[EL] ELB News and Commentary 7/17/19

[Levitt, Justin]

"House votes to hold Barr and Ross in criminal contempt of Congress"<https://electionlawblog.org/?p=106415>
Posted on July 17, 2019 5:24 pm<https://electionlawblog.org/?p=106415> by Justin Levitt<https://electionlawblog.org/?author=4>

AP<https://www.apnews.com/655ed036d48145fd9cc2b0f1e31265c0>, NYT<https://www.nytimes.com/2019/07/17/us/politics/barr-ross-contempt-vote.html>, WaPo<https://www.washingtonpost.com/politics/house-to-vote-to-hold-barr-ross-in-contempt-over-2020-census-citizenship-question/2019/07/17/8dbeb35c-a89c-11e9-a3a6-ab670962db05_story.html>, WSJ<https://www.wsj.com/articles/house-votes-to-hold-ross-barr-in-contempt-over-citizenship-question-on-census-11563402324>, CBS<https://www.cbsnews.com/news/house-votes-on-contempt-for-william-barr-wilbur-ross-over-2020-census-question-live-stream-today-2019-07-17/>, NBC<https://www.nbcnews.com/politics/congress/house-vote-criminal-contempt-against-attorney-general-barr-commerce-secretary-n1030901>, ABC<https://abcnews.go.com/Politics/house-holds-attorney-general-barr-commerce-secretary-ross/story?id=64399138>, Fox<https://www.foxnews.com/politics/criminal-contempt-resolution-on-barr-ross-brings-another-no-holds-barred-showdown-to-the-house>, CNN<https://www.cnn.com/2019/07/17/politics/house-contempt-vote-barr-ross-census/index.html>.  The vote, 230-198 (4 Democrats voting with Republicans uniformly against, and Rep. Amash voting with the rest of the Democrats) was for failure to comply with subpoenas<https://www.cbsnews.com/news/house-votes-on-contempt-for-william-barr-wilbur-ross-over-2020-census-question-live-stream-today-2019-07-17/> about the origins of the attempt to place a citizenship question on the census.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, chicanery<https://electionlawblog.org/?cat=12>, The Voting Wars<https://electionlawblog.org/?cat=60>
"Two SCOTUS Vets Denounce Roberts's Census Ruling as 'One-Off' and 'Bizarre'"<https://electionlawblog.org/?p=106413>
Posted on July 17, 2019 5:19 pm<https://electionlawblog.org/?p=106413> by Justin Levitt<https://electionlawblog.org/?author=4>

Michael Carvin and Kannon Shanmugam<https://www.law.com/nationallawjournal/2019/07/16/two-scotus-vets-denounce-robertss-census-ruling-as-one-off-and-bizarre/>, with a bonus appearance by Miguel Estrada.

I hope Mr. Carvin's right that the Census ruling won't really affect cases outside of this particular context. But I hope that's because agencies won't continue to lie to the public about why they're doing what they're doing.
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Posted in census litigation<https://electionlawblog.org/?cat=125>
"Alarm sounds over census cybersecurity concerns"<https://electionlawblog.org/?p=106411>
Posted on July 17, 2019 5:18 pm<https://electionlawblog.org/?p=106411> by Justin Levitt<https://electionlawblog.org/?author=4>

The fallout<https://thehill.com/policy/cybersecurity/453386-alarm-sounds-over-census-cybersecurity-concerns> from yesterday's hearing.
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Posted in census litigation<https://electionlawblog.org/?cat=125>
Microsoft and election security<https://electionlawblog.org/?p=106409>
Posted on July 17, 2019 5:18 pm<https://electionlawblog.org/?p=106409> by Justin Levitt<https://electionlawblog.org/?author=4>

NBC reports<https://www.nbcnews.com/news/us-news/microsoft-will-give-away-software-guard-u-s-voting-machines-n1030956> on two Microsoft announcements, summarized in this blog post<https://blogs.microsoft.com/on-the-issues/2019/07/17/new-cyberthreats-require-new-ways-to-protect-democracy/>.

