[EL] ELB News and Commentary 5/16/18

[Rick Hasen]

New Hampshire: “Court could decline Gov. Sununu’s request to give advisory opinion on new election law”<http://electionlawblog.org/?p=99081>
Posted on May 16, 2018 7:39 am<http://electionlawblog.org/?p=99081> by Rick Hasen<http://electionlawblog.org/?author=3>

Union-Leader:<http://www.newhampshire.com/state-government/Court-could-decline-Gov-Sununus-request-to-give-advisory-opinion-on-new-election-law-05162018>

 Gov. Chris Sununu is preparing to ask the state Supreme Court for an advisory opinion on a controversial new election law, but the court has dodged such questions in the recent past.

The governor announced on Tuesday that he plans to bring a late item to the Executive Council today asking the council to adopt a resolution regarding HB 1264<http://gencourt.state.nh.us/bill_status/results.aspx?lsr=2977&sortoption=&txtsessionyear=2018&txtbillnumber=hb1264>, the bill defining residency as a condition for voting.

Supporters say the bill will help ensure that only New Hampshire residents vote in state elections, while opponents say it will suppress the vote of college students and others living in the state on a temporary basis, but still entitled to vote here.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“Mexican national indicted for illegal voting in Harris County”<http://electionlawblog.org/?p=99079>
Posted on May 16, 2018 7:36 am<http://electionlawblog.org/?p=99079> by Rick Hasen<http://electionlawblog.org/?author=3>

Houston Chronicle:<https://www.chron.com/news/houston-texas/houston/article/Mexican-national-indicted-for-illegal-voting-in-12914425.php>

A Mexican citizen accused of voting in three different elections in Texas has been indicted on two counts of election fraud linked to the November 2016 presidential election.

Texas Attorney General Ken Paxton vowed to prosecute the case, which comes amid increased attention on voter fraud nationally and in Texas, where two North Texas women were sentenced to several years in prison for illegal voting.

Laura Janeth Garza, 38, was arrested Friday in Houston after being indicted by a Montgomery County grand jury on two charges of illegally voting in Harris County after allegedly stealing the identity of a U.S. citizen and using the information to register to vote…..

Garza allegedly obtained documents to steal the identity of a U.S. citizen and illegally registered to vote in Harris County, according to a joint investigation by Paxton’s office and the Texas Department of Public Safety. She used the alias Angie Yadira Zamora and cast ballots in 2004, 2012 and 2016.

The investigation launched when a Montgomery County citizen attempting to obtain a U.S. passport discovered that Garza had already done so using the woman’s identity, according to the Attorney General’s Office. The AG’s Office and the Texas Department of Public Safety Criminal Investigations Division will continue to work together on the investigation and prosecution, he said.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


Gorsuch-Backing, Garland-Fighting “Judicial Crisis Network” Conduit for Large, Anonymous Donation to Trump Inaugural Committee<http://electionlawblog.org/?p=99077>
Posted on May 16, 2018 7:20 am<http://electionlawblog.org/?p=99077> by Rick Hasen<http://electionlawblog.org/?author=3>

It‘s not jus<http://electionlawblog.org/?p=99056>t the Federalist Society.  Turns out that the group with big, dark money supporting the nomination of Justice Gorsuch and blocking Judge Garland was vehicle for giving large, unreported donation to Trump inaugural committee. Read the thread<https://twitter.com/RobertMaguire_/status/996731979755335680>:
View image on Twitter<https://twitter.com/RobertMaguire_/status/996731979755335680/photo/1>
[View image on Twitter]<https://twitter.com/RobertMaguire_/status/996731979755335680/photo/1>
[https://pbs.twimg.com/profile_images/987526842482642944/K7WLrtRa_bigger.jpg]<https://twitter.com/RobertMaguire_>
<https://twitter.com/RobertMaguire_>
Robert Maguire<https://twitter.com/RobertMaguire_>
✔@RobertMaguire_<https://twitter.com/RobertMaguire_>

<https://twitter.com/RobertMaguire_/status/996731979755335680>


Got another large payment to the mysterious LLC that gave $1 million to President Trump's inauguration. Story to come.
5:39 AM - May 16, 2018<https://twitter.com/RobertMaguire_/status/996731979755335680>
·         <https://twitter.com/intent/like?tweet_id=996731979755335680>
116<https://twitter.com/intent/like?tweet_id=996731979755335680>
·         <https://twitter.com/RobertMaguire_/status/996731979755335680>
65 people are talking about this<https://twitter.com/RobertMaguire_/status/996731979755335680>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

