[EL] Low Contribution Limits in the Supreme Court

[larrylevine at earthlink.net]

The so-called reformers advocate contribution limits and rail against independent expenditures, yet they fail to see or admit the nexus between the two.

Larry

 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of jboppjr at aol.com
Sent: Monday, 29 October 2018 12:20 PM
To: tjm5da at virginia.edu
Cc: law-election at uci.edu
Subject: Re: [EL] Low Contribution Limits in the Supreme Court

 

In my view, the public policy reasons to reconsider low contribution limits are also strong. These low limits deprive candidates of resources they would otherwise have to campaign and divert much of that money to third party groups. This marginalizes the voices of candidates and reduces transparency and accountability.  Simply put, it distorts the system.

Of course, there are two possible reaction to this distortion. One, play whack-a-mole, the favorite of campaign reformers, as they continually attack the symptoms of the problem. As new legal ways of circumvention of these low limits are devised, ie 527s, SuperPACs, by me and others, there is the inevitable call for new regulations and prohibitions on these entities and, if successful, the cycle repeats.-- with further distortion, further lack of transparency and accountability, and a further reduction in freedom.

 

The other is to acknowledge that low contributions limits cannot be possibly be justified by genuine quid pro quo corruption and that we need to reduce the distortive effect. Obviously, this will not achieve the policy goal of the reformer to reduce or eliminate private money in politics, but it has become obvious that low contribution limits don't do that either.

 

So how about acknowledging the failed experiment and have a more accountable and transparent system. Jim Bopp

 

In a message dated 10/29/2018 12:55:58 PM US Eastern Standard Time, tjm5da at virginia.edu <mailto:tjm5da at virginia.edu>  writes: 

 

At least they're giving it a look. I think that there is finally an understanding on the Court that the base limits warrant reconsideration as to the level of scrutiny required. The Chief Justice's opinion in McCutcheon avoided the standard of review issue because it was an easy case ("whatever standard applies" or however he put it vis-a-vie the aggregate limit implied a willingness to look at the actual reason behind the limit, which would transfer over to the base limit per the gov'ts burden) and states have gotten more bold since Shrink Missouri Gov't PAC. In fact, I am aware of states actually attempting to limit out-of-state contributions to ballot measures, which is frightening in light of the undisputed notion that you can't corrupt one. Even if the Court upholds the limits in Zimmerman and Lair, legislatures, which are not composed of campaign finance attorneys or even necessarily anyone attendant to free expression concerns, need guidance as to whether they need actual evidence of corruption to regulate campaign speech or they can just justify with people thinking government is controlled by powerful people - an impossibly easy thesis no matter where in the world you live - and what the regulable "appearance of corruption" means (I'll continue to believe it's a rhetorical flourish intended to give a lower court the ability to deny an as-applied challenge to a base limit). Whether and in what cases such justifies the inhibition the freedom of speech requires guidance from our Article III branch.

 

On Mon, Oct 29, 2018 at 7:34 AM <jboppjr at aol.com <mailto:jboppjr at aol.com> > wrote:

Update, the Zimmerman docket sheet says it was rescheduled.  Jim

In a message dated 10/29/2018 9:58:57 AM US Eastern Standard Time, jboppjr at aol.com <mailto:jboppjr at aol.com>  writes: 

 

Pausing for a moment to return to the actual subject that brought us together on this list serve, I thought everyone would be interested in the recent actions of the US Supreme Court regarding campaign finance.

There are two contribution limit cases currently on Cert Petitions: Zimmerman v Austin, 18-93, and Lair v Mangan, 83-149, mine. In both cases, the Court ordered responses after waiver.  A nibble in my vernacular.

 

Zimmerman was conferenced Friday, not granted on Friday, but missing on the Orders List today, apparently being held. Another nibble.

 

In Lair, Montana's Response is due Nov 14th and, by my calculations, will be conferenced Jan 4th.

