[EL] ELB News and Commentary 3/2/19 & 3/3/19

[Daniel Tokaji]

“Court battles could test constitutionality of California voting rights law”
<https://electionlawblog.org/?p=103872>
Posted on March 3, 2019 8:36 am <https://electionlawblog.org/?p=103872> by Dan
Tokaji <https://electionlawblog.org/?author=5>

LA Times
<https://www.latimes.com/local/lanow/la-me-ln-santa-monica-california-voting-rights-act-20190303-story.html>:
” [A] conservative group is backing Poway’s former mayor in a federal court
fight, arguing
<https://www.sandiegouniontribune.com/communities/north-county/sd-no-suit-dismissed-20180226-story.html>that
the California [Voting Rights Act] forces ethnic gerrymandering on
unwilling citizens and their elective bodies. The case is before the U.S.
9th Circuit Court of Appeals and eventually could land in the Supreme
Court.”
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Posted in Voting Rights Act <https://electionlawblog.org/?cat=15>
Big 10 Redistricting Conference <https://electionlawblog.org/?p=103869>
Posted on March 3, 2019 5:11 am <https://electionlawblog.org/?p=103869> by Dan
Tokaji <https://electionlawblog.org/?author=5>

I’m off to College Park this afternoon for the Big Ten Strategic
Partnership for Applied Redistricting Knowledge (SPARK) Conference
<https://bsos.umd.edu/featured-content/umd-host-big-ten-strategic> Monday
and Tuesday, hosted by the University of Maryland.
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Posted in election law biz <https://electionlawblog.org/?cat=51>,
redistricting <https://electionlawblog.org/?cat=6>
Trial to Begin in Ohio Partisan Gerrymandering Case
<https://electionlawblog.org/?p=103867>
Posted on March 3, 2019 4:58 am <https://electionlawblog.org/?p=103867> by Dan
Tokaji <https://electionlawblog.org/?author=5>

AP reports
<https://www.wkyc.com/article/news/local/vote/voting-rights-groups-lawsuit-against-ohio-heads-to-trial/95-0c489b9d-261f-4399-88dc-cd2e52122601>
that
the trial before the three-judge district court is scheduled to start
Monday in Cincinnati.
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Posted in redistricting <https://electionlawblog.org/?cat=6>
“The Democrats’ New Voting-Rights Moment”
<https://electionlawblog.org/?p=103864>
Posted on March 3, 2019 4:54 am <https://electionlawblog.org/?p=103864> by Dan
Tokaji <https://electionlawblog.org/?author=5>

The Atlantic
<https://www.theatlantic.com/politics/archive/2019/03/democrats-hope-restore-key-section-voting-rights-act/583969/>
:

The third time will certainly not be the charm for the Voting Rights
Advancement Act….

But that doesn’t mean that this time around is purely symbolic, either….
[A] s big, new progressive ideas like the Green New Deal, Medicare for all,
and reparations permeate the 2020 presidential-primary conversation, the
reality for Democrats is that voting rights could be the only thing
everyone agrees on—and the thing necessary for all of the other potential
policies to ever become reality.

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Posted in VRAA <https://electionlawblog.org/?cat=81>
Republicans Plan Ballot Harvesting Amendment to H.R. 1
<https://electionlawblog.org/?p=103862>
Posted on March 3, 2019 4:48 am <https://electionlawblog.org/?p=103862> by Dan
Tokaji <https://electionlawblog.org/?author=5>

The Washington Examiner
<https://www.washingtonexaminer.com/news/congress/frayed-democrats-face-unity-test-with-campaign-finance-vote>
:

Among the provisions Republicans may attach to the campaign finance
legislation is one that would prohibit ballot harvesting, which is the
practice of collecting absentee ballots and delivering them to a polling
site with the intent to create a vote surge for a preferred candidate.

Rep. Mark Walker, R-N.C., authored the measure and attempted to attach it
to H.R. 1 during committee consideration, but Democrats blocked it. Now,
Republicans hope to attach it as the last-minute amendment the GOP is
allowed to offer on the House floor.

