[EL] ELB News and Commentary 9/17/18

Mon Sep 17 08:12:03 PDT 2018

Democrats in Wisconsin State Assembly File New Partisan Gerrymandering Case<https://electionlawblog.org/?p=101184>
Posted on September 17, 2018 8:10 am<https://electionlawblog.org/?p=101184> by Rick Hasen<https://electionlawblog.org/?author=3>
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Michael Li<https://twitter.com/mcpli>
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Democrats in the Wisconsin Assembly filed a new partisan gerrymandering suit Friday challenging WI assembly map on First Amendment grounds. Here’s th complaint: https://www.brennancenter.org/sites/default/files/legal-work/2018-09-14-1-Complaint.pdf …<https://t.co/yFOwdGAe2J> #fairmaps<https://twitter.com/hashtag/fairmaps?src=hash> #wipolitics<https://twitter.com/hashtag/wipolitics?src=hash>
8:02 AM - Sep 17, 2018<https://twitter.com/mcpli/status/1041703998678556675>

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

“Congress passes bill to require Senate campaign filings to be made electronically”<https://electionlawblog.org/?p=101182>
Posted on September 17, 2018 8:00 am<https://electionlawblog.org/?p=101182> by Rick Hasen<https://electionlawblog.org/?author=3>

Well this<https://thehill.com/business-a-lobbying/406689-congress-passes-bill-to-require-senate-campaign-filings-to-be-made> is a long time coming:

Congress passed a bill Thursday that would require senators to file campaign finance reports electronically through the Federal Election Commission (FEC).

The language was included in a broader appropriations bill sent to the White House for President Trump<https://thehill.com/people/donald-trump>‘s signature.

If the bill is signed, the Senate would finally be subject to the same electronic filing (e-filing) requirements that the House has had since 1995.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Forged signatures raise concerns about ballot petition efforts in Michigan”<https://electionlawblog.org/?p=101180>
Posted on September 17, 2018 7:41 am<https://electionlawblog.org/?p=101180> by Rick Hasen<https://electionlawblog.org/?author=3>

The Detroit Free Press reports. <https://www.freep.com/story/news/politics/2018/09/17/forged-signatures-petitions-blemish-ballot-campaigns/1281972002/>
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Posted in direct democracy<https://electionlawblog.org/?cat=62>

“NPR/Marist Poll: 40 Percent Of Americans Think Elections Aren’t Fair”<https://electionlawblog.org/?p=101178>
Posted on September 17, 2018 7:39 am<https://electionlawblog.org/?p=101178> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR:<https://www.npr.org/2018/09/17/647421039/npr-marist-poll-40-percent-of-americans-think-elections-arent-fair?utm_source=twitter.com&utm_medium=social&utm_campaign=npr&utm_term=nprnews&utm_content=20180917>

In a sign that America’s two centuries-old democracy is under strain, nearly 2 in 5 American voters do not believe elections are fair, according to a new NPR/Marist poll<http://maristpoll.marist.edu/?page_id=42883>. Nearly half of respondents lack faith that votes will be counted accurately in the upcoming midterm elections.

Race, gender and partisan identity are all a factor for those who question the cornerstone of the democratic system. Nonwhite voters, women and Democrats all report substantially greater doubts about the fairness of elections compared to Republicans, 91 percent of whom believe elections are fair.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Crum: The Prospect of Bailing-in Texas: Strategic Considerations (5)<https://electionlawblog.org/?p=101144>
Posted on September 17, 2018 7:00 am<https://electionlawblog.org/?p=101144> by Rick Hasen<https://electionlawblog.org/?author=3>

This is the fifth and final<https://electionlawblog.org/?p=101135> in a series of posts by Travis Crum:

As my previous posts have made clear, Texas is eligible for bail-in for its unconstitutional conduct during the 2011 redistricting cycle. But there are strategic risks in seeking this high-profile bail-in rather than using a smaller, county-level jurisdiction as a test case at the Court. The fact that Texas has already won in the Supreme Court twice in this litigation is not ideal. Moreover, a case that lacked the “second enactment” wrinkle—here, the 2013 plans—would be a better vehicle, as the Court could not point to that action as a reason for denying bail-in.

