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

ProPublica:

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

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

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

Release:

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

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

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

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

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

 

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“Subversive gerrymandering reform in Pennsylvania”

Derek Muller:

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

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

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

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

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

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

CPI:

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

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

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The Pennsylvania Remedy

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

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

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

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

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

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

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“Attacking the ‘Woke’ Black Vote”

Charles Blow NYT column:

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

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

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

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

NYT:

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

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

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

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

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

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

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

Philly Inquirer:

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

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

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

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

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

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

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

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

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

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

Bob Bauer at Just Security:

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

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

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

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

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

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

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

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

I have written this piece for Slate. It begins:

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

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

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

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

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

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“Docs: Top GOP officials lobbied for straight-ticket ban”

Detroit News:

Top ranking Michigan Republican Party officials lobbied lawmakers to ban straight-ticket voting in late 2015 despite concerns from a key GOP lawmaker that the change could increase Election Day wait times, according to new court filings from attorneys seeking to overturn the statute.

Evidence and depositions the state is attempting to exclude from trial in a federal lawsuit over the ban offer a rare glimpse into the legislative process and show the extent to which party officials interact with the state’s GOP-led Legislature.

Former Michigan Republican Party Chairwoman Ronna Romney McDaniel, who now heads the Republican National Committee, and current state Chairman Ron Weiser were “heavily involved throughout the legislative process so as to secure the passage of the bill,” wrote attorneys Mary Ellen Gurewitz and Mark Brewer, former chairman of the state Democratic party.

The party officials intervened “in order to achieve partisan advantage and enhance their election outcomes,” wrote the attorneys, representing Democrat and minority voters in the case.

The court filings document text messages between McDaniel, Weiser and lawmakers, discussing vote counts and attempts to secure support from Gov. Rick Snyder.

It also cites an email from GOP donor Betsy DeVos — a former state party leader and now head of the U.S. Department of Education — thanking and congratulating Senate Majority Leader Arlan Meekhof of West Olive for his “leadership and perseverance on the elimination of straight-ticket voting!”

“While only time will bear out the importance of this for those running for office ‘down ticket,’ the implications are significant,” DeVos wrote in the Dec. 21 email.

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New Federal Indictment of 13 Russians from Special Counsel Mueller Says, Among Other Things, That Russians Violated Federal Election Law Through Political Ads

Here’s the indictment, and a few snippets I’ve posted on Twitter:

 

And:

More to come.

 

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The Justice of Contradictions: Antonin Scalia and the Politics of Disruption Book Tour (Events in NYC, DC, Boston, Los Angeles, Irvine)

The Justice of Contradictions: Antonin Scalia and the Politics of Disruption Book Tour

January through March 2018
The Justice of Contradictions: Antonin Scalia and the Politics of Disruption Book Cover

Professor of Law Richard L. Hasen will participate in a variety of speaking engagements this winter on his forthcoming book The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, scheduled to be published March 20, 2018.

Schedule of Events


Pre-order from Amazon

Pre-order the Audiobook from Audible

Feb. 7 (video) (National Constitution Center event with Jeff Rosen, Kannon Shanmugam, and Elizabeth Wydra)

Mar. 5 NYC lunch conversation with Kate Shaw (Cardozo Law)

Mar. 5 NYC 6:30 pm conversation with Joan Biskupic (Brennan Center at NYU)

Mar. 6 Washington D.C. lunch conversation with Sue Bloch and Adam Liptak (Georgetown Law)

Mar. 20 Irvine, CA evening conversation with Adam Winkler (UCI Law)

Mar. 28 Los Angeles lunch conversation with Erwin Chemerinsky (LA ALOUD)

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March 5 Noon Event in NYC: “Judging Scalia: Richard L. Hasen, Author of “The Justice of Contradictions” in Conversation with Professor Kate Shaw”

Really looking forward to this (but you need to register for the event):

Judging Scalia: Richard L. Hasen, Author of “The Justice of Contradictions” in Conversation with Professor Kate Shaw

March 5, 2018
Noon

Location
Cardozo School of Law
Room 1008
Lunch will be served

Richard L. Hasen, Chancellor’s Professor of Law and Political Science at the University of California-Irvine, will be interviewed by Professor Kate Shaw, Co-Director of the Floersheimer Center for Constitutional Democracy, about his new book The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, which will be published by Yale University Press in March 2018. The book provides an eye-opening look at the influential Supreme Court justice who disrupted American jurisprudence in order to delegitimize opponents and establish a conservative legal order. Hasen provides a nuanced perspective which demonstrates how Justice Scalia was crucial to reshaping jurisprudence on issues from abortion to gun rights to the separation of powers.

