“Why Gorsuch could lead court in wrong direction”

Re-upping my CNN Opinion piece with the Gorsuch hearings beginning:

Unfortunately, this approach obscures the fact that keeping the steady course with a conservative replacement for Scalia will be bad enough across a range of topics important to many Americans, from environmental protection to immigration law to the ability of labor unions to collect dues from their members. Even though Gorsuch is not a Scalia clone, things are likely to be pretty bad on these key issues, because Gorsuch is likely to vote like Scalia, and the court with Scalia already was moving in a very bad direction.
Consider how things will likely get worse in two areas that are the focus of my work, campaign finance and voting rights.

“Justices Won’t Hear Menendez Appeal in Corruption Case”


—The U.S. Supreme Court on Monday declined to hear New Jersey Sen. Bob Menendez’s appeal of his corruption indictment, setting the stage for a federal trial in the fall.

The justices let stand a lower court ruling that refused to dismiss charges including conspiracy, bribery and fraud against the Democratic lawmaker.

Senator Menendez’s lawyers have managed to stretch this out for a long time, but I’m thinking that we may have a new Senator from New Jersey at some point in the not too distant future.


“Legislative Underwrites”

This paper on Leib and Brudney looks to be very good (forthcoming, Virginia Law Review):

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.


“The Reclusive Hedge-Fund Tycoon Behind the Trump Presidency”

Must-read Jane Mayer on Robert Mercer for The New Yorker:

Mercer strongly supported the nomination of Jeff Sessions to be Trump’s Attorney General. Many civil-rights groups opposed the nomination, pointing out that Sessions has in the past expressed racist views. Mercer, for his part, has argued that the Civil Rights Act, in 1964, was a major mistake. According to the onetime Renaissance employee, Mercer has asserted repeatedly that African-Americans were better off economically before the civil-rights movement. (Few scholars agree.) He has also said that the problem of racism in America is exaggerated. The source said that, not long ago, he heard Mercer proclaim that there are no white racists in America today, only black racists. (Mercer, meanwhile, has supported a super pac, Black Americans for a Better Future, whose goal is to “get more Blacks involved in the Republican Party.”)


“Colorado Amends Law After Win in Pillar Ballot Selfie Free Speech Case”

Steve Klein:

Colorado Governor John Hickenlooper signed House Bill 1014 yesterday, amending the state’s election law to allow voters to take and share photographs of their own marked ballots, an activity known as taking a “ballot selfie.” The bill followed a preliminary injunction in the case Hill v. Williams in November, which ruled that the previous version of the law—which prohibited ballot selfies—was unconstitutional. Pillar of Law Institute attorney Stephen Klein serves as co-counsel for the plaintiffs in the case.


“In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary”


“The Supreme Court needs to be an institution that helps to undergird limited constitutional government,” said Mr. Leo, 51, whose cerebral, unassuming demeanor belies the enormous clout he has developed in Washington.

It is a worldview that has brought Mr. Leo and his allies together with a range of conservative players. In addition to major corporate backers such as Google and Chevron, the Federalist Society’s supporters include well-known industry-oriented and libertarian-minded business leaders like Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family, which gave significantly to Mr. Trump’s presidential campaign and helped start Breitbart News….

The scale and sophistication of the right’s judicial confirmation efforts would seem to portend a dark period ahead for the left, which, despite having made great strides under Mr. Obama, finds itself outmaneuvered….

But an examination of the Judicial Crisis Network’s operations and financial records suggests that the group, in fact, has an incredibly narrow base. In 2015, the last year that tax records were available, the Judicial Crisis Network’s entire budget of $5.7 million appears to have come from a single donor, an organization called the Wellspring Committee, based in Manassas, Va., that describes its mission as advancing “limited government and free markets.” Judicial Crisis and a sister organization, the Judicial Education Project, reported in tax returns that they had a total of only two employees and no volunteers, and instead largely relied on outside consultants, like CRC Public Relations, a Virginia firm that also lists the Federalist Society and other conservative groups as clients.

Ms. Severino, asked whether her group was simply a shell to secretly move money on behalf of others, said the Judicial Crisis Network should not be judged based on the size of its staff.


NC Court Relies on “Unitary Executive Branch” Principle to Block Changes to State Board of Elections

In holding that the NC legislature’s post-election changes to the design of the State Board of Elections violