“If He Wins, Could the Senate Exclude Roy Moore? Under an 1844 Senate Precedent, Perhaps.”

Fascinating Hugh Brady:

The Powell Court held that the constitutional grant of power extends “to judg[ing] only the qualifications expressly set forth in the Constitution” and that “the [Senate is] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed by the Constitution.” 395 U.S. at 521-522, 548.

The Powell Court was focused exclusively on the Article I qualifications, sidestepping any discussion of additional qualification imposed by Article VI, Clause 3: “The Senators … shall be bound by oath or affirmation, to support this Constitution[.]” The Court explained that it did not consider whether this provision, or the other provisions concerning dual office-holding or disqualification because of impeachment or rebellion, was a qualification because the parties agreed that “Powell was not ineligible under any of these provisions.” Id. at 520 n.41.

So, what if the individual does not have the capacity to take the oath? Could the Senate exclude that individual? Consider the case of John M. Niles, elected to the Senate in 1843….

What should Senator Collins do? It seems that she should offer a resolution delaying the administration of the oath to Moore pending an inquiry into his capacity to take the oath; such a resolution is privileged and prevents the Presiding Officer from administering the oath. Riddick’s Senate Procedure, S. Doc. 101-28 at 704 (1992). This is certainly the procedure used by Jarnagin in the Niles precedent. While “orderly procedure” first outlined in 1903 suggests that a Senator-elect should be sworn first and then his qualifications should be reviewed, that procedure seems to relate primarily to cases of election contests and not to cases where the Senator lacks capacity to take the oath. See id. at 704-705. Moore can then take his case to a Federal district court and thence on appeal, eventually to the Supreme Court. Poetic, I think.

Senator Collins, if you feel as you say, it’s worth a try. Good luck.


“Facebook and the New Red Scare”

David Keating and Paul Jossey in The Hill:

Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum.

Egging on lawmakers in this endeavor is the usual cadre of nonprofits and opinion shapers. Oft-quoted progressive professor Richard Hasen direly warns, “It is a matter of national security and sovereignty to assure that only Americans should be able to influence who American leaders should be.” This is absurd and impractical.

Good to know I’m both absurd AND impractical.


Disturbing News from Alabama Senate Race: “Alabama Supreme Court Blocks Digital Ballot Preservation in Eleventh Hour”

Steven Rosenfeld:

The Alabama Supreme Court stepped into Tuesday’s U.S. Senate race between Republican Roy Moore and Democrat Doug Jones on Monday night by blocking a lower state court’s ruling earlier in the day that ordered election officials to take steps to preserve digital images of every ballot cast Tuesday.

In effect, the Alabama Supreme Court’s stay—or freezing—of an earlier court order to preserve the digital ballot images undermines the best-case scenario for ensuring that an accurate vote count can be verified in the controversial Senate race.

Alabama’s Supreme Court, where Moore served as chief justice, did not issue an explanation with its stay. However, a lengthy brief filed at the close of business Monday by the state on behalf of Alabama Secretary of State John Merrill contained a list of eyebrow-raising assertions, such as Merrill had no authority to tell local election officials how to operate their voting machines. The state also said only private vendors holding contracts to program the machines could do so—and that it was too late for that.

Update: Here is the order. It provides for further proceedings. But it grants an emergency stay in the interim, which for all practical purposes allows the ballot images to be destroyed before the case could be heard.


Second update: It appears that the court issued its order within minutes after the stay request, without giving the other side a chance for briefing. How could they have had a chance to fairly consider the issue?

But at 4:32 p.m. Monday, attorneys for Alabama Secretary of State John Merrill and Ed Packard, the state administrator of elections, filed an “emergency motion to stay” that order, which the state Supreme Court granted minutes after Merrill and Packard’s motion was filed.

It is very disturbing because the AL Supreme Court’s order effectively decides the case. The ballot images will be destroyed, even if plaintiffs ultimately win on the merits weeks later. Goes against principles of preserving the status quo.


“Civil Rights Division Lawyers And Staff Gave Low Marks To Justice Department Leadership In A Workplace Survey”

Zoe Tillman:

Fewer than a third of attorneys and staff in the Justice Department’s Civil Rights Division who participated in a workplace survey this year reported feeling “satisfied” with the policies and practices of senior DOJ leadership, according to a report obtained by BuzzFeed News.

A high percentage of Civil Rights Division employees reported feeling satisfied with their work, their immediate supervisors, and their colleagues, but the positive responses dropped when it came to senior leadership. Under Attorney General Jeff Sessions, the Justice Department has changed course on a number of civil rights issues, including arguing againstfederal protections for gay workers and scaling back oversight of local police departments.


“Judge orders Alabama not to destroy voting records in Tuesday’s Senate election” (with link to court order)


A judge directed Alabama election officials Monday afternoon to preserve all digital ballot images in Tuesday’s hotly contested U.S. Senate special election.

An order granting a preliminary injunction was filed at 1:36 p.m. Monday – less than 24 hours before voting is to begin. The order came in response to a lawsuit filed Thursday on behalf of four Alabama voters who argued that the state is required to maintain the images under state and federal law.

“All counties employing digital ballot scanners in the Dec. 12, 2017 election are hereby ordered to set their voting machines to save all processed images in order to preserve all digital ballot images,” Montgomery County Circuit Judge Roman Ashley Shaul wrote in the order.

You can find the two-page order here.


“Secret super PAC backing Jones in Alabama exposed”


A mystery super PAC backing Democrat Doug Jones in Alabama is controlled by a pair of groups closely aligned with the national Democratic Party, even as the candidate strives to dissociate himself from Washington interests.

