[EL] ELB News and Commentary 3/25/19

Mon Mar 25 08:13:27 PDT 2019

“Roberts’ Rules: This week will test the chief justice’s commitment to calling balls and strikes.”<https://electionlawblog.org/?p=104336>
Posted on March 25, 2019 8:12 am<https://electionlawblog.org/?p=104336> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/03/john-roberts-supreme-court-gerrymandering-cases.html> for Slate. It begins:

Back in November, when President Donald Trump referred to a judge who had ruled against his administration as “an Obama judge,” Chief Justice John Roberts issued a rare rebuke<https://www.usatoday.com/story/news/politics/2018/11/21/john-roberts-trump-statement/2080266002/> in a public statement. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts intoned. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” The remark echoed Roberts’ insistence<http://www.cnn.com/2005/POLITICS/09/12/roberts.statement/> during his 2005 confirmation hearings that judges are like umpires who merely call balls and strikes.

But the partisan gerrymandering<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-422.html> cases<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-726.html> the Supreme Court will hear on Tuesday and the case<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-966.html>about a controversial citizenship question on the 2020 U.S. census that the court will hear next month will once again put Roberts’ stated principle to the test. This time, following the departure of swing Justice Anthony Kennedy, Roberts could well be the only one in a position to stop a pattern in which all the Republican-appointed judges side with perceived Republican interests and all the Democratic-appointed judges side with perceived Democratic interests. The question in these cases will be which of the two enigmatic versions of Roberts described in Joan Biskupic’s magnificent new book, The Chief<http://www.amazon.com/dp/0465093272/?tag=slatmaga-20>, will show up: the solid conservative who wrote the opinion to kill a key provision<https://www.law.cornell.edu/supremecourt/text/12-96> of the Voting Rights Act and voted with four other conservatives to allow corporate money into candidate elections<https://www.law.cornell.edu/supct/html/08-205.ZS.html>, or the institutionalist chief justice who is desperate to show that there remains a distinction between law and politics. Given the blockbuster cases expected in the next Supreme Court term beginning in October, there’s going to be real pressure for the institutionalist John Roberts to be dominant in this term’s political cases.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

The Worst Defense of the Electoral College Yet Comes from Stephen Sachs at Volokh<https://electionlawblog.org/?p=104334>
Posted on March 25, 2019 7:53 am<https://electionlawblog.org/?p=104334> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve seen lots of arguments for and against the Electoral College. Some are stronger than others.

But Stephen Sach’s idea<http://reason.com/volokh/2019/03/24/election-integrity-and-the-electoral-col> that there could be such widespread fraud if we moved to a popular vote (rather than keeping fraud in a “cauterized” state) is ridiculous. Given the tens of millions of voters who would have to be involved in a scheme to swing a presidential election decided by a popular vote (or the entire state apparatus in a large state to move millions in the vote totals), there seems much LESS danger from fraud using a national popular vote than going after one swing state.

And more importantly, we do not see such election fraud on such a massive scale. Even NC09, the most egregious election crime we’ve seen in years, was both limited to a single congressional district and was uncovered.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“Will the Supreme Court End Gerrymandering? Arguments Begin This Week”<https://electionlawblog.org/?p=104332>
Posted on March 25, 2019 7:45 am<https://electionlawblog.org/?p=104332> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Wines in the NYT.<https://www.nytimes.com/2019/03/25/us/supreme-court-gerrymandering-north-carolina.html>
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“Take it from us governors: Politicians shouldn’t draw electoral maps”<https://electionlawblog.org/?p=104330>
Posted on March 25, 2019 7:39 am<https://electionlawblog.org/?p=104330> by Rick Hasen<https://electionlawblog.org/?author=3>

Roy Cooper and Larry Hogan WaPo oped<https://www.washingtonpost.com/opinions/take-it-from-us-politicians-cant-be-trusted-to-draw-electoral-maps/2019/03/24/afd587b0-4cce-11e9-9663-00ac73f49662_story.html?utm_term=.09334aea580b&wpmk=MK0000200>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“We Drew Congressional Maps for Partisan Advantage. That Was the Point.”<https://electionlawblog.org/?p=104328>
Posted on March 25, 2019 7:37 am<https://electionlawblog.org/?p=104328> by Rick Hasen<https://electionlawblog.org/?author=3>

Ralph Hise and David Lewis in The Atlantic<https://www.theatlantic.com/ideas/archive/2019/03/ralph-hise-and-david-lewis-nc-gerrymandering/585619/>:

“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” one of us said<https://www.nytimes.com/2019/03/18/us/politics/gerrymandering-supreme-court.html> in 2016, as the North Carolina legislature drew new congressional maps.

It’s a made-for-headlines statement, an apparent gaffe that reveals what everybody knows but nobody says. And on Tuesday, as the U.S. Supreme Court hears arguments in the landmark partisan gerrymandering case Rucho v. Common Cause, it will likely take center stage again.

That statement, though, was not a gaffe. It was a hyperbolic but necessary retort to ongoing litigation and the shifting goalposts imposed by a federal court.

You don’t need to agree with the statement, and you don’t need to support partisan considerations in redistricting. That’s not our intent in writing this. But you should understand the full story, because reaching conclusions based on one spoken sentence is rarely justified and never prudent.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

My Thoughts on the Barr Letter, Threaded<https://electionlawblog.org/?p=104326>
Posted on March 25, 2019 7:30 am<https://electionlawblog.org/?p=104326> by Rick Hasen<https://electionlawblog.org/?author=3>

Yesterday I tweeted a bunch of thoughts about the Barr Letter, and you can now read the entire thread easily here<https://threadreaderapp.com/thread/1109944614905999360.html>.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>

--
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
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http://electionlawblog.org<http://electionlawblog.org/>
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