Tam Cho, Liu, Zang, and Cain: “The ‘Everything Bagel’ in Redistricting”

Here is a guest post from Wendy K Tam Cho, Yan Y. Liu, Emily R. Zhang,  & Bruce E Cain:

In addressing the sometimes impossible problem of having to choose between sesame, poppy seed, onion, garlic or salt, the everything bagel presents a nice, well-rounded solution. Beyond breakfast, it also offers some inspirations for partisan gerrymandering doctrine. Plaintiffs and amici in Whitford v. Gill, Benisek v. Lamone and Common Cause v. Rucho have suggested a number of possible measures of partisan effect. For instance, plaintiffs in Whitford have put forth the efficiency gap as advocated for by Nick Stephanopoulous and Eric McGhee in their University of Chicago Law Review article, and in Rucho, plaintiffs have also advanced the mean-median difference and partisan bias. Elsewhere, in the political science literature, there are other proposed measures of partisan fairness. Scholars have proposed competitiveness measures as well as ways to quantify the mismatch between the number of votes a party receives and the number of seats they win.

Setting aside the mechanics of each of these measures, is there, in fact, a single silver-bullet partisan effects measure? Partisan fairness is a complex democratic ideal that encompasses many different values. Can we expect a single, simple measure to take all those values into account? Might an everything-bagel approach to partisan fairness be more appropriate? An analogy to health is instructive here. Medical professionals do not expect to discover a single measure of health. A patient whose doctor’s visit consists of a sole demand to open up her mouth and say “aah!” would be greatly puzzled (and overcharged). While there are disputes over the relative weight to accord each health indicator—longevity, mobility, functionality, enjoyment—it is generally assumed that health is a meta-ideal that can be manifested (and hence measured) in many different ways.

Political fairness is a similarly multidimensional—and if anything—a more heavily contested concept. It encompasses many values, and hence many different ways to measure injury to those values. The currently proposed partisan effects measures capture some of those values, but not all. Both the efficiency gap and partisan bias measure are concerned about fairness vis-à-vis the two political parties: do the district lines allow the two parties to compete fairly against each other. Competitiveness is concerned with a different kind of fairness: do the district lines give rise to genuine competition between the parties for votes? Notice how competitiveness is a voter-centric value while the symmetry measures are party-centric (party defined broadly as activists, party officials, candidates, elected officials, etc.). While parties may care a great deal about whether a redistricting plan makes it easier for them to win relative to their opponents, they may care less about whether it diminishes overall competition between the parties. Indeed, they may prefer an uncompetitive plan because it saves them time and campaign expenses. Bipartisan, incumbent-protective gerrymanders of the early 2000s, for instance, were politically symmetrical but highly uncompetitive.

Voters may have other fairness aspirations for their districts: responsiveness (to be heard), representativeness (to have one’s representatives speak, act, and stand for one’s interests), and accountability (to throw the bums out if they fail to perform the aforementioned duties satisfactorily). Bias measures, for instance, are concerned with whether the function that translates votes to seats is the same for both parties. Even assuming that perfect proportionality is not required (and indeed rarely possible when redistricting), gross mismatches between voters’ preferences and the kind of representatives who are elected undermine political legitimacy. As with competitiveness, the values of responsiveness, representativeness and accountability may not be ones that political parties care much for—as long as a redistricting plan produces an equal number of seats that are unresponsive/unrepresentative/unaccountable between the parties. But for citizens seeking a better government, they are paramount.

Certainly, courts—the Supreme Court through Whitford and Benisek and state supreme courts in developing partisan gerrymandering doctrines—may decide to elevate one particular brand of partisan fairness above others. Indeed, as Pam Karlan has written, the Supreme Court views the right to vote less as a snowflake (unique and fragile), and more as a calculator (for aggregating up to political outcomes). And in many other areas of the law, the Court has elevated certain strains of an overarching concept over others: intentional and animus-based discrimination over subconscious bias, for instance, financial injury over stigmatic injury in the context of standing, or in the antitrust context, injuries to consumers over those to competitors.

