North Carolina Will Appeal Racial Gerrymandering Case Involving Congressional Districts

See here.

I expect the state’s lawyers are spending the weekend drafting an emergency motion to SCOTUS to stay this ruling for the March election, given that absentee ballots are already out. I would not at all be surprised to see a stay even if, as seems fairly likely, this ruling is ultimately affirmed by the Supreme Court for future elections.

And of course, North Carolina could potentially moot this case by drawing new districts that are political, but not arguably racial, gerrymanders.


Indefensible: WI Supreme Court Won’t Allow Prosecutors to Get Outside PRO BONO Help in Case Against WI Supreme Court

So there’s a potential claim that WI Supreme Court justices should have recused themselves from deciding the John Doe case, given that they themselves benefitted from campaign financing by the same groups in the case.  The district attorneys asked for outside help on those cases, from an outside law firm specializing in SCOTUS appeals which would work pro bono (for free).

And today the Wisconsin Supreme Court, itself the target of the appeal, said no (over Justice Abrahamson’s dissent).

Heck, the Justices won’t even let an outside printing company print redacted portions of the John Doe record for the Supreme Court appeal.

This is totally indefensible.

Howard rounds up the stories.


“WH response to petition offends campaign finance advocates”

The Hill:

Activists say they are offended by the White House’s response Friday to a petition signed by more than 117,000 people demanding that federal contractors be required to disclose political spending.

The petition, generated on the White House We the People petition page, called for President Obama to take action now or be remembered as the president whose inaction aided the rise of secret money in politics. But the White House, which had 60 days to respond, only reiterated remarks from the president’s last State of the Union address.

“We have to reduce the influence of money in our politics, so that a handful of families and hidden interests can’t bankroll our elections  —  and if our existing approach to campaign finance can’t pass muster in the courts, we need to work together to find a real solution,” the We the People Team wrote, quoting Obama.
Rootstrikers, an activist organization fighting money in politics, called the response “offensive” and “wholly unsatisfactory.”


“Ask the Author: Richard L. Hasen”

Kate Ackley interviewed me for CQ Weekly ($):

In his new book, “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections,” law professor Richard L. Hasen of the University of California, Irvine, calls President Barack Obama a hypocrite on political money issues and suggests controversial remedies, such as outlawing fundraising by lobbyists, to quell what he views as out-of-control campaign spending.

 Hasen spoke to CQ’s Kate Ackley. Here’s an edited transcript

“Donald Trump’s Campaign, Billed as Self-Funded, Risks Little of His Fortune”


What remains is a quintessentially Trumpian endeavor that blurs the line between campaigning and brand-building and complicates Mr. Trump’s claims that he is funding his own White House campaign. About three-quarters of Mr. Trump’s total campaign spending has either gone to reimburse his own businesses or has been covered by funds from grass-roots donors, according to an analysis by The New York Times of F.E.C. reports. Virtually all of the money Mr. Trump himself has put into the campaign was lent, rather than donated outright, meaning that he could potentially sell enough hats and T-shirts to pay himself back down the road.


3-Judge Federal Court Strikes Down 2 North Carolina Congressional Districts as Racial Gerrymanders

The 100 pages of opinions are here. One of the three judges dissented as to one of the two districts.

If North Carolina wishes, it could seek direct Supreme Court review. There is already a Virginia case raising similar issues before the Court. And we are waiting for other rulings in similar cases, including the remand of the Alabama racial gerrymandering case from last year which got this ball rolling.

On these cases, see my piece, Racial Gerrymandering’s Questionable Revival, Alabama Law Review (forthcoming 2015) (draft available).

Update: The court has given two weeks to parties to redraw these districts, but early voting has already begun. [Correction: It is absentee voting, not in person early voting which has already started.] Republican lawmakers have already criticized this change as “eleventh hour.”

The state might file an emergency motion with the Supreme Court, and the Court could delay this ruling. The Supreme Court has been very wary of allowing court changes to election rules just before the election. (See this paper on the Purcell Principle).



“Judge puts Michigan ‘gag order’ election law on hold”

Detroit Free Press:

A federal judge agreed to put at least a temporary halt to an election law bill passed in December that would restrict how local and school officials communicate with their residents about ballot proposals and millage issues.

