What are all these NC redistricting cases?

There are a bunch of North Carolina redistricting cases stacked up at the moment.  A few of these are in front of the Supreme Court, and could move as early as Tuesday.  Since we just had a North Carolina redistricting case decided by the Supreme Court earlier this week, that can get confusing.  So here’s just a brief explainer on what’s what.  Because I know what you want for your Memorial Day weekend.

  • Cooper v. Harris – racial challenge to cong. districts, decided by SCOTUS 5/22
  • Harris v. Cooper – partisan gerrymandering challenge to the remedy, at SCOTUS 5/25
  • Common Cause v. Rucho – partisan gerrymandering challenge to cong. districts, in fed. trial court
  • LWV of NC v. Rucho – partisan gerrymandering challenge to cong. districts, in fed. trial court
  • North Carolina v. Covington – racial challenge to state leg. districts, at SCOTUS 5/25
  • North Carolina v. Covington – a related appeal focused on the remedy below, at SCOTUS 5/25
  • Dickson v. Rucho – racial challenge to state leg. and cong. districts, at SCOTUS 5/25

More detail below the fold.

[Update: between the time that I started writing and the time that I stopped, SCOTUS issued a request for more briefing (due June 6) on the procedural issues in Harris v. Cooper.  I’d expect all of the SCOTUS cases to be relisted for the next conference after June 6.]

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“New York Developer Pleaded Guilty in Voter-Fraud Conspiracy”

WSJ on the latest in the Bloomingburg saga:

Prosecutors said Mr. Nakdimen and his associates falsely registered voters to overcome local opposition to their 396-unit townhouse project in the tiny Catskills village of Bloomingburg. The developers anticipated making hundreds of millions of dollars from the development, according to prosecutors.

 An attorney for Mr. Nakdimen didn’t respond to a request for comment. Under the agreement, Mr. Nakdimen could spend from six to 12 months in prison. The charge carried a sentence of up to five years.

In addition to Mr. Nakdimen, federal prosecutors last year charged his business partner Shalom Lamm and associate Volvy Smilowitz with one count each of conspiracy to corrupt the electoral process. A former town supervisor of Mamakating, N.Y., previously pleaded guilty to conspiracy to submit false voter registrations.

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Republican TX Congressional Delegation Afraid of Map to Be Drawn by Court in Redistricting Litigation

Texas Tribune:

There are few things that strike more fear into the heart of a member of Congress than the word “redistricting.”

That proved particularly true this week among Texas Republicans in Washington, thanks to a recent court ruling that came about just as talk was increasing in Austin that Gov. Greg Abbott may call a special sessionSome Texas Republicans in Congress hope that any upcoming special session will include redrawing the state’s 36 congressional districts as part of its agenda.

The message coming out of Austin thus far: not going to happen.

Several congressional Republicans told the Tribune they want Abbott to call a special session to redraw the Congressional lines. They believe such a maneuver would put their allies in the state legislature in the driver’s seat, circumventing Republicans’ worst fear: that a panel of federal judges will draw a less favorable map of its own.

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Breaking: “Project Vote to Close Its Doors May 31”

Electionline with the bad news:

Project Vote, a national, nonpartisan, nonprofit that has spent recent years focusing its attention on improving voter registration, especially the enforcement of the National Voter Registration Act (NVRA) will officially close its doors on May 31.

Michael Slater, executive director since 2003, cited the lack of funding as the reason for the closure.

“[F]unding for voter registration programs declined precipitously after 2008, and the number of funders supporting voting rights advocacy and litigation slowly decreased as well,” Slater said. “At the same time, more organizations created voting rights programs, which resulted in more competition.”

Slater also pointed to the Supreme Court’s 2013 decision to strike down the pre-clearance provisions of the Voting Rights Act which resulted in the donor community focusing available voting rights resources on VRA enforcement, which had the effect of reducing funds for other work, such as Project Vote’s work enforcing the NVRA….

roject Vote’s shuttering comes at a time when voting rights are making headlines daily and Slater is concerned about what impact the closure may have.

