“Another redistricting lawsuit filed in NC — this one over Wake election districts”

News & Observer:

Organizations that have challenged North Carolina redistricting plans are going back to state court over the General Assembly’s redrawing last year of election districts — this time with a new lawsuit challenging four state House districts in Wake County.

The challengers are arguing that lawmakers violated the state constitution when they redrew Wake County election districts mid-decade when federal judges had not ordered them to do so to correct other districts ruled to be racial gerrymanders.

Read the complaint.


“The challenge facing the challenge to winner-take-all systems in the Electoral College”

Derek Muller:

David Boies is leading an effort to challenge the winner-take-all method that most states use when awarding presidential electors. There are different ways states might award electors (which I used to project alternative electoral outcomes in 2016).

Brenden Cline in 2017 nicely summarized the series of major problems with this litigation. It’s been argued and rejected before. Simply put, states have essentially plenary authority to choose the method of appointing electors, and the winner-take-all method has been around for 200 years, and used basically everywhere since the Civil War–with brief exceptions in Colorado in 1876 (legislative selection), Michigan in 1892 (district method), and Nebraska and Maine (district method) in recent years. (I discuss this plenary authority in 2007 and 2008 Election Law Journal pieces, which conclude that that plenary authority does not extend to states entering into interstate compacts with one another concerning the award of electors–at least not without congressional consent. I also discuss it as an element of federalism in Invisible Federalism and the Electoral College, 44 Arizona State Law Journal 1237 (2012).)

Since Election Day, a number of litigants–admittedly, mostly (if not all!) pro se–have attempted to file just such challenges. They’ve lost every time (0-6 by my count)….


“Section 5’s Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan”

Christopher Schmidt has posted this draft on SSRN (forthcoming Northwestern U. Law Review). Here is the abstract:

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan (1966). Justice Brennan’s opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation” the rights enumerated in that amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in Boerne v. Flores (1997) the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today Morgan stands largely as an aberration of American constitutional law.

This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history of Section 5 during a period when most have assumed it had no presence, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.


“Who Needs Congressional Districts?” and a Possible Answer

Michael Tomasky NYT oped:

Now imagine that the state’s House delegation were chosen differently — nine from districts, and nine via general ticket. That latter group would have to win statewide. That means they’d be more likely to tailor a message that could win a respectable percentage of the vote in the Philadelphia suburbs, where most Pennsylvania statewide elections are won or lost. That might produce a different kind of representative — one who had incentives to compromise instead of incentives to obstruct.

Michael Li:



“Memphis City Council quietly works on anti-instant runoffs bill”


The Memphis City Council worked behind the scenes to find a sponsor for legislation this year that could ban instant-runoff elections statewide and forestall the Shelby County Election Commission from using the method for the first time in 2019.

The council recently instructed The Ingram Group — a well-connected, Nashville-based lobbying firm the council hired for $120,000 per year in November — to ask Republican Sen. Ken Yager of Kingston to carry the bill this year, council attorney Allan Wade confirmed Monday.

Republican Rep. Mark White of Memphis, who proposed the bill last year but made little headway, said the firm also approached him on the council’s behalf to ask if he would again sponsor the bill in the House.

Memphis Flyer Editorial: Memphis City Council Duplicity


A VRA Claim in Pennsylvania?

Rick noted that there’s been some talk of a VRA challenge to the new Pennsylvania congressional districts. An initial obstacle to such a claim is that the relevant new districts are nearly identical, demographically, to their predecessors. PlanScore’s pages for the old and new plans include the most up-to-date minority citizen voting-age population (CVAP) shares for all of the districts. The old plan had one black-majority district (District 2, 57.5% black CVAP) and one arguable coalition district (District 1, 33.3% black CVAP, 12.6% Hispanic CVAP). The new plan also has one black-majority district (District 3, 57.3% CVAP) and one arguable coalition district (District 2, 25.3% black CVAP, 19.7% Hispanic CVAP). It seems unlikely that if the old districts didn’t dilute minorities’ votes, the new ones, with their almost indistinguishable minority CVAP shares, would. (This is to say nothing of all the other hurdles a VRA claim would face: showing that two compact majority-minority districts could be drawn in the area, proving sufficient racial polarization in voting, demonstrating political cohesion between black and Hispanic voters, and so on.)


“New Pa. congressional district map could be challenged by Common Cause, NAACP on civil rights grounds”

This development is unexpected:

Micah Sims, executive director of Common Cause Pennsylvania, said his organization and the state NAACP are considering filing suit in federal court to challenge the new map imposed by the Pennsylvania Supreme Court this week.

He said it may violate the 1965 Voting Rights Act, which banned obstacles to voting by minorities.