In some of these instances, there are philosophical or theoretical rationales for picking one strain of a concept over others. But if administrability is the central concern, it should not dog partisan gerrymandering doctrine. With the help of ever more potent computing power, extreme outcomes along each dimension of partisanship—voter or party-centric—can be simultaneously taken into account. In our article in the William & Mary Law Review, entitled A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluating Redistricting Proposals (now available online), we show how automated redistricting algorithms and a reasonable bias approach make it possible to generate an “everything bagel” set of feasible maps that encompass all the important values under the umbrella ideal of partisan fairness. Mapdrawers, be they legislatures, independent redistricting commissions or judges/special masters in remedial proceedings, can tailor the automated redistricting algorithms to conform to negotiated terms, state laws or other guidelines. They can weigh each measure as desired (more poppy seeds, less onion), and set minimum threshold values for each measure (at least a convincing smattering of sesame seeds). Insofar as each component is deemed a worthwhile addition (and a consensus can develop over time about what constitutes extreme outcomes), automated redistricting algorithms can produce maps that encapsulate the multi-faceted notion of partisan fairness. Party-centric values need not tread on the toes of voter-centric values: indeed, they can exist in reasonable tradeoffs with each other. The same can be done with compactness measures and other multidimensional redistricting values. Seldom in life (or in doctrine) can one have a combination of all. Bagels and voting districts are exceptions to this rule.



“FEC Deadlocks on Probing Pro-Rubio Super PAC Money”

Bloomberg BNA:

The Federal Election Commission deadlocked over whether to investigate a $500,000 contribution to a super political action committee that backed Sen. Marco Rubio’s (R-Fla.) presidential bid.
Watchdog groups contend the 2016 donation was illegally funneled through a limited liability corporation.

Conservative Solutions PAC reported receiving the money from IGX LLC. Complaints filed with the FEC, citing news reports, said the money should have been reported as coming from Brooklyn investor Andrew Duncan.

The commission’s 2-2, party-line vote on whether to pursue enforcement action resulted in dismissal of the matter. The vote was announced today….
In an open commission meeting May 24, Weintraub proposed to begin writing new disclosure rules covering LLCs and other mechanisms that can conceal donors. She said those could be used to provide campaign money from foreign sources to influence U.S. elections. Her motion failed on a 2-2 vote.
During the commission meeting, Weintraub cited a previous FEC enforcement case involving a super PAC supporting Rep. Patrick Murphy (D-Fla.), who’s no longer in Congress. The FEC declined to investigate whether a contribution from an LLC headed by a Florida real estate developer had originated from Chinese nationals.

“Israeli Intelligence Firm’s Election-Meddling Analysis Comes Under Mueller’s Scrutiny”


Special counsel Robert Mueller’s investigators have obtained a presentation prepared by an Israel-based private intelligence firm that outlines ways in which Donald Trump’s 2016 election was helped by fake news and fake social-media accounts, according to people familiar with the presentation and documents reviewed by The Wall Street Journal.

You can find the PsyGroup’s powerpoint presentation at this link.


“Democrats Go All-Out to Avoid Disaster in California House Races”


With so many Democrats running, the party’s fear is that the vote will be splintered, allowing Republicans — who have fewer candidates — to dominate some primaries. The party and allied groups are spending more than $4 million on just three campaigns, intervening in one contest to prop up a favored candidate; attacking a Republican from the right in another; and even reminding people not to waste their votes on “ghost candidates” who have dropped out yet remain on the ballot.

As any progressive activist will explain through gnashed teeth, the head-snapping scramble is because of the state’s “top two” open primary system, which allows the two leading vote-getters — regardless of political parties — to advance to the general election.

The “top two” system was meant to create incentives for political moderation in a state where about a quarter of the voters are independents, but it has created immense stakes for Democrats: They need to win 23 seats to take back the House, and party officials believe the path runs through the seven competitive California districts, all of which Hillary Clinton carried in 2016.


“Russian Facebook ads inflamed Hispanic tensions over immigration after Trump election”

USA Today:

In the months after Donald Trump rode to victory while calling for mass deportations, Russian operatives bought dozens of Facebook ads targeted at the Hispanic community seeking to further inflame tensions already roiled by the campaign’s racially charged rhetoric, according to USA TODAY analysis.

Thousands of ads released by House Democrats  this month showed Russian operatives focused on race during the presidential election in what experts say was a clear effort to amplify existing divisions.

They didn’t stop there. In the first half of 2017, as Trump aggressively moved to restrict immigration, fake Facebook pages set up by a Russian propaganda operation started pushing ads on both sides of the immigration debate.


“California’s ‘Top-Two’ Primary: Here’s How It All Works”


It was supposed to be a cutting-edge election reform, a way to take the party out of politics: an open primary in which labels like Republican and Democratic were tossed out and candidates were chosen, presumably, on their merits. The system, adopted by California voters in 2010, was meant to make politics less polarizing.

But eight years later, the highest-stakes midterm election in a long time is causing all sorts of angst for Democrats and Republicans in California. And that’s in no small part because of what is known as the jungle primary.


