When former Gov. Pat McCrory turned over the keys to North Carolina’s Executive Mansion to Gov. Roy Cooper on Jan. 1, his staff didn’t include the keys to the social media accounts used by the Governor’s Office.
The Republican’s picture still adorns what were his office’s official Facebook, Twitter, and Instagram accounts, and the last post on those platforms dates to a Dec. 31 goodbye message from McCrory.
Martin Wisckol for the OC Register:
Huntington Beach’s Chuck Burns grew concerned as he heard repeated — but mostly unsubstantiated — allegations of voter fraud last year. So once the November election was over, he decided to see how easy it was to use fake information.
He was able to register to vote as Clyde Barrow, the name inspired by the Bonnie-and-Clyde outlaw.“They’re not very thorough when you go to vote,” Burns said. “And last month I decided to try this and see if it would go through.”
But like the real life Barrow, Burns may soon find himself with the law on his trail.
While Burns’ “Barrow” registration did make it to the state voter rolls, his fake drivers license number was caught and he would have been required to show valid ID the first time he tried to vote under the false name.
DOJ has filed this request for a one month extension of a hearing in the trial court hearing the latest round in the Texas voter id case. The motion, which is opposed by the private plaintiffs in the case but supported by the state of Texas, asks for the extension for the following reason: “Because of the change in administration, the Department of Justice also experienced a transition in leadership. The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.”
I expect that in both the North Carolina and Texas voting cases pending in the Supreme Court, and that aspect of the Texas case now pending in the district court, the U.S. DOJ will switch sides and align with the states that passed restrictive voting rules and against the voting rights plaintiffs.
UPDATE: The court has postponed the hearing for a month.
In a 457 page opinion (including appendices) by Trump #SCOTUS shortlister William Pryor, a three-judge federal district court in the Alabama racial gerrymandering case has struck down 12 challenged Alabama districts as unconstitutional. Judge Myron Thompson, in a separate 120-page opinion, agreed those districts were unconstitutional but believed 12 more districts were unconstitutional.
When the case first went to this panel, the two Republican judges on the panel found no racial gerrymander and the one Democrat on the panel found a racial gerrymander.
The Supreme Court reversed, and remanded the case for reconsideration of the matter district by district (instead of looking at the plan as a whole). Today’s ruling is a result of the remand.
The decision comes while two other racial gerrymandering cases are before the Court, and it is possible that one or both sides will appeal this to SCOTUS, and that SCOTUS will send the case back for a third round in light of the other cases now pending before the Supreme Court.
I wrote about the Alabama case in Racial Gerrymandering’s Questionable Revival, 67 Alabama Law Review 365 (2015) and I am writing a new piece on race and party that addresses these issues again.
American law enforcement and intelligence agencies are examining intercepted communications and financial transactions as part of a broad investigation into possible links between Russian officials and associates of President-elect Donald J. Trump, including his former campaign chairman Paul Manafort, current and former senior American officials said.
The continuing counterintelligence investigation means that Mr. Trump will take the oath of office on Friday with his associates under investigation and after the intelligence agencies concluded that the Russian government had worked to help elect him. As president, Mr. Trump will oversee those agencies and have the authority to redirect or stop at least some of these efforts.
It is not clear whether the intercepted communications had anything to do with Mr. Trump’s campaign, or Mr. Trump himself. It is also unclear whether the inquiry has anything to do with an investigation into the hacking of the Democratic National Committee’s computers and other attempts to disrupt the elections in November. The American government has concluded that the Russian government was responsible for a broad computer hacking campaign, including the operation against the D.N.C….
Representatives of the agencies involved declined to comment. Of the half-dozen current and former officials who confirmed the existence of the investigations, some said they were providing information because they feared the new administration would obstruct their efforts. All spoke on condition of anonymity because they were not authorized to discuss the cases.
We spoke with Gupta on Wednesday morning, the last day in her fifth-floor Justice Department office, where pictures of Robert F. Kennedy and Frederick Douglass hung over her desk. The conversation started with the fight to protect voting rights, an issue with long roots in American racism, as Obama indicated in his last news conference as president on Wednesday afternoon.
We shouldn’t be shy discussing that “ugly history,” he told reporters.
