[EL] more news 6/28/19

Fri Jun 28 15:31:30 PDT 2019

Florida Governor Signs SB 7066, Making It Harder for Felons Who Have Completed Time Served to Get Their Voting Rights Restored, And Thinks Amendment 4, Restoring Such Rights, Was Too Generous<https://electionlawblog.org/?p=105866>
Posted on June 28, 2019 3:30 pm<https://electionlawblog.org/?p=105866> by Rick Hasen<https://electionlawblog.org/?author=3>

From the Governor’s signing statement<https://www.flgov.com/wp-content/uploads/2019/06/6.282.pdf> (via Steve Bosquet<https://twitter.com/stevebousquet/status/1144731377432236039>) issued late on a Friday afternoon:
[https://electionlawblog.org/wp-content/uploads/Screen-Shot-2019-06-28-at-3.29.02-PM-1024x216.png]

I am sure the lawsuits will be filed almost immediately.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105866&title=Florida%20Governor%20Signs%20SB%207066%2C%20Making%20It%20Harder%20for%20Felons%20Who%20Have%20Completed%20Time%20Served%20to%20Get%20Their%20Voting%20Rights%20Restored%2C%20And%20Thinks%20Amendment%204%2C%20Restoring%20Such%20Rights%2C%20Was%20Too%20Generous>
Posted in felon voting<https://electionlawblog.org/?cat=66>

Justice Thomas’s Ugly Accusation (Joined by Justices Gorsuch and Kavanaugh) in the Census Case<https://electionlawblog.org/?p=105862>
Posted on June 28, 2019 12:38 pm<https://electionlawblog.org/?p=105862> by Rick Hasen<https://electionlawblog.org/?author=3>

Others have made<https://twitter.com/mjs_DC/status/1144359892158951424> this point, but I wanted to flag this gratuitous and unsupported impugning of district court judge Furman in the census case<https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf>. Thomas painted Furman as a conspiracy theorist in his partial dissent (joined by Gorsuch and Kavanaugh):

The District Court’s lengthy opinion pointed to other facts that, in its view, supported a finding of pretext. 351 F. Supp. 3d, at 567–572, 660–664 (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that a judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web. Cf. id., at 662 (inferring “from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide”). But the Court does not rely on this evidence, and rightly so: It casts no doubt on whether the Secretary’s stated rationale factored into his decision. The evidence suggests, at most, that the Secretary had multiple reasons for wanting to include the citizenship question on the census.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105862&title=Justice%20Thomas%E2%80%99s%20Ugly%20Accusation%20(Joined%20by%20Justices%20Gorsuch%20and%20Kavanaugh)%20in%20the%20Census%20Case>
Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Why the Supreme Court’s Rulings Have Profound Implications for American Politics”<https://electionlawblog.org/?p=105860>
Posted on June 28, 2019 11:47 am<https://electionlawblog.org/?p=105860> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Wines for the NYT.<https://www.nytimes.com/2019/06/27/us/supreme-court-gerrymandering-census.html>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105860&title=%E2%80%9CWhy%20the%20Supreme%20Court%E2%80%99s%20Rulings%20Have%20Profound%20Implications%20for%20American%20Politics%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“With No Supreme Court End to Gerrymandering, Will States Make It More Extreme?”<https://electionlawblog.org/?p=105858>
Posted on June 28, 2019 11:18 am<https://electionlawblog.org/?p=105858> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/06/28/us/supreme-court-gerrymandering-north-carolina.html>:

Thursday’s 5-4 ruling means that North Carolina’s current Republican-drawn map delineating its 13 Congressional districts — a map that critics have said is among the country’s most egregious examples of hyper-partisanship — will stand. The decision could also embolden lawmakers around the country to continue to push the envelope and craft seats for their respective parties with the aid of increasingly sophisticated computer mapping tools.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105858&title=%E2%80%9CWith%20No%20Supreme%20Court%20End%20to%20Gerrymandering%2C%20Will%20States%20Make%20It%20More%20Extreme%3F%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The Erasure of Racial Vote Dilution Doctrine<https://electionlawblog.org/?p=105855>
Posted on June 28, 2019 10:18 am<https://electionlawblog.org/?p=105855> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

I’ll have more to say about the Court’s appalling opinion in Rucho in Rick’s symposium next week. But I want to flag one point now: the Court’s erasure of racial vote dilution doctrine. This is the doctrine that allows groups of minority voters to challenge electoral arrangements (including district lines) on the ground that the policies dilute the plaintiffs’ votes. When such claims are brought under the Constitution, they require both discriminatory intent and discriminatory effect in the form of cracking and packing that reduce the plaintiffs’ electoral influence. And crucially, the claims can be brought under the Constitution, not just the Voting Rights Act. Landmark precedents like White v. Regester and Rogers v. Lodge involve exclusively constitutional—and successful—racial vote dilution suits.