“Federal Election Commission Can’t Decide If Russian Interference Violated Law”


As tech companies and government agencies prepare to defend against possible Russian interference in the midterm elections, the Federal Election Commission has a different response: too soon.

The four commissioners on Thursday deadlocked, again, on proposals to consider new rules, for example, for foreign-influenced U.S. corporations and for politically active entities that don’t disclose their donors.

“We have reason to think there are foreign actors who are looking for every single avenue to try and influence our elections,” said Commissioner Ellen Weintraub, a Democrat who offered two proposals for new regulations.

Both proposals failed on partisan 2-2 votes.


Are Signs OK Saying a Vote for One Candidate in Maryland Governor’s Race is a Vote for Another? This Seems Dicey

Baltimore Sun:

The death of gubernatorial candidate Kevin Kamenetz continues to ripple through Maryland’s Democratic primary as state election officials struggle to replace his name with Valerie Ervin’s without having to toss the 1.5 million ballots they’ve already printed.

The Maryland Board of Elections proposed a solution on Tuesday: Post signs alerting voters of Kamenetz’s death and informing them that ballots cast for him will count for Ervin, his former running mate.

But the concept is not sitting well with Ervin and some of her Democratic rivals.

“Voters are going to be confused,” Ervin said.

Ervin, a former Democratic Montgomery County Council member, was frustrated that state elections officials gave her little time to sign off on the proposal after she had had just one week to decide if she would wage a statewide campaign for governor. Kamenetz selected Ervin as his running mate in February, but died May 10 of cardiac arrest.


Court Uses Declaratory Judgment, Avoids Injunction to Get Trump to Unblock Twitter Followers: Will It Work?

I plan to do more blogging about Remedies, especially given my news about coming on the Laycock casebook. And here’s an especially nice illustration of an important Remedies issue in the news.

Yesterday  a federal court held that President Trump’s decision to block users on Twitter violates the First Amendment. This is big news, and Eugene Volokh gives his First Amendment take here.

But I wanted to point out an important Remedies issue. Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. “Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”

There’s a more extensive discussion near the end of the opinion. After noting a dispute over whether a court can issue an injunction against the President (there’s no doubt it could, the court says), it adds:

Accordingly, though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,” Franklin, 505 U.S. at 803 (plurality opinion); see Utah v. Evans, 536 U.S. at 464 (citing Franklin, 505 U.S. at 803 (plurality opinion)); see also Allco Fin. Ltd. v. Klee, 861 F.3d 82, 96 (2d Cir. 2017); Made in the USA, 242 F.3d at 1310; Swan, 100 F.3d at 980; L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time. Declaratory judgment is appropriate under the factors that the Second Circuit directs us to consider, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), and a declaration will therefore issue: the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment. “It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

The court is right that ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary (note the “at this time” language in the court opinion). It is a “myth” that declaratory judgments are milder, as Sam Bray argues. And it made sense here for the court to piggy-back off that myth.

And yet, Donald Trump is a known norm breaker who has attacked the courts when they have decided against. It will be interesting to watch if the implicitly coercive declaratory judgment is enough to get Donald Trump to comply. Stephen Colbert even joked about it on The Late Show last night.

If Trump doesn’t comply, then we get into dicier territory, where an angrier judge can order Trump to comply and we will see what happens (as the President likes to say). Of course, this could all be mooted if the Second Circuit reverses on the merits on appeal.

But I’m watching this Remedies issue quite closely.



Voting Rights Scholars File SCOTUS Amicus Brief Urging Cert. Grant in Territorial Voting Case

Equally American Blog:

A petition to the U.S. Supreme Court seeking expanded voting rights in U.S. territories has received an important boost. Puerto Rico, the Virgin Islands Bar Association, and leading voting rights scholars have each filed amicus briefs in support of Supreme Court review in Segovia v. United States. Last month, Luis Segovia, a proud veteran living in Guam, along with other former state residents living in Guam, Puerto Rico and the U.S. Virgin Islands, petitioned the Supreme Court to answer whether it is constitutional to deny absentee voting rights in these territories while allowing citizens living in other U.S. territories or even a foreign country to continue being able to vote for President and voting representation in Congress….

Leading voting rights scholars argue in their brief that Supreme Court review is necessary to reverse the Seventh Circuit’s decision to apply a lower level of judicial scrutiny to the regulation of voting rights in U.S. territories than it would apply to similar laws impacting Americans in other parts of the United States.

