[EL] ELB News and Commentary 3/29/18

Wed Mar 28 20:46:40 PDT 2018

After the Maryland Redistricting Argument at the Supreme Court, Will the Effort to Rein In Partisan Gerrymandering End with a Whimper?<http://electionlawblog.org/?p=98408>
Posted on March 28, 2018 8:40 pm<http://electionlawblog.org/?p=98408> by Rick Hasen<http://electionlawblog.org/?author=3>

When the Supreme Court agreed to hold a full hearing in the Maryland redistricting case, Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/?wpmp_switcher=desktop>, many of us wondered why the Court set a full hearing rather than simply hold the case for resolution of the Gill v. Whitford<http://www.scotusblog.com/case-files/cases/gill-v-whitford/?wpmp_switcher=desktop> partisan gerrymandering case from Wisconsin, which the Court heard in October. I advanced<http://www.latimes.com/opinion/op-ed/la-oe-hasen-gerrymandering-maryland-20171211-story.html> four possible theories: congressional vs. state redistricting; one district challenge vs. statewide challenge; First Amendment theory vs. equal protection theory; and Democrats as bad actors vs. Republicans as bad actors.

But as the transcript<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-333_8mjp.pdf> of today’s oral argument in the Maryland case shows, the most likely reason for the full argument is that the Court has not reached any agreement on how to resolve the earlier Wisconsin case, and setting this gives the Court more material to potentially work with.

If that was the plan, however, it did not go well. Just look at the words in the headlines of articles rounded up by Howard<https://howappealing.abovethelaw.com/2018/03/28/#75744> from today’s arguments: “no consensus;” frustration,” “elusive,” “struggle,” “grapple,” “befuddle.” It was pretty clear from reading the transcript that there were many Justices who both found the Democratic gerrymander in Maryland egregiously bad, and easy to prove with bad intent. But there were also many Justices (some of the same Justices) who were entirely unsatisfied with a test which would ask, as plaintiffs claim, whether this is simply a question of bad partisan intent. And nary a word about the “efficiency gap” or other standards which were bandied about in the earlier Wisconsin oral argument.

Things were so bad that Justice Breyer suggested setting Wisconsin and Maryland for reargument in the fall, along with a pending North Carolina case which was waiting in the wings. Some of us saw this as a plea to get Justice Kennedy to stay on the Court to see this to the end. Lyle Denniston wonders  w<http://lyldenlawnews.com/2018/03/28/extreme-gerrymander-invalid/>hether Breyer was bringing out an idea that had already been discussed behind closed doors But it sure seemed like the Justices were no closer to deciding Maryland or Gill after this argument than before it. And perhaps the befuddlement and frustration over the issue is leading to the loss of productivity on the part of the Court, which is behind on issuing opinions this term.

So what might happen next? I was struck in the Maryland argument at how easy it would be for the Court to punt in this case. It involves a preliminary injunction, where there is great discretion in the district court, and which is not a final decision on the merits. The Justices (thinking of the Purcell principle) openly questioned whether it was too late for there to be a remedy in time for 2018 even if the Court set out a standard. It would be very easy for the Court to issue a non-opinion getting rid of the case at this stage and putting the issue off for a few years. Wisconsin could also be disposed of on technical grounds like standing.

Doing so no only prolongs an ultimate decision on the question, but it also potentially would have the Court make the decision with new personnel. If Justice Kennedy is indeed the swing vote, it is, as I told<https://www.npr.org/2018/03/28/596220408/extreme-partisan-gerrymandering-the-supreme-courts-play-in-3-acts> NPR’s Nina Totenberg, put-up-or-shut-up time:  ‘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.”

