[EL] ELB News and Commentary 7/9/19

Mon Jul 8 20:50:04 PDT 2019

Politico: “Why Trump will likely lose the census citizenship fight”<https://electionlawblog.org/?p=106139>
Posted on July 8, 2019 8:48 pm<https://electionlawblog.org/?p=106139> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/07/08/trump-census-citizenship-2020-1573574>:

On Friday one of the three district court judges, Maryland-based U.S. District Judge George Hazel, ordered the start of discovery, a chance for both parties to seek out related evidence in the case.

Civil rights groups say they plan to use that opportunity to pry into communications between the White House and the Commerce Department and Justice Department officials involved in ordering the new query. They may also seek more details on Trump’s own involvement. That will likely trigger renewed legal battles over executive privilege and the confidentiality of White House interactions.

The district court judges will need to be convinced that whatever new rationale the DOJ lawyers produce for adding the census question isn’t undermined by earlier evidence that, among other things, suggested<https://www.politico.com/story/2019/05/30/republican-redistricting-census-1489667> a deceased Republican redistricting strategist, Thomas Hofeller, sought to ask about citizenship to create an electoral advantage for Republicans and non-Hispanic whites.

Hazel previously ruled that only Commerce Secretary Wilbur Ross’s intent was relevant to the legal issues in the case. But with the litigation now focused on issues of intentional discrimination and a conspiracy to deprive Latinos of their civil rights, the plaintiffs are planning a broader effort to turn up evidence that could be problematic for the administration.

“A civil conspiracy claim is what makes the intent of a larger number of people relevant,“ said Denise Hulett of the Mexican American Legal Defense and Education Fund, which represents plaintiffs in the two related cases before Hazel. “We think that’s going to come into play even more than it did before because it’s clear a large group of people were involved in the decision.”
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106139&title=Politico%3A%20%E2%80%9CWhy%20Trump%20will%20likely%20lose%20the%20census%20citizenship%20fight%E2%80%9D>
Posted in census litigation<https://electionlawblog.org/?cat=125>

League of Women Voters Renews Challenge to Florida Secretary of State Guidance Discouraging Use of College Campuses for Early Voting<https://electionlawblog.org/?p=106136>
Posted on July 8, 2019 6:58 pm<https://electionlawblog.org/?p=106136> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the supplemental complaint here<https://electionlawblog.org/wp-content/uploads/fl-early-voting-complaint.pdf>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106136&title=League%20of%20Women%20Voters%20Renews%20Challenge%20to%20Florida%20Secretary%20of%20State%20Guidance%20Discouraging%20Use%20of%20College%20Campuses%20for%20Early%20Voting>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Plaintiffs in Census Case Question Whether DOJ Should Be Able to Withdraw Its Current Set of Attorneys and Potentially Drag Case Out<https://electionlawblog.org/?p=106134>
Posted on July 8, 2019 6:05 pm<https://electionlawblog.org/?p=106134> by Rick Hasen<https://electionlawblog.org/?author=3>

See this filing:<https://twitter.com/big_cases/status/1148388217017786368>
[View image on Twitter]<https://twitter.com/big_cases/status/1148388217017786368/photo/1>[View image on Twitter]<https://twitter.com/big_cases/status/1148388217017786368/photo/1>[View image on Twitter]<https://twitter.com/big_cases/status/1148388217017786368/photo/1>
[https://pbs.twimg.com/profile_images/827599153547079682/WJEBwlr3_bigger.jpg]<https://twitter.com/big_cases>
<https://twitter.com/big_cases>
Big Cases Bot at big_cases<https://twitter.com/big_cases>

<https://twitter.com/big_cases/status/1148388217017786368>

New filing in State Of New York et al v. United States Department of Commerce et al: Response to Motionhttps://www.usatoday.com/documents/6185678-Response-to-Motion …<https://t.co/Vq53PHkbom>
<https://twitter.com/intent/like?tweet_id=1148388217017786368>
20<https://twitter.com/intent/like?tweet_id=1148388217017786368>
5:27 PM - Jul 8, 2019<https://twitter.com/big_cases/status/1148388217017786368>
<https://twitter.com/big_cases/status/1148388217017786368>
19 people are talking about this<https://twitter.com/big_cases/status/1148388217017786368>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106134&title=Plaintiffs%20in%20Census%20Case%20Question%20Whether%20DOJ%20Should%20Be%20Able%20to%20Withdraw%20Its%20Current%20Set%20of%20Attorneys%20and%20Potentially%20Drag%20Case%20Out>

