[EL] ELB News and Commentary 3/28/18

[Rick Hasen]

“Justice Scalia’s Legacy is Stronger Than Ever”<http://electionlawblog.org/?p=98392>
Posted on March 28, 2018 7:15 am<http://electionlawblog.org/?p=98392> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/03/scalias-legacy-is-stronger-than-ever.html> for Slate. It begins:

Over the next few months, the Supreme Court seems poised to deliver a crushing blow<https://slate.com/news-and-politics/2018/02/justice-neil-gorsuch-is-about-to-deliver-republicans-a-big-return-on-their-investment.html> to public sector unions, allow more purges that remove eligible voters<https://slate.com/news-and-politics/2018/01/ohios-legal-justification-for-its-massive-voter-purge-is-complete-gobbledygook.html> from the rolls, limit anti-discrimination laws<http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2017/12/kennedy_sends_mixed_messages_in_gay_wedding_cake_case.html> protecting the LBGT community in the name of protecting religious freedom, and uphold the latest version of Trump’s travel ban<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/scotus_travel_ban_ruling_doesn_t_make_sense_that_may_be_good_for_trump.html>. And while the court may, for the time being, put the brakes on the most egregious forms of partisan gerrymandering<http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2017/10/will_gill_v_whitford_kill_partisan_gerrymandering.html>, that result may be short-lived, as rumors recirculate<http://thehill.com/homenews/senate/380023-gop-senators-fuel-justice-kennedy-retirement-talk> that swing Justice Anthony Kennedy could soon announce his retirement. That would give President Trump the chance to put another judge like deceased Justice Antonin Scalia on the court, creating a more solid five-justice conservative majority.

Indeed, contrary to the argument of a recent Linda Greenhouse New York Times column<https://www.nytimes.com/2018/03/15/opinion/justice-antonin-scalia-legacy.html>proclaiming that Justice Scalia’s legacy is fading, his legacy only seems to be growing. Over the next few decades, Justice Scalia is likely to have greater influence in death than life.

It concludes:

People often ask me why the left never gets as excited about control of the court when it comes to voting and political action. The answer is that the court’s decisions have been mostly in the middle thanks to swing justices like Kennedy—about half the court’s decisions in big cases have been more liberal, about half more conservative.

All of that stands to change in the next few years. Even if Justice Kennedy decides to hold on, and Democrats miraculously can block another Trump appointment to the Supreme Court, the stacking of lower-court judges with Scalia acolytes will have effects on all Americans for generations. That may finally wake up the left to the power of the federal courts. By then, though, it may be too late to do anything about it.

Justice Scalia’s fading legacy? I’m afraid not.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98392&title=%E2%80%9CJustice%20Scalia%E2%80%99s%20Legacy%20is%20Stronger%20Than%20Ever%E2%80%9D>
Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>


“Extreme Partisan Gerrymandering: The Supreme Court’s Play In 3 Acts”<http://electionlawblog.org/?p=98390>
Posted on March 28, 2018 7:12 am<http://electionlawblog.org/?p=98390> by Rick Hasen<http://electionlawblog.org/?author=3>

Nina Totenberg<https://www.npr.org/2018/03/28/596220408/extreme-partisan-gerrymandering-the-supreme-courts-play-in-3-acts> for NPR’s Morning Edition:

The First Amendment argument, however, appeals, in particular, to the justice whose vote is likely to decide the case, Justice Anthony Kennedy. In 2004, he provided the fifth vote for the court staying out of partisan gerrymandering cases, but he made it clear that he remained open to finding a way to measure what is unconstitutional gerrymandering based on party and he specifically mentioned the First Amendment notion that government action cannot punish people based on partisan affiliation.

Election expert Rick Hasen, of the University of California, Irvine, said that Kennedy, 81, knows he will not be on the court forever.

“It’s put-up-or-shut-up time,” Hasen said. “Either he’s going to say, ‘We’ve got to start policing this’ or he has to recognize that what is going to happen in the next round in 2020 is going to look a lot worse than in this round, that it’s going to be no-holds-barred, squeeze out whatever you can, in favor of your party and against the other party.”