But you wouldn’t know any of this from Rucho. The Court discussed the two other kinds of redistricting claims that can be raised under the Constitution: one person, one vote, and racial gerrymandering. According to the Court, neither of these theories supports the justiciability of partisan gerrymandering claims. That’s because one person, one vote is an individualistic theory from which claims about group power can’t be derived, while racial gerrymandering suits don’t “ask for a fair share of political power and influence, with all the justiciability conundrums that entails.” In contrast, the Court didn’t say a word about racial vote dilution. It didn’t cite White or Rogers or any other racial vote dilution decision. It didn’t mention the standard for liability in these cases. It didn’t even acknowledge that the doctrine exists.

This omission couldn’t have been accidental. In their briefs, the plaintiffs focused relentlessly on racial vote dilution precedents, arguing that they provided an analytical structure that could be used for partisan gerrymandering claims too. As the League of Women Voters plaintiffs put it, “that [partisan gerrymandering claims] are not political questions . . . follows from the undisputed justiciability of racial vote-dilution cases. Racial vote dilution, just like partisan vote dilution, works by cracking and packing disfavored voters and thus abridging their electoral influence. The former cannot be justiciable and the latter not.” It was thus bitterly ironic when the Court asserted that “Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims.” After all, that was never Appellees’ contention. Their actual argument, which the Court studiously refused to acknowledge, was that if the Court can adjudicate racial vote dilution claims, it can also assess analytically identical partisan gerrymandering claims.

Why did the Court refuse to recognize the plaintiffs’ actual position? Probably because of its force. The parallels between partisan vote dilution and racial vote dilution go on and on, and make it impossible to distinguish between the doctrines’ justiciability. First, both doctrines require proof of discriminatory intent. Second, the vote dilution condemned by both doctrines operates through the cracking and packing of groups of disfavored voters. Third, this dilution can only occur when members of both the favored and disfavored groups are politically cohesive. Fourth, the dilution can only be discerned by looking beyond the boundaries of a single district to the entire region where the disfavored group’s influence is abridged. And fifth, and most fundamentally, both claims “ask for a fair share of political power and influence” for the targeted group. Both claims, that is, ask for the very thing that, in the Court’s view, poses unsolvable “justiciability conundrums.”

Rucho’s silence about racial vote dilution, then, is extremely ominous. Does the Court no longer believe the doctrine exists? If so, decades of precedent would have to be discarded and the constitutional foundation of Section 2 of the Voting Rights Act would crumble into nothing. Or, only slightly less radically, does the Court think the doctrine exists but is nonjusticiable because it too involves “reallocating power and influence between political [groups]”? Then constitutional racial vote dilution claims would be unavailable but Section 2 suits might still be allowed to proceed. Or, probably most plausibly, did the Court fail to mention the doctrine because its existence complicated the Court’s effort to shut the door on partisan gerrymandering claims? Then these dire consequences wouldn’t necessarily follow—but Court’s bad faith would be crystal clear. It’s the epitome of motivated, lawless reasoning to ignore a whole body of precedent just because it points in an awkward direction.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105855&title=The%20Erasure%20of%20Racial%20Vote%20Dilution%20Doctrine>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Census Decision: Institutional Realism, Institutional Formalism, and Judicial Review”<https://electionlawblog.org/?p=105849>
Posted on June 28, 2019 9:57 am<https://electionlawblog.org/?p=105849> by Richard Pildes<https://electionlawblog.org/?author=7>

Yesterday at the Balkinization blog, I put up this<https://balkin.blogspot.com/2019/06/the-census-decision-institutional.html> perspective on the Court’s Census decision. Here is a bit of that analysis:

Today’s decision in the Census case is a powerful example of what I call an “institutionally realist” approach to judicial review of executive branch action.  The Court not only probed deeply beneath the surface of the formal administrative record, which it rarely does, to conclude that the administration’s justification for the citizenship question was “contrived” and pretextual.

In various other ways, the Court concluded that the “unusual circumstances” of the case warranted the approach the Court was taking.  For example, the Court also concluded that, even though the district judge was wrong to permit discovery outside the record at the stage he did so, it turned out after the fact that there were good reasons for doing, and the Court was therefore willing to rely on the information generated in this way.  That the stakes are far higher regarding the Census than ordinary administrative law issues undoubtedly played a major role in why the Court was willing to approach the case as it did.  The “unusual circumstances” that justified a more aggressive application of administrative-law doctrines were thus a realistic recognition of the (1) magnitude of the issues and (2) the signs that there was nothing regular about the processes that led to the Commerce Department’s decision.

