[EL] ELB News and Commentary 10/22/18

[Rick Hasen]

“The Next Threat to Redistricting Reform”<https://electionlawblog.org/?p=101666>
Posted on October 22, 2018 7:29 am<https://electionlawblog.org/?p=101666> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://blog.harvardlawreview.org/the-next-threat-to-redistricting-reform/> for the Harvard Law Review Blog. It begins:

These are perilous times even for those who think that federal courts have no business messing with how state legislatures draw lines for legislative and congressional districts and that the issue is best left up to each state’s political system. Now that Justice Anthony Kennedy has left the stage, it is unlikely that the Court will stop extreme partisan gerrymandering. But the Court may do more than simply fail to intervene. Within a few years, the Supreme Court may well hold unconstitutional state political processes that have produced measurably better redistricting reform for the drawing of congressional districts.

For many years, I have been one<https://www.amazon.com/Supreme-Court-Election-Law-Equality/dp/0814736912> of the rare<https://academiccommons.columbia.edu/doi/10.7916/D8WM1PWM/download> election law professors who has been skeptical of having federal courts intervene to police partisan gerrymandering. I have worried that there was no social consensus<https://www.liebertpub.com/doi/abs/10.1089/elj.2004.3.626?journalCode=elj> that federal courts should get involved and that there were inadequate standards to separate permissible from impermissible consideration of party in redistricting.

In recent years, my view has evolved. It is not that I embraced the efficiency gap<http://www.scotusblog.com/2017/08/symposium-efficiency-gap-measure-not-test/> as the holy grail for deciding which redistricting plans flunk the constitutional test. And it is not that the First Amendment provides more judicially manageable standards than the Equal Protection Clause, as Justice Elena Kagan argued<https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf> in a final unsuccessful play<https://www.theatlantic.com/politics/archive/2017/06/justice-kennedys-beauty-pageant/530790/> for Justice Anthony Kennedy’s vote in last term’s Gill v. Whitford case.

Rather, my mind is beginning to change for two reasons…..

It is easy to imagine a scenario where the state of Michigan, for example, passes redistricting reform establishing a commission, and Republicans in the Michigan legislature challenge the initiative in federal court arguing that the Constitution’s Article I<https://usconstitution.net/xconst_A1Sec4.html> gives only the state legislature and not the people acting through the initiative process the right to pick the rules for congressional elections (subject to congressional override).

If that argument sounds familiar, it is the same one that the Supreme Court rejected on a 5-4 vote in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission<https://www.supremecourt.gov/opinions/14pdf/13-1314_3ea4.pdf>. There, Justice Ginsburg, joined by the Court’s liberals and Justice Kennedy, relied upon earlier precedent in concluding that the use of the term “legislature” in this part of Article I included not just the legislative body but the state’s legislative process, including the people acting through the initiative process, who can establish an independent commission.

Chief Justice Roberts wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules for drawing district lines. This view would spell the end of independent commissions, since state legislatures are extremely unlikely<https://www.washingtonpost.com/news/monkey-cage/wp/2018/10/13/what-comes-next-in-the-fight-against-partisan-gerrymandering/?utm_term=.63813d9e1542> to set up fully independent redistricting commissions. If Justice Kavanaugh agrees with the Roberts view in this case—and given the issue’s ideological valence and the newest Justice’s commitments<https://twitter.com/FoxNews/status/1037771422188400640> to originalism and textualism, I expect he will—the only thing standing between a ruling that would kill the use of redistricting commissions enacted by initiative for congressional line-drawing is an appeal (as Professor Douglas makes<https://blog.harvardlawreview.org/democracy-reform-one-ballot-at-a-time/>) for Justice Kavanaugh to respect the Arizona precedent. But this is a new and contested precedent, and if Chief Justice Roberts pushes for reconsideration you can bet that the other conservative Justices will go along.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“The Public Supports Election Officials, But Wants Them To Be Non-Partisan”<https://electionlawblog.org/?p=101664>
Posted on October 21, 2018 7:30 pm<https://electionlawblog.org/?p=101664> by Rick Hasen<https://electionlawblog.org/?author=3>

Paul Gronke<https://blogs.reed.edu/earlyvoting/commentary/the-public-supports-election-officials-but-wants-them-to-be-non-partisan/>:

We’ve been studying voter attitudes about the partisanship of election officials since 2008, and at least as far as the public is concerned, there’s really not much of an issue. Less than 1/5th of the public endorses the statement “election officials should be elected by the public, in a partisan contest.” About half the public thinks that the election officials should be elected in a partisan contest or appointed.

[http://people.reed.edu/~gronkep/docs/graph1.jpg]
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Republicans Hold Cash Edge Heading Into Final Stretch of the Midterms”<https://electionlawblog.org/?p=101662>
Posted on October 21, 2018 7:17 pm<https://electionlawblog.org/?p=101662> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/10/21/us/politics/midterm-fundraising.html>

The most recent round of campaign finance disclosures, filed Saturday, showed that Republican national party committees, candidates in key House and Senate races and their top unlimited-money outside groups, or “super PACs,” had $337 million on hand as of Sept. 30. Their Democratic counterparts had $285 million in the bank on the same date.

It was a rare bright spot for Republicans in a fund-raising picture otherwise dominated by Democrats on the strength of their breakneck small-donor fund-raising<https://www.nytimes.com/interactive/2018/10/16/us/politics/campaign-finance-small-donors.html?module=inline> by candidates in key congressional races<https://www.nytimes.com/2018/10/15/us/politics/democrats-republicans-midterm-fundraising.html?module=inline>.

By contrast, Republicans owe their cash-on-hand advantage to brisk major-donor fund-raising, and a slower pace of spending, by their party committees and super PACs.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Voter Suppression Tactics in the Age of Trump”<https://electionlawblog.org/?p=101660>
Posted on October 21, 2018 7:13 pm<https://electionlawblog.org/?p=101660> by Rick Hasen<https://electionlawblog.org/?author=3>

Jelani Cobb<https://www.newyorker.com/magazine/2018/10/29/voter-suppression-tactics-in-the-age-of-trump> for the New Yorker.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


Reveal: “Who Gets to Vote?”<https://electionlawblog.org/?p=101658>
Posted on October 20, 2018 10:26 am<https://electionlawblog.org/?p=101658> by Rick Hasen<https://electionlawblog.org/?author=3>

Listen to the new episode<https://www.revealnews.org/episodes/who-gets-to-vote/>:

Approaching 2018’s midterms, the country has its eyes locked on Georgia’s governor’s race. It’s a close contest between Stacey Abrams, a former state congresswoman who could become the first-ever black female governor in America and Brian Kemp, a tough-talking Trump loyalist with a penchant for the Second Amendment. The race has become a battleground for many of America’s most pressing concerns about democracy – from voter suppression to election security.
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Posted in Uncategorized<https://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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