[EL] ELB News and Commentary 6/28/19

[Richard Winger]

The North Carolina Supreme Court has a Democratic majority and it could perhaps find something in the State Constitution to end gerrymandering, just as the Pennsylvania Supreme Court did.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147 

    On Friday, June 28, 2019, 10:09:58 AM PDT, Marty Lederman <Martin.Lederman at law.georgetown.edu> wrote:  
 
 They "can" do so in the sense that no one will stop them--but they will be acting unconstitutionally when they do.

On Fri, Jun 28, 2019 at 1:00 PM John Shockley <shockley1894 at gmail.com> wrote:

Dear Listserve:
I haven't read the gerrymandering decision, but am I correct that now North Carolina Republicans can draw legislative districts to ensure Republican control in perpetuity?  The Democratic Governor plays no role in redistricting there.  The Republican-gerrymandered legislature can do whatever it wants.  By packing Democrats into as few districts as possible, can't they make sure that no matter how big a wave ever comes, they can be sure of maintaining their control?  And they can keep doing it every ten years (or possibly more often) as needed.  The same can happen in Texas and wherever Republicans have their "trifecta." (For sure in states that allow no initiative process).  Wisconsin would not be in that category, because the Democratic Governor also plays a role in the process, and the Republicans don't have a super-majority, although they have strong dominance.
Am I basically correct that now North Carolina legislative elections are basically pointless, except in the sense that they will be in and out supermajorities depending upon how extreme they can distort the process?  There is no way Democrats could ever re-take the legislature. I suppose the only way out would be for the state Supreme Court to declare the gerrymandering unconstitutional under the state constitution, as happened in Pennsylvania.  I'm guessing that the Supreme Court Republicans won't intervene in state court interpretations of state constitutions on gerrymandering, but I could be wrong here.  
Does this seem like an accurate conclusion?
John ShockleyPolitical Science, RetiredAugsburg CollegeMinneapolis, MN





On Thu, Jun 27, 2019 at 11:45 PM Rick Hasen <rhasen at law.uci.edu> wrote:


Coming Next Week: #ELB Symposium on Partisan Gerrymandering After Rucho

Posted on June 27, 2019 9:42 pm by Rick Hasen

This should be good.



Posted in Uncategorized

 

 

“House Passes Election Security Package, With an Eye on Mitch McConnell”

Posted on June 27, 2019 9:39 pm by Rick Hasen

NYT:

The House on Thursday approved expansive election security legislation that would mandate the use of backup paper ballots and postelection vote audits to guard against potential foreign meddling, seeking to pressure Senator Mitch McConnell to lift his blockade of election legislation in the upper chamber.
Timed to coincide with the July 4 holiday, the House bill, which passed 225 to 184, largely along party lines, is the first and most expansive in a blitz of new measures that House Democrats say they will pass to address vulnerabilities highlighted by the special counsel, Robert S. Mueller III. His report concluded that Russia had conducted “sweeping and systematic” interference in the 2016 presidential election, and members of both parties fear that not enough is being done to prevent that from happening again next year.
Other legislation could include a requirement that political campaigns report to the F.B.I. any offer of assistance from a foreign power, new sanctions to punish Russia and other foreign powers that interfere with the American democratic processes, and bipartisan mandates for social media platforms like Facebook to disclose the purchasers of political advertisements.
But with the Senate in Republican hands, Democrats have another, more immediate target in mind: trying to shame Mr. McConnell, the majority leader, into dropping his opposition to proposals — even bipartisan ones — and allowing his chamber to consider measures to better protect the vote



Posted in Uncategorized

 

 

“Decision on gerrymandering brings new urgency to Democratic fight to win state seats”

Posted on June 27, 2019 9:36 pm by Rick Hasen

WaPo reports.



Posted in Uncategorized

 

 

“Supreme Court’s approval of partisan gerrymandering raises 2020 election stakes”

Posted on June 27, 2019 9:32 pm by Rick Hasen

LAT reports.



Posted in Uncategorized

 

 

Roundup of News and Commentary on Census Citizenship Decision

Posted on June 27, 2019 9:30 pm by Rick Hasen

Here at Howard.



