[EL] census bombshell; more news

Thu May 30 09:10:35 PDT 2019

“New Memo Reveals the Census Question Was Added to Boost White Voting Power; Why it won’t matter to the Supreme Court’s conservatives.”<https://electionlawblog.org/?p=105357>
Posted on May 30, 2019 9:07 am<https://electionlawblog.org/?p=105357> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/05/census-memo-supreme-court-conservatives-white-voters-alito.html> for Slate. It begins:

If we had a fair Supreme Court not driven by partisanship in its most political cases, Thursday’s blockbuster revelation<https://www.nytimes.com/2019/05/30/us/census-citizenship-question-hofeller.html?action=click&module=Top%20Stories&pgtype=Homepage> in the census case would lead the court to unanimously rule in Department of Commerce v. New York<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-966.html> to exclude the controversial citizenship question from the decennial survey. Those newly reveal documents show that the Trump administration’s purpose in putting the citizenship question on the upcoming census was not its stated one to help Hispanic voters under the Voting Rights Act, but rather to create policy that would be “a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic Whites.” It’s difficult to produce a greater smoking gun than explicitly saying you are hoping to help the GOP by increasing white voting power. But this revelation, coming from the hard drive of a deceased Republican political operative and made available to Common Cause by his estranged daughter, is ironically more likely to lead the Republican-appointed conservative justices on the Supreme Court to allow the administration to include the question that would help states dilute the power of Hispanic voters.

It concludes:

The question whether it is permissible to draw districts in the way Hofeller wanted is an open one. Ed Blum<https://www.aclu.org/blog/racial-justice/affirmative-action/meet-edward-blum-man-who-wants-kill-affirmative-action-higher> brought a 2016 case, Evenwel v. Abbott<https://scholar.google.com/scholar_case?case=1873699076724766700&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, in which the court unanimously rejected Blum’s argument that the state of Texas was constitutionally required to draw districts with equal numbers of eligible voters. But the majority opinion by Justice Ruth Bader Ginsburg did not go further and reach the question whether drawing districts in this way—which would exclude not just noncitizens but also children and felons from the count—violates the Constitution’s equal protection clause. “Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population,” Ginsburg concluded.

Justices Clarence Thomas and Samuel Alito, however, wrote concurrences affirming their belief that states have the right to draw districts in this way. There is good reason to believe that the other conservative justices would come along should they have to decide the issue.

The newly revealed census documents may now give them the opportunity to do just that.

All of that means that the Supreme Court will likely go along with Ross’ true purpose in including the citizenship question on the census: to allow states to draw districts with equal numbers of voter-eligible persons rather than total persons. The smoking-gun evidence showing that government officials lied in offering the Voting Rights Act excuse for including the question likely will be seen by these justices as irrelevant if the real reason is a permissible one.

This is not how the census case should be decided. The government should have to offer its real reasons for taking government actions and defend its actions on those terms. And even if it is otherwise constitutionally permissible to experiment with different understandings of how to draw districts with equal populations under the equal protection clause, the government should not be able to do so if the purpose is to dilute the power of political adversaries and minority voters, as demonstrated in this case by the new revelations.

Thursday’s revelations should be damning. The ACLU is already seeking sanctions<https://www.aclu.org/legal-document/census-sanctions-motion> in the trial court in the census case for government officials lying about the real reason for including the citizenship question. But instead the revelations may help to prop up a case that should embarrass government lawyers to argue.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Voter Registration Is Surging—So Republicans Want to Criminalize It”<https://electionlawblog.org/?p=105355>
Posted on May 30, 2019 8:07 am<https://electionlawblog.org/?p=105355> by Rick Hasen<https://electionlawblog.org/?author=3>

Eliza Newlin Carney<https://prospect.org/article/voter-registration-surging-so-republicans-want-criminalize-it>:

In the wake of a midterm that saw surging turnout<https://www.brookings.edu/research/2018-voter-turnout-rose-dramatically-for-groups-favoring-democrats-census-confirms/> by non-white, young, and urban voters—all blocs that tend to favor Democrats—a backlash in GOP state legislatures was perhaps inevitable. What troubles voting rights advocates is that Republicans have now set out to penalize<https://www.vox.com/policy-and-politics/2019/4/26/18516722/voting-restrictions-registration-tennessee-texas-penalties-fines> not just voters but the groups trying to register them, in some cases with astronomical fines and jail time that effectively criminalize civic engagement.