 

I believe that the issue of low contribution limits, as in Austin and Montana, is an issue overripe for Supreme Court re-review. Of course, the Court in Randall v Sorrell struck down Vermont's low contribution limits but this has not stopped several Circuits from upholding them based on several justifications.  And with McCutcheon and Citizens United requiring quid pro quo corruption to justify contribution limits, which rarely, if ever, can be met for such low limits, there are now several reasons for the Court to take up this issue.

 

These cases bear watching.  Jim Bopp

 

In a message dated 10/28/2018 11:23:17 AM US Eastern Standard Time, IShapiro at cato.org <mailto:IShapiro at cato.org>  writes: 

 

Good; HIAS helped bring my family over. 

Ilya Shapiro 

Senior Fellow in Constitutional Studies

Cato Institute

1000 Mass. Ave. NW

Washington, DC 20001

(o) 202-218-4600

(c) 202-577-1134

Twitter: @ishapiro

http://www.cato.org/people/shapiro.html


On Oct 28, 2018, at 11:13 AM, henry weinstein <henryelliotweinstein at gmail.com <mailto:henryelliotweinstein at gmail.com> > wrote:

I have been a participant in the Election List Serve since 2000. It has been an important source of illumination on issues vital to a democratic. I write to align myself with the comments my colleague Rick Hasen posted yesterday. I find it striking that the critics of Rick's post have nothing meaningful to say about hate and violence and the regrettable, ongoing growth of a fact-free universe in this country. The Pittsburgh shooter told police Jews were slaughtering his people. Pure hate-filled, white power fantasy.  I just contributed to the Hebrew Immigrant Aid Society.  

Henry Weinstein

 

On Sat, Oct 27, 2018 at 10:30 PM Fredric Woocher <fwoocher at strumwooch.com <mailto:fwoocher at strumwooch.com> > wrote:

Well said, Larry.  At some point, one can be silent no longer.  Trump is a despicable human being who has set the tone and who has encouraged and unleashed the worst elements in our society.  He has debased our country and what it should stand for.  And those who continuously enable and apologize for him because he happens to give them tax cuts, deregulation, and conservative judges (or whatever other part of his agenda they may support) need to speak out before he destroys what’s left of decency in our country and our world.   

 

Thank you, Rick.  

 

Fredric Woocher 

Sent from my iPhone


On Oct 27, 2018, at 10:07 PM, "larrylevine at earthlink.net <mailto:larrylevine at earthlink.net> " <larrylevine at earthlink.net <mailto:larrylevine at earthlink.net> > wrote:

“All that is needed for evil to triumph is for good people to remain silent.”

Thank you, Rick, for speaking out and speaking up. Yes, this is a law list, but to those who want to raise that as a shield behind which to condone the white supremacist and white nationalism that is given purchase by the bombastic rhetoric that flows from Trump, I ask if you truly believe that a “condemnation of violence” is satisfactory atonement for three years for promulgating violence. This presidency has been devoid of decency and built on divisiveness. All people of good conscience need to condemn not just the shooting in Pittsburgh, but also that which has so clearly created the atmosphere that has emboldened the worst elements of our society. Donald Trump sings the siren song that is so clear heard by white separatists and white nationalists that it is fair to ask whether he isn’t in fact of them. If you truly think unsubscribing from this list is a proper response to one who has the courage to speak out in the face of evil, then I for one will not miss you.

Larry

 

From: Law-election <law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu> > On Behalf Of Ben Betz
Sent: Saturday, 27 October 2018 9:19 PM
To: jboppjr <jboppjr at aol.com <mailto:jboppjr at aol.com> >
Cc: Election Law Listserv <law-election at uci.edu <mailto:law-election at uci.edu> >
Subject: Re: [EL] ELB News and Commentary 10/27/18

 

Rick - thank you for wading in here so unabashedly and sharing with this list. You no doubt were aware there’d be political blowback and decided to make a moral case, speak the truth, and speak out *for decency* anyway.  

 

Jim Bopp, shame on you.

Ben Betz

 

(Sent from phone - please excuse typos.)