“The reason that we are the only country among advanced democracies that makes it harder to vote is it traces directly back to Jim Crow and the legacy of slavery,” Obama added. “And it became sort of acceptable to restrict the franchise. And that’s not who we are. That shouldn’t be who we are. That’s not when America works best.”
But that is the way America works, especially after the Supreme Court’s Shelby County v. Holder decision that largely emasculated the Voting Rights Act of 1965.
That ruling “dealt the Department of Justice a pretty devastating blow,” Gupta said. “It took away a critically important tool that we had to ensure that voting changes big and small were thoroughly evaluated in jurisdictions that had a history of discrimination. … We can’t stop discriminatory laws before they go into effect anymore.”
But even with the Supreme Court-imposed obstacle, the civil rights division scored limited victories. One federal court decision nailed the racist intent of voting restrictions, as cited in the agency’s exit memo: “In July 2016, the U.S. Court of Appeals for the Fourth Circuit struck down a North Carolina law that the court described in its ruling as one of the largest restrictions of the franchise in modern North Carolina history with provisions that ‘target African Americans with almost surgical precision.’”
“We need to continue to ask ourselves why we are making it harder and not easier for people to vote, especially in light of the lack of any real evidence that voter fraud exists,” Gupta said.
Yup. This happens more often than you’d think.
Although the Court granted cert. in two cases today, no word yet on the Texas redistricting case (now up at three conferences) or the North Carolina racial gerrymandering case. There was a chance the Court could have acted on this today given recent Court order stopping the 2017 special elections in North Carolina ordered by the lower court pending resolution of this appeal.
The most likely thing to happen with the North Carolina case is for it to be held for Bethune-Hill (from Va.) and McCrory v. Harris (another NC racial gerrymandering case) to be resolved first this term.
Who knows what will happen with the Texas voter id case? I’d guess if conservatives were confident they’d have a fifth Justice by the time it is heard, they’ll vote to hear it.
David Lat lists a number of Jones Day lawyers going to work for the Trump administration. Among those listed is attorney John M. Gore to be the deputy assistant attorney general for civil rights in the DOJ.
According to Gore’s bio, his has been “actively involved in legislative redistricting litigation.” Under experience, the following redistricting-related cases are listed:
Hempstead’s Town Council redistricting plan is successfully defended against voters’ preliminary injunction action
Jones Day successfully defended the Town Council of the Town of Hempstead, New York, and the Town of Hempstead, New York, in a preliminary injunction action seeking a court imposed redistricting plan.
New York Senate successfully defends redistricting plan against voters’ preliminary injunction action
Jones Day successfully defended New York Senate Majority Leader Dean G. Skelos, Chairman of the New York State Legislative Task Force on Demographic Research and Reapportionment (“LATFOR”) Senator Michael F. Nozzolio, and LATFOR member Welquis R. Lopez in a preliminary injunction action seeking a court-imposed redistricting plan.
President of Florida Senate obtains preclearance from Department of Justice for redistricting plan
Jones Day successfully represented President of the Florida Senate Mike Haridopolos in preclearance proceedings before the U.S. Department of Justice and U.S. District Court for the District of Columbia.
New York Senate obtains preclearance from Department of Justice for redistricting plan
Jones Day successfully represented New York Senate Majority Leader Dean Skelos in preclearance proceedings before the U.S. Department of Justice and U.S. District Court for the District of Columbia.
South Carolina state legislative redistricting plan survives voters’ claims of Equal Protection Clause and Voting Rights Act violations
Jones Day represented Glenn F. McConnell, the President Pro Tempore of the South Carolina State Senate, in a three-judge federal district court case challenging the Senate districts under the Equal Protection Clause and Voting Rights Act.
Senate Majority Leader Skelos wins on appeal in suit challenging the constitutionality of New York’s Senate redistricting plan
Jones Day successfully defended Senate Majority Leader Dean G. Skelos before the trial court and on appeal, in a suit challenging the constitutionality of New York’s redistricting plan for the state Senate.
Few areas of federal policy are likely to change so definitively. President-elect Donald Trump’s nominee to be attorney general, Senator Jeff Sessions of Alabama, opposes not only the Justice Department’s specific policies on civil rights but its entire approach. While liberal Democrats have criticized Mr. Sessions’s views on specific issues like gay marriage and voting, the larger difference is how differently the Trump administration will view the government’s role in those areas.
