[EL] ELB News and Commentary 9/16/19

[Rick Hasen]

“Supreme Court Says Judges Are Above Politics. It May Hear a Case Testing That View.”<https://electionlawblog.org/?p=107340>
Posted on September 16, 2019 7:06 am<https://electionlawblog.org/?p=107340> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak NYT Sidebar:<https://www.nytimes.com/2019/09/16/us/politics/supreme-court-judges-partisanship.html>

The court will decide whether to hear the case, Carney v. Adams<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-309.html>, No. 19-309, sometime this fall.

Delaware’s Constitution says that judges affiliated with any one political party can make up no more than a “bare majority” on the state’s highest courts, with the remaining seats reserved for judges affiliated with the “other major political party.”

James R. Adams, a retired lawyer and registered independent, challenged the balancing provision, saying it violated the First Amendment.
“If Delaware had a Constitution that said, you know, a certain race or religion or gender was eliminated from being judges, everyone would say that’s obviously discrimination,” he said in a deposition<https://www.documentcloud.org/documents/6401526-Adams-Sj.html>. Since he was an independent, he said, he was ineligible to be considered for a seat on the state’s three highest courts.

“It’s kind of like those old discrimination cases about whether you’re in the front of the bus or the back of the bus,” Mr. Adams said. “The Delaware Constitution has decided that sometimes independents are allowed in the back of the bus and sometimes they can’t get on the bus.”
David L. Finger, a lawyer for Mr. Adams, said the balancing requirement was an insult to judicial independence. “It assumes,” he said, “that judges cannot put aside their political philosophies to decide the cases before them.”

Supreme Court precedents, the appeals court said, have drawn a line. On the one hand, politics may play no role in the hiring and firing of most government workers. On the other, it is perfectly acceptable to consider politics for those in “policymaking positions.”
In other words, it is unlawful to hire, say, prison guards or tow-truck drivers based on their political affiliations. But it is fine to consider politics in the appointment of officials who have a role in making policy like, say, prosecutors and public information officers.
Which side of the line do judges fall on?
The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled for Mr. Adams<https://www2.ca3.uscourts.gov/opinarch/181045p.pdf>, striking down the balancing requirement.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>


“Warren releases plan to tackle Washington corruption”<https://electionlawblog.org/?p=107338>
Posted on September 16, 2019 7:01 am<https://electionlawblog.org/?p=107338> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://beta.washingtonpost.com/politics/warren-releases-plan-to-tackle-washington-corruption/2019/09/16/4a9c2724-d81e-11e9-adff-79254db7f766_story.html>

Sen. Elizabeth Warren released a new plan Monday to tackle corruption in Washington, part of the Democratic presidential candidate’s ongoing promises to enact “big structural change” if elected.
Warren’s wide-ranging new proposal seeks to dramatically limit the influence of federal lawmakers and lobbyists while also expanding protections for workers. Under the plan, lobbyists would be banned from all campaign fundraising activities — including serving as campaign bundlers — and campaigns themselves would not be able to receive “intangible benefits” such as opposition research from foreign governments.
Under a new definition of “official act,” politicians would not be able to accept gifts or payments in exchange for government action. Senior government officials and members of Congress would be prohibited from serving on for-profit boards, even if they receive no compensation.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, conflict of interest laws<https://electionlawblog.org/?cat=20>


“A Surprise Vote, Thrown Phone And Partisan ‘Mistrust’ Roil N.C. As Maps Are Redrawn”<https://electionlawblog.org/?p=107336>
Posted on September 16, 2019 6:55 am<https://electionlawblog.org/?p=107336> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2019/09/16/760177030/a-surprise-vote-thrown-phone-and-partisan-mistrust-roil-n-c-as-maps-are-redrawn>:

Despite the assertions of Senate leaders, there remains some skepticism about whether the court will agree to enact the maps the legislature approves.

Stanford University professor and election law expert Nathaniel Persily was appointed Friday to help the court review the maps — and help draw new maps if the General Assembly’s lines are deemed unlawful.
“I would be surprised if this court accepts the maps that this General Assembly develops,” said freshman Democrat Sen. Michael Garrett. “I think the behavior of this body and the nearly decade of gamesmanship that’s gone on, there’s just too much mistrust.”