Act III of this drama? Well, that is likely to come in June when the Supreme Court finishes writing it.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98390&title=%E2%80%9CExtreme%20Partisan%20Gerrymandering%3A%20The%20Supreme%20Court%E2%80%99s%20Play%20In%203%20Acts%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>


Scheduled to Appear on MSNBC’s Andrea Mitchell Reports at 12:30 PM Eastern Talking Stormy Daniels and Campaign Finance<http://electionlawblog.org/?p=98388>
Posted on March 28, 2018 7:09 am<http://electionlawblog.org/?p=98388> by Rick Hasen<http://electionlawblog.org/?author=3>

Tune in.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98388&title=Scheduled%20to%20Appear%20on%20MSNBC%E2%80%99s%20Andrea%20Mitchell%20Reports%20at%2012%3A30%20PM%20Eastern%20Talking%20Stormy%20Daniels%20and%20Campaign%20Finance>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Data scientists help courts grapple with increasingly divisive maps”<http://electionlawblog.org/?p=98386>
Posted on March 28, 2018 7:06 am<http://electionlawblog.org/?p=98386> by Rick Hasen<http://electionlawblog.org/?author=3>

ABA Journal reports.<http://www.abajournal.com/magazine/article/gerrymandering_goes_high_tech/>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98386&title=%E2%80%9CData%20scientists%20help%20courts%20grapple%20with%20increasingly%20divisive%20maps%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>


“Wilbur Ross Overruled Career Officials at Census Bureau to Add Citizenship Question”<http://electionlawblog.org/?p=98384>
Posted on March 28, 2018 7:04 am<http://electionlawblog.org/?p=98384> by Rick Hasen<http://electionlawblog.org/?author=3>

ProPublica:<https://www.propublica.org/article/wilbur-ross-overruled-career-officials-at-census-bureau-to-add-citizenship-question>

Secretary of Commerce Wilbur Ross’ decision Monday<https://www.commerce.gov/news/press-releases/2018/03/us-department-commerce-announces-reinstatement-citizenship-question-2020> to add a controversial question on citizenship to the 2020 census came in the face of opposition from career officials at the Census Bureau who fear it will depress response rates, especially from immigrants.

Two people with knowledge of the deliberations said career leaders in the Census Bureau, which is part of the Commerce Department, had scrambled to come up with alternatives to adding the question. Those efforts were unsuccessful.

In a memo<https://www.documentcloud.org/documents/4424701-Wilbur-Ross-memo-2018-03-26-2.html> announcing his decision, Ross said that “The Census Bureau and many stakeholders expressed concern that [a citizenship question] would negatively impact the response rate for non-citizens.”

But Ross added that “neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially.”

The Census Bureau recently noted<https://www.documentcloud.org/documents/4424705-Census-Confidentiality-Presentation.html> greater fear and reluctance to fill out the survey in the current political climate. In a November presentation, a bureau official cited a recent increase in respondents expressing concerns about confidentiality of data related to immigration. It cited particular concerns among participants in what it labeled an Arabic focus group and among Spanish-speaking respondents.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98384&title=%E2%80%9CWilbur%20Ross%20Overruled%20Career%20Officials%20at%20Census%20Bureau%20to%20Add%20Citizenship%20Question%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“American Democracy Has a ‘Tyranny of the Minority’ Problem. Maine Has the Solution”<http://electionlawblog.org/?p=98382>
Posted on March 28, 2018 6:59 am<http://electionlawblog.org/?p=98382> by Rick Hasen<http://electionlawblog.org/?author=3>

Rob Richie and Kevin Johnson oped<https://www.thedailybeast.com/american-democracy-has-a-tyranny-of-the-minority-problem-maine-has-the-solution> in the Daily Beast.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98382&title=%E2%80%9CAmerican%20Democracy%20Has%20a%20%E2%80%98Tyranny%20of%20the%20Minority%E2%80%99%20Problem.%20Maine%20Has%20the%20Solution%E2%80%9D>
Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


Still More on a 1st Amendment Theory of Gerrymandering<http://electionlawblog.org/?p=98380>
Posted on March 28, 2018 4:14 am<http://electionlawblog.org/?p=98380> by Justin Levitt<http://electionlawblog.org/?author=4>

In light of today’s Benisek argument, and at the risk of getting banished to another forum<http://electionlawblog.org/?p=98367> (I jest, I think), I offer a modest addition to the Pildes<http://electionlawblog.org/?p=98319>–Stephanopoulos<http://electionlawblog.org/?p=98361> discussion on partisan gerrymandering and the First Amendment.

