[EL] ELB News and Commentary 5/29/18

[Rick Hasen]

“Goofy, Elephant, Squid: How Political Gamesmanship Distorts Voters’ Power”<http://electionlawblog.org/?p=99219>
Posted on May 28, 2018 9:33 pm<http://electionlawblog.org/?p=99219> by Rick Hasen<http://electionlawblog.org/?author=3>

Retro Report<https://www.nytimes.com/2018/05/28/us/30retro-gerrymandering-districts.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=sectionfront> at the NYT on gerrymandering.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Campaign-Finance Reform Can Save the GOP”<http://electionlawblog.org/?p=99217>
Posted on May 28, 2018 9:27 pm<http://electionlawblog.org/?p=99217> by Rick Hasen<http://electionlawblog.org/?author=3>

Reihan Salam<https://www.theatlantic.com/politics/archive/2018/05/campaign-finance-reform-can-save-the-gop/561143/> for the Atlantic:

How might we address this bias? Take the “Seattle idea<https://www.nationalreview.com/2017/09/democrats-silicon-valley-rich-entrepreneurs-changing-party-working-class-image/>,” which draws heavily on the scholarly work<https://yalebooks.yale.edu/book/9780300101492/voting-dollars> of the liberal legal academics Bruce Ackerman and Ian Ayres. In 2015, Seattle voters approved a measure that provided all registered voters with a $100 “democracy voucher” they could then use to support local candidates of their choice. Among other things, such a system greatly expands the universe of potential donors, which in turn could influence the agendas and sensibilities of aspiring elected officials. Representative Ro Khanna of California, an iconoclastic Democrat, has proposed a similar system<https://khanna.house.gov/media/editorials/heres-campaign-finance-law-would-take-democracy-back-1-percent> for funding federal campaigns, in which voters would be issued $50 in “democracy dollars.” Under this system, candidates would be more than welcome to raise campaign funds exactly as they do today. But they would have the option to instead enroll in the democracy dollar system, in which case they would be barred from raising hard-money contributions.

Imagine adding a civic-republican twist to Khanna’s proposal: What if voters could only use their democracy dollars to support candidates for whom they could actually vote? That would further encourage candidates to heed their constituents. We would thus have candidates running on two separate tracks: those who would rely solely on their ability to garner contributions from the women and men they are seeking to represent, and another for those confident in their ability to raise campaign funds from wealthy out-of-state donors. There are, to be sure, kinks to be ironed out. Inevitably, unscrupulous grifters will seek to hoover up democracy dollars for their own purposes, which will necessitate strict regulation. And yes, that is less than ideal. But without something like Khanna’s system, Republicans might have no choice other than relying on an endless series of celebrities and provocateurs who, like Trump himself, can attract endless hours of free media attention. That wouldn’t be so wholesome either.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Almost Half Of Republicans Believe Millions Voted Illegally In The 2016 Election”<http://electionlawblog.org/?p=99215>
Posted on May 28, 2018 9:25 pm<http://electionlawblog.org/?p=99215> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPost:<https://www.huffingtonpost.com/entry/republicans-voter-fraud_us_5b0850f8e4b0fdb2aa53791f>

Nearly half of Republicans believe millions of people voted illegally in the last presidential election ― a claim that President Donald Trump<https://www.huffingtonpost.com/topic/donald-trump> has repeatedly made, even though neither he nor anyone else has produced concrete evidence to show it’s true.

Forty-eight percent of Republicans said they believe between 3 million and 5 million people voted illegally in 2016, while 17 percent said they do not, according to a new HuffPost/YouGov poll<https://big.assets.huffingtonpost.com/athena/files/2018/05/25/5b084adbe4b0568a880b4571.pdf>. Another 35 percent of the GOP said they were unsure.