That mistrust has been amplified in recent months with the unearthing of files from longtime Republican strategist Thomas Hofeller<https://www.npr.org/2019/06/06/730260511/redistricting-gurus-hard-drives-could-mean-legal-political-woes-for-gop>, who died in 2018. Hofeller was thought of as something of a gerrymandering wizard, and the files, which have been reviewed by The New Yorker<https://www.newyorker.com/news/news-desk/the-secret-files-of-the-master-of-modern-republican-gerrymandering> and The New York Times<https://www.nytimes.com/2019/09/10/us/republican-gerrymander-thomas-hofeller.html>, added new details about his involvement in helping North Carolina lawmakers draw the maps to such a Republican advantage….

But an analysis done by Wang of the Princeton Gerrymandering Project found that the House map still contained between “one-half and two-thirds of the partisan advantage that was present in the illegal gerrymander.”
“To make an analogy to card games, a stacked deck can’t produce a fair deal,” Wang wrote. “And I have some questions about the deck.”
The whole process took place against a backdrop of extreme divide and tension last week that culminated on Wednesday when Republicans sprang a surprise vote on Democrats that had lawmakers screaming<https://www.npr.org/2019/09/11/759899423/north-carolina-republicans-pass-budget-by-holding-surprise-vote> at each other on the House floor.
Later that day, a Democratic senator grabbed a reporter’s phone and threw it.
And all week, accusations flew about maps being drawn in secret and violations of the court order.
“It is a very intense, very partisan, very polarized environment that the state has been going through since 2008 really,” said J. Michael Bitzer, a political scientist at Catawba College in North Carolina.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Federal judge dismisses voting security lawsuit in Tennessee”<https://electionlawblog.org/?p=107334>
Posted on September 14, 2019 1:40 pm<https://electionlawblog.org/?p=107334> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.yahoo.com/news/judge-dismisses-federal-voting-security-220720950.html>:

A federal judge dismissed a lawsuit Friday challenging the security of voting machines in Tennessee’s largest county and calling for a switch to a handwritten ballot and a voter-verifiable paper trial.

U.S. District Judge Thomas Parker ruled that the lawsuit filed by a group of Shelby County voters in October 2018 failed to show that any harm has come to the plaintiffs and that they have no standing to bring the suit.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“What Happens if Trump Won’t Step Down? National security expert Josh Geltzer on why we should be prepared for the worst.”<https://electionlawblog.org/?p=107332>
Posted on September 14, 2019 1:38 pm<https://electionlawblog.org/?p=107332> by Rick Hasen<https://electionlawblog.org/?author=3>

Dahlia Lithwick interview.<https://slate.com/news-and-politics/2019/09/joshua-geltzer-election-peaceful-transition-of-power-donald-trump.html>
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Letter to NC Election Board: Voting equipment approval didn’t follow law”<https://electionlawblog.org/?p=107330>
Posted on September 14, 2019 1:35 pm<https://electionlawblog.org/?p=107330> by Rick Hasen<https://electionlawblog.org/?author=3>

Carolina Public Press:<https://carolinapublicpress.org/29303/letter-to-nc-election-board-voting-equipment-approval-didnt-follow-law/>

North Carolina’s recent decision<https://carolinapublicpress.org/29234/nc-certifies-barcode-ballot-voting-systems-despite-security-concerns/> to certify new voting systems for use next year did not follow state law, according to a letter that a group of experts on election security and administration sent to the N.C. Board of Elections late Wednesday night.
North Carolina has been in the process of reviewing new voting systems for certification for over two years. The system that is currently in use across the state was certified in 2005.
The law requires<https://www4.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_163a.html> a security review of the source code of all voting systems before they are certified for use in the state.
The letter states that there is no indication that the state, either through its own contractors or through required federal testing, reviewed the source code for the computers in the voting systems it recently certified.
The experts in question, including Duncan Buell, a professor of computer science at the University of South Carolina, reviewed testing documentation from the state and from the federal government.
“You read all of that, and it’s clear,” Buell said. “There was no source code review conducted. That would certainly seem to suggest that things are not in accordance with North Carolina law.”
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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/>

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