Highway 31, which has dropped more than $4.1 million in support of Jones and against Roy Moore ahead of Tuesday’s Senate special election, is a joint project of two of the largest national Democratic super PACs — Senate Majority PAC and Priorities USA Action — along with a group of Alabama Democrats, multiple senior officials familiar with the arrangement told POLITICO.

Highway 31 was created in November, Federal Election Commission filings show. Though Birmingham lawyer Edward Still is listed as the group’s treasurer, it was, in fact, founded jointly with Senate Majority PAC, the outside group closely tied to Democratic leadership in the Senate. Highway 31 has been funded jointly by Senate Majority PAC and Priorities USA Action, the Democratic super PAC that backed Barack Obama in 2012 and Hillary Clinton in 2016, the Democrats briefed on the arrangement told POLITICO.


Analyzing the Maryland Case on a Statewide Basis

The Supreme Court’s new partisan gerrymandering case features a district-specific (rather than a statewide) claim, as the plaintiffs challenge only Maryland’s Sixth Congressional District. It’s worth noting, though, that had the plaintiffs attacked Maryland’s entire congressional map, they (likely) would have been entitled to prevail under the test adopted by the Whitford trial court:

  1. Discriminatory intent: Democrats had unified control of the Maryland state government in 2011, and it’s evident from the Benisek record that they sought to benefit themselves, and disadvantage Republican candidates and voters, when they redrew Maryland’s congressional districts.
  2. Discriminatory effect: Maryland’s congressional plan had an average pro-Democratic efficiency gap of about 13% in the 2012, 2014, and 2016 elections. Only eight plans over the last half-century have been more skewed, on net, and five of those are currently in effect. It would also take a nine-point pro-Republican swing for Republicans to capture even a single additional seat. The Maryland map’s tilt is thus impervious to most electoral shifts.
  3. Justification: Compared to hundreds of maps simulated by Jowei Chen and David Cottrell, Maryland’s congressional plan is much more skewed in a Democratic direction. It’s therefore improbable that Maryland’s political geography or legitimate redistricting objectives can explain the plan’s tilt. (To prove this point, however, more detailed simulations incorporating Maryland’s specific line-drawing goals would be necessary.)

To be clear, district-specific and statewide theories of partisan gerrymandering don’t always point in the same direction. In a subsequent post, I’ll explore where the theories converge and where they diverge. At least in Benisek, though, both types of claims support the invalidation of Maryland’s congressional plan.


Mobilizing Black Voters in Alabama: Who Does it and Why It’s Become Harder

For many decades the most significant organization in Alabama for mobilizing black turnout has been the Alabama Democratic Conference (ADC).  The ADC goes back deep into Alabama’s history, even pre-dating the Voting Rights Act.  It was founded after the successful 1960 challenge, in the Supreme Court case of Gomillion v. Lightfoot, to Tuskegee’s attempt to re-draw its municipal boundaries into a 28-sided “uncouth” figure that put virtually every black resident outside the city’s boundaries.

Having won that case, Dr. Gomillion then helped found the ADC to help mobilize and organize black political participation.  The unusually long existence of the ADC has given it a recognition and stature built up over years, particularly among black voters, that has made it a central player in get-out-the-vote (GOTV) efforts.

Successful organizations for GOTV drives are less likely to be pop-up vehicles  created overnight for a particular election, because they rely on the credibility that comes from years of having developed personal relationships and the infrastructure to get black voters to the polls, particularly in rural areas.

But  the ADC’s capacity to do that in tomorrow’s election and going forward has been dramatically undermined by a recent Alabama law that bans any political group from contributing financially to support any other political group for any purpose.  Given the economic position of many blacks in Alabama, the ADC charges membership dues of only $15/year, and less than half its financial resources traditionally came from these dues.  More than half its financing for things like GOTV efforts came from organizations representing teachers and trial lawyers, which shared ADC’s political aims.

When Alabama banned political groups from providing financial support to other political groups, it cut off nearly half the money ADC received for its GOTV efforts.  To the extent Alabama had any genuine problems with its campaign-finance laws, there were less sweepingly overbroad ways of dealing with them, rather than a complete bar on the ability of any group to contribute financially to any other group. The much more comprehensive federal campaign laws do not contain anything like this kind of flat prohibition on political groups working together on matters like GOTV efforts.

I thought Alabama’s law was an unconstitutional infringement on political association and political speech, and I represented ADC (along with John Tanner, Ed Still, and Perkins Coie) in its effort to get the Supreme Court to address these issues.  But the Court declined to hear the case.  (Only one other State, Missouri, has a similar bar to Alabama’s on political groups supporting each other with financial contributions, and a federal district court held Missouri’s law unconstitutional after the Supreme Court declined to hear the Alabama case).

Tomorrow’s election is the first major one under the law that bans ADC from receiving money from other political groups to fund its GOTV efforts.  The question of how many black voters turn out for the Democratic candidate, Doug Jones, is of course one of the factors that will be most critical to the outcome.


“Is the Supreme Court finally ready to tackle partisan gerrymandering? Signs suggest yes”

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

Maybe there is some technical problem with the Gill case — such as a lack of standing for the plaintiffs — that would prevent the court from deciding it on the merits. Maybe the court will rule that these cases must be decided on a district-by-district basis (as in Benisek) rather than on a statewide basis (as in Gill). Maybe the court does not like the efficiency-gap theory, and prefers the 1st Amendment argument offered in Benisek. (In brief, the theory is that when a legislature draws lines to minimize a political party’s voting strength, it interferes with the associational rights of the party’s voters, discriminating against them simply because they are Republicans or Democrats.)

