[EL] ELB news and Commentary 7/27/20

[Rick Hasen]

“The Supreme Court’s Pro-Partisanship Turn”<https://electionlawblog.org/?p=113488>
Posted on July 27, 2020 7:29 am<https://electionlawblog.org/?p=113488> by Rick Hasen<https://electionlawblog.org/?author=3>

The Georgetown Law Journal Online has published the final version<https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Hasen-The-Supreme-Court%E2%80%99s-Pro-Partisanship-Turn.pdf> of my article, The Supreme Court’s Pro-Partisanship Turn. Here is the abstract:

The United States Supreme Court’s conservative majority has taken the Court’s election jurisprudence on a pro-partisanship turn, which gives political actors freer range to pass laws and enact policies that can help entrench politicians (particularly Republicans) in power and insulate them from political competition. The trend on the Supreme Court is unmistakable whether it reflects the Court majority’s cynical view that American politics is “sordid, partisan, and unfair” or more crassly a self-interested reality of Republican-appointed Justices doing the bidding of the Republican Party.

This Article focuses not on the majority’s motivations but instead upon three subtle doctrinal tools the Court has developed to further the pro-partisanship turn and allow Republican party entrenchment. These doctrinal tools take the Court much further than it went in Rucho v. Common Cause, the Supreme Court decision holding that federal courts cannot consider constitutional claims against partisan gerrymandering. Indeed, this doctrinal subtlety has allowed much of this pro-partisanship turn to remain unnoticed in the broader legal community. The results nonetheless may block nonpartisan election reform and depress minority voting rights, especially in the “race or party” racial gerrymandering cases in which courts hold predominant racial motivations in redistricting are impermissible but predominant partisan motivations are permissible. Analysis of these subtle doctrinal moves not only lays bare a profound shift in the Court’s election law cases that likely will hurt minority voting rights, but also illustrates the power of Supreme Court Justices to move doctrine subtly while avoiding controversy that would accompany more forthright judicial declarations.

First, Chief Justice John Roberts, sometimes in majority opinions for the Court, has exhibited what appears to be a false naivete about what social scientists and, by extension, courts can know about voters’ political behavior. From calling political science tests of partisan gerrymandering “sociological gobbledygook” to misrepresenting the plaintiffs’ arguments in the 2019 Rucho partisan gerrymandering case as a call for proportional representation to proclaiming in the 2013 Shelby County v. Holder case killing off a key part of the Voting Rights Act that “[t]hings have changed in the South,” Roberts has consistently ignored or belittled social science evidence about voting behavior in ways that give political actors freer rein to enact laws and policies in their self-interest.

Second, the Court’s new burden-shifting “presumption of good faith” has put a large thumb on the scale in favor of legislative self-interest and against findings of minority vote dilution. Coupling the Supreme Court’s 2018 voting rights decision in Abbott v. Perez with Rucho, lower courts must assume good faith even when self-interested legislators and other political actors enact laws or policies which preserve their own power. The Court has expanded the realm of good faith to include some self-interested actions, such as what the Court in Rucho called “constitutional political gerrymandering.”

Third, the Court has allowed government actors to reenact laws or policies only slightly different from laws or policies that lower courts have found to be discriminatory by coming up with new, nondiscriminatory reasons to support them. As in Abbott, the courts allow such “animus laundering” to remove the apparent discriminatory taint of the original action while letting the government enact substantially the same policies without penalty. A recent Fifth Circuit case on Texas’s voter identification law provides a classic example of animus laundering. Further, the Supreme Court’s recent Department of Commerce case concerning inclusion of a citizenship question on the 2020 census shows the length to which many of the Justices are willing to go to ignore evidence of discriminatory intent and pretext and provide a cleansing of discriminatory taint.