I agree with much of what both Pildes and Stephonopoulos say.  And (of course?), I’ll quibble with each.

First, a caveat.  It’s natural to compare the claims about partisanship in redistricting to the claims about race in redistricting, because the latter are more fully developed, and law loves analogies to settled practice.  But it has to be noted that injuries based on partisanship and those based on race aren’t equivalent (and I don’t think either Rick or Nick would disagree).  Political science shows that partisanship is mostly consistent, but race is (largely) immutable; injuries have been perpetrated based on partisanship, but they pale in comparison to those (still) perpetrated based on race.  The different premises means there’s no reason to transplant the doctrine directly.

And yet, because law loves analogies to settled practice, the comparison to race claims is natural.  It may even be illuminating.  But I think Rick leaves out the most natural analog, and the one that may best characterize both Benisek and Gill.  And I think this natural analog also explains the appropriate remedy in ways that diverge from Nick’s approach. (Much, much more, here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011062>.  And there’s lots in Michael Kang’s recent work<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019390> along very similar lines.)

Rick mentioned two lines of race claims in redistricting.  In fact, there are three.

As he says, one line is about racial vote dilution – call it the White v. Regester line (picked up in much of the Voting Rights Act).  Though it depends on a whiff of danger signs of intent, the real work is done by evaluating a tangible effect revealing diluted political power.

Another line follows Shaw v. Reno.  The Court has repeatedly said that the non-invidious consideration of race — in the mix with other stuff — is fine.  But if (and only if) race represents the predominant reason for sorting voters into one district rather than another, there had better be a really good reason.  This is an intent test, yes.  But it’s not really the one that fits best.

There’s also a third line of race claims, distinct from both.  It focuses on specific state intent to injure based on race.  The right redistricting analog here is Gomillion – when Tuskegee was redrawn to exclude (nearly) all the black voters from the city.  Gomillion is often understood as a dilution case.  It’s not<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011062>.  It didn’t depend on measuring black voters’ municipal voting power (and wouldn’t have been OK if Alabama had drawn a neighboring “Black Tuskegee,” where black voters had unlimited municipal voting power).  Instead, Gomillion recognized that the reason that Tuskegee was redrawn was to subjugate the local black citizens – and that’s an illegitimate reason for the state to use its power, whether it’s “predominant” or not.  As long as plaintiffs can establish standing, a drop of this illegitimate motive is enough to force Alabama to prove that it would have passed the same plan without the illegitimate motive – or redraw the map.

So now to the (imperfect) partisanship analogs.

In some cases, the Court has shown First Amendment concern along the lines of Regester, where the effect is the thing that really matters.  (Most cases about undue burdens on voting fit this pattern.)  Some of the partisan gerrymandering theories, like those based on extreme overall skew or permanent-minority status, seem along these lines.  This may be consonant with the claim in Gill.  It’s not really the claim in Benisek.

I don’t know that there’s any Shaw equivalent under the First Amendment, where it’s fine to consider partisan viewpoint, just not too much.  Maybe we’ll see one here.

But the Court doesn’t have to invent Shaw for partisanship in order to find a First Amendment analog for the Benisek claim.  There’s plenty of First Amendment precedent that follows Gomillion in declaring off-limits state action premised on a specific intent to subjugate based on protected characteristics.  Indeed, most First Amendment doctrine suggests that a specific intent to subjugate based on partisanship doesn’t depend at all on either the extent of the impact or the presence/absence of other considerations.  Heffernan, from just last Term, makes clear that if the government takes adverse action against an employee based on their perceived political preference, that’s usually unconstitutional.  The size of the impact doesn’t matter.  And adverse action is just as present when there’s a clear failure to promote – “we’ll keep those people in their place” – as when there’s a firing.