Under the district court’s scheduling order, briefing on Section 3(c) relief won’t be complete until January 2019. If past is prologue, we should expect a lengthy wait for a decision—one that will almost certainly include a dissent from Judge Smith given his past statements criticizing the plaintiffs’ reliance on Section 3(c). Assuming that the district court orders bail-in, Texas can immediately appeal to the Supreme Court because the case involves a statewide redistricting plan. That means we could be seeing a Texas bail-in case argued in the October 2019 Term and decided in early 2020. On the one hand, that’s right before the next round of redistricting and could set an important precedent as we enter the first post-Shelby County redistricting cycle. But on the other hand, Texas and opponents of bail-in will cry foul over the length of these proceedings.

And to understate the obvious, the Court is a very different institution today than when it decided Shelby County in 2013. As Rick Hasen<https://slate.com/news-and-politics/2018/06/the-abbott-v-perez-case-echoes-shelby-county-v-holder-as-a-further-death-blow-for-the-voting-rights-act.html> and Dan Tokaji<https://takecareblog.com/blog/abbott-v-perez-bad-reading-invites-discriminatory-redistricting> have noted, Justice Gorsuch joined Justice Thomas’s concurrence in Abbott arguing that Section 2 of the VRA does not cover vote dilution—a position that Scalia also held for decades<https://www.law.cornell.edu/supct/html/91-2012.ZC1.html>. But Gorsuch’s appointment may have moved the needle on bail-in. Scalia declined to join Thomas’s concurrence in Shelby County that preclearance itself was unconstitutional. Given Gorsuch’s votes so far, it would not be surprising if he shared Thomas’s views on preclearance.

And then there’s the retirement of Justice Kennedy—the Court’s erstwhile swing vote. If Judge Kavanaugh is confirmed, his views on race and federalism will be key in any bail-in case. Because of the D.C. Circuit’s unique docket, Kavanaugh’s views on these issues aren’t as well-known as his opinions on, say, administrative law and separation of powers. But back in 2012, Kavanaugh sat on a three-judge district court that decided whether South Carolina’s voter ID law should be precleared. In an opinion written by Kavanaugh, the court unanimously precleared<https://campaignlegal.org/sites/default/files/SC_v_US_Opinion_10-10-12.pdf> the law for post-2012 elections and only after adopting a broad interpretation of the “reasonable impediment” exception to the voter ID requirement. That was a decidedly middle-ground position.

Here, it’s important to note that Kavanaugh declined to question the VRA’s constitutionality while the cert petition in Shelby County was pending. As his long trail of judicial writings makes clear, Kavanaugh isn’t shy about letting us know what he thinks about issues. But at the same time, he did not join Judge Bates’s concurring opinion that highlighted Section 5’s “vital function” and important deterrent effects. Since Judge Kollar-Kotelly also joined Bates’s concurrence, one can infer that Kavanaugh did not want to include that language in the court’s opinion. Kavanaugh’s views on the old preclearance regime are therefore unclear, but, in any event, Section 3(c) does not suffer from the same flaws that doomed the coverage formula.

Ultimately, the question of bailing-in Texas may come down to whether the Roberts Court has the appetite to weaken another provision of the Voting Rights Act. Given the swiftness with which formerly covered jurisdictions enacted discriminatory laws, the Court may pause before further chipping away at the crown jewel of the civil rights movement.

*          *          *

In this series of posts, I’ve argued that Section 3(c) remains an important and constitutional part of the civil rights arsenal. In the wake of Shelby County, bail-in suits have re-shaped the legal landscape, kept cases from being declared moot by subsequent developments, and helped ameliorate discriminatory election practices. But the biggest test for Section 3(c) may be yet to come.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

“In Georgia, a legal battle over electronic vs. paper voting”<https://electionlawblog.org/?p=101176>
Posted on September 16, 2018 8:30 pm<https://electionlawblog.org/?p=101176> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/world/national-security/in-georgia-a-legal-battle-over-electronic-vs-paper-voting/2018/09/16/d655c070-b76f-11e8-94eb-3bd52dfe917b_story.html?utm_term=.97727663f0a9>

Logan Lamb, a cybersecurity sleuth, thought he was conducting an innocuous Google search to pull up information on Georgia’s centralized system for conducting elections.

He was taken aback when the query turned up a file with a list of voters and then alarmed when a subsequent simple data pull retrieved the birth dates, drivers’ license numbers and partial Social Security numbers of more than 6 million voters, as well as county election supervisors’ passwords for use on Election Day. He also discovered the server had a software flaw that an attacker could exploit to take control of the machine.

