[EL] ELB News and Commentary 3/23/18

Thu Mar 22 21:46:24 PDT 2018

Pennsylvania: “GOP chief justice slams Republican judicial impeachment move”<http://electionlawblog.org/?p=98301>
Posted on March 22, 2018 9:35 pm<http://electionlawblog.org/?p=98301> by Rick Hasen<http://electionlawblog.org/?author=3>

Post-Gazette:<http://www.post-gazette.com/news/state/2018/03/22/GOP-chief-justice-Saylor-Republican-judicial-impeachment-move/stories/201803220171>

 The chief justice of the Pennsylvania Supreme Court said Thursday that he is “very concerned” about an effort to impeach his four colleagues<http://www.post-gazette.com/news/politics-state/2018/03/20/Pa-Republican-state-legislator-Cris-Dush-impeach-state-Supreme-Court-justices-congressional-map-gerrymandering/stories/201803200148> who voted to overturn the state’s congressional district map and impose a new one.

“Threats of impeachment directed against Justices because of their decision in a particular case are an attack upon an independent judiciary, which is an essential component of our constitutional plan of government,” Chief Justice Thomas Saylor said in a statement.

Justice Saylor, elected to the court as a Republican, dissented from the majority in the case.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98301&title=Pennsylvania%3A%20%E2%80%9CGOP%20chief%20justice%20slams%20Republican%20judicial%20impeachment%20move%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Foley: Benisek, Its Current Procedural Posture, and What Happens Next<http://electionlawblog.org/?p=98299>
Posted on March 22, 2018 9:28 pm<http://electionlawblog.org/?p=98299> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is the fifth and final 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 last 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>, third<http://electionlawblog.org/?p=98255>, and fourth<http://electionlawblog.org/?p=98280> installments.

             Two years ago, in March of 2016, the plaintiffs in Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/> filed a complaint<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Shapiro-SecondAmendedComplaint030316.pdf> in which they alleged that the gerrymandering of Maryland’s congressional districts violated both the First Amendment and Article I of the federal Constitution.  Paragraphs 140-142 summarized the heart of the complaint’s Article I claim:
140.         The [state] legislature, rather than Maryland’s voters, has in effect chosen the representative to the U.S. House of Representatives for Maryland’s 6th [Congressional] District.
141.         The result is a violation of the plaintiffs’ representational rights, protected under Article I, Sections 2 and 4, of the United States Constitution.
142.      The State cannot justify the cracking of the 6th District by reference to geography or compliance with constitutionally legitimate redistricting criteria.

Although these particular paragraphs focused specifically on the state’s Sixth congressional district, other paragraphs in the complaint made clear that plaintiffs’ Article I claim – that the state’s legislature, by wrongfully manipulating district lines, was effectively depriving the state’s electorate of its Article I right to choose Representatives responsive to its changing electoral preferences – was just as applicable, if not even more so, to other congressional districts in the state.  For example, paragraphs 69-71 concerned the state’s Third Congressional District.  After citing a Washington Postpiece for the proposition that Maryland’s Third was “the second most gerrymandered [congressional] district in the country,” the complaint included a visual depiction of how over time the district’s lines were increasingly distorted (“ever-worsening contortions”)—to the point where the district now resembles a “praying mantis<https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.8a4daeea6f39>” or a “pinwheel of death<http://www.baltimoresun.com/news/maryland/politics/bs-md-gerrymander-race-20140919-story.html>”—in order to prevent the district from falling into the opposition party’s hands as a consequence of the electorate’s changing political preferences.

After a three-judge district court rejected<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Shapiro-Opinion082416.pdf> the state’s motion to dismiss this complaint, the plaintiffs moved for a preliminary injunction.  In this motion<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Benisek-PrelimInjunctMotion053117.pdf>, however, the plaintiffs essentially abandoned any reliance on the Article I claim in their complaint, or any consideration of districts other than the Sixth, focusing exclusively instead on just a specific First Amendment theory applicable to solely to that single district. According to that First Amendment theory, the state unconstitutionally retaliated against the voters of the Sixth District, as it was previously configured, because they voted in favor of a Republican candidate and, as punishment for exercising their First Amendment right to vote this way, the state cleaved their district apart.  The same three-judge district court denied<http://moritzlaw.osu.edu/electionlaw/litigation/documents/Benisek-Opinion082417.pdf> the preliminary injunction, and as this denial is an immediately appealable order under applicable jurisdictional statutes, the plaintiffs appealed<http://www.scotusblog.com/wp-content/uploads/2017/09/17-333-Benisek-jurisdictional-statement.pdf> the case to the U.S. Supreme Court, where they have again pressed their First Amendment retaliation theory.  The Court scheduled oral argument on the appeal for this coming Wednesday, March 28.

