[EL] ELB News and Commentary 3/5/21

Fri Mar 5 07:24:43 PST 2021

“Eric Swalwell sues Trump and allies for violating civil rights with Jan. 6 incitement”<https://electionlawblog.org/?p=121081>
Posted on March 5, 2021 7:21 am<https://electionlawblog.org/?p=121081> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/eric-swalwell-lawsuit-trump-capitol-riot-35e3d121-058e-4a8b-bcd7-38bdbac645d7.html>

A Democratic congressman filed a lawsuit<https://beta.documentcloud.org/documents/20500110-swalwell-lawsuit> against former President Trump, Donald Trump Jr., Rudy Giuliani and Rep. Mo Brooks (R-S.C.) on Thursday alleging that they and others are “responsible for the injury and destruction” of the Jan. 6 attack on the U.S. Capitol.

Why it matters: The federal lawsuit filed on behalf of Rep. Eric Swalwell (D-Calif.), who served as one of the House’s impeachment managers, adds to the mounting legal exposure Trump has found himself facing since leaving office.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Why Judges, Not Lawmakers, Should Rule on Disputed Elections”<https://electionlawblog.org/?p=121079>
Posted on March 5, 2021 7:14 am<https://electionlawblog.org/?p=121079> by Rick Hasen<https://electionlawblog.org/?author=3>

Kevin Johnson <https://www.governing.com/now/Why-Judges-Not-Lawmakers-Should-Rule-on-Disputed-Elections.html> for Governing.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Voting Machine Hashcode Testing: Unsurprisingly insecure, and surprisingly insecure”<https://electionlawblog.org/?p=121077>
Posted on March 5, 2021 7:12 am<https://electionlawblog.org/?p=121077> by Rick Hasen<https://electionlawblog.org/?author=3>

 Andrew Appel and Susan Greenhalgh blog<https://freedom-to-tinker.com/2021/03/05/voting-machine-hashcode-testing-unsurprisingly-insecure-and-surprisingly-insecure/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Why Congress should require its members to be elected by a majority of votes”<https://electionlawblog.org/?p=121075>
Posted on March 5, 2021 7:05 am<https://electionlawblog.org/?p=121075> by Rick Hasen<https://electionlawblog.org/?author=3>

New Ned Foley WaPo oped:<https://www.washingtonpost.com/opinions/2021/03/05/why-congress-should-require-its-members-be-elected-by-majority-votes/>

Add to list

Political polarization is spurring partisans to extremes, but there’s a simple change Congress could make to reverse this alarming trend: mandate that its members be elected by a majority of votes.

Americans probably think the law already requires this, given the Founders’ reverence for majority rule as an element of self-government. Yet all but six states permit plurality winners, meaning that federal lawmakers can be elected even if they do not secure more than 50 percent of the general election vote.

States are generally authorized to set their own voting rules. But requiring that a candidate win a majority in the general election is fully within Congress’s constitutional power. Article I, Section 4 empowers Congress to “at any time by Law make or alter” any “Regulations” concerning the “Manner of holding Elections for Senators and Representatives.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Scoring District Plans Instantly<https://electionlawblog.org/?p=121072>
Posted on March 4, 2021 4:55 pm<https://electionlawblog.org/?p=121072> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Historically, the general public has had no access to accurate partisan information about district plans. The operatives who painstakingly design the plans have had such information, of course. But members of the opposing party, journalists, activists, and ordinary citizens have either had no partisan data at all, or, at best, estimates based on disaggregating and reaggregating presidential votes. These estimates are useful, but presidential votes aren’t identical to legislative votes and don’t incorporate a factor, incumbency, that inevitably affects legislative votes.

To remedy this situation, PlanScore has just launched its Score a Plan<https://planscore.org/upload.html> feature. Users can now upload a district map at any level (congressional, state senate, or state house) for any of twelve states (Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan, North Carolina, Pennsylvania, Tennessee, Texas, Virginia, or Wisconsin). Users can also specify whether each district has a Democratic incumbent, a Republican incumbent, or no incumbent. The site then instantly returns a detailed analysis of the map’s partisan characteristics. This analysis includes substantial information about each district as well as plan-wide scores like the efficiency gap, partisan bias, and the mean-median difference.

As a (nonrandom) example, here<https://planscore.org/plan.html?20210304T210202.309033187Z> is PlanScore’s analysis of the current Wisconsin state house plan, assuming all open seats. The plan has a 12% pro-Republican efficiency gap, a 12% pro-Republican partisan bias, and a 4% pro-Republican mean-median difference. All these scores are very large by historical standards (as the below histograms indicate). The plan would also remain highly skewed in a Republican direction under a wide range of electoral conditions (as shown by the below sensitivity testing).
[cid:image002.jpg at 01D71190.9CDF6D50]

PlanScore’s analyses are based on a model incorporating election results for all congressional delegations and state legislatures from 2012 to 2018. Interested readers can find a discussion of the model here<https://planscore.org/models/data/2020/>, as well as validation of the model’s predictions through a series of rigorous tests. The model’s scores for an uploaded map assume an average election in the 2012-2018 period, while the sensitivity testing considers other electoral environments.