“From our perspective, voting rights work has never been more important. We hae been warning for months that [President Donald J.] Trump’s absurd rhetoric about ‘voter fraud’ signaled a top-down assault on the right to vote in America,” Slater said. “The concern, of course, is that the remaining voting rights organizations, already spread thing, will be unable to keep up with this assault.

The news of Project Vote’s closure is slowly starting to spread throughout the elections community and it is being met with sadness.

“We’re terribly saddened by the closing of Project Vote. It has been a great organization that has contributed significantly to the protection of the fundamental right to vote,” said Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law. “Its role in ensuring the registration of all eligible voters was and remains of utmost importance.  It is particularly unfortunate for this to happen at a time when voting rights are under tremendous attack.”

Project Vote was involved in many legal cases nationwide with some recent cases including reaching a settlement agreement with Maricopa County, Arizona, settling a suit with Georgia on access to public records Maricopa County, Arizona and just this week, meeting a deadline for filing a motion to dismiss in a list maintenance case, ACRU v Snipes, in Florida.

“This is very sad news for voters,” said Rick Hasen, chancellor’s professor of law and political science at UC Irvine and author of the ElectionLaw Blog. “Project Vote has been a leader in making sure that states comply with the provisions of the motor-voter law making it easier for people to register and vote when they come into contact with government agencies. I hope that others can step in and help with this very important work.”

Thomas Hicks, commissioner on the U.S. Election Assistance Commission pointed to the groups’ work in Nevada in 2016 that resulted in a Memorandum of Understanding to bring the state into compliance with NVRA.

“I am sad they are going away,” Hicks said. “They do a great deal in terms of voter registration and I don’t know if there are folks out there to fill that void. In my own opinion, it’s horrible that an organization that does as much as they do will no longer exist.”

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ELB Podcast Episode 16. Bob Bauer: The Danger of Trump’s “Election Integrity” Commission

Will earlier work to improve the voters’ experience at the polls be abandoned thanks to unsubstantiated claims of voter fraud? Is the “Election Integrity” commission established by President Trump going to undermine efforts to improve voting rights? Is there a future for the U.S. Election Assistance Commission, one of whose members is joining the Trump-established commission?

On Episode 16 of the ELB Podcast, we talk with Bob Bauer, former White House Counsel and co-chair of the Obama-established Presidential Commission on Election Administration.

You can listen to the ELB Podcast Episode 16 on Soundcloud or subscribe at iTunes.

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“The Shifting Ground of Redistricting Law”

Very important Chris Elmendorf post at Balkinization, with a more negative view of Cooper v. Harris:

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a “racial target”) to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle.
 …
Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to show (as the trigger for strict scrutiny) quite a bit more than the existence of a firm racial-composition target plus the movement of voters to achieve the target. I’m not convinced, but for now, there’s enough looseness in the doctrine for lower courts to go either way on this question.
What is clear is that the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked in Bethune Hill, “Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”
Going forward, any redistricters who undertake to draw districts with a racial-composition target (majority-minority or otherwise) would do well to announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical command. The crossing of fingers is also recommended.

 

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Alabama SOS Defends Against Argument that State Felon Disenfranchisement Bill Doesn’t Go Far Enough

Kira Lerner for Think Progress:

The law still imposes what can be considered a poll tax because former felons have to be able to afford to pay their fines and fees to restore their right to vote. “Wealth should not be a factor in deciding who can vote,” Lang said.

The list of felonies included in the bill also does not include things like public corruption and fraud, crimes which are “typically considered to be the crimes closely associated with voting eligibility,” she said. Unsurprisingly, those crimes generally have less of a racial slant than others.

Merrill, Alabama’s Republican secretary of state, was not accepting of arguments that the bill will not go far enough.

“If we had a stand in Anytown, U.S.A. and in that stand on Main Street we’re giving out ice cream,” he said. “Anybody can come. They can only get one cone and it’s vanilla. There’s going to be some people who are gonna cry because they can’t get but one scoop, and there’s gonna be some people who are gonna cry because we don’t have chocolate.”

“I don’t worry about the people who want two scoops and I don’t worry about the people who want a different flavor,” he said.

