Five Years After Shelby County, A Look Back

Almost exactly five years ago I wrote a NY Times oped about the Supreme Court’s unfortunate decision striking down a key portion of the Voting Rights Act in Shelby County: The Chief Justice’s Long Game.

This part held up pretty well:

Today’s decision has real consequences. Chief Justice Roberts writes that ”regardless” of how we look at the record, “no one can fairly say it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” in the past. If that’s true, it’s because the Voting Rights Act works.

Here’s what’s going to happen now. Texas has already announced that it will put its voter-ID law into effect, a law that was on hold under Section 5 awaiting Supreme Court review. Texas’ law, one of the toughest in the nation, requires voters lacking acceptable ID (like a concealed-weapons permit) to travel up to 250 miles at their own expense to get one.

Texas’ law will be challenged on other grounds, but winning voter-ID cases has proved to be tough business. Now Texas can also re-redistrict, freed of the constraints of Section 5, splitting Latino and black voters into different districts or shoving them all in fewer districts to make it harder for them to have effective representation in the State Legislature and in Congress. The biggest danger of what the court has done is in local jurisdictions, where discrimination is more common and legal resources to fight back are thin.

The ball is now in Congress’s court.



“Candidate Coordination With Outside Groups Eased by Rulings”

Bloomberg BNA:

Congressional campaigns may find it easier to coordinate their messages with super political action committees and other outside groups as a result of Federal Election Commission decisions.
The commission dismissed complaints that messages posted on the campaign websites of Senate Democratic candidates Evan Bayh and Ted Strickland were echoed in television ads sponsored by the Senate Majority PAC, a Democratic super Political Action Committee supporting the candidates.
In another dismissed case, video footage shot by a company linked to House candidate Sean Eldridge was used in a campaign ad for the New York Democrat.
The cases could provide a roadmap to allow candidates to steer allied groups towards preferred messaging through selective public statements about their campaign needs….
The complaints were dismissed on a deadocked vote among the four FEC commissioners. Though all the candidates involved in the latest coordination enforcement cases are Democrats, the commission’s two Democrats voted to pursue enforcement action. Meanwhile, the two Republican commissioners voted to drop the matter.

Ninth Circuit Sees No Constitutional Problem with Allowing California All Vote by Mail Elections in Some Counties but Not Others

The opinion here is no surprise and seems right given that any California voter can vote by mail if she wishes. (On when lack of uniformity across counties or voters creates constitutional problems, see my University of Chicago Legal Forum piece, When Is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting.)

I’m surprised that Bush v. Gore did not make an appearance in the discussion, however, as it raised an issue of lack of uniform recount standards across counties.



Five Years After John Roberts Says Federal Supervision of Voting Rules No Longer Necessary in South, and 2 Years After 4th Circuit Said North Carolina Targeted African Americans “with Almost Surgical Precision”, NC Suppression is Back

Thwarted before, N.C. GOP wants photo ID mandate:

North Carolina legislative Republicans on Thursday advanced their goal of permanently requiring voters to show photo identification — a proposal previously thwarted this decade by veto and federal judges who declared a similar mandate racially discriminatory.

Republicans want lawmakers, not governor, to decide who oversees elections

Republicans want legislative leaders to appoint all members of the state elections board, a power now held by the governor.

State House GOP leaders on Friday afternoon introduced a proposal to change the North Carolina Constitution to create an eight-member State Board of Elections and Ethics Enforcement with all members chosen by the House speaker and the Senate leader.


“Ex-Trump Voter Fraud Commissioner Defends Misleading Reports In Court”

Tierney Sneed for TPM:

Former Trump voter fraud commissioner J. Christian Adams was in a federal court in Virginia Friday to defend reports his group released in 2016 and 2017 alleging that thousands of non-citizens were illegally registered to vote and possibly voting in Virginia.

Adams and his group, the Public Interest Legal Foundation, are being sued for defamation and voter intimation by four voters, all citizens, who were named in PILF’s reports that listed alleged non-citizen illegal registrants.

Attorneys for Adams and PILF argued that the reports were not targeting the defendants but rather the government officials who Adams claims are not enforcing voter fraud laws.

The plaintiffs argued that the report amounted to character assassination of those falsely alleged to be non-citizens. If anyone’s character was being assassinated, Adams’ attorney Michael Lockerby argued, it was those of the government officials who hadn’t prosecuted allegations of voter fraud.


ACS Webinar: “Hurry Up and Wait: What’s Next with Redistricting?”

Announcement via email:

 Hurry Up and Wait: What’s Next with Redistricting? 

Join ACS on June 26 at 4:30pm Eastern for a webinar featuring Paul Smith of the Campaign Legal Center and Michael Li of the Brennan Center for Justice discussing the Supreme Court’s two recently decided partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone, and a third redistricting case – Abbott v. Perez – for which a decision is expected soon. Smith and Li will provide an overview of these decisions, the status of redistricting, and the larger legal context in the redistricting battle. Register here.


Will the Texas Redistricting Case, Likely to Be Decided By Supreme Court Next Week, End with Another Whimper Rather than a Bang?