Posted in census litigation<https://electionlawblog.org/?cat=125>
Look for the New Census Pretext to Be About Immigration Enforcement<https://electionlawblog.org/?p=106132>
Posted on July 8, 2019 4:51 pm<https://electionlawblog.org/?p=106132> by Rick Hasen<https://electionlawblog.org/?author=3>

Sarah Harrington<https://twitter.com/SEHarringtonDC/status/1148360750672433153>:
[https://pbs.twimg.com/profile_images/1042408024332095489/1r6iPYlo_bigger.jpg]<https://twitter.com/SEHarringtonDC>
<https://twitter.com/SEHarringtonDC>
Sarah Harrington at SEHarringtonDC<https://twitter.com/SEHarringtonDC>

<https://twitter.com/SEHarringtonDC/status/1148360750672433153>

Some of these guys are from the Office of Immigration Litigation. That’s probably a hint about the soon-to-be-newly discovered justification for including the citizenship question. https://twitter.com/jaime_asantos/status/1148358391548534785 …<https://t.co/KMAiO9m34M>
<https://twitter.com/Jaime_ASantos/status/1148358391548534785>
Jaime Santos at Jaime_ASantos<https://twitter.com/Jaime_ASantos/status/1148358391548534785>

And the seven men who will comprise the new Census go team are . . . https://twitter.com/cryanbarber/status/1148351970446585857 …<https://twitter.com/Jaime_ASantos/status/1148358391548534785>

<https://twitter.com/intent/like?tweet_id=1148360750672433153>
161<https://twitter.com/intent/like?tweet_id=1148360750672433153>
3:38 PM - Jul 8, 2019<https://twitter.com/SEHarringtonDC/status/1148360750672433153>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/SEHarringtonDC/status/1148360750672433153>
88 people are talking about this<https://twitter.com/SEHarringtonDC/status/1148360750672433153>

Sasha Samberg-Champion:<https://twitter.com/ssamcham/status/1148372984391962625>
[https://pbs.twimg.com/profile_images/828987011340042241/xVOoYATP_bigger.jpg]<https://twitter.com/ssamcham>
<https://twitter.com/ssamcham>
Sasha Samberg-Champion at ssamcham<https://twitter.com/ssamcham>

 · 4h<https://twitter.com/ssamcham/status/1148366173089738753>
<https://twitter.com/ssamcham/status/1148366173089738753>

Replying to @ssamcham<https://twitter.com/_/status/1148364995081711618>

Though this team otherwise appears woefully out of place defending this action, one thing OIL attorneys are very familiar with is how to defend Trump's indefensible immigration policies with a straight face. And maybe that's the only skill-set required here.
[https://pbs.twimg.com/profile_images/828987011340042241/xVOoYATP_bigger.jpg]<https://twitter.com/ssamcham>
<https://twitter.com/ssamcham>
Sasha Samberg-Champion at ssamcham<https://twitter.com/ssamcham>

We may be told soon that the citizenship question on the Census is actually an exercise of the President's absolute and unreviewable authority to enforce immigration laws. See Travel Ban Litigation.https://twitter.com/SEHarringtonDC/status/1148360750672433153 …<https://t.co/DsUTuUq5uf>
<https://twitter.com/SEHarringtonDC/status/1148360750672433153>
Sarah Harrington at SEHarringtonDC<https://twitter.com/SEHarringtonDC/status/1148360750672433153>

Some of these guys are from the Office of Immigration Litigation. That’s probably a hint about the soon-to-be-newly discovered justification for including the citizenship question. https://twitter.com/jaime_asantos/status/1148358391548534785 …<https://twitter.com/SEHarringtonDC/status/1148360750672433153>

