[EL] ELB News and Commentary 3/28/19

[Rick Hasen]

“Senate Democrats push to match House’s ethics and election reforms”<https://electionlawblog.org/?p=104404>
Posted on March 27, 2019 8:55 pm<https://electionlawblog.org/?p=104404> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/powerpost/senate-democrats-push-to-match-houses-ethics-and-election-reforms/2019/03/27/a46a6880-50a4-11e9-88a1-ed346f0ec94f_story.html?utm_term=.7bd03f022df5>:

Responding to action in the House, Senate Democrats unveiled their own version of a sweeping election and ethics reform bill Wednesday — one that Senate Majority Leader Mitch McConnell has vowed never to bring to a vote.

Dubbed, like the House bill, the For the People Act, the Senate legislation includes a vast suite of proposals — including measures meant to expand voting, provisions aimed at unmasking and diluting the power of moneyed interests, new ethical strictures for federal officials and a new public financing system for congressional campaigns.

The bill, according to its lead author, Sen. Tom Udall (D-N.M.), has the support of all 47 senators in the Democratic caucus. The House bill passed 234 to 193 this month with unanimous Democratic support, meaning every congressional Democrat is on record in support of the bill.

“Today we are seizing their momentum and the momentum of the American people,” Udall said at a news conference Wednesday. “Now the ball is in Senator McConnell’s court. . . . This should not be about Democrats versus Republicans, this is about people versus special interests.”

That is not the view of McConnell (R-Ky.) and other Republicans, who have called the bill a Democratic “power grab” and vowed to resist its advance.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Judge Suggests Partial Way Out Of Lawsuit Over ‘Flawed’ Texas Voter Fraud List”<https://electionlawblog.org/?p=104402>
Posted on March 27, 2019 8:50 pm<https://electionlawblog.org/?p=104402> by Rick Hasen<https://electionlawblog.org/?author=3>

Tierney Sneed reports<https://talkingpointsmemo.com/muckraker/judge-suggests-partial-way-out-of-lawsuit-over-flawed-texas-voter-fraud-list> for TPM.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>


Proportionality is Not the Baseline In Modern Partisan Gerrymandering Cases<https://electionlawblog.org/?p=104386>
Posted on March 27, 2019 2:00 pm<https://electionlawblog.org/?p=104386> by Richard Pildes<https://electionlawblog.org/?author=7>

At oral arguments in yesterday’s partisan gerrymandering cases, several Justices raised questions about whether partisan-gerrymandering challenges implicitly appeal in one way or another to a baseline of proportional representation (PR).  This is an idea introduced by Justice O’Conner in her concurrence in Davis v. Bandemer, 478 U.S. 109 (1986).  A lot of media commentary relies on a similar idea, when journalists simplistically compare a party’s statewide vote share to the statewide number of seats it gets.

But whether Justice O’Connor was right about that at the time she wrote more than thirty years ago, it is not true that social-science experts today or modern litigation challenges rest on any implicit or explicit baseline of PR.  Indeed, political scientists have long understood that a system of single-member districting, such as we use for Congress, should not be expected to produce PR.  The basic reason is that in such a system, a candidate who wins 51% of the vote gets 100% of the seat at issue.  You can have a statewide system of neutrally drawn, competitive districts in which one party wins 51% of the vote in each district and thus ends up with all the seats – and the other party would end up with all the seats if it won 51% of the vote in each district.  There are benefits to single-member districts, but sometimes, those benefits come at a cost to PR.

Precisely because experts have long understood that single-member districts will not necessarily produce PR, their tests for identifying partisan gerrymanders or for defining a fair districting plan have self-consciously rejected any idea that PR provides an appropriate baseline.  One way of defining such a baseline, which has become feasible only in recent years, is to generate tens of thousands of maps based on traditional districting criteria that assign people to districts based on neutral principles, rather than their partisan affiliation.  We can then see the range of partisan outcomes those thousands of plans produce.  This range of partisan outcomes from these thousands of neutral maps – not PR – becomes the baseline against which an actual enacted plan can be judged.

The baseline generated by these maps will often not be PR because the way voters are geographically distributed determines how a neutrally drawn plan will perform.  For example, an amicus brief<https://www.supremecourt.gov/DocketPDF/18/18-422/91446/20190308181814592_18-422%2018-726%20Amicus%20BOM%20Mathematicians.pdf> filed in the case on behalf of mathematicians and law professors shows the insight these techniques provide in a state like Massachusetts.  In the 2000-2010 election cycle, Republicans received about 30-37% of the vote statewide for Congress.  But Massachusetts had a 10-0 Democratic delegation in Congress.  If PR were the baseline, Republicans would be “entitled” to at least three of those seats.