I had thought that the partisan gerrymandering cases were going to end with a whimper rather than a bang, and that’s exactly what happened.

With thoughts that Justice Thomas or Alito likely have the opinion in the Texas redistricting cases (now much more likely Alito than Thomas), I had initially thought that was bad news for the plaintiffs.

But it could well be that this case too ends not with a major decision, but with a punt (as in Benisek) on the standards for issuing injunctions.

Here’s my earlier post, from after the Texas oral argument:


What is An Injunction? The Texas Redistricting Case at the Supreme Court and a Way to Duck the Merits


North Carolina Passes Retroactive “Sore Loser” Law Removing Constitution Party Members from the Ballot; Lawsuit is Coming

This is some brazen stuff:

I imagine Republicans did this out of fear that the Constitution Party could divide the vote on the right and help Democrats.

Can’t think of another example of a retroactive law removing qualified candidates from the ballot before.

(Some background on the law.)


The FEC’s “Superpower”

Ellen Weintraub:

With a bolt out of the blue last Friday, a panel of the D.C. Circuit Court of Appeals bestowed a superpower upon the Federal Election Commission. Unfortunately, it is the power to kill any FEC enforcement matter, wholly immune from judicial review. Thanks, but no thanks.

Left in place, this decision destroys not just the right that Congress gave the American people to challenge the FEC’s enforcement decisions, but the FEC’s entire enforcement mechanism. The panel’s decision1 flies in the face of what Congress intended and urgently needs to be reconsidered by the en banc D.C. Circuit.

It is no secret that my obstructionist colleagues on the Federal Election Commission spike most major enforcement cases. One of the only ways that big cases can be forced forward is when a judge reviewing the case shreds my colleagues’ legal reasoning and leaves them with little choice on remand. But this startling split opinion from the D.C. Circuit removes that judicial review entirely whenever my colleagues add a few newly conjured magic words about prosecutorial discretion to their statement regarding any dismissal. While the decision was technically a win for my agency, it will have far-reaching negative consequences for the law that the D.C. Circuit panel cannot have intended.


Lee Goodman: “I did not approve or authorize the envelope or its identification of me as [FEC] ‘Chairman.'”

In an earlier post, I linked to a story and posted a picture of an endorsement letter in a South Dakota AG’s race where former FEC Commissioner Lee Goodman is identified as the “Chairman” of the FEC.

Former Commissioner Goodman reached out to say: “I’m sending you two emails clarifying the facts and request that you clarify I did not approve or authorize the envelope or its identification of me as ‘Chairman.'”

I have reprinted the two letters he sent me below the fold:

Continue reading


“Democrats Plan New Effort to Target Minority Voters”


The Democratic National Committee is undertaking an expansive, multimillion dollar strategic plan to motivate voters who typically sit out midterm elections, with a particular focus on engaging nonwhite communities through new investments in local organizing and a six-figure advertising campaign.

The plan, which is set to be announced on Thursday, is likely the largest and most comprehensive effort ever by the Democratic Party to motivate minority voters in a midterm election year, according to aides and party insiders briefed on the new efforts. It includes $1.2 million split across 16 state parties to hire community organizers targeting groups who have been historically unlikely to vote — including black, Latino, Asian, millennial and rural voters. The plan also introduces a new database that seeks to identify 25 million likely Democratic voters who are currently unregistered and seemingly removed from the political process.

The nearly $2.5 million total investment telegraphs the Democratic Party’s strategy in November’s midterm elections. Party leaders say they believe that President Trump’s history of igniting racial divisions has motivated America’s minorities to engage in the political sphere, so the Democrats are expanding their target demographic to include voters who have traditionally not been cultivated.


“National Enquirer sent stories about Trump to his attorney Michael Cohen before publication, people familiar with the practice say”


During the presidential campaign, National Enquirer executives sent digital copies of the tabloid’s articles and cover images related to Donald Trump and his political opponents to Trump’s attorney Michael Cohen in advance of publication, according to three people with knowledge of the matter — an unusual practice that speaks to the close relationship between Trump and David Pecker, chief executive of American Media Inc., the Enquirer’s parent company.

Although the company strongly denies ever sharing such material before publication, these three individuals say the sharing of material continued after Trump took office.

“Since Trump’s become president and even before, [Pecker] openly just has been willing to turn the magazine and the cover over to the Trump machine,” said one of the people with knowledge of the practice.

During the campaign, “if it was a story specifically about Trump, then it was sent over to Michael, and as long as there were no objections from him, the story could be published,” this person added….

Richard Hasen, a professor specializing in election law at the University of California at Irvine’s law school, said that coordinating a message with a political candidate only becomes problematic for a media company if the candidate exerts a level of “control” over the outlet.

If a media corporation submits to a candidate’s instructions, “that could amount to a violation of federal election laws,” he said.


“Wilbur Ross Contradicts Trump Administration Rationale For 2020 Census Citizenship Question”

Sam Levine for HuffPo:

Commerce Secretary Wilbur Ross contradicted the Trump administration’s justification for adding a citizenship question to the 2020 census, revealing for the first time Thursday that he began to consider the adding the question even before the Department of Justice requested that he do so.