(This doctrinal thread is not exclusive to partisanship – intent to injure based on religion works the same way.  Nor is it exclusive to the First Amendment.  In plenty of other arenas of con law, the specific intent to injure a disfavored group is sufficient to declare the action unconstitutional: bills of attainder, the dormant commerce clause, the 8th Amendment, cases like Moreno and Windsor.)

Indeed, it’s even easier than presenting an analog from the First Amendment employment cases.  Because this is also the logic of Cox v. Larios, and the lower court cases striking down unequal population based on impermissible partisanship.  These cases exist in a zone where the impact of population inequalities is unremarkable on its own.  The only thing that drives the outcome is impermissible intent to injure or subjugate based on party.

The logic of Gomillion — and Cox — is applicable to both individual districts and district-wide plans. But it doesn’t demand the impossible: it doesn’t demand districts drawn with no partisan information.  What it demands, instead, is that information in every legislator’s head not be demonstrably used to pass legislation designed specifically to injure the partisan opposition.

This is the standard to which every non-redistricting piece of legislation is held.  Legislators no doubt consider the preferences of their partisan voters in every bill they pass.  But even in these jaded partisan times, I think it would still inspire shock if a bill required Republicans to pay more in taxes because they are Republicans.  The amount doesn’t matter.  Neither would the presence of thousands of other reasons for the bill.

This is also the question that Justice Kennedy fixed on<http://redistricting.lls.edu/other/Cal%20Litigation%20final.pdf> in the Gill argument.  He asked<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_bpm1.pdf#page=27> if it would be constitutional for a state to require that all legitimate redistricting factors be used specifically to favor one party and disfavor another.  The answer does not depend on the resulting impact of the map.  It depends on whether the demonstrated intent is permissible.

The real meat of this test comes in demonstrating specific intent to injure, and this is where I think I most disagree with Nick.  Nobody writes the bill that Justice Kennedy asked about, and so litigants have to turn to other tools.  Nick suggests they’ll find it wherever one party’s in control … but though it may only be possible to find there, that’s not even close to passing muster under current law.  Feeney clearly says that invidious intent has to be proven, not just presumed.  And that standard is hard.  Really hard.  Go ahead and count the number of cases in the last decade won based on findings of invidious intent to injure based on race.  (The dearth isn’t because we’re post-racial.)  If the Court is prepared to revisit Feeney, that’s a whole different conversation – but I’m not getting that sense.  With all of the possible reasons why district lines might fall in X place rather than Y place, actually proving that the reason was a specific intent to injure opposing partisans will be a whole lot more difficult than simply citing the partisan legislative lineup.

Which comes to the last question: is it worth it?  I think the logical remedy for a First Amendment theory along the lines of Gomillion, or Cox, is not to require partisan-blind districts, but to require districts drawn for reasons other than using state power to injure or subjugate the partisan opposition.  This will not purge the process of partisanship.  It won’t even purge the process of partisan intent to injure – as in all litigation, there will always be a gap between what exists in reality and what is provable to a court on the evidence available.  But it would limit the extremes of obvious partisan excess.  And compared to the alternative, that sure seems like it’d be worthwhile.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98380&title=Still%20More%20on%20a%201st%20Amendment%20Theory%20of%20Gerrymandering>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Judge Walker orders Florida Executive Clemency Board to establish new voting rights restoration process”<http://electionlawblog.org/?p=98377>
Posted on March 27, 2018 8:56 pm<http://electionlawblog.org/?p=98377> by Rick Hasen<http://electionlawblog.org/?author=3>

FELN:<http://fairelectionsnetwork.com/wp-content/uploads/Release-FL-Entry-of-Judgement.pdf>

 U.S. District Court Judge Mark Walker issued a permanent injunction today that requires Florida’s Executive Clemency Board to establish a new voting rights restoration process for former felons by April 26. While the Court did not order the automatic restoration of voting rights for any former felons, he instructed the Clemency Board to establish “specific and neutral criteria to direct vote-restoration decisions,” and “meaningful, specific, and expeditious time constraints” for the voting rights restoration process. The opinion suggested under any new system no one should have to wait more than an election cycle for a decision on their application. The Court stated this relief “is appropriate to ensure that Florida’s vote-restoration scheme is no longer based on unfettered discretion.” Fair Elections Legal Network and the law firm Cohen Milstein Sellers & Toll PLLC, counsel for the plaintiffs in Hand v. Scott, filed the lawsuit in March 2017. In February 2018, Judge Walker ruled Florida’s arbitrary voting rights restoration process for persons with felony convictions violates the 1st and 14th Amendments to the United States Constitution. Florida is still permitted to deny the right to vote to persons with felony convictions, and felons still cannot register or vote until that right is restored.