The tweet reminded me of what Chief Justice John G. Roberts Jr. said during the Gill oral arguments about being forced into the business of choosing Democrats or Republicans. He said that if the “intelligent man on the street” sees the court siding with Democrats in one of these disputes, “it must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”


The Maryland Gerrymandering Case: Four Significant Aspects to the Court Deciding to Hear the Case

1. The significance for the justiciability issue.  Deciding to hear the Maryland case is a significant signal that a majority of the Court is not going to hold partisan gerrymandering claims to be non-justiciable (that is, inappropriate for judicial resolution).  If the Court were moving in the Wisconsin case toward holding partisan gerrymandering to be non-justiciable, it would make little sense for the Court to do anything with the Maryland case except hold it, then send it back to the lower courts to dismiss on the grounds that the entire cause of action was non-justiciable.  Hearing the Maryland case means the Court is quite unlikely to rule in WI that partisan gerrymandering claims should not be addressed by the courts.

In the Court’s last major confrontation with these issues, the 2004 Vieth   case, four Justices would indeed have held partisan gerrymandering non-justiciable (C.J. Rehnquist and J. O’Connor, of those four, are no longer on the Court). Justice Kennedy had kept the cause of action alive, but just barely, based on his hope that effective, judicially manageable standards would emerge.  In Gill, the possibility always existed that, if Justice Kennedy were  not satisfied that plaintiffs had indeed come up with an effective standard 13 years later, he too might conclude the courts should give up the search as well.  But the Maryland grant signals that, whatever else the Court might do in Gill, it is unlikely to conclude partisan gerrymandering is non-justiciable.

2. The significance for the issue of partisan gerrymandering.  The Wisconsin and Maryland cases take completely different approaches, which means the Court will now have a more comprehensive menu of options before it in deciding how to address partisan gerrymandering.  At the time the Court agreed to hear the Wisconsin case, I wrote that it was unfortunate this case was coming to the Court in isolation, as (1) the first case in which a lower federal court had struck down as unconstitutional a legislative redistricting plan and (2) the first case that had made use of the new metric, the Efficiency Gap, as part of its decision.  In the normal world of Supreme Court practice, the Court might have left the lower court decision alone (by denying cert.) and giving the lower courts more of an opportunity to test both this approach and others that were being pursued under different theories in other states.  But the unique nature of the Court’s mandatory appellate jurisdiction meant that it essentially had to agree to hear the Gill case, rather than waiting and then being able to benefit from numerous lower court decisions.

By granting the Maryland case now, the Court has thus put itself back in the better position of having an at least somewhat broader perspective on the theories and approaches being developed in the lower courts.  The approach in the Maryland case is a more conventional one than in Gil because it focuses on the design of a single district; the Maryland case implies that districts would have to be challenged one by one, with plaintiffs having to prove that any specific district was itself a partisan gerrymander; for that reason, the approach in Maryland, if adopted, would make future litigation more burdensome than in Gill, since Gill attacks state-wide plans as a whole, on a state-wide basis, rather than requiring proof about each district one-by-one.  Of course, the approaches in Gill and the Maryland case could turn out to be complementary, rather than alternatives; the Court could decide that a plan is unconstitutional if it violates the plaintiffs’ approach in Gil or that individual districts could be unconstitutional under the plaintiffs’ theory in Maryland.  But in any event, the Court is going to have a much better overall perspective on how to think about legal theories concerning partisan gerrymandering by virtue of having both cases before it.

3.  The significance for the signal the Court’s decision sends.  When the Court was considering only the Gill case in isolation, the case had been built up into the climatic moment for this issue.  That meant that, if the Court ends up rejecting the plaintiffs’ claims in Gill, the decision would have sent a powerful message to many other key actors — lower court judges, lawyers and plaintiffs considering bringing these cases, and those involved in redistricting — that the Court was unlikely ever to find an instance of unconstitutional partisan gerrymandering.

That would have been true even if the Court had qualified its decision in various ways, and even though there are several unique features of the WI litigation that would not apply to other approaches to litigating partisan gerrymandering.  After years of not holding any plan unconstitutional, if the Court reached that same conclusion in Gil, the undoubted take-away would have been these cases are simply not winnable.

But now, with two options before it, the Court’s signal will depend on how it handles both cases (and the two decisions might  be handed down at the same time).  The Court might affirm in Gill, of course. But if it rejects the plaintiffs’ claims there, and yet affirms the plaintiffs’ claims in the Maryland case, the message from the Court will be dramatically different than if it were deciding Gill alone.

4.  The significance for the (perceived) politics of partisan gerrymandering.  Because many more legislatures were under unified Republican than Democratic control in the 2010 round of redistricting, most of the attacks on partisan gerrymandering — both in the courts and in the media — have tended to be attacks on Republican-drawn plans. To the extent the legal challenge to partisan gerrymandering comes to be perceived as a purely partisan matter, that is not good for the legal issue.

Judges realize, of course, that Democrats often gerrymander when they get the chance.  But it makes a difference to have a vivid example and reminder of that fact before the Court at the same time the initial challenge before it was to a Republican plan.  That’s another reason I consider this recent Maryland grant good for the Court’s consideration of partisan gerrymandering.