The disclosure came in a supplemental memo filed as part of an ongoing lawsuit challenging the addition of the citizenship question. The memo is significant because the Trump administration has said that the request to add the citizenship question originated with the Department of Justice, which wanted better data to enforce the Voting Rights Act. DOJ asked the Department of Commerce to add the question in December of 2017, but Ross revealed for the first time on Thursday that other senior administration officials had raised it earlier and he had been considering it.

Ross said he had begun considering adding a citizenship question after he was appointed secretary of commerce (he was confirmed in February 2017) and that it was he who approached the DOJ about adding the question….

The supplemental memo is likely to lend fuel to claims by civil rights and immigration groups, who say the DOJ request was merely a pretext for adding the citizenship question. They say that the Trump administration wanted to add the question in order to drive down immigrant response rate


“If voter ID comes to NC, Apple and Amazon shouldn’t”

Rev. Barber and Rashad Robinson oped in The News & Observer:

Apple and Amazon have a clear choice: they can stand by their stated values or they can stay the course of enabling the N.C. General Assembly as they re-enact Jim Crow-style voter suppression in the state. Make no mistake, history will remember how our leading companies chose to condone or condemn the rolling back of civil rights laws across our country.

The parallel to Roseanne Barr is striking. We can only hope that in the case of racist policy, as well as racist rhetoric, the public, the media, and powerful corporations are just as willing to take a stand.


Parties in in North Carolina Partisan Gerrymandering Case Spar Over Whether U.S. Supreme Court Should Hear Case or Remand the Case Following Gill

The Court had the case on its conference docket for today, but it is possible these supplemental briefs will further delay disposition of the case.

Jun 19 2018 Second supplemental brief of appellees Common Cause, et al. filed. (Distributed)
Main Document
Jun 20 2018 Supplemental brief of appellees League of Women Voters of North Carolina, et al. filed. (Distributed)
Main Document
Jun 20 2018 Supplemental brief of appellants Robert A. Rucho, et al. filed. (Distributed)
Main Document

I discussed in my recent Slate piece about Gill how the North Carolina case could be the next vehicle to consider these issues, though it might face a remand to reconsider standing questions in light of Gill.

Paul Clement, defending the state general assembly, has been arguing that there’s a standing problem (and therefore remand in light of Gill is appropriate). But here’s his “To be sure” paragraph that makes his argument tough:

To be sure, the district court concluded in the alternative that “Plaintiffs have standing to challenge the 2016 Plan as a whole … [e]ven absent statewide standing, because Plaintiffs reside in each of the state’s thirteen districts and have all suffered injuries-in-fact.” JS.App.45; see also JS.App.40-41 n.9. But just like the plaintiffs in Gill, the plaintiffs here did not “meaningfully pursue their allegations of individual harm”; instead, they “rested their case … on their theory of statewide injury.” Gill, slip op. 18. Indeed, the League plaintiffs have never suggested that they had an individualized theory; they have just adamantly defended their statewide theory, insisting that “it would be incongruous to force challenges to the Plan to proceed district-by-district.” LWV.Mot.27; see also CC.Mot.15 (“the League of Women Voters plaintiffs proceeded only on a statewide theory’’ (alteration omitted)).

Bottom line: The Court can kick the case back or take it as it wishes, meaning a lot rides on Justice Kennedy for a change.


“Voting machine vendor treated election officials to trips to Vegas, elsewhere”


The nation’s largest voting equipment vendor has for at least nine years coaxed state and local elections officials to serve on an “advisory board” that gathers twice annually for company-sponsored conferences, including one last year at a ritzy Las Vegas resort hotel.

The arrangement could compromise the integrity of the officials’ decisions — or at the very least, the optics of those decisions — at a time when they are faced with efforts by Russia and perhaps other nations to disrupt the upcoming mid-term elections, ethics and elections experts said.

As many as a dozen election officials attended the March 2, 2017 Las Vegas meeting, with a number of them accepting airfare, lodging, meals and, according to one participant, a ticket to a show on the Strip from their voting systems vendor, Nebraska-based Election Systems and Software (ES&S). Two other panel members said their state election boards paid for their trips.


Texas Redistricting Cases Could Be Issued as Early as Tomorrow, and Justice Thomas or Alito Could Well Have the Court’s Opinion

The Supreme Court issued four opinions today, and signalled a rare Friday opinion release tomorrow with 10 cases remaining. The Court is likely to finish its term and release of the remaining opinions some time next week.

Only three Justices have not yet written for the April sitting—the Chief Justice, and Justices Thomas and Alito. The travel ban case is pending, and I expect the Chief Justice will have that opinion if he is in the majority.

That means it is likely, but not certain, that Justices Alito or Thomas have the Texas redistricting cases if there is a majority opinion. That would likely not be good news for voting rights plaintiffs.

But this term has been a strange one full of punts and unusual configurations of Justices. So we will have to wait and see.