The order begins:<http://fairelectionsnetwork.com/wp-content/uploads/160-Order-Directing-Entry-of-Judgment.pdf>

This Court is not the Vote-Restoration Czar. It does not pick and choose who may receive the right to vote and who may not. Nor does it write the rules and regulations for the Executive Clemency Board. Instead, this Court possesses the well-known and unsurprising “province and duty . . . to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And this Court possesses the unremarkable discretion to find a means for the Board to comply with the law. In its Order on Cross-Motions for Summary Judgment, this Court applied longstanding precedent from the Supreme Court and the Eleventh Circuit that invalidated unfettered-discretion schemes to a novel context; namely, that of felon re-enfranchisement. See generally ECF No. 144. And, as it has done in the past, this Court invited the parties to recommend appropriate remedial action. Defendants essentially repackage the current scheme into proposed remedies permitting the Governor and Board to do, as the Governor described, “whatever we want” in denying voting rights to hundreds of thousands of their constituents. ECF No. 144, at 2 (citation omitted). This will not do. And Defendants’ proposed remedy to abandon the whole vote-restoration scheme does not pass constitutional muster. If binding precedent spanning decades is to guide this Court—as it must—then an injunction must ensue to prevent further infringement. Florida’s vote-restoration scheme can no longer violate Plaintiffs’ fundamental First Amendment rights. Accordingly, as even Defendants acknowledge, “this Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan v. Coxe, 127 F.3d 155, 170 (1st Cir. 1997)).


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98377&title=%E2%80%9CJudge%20Walker%20orders%20Florida%20Executive%20Clemency%20Board%20to%20establish%20new%20voting%20rights%20restoration%20process%E2%80%9D>
Posted in felon voting<http://electionlawblog.org/?cat=66>


“That citizenship question on the 2020 Census? Kobach says he pitched it to Trump”<http://electionlawblog.org/?p=98375>
Posted on March 27, 2018 8:51 pm<http://electionlawblog.org/?p=98375> by Rick Hasen<http://electionlawblog.org/?author=3>

Bryan Lowry:<http://www.kansascity.com/news/politics-government/article207007581.html>

Kansas Secretary of State Kris Kobach encouraged President Donald Trump to add a question about citizenship status to the U.S. Census during the early weeks of Trump’s presidency.

More than a year later, Trump’s administration has moved to enact that exact policy for the 2020 census.

“I won’t go into exact detail, but I raised the issue with the president shortly after he was inaugurated,” Kobach said Tuesday.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98375&title=%E2%80%9CThat%20citizenship%20question%20on%20the%202020%20Census%3F%20Kobach%20says%20he%20pitched%20it%20to%20Trump%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“The Administration is Lying About the Census”<http://electionlawblog.org/?p=98373>
Posted on March 27, 2018 8:44 pm<http://electionlawblog.org/?p=98373> by Rick Hasen<http://electionlawblog.org/?author=3>

Important Joey Fishkin<https://balkin.blogspot.com/2018/03/the-administration-is-lying-about-census.html> at Balkinization:

The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years.  There has been a lot of speculation about possible political motivations for this action.  It is difficult to know exactly what motivates government actors whose deliberations are not public.  But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false.  It is not the real reason.

“Lying” is a strong word.  Many falsehoods are based on mistakes, confusion, carelessness, wishful thinking, and so on.  But today’s situation puts me in mind of an evidentiary pattern that arises constantly in employment discrimination law: The plaintiff thinks something nefarious has occurred, but has no direct proof; the defendant offers a legitimate, non-discriminatory reason for the disputed action; all the plaintiff can prove is that the proffered reason is false.  It’s then, ordinarily, up to the jury to sort out what really happened.  But the fact that the defendant offered up a reason that was definitely false is significant.  It raises a potential (contestable) inference that it may have been a lie, covering up something the defendant could not admit.