“The Republican Overseeing the Alabama Election Doesn’t Think Voting Should Be Easy”

Pema Levy:

This time last year, Alabama’s chief elections official landed in the national spotlight for delivering a screed against nonvoters that many people interpreted as an attack on African Americans in the state, who have long faced barriers to voting. “If you’re too sorry or lazy to get up off of your rear and to go register to vote, or to register electronically, and then to go vote, then you don’t deserve that privilege,” Republican John Merrill said in an interview with documentary filmmaker Brian Jenkins. Jenkins had asked why he opposed automatically registering Alabamians when they reach voting age, and his response sizzled with anger toward people who “think they deserve the right because they’ve turned 18.” So he made a pledge: “As long as I’m secretary of state of Alabama, you’re going to have to show some initiative to become a registered voter in this state.”

In the year since he made those comments, Merrill has in many ways made good on his promise. When Alabamians go to the polls on Tuesday to elect Republican Roy Moore or Democrat Doug Jones as their new senator, an untold number will not participate due to the decisions made by Merrill’s office—which is in charge of ensuring a fair voting process—and by the Republicans who run the state. These laws and policies overwhelmingly make it harder for minorities to vote.


“The Alabama Senate Race May Have Already Been Decided”

Scott Douglas NYT oped:

The Senate election in Alabama on Tuesday is not just about the choice between Doug Jones and Roy Moore. It’s also about a voter suppression campaign that may well sway the result of a close race.

In 2011, Alabama lawmakers passed a photo ID law, ostensibly to combat voter fraud. But “voter impersonation” at polling places virtually never happens. The truth is that the lawmakers wanted to keep black and Latino voters from the ballot box. We know this because they’ve always been clear about their intentions.

A state senator who had tried for over a decade to get the bill into law, told The Huntsville Times that a photo ID law would undermine Alabama’s “black power structure.” In The Montgomery Advertiser, he said that the absence of an ID law “benefits black elected leaders.”

The bill’s sponsors were even caught on tape devising a plan to depress the turnout of black voters — whom they called “aborigines” and “illiterates” who would ride “H.U.D.-financed buses” to the polls — in the 2010 midterm election by keeping a gambling referendum off the ballot. Gambling is popular among black voters in Alabama, so they thought if it had remained on the ballot, black voters would show up to vote in droves….


“In major reform, 2020 Iowa caucuses would include absentee voting, public vote totals”

Des Moines Register:

Iowa’s first-in-the-nation Democratic presidential caucuses would break with decades of tradition in 2020 by allowing voters to cast absentee ballots and then releasing the raw total of votes won by each candidate.

A Democratic National Committee panel known as the Unity Reform Commission set those changes into motion during a meeting here on Saturday, clearing the way for perhaps the most significant changes to the Iowa caucuses since they emerged as a key step in the presidential nominating process five decades ago.

“There’s never been an absentee process. We’ve never released raw vote totals,” said Scott Brennan, a Des Moines attorney who serves on the DNC. “Those would seem to be pretty darn big changes.”

Reform commission members and national party leaders predicted the changes, which affect other caucus-holding states as well as Iowa, would increase voter participation, bring transparency to the nominating process and bolster grassroots activism — particularly in rural and Republican-leaning places….

In other business, the commission moved to scale back the influence of so-called “super-delegates” — the party leaders and insiders who were not bound to support a particular presidential candidate in previous national conventions.

In a series of recommendations, the commission sharply reduced the number of super-delegates who can back a candidate regardless of how that candidate performed in their home state’s caucus or primary. The move is a response to 2016 convention delegates and particularly supporters of Bernie Sanders who believed Hillary Clinton’s nomination was unfairly bolstered by super-delegates who were unaccountable to the will of voters in their states.

If approved, only members of Congress, governors and top party leaders like former presidents would enter the national convention with no requirement to back a certain candidate on the first ballot. Two other categories of super-delegates would be required to support the candidate based on the outcome of state primary and caucus results.

The Unity Commission also outlined reforms for increasing voter access in states that hold primaries — primarily by encouraging same-day or automatic voter registration and same-day party switching for voters registered as a Republican or independent, and in some cases creating penalties for states that don’t.


Must-Read Ellen Aprill NYT Oped: “Leave the Johnson Amendment Alone”

Ellen in the NYT:

Contributions to charities are deductible; contributions to PACs and section 501(c)(4) social welfare organizations are not. Because charities can have enormous influence on political campaigns with very little expense, many who wish to intervene in political campaigns will shift their contribution from PACs and social welfare organizations to charities. Currently, the House proposal operates for five years, from Jan. 1, 2019, to Dec. 31, 2023. The Joint Committee on Taxation estimates the revenue loss for this five-year period at $2.1 billion. This number probably underestimates the actual cost of the House’s proposed change to the Johnson amendment. Charities that make a decision to electioneer will attract large donations from donors who would like to obtain deductions and influence elections in one fell swoop.

The House proposal also encourages the establishment of new entities to take advantage of the revised rules. These newly created organizations would establish their own norms as to what is “regular and customary.” In short order, organizations would be formed precisely to take advantage of this new electioneering rule.

Under our current campaign finance regime, only dollars that have been subject to income tax can be used for electioneering. A de minimis exception for electioneering by charities will undermine this basic principle. It will harm both the law regulating charities and the law regulating campaign finance. Our country will be far poorer for such changes.


Detroit’s Election Administration Remains a National Embarrassment

In this forthcoming piece on the 2016 voting wars in the U.S., I describe in some detail the debacle that was the Detroit recount, part of the (eventually abandoned) recall attempt by Jill Stein after the 2016 presidential election. The state promised it was going to get its act together, but this new story says that not much has changed:

The recount confirmed Winfrey’s win. But 33 precincts representing more than 7,000 votes couldn’t be re-tallied at all.