The unsecured server that Lamb exposed in August 2016 is part of an election system — the only one in the country that is centrally run and relies upon computerized touch-screen machines for its voters — that is now at the heart of a legal and political battle with national security implications.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

Crum: The Prospect of Bailing-in Texas: The Constitutional Argument for Bail-in (4)<https://electionlawblog.org/?p=101141>
Posted on September 16, 2018 9:43 am<https://electionlawblog.org/?p=101141> by Rick Hasen<https://electionlawblog.org/?author=3>

This is the fourth<https://electionlawblog.org/?p=101135> in a series of guest posts by Travis Crum:

As I discussed in my previous post, Texas’s conduct during the 2011 redistricting cycle qualifies it for bail-in. But as is often true in election law, this case raises novel constitutional questions. The first question is whether a Shaw violation can trigger bail-in. The second question is whether Section 3(c) remains constitutional after Shelby County.

I’ll start with Shaw. In the first wave<https://www.law.cornell.edu/supct/html/92-357.ZS.html> of Shaw cases in the 1990s, the Court invalidated redistricting plans that created majority-minority districts intended to benefit minority voters and did, in fact, empower them to elect candidates of their choice. But in the second wave<https://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf> of Shaw cases in the past few years<https://www.law.ua.edu/lawreview/files/2011/07/Racial-Gerrymanderings-Questionable-Revival.pdf>, the Court addressed redistricting plans where States adopted strict racial quotas for the percentage of minority voters in certain districts. States claimed that these quotas were mandated by the VRA. That putative desire for VRA compliance, however, was superficial, and States used the quotas as a pretext to sort minority voters in ways that undermined their electoral strength. Notwithstanding that the two waves of Shaw cases are theoretically distinct, the Court treats them under same doctrinal framework.

Although all Shaw violations fit the statutory definition for bail-in, it is somewhat counter-intuitive to rely on first-wave cases for imposing preclearance. It would be odd to fault a State for using race in the redistricting process and then re-inject racial considerations as part of the remedy. The state house district that the Supreme Court concluded was a racial gerrymander—HD90—falls into this category. Although HD90 is the sole remaining finding of unconstitutional conduct as to the 2013 plans, it is a thin reed to impose bail-in.

To be sure, the Texas court found second-wave Shaw violations for the 2011 plans. Granting Section 3(c) relief in second-wave Shaw cases is on firmer theoretical ground because the State’s race-conscious line-drawing was designed to undermine minority political strength. One example from this litigation aptly demonstrates this point: regarding a state house district, the Texas court found that the “redistricters insisted that the district not only have exactly 50.1% SSRV [Spanish-Surnamed Voter Registration] but that it also perform less favorably for Latino voters.” This discriminatory animus toward minority voters calls out for federal oversight.

The Supreme Court, however, has refused to acknowledge the key distinctions between first- and second-wave Shaw cases. As such, it may be prudent to order bail-in based on the bevy of intentional vote dilution findings in this litigation rather than on the second-wave Shaw violations.

Turning now to the broader question of constitutionality, Section 3(c) avoids the pitfalls that doomed the coverage formula. As I explained<https://electionlawblog.org/?p=52659> after Shelby County, Section 3(c) replaces the coverage formula’s reliance on outdated proxies with judicial findings of contemporary constitutional violations and directly links a constitutional violation to Congress’s enforcement power to establish remedial schemes. Section 3(c) also sidesteps Shelby County’s “equal sovereignty” principle. Whereas Section 4 used a reverse-engineered formula to impose preclearance, Section 3(c) applies nationwide and is triggered only after a judicial finding of unconstitutional conduct.

The Texas court should also craft its preclearance remedy to ameliorate any constitutional concerns. In this way, Section 3(c) addresses a “current need” with minimal “current burdens,” namely, responding to a recent constitutional violation with targeted preclearance. Courts have frequently fashioned bail-in remedies to be more temporally limited and substantively targeted than Section 5. In the 1980s, for example, New Mexico agreed to preclear its 1991 redistricting plans, rather than all election-law changes in perpetuity. A similar remedy could be crafted here: Texas should be required to preclear its post-2020 redistricting plans and, given Texas’s penchant for mid-decade redistricting, any plans enacted prior to the 2030 Census.

Here, it’s worth pointing out that we have a sneak preview of Texas’s arguments against bail-in. In a prior post, I noted that the City of Pasadena, Texas, has been bailed-in. Before that case settled, Texas filed an amicus brief in the Fifth Circuit arguing that Pasadena’s actions did not merit bail-in. (The brief can be found on Westlaw at 2017 WL 1232317).