These three Supreme Court tools—willful ignorance of political reality, the presumption of legislative good faith, and animus laundering—give self-interested government actors the ability to make partisan gerrymandering, racial gerrymandering, restrictive election laws, and minority vote dilution easier. Further, as explained in Part V, the combination of the presumption of good faith and animus laundering provides a path for the Court to get out of the difficult “race or party” box in the racial gerrymandering cases by having courts recast racial agendas as partisan agendas and then treating the partisan agendas as constitutionally permissible.
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, Voting Rights Act<https://electionlawblog.org/?cat=15>


Two Trump-Appointed 11th Circuit Judges Who Sat on Florida Supreme Court When It Heard Oral Argument Over Meaning of Florida Disenfranchisement Amendment Won’t Recuse in Disenfranchisement Case Current Before the 11th Circuit<https://electionlawblog.org/?p=113486>
Posted on July 27, 2020 7:21 am<https://electionlawblog.org/?p=113486> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<https://assets.documentcloud.org/documents/7007328/11th-Circuit-Recusal-2020-07-27.pdf> is the order. The judges left the Florida court before it issued the opinion, and the judges claim that the cases are not related enough to merit recusal.

Mark Joseph Stern made the case earlier<https://slate.com/news-and-politics/2020/07/11th-circuit-florida-fines-fees-judicial-ethics.html> that this is wrong:

The Florida Supreme Court held oral arguments<https://youtu.be/jbsNFmdZnEk> on the matter, in which Lagoa and Luck energetically participated. Lagoa was particularly combative: Sounding more like an advocate than a jurist, she repeatedly argued that voters understood the amendment to encompass court fines and fees. At one point, she even read aloud a Miami Herald op-ed<https://www.miamiherald.com/opinion/op-ed/article219954405.html> that allegedly supported her position. “I have reams here of op-ed pieces and editorials from different papers all over the state of Florida,” Lagoa proclaimed, “that made it clear” the amendment included fines and fees.

But neither Lagoa and Luck ever formally ruled in the case. They joined the 11th Circuit shortly before the Florida Supreme Court handed down its decision<https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf> in January declaring that the state constitution permitted a poll tax on ex-felons. Nonetheless, both judges almost certainly discussed the case with their colleagues and voted on the outcome. Moreover, one or both judges may have participated in the initial stages of drafting the opinion.

Seems to me that the appearance of impropriety would be enough to justify removal, but I am not a legal ethics expert.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


Republicans and Democrats Fight Over Green Party Ballot Access in Montana<https://electionlawblog.org/?p=113484>
Posted on July 27, 2020 7:06 am<https://electionlawblog.org/?p=113484> by Rick Hasen<https://electionlawblog.org/?author=3>

The issue<https://helenair.com/news/state-and-regional/govt-and-politics/decision-expected-soon-on-green-partys-place-on-the-ballot/article_4e1fc149-bb05-51fc-b9e9-ad5d3631983d.html#tracking-source=home-top-story-1> is in the hands of a judge, with Republicans wanting the Green Party on the ballot (to siphon votes from Democrats) and Democrats seeking to kick the Green Party off.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, chicanery<https://electionlawblog.org/?cat=12>, third parties<https://electionlawblog.org/?cat=47>


“Trump, Biden build legal armies for electoral battlefield”<https://electionlawblog.org/?p=113482>
Posted on July 27, 2020 7:00 am<https://electionlawblog.org/?p=113482> by Rick Hasen<https://electionlawblog.org/?author=3>

The Hill reports.<https://thehill.com/regulation/court-battles/508962-trump-biden-build-legal-armies-for-electoral-battlefield>
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Column: Time is running out for a crucial Ohio election law fix”<https://electionlawblog.org/?p=113480>
Posted on July 27, 2020 6:57 am<https://electionlawblog.org/?p=113480> by Rick Hasen<https://electionlawblog.org/?author=3>

Ohio SOS Frank LaRose in Columbus Dispatch:<https://www.dispatch.com/opinion/20200727/column-time-is-running-out-for-crucial-ohio-election-law-fix>

While absentee voting is trusted by millions of Ohioans as a safe and secure way to vote, and our state ranks among the top in the nation for this voter-first convenience, our system requires some improvements. I have long advocated for online requests and postage-paid envelopes, but the legislature has not yet been willing to give me the legal authority to do either.