Hosted by the Floersheimer Center for Constitutional Democracy.

CLE credits: 1.5 transitional/non-transitional New York State CLE credits in the category “Areas of Professional Practice”.

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Justice Scalia Recognized the Constitutionality of Some Gun Control Measures, And For That He Was Criticized as Not Sufficiently Originalist

Cass Sunstein column on Justice Scalia’s Heller opinion:

Justice Scalia’s opinion did not come close to embracing the arguments made by those who invoke the Second Amendment as an all-purpose weapon against democratic efforts to prevent the murder of high-school kids. On the contrary, his opinion is full of permission slips for federal, state and local governments to act.

In a crucial sentence, Justice Scalia wrote, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Justice Scalia also emphasized that the Second Amendment is restricted to weapons “in common use at the time.” He added that the Constitution leaves government with many tools for combating the problem of handgun violence, including regulation.

As I note in my upcoming book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption:

But even Heller  was not fully originalist. As Sara Anonchick Solow and Barry Friedman explain, it was less originalism than lawyerly interpretation. Heller  “deals not only with text and original meaning, but with pre- and post-ratification practice, precedent, evolved understandings, normative justification, and consequentialist limitations on the right. It is by surveying this broad array of sources that Justice Scalia locates the ethos of self-defense purportedly at the center of the Second Amendment.” Or, as Professor Laurence Tribe and Joshua Matz put it, “Focusing . . . on how Heller works—the sources it cites, the logic, the scope of the rights it creates— we discover a ruling exquisitely attuned to the living constitutionalism that Scalia so vehemently disdains.”

Professor Nelson Lund goes further, saying that Scalia’s reasoning in Heller  is “at critical points so defective—and in some respects so transparently nonoriginalist—that Heller should be seen as an embarrassment for those who joined the majority opinion. It may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial exponents.” Although Lund agreed that Scalia was right on originalist grounds in finding within the Second Amendment an individual right to bear arms, he found the rest of the analysis on the permissibility of the D.C. handgun ban to be both non-originalist and ahistorical.

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“Citizens United Loses Free Speech Appeal Over New York Donor Rules”

Reuters:

A federal appeals court on Thursday threw out a constitutional challenge by the conservative group Citizens United to New York state’s requirement that registered charities disclose their donors annually.

The 2nd U.S. Circuit Court of Appeals in Manhattan rejected claims that the requirement violated the First Amendment because it intimidated donors from contributing, cutting off money needed to conduct free speech, and was a prior restraint on the ability to solicit donations.

Writing for a 3-0 panel, Circuit Judge Rosemary Pooler said New York has important interests in stopping fraud and abuse by charities, and requiring them to disclose names, addresses and contributions of their largest donors makes enforcement easier.

You can read the very well done opinion at this link.

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“District judge: Amendment that made it harder to change Colorado’s Constitution may be unconstitutional”

Interesting:

A district court judge gave an initial win Wednesday to a group that claims Amendment 71 unconstitutionally raised the bar for petitioners hoping to change the Colorado Constitution.

Judge William J. Martínez denied a request from the Secretary of State’s Office that asked to dismiss the lawsuit against the amendment. Martínez also gave the state until March 9 to say why a permanent injunction should not be placed on the part of the law that requires 2 percent of signatures from each Senate district in Colorado.

Court documents show Martínez believes that because there is a substantial difference in the registered voter population from Senate district to Senate district, Amendment 71 could violate the Fourteenth Amendment’s Equal Protection Clause. The clause protects “one person, one vote.”

One could interpret Amendment 71 as giving each legislative district one “vote” in favor of or against placing a proposed constitutional initiative on the ballot — like the measures that gave us legal cannabis and the Taxpayer’s Bill of Rights. District 21, where Commerce City is located, needs only 1,610 signatures to cast a “yea” vote. However, District 23, where Johnstown is located, needs 2,644 signatures, the documents show.