On Oct 27, 2018, at 9:46 PM, jboppjr <jboppjr at aol.com <mailto:jboppjr at aol.com> > wrote:

Rick, this is a disgusting low for you. Jim Bopp

 

 

 

Sent via the Samsung Galaxy Note8, an AT&T 4G LTE smartphone

 

-------- Original message --------

From: Rick Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> > 

Date: 10/27/18 5:04 PM (GMT-05:00) 

To: Election Law Listserv <law-election at uci.edu <mailto:law-election at uci.edu> > 

Subject: [EL] ELB News and Commentary 10/27/18 

 


 <https://electionlawblog.org/?p=101782> Domestic Terrorism, President Trump, and the 2018 U.S. Midterm Elections


Posted on  <https://electionlawblog.org/?p=101782> October 27, 2018 1:54 pm by  <https://electionlawblog.org/?author=3> Rick Hasen

I am heartbroken for the victims of today’s domestic terrorist attack  <https://www.nytimes.com/2018/10/27/us/active-shooter-pittsburgh-synagogue-shooting.html> at the Tree of Life synagogue in Pittsburgh which has left 11 people dead. These people were praying and celebrating a recent birth with a bris. The killer apparently yelled “ <https://pittsburgh.cbslocal.com/2018/10/27/pittsburgh-synagogue-shooting-suspect-identified/> All Jews must die” as he opened fire.

This comes just a few days after two African-American patrons of a Kroger store were senselessly killed in Louisville Kentucky in  <https://www.wave3.com/2018/10/25/kroger-shooting-accused-killer-held-m-bond/> another racist domestic terrorist incident after the shooter could not get into a predominantly African-American Baptist church. The killer at one point explained that “whites don’t kill whites.”

And of course these incidents come the same week as a man apparently obsessed with President Trump  <https://www.nytimes.com/2018/10/27/technology/cesar-sayoc-facebook-twitter.html?action=click&module=Top%20Stories&pgtype=Homepage> sent pipe bombs to those who have been frequent targets of the President’s inflammatory rhetoric, including former Presidents Obama and Clinton, Secretary Hillary Clinton, Sen. Kamala Harris, Rep. Maxine Waters, CNN, George Soros, and others. Fortunately, at least so far the bombs that have turned up in the mail have not exploded.

Ordinarily, the acts of a deranged individual who commits political violence should not be attributed to the elected official they support or who inspires them. Think, for example,  <https://www.cnn.com/2017/06/14/homepage2/james-hodgkinson-profile/index.html> of the shooter of Rep Steve Scalise at the congressional baseball game who was a Bernie Sanders supporter.

But things with President Trump are different. He has refused to condemn anti-semitism and racism; he has encouraged chants of “lock her up” against his political opponent Hillary Clinton and against others; he has appeared with, and promoted the views of, those who blame George Soros and the Jews for immigration problems; he calls his political adversaries by demeaning names, especially African-American women opponents such as Rep. Waters. He has done these things even as this violence grows. He praised the body slamming of a journalist by Rep. Gianforte. He has shown no interest in bringing the nation together, suggesting that rather than “toning it down” he  <https://www.washingtonpost.com/politics/i-could-really-tone-it-up-trump-shows-little-interest-in-uniting-the-nation-during-crises/2018/10/26/6a859c38-d891-11e8-a10f-b51546b10756_story.html?utm_term=.e506260dc49c> could “really tone it up.”

He has pursued a political strategy that is aimed at inflaming his base to try to win the election. He has  <https://www.rollcall.com/news/politics/media-covering-bombs-halt-gop-momentum-midterms-trump-says> even complained about how the pipe bombs could hurt Republican election momentum.

And he has brought many Republicans along with him, such as Kevin McCarthy, soon to be leader of Republicans in the House of Representatives. McCarthy,  <https://twitter.com/JJohnsonLaw/status/1056243096369987584> in a now-deleted tweet, accused “Soros, Steyer, and Bloomberg” of “trying to BUY this election.” Such anti-Semitic tropes have moved from the fringe right wing to the center of the Republican party.