There is another simple fix where almost everyone agrees, and it must get done soon. What’s worse is it’s already causing Ohio to receive negative national attention.

On Friday, “CBS This Morning” spent seven minutes talking to its audience of millions about one of the biggest challenges facing election officials across America — the length of time it takes for you to get your mail.

Specifically, Ohio was singled out because the deadline set in law for voters to get their absentee ballot request to their county board of elections is just three days before Election Day. That means your board would have mere hours to process your request and the postal service would have to deliver your ballot the next day so you can have it back in the mail by the Monday deadline.

That’s not just logistically impossible, it’s voter disenfranchisement and could even lead to delayed results on election night. After all, if a voter is informed of a deadline set in state law, the fair assumption is that it’s a feasible one. In this case, it’s not. But we can easily fix this.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“100 days out, parties fear chaotic election”<https://electionlawblog.org/?p=113478>
Posted on July 27, 2020 6:53 am<https://electionlawblog.org/?p=113478> by Rick Hasen<https://electionlawblog.org/?author=3>

Reid Wilson<https://thehill.com/homenews/campaign/509104-100-days-out-parties-fear-chaotic-election> for The Hill:

A little more than three months before November’s election, partisans who back both President Trump<https://thehill.com/people/donald-trump> and former Vice President Joe Biden<https://thehill.com/people/joe-biden> are growing anxious over what they see as the mounting potential for a chaotic contest marred by disenfranchised voters, administration errors and mountains of litigation.

The new anxiety comes on top of the typical nerves that plague campaign operatives. Republicans are increasingly concerned that Trump’s handling of the coronavirus pandemic and the attending economic crisis has put off so many voters that his path to reelection is narrowing precipitously. Democrats are almost universally convinced that Biden’s polling lead is a mirage, a potential repeat of the 2016 calamity they did not see coming.

But a series of quieter developments have people on both sides nervous that Election Day may bring a host of its own unpredictable disasters.

As the pandemic swept across the nation in recent months, states have encouraged, and voters have embraced, casting ballots by mail. In some states that already run their elections almost entirely by mail, the added volume has been simple enough to handle.

For other states with less experience operating mail-in ballots, the influx has led to maddening delays. More than a month after New York held its primary elections, at least one Democratic race — between Rep. Carolyn Maloney<https://thehill.com/people/carolyn-maloney> (D) and Suraj Patel, a former Obama administration staffer — is still not finalized. New York’s Board of Elections has yet to count 65,000 ballots in the contest.

Election contests in Pennsylvania, Georgia, Wisconsin and California have been marred by delays, long lines and slow counts. And those were primary elections, where voter turnout is lower than it will be in November’s general election.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Private-Equity Executives Pour $92 Million Into 2020 Races Blackstone’s Stephen Schwarzman, who gave $10 million to a group aiming to defend the Senate’s Republican majority, leads political spending in the industry”<https://electionlawblog.org/?p=113476>
Posted on July 27, 2020 6:51 am<https://electionlawblog.org/?p=113476> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ reports.<https://www.wsj.com/articles/private-equity-executives-pour-92-million-into-2020-races-11595616957?mod=markets_lead_pos11>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“Postal Workers Union Sounds Alarm Over Budget, Trump Administration Rhetoric On Mail-In Ballots”<https://electionlawblog.org/?p=113474>
Posted on July 27, 2020 6:37 am<https://electionlawblog.org/?p=113474> by Rick Hasen<https://electionlawblog.org/?author=3>