Voting, unlike receiving free ice cream, is a constitutional right.

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Talking to Sen. Bernie Sanders About Voter Fraud, Campaign Finance, and Gerrymandering

The live video with Bernie Sanders interviewing me cut out yesterday after 8 minutes because of an internet outage at the Senate. But they’re broadcasting the whole thing today, and you can watch it any time here (29 minutes):

 

[link will be updated]

 

or listen here as a podcast:

 

https://itunes.apple.com/us/podcast/the-bernie-sanders-show/id1223800705?mt=2#

 

 

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“Commentary: Dunlap badly mistaken in agreeing to serve on Trump voter fraud panel”

I have written this oped for the Portland Press Herald. It begins:

Maine Secretary of State Matthew Dunlap is making a serious mistake by agreeing to participate in a sham “voter integrity” commission established by President Trump to validate his ludicrous claims about voter fraud. But it is not too late for Dunlap to withdraw, and it’s the right thing to do….

President Trump raised the voter fraud rhetoric to an unprecedented extent by claiming before the election that there was massive voter fraud taking place in “urban” (read: minority) areas of Pennsylvania and elsewhere. After the election, he made a totally debunked claim that 3 million or more noncitizens voted in 2016. So far, the most credible count of such votes, by the Brennan Center for Justice, is 30 possible noncitizen votes across the entire country. That’s right: not millions, not thousands, not even hundreds.

No responsible election professional or academic has supported Trump’s claims of massive fraud. There’s only one election professional I know of who has: Kansas Secretary of State Kris Kobach, who said, without credible evidence, that there could be a million or more fraudulent votes in the election. Kobach has a reputation for hyping unsubstantiated claims of voter fraud for his own political agenda.

Of course, Trump and Vice President Mike Pence have put Kobach in charge of a so-called “Election Integrity” commission nominally headed by Pence. Prior commissions examining election problems have been bipartisan and headed by party elders: former presidents Jimmy Carter and Gerald Ford in 2000, Carter and former Secretary of State James A. Baker III in 2004, and Bob Bauer and Ben Ginsberg in 2012. There’s no Democratic co-chair of this commission.

No one expects this commission to do what the other commissions did: consult experts, hear testimony and issue a data-driven report on ways to improve the electoral process for all Americans, Democrat or Republican. Instead, the commission’s report is likely to echo the president’s unsubstantiated allegations that fraud – or the potential for fraud – is serious. So serious, the commission will likely urge the passage of national legislation making it harder for people to register and vote. It is a means to suppress votes on a national scale.

And this is where Maine’s secretary of state fits in. He’s going to be used like a patsy….

Dunlap is skeptical of Trump’s claims, and has said his purpose in serving on the commission is to work from the inside, with a seat on the table. There is no reason to believe he can serve this purpose, even if he issues a minority report disagreeing with its findings. The report will still be trumpeted as a “bipartisan” commission that reached certain conclusions.

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Anita Earls: “Bringing sanity to racial-gerrymandering jurisprudence”

Important Anita Earls in the SCOTUSBlog symposium on Cooper v. Harris:

Although not breaking new ground, the court’s post-2010 census round of racial gerrymandering cases make clear that while not every district drawn as a majority-black or majority-Latino district is a racial gerrymander subject to strict scrutiny, states seeking to use packing to weaken the voting strength of black or Latino voters cannot hide behind the Voting Rights Act to do so.

Most importantly, this line of cases, and particularly Kagan’s opinion in Cooper, should put to rest the false dichotomy of “is it race or is it party” that threatened to turn racial-gerrymandering doctrine into a meaningless standard. The census data puts racial data squarely in front of legislators enacting redistricting plans. In most states, election returns showing past voting patterns are also routinely in front of legislators. Party affiliation and voting patterns are also almost everywhere correlated to race. In the absence of direct “smoking gun” evidence of legislative intent, teasing out legislative motive from a binary framework of deciding whether race or party was the predominant factor is an abstraction that does not reflect the real world.