Painter, Tribe, Eisen, and Matz in the Atlantic.
Federal Election Commission leaders — dogged by abysmal staff morale and a top manager improperly obtaining employees’ confidential critiques — are considering changes to how the agency operates in a bid to restore staff trust.
Chief among them: the creation of a new “ombudsman” office dedicated to investigating and resolving staff complaints and internal conflicts, according to an internal proposal written by the agency’s chairman and obtained by the Center for Public Integrity.
Investigators are examining how money may have moved from the Kremlin to covertly help Trump win, the two sources said. One of the allegations involves whether a system for routinely paying thousands of Russian-American pensioners may have been used to pay some email hackers in the United States or to supply money to intermediaries who would then pay the hackers, the two sources said.
A Republican legislative aide in Maryland who was behind a fake news site that accused Democratic presidential nominee Hillary Clinton of election-rigging was fired Wednesday.
Del. David E. Vogt III (R-Frederick) said he terminated Cameron Harris “on the spot” after learning that he was the mastermind behind ChristianTimesNewspaper.com and its fabricated Sept. 30 article, which reported that there were tens of thousands of “fraudulent Clinton votes found” in an Ohio warehouse.
President Barack Obama broke out the term “fake news” in reference to concerns about voter fraud on Wednesday, making the case that voting should be easier, not more difficult.
Obama was asked in his final news conference as President about race relations in the US, saying that “inequality” was what concerns him most….
He mentioned in particular access to voting as a key concern of his — nothing that the oft-cited explanation for restrictive voting laws of widespread fraud is inaccurate.“This is something that has constantly been disproved,” Obama said. “This is fake news.”
Obama also said the premise that millions of Americans were trying to vote but ineligible was the opposite of reality.“We have a whole country of people who are eligible to vote who don’t vote,” Obama said. “And so the whole idea that we put in place a bunch of barriers to people voting doesn’t make sense.”He added that limits to voting rights “traces directly back to Jim Crow and the legacy of slavery.”
Maggie Haberman for the NYT:
President-elect Donald J. Trump, in a free-flowing speech Wednesday night at a dinner honoring his running mate, Mike Pence, jabbed at his new Republican allies and his critics alike, questioned the ethics of “super PACs” and talked about creating a “merit-based” immigration system….
Mr. Trump also took aim at Mr. Cruz (a “smart guy, he was a little late to the plate, but that’s O.K.”); Gov. Scott Walker of Wisconsin, a rival in the primary (“he can be nasty, that Scott Walker”); members of the “Never Trump” movement (“they’re really right now on a respirator; they’re pretty much gone”); and the casino magnate Sheldon Adelson (he mocked him for being late to donate promised money to outside groups supporting his candidacy).
Such groups, like super PACs, need to be “straightened out,” Mr. Trump said. “People get very rich running PACs.”
Heather Gerken has posted this draft on SSRN (forthcoming, Houston Law Review). Here is the abstract:
In his Frankel Lecture, “Outsourcing Politics: The Hostile Takeovers of Our Hollowed Out Parties,” Sam Issacharoff suggests that legal changes have systematically disabled the leadership of political parties from exercising sway over their candidates. As a result, party leaders cannot create the necessary incentives for moderation, and office holders are being swept away from the center by the gales of polarization.
This paper suggests that, at bottom, Issacharoff isn’t asking the right question. His paper asks how we can reduce the effects of polarization, when the real question may be whether we can. It’s possible that legal changes contributed to rising levels of polarization; but it’s also possible that the two phenomena occurred simultaneously or, at the very least, that the latter matters a good deal more than the former. Issacharoff offers a cheerful tale – give more power to the party leaders, and they’ll rein in the extremists. But there are at least two other possible endings to his story. The first is that even an empowered leadership structure simply can’t exercise enough control over its members to make a difference. The second is that it is possible for the leadership to exercise control over its member, but that shift will only ensure that the leadership is targeted by the same forces now pushing candidates to the extremes. If the DNC has more power, extremists will target the DNC, and the results will be little different.
Issacharoff, in short, wants to give the party leaders a better hand to play. But it doesn’t matter how many trump cards you hold if you are playing in a hurricane.