The most extreme example is a law newly enacted in Tennessee<https://www.apnews.com/934cfbeca8e1408d8d9ce84c9d9ab5a0> that imposes civil and criminal penalties, including fines of up to $10,000 or more and close to a year in jail, on organizers who submit incomplete registration forms, fail to participate in state-mandated trainings, or fail to submit forms within a ten-day window. The law violates<https://campaignlegal.org/document/league-women-voters-tennessee-v-tre-hargett-complaint> both the First and the 14th Amendments, say civil rights advocates who have filed suit, and also runs afoul of<https://campaignlegal.org/document/league-women-voters-tennessee-v-tre-hargett-nvra-notice-letter> the National Voter Registration Act.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>

“Trump Tweets, and Then Retracts, Statement That Russia Helped Him Get Elected”<https://electionlawblog.org/?p=105353>
Posted on May 30, 2019 7:56 am<https://electionlawblog.org/?p=105353> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/05/30/us/politics/trump-russia-help-elected.html?action=click&module=Top%20Stories&pgtype=Homepage>:

President Trump tweeted on Thursday that Russia helped “me to get elected,” and then quickly retracted the idea.
“No, Russia did not help me get elected,” Mr. Trump told reporters as he departed the White House for Colorado Springs. “I got me elected.” He spoke less than an hour after his Twitter post.

The original comment, a clause in one of several Twitter posts this morning, is an extraordinary admission from Mr. Trump, who has avoided saying publicly that Russia helped him win the presidency in 2016 through its election interference. American intelligence agencies and federal prosecutors have long concluded that Russia tried to influence voters.
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Russia, Russia, Russia! That’s all you heard at the beginning of this Witch Hunt Hoax...And now Russia has disappeared because I had nothing to do with Russia helping me to get elected. It was a crime that didn’t exist. So now the Dems and their partner, the Fake News Media,.....
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Federal subpoena demands records on Andrew Gillum and his campaign for governor”<https://electionlawblog.org/?p=105351>
Posted on May 30, 2019 7:53 am<https://electionlawblog.org/?p=105351> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times<http://www.tampabay.com/florida-politics/buzz/2019/05/30/federal-subpoena-demands-records-on-andrew-gillum-and-his-campaign-for-governor/>:

Andrew Gillum is a focal point of a recently issued federal grand jury subpoena that demands information on the former Democratic candidate for governor, his campaign, his political committee, a wealthy donor, a charity he worked for and a former employer.

The subpoena, obtained by the Tampa Bay Times and previously unreported, could reflect a new level of federal inquiry into Gillum, the former mayor of Tallahassee who narrowly lost to Republican Ron DeSantis last year.

Throughout his campaign last year, Gillum insisted that he was not a target of a sprawling FBI investigation of Tallahassee city hall, which has taken at least three years and resulted in three arrests. Last year, he told the Tallahassee Democrat: “Twenty-plus subpoenas have been issued and not one of them has anything to do with me.”

But the recent one does. Previously, the investigation had centered on corruption inside Tallahassee government, including during Gillum’s time as mayor. The newer subpoena is more focused on Gillum’s 2018 campaign and people and organizations with clear ties to Gillum, but with less obvious connections to Tallahassee city hall.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“The Cybersecurity 202: Democratic base fired up by effort to ban Internet-connected voting machines”<https://electionlawblog.org/?p=105349>
Posted on May 30, 2019 7:50 am<https://electionlawblog.org/?p=105349> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/05/30/the-cybersecurity-202-democratic-base-fired-up-by-effort-to-ban-internet-connected-voting-machines/5cef29301ad2e52231e8e870/?utm_term=.ffcde43c2239>

As the 2020 election approaches, voting security groups are trying to rally the public behind an effort to ban Internet connections from U.S. voting machines that could be hacked by Russia and other foreign adversaries.

And they’re getting an assist from activists on the left, who are still burned by the 2016 election, when Russia hacked troves of Democratic emails and strategically released them to damage the Hillary Clinton campaign.

The joint effort has resulted in a staggering number of people — 50,000 — submitting comments on the issue to the Election Assistance Commission, a federal body that’s rewriting voluntary guidelines for voting machines,the organizing groups told me.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

“All Voting is Local Report Finds Racial, Income and Age Disparities in Provisional Ballots Use in Ohio’s Franklin County”<https://electionlawblog.org/?p=105347>
Posted on May 30, 2019 7:48 am<https://electionlawblog.org/?p=105347> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://allvotingislocal.org/news/all-voting-is-local-report-finds-racial-income-and-age-disparities-in-provisional-ballots-use-in-ohios-franklin-county/>

Franklin County voters are more likely to cast provisional ballots – and have those ballots rejected – than other large counties in Ohio, according to a new analysis of 2018 election data by All Voting is Local released today. The report, Rejected: How the Provisional Ballot System in Franklin County, Ohio Fails Voters<https://allvotingislocal.org/wp-content/uploads/2019/05/2019_AVL-OH_Franklin-Co-Provisional-Ballot-Report.pdf> found Black, low-income and young voters cast a disproportionately high number of provisional ballots and urges county officials to confront the inequities with comprehensive voter education and increased poll worker training.
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Posted in election administration<https://electionlawblog.org/?cat=18>, provisional ballots<https://electionlawblog.org/?cat=67>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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