KPIX reports.<https://sanfrancisco.cbslocal.com/2020/07/24/postal-workers-union-sounds-alarm-over-budget-trump-administration-rhetoric-on-mail-in-ballots/?utm_campaign=snd-autopilot>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump keeps touting New Jersey fraud case to attack mail voting. Local leaders say he’s not telling the whole story.”<https://electionlawblog.org/?p=113472>
Posted on July 26, 2020 6:34 pm<https://electionlawblog.org/?p=113472> by Rick Hasen<https://electionlawblog.org/?author=3>

Rosalind Helderman for WaPo.<https://www.washingtonpost.com/politics/trump-keeps-touting-new-jersey-fraud-case-to-attack-mail-voting-local-leaders-say-hes-not-telling-the-whole-story/2020/07/26/480466de-ca99-11ea-91f1-28aca4d833a0_story.html>

White House officials said the president has railed privately about the New Jersey city’s election to his advisers. And conservative groups have launched their own efforts to spotlight the problems in Paterson, including Judicial Watch and the Honest Elections Project, which is supported by attorney Leonard Leo, a close Trump ally.

But those involved in the Paterson case said the president is vastly oversimplifying what took place in a local election, using it to serve his own political purposes and overstating the extent to which problems in their city serve as some kind of national cautionary tale.

“He’s not telling the entire truth,” said Paterson Mayor Andre Sayegh, a political rival of those who were charged and a Democrat who has held the nonpartisan office since 2018. “But then again, he’s Donald Trump.”

In fact, they say the alleged scheme in Paterson was a complicated one made possible by a series of unique circumstances that would be difficult to reproduce in other cities, much less on a national scale
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, chicanery<https://electionlawblog.org/?cat=12>


“A month later, this New York City primary is still a train wreck and a warning to us all”<https://electionlawblog.org/?p=113470>
Posted on July 26, 2020 6:21 pm<https://electionlawblog.org/?p=113470> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/lifestyle/style/a-month-later-this-new-york-city-primary-is-still-a-train-wreck-and-a-warning-to-us-all/2020/07/25/1c19f9c4-cb68-11ea-b0e3-d55bda07d66a_story.html>

The city’s hottest primary election is the 12th Congressional District.

In one corner, you have Rep. Carolyn B. Maloney, a pal of House Speaker Nancy Pelosi’s who has been in Congress since 1993 and was recently elected chair of the House Oversight Committee. In the other is Suraj Patel, a former Obama campaign staffer and attorney who has never held public office and helped run his family’s business constructing and franchising hotels in the Midwest before moving to New York in 2006.

Their contest has everything. The Upper East Side. The Lower East Side. A tenacious, white, wealthy 74-year-old Democratic incumbent. A 36-year-old Indian American challenger who has taught at New York University’s business school and aims to be the state’s first South Asian representative in Congress. Just 648 in-person votes are separating them, with 65,000 mail-in ballots still being counted. And an entire district of 718,000 people across three boroughs have no idea who their next representative will be — a full month after Election Day.

“It’s been dysfunctional to the extreme,” said Brian Van Nieuwenhoven, treasurer of the Samuel J. Tilden Democratic Club in the district.

At the center of this mess is a massive influx of mail-in ballots — 403,000 returned ballots in the city this cycle vs. 23,000 that were returned and determined valid during the 2016 primary — and a system wholly unprepared to process them. It’s not just delayed results that are at issue: In the 12th District and in the primaries across the country, tens of thousands of mail-in ballots were invalidated for technicalities like a missing signature or a missing postmark on the envelope.