Continue reading →<http://electionlawblog.org/?p=98299#more-98299>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98299&title=Foley%3A%20Benisek%2C%20Its%20Current%20Procedural%20Posture%2C%20and%20What%20Happens%20Next>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Pepperdine Federalism Symposium Mar. 23 Features Election Law Panel<http://electionlawblog.org/?p=98297>
Posted on March 22, 2018 9:24 pm<http://electionlawblog.org/?p=98297> by Rick Hasen<http://electionlawblog.org/?author=3>

Sorry to miss this<http://pepperdinelawreview.com/2018-symposium-federalism-past-present-and-future/> tomorrow:

10:30am-11:45am – Election Law panel and Q&A (Moderator: Derek Muller)

·         Franita Tolson (USC)

·         Eugene Mazo (Rutgers)

·         Michael Morley (Barry University)

·         Ciara Torres-Spelliscy (Stetson)
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98297&title=Pepperdine%20Federalism%20Symposium%20Mar.%2023%20Features%20Election%20Law%20Panel>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Supreme Court Avoids Bush v. Gore II in Ducking Pennsylvania Redistricting Controversy”<http://electionlawblog.org/?p=98294>
Posted on March 22, 2018 1:47 pm<http://electionlawblog.org/?p=98294> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this blog post<https://blog.harvardlawreview.org/supreme-court-avoids-bush-v-gore-ii-in-ducking-pennsylvania-redistricting-controversy/> over at the Harvard Law Review blog.  It begins:

After waiting<http://electionlawblog.org/?p=97771>, and waiting<http://electionlawblog.org/?p=98010>, and waiting<http://electionlawblog.org/?p=98071>, the United States Supreme Court finally answered the question whether it would heed Pennsylvania Republicans’ calls to put on hold the Pennsylvania Supreme Court’s order<http://www.pennlive.com/politics/index.ssf/2018/02/pa_supreme_court_issues_opinio.html> redrawing the state’s congressional district lines to cure a partisan gerrymander. The answer<https://www.supremecourt.gov/orders/courtorders/031918zr_p8k0.pdf> was no, with no explanation. And in that silence the Court dodged a question it has refused to wade into since the disputed 2000 presidential election culminating in the Court’s controversial Bush v. Gore<https://www.law.cornell.edu/supct/html/00-949.ZPC.html> case.

It concludes:

This reticence inured to the benefit of Democrats and opponents of partisan gerrymandering in the Pennsylvania case. But in the longer run the issue is far from over. Chief Justice Roberts was pretty adamant in the Arizona State Legislature dissent, and if there is a retirement of Justice Kennedy or one of the Court’s liberals in the near future, it would not be a surprise to see this issue come back. And the kinds of arguments long made by Justice Scalia about how to read the Constitution could gain a new, more conservative Court majority’s favor.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98294&title=%E2%80%9CSupreme%20Court%20Avoids%20Bush%20v.%20Gore%20II%20in%20Ducking%20Pennsylvania%20Redistricting%20Controversy%E2%80%9D>
Posted in Bush v. Gore reflections<http://electionlawblog.org/?cat=5>, redistricting<http://electionlawblog.org/?cat=6>, Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

Wisconsin: “Judge orders Gov. Scott Walker to hold special elections for open legislative seats in Eric Holder suit”<http://electionlawblog.org/?p=98290>
Posted on March 22, 2018 1:20 pm<http://electionlawblog.org/?p=98290> by Rick Hasen<http://electionlawblog.org/?author=3>

Patrick Marley:<https://www.jsonline.com/story/news/politics/2018/03/22/eric-holder-lawsuit-against-gov-scott-walker-over-wisconsin-special-elections-hits-snag/448743002/>

Dealing a setback to Gov. Scott Walker and other Republicans, a judge ruled Thursday the governor must call special elections to fill two vacant seats in the Legislature.

Walker declined to call those elections after two GOP lawmakers stepped down to join his administration in December.

His plan would have left the seats vacant for more than a year. Voters in those areas took him to court with the help of a group headed by Eric Holder, the first attorney general under Democratic President Barack Obama.

Dane County Circuit Judge Josann Reynolds — whom Walker appointed to the bench<http://host.madison.com/wsj/news/local/know-your-madisonian-josann-reynolds/article_f473f69a-0ba5-52a8-954f-a6e5f0ea7f87.html>in 2014 — determined Walker had a duty under state law to hold special elections so voters could have representation in the Legislature. She said failing to hold special elections infringed on the voting rights of people who lived in the two districts.

“To state the obvious, if the plaintiffs have a right to vote for their representatives, they must have an election to do so,” said Reynolds….