As an amicus, Texas asserted that bail-in was appropriate only when courts are faced with defiance on par with the Jim Crow era. It’s telling that Texas lacked the chutzpah to argue that Section 3(c) was facially invalid. After all, the Texas SG’s office is staffed with top-notch attorneys who aggressively defend their State’s interests and are no strangers to novel legal claims.

Texas’s argument ignores Section 3(c)’s plain text, which triggers coverage based on violations of the Fourteenth and Fifteenth Amendments, not repeated evasion of court decrees. Texas’s argument also sets an implausibly high bar for Congress’s enforcement authority, which is at its zenith when it combats racial discrimination in voting. And even assuming defiance and recidivism are the touchstones, that standard is satisfied here: Texas has committed numerous constitutional violations and repeatedly failed to adopt non-discriminatory redistricting plans in the 2010 cycle and over the past several decades.

In my next and final post, I’ll discuss whether this case is an ideal vehicle for bail-in given recent changes at the Court.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

Calls for Ranked Choice Voting in MA<https://electionlawblog.org/?p=101173>
Posted on September 15, 2018 3:07 pm<https://electionlawblog.org/?p=101173> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports. <http://www.startribune.com/after-chaotic-house-race-some-call-for-new-voting-system/493377101/>
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

Chief Justice Roberts Issues Temporary Stay of Order Requiring Crossroads GPS and Similar Groups to Disclose Certain Donor Information to FEC<https://electionlawblog.org/?p=101171>
Posted on September 15, 2018 3:01 pm<https://electionlawblog.org/?p=101171> by Rick Hasen<https://electionlawblog.org/?author=3>

The stay looks to be an administrative one, pending further action of the Court. Witht 4 Justices strongly in favor of disclosure on the Court, I would guess that this results in an eventual denial of the stay, either by a majority vote or a 4-4 split (which keeps the lower court decision in place), unless this is held long enough for Judge Kavanaugh to join the Court.

See this extensive thread from Chris Geidner<https://twitter.com/chrisgeidner/status/1041066255015452672>.
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Chris Geidner<https://twitter.com/chrisgeidner>
✔@chrisgeidner<https://twitter.com/chrisgeidner>

<https://twitter.com/chrisgeidner/status/1041066255015452672>

BREAKING: Chief Justice John Roberts, without referring the matter to the rest of the court, issued a stay of a DC Dist Ct ruling that would have meant add'l disclosure requirements on Crossroads GPS and other similar groups. #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash>
1:48 PM - Sep 15, 2018<https://twitter.com/chrisgeidner/status/1041066255015452672>

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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>

Crum: The Prospect of Bailing-in Texas: The Statutory Argument for Bail-in (3)<https://electionlawblog.org/?p=101139>
Posted on September 15, 2018 9:41 am<https://electionlawblog.org/?p=101139> by Rick Hasen<https://electionlawblog.org/?author=3>

This is third<https://electionlawblog.org/?p=101135> in a series of guest posts by Travis Crum:

In my last post, I provided an overview of recent bail-in cases. Now I will argue why Texas qualifies for bail-in under Section 3(c).

Given the very long and complex history of this redistricting litigation, a quick timeline is helpful. Following the 2011 Census, Texas enacted new redistricting plans. At the time, Texas was a covered jurisdiction and thus sought preclearance from the U.S. District Court for the District of Columbia. Across the country, a coalition of civil rights groups and the Obama Administration brought a separate Section 2 case in the U.S. District Court for the Western District of Texas. While the preclearance case was pending before the D.D.C., the Texas court drew interim maps to govern the upcoming 2012 election. Texas, however, challenged those maps, and the Supreme Court reversed<https://supreme.justia.com/cases/federal/us/565/388/>, holding that the Texas court failed to properly respect Texas’s 2011 districting plans and that those plans should have been modified only to account, in varying ways, for the plaintiffs’ constitutional and statutory claims. The Texas court subsequently drew new interim maps that were used for the 2012 election.