The brief highlights several ways the Seventh Circuit’s decision conflicts with precedent from other federal courts. “Once a state legislature or Congress extends the right to vote to one group of people,” the brief explains “it cannot deprive another identically situated group of people of the right to cast a vote purely based on geography.

Amici include Samuel Issacharoff, Reiss Professor of Constitutional Law at NYU School of Law; Joshua Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law at University of Kentucky College of Law; Chad Flanders, Professor of Law at Saint Louis University School of Law; Joseph Fishkin, Marrs McLean Professor in Law at the University of Texas at Austin School of Law; Nicholas Stephanopoulos, Fried Professor of Law at the University of Chicago Law School; and Ciara Torres-Spelliscy, Leon Highbaugh Sr. Research Chair and Professor of Law, Stetson University.


Very Important William & Mary Law Review Redistricting Symposium Now Available

Good things come to those who wait. This is a particularly important symposium, given all that has happened and soon will happen with redistricting.

Issue 5 (APRIL 2018)



“Lawsuit seeks to toss out Ohio’s congressional map in time for 2020 election”

Cleveland Plain Dealer:

A federal lawsuit filed Wednesday in Cincinnati seeks to toss out Ohio’s gerrymandered congressional district map on constitutional grounds and create more balanced districts in time for the 2020 election.

If successful, the suit would move up the timetable by two years for congressional redistricting reform in Ohio. And it could jeopardize some of what otherwise would be safe incumbent seats during a presidential election year.

ACLU complaint.


Nonprofit Spending Millions of Dollars to Influence Federal Elections Asks D.C Circuit for Right to Do So Anonymously

Bloomberg BNA:

A nonprofit that is spending millions of dollars supporting Republicans in the midterm elections is the latest group to ask a federal appeals court to help keep its donors secret.

Three cases before the U.S. Court of Appeals for the District of Columbia Circuit have the same central question: Does the public have a right to know who’s footing the bill to influence their votes?

A decision demanding that nonprofit groups disclose donor identities could lead to a U.S. Supreme Court case with wide impact on future election campaigns.

It’s a question for the courts because the Federal Election Commission has been stymied by partisan, deadlocked votes.



Giuliani: Russian Emails Helping Trump Campaign “Sort of Like a Gift”; But Campaign Acceptance of Things of Value from Foreign Nationals is Illegal

Oh my:

In a recent interview with HuffPost, Giuliani initially disputed the notion that Trump’s daily citing, in the final month of his campaign, of Russian-aligned WikiLeaks and its release of Russian-stolen emails constituted “colluding” with Russia.

“It is not,” Giuliani said.

Then he switched tacks.

“OK, and if it is, it isn’t illegal… It was sort of like a gift,” he said. “And you’re not involved in the illegality of getting it.”

Federal law bars solicitation and acceptance  of things of value from foreign nationals: “No person shall knowingly solicit, accept, or receive from a foreign national any contribution or donation prohibited by paragraphs (b) through (d) of this section.” The contribution again can be considered “anything of value.”


“Florida’s early voting ban on campus challenged in court”

Tampa Bay Times:

A new lawsuit accuses Gov. Rick Scott’s administration of making it more difficult for young people to vote by preventing early voting at public buildings on state university campuses.

The election-year complaint filed Tuesday by the League of Women Voters seeks to strike down a four-year-old interpretation of Florida’s early voting laws by Scott’s chief elections officer, Secretary of State Ken Detzner.

Detzner’s office issued an opinion in 2014 that the Legislature’s expansion of early voting sites to include “government-owned community centers” does not include the student union building on the University of Florida campus in Gainesville.

You can find the complaint in League of Women Voters v. Detzner at this link.


“Appeals Court Bats Down Kobach Request To Overturn Contempt Finding”


An appeals court dismissed Tuesday a request by Kansas Secretary of State Kris Kobach to overturn a federal judge’s finding that he was in contempt of court. The three-judge panel of the 10th U.S. Circuit Court of Appeals said in its dismissal that Kobach had appealed the contempt finding prematurely.

“Although the district court stated that it was imposing sanctions, specific sanctions
have not yet been imposed,” the judges wrote. “Here, not only has the district court not issued findings of fact and conclusions of law or final judgment, the district court has not determined a discernable amount of sanctions.”


A Decision on Standing and Its Aftermath

Reading the tea leaves, Rick Pildes and others have speculated that the Court may decide Whitford on standing grounds. I’ve previously explained why this would be a bad idea. But here I want to make two other points about the standing issue. One is that, if the Court holds that the Whitford plaintiffs lack standing, a great deal hinges on why the Court reaches this conclusion. The other is that, if the Court compels partisan gerrymandering litigants to bring district-specific claims, it may actually make their suits more rather than less disruptive.