Under Pennsylvania’s former 2011 map, drawn by Republicans, nonwhites make up a majority of residents in two Philadelphia-based congressional districts. In the new map, people of color appear to be the majority in only one district, he said….

A challenge to the map under the Voting Rights Act would require substantial evidence beyond simple demographics, said Michael McDonald, a political science professor at the University of Florida who has served as an expert witness or consultant in multiple redistricting and election lawsuits.

If there is a significant minority community in a geographic area, the Voting Rights Act does not require that the congressional district be drawn to be majority-minority, McDonald said. The law requires that the minority be able to effectively elect the candidate of its choosing.

“It’s going to be difficult to mount the evidence,” McDonald said. “If the evidence is going to fall back to, ‘The district was reduced in African American population,’ that’s not sufficient. You’ve got to establish that the African American community is not effective in electing its candidate of choice.”

That can be complicated, he said. For one thing, the minority community’s preferred candidate can be white, or of another racial or ethnic group…..


“The Myth of the Hacker-Proof Voting Machine”

Kim Zetter for NYT Magazine:

But for as long as experts have warned about security problems, voting machine makers and election officials have denied that the machines can be remotely hacked. The reason, they say, is that the systems are not connected to the internet — an assurance the public has largely accepted. This defense was never more loudly expressed than in 2016, when the government disclosed that Russian hackers were probing American voter-registration systems and had breached at least one of them. Concerned that hacking fears could make the public less likely to vote, the United States Election Assistance Commission and state election officials rushed to assert that there was no need to worry about the votes because voting machines themselves were isolated from the internet.

The reality, as the incident in Venango County makes clear, is far more complicated.

Venango removed the remote-access software and isolated its system after Eckhardt and colleagues pointed out the security risk. But it’s likely that the software is still installed on other election systems around the country. ES&S has in the past sometimes sold its election-management system with remote-access software preinstalled, according to one official; and where it wasn’t preloaded, the company advised officials to install it so ES&S technicians could remotely access the systems via modem, as Venango County’s contractor did, to troubleshoot and provide maintenance.


Breaking: Pennsylvania Republican Legislative Leaders Petition Justice Alito AGAIN to Block Pa Congressional Redistricting Plan Ordered by State Supreme Court

You can find the new petition here. The petition will go to Justice Alito, who can decide the matter himself or refer to the entire Court. Last time Justice Alito decided the matter himself, after asking for a response from the other side.

Like the last petition, this petition argues that the Pennsylvania Supreme Court, by holding that the existing maps violated the state Constitution, usurped the power to draw Congressional maps given to state legislatures (unless Congress overrides). As I recently explained;

Because this was a case decided under the state constitution by the state supreme court, the usual path for review of this case by the U.S. Supreme Court is limited. The only plausible argument I see is that the maps violate the Elections Clause of the Constitution, which vests in the state legislature the power to choose rules for congressional elections (unless Congress acts to preempt them).
The problem with this argument is that the Pa Republicans already went to the Supreme Court when the state supreme court announced a redistricting– and Republicans raised the very same argument. At the time it was raised, I called the argument a long shot, given a line of cases (most recently a 2015 case from Arizona) reading the word legislature much more broadly in the context of the elections clause. The emergency stay request went to Justice Alito, who denied it without even referring it to the Court. So he likely did not think much of it at the time.
Now it is quite possible that Pa. Republicans will go back to Justice Alito, arguing that things are even worse now that the state Supreme Court has adopted a map itself. That’s the job first and foremost for the legislature. But remember that the Pa. legislature did not even come up with an official passed plan for the state supreme court to reject. (A pair of legislative leaders had a plan, but it was not passed by the legislature.) This seems to give Pa. Republicans even less standing to complain about things. I expect something new filed with Justice Alito will get no further. (After all, we are even later into the election season.)



Kentucky: “‘No voter fraud’ in Bullitt County election, clerk says, despite Johnson campaign’s claims”

Courier Journal:

The Bullitt County Clerk’s Office rejected claims from Rebecca Johnson’s campaign that her defeat was caused by voter fraud in Tuesday night’s special election.

“There was no voter fraud,” Bullitt County Clerk Kevin Mooney told Courier Journal. “While there was some human error, I don’t believe it was significant … it was a straight forwarded election.” …

Mooney said that there was one subdivision in Mt. Washington that was split between the 26th House District and the 49th House District. Approximately 20 or so voters who were set to vote at Bullitt East High School were sent to Bullitt Middle instead to vote.


“Trump’s former bodyguard makes $15,000 a month from a GOP ‘slush fund'”


When President Donald Trump‘s longtime bodyguard Keith Schiller decided to leave his White House job last fall, many in the West Wing wondered how the president would manage without his personal security chief-turned-confidant, who had been working for Trump nearly 20 years.