“It was just disheartening to see canister after canister that were deemed un-recountable, because the seals were broken, because the ballot canisters themselves were broken, or because the numbers didn’t match,” Gilchrist said.

Michigan election law doesn’t allow precincts to be recounted when the number of voters in poll books doesn’t match the number of ballots in the box.

In the case of precinct 156, from Detroit’s St. John Presbyterian Church, poll books showed that 145 voters cast ballots. But when election workers opened up the canister, there were only five ballots inside.

Detroit director of elections Daniel Baxter says those missing ballots were later found in a storage container. Still, he said the incident is “high on our radar.”

The report attributed much of the 2016 problems to human error.  They need a lot more resources towards training.

As I argue in the paper, thank goodness the 2016 election did not hinge on the results  of Michigan. There was so much incompetence there and so much angry polarization that it would have been a horrible combination.


“Virginia’s House election is irreparably tainted”

WaPo editorial:

THE MYSTERY of how, why and by whom a few hundred Northern Virginians were registered to vote in the wrong state legislative districts in this fall’s elections does not look as though it will be resolved soon. For one thing, the registrar who might have been able to shed some light on the issue died last spring.

The more pressing question is what to do about the razor-thin result in one of the districts, on which partisan control of the state House of Delegates may hinge. Short answer: A federal judge now reviewing the mess should order a do-over.

That would be an unusual recourse for the race in the 28th House District, including parts of Stafford County and Fredericksburg, where Republican Robert Thomas leads Democrat Joshua Cole by 82 votes. It would also be warranted.


Maybe Justice Kennedy is Reading Ned Foley on Why the Maryland Redistricting Case is a Better One Than Wisconsin?

Just a reminder that Ned’s piece upcoming in the blockbuster William and Mary Law Review symposium on gerrymandering makes the case for Justice Kennedy to use the Maryland case (which the Court just agreed to hear) rather than the Wisconsin case (which is pending) to rein in partisan gerrymandering. Here is a draft of The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable PrecedentHere is the abstract:

It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander—the one provided the name for this category of pernicious partisanship—a fixed historical benchmark by which to judge the distortion of legislative districts.
This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives—after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch—not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.

“No Deal: How Secret Talks With Russia to Prevent Election Meddling Collapse”


The Trump administration has rejected a sweeping Russian proposal seeking a mutual ban on foreign political interference, three senior US administration officials tell BuzzFeed News.

Russia first broached the subject in July, when one of Vladimir Putin’s top diplomats arrived in Washington with a sheet of proposals aimed at addressing a top concern of the US government: A resurgence of Russian meddling in the 2018 elections.


Wisconsin: ” Ethics Commission chair: Will provide clarifications on DOJ Doe report”

The latest:

The state Ethics Commission will provide “clarifications” to the DOJ report on how agency staff handled John Doe records and will seek the release of sealed court documents to back up the contention employees acted properly, the commission chair tells WisPolitics.com.

David Halbrooks, speaking after the agency called an emergency meeting today, also said the commission has no concerns about administrator Brian Bell and counsel Brian Buerger amid a call from GOP Sen. Steve Nass for them to resign.


“Lobbyists Ask for Votes. Some Lawmakers Want Much More.”

What a lede on this NYT story;

Vanessa Alarid was a lobbyist in New Mexico when she asked a lawmaker over drinks one night if she could count on his support for a bill that appeared to be coming down to a single vote.

“You can have my vote if you have sex with me,” Ms. Alarid recalled the lawmaker saying, although he used cruder language for sexual intercourse. He told Ms. Alarid she had the same first name as his wife, so he would not get confused if he called out in bed. Then he kissed Ms. Alarid on the lips, she said.

Shocked, Ms. Alarid, who was 32 at the time, pushed him away. Only after he was gone did she let the tears flow.

When her bill came up on the floor of the New Mexico House of Representatives the next day, March 20, 2009, it failed by a single vote, including a ‘No’ by the lawmaker, Representative Thomas A. Garcia.

As Ms. Alarid watched from the House gallery, she said Mr. Garcia blew her a kiss and shrugged his shoulders with arms spread.


Wisconsin Judge Steps Down from Politically Charged “John Doe” Case After Reporter Finds Tweet Judge Made About Case Before It Was Assigned to Him

Milwaukee Journal Sentinel:

The John Doe judge overseeing possible contempt proceedings of nine state officials withdrew from the case Friday because he had posted comments about the case on Twitter before he was assigned the case this spring.

Jefferson County Circuit Judge William Hue said he had forgotten about the posts until the Milwaukee Journal Sentinel asked him about them on Thursday. He said Friday he was disappointed to be losing an interesting case but thought he needed to step aside so no one questioned whether the judge hearing the case was impartial.

“I don’t want to be the focus of any attention here,” Hue said.

State Supreme Court Chief Justice Patience Roggensack will appoint his replacement, but has not said when that would happen.


Breaking: Supreme Court Surprisingly Adds SECOND Partisan Gerrymandering Case to Its Calendar This Term, This One from Maryland

The Supreme Court has agreed to hear  a partisan gerrymandering case from Maryland, Benisek v. Lamone. (As with the Wisconsin gerrymandering case, Gill v. Whitford, the Court has postponed the question of jurisdiction as it agreed to hear this appeal—this may be because there are questions about whether courts should properly be hearing these cases).