What might be the uses of this information? Here are a few:
·         If H.R. 1 becomes law, it would presumptively bar<https://electionlawblog.org/?p=121024> congressional plans with partisan skews above certain thresholds. PlanScore’s analyses could quickly reveal whether draft maps are likely to fall above or below these limits.
·         In states whose constitutions have been construed to prohibit partisan gerrymandering (like North Carolina and Pennsylvania), PlanScore’s analyses could indicate the severity and durability of maps’ partisan skews. (Of course, additional information might be needed to establish liability.)
·         In states that bar maps drawn with partisan intent (like Florida), PlanScore’s analyses could be included in the legislative record. It would then be easier to infer that legislators voting for a plan shown to be highly skewed intended to benefit their party.
·         In all states, instantly available information about maps’ partisan characteristics could be politically helpful. It could mobilize popular opposition to a highly skewed map, or, conversely, build support for a more balanced proposal.

As noted above, PlanScore currently offers instant scoring for twelve states. Additional states will be added in the coming months, with the goal of full national coverage in advance of redistricting later this year.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Biden DOJ Arguments Could Close Courtroom Doors to Voting Rights Challenges”<https://electionlawblog.org/?p=121065>
Posted on March 4, 2021 12:16 pm<https://electionlawblog.org/?p=121065> by Rick Hasen<https://electionlawblog.org/?author=3>

Equally American:<https://www.equalrightsnow.org/biden_doj_argument_could_close_courtroom_doors_to_voting_rights_challenges>

Tomorrow, the U.S. Department of Justice will argue before a federal district court judge in Reeves v. Nago<https://www.equalrightsnow.org/reeves> that federal overseas voting laws that discriminate against residents of Guam and the U.S. Virgin Islands cannot be challenged in federal court and that the appropriate remedy for any constitutional violation would be to restrict rather than expand the right to vote. Reeves is a case brought by veterans and others living in Guam and the Virgin Islands who could vote for President and voting representation in Congress if they lived almost anywhere else in the world, including in a foreign country or even the Northern Mariana Islands, a U.S. territory less than a hundred miles from Guam. The March 5th hearing will be before Judge Jill Otake in Hawaii at 9 am Hawaii time (3pm in the Virgin Islands/Puerto Rico, 2pm East Coast, 11am Pacific, and 5am Guam time).
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“‘How the Sausage Gets Made’: Voter ID and Deliberative Democracy”<https://electionlawblog.org/?p=121063>
Posted on March 4, 2021 11:54 am<https://electionlawblog.org/?p=121063> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3797829> on SSRN. Here is the abstract:

I was in “the room where it happens” when Kentucky enacted a new photo ID law for voting. And I lived to tell the tale.

This Article recounts the evolution of Kentucky’s voter ID law, which could have been one of the strictest ID laws in the country but ultimately became one of the mildest. The inside story of how that occurred is itself interesting, but the Article also relates it to a theory of deliberative democracy, or a legislative process that benefits from debate, negotiation, and compromise from various voices, making the final enactment more legitimate. The Article traces the history of the voter ID law, explaining the significant substantive changes that occurred during the legislative process. Next, the Article analyzes the litigation over the bill, which was focused on its implementation during the pandemic and not about the substance of the new law—showing that even opponents accepted its main substantive components. Finally, the Article relates the Kentucky story to a legislative theory of deliberative democracy. The Kentucky process mostly worked because, even though Republicans had the votes to pass the most stringent law possible, they instead moderated in response to opposition from Democrats and advocacy organizations. That moderation made the process more legitimate and created a better substantive outcome. The Article suggests that, to encourage a stronger legislative process, courts could give slightly more deference to a state that passes an election law with indicia of deliberative democracy.

Voter ID laws are unnecessary: they do not root out any fraud that exists and can disenfranchise voters. But the Kentucky experience shows that not all voter ID laws are created equal. If the political reality meant that a new voter ID law was inevitable, the Kentucky version—with its various exceptions and fail-safe protections—is about as good as one can expect. Further, its passage opened the door to other pro-voter reforms. Perhaps the Kentucky model—and the deliberative democracy process it exhibits—can lower the temperature in other states.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

March 5 LSU Symposium: “The Impact of the 15th and the 19th Amendments on the 2020 Presidential Election: Voter Accessibility’s Battle Against Voter Suppression”<https://electionlawblog.org/?p=121061>
Posted on March 4, 2021 11:52 am<https://electionlawblog.org/?p=121061> by Rick Hasen<https://electionlawblog.org/?author=3>

Register<https://www.law.lsu.edu/forms/symposium/> for this symposium on Mar. 5. (Schedule<https://www.law.lsu.edu/symposium/schedule/>)
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes”<https://electionlawblog.org/?p=121059>
Posted on March 4, 2021 6:38 am<https://electionlawblog.org/?p=121059> by Rick Hasen<https://electionlawblog.org/?author=3>

Jack Michael Beerman and Gary Lawson have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3795421> on SSRN. Here is the abstract:

In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. Further, the objections raised to two states’ electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states’ electoral votes would have been contrary to law. While state executive or state judicially-ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution’s requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

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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