That’s one way to convince the president to outsource the choosing of judicial nominations to your groups.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


Stanford Law School Event This Friday and Saturday: The Constitution and Political Parties<http://electionlawblog.org/?p=99075>
Posted on May 15, 2018 4:20 pm<http://electionlawblog.org/?p=99075> by Rick Hasen<http://electionlawblog.org/?author=3>

Really looking forward<https://law.stanford.edu/event/constitutional-law-center-conference-constitution-political-parties/> to this (though I can only stay for the first day).

View the schedule.<https://www-cdn.law.stanford.edu/wp-content/uploads/2017/10/Constitution-Political-Parties-Schedule-Public-1.pdf>


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


Utah: “‘It’s hearsay’: Navajo Democrat responds after San Juan County kicks him off the special election ballot”<http://electionlawblog.org/?p=99072>
Posted on May 15, 2018 3:31 pm<http://electionlawblog.org/?p=99072> by Rick Hasen<http://electionlawblog.org/?author=3>

The Salt Lake Tribune reports.<https://www.sltrib.com/news/politics/2018/05/11/its-hearsay-navajo-democrat-responds-after-san-juan-county-kicks-him-off-the-special-election-ballot/>


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


“Will Missouri GOPers Be First To Pounce On Trump’s Census Citizenship Gambit?”<http://electionlawblog.org/?p=99070>
Posted on May 15, 2018 10:15 am<http://electionlawblog.org/?p=99070> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/missouri-citizen-redistricting-ballot-iniative>

State-level Republicans are pouncing on the Trump administration’s move to add a citizenship question to the Census as a way to boost their electoral advantage in the next round of redistricting.

Missouri Republicans last week advanced<https://legiscan.com/MO/rollcall/HJR100/id/752345> a measure that would put on November’s ballot a constitutional amendment to require state legislative districts to be drawn using the number of citizens, rather than total population. Two Republicans defected from the otherwise 90-34 party line House vote.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“The Agnostic’s Guide to Judicial Selection”<http://electionlawblog.org/?p=99068>
Posted on May 15, 2018 10:12 am<http://electionlawblog.org/?p=99068> by Rick Hasen<http://electionlawblog.org/?author=3>

James Sample, who does some of the best legal work on judicial selection mechanisms, has postedthis draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3176505> on SSRN (forthcoming Depaul Law Review). Here is the abstract:

The vast majority of judicial selection discussions, whether in academia, on the bench, or in the bar, portray an unintended erudition. Although dressed down in the sartorial language of pragmatics, judicial selection debates are, albeit unintentionally, actually abstract philosophical discussions of competing Platonic Forms. The debates exist in an ethereal realm entirely separate from the earthly grime of the manner in which judges are actually selected. This Article asserts that, while the Forms debate has its place, its high temperatures, infinite circularity, and chasm of separation from the actual day-to-day grind of administering justice for the rule of law’s true consumers, renders the debate a luxury that, as a citizenry, we should no longer blindly indulge. Instead of asking “which method of judicial selection is ‘best,’” we should ask “how can we improve our current judicial selection systems, whatever they may be?”

The purpose of this Article is simple: to encourage the de-emphasis of the Forms version of the judicial selection debate in favor of a heightened focus on incremental improvements that actually redound to the benefit of litigants and the citizenry. Scholarly energies ought to be refocused from lofty Forms questions to the less lofty, but no less difficult, questions of incremental improvements. This is not to say that the Forms debate does not matter. After all, “[w]e should care about how America picks its judges because we should care about who becomes judges because we should care about the decisions that judges make.” We should care because judges interpret constitutions and statutes; because judges create law; and because judges “are powerful people who control the fates of parties who petition the courts to resolve their disputes.” The Forms debate, perhaps because of its endlessness, offers substantial guidance as to the strengths and weaknesses of various modes of selection. But at a certain point, we must stop merely repackaging old arguments as new, and must devote energy, through academic work or advocacy, towards improving the systems that real people come in contact with every single day.
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Posted in judicial elections<http://electionlawblog.org/?cat=19>


The Brazenness of Partisan Intent in the Court’s Gerrymandering Cases<http://electionlawblog.org/?p=99065>
Posted on May 15, 2018 9:44 am<http://electionlawblog.org/?p=99065> by Richard Pildes<http://electionlawblog.org/?author=7>

A significant feature in these cases is the sheer brazenness with which critical legislators in the redistricting process across various states have been willing to blatantly proclaim their aggressive partisan objectives.  In the previous major cases before the Court, from prior decades, the Court was not faced with stark evidence of such extreme declarations of partisan manipulative intent.