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Posted in absentee ballots <https://electionlawblog.org/?cat=53>
Two Members of Maryland Redistricting Commission Resign
<https://electionlawblog.org/?p=103858>
Posted on March 3, 2019 4:38 am <https://electionlawblog.org/?p=103858> by Dan
Tokaji <https://electionlawblog.org/?author=5>

The Baltimore Sun reports
<https://www.baltimoresun.com/news/maryland/politics/bs-md-redistricting-panel-20190301-story.html>
:

Two members of Maryland Gov. Larry Hogan’s redistricting commission
resigned after The Baltimore Sun asked questions about whether their
participation in the body redrawing Maryland’s congressional districts
violated state rules.

The move came as the commission voted unanimously Friday to adopt a
proposed map for the 6th Congressional District, which stretches from
Montgomery County to Western Maryland. A federal court ruled in November
that Maryland Democrats unconstitutionally gerrymandered that district in
2011 to benefit their party, prompting Hogan to appoint the emergency
commission.

The 2011 plan is back before the Supreme Court (Lamone v. Benisek
<https://www.scotusblog.com/case-files/cases/lamone-v-benisek/>), with
plaintiffs’ briefs due tomorrow
<https://www.brennancenter.org/sites/default/files/legal-work/2019-01-08-Briefing%20Order.pdf>
.
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Posted in redistricting <https://electionlawblog.org/?cat=6>
“Mitch McConnell On NC Ballot Harvesting: Why Is It Legal In California?”
<https://electionlawblog.org/?p=103855>
Posted on March 2, 2019 4:57 am <https://electionlawblog.org/?p=103855> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Charlotte NPR
<https://www.wfae.org/post/mitch-mcconnell-nc-ballot-harvesting-why-it-legal-california#stream/0>
:

Earlier this week, Senate Majority leader Mitch McConnell spoke
<https://www.youtube.com/watch?v=eeWjkVMmT30> about the North Carolina
Board of Election’s vote to hold a new election in the 9th Congressional
District because absentee mail ballots were illegally harvested. McConnell
spoke about that decision and the issue of ballot harvesting overall….

Ballot collection, or harvesting, benefits people who are far from
mailboxes or who have mobility issues, said Rick Hasen of the University of
California Irvine. But he said the tradeoff is a greater chance of fraud,
such as ballots being stolen.

“If all we were concerned about was eliminating the potential risk of
fraud, then we would get rid of not only laws that allow people to collect
absentee ballots,” Hasen said. “Then we would get rid of all absentee
balloting as a whole.”

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Posted in absentee ballots <https://electionlawblog.org/?cat=53>
Ryan Williamson, “Examining the Effects of Partisan Redistricting on
Candidate Entry Decisions” <https://electionlawblog.org/?p=103853>
Posted on March 2, 2019 4:49 am <https://electionlawblog.org/?p=103853> by Dan
Tokaji <https://electionlawblog.org/?author=5>

The abstract of this new ELJ article
<https://www.liebertpub.com/doi/abs/10.1089/elj.2018.0505>:

Redistricting has been a highly contentious topic in American politics for
many decades. The many instances of politicians exploiting the
redistricting process to achieve a partisan goal have been widely
chronicled. Nonpartisan redistricting plans serve to keep politicians from
taking advantage of the process for their own advantage, and they therefore
ostensibly serve to increase competition, which in turn improves
representation. However, the effect of nonpartisan plans on elections is
not entirely clear. I seek to adjudicate competing conclusions about the
effect of nonpartisan plans by evaluating the effect of different
redistricting methods on quality candidate emergence. I find that, relative
to commissions, partisan plans produce fewer quality candidates, more
uncontested elections, and fewer open seats.