<https://twitter.com/intent/like?tweet_id=1148372984391962625>
99<https://twitter.com/intent/like?tweet_id=1148372984391962625>
4:27 PM - Jul 8, 2019<https://twitter.com/ssamcham/status/1148372984391962625>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/ssamcham/status/1148372984391962625>
76 people are talking about this<https://twitter.com/ssamcham/status/1148372984391962625>

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106132&title=Look%20for%20the%20New%20Census%20Pretext%20to%20Be%20About%20Immigration%20Enforcement>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Today’s Must Read: Dahlia Lithwick on John Roberts’ Big Test in the Census Case<https://electionlawblog.org/?p=106130>
Posted on July 8, 2019 4:48 pm<https://electionlawblog.org/?p=106130> by Rick Hasen<https://electionlawblog.org/?author=3>

Dahlia<https://slate.com/news-and-politics/2019/07/trump-roberts-supreme-court-citizenship-question-census.html> at Slate:

That Trump is now reportedly considering putting the citizenship question back onto the census by way of an executive order<https://www.nytimes.com/2019/07/05/us/census-question.html> is a natural reaction to Roberts’ compromise resolution. It’s a shockingly aggressive move that seems doomed to fail, but do read it for what it really is: Trump is threatening the chief justice, claiming for himself absolute authority to overrule the court. The Washington Post is telling us that Trump’s advisers don’t want him to back down<https://www.washingtonpost.com/politics/trump-administration-scrambles-to-save-citizenship-question-on-census/2019/07/04/238fe3fa-9e85-11e9-9ed4-c9089972ad5a_story.html?fbclid=IwAR1ecl-CtNr_wkZJ8qaNj26wxT5b08iBjtf_O5D3v_tZP3aAqUlg_5Gtx_w&utm_term=.57514684a4d4>, so his government lawyers spent the Fourth of July building better pretexts.

And so now it seems Trump will have his season finale smackdown with the chief<https://www.brennancenter.org/blog/trump-vs-john-roberts>, the man he has never forgiven for his vote in the Obamacare cases<https://www.washingtonexaminer.com/trump-by-supporting-john-roberts-cruz-gave-us-obamacare>. And Roberts, who probably believed he had settled this issue last week, must now decide, again, whether it’s worth his while to let the circus clown tear down the institution he prizes above all things. It’s lose-lose for the chief justice, win-win for the president, and a boon for ratings all around.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106130&title=Today%E2%80%99s%20Must%20Read%3A%20Dahlia%20Lithwick%20on%20John%20Roberts%E2%80%99%20Big%20Test%20in%20the%20Census%20Case>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Barr Says Legal Path to Census Citizenship Question Exists but Gives No Details”<https://electionlawblog.org/?p=106128>
Posted on July 8, 2019 4:39 pm<https://electionlawblog.org/?p=106128> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/07/08/us/politics/william-barr-census-citizenship.html?smid=nytcore-ios-share>:

President Trump and Attorney General William P. Barr began working to find a way to place a citizenship question on the 2020 census just after the Supreme Court blocked its inclusion<https://www.nytimes.com/2019/06/27/us/politics/supreme-court-gerrymandering-census.html?module=inline> last month, Mr. Barr said on Monday, adding that he believes that the administration can find a legal path to incorporating the question.
“The president is right on the legal grounds. I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified,” Mr. Barr said in an interview. He was referring to the ruling that left open the possibility that the citizenship question could be added to the census if the administration came up with a better rationale for it.
“It makes a lot of sense for the president to see if it’s possible that we could clarify the record in time to add the question,” Mr. Barr added.
But he also acknowledged that the career Justice Department lawyers who had worked on the census question had little appetite to continue on the case after Mr. Trump inserted himself into the process. “We’re going to reach a new decision and I can understand if they’re interested in not participating in this phase,” Mr. Barr said. The Justice Department announced a day earlier that it was replacing them<https://www.nytimes.com/2019/07/07/us/politics/census-citizenship-question-justice-department.html?module=inline>, a nearly unheard-of move.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106128&title=%E2%80%9CBarr%20Says%20Legal%20Path%20to%20Census%20Citizenship%20Question%20Exists%20but%20Gives%20No%20Details%E2%80%9D>
Posted in census litigation<https://electionlawblog.org/?cat=125>