Crosscheck: “Security Concerns Stall Kris Kobach’s Controversial Voter Tracking Program in Kansas”


A massive voter-tracking program run by Kansas Secretary of State Kris Kobach — which purports to help states keep voter rolls accurate — has halted operations over concerns about its own accuracy and security.

The Interstate Crosscheck system, which Kobach’s office promised would be working ahead of the 2018 elections, has been sidelined while the U.S. Department of Homeland Security conducts a security assessment following the unintended release of hundreds of voters’ private information.

Each year, the Crosscheck program compares voter registration lists from more than two dozen states, searching for duplicate names. The stated goal is to prevent people from voting in more than one state and eliminate voter fraud — although being registered to vote in two states is not illegal. Crosscheck then sends a list of duplicate names to each participating state, the first step in a long process of voter list maintenance.

Crosscheck, at one time, held data on half the registered voters in the country, and critics have warned that the program isn’t keeping the voter data safe. Crosscheck recently came under fire for a data security breach that made public the names, dates of birth and partial Social Security numbers of 945 Kansas voters. Others say Crosscheck is being used as a tool for voter suppression.

On Tuesday, the system came under further criticism when the ACLU of Kansas filed a federal class-action lawsuit charging that Kobach’s “reckless maintenance” of Crosscheck violated voters’ constitutional right to privacy. The suit seeks the removal of Kansas from Crosscheck until proper cyber-security safeguards are put in place.


“Voter fraud much greater threat than election hacking, Missouri’s Jay Ashcroft says”

KC Star:

“While these are serious allegations, it is vitally important to understand that after two years of investigation there is no credible — and I can strike credible and just put evidence — there is no evidence that these incidents caused a single vote or a single voter registration to be improperly altered during the 2016 election cycle,” Ashcroft said. “It was not our votes or our election systems that were hacked — it was the people’s perception of our elections.”

This is not to say U.S. elections are perfect, that there was no fraud or that there was no unlawful corruption of votes, he said.

“The evidence indicates that voter fraud is an exponentially greater threat than hacking of our election equipment,” he said.

Ashcroft cited a 2010 Missouri House primary election that was determined by a single vote. Missouri Rep. John Joseph Rizzo’s relatives later admitted to illegally claiming a Kansas City address. Their two votes could have changed the results of the primary.

Rizzo said at the time that he wasn’t aware of the illegal votes.

Ashcroft made voter fraud, and the implementation of a photo ID requirement to vote to prevent fraud, a cornerstone of his successful 2016 campaign for secretary of state. The Rizzo race was an oft-cited example of the type of fraud he said exists in Missouri elections.

His critics are quick to note that Rizzo’s relatives committed registration fraud, not voter impersonation fraud, and thus would not have been thwarted by a photo ID requirement to vote. There has never been a reported case of voter impersonation fraud in Missouri.

Ashcroft’s testimony came two days after a federal judge struck down a Kansas law intended to prevent voter fraud by requiring people to provide proof of citizenship, such as a passport or birth certificate, before they could register to vote.

In a three-week trial earlier this year, the judge found, Kansas Secretary of State Kris Kobach failed to show convincing evidence of voter fraud. She also found that the law disproportionately affects rightful voters.

Senate Democrats at the hearing took issue with Ashcroft’s assertion that voter fraud was an “exponentially” bigger threat to election security than hacking.


2018 Supplement to Election Law: Cases and Materials, Sixth Edition

Announcement from Carolina Academic Press:

2018 Supplement to Election Law: Cases and Materials

Sixth Edition

This 2018 Supplement is up-to-date through the end of the Supreme Court’s October 2017 term. The new material includes coverage of cases on partisan gerrymandering, voter purges, political apparel at the polling place, and Voting Rights Act challenges to redistricting.

Supplement material will be available free of charge to instructors who have assigned the casebook to their course. Students may also access the supplement material for free. Please visit the casebook’s website to access the material beginning August 1, 2018. 


“Kobach Finally Tells Clerks To Comply With Court Order On Proof-of-Citizenship”

Tierney Sneed for TPM:

After two days of confusion — with some but not all county election officials enforcing a Kansas voting restriction struck down by a federal judge Monday — the Kansas Secretary of State’s office instructed local officials Wednesday that proof-of-citizenship was not required to register to vote.

The instructions marked the end — or at least a pause — in a years-long saga of Kansas Secretary of State Kris Kobach fighting tooth and nail to keep his signature voter restriction alive, despite multiple court rulings against it.


“APNewsBreak: Kobach Sought Pardon For VP Of Corporate Donor”


 Kansas Secretary of State Kris Kobach unsuccessfully sought a governor’s pardon for a corporate campaign donor’s vice president whose crime, police said, involved threatening a cab driver by putting a gun to his head.

Kobach, a Republican and leading candidate for Kansas governor, approached then-GOP Gov. Sam Brownback’s chief counsel about clemency for Kansas City-area resident Ryan Bader in August 2017, state records show. Kobach was Bader’s attorney and initiated the pardon request three years after a state judge expunged the attempted robbery case from Bader’s record.