Just under one-quarter of Democrats said they believed the allegations that millions of votes were cast illegally, while 51 percent said they didn’t and 26 percent said they were unsure.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Dark money tactics used in West Virginia’s primary could spread as midterm season heats up”<http://electionlawblog.org/?p=99213>
Posted on May 28, 2018 9:24 pm<http://electionlawblog.org/?p=99213> by Rick Hasen<http://electionlawblog.org/?author=3>

CNN:<https://www.cnn.com/2018/05/28/politics/super-pacs-west-virginia-2018-midterms/index.html>

A pair of mysterious pop-up super PACs, one with Republican roots and another tied to Democrats, spent more than $3 million in hopes of swaying West Virginia’s GOP Senate primary while keeping their donor lists hidden from voters until after the election.
The groups arrived on the scene with blurry names, like “Mountain Families PAC,” but blunt intentions: to quietly use truckloads of outside money to feather their political beds ahead of the November general election. By the time their donors were revealed a few days ago, the primary felt like a distant memory.
To do this, the PACs used legal tactics that were nonetheless designed to defy the spirit of current campaign finance law, campaign finance experts say.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Fate of Judge Persky, symbol within #MeToo movement, heads to voters”<http://electionlawblog.org/?p=99211>
Posted on May 28, 2018 9:18 pm<http://electionlawblog.org/?p=99211> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Egelko reports<https://www.sfchronicle.com/bayarea/article/Fate-of-Judge-Persky-symbol-within-MeToo-12947020.php> for the SF Chronicle.
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Posted in recall elections<http://electionlawblog.org/?cat=11>


“Little Scalia; Watching Neil Gorsuch, a mild-mannered good boy from Denver, become the second-most-polarizing man in Washington.”<http://electionlawblog.org/?p=99208>
Posted on May 28, 2018 9:16 pm<http://electionlawblog.org/?p=99208> by Rick Hasen<http://electionlawblog.org/?author=3>

NY Mag reports:<http://nymag.com/daily/intelligencer/2018/05/how-gorsuch-became-the-second-most-polarizing-man-in-d-c.html?utm_source=tw&utm_campaign=nym&utm_medium=s1>

Behind the shtick, Gorsuch is performing a conservative virtue signal. In his 2016 paean to Scalia, Gorsuch called for judges “to apply the law as it is,” not to decide cases based on “moral convictions” or “policy consequences.” In theory, this gets to the heart of his predecessor’s narrow jurisprudence. In practice, it can be difficult to argue, credibly, that the answer to every single Court case is obvious from the words of a statute, or the Constitution, or the thesaurus, or whatever. Gorsuch doesn’t have Scalia’s dexterity. “It’s almost like a kid trying on his dad’s suit, and it’s just too big for him,” says David Lat, the founder of the legal website Above the Law<https://abovethelaw.com/>. Or as Rick Hasen, a professor at UC Irvine’s law school, puts it, “He’s Scalia without the spontaneous wit and charm.”

The textualist monomania seems to grate especially on Ginsburg, who was famously close with Scalia. In January, after a Gorsuch dissent called out the “absurdities” of her reasoning in an otherwise deadly case about legal filing deadlines, she cheekily responded in a footnote, writing that Gorsuch’s tendentious reading of the case “conjures up absurdities” of its own. In April, she wrote a terse one-paragraph dissent critiquing Gorsuch’s “wooden” reading of a law, and in her blistering dissent in May’s big workers-rights case, she called his opinion “egregiously wrong,” invoking the infamous 1905 anti-labor decision Lochner v. New York.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


Tam Cho, Liu, Zang, and Cain: “The ‘Everything Bagel’ in Redistricting”<http://electionlawblog.org/?p=99206>
Posted on May 27, 2018 3:24 pm<http://electionlawblog.org/?p=99206> by Rick Hasen<http://electionlawblog.org/?author=3>

Here is a guest post from Wendy K Tam Cho, Yan Y. Liu, Emily R. Zhang,  & Bruce E Cain:

In addressing the sometimes impossible problem of having to choose between sesame, poppy seed, onion, garlic or salt, the everything bagel presents a nice, well-rounded solution. Beyond breakfast, it also offers some inspirations for partisan gerrymandering doctrine. Plaintiffs and amici in Whitford v. Gill, Benisek v. Lamone and Common Cause v. Rucho have suggested a number of possible measures of partisan effect. For instance, plaintiffs in Whitford have put forth the efficiency gap as advocated for by Nick Stephanopoulous and Eric McGhee in their University of Chicago Law Review article, and in Rucho, plaintiffs have also advanced the mean-median difference and partisan bias. Elsewhere, in the political science literature, there are other proposed measures of partisan fairness. Scholars have proposed competitiveness measures as well as ways to quantify the mismatch between the number of votes a party receives and the number of seats they win.

