[EL] ELB News and Commentary 5/5/19

[Daniel Tokaji]

“Pelosi Warns Democrats: Stay in the Center or Trump May Contest Election
Results” <https://electionlawblog.org/?p=105015>
Posted on May 5, 2019 6:13 am <https://electionlawblog.org/?p=105015> by Dan
Tokaji <https://electionlawblog.org/?author=5>

NYT  <https://www.nytimes.com/2019/05/04/us/politics/nancy-pelosi.html>on
Speaker Pelosi’s belief that the only way to remove President Trump from
office “is to defeat him in 2020 by a margin so ‘big’ he cannot challenge
the legitimacy of a Democratic victory.”

Few people outside Ms. Pelosi’s inner circle were aware of how worried she
was that Mr. Trump would try to stop the opposition party from taking
control of the House unless the Democrats’ victory was emphatic enough to
be indisputable.

“If we win by four seats, by a thousand votes each, he’s not going to
respect the election,” said Ms. Pelosi, recalling her thinking in the
run-up to the 2018 elections.

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Posted in Uncategorized <https://electionlawblog.org/?cat=1>
“How the ACLU is setting up Trump for a field day in 2020”
<https://electionlawblog.org/?p=105011>
Posted on May 5, 2019 5:56 am <https://electionlawblog.org/?p=105011> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Politico
<https://www.politico.com/story/2019/05/05/aclu-democrats-trump-2020-civil-liberties-1300563>
:

The debate over allowing the Boston Marathon bomber to vote started with a
man named Rick in Muscatine, Iowa.

At a town hall in early April, he reminded Bernie Sanders that prisoners in
his home state of Vermont are allowed to vote and asked if that right
should be extended nationally. Sanders agreed it should, and before he knew
it, he was being asked variations of the question at Fox News and CNN town
halls. Sanders’ critics pounced, and the conservative outrage machine
kicked into gear, fueled by
<https://news.yahoo.com/trump-pence-attack-sen-sanders-190229783.html>
President
Donald Trump.

The chain of events didn’t start by accident: It was orchestrated by the
American Civil Liberties Union, which is coaching activists like Rick as
part of a multi-million dollar, below-the-radar campaign to get the 2020
candidates on record about its civil liberties priorities.

In related news, Vox reports
<https://www.vox.com/2019/5/3/18528319/poll-felons-right-to-vote> on a poll
finding that 69% of registered voters believe that incarcerated felons
should not be allowed to vote, and 89% believe that those incarcerated for
terrorism-related crimes shouldn’t be allowed to vote.
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Posted in felon voting <https://electionlawblog.org/?cat=66>
“The Failures of the Mueller Report’s Campaign Finance Analysis”
<https://electionlawblog.org/?p=105009>
Posted on May 5, 2019 5:49 am <https://electionlawblog.org/?p=105009> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Bob Bauer’s take
<https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campaign-finance-analysis/>
on
Just Security: “The Report treats the campaign finance issues almost
cursorily—one could say, superficially— even to the point of failing to
identify and address all the applicable law. The results are an
unconvincing decision to decline any prosecutions, and a major question
about the enforcement of this law in 2020 and beyond.”

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Posted in campaign finance <https://electionlawblog.org/?cat=10>
Reaction to Ohio Gerrymandering Decision
<https://electionlawblog.org/?p=105007>
Posted on May 5, 2019 5:44 am <https://electionlawblog.org/?p=105007> by Dan
Tokaji <https://electionlawblog.org/?author=5>

On Friday, Nick Stephanopoulos offered his cogent analysis
<https://electionlawblog.org/?p=104996> of the three-judge district court
decision <https://electionlawblog.org/?p=104993>holdings that Ohio’s
congressional districts violate the Equal Protection Clause and First
Amendment right of association.

Politico notes
<https://www.politico.com/story/2019/05/03/ohio-redistricting-gerrymandering-1301141>
that
the judges on the case were ” [Sixth Circuit Judge] Karen Nelson Moore,
appointed by President Bill Clinton; [U.S. District Judge] Timothy Black,
appointed by President Barack Obama; and [U.S. District Judge] Michael
Watson, who was appointed by President George W. Bush.”

Cleveland.com discusses
<https://www.cleveland.com/open/2019/05/ohio-has-42-days-to-redraw-congressional-map-during-hectic-legislative-session.html>
the
challenge that faces the Ohio legislature in enacting a new plan by June
14, as the district court ordered, given that this is “an already busy time
for Republican lawmakers in Columbus, who are reckoning with passing a
state budget, as well as whether to bail out two nuclear plants.”

As Rick anticipated <https://electionlawblog.org/?p=104993>, Ohio Attorney
General Dave Yost has confirmed that the state will ask the Supreme Court
to issue a stay of its ruling according to the Columbus Dispatch
<https://www.ohio.com/news/20190503/state-will-appeal-redistricting-ruling-to-us-supreme-court>
.