U.S. District Judge John Corbett O’Meara ruled Friday that the bill, the last one passed at the end of the year without any public hearings or debate, is unconstitutionally vague and an infringement on free speech rights.


“All the money in the world isn’t buying votes this primary season”

Noah Bierman for the LAT:

Money may yet prevail in this year’s presidential election, but the failure so far of big donors to propel candidates to the top of the heap has shown the limitations of even huge stockpiles of cash and put some critics of lax campaign finance laws on the defensive.

Former Florida Gov. Jeb Bush, who has collected more super-PAC money than any candidate, finished with less than 3% of the vote in Iowa, where his super PAC spent about $3,000 on television ads for every vote he won. Although he says he hopes for a “reset” in New Hampshire, Bush has lagged badly in polls leading up to Tuesday’s primary there.

Wisconsin Gov. Scott Walker, another early favorite of the big-donor class, dropped out four months before the first ballots were cast.


Meanwhile, two candidates who rail against big money and declined to establish their own super PACs, Republican Donald Trump and Vermont Sen. Bernie Sanders, a democratic socialist running as a Democrat, finished near the top of their races.

The lesson, says Richard L. Hasen, a professor at UC Irvine and author of a new book on campaign spending, “Plutocrats United,” is that money remains powerful, but not all powerful.


“The Supreme Court and the 2016 Elections”

Looking forward to this event Feb. 22 at UCI Law (which will be livestreamed):

UCI Law Professor Rick Hasen and Ed Whelan, president of the Ethics and Public Policy Center (EPPC), a conservative D.C. think tank, will offer perspectives on the Supreme Court and the 2016 elections. The event will be moderated by UCI Law professor Henry Weinstein. The panelists will discuss questions such as why Democratic-appointed and Republican-appointed Justices differ on constitutional law and statutory interpretation, the extent to which the Supreme Court will be an issue in the 2016 election, and the extent to which the 2016 elections will influence the future of the Supreme Court….

This program is co-sponsored by the UCI Law Speakers Series, and the UCI Law student chapters of the American Constitution Society and The Federalist Society.

RSVP here by February 19 to reserve your seat. Lunch will be provided.



“Nevada Democratic caucus overlooks Sabbath observers”

Las Vegas Review Journal:

Observant Jews and Seventh-day Adventists who want to caucus with Nevada Democrats on Feb. 20 are out of luck.

The party’s noon caucus falls squarely in the middle of a Saturday, a sacred day of rest and worship for both faiths.

Jewish clergy said the timing of the caucus disenfranchises those who want to participate and pointed out that other high-profile early-state caucuses and primaries don’t fall on a Saturday.

A party spokesman said the big event is set for that day and time to maximize participation.

I’ve complained about this before as a reason to kill the caucuses. In 2012, Republicans had a post-sundown caucus to accommodate observant Jews.


“Claims about Corruption in the Case for Political Equality”


There is a shift here to more careful claims about what money buys and when: that it counts for more in some races than in others; that it is not all that effective if the candidate is a “bad product”; that money’s effects are more of a “skew” than a power play; and that those effects are not always all that obvious unless you look closely.  But there is little change in the statement of campaign money’s impact: it is large, pernicious and pervasive, and it accounts for “the rise of a plutocratic class capturing private benefits for personal gain.”

Now this position may sound like the long-standing corruption argument now having to straddle the line between its empirical and moral foundations—having to concede after all this time the complexity of money’s effects while insisting that the corruption remains as bad as ever.  But Rick is not an anti-corruption theorist of the old school.  He is arguing for campaign finance regulation as an antidote to extreme political inequality, a position forcefully and skillfully laid out in his new book, Plutocrats United.


“Enough about our ‘corrupt campaign finance system’ already. Let’s talk equality.”

Lee Drutman at Vox offers a generous review of my book, Plutocrats United:

In reading Plutocrats United, I found myself doing a lot of nodding to myself. I am on board with Hasen — equality is a much more sensible and practical justification for regulating campaign finance.

But Sanders gets big applause lines when he says things like, “We can no longer continue to have a corrupt campaign finance system.” Corruption polls well. That’s the reason Larry Lessig has used it in his various political adventures.