An attorney for Walker raised the prospect of trying to block the ruling but said no final decision on whether to do that had been made. Spokespeople for Walker and GOP Attorney General Brad Schimel said they had not yet decided whether Walker would order the special elections or pursue an appeal.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98290&title=Wisconsin%3A%20%E2%80%9CJudge%20orders%20Gov.%20Scott%20Walker%20to%20hold%20special%20elections%20for%20open%20legislative%20seats%20in%20Eric%20Holder%20suit%E2%80%9D>
Posted in voting<http://electionlawblog.org/?cat=31>

“New Issue Brief: The Census Clause and the Constitutional Obligation to Count All Persons”<http://electionlawblog.org/?p=98288>
Posted on March 22, 2018 9:41 am<http://electionlawblog.org/?p=98288> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<https://www.theusconstitution.org/news/release-new-issue-brief-census-clause-constitutional-obligation-count-persons/>

Following a letter<https://www.theusconstitution.org/news/release-letter-secretary-ross-census-citizenship-question-threatens-undermine-constitutional-duty/> that Constitutional Accountability Center sent to U.S. Secretary of Commerce Wilbur Ross last month—explaining that inserting a question into the U.S. Census that asks all respondents about their citizenship status “threatens to undermine your constitutional duty to ensure that the 2020 Census counts all of the nation’s people”—today CAC is releasing a new Issue Brief, The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons<https://www.theusconstitution.org/think_tank/cornerstone-democracy-census-clause-constitutional-obligation-count-persons/>.

“Secretary Ross is expected to make a decision by the end of this month on whether to include a citizenship question in the Census,” said CAC Civil Rights Director David Gans<https://www.theusconstitution.org/staff/david-h-gans/>, author of the Issue Brief. “A mandatory citizenship question would be an end-run around the Constitution’s text, history, and values. It cannot be squared with the federal government’s constitutional obligation to ensure a national count of all persons—regardless of where they are from or their immigration status.”

UPDATE: <https://www.theusconstitution.org/news/release-constitution-civil-rights-democracy-organizations-secretary-ross-reject-mandatory-citizenship-question-2020-census/> Constitution, Civil Rights and Democracy Organizations to Secretary Ross: Reject Mandatory Citizenship Question on 2020 Census
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98288&title=%E2%80%9CNew%20Issue%20Brief%3A%20The%20Census%20Clause%20and%20the%20Constitutional%20Obligation%20to%20Count%20All%20Persons%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Equally American Argues Denial of Voting Rights Violates International Law”<http://electionlawblog.org/?p=98286>
Posted on March 22, 2018 9:29 am<http://electionlawblog.org/?p=98286> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://www.equalrightsnow.org/equally_american_argues_denial_of_voting_rights_violates_international_law>

Nearly 4 million<https://www.washingtonpost.com/graphics/2017/national/fair-representation/?utm_term=.f8b1124c315a> citizens living in U.S. territories – a population greater than 21 states and larger than the five smallest states combined – are denied the right to vote for President and voting representation in Congress simply because of where they happen to live. This includes more than 100,000 veterans and active duty service members living in U.S. territories. At the same time, decisions made by the federal government impacting residents of U.S. territories can literally mean life or death, a fact thrown in stark relief by the six month anniversary of Hurricanes Maria and Irma hitting Puerto Rico and the U.S. Virgin Islands.

Leaders from Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are now arguing that this is not just morally wrong, it is a violation of international law. Represented by Equally American<http://www.equalrightsnow.org/> (formerly We the People Project), a non-profit organization that advocates for equality and civil rights in U.S. territories, territorial leaders from these areas have filed an amicus brief<http://www.equalrightsnow.org/rossello> in support of a case brought by former Puerto Rico Governor Pedro Rosselló before the Organization of American States Inter-American Commission on Human Rights.

Rosselló v. United States argues that by denying U.S. citizens in the territories voting representation in the federal government, the United States is violating its international law obligations under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, and other international agreements. The case was originally filed in 2006 but is only now reaching the merits. Puerto Rico Governor Ricardo Rosselló and Congresswoman Jenniffer González have also filed a letter in support of the case.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98286&title=%E2%80%9CEqually%20American%20Argues%20Denial%20of%20Voting%20Rights%20Violates%20International%20Law%E2%80%9D>
Posted in voting<http://electionlawblog.org/?cat=31>

“Hush Money May Prove Trump’s Biggest Campaign-Finance Problem”<http://electionlawblog.org/?p=98284>
Posted on March 22, 2018 9:27 am<http://electionlawblog.org/?p=98284> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza Newlin Carney<http://prospect.org/article/hush-money-may-prove-trumps-biggest-campaign-finance-problem> for TAP.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98284&title=%E2%80%9CHush%20Money%20May%20Prove%20Trump%E2%80%99s%20Biggest%20Campaign-Finance%20Problem%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180323/4f91ef8b/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180323/4f91ef8b/attachment.png>