This isn’t the only primary race in New York still up in the air. The 15th Congressional District in the Bronx, where New York City Council member Ritchie Torres<https://gothamist.com/news/torres-declares-victory-bronx-contest-board-election-ballot-counting-continues> holds a healthy lead, still hasn’t been called. Two other primaries in the Bronx and Westchester, won by Jamaal Bowman and Mondaire Jones<https://www.washingtonpost.com/lifestyle/how-a-middle-school-principal-used-the-ocasio-cortez-playbook-against-a-16-term-incumbent/2020/07/15/ea7e9eb8-c2f4-11ea-b178-bb7b05b94af1_story.html?itid=lk_inline_manual_10>, were not decided for three weeks.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>


“Election Officials Are Vulnerable to Email Attacks, Report Shows Six jurisdictions used software that Russian spies have targeted in cyberattacks”<https://electionlawblog.org/?p=113466>
Posted on July 26, 2020 12:22 pm<https://electionlawblog.org/?p=113466> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/election-officials-are-vulnerable-to-email-attacks-report-shows-11595746800?mod=hp_lead_pos5>

Many of the thousands of county and local election officials who will be administering November’s presidential election are running email systems that could leave them vulnerable to online attacks, a new report has found<https://www.area1security.com/resources/2020-elections-phishing-report/>.

Cybersecurity vendor Area 1 Security Inc. tracked more than 12,000 local officials and determined that over 1,600 used free or nonstandard email software that often lacks the configuration and management protection found with large cloud-service providers. More than half of the officials used email systems with limited protection from phishing attacks, Area 1 said. The findings underscore problems with the country’s diverse, locally administered election system that attracted the attention of state-sponsored hackers four years ago.

In 2016, Russian hackers targeted dozens of election systems in the U.S. and breached two counties in Florida<https://www.wsj.com/articles/hackers-breached-voter-databases-in-two-florida-counties-ahead-of-2016-election-11557854717>. And while security officials and election officials say that much has been done to improve the security of these systems, email could be another avenue of incursion, especially for attackers looking to disrupt or undermine confidence in the November election, according to Oren Falkowitz, Area 1’s chief executive.

Often, all it takes for a cyber intrusion is a single software bug or misconfigured system, Mr. Falkowitz said in an interview. “When you run your own service and you don’t partner with someone to professionally manage it, it means you have to be perfect every single day,” he said. “That’s really hard.”

Area 1 found that officials in six small jurisdictions in Michigan, Missouri, Maine and New Hampshire, for example, were using a buggy version of a free software product called Exim, which has been linked to online attacks conducted by the Russian intelligence service known as the GRU. In May, the National Security Agency warned that this version of Exim had been targeted since 2019 in online attacks by the GRU.

An NSA spokesman declined to comment.

There is a range of systems used by election officials that could be hacked, all with varying results. The most sensitive of all are the vote-registration, tallying and reporting systems that are critical to election night. Then there are the computers and servers, such as email servers, used by the election officials for their day-to-day business.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>


“LeBron James group to donate $100,000 toward paying Florida ex-felons’ fines so they can vote”<https://electionlawblog.org/?p=113464>
Posted on July 26, 2020 12:09 pm<https://electionlawblog.org/?p=113464> by Rick Hasen<https://electionlawblog.org/?author=3>

The Week reports.<https://www.yahoo.com/news/lebron-james-group-donate-100-194405995.html>
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Posted in felon voting<https://electionlawblog.org/?cat=66>


North Carolina “Republican who had prominent role in redistricting to retire”<https://electionlawblog.org/?p=113462>
Posted on July 26, 2020 12:04 pm<https://electionlawblog.org/?p=113462> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL<https://www.wral.com/republican-who-had-prominent-role-in-redistricting-to-retire/19203491/>:

A Republican lawmaker who played a prominent role in North Carolina’s redistricting process announced Friday that he will not seek reelection this fall and will instead retire from his post at the end of the year.

Citing a “great personal sacrifice and loss of valuable time with my family, as well as my livelihood,” North Carolina Rep. David Lewis, R-Harnett, made the surprise move to end his 18-year stint in the General Assembly.

“The time has come to focus my energies in new directions, and to allow another capable leader to serve in this important role,” Lewis said in a statement.

Harnett County Republicans will soon select someone to replace Lewis for a spot on the House District 53 general election ballot, where that candidate will square off against Democrat Sally Weeks Benson.