Setting aside the mechanics of each of these measures, is there, in fact, a single silver-bullet partisan effects measure? Partisan fairness is a complex democratic ideal that encompasses many different values. Can we expect a single, simple measure to take all those values into account? Might an everything-bagel approach to partisan fairness be more appropriate? An analogy to health is instructive here. Medical professionals do not expect to discover a single measure of health. A patient whose doctor’s visit consists of a sole demand to open up her mouth and say “aah!” would be greatly puzzled (and overcharged). While there are disputes over the relative weight to accord each health indicator—longevity, mobility, functionality, enjoyment—it is generally assumed that health is a meta-ideal that can be manifested (and hence measured) in many different ways.

Political fairness is a similarly multidimensional—and if anything—a more heavily contested concept. It encompasses many values, and hence many different ways to measure injury to those values. The currently proposed partisan effects measures capture some of those values, but not all. Both the efficiency gap and partisan bias measure are concerned about fairness vis-à-vis the two political parties: do the district lines allow the two parties to compete fairly against each other. Competitiveness is concerned with a different kind of fairness: do the district lines give rise to genuine competition between the parties for votes? Notice how competitiveness is a voter-centric value while the symmetry measures are party-centric (party defined broadly as activists, party officials, candidates, elected officials, etc.). While parties may care a great deal about whether a redistricting plan makes it easier for them to win relative to their opponents, they may care less about whether it diminishes overall competition between the parties. Indeed, they may prefer an uncompetitive plan because it saves them time and campaign expenses. Bipartisan, incumbent-protective gerrymanders of the early 2000s, for instance, were politically symmetrical but highly uncompetitive.

Voters may have other fairness aspirations for their districts: responsiveness (to be heard), representativeness (to have one’s representatives speak, act, and stand for one’s interests), and accountability (to throw the bums out if they fail to perform the aforementioned duties satisfactorily). Bias measures, for instance, are concerned with whether the function that translates votes to seats is the same for both parties. Even assuming that perfect proportionality is not required (and indeed rarely possible when redistricting), gross mismatches between voters’ preferences and the kind of representatives who are elected undermine political legitimacy. As with competitiveness, the values of responsiveness, representativeness and accountability may not be ones that political parties care much for—as long as a redistricting plan produces an equal number of seats that are unresponsive/unrepresentative/unaccountable between the parties. But for citizens seeking a better government, they are paramount.

Certainly, courts—the Supreme Court through Whitford and Benisek and state supreme courts in developing partisan gerrymandering doctrines—may decide to elevate one particular brand of partisan fairness above others. Indeed, as Pam Karlan has written, the Supreme Court views the right to vote less as a snowflake (unique and fragile), and more as a calculator (for aggregating up to political outcomes). And in many other areas of the law, the Court has elevated certain strains of an overarching concept over others: intentional and animus-based discrimination over subconscious bias, for instance, financial injury over stigmatic injury in the context of standing, or in the antitrust context, injuries to consumers over those to competitors.

In some of these instances, there are philosophical or theoretical rationales for picking one strain of a concept over others. But if administrability is the central concern, it should not dog partisan gerrymandering doctrine. With the help of ever more potent computing power, extreme outcomes along each dimension of partisanship—voter or party-centric—can be simultaneously taken into account. In our article in the William & Mary Law Review, entitled A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluating Redistricting Proposals (now available online<https://wmlawreview.org/reasonable-bias-approach-gerrymandering-using-automated-plan-generation-evaluation-redistricting>), we show how automated redistricting algorithms and a reasonable bias approach make it possible to generate an “everything bagel” set of feasible maps that encompass all the important values under the umbrella ideal of partisan fairness. Mapdrawers, be they legislatures, independent redistricting commissions or judges/special masters in remedial proceedings, can tailor the automated redistricting algorithms to conform to negotiated terms, state laws or other guidelines. They can weigh each measure as desired (more poppy seeds, less onion), and set minimum threshold values for each measure (at least a convincing smattering of sesame seeds). Insofar as each component is deemed a worthwhile addition (and a consensus can develop over time about what constitutes extreme outcomes), automated redistricting algorithms can produce maps that encapsulate the multi-faceted notion of partisan fairness. Party-centric values need not tread on the toes of voter-centric values: indeed, they can exist in reasonable tradeoffs with each other. The same can be done with compactness measures and other multidimensional redistricting values. Seldom in life (or in doctrine) can one have a combination of all. Bagels and voting districts are exceptions to this rule.