The court’s opinion in Cooper makes clear the common-sense understanding that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” The equal protection clause does not have a partisanship exception. State legislators cannot intentionally assign voters to districts on the basis of their race as long as they ultimately want a particular partisan result. So race may predominate even if the legislature’s ultimate goal was a partisan one. Had the court gone the other way on this question, we would face a situation in which when white voters bring a racial gerrymander claim (the 1990s cases), race is the predominant factor, but when black voters bring the claim (the cases from 2010 through this term), party is thought to predominate. That “heads I win, tails you lose” outcome would have been manifestly unjust.

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“Texas House backs voter ID overhaul, with changes”

Texas Tribune:

The Texas House on Tuesday tentatively approved legislation to overhaul the state’s embattled voter identification law, moving it one step closer to Gov. Greg Abbott’s desk.

Senate Bill 5 would in several ways relax what some had called the nation’s most stringent ID requirements for voters — a response to court findings that the current law discriminated against black and Latino voters.

The 95-54 vote followed a six-hour debate that saw fierce pushback from Democrats, who argued the legislation wouldn’t go far enough to expand ballot access and contains provisions that might discourage some Texans from going to the polls. Democrats proposed a host of changes through amendments, a few of which surprisingly wriggled through….

Last year, the U.S. 5th Circuit Court of Appeals ruled Texas lawmakers discriminated against minority voters by enacting the 2011 law. U.S. District Judge Nelva Gonzales Ramos upped the ante in April, ruling the state discriminated on purpose. That raised the possibility she could invoke a section of the Voting Rights Act to place Texas under federal oversight of its election laws — a process called preclearance.

The state’s lawyers want to point to SB 5 next month when they return to Ramos’ Corpus Christi court for a hearing on how to remedy the voting violations. Republican leaders hope she will accept the new law and refrain from putting Texas under preclearance.

“SB 5 addresses every situation that the courts have found in six years of litigation,” King said.

Ramos temporarily softened the ID rules for the 2016 elections, and Huffman’s legislation largely follows its lead. It would allow people without photo ID to vote if they presented alternate forms of ID and signed affidavits swearing a “reasonable impediment” kept them from obtaining what was otherwise required.

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“Top hacker conference to target voting machines”

Politico:

Hackers will target American voting machines—as a public service, to prove how vulnerable they are.

When over 25,000 of them descend on Caesar’s Palace in Las Vegas at the end of July for DEFCON, the world’s largest hacking conference, organizers are planning to have waiting what they call “a village” of different opportunities to test how easily voting machines can be manipulated.

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“FEC Memo Says Cruz Declines to Amend Disclosure Reports”

Bloomberg BNA:

Sen. Ted Cruz (R-Texas) has refused demands by the Federal Election Commission to provide more public details about more than $1 million in bank loans that helped finance his original campaign for the Senate in 2012, according to a new memorandum from FEC staff auditors.
Questions about Cruz’s loans were raised in news reports during last year’s presidential campaign, when the Texas senator was running for the Republican presidential nomination. The questions have never been fully resolved, according to the FEC auditors.
An audit finding that Cruz violated campaign finance reporting rules is set to be considered at the FEC commissioners’ next open meeting May 25. Cruz’s office told Bloomberg BNA that the campaign disclosure reports would be amended after the FEC commissioners approve the audit findings.
Cruz acknowledged in a letter to the FEC in January 2016 that he used loans from Goldman Sachs Group Inc. and Citibank, a subsidiary of Citigroup Inc., to help finance his 2012 campaign for the Senate. The letter did not provide details about the loans, including whether they were secured by assets held jointly by Cruz and his wife, Heidi, who had worked for Goldman Sachs.
UPDATE: Senator Cruz’s office emails this statement: “We have provided all the information the FEC has requested, and once the commissioners approve the audit report at Thursday’s meeting and the process concludes, we will be able to accurately amend our reports to be consistent with the FEC’s recommendations.”
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Rick Hills on the Racial Redistricting Cases

Rick Hills, a colleague, has a provocative essay at prawfsblawg, on the post-2010 racial redistricting cases, including Monday’s decision in the North Carolina case.  Here is how he opens his analysis (his words, not mine):

Since at least the 2010 census, Republican state legislators in the South have been zealously “packing” black voters into districts with ever-larger black majorities in order to minimize Democrats’ political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.

