[EL] ELB News and Commentary 5/24/18

[Rick Hasen]

Indiana: “Judge says suit against sheriff can go forward; Claims Gladieux wouldn’t allow jail inmates to vote”<http://electionlawblog.org/?p=99182>
Posted on May 24, 2018 8:29 am<http://electionlawblog.org/?p=99182> by Rick Hasen<http://electionlawblog.org/?author=3>

The Journal-Gazette reports.<http://www.journalgazette.net/news/local/20180524/judge-says-suit-against-sheriff-can-go-forward>
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Posted in felon voting<http://electionlawblog.org/?cat=66>

“Free-speech complaint seeks dismissal of Huntington Beach’s effort to stop local gun ban petition”<http://electionlawblog.org/?p=99180>
Posted on May 24, 2018 8:28 am<http://electionlawblog.org/?p=99180> by Rick Hasen<http://electionlawblog.org/?author=3>

The LA Times reports.<http://www.latimes.com/socal/daily-pilot/news/tn-dpt-me-antislapp-petition-20180523-story.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Are Signs Saying a Vote for One Candidate in Maryland Governor’s Race is a Vote for Another? This Seems Dicey<http://electionlawblog.org/?p=99178>
Posted on May 24, 2018 8:22 am<http://electionlawblog.org/?p=99178> by Rick Hasen<http://electionlawblog.org/?author=3>

Baltimore Sun:<http://digitaledition.baltimoresun.com/infinity/article_share.aspx?guid=1766113c-1310-4f56-af3b-e96eafb8a43b>

The death of gubernatorial candidate Kevin Kamenetz continues to ripple through Maryland’s Democratic primary as state election officials struggle to replace his name with Valerie Ervin’s without having to toss the 1.5 million ballots they’ve already printed.

The Maryland Board of Elections proposed a solution on Tuesday: Post signs alerting voters of Kamenetz’s death and informing them that ballots cast for him will count for Ervin, his former running mate.

But the concept is not sitting well with Ervin and some of her Democratic rivals.

“Voters are going to be confused,” Ervin said.

Ervin, a former Democratic Montgomery County Council member, was frustrated that state elections officials gave her little time to sign off on the proposal after she had had just one week to decide if she would wage a statewide campaign for governor. Kamenetz selected Ervin as his running mate in February, but died May 10 of cardiac arrest.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Appeals Court Upholds Montana Campaign Finance Reform Law”<http://electionlawblog.org/?p=99176>
Posted on May 24, 2018 8:17 am<http://electionlawblog.org/?p=99176> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://www.usnews.com/news/best-states/montana/articles/2018-05-23/appeals-court-upholds-montana-campaign-finance-reform-law>

A three-judge panel of the 9th U.S. Circuit Court of Appeals said in an order Wednesday that the 2015 state law to increase campaign reporting and disclosure meets constitutional muster.

You can find the unpublished, unanimous opinion at this link<https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/05/22/16-35997.pdf>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


Court Uses Declaratory Judgment, Avoids Injunction to Get Trump to Unblock Twitter Followers: Will It Work?<http://electionlawblog.org/?p=99174>
Posted on May 24, 2018 7:56 am<http://electionlawblog.org/?p=99174> by Rick Hasen<http://electionlawblog.org/?author=3>

I plan to do more blogging about Remedies, especially given my news about coming on the Laycock casebook. <http://electionlawblog.org/?p=99128> And here’s an especially nice illustration of an important Remedies issue in the news.

Yesterday  a federal court held<https://knightcolumbia.org/sites/default/files/content/Cases/Wikimedia/2018.05.23%20Order%20on%20motions%20for%20summary%20judgment.pdf> that President Trump’s decision to block users on Twitter violates the First Amendment. This is big news<https://www.nytimes.com/2018/05/23/business/media/trump-twitter-block.html>, and Eugene Volokh gives his First Amendment take here<http://reason.com/volokh/2018/05/23/blocking-of-twitter-users-from-realdonal>.

But I wanted to point out an important Remedies issue. Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. “Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”

There’s a more extensive discussion near the end of the opinion. After noting a dispute over whether a court can issue an injunction against the President (there’s no doubt it could, the court says), it adds:

Accordingly, though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,” Franklin, 505 U.S. at 803 (plurality opinion); see Utah v. Evans, 536 U.S. at 464 (citing Franklin, 505 U.S. at 803 (plurality opinion)); see also Allco Fin. Ltd. v. Klee, 861 F.3d 82, 96 (2d Cir. 2017); Made in the USA, 242 F.3d at 1310; Swan, 100 F.3d at 980; L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time. Declaratory judgment is appropriate under the factors that the Second Circuit directs us to consider, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), and a declaration will therefore issue: the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment. “It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

The court is right that ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary (note the “at this time” language in the court opinion). It is a “myth” that declaratory judgments are milder, as Sam Bray argues<https://scholarship.law.duke.edu/dlj/vol63/iss5/2/>. And it made sense here for the court to piggy-back off that myth.