Paul Waldman and Greg Sargent
<https://www.washingtonpost.com/opinions/2019/05/03/court-just-dealt-blow-rigged-elections-it-probably-wont-last/?utm_term=.b3c68e006c3a>
offer
a pessimistic take for opponents of gerrymandering, based on the oral
arguments in the pending cases out of North Carolina and Maryland,
suggesting that “conservative justices seem to believe there’s no workable
standard to distinguish between a map gerrymandered so unfairly that it
violates the Constitution, and one that doesn’t…”

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Posted in redistricting <https://electionlawblog.org/?cat=6>
Josh Douglas on Who.What.Why. <https://electionlawblog.org/?p=105005>
Posted on May 5, 2019 5:16 am <https://electionlawblog.org/?p=105005> by Dan
Tokaji <https://electionlawblog.org/?author=5>

A podcast
<https://whowhatwhy.org/2019/05/03/green-shoots-in-the-future-of-voting/> on
his new book
<https://www.penguinrandomhouse.com/books/605357/vote-for-us-by-joshua-a-douglas/9781633885103/>
,*Vote for US*: ” Douglas argues that change best happens locality by
locality and that, in spite of all the bad news, he is seeing many new
efforts at voter expansion. Promising local experiments, mostly in blue
states but some bipartisan efforts as well, include felon
re-enfranchisement and lowering the voting age.”
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Posted in voting <https://electionlawblog.org/?cat=31>
Does Voter Suppression Really Suppress Voting?
<https://electionlawblog.org/?p=105002>
Posted on May 5, 2019 4:51 am <https://electionlawblog.org/?p=105002> by Dan
Tokaji <https://electionlawblog.org/?author=5>

The WSJ Editorial Board
<https://www.wsj.com/articles/the-voter-suppression-myth-11556920484?emailToken=7e122e2328f429db7cc4e8856be7f89e/mdekmjYLSlUsde7mNmZgaCIKfXxHF0bUXg0gWSDPOn2zFLYvidLqWfCTkcMiL3O/K00jeIRlpHEpxI19r7g2A%3D%3D&reflink=article_email_share>
thinks
not:

Democrats accuse Republicans of suppressing the minority vote with laws to
ensure ballot integrity. But then how do they explain record minority
turnout last November? If Republicans were trying to stop minorities from
voting, their schemes were inept.

For a more sophisticated take on the issue, see Jacob Neilheisel and Rich
Horner’s new article
<https://www.liebertpub.com/doi/abs/10.1089/elj.2018.0500> in *Election Law
Journal*, “Voter Identification Requirements and Aggregate Turnout in the
U.S.: How Campaigns Offset the Costs of Turning Out When Voting Is Made
More Difficult.” Here’s the abstract:

In spite of the attention that has been lavished upon the subject in recent
years, scholars have found little evidence demonstrating that voter
identification laws have a substantial effect (either positive or negative)
on aggregate levels of voter turnout. Recent work by Valentino and Neuner
(2017) suggests that the disconnect between the predictions of rational
choice models of voter turnout that focus on the costs of voting and the
observed effects (or lack thereof) of voter ID requirements can be
explained with reference to the countervailing influence of mobilization
efforts on the part of Democrats. We test this proposition directly in this
article using data on the location of Democratic campaign field offices
over three presidential election cycles (2004, 2008, and 2012) coupled with
information on the spread of voter ID requirements and other policies
regulating access to the ballot box. Using a series of
difference-in-difference models, we find some support for the notion that
campaigns can effectively subsidize the costs of new legal-institutional
barriers to the franchise.

In other words, they find some evidence that Democratic voter mobilization
effectively countered the effects of voter suppression laws.

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Posted in voter id <https://electionlawblog.org/?cat=9>
Foley on Ranked-Choice Voting in Presidential Elections
<https://electionlawblog.org/?p=104999>
Posted on May 5, 2019 4:37 am <https://electionlawblog.org/?p=104999> by Dan
Tokaji <https://electionlawblog.org/?author=5>

Ned Foley in Politico Magazine
<https://www.politico.com/magazine/story/2019/05/04/electoral-college-reform-2020-226792>,
suggesting that Electoral College reformers ” focus on a select group of
battleground states and get them to adopt ranked-choice voting—or, if they
prefer, a conventional runoff—in presidential elections”:

The key is to focus reform efforts on swing states—the battlegrounds where
elections are decided—and get them to embrace, via ballot initiatives or
legislation, electoral systems that reward only candidates who win a
majority of the vote.

Ideally, the whole country would adopt this reform, but just having the
five main “toss-up” states on board in 2020 would eliminate a significant
amount of the risk that the election results could go against the national
popular vote.