The headline is that Microsoft is giving away free, open source ElectionGuard software to election machine suppliers.  According to the site, it apparently "enables" voting using a touchscreen for accessibility, with a printed voter-verifiable paper record of their votes, and an encrypted tracking code to enter into a website to confirm the vote was counted and not altered.  The devil is always in the details of election software, and I'll be interested in learning more.

The subhead strikes me as at least as newsworthy: Microsoft has an AccountGuard system for detecting cyberattacks on political campaigns, parties, and democracy-focused NGOs, in 26 different countries.  Since AccountGuard debuted last August, Microsoft reports 781 nation-state attacks - largely from Iran, North Korea, and Russia - against organizations participating in the system, with 95% of the attacks targeting U.S.-based organizations.

And don't forget, the most serious hack of the 2016 elections wasn't a hack of the technology - it was a hack of the humans.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, The Voting Wars<https://electionlawblog.org/?cat=60>, voting technology<https://electionlawblog.org/?cat=40>
"Feds end investigation into Trump Org and hush money payments"<https://electionlawblog.org/?p=106407>
Posted on July 17, 2019 5:17 pm<https://electionlawblog.org/?p=106407> by Justin Levitt<https://electionlawblog.org/?author=4>

CNN<https://www.cnn.com/2019/07/17/politics/trump-organization-hush-money-filing/index.html>, The Hill<https://thehill.com/regulation/court-battles/453490-judge-says-probe-tied-to-trump-hush-money-payments-is-over-orders>, NYT<https://www.nytimes.com/2019/07/17/nyregion/michael-cohen-trump-investigation.html>, WSJ<https://www.wsj.com/articles/investigators-conclude-michael-cohen-campaign-finance-probe-11563388513> have reports.  Looks like the leaks<https://electionlawblog.org/?p=106229> were accurate after all.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>
LULAC v. PILF settle two different lawsuits<https://electionlawblog.org/?p=106405>
Posted on July 17, 2019 5:17 pm<https://electionlawblog.org/?p=106405> by Justin Levitt<https://electionlawblog.org/?author=4>

Well, one lawsuit, really, over publishing identifying information of individuals incorrectly accused of committing voter fraud.

But you'd never know it was the same suit from reading the press releases.  Plaintiffs here<https://protectdemocracy.org/lulac-v-public-interest-legal-foundation/>, defendants here<https://electionlawblog.org/wp-content/uploads/PILF-release.pdf>.

(Disclosure: I helped one of the plaintiffs in the case find counsel, had occasional discussions with counsel in the case, and was treated to a deposition.)
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>, voter registration<https://electionlawblog.org/?cat=37>
"Mississippi: Election lawsuit is not about voting rights"<https://electionlawblog.org/?p=106403>
Posted on July 17, 2019 5:16 pm<https://electionlawblog.org/?p=106403> by Justin Levitt<https://electionlawblog.org/?author=4>

The AP<https://apnews.com/1ebcca2a6362470abe818db729724b14> has a story about a lawsuit challenging the requirement for winning statewide office that candidates win both a majority of the popular vote and a plurality of the vote in the majority of Mississippi state house districts.
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Posted in election law and constitutional law<https://electionlawblog.org/?cat=55>, Voting Rights Act<https://electionlawblog.org/?cat=15>
"Make the Guarantee Clause Great Again"<https://electionlawblog.org/?p=106401>
Posted on July 17, 2019 5:15 pm<https://electionlawblog.org/?p=106401> by Justin Levitt<https://electionlawblog.org/?author=4>