And yet, Donald Trump is a known norm breaker who has attacked the courts when they have decided against. It will be interesting to watch if the implicitly coercive declaratory judgment is enough to get Donald Trump to comply. Stephen Colbert even joked about it on The Late Show last night.

If Trump doesn’t comply, then we get into dicier territory, where an angrier judge can order Trump to comply and we will see what happens (as the President likes to say). Of course, this could all be mooted if the Second Circuit reverses on the merits on appeal.

But I’m watching this Remedies issue quite closely.


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Posted in Remedies<http://electionlawblog.org/?cat=57>


Voting Rights Scholars File SCOTUS Amicus Brief Urging Cert. Grant in Territorial Voting Case<http://electionlawblog.org/?p=99172>
Posted on May 23, 2018 2:29 pm<http://electionlawblog.org/?p=99172> by Rick Hasen<http://electionlawblog.org/?author=3>

Equally American Blog:<http://www.equalrightsnow.org/supreme_court_appeal_in_territorial_voting_rights_case_gets_boost>

A petition to the U.S. Supreme Court seeking expanded voting rights in U.S. territories has received an important boost. Puerto Rico, the Virgin Islands Bar Association, and leading voting rights scholars have each filed amicus briefs in support of Supreme Court review in Segovia v. United States<http://www.equalrightsnow.org/segovia>. Last month, Luis Segovia, a proud veteran living in Guam, along with other former state residents living in Guam, Puerto Rico and the U.S. Virgin Islands, petitioned the Supreme Court to answer whether it is constitutional to deny absentee voting rights in these territories while allowing citizens living in other U.S. territories or even a foreign country to continue being able to vote for President and voting representation in Congress….

Leading voting rights scholars argue in their brief<https://www.scribd.com/document/379987132/Segovia-v-United-States-Voting-Rights-Scholars-Amicus-Brief> that Supreme Court review is necessary to reverse the Seventh Circuit’s decision to apply a lower level of judicial scrutiny to the regulation of voting rights in U.S. territories than it would apply to similar laws impacting Americans in other parts of the United States.

The brief highlights several ways the Seventh Circuit’s decision conflicts with precedent from other federal courts. “Once a state legislature or Congress extends the right to vote to one group of people,” the brief explains “it cannot deprive another identically situated group of people of the right to cast a vote purely based on geography.

Amici include Samuel Issacharoff, Reiss Professor of Constitutional Law at NYU School of Law; Joshua Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law at University of Kentucky College of Law; Chad Flanders, Professor of Law at Saint Louis University School of Law; Joseph Fishkin, Marrs McLean Professor in Law at the University of Texas at Austin School of Law; Nicholas Stephanopoulos, Fried Professor of Law at the University of Chicago Law School; and Ciara Torres-Spelliscy, Leon Highbaugh Sr. Research Chair and Professor of Law, Stetson University.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Very Important William & Mary Law Review Redistricting Symposium Now Available<http://electionlawblog.org/?p=99165>
Posted on May 23, 2018 9:28 am<http://electionlawblog.org/?p=99165> by Rick Hasen<http://electionlawblog.org/?author=3>

Good things come to those who wait. This<https://wmlawreview.org/> is a particularly important symposium, given all that has happened and soon will happen with redistricting.
Issue 5 (APRIL 2018)
ARTICLES:

A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluation Redistricting Proposals <https://wmlawreview.org/reasonable-bias-approach-gerrymandering-using-automated-plan-generation-evaluation-redistricting> Bruce E. Cain, Wendy K Tam Cho, Yan Y. Liu, & Emily R. Zhang

Race and Representation Revisited: The New Racial Gerrymandering Cases and Section 2 of the VRA <https://wmlawreview.org/race-and-representation-revisited-new-racial-gerrymandering-cases-and-section-2-vra> Guy-Uriel E. Charles & Luis Fuentes-Rohwer

From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders <https://wmlawreview.org/educational-adequacy-representational-adequacy-new-template-legal-attacks-partisan-gerrymanders> Christopher S. Elmendorf