And for decades, campaign finance reformers have played to the central role that the Court gave corruption in Buckley. They’ve now spent four decades trying to prove that our campaign finance system is “corrupt,” searching for that always elusive evidence that would somehow convince the Court.

But they haven’t succeeded. At what point is it time to accept Einstein’s famous definition of insanity: “doing the same thing over and over again and expecting a different result”? Maybe that time has finally come.


“Editorial: Something smells in the Democratic Party”

Des Moines Register:

Once again the world is laughing at Iowa. Late-night comedians and social media mavens are having afield day with jokes about missing caucusgoers andcoin flips.

That’s fine. We can take ribbing over our quirky process. But what we can’t stomach is even the whiff of impropriety or error.

What happened Monday night at the Democratic caucuses was a debacle, period. Democracy, particularly at the local party level, can be slow, messy and obscure. But the refusal to undergo scrutiny or allow for an appeal reeks of autocracy.


“Va. elections board officially repeals loyalty pledge at GOP request”


Donald Trump may have come in second in the Iowa caucuses. But the presidential candidate scored victory in Virginia on Thursday, when the state Board of Elections officially repealed a controversial loyalty pledge at the request of the state GOP.

Under the now-rescinded pledge, voters wishing to choose the Republican presidential nominee in the March 1 primary would have had to sign a statement affirming they were Republicans.


“The Conservative Playbook for Keeping ‘Dark Money’ Dark”


How do you stop states and cities from forcing more disclosure of so-called dark money in politics? Get the debate to focus on an “average Joe,” not a wealthy person. Find examples of “inconsequential donation amounts.” Point out that naming donors would be a threat to “innocents,” including their children, families and co-workers.

And never call it dark money. “Private giving” sounds better.

The documents obtained by ProPublica were prepared by the State Policy Network, which helps conservative think tanks in 50 states supply legislators with research friendly to their causes, and the Conservative Action Project (CAP), a Washington policy group founded by Edwin Meese, a Reagan-era attorney general.


“Does Big Money Still Matter? You Bet It Does”

Eliza Newlin Carney in TAP:

Good-government advocates are “oblivious to the failure of ‘big money’ to dictate the race,” wrote Bradley Smith, chairman of the Center for Competitive Politics, in a Wall Street Journal commentary headlined “That’s Odd, ‘Big Money’ Isn’t Buying This Election.” One of the contest’s “unexpected surprises,” wrote New America senior fellow Lee Drutman, is how well Donald Trump and Bernie Sanders have done with such little backing from wealthy donors.

It’s easy to see why billionaire donors don’t look so influential anymore. Former Florida Governor Jeb Bush and his super PAC spent $14.9 million on the Iowa caucuses, but won just 5,238 voters (a mere 2.8 percent of the total GOP vote) and a single delegate. That added up to $2,845 per vote—a dismal showing that U.S. News & World Report dubbed “by far the worst bang-for-the-buck performance” of any GOP candidate.

But the failure of Bush or any other big spender to win an election says little about the actual role that money plays in politics and—perhaps more important—in policy-making. As a long list of self-financed millionaire candidates can attest, having the biggest wallet is no guarantee of success. And as election lawyer and author of the recent book Plutocrats United Richard Hasen has noted, the real issue is not just how political money boosts candidates, but how it helps big donors win the tax breaks, contracts, and policies they seek.

Also overlooked in the argument that money doesn’t matter is the ever-growing role that millionaire and billionaire donors are playing in elections other than the race for the White House. Super PACs, which may raise unlimited contributions if they don’t coordinate with candidates, are wading aggressively into not just House and Senate contests, but into gubernatorial, state legislative, mayoral, city council, and even school board races.

“Ryan backs voting rights bill — but tells black caucus it’s out of his hands”


Speaker Paul Ryan (R-Wis.) told black lawmakers Wednesday that he supports new voting rights protections they’ve championed, but said he won’t bypass a committee chairman to move legislation, according to a Democrat who attended the gathering.

“He said it right in front of everybody — he said he supports the [Jim] Sensenbrenner bill,” Rep. Emanuel Cleaver (D-Mo.), former chairman of the Congressional Black Caucus (CBC), said after Ryan met with the group on Capitol Hill.

“So somebody was saying, ‘Well, why don’t you go tell your committee chair to do it?’ ” Cleaver added. “And he said, … ‘Look, I can’t do that.’