At the beginning of the Trump presidency, I had hopes that people like Speaker of the House Paul Ryan would have courage to speak out about these things, and actually take action to punish Trump for not strongly condemning the racism and violence Trump has encouraged. It hasn’t happened. There is the barest of hand-wringing by people like Senator Sasse and Senator Flake, and no consequences for Trump. Republicans in the Senate are fine to put up with the racism and inflammation toward violence if they get to pack the federal judiciary with conservative appointees.

There is reason to believe that if Republicans lose the House, Trump will only turn up the rhetoric, perhaps attacking the legitimacy of the election results, and trying to rile up his base more in an effort to preserve his presidency and maximize his chances for reelection. As ugly as things have gotten, they stand to get uglier.

It is time for people across the aisle to stand up to racism. So far people like Paul Ryan have been cowards. Maybe they will have more “courage” if it seems that Trump’s appeal to racism will cost the party its lock on power. But I would not have count on it. And in the meantime, increased political violence and domestic terrorism seems not only possible, but unfortunately likely.

May the memory of this weeks’ victims be a blessing, and may their deaths not be in vain.

 

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> 

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> Posted in social media and social protests

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections>  

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections>  


 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> Revelations from John Gore Deposition: “Jeff Sessions Told DOJ Not To Discuss Citizenship Question Alternatives”


 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> Posted on October 27, 2018 1:13 pm by Rick Hasen

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> Hansi Lo Wang for NPR:

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> In a newly-released court filing in preparation for the first trial of the citizenship question lawsuits, the plaintiffs’ attorneys wrote that John Gore testified out of court Friday that Sessions “personally made the decision to direct DOJ not to even meet with the Census Bureau to discuss alternative approaches.”

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> The attorneys cite Gore’s testimony to back up their claims that the decision to add the citizenship question was a misuse of the commerce secretary’s authority over the census and intended to discriminate against immigrant communities of color….

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> For decades, the federal government has relied on citizenship information to make sure the voting power of racial and language minorities is not diluted. Since the Voting Rights Act was enacted in 1965, the Justice Department has enforced the law’s protections against discrimination by using estimates of U.S. citizens from a Census Bureau survey now known as the American Community Survey. About one in 38 households in the U.S. are required by law to complete that survey every year.

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> In its December 2017 letter to the Census Bureau, however, the Justice Department said that collecting citizenship data from every household through the once-a-decade census would be “more appropriate” to use for enforcing Voting Rights Act and redistricting.

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> Still, Gore does not seem sure if the data collected from the new citizenship question would be more accurate.

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> According to the plaintiffs’ filing, Gore testified Friday that “he does not even know if citizenship data based on responses to a citizenship question on the census will have smaller or larger margins of error, or will be any more precise, than the existing citizenship data on which DOJ currently relies.”

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101782&title=Domestic%20Terrorism%2C%20President%20Trump%2C%20and%20the%202018%20U.S.%20Midterm%20Elections> 


Posted in Department of Justice

 

 


I Talked with Dahlia Lithwick for Slate’s Amicus Podcast About the State of Voting Rights in the US


Posted on October 27, 2018 1:10 pm by Rick Hasen

Listen:

Dahlia Lithwick talks with Slate’s own Mark Joseph Stern about what to look out for this term, and with Rick Hasen, professor of law and political science at the University of California, Irvine, about how free and fair the midterm elections will be in light of recent Supreme Court rulings on voting rights.


Posted in The Voting Wars

 

 


Orange County, California: “They Want To Register Voters In Jail. The Sheriff Won’t Let Them Inside To Do It.”


Posted on October 27, 2018 1:08 pm by Rick Hasen

HuffPo:

In California, people with a felony conviction can vote as long as they aren’t currently incarcerated in state or federal prison, on parole, or in county jail for a parole violation. Otherwise-eligible jail inmates are permitted to vote by mail.