Start with the first point. There are two possible reasons the Court could give for denying standing to the Whitford plaintiffs. One is that they aren’t properly situated to allege a statewide claim while other parties (like statewide organizations with statewide members and interests) are. This sort of standing ruling would have quite modest consequences. The Whitford litigants would seek leave to amend their complaint in order to add the requisite parties with statewide standing. And litigants in other cases would make sure to include the right parties from the outset.

More broadly, the Court could hold that the Whitford plaintiffs lack standing because no one has standing to bring a statewide claim—not statewide organizations, not voters residing in every district in a plan, not anybody. Notwithstanding its label, this kind of decision wouldn’t actually be about standing. Rather, it would be a sub silentio holding that statewide partisan gerrymandering claims are nonjusticiable. After all, a legal theory that no one can litigate isn’t really a theory at all. This kind of decision would also consign future litigants to challenging districts one by one. (If, that is, they could challenge districts in the first place.) No matter whom the litigants included as plaintiffs, they would be limited to district-specific claims.

This brings me to my second point. Perhaps because Benisek involves only a single district while Whitford implicates an entire district map, there is a tendency to view district-specific claims as more modest, less disruptive—and ultimately better for defendants—than statewide claims. The reality, though, may be quite different. Depending on what legal standard applies to district-specific claims, they may be both easier to win and more radical in their implications than statewide claims.

District-specific claims may be easier to win because litigants could (presumably) prevail in them even when plans as a whole are balanced. Consider my state of Illinois. Its current maps have all exhibited low levels of partisan asymmetry, thus preventing any statewide claims from getting off the ground. But litigants could surely identify many districts that were crafted with the aim of helping Democrats, that disregard traditional criteria, and that crack or pack Republican voters. These seats, all insulated from statewide attack, would be juicy targets for district-specific litigation.

District-specific claims may also be more radical in their implications because they have no obvious stopping point. As long as litigants can keep locating districts that were deliberately drawn to benefit the mapmaking party, they (presumably) can keep getting these districts struck down—even if the end result is to tilt the plan in the litigants’ favor. Take the ninety-nine Wisconsin state house districts at issue in Whitford. Republicans control about ten more of them than they would under a balanced map. Flipping these ten seats is thus the most that litigants could hope for under a statewide theory. But many more than ten districts were intentionally designed to aid Republicans and handicap Democrats. If litigants could invalidate most or all of them based on district-specific claims, they wouldn’t just erase the Republicans’ advantage. Rather, they would replace it with one in a Democratic direction.

Of course, these theoretical gains for litigants might not materialize in practice. District-specific claims would be a royal mess to develop, requiring factual discovery and expert analysis for scores of districts instead of a single plan. Litigants might thus be unable to substantiate many claims that appear strong in the abstract. Nevertheless, if the Court is drawn to district-specific claims because of their seemingly less expansive reach, it should be careful what it wishes for. It may well find that in its effort to cabin partisan gerrymandering litigation, it has done exactly the opposite.


What Does the Handwriting on the Wall in Gill v. Whitford Say?

Now that Justice Gorsuch has issued a majority opinion from the Court’s October sitting, it is most likely that Chief Justice Roberts is writing the opinion for the Court in Gill (unless the Court decides to hold the case over for re-argument next Term).

If the Chief is writing Gill,  he is in the majority in the case and the narrowest path to a decision in that context is for the Court to hold that there is no standing for individuals to bring partisan gerrymandering claims on a state-wide basis to a plan as a whole.  The underlying question is on what basis Justice Kennedy would be rejecting the lower-court opinion, since he would be the minimally necessary fifth vote, one would think, to producing a majority vote that rejects the lower-court decision.  At argument, Justice Kennedy commented that the state was on “strong grounds” on this standing issue, but then said nothing further about it himself.

What would follow if this is indeed the way Gill comes down?