“Former DOJ Lawyer Says Census Drama Put Attorneys in ‘Completely Untenable’ Position”<https://electionlawblog.org/?p=106126>
Posted on July 8, 2019 4:31 pm<https://electionlawblog.org/?p=106126> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeremy Stahl<https://slate.com/news-and-politics/2019/07/trump-census-william-barr-john-roberts-lawyer-change.html> for Slate:

“It’s an extremely unusual thing for an entire office to take itself off of a case in the middle of a case,” one former DOJ attorney, who worked under this administration, told Slate. “[These are] attorneys with the highest standards of integrity and highest standards of professionalism. I can only imagine they were in the very difficult position of being forced to contradict factual representations they had made previously.”
“That the entire office is being substituted out really indicates […] something strange,” the former attorney, who requested anonymity due to concerns about professional repercussions, added.
Another former DOJ official also speculated to the New York Times that the unusual move was likely because the original legal team was refusing to reverse course.

“There is no reason they would be taken off that case unless they saw what was coming down the road and said, ‘I won’t sign my name to that,’ ” Justin Levitt, a former senior official in the Justice Department under President Barack Obama, told the New York Times on Sunday.
The Times further confirmed<https://www.nytimes.com/2019/07/07/us/politics/census-citizenship-question-justice-department.html?action=click&module=Top%20Stories&pgtype=Homepage> that not only would career officials from the DOJ’s federal programs branch—the branch normally responsible for defending administration policies in court—be leaving the case, but a completely new branch would be taking over.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106126&title=%E2%80%9CFormer%20DOJ%20Lawyer%20Says%20Census%20Drama%20Put%20Attorneys%20in%20%E2%80%98Completely%20Untenable%E2%80%99%20Position%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Editorial: Court should open GOP gerrymander files to reveal depth of unfairness”<https://electionlawblog.org/?p=106124>
Posted on July 8, 2019 4:19 pm<https://electionlawblog.org/?p=106124> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL editorial<https://www.wral.com/editorial-court-should-open-gop-gerrymander-files-to-reveal-depth-of-unfairness/18496282/>:

A three-judge panel should rule<https://www.wral.com/dead-mans-computer-files-could-be-key-in-challenge-to-nc-voting-maps/18487853/> that long-hidden details of how politicians manipulated to pick the voters who elect them are admissible as evidence and are open for the public to view.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106124&title=%E2%80%9CEditorial%3A%20Court%20should%20open%20GOP%20gerrymander%20files%20to%20reveal%20depth%20of%20unfairness%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Census Pretext Redux”<https://electionlawblog.org/?p=106121>
Posted on July 8, 2019 4:16 pm<https://electionlawblog.org/?p=106121> by Rick Hasen<https://electionlawblog.org/?author=3>

Matthew Franck<https://www.nationalreview.com/bench-memos/census-citizenship-question-14th-amendment/> in NRO:

Can the president, as Rivkin and Gray suggest<https://www.wsj.com/articles/how-to-put-citizenship-back-in-the-census-11562264430>, simply issue an executive order adding a citizenship question to the census in order to “comply with the requirements of Section 2”? Not, I should think, if the Congress has not asked for the pertinent information on male citizens over 21 denied the vote, in order to set in motion a reduction of offending states’ congressional representation. And no enforcement legislation exists requiring any such information.
A little over a week ago, Chief Justice Roberts rejected the Trump administration’s stated reason for the citizenship question as pretextual. Whether that decision was right or wrong, the Rivkin-Gray gambit looks like a dubious new pretext for adding a citizenship question to the census.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106121&title=%E2%80%9CCensus%20Pretext%20Redux%E2%80%9D>
Posted in census litigation<https://electionlawblog.org/?cat=125>

--
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/>
[signature_2038904487]

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 135249 bytes
Desc: image002.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 122350 bytes
Desc: image003.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 35891 bytes
Desc: image004.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment-0002.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.jpg
Type: image/jpeg
Size: 3329 bytes
Desc: image005.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment-0003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 3151 bytes
Desc: image006.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment-0004.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.jpg
Type: image/jpeg
Size: 3151 bytes
Desc: image007.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment-0005.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image008.png
Type: image/png
Size: 92163 bytes
Desc: image008.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190709/1b855f55/attachment-0001.png>