[EL] ELB News and Commentary 6/26/19

[Rick Hasen]

The End Game Possibilities for the Census Case<https://electionlawblog.org/?p=105786>
Posted on June 26, 2019 8:18 am<https://electionlawblog.org/?p=105786> by Rick Hasen<https://electionlawblog.org/?author=3>

The census decision is coming tomorrow from the Supreme Court. Most likely in my view is a 5-4 decision upholding the inclusion of the citizenship question, without addressing equal protection issue. Alito (if he writes) could include dicta to try to prejudge that issue. Alito setting a time bomb to be used in another case is one of his specialties, as I wrote about here<http://law.emory.edu/elj/content/volume-61/issue-4/thrower-symposium-articles/anticipatory-overrulings-invitations-time-bombs.html>.

If this happens, then I expect if 4th circuit (or district court) excludes citizenship question on equal protection grounds, there will a battle over the summer at the Supreme Court over the case. If that happens, the Court might decide the issue without oral argument or opinion. That’s been dubbed by Will Baude as part of Court’s “shadow docket” and it is very problematic in terms of the Court fully airing issues and explaining reasoning. Far better would be an early September oral argument, with a decision by October (before the real print deadline).

The Court could also NOT decide census case at all tomorrow, and could send it back to trial court for a limited remand on evidence of bad intent from the Hofeller files. It could then hear this case again and 4th Circuit case in September. I don’t think that’s a likely outcome but it is possible. If Alito has opinion, allows inclusion of question, strongly hints at rejection of equal protection claim in separate 4th circuit case, I expect bitter dissents (especially from Sotomayor). We should know in 23 hours.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


MALDEF Files SCOTUS Letter in Census Case Saying Not to Decide Equal Protection Issue Not Before the Court<https://electionlawblog.org/?p=105784>
Posted on June 26, 2019 8:04 am<https://electionlawblog.org/?p=105784> by Rick Hasen<https://electionlawblog.org/?author=3>

From the letter:<https://www.supremecourt.gov/DocketPDF/18/18-966/104125/20190625235418903_6-25-19%20SCOTUS%20Reply%20Letter%20FINAL.pdf>

First, the Solicitor General’s request would require this Court to render an improper advisory opinion on issues that have not been briefed or argued before this Court, relating to cases that are not before this Court, based on a trial record that is not before this Court. The Solicitor General filed a Petition for a Writ of Certiorari Before Judgment to the Court of Appeals for the Second Circuit in Department of Commerce, et al. v. New York, et al., No. 18-966, and a Petition for Writ of Certiorari Before Judgment to the Court of Appeals for the Ninth Circuit in the related case of Ross v. State of California, No. 18-1214. The Solicitor General could have, but did not file a similar Petition in LUPE and Kravitz. Because the Solicitor General did not do so, the full record in these consolidated cases is not before this Court and there is no basis for this Court to adjudicate the equal protection claims asserted in LUPE and Kravitz.

Second, the only evidence in the record concerning the deadline to finalize the 2020 Census questionnaire is the testimony of Census Bureau Chief Scientist, Dr. John Abowd, who testified that with additional resources, the final date for locking down the content of the census questionnaire could be extended to October 31, 2019. J.A. 906. The Solicitor General’s assertion that June 30 is an immovable deadline is unsupported by the record and does not require this Court to adjudicate
an issue that is not properly before it.

I wrote about the first point yesterday at Slate<https://slate.com/news-and-politics/2019/06/census-case-john-roberts-bush-v-gore-tragedy.html>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


“The Cybersecurity 202: Elizabeth Warren aims for the fences on election security”<https://electionlawblog.org/?p=105782>
Posted on June 26, 2019 7:55 am<https://electionlawblog.org/?p=105782> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/06/26/the-cybersecurity-202-elizabeth-warren-aims-for-the-fences-on-election-security/5d12b943a7a0a47d87c56e8a/?utm_term=.6a11b28d1a69>:

Sen. Elizabeth Warren (D-Mass.), the top-polling candidate in the first Democratic presidential debate tonight, also has the most ambitious plan for how to protect U.S. elections from foreign hackers.

But that aim-for-the-fences approach, which Warren introduced in an eight-page blog post<https://medium.com/@teamwarren/my-plan-to-strengthen-our-democracy-6867ec1bcd3c> Tuesday, is sure to be a nonstarter among Republicans. And it will face serious scrutiny from some of Warren’s Democratic opponents who are championing a more practical approach to securing elections.

Warren’s plan would basically federalize election security. Washington would set all the rules for protecting federal elections against hackers — such as using hand-marked paper ballots and conducting security audits — and it would also foot the bill. States that didn’t meet her requirements would face lawsuits from a new agency named the Secure Democracy Administration. It comes after the 2016 election in which Russian hackers and trolls stole emails and launched a disinformation campaign aimed at helping elect Donald Trump.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Hoboken New Jersey Absentee Ballot Case Shows Why This Kind of Fraud (Unlike Impersonation Fraud) Can Happen: People Can Verify How Others Voted<https://electionlawblog.org/?p=105780>
Posted on June 26, 2019 7:52 am<https://electionlawblog.org/?p=105780> by Rick Hasen<https://electionlawblog.org/?author=3>

From the DOJ press release<https://www.justice.gov/usao-nj/pr/former-hoboken-city-council-candidate-convicted-conspiring-use-mail-promote-voter-bribery>:

From October 2013 through November 2013, Raia instructed Dio Braxton, Matt Calicchio, Lizaida Camis, and other conspirators who worked for his campaign, to pay certain Hoboken voters $50 if those voters applied for and cast mail-in ballots in the November 2013 Hoboken municipal election. The conspirators provided these voters with VBM Applications and then delivered or mailed the completed VBM Applications to the Hudson County Clerk’s office.