Andy Kroll for the California Sunday Magazine.
Despite President-elect Donald Trump’s much-publicized efforts to keep lobbyists out of his administration, they have continued to offer policy advice, recommend job candidates and contribute money to his transition team, according to a POLITICO investigation.
And while they’re barred from donating to the $200 million in inaugural festivities this week, lobbyists have been collecting checks on Trump’s behalf, according to four lobbyists interviewed by POLITICO who are directly helping raise the funds.
The loopholes in Trump’s restrictions are so widespread that many lobbyists said they’ve concluded Trump’s ethics rules aren’t really meant to change how business is done in Washington.
The Independence Institute case, a challenge to the regulation of issues speech, has attracted a sizeable roster of amici in support of Supreme Court review. So far the line-up is largely conservative and libertarian, and yet, notably, the arguments are ones that in the Age of Polarization might also —and should– find an audience among progressives. The issue is the constitutional protection available for anonymous issues speech that a speaker, or an association of speakers, may engage in to limit the risk of reprisal or harassment.
For progressives as well as others, there are reasons to take this issue seriously: and some, pointing to Donald Trump, say he is the reason.
One of President-elect Donald Trump’s top congressional liaisons is making the jump to K Street instead of joining the Trump administration.
Scott Mason, who worked as the Trump campaign’s director of congressional relations for the House of Representatives, is joining the top government affairs firm Holland & Knight later this month, a source familiar with the move told CNN on Tuesday. A spokeswoman for Holland & Knight confirmed the hire.
Gabrielle Gurley in TAP.
Josh Douglas has posted this draft on SSRN (forthcoming Northwestern Law Review Online). Here is the abstract:
This Essay highlights how local voter-backed initiatives can play a significant role in dictating voting rights and election rules. The 2016 elections saw various debates on voter-backed changes to local election laws. Voters in various localities decided whether to expand the electorate for local elections, change electoral structures such as imposing term limits or creating independent redistricting commissions, or adopt campaign finance reforms. Most of these ballot initiatives passed. They therefore provide a strategy for how to improve our election process moving forward: start local and normalize the election innovations so that they will eventually trickle across to other municipalities and then influence state and federal policy. This avenue to election law reform is more vital than ever after the results of 2016 federal and state elections. Republicans, who control all branches of the federal government and most state governments, are less likely to enact voter expansions at the statewide or national level. But reformers can look to local laws to demonstrate how these innovations can help to improve our democracy. In addition, the Essay provides courts with a test to employ when facing an inevitable judicial challenge to one of these local election law initiatives: courts should generally defer to local rules that expand the electorate or open up the political process to more people, but should not defer to local voting restrictions or rules that tend to aggrandize the majority’s control or lead to entrenchment. In particular, local laws that enhance democratic participation by expanding the electorate or reducing campaign finance barriers to running for office epitomize the benefits of local democracy and deserve judicial deference.
March 2-3 redistricting conference at Duke.
I talked to Texas Standard.
When Donald J. Trump strides onto the inaugural ballroom floor this week amid the sprawling celebration of his swearing-in, he will have corporate America and many of its titans to thank for the rapturous greeting.
Chevron, the oil giant, has given $500,000 for the dayslong festivities. Boeing, which has been a target of Mr. Trump, pledged $1 million. And Sheldon and Miriam Adelson, giants of the gambling industry, are said to have donated more than that by themselves.
They are far from alone.
From this NY Times story on tensions between the president elect and African-Americans, and a meeting with Martin Luther King III:
Mr. King said the session, which included a discussion about voting rights, had been “constructive,” and described Mr. Trump as eager to present himself as inclusive.
“He said that he is going to represent Americans — he’s said that over and over again,” Mr. King, the president of the Drum Major Institute, a progressive New York-based public policy organization, told reporters. “We will continue to evaluate that.”
On Monday, Mr. King sought to defuse the furor surrounding Mr. Trump’s remarks about Mr. Lewis, saying, “In the heat of emotion, a lot of things get said on both sides.”
Mr. King has pressed for the creation of a free photographic government identification card to make it easier for Americans who do not have driver’s licenses, including many black voters, to cast ballots, and he indicated on Monday that Mr. Trump had taken an interest in the plan.