Posted in census litigation, Supreme Court

 

 

Crum: “Rucho and Section 2 of the Voting Rights Act”

Posted on June 27, 2019 4:18 pm by Rick Hasen

The following is a guest post from Travis Crum:

In Rucho v. Common Cause, the conservatives on the Supreme Court finally prevailed on their decades-long effort to declare partisan gerrymandering a non-justiciable political question. Rather than add to the legion of voices condemning Rucho on its own terms, I want to focus on its worrisome implications for racial vote-dilution claims and Section 2 of the Voting Rights Act.


The Rucho Court condemned partisan gerrymandering claims for “invariably sound[ing] in a desire for proportional representation.” In so doing, the Court cited a racial vote-dilution case—the plurality opinion in City of Mobile v. Bolden—for the proposition that proportional representation is not mandated by the Equal Protection Clause. Building off this point, the Court turned to the question of fashioning a judicially manageable standard for apportioning political power in the context of partisan gerrymandering. The Court observed that “it is not even clear what fairness looks like” and proceeded to identify numerous visions of “fair” representation, from competitive districts to an “‘appropriate’ share of ‘safe’ seats” to maps based on traditional redistricting criteria.


Now, if this argument sounds familiar, that’s because it mirrors the long-running debate between scholars like Sam Issacharoff and Rick Pildes who advocate the creation of competitive districts and academics like Heather Gerken, Michael Kang, and Pam Karlan who are far more comfortable with race-conscious redistricting. What’s troubling about Rucho’s logic is that it outlines an analogous debate and then throws its hands up and says there’s no judicially manageable standard. In this way, Rucho channels concerns similar to those articulated in Justice Thomas’s concurring opinion in Holder v. Hall, where he criticized Section 2 for lacking a legitimate and manageable benchmark.


And therein lies Rucho’s relevance to the VRA. To be sure, Section 2 expressly disclaims a right to proportional representation, but ever since Johnson v. De Grandy, the Court has made “rough proportionality” a central part of Section 2’s totality-of-the-circumstances inquiry. Given this, Rucho’s criticism of proportionality standards should be a warning sign for Section 2’s constitutionality, especially when combined with the Roberts Court’s colorblind instincts and its outright hostility to race-conscious redistricting.


If you think I’ve stared at the tea leaves for too long, consider the ways the Rucho Court deployed and distinguished other election-law precedents. The Court greenlit Reynolds’s one-person, one-vote principle as “relatively easy to administer as a matter of math.” As for the Shaw line of cases, the Court observed that racial gerrymandering claims seek the “elimination of a racial classification” and “do[] not ask for a share of political power and influence, with all the justiciability conundrums that entails.” Put simply, the Court went out of its way to preserve those precedents—indeed, with a rationale for Shaw that is at cross-purposes with Section 2—but only invoked a racial vote-dilution case as a sword to undercut a claim for proportional representation.


To be clear, I’m not predicting that the Court is going to determine that racial vote-dilution claims are non-justiciable political questions—such a holding wouldn’t make much sense for a variety of reasons. Rather, my point is that the Court’s intuitions tend to sublimate across numerous doctrinal contexts.


Thus, in defending Section 2’s constitutionality, civil rights advocates and the academy should emphasize that proportionality is just one factor in a Section 2 case and that the touchstone is rough proportionality, not perfect proportionality. The Gingles factors, moreover, have functioned as an effective gatekeeping mechanism and a de facto sunset provision for Section 2, thus limiting the situations where proportionality concerns even enter the equation. And, of course, the Court has long viewed Congress’s Reconstruction Amendment enforcement authority to be at its zenith when seeking to remedy and deter racial discrimination in voting. Race was not directly at issue in Rucho, and for the plaintiffs to have prevailed, the Court would have had fashion its own standard for adjudicating partisan gerrymandering claims without congressional guidance.


The Court’s decision in Rucho will have profound and disastrous implications for the 2020 redistricting cycle and beyond. But it may also foreshadow the endgame for Section 2.



Posted in redistricting, Supreme Court, Voting Rights Act

 

 

“Judge Wants To Know By Monday If Gov’t Will Fold On Census Citizenship Fight”

Posted on June 27, 2019 4:11 pm by Rick Hasen

TPM:

If the Trump administration does not want another round of discovery into whether its census citizenship question was discriminatory, it has until Monday to tell the judge who is currently considering the claim that it is backing down from trying to add the question.

That is according to Denise Hulett, a lawyer for the Mexican American Legal Defense and Educational Fund, who was on teleconference hearing that U.S. District Judge George Hazel held Thursday afternoon with the parties in the census citizenship case in Maryland. A second source with knowledge of the call also gave TPM that read out.



