[EL] ELB News and Commentary 6/29/18

Fri Jun 29 09:29:48 PDT 2018

Today’s Must-Read: “Inside the White House’s Quiet Campaign to Create a Supreme Court Opening”<http://electionlawblog.org/?p=99868>
Posted on June 29, 2018 8:27 am<http://electionlawblog.org/?p=99868> by Rick Hasen<http://electionlawblog.org/?author=3>

Adam Liptak and Maggie Haberman at the NYT with some scintillating details<https://www.nytimes.com/2018/06/28/us/politics/trump-anthony-kennedy-retirement.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news> of the effort to butter up Justice Kennedy.

Unfortunately it has led to some nutty conspiracy theories<https://twitter.com/rickhasen/status/1012684820067962881> about Justice Kennedy deciding cases to help Trump for corrupt reasons.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Will federal officials further regulate online political ads? Too soon to tell.”<http://electionlawblog.org/?p=99866>
Posted on June 28, 2018 9:53 pm<http://electionlawblog.org/?p=99866> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports.<https://www.publicintegrity.org/2018/06/28/21908/fec-political-ads-online-russia-regulation-google-twitter-facebook>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, federal election commission<http://electionlawblog.org/?cat=24>

“NAACP Sues To Throw Out Connecticut Legislature’s Map Over Prison Gerrymandering”<http://electionlawblog.org/?p=99863>
Posted on June 28, 2018 4:05 pm<http://electionlawblog.org/?p=99863> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPo:<https://www.huffingtonpost.com/entry/connecticut-prison-gerrymandering_us_5b354e92e4b08c3a8f68ce00?6nl>

The NAACP and a handful of voters filed a lawsuit<https://www.naacp.org/wp-content/uploads/2018/06/NAACP-ComplaintFiled-DLFor062818-release.pdf> on Thursday to strike down the map for the Connecticut legislature before the 2020 election. The plaintiffs say that lawmakers are unconstitutionally drawing district lines when they count prisoners as part of the population of the place where they’re incarcerated.

Connecticut redraws its electoral districts every 10 years and uses the population data in each district to do so. When the state draws those new lines, it counts prisoners as part of the population where the prison is located.

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Posted in felon voting<http://electionlawblog.org/?cat=66>, redistricting<http://electionlawblog.org/?cat=6>

“SF Elections are Working — and Getting Even Better”<http://electionlawblog.org/?p=99861>
Posted on June 28, 2018 3:53 pm<http://electionlawblog.org/?p=99861> by Rick Hasen<http://electionlawblog.org/?author=3>

Oped<http://www.sfexaminer.com/sf-elections-working-getting-even-better/> from By SF election commissioners Charlotte Hill<http://www.sfexaminer.com/author/charlotte-hill/>, Christopher Jerdonek<http://www.sfexaminer.com/author/christopher-jerdonek/> and Viva Mo<http://www.sfexaminer.com/author/viva-mogi/>gi:

The current RCV system also facilitated higher voter participation than the previous December runoff system, which San Francisco used until 2004. Under that system, the first election occurred in November, followed by a second race in December if no candidate won an initial majority. Voter turnout often plummeted in the December runoff, on average by 31 percent. In the 2001 runoff for city attorney, less than 17% of registered voters participated. In the 1995 mayoral election, the number of voters declined by nearly 10 percentage points from November to December.

Some have asked why San Francisco does not use the “plurality” voting method, in which the highest vote-getter wins. Plurality voting is used to elect many governors, senators, and the president. But if plurality had been used in our mayoral election, the winner would have been elected with less than 37% of the vote, with more than 60% of voters casting a ballot for another candidate. The goal of any runoff system is to ensure that the winner has a majority (50% + 1) of the vote and is the candidate preferred by the most voters. San Francisco’s “instant runoff” elections fulfill both goals, but without the expense—both for taxpayers and candidates—of a separate runoff election. San Francisco saves approximately $3.5 million by not holding a second citywide election.

Our RCV system also has allowed voters to choose from a more diverse candidate pool. Of the eighteen offices in San Francisco elected by RCV, thirteen are held by office-holders of color, a significantly higher proportion than before RCV implementation. One study found that the other Bay Area cities using RCV—Oakland, Berkeley and San Leandro—have seen similar results. A few years ago, Oakland elected its first-ever Asian-American woman as mayor, and San Francisco just elected an African-American female mayor.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“Anthony Kennedy’s Retirement Is A Bad Sign For Fixing Gerrymandering”<http://electionlawblog.org/?p=99859>
Posted on June 28, 2018 3:45 pm<http://electionlawblog.org/?p=99859> by Rick Hasen<http://electionlawblog.org/?author=3>

Sam Levine reports<https://www.huffingtonpost.com/entry/anthony-kennedy-retirement-gerrymandering_us_5b3506cee4b0b5e692f5b2af?2b9> for HuffPo.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Watch the Archived Video of ACS Supreme Court Term in Review Event Today, via C-SPAN<http://electionlawblog.org/?p=99857>
Posted on June 28, 2018 3:12 pm<http://electionlawblog.org/?p=99857> by Rick Hasen<http://electionlawblog.org/?author=3>

It was great to be part of this very interesting (albeit depressing) discussion.<https://www.c-span.org/video/?447684-1/legal-experts-discuss-major-supreme-court-decisions-2017>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Provocative Comments from Bruce Cain on the Efficiency Gap, Post-Gill<http://electionlawblog.org/?p=99855>
Posted on June 28, 2018 1:58 pm<http://electionlawblog.org/?p=99855> by Richard Pildes<http://electionlawblog.org/?author=7>

There’s a lengthy interview on the partisan gerrymandering cases with Professor Bruce Cain, in Pacific Standard<https://psmag.com/news/breaking-down-the-supreme-courts-inaction-on-gerrymandering>.  This part in particular jumped out at me:

Why was the efficiency gap promoted by the plaintiffs in Gill, and in the press lately, as a good measure of partisan gerrymandering?
[Bruce Cain.]