“It is very clear that the system is not working at its maximum,” Mr. King told reporters. “We believe we provided a solution.”
But other leaders said Mr. Trump’s relationship with African-Americans — tense bordering on toxic after a strident campaign that instilled fear, and a transition that has done little to allay their concerns — would not improve unless the president-elect altered both his tone and his policy positions.
New ACS Issue Brief by Avner Shapiro.
Manu Raju for CNN.
I reported back on January 6 that a federal district court found that the City of Pasadena, TX intentionally discriminated against Latino voters in changing its city council districting plan. (For background, read Jim Rutenberg’s excellent NYT magazine piece, and for follow up, today’s great Manny Fernandez piece.)
When the judge issued her ruling she left open the question of precisely how long and how extensive preclearance should be. The judge has now issued this follow up order (h/t Michael Huerta). Under Section 3 of the Voting Rights Act, once a court has found intentional discrimination in voting the Court may order the jurisdiction to submit changes to preclearance for up to 10 years (for just some changes or for all changes). The plaintiffs wanted 10 years and the city wanted 4. The judge chose a middle position, making sure that the period covered the next round of redistricting after the census in Pasadena (which makes a lot of sense given the violation). Here is the relevant part of the order:
Under 52 U.S.C. § 10302(c), the court retains jurisdiction until June 30, 2023. During this period, no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect on December 1, 2013 may be enforced unless and until the court has found that the qualification, prerequisite, standard, practice, or procedure does not have the purpose, and will not have the effect, of denying or abridging the right to vote on account of race or color or in contravention of the voting guarantees set forth in 52 U.S.C. § 10303(f)(2). The qualification, prerequisite, standard, practice, or procedure may be enforced only after the City of Pasadena has submitted it to the United States Attorney General for preclearance and the Attorney General has not objected within 60 days after the submission. Neither the court’s finding nor the Attorney General’s failure to object will bar a subsequent action to enjoin the implementation or enforcement of the qualification, prerequisite, standard, practice, or procedure.
So this puts the ball in the hands of the voting division at the Justice Department for Trump’s DOJ. (The matters only go to the Court if the jurisdiction does not submit to DOJ: “A change to Pasadena’s map or plan may be enforced without court review only if it has been submitted to the United States Attorney General and the Attorney General has not interposed an objection within 60 days (“preclearance”). You can bet the city will think it would have a better chance before Trump’s DOJ than before this court that has found intentional discrimination. Once approval comes from DOJ, that’s it for preclearance. There’s no appeal of that decision. So there would have to be a new challenge filed in court to the particular objectionable practice.
Lots of people will be watching how the Trump DOJ handles matters like this.
Must-read Manny Fernandez in the NYT on the voting rights case in Pasadena, Texas:
Within days of the Supreme Court striking down the heart of the Voting Rights Act in June 2013, the mayor of this working-class industrial city set in motion a contentious change to the local election system that critics said was aimed at protecting white control of the City Council in the face of rapid growth in the city’s Hispanic population.
It set off a furor, which was only inflamed when at a subsequent redistricting hearing, the mayor, Johnny Isbell, brought a gun. At another meeting, he ordered police officers to remove a council member for violating a three-minute speaking limit.
Asked by SCOTUSblog why he was pursuing the change, Mr. Isbell replied, “Because the Justice Department can no longer tell us what to do.”
But just after the new year, a federal judge ordered the Justice Department to do precisely that — making Pasadena the first municipality in the country ordered by a court to submit, against its wishes, to federal approval of its electoral system since the Supreme Court’s 2013 decision.
Ariane de Vogue for CNN:
Even before President-elect Donald Trump’s inauguration, top Democrats — including President Barack Obama — are already launching efforts to reshape the electoral landscape.
Faced with a stinging loss at the polls, a conservative-leaning Supreme Court and an incoming attorney general who testified this week about the dangers of voter fraud, Democrats are starting early to change the legal terrain in four years.On Thursday, former Attorney General Eric Holder vowed, jokingly, “to make redistricting sexy.” The comments came at a news conference held to launch a new group called the National Democratic Redistricting Committee. Holder said Obama has told him that he wants to dedicate a part of his post administration life to the issue.The plans discussed are two-fold: a comprehensive redistricting strategy ahead of the 2020 census and new efforts to combat laws that progressives believe are veiled attempts to suppress the vote.
