[EL] ELB News and Commentary 9/4/19

Wed Sep 4 08:18:50 PDT 2019

“The Coming Reckoning Over the Electoral College; A ploy to bring the issue to the Supreme Court could backfire.”<https://electionlawblog.org/?p=107185>
Posted on September 4, 2019 8:16 am<https://electionlawblog.org/?p=107185> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/09/electoral-college-supreme-court-lessig-faithless-electors.html> for Slate. It begins:

Since the 2016 election, some Democrats have raged against the Electoral College as an anti-democratic institution that does not reflect the will of the people. Some Republicans have defended the institution as protecting the power of small states and preserving the federal system. But whether you like the Electoral College in theory or not, it turns out that the actual rules used to implement its use are creaky and dangerous. Indeed, thanks to new conflicting rulings, the institution could generate chaos and confusion in 2020 or in a future presidential election.

In August, the United States Court of Appeals for the 10th Circuit held<https://equalcitizens.us/wp-content/uploads/2019/08/CA10-Elector-Case-Decision.pdf> that the state of Colorado violated the Constitution in 2016 when it removed Micheal Baca, a presidential elector who acted “faithlessly” and voted for John Kasich over Hillary Clinton, who was chosen by the state’s voters. It followed a contrary ruling from the Washington state Supreme Court, which held<https://equalcitizens.us/wp-content/uploads/2019/08/Guerra-Opinion-Exhibit-1-1.pdf> that the state could fine electors $1,000 for being faithless. Now, Harvard Law professor Larry Lessig is planning<https://twitter.com/lessig/status/1163950029041782788> to bring the Washington case to the United States Supreme Court—and in doing so, hopes to blow up the current Electoral College system.

It’s a well-intentioned, audacious gambit. And it could backfire spectacularly.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107185&title=%E2%80%9CThe%20Coming%20Reckoning%20Over%20the%20Electoral%20College%3B%20A%20ploy%20to%20bring%20the%20issue%20to%20the%20Supreme%20Court%20could%20backfire.%E2%80%9D>
Posted in electoral college<https://electionlawblog.org/?cat=44>

“North Carolina court rules partisan state legislative districts unconstitutional”<https://electionlawblog.org/?p=107183>
Posted on September 4, 2019 7:38 am<https://electionlawblog.org/?p=107183> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/north-carolina-court-rules-partisan-state-legislative-districts-unconstitutional/2019/09/03/4a137034-ce8a-11e9-8c1c-7c8ee785b855_story.html>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107183&title=%E2%80%9CNorth%20Carolina%20court%20rules%20partisan%20state%20legislative%20districts%20unconstitutional%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Cybersecurity 202: DNC move against phone-in caucuses pits cybersecurity vs. voter participation”<https://electionlawblog.org/?p=107181>
Posted on September 4, 2019 7:36 am<https://electionlawblog.org/?p=107181> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/09/03/the-cybersecurity-202-dnc-move-against-phone-in-caucuses-pits-cybersecurity-vs-voter-participation/5d6d596a602ff171a5d73390/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107181&title=%E2%80%9CThe%20Cybersecurity%20202%3A%20DNC%20move%20against%20phone-in%20caucuses%20pits%20cybersecurity%20vs.%20voter%20participation%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

North Carolina Republicans Won’t Appeal Gerrymandering Ruling, Promise “Nonpartisan” Map. What’s the End Game?<https://electionlawblog.org/?p=107179>
Posted on September 3, 2019 3:13 pm<https://electionlawblog.org/?p=107179> by Rick Hasen<https://electionlawblog.org/?author=3>

Following up on this post <https://electionlawblog.org/?p=107177> about today’s state court ruling<https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf>, North Carolina Republicans have thrown in the towel<https://twitter.com/byamberphillips/status/1169008388077969415>:
[https://pbs.twimg.com/profile_images/647145751110402048/zZ7_-XnZ_normal.jpg]<https://twitter.com/byamberphillips>
<https://twitter.com/byamberphillips>
Amber Phillips<https://twitter.com/byamberphillips>
✔@byamberphillips<https://twitter.com/byamberphillips>

<https://twitter.com/byamberphillips/status/1169008388077969415>

A looong legal battle over these state legislative districts in North Carolina is over. No more appeals. Democrats and opponents of partisan gerrymandering have won.
[View image on Twitter]<https://twitter.com/byamberphillips/status/1169008388077969415/photo/1>
<https://twitter.com/intent/like?tweet_id=1169008388077969415>
131<https://twitter.com/intent/like?tweet_id=1169008388077969415>
3:04 PM - Sep 3, 2019<https://twitter.com/byamberphillips/status/1169008388077969415>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/byamberphillips/status/1169008388077969415>
60 people are talking about this<https://twitter.com/byamberphillips/status/1169008388077969415>