My sole aim in this post is to explain why the government’s stated reason for adding the citizenship question is false.  To understand this, you need to understand something about the role Census data plays in redistricting.  It plays two completely different roles….
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98373&title=%E2%80%9CThe%20Administration%20is%20Lying%20About%20the%20Census%E2%80%9D>
Posted in voting<http://electionlawblog.org/?cat=31>


“Federal Lawsuit Argues for Equal Citizenship in U.S. Territories”<http://electionlawblog.org/?p=98371>
Posted on March 27, 2018 2:36 pm<http://electionlawblog.org/?p=98371> by Rick Hasen<http://electionlawblog.org/?author=3>

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

Does Congress have the power to defy the Fourteenth Amendment’s guarantee that all persons born on U.S. soil and subject to U.S. jurisdiction are citizens of the United States by birth? This is the question raised by a federal lawsuit filed in the U.S. District Court for the District of Utah on behalf of a group of passport-holding, tax-paying Americans denied recognition as U.S. citizens and the right to vote simply because they were born in American Samoa, a U.S. territory since 1900. Fitisemanu v. United States<http://www.equalrightsnow.org/fitisemanu> makes the case that Congress cannot redefine the Citizenship Clause of the Fourteenth Amendment to deny citizenship to persons born on U.S. soil, whether born in a state, a territory, or the District of Columbia.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98371&title=%E2%80%9CFederal%20Lawsuit%20Argues%20for%20Equal%20Citizenship%20in%20U.S.%20Territories%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“NRA Says It Receives Foreign Funds, But None Goes To Election Work”<http://electionlawblog.org/?p=98369>
Posted on March 27, 2018 8:44 am<http://electionlawblog.org/?p=98369> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2018/03/27/597279176/nra-says-it-receives-foreign-funds-but-none-goes-to-election-work>

The National Rifle Association acknowledged that it accepts foreign donations but says it does not use them for election work — even as federal investigators look into the role the NRA might have played in Russia’s attack on the 2016 election.

Pressure on the organization has also been increased by a McClatchy report<http://www.mcclatchydc.com/news/nation-world/national/article195231139.htmlthe%20NRA%E2%80%99s%20General%20Counsel,%20John%20C.%20Frazer,%20wrote%20to%20Wyden%20in%20a%20letter%20obtained%20by%20NPR.> which suggested that the FBI had been investigating whether a top Russian banker with Kremlin ties<https://www.npr.org/2018/03/01/590076949/depth-of-russian-politicians-cultivation-of-nra-ties-revealed> illegally funneled money to the NRA to aid President Trump’s campaign for president. The Federal Election Commission has also opened a preliminary investigation<https://www.politico.com/story/2018/03/16/nra-russia-election-donations-fec-investigation-468661> into this question.

The NRA is not required to be transparent about how money moves between its various political entities, and this leaves questions unanswered about how these foreign funds were ultimately spent….

While the NRA claims it does not receive foreign money for election purposes, the movement of its money between accounts could make it difficult, if not impossible, to track how the money is spent since it is not isolated or sequestered.

The NRA has a variety of accounts, and the NRA Political Victory Fund is their official political action committee and must report all of its spending to the Federal Election Commission.

It also has other accounts that require less transparency, and do not report spending to the FEC — and in those funds, the NRA told Wyden, they “receive funds from foreign persons only for purposes not connected to elections, as permitted by federal law.”

However, the NRA acknowledges that money moves between those accounts: “transfers between accounts are made as permitted by law,” the NRA’s general counsel wrote.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98369&title=%E2%80%9CNRA%20Says%20It%20Receives%20Foreign%20Funds%2C%20But%20None%20Goes%20To%20Election%20Work%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Maltz Rejoinder: Partisan Gerrymandering and Original Meaning: One More Time<http://electionlawblog.org/?p=98367>
Posted on March 27, 2018 8:08 am<http://electionlawblog.org/?p=98367> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is the latest from Earl Maltz in his debate with Ned Foley. I’ve informed them both that they’ll have to take future rounds to another blog…..