On Friday, Representative John Lewis, Democrat of Georgia, declared that he did not view Donald J. Trump as a “legitimate president.” Mr. Lewis, an icon of the civil rights movement, said he planned to boycott the inauguration, the first he will skip in three decades.
On Saturday, Mr. Trump hit back.
“Congressman John Lewis should spend more time on fixing and helping his district, which is in horrible shape and falling apart (not to mention crime infested) rather than falsely complaining about the election results,” Mr. Trump said in a pair of early morning Twitter posts.
“All talk, talk, talk — no action or results,” he added. “Sad!”
While some questioned Mr. Lewis’s assertion, many others expressed indignation about Mr. Trump’s outburst, pointing out the unseemliness of attacking a civil rights leader on the eve of Martin Luther King Jr. Day. Mr. Lewis was one of the original Freedom Riders, beaten by police officers while marching from Selma to Montgomery in Alabama.
The Republican Governors Association just wrote a $5 million check — the largest single political donation in Virginia’s history — with the goal of putting a Republican in the governor’s mansion.
The whopping contribution suggests Republicans like their odds in the commonwealth, one of just two states to hold governor’s races this year. But the structure of the donation would allow the RGA to take the money back if that outlook changes.
Donald Trump’s incoming White House chief of staff warned the director of the Office of Government Ethics on Sunday to “be careful” about criticizing Trump’s handling of his business conflicts.
The way New York runs its elections is facing scrutiny. One day after the Justice Department intervened in a lawsuit against the New York City Board of Elections for breaking federal law, a good government group is grading New York on the health of its state election law.
In report to be released Friday, Common Cause New York gave the state a D-minus for election administration — not quite a failing grade, but barely a passing one.
The grade is based on the group’s analysis of how well the state meets the reform recommendations made by a bipartisan presidential commission appointed after the 2012 election. It also compares New York to other states and examines what bills state legislators have introduced — and how many fail to make it out of committee.
“[Lawmakers] are not at all dealing with the demands of 21st century elections,” said Susan Lerner, executive director of Common Cause New York.
Some important folks in the field signing this letter:
We enthusiastically support your dedicated leadership efforts to investigate thec ybersecurity vulnerabilities in our country’s 2016 election process. We are a group of volunteer election systems technical experts and citizen advocates for secure and transparent elections. The purpose of our letter is to encourage you to expand the scope of your inquiries to include vulnerable elements of the election system that are being overlooked in the public discussions.There is a very common misunderstanding that voting systems are not vulnerable and that it would be difficult to alter election outcomes. This meme has been repeated inmany public forums….The significant cybersecurity weaknesses in our election system are well known to many computer security professionals as well as unfriendly nations and domestic criminals. Yet federal, state, and private monitoring, analysis, and oversight to protect the very foundation of our democracy is minimal.Even while the Department ofHomeland Security made its services available to election jurisdictions nationwide in the pre-election period, to our knowledge they were not examining voting and vote tallyingsystems for vulnerabilities, but rather scanning voter registration databases and systems for breaches.
Here is today’s Court’s order.
What does it mean that there was no order on Texas, despite the fact that the cases was considered and then relisted from last week?
It could mean that as early as Tuesday (when the Court is expected to issue more orders), there will be an order denying hearing in the case. That would keep the case on track in the district court, to both consider whether Texas acted with racially discriminatory intent and to fashion a more permanent remedy in the case.
But sometimes cases are relisted multiple times before the Court does something (that something could be an eventual grant, a denial, a denial with a dissent, etc.)
One possibility is that the Court delayed so that there’s less chance the case would be heard by an 8-Justice Court, where the Court could well divide 4-4 in a case like this.
So we will have to wait and see.
It is greatly regrettable that states did not adopt this electoral change previously. But as there is no constitutional obstacle to their doing so, we can only hope that they muster the political will to make this change sometime soon—preferably before 2020. For anyone concerned about the health of American democracy in the aftermath of the 2016 presidential election, this reform is worth rallying around. Given the power of the presidency, and thus the importance of the office, we should make sure that the candidate who wins the Electoral College is the one actually preferred by a majority of voters in each state necessary for that Electoral College victory.