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


“FEC Deadlocks on Probing Pro-Rubio Super PAC Money”<http://electionlawblog.org/?p=99204>
Posted on May 26, 2018 11:55 am<http://electionlawblog.org/?p=99204> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=135020097&vname=mpebulallissues&jd=0000016398ccd6f1a7ebbfccc8830000&split=0>
The Federal Election Commission deadlocked over whether to investigate a $500,000 contribution to a super political action committee that backed Sen. Marco Rubio’s (R-Fla.) presidential bid.
Watchdog groups contend the 2016 donation was illegally funneled through a limited liability corporation.

Conservative Solutions PAC reported receiving the money from IGX LLC. Complaints filed with the FEC, citing news reports, said the money should have been reported as coming from Brooklyn investor Andrew Duncan.
The commission’s 2-2, party-line vote on whether to pursue enforcement action resulted in dismissal of the matter. The vote was announced today….
In an open commission meeting May 24, Weintraub proposed to begin writing new disclosure rules covering LLCs and other mechanisms that can conceal donors. She said those could be used to provide campaign money from foreign sources to influence U.S. elections. Her motion failed on a 2-2 vote.
During the commission meeting, Weintraub cited a previous FEC enforcement case involving a super PAC supporting Rep. Patrick Murphy (D-Fla.), who’s no longer in Congress. The FEC declined to investigate whether a contribution from an LLC headed by a Florida real estate developer had originated from Chinese nationals.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


“Israeli Intelligence Firm’s Election-Meddling Analysis Comes Under Mueller’s Scrutiny”<http://electionlawblog.org/?p=99202>
Posted on May 26, 2018 11:52 am<http://electionlawblog.org/?p=99202> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/israeli-intelligence-firms-election-meddling-analysis-comes-under-muellers-scrutiny-1527288767?mod=article_inline>

Special counsel Robert Mueller’s investigators have obtained a presentation prepared by an Israel-based private intelligence firm that outlines ways in which Donald Trump’s 2016 election was helped by fake news and fake social-media accounts, according to people familiar with the presentation and documents reviewed by The Wall Street Journal.

You can find the PsyGroup’s powerpoint presentation at this link<http://online.wsj.com/public/resources/documents/PsyGroupPresentation05-25-2018.pdf?mod=article_inline>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Democrats Go All-Out to Avoid Disaster in California House Races”<http://electionlawblog.org/?p=99200>
Posted on May 26, 2018 11:47 am<http://electionlawblog.org/?p=99200> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/05/26/us/politics/california-primary-house.html>

With so many Democrats running, the party’s fear is that the vote will be splintered, allowing Republicans — who have fewer candidates — to dominate some primaries. The party and allied groups are spending more than $4 million on just three campaigns, intervening in one contest to prop up a favored candidate; attacking a Republican from the right in another; and even reminding people not to waste their votes on “ghost candidates” who have dropped out yet remain on the ballot.

As any progressive activist will explain through gnashed teeth, the head-snapping scramble is because of the state’s “top two” open primary system, which allows the two leading vote-getters — regardless of political parties — to advance to the general election.

The “top two” system was meant to create incentives for political moderation in a state where about a quarter of the voters are independents, but it has created immense stakes for Democrats: They need to win 23 seats to take back the House, and party officials believe the path runs through the seven competitive California districts, all of which Hillary Clinton carried in 2016.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


“Companies face many dark perils when it comes to political money”<http://electionlawblog.org/?p=99198>
Posted on May 25, 2018 2:28 pm<http://electionlawblog.org/?p=99198> by Rick Hasen<http://electionlawblog.org/?author=3>

Bruce Freed and Karl Sandstrom oped<http://thehill.com/opinion/campaign/389373-companies-face-many-dark-perils-when-it-comes-to-political-money> in The Hill.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>


--
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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