But when a vast array of neutral drawn maps was put together, it turns out that not a single plan based on traditional districting criteria would produce a single Republican-majority district.  That’s because Republican voters in Massachusetts are spread out so evenly across the State, there is nowhere a concentrated enough number of Republicans to form the majority in a district drawn to comply with traditional, neutral districting criteria.  In other words, the correct baseline for Massachusetts, at least in the 2000 round of redistricting, is actually 10-0 Democratic.  That is striking and might sound odd to lay ears, but it demonstrates quite clearly that when thousands of neutrally-drawn maps reflecting a state’s political geography are used, they provide a baseline for a neutral plan that can be quite different from PR (there might be Republican-dominated states that generate equally dramatic results, but not all states have been studied yet).

Indeed, as another amicus brief<https://www.supremecourt.gov/DocketPDF/18/18-422/91394/20190308165646674_2019.03.08%20Amicus%20in%20Rucho%20v.%20Common%20Cause.pdf>, on behalf of political geographers, points out, these alternative maps show that in several states, a neutrally drawn map will tend to give Republicans somewhat more seats than they would have if PR were the baseline – because Democrats are highly clustered in urban areas.  That’s another demonstration that using these tools has nothing to do with PR.  The baseline is defined by what thousands of neutral plans would produce, and that can be a Democratic advantage in MA, but a Republican advantage in other states (as compared to what a PR requirement would entail).

When thousands of neutral maps were drawn for North Carolina, they showed that about 46% of the maps would produce a 7-6 Democratic delegation for Congress and 32% would produce a 7-6 Republican delegation.  In other words, the vast majority of time, the baseline in NC for a neutrally-drawn plan would produce either a 7-6 or 6-7 delegation.  One expert who drew 3,000 neutral maps found that not a single one of those maps would produce a 10-3 Republican delegation, as the enacted plan was expressly designed to do and did in fact do.  Another expert who drew more than 24,000 neutral plans found that 99.3% of those maps did not produce a 10-3 Republican map.

These thousands of maps can play two roles.  When no direct evidence exists about whether a legislature intended to create a partisan gerrymander, this analysis can provide significant probative circumstantial evidence.  If there is close to no possibility that a neutrally-drawn plan would produce a 10-3 delegation, then partisan manipulation can be presumed to explain why the map looks the way it does.  But these maps can also demonstrate how extreme the partisan gerrymander is (whether intent is admitted or not).  If virtually none of the time would a neutral map produce a 10-3 delegation, than such a map is not just a partisan gerrymander, but an extreme statistical outlier.  By contrast, let’s say we have a state with 15 districts, and when thousands of alternative maps are drawn, 33% produce an 8-7 split for one party, 33% produce a 9-6 split for that party, and 33% produce a 10-5 split for that party.  We could not say that any of those maps would be an extreme statistical outlier.  Extreme outliers are also easy to define statistically; they simply require deciding how far from the center (the mean) of the distribution a plan has to be in order to be considered an extreme outlier.

This discussion also relates to an interesting question Justice Alito began to ask.  Played out more fully, he asked didn’t Democrats in the 2018 elections get a roughly proportional percentage of seats in the House to their nationwide vote share?  Democrats did receive about 55% of the vote and got 54% of the seats, according to this report<https://electionlawblog.org/seen>.   But notice that this question itself assumes PR is the right baseline for judging what non-partisan districting nationwide would produce.  And for the reasons just discussed, it’s not.  Maybe Democrats would have won significantly fewer seats if neutrally-drawn districts had been used nationwide.  Maybe they would have won more<https://projects.fivethirtyeight.com/partisan-gerrymandering-north-carolina/> seats.  We can’t know without exploring alternative maps for all the States (with more than one district) or applying other metrics.

[Disclosure:  I am part of the legal team representing the Common Cause group of appellees in this case]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Proportionality and the Oral Arguments — Part II<https://electionlawblog.org/?p=104383>
Posted on March 27, 2019 9:10 am<https://electionlawblog.org/?p=104383> by Justin Levitt<https://electionlawblog.org/?author=4>

Yesterday, Nick offered some thoughts<https://electionlawblog.org/?p=104363> on the arguments in the Rucho<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-422_5hd5.pdf> and Benisek<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-726_9olb.pdf> partisan gerrymandering cases, and several Justices’ fixation on whether all of this litigation is just a Trojan horse for achieving proportional representation. Nick’s post highlights the fact that none of the plaintiffs have asked for proportionality (and, indeed, most of the plaintiffs said as much at argument). And it points out that to the extent there are metrics related to outcome, those metrics lean toward symmetry instead.