  1.  It might still be possible that organizational plaintiffs – most obviously, the state Democratic or Republican party – would have organizational standing to bring statewide challenges to a plan as a whole.  As I understand Gill, there are no organizational plaintiffs in the case; the complaint was filed on behalf of 12 named individuals.  Whether organizational standing for a statewide challenge would remain viable could depend on precisely how Gill is written on the standing issue.
  2. The Maryland case, Benisek, would then become even more important.  If Gill is vacated on standing grounds but there is no majority that announces anything new about the substantive principles that govern partisan gerrymandering claims, Benisek ­­could become the vehicle through which a majority does actually tell us something meaningful about what those principles are.  Benisek also has potential procedural issues on which the Court could decide the case without, again, saying anything on the merits about the substance of partisan gerrymandering claims.  But the Court could also decide those issues do not stand in the way of it addressing the merits of what constitutes a proper First Amendment challenge to partisan gerrymandering.
  3. If Gill rejects statewide standing claims for individuals and does little more than that, this would mean individuals would have to bring district-by-district challenges arguing that their particular districts was the product of an unlawful partisan gerrymander.  As someone who has litigated these kind of cases in the racial gerrymandering context, I can say this will be a much more burdensome task for plaintiffs than the kind of theory the plaintiffs tried to litigate in Gill.  The problem will not be finding plaintiffs who live in each district being challenged, but the complexity of trying to reconstruct how each district was designed and for what reasons, absent detailed evidence from inside the redistricting process itself, which is often not easily available at the level of how specific districts were designed.  Plaintiffs will still be able to rely on statewide evidence, but they will use this evidence in the service of also proving that their specific district was the product of a partisan gerrymander.
  4. In Gill itself, the Court, after vacating the decision below, might remand to let the lower court decide whether to permit the individual plaintiffs to try to establish that the specific districts in which they reside are partisan gerrymanders. And the plaintiffs might seek to amend their original complaint to bring in plaintiffs from many other districts across the state, or even add the Democratic Party.  Dismissing the case on standing grounds at this stage would be a serious blow to that litigation, for sure, but not necessarily a fatal one.

Rick Hasen Joining Doug Laycock as Co-Author of “Modern American Remedies;” 5th Edition Will Be Out in Time for January 2019 Classes

I am honored to be joining Doug Laycock as co-author on the new Fifth Edition of Modern American Remedies, the leading casebook in the Remedies area. The Fourth Edition is from 2010 (there are annual supplements). This will be a thorough updating of the book, and will be current through developments in the October 2017 Supreme Court term. The book will be out in the fall in time for spring classes.

Doug is the leading American scholar in the field of Remedies, and his book is the best casebook I know in any field. It is both scholarly and practical, and its sophisticated analysis is presented in plain English. Doug doesn’t hide the ball, and yet the book is challenging for students. I’ve been teaching from the book since 1997 and I feel my students are extremely well prepared for the bar and practice thanks to the book. It teaches students how to think conceptually and creatively about remedies, without getting caught up in a doctrinal, historical, and terminological morass.

I’ll have more to say about the content of the book in coming months, but if you have been wondering why blogging has been light lately, this has been an all-consuming project. I’m really excited to be a part of it!


Don Blankenship is Going to Try to Overcome WV Sore Loser Law, Run on Constitution Party Line [Updated and Corrected]


Blankenship said he would run in the general election as the Constitution Party nominee. But he would need to overcome a “sore loser” law in West Virginia that prevents failed candidates in a main-party primary from refiling to run in the general election under another party’s banner.

Blankenship said he’s prepared to challenge that law in court if needed. If he’s successful, his move that could hurt the GOP’s prospects of unseating Democratic incumbent Joe Manchin in November.

I think it is highly unlikely that Blankenship would be successful in overturning West Virginia’s sore loser law, but I think he’d still be able to mount a write-in campaign if he’s unsuccessful.

The best critique of such laws is Michael Kang’s article, Sore Loser Laws and Democratic Contestation.

UPDATE: Don Blankenship May Not Be Barred from Running in U.S. Senate Race by West Virginia Sore Loser Law After All


“Democrats’ newest midterm pitch: A crackdown on corruption”


Democrats are preparing to highlight allegations of corruption surrounding the Trump administration — and a legislative agenda to prevent future abuses — as they continue rolling out their party platform ahead of November’s midterm elections.

The first planks of the “A Better Deal” platform, released last year, focused on the party’s economic agenda. Now, with questions about pay-to-play politics swirling around President Trump and his current and former aides, Democrats are set to introduce anti-corruption proposals Monday billed as “A Better Deal for Our Democracy.”

According to a senior Democratic official familiar with the announcement, the new agenda will include proposals that would eliminate loopholes that allow lobbyists and lawmakers to buy and sell influence without the public’s knowledge. The message: Elect Democrats in November to “clean up the chaos and corruption in Washington.”

