[EL] ELB News and Commentary 9/6/19

Thu Sep 5 22:53:33 PDT 2019

Ex-FEC Commissioner Petersen Left FEC Without a Quorum In Order to Work at Holtzman Vogel<https://electionlawblog.org/?p=107206>
Posted on September 5, 2019 10:51 pm<https://electionlawblog.org/?p=107206> by Rick Hasen<https://electionlawblog.org/?author=3>

Anna Massoglia:<https://twitter.com/annalecta/status/1169631649296003072>
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Anna Massoglia<https://twitter.com/annalecta>
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<https://twitter.com/annalecta/status/1169631649296003072>

Ex- at FEC<https://twitter.com/FEC> vice chair Matthew Petersen—whose departure effectively thwarts any FEC enforcement action going into 2020 elections—is joining Holtzman Vogel Josefiak Torchinsky, a political law firm known for creative legal maneuvers hiding "dark money" donors https://politi.co/2ZMAQM4 <https://t.co/8EL1aDrPjx>
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Posted in federal election commission<https://electionlawblog.org/?cat=24>

“An Op-Ed From the Future on Election Security”<https://electionlawblog.org/?p=107204>
Posted on September 5, 2019 11:11 am<https://electionlawblog.org/?p=107204> by Rick Hasen<https://electionlawblog.org/?author=3>

Must-read Alex Stamos in Lawfare.<https://www.lawfareblog.com/op-ed-future-election-security>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

What’s Going to Happen with a Challenge to North Carolina’s Congressional District Partisan Gerrymander? Two Significant Hurdles to a Lawsuit.<https://electionlawblog.org/?p=107202>
Posted on September 5, 2019 9:34 am<https://electionlawblog.org/?p=107202> by Rick Hasen<https://electionlawblog.org/?author=3>

Democrats are now pondering<https://www.nbcnews.com/politics/politics-news/democrats-eye-move-against-gop-congressional-gerrymandering-north-carolina-n1049686> a state court challenge to North Carolina’s partisan gerrymandering of the state’s 13 congressional districts, following a state court ruling<https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf> that the state legislative districts are a partisan gerrymander<https://electionlawblog.org/?p=107177>. The U.S. Supreme Court in the Rucho<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf> case rejected a challenge to North Carolina’s congressional districts based on the U.S. constitution but that would not preclude a state constitutional challenge. But there are two significant hurdles.

First, it is not clear that there is enough time to bring such a challenge and get it done in time to affect the 2020 elections, the last elections to be used under the existing maps before the next round of redistricting. I am surprised there was not a state case against the congressional districts in the works earlier, and given discovery and potential appeals, and the upcoming calendar, it may just be too late. Even if state courts do not follow the Purcell Principle<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>, at some point changing district lines comes too late.

Second, it is not clear to me that the ruling earlier this week has any precedential value in a challenge to congressional maps. Nick Stephanapoulos writes<https://electionlawblog.org/?p=107198>: “the North Carolina decision is just as applicable to congressional as to state legislative districts. North Carolina’s gerrymandered congressional plan—the plan the Supreme Court failed to invalidate in Rucho—is thus on thin ice. And so will be any efforts by the North Carolina legislature to gerrymander (or even to consider partisanship) in the 2020 redistricting cycle. As long as the North Carolina decision remains good law, North Carolina maps must be nonpartisan.” But I’m not sure that this is right.

The recent state decision was a state trial court, and I do not know that it is binding precedent in any challenge to the congressional maps. Perhaps under North Carolina law the new challenge would go before the same three-judge court. If not, generally speaking, trial court rulings are not precedential for other trial courts. Indeed, as I’ve explained<https://electionlawblog.org/?p=107179>, one of the reasons that North Carolina Republicans may have thrown in the towel on the state legislative race was to avoid a likely adverse opinion from the state supreme court, which would have been a definitive ruling on the meaning of the state constitution.

So we will see what the next steps bring, but it is far from automatic that those congressional districts get changed for 2020.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“The Battle Over the Files of a Gerrymandering Mastermind”<https://electionlawblog.org/?p=107200>
Posted on September 5, 2019 9:15 am<https://electionlawblog.org/?p=107200> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/09/04/us/gerrymander-north-carolina-hofeller.html?smid=nytcore-ios-share>:

At the heart of a decisive court ruling on Tuesday<https://www.nccourts.gov/assets/inline-files/18-CVS-14001_Final-Judgment.pdf?Bwsegeo1VV20zhJsp9hoClvmoRp3A6AR> striking down North Carolina’s state legislative maps was evidence culled from the computer backups of the man who drew them: Thomas B. Hofeller, the Republican strategist and master of gerrymandering, who died last year<https://www.nytimes.com/2018/08/21/obituaries/thomas-hofeller-republican-master-of-political-maps-dies-at-75.html?module=inline>.

Documents from the backups, which surfaced after his death, were also central to the legal battle over adding a citizenship question to the 2020 census. An enormous stash of digital files, covering Mr. Hofeller’s work in almost every state, has yet to be examined.