As it turns out, Schiller didn’t go very far. Within weeks of leaving his job as director of Oval Office operations, Schiller’s private security firm, KS Global Group, began collecting $15,000 a month for “security services” from the Republican National Committee.

According to an RNC official, Schiller is being paid for security consulting on the site selection process for the 2020 Republican National Convention. Schiller’s fee comes out of the RNC’s convention fund, not its campaign fund, the official noted.

Campaign finance watchdog groups, however, were quick to cry foul.

“These sorts of party accounts are notorious for being operated as slush funds — lightly regulated and ripe for abuse,” said Stephen Spaulding, former special counsel at the Federal Election Commission and now chief of strategy at the nonpartisan advocacy group Common Cause.


“FAN 179 (First Amendment News): Does existing First Amendment law endanger our national security and sovereignty? Prof. Hasen says yes”

I have this guest post over at Concurring Opinions. It begins:

Last week, special counsel Robert Mueller secured a grand jury indictment of 13 Russian nationals for interfering with the 2016 U.S. presidential elections by, among other things, paying for political advertisements promoting Donald Trump for President and opposing Hillary Clinton. The claims were based in part on federal law barring most foreign nationals from spending money to influence U.S elections. But thanks to the First Amendment, some of the activity described in the indictment may not be illegal. More importantly, going forward, the indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. Indeed, if Congress acts to curb future foreign interference, the Court could well face the question whether national security and sovereignty concerns should override the current line it has drawn in campaign finance law between express advocacy and issue advocacy.

As I explain in a forthcoming article in the First Amendment Law Review, “Cheap Speech and What It Has Done (to American Democracy),” federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a Federal, State or local election. However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban


Breaking: “Legal Team Led by David Boies and LULAC Files Lawsuits Challenging Winner-Take-All Approach to Selecting Electors in Presidential Elections”


A coalition of law firms led by David Boies of Boies Schiller Flexner LLP, and The League of United Latin American Citizens (LULAC) today announced the filing of four landmark lawsuits challenging the winner-take-all method states use to allocate their Electoral College votes. By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The non-partisan effort will draw on the resources of several law firms in advancing legal challenges in two states that are solidly blue, Massachusetts and California, and two others that are solidly red, South Carolina and Texas. All four suits are designed to uphold the Constitution’s guarantee that every vote—whether for a Republican, a Democrat, or third-party candidate—will be treated equally.

Update: Here is the complaint filed in Mass. 


Wisconsin: “Burns says his approach to Supreme Court race most honest way to run”


Middleton attorney Tim Burns said he has not started to process whether his approach to the Supreme Court primary was a mistake.

But he believes it is the most honest way to run.

“I am still just 100 percent, wholly committed to the idea that judges need to run this way and they need to behave this way,” said Burns, who ran as an unabashed progressive. “They’re nominated for the court. We can’t just let these guys go controlling our society without demanding what their values are.”

With nearly three-fourths of precincts in, Burns was a distant third in the three-way race, according to unofficial returns collected by The Associated Press.

Patrick Marley:

Burns said he was surprised by the results because people had responded so well when he talked to them about his liberal viewpoint. He said he would spend a couple of days deciding whether to endorse Dallet or stay out of the general election campaign. He said there was no way he would back Screnock.

“I obviously have been pretty vocal about my concerns about the right wing of the Republican Party,” he said. “I just disagree so much with (Screnock’s) political views. I believe it will impact him as a judge.”



Losing Kentucky Candidate Claims Voter Fraud, But It May Be That Eligible Voters Were Incorrectly Purged from Voter Rolls


An hour after being defeated by Linda Belcher in a special election in Bullitt County Tuesday night, a spokesman for Rebecca Johnson said she is claiming voter fraud.

“The big story out of Bullitt County appears to be voter fraud,” David Adams, Johnson’s campaign manager said in a text message.

Belcher secured 68.45 percent of the vote, according to the Bullitt County Clerk’s office. Rebecca Johnson, Dan Johnson’s widow, secured 31.55 percent. There were 4,947 votes cast.

Johnson, however, claims that numerous people were turned away as being ineligible to vote at their local polling place.

“I’ve heard from people all day long saying they went to vote for me at the correct polling place and were refused the opportunity to vote,” Johnson said in a statement. “It’s like we are in a third world country.”

The Bullitt County Clerk’s Office did not respond to a request for comment after the election results were announced.


Wisconsin: “Voters upset after discovering they were removed from voter rolls”


Dozens of active Green Bay area voters went to cast their ballot in Tuesday’s primary election only to find they had been removed from voter rolls.