“The Unenforceability of the Electoral Count Act’s Procedural Provisions”

Chris Land has posted this draft on SSRN.  Here is the abstract:

The Electoral Count Act governs the procedures used by Congress to tabulate Presidential election results every four years. The Act contains a number of provisions that purport to restrict debate, points of order, and other parliamentary motions that can be offered while certificates of vote are counted by the President of the Senate. These restrictions likely are unenforceable based on the Rules Clause of the Constitution and Supreme Court precedent interpreting this provision. Part II of this Article seeks to answer the threshold question of what institution counts our electoral votes — a constitutionally unique ‘Joint Session’ or merely a simultaneous meeting of the House and Senate. Part III analyzes the 1877 Electoral Commission and argues that this entity was a permissible delegation of Congressional authority. Part IV discusses the 2000 electoral count and contends that the provisions of the Electoral Count Act cited by Vice President Al Gore are unenforceable. Finally, Part V asserts that the enforceability of the Electoral Count Act is justiciable and federal court resolution would likely be a necessary last resort in the midst of a contested election.


“Alaska Speaks Up For Self-Government”

Free Speech for People:

On Monday, the State of Alaska filed an important legal brief setting forth a bold argument forself-government as a theory for limiting out-of-state money in local and state election campaigns. The state’s lawyers discussed the case with Free Speech For People while developing the brief, and we’d like to highlight this aspect of the argument….his argument draws support from a little-reported Supreme Court decision just two years afterCitizens United. The case of Bluman v. FEC involved a federal law prohibiting foreign nationals from contributing or spending money in federal, state, or local elections. Two Canadians in the U.S. on temporary visas challenged the prohibition—after all, Citizens United had just a year before waxed poetic about how a ban on corporate political spending violated the prohibition against “distinguishing among different speakers, allowing speech by some but not others” and thereby “deprive[d] the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” If corporations can spend unlimited money in elections, why couldn’t Mr. Bluman spend a few bucks to “print flyers supporting President Obama’s reelection and to distribute them in Central Park”?


“The Strange Career of James Crow, Esquire”

William Barber and Jonathan Wilson-Hartgrove in The Atlantic:

Throughout the McCrory trial, NAACP lawyers made a strong case that the voter-ID component of this legislation places an unnecessary and undue burden on voters—especially poor and African American voters. A verdict is expected in a few weeks. But the case is really about much more than defeating voter-ID laws. It is about a central question of 21st-century American politics: Is a multiethnic democracy possible?


EAC’s Brian Newby Defends His Actions Helping His Buddy Kobach

Must-read Zach Roth for MSNBC:

Newby’s move sparked instant criticism. In astatement posted online Tuesday, the panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that Newby had acted “unilaterally,” and that his decision “contradicts policy and precedent established by the Commission.” Hicks noted that a 2015 EAC statement makes clear that the executive director lacks the authority to set policy, which must be done by the commissioners. Hicks said any change to the federal voter registration form would need to be voted on by the commissioners after a public comment period, neither of which occurred in this case.

“This is a shocking departure from two previous rejections by the EAC of requests to change the federal form along these lines, with no explanation, and, what’s worse, with no opportunity for public notice and comment,” said Dale Ho, the director of the ACLU’s voting rights program, which is suing Kobach over the proof-of-citizenship requirement, calling it “troubling on a number of levels.”…

In an interview with MSNBC, Newby conceded that he lacks the authority to change EAC policy. But he argued that changing the state-specific instructions that accompany the federal voter registration form, unlike changing the form itself, constituted an administrative matter, rather than a policy change— even though the agency had twice rejected Kansas’ requests to change the instructions. In fact, Newby said, he believes he’s required to change the instructions if a state asks him to.

“If a state requests that we modify the state-specific instructions based on their state law, yes, I believe that my role is to put those [changes] in our state-specific instructions,” Newby said.

If there’s a meaningful distinction between the federal form and the instructions that accompany the federal form, it was lost even on Kobach. In his court filing this week seeking to have the lawsuit against him dismissed, he referred to Newby’s decision thus: “On January 29, 2015 (sic), the EAC granted Kansas’s request to modify the Federal Form.”

