994/93-1456> case, for example, the court noted that, “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional constraints.” This was part of the basis for the court’s holding that term limits for members of Congress are unconstitutional. Similarly, the court struck down state ballot-notation measures in Cook v. Gralike<https://www.oyez.org/cases/2000/99-929>, relying on the fact that, as Justice Anthony Kennedy noted in concurrence, the “Elections Clause thus delegates but limited power over federal elections to the States.” The court concluded that ballot notation, which indicated whether a candidate had pledged to support term limits, was designed to “favor candidates” who took certain positions. This was beyond a state’s legitimate authority under the elections clause.

Because the Supreme Court has already held that states cannot use their power under the elections clause to “favor or disfavor a class of candidates,” the elections clause might be thought a natural home for statewide challenges to partisan gerrymandering of congressional districts. I filed an amicus brief in the 2006 case of League of United Latin American Citizens v. Perry<https://www.oyez.org/cases/2005/05-204>, in which I made this argument on behalf of myself and my colleagues with election-law expertise, Sam Issacharoff and Burt Neuborne. Jamal Greene has an excellent student Note<https://www.yalelawjournal.org/pdf/298_7qz4h6f9.pdf> that develops the argument in much more detail. [Update:  I forgot to mention in the original piece that Jessie Amunson also has a good student Note<https://www.jstor.org/stable/4093367?seq=1#page_scan_tab_contents> on the same subject].

So far, the elections clause has not been the focus of sustained attention in any of the Supreme Court’s partisan-gerrymandering decisions. But that is about to change. The three-judge federal court that struck down North Carolina’s 2016 congressional districting plan held that partisan gerrymanders of Congress do indeed violate the elections clause, as well as the First and 14th Amendments. That case is currently under submission to the Supreme Court, and it is likely to represent the court’s next major confrontation with defining the kind of constitutional injury that partisan gerrymandering entails.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Is Groton the Next Evenwel?”<http://electionlawblog.org/?p=99680>
Posted on June 20, 2018 8:33 am<http://electionlawblog.org/?p=99680> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Edelman has posted this very interesting draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3194755> on SSRN. Here is the abstract:

In Evenwel v Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of “one person- one vote” (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior was known. That belief was mistaken. In this note I report on the Town of Groton, Connecticut which uses registered voting data to apportion seats in its Representative Town Meeting, and has done so since its incorporation in 1957. The resulting apportionment arguably meets the requirements of OPOV as applied to registered voting data, but badly fails if total population is employed. Thus, it would make a good test case to resolve some of the open questions in Evenwel.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Kansas SOS Kobach Apparently Disobeying Court Order, At Least for Now<http://electionlawblog.org/?p=99676>
Posted on June 20, 2018 8:09 am<http://electionlawblog.org/?p=99676> by Rick Hasen<http://electionlawblog.org/?author=3>

KSNT:<http://www.ksnt.com/news/local-news/voter-registration-confusion/1249781811?platform=hootsuite>

In the aftermath of a federal judge’s ruling yesterday voters may be confused about voter registration. The judge ruled it is unconstitutional for Secretary of State Kobach to make voters show proof of citizenship to register. However Secretary Kobach told county election officials to keep enforcing that rule, until he gives written instructions to do otherwise.

He will,<http://www.kansas.com/news/politics-government/article213444484.html> however, comply with the judge’s order to do mandatory CLE:

On Monday, a federal judge struck down<http://www.kansas.com/news/politics-government/article213415624.html> the state’s proof of citizenship voter registration law in a ruling that excoriated Kobach’s conduct in court and ordered him to take additional legal classes. Kobach quickly promised to appeal; his office said the judge had reached an “extreme conclusion.”

He said he believes Judge Julie Robinson’s requirement of additional education is not necessary, though he will comply with it.

“I’m not familiar with any other judge doing such a thing,” Kobach said.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Today’s Must-Read: “Native Americans’ right to vote is under attack”<http://electionlawblog.org/?p=99674>
Posted on June 20, 2018 8:05 am<http://electionlawblog.org/?p=99674> by Rick Hasen<http://electionlawblog.org/?author=3>

Kira Lerner<https://thinkprogress.org/for-native-americans-the-right-to-vote-is-under-attack-f667a402d63c/> for Think Progress:

But with more voters casting ballots from their homes, Arizona is offering fewer opportunities<https://cronkitenews.azpbs.org/2016/11/04/study-shows-steep-drop-in-number-of-arizona-polling-places-since-2012/> for people to cast ballots in person. That’s a problem for Native Americans, who say they enjoy the communal aspects of voting on Election Day and sometimes need their ballots translated in-person into non-written Native languages. It also makes voting nearly impossible for people like Marks’ mother, who can’t receive mail to their homes and instead share PO boxes miles away —  sometimes in a different county or even state — and who check their mail infrequently.

“We have an aging community,” Marks said. “A lot of our elders, they feel passionate about voting, [but] they’re not always in the condition or position or have the ability to bring themselves in to a polling place to drop off their ballot or even to the post office to mail it at the appropriate time.”

The mail-in ballot is just one of many ways that voting, a constitutional right<https://www.law.cornell.edu/constitution/amendmentxv>, is harder if you’re Native American. While voting has never been easy for people living on reservations, in many ways it’s become even more difficult in recent years, as states and the federal government turn their back to the problems.

Some states aren’t just ignoring the barriers to the ballot — they’re actively making them worse. In 2016, Arizona’s Republican-controlled legislature passed a law<https://legiscan.com/AZ/bill/HB2023/2016>banning “ballot harvesting,” a term conservatives coined<https://www.bustle.com/articles/193476-what-is-ballot-harvesting-the-arizona-ban-is-still-in-effect-thanks-to-supreme-court-order> to refer to the act of mailing a ballot that’s not your own.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


A Sign of the Changed 5th Circuit: Texas Voter ID Case Ends with No Petition for Rehearing En Banc from Voting Rights Plaintiffs<http://electionlawblog.org/?p=99670>
Posted on June 20, 2018 8:01 am<http://electionlawblog.org/?p=99670> by Rick Hasen<http://electionlawblog.org/?author=3>

With no fanfare, the mandate issued<http://electionlawblog.org/wp-content/uploads/Marc_Veasey_et_al_v._Greg_Abb_143.pdf> from the 5th Circuit in the Texas voter ID case yesterday, ending the appeal. As I wrote<http://electionlawblog.org/?p=98859> back in April, the panel issued a “fundamentally disingenuous opinion” by Judge Edith Jones, which was really indefensible.

The last time there was rehearing en banc in this case, a divided 5th Circuit sitting en banc sided with the plaintiffs and found that Texas’s law violated Section 2 of the Voting Rights Act. Judge Jones dissented.

But there have been so many new conservative picks for the 5th Circuit, and one loss of a more liberal judge to become an ambassador, that I suppose the plaintiffs figured there was no point in trying for more relief here (much less at the Supreme Court).

Don’t worry. Things will soon get much worse for voting rights.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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