But in a state court in Raleigh, N.C., another courtroom battle is underway. Its aim is to ensure that those files are never publicly scrutinized.

Republican political figures filed a flurry of motions<https://www.nccourts.gov/locations/wake-county/cases-of-public-interest> on Friday in the same court that issued the gerrymandering decision, all seeking to seal or destroy the 75,000-plus files that contain more than 100,000 documents and thousands of maps. Among them were a South Carolina lawyer, Dalton L. Oldham, who was a partner with Mr. Hofeller in a consultancy, Geographic Strategies L.L.C., that advised the Republican Party and party leaders nationwide on redistricting.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

The Supreme Court as Gerrymandering Outlier<https://electionlawblog.org/?p=107198>
Posted on September 5, 2019 7:54 am<https://electionlawblog.org/?p=107198> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Remarkably, yesterday’s decision<https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf> striking down North Carolina’s state legislative maps as partisan gerrymanders was the eighth straight ruling against gerrymandering by a state or lower federal court. Florida and Pennsylvania state courts preceded yesterday’s decision by a three-judge North Carolina trial court. And federal district courts invalidated gerrymanders in Maryland, Michigan, North Carolina, Ohio, and Wisconsin before their efforts were quashed by the Supreme Court in Rucho. The Supreme Court remains the only one in recent years to decline to nullify a gerrymander (let alone to hold that no gerrymander can ever be nullified). The Supreme Court is thus the outlier in the American judiciary, the lone exception to an ever-spreading judicial norm against gerrymandering.

The North Carolina trial court confirmed the Supreme Court’s isolation in a series of pointed passages. It repeatedly cited the conclusions of the federal district court that was reversed in Rucho—about standing, the validity of computer simulations of district maps, and even the appropriate legal standard. The North Carolina court also relied heavily on Justice Kagan’s dissent in Rucho, explicitly adopting her proposed test of “(1) intent, (2) effects, and (3) causation.” And the North Carolina court grounded this test in state constitutional analogues to the First Amendment and the Equal Protection Clause: the precise provisions the Rucho majority thought “provide[] no basis whatever to guide the exercise of judicial discretion.”

Beyond further demonstrating that courts are perfectly capable of deciding gerrymandering claims, the North Carolina decision is notable in several respects. First, it embraced the same three-part standard as the Michigan, North Carolina, Ohio, and Wisconsin district courts (as well as Justice Kagan). It didn’t follow the lead of the Pennsylvania Supreme Court, which focused on districts’ compliance with traditional criteria. Second, however, the North Carolina decision established the plans’ discriminatory effects solely by comparing them to computer-simulated maps. In contrast, the Michigan, North Carolina, Ohio, and Wisconsin district courts relied on both computer simulations and evidence that the challenged plans were more asymmetric than almost all plans historically.

Third, the North Carolina court’s remedy was quite stringent: the complete extirpation of partisanship from redistricting. It instructed the legislature that “[p]artisan considerations and election results data shall not be used in the drawing of . . . the Remedial Maps.” If this directive is followed, the computer simulations suggest that Democrats should win five to ten more House seats (depending on electoral conditions) and two to four more Senate seats. And fourth, the North Carolina decision is just as applicable to congressional as to state legislative districts. North Carolina’s gerrymandered congressional plan—the plan the Supreme Court failed to invalidate in Rucho—is thus on thin ice. And so will be any efforts by the North Carolina legislature to gerrymander (or even to consider partisanship) in the 2020 redistricting cycle. As long as the North Carolina decision remains good law, North Carolina maps must be nonpartisan.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Summer 2019 Election Law Round-Up”<https://electionlawblog.org/?p=107195>
Posted on September 5, 2019 7:45 am<https://electionlawblog.org/?p=107195> by Rick Hasen<https://electionlawblog.org/?author=3>

Goldfeder and Perez<https://www.stroock.com/wp-content/uploads/2019/08/HowNewYorkSuppressesTheVote-NYLJ-08.28.19.pdf> in the NYLJ.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Republicans fear drubbing in next round of redistricting”<https://electionlawblog.org/?p=107193>
Posted on September 5, 2019 7:15 am<https://electionlawblog.org/?p=107193> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/09/05/republicans-redistricting-democrats-1481833?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

Democrats were caught napping in the 2010 election ahead of the last round of redistricting — and it cost them control of Congress for nearly a decade.

Now Republicans are warning the same thing could happen to them.

Senior Republicans concede they’re at risk of losing dozens of state-level elections that will determine who wields power over the post-2020 congressional map — and potentially which party controls the chamber for the following 10 years. While Republicans are establishing a massive national infrastructure devoted to reelecting President Donald Trump and winning congressional majorities, party officials say the state legislative races are being overlooked.

The trepidation comes as an array of well-funded Democratic groups — including one with the backing of former President Barack Obama and ex-Attorney General Eric Holder — are flooding cash into Virginia, a key redistricting battleground that’s holding state legislative elections this fall.

Democrats are expected to plow tens of millions into races next year.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

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