A clever title for a clever piece<https://newrepublic.com/article/154486/guarantee-clause-hindering-gerrymandering-reform> about partisan gerrymandering, and the doctrine holding the Guarantee Clause nonjusticiable.  I'm inclined to agree on the substance.
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Posted in political equality<https://electionlawblog.org/?cat=69>, political parties<https://electionlawblog.org/?cat=25>, redistricting<https://electionlawblog.org/?cat=6>
Common Cause wants you to know what presidential candidates think about democracy<https://electionlawblog.org/?p=106399>
Posted on July 17, 2019 5:15 pm<https://electionlawblog.org/?p=106399> by Justin Levitt<https://electionlawblog.org/?author=4>

They've got a 17-question survey<https://www.commoncause.org/press-release/common-cause-launches-campaign-to-get-presidential-candidate-on-the-record-about-democracy-reforms/> polling the candidates on particular campaign and electoral reforms.  Sanders, Warren, Buttigieg, Booker, Williamson, and Bullock have turned in their take-home exams already.
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Posted in primaries<https://electionlawblog.org/?cat=32>
Voters file petition to get Pennsylvania to reconsider voting technology<https://electionlawblog.org/?p=106397>
Posted on July 17, 2019 5:15 pm<https://electionlawblog.org/?p=106397> by Justin Levitt<https://electionlawblog.org/?author=4>

The fight in Pennsylvania continues<https://www.inquirer.com/politics/election/pa-voting-machines-expressvote-petition-20190717.html>.
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Posted in voting technology<https://electionlawblog.org/?cat=40>
Redistricting using a citizenship count<https://electionlawblog.org/?p=106395>
Posted on July 17, 2019 5:14 pm<https://electionlawblog.org/?p=106395> by Justin Levitt<https://electionlawblog.org/?author=4>

Ari Berman adds his voice to discussion of the potential ahead<https://www.motherjones.com/politics/2019/07/trump-dropped-the-census-citizenship-question-he-could-still-shift-power-to-white-republicans/>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, redistricting<https://electionlawblog.org/?cat=6>, Voting Rights Act<https://electionlawblog.org/?cat=15>
Estimating the undocumented without the census<https://electionlawblog.org/?p=106392>
Posted on July 17, 2019 5:13 pm<https://electionlawblog.org/?p=106392> by Justin Levitt<https://electionlawblog.org/?author=4>

Demographers weigh in<https://theconversation.com/counting-11-million-undocumented-immigrants-is-easier-than-trump-thinks-120459> on alternatives to a direct count.

(Note: this is an update of a piece published in 2016. Apparently, the issue is still of some interest.)
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Posted in census litigation<https://electionlawblog.org/?cat=125>
"It's time voting be constitutionally limited to U.S. citizens"<https://electionlawblog.org/?p=106390>
Posted on July 17, 2019 5:12 pm<https://electionlawblog.org/?p=106390> by Justin Levitt<https://electionlawblog.org/?author=4>

A would-be movement to amend state constitutions<https://www.sun-sentinel.com/opinion/commentary/fl-op-com-loudon-citizenship-to-vote-20190717-5bkoc6fyebedxgvsl3ko7sbnne-story.html> to provide that only U.S. citizens may lawfully vote in state elections.

Of course, all state constitutions have currently been interpreted to provide that only U.S. citizens may lawfully vote in state elections.
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Posted in voting<https://electionlawblog.org/?cat=31>
"The Feds Have Helped Some Gerrymandering to Thrive"<https://electionlawblog.org/?p=106388>
Posted on July 17, 2019 5:11 pm<https://electionlawblog.org/?p=106388> by Justin Levitt<https://electionlawblog.org/?author=4>

A letter in the WSJ<https://www.wsj.com/articles/the-feds-have-helped-some-gerrymandering-to-thrive-11563388270> claims that Eric Holder helped to lead the charge in Bethune-Hill<http://redistricting.lls.edu/cases-VA.php#VA>, after approving Virginia districts in 2011.

Consider me skeptical.  The letter appears to conflate preclearance approval (which focused on two particular legal standards; every preclearance letter expressly said that approval for those purposes should not be construed as validation more generally) with the Shaw causes of action that ultimately prevailed.  Those are not the same<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3173933>.