This is a surprise. Many people thought the Court would simply hold this case pending Gill, and send it back after Gill.

So what gives?

There are differences between the two cases. Gill challenges a statewide plan, while Benisek challenges a particular district. Benisek’s theory of the case is more firmly grounded in the First Amendment. It is really hard to say at this point.

One thing it might mean is that Gill does not resolve the question of partisan gerrymandering but the Court (i.e., Justice Kennedy) wants things resolved this term. For instance, if the Court rejected something on standing or procedural grounds about Gill, this presents another opportunity to take a pass at the case. Then again, there’s a pending North Carolina case which is about the strongest indication of pure partisan intent as the Court is likely to ever see. Legislative leaders in North Carolina admitted they were acting for pure partisan purposes (in order to forestall a claim of racial gerrymandering). The NC case was put on hold after Gill, though that one too could have been set for argument.

It could also be that Gill finds partisan gerrymandering claims justiciable, but leaves certain issues open, issues which the Court then must resolve in Benisek.

But really, when reporters reached out to me last week to ask why the case was relisted, my answer was “who knows?”  I stand by that answer.

Here are the questions presented in Benisek, courtesy of SCOTUSBlog:

Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.

[This post has been updated.]

Second Update: Here’s an interesting theory: “Maybe they want to hear a challenge to a Democratic gerrymander in addition to the Wisconsin Republican gerrymander?” Indeed, at the Gill argument, Chief Justice Roberts expressed concern about how the courts could appear too political in deciding these cases.


Reforming the Presidential Nomination Process

Since the creation in the 1970s of the modern, primary-election dominated process for nominating presidential candidates, there has been little scholarly or public commentary devoted to large-scale re-assessments of that system or consideration of major structural changes to it.

Discrete issues within this system have, of course, received attention, such as what the appropriate sequencing of primaries in various states ought to be, or whether open rather than closed primaries should be used.  Recently, however, NYU hosted the first major reconsideration of the populist turn in the 1970s to the primary-dominated system, a bipartisan process that included leading party figures experienced in the presidential nomination process, along with academic scholars.  That process produced many provocative and intriguing suggestions for reform, such as re-instating the two-thirds requirement for nomination; limiting primary contests to two candidates, chosen by national conventions that come before the primaries; introducing a role for ranked-choice voting; restoring a greater role for party figures within the convention voting process, and other ideas.

The papers will be published next year as a Symposium on the Presidential Nomination Process in the NYU Law Review.  An online video of the presentations is now available here, which also features a keynote address by former Senator and candidate for the Democratic nomination in 2000, Bill Bradley.

A list of the program is below.  My own paper, which I have blogged about before here, is posted on SSRN here.


Panel One – A Historical and Comparative Look at Nominations Systems


Benjamin Ginsberg, Partner, Jones Day

Paper Presenters:

John Frederick Martin, Partner, Bancroft Private Equity

Richard Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law

Panel Two – The 2016 Experience: Rules, Parties, and the Media


Beth Myers, Co-Founder, Esplanade Strategies

Paper Presenters:

Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, NYU School of Law

William Mayer, Professor of Political Science, Northeastern University

Panel Three – Thinking About Reform


Donna F. Edwards, former U.S. Representative, Maryland’s 4th Congressional District (2008-2017)

Paper Presenters:

Elaine Kamarck, Director of the Center for Effective Public Management, The Brookings Institution

Bruce Cain, Professor of Political Science, Stanford University

Keynote Address

Bill Bradley, former US Senator for NJ (1979-1997) and candidate for the Democratic nomination for President (2000).


“Compelling closing arguments bring federal trial over Pa. gerrymandering to an end”


The federal trial over Pennsylvania’s congressional district map wrapped up in a Philadelphia courtroom on Thursday with a string of stirring closing arguments before a three-judge panel.

During four days of deliberations, a group of more than 20 Pennsylvania voters challenged the way Republican lawmakers drew the state’s congressional districts in 2011, asserting a gerrymandering scheme that violates the U.S. Constitution.


Breaking in Alabama Senate Race: “Voters Sue State to Prevent Planned Destruction of Election Records”

Press release:

A Republican, a Democrat, an Independent and a minister yesterday asked a Montgomery circuit court judge to order protection of election materials from next week’s special Senate election. The voters say these materials are essential for verifying the accuracy of the election results and that the State plans to destroy them.

At issue are the “ballot images” created by the digital scanners paper ballots are fed into. Eighty five percent of vote-counting machines in the state count votes by reading the ballot images.

“The Secretary of State’s office is legally required to set procedures to assure all election materials for 22 months after a federal election,” explains election transparency expert John Roberts Brakey. “Even the envelopes from absentee ballots have to be kept. Destroying the ballot images is illegal. We’re only asking the Secretary of State to follow the law.”

You can find the motion for a temporary restraining order here.


EAC Commissioner McCormick, Speaking on ALEC Panel with Von Spakovsky and Adams, Makes Frivolous First Amendment Argument Against Automatic Voter Registration

Sam Levine:

McCormick focused on automatic voter registration, a process adopted by 10 states so far in which eligible people are automatically added to the voter rolls when they interact with a motor vehicle agency or some other state agencies. Once people fill out the forms, they are given the choice of opting out.

Oregon was the first state to adopt the process in 2015; eight states and the District of Columbia have followed since. But McCormick said lawmakers might be too hasty in latching on to the idea without seeing how it plays out in practice. She also suggested that even with the opt-out option, automatically registering people to vote could violate their speech protections under the U.S. Constitution.