In August 2012, the D.D.C. denied<https://www.gpo.gov/fdsys/pkg/USCOURTS-dcd-1_11-cv-01303/pdf/USCOURTS-dcd-1_11-cv-01303-3.pdf> preclearance. As relevant here, the D.D.C. held that the congressional plan had a retrogressive effect and was enacted with discriminatory intent. The D.D.C. also concluded that the state house plan had a retrogressive effect and that the record “strongly suggest[ed]” that there was intentional discrimination. Texas appealed the denial of preclearance, but the case was dismissed after Shelby County absolved Texas of its need to seek preclearance.

In 2013, Texas adopted revised versions of the Texas court’s second-attempt interim maps. Texas’s 2013 maps were used for the 2014 and 2016 elections. Meanwhile, the plaintiffs in the Texas court amended their complaint to challenge the 2013 plans and added a request for Section 3(c) relief.

Following a trial, the Texas court issued a pair<https://www.leagle.com/decision/infdco20170421j43> of opinions<https://www.leagle.com/decision/infdco20170504900> in spring 2017 holding that numerous congressional and state house districts in the 2011 plan violated the Fourteenth Amendment. Notably, the district court found both intentional vote dilution and Shaw violations. In rejecting Texas’s argument that the plaintiffs’ challenge to the 2011 plans was moot, the Texas court relied, in part, on the plaintiffs’ request for Section 3(c) relief.

Then, in August 2017, the Texas court issued another pair<https://www.leagle.com/decision/infdco20170313h23> of opinions<https://www.leagle.com/decision/274184795fsupp3d62433> on the 2013plans. Once again, the Texas court concluded that numerous congressional and state house districts were unlawful. The Texas court held that Texas had not purged the discriminatory taint from the 2011 redistricting plans when it adopted the 2013 plans. The Texas court further found that a state house district was an unconstitutional racial gerrymander, i.e., a Shaw violation.

Earlier this year, in Abbott, a closely divided Supreme Court reversed in part and affirmed in part the Texas court’s holdings as to the 2013 plans. Regarding the finding of intentional discrimination, the Court declared that the Texas court had improperly placed the burden on Texas to prove that it had purged the taint from the 2011 plans when it enacted the 2013 plans. The Court further credited Texas’s explanation that it had adopted (with some revisions) the court-drawn plans in 2013 as a way of ending the redistricting litigation. Accordingly, the Court reversed the finding of intentional discrimination as to the 2013 plans. The Court, however, affirmed the finding of a Shaw violation. The upshot of this lengthy litigation is that Abbott does not disturb the Texas court’s spring 2017 finding of unconstitutional conduct as to the 2011 maps.

Thus, Section 3(c) relief can be based on multiple judicial findings of intentional discrimination in the enactment of the 2011 plans. The Texas court found intentional vote dilution in congressional districts in South/West Texas and the Dallas-Fort Worth area as well as for the state house plan “as a whole” and in eleven state house districts located across Texas. And the Texas court is not alone: the D.D.C. concluded that Texas’s 2011 congressional plan was enacted with discriminatory intent and that there was strong record evidence that the state house plan was similarly flawed. Given this litany of constitutional violations, Texas qualifies for bail-in.

Following Abbott and Veasey, Texas will probably claim that bail-in is unnecessary because it has already “cured” any “taint” from the 2011 plans when it enacted the 2013 plans. As an initial matter, Abbott specifically addresses only the 2013 plans and resolves the analytically distinct question of when discriminatory intent has dissipated. That is a different inquiry from what remedies may be imposed for the initial constitutional violation to ensure that it does not happen again in the 2020 redistricting cycle. The situation here also differs from Veasey in a key respect: that court could assume that federal oversight was unnecessary because the less stringent voter ID law adopted by Texas will govern for the foreseeable future, but redistricting must happen again after the 2020 Census.

In a similar vein, Texas will likely borrow an argument from one of Judge Smith’s dissents and argue that Section 3(c) relief is improper because its 2011 plans were never used in any election. Put simply, no harm, no foul. This argument blinks reality. The reason the 2011 plans were not implemented is the preclearance requirement and the need for interim maps during that proceeding. Texas did not have a change of heart: Texas would not have enacted the 2013 plans—or it’s less stringent voter ID law—but for the litigation brought by civil rights groups and the Obama Administration. The point of preclearance is to deter unconstitutional conduct. Texas’s repeated failures to adopt non-discriminatory redistricting plans over the past few decades epitomizes the need for federal oversight.

Now that it’s established that Texas qualifies for bail-in, I will address certain constitutional arguments in my next post.

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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>

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Rick Hasen
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UC Irvine School of Law
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