“But if Colorado has a good faith basis for believing it can develop empirical data showing that vote dilution is not actually occurring as between the various state Senate districts, the court will not foreclose that opportunity,” the documents state.

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“Don’t Expect Dems To Seek Redistricting Revenge Where They Get The Chance”

TPM:

The National Democratic Redistricting Committee (NDRC), backed by Obama and spearheaded by former Attorney General Eric Holder, is teaming up with other Democratic campaign organizations to target specific governorships, legislative chambers, and ballot initiatives in 2020 with an eye on getting a say in the redistricting process.

So far, at least, Democrats appear focused more on fighting for fairer maps than on letting themselves draw maps that advantage their party. 

“Our goal is to restore fairness to the system,” NDRC Communications Director Patrick Rodenbush told TPM Thursday. “If you look at our list of target states, we’re trying to break trifectas in states that were most badly gerrymandered by Republicans and then protect against gerrymandering in a handful of other ones.”

Trifectas are where one party controls all three influence-points for the redistricting process: both legislative chambers and the governorship.

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“Republican bill could allow Arizona Legislature to draw map of voters”

Arizona Republic:

Republican state lawmakers are pushing a November ballot proposition that would ask voters to overhaul the panel that draws Arizona’s political boundaries — a move that could affect which party holds power at the state Capitol.

The proposition would also give state legislators the authority to potentially sketch their own district boundaries, as well as those of Arizona’s members of Congress.

Supporters said the proposal is intended to make the Arizona Independent Redistricting Commission — a bipartisan panel that was created to take that power away from the Legislature — larger and, thereby, more bipartisan.

But Democrats and voter-advocacy groups say it’s a veiled attempt to dismantle the commission and let state lawmakers pick their voters through gerrymandering.

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Scoring the Pennsylvania Proposals

Yesterday was the deadline for parties to submit their proposed remedial maps in the ongoing litigation over Pennsylvania’s congressional plan. In sum, seven maps were submitted: two by the plaintiffs, one by the governor, one by the lieutenant governor, one by Pennsylvania House Democrats, one by Pennsylvania Senate Democrats, and one by a group of intervenors. (The state’s Republican legislative leaders also submitted their map a few days earlier.)

All of these maps perform better in terms of traditional redistricting criteria than the enacted Pennsylvania plan. Their districts are more compact, and they split fewer towns and counties. To evaluate the maps’ partisan implications, we uploaded them on PlanScore. (For more on PlanScore, see my post from earlier this week.)

As the below chart indicates, the maps vary widely in their likely efficiency gaps. The Republican leaders’ proposal (like the enacted plan) preserves a double-digit Republican advantage. Three maps (from the governor, the lieutenant governor, and the Senate Democrats) have smaller but still substantial pro-Republican skews. And three maps (from the House Democrats and the plaintiffs) are almost completely symmetric.

Beyond showing that maps can be assessed quickly using PlanScore, this exercise has two points. First, it reveals that even when traditional criteria are followed (more or less), maps can still have very different partisan consequences. So it is not enough to say that we want an aesthetically attractive map; we also have to specify what kind of aesthetically attractive map we want: one that is skewed in favor of a party or one that is symmetric.

Second, this analysis means that the Pennsylvania Supreme Court will soon have to clarify its conception of partisan gerrymandering. In its decision, the court sometimes defined gerrymandering as drawing district lines with partisan intent and effect. But at other times, the court seemed to understand gerrymandering exclusively as disregard for traditional criteria, regardless of the partisan implications. Under the latter notion, all of the proposed maps are acceptable because all of them are much more compliant with traditional principles than the enacted Pennsylvania plan. But under the former definition, only a few of the proposals actually correct the partisan skew of the enacted plan.

(Two small methodological notes: The intervenors did not provide the necessary files for their proposed map to be evaluated. And all of these asymmetry scores were generated without considering incumbency; as I noted previously, we’re still working on enabling users to incorporate incumbency effects when they upload maps.)

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“Stop treating Ruth Bader Ginsburg — a.k.a. ‘Notorious R.B.G.’ — like a celebrity”

I have written this oped for the LA Times. A snippet:

But there is something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era. We’ve divided the Supreme Court into teams. We have our justices, champions who push our side’s agenda. The other side has their justices, villains intent on destroying America.