“I do think there is a fundamental question: Does automatic voter registration violate the Constitution? Congress, or government, should not be making any law abridging the freedom of speech,” she said. “The First Amendment includes the right not to speak as well as the right to speak.”

Wow, that’s weak. McCormick has been a huge disappointment on the EAC.


“10 Month Sentence For Bloomingburg Developer In Voter Fraud Case”

The latest:

It will be ten months in prison, a year of supervised released, 400 hours of community service and a $200,000 fine for Bloomingburg developer Shalom Lamm who pleaded guilty in June to conspiring to corrupt an election.

As previously reported on VIN News (http://bit.ly/2A0Vqbz), Lamm, developer of Bloomingburg’s Chestnut Ridge townhouse project, could have faced up to five years in prison for conspiring to commit election fraud by filing false voter registrations.

According to the Times Herald Record (http://bit.ly/2zXQOTB), prosecutors said that in addition to placing household items such as toothbrushes in unused apartments to make them appear occupied, Lamm paid a Monsey rabbi approximately $30,000 a month to recruit students to pose as residents of the Orange County town and vote there, even though most had never even been to Bloomingburg.

Defense lawyers argued that a virulent anti-Chasidic bias in Bloomingburg drove Lamm to make bad decisions that he now regrets.


Alabama Secretary of State Convinces Google to Remove Anti-Roy Moore Ad from YouTube as Incorrect or Misleading, But Was It?

Here’s the ad. 

Alabama SOS Merrill Press Release:

Recent reports to the Alabama Secretary of State’s Office indicated the existence of an ad that was targeting Alabamians with incorrect or inaccurate information intent on confusing voters. The ad made claims that the candidate a voter casts their ballot for would be made public and would be shared with members of their community.

This ad was reported to be on YouTube among other digital platforms. Once the ad was reported Secretary Merrill instructed his team to work quickly to ensure Alabamians were not confused or dissuaded from participating in our democratic process due to misinformation or fear of retribution for how they chose to cast their ballot.

Secretary Merrill’s team contacted the Media and Advertising team at Google (YouTube’s parent company) and through several intense discussions and many references to Alabama State Law the team at Google felt the ad should be “disapproved” and that it was in violation of the AdWords advertising policies.

The ad has been removed by Google and was done so at the request of the Alabama Secretary of State’s Office.


This the text of the Highway 31 ad Merrill criticized:

“If you don’t vote and Roy Moore – a child predator – wins. Could you live with that? Your vote is public record and your community will know whether or not you helped stop Roy Moore. On Tuesday December 12th vote for Doug Jones for Senate.”…


But Highway 31 disagrees with Merrill’s assessment and refused his request discontinue it.

“The Secretary of State is distorting the intent of the ad,” said Highway 31 spokesman Muhlendorf. “Whether or not someone votes is public knowledge. The ad is not improper. Standing up and voting against Roy Moore on December 12 is critically important to the future of our state and we are going to make sure all Alabamians know that.”



“New Alabama-based Political Action Committee spends millions to support Doug Jones, draws fire”


 A new Alabama-based political action committee, Highway 31, is taking an active role in the Alabama special election for a U.S. Senate seat, and it’s drawn criticism for avoiding disclosure of its donors.

The group was formed in early November and under federal election law won’t have to disclose its donors until Jan. 21, about five weeks after the U.S. Senate special election. Records show it has committed $2.9 million toward the race in supporting Democrat Doug Jones and opposing Republican Roy Moore.

The wrinkle in the group’s approach, which has drawn attention both in Alabama and from national media, is that Highway 31 has been able to get vendors who provide TV ads and direct mail services to provide their services on credit. That means there’s been no actual spending yet to record in campaign records.


“In Pennsylvania gerrymander case, experts can’t defend the indefensible”

Philadelphia Inquirer:

It’s virtually undisputed that Pennsylvania’s congressional map satisfies this test. The map was drawn in secret by Republicans using reams of sophisticated data. It was then jammed through the General Assembly, largely on party-line votes, in a matter of days. In the 2012, 2014, and 2016 elections, the map set a modern record for partisan unfairness. According to one metric, it was more skewed, on average, than any other congressional map in the country since 1972.

This enormous Republican advantage is likely to endure for the rest of the decade. It would take a five-point swing for Democrats to capture just one more seat. For the map’s skew to disappear, Democrats would need to improve on their 2016 showing by 14 points — a bigger wave than Pennsylvania has seen in generations. And the map’s tilt can’t be explained by the clustering of Democratic voters in Philadelphia and Pittsburgh. In hundreds of computer-simulated maps, Democrats usually win nine or 10 of Pennsylvania’s 18 districts. The state’s underlying geography is thus close to neutral.


“Illinois Democrats ask U.S. Supreme Court to hear Blagojevich’s appeal”

Chicago Sun-Times:

A group of high-profile Illinois Democrats have asked the U.S. Supreme Court to hear former Gov. Rod Blagojevich’s case.

In an amicus brief filed Monday, the who’s who list of current and former Illinois Democratic congressional delegation members emphasized that they take “no position on Mr. Blagojevich’s innocence or guilt on any of the counts of conviction.”

Instead, they wrote that the nation’s highest court should hear his appeal to “distinguish the lawful solicitation and donation of campaign contributions from criminal violations of federal extortion, bribery, and fraud laws.”