Posted in Uncategorized

 

 

Quote of the Day

Posted on June 27, 2019 4:02 pm by Rick Hasen

“We are in Mad Max territory now, there are no rules.”

–Justin Levitt to NPR, “Supreme Court Rules Partisan Gerrymandering Is Beyond The Reach Of Federal Courts.”



Posted in Uncategorized

 

 

“Judge Dismisses Effort To Accelerate Special Election For Arizona’s U.S. Senate Seat”

Posted on June 27, 2019 3:59 pm by Rick Hasen

Arizona’s Law reports.



Posted in Uncategorized

 

 

“The Supreme Court’s Green Light to Partisan Gerrymandering Will Drag It Down Further Into the Mud”

Posted on June 27, 2019 3:30 pm by Rick Hasen

I have written this oped for the New York Times. It begins:

The Supreme Court decision on Thursday in Rucho v. Common Cause purports to take federal courts out of the business of policingpartisan gerrymanders and leave the issue for states to handle. But the decision will instead push federal courts further into the political thicket, and, in states with substantial minority voter populations, force courts to make logically impossible determinations about whether racial reasons or partisan motives predominate when a party gerrymanders for political advantage. It didn’t have to be this way.

…

Second, we are in an era of hyperpartisanship, when a politician pays no political consequences (and indeed gets rewarded) for publicly declaring a partisan purpose. Indeed, Rucho involved a Republican gerrymander of North Carolina’s 13 congressional districts, and David Lewis, one of the Republican legislative leaders, said in 2016 that even though the state was about evenly divided between the parties, he was proposing a map drawn with the aim of electing 10 Republicans and three Democrats — and that was only because he didn’t “believe it was possible to draw a map with 11 Republicans and two Democrats.”


Mr. Lewis’s conduct will now become de rigueur, not only because naked partisanship has been approved by the court, but because his outrageous comment gave him legal cover for the gerrymander. North Carolina was forced to redistrict in 2016 because the Supreme Court found its earlier congressional map to be a racial gerrymander. Since 1993, the Supreme Court has held that making race the predominant factor in drawing district lines without a compelling reason for doing so violates the equal protection clause of the 14th Amendment. By so openly declaring he was engaged in partisan politics, Mr. Lewis was trying to prove that race did not drive the North Carolina General Assembly’s decisions.’
The entire exercise is nonsensical in a place like North Carolina, where about 90 percent of African-American voters support Democratic candidates and about two-thirds of white voters support Republicans. One cannot discriminate against Democrats without discriminating against African-Americans in North Carolina, and vice versa.


So we know what we can expect in North Carolina in 2021, if Republicans still control the legislative branch and thus redistricting (in that state, the governor, who now is a Democrat, plays no role in approving the plans). Republicans will use sophisticated technology to draw a very effective partisan gerrymander. They might even keep redrawing lines every few years to keep their advantage. They will proclaim loudly and often that their purpose is to help the Republican Party. They will all be instructed not to talk about race.

Democrats and minority voting advocates will sue in federal court and claim that this is a racial gerrymander in disguise. And federal courts will have to figure out whether it was race or party that motivated the decision of the state’s Legislature.



Posted in redistricting, Supreme Court

 

 

“What do redistricting advocates do now?”

Posted on June 27, 2019 2:42 pm by Richard Pildes

From this Washington Post piece by Amber Phillips:

That’s what redistricting advocates in North Carolina plan to do next. “North Carolina can’t force redistricting reform on its legislature, but it can take it to the state courts, and we will go to the state courts,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, which argued the North Carolina redistricting case at the Supreme Court.



Posted in Uncategorized

 

 

“The Supreme Court just body-slammed democracy. More is coming.”

Posted on June 27, 2019 1:16 pm by Rick Hasen

Paul Waldman and Greg Sargent for WaPo.



Posted in Supreme Court

 

 

“Chief Justice Roberts’s ‘proportional representation’ error”

Posted on June 27, 2019 1:14 pm by Rick Hasen

Sam Wang blogs.



Posted in redistricting, Supreme Court

 

 

“When You Use Campaign Funds To Pay For Your Pet Rabbit’s Trip, You’re Doing It Wrong”

Posted on June 27, 2019 1:11 pm by Rick Hasen

Ciara Torres Spelliscy for TPM.