The Ease of Showing Standing

I mentioned in my post the other day that it shouldn’t be very difficult to satisfy Whitford’s new standing requirements—at least for most plaintiffs in most districts. Cracking and packing are ubiquitous in any district map where significant vote dilution has occurred, and are easy to demonstrate using election results and district diagrams. Alternative district configurations featuring less cracking and packing are also easy to identify thanks to advances in technology that enable large numbers of lawful maps to be generated quickly. Most plaintiffs in most districts could have been placed in less cracked or packed districts (that are themselves components of fairer maps), simply because so many fairer maps exist.

The supplemental brief that the League of Women Voters of North Carolina filed today with the Supreme Court nicely illustrates my point. (As most ELB readers know, I help represent the League.) The League’s brief explains that all thirteen of North Carolina’s current congressional districts were intended to crack or pack Democratic voters, and did, in fact, crack or pack them in the 2016 election. For twelve of the thirteen districts, the League’s brief also highlights at least one alternative district configuration that would have involved less cracking or packing. Plaintiffs in almost every cracked district could instead have been placed in a district that would have been won by a Democrat. And plaintiffs in every packed district could instead have been distributed among two or more less highly concentrated, but still Democratic, districts.

As an example, here is the brief’s discussion of North Carolina’s First Congressional District. (The brief includes similar analyses of the plan’s twelve other districts.)

District 1:

District 1 is located in northeastern North Carolina and contains most of the region’s Democratic voters. Ex.4007; Ex.4071; Ex.4073. Individual plaintiffs William Collins, Carol Faulkner Fox, Larry Hall, Annette Love, Gunther Peck, Elizabeth Torres-Evans, and Willis Williams live in District 1. Dkt.12:4-5; Dkt.41:8-10. The 2016 Plan’s author, Dr. Thomas Hofeller, predicted that District 1 would be a packed Democratic district with a Democratic vote share of 69%. Ex.5116:9. As expected, District 1 was won by the Democratic candidate in 2016 with 69% of the vote. Ex.1018. For these reasons, the district court found that District 1 was one of the districts into which “Dr. Hofeller ‘concentrat[ed]’ Democratic voters.” App.117.

The district court also found that District 1 was significantly more packed (or heavily Democratic) than the analogous district in more than 20,000 simulated district maps. App.102-03; Ex.3040:27. Dr. Hofeller, further, created two draft maps prior to finalizing the 2016 Plan (maps 17A and ST-B) in which District 1’s voters were distributed among three districts. All three of these districts were predicted to be Democratic (e.g., 51%, 52%, and 53% in map 17A).  Ex.4023; Ex.4024. And the League’s expert, Professor Jowei Chen, produced many maps that unpacked District 1’s voters. His map 3-2, for example, contained two moderately Democratic districts (52% and 53%) in place of the overwhelmingly Democratic District 1. Ex.2010:12; Ex.4032.

Obviously, if all of this information can be gathered in less than two days—after litigation conducted without knowledge of Whitford’s standing requirements—then future litigants will have little trouble compiling an even stronger record on standing. Whitford, then, may ultimately come to be seen as the partisan gerrymandering analogue of U.S. v. Hays. In Hays, the Supreme Court dismissed a racial gerrymandering challenge because the plaintiffs did not live in the district they were attacking. All subsequent racial gerrymandering litigants made sure to include district residents as plaintiffs, meaning that Hays became irrelevant almost immediately. After Whitford, similarly, partisan gerrymandering litigants will be certain to allege (and prove) unnecessary cracking and packing. Other hurdles may yet frustrate these litigants, but standing is unlikely to be a major obstacle again.


“The elections clause as a structural constraint on partisan gerrymandering of Congress”

That’s the title for the piece I was asked to contribute to the SCOTUSblog Symposium on the partisan gerrymandering cases. Here is the piece, and here is an excerpt:

There is yet another constitutional provision, not at issue in Gill, that even more naturally moves constitutional analysis away from individual rights to a focus on the statewide effects of partisan gerrymandering, at least when it comes to congressional districts. That is the elections clause of the Constitution, Article I, Section 4. The elections clause delegates power to state legislatures, in the first instance, to establish the “times, places and manner” of congressional elections.

Like the powers of Congress in Article I, the elections clause is a specifically enumerated power that the Constitution grants to states, initially, for specific and limited purposes. The Supreme Court has made clear that the states have no reserved or inherent powers over the regulation and design of congressional districts. Their power to design congressional districts stems only from this enumerated grant and cannot go beyond the scope of that grant.

. . . In several cases, the court has struck down state laws that regulate congressional elections as being beyond the implicit boundaries on state power under the elections clause. In the U.S. Term Limits Inc. v. Thornton case, for example, the court noted that, “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional constraints.” This was part of the basis for the court’s holding that term limits for members of Congress are unconstitutional. Similarly, the court struck down state ballot-notation measures in Cook v. Gralike, relying on the fact that, as Justice Anthony Kennedy noted in concurrence, the “Elections Clause thus delegates but limited power over federal elections to the States.” The court concluded that ballot notation, which indicated whether a candidate had pledged to support term limits, was designed to “favor candidates” who took certain positions. This was beyond a state’s legitimate authority under the elections clause.

