[EL] ELB News and Commentary 1/7/19

Mon Jan 7 08:04:16 PST 2019

“The Supreme Court Could Make Gerrymandering Worse”<https://electionlawblog.org/?p=103094>
Posted on January 7, 2019 8:02 am<https://electionlawblog.org/?p=103094> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://www.theatlantic.com/ideas/archive/2019/01/supreme-court-will-rule-gerrymandering-md-and-nc/579550/?utm_source=twitter&utm_campaign=the-atlantic&utm_term=2019-01-07T11%3A00%3A28&utm_medium=social&utm_content=edit-promo> for The Atlantic. It begins:

The Supreme Court’s decision on Friday to take up partisan gerrymandering cases from North Carolina and Maryland brought to mind a saying attributed to Judy Garland<https://simple.wikiquote.org/wiki/Judy_Garland>: Behind every cloud is another cloud.

The now firmly conservative Court likely took the cases not to announce that such activities violate the Constitution, but to reverse the lower courts that said they do. Down the road, the Court might do much more damage, including by preventing states from using independent commissions to draw congressional districts.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“How to Fix America’s Broken Political System”<https://electionlawblog.org/?p=103092>
Posted on January 7, 2019 7:59 am<https://electionlawblog.org/?p=103092> by Rick Hasen<https://electionlawblog.org/?author=3>

Norm Eisen and Fred Wertheimer in Politico<https://www.politico.com/magazine/story/2019/01/07/election-security-campaign-finance-bill-223758>:

Much attention has focused on H.R. 1, the comprehensive package of democracy reforms introduced on Thursday by Representative John Sarbanes (D-Md.) on behalf of the new Democratic House majority. The unprecedented legislation is perhaps the most important domestic initiative of the new Congress. But it also has the capacity to begin fixing what has been broken in our foreign relations, reassuring our allies that America is on the way back to restoring our democracy, and with it our global leadership.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

Wendy Button, John Edwards’ Former Speechwriter, Reflects on His Prosecution, and Similar Charges Involving Trump<https://electionlawblog.org/?p=103090>
Posted on January 7, 2019 7:58 am<https://electionlawblog.org/?p=103090> by Rick Hasen<https://electionlawblog.org/?author=3>

Oped<https://www.usatoday.com/story/opinion/voices/2019/01/06/john-edwards-donald-trump-sex-scandal-campaign-finance-column/2471387002/> in USA Today.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>

“Florida elections official Brenda Snipes battles Gov. Rick Scott in court”<https://electionlawblog.org/?p=103088>
Posted on January 7, 2019 7:48 am<https://electionlawblog.org/?p=103088> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports. <https://www.cbsnews.com/news/florida-elections-official-brenda-snipes-battles-gov-rick-scott-court-today-2019-01-07/>
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Secret campaign to use Russian-inspired tactics in 2017 Ala. election stirs anxiety for Democrats”<https://electionlawblog.org/?p=103086>
Posted on January 6, 2019 3:04 pm<https://electionlawblog.org/?p=103086> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/business/technology/secret-campaign-to-use-russian-inspired-tactics-in-2017-alabama-election-stirs-anxiety-for-democrats/2019/01/06/58803f26-0400-11e9-8186-4ec26a485713_story.html?utm_term=.a5fc3926f919>

A secret effort to influence the 2017 Senate election in Alabama used tactics inspired by Russian disinformation teams, including the creation of fake accounts to deliver misleading messages on Facebook to hundreds of thousands of voters to help elect Democrat Doug Jones in the deeply red state, according to a document obtained by The Washington Post.

But unlike the 2016 presidential campaign when Russians worked to help elect Donald Trump, the people behind the Alabama effort — dubbed Project Birmingham — were Americans. Now Democratic operatives and a research firm known to have had roles in Project Birmingham are distancing themselves from its most controversial tactics.

Jones’s narrow, upset victory over Republican Roy Moore in all likelihood resulted from other factors, political analysts say. Moore spent much of the special-election campaign battling reports in The Post that he had decades earlier made unwanted sexual advances toward teenage girls.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

Roundup of Stories on SCOTUS Decision to Hear North Carolina and Maryland Partisan Gerrymandering Cases<https://electionlawblog.org/?p=103084>
Posted on January 6, 2019 9:11 am<https://electionlawblog.org/?p=103084> by Rick Hasen<https://electionlawblog.org/?author=3>

Howard has it.<https://howappealing.abovethelaw.com/2019/01/05/#85352>
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“Fixing what’s wrong with US: How about making Congress bigger?”<https://electionlawblog.org/?p=103082>
Posted on January 6, 2019 8:53 am<https://electionlawblog.org/?p=103082> by Rick Hasen<https://electionlawblog.org/?author=3>

John Wildermuth<https://www.sfchronicle.com/politics/article/Fixing-what-s-wrong-with-U-S-How-about-making-13479382.php?utm_campaign=email-premium&utm_source=CMS%20Sharing%20Button&utm_medium=social> for the SF Chronicle.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>

“House Democrats prepare to probe disputed North Carolina election”<https://electionlawblog.org/?p=103080>
Posted on January 5, 2019 1:29 pm<https://electionlawblog.org/?p=103080> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2019/01/05/north-carolina-election-house-democrats-1082561>

House Democrats are preparing to launch their own investigations into the disputed congressional election in North Carolina, where Republican Mark Harris’ campaign is facing fraud allegations and the state elections board had refused to certify the results.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>

“House Dems Seek SEC Rule on Political Giving Disclosure”<https://electionlawblog.org/?p=103078>
Posted on January 5, 2019 10:59 am<https://electionlawblog.org/?p=103078> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg BNA:<https://bnanews.bna.com/corporate-law/house-dems-seek-sec-rule-on-political-giving-disclosure-2>