But it’s just as important to note that none of the plaintiffs has suggested that outcome — no matter the baseline, or how it is measured — is dispositive. Given the Justices’ questions, you could be forgiven for misunderstanding that.

That is, none of the plaintiffs has suggested that a legislature stumbling upon a map could ever look up to find it unconstitutional because of its partisan content. And none of the plaintiffs has suggested that the Constitution requires every map to fit in a certain outcome range, much less peg a given percentage. The invidious intent<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011062> to use the power of the state to punish voters for their political preferences is essential to each of the claims.

That isn’t just a fact to be waved away, or assumed in every case. It’s neither inherent to legislative activity nor inherent to redistricting. Legislatures routinely make properly political choices that don’t involve the intent to punish private citizens because of their partisan preferences. And there’s no other policy arena in which the Constitution allows legislators to set out to punish private citizens for their partisan preferences.

None of that has anything to do with whether outcomes are proportional. The trial courts in these cases did not rule based on proportionality. If these cases end up about proportional representation, it will be because that’s what (some of) the Justices want to discuss, not because that’s the premise of the claims themselves.
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Posted in political parties<https://electionlawblog.org/?cat=25>, redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>, The Voting Wars<https://electionlawblog.org/?cat=60>


“5th Circuit judge raises eyebrows with ‘majority-minority panel’ reference in gerrymandering case”<https://electionlawblog.org/?p=104380>
Posted on March 27, 2019 7:59 am<https://electionlawblog.org/?p=104380> by Rick Hasen<https://electionlawblog.org/?author=3>

ABA Journal:<http://www.abajournal.com/news/article/huh-5th-circuit-dissenter-raises-eyebrows-with-reference-to-majority-minority-panel>

A dissent by Circuit Judge Edith Brown Clement in a Mississippi gerrymandering case is raising some questions and eyebrows. What, exactly, did the federal appeals judge mean when she wrote that the state defendants “have simply had the poor luck of drawing a majority-minority panel”?

Mother Jones initially surmised that Clement was referring to two minorities who wrote the majority decision. But it turns out that the two judges who wrote the March 25 majority opinion<http://www.ca5.uscourts.gov/opinions/pub/19/19-60133-CV0.pdf> were white appointees of Democratic presidents, according to Mother Jones<https://www.motherjones.com/kevin-drum/2019/03/white-mississippi-judge-not-happy-with-non-white-colleagues/>, Slate<https://slate.com/news-and-politics/2019/03/clement-mississippi-reeves-senate-gerrymander.html>and the Election Law Blog<https://electionlawblog.org/?p=104338>.

Clement, a judge on the 5th U.S. Circuit Court of Appeals at New Orleans, was nominated by President George H.W. Bush in 1991. A majority of the 5th Circuit consists of Republican appointees.

Clement dissented when the majority refused to block a federal judge’s decision to adopt a new electoral map for a Mississippi state Senate seat. In her dissent, Clement said that, unfortunately, appeals court procedures don’t permit en banc review of the stay denial.

“I am afraid defendants have simply had the poor luck of drawing a majority-minority panel,” Clement wrote. “I trust that in light of this, the state will pursue a stay in the Supreme Court because of the injustice that results from the joint efforts of the district judge and the motions panel majority.”

Rick Hasen of the Election Law Blog, who’s a professor at the University of California at Irvine School of Law, considers the passage to be “jarring.”

“It might be right as a matter of politics that the party of the appointing judges matters a lot in these political cases,” he wrote. “But it is surprising to see a 5th Circuit judge make this point so directly.”
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Exclusive: Fearful of fake news blitz, U.S. Census enlists help of tech giants”<https://electionlawblog.org/?p=104377>
Posted on March 27, 2019 7:36 am<https://electionlawblog.org/?p=104377> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters<https://www.reuters.com/article/us-usa-census-fakenews-exclusive/exclusive-fearful-of-fake-news-blitz-u-s-census-enlists-help-of-tech-giants-idUSKCN1R812S>:

The U.S. Census Bureau has asked tech giants Google, Facebook and Twitter to help it fend off “fake news” campaigns it fears could disrupt the upcoming 2020 count, according to Census officials and multiple sources briefed on the matter.

The push, the details of which have not been previously reported, follows warnings from data and cybersecurity experts dating back to 2016 that right-wing groups and foreign actors may borrow the “fake news” playbook from the last presidential election to dissuade immigrants from participating in the decennial count, the officials and sources told Reuters.

The sources, who asked not to be named, said evidence included increasing chatter on platforms like “4chan” by domestic and foreign networks keen to undermine the survey. The census, they said, is a powerful target because it shapes U.S. election districts and the allocation of more than $800 billion a year in federal spending.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


--
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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