Lewis played a pivotal role in gerrymandering state maps to advantage Republicans. During a 2016 legislative hearing, he proposed the state “draw the maps to give a partisan advantage to 10 Republicans and three Democrats (in the U.S. House of Representatives) because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
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Posted in election law biz<https://electionlawblog.org/?cat=51>, redistricting<https://electionlawblog.org/?cat=6>


“How to minimize 2020 election chaos”<https://electionlawblog.org/?p=113460>
Posted on July 26, 2020 12:02 pm<https://electionlawblog.org/?p=113460> by Rick Hasen<https://electionlawblog.org/?author=3>

Jennifer Rubin WaPo column<https://www.washingtonpost.com/opinions/2020/07/26/how-we-minimize-2020-election-chaos/>:

We also need responsible behavior from mainstream media outlets. It is too much to hope that Twitter or Facebook will take down all posts that attempt to suppress the vote, circulate false claims of fraud and spread other misleading information. However, legitimate newspapers and broadcast and cable-news networks should begin well in advance of the election to explain what the process for casting and tabulating votes will look like. They should make absolutely clear that tallying votes may take days or longer to complete in some states given the number of absentee ballots voters are likely to cast.

Reporters and pundits alike need to adhere to pre-established rules, strictly enforced by senior management, for “calling” states. They must avoid providing a false sense of certainty when substantial numbers of votes are still outstanding. They cannot uncritically report on Trump’s claims of fraud. “Without basis, President Trump claims. . . ” should be the formulation not, “Trump says. . . .” or even worse, “Widespread claims of fraud have been raised.”

News outlets should explain that returns from big-city precincts often come in well after less populous rural precincts. And they should disabuse the public of the notion that there is something nefarious if the “winner” of votes counted and reported on Election Day does not come out ahead after all the votes are tallied. (This happened with numerous House seats in 2018<https://www.cnn.com/2018/11/12/politics/2018-election-what-changed/index.html>.)
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“A bipartisan group secretly gathered to game out a contested Trump-Biden election. It wasn’t pretty”<https://electionlawblog.org/?p=113458>
Posted on July 26, 2020 12:00 pm<https://electionlawblog.org/?p=113458> by Rick Hasen<https://electionlawblog.org/?author=3>

Boston Globe<https://www.bostonglobe.com/2020/07/25/nation/bipartisan-group-secretly-gathered-game-out-contested-trump-biden-election-it-wasnt-pretty/>:

 On the second Friday in June, a group of political operatives, former government and military officials, and academics quietly convened online for what became a disturbing exercise in the fragility of American democracy.

The group, which included Democrats and Republicans, gathered to game out possible results of the November election, grappling with questions that seem less far-fetched by the day: What if President Trump refuses to concede a loss, as he publicly hinted recently he might do? How far could he go to preserve his power? And what if Democrats refuse to give in?

“All of our scenarios ended in both street-level violence and political impasse,” said Rosa Brooks, a Georgetown law professor and former Defense Department official who co-organized the group known as the Transition Integrity Project. She described what they found in bleak terms: “The law is essentially … it’s almost helpless against a president who’s willing to ignore it.”
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


Scheduled to Be Sunday on CNN’s “Reliable Sources” Taking About the Fairness and Legitimacy of the 2020 Election<https://electionlawblog.org/?p=113449>
Posted on July 25, 2020 1:36 pm<https://electionlawblog.org/?p=113449> by Rick Hasen<https://electionlawblog.org/?author=3>

[Sunday update: This segment was delayed because of coverage of John Lewis’s funeral procession crossing the Edmund Pettus Bridge.]

Tune in<https://twitter.com/brianstelter/status/1287099994374275073> at 11 am eastern, and especially about the role of the media. See recommendations 5 and 6 of our Fair Elections During a Crisis<https://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf> report:

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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


--
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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