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Posted in redistricting <https://electionlawblog.org/?cat=6>
“State election officials opt for 2020 voting machines vulnerable to
hacking” <https://electionlawblog.org/?p=103851>
Posted on March 2, 2019 4:42 am <https://electionlawblog.org/?p=103851> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Politico reports
<https://www.politico.com/story/2019/03/01/election-vulnerable-voting-machines-1198780>
on
Georgia, Delaware, and Philadelphia’s plans to buy ballot-marking devices
that “allow voters to use a touchscreen to select their choices” and then
“print a slip of paper with the vote both displayed in plain text and
embedded in a barcode,” something that some security experts say could
allow manipulation of the barcodes without voters noticing.
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Posted in voting technology <https://electionlawblog.org/?cat=40>
“Abbott blames flawed voter purge effort on ‘faulty information’ from
Department of Public Safety” <https://electionlawblog.org/?p=103849>
Posted on March 2, 2019 4:19 am <https://electionlawblog.org/?p=103849> by Dan
Tokaji <https://electionlawblog.org/?author=5>

San Antonio Express-News
<https://www.expressnews.com/news/politics/texas_legislature/article/Abbott-blames-flawed-voter-purge-effort-on-13652347.php?t=766dc9bc6d>
:

Republican Gov. Greg Abbott is blaming the Texas Department of Public
Safety and its director for a flawed effort to purge non-citizens from the
state voter rolls.

“The Secretary of State [David Whitley] was hamstrung by faulty information
from the Department of Public Safety from the beginning and did not know
that,” Abbott said on the KFYO radio program Thursday. “And so part of the
fault goes to Steve McCraw, the director of the Department of Public
Safety, for causing the error in the first place.”

This seems to be an effort to deflect responsibility from Whitley, whom
Abbott appointed Secretary of State in December but still needs to be
confirmed by the State Senate. A committee advanced his nomination
Thursday, according to the story, with all 12 Democrats saying they’ll
oppose him when the appointment reaches the floor.
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Posted in voter registration <https://electionlawblog.org/?cat=37>
“Push His Buttons”: J. Christian Adams Calls me “Raw Enemy Activist,” Plots
With von Spakovsky, PILF Employees To Counter My Calling Out the Work of
the Fraudulent Fraud Squad <https://electionlawblog.org/?p=103840>
Posted on March 1, 2019 6:20 pm <https://electionlawblog.org/?p=103840> by Rick
Hasen <https://electionlawblog.org/?author=3>

Via Tierney Sneed
<https://talkingpointsmemo.com/muckraker/christian-adams-von-spakovsky-emails-pilf-lulac-lawsuit>
on
the release of more Pence-Kobach documents, oh my
<https://electionlawblog.org/wp-content/uploads/adams-hvs.pdf>:

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Posted in fraudulent fraud squad <https://electionlawblog.org/?cat=8>, The
Voting Wars <https://electionlawblog.org/?cat=60>
Crum: The Voting Rights Advancement Act of 2019
<https://electionlawblog.org/?p=103838>
Posted on March 1, 2019 4:10 pm <https://electionlawblog.org/?p=103838> by Dan
Tokaji <https://electionlawblog.org/?author=5>

*Guest post from Travis Crum:*

Democrats in the House
<https://sewell.house.gov/sites/sewell.house.gov/files/Voting%20Rights%20Advancement%20Act%20of%202019.pdf>
 and Senate
<https://www.leahy.senate.gov/imo/media/doc/VRAA%202019%20Text.pdf> recently
unveiled the Voting Rights Advancement Act of 2019 (“VRAA”), the latest
version in a series of bills intended to restore the coverage formula
invalidated in *Shelby County v. Holder
<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>*. Democrats
decoupled the VRAA from H.R. 1—the omnibus voting rights and campaign
finance bill introduced in January—because the inevitable constitutional
challenge requires Congress to build a legislative record of racial
discrimination in voting. Although the VRAA is unlikely to survive the
Senate in the near future, it will almost certainly pass the House, and the
record that Congress starts building today will come in handy if and when
the VRAA is enacted into law. In this post, I discuss how the new VRAA
resembles and differs from prior versions of the bill and highlight an
overlooked provision—namely, practice-based preclearance—that should
receive more attention from the voting rights community.

Some aspects of the new VRAA mirror previous versions. The VRAA revises
Section 3(c) to authorize “bail-in” based on a statutory violation
<https://electionlawblog.org/?p=52659>, an important change that I’ve
defended elsewhere <https://www.yalelawjournal.org/pdf/895_hxmt6m44.pdf>.
There are also pro-transparency provisions that will make it harder for
States and localities to hide problematic voting changes in the run-up to
an election. And the Senate version continues to create additional
protections for Native Americans living on reservations.