One proposal — which would tighten the federal laws governing lobbying disclosures and foreign-agent registration — responds to the apparent sale of influence by Michael Cohen, Trump’s former personal lawyer. According to recently disclosed financial records, Cohen earned millions of dollars from companies that wanted to secure access to Trump’s inner circle in the early days after his 2016 win.

 But Cohen never registered as a lobbyist or otherwise disclosed the payments — possibly because, under federal law, only those who spend more than 20 percent of their time on lobbying on behalf of a client must register as a lobbyist. Democrats will propose to change the law so any lobbying contact would have to be publicly reported.

Another proposal could rewrite federal statutes that might have allowed lawmakers of both parties to skirt convictions on bribery and pay-to-play allegations — including former Virginia governor Robert F. McDonnell (R), former senator Ted Stevens (R-Alaska) and  Sen. Robert Menendez (D-N.J.). All were charged with fraud violations but were then acquitted or had their convictions overturned after courts found that their actions were not criminal under the current letter of federal law.


“ND secretary of state candidate drops out, raising questions about GOP’s next steps”

Another one:

The Republican-endorsed candidate for North Dakota secretary of state is out of the race just two days after The Forum reported on his 2006 window-peeping incident on the North Dakota State University campus.

Will Gardner made the announcement Sunday afternoon, May 20, in a post to his campaign’s Facebook page.

“In light of recent events, I have decided to withdraw from the election of Secretary of State. This is the best decision for my family and me,” he wrote in the post.

No further information was provided by the Mandan businessman who defeated longtime incumbent Al Jaeger at the North Dakota Republican Party convention in April, securing the party endorsement.

Hours after announcing his decision, Gardner’s campaign page posted a response from the candidate’s wife, who said the world “is a harsh place to be. You don’t dare mess up.”


Chief Justice Roberts Almost Certainly Has, or Had, the Gill Partisan Gerrymandering Opinion



Indiana Suit Over Pre-trial Detainees Denied the Right to Vote Certified as Class Action

This may be the first class action suit by detainees seeking money damages for loss of the right to vote certified for class status.

Here’s an earlier story in Indiana Lawyer:

Lawyers for inmates of the Allen County Jail and for the sheriff conferred in federal court Tuesday as a lawsuit proceeds alleging detainees were denied their right to vote.

A first amended complaint filed Tuesday seeks a class action, and attorneys met before Judge Theresa Springmann for a preliminary pretrial conference in the District Court for the Northern District of Indiana, Fort Wayne Division.

The suit alleges Sheriff David Gladieux “systematically disenfranchised hundreds of eligible voters held in the Allen County Jail during the 2016 general election by refusing to provide them absentee ballots or alternative access to the polls.”

The suit, Demetrius Buroff and Ian Barnhart v. David Gladieux, 1:17-cv-124, claims violation of the due process and equal protection clauses of the 14th Amendment. Both were pretrial detainees on Election Day, the suit says, without felony convictions and eligible to vote.


“Ryan-linked group raised $24.6M from anonymous donor”


American Action Network, the nonprofit group closely aligned with House Speaker Paul Ryan, raised a record $41.9 million amid the GOP push to repeal Obamacare and restructure the tax code — more than half of which came from one donor, according to a tax filing obtained by POLITICO.

The money raised includes $24.6 million from a single anonymous donor, according to AAN’s 2017 tax return, which covers July 2016 to June 2017 and was filed this week. As a “social welfare” group organized under section 501(c)(4) of the tax code, AAN can raise money in unlimited amounts, but it is not required to disclose its donors, unlike a super PAC.


“FEC Democrat Pushes for Foreign Campaign Money Rules”

Bloomberg BNA:

A Democrat on the Federal Election Commission is renewing her push for FEC rules to prevent foreign campaign spending following an announcement from the Senate Intelligence Committee confirming Russian election meddling.
“There is no doubt that Russia undertook an unprecedented effort to interfere with our 2016 elections,” the Senate committee said.
Ellen Weintraub, the FEC’s vice chairwoman, said she would call for consideration of a new rulemaking effort at the FEC’s next open meeting May 24.
Weintraub acknowledged that divisions between Democratic and Republican commissioners have prevented the FEC from agreeing on new rules in the past. She said the bipartisan agreement on the Senate Intelligence Committee, headed by Chairman Richard Burr (R-N.C.) and Vice Chairman Mark Warner (D-Va.), provided “hope that the urgency of this threat will finally conquer the partisan divide at the FEC.”

“Asked to propose a fix to voting rights violation, Texas offers few answers”

Texas Tribune:

Told it was breaking the law and asked to propose a fix, Texas seems to have mostly declined in a new filing the state’s legal adversaries have called “bad faith foot-dragging.”