Because the Supreme Court has already held that states cannot use their power under the elections clause to “favor or disfavor a class of candidates,” the elections clause might be thought a natural home for statewide challenges to partisan gerrymandering of congressional districts. I filed an amicus brief in the 2006 case of League of United Latin American Citizens v. Perry, in which I made this argument on behalf of myself and my colleagues with election-law expertise, Sam Issacharoff and Burt Neuborne. Jamal Greene has an excellent student Note that develops the argument in much more detail. [Update:  I forgot to mention in the original piece that Jessie Amunson also has a good student Note on the same subject].

So far, the elections clause has not been the focus of sustained attention in any of the Supreme Court’s partisan-gerrymandering decisions. But that is about to change. The three-judge federal court that struck down North Carolina’s 2016 congressional districting plan held that partisan gerrymanders of Congress do indeed violate the elections clause, as well as the First and 14th Amendments. That case is currently under submission to the Supreme Court, and it is likely to represent the court’s next major confrontation with defining the kind of constitutional injury that partisan gerrymandering entails.


“Is Groton the Next Evenwel?”

Paul Edelman has posted this very interesting draft on SSRN. Here is the abstract:

In Evenwel v Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of “one person- one vote” (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior was known. That belief was mistaken. In this note I report on the Town of Groton, Connecticut which uses registered voting data to apportion seats in its Representative Town Meeting, and has done so since its incorporation in 1957. The resulting apportionment arguably meets the requirements of OPOV as applied to registered voting data, but badly fails if total population is employed. Thus, it would make a good test case to resolve some of the open questions in Evenwel.


Kansas SOS Kobach Apparently Disobeying Court Order, At Least for Now


In the aftermath of a federal judge’s ruling yesterday voters may be confused about voter registration. The judge ruled it is unconstitutional for Secretary of State Kobach to make voters show proof of citizenship to register. However Secretary Kobach told county election officials to keep enforcing that rule, until he gives written instructions to do otherwise.

He will, however, comply with the judge’s order to do mandatory CLE:

On Monday, a federal judge struck down the state’s proof of citizenship voter registration law in a ruling that excoriated Kobach’s conduct in court and ordered him to take additional legal classes. Kobach quickly promised to appeal; his office said the judge had reached an “extreme conclusion.”

He said he believes Judge Julie Robinson’s requirement of additional education is not necessary, though he will comply with it.

“I’m not familiar with any other judge doing such a thing,” Kobach said.


Today’s Must-Read: “Native Americans’ right to vote is under attack”

Kira Lerner for Think Progress:

But with more voters casting ballots from their homes, Arizona is offering fewer opportunities for people to cast ballots in person. That’s a problem for Native Americans, who say they enjoy the communal aspects of voting on Election Day and sometimes need their ballots translated in-person into non-written Native languages. It also makes voting nearly impossible for people like Marks’ mother, who can’t receive mail to their homes and instead share PO boxes miles away —  sometimes in a different county or even state — and who check their mail infrequently.

“We have an aging community,” Marks said. “A lot of our elders, they feel passionate about voting, [but] they’re not always in the condition or position or have the ability to bring themselves in to a polling place to drop off their ballot or even to the post office to mail it at the appropriate time.”

The mail-in ballot is just one of many ways that voting, a constitutional right, is harder if you’re Native American. While voting has never been easy for people living on reservations, in many ways it’s become even more difficult in recent years, as states and the federal government turn their back to the problems.

Some states aren’t just ignoring the barriers to the ballot — they’re actively making them worse. In 2016, Arizona’s Republican-controlled legislature passed a lawbanning “ballot harvesting,” a term conservatives coined to refer to the act of mailing a ballot that’s not your own.


A Sign of the Changed 5th Circuit: Texas Voter ID Case Ends with No Petition for Rehearing En Banc from Voting Rights Plaintiffs

With no fanfare, the mandate issued from the 5th Circuit in the Texas voter ID case yesterday, ending the appeal. As I wrote back in April, the panel issued a “fundamentally disingenuous opinion” by Judge Edith Jones, which was really indefensible.

The last time there was rehearing en banc in this case, a divided 5th Circuit sitting en banc sided with the plaintiffs and found that Texas’s law violated Section 2 of the Voting Rights Act. Judge Jones dissented.

But there have been so many new conservative picks for the 5th Circuit, and one loss of a more liberal judge to become an ambassador, that I suppose the plaintiffs figured there was no point in trying for more relief here (much less at the Supreme Court).

Don’t worry. Things will soon get much worse for voting rights.


“Judge rules for lawmakers: No primary elections for NC judges”

News and Observer:

In the first year in decades that all judicial races will be partisan races, North Carolina will not have primary elections that allow the political parties to winnow the names of candidates who will appear on ballots this fall.

U.S. District Judge Catherine Eagles notified attorneys for the Democratic Party and North Carolina lawmakers on Tuesday that she plans to rule for the legislators in a lawsuit filed late last year.