Wisconsin Elections Commission spokesman Reid Magney attributed many problems voters experienced on Tuesday to a multistate electronic tracking system the state started using in 2016 to update its statewide voter rolls.

He said the system sent postcards in November to close to 400,000 voters the Electronic Registration Information Center, or ERIC, identified as people who moved and would need to either confirm their details or register with updated information.

“When somebody tells the Social Security office or DMV or the Post Office that they have a new address, then ERIC looks at that and other criteria to determine whether or not they think someone has moved,” Magney said. “Some voters reporting problems Tuesday were declared inactive after failing to respond to a postcard they received asking them if they were still an active voter (residing there.)”…

Magney said WEC will refine the criteria ERIC uses to identify voters to remove from active rolls prior to 2019, the next year that the agency will review the state’s voter rolls

“We apologize if people were incorrectly removed from the active list. We apologize for any inconvenience it caused them,” Magney said. “This was the first ERIC mailing that we’ve done. Based on our experience with this, the next time we’d do it, in 2019, we’re going to work with ERIC to refine the criteria.”

He added that some callers who complained to WEC accused the commission of executing a purge of voter rolls based on political preferences. He said it was a bipartisan problem.

“In some of the phone calls, it was suggested this is an effort to disenfranchise Republicans or Democrats,” Magney said. “When you register to vote, you don’t register by party. We don’t keep track of which party’s primary you vote in. We have no idea what political preference is for any individual voter based on WEC records. We have no way of knowing (political affiliations) and have no interest in disenfranchising anyone.”

Remember, ERIC is supposed to be the better system (compared to Cross Check) in terms of false positives leading to disenfranchisement.


“Lawyers’ Committee for Civil Rights Under Law Files Motion Seeking Relief in the 2018 Midterm Election Cycle For Georgia Voters Impacted By Unlawful Gerrymandering”

Release via email:

The Lawyers’ Committee for Civil Rights Under Law filed a Motion for a Preliminary Injunction in its lawsuit against the Georgia Secretary of State that seeks to remedy an unlawful racial gerrymander.

The lawsuit concerns Atlanta metro area Georgia House of Representatives Districts that were redrawn in 2015 for the sole purpose of helping white incumbents get reelected.  The Motion filed late Tuesday powerfully demonstrates how race was used as a proxy to further partisan political interests in violation of the Fourteenth Amendment.  The Motion seeks an expedited hearing, allowing the federal court enough time to provide for a remedy before the 2018 elections.

“Georgia’s mid-decade redistricting is an egregious example of the kind of racial gerrymandering that has no place in our democracy today,” said Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. “In swing districts where margins of victory were close, Georgia lawmakers reopened legislative maps for the sole purpose of locking in favored non-minority incumbents.  Georgia is a place that provides a textbook example of the kind of the unlawful racial gerrymandering that infects too many states today. Our action seeks to fight back against the unlawful actions of Georgia legislators who have put their thumb on the scale of democracy at the expense of minority voters.”


“Transparency and Corruption: A General Analysis”

Michael Gilbert has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:

This essay makes two claims: transparency in government causes the very corruption it aims to prevent, and the problem is universal. Some scholars, mostly philosophers and social scientists, appreciate the first point, but it has not caught on in law. Legal debates — on campaign finance, for example — proceed almost universally on the assumption that transparency deters corruption. Few people, if any, seem to appreciate the second point. Scholars see the corruptive potential of transparency in specific settings, like open ballots. In fact, the problem is general, extending from campaign finance to FOIA and beyond. Efforts to dampen corruption with transparency usually threaten to promote it. The source of the problem is easy to explain. Corruption requires bargaining. By sharing information, transparency lowers the transaction costs of corrupt bargaining.


“Election Security a High Priority — Until It Comes to Paying for New Voting Machines”


A ProPublica analysis of voting machines found that over two-thirds of counties in America used machines for the 2016 election that are over a decade old. In most jurisdictions, the same equipment will be used in the 2018 election. In a recent nationwide survey by the Brennan Center for Justice, election officials in 33 states reported needing to replace their voting equipment by 2020. Officials complain the machines are difficult to maintain and susceptible to crashes and failure, problems that lead to long lines and other impediments in voting and, they fear, a sense among voters that the system itself is untrustworthy….

While election equipment needs to be replaced more often, election administration remains a low funding priority, a ProPublica review of state and local budgets nationwide found.