There may not be a perfect solution here, but if the Court cannot come up with something, and puts the issue off for another day, the last best chance to rein in partisan gerrymandering by the federal courts may be lost for at least a generation.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98408&title=After%20the%20Maryland%20Redistricting%20Argument%20at%20the%20Supreme%20Court%2C%20Will%20the%20Effort%20to%20Rein%20In%20Partisan%20Gerrymandering%20End%20with%20a%20Whimper%3F>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Gov. Scott Walker abandons court fight to hold off special elections after appellate judge rules against him”<http://electionlawblog.org/?p=98406>
Posted on March 28, 2018 7:48 pm<http://electionlawblog.org/?p=98406> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2018/03/28/senate-republicans-hold-hearing-race-block-court-order-special-elections-wisconsin/465333002/>

 An appellate judge Wednesday became the third in a week to rule against Gov. Scott Walker’s attempt to hold off on two special elections, prompting Walker to abandon an attempt to take the issue to the state Supreme Court.

Walker is expected to order the special legislative elections by Thursday’s noon deadline set by a judge last week.

Walker and his fellow Republicans who control the Legislature this week have been advancing legislation that could avoid the special elections and they could still pursue that option — which would trigger a new court fight.

District 2 Court of Appeals Judge Paul Reilly in Waukesha left in place a lower court order that the GOP governor call the elections, rejecting Walker’s arguments that he needed an extra eight days to let the Legislature change the law and eliminate the need for the elections.

“We know of no law that allows us to disregard the (statute),” reads the order<https://www.documentcloud.org/documents/4425637-Appeal-Ruling-Special-Elections.html> from Reilly, who was first elected to the appeals court in 2010.”Representative government and the election of our representatives are never ‘unnecessary,’ never a ‘waste of taxpayer resources,’ and the calling of the special elections are, as the governor acknowledges, his ‘obligation.’ “
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98406&title=%E2%80%9CGov.%20Scott%20Walker%20abandons%20court%20fight%20to%20hold%20off%20special%20elections%20after%20appellate%20judge%20rules%20against%20him%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Watch Archived Video of Erwin Chemerinsky Interviewing Me at the LA ALOUD Program on Justice Scalia’s Legacy and My New Book<http://electionlawblog.org/?p=98404>
Posted on March 28, 2018 6:18 pm<http://electionlawblog.org/?p=98404> by Rick Hasen<http://electionlawblog.org/?author=3>

Great conversation! (alternative link.)<https://www.youtube.com/watch?v=L8dSQ6ehEN4>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98404&title=Watch%20Archived%20Video%20of%20Erwin%20Chemerinsky%20Interviewing%20Me%20at%20the%20LA%20ALOUD%20Program%20on%20Justice%20Scalia%E2%80%99s%20Legacy%20and%20My%20New%20Book>
Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“An important first step to protect our elections”<http://electionlawblog.org/?p=98402>
Posted on March 28, 2018 6:04 pm<http://electionlawblog.org/?p=98402> by Rick Hasen<http://electionlawblog.org/?author=3>

Adam Ambrogi oped<http://thehill.com/opinion/campaign/380392-an-important-first-step-to-protect-our-elections> in The Hill:

The issue came to a head in 2016 with various reports and claims of hacks, data breaches and leaks. While the intelligence community and experts are confident that no votes were changed in 2016, the threat to our system is real.

In the 16 months since the election, Congress has not acted. Some members of Congress went as far as proposing to actually eliminate the EAC. The good news is that this week as a nation, we have turned a corner and those efforts to threaten the EAC have been rebuked by leaders of both parties.

Thanks to the hard work of a bipartisan group of congressional leaders such as Republican Sens. Lankford and Graham joining with Democratic Sens. Klobuchar and Harris, the omnibus spending bill that was enacted allocates $380 million to shore up our voting system<http://www.businessinsider.com/congress-included-election-security-in-spending-bill-2018-3>. The legislation gives the EAC funding to help states promote election cybersecurity: secure election websites and registration systems, replace unverifiable voting machines, promote election audits, train election officials on how to respond to these threats, and on other election security best practices.

States now have some important choices, and we know election officials will work hand-in-hand with the federal partners and experts to prioritize funding to prepare against the greatest threats to the system. And significantly, we have reached a bipartisan consensus on a commonsense solution, one of the greatest threats to our democracy.