And Bethune-Hill?  Holder was the AG when the case was first brought<http://redistricting.lls.edu/files/VA%20bethune%2020141222%20complaint.pdf> by private plaintiffs in 2014; Lynch was the AG when the DOJ in 2016 submitted an amicus brief<http://redistricting.lls.edu/files/VA%20bethune%2020160914%20DOJ.pdf> not lodged in support of either party (disclosure: I worked on the brief); and Whitaker was the AG when the DOJ submitted an amicus brief<http://redistricting.lls.edu/files/VA%20bethune%2020190104%20amicus%20DOJ.pdf> in 2019 on behalf of neither party.  I don't see Holder's group in the case at all.  I get that Holder's a generic fill-in-the-blank boogeyman, but ...
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Voting Rights Act<https://electionlawblog.org/?cat=15>
"It May Not Seem That Way, but Politicians Often Do What Voters Want"<https://electionlawblog.org/?p=106386>
Posted on July 17, 2019 5:10 pm<https://electionlawblog.org/?p=106386> by Justin Levitt<https://electionlawblog.org/?author=4>

New data analysis in The Upshot<https://www.nytimes.com/2019/07/17/upshot/politicians-mostly-follow-voters.html>.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>
"In Queens district attorney race, voters want affidavit ballots counted"<https://electionlawblog.org/?p=106384>
Posted on July 17, 2019 5:09 pm<https://electionlawblog.org/?p=106384> by Justin Levitt<https://electionlawblog.org/?author=4>

Provisional or affidavit ballots are counted even when there's not a recount.  But there's a whole lot more attention on them when the recount comes to town<https://www.amny.com/news/elections/queens-da-race-1.33942727>.
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Posted in provisional ballots<https://electionlawblog.org/?cat=67>, recounts<https://electionlawblog.org/?cat=50>
Looking to the high schools<https://electionlawblog.org/?p=106382>
Posted on July 17, 2019 5:09 pm<https://electionlawblog.org/?p=106382> by Justin Levitt<https://electionlawblog.org/?author=4>

The Civics Center<https://thecivicscenter.org/> has been particularly active in encouraging eligible high school students to register and vote.  A post today<https://thecivicscenter.org/blog/2019/7/17/maryland-votes> discusses the path forward after legislation failed in Maryland, following on a post a few weeks ago<https://calmatters.org/commentary/teen-voters/> discussing a pending measure in California.
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Posted in voter registration<https://electionlawblog.org/?cat=37>
"Leahy casts his 16,000th vote, joining an exclusive Senate club"<https://electionlawblog.org/?p=106380>
Posted on July 17, 2019 5:08 pm<https://electionlawblog.org/?p=106380> by Justin Levitt<https://electionlawblog.org/?author=4>

After a vote on a tax treaty with Japan, Vermont's only Democratic Senator ever is now one of four Senators in history<https://www.rollcall.com/news/congress/leahy-casts-his-16000th-vote-joining-an-exclusive-senate-club> to reach the 16,000-vote plateau.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>
And a very happy birthday to ...<https://electionlawblog.org/?p=106376>
Posted on July 17, 2019 5:07 pm<https://electionlawblog.org/?p=106376> by Justin Levitt<https://electionlawblog.org/?author=4>

Elbridge Gerry<https://news.yahoo.com/birthday-tribute-founding-father-gerrymandering-103400894.html>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>
"The Most Important Lesson the Supreme Court Liberals Can Take from John Paul Stevens"<https://electionlawblog.org/?p=106372>
Posted on July 17, 2019 3:18 pm<https://electionlawblog.org/?p=106372> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/07/john-paul-stevens-supreme-court-conservative-votes.html> for Slate. It begins:

Supreme Court Justice John Paul Stevens, who passed away on Tuesday at the age of 99, was a reliable and important voice on issues of voting rights and election law. Most famously, Stevens wrote an impassioned dissent from the Supreme Court's decision to stop the Florida recount in the 2000 case Bush v. Gore, saying that doing so would cast a cloud over the legitimacy of George W. Bush's election. He also wrote a lengthy-if somewhat meandering<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938>-dissent in the court's 2010 Citizens United decision allowing unlimited corporate spending supporting or opposing candidates for election. And he wrote a strong dissent in the 1997 case, Timmons v. Twin Cities Area New Party, a less well-known case about "fusion voting." If Stevens had his way in that case, it would have empowered minor political parties and at the same time made them less likely to be spoilers between major party candidates.