“DOJ & FEC Complaints Filed Against President Trump, His Campaign & American Media Inc. for Illegal, Unreported $150K Coordinated Expenditure to Former Playboy Playmate”


Today, Common Cause filed complaints with the Department of Justice (DOJ) and the Federal Election Commission (FEC) alleging reason to believe that American Media, Inc.’s August 2016 payment of $150,000 to former Playboy Playmate Karen McDougal, to buy and bury her story of an affair with Donald J. Trump, was for the purpose of influencing the 2016 election and was coordinated with Donald Trump’s attorney and agent Michael Cohen—making it an illegal corporate in-kind contribution to the 2016 Trump campaign. Additionally, the payment was never reported as an in-kind contribution received, and an expenditure made, by the campaign as required by campaign finance law.

The New York Times broke the story Sunday of American Media, Inc. (AMI) contacting Cohen in 2016 before the company paid McDougal for exclusive rights to her story of an affair with Donald Trump, which the paper then killed reportedly to protect Trump’s candidacy. Cohen was also in contact with McDougal’s attorney, Keith Davidson, who filled him in on the details after the deal was signed. Davidson also represented adult film star Stephanie Clifford (aka “Stormy Daniels”), to whom Cohen has admitted facilitating payment of $130,000 reportedly in hush money shortly before the 2016 election to quash her story of an affair with Trump.


Join Me for a Very Special Conversation in NYC March 5 with Joan Biskupic on Justice Scalia’s Legacy and the Future of the Supreme Court

Joan Biskupic’s 2009 biography of Justice Scalia, American Original, is really one of the best and she is one of the most thoughtful students of the Supreme Court and the Justices. I am very excited to be in conversation with her at a Brennan Center event March 5 in NYC, talking about my new book about Justice Scalia’s legacy (which is not a biography). We will talk about how the Justice changed the way the Court writes about cases and the Court’s business, as well as the role of the Justices as public intellectuals.

I hope to see many ELB readers there, but you need to RSVP at this link if you’d like to go to this free event.



“Subversive gerrymandering reform in Pennsylvania”

Derek Muller:

Let me offer the outset that I am not doubting the sincerity or well-intentioned motives of the justices on the court or those involved in drawing maps. Partisan fairness is, in my view, as legitimate a political criterion to use when thinking about how to draw maps as partisan-blind or neutral criteria.

But the Pennsylvania Supreme Court did not, in my view, act forthrightly in its opinion dictating criteria and its ultimate map. The criteria it enunciated–its three values of compactness, contiguity, and avoidance of dividing jurisdictions–were never really going to cure the problem it had identified.

It’s something like (ed: a metaphor sure to have its limitations!) a doctor diagnosing a patient with a mysterious disease and asking for ideas about how to treat the symptoms of the virus–a runny nose, a cough, a sore throat. When the ideas come in for a decongestant and lozenges, the doctor rejects them, saying, “I have my own decongestant and lozenges”–but one that also comes with blood transfusions. The blood transfusions might be useful, but it was hardly a part of the original proposal.

The Pennsylvania Supreme Court apparently did not want to include language like “seats-votes ratio” or “partisan fariness” into its construction of the commonwealth’s constitution. Perhaps it’s understandable–doing so would be quite controversial and perhaps even politically unpopular by all parties. It would have to articulate standards about how to achieve those results. It would need to spend more time explaining how it could go about achieving those ends, much less political actors in the state.

So, it didn’t include that language. But there is no doubt, from every commentator looking at the outcomes, that that is precisely what it did when drawing the new map. It consciously engaged in a partisan fairness inquiry of mapmaking, when that was not articulated expressly as one of the three criteria it asked the legislature to use in its new map, and when that was not expressly one of the criteria that it found required by the commonwealth’s constitution.


“How Democrats use ‘dark money’ — and win elections”


Democrats love decrying “dark money” — political contributions for which the source of funds is a mystery. But that isn’t stopping them from accepting “dark money” themselves or making it difficult to determine the original underwriter of a political donation, as a recent Southern contest vividly illustrates.

Alabama’s special U.S. Senate election in December is a case study in the lengths national Democrats, who this year are racing to win back Congress from Republicans, are willing to go to hide their cash in the name of political expediency.


The Pennsylvania Remedy

According to PlanScore’s basic model, the remedial plan adopted today by the Pennsylvania Supreme Court is impressively symmetric—both in absolute terms and compared to its predecessor. Its likely efficiency gap is -2% (versus its predecessor’s -10%), its likely partisan bias is -4% (versus -12%), and its likely mean-median difference is -3% (versus -4%). In my view, this is the single most important fact about the remedial plan. It’s not just comprised of aesthetically appealing districts (though its districts are, in fact, much prettier than their antecedents). Rather, it promises actually to cure the underlying constitutional violation—to eliminate the majority of the previous plan’s pro-Republican skew. This is exactly what a partisan gerrymandering remedy should do, I think.