Following a ruling last month that Texas was violating a federal law designed to ease the voter registration process, U.S. District Judge Orlando Garcia ordered both the state and the voting rights advocacy group that sued Texas to submit detailed plans for fixing the violation. The Texas Civil Rights Project submitted its plan Thursday afternoon. About three hours later, Texas responded with a document criticizing that group’s proposal as overly broad and once again disputing the judge’s ruling. It did not present a clear, specific solution of its own.

Garcia ruled in April that Texas was violating a federal law often called the Motor Voter Act by failing to allow Texas drivers to register to vote online while they update their license information. Texans can already register in person at Department of Public Safety offices, but not when they renew their licenses online.

That disparate treatment was at the heart of the lawsuit filed against the state in 2016 by the Texas Civil Rights Project on behalf of several Texas voters who, the group argues, are among the thousands of voters disenfranchised by Texas’ current system.


“Trump Jr. and Other Aides Met With Gulf Emissary Offering Help to Win Election”


Three months before the 2016 election, a small group gathered at Trump Tower to meet with Donald Trump Jr., the president’s eldest son. One was an Israeli specialist in social media manipulation. Another was an emissary for two wealthy Arab princes. The third was a Republican donor with a controversial past in the Middle East as a private security contractor.

The meeting was convened primarily to offer help to the Trump team, and it forged relationships between the men and Trump insiders that would develop over the coming months — past the election and well into President Trump’s first year in office, according to several people with knowledge of their encounters.

Erik Prince, the private security contractor and the former head of Blackwater, arranged the meeting, which took place on Aug. 3, 2016. The emissary, George Nader, told Donald Trump Jr. that the princes who led Saudi Arabia and the United Arab Emirates were eager to help his father win election as president. The social media specialist, Joel Zamel, extolled his company’s ability to give an edge to a political campaign; by that time, the firm had already drawn up a multimillion-dollar proposal for a social media manipulation effort to help elect Mr. Trump.


“Court Rules Santa Clara Violated the California Voting Rights Act”

NBC Bay Area:

A Santa Clara County Superior Court judge announced Tuesday that he believes Santa Clara’s at-large voting system violates the California Voting Rights Act and has impaired the Asian-American population from getting elected.

Santa Clara registered voters Ladonna Yumori Kaku, Michael Kaku, Wesley Kazuo Mukoyama, Umar Kumal and Herminio Hernando filed a complaint against the city in October after attorney Robert Rubin notified the jurisdiction four times that his clients believed the system caused vote dilution.

The basis of Rubin’s argument was rooted in the fact that not a single Asian-American had been elected in Santa Clara since 1951. He said the city had denied the community of its constitutional rights.

The plaintiffs proved by a “preponderance of the evidence” that the at-large method had failed the demographic as a result of dilution, Judge Thomas Kuhnle wrote in his formal proposed decision….


“Not Just Ballots: Tennessee Hack Shows Election Websites Are Vulnerable, Too”

Miles Parks for NPR:

When a WWE wrestler, especially one known for his demonic antics and a move calledthe “tombstone piledriver,” runs for mayor of your county, you know your election is going to get more attention than usual.

But in Knox County, Tenn., it wasn’t the fact that Glenn Jacobs, also known to wrestling fans as Kane, was running for mayor that gained national attention on the county primary day, May 1.

It was that the county’s election website, at the time the site was supposed to begin posting election results, came under attack.

Malicious cyber actors shut down the county website and broke into the web server, according to county officials and a report done by the cyber security firm Sword and Shield.

The episode didn’t have an effect on the outcome of the election, but it shut down the website for an hour and illustrated how malicious actors in the cyber-sphere can have an impact on democracy without actually affecting vote tallies.


“Senate intelligence leaders: Russians schemed to help Trump”


Republican and Democratic leaders of the Senate Intelligence Committee on Wednesday endorsed the U.S. intelligence community’s assessment that Russia intervened in the 2016 presidential election to help President Donald Trump and hurt Hillary Clinton.

It’s a powerful bipartisan endorsement of a conclusion that had been called into question by Republicans on the House Intelligence Committee, who have accused intelligence agencies of failing to employ proper “tradecraft” when they concluded Russia came to support Trump’s candidacy. Instead, it’s the Republicans on the House panel who find themselves isolated in their position in what has become an increasingly antagonistic relationship with the FBI and Justice Department.

See also Trump Jr.’s team wanted stories straight on Russian lawyer meeting