This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie) had pressed for a lax, fact-based review of race-based districts under an incomprehensible “predominant factor” test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt) and Justice Kennedy (in Miller v. Johnson), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.

After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, “strict-in-theory, rational-basis-in-fact” sort of color-blindness?

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“ACLU seeks sanctions against Kobach and public disclosure of Trump documents”

Bryan Lowry:

The American Civil Liberties Union has asked a federal court to enable documents from Kansas Secretary of State Kris Kobach’s November meeting with President Donald Trump to be made public.

Kobach earlier this month handed over the documents, which outline a proposed strategic plan for the U.S. Department of Homeland Security, under a federal judge’s order. However, he marked the documents as confidential.

The ACLU filed a motion with U.S. District Court of Kansas in Kansas City, Kan. late Monday seeking to remove that designation and enable their contents to be shared with the wider public.

Kobach’s office did not immediately comment on the matter.

The ACLU also asked the court to sanction Kobach for his earlier failure to comply with the discovery process and to reopen discovery to allow Kobach to be deposed to answer questions about the documents. If the court sanctions Kobach, he will face fines.

“Defendant should be sanctioned for a pattern of misrepresentation and a fundamental lack of candor directed at obscuring documents that Defendant wished not to disclose,” the ACLU’s filing states. “Defendant’s misleading conduct has not only unnecessarily prolonged this discovery dispute…it has raised basic questions about the integrity of Defendant’s representations to Plaintiffs and to the Court, and merits sanctions.”

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“Real Voter Fraud: Suppression, Intimidation and Denying the Right to Vote “

Jim Condos, Vt. Secretary of State writes:

I am deeply troubled by the announcement that the President signed an executive order establishing a commission to review alleged voter fraud in our elections. Since the 2016 election, President Trump has made repeated unsubstantiated claims of widespread voter fraud. Credible studies have shown over and over again that widespread voter fraud simply does not exist, and election officials from across the country, Democrat and Republican, agree. So why the brazen claims of widespread voter fraud? I believe these unproven claims are an effort to set the stage to weaken and skew our democratic process through a systematic national effort of voter suppression and intimidation….

The fact that Vice President Pence and Kansas Secretary of State Kris Kobach have been announced as Chair and Vice Chair of this commission confirms my worst fears. Both are unabashed supporters of restrictive voter ID laws, as they exaggerate claims of voter fraud. Secretary Kobach has championed some of the most restrictive voting laws in the country. The leadership of this commission is a clear prelude to what I expect to be a reinvigorated nationwide campaign promoting strict voter suppression laws and voter intimidation.

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“Maine high court says ranked-choice voting is unconstitutional”

Portland Press Herald:

Maine’s highest court found Tuesday that the ranked-choice voting system passed at referendum last November violates the Maine Constitution.

In its advisory opinion, the Maine Supreme Judicial Court acknowledges the validity of citizen-initiative ballot questions but notes that even citizen-enacted laws can be unconstitutional.

I have posted the court’s opinion at this link.

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“House Democratic leader raises concern with Gardner election appointment”

Concord Monitor:

The House Democratic leader is seeking assurances that no New Hampshire taxpayer dollars will be used to support an election integrity commission President Donald Trump created to review alleged voter fraud.

Trump recently tapped longtime New Hampshire Secretary of State Bill Gardner to sit on the commission. It’s not yet clear when the group will start meeting or how much time it will consume.

“I am hoping that you will provide the citizens of New Hampshire assurance that no state money is used for your travel or accommodations while you are working in Washington, D.C. on this Commission,” wrote House Minority Leader Steve Shurtleff in a letter to Gardner on Monday. “In addition, I would hope that your state time is not used in the pursuit of your work for the commission.”

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“Supreme Court Affirms Ban on ‘Soft Money’ in Campaigns”

Kate Ackley for Roll Call:

Sarbanes and outside advocates of new restrictions on political money said they were dismayed that Gorsuch, along with conservative Justice Clarence Thomas, went out of his way to say he wanted the court to hear oral arguments on the Louisiana case.