Why aren’t the Republicans continuing to fight this, given the unrelenting path they’ve taken before? Here are a few possibilities:
1.       They know they will lose in the Democratic-dominated state supreme court, and there is no viable path to federal court review.
2.       They would rather NOT get a holding from the state Supreme Court (this was a three-judge trial court ruling), which would have greater precedential value.
3.       They hope they would have a better chance to have their “nonpartisan” map accepted by the Supreme Court if they throw in the towel (that is, they are trying to avoid a worse court-drawn map).
4.       They will use this ruling to run against the Supreme Court and try for a state constitutional amendment to give them the right to engage in partisan gerrymandering after the 2020 census.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107179&title=North%20Carolina%20Republicans%20Won%E2%80%99t%20Appeal%20Gerrymandering%20Ruling%2C%20Promise%20%E2%80%9CNonpartisan%E2%80%9D%20Map.%20What%E2%80%99s%20the%20End%20Game%3F>
Posted in redistricting<https://electionlawblog.org/?cat=6>

Breaking: Unanimous State Court in North Carolina Holds State Legislative Districts Are Unconstitutional Partisan Gerrymanders Under State Constitution; What It Means and What Comes Next<https://electionlawblog.org/?p=107177>
Posted on September 3, 2019 1:25 pm<https://electionlawblog.org/?p=107177> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the 357-page unanimous ruling at this link<https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf>. Given the state Supreme Court has a 6-1 Democratic majority (including now Justice Anita Earls), this ruling could well be upheld on appeal.

This is a huge development that will put the Republican-led North Carolina General Assembly in a tough position. Because this is decided as a matter of state constitutional law, it would be very hard to find a federal issue to take this to the United States Supreme Court for reversal.

It might be possible to try to amend the state constitution to allow for partisan gerrymandering, but that too might be a tough sell.

And I expect plaintiffs could mount a similar effort against the state’s congressional redistricting plan, which the US Supreme Court upheld against federal constitutional challenge in the Rucho case.

Very, very big development indeed.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107177&title=Breaking%3A%20Unanimous%20State%20Court%20in%20North%20Carolina%20Holds%20State%20Legislative%20Districts%20Are%20Unconstitutional%20Partisan%20Gerrymanders%20Under%20State%20Constitution%3B%20Wh>
Posted in redistricting<https://electionlawblog.org/?cat=6>

Fifth Circuit Releases Opinion and Dissent Finding Mississippi District Violates Section 2 of the Voting Rights Act<https://electionlawblog.org/?p=107175>
Posted on September 3, 2019 12:59 pm<https://electionlawblog.org/?p=107175> by Rick Hasen<https://electionlawblog.org/?author=3>

This set <http://www.ca5.uscourts.gov/opinions/pub/19/19-60133-CV2.pdf> of three opinions raises some important, unresolved VRA section 2 questions. This one could well go en banc given Judge Willett’s dissent and the increasingly hard conservative makeup of the Fifth Circuit.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107175&title=Fifth%20Circuit%20Releases%20Opinion%20and%20Dissent%20Finding%20Mississippi%20District%20Violates%20Section%202%20of%20the%20Voting%20Rights%20Act>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“New York’s Arcane Election Laws Continue to Suppress Voters”<https://electionlawblog.org/?p=107173>
Posted on September 3, 2019 11:32 am<https://electionlawblog.org/?p=107173> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder<https://www.stroock.com/wp-content/uploads/2019/08/JerryGoldfederTimesUnion082819.pdf> in the Albany Times-Union.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107173&title=%E2%80%9CNew%20York%E2%80%99s%20Arcane%20Election%20Laws%20Continue%20to%20Suppress%20Voters%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“States Upgrade Election Equipment — Wary Of ‘A Race Without A Finish Line'”<https://electionlawblog.org/?p=107171>
Posted on September 3, 2019 7:59 am<https://electionlawblog.org/?p=107171> by Rick Hasen<https://electionlawblog.org/?author=3>

Pam Fessler<https://www.npr.org/2019/09/03/756007555/states-upgrade-election-equipment-wary-of-a-race-without-a-finish-line> reports for NPR.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107171&title=%E2%80%9CStates%20Upgrade%20Election%20Equipment%20%E2%80%94%20Wary%20Of%20%E2%80%98A%20Race%20Without%20A%20Finish%20Line%27%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

Steven Rosenfeld on What Went Wrong With Democrats’ Attempts at Virtual Voting in Iowa, Nevada Caucuses<https://electionlawblog.org/?p=107169>
Posted on September 3, 2019 7:14 am<https://electionlawblog.org/?p=107169> by Rick Hasen<https://electionlawblog.org/?author=3>

Not read<https://www.salon.com/2019/08/31/dnc-reverses-course-on-virtual-voting-in-2020-iowa-and-nevada-caucuses_partner/>y for prime time.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D107169&title=Steven%20Rosenfeld%20on%20What%20Went%20Wrong%20With%20Democrats%E2%80%99%20Attempts%20at%20Virtual%20Voting%20in%20Iowa%2C%20Nevada%20Caucuses>
Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

--
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190904/ea9e95d0/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190904/ea9e95d0/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 1655 bytes
Desc: image002.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190904/ea9e95d0/attachment.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 94569 bytes
Desc: image003.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190904/ea9e95d0/attachment-0001.jpg>