Torres is one of the roughly 6,000 likely eligible voters who are detained in the Orange County jail at any given time that the ACLU of Southern California is trying to reach through a program it calls Unlock The Vote. They face a big obstacle: The Orange County Sheriff’s Department, currently led by Sandra Hutchens, won’t let them set foot inside the jail to talk about voting. Instead they must wait outside, across the street, where they approach inmates as they’re released and ask them to register.

It’s a mission that, at times, can seem quixotic. Around 30 inmates were released that Friday; the ACLU registered only four. But even if a fraction of those 6,000 current or since-released inmates vote in November, it could make a big difference….

It doesn’t have to be this hard to register people in jail. Just north of Orange County, the ACLU has been allowed inside the Los Angeles County jail to register inmates. They estimate they’ve registered about 4,000 people there. Efforts in jails in Chicago and New York, among other places, have also added new voters to the rolls.

Those numbers add up. There are 700,000 people detained in jails across the country who are likely eligible to vote, but don’t know they can. Forty-eight states strip people of their voting rights after they’re convicted of a felony. But people can still vote while they’re awaiting trial in jail or if they’re serving time for a misdemeanor.


Posted in felon voting

 

 


“Texas Civil Rights Project asks Secretary of State to take action on voting machines”


Posted on October 26, 2018 6:46 pm by Rick Hasen

Release:

Tonight, the Texas Civil Rights Project (“TCRP”) sent a letter to the Secretary of State asking that his office take immediate action to inform Texans regarding the straight-ticket voting issues on the Hart eSlate voting machines. The letter asks the Secretary to:

1.      Devise a system to more proactively inform voters at polling places about this potential problem.

2.      Substantially increase outreach efforts across the state to communicate more clearly to the public the reason some voters are facing this issue; the need for voters to check their ballot choices before submitting their ballot; and that voters should immediately ask for help from a poll worker if they encounter any issue.

TCRP initially heard of this issue after voters contacted the non-partisan election protection hotline at 866-OUR-VOTE. So far, TCRP has received reports from voters in six counties (Harris, Montgomery, Fort Bend, Travis, Tarrant, and McLennan) who either had this happen to them, or were concerned that it may have happened to them.

At a minimum, 5.1 million Texas voters in six of the largest counties in Texas that use Hart eSlate voting machines may be affected by this issue.

 


Posted in election administration, voting technology

 

 


Postcard Advises Arizona Democrats to Vote on Wrong Election Day


Posted on October 26, 2018 2:52 pm by Rick Hasen

<image001.jpg>

Adrian Fontes at RecorderFontes

 

 · 23h

 

The Elections Department is advising voters to rely solely on official sources for information on the 2018 General Election. Some voters have notified us of receiving post cards like this one showing an incorrect date for the upcoming election:

<image002.jpg>

<image003.jpg>

Arizona's Politics at AZs_Politics

 

cc: @rickhasen

2:48 PM - Oct 26, 2018

*         

4

*         

See Arizona's Politics's other Tweets

Twitter Ads info and privacy


Posted in chicanery

 

 


“Reports of Voter Intimidation at Polling Places in Texas”


Posted on October 26, 2018 2:33 pm by Rick Hasen

ProPublica reports.


Posted in Uncategorized

 

 


District Court and 2nd Circuit Reject DOJ Argument to Delay Census Citizenship Trial; Next Stop #SCOTUS?


Posted on October 26, 2018 2:29 pm by Rick Hasen

View image on Twitter

<image004.jpg>

<image005.jpg>

Hansi Lo Wang

✔@hansilowang

 

 

BREAKING: Three-judge panel of 2nd U.S. Circuit Court of Appeals has denied Trump administration’s request to delay 1st trial of #2020census citizenship question lawsuits. U.S. District Judge Jesse Furman issued a similar ruling earlier today. Watching for #SCOTUS action now...

2:27 PM - Oct 26, 2018

*         

202

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142 people are talking about this

Twitter Ads info and privacy


Posted in Uncategorized

 

 


More Trouble with Texas Voting Machines Not Accepting Straight Party Ticket Choice; State Blames “Operator Error”


Posted on October 26, 2018 1:51 pm by Rick Hasen

ABC 13 reports.