“It’s troubling that we’re seeing the most recent appointment to the Supreme Court, Justice Gorsuch, side with the most conservative on this, Justice Thomas,” said David Donnelly, president and CEO of Every Voice, which led a campaign against Gorsuch’s nomination over political money concerns.

Gorsuch “is way out of the mainstream. He’s very extreme when it comes to reviewing these questions about who has power in American politics,” Donnelly said.

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“FEC member urges escalated Trump-Russia inquiry”

Ken Vogel for Politico:

Weintraub’s interest was piqued by an article published last week by TIME magazine that revealed intelligence officials had evidence that Russian agents bought Facebook ads to disseminate election-themed stories. It also indicated that congressional investigators were examining whether Russian efforts to spread such content were boosted by two U.S. companies with deep ties to Trump — Breitbart News and Cambridge Analytica.

Representatives for the two companies did not respond to requests for comment.

It’s unlikely that the FEC would be able to build much of a case against Russia, partly because the Justice Department would have primacy on any criminal investigations.

However, Weintraub said, “if there are U.S. citizens involved in any way in spending foreign money to influence a U.S. election, then that would be something that we could and should pursue.”

Yet, the issue is not cut-and-dry, both because Facebook told TIME that it hasn’t found evidence of Russian agents buying ads on the social media platform and because, even if there were proof that Russian agents had paid for the ads, it’s not clear how the FEC would apply the law.

That’s partly because it could be argued that merely paying to disseminate news articles might not qualify as trying to influence an election. And it’s partly because the commission, which is currently comprised of three commissioners nominated by Republicans and two nominated by Democrats (with one Democratic seat vacant), has been famously divided on partisan lines, and its Republican appointees may be disinclined to pursue a case that would embarrass a president of their own party….

Paul Ryan, litigation director for Common Cause, said that if the Russian government paid to disseminate anti-Clinton content “then the activity would seemingly be covered by the ‘expenditure’ prong of the foreign national ban, rather than by the ‘contribution/donation’ prong of the ban.”

Debates about the specifics law aside, Ryan added that “common sense certainly suggests that Russia spending money to influence our elections should be covered by a statute that prohibits foreign nationals from spending money for the purpose of influencing a federal election.”

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Bauer on the Supreme Court’s Summary Affirmance in the McCain-Feingold Soft Money Case

Bob:

The Wild West in campaign finance, with the regulatory process in disarray, has caused all manner of distress among critics of the role of money in politics. But they could be comforted, finding some measure of compensation in a long series of disappointments. The state of disrepair in campaign finance may have convinced wavering Justices that Mr. Bopp was crying wolf, and that the parties, like everyone else out there, are not in dire straits. Better, then, to keep the reforms at least on the books and save judicial intervention for more compelling cases.

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“The Supreme Court may just have given voting rights activists a powerful new tool”

I have written this oped for the Washington Post. It begins:

Sometimes the most important stuff in Supreme Court opinions is hidden in the footnotes. In Monday’s Supreme Court ruling striking down two North Carolina congressional districts as unconstitutionally influenced by race, the majority buried a doozy, a potentially powerful new tool to attack voting rights violations in the South and elsewhere….

This seems to be a much more realistic approach to the interrelated matters of race and party than the court’s earlier treatment of them as either-or propositions for purposes of assessing the legality of gerrymandering. Indeed, political scientists refer to places such as North Carolina as states with “conjoined polarization,” where racial and partisan categories overlap. In North Carolina, about 90 percent of black voters are Democrats; conversely, the overwhelming majority of whites are Republicans. When the Republican legislature passes a plan to limit Democratic voting power, it necessarily affects black voters.

Under this logic, legislators will no longer be able to hide behind claims of partisan motivation to protect themselves from racial gerrymandering claims. Kagan’s approach should allow voting rights plaintiffs to bring more successful racial gerrymandering claims.

