[EL] more news 1/17/19

Thu Jan 17 12:20:17 PST 2019

Breaking: Census Citizenship Question Plaintiffs Move to Dismiss Supreme Court Case Involving Ross and Gore Depositions as Moot<https://electionlawblog.org/?p=103215>
Posted on January 17, 2019 12:11 pm<https://electionlawblog.org/?p=103215> by Rick Hasen<https://electionlawblog.org/?author=3>

I explained in a recent post<https://electionlawblog.org/?p=103186> on the census citizenship question case the following:

The Supreme Court is already hearing a case about one aspect of Judge Furman’s decisions: whether the judge improperly allowed some discovery into the mindset of Secretary Ross and AAAG John Gore. That question seems mostly moot<https://twitter.com/rickhasen/status/1085258523305361409>: Judge Furman relied only on material in the public record in reaching his decisions, so a remand would simply lead to the same decision. (It may not betechnically moot.<https://twitter.com/JoshuaMatz8/status/1085199045264633856>)

But given the press of time, I expect DOJ will seek a stay of Judge Furman’s ruling, perhaps by going directly to the Supreme Court and seeking to bypass the 2nd Circuit. DOJ might even seek cert. directly rather than going through the 2d Circuit, and the Supreme Court might even treat a stay request as a cert. petition and grant it.

Well now we have the mootness argument in the already existing Supreme Court case. You can find the motion to dismiss at this link<https://electionlawblog.org/wp-content/uploads/No.-18-557-Motion-To-Dismiss.pdf>. A snippet:

First, Petitioners’ chief concern—that “Secretary Ross will be forced to prepare for and attend a deposition, which cannot be undone,” Pet. Br. 44— has been rendered moot, because the district court vacated the decision that is the subject of the mandamus petition. New York, slip op. 277. This Court’s interlocutory review of the district court’s order authorizing the Secretary’s deposition is thus not only unnecessary but also outside the scope of the Court’s jurisdiction.

Second, the final judgment does not turn on “evidence of the Secretary’s mental processes.” Pet. Br. 44. Rather, the district court reached its decisions as to the APA “based exclusively on the materials in the official ‘Administrative Record,’” New York, slip op. 8, concluding that extra-record evidence merely buttressed its extensive findings and conclusions of law, e.g., id. at 97, 99, 231 n.68, 241 n.74. Any remaining disputes between the parties over the propriety of discovery outside of the administrative record can and should be addressed through review of the final judgment.

You can find the plaintiffs’ brief on the merits in the SCOTUS case at this link.<https://electionlawblog.org/wp-content/uploads/18-557bs.pdf>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Breaking: Federal Court Holds New Wisconsin Early Voting Cutbacks Barred by Existing Injunction Against Earlier Early Voting Cutbacks<https://electionlawblog.org/?p=103213>
Posted on January 17, 2019 12:03 pm<https://electionlawblog.org/?p=103213> by Rick Hasen<https://electionlawblog.org/?author=3>

Court order here.<https://big.assets.huffingtonpost.com/athena/files/2019/01/17/5c40daede4b0a8dbe16ef1bd.pdf> (via Sam Levine).

The state argued this was a new law with some different provisions and so not covered by the existing injunction. The court found the provisions were substantially similar. It also noted: “If the court accepted defendants’ argument, it would mean that a legislative body could evade an injunction simply by reenacting an identical law and giving it a new number.”

The existing case is up on appeal, and so this is not over.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Trump DOJ Reversing Obama DOJ Decision, Now States That Texas Should NOT Be Placed Under Federal Supervision over Voting Rules Based on Intentional Racial Discrimination in Redistricting Case<https://electionlawblog.org/?p=103210>
Posted on January 17, 2019 10:49 am<https://electionlawblog.org/?p=103210> by Rick Hasen<https://electionlawblog.org/?author=3>

As first flagged<https://twitter.com/GerryHebert/status/1084549534561255424> by Gerry Hebert, the Department of Justice has submitted this filing<https://electionlawblog.org/wp-content/uploads/doj-3c.pdf> in the long-running Texas redistricting case of Abbott v. Perez  indicating it no longer believes (as the Obama Administration did) that Texas should be put back under federal supervision for voting. Such “bail-in” to preclearance under section 3(c) of the Voting Rights Act is discretionary in cases, like this one, where a court has found that a jurisdiction has engaged in intentional racial discrimination in voting.

The filing does not indicate the basis for the DOJ’s change of position; that will appear in a further filing (assuming the three-judge court allows such a filing).

It is yet another example of the Trump administration siding with those who have committed Voting Rights Act violations rather than those who are the victims of it.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, Voting Rights Act<https://electionlawblog.org/?cat=15>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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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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