But we’re still not out of the woods.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98402&title=%E2%80%9CAn%20important%20first%20step%20to%20protect%20our%20elections%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

“Why the Insular Cases Must Become the Next Plessy”<http://electionlawblog.org/?p=98400>
Posted on March 28, 2018 5:34 pm<http://electionlawblog.org/?p=98400> by Rick Hasen<http://electionlawblog.org/?author=3>

Neal Weare<https://blog.harvardlawreview.org/why-the-insular-cases-must-become-the-next-plessy/> for the HLR blog.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98400&title=%E2%80%9CWhy%20the%20Insular%20Cases%20Must%20Become%20the%20Next%20Plessy%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“NAACP lawsuit seeks to prevent undercount of minority communities”<http://electionlawblog.org/?p=98398>
Posted on March 28, 2018 5:32 pm<http://electionlawblog.org/?p=98398> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/social-issues/naacp-lawsuit-seeks-to-prevent-undercount-of-minority-communities/2018/03/27/a400af48-31fc-11e8-8bdd-cdb33a5eef83_story.html?utm_term=.534dede09e12>

The NAACP said it is planning to file a lawsuit against the Census Bureau, the secretary of commerce and President Trump to force a more accurate count of minority populations such as those residing in Prince George’s County, Md., which had one of the highest undercounts nationwide in the last census.

Calling the government’s preparation for the 2020 count “conspicuously deficient,” the lawsuit will allege that the census violates a constitutional mandate to count all the people in the country and disproportionately harms African American and Hispanic populations.

The civil rights organization’s national headquarters, along with its Prince George’s branch and the county, said it plans to file the lawsuit, which also names the bureau director and the United States, on Wednesday.

See also this press release.<http://www.naacp.org/latest/naacp-prince-georges-county-sue-unconstitutional-census-preparations/>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98398&title=%E2%80%9CNAACP%20lawsuit%20seeks%20to%20prevent%20undercount%20of%20minority%20communities%E2%80%9D>
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Maryland’s electoral maps show how proportional representation could solve the problem of gerrymandering”<http://electionlawblog.org/?p=98396>
Posted on March 28, 2018 5:26 pm<http://electionlawblog.org/?p=98396> by Rick Hasen<http://electionlawblog.org/?author=3>

 Alex Keena<http://wp.me/p3I2YF-7F9#Author>, Michael Latner<http://wp.me/p3I2YF-7F9#Author>, Anthony J. McGann<http://wp.me/p3I2YF-7F9#Author>, and Charles Anthony Smith<http://wp.me/p3I2YF-7F9#Author> have written this post<http://blogs.lse.ac.uk/usappblog/2018/03/27/marylands-electoral-maps-show-how-proportional-representation-could-solve-the-problem-of-gerrymandering/>at the LSE Blog.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98396&title=%E2%80%9CMaryland%E2%80%99s%20electoral%20maps%20show%20how%20proportional%20representation%20could%20solve%20the%20problem%20of%20gerrymandering%E2%80%9D>
Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, redistricting<http://electionlawblog.org/?cat=6>

Benisek oral argument<http://electionlawblog.org/?p=98394>
Posted on March 28, 2018 11:48 am<http://electionlawblog.org/?p=98394> by Justin Levitt<http://electionlawblog.org/?author=4>

After a redistricting treatise<http://electionlawblog.org/?p=98380> this morning, just a snippet of follow-up for now.

This morning<http://electionlawblog.org/>, I suggested that the question on the substance of a First Amendment claim for the partisan gerrymandering cases — the question in line with First Amendment doctrine elsewhere — has to do with the invidious intent to injure or subjugate.  (This isn’t the only right question: there are other, complementary, claims dealing with effect.  But it’s a right question, and a sufficient one to address the claims before the Court.)  And I pointed out that in Gill, Justice Kennedy repeatedly hammered a question on exactly these lines.

The transcript is now out<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-333_3e04.pdf> for Benisek.  And Justice Kennedy asked precisely the same question<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-333_3e04.pdf#page=46>, again.  Just sayin’.

[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98394&title=Benisek%20oral%20argument>
Posted in redistricting<http://electionlawblog.org/?cat=6>

--
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/20180329/edd855bb/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/20180329/edd855bb/attachment.png>