And this approach has broader application — especially important given the Supreme Court’s landmark 2013 decision overturning key portions of the Voting Rights Act that had required states such as North Carolina to get federal approval before making new voting rules that could hurt minority voters: Last week, the Supreme Court declined to review a North Carolina case involving voter identification and other strict voting laws. The U.S. Court of Appeals for the 4th Circuit had also treated race and party as proxies for one another and said that a partisan-driven voting law also constituted intentional race discrimination.

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Another Explanation for Justice Thomas’s Joining of Racial Gerrymandering Majority Opinion

I’ve already opined on what might have motivated Justice Thomas (and Justice Kennedy) so side how they did today.

An ELB reader passes along these additional thoughts about Justice Thomas and what comes next:

I’ve always been struck by Justice Thomas’ personal story that, when he couldn’t find a job despite graduating in the top third of his class at YLS, he was convinced that affirmative action led employers to think black attorneys’ law degrees weren’t worth the same. I could well see him thinking that gerrymandering has led to similar devaluation of black Representatives. Similarly, I could see him as offended that the boundary-drawers would see black voters’ race as a data point in predicting how they’ll vote. This may be armchair psychology, but I think it’s important for anti-gerrymandering advocates to figure Thomas out in time for the MD and NC political gerrymandering challenges. It’s possible that the arguments most likely to sway Thomas would be repugnant to the voting rights groups — such as an unflattering comparison of mixed-motive gerrymandering to plus-factor affirmative action programs. I think it’s critical for there to be a Thomas-focused amicus brief, preferably authored by a former Thomas clerk with better insights into his personal views.
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“Two poll workers plead guilty to illegal voting”

Houston Chronicle:

Two people who worked as election clerks during the May 2016 primary runoff have pleaded guilty to unlawfully casting a ballot for another person, Harris County Clerk Stan Stanart announced Monday.

Jeanene Johnson, 63, and Latunia Thomas, 46, pleaded guilty to a misdemeanor charge of “unlawful deposit of ballot” earlier this month. They served one day in jail, and were released, according to the Harris County District Attorney’s office.

With Johnson’s help, Thomas cast a ballot for her daughter at a Harris County Public Health and Environmental Services building during early voting for the May 24, 2016 primary runoff, according to Dane Schiller, a spokesman for the district attorney’s office. He said Thomas’ daughter was not present at the polling location….

Both defendants were charged with a felony, but pleaded guilty to a misdemeanor charge. The two were investigated after other clerks noticed the pair casting the ballot, Stanart said.

Stanart said that obtaining convictions on such crimes is rare. He said this month’s convictions were the most significant finding and prosecution of voter fraud in the last decade-and-a-half.

The Texas attorney general’s office has received more than 700 reports of voter fraud since 2002, but has prosecuted only 93 since 2005.

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“Power struggle intensifies between White House and ethics office”

Matea Gold for WaPo:

But in a May 17 letter, Mick Mulvaney, director of the Office of Management and Budget, questioned whether the Office of Government Ethics has legal jurisdiction to get information about waivers that have been granted. He said the Justice Department’s Office of Legal Counsel may needed to be consulted.

“I therefore request that you stay the data call until these questions are resolved,” Mulvaney wrote Shaub in a letter first reported by the New York Times.

Shaub responded forcefully with a nine-page letter to Mulvaney Monday night, denying his request to back off.

“The unusual nature of your letter highlights OGE’s responsibility to lead the executive branch ethics program with independence, free from political pressure,” he wrote. “Accordingly, OGE declines your request to suspend its ethics inquiry.”

The letter, posted by OGE’s official Twitter account, was accompanied by voluminous documents attesting to the agency’s authority to collect information, examples of the executive branch complying with past requests and previous calls by lawmakers for OGE to disclose such data in a public format.

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We May Soon Get a Hint on What the Supreme Court Thinks of Wisconsin Partisan Gerrymandering Case

Via the Milwaukee Journal-Sentinel, comes this stay application in the Wisconsin partisan gerrymandering case (Gill v. Whitford). The state wants the Supreme Court to put on hold a requirement that Wisconsin state legislative districts by November 1.

The Supreme Court will likely rule on this request before the end of the term, at the same time it tells us whether it will hear an appeal of the partisan gerrymandering case next term. If five Justices vote to grant this stay, it will be a good indication that the lower court holding of partisan gerrymandering will ultimately fail. A denial of the stay is a good indication that it won’t fail.