Taking Virtual Representation Seriously <https://wmlawreview.org/taking-virtual-representation-seriously> Joseph Fishkin

The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent <https://wmlawreview.org/gerrymander-and-constitution-two-avenues-analysis-and-quest-durable-precedent> Edward B. Foley

Redistricting Transparency <https://wmlawreview.org/redistricting-transparency> Rebecca Green

Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases <https://wmlawreview.org/race-or-party-race-party-or-party-all-time-three-uneasy-approaches-conjoined-polarization> Richard L. Hasen

Something Old, Something New, or Something Really Old? Second Generation Racial Gerrymandering Litigation as Intentional Racial Discrimination <https://wmlawreview.org/something-old-something-new-or-something-really-old-second-generation-racial-gerrymandering> Dale E. Ho

Reapportionment, Nonapportionment, and Recovering Lost History of One Person, One Vote <https://wmlawreview.org/reapportionment-nonapportionment-and-recovering-lost-history-one-person-one-vote> Pamela S. Karlan

Second 2 After Section 5: Voting Rights and the Race to the Bottom <https://wmlawreview.org/second-2-after-section-5-voting-rights-and-race-bottom> Ellen D. Katz

Intent Is Enough: Invidious Partisanship in Redistricting <https://wmlawreview.org/intent-enough-invidious-partisanship-redistricting> Justin Levitt

Prophylactic Redistricting? Congress’s Section 5 Power and the New Equal Protection Right to Vote <https://wmlawreview.org/prophylactic-redistricting-congresss-section-5-power-and-new-equal-protection-right-vote> Michael T. Morley

The Causes and Consequences of Gerrymandering <https://wmlawreview.org/causes-and-consequences-gerrymandering> Nicholas O. Stephanopoulos

Gerrymandering and Association <https://wmlawreview.org/gerrymandering-and-association> Daniel P. Tokaji

Election Law “Federalism” and the Limits of the Antidiscrimination Framework <https://wmlawreview.org/election-law-federalism-and-limits-antidiscrimination-framework> Franita Tolson
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Lawsuit seeks to toss out Ohio’s congressional map in time for 2020 election”<http://electionlawblog.org/?p=99163>
Posted on May 23, 2018 8:39 am<http://electionlawblog.org/?p=99163> by Rick Hasen<http://electionlawblog.org/?author=3>

Cleveland Plain Dealer:<https://www.cleveland.com/metro/index.ssf/2018/05/lawsuit_filed_to_toss_out_ohio.html#article>

A federal lawsuit filed Wednesday in Cincinnati seeks to toss out Ohio’s gerrymandered congressional district map on constitutional grounds and create more balanced districts in time for the 2020 election.

If successful, the suit would move up the timetable by two years for congressional redistricting reform in Ohio. And it could jeopardize some of what otherwise would be safe incumbent seats during a presidential election year.

ACLU complaint.<https://www.aclu.org/legal-document/ohio-philip-randolph-institute-v-kasich-complaint>
View image on Twitter<https://twitter.com/JessicaHuseman/status/999304408692350976/photo/1>
[View image on Twitter]<https://twitter.com/JessicaHuseman/status/999304408692350976/photo/1>
[https://pbs.twimg.com/profile_images/982759035995869191/IoSeRhv5_bigger.jpg]<https://twitter.com/JessicaHuseman>
<https://twitter.com/JessicaHuseman>
Jessica Huseman<https://twitter.com/JessicaHuseman>
✔@JessicaHuseman<https://twitter.com/JessicaHuseman>

<https://twitter.com/JessicaHuseman/status/999304408692350976>


Breaking: @ACLU<https://twitter.com/ACLU> just filed a lawsuit challenging Ohio's U.S. congressional map, which they say was the result of unconstitutional gerrymandering. The maps were drawn in a secret hotel room only republicans had access to called "The Bunker." Filing: https://www.aclu.org/legal-document/ohio-philip-randolph-institute-v-kasich-complaint …<https://t.co/gUp7vu3mFL>
8:01 AM - May 23, 2018<https://twitter.com/JessicaHuseman/status/999304408692350976>
·         <https://twitter.com/intent/like?tweet_id=999304408692350976>
538<https://twitter.com/intent/like?tweet_id=999304408692350976>
·         <https://twitter.com/JessicaHuseman/status/999304408692350976>
338 people are talking about this<https://twitter.com/JessicaHuseman/status/999304408692350976>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in 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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>


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