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Posted in electoral college <https://electionlawblog.org/?cat=44>
The Ohio Gerrymandering Decision <https://electionlawblog.org/?p=104996>
Posted on May 3, 2019 4:33 pm <https://electionlawblog.org/?p=104996>
by Nicholas
Stephanopoulos <https://electionlawblog.org/?author=12>

Today’s decision
<https://www.scribd.com/document/408562889/Ohio-Redistricting-decision>
striking
down Ohio’s congressional districts as unconstitutional partisan
gerrymanders is notable in several respects. *First*, it was again
unanimous. By my count, this is the fourth consecutive decision (following
those in Maryland, Michigan, and North Carolina) in which every judge has
agreed that certain challenged districts are unlawful. Adding the Wisconsin
case to the set, fourteen out of fifteen judges have ruled in favor of the
plaintiffs in the recent wave of partisan gerrymandering litigation.
Moreover, six of these judges have ruled *against* districts that were
drawn by the party of the president who appointed them (two Democratic
appointees in Maryland, one Republican appointee in Michigan, one
Republican appointee in North Carolina, one Republican appointee in Ohio,
and one Republican appointee in Wisconsin). In an era of growing judicial
polarization, this level of bipartisan consensus is remarkable.

*Second*, the Ohio decision adopted the same partisan vote dilution
standard as the earlier Michigan, North Carolina, and Wisconsin rulings.
Under this test, “Plaintiffs must prove (1) a discriminatory partisan
intent in the drawing of each challenged district and (2) a discriminatory
partisan effect on those allegedly gerrymandered districts’ voters. Then,
(3) the State has an opportunity to justify each district on other,
legitimate legislative grounds.” The Ohio decision was also particularly
clear about the role of plan-wide measures of partisan asymmetry in this
analysis. These metrics “reveal if, and by how much, the map benefits one
party over another by facilitating the more efficient translation of that
party’s votes into seats.” “Multiple partisan-bias metrics should be used,
and consistency across metrics and across data sets is key in evaluating
this type of evidence.” Districts should thus be invalidated only if they
belong to a map whose “partisan-bias metrics all point in the same
direction” and reveal that “the redistricting plan is an historical outlier
in its partisan effects.”

*Third*, the Ohio decision was the first to confront a serious argument
that the Voting Rights Act justified the map’s bias. According to the
defendants, the VRA required them to draw a black-majority district in
northeastern Ohio (District 11, stretching from Cleveland to Akron) and
thus to pack Democrats in that district. But as the court pointed out,
there was no evidence of “effective white bloc-voting” in northeastern
Ohio, meaning that no VRA claim in that area could succeed. In addition,
the defendants made District 11 much more heavily black than it needed to
be to elect a black-preferred candidate. “A 45% BVAP would be sufficient to
elect the black-preferred candidate by a comfortable margin.”

And *fourth*, the Ohio decision was the first to analyze the plaintiffs’
associational claim using *Anderson-Burdick* balancing—a framework that Dan
Tokaji
<https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3761&context=wmlr>
has
long advocated. As Dan has explained, *Anderson-Burdick* properly focuses
courts’ attention on how *severe* the plaintiffs’ associational burdens
are. Only heavier burdens trigger heightened scrutiny; lighter burdens, of
the kind imposed by many district maps, result in something closer to
rational basis review. *Anderson-Burdick* also properly instructs courts to
*balance* the plaintiffs’ associational burdens against the government’s
justifications for them. It thus avoids condemning all (or even most) maps
designed by a single party: a scenario that several justices have warned
against. Time will tell if the Ohio court’s use of *Anderson-Burdick* proves
as durable as the partisan vote dilution standard it adopted.
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Posted in Uncategorized <https://electionlawblog.org/?cat=1>
Breaking: Unanimous 3-Judge Court, in 300-Page Opinion, Strikes Ohio
Congressional Districts as Unconstitutional Partisan Gerrymanders
<https://electionlawblog.org/?p=104993>
Posted on May 3, 2019 10:07 am <https://electionlawblog.org/?p=104993> by Rick
Hasen <https://electionlawblog.org/?author=3>

You can find the opinion at this link
<https://www.scribd.com/document/408562889/Ohio-Redistricting-decision>.
>From the introduction:

We join the other federal courts that have held partisan gerrymandering
unconstitutional and developed substantially similar standards for
adjudicating such claims. We are convinced by the evidence that this
partisan gerrymander was intentional and effective and that no legitimate
justification accounts for its extremity. Performing our analysis district
by district, we conclude that the 2012 map dilutes the votes of Democratic
voters by packing and cracking them into districts that are so skewed
toward one party that the electoral outcome is predetermined. We conclude
that the map unconstitutionally burdens associational rights by making it
more difficult for voters and certain organizations to advance their aims,
be they pro-Democratic or pro-democracy. We conclude that by creating such
a map, the State exceeded its powers under Article I of the Constitution.
Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan
gerrymander, enjoin its use in the 2020 election, and order the enactment
of a constitutionally viable replacement.

I suspect that Ohio, as Michigan just did when faced with a similar ruling,
will ask the United States Supreme Court to stay this ruling pending the
decision in the pending partisan gerrymandering cases out of North Carolina
and Maryland. I expect the Court will grant that request.

What the Supreme Court ends up doing here is uncertain, but it is quite
remarkable how many lower courts, many of them unanimous, have now issued
decisions, along similar contours <https://electionlawblog.org/?p=104888>,
finding partisan gerrymandering to violate one or more provisions of the
U.S. Constitution.
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Posted in redistricting <https://electionlawblog.org/?cat=6>, Supreme Court
<https://electionlawblog.org/?cat=29>

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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