That won’t be a perfect predictor, but it is the most useful tea leaf we would be likely to get before oral argument.

 

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Texas Redistricting Case Will Now Face New Delay Thanks to Today’s SCOTUS NC Decision

The briefing never ends in Texas redistricting case. and another plea for the TX Legislature to get involved again:

In light of today’s Supreme Court decision in Cooper v. Harris, the Court invites the parties to file supplemental briefs, in whatever length they find appropriate, addressing the effect of Cooper (and, if desired, Bethune-Hill v. Virginia State Board of Elections) on the various claims in the congressional and Texas House cases. Such briefs shall be due June 6, 2017. It would be most helpful, to the extent reasonably possible, for any such comments to designate the specific districts to which they are addressed and (if applicable) any specific 2017 findings/conclusions and legal analysis from this panel to which the comments pertain.

In addition to any such briefing, the Court directs Defendants’ counsel to confer with their client(s) about whether the State wishes to voluntarily undertake redistricting in a special session in light of the Cooper opinion and counsel shall report their clients’ position to this Court no later than May 26, 2017.

 

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Partisan Gerrymandering Case Status

The Court’s decision this morning in the North Carolina redistricting case addressed allegations of predominant and unjustified racial intent.  The state attempted to defend its actions, in part, by saying that it was just acting for partisan reasons.

The legal status of “just acting for partisan reasons” in the redistricting context is also a hot topic these days.  The last time SCOTUS really took the issue on was 2004, in a fractured opinion that left the state of the law a bit of a mess.  Only 4 of the 9 sitting Justices were then on the Court.  And there are a few relevant cases headed straight back toward them.

Some of the challenges are out of North Carolina.  One case is directly related to the one decided this morning.  (This morning was Cooper v. Harris; the case coming up is Harris v. Cooper.  It’s all based on who won and who lost in the lower court.)  This is the remand from this morning’s case — while SCOTUS was hearing the race case, the legislature drew new lines, saying explicitly that they intended to draw the new lines “to gain partisan advantage.”  The lower court approved the new legislative remedy, despite plaintiffs’ protest that it amounted to an unlawful partisan gerrymander.  There’s a dispute among the parties about the proper scope of the court’s consideration (and in the meantime, there have been two new cases challenging the new map as a partisan gerrymander, moving at a slower pace).  The lower court’s approved remedy is now up on appeal before SCOTUS, and a decision on whether to hear the case in full is likely coming in the next few weeks, perhaps as early as next week.

The other leading case is out of Wisconsin.  It’s a challenge to the state legislative map as an unlawful partisan gerrymander.  Here, the lower court struck down the state map, and the state is now appealing to SCOTUS.  A decision on whether to hear the case in full is also likely coming in the next few weeks — I think there’s a broadly shared expectation based on the procedural posture and the result below that SCOTUS will hear this case in full.

A decision to consider either case in full would mean briefing over late summer and early fall, an argument date likely in the fall, and a decision likely in the spring or early summer of 2018.   Of course, that timing is entirely up to the Court, and the timing is really just a guess: the cases could easily move faster or slower.

(There are also other partisan gerrymandering cases — including a case out of Maryland — that are a little farther behind in the queue.)

For those looking forward, there’s some intriguing dicta in this morning’s decision: Justice Alito, with the Chief Justice and Justice Kennedy joining, seems to emphasize that some partisan gerrymandering is OK (p. 5 of his separate opinion).  That wasn’t actually the issue in this morning’s decision, and it’s not clear how much those few sentences will impact any individual Justice’s take in a case squarely about partisan gerrymandering (much less an opinion about how much partisanship is too much partisanship).  But tea-leaf-readers gonna tea-leaf-read.

(Also FWIW: there was a magnificent symposium at William & Mary in February concerning redistricting, including discussion of the racial and partisan claims in precisely these cases at and heading to SCOTUS.  If your primary complaint is that the morning’s ELB posts have been too short, keep an eye out for the symposium issue of the William & Mary Law Review).

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