[EL] ELB News and Commentary 2/22/18

Thu Mar 22 07:43:17 PDT 2018

“Federal Judge Expected To Rule In Kansas Voter Registration Lawsuit This Fall”<http://electionlawblog.org/?p=98282>
Posted on March 22, 2018 7:34 am<http://electionlawblog.org/?p=98282> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR’s All Things Considered reports.<https://www.npr.org/2018/03/21/595791443/federal-judge-expected-to-rule-in-kansas-voter-registration-lawsuit-this-fall>

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Foley: Shelby County, Structural Originalism, and Congressional Gerrymanders<http://electionlawblog.org/?p=98280>
Posted on March 22, 2018 7:21 am<http://electionlawblog.org/?p=98280> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is the fourth in a series of guest posts on Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/?wpmp_switcher=desktop> by Ohio State’s Ned Foley<http://moritzlaw.osu.edu/faculty/professor/edward-b-foley/>.

Edward B. Foley

This blog essay is the fourth in a series derived from a contribution<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3128936> to a University of Georgia Law Review symposium, building upon the first<http://electionlawblog.org/?p=98187>, second<http://electionlawblog.org/?p=98219>, and third<http://electionlawblog.org/?p=98255> installments.

In the previous post<http://electionlawblog.org/?p=98255> in this series, I explained how an originalist approach to constitutional interpretation leads to the conclusion that partisan gerrymandering of congressional districts contravenes Article I of the original Constitution insofar as those gerrymanders undermine the responsiveness to the will of the “People” that biennial elections to the federal House of Representatives originally were designed to effectuate.

In this post, I want to develop this originalist argument some more, by drawing a distinction between two different types of originalist methodologies.  Since the constitutional jurisprudence of redistricting law has developed over the last half-century from largely non-originalist premises (as I explained in the previous post),<http://electionlawblog.org/?p=98255> with the foundational precedent being Reynolds v. Sims, it is understandable if distinctions among different originalist methodologies are less familiar to redistricting law specialists than they are to those who focus on other domains of constitutional litigation. But there has been an outpouring of theoretical scholarship in recent years over the nature of originalism, and insofar as the Supreme Court has becoming increasingly guided by originalist principles – and will likely become even more so if President Trump appoints one or two more Justices to the Court in the mold of Antonin Scalia or Neil Gorsuch, as he has promised to do – it behooves redistricting law specialists to examine the contemporary nature of originalism and its potential applicability to their particular terrain.

This brief blog essay is hardly the place to outline all the variations among contemporary versions of originalism.  There is just one basic distinction, between two different forms of originalism, that is important to identify for the purpose of evaluating the applicability of originalism to the issue of congressional gerrymandering.  That distinction is between what we may called “linguistic originalism,” on the one hand, and “structural originalism,” on the other.

Continue reading →<http://electionlawblog.org/?p=98280#more-98280>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Race and Representation Revisited: The New Racial Gerrymandering Cases and Section 2 of the VRA”<http://electionlawblog.org/?p=98278>
Posted on March 22, 2018 7:18 am<http://electionlawblog.org/?p=98278> by Rick Hasen<http://electionlawblog.org/?author=3>

Guy Charles and Luis Fuente-Rohwer have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3138260> on SSRN (forthcoming, William and Mary Law Review). I agree with some but disagree with other key parts of this interesting and important paper. Here is the abstract:

This article explores the Supreme Court’s new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and activists care about descriptive representation, they should be wary of the racial gerrymandering cases.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Omnibus Budget To Include $380M For Election Security”<http://electionlawblog.org/?p=98276>
Posted on March 22, 2018 7:15 am<http://electionlawblog.org/?p=98276> by Rick Hasen<http://electionlawblog.org/?author=3>

Doug Chapin:<http://editions.lib.umn.edu/electionacademy/2018/03/22/omnibus-budget-to-include-380m-for-election-security/>

Translating:
1.      The EAC will get $380 million to disburse to states 45 days after the enactment of the bill;
2.      States will get a minimum of $3 million (territories $600,000) with the rest allocated by population (like in HAVA); and
3.      States will have two years to provide a 5% match of the funds received.

This is a welcome development, but it does raise questions:
·         Will there be any joint resources made available in addition to the state grants?
·         How far will this money go, given that it’s roughly 10% of the funds originally authorized by HAVA?
·         Can the funds make a difference in 2018?

I have no doubt there will be more analysis of this provision in the days and weeks ahead, but for now it’s encouraging that Congress has finally put some money behind all this talk about election security. Kudos to Senators Lankford, Klobuchar and others who worked to get this language included, as well as to to the members and staff of the Senate Intelligence Committee, who held a hearing yesterday to highlight their recommendations for improving election security<https://www.burr.senate.gov/download/one-pager-recs-final-version->, which undoubtedly helped push this provision to the finish line.

The bill still needs to be approved and signed by the President, but the prospects look good for a small infusion of federal election funding in the relatively near future.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Thousands of Milwaukee voters have been dropped from rolls, including some erroneously”<http://electionlawblog.org/?p=98274>
Posted on March 22, 2018 7:12 am<http://electionlawblog.org/?p=98274> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal Sentinel:<https://www.jsonline.com/story/news/politics/2018/03/21/thousands-milwaukee-voters-have-been-dropped-rolls-including-some-erroneously/446022002/>

Thousands of Milwaukee voters have been dropped from voter rolls — including some erroneously — through the state’s registration system, city officials said Wednesday.

Some 44,000 voters were removed from city rolls after the state started using a new process in the Electronic Registration Information Center (ERIC), they said. It’s unclear how many of those were dropped in error.

“This is not a problem that has been caused at the local level,” Mayor Tom Barrett said at a City Hall news conference.

Barrett said problems were caused by incorrect data provided by the state Department of Motor Vehicles and the U.S. Postal Service, leading some voters who haven’t actually moved or changed addresses to be erroneously dropped from the rolls.

“We are very concerned with the number of legitimate voters whose records have been deactivated,” Barrett said.

These are stories about ERIC, not Cross Check, and it seems that the ERIC folks will have some explaining to do.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“NC Gov. Cooper appoints an elections board member Republicans fought”<http://electionlawblog.org/?p=98272>
Posted on March 21, 2018 3:49 pm<http://electionlawblog.org/?p=98272> by Rick Hasen<http://electionlawblog.org/?author=3>

News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article206082999.html>

The four Democrats and four Republicans on the new state elections board went ’round and ’round Wednesday, casting tie vote after tie vote, as they looked for the board’s ninth member.

But then they fell into an agreement to nominate former Supreme Court Chief Justice Burley Mitchell and Damon Circosta, executive director of the A.J. Fletcher Foundation. Gov. Roy Cooper announced Wednesday evening he had appointed Circosta to the ninth seat on the Board of Elections and Ethics Enforcement.

The wrangling on the way to agreement on two nominees reflected the long power struggle between Cooper, a Democrat, and the Republican-run legislature, which moved to change the board after Cooper won office in 2016. Cooper has sued over the changes three times, most recently this month.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

--
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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