Earl Maltz:



I have a couple of brief comments on Professor Foley’s response to my last post.
1.      In asserting that I am relying on the “original expected application” version of originalism, Professor Foley misconceives the fundamental nature of my argument.  Any constitutional argument requires a two step analysis. First, one must determine the content of the legal rule that is established by the relevant constitutional language.  Second, one must apply the legal rule to the specific fact situation that is being considered.

The version of originalism that underlies my arguments focuses on the first step of the analysis.  My basic point is that, by its terms, the text of the Times, Places and Manner Clause appears to provide the state governments with plenary authority to establish district boundary lines, subject only to the explicit limitations imposed by the Constitution itself and the power of Congress to override the decisions of the state legislature.  Viewed from this perspective, gerrymanders would be immune from judicial scrutiny not because the framers thought about the problem of gerrymandering specifically, but rather because of the establishment of the plenary power rule.  Madison’s discussion of the clause is relevant because it confirms the plain meaning of the language—a meaning that would have been well-understood by all of those involved in the drafting and ratification of the Constitution as well as the public at large.

Can one conceive of bizarre state rules that would test the limits of the plenary power concept?  Sure.  But confronted with the language of the Elections Clause in 1787, any reasonable observer would have understood that the clause gave state governments the unfettered power to draw legislative districts subject only to the congressional authority to override those judgments.
2.      From an original public meaning perspective, Professor Foley’s analogy to the Dormant Commerce Clause is also unpersuasive. Essentially, he is claiming that, in the late eighteenth century, the public generally would have believed that, by specifically providing Congress with the authority to override the decisions of a state government made pursuant to a power granted by the Constitution itself, the Constitution also implicitly gave the courts authority to override those same decisions.  Such a claim is simply implausible.

But in any event, far from supporting Professor Foley’s position, Ex Parte Siebold implicitly rejects the claim that the courts have the authority to override state election law decisions without statutory authorization.  The Siebold Court did mention the cases in which state laws had been held to run afoul of the Dormant Commerce Clause.  But throughout the opinion, the Court explicitly analogized Elections Clause cases to those in which the Court had concluded that state regulations of commerce were not unconstitutional, and emphasized the concurrent authority of the states to regulate federal elections in the absence of congressional action.  Thus, for example, the opinion asserted that “[t]he State may make regulations on the subject; Congress may make regulations on the same subject, or may alter or add to those already made. The paramount character of those made by Congress has the effect to supersede those made by the State, so far as the two are inconsistent, and no farther.”

The bottom line is that original meaning does not provide any solace to those who would argue that the use of partisan gerrymanders should be found unconstitutional.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98367&title=Maltz%20Rejoinder%3A%20Partisan%20Gerrymandering%20and%20Original%20Meaning%3A%20One%20More%20Time>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Texas: “We need to protect against vote tampering”<http://electionlawblog.org/?p=98365>
Posted on March 27, 2018 7:51 am<http://electionlawblog.org/?p=98365> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Wallach oped<http://www.star-telegram.com/opinion/opn-columns-blogs/other-voices/article206853604.html> in the Star-Telegram:

Election winners are always happy to take the win, but the losers — and often the voters — require evidence, and that evidence needs strong backing. Modern voting systems must engender confidence that the final tally represents the true preferences of voters, without manipulation or tampering. After apparent Russian interference in the 2016 national elections, politicians nationwide are investigating our security posture.

It seems that no Russian probes into Texas election systems went anywhere, but we might not be so lucky next time. Texas’s current voting systems were not designed to defend against the cyberattack skills that the Russians and other sophisticated adversaries can bring to bear. It’s time for our state to plan an orderly retirement of its old and insecure voting equipment and adopt better practices.

Texas has a unique chance to be a national leader here, and there are three Texans poised to lead the charge. Director of Elections Keith Ingram heads the Secretary of State’s investigation into election security. Under the Texas Cybersecurity Act, he must issue a report — due December 1, 2018 — that contains legislative recommendations aimed at bolstering our election systems.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98365&title=Texas%3A%20%E2%80%9CWe%20need%20to%20protect%20against%20vote%20tampering%E2%80%9D>
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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180328/510e731f/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/20180328/510e731f/attachment.png>