William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to remove the roughly 30,000 would-be voters who didn’t provide proof of citizenship, said the distinction Newby is seeking to draw doesn’t hold water….
Newby admitted to MSNBC he’d been in contact with Kobach on the issue, as well as with the secretaries of state of Alabama and Georgia. He said there was nothing improper about doing so, or about not including the the EAC’s commissioners in his conversations with state officials.
“It wouldn’t have been proper to include the commissioners in any of the discussions I had with the secretaries of state,” Newby said. “It was really my jurisdiction, my process.”

Greg Sargent on Clinton-Sanders Fight Over Clinton Wall St. Donations

Good point:

In making this broad argument, Sanders is implicitly indicting not just Clinton, but President Obama and many Democrats who voted for Dodd-Frank financial reform. Indeed, that’s the essence of Sanders’ whole case: Obama achievements such as the Affordable Care Act and Dodd-Frank, while laudable, still fall woefully short of addressing the scale of our challenges and meeting the ideal of distributive justice that Sanders is championing. This, Sanders says, is because Obama failed to break the power of the oligarchy, both by failing to rally a large enough grassroots movement against it and by continuing to take money from it. On both fronts, Sanders will do otherwise.

And yet, at bottom, Sanders is not quite willing to say why it is that the acceptance of oligarchic money by specific individual Democratic politicians, such as Clinton or Obama, leads them directly to personally embrace policies that are insufficiently ambitious to address the soaring inequality that poses a quasi-extistential threat to the middle class and our political economy.

To be clear, as noted above, Sanders is also specifically criticizing Clinton’s policies, which is fair game, and more broadly, there’s nothing wrong with Sanders indicting the entire Democratic establishment. We should be debating the question of how big money paralyzes our system and skews Congressional policy-making in both parties towards the interests of the wealthy. But there are still fundamental unanswered questions at the heart of this Clinton-Sanders argument, and both candidates should fill this void. Clinton could do so by explaining why it is that accepting Wall Street moneydoes not constrain her in policy terms.


“Sotomayor Tops Justices For Number of Public Appearances”

Tony Mauro for NLJ:


Kwan acknowledges she’s “positive we have missed things,” estimating that the site captures 80 percent of the justices’ appearances. Hosting organizations and institutions sometimes do not publicize visits at the request of justices or for other reasons. The court’s public information office only occasionally alerts the news media about upcoming justices’ off-the-bench talks.

The large total number of appearances—282 since July 2014—fits in with the growing sense that, as individuals, justices have become more visible in recent years.

Stepping Out: Justices’ Public Appearances Since July 2014 

Sotomayor 53
Scalia 51
Ginsburg 49
Breyer 42
Alito 27
Kagan 23
Kennedy 17
Roberts 11
Thomas 9

Source: SCOTUS Map (

“It is not your imagination. Supreme Court justices are in the news more than ever,” University of California, Irvine School of law professor Richard Hasen wrote in a forthcoming article. Using data about justices’ appearances and press interviews since 1960, Hasen created a “Celebrity Index” by dividing the number of justices’ appearances by the number of years they served. Nine of the top 10 justices in the index are currently on the court.

Their increased visibility is also a function of modern technology, Hasen cautioned. Decades ago, justices could slip into town and even give a speech without being noticed. But now, Hasen said, justices are learning what police officers have come to know: “Once people have access to the Internet and a smartphone, anything spoken publicly is capable of being recorded … and eventually picked up by a wide audience.”

The frequency of justices’ public events and where they take place provides “an interesting snapshot of where the justices’ like to spend time,” Kwan said. Justice Ruth Bader Ginsburg favors opera festivals in the summertime, and Justice Stephen Breyer will attend “any event that will allow him to speak French,” Kwan joked.



“Political Dynamism: A new approach to making government work again”

The New America Foundation will hold this event on Feb. 16, in connection with this new report by Lee Drutman.

The answer, in short, is more politics: a political system that is fluid and competitive; a system that leverages diversity and creates opportunity for experimentation and change; a political system that expands, not limits, the combinatorial possibilities of political innovation and deal-making; a political system that helps citizens to aggregate and realize their interests in the most efficacious ways, rather than simultaneously expecting them to be super-engaged and expert while giving them few meaningful choices.