[EL] ELB News and Commentary 6/25/18

Mon Jun 25 06:44:12 PDT 2018

“California’s Supreme Court can kill Cal-3 quickly and save us all a lot of trouble”<http://electionlawblog.org/?p=99761>
Posted on June 25, 2018 6:43 am<http://electionlawblog.org/?p=99761> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped f<http://www.latimes.com/opinion/op-ed/la-oe-hasen-split-california-proposition-legal-problems-20180625-story.html>or the LA Times. It begins:

The Cal-3 ballot measure set to be voted on in November needs a mercy killing from the California Supreme Court, and if it comes fast enough, it could save a lot of expense and wasted effort.

The proposition, designed by venture capitalist Tim Draper to split California into three states, may or may not be the most sensible way to divide up our diverse and powerful state<http://www.latimes.com/politics/la-pol-ca-california-split-three-states-20180612-story.html>. But the legal barriers to its enactment are overwhelming.

For example, will Congress, which must approve<https://www.usconstitution.net/xconst_A4Sec3.html> the creation of new states out of an old one, go along, given the partisan politics of everything these days and the impact of four new senators on the balance of power in the U.S. Senate? Will consent of the state Legislature be required (and forthcoming), or would voter approval through the initiative process suffice?

The legal fate of the initiative will probably never even get to questions of legislative approval. One way or another, the California Supreme Court will be called upon, and it will almost certainly rule that the way in which Draper is trying to create three Californias violates the state Constitution and has no place on the ballot to begin with.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>

BREAKING: SCOTUS Sends Back North Carolina Partisan Gerrymandering Case Rather Than Setting It for Argument.<http://electionlawblog.org/?p=99759>
Posted on June 25, 2018 6:40 am<http://electionlawblog.org/?p=99759> by Rick Hasen<http://electionlawblog.org/?author=3>

The Supreme Court has vacated and remanded<https://www.supremecourt.gov/orders/courtorders/062518zor_g3bh.pdf> the North Carolina partisan gerrymandering case, rather than setting it for argument. This is another sign Justice Kennedy is not ready to weigh back in so fast. I discussed what that remand order could mean at the end of my Slate piece on Gill. <https://slate.com/news-and-politics/2018/06/anthony-kennedy-wont-rule-on-gerrymandering.html>

But even with a remand the case could be back before the Supreme Court for the next term (even if that next term does not include Justice Kennedy).

If what North Carolina can do is kosher, then there really would be no limits on partisan gerrymandering. This is the case where the state explicitly admitted it was drawing lines solely for partisan advantage. As I wrote at Slate:

North Carolina was explicit it was making a partisan choice, to blunt the claim that it was making a racial choice. It looks like a Kennedy-like First Amendment injury. North Carolina state Rep. David Lewis said he “propose[d] that [the committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.”

The court will likely remand the North Carolina case<https://www.supremecourt.gov/DocketPDF/17/17-1295/38627/20180312161348591_Rucho%20v.%20Common%20Cause%20-%20Jurisdictional%20Statement.pdf> to reconsider in light of Monday’s rulings, because it has a similar standing problem to the Gill case. But the lower court will likely act quickly after remand, and the case likely will be back before the Supreme Court early next term.

At that point, Justice Hamlet, should he decide to actually make a decision, could take that case and settle this whole thing. But don’t hold your breath
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Dahlia Lithwick Talks to Paul Smith About the Partisan Gerrymandering and Voter Purge Cases He Argued and Lost<http://electionlawblog.org/?p=99757>
Posted on June 24, 2018 4:17 pm<http://electionlawblog.org/?p=99757> by Rick Hasen<http://electionlawblog.org/?author=3>

Listen<http://www.slate.com/articles/podcasts/amicus/2018/06/unpacking_scotus_s_punt_on_partisan_gerrymandering_with_the_lawyer_who_argued.html> at Slate’s Amicus.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Is the right to vote a use-it-or-lose-it proposition?”<http://electionlawblog.org/?p=99755>
Posted on June 24, 2018 4:15 pm<http://electionlawblog.org/?p=99755> by Rick Hasen<http://electionlawblog.org/?author=3>

Patt Morrison talks to Dan Tokaji<http://www.latimes.com/opinion/op-ed/la-ol-patt-morrison-daniel-p-tokaji-voting-20180620-htmlstory.html> about the Husted voter purge case.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

Five Years After Shelby County, A Look Back<http://electionlawblog.org/?p=99752>
Posted on June 23, 2018 10:09 am<http://electionlawblog.org/?p=99752> by Rick Hasen<http://electionlawblog.org/?author=3>

Almost exactly five years ago I wrote a NY Times oped about the Supreme Court’s unfortunate decision striking down a key portion of the Voting Rights Act in Shelby County: The Chief Justice’s Long Game.<https://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html>

This part held up pretty well:

Today’s decision has real consequences. Chief Justice Roberts writes that ”regardless” of how we look at the record, “no one can fairly say it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” in the past. If that’s true, it’s because the Voting Rights Act works.

Here’s what’s going to happen now. Texas has already announced<http://t.co/RsSd1Fmshm> that it will put its voter-ID law<http://www.bloomberg.com/news/2012-11-29/texas-voter-id-suit-may-await-related-high-court-ruling.html> into effect, a law that was on hold under Section 5 awaiting Supreme Court review. Texas’ law, one of the toughest<http://electionlawblog.org/?p=39379> in the nation, requires voters lacking acceptable ID (like a concealed-weapons permit) to travel up to 250 miles at their own expense to get one.

Texas’ law will be challenged on other grounds, but winning voter-ID cases has proved to be tough business. Now Texas can also re-redistrict<http://amarillo.com/news/local-news/2013-06-20/federal-fight-texas-redistricting-likely-headed-back-feds>, freed of the constraints of Section 5, splitting Latino and black voters into different districts or shoving them all in fewer districts to make it harder for them to have effective representation in the State Legislature and in Congress. The biggest danger of what the court has done is in local jurisdictions, where discrimination is more common and legal resources to fight back are thin.

The ball is now in Congress’s court.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

--
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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