The Securities and Exchange Commission could require publicly traded companies to disclose their political spending under one of the first bills the new House Democratic majority introduced Jan. 4.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Gov. Jerry Brown’s pardon of former state senator was opposed by prosecutors, new records show”<https://electionlawblog.org/?p=103076>
Posted on January 4, 2019 8:20 pm<https://electionlawblog.org/?p=103076> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT:<https://www.latimes.com/politics/la-pol-ca-senator-pardon-opposed-20190104-story.html>

Gov. Jerry Brown’s recent pardon of former state Sen. Roderick Wright was supported by several of California’s top political figures but opposed by Los Angeles County Dist. Atty. Jackie Lacey, who warned it would undermine a fundamental state law, according to court documents unsealed Thursday.

The county prosecutor told Brown that clemency for Wright, an Inglewood Democrat who was was found guilty in 2014<https://www.latimes.com/local/political/la-me-pc-convicted-felon-roderick-wright-to-resign-from-state-senate-20140915-story.html> of lying about living in his legislative district, could lead other politicians to disregard requirements that they reside in the areas they represent.

“A grant of pardon for Mr. Wright would set him above the law, and encourage future candidates to break it,” Lacey wrote in the Sept. 6 letter to the governor, which was among 299 pages of documents released Thursday under an order by the California Supreme Court. Brown pardoned Wright<https://www.latimes.com/politics/la-pol-ca-thanksgiving-pardons-jerry-brown-20181121-story.html>, 66, in November.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Rucho: Not a Rerun of Whitford<https://electionlawblog.org/?p=103074>
Posted on January 4, 2019 4:30 pm<https://electionlawblog.org/?p=103074> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

In the wake of the Supreme Court’s order<https://www.supremecourt.gov/orders/courtorders/010419zr_4f14.pdf> agreeing to hear the North Carolina partisan gerrymandering case, I wanted to flag some key differences between this suit and last year’s Wisconsin case:
1.      Standing: The Court held that the Wisconsin plaintiffs hadn’t yet proven their standing to bring a partisan vote dilution claim. The Court also clarified the standard for establishing standing: a litigant must live in a district that (1) is cracked or packed; and (2) could be uncracked or unpacked by an alternative map. This time around, there’s no serious dispute that the North Carolina plaintiffs have standing in at least nine districts. These districts were created by dispersing or overconcentrating Democratic voters throughout the state. This cracking and packing was also entirely unnecessary, as shown by a demonstration map that uncracks and unpacks the plaintiffs residing in the districts. Consequently, there isn’t an easy way for the Court to avoid the merits in this case. If the plaintiffs have standing, they can lose only if the Court deems the cause of action nonjusticiable or announces a test and rules that the plaintiffs haven’t met it. These are exactly the substantive issues the Court dodged in the Wisconsin case.
2.      A District-Specific Claim: In the Wisconsin case, the plaintiffs challenged the district map in its entirety on partisan vote dilution grounds. Here, the plaintiffs have subtly but significantly revised their dilution claims. These claims are now district-specific, not statewide, requiring as an element that a particular district was designed with partisan intent. You can tell the claims really are district-specific because even if they all succeeded, North Carolina’s whole congressional map would not be struck down. Rather, just the nine districts where the plaintiffs have standing and can show partisan intent would be invalidated, and the state would not be obligated to change the map’s other districts.
3.      The Associational Theory: In the Wisconsin case, Justice Kagan laid out a non-dilutionary theory of partisan gerrymandering. On this view, the harm of gerrymandering is not that it dilutes a party’s electoral influence but rather that it imposes a burden on a party’s associational activities: recruiting candidates, mobilizing volunteers, raising funds, and so on. The plaintiffs in the Wisconsin case did not explicitly bring an associational claim. But the Common Cause plaintiffs in North Carolina (one of the two sets of litigants) do assert this challenge.
4.      Intent Evidence: In the Wisconsin case, the drafters’ intent to benefit their party and handicap the opposition had to be inferred from (abundant) circumstantial evidence. Here, though, there is a smoking gun. North Carolina’s redistricting committee actually approved a criterion called “Partisan Advantage” that required “the partisan makeup of the congressional delegation” to be “10 Republicans and 3 Democrats.”
5.      Effect Evidence: In the Wisconsin case, the plaintiffs focused on a particular quantitative measure of partisan asymmetry: the efficiency gap. Here, on the other hand, the plaintiffs covered the field; they also introduced evidence about two other asymmetry metrics as well as analyses showing that the pro-Republican skew of North Carolina’s map would persist under almost any electoral environment. These analyses were corroborated by the results of the 2018 election; in the biggest Democratic wave since Watergate, Democrats failed to pick up a single House seat in North Carolina.
6.      Political Geography Evidence: In the Wisconsin case, no computer-simulated district maps were admitted into evidence. But here, two experts (Jowei Chen and Jonathan Mattingly) randomly generated thousands of congressional maps for North Carolina using all of the state’s nonpartisan criteria. Most of these maps were highly symmetric, indicating that the pro-Republican skew of the enacted plan cannot be attributed to the state’s political geography or any other nonpartisan factor.
7.      The State’s Position: In the Wisconsin case, the defendants focused on standing and the statewide nature of the plaintiffs’ claim. Here, in contrast, North Carolina’s lead argument is that partisan gerrymandering is inherently nonjusticiable—that all such challenges should be foreclosed for all time. This is obviously a much more aggressive position, which dramatically raises the stakes for the Court, the litigants, and American democracy writ large.
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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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