Wisconsin: “Democrats seek to bring redistricting case back to Supreme Court before 2020 elections”

Milwaukee Journal-Sentinel:

Wisconsin Republicans are claiming victory with Monday’s U.S. Supreme Court decision to send a lawsuit over the state’s legislative boundaries back to a lower court without addressing whether the map is constitutionally drawn.

But Democrats say the ruling doesn’t put the legal fight to bed as Republicans suggest, and vow to clear any hurdle to get the nation’s highest court to answer the question of whether Wisconsin’s districts are so partisan that they violate the Constitution before the next round of map drawing.

“The discouraging thing is just the delay,” Bill Whitford, the named plaintiff in the lawsuit challenging the districts, said in a phone interview with reporters. “We have a road map forward … I don’t think we’ll have any difficulty meeting the burdens the court asked us to meet.”


“The Best Way to Fix Gerrymandering Is to Make It Useless”

Lee Drutman NYT oped:

Reformers could certainly try again next year, perhaps finding new approaches to avoid the shoals of standing. But a better approach would be to revamp the antiquated electoral institution that makes elaborate districting schemes both possible and so profitable in the first place — the single-member district. Increase the size of districts (and use ranked-choice voting to improve proportionality) and the predictability of results declines, making gerrymandering far less effective.

It’s a truism across nations — the larger the size of the electoral district, the less effort expanded on gerrymandering. This is a primary reason that the United States is the world leader in gerrymandering: It is one of only a handful of advanced democracies that still use single-member plurality-winner districts.


“Latino Residents File Suit to Replace Islip Town’s System of Electing Council Members”

Press release via email:

A lawsuit filed in federal court alleges that the at-large voting system of the Town of Islip violates the Voting Rights Act by systematically preventing members of Islip’s Latino  community from electing candidates of their choice to the Islip Town Board, despite the strength that the Latino community would have as a voting bloc under a system of single-member districts. Attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP, the Law Offices of Frederick K. Brewington, and Newman Ferrara LLP filed the lawsuit on behalf of Ana Flores, Rene Flores, María Magdalena Hernández, Magali Roman, Make the Road New York, and New York Communities for Change against the Town of Islip, the Islip Town Board, and the Suffolk County Board of Elections.


“As a long-time resident of Islip, I’ve seen time and again how the Town Board has treated the Latino community like second-class citizens,” said María Magdalena Hernández, plaintiff in the case and member of Make the Road New York. “They have repeatedly failed to provide interpretation and translation to Spanish-speaking residents like me. They have ignored our requests for cleaner streets and safer roads. And they make us feel unwelcome. Until our community can elect a representative of our own, the Town will never listen to us.”


The plaintiffs allege that the Town’s at-large voting system should be replaced with single-member districts because, under the current system, the Town Board has been unresponsive to the needs of the Latino community and repeatedly failed to afford Islip’s Latino residents the same rights and services that it provides to more affluent white communities. For example:


● The Department of Public Works ignores requests to repair potholes, traffic lights, and stop signs in Latino neighborhoods

● The Town fails to provide proper public services (such as street cleaning, garbage pickup and snowplowing) on an ongoing basis in the Latino community, while ensuring that white communities are given priority access to these same services

● The Town has repeatedly failed to provide translation and interpretation services to Spanish-speaking residents

● Latino residents are often met with hostility or indifference when they ask local law enforcement and municipal services for help


“The Town handles complaints from our neighborhoods differently than it handles complaints from other parts of Islip,” said Magali Roman, another plaintiff in the case. “When people in the Latino community call to report streets that need to be repaired, the Town does not respond to us. When these problems are not fixed, accidents happen, people’s cars break down. They might miss work and lose their jobs, or they might be hurt. These problems start out small, but because the Town neglects them, they grow and have big consequences.”


Although Latinos make up approximately one-third of the Town’s population, no Latino has ever been elected to the Islip Town Board. Further, in the last three decades, only one of the 30 residences belonging to elected Town Board members was located in the Latino community; the single residence located in a Latino community belonged to a Republican Town Board member who owned three residences. The plaintiffs allege that Islip’s Latino residents are a politically cohesive community that has demonstrated the ability to elect candidates of their choice when an at-large system does not dilute their votes, and has succeeded in electing Latino candidates to county and state Legislature seats.


Currently, all Islip residents vote for each Town Board position, meaning that the same majority can control the outcome of the race for each Town Board seat. As a result, Islip’s Latino community has little chance of electing any candidate of its choice. The plaintiffs argue that the current at-large system should be replaced by a single-member system, in which the Town would be divided into separate districts with one council member representing each district, as is the case in Long Island towns such as Hempstead, North Hempstead and Brookhaven.


In support of their argument for a district-based system, the plaintiffs highlight the Roberto Clemente Park dumping incident as an example of the Town’s neglect of the Latino community.


In 2013, two politically connected companies began dumping tens of thousands of tons of toxic waste, including asbestos, into the park located in the heart of Islip’s predominantly Latino neighborhood, Brentwood. Town officials knew of the dumping at the time. Rather than alerting law enforcement and the community of this illegal and dangerous activity, they concealed evidence that the dumping had occurred. These Town officials were later criminally charged and pled guilty.