Bruce Cain.

(Photo: Stanford University)

The reality is, people [academics] come up with these measures, and then they fall in love with them, and then they don’t openly tell you guys in the press what the disadvantages of these measures are. But the rest of us in the redistricting community have discussed it in private, and we know what the flaws are. But there’s a conspiracy among the reform community to not share that information openly because they’re very anxious to get Mr. Kennedy, who’s on the court, to make a decision before he retires [at the end of July].

The motto in the reform community has been “We’ll adopt an imperfect measure and then we’ll fix it later.” Now you’ll start seeing articles that criticize and explain the flaws of the efficiency gap that were not published prior to the Supreme Court decision, because there’s a conspiracy to not getting in the way of finally getting a decision on political gerrymandering.

We’re being lazy. We should be working on how to figure out how to measure, and to develop a standard. And the best way to do it is at the base level, and the best opportunity is to develop it locally. But you know, you get some lawyers and some reform groups that want to—either out of idealism or enthusiasm—want the courts to [develop a standard]. And the courts are saying: “Well, we’re not capable of doing this. You guys have to evolve this.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Viewpoints on Justice Kennedy’s Career<http://electionlawblog.org/?p=99853>
Posted on June 28, 2018 8:51 am<http://electionlawblog.org/?p=99853> by Richard Pildes<http://electionlawblog.org/?author=7>

Politico MagazIne has assessments of Justice Kennedy from “17 legal thinkers” at this link.<https://www.politico.com/magazine/story/2018/06/27/anthony-kennedy-legacy-supreme-court-218900>  Here is an excerpt from mine:

The realization of human dignity and the importance of value pluralism are the themes that run most deeply to me in Kennedy’s opinions. He used the term “dignity” in his opinions more than any justice on the court since William J. Brennan. . . .

Kennedy also profoundly believed, whether instinctively or self-consciously, in value pluralism, along the lines of the great political thinker, Isaiah Berlin. As a value pluralist, he sought to honor and preserve, as much as possible, the competing and deep values often at stake in court cases—liberty, equality, tolerance, self-government—rather than to rush to an ultimate confrontation in which one of these values subordinates the other. Perhaps fittingly, his opinion just weeks ago in Masterpiece Cakeshop (in which he used the word “dignity” four times) exemplifies this sensibility perfectly: expressing great empathy and sensitivity to the interests of both religiously sincere believers and those of gay and lesbian people, he crafted a decision that respected both sides as much as possible. Skeptical of the use of race in public programs, he nonetheless pulled back from the brink of being a fifth vote for abolishing affirmative action completely, in recognition of the value that diversity and inclusion also play. In what I suspect was the most difficult vote of his career, he decided not to vote to overrule Roe v. Wade¸ which many had expected him to do, but to preserve its core while creating more space for those at odds with Roe to express their views through policy.

Kennedy also saw the court as a balancing force more generally in the political system, when it came to institutional cases as well as ones involving individual rights. He was what I have called a “boundary-enforcing”<https://balkin.blogspot.com/2009/06/caperton-and-supreme-courts-boundary.html> justice rather than one who cared primarily about bright-line rules and chasing principles all the way down to their analytical bottom. If he thought other institutions or actors had become extreme and gone “too far” in asserting their powers, he was willing to step in, through constitutional law, to assert the importance of a boundary on power—even if it was not possible to reduce the legal principle he applied to a bright-line rule that had clear necessary and sufficient criteria of application. . . . Decisions like these are often criticized by dissenting justices and others precisely because they establish a boundary but can’t be expressed in any simple bright-line legal rule. That did not deter Kennedy: If he thought institutions or powerful actors had gone too far in subordinating some set of important, constitutional values, he was willing to see the Constitution as pushing back—even if simple rules for a complex world were not always possible.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Supreme Court Issues Opinion in North Carolina Racial Gerrymandering Case<http://electionlawblog.org/?p=99849>
Posted on June 28, 2018 7:01 am<http://electionlawblog.org/?p=99849> by Rick Hasen<http://electionlawblog.org/?author=3>

Scroll down to page 18 of the orders<https://www.supremecourt.gov/orders/courtorders/062818zr_k425.pdf> and you will find a per curiam opinion in the Covington case.

No big surprise here. The Court agrees that the district court had the power to cure racial gerrymanders it found, but it could not also correct purported violations of state law (an issue not before it).

Justice Thomas would have set the case for a full argument.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Breaking: Supreme Court affirms without opinion lower court order rejecting partisan gerrymandering claim in North Carolina<http://electionlawblog.org/?p=99847>
Posted on June 28, 2018 6:42 am<http://electionlawblog.org/?p=99847> by Rick Hasen<http://electionlawblog.org/?author=3>
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<https://twitter.com/rickhasen/status/1012327910416449537>

Breaking: Supreme Court affirms without opinion lower court order rejecting partisan gerrrymandering claim in North Carolina https://www.supremecourt.gov/orders/courtorders/062818zr_k425.pdf …<https://t.co/GDhucsNWGM> But two other cases remain pending and will work their way back to Court next term. This is somewhat of a surprise /1
6:32 AM - Jun 28, 2018<https://twitter.com/rickhasen/status/1012327910416449537>

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67 people are talking about this<https://twitter.com/rickhasen/status/1012327910416449537>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

See my series of tweets<https://twitter.com/rickhasen/status/1012327910416449537> for analysis.
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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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