Posted in Uncategorized

 

 


“Combination Among the States: Why the National Popular Vote Interstate Compact is an Unconstitutional Attempt to Reform the Electoral College”


Posted on October 26, 2018 1:38 pm by Rick Hasen

Patrick Valencia has written this article for the Harvard Journal on Legislation.


Posted in electoral college

 

 


Kansas Voting Official Responds “LOL” to ACLU Request to Publicize Voter Help Line for Dodge City Voters


Posted on October 26, 2018 1:29 pm by Rick Hasen

Wichita Eagle:

After the ACLU objected to Dodge City’s single, out-of-town polling place, the local official in charge of elections forwarded to the state an ACLU letter asking her to publicize a voter help line.

“LOL,” she wrote in an email to Kansas Secretary of State Kris Kobach’s office.

As Election Day approaches, concerns are being raised in Kansas over voting rights and access to the polls. The movement and elimination of some polling places is sparking fears that casting a ballot may be more difficult for some this year.

Nowhere are worries greater than in Dodge City, where residents must leave town if they want to vote on Election Day….

Cox said she moved the polling location out of a concern for safety. And she said she didn’t mean anything when she wrote “LOL.”

“This was not done with any racial intention at all,” Cox said during an interview in her office on Gunsmoke Street downtown.


Posted in election administration, The Voting Wars

 

 


“Redistricting Reform and the 2018 Elections”


Posted on October 26, 2018 8:32 am by Richard Pildes

The Harvard Law Review blog is running a Symposium on legal issues related to the 2018 election.  Here’s my contribution, which analyzes the different measures on the ballot to change the redistricting process in Utah, Missouri, Michigan, and Colorado.  An excerpt:

Underlying the entire issue of redistricting is the question of what constitutes a fair map.  The issue is not just whether voters will endorse independent redistricting commissions, but what substantive criteria those commissions will be instructed to use.  This is not as straightforward a question as many people intuitively think.  As a conceptual matter, there are two fundamentally different approaches to answering that question, and it is worth noticing the distinct approaches these various ballot measures embrace.

The first approach is what I have called a process-oriented one.  Redistricters would be instructed to take a set of criteria into account that reflect appropriate democratic values for designing districts, but that do not include partisan political considerations.  Thus, in “partisan-blind” redistricting, districts would be designed to meet standards like equal population; compliance with the Voting Rights Act; keeping pre-existing political units (like towns, cities, and counties) together, to the extent possible; respecting communities of interest; and keeping districts reasonable compact and contiguous.  Under this approach, a “fair” map would reflect these criteria, and whatever partisan political consequences resulted from such a process would not affect the fairness of the plan.

The second approach is instead focused on exactly those consequences:  it is an outcome-oriented approach that would seek to ensure a map is “fair” in the sense that the likely outcome of elections under the plan would be that each political party would end up with roughly the same percentage of seats as the percentage of votes it received.  Under this approach, many of the values listed above would be of secondary importance to the primary goal of seeking to design a map that would generate partisan outcomes that match each party’s share of the overall statewide vote.   The “process-oriented” and “outcome oriented” approaches define two poles of the spectrum; one can imagine approaches that try to merge these approaches, though doing so risks becoming a muddle that leaves redistricters with a great deal of discretion unless the proper tradeoffs between these different objectives are identified with precision.  But having these two distinct conceptual frameworks in mind is helpful in evaluating the different ballot initiatives. . . .

No other country with single-member election districts like ours leaves the power to draw these districts in the hands of the most politically self-interested actors, the politicians whose power and seats will be affected. . . . But shifting to commissions cannot avoid the fact that substantive choices must still be made about how we ought to define fair maps and what criteria commissions, or any other redistricting body, ought to follow in order to design fair maps.

The proposals on the ballot in these four states agree that redistricting should be taken out of the hands of self-interested state legislatures. But they show that on the deeper question – what makes a map fair – there remain differences of view.


Posted in Uncategorized

 

 

-- 

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

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