I want to put this way of looking at the Census decision in a larger context concerning how courts review the actions of governmental institutions more generally.  Back before the Trump administration was a gleam in the eye of American politics, I wrote an article called Institutional Formalism and Realism in Constitutional and Public Law<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2411141>.  I mention when the piece was written to indicate that it was not written (or gerrymandered) for the Trump administration.  But I think it frames the central, underlying issue the courts confront in reviewing many of the actions of the Trump administration, including in today’s Census case.

The central idea of Institutional Formalism and Realism is  that, when courts are called up to judge the actions of other governmental institutions or actors, they implicitly confront a choice about whether to adopt a more formalist or more realist stance towards the institution or actor involved.   When courts are institutionally formalist, they treat the government institution involved largely as a black box, to which the Constitution (or other sources of law) allocate specific powers or functions.  In this mode, courts do not open up that black box to attempt to make more realist assessments of what underlies the way those institutions exercise their powers at any particular moment in time, or how those institutions might function differently in different eras.

This is reflected in doctrines like “the presumption of regularity,” which courts ordinarily apply in reviewing agency action – and which Justice Thomas relies heavily on in his critical dissent today.  Institutional realism entails the opposite stance:  in assessing the legality of government decision-making, courts do take into account their judgments about how specific institutions are actually functioning (or failing to function) at particular moments in time.   …

Today’s Census decision, and the conflict between Chief Justice Roberts and Justice Thomas’ dissent, nicely illustrates how strongly this tension between institutional formalism and realism underlies major Court decisions.  But the tension is pervasive and inescapable.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105849&title=%E2%80%9CThe%20Census%20Decision%3A%20Institutional%20Realism%2C%20Institutional%20Formalism%2C%20and%20Judicial%20Review%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Trump jokes to Putin: ‘Don’t meddle in the election'”<https://electionlawblog.org/?p=105847>
Posted on June 28, 2019 9:44 am<https://electionlawblog.org/?p=105847> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/06/28/trump-putin-meeting-1386123>:

Trump spoke to reporters briefly before he and Putin were scheduled to talk for an hour to discuss a series of national security issues, including Iran’s recent aggression<https://www.politico.com/story/2019/06/27/trump-iran-nuclear-deal-1385148>, the civil war in Syria, where the United States and Russia are backing opposing sides, and a new arms control treaty with China.

When Trump did not bring up to reporters whether he would mention election interference, a reporter asked him if he would talk to Putin about it.

“Yes, of course I will,” Trump told reporters. Then he turned to Putin, smiling and wagging his finger in the Russian president’s direction at one point, and said: “Don’t meddle in the election, president. Don’t meddle in the election.”

But it’s unclear whether Trump actually pressed Putin on Mueller’s findings. A readout from the White House did not include the subject
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105847&title=%E2%80%9CTrump%20jokes%20to%20Putin%3A%20%E2%80%98Don%E2%80%99t%20meddle%20in%20the%20election%27%E2%80%9D>
Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Editorial: N.C. can and must act for fair districts even if high court won’t stop gerrymandering”<https://electionlawblog.org/?p=105845>
Posted on June 28, 2019 9:38 am<https://electionlawblog.org/?p=105845> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL editorial.<https://www.wral.com/editorial-n-c-can-and-must-act-for-fair-districts-even-if-high-court-won-t-stop-gerrymandering/18478283/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105845&title=%E2%80%9CEditorial%3A%20N.C.%20can%20and%20must%20act%20for%20fair%20districts%20even%20if%20high%20court%20won%E2%80%99t%20stop%20gerrymandering%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Thank You to Peter Overby<https://electionlawblog.org/?p=105843>
Posted on June 28, 2019 9:28 am<https://electionlawblog.org/?p=105843> by Rick Hasen<https://electionlawblog.org/?author=3>

Peter is retiring as the Money and Politics reporter at NPR after a great run. I’ve always benefitted from Peter’s tenacity and his excellent reporting skills.

Happy Retirement and we will miss you on the beat!
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105843&title=Thank%20You%20to%20Peter%20Overby>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
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_1783277613]

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190628/a8cc2a39/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 221574 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190628/a8cc2a39/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 2021 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190628/a8cc2a39/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 25207 bytes
Desc: image003.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190628/a8cc2a39/attachment-0002.png>