After the mail-in ballots were delivered to the voters, at Raia’s direction, the conspirators went to the voters’ residences and instructed them to vote for Raia and in favor of a ballot referendum that Raia supported that would have loosened rent control restrictions in Hoboken. The conspirators promised the voters that they would be paid $50 for casting their mail-in ballots and told them that they could pick up their checks after the election at Raia’s office in Hoboken.  Raia and his workers, including Braxton, Calicchio, Camis, and others, checked the ballots to ensure that voters had voted the way that they had instructed them to vote. Raia and his workers also had the voters sign declarations falsely stating that they had been paid in exchange for working on the campaign, when in fact the voters had been paid for their vote. After the election, the voters received $50 checks from a political consulting firm that was paid by Raia’s political action committee. Those $50 checks were never disclosed on Raia’s publicly filed political action committee election reports.
(My emphasis)
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


“A Million Independent Voters Risk Being Irrelevant in California’s Presidential Primary”<https://electionlawblog.org/?p=105778>
Posted on June 26, 2019 7:49 am<https://electionlawblog.org/?p=105778> by Rick Hasen<https://electionlawblog.org/?author=3>

KQED<https://www.kqed.org/news/11756766/a-million-independent-voters-risk-being-irrelevant-in-californias-presidential-primary>:

Presidential challengers hoping to glide to victory through California’s newly relevant primary<https://calmatters.org/articles/blog/californian-influence-presidential-primary-early-march-3-harris/>, a heads-up: Your electoral fate may hinge on convincing enough left-leaning millennials to send postcards over the holiday season.

Welcome to the quirk-filled world of California election law. Here, voters without a registered political party can participate in the Democratic Party’s “open” presidential primary—but only if they ask for the right ballot.

Those who vote the old-fashioned way, in person at the polls, can simply request their presidential ballot of choice on the spot. But for those who vote by mail (now a majority of the state’s electorate), that request takes a remarkably analog form: a postcard signed and sent to the county registrar of voters.

If voters skip that step, the section of their ballot reserved for presidential candidates will be blank.
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Posted in election administration<https://electionlawblog.org/?cat=18>


Supreme Court To Hand Out Final Opinions of the Term Thursday (Tomorrow), Likely Including Partisan Gerrymandering and Census Cases<https://electionlawblog.org/?p=105776>
Posted on June 26, 2019 7:25 am<https://electionlawblog.org/?p=105776> by Rick Hasen<https://electionlawblog.org/?author=3>

It’s always possible that the census case gets remanded and put off, given all the machinations<https://howappealing.abovethelaw.com/2019/06/25/#95243>.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“The Census Case Is Shaping Up to Be the Biggest Travesty Since Bush v. Gore”<https://electionlawblog.org/?p=105774>
Posted on June 25, 2019 3:50 pm<https://electionlawblog.org/?p=105774> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/06/census-case-john-roberts-bush-v-gore-tragedy.html> for Slate. It begins:

The government’s conduct in the pending Supreme Court case about adding a citizenship question to the census has gone from indefensible to outrageous. In the case, which is likely to be decided this week, Solicitor General Noel Francisco on Tuesday asked the Supreme Court to become complicit in a cover up of discriminatory activity by doing something the court does not and cannot do: decide a legal issue that is not before it<https://www.supremecourt.gov/DocketPDF/18/18-966/104091/20190625161322614_DEPT%20OF%20COMMERCE%20ET%20AL%2018-966%20LETTER.pdf>. If the court does so, any pretense of the legitimacy of the decision will be gone.

It concludes:

To be absolutely clear, the Equal Protection claim is not currently before the Supreme Court in the case it is about to decide. Nonetheless, in two<https://twitter.com/ssamcham/status/1143603936315752449> last minute filings with the Supreme Court, Francisco has asked the Court<https://www.supremecourt.gov/DocketPDF/18/18-966/104091/20190625161322614_DEPT%20OF%20COMMERCE%20ET%20AL%2018-966%20LETTER.pdf> to decide the question. “The Fourth Circuit’s order underscores the need for this Court to address the equal-protection claim and the immateriality of the Hofeller files in its disposition of the above-captioned case so that the lawfulness of the Secretary’s decision can be fully and finally resolved.”

This is outrageous. The issue has not been fully briefed<https://twitter.com/ssamcham/status/1143639694917414912>. It was not the subject of oral argument. It involves evidence for which there has been no fact-finding. For the Supreme Court to decide the issue on this basis is the definition of lawlessness. It is not how the Supreme Court normally does business, and the solicitor general should know better. If the court starts doing this it becomes no more than a branch of the Trump administration.

The government claims the printing deadline is imminent, but the Fourth Circuit found that the printing can actually wait until October. This issue deserves full and fair vetting. The Supreme Court can deal with any injunction from the district court or the Fourth Circuit in later filings after the trial court finds all the facts<https://slate.com/news-and-politics/2019/06/census-citizenship-question-hofeller-appeals-court.html> about possible discriminatory intent from the Hofeller evidence.

Indeed, in another case of similar political import, a Supreme Court majority declared the following: “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” That case was Bush v. Gore<https://supreme.justia.com/cases/federal/us/531/98/>, the case ending the disputed 2000 presidential election and handing the election to Republican George W. Bush over Democrat Al Gore. There, the justices of the Supreme Court let politics get in the way of a fair decision. It looks like history may be about to repeat itself.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


--
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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