But there is one case that serves as a partial blemish on Stevens' commendable voting rights record, his 2008 opinion in Crawford v. Marion County Election Board, upholding Indiana's strict voter identification law. The justice wrote an opinion for himself, Chief Justice John Roberts, and Justice Anthony Kennedy, holding that such a law was supported by the government's interest in preventing voter fraud and instilling voter confidence, even though Indiana could come forward with not a single case of voter fraud in the state's history that would have been stopped by the law, and there was no evidence such laws actually bolster such confidence.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Census plaintiffs file blistering motion for sanctions<https://electionlawblog.org/?p=106370>
Posted on July 16, 2019 3:30 pm<https://electionlawblog.org/?p=106370> by Justin Levitt<https://electionlawblog.org/?author=4>

The motion was filed<http://redistricting.lls.edu/files/NY%20commerce%2020190716%20motion%20for%20sanctions.pdf> in the SDNY case<http://redistricting.lls.edu/cases-NY.php#NYcensus>, mostly directed at Commerce officials. With 428 pp. of receipts.

UPDATE: HuffPost has coverage<https://www.huffpost.com/entry/trump-officials-census-citizenship-question-cover-up_n_5d2edb01e4b02fd71ddca762>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, chicanery<https://electionlawblog.org/?cat=12>
Parties agree on proposed order in NY Census case<https://electionlawblog.org/?p=106364>
Posted on July 16, 2019 11:23 am<https://electionlawblog.org/?p=106364> by Justin Levitt<https://electionlawblog.org/?author=4>

Hansi with the scoop:
https://twitter.com/hansilowang/status/1151169448457441282

UPDATE: Here's the final signed order itself<https://electionlawblog.org/wp-content/uploads/NY-commerce-20190716-order.pdf>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>
10th Circuit upholds San Juan County race-and-redistricting decision<https://electionlawblog.org/?p=106359>
Posted on July 16, 2019 11:16 am<https://electionlawblog.org/?p=106359> by Justin Levitt<https://electionlawblog.org/?author=4>

San Juan County, Utah, has had a long history of trouble, over several decades, with respect to providing equal opportunities for the Navajo community, including in voting. Today, the 10th Circuit affirmed<https://www.sltrib.com/news/2019/07/16/th-circuit-court-upholds/> a lower court opinion redrawing the district lines of the county commission and school board to provide opportunity for the Navajo community. Opinion here<https://www.ca10.uscourts.gov/opinions/18/18-4005.pdf>.

For those keeping track, it's 2019. The fight over these district lines began in 2011. Section 2 of the VRA is powerful ... but also sloooooooooow. That's part of why it's so<https://www.judiciary.senate.gov/imo/media/doc/7-17-13LevittTestimony.pdf> important<http://redistricting.lls.edu/other/2018%20Levitt%20testimony.pdf> to restore an alternative to responsive litigation under the VRA for jurisdictions that seem to keep having repeated difficulties.

(Disclosure: one of the claims in this case was that the county had to do what it did because of a 1984 consent decree<https://electionlawblog.org/wp-content/uploads/1984-consent-decree.pdf> with the DOJ. Both the trial court and court of appeals rejected that assertion. I was serving at the DOJ while part of this litigation was proceeding.)
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Voting Rights Act<https://electionlawblog.org/?cat=15>


Justin Levitt   (he/him/his)
Associate Dean for Research
Professor of Law / Gerald T. McLaughlin Fellow

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