Posted in campaign finance

 

 

“How’s This for a Radical Campaign-Finance Proposal? Follow the Existing Rules.”

Posted on June 27, 2019 1:06 pm by Rick Hasen

Eliza Newlin Carney writes.



Posted in campaign finance

 

 

President Trump Tweets Indicate that Battle Over Citizenship Question on the Census is NOT Over

Posted on June 27, 2019 10:56 am by Rick Hasen

I indicated in my Slate piece that this is not over, and here’s more proof:





Donald J. Trump

✔@realDonaldTrump

 



 

Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the.....



96.8K

10:37 AM - Jun 27, 2019

Twitter Ads info and privacy



39.2K people are talking about this

 





Donald J. Trump

✔@realDonaldTrump

 

 · 11h



 

Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the.....





Donald J. Trump

✔@realDonaldTrump

 

.....United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter. Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen. Only in America!



89.3K

10:37 AM - Jun 27, 2019

Twitter Ads info and privacy



35K people are talking about this

 



Posted in census litigation, Supreme Court

 

 

“How John Roberts Might Allow Trump to Resurrect the Census Question”

Posted on June 27, 2019 9:37 am by Rick Hasen

I have posted this piece at Slate. It begins:

Despite a favorable ruling for opponents of the census citizenship question on Thursday, the Supreme Court did not definitively decide to exclude citizenship question from the 2020 census. Indeed, I expect that the Trump administration’s Commerce Department and Department of Justice could well be back before the Supreme Court’s next term begins in October arguing for the question’s inclusion, and they could well win and include the question.

It concludes:

The majority opinion and the separate conservative opinions, however, have given the agency plenty of non-pretextual things to say about why it would want to include the citizenship question. Administrative law professor Jennifer Nou even ponders that they could argue they were doing it for partisan reasons, following the decision in Thursday’s partisan gerrymandering case giving such conduct the green light.
But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.


If the agency moves to include the question again, the case will be back before the Supreme Court. It would likely be joined by the other case coming out of the Fourth Circuit arguing that the inclusion of the question violated the Equal Protection Clause because it was based on a racially discriminatory purpose. The court did not address the equal protection holding Thursday, despite the outrageous urging of the Solicitor General for the Court do to so without briefing. Assuming the Commerce Department moves forward with trying to include the question on the 2020 census, the Fourth Circuit could well keep this case alive to create a record of the racial motivations for inclusion of the original question.

On this question, I expect that any new agency decision to include the citizenship question would be found by the court’s conservatives to have cleansed the decision of any racial animus. (The court made just such a finding last year in a Voting Rights Act redistricting case from Texas, Abbott v. Perez.)


So we may see a rare September argument where these issues will be back before the Supreme Court, and John Roberts, who gave the Republicans a green light to gerrymander to their hearts content in today’s Rucho case, may give them yet another tool to solidify their grasp on power despite demographic forces moving against them.



Posted in Uncategorized

 

 

The Dark Future of Gerrymandering

Posted on June 27, 2019 9:15 am by Nicholas Stephanopoulos

After today’s disastrous decision, here are some things that line-drawers could do in the future:

·        Instruct a computer algorithm to generate huge numbers of maps that comply with all nonpartisan criteria and produce as large and durable an advantage as possible for the line-drawing party. Then pick an actual plan from this array of potential gerrymanders. This plan will be close to impregnable if it’s challenged on nonpartisan grounds. But it will still massively benefit the line-drawing party, probably more than any human-drawn map could.

·        Revise districts after each election to optimize their performance in the next election. Any districts slipping away from the line-drawing party could have some copartisans added to them. Any districts becoming overly safe could have some copartisans subtracted. Decennial redistricting, in other words, could become a thing of the past. Redistricting every two years is so much more effective.

·        Design noncontiguous districts in order to avoid the constraints of political geography. A state with many Democrats concentrated in cities (like my Illinois) could join clusters of urban Democrats with slightly smaller clusters of rural Republicans hundreds of miles away. These clusters wouldn’t have to be connected since no federal law, and no other law in many states, mandates contiguity. A state could even adopt entirely nongeographic districts, e.g., by assigning a representative (and sufficiently numerous) sample of the state’s population to each district.



Posted in Uncategorized

 

 

-- 

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

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org



 

 
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