The Latino community’s problems with Roberto Clemente Park endured. Following the dumping, Town officials failed to promptly close the park and notify local residents of the incident. In addition, the Town failed to provide adequate translation services at a town hall meeting intended to explain the dumping to Islip’s Latino residents. The park did not reopen until 2017, leaving the Latino community without its main center for recreation and community for three-and-a-half years. When the park eventually reopened, construction was not complete and many were concerned whether the park was safe for children. Moreover, the nearby pool, which had been closed in 2011, has still not been reopened.


“The pool at Roberto Clemente Park has always been an important place for me, my family, and my community,” Ana Flores, a member of New York Communities for Change, said. “It is our pool. Our pool has been closed more than five years and it’s still closed. Because of the Town’s neglect, my brother didn’t grow up with the same pool that I grew up with. The Town’s behavior is unacceptable and would never be accepted in the rich, white communities that the Town rushed to help in the wake of Hurricane Sandy.”


The Town’s discriminatory zoning and land use practices have also permitted the industrialization of large tracts of Central Islip and Brentwood, often in close proximity to residential developments, which has impacted the health of Latino residents. Brentwood and Central Islip are home to a disproportionate number of environmental hazard and waste sites, including Superfund sites, that are located right inside residential areas; these sites are not well-maintained, posing serious risks of contamination of water sources and other community resources. As recently as 2015, the Town disregarded the health and safety of Brentwood residents by fast-tracking approvals for the establishment of a scrap metal recycling facility and metal shredder near a neighborhood, despite opposition from the Suffolk County Planning Commission and the community.


The plaintiffs also allege that the at-large system preserves an unjustifiable, bloated, corrupt political system that currently goes unchecked and allows elected officials from predominantly white communities remain in power.


“In 1988, then-Supervisor Frank Jones said the representation of the Latino community in the Town was ‘not in proportion to the influential numbers growing in the in the community. We need to do more,’” said Fred Brewington, The Law Offices of Frederick K. Brewington. “Since then, the Town has done absolutely nothing to remedy this situation and has turned its back on its Latino residents.”


“By filing this lawsuit, the Latino residents of the Town of Islip are making it clear that they will no longer be relegated to second-class status,” said Greg Laufer, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP. “For the past three decades, the democratic process has been manipulated to maintain the one-party rule that perpetuated political corruption and the inequitable distribution of the Town’s resources.”


“When I became a citizen, I thought I would never be treated like a second-class citizen in my own country,” Ms. Flores said. “I was promised that — as a citizen — my vote could elect someone to represent me and my community. Here, in the Town of Islip, that promise has never been kept. And, so, today we sue to ensure our right, as citizens of this community, to elect board members who represent us!”



“14 Years Later, Progress Is Elusive for Supreme Court on Partisan Redistricting”

Marcia Coyle:

Stanford Law School’s Pamela Karlan, who filed an amicus brief on behalf of a group of law professors supporting the Wisconsin challengers, said the decision reflects “four justices who will never find this justiciable and four who will go along with whatever Justice Kennedy says if he would just say something.”

At least the court did not say, as it did in Vieth in 2004, that these claims are not justiciable, Karlan said. She added: “But 14 years later, it’s not a lot of progress.”


“Will the Court Ever Address Partisan Gerrymandering?”

My New York Times op-ed on today’s redistricting decisions is now available here (as most readers know, the NYT chooses its own title for these).  Here are a couple excerpts:

Among major democracies, only in the United States are self-interested politicians given the exclusive power to design election districts for themselves and their allies. Other countries lodge this power with independent commissions. In the absence of such institutions, the pressure for courts to impose constitutional constraints on partisan gerrymandering becomes powerful, particularly as the manipulation of electoral districts for partisan advantage has become more brazen, more extreme, more effective and more consequential. . . .

But the court’s rejection of statewide challenges in the Wisconsin case will make gerrymandering litigation more complex. Instead of being able to rely primarily on data showing the overall partisan advantages of a plan, challengers will have to prove how and why specific districts were drawn in the way they were.

Redrawing district maps is typically done on a computer by an expert in consultation with a few key legislators. Hundreds of changes to the map are explored behind closed doors. Challengers then have to try to reconstruct how any particular district ended up the way it did; in other words, why certain areas were left in or out. This can mean lengthy trials and arguments in court teasing out the reasons particular choices were made. . . .

Looming in the wings, and probably to be heard in the next term is the case from North Carolina, which will squarely test how aggressively courts will be in policing partisan manipulation of district design. We are likely to find out then whether it really is legal for legislatures to move voters in or out of a district based on their voting histories for no legitimate purpose other than the party in charge of the redistricting is seeking to gain partisan advantage. . . .

[U]ntil we shift to a more sensible system than having partisan state legislatures create election districts, judicial constraints would be welcome. Monday’s decisions reject one means of challenging partisan gerrymanders under the Constitution, but the court is soon going to be faced with other approaches.