One wonders whether the in-your-face nature of these declarations will affect the Court’s decisions – including the cumulative effect across several cases of seeing how legislators now openly talk about gerrymandering.

Consider North Carolina, which involves congressional districts that the lower court struck down as Republican partisan gerrymanders.  The chairs of the redistricting committees in the house and senate were Rep. Lewis and Sen. Rucho.  In the findings of the lower court, Lewis is quoted as follows:
·         “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”
·         “[W]e want to make clear that to the extent we are going to use political data in drawing this map, it is to gain partisan advantage . . . . I’m making clear that our intent is to use . . . the political data . . . to our partisan advantage.”
·         “I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”
·         “I acknowledge freely that [the 2016 Plan] would be a political gerrymander, which is not against the law.”

Similarly, Rucho publicly stated:  there is “nothing wrong with political gerrymandering” because, as he understood the law, “[i]t is not illegal.”

Jurisdictional motions are currently before the Court in the North Carolina case.

In Maryland, in which the Court has heard argument already, the allegations involve a Democratic partisan gerrymander of congressional districts.  Then- Governor O’Malley made the following candid acknowledgments, including in his testimony:
·         The goal of the Democrats, in control of the process, was to “re[draw] the lines” the Sixth District to “put more Democrats and Independents into the Sixth District” and ensure “the election of another Democrat.”
·         “It was also my intent to . . . create a district where the people would be more likely to elect a Democrat than a Republican, yes, this was clearly my intent.”

In the Wisconsin case involving state legislative districts, which the Court has heard already, the record does not include as dramatic and express proclamations of intent.  But the evidence of partisan intent is dramatic there too.  As a result of the discovery process, the Court has been exposed to the internal workings of a redistricting process that exhibits equally bald evidence of partisan intent to manipulate the map.

The redistricters, for example, created a series of plans, with titles like “Adam Assertive” and “Joe Aggressive,” which indicated just how aggressive different partisan gerrymandering plans were.  They then evaluated these different maps based on how many Republican seats they were expected to yield, if Republicans got a certain percentage of the statewide vote overall for the state house or senate.  They also “stress-tested” the maps to make sure they would yield a Republican majority under a range of plausible statewide votes for each political party.  The internal workings of the redistricting process, which reveal the unequivocal partisan intent at play, have never been opened up this fully in prior partisan gerrymandering cases before the Court.

All this amounts to much starker, more extreme records of partisan intent than in the two major prior cases from past decades, Davis v. Bandemer, 478 U.S. 109 (1986) and Vieth v. Jubelirer, 541 U.S. 267 (2004).  You can find individual cases in the state or lower courts where legislators have occasionally said similar things in the past, but as this troika of cases before the Court presents a pattern of unabashed proclamations of partisan intent.  Why have legislators become more willing to so boldly proclaim their partisan aims?

Supreme Court doctrine over the last 15 years might be one reason.  As the comments from North Carolina reveal, the message legislators have gotten from the Court’s decisions is that a “political gerrymander … is not against the law.”  That message stems partly from something of a misreading of Vieth, but certainly a plausible misreading, since Vieth signaled the Court was unlikely to do anything to address partisan gerrymandering.  And it comes from the racial redistricting cases, which starting in 2001 told legislators they could successfully defend against a claim of racial gerrymandering by showing that politics, not race, best explained why voters had been moved between districts.  The Court has contributed directly to what is now staring it in the face.

Up until now, the Court has said that plaintiffs must show more than just a partisan intent to manipulate the design of election districts.  But faced with the kind of evidence the Court is now beginning to see in case after case of blatant, extreme, and often openly-proclaimed partisan intent to manipulate districting maps, one wonders whether a majority of the Court will find it so easy to permit all this to continue without any judicial constraint.




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Posted in redistricting<http://electionlawblog.org/?cat=6>, Uncategorized<http://electionlawblog.org/?cat=1>


--
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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