We can blame the late Justice Antonin Scalia for reinventing the notion of the celebrity justice and paving the way for this kind of excess.

In the 1960s, some justices, such as William O. Douglas and Arthur Goldberg, made frequent appearances and were considered public figures. For the most part, they didn’t relitigate the court’s business in public.

When Scalia got to the Supreme Court, in 1986, he revived the role of justice as public intellectual. Over the three decades that he was on the bench, Scalia made many appearances, gave speeches and went on book tours. But, unlike Douglas and Goldberg, he pushed his particular brand of jurisprudence — and was known to insult and demean the theories of the other justices. In public, he was provocative and acerbic….

Now Ginsburg has taken up the mantle of the court’s most provocative public justice. She is not afraid to share provocative political opinions. She has dropped hints about upcoming decisions. She called Colin Kaepernick’s protest of racial injustice by kneeling during the national anthem “dumb and disrespectful,” remarks for which she later apologized.

Most controversially, she repeatedly expressed concern in 2016 that Trump might be elected president — statements that raised serious issues about whether she needed to recuse herself from cases involving his campaign, and for which she also apologized.

As her public persona has grown, Ginsburg has embraced the “Notorious R.B.G.” label. She’s encouraged a cult of worship to grow up around her. There’s hagiography like the “Notorious RBG” book and the “The RBG Workout,” an illustrated book by her personal trainer. There’s a Ginsburg tumblr and Ginsburg T-shirts.

Just this week, despite swearing off political statements, she said sexism played a prominent role in Hillary Clinton’s election defeat. That may be true, but a sitting Supreme Court justice should not be weighing in on such questions.

It’s dangerous for Supreme Court justices to assume such political roles, particularly when faith in our institutions is declining. If justices are going to be public figures, they should do so in ways that reinforce the rule of law, not partisan politics.

 

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“Trump Lawyer’s Payment to Porn Star Raises New Questions”

NYT:

But Mr. Cohen’s assertions left many questions unanswered, including whether the payment was truly a personal gift by him or whether he was reimbursed by some other party, like Mr. Trump or an associate of Mr. Trump.

In a brief interview on Wednesday, Mr. Cohen declined to answer questions about whether Mr. Trump had reimbursed him, whether the two men had made any arrangement at the time of the payment, or whether he had made any payments to other women or accusers of the president.

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“Democrats outline roster of election security measures”

WaPo:

House Democratic leaders want the federal government to approve more than $1 billion to help states improve ballot security, part of a set of measures they say are necessary to mitigate foreign interference in future election cycles.

The proposals are part of a new report from a task force House Democrats convened last year to examine responses to Russian meddling in the 2016 election. They include establishing grant programs to help states update voting machines and improve cybersecurity protocols, adopting basic standards for voting systems, requiring the federal government to issue regular pre-election threat assessments, and designing a national strategy to counter foreign interference.

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“We need to hack-proof our elections. An old technology can help.”

Michael Chertoff and Grover Norquist WaPo oped:

The nation’s top intelligence officers warned Congress this week that Russia is continuing its efforts to target the 2018 elections.

This should come as no surprise: A few months ago, the Department of Homeland Security notified 21 states that hackers had targeted their election systems in 2016. Yet Congress still has not passed legislation to meaningfully address election cybersecurity.

Time is running out. Lawmakers need to act immediately if we are to protect the 2018 and 2020 elections.

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“Judges Say Throw Out the Map. Lawmakers Say Throw Out the Judges.”

NYT:

 In Pennsylvania, a Republican lawmaker unhappy with a State Supreme Court ruling on gerrymandering wants to impeach the Democratic justices who authored it.

In Iowa, a running dispute over allowing firearms in courthouses has prompted bills by Republican sponsors to slash judges’ pay and require them to personally pay rent for courtrooms that are gun-free.

In North Carolina, the Republican Party is working on sweeping changes to rein in state courts that have repeatedly undercut or blocked laws passed by the legislature.

Rather than simply fighting judicial rulings, elected officials in some states across the country — largely Republicans, but Democrats as well — are increasingly seeking to punish or restrain judges who hand down unfavorable decisions, accusing them of making law instead of interpreting it.

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