Another notable feature of the remedial plan is its competitiveness. According to PlanScore’s basic model, five of the plan’s eighteen districts are between 45% and 55% Democratic (and a sixth is just a hair outside this range). The plan could thus plausibly elect anywhere from eleven Democrats to thirteen Republicans depending on candidate quality and the overall electoral environment. This high level of competitiveness is reflected in PlanScore’s sensitivity testing. In a good Democratic year, Democrats could win several more seats, thus tilting the plan’s efficiency gap in their favor. Conversely, in a good Republican year, Republicans could pocket even more seats, thus swinging the plan’s efficiency gap even further in their direction.

I’ve referred a couple times now to PlanScore’s “basic” model. It’s basic because it doesn’t take incumbency into account, instead relying on 2016 election results and demographic data. What happens if incumbency is incorporated into the model? (This feature is not yet available on the website, though it’s coming soon.)

For one thing, the model’s predictive power improves a bit, explaining 89% (rather than 84%) of the variance in the precinct-level congressional vote. More interestingly, it turns out that incumbency is a bigger electoral advantage in Pennsylvania than in most states today. The typical Democratic incumbent enjoys a 10% boost (compared to a Democratic candidate in an open seat), and the typical Republican incumbent benefits from a 6% lift. These figures are reminiscent of the 1980s and 1990s, and are more than double the usual contemporary levels.

Once the model includes incumbency, it becomes possible to analyze an array of electoral scenarios. For example, what if every seat in Pennsylvania was an open seat, with no incumbent running? Then Democrats would be expected to win nine seats (compared to eight using the basic model). District 17 would flip from barely Republican to narrowly Democratic.

Alternatively, what if we based the analysis on the actual incumbents’ current plans? As of today, there are twelve incumbents running for reelection in Pennsylvania: three Democrats and nine Republicans. Under this candidate configuration, Democrats would be expected to win just six seats. Three districts that would be marginally Democratic if they were open seats (1, 6, and 17) would flip to the Republican side of the ledger thanks to their Republican incumbents. This result renders particularly hollow the argument that the court’s remedial plan is “pretty close to a Democratic wet dream,” as one Republican consultant colorfully put it. In fact, given incumbents’ current plans, Republicans could keep their congressional supermajority, at least in an electoral environment similar to 2016.


“Attacking the ‘Woke’ Black Vote”

Charles Blow NYT column:

One thing that is clear to me following the special counsel’s indictment of 13 Russians and three companies for interfering with our election is that the black vote was specifically under attack, from sources foreign and domestic. And this attack appeared to be particularly focused on young black activist-minded voters passionate about social justice: The “Woke” Vote.

The tragic irony is that these young people, many of whom already felt like the American political system was failing them, were encouraged to lay down one of the most powerful political tools they have, thereby ensuring an amplification of their own oppressions.

The indictment proclaims that the defendants acted as Americans to create social media pages and groups “which addressed divisive U.S. political and social issues.” But that is a phrase so broad and bland as to obscure the piercing truth that the indictment reveals: Referencing actual voter suppression, it says that “in or around the latter half of 2016, Defendants and their co-conspirators, through their personas, began to encourage U.S. minority groups not to vote in the 2016 U.S. presidential election or to vote for a third-party U.S. presidential candidate.”


NYT’s The Upshot: New PA Districts Achieve “Partisan Balance”


In general, partisan balance is not usually a goal when redistricting. You could certainly argue that partisan balance and maximizing the number of competitive districts should be among the criteria, but, in general, they are not. Instead, a nonpartisan map usually means a partisan-blind map. It strives for compact districts that respect communities of interest, with little regard for the partisan outcome.

A decision to pursue partisan balance in Pennsylvania is particularly significant because Democrats are at a clear geographic disadvantage. They waste a lopsided number of votes in heavily Democratic Philadelphia and Pittsburgh; the Republicans don’t waste as many votes in their best areas, and so the rest of the state (and therefore its districts) leans Republican. As a result, a partisan-blind map will tend to favor the Republicans by a notable amount.

The new Pennsylvania map released Monday meets every standard nonpartisan criteria. It’s compact, minimizes county or municipal splits and preserves communities of interest. But it consistently makes subtle choices that suggest that partisan balance was an important consideration.

The court’s apparent prioritization of partisan balance is something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map. That’s also probably why the map is even more favorable to the Democrats than the plans that Democrats submitted themselves. Republicans in the State Legislature will probably be deeply upset and could try to challenge the new maps in federal court.

On the other hand, the new map is quite fair if it’s judged based on the relationship between seats won and the statewide popular vote. By that measure, it may still tilt slightly to the Republicans. If you value partisan fairness, you can cheer the result. If you think maps should be partisan-blind, you can argue that the map was drawn to the advantage of Democrats.