In a significant development, the House and Senate versions of the VRAA now
adopt the same coverage formula. As I noted
<https://takecareblog.com/blog/the-house-should-pass-an-effects-test-bail-in-provision>
previously,
the coverage formulas found in prior versions of the VRAA contained
disparate time horizons and different definitions and numbers of “voting
rights violations” for triggering preclearance Although this newfound
agreement is welcome news for many in the voting rights community, I
continue to believe that a revised Section 3(c) can accomplish most of the
work of a new coverage formula, without raising equal-sovereignty concerns
or necessitating costly political compromises.

Under the new VRAA, a State and all the political subdivisions within that
State are covered if, during the past twenty-five years, there were fifteen
or more voting rights violations *or* ten or more voting rights violations
and at least one of those violations was committed by the State itself. The
new VRAA would also cover a political subdivision—such as a county—if three
or more voting rights violations occurred within that jurisdiction in the
past twenty-five years. Coverage under the VRAA would be “rolling” and last
ten years.

In addition, the House and Senate versions now have the same triggers for
coverage: a violation of the Fourteenth or Fifteenth Amendments, a
violation of the VRA, a denial of preclearance, or a settlement that
resulted in the alteration or abandonment of a voting rights practice that
had been challenged as racially discriminatory. The coverage formula has
also been tightened up. Unlike prior versions, the new VRAA does not
trigger coverage based on persistently low levels of minority voter
turnout. This is a positive development, as basing coverage on such a
proxy—which is neither a constitutional nor a statutory violation—would
have opened up the coverage formula to challenge.

One aspect of the VRAA that has not attracted sufficient attention from the
public or the voting rights community is the requirement that certain
election laws *automatically* be subject to preclearance. Found in Section
4A of the VRAA, this “practice-based preclearance” would apply *nationwide* and
would cover election law changes that have proved particularly problematic
in the past. Some of these changes—such as modifying jurisdictional
boundaries or adding at-large seats in areas with high minority
populations—are going to affect mostly local jurisdictions. Others—such as
requiring preclearance of voter qualification laws, including voter ID
laws—will generally impact States.

Perhaps the lack of attention to this proposal—which was included in older
versions of the bill—is due to the politically powerful desire to
overturn *Shelby
County*. Indeed, the continued attempts to reinvigorate the coverage
formula embody this sentiment. Or perhaps it is an implicit concession that
a nationwide preclearance regime is unlikely to ever be enacted into law.

And even if practice-based preclearance survives the legislative process,
it raises distinct constitutional questions. To be sure, practice-based
preclearance does not implicate the equal sovereignty principle, but it
still “imposes substantial federalism costs
<https://www.law.cornell.edu/supct/html/08-322.ZO.html>.” On the one hand,
practice-based preclearance would cover a high percentage of practices that
received objections
<https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1131&context=mjrl>
under
the old Section 5 regime or have sparked litigation
<https://electionlawblog.org/?p=101137> in recent years. But on the other
hand, it does so without any finding as to the particular jurisdiction’s
likelihood of engaging in racial discrimination in voting—a stark departure
from the approaches taken by Section 3(c) and the old and proposed coverage
formulas. In addition, the new VRAA’s practice-based preclearance is not
limited to federal elections, which means Congress cannot rely on its
expansive power under the Elections Clause
<https://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf> to preempt
state laws. A narrower practice-based preclearance—say, one that applied to
congressional redistricting plans—would be more defensible under the
Elections Clause.

With the introduction of the new VRAA, the House is undertaking the long
overdue task of responding to *Shelby County*. In the months and years
ahead, the voting rights community should continue developing ways for
preclearance to protect minority voting rights and deter racially
discriminatory conduct.
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Posted in Voting Rights Act <https://electionlawblog.org/?cat=15>
Daniel P. Tokaji
Associate Dean for Faculty | Ebersold Professor of Constitutional Law
The Ohio State University | Moritz College of Law
55 W. 12th Ave. | Columbus, OH 43210

614.292.6566 | tokaji.1 at osu.edu
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