Unanimous 9th Circuit Panel, in Opinion by Judge Bybee, Upholds Montana Law Barring Judicial Candidates from Seeking, Accepting, or Using Political Party Endorsements

From the opinion:

Montanans select their judges through nonpartisan popular elections. In an effort to keep those elections nonpartisan, Montana has restricted judicial-campaign speech. One of those restrictions is before us—a rule that prohibits candidates from seeking, accepting, or using political endorsements in their campaigns. Mark French, a judicial candidate who wishes to seek and use such endorsements, claims that Montana’s rule violates his First Amendment rights. Montana argues that the rule is narrowly tailored to ensuring the impartiality and independence of Montana’s judiciary. The district court upheld the statute, and we agree. In light of the Supreme Court’s decision in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), and our decision in Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc), we affirm the judgment….

Only one restriction is at issue here. Rule 4.1(A)(7) of the Montana Code of Judicial Conduct provides: “[A] judge or judicial candidate shall not . . . seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate . . . .” Mont. Code of Judicial Conduct Rule 4.1(A)(7). The Code defines a “political organization” as “a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office.”

French will seek further appellate review.


WI: “Attorney General Brad Schimel wants sanctions and contempt proceedings over Gov. Scott Walker John Doe leak”

Milwaukee Journal-Sentinel:

State Attorney General Brad Schimel has recommended contempt proceedings for a prosecutor and eight other officials over their handling of material from a secret probe of Gov. Scott Walker’s campaign.

In a 91-page report made public Wednesday, the Republican attorney general sharply criticized the probe’s leaders for engaging in an overly broad investigation and failing to secure the vast amounts of evidence seized. He contended contempt proceedings should be initiated against special prosecutor Francis Schmitz and the team he led for how they handled seized material after courts told them they could not review it further or had to get rid of it.

Schimel also wants to seek professional sanctions against Shane Falk, who served as an attorney for the now-defunct Government Accountability Board, as part of his investigation into the leak of secret John Doe material to the Guardian U.S.

More from the Wisconsin State Journal.


Former GOP Chair Who Admits Casting His Ex-Wife’s Absentee Ballot Says He Doesn’t Remember, But Was Able to Work 80-95 Hours Per Week at the Time

Greeley Tribune with the latest on this saga:

Yet, Curtis said in court Wednesday, although he concluded he must have filled out the ballot and submitted it in an envelope with his ex-wife’s name on it, he had no memory of the incident for months. That’s because, he said, he was in the grips of a severe diabetic episode, at the time. He’s lived with Type 1 diabetes for almost 30 years, he said, and it is a very debilitating condition. He has difficulty concentrating, he said, and difficulty sleeping — if he gets more than 90 minutes of sleep at one time in a night, he said, it’s a “miracle.”….

He didn’t shy away from hard work in other parts of his career either. By October 2016, he was working between 80 and 95 hours a week at three different jobs, including a career as a conservative talk-show host for the Aurora-based radio station KLZ-AM 560, a job he had to commute to multiple times a week. During October and the months that followed, he said, his blood sugar was consistently high.

That’s why, he said, he doesn’t remember filling out his own ballot on Oct. 16, filling out his ex-wife’s ballot on Oct. 22, or putting the ballots in the mail Oct. 24. When confronted with the evidence in the months leading up to trial, though, he conceded all three of those events took place.


“How Columbus’s Majority-Black City Council Might be Violating the Voting Rights Act”

Brentin Mock for CityLab:

But how can this method be racially discriminatory in a city like Columbus where, despite having a black population that is roughly 30 percent, the city council is majority black? Everyday People for Positive Change argues that it’s because those city council members were all initially appointed to their seats, not elected. The way this has worked, Beard explains, is a council member will resign before his or her term ends, and then the council fills the vacant seat until the next election. This has been how every black city council member has originally obtained their seat for decades, with just one exception, Jennette Bradley, an African-American candidate who obtained her seat originally via election, in 1991, as a Republican.


Inaugural Issue of ACS Supreme Court Review Now Available

Honored to have my article on the Supreme Court’s racial gerrymandering decision of Cooper v. Harris included in this new publication:

Introduction …………………………………………………………. 1
Steven D. Schwinn

Foreword………………………………………………………………. 5
Erwin Chemerinsky

Educational Equality for Children
with Disabilities: The 2016 Term Cases………………… 17
Samuel R. Bagenstos

Maslenjak v. United States:
Immigration, Expatriation,
and the Plenary Power Doctrine ………………………….. 49
Amanda Frost

Bank of America v. Miami:
An Important Progressive Victory
Due to a Surprising Fifth Vote ……………………………… 77
Brianne J. Gorod

Resurrection: Cooper v. Harris
and the Transformation of Racial
Gerrymandering into a Voting Rights Tool …………. 105
Richard L. Hasen

Trinity Lutheran Church v. Comer:
Paradigm Lost? …………………………………………………. 131
Ira C. Lupu and Robert W. Tuttle

Pavan v. Smith: Equality for Gays
and Lesbians in Being Married,
Not Just in Getting Married ………………………………. 161
Steve Sanders

Implied Constitutional Remedies After Abbasi ……. 179
Stephen I. Vladeck


“Some of Alabama County’s Sample Ballots Marked for Doug Jones”


Alabama Secretary of State John Merrill confirms some sample ballots in one Alabama county were marked for Democratic US Senate candidate Doug Jones.

This comes after Republican U.S. Senate candidate Roy Moore’s campaign wrote an open letter to Merrill Friday asking him to investigate potential voter fraud in Bullock County. The county seat of Bullock County, Union Springs, is approximately 45 miles southeast of Montgomery.