Pa Supreme Court on 4-3 Vote Adopts Advisor Nate Persily’s Maps for Pennsylvania Congressional Redistricting; GOP’s Litigation Options Do Not Look Good

The Pennsylvania Supreme Court (with three dissents) [links below] has adopted  Nate Persily’s maps for redrawing congressional districts. (One of the districts–18—looks surprisingly like Penn State’s Nittany Lion.)

Philly Inquirer:

Its plan splits only 13 counties. Of those, four counties are split into three districts and nine are split into two districts. It also includes significant changes to the state map, including dividing Philadelphia into only two congressional districts; currently three House members represent parts of the city.

By contrast the most recent map, enacted in 2011, split 28 counties.

 “The  Remedial  Plan  is  superior  or comparable  to all  plans submitted by  the parties,  the intervenors, and amici, by  whichever  Census, provided  definition  one employs,” the court wrote in its order.
The early indications are that this is a much more competitive map which will help the Democrats compared to the gerrymandered maps drawn by the Republican legislature. Given Nate Persily’s general reputation for fairness, I expect that these maps will be fair and comply with the requirements set out by the state Supreme Court.
Because this was a case decided under the state constitution by the state supreme court, the usual path for review of this case by the U.S. Supreme Court is limited. The only plausible argument I see is that the maps violate the Elections Clause of the Constitution, which vests in the state legislature the power to choose rules for congressional elections (unless Congress acts to preempt them).
The problem with this argument is that the Pa Republicans already went to the Supreme Court when the state supreme court announced a redistricting– and Republicans raised the very same argument. At the time it was raised, I called the argument a long shot, given a line of cases (most recently a 2015 case from Arizona) reading the word legislature much more broadly in the context of the elections clause. The emergency stay request went to Justice Alito, who denied it without even referring it to the Court. So he likely did not think much of it at the time.
Now it is quite possible that Pa. Republicans will go back to Justice Alito, arguing that things are even worse now that the state Supreme Court has adopted a map itself. That’s the job first and foremost for the legislature. But remember that the Pa. legislature did not even come up with an official passed plan for the state supreme court to reject. (A pair of legislative leaders had a plan, but it was not passed by the legislature.) This seems to give Pa. Republicans even less standing to complain about things. I expect something new filed with Justice Alito will get no further. (After all, we are even later into the election season.)
The alternative, which I’ve been hearing a lot about from reporters, is Pa. Republicans filing a new and separate federal court challenge in a federal district court raising the same Elections Clause challenge. This seems like a super longshot. Not only does it present the same problem on the merits as what Justice Alito already rejected. But this would be a collateral attack on a state supreme court decision in federal court (rather than a direct appeal from the state Supreme Court to the U.S. Supreme Court). Various abstention doctrines, including the Rooker-Feldman doctrine, would counsel federal courts against issuing orders directly against the orders of state courts. There are principles of comity and federalism that make such challenges extremely hard to bring.
Bottom line: it is hard to see where Republicans go from here to successfully fight these maps.
[This post has been updated.]
[This post has been corrected to note that Persily is an advisor to the court, not a special master.]

Did My Predictions at Slate About What President Trump Would Mean for Voting Rights Come True?

Last year the staff at Slate asked me to predict what would happen with voting rights in the Trump era, as part of a broader set of predictions about Trump’s effects on politics, law, and culture. Well they’ve now gone back to look at whether the predictions have come true, and here’s my contribution:

Prediction, Voting Rights: The Department of Justice under new attorney general Jeff Sessions will reverse his department’s challenges to the legality of Texas’ voter ID law and North Carolina’s law making it harder to register and to vote, leading more Republican states to adopt similar restrictive laws even before the Supreme Court may weigh in on these issues.

One Year Later: Mostly Correct. The Department of Justice indeed has flipped to side with Texas in the case challenging the state’s strict voter identification law and flipped to side with Ohio in a case about the state making it easier to purge eligible voters from the voting rolls. (The Supreme Court did not take the North Carolina voting case on technical reasons that I hope I inspired.) Republican states continue to push for new laws making it harder to register and vote as the rest of us wait for eventual signals from the Supreme Court over whether actions like Texas’ and Ohio’s are acceptable.
—Richard L. Hasen, professor of law and political science at the University of California–Irvine School of Law


“The Supreme Court, Judicial Elections, and Dark Money”

Richard Briffault has posted this draft on SSRN (forthcoming, DePaul Law Review).  Here is the abstract:

In its cases dealing with judicial elections, the Court has cycled back and forth over whether to treat judges as representatives of the voters, like other elected officials, with judicial elections subject to the same constitutional rules as other elections or to emphasize the distinctive nature of the judicial role, which could support special limits on judicial campaign activity. Over a trilogy of cases decided between 2002 and 2015 – Republican Party of Minnesota v. White, Caperton v. A.T. Massey Coal Co., and Williams-Yulee v. Florida Bar – a divided Court has struggled to hold together the First Amendment’s commitment to robust and unrestricted campaign speech with a growing concern for the Due Process value of impartial judicial decision-making and the need to preserve public confidence in judicial integrity. Overall, judicial elections have been treated as very similar to, but not quite the same as, other elections, and some campaign speech restrictions that would be unconstitutional in most elections may be constitutional in judicial elections. This has implications for the regulation of dark money in judicial elections. As in other elections, dark money spending in judicial elections can be subject to disclosure requirements but not spending limitations. Unlike in other elections, in certain circumstances dark money spending in judicial elections could trigger recusal requirements, but the circumstances are poorly defined. In any event recusal is unlikely to be an effective response to the concerns raised by dark money.


“The Charging Mystery in the Russia Indictments—And Its Indication of What Comes Next in the Mueller Investigation”

Bob Bauer at Just Security:

In other words, if Mueller’s case for campaign finance violations affected only Russians, there would be no obvious reason to exclude Federal Election Campaign Act violations from the indictment. Russians spent substantial sums to influence an election, as expressly laid out in the charging document, and this is an unambiguous violation of federal law. If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.

On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions.  Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.

The Mueller indictment is conceivably one way to solve this problem. It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails.  The conspiracy to defraud the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.

The special counsel may well have concluded that he could deal with any instances of U.S. citizen complicity without getting bogged down in unresolved questions of what constitutes “soliciting” support or providing the foreign national with “substantial assistance.”  In sum, Mr. Mueller and his team may have adopted this theory of the case to facilitate the charging of Americans who helped their Russian allies interfere in the 2016 election.  This is most plausible solution to the Mueller indictment mystery.


“Campaign Finance and Freedom of Speech – A Transatlantic Perspective”

Mathias Hong has posted this draft on SSRN. Here is the abstract:

If freedom of speech protects a marketplace of ideas – what is its proper currency? Is it only the force of the arguments brought forth – or is it money as well? For the current majority of the U. S. Supreme Court the answer under the U. S. Constitution seems clear: Freedom of speech must include the right to unfettered use of money in the competition. For the Court, the marketplace of ideas turns into a literal, economic marketplace. In what follows I will agree with most American scholars who sharply criticize this reading of the First Amendment. I will join in this critique, however, as somebody who genuinely admires the strong protection of free speech in the United States. I think Europe stands to learn a lot from the American model – but I agree with most scholars in the United States that the Supreme Court’s campaign finance decisions, especially since Citizens United (2010), do not do justice to that worthy American free speech tradition itself.


Mueller’s Indictment Shows the Way for Russians to Legally Try to Influence Our Elections Next Time

I have written this piece for Slate. It begins:

The Mueller indictment of 13 Russian nationals for interfering with the 2016 U.S.
presidential election offers a remarkably detailed account of a complex plot to sow discord and influence the presidential contest in favor of Donald Trump. The indictment critically points to something else, though: It provides a roadmap for the Russians to do it all again, without violating any current campaign finance laws the next time.

Paragraph 50 of the complaint demonstrates the kinds of social media ads Russian government agents paid for during the last election season. Here are two relevant examples: “Hillary is a Satan, and her crimes and lies had proved how evil she is,” and “Vote Republican, Vote Trump, and Support the Second Amendment!”

If the Russians interfere in the next presidential election, expect to see more of “the Democrat is Satan” sponsored Tweets and fewer “Vote Trump” messages. Under current campaign finance law, as the Supreme Court and lower courts currently construe it, it may have been perfectly legal for the Russians to run those Satan ads without disclosing their identity.

As I explained in Politico back in September, while the federal courts have upheld laws banning foreign nationals from spending money to try to influence our elections, the laws have been interpreted to bar only “express advocacy”—ads that might say “Vote Trump” or otherwise expressly advocate for the support or defeat of a particular candidate—and not ads which avoid those magic words. The exception to this, thanks to the McCain-Feingold campaign finance law of 2002, is for certain ads (called “electioneering communications”) broadcast close to the election on TV or radio which feature a candidate’s name or likeness. So foreign nationals could not call Hillary Clinton “Satan!” in a radio ad broadcast close to the election (and Americans paying for such ads have to disclose their identity)….

The Mueller indictment shows how the Russians learned how to interfere with our election, for example, by seeking out political advice from Americans that led them to target “purple states.” They will potentially learn this lesson too. Unless Congress passes a law like the Honest Ads Act, it will be quite easy for Russian trolls and other foreign actors to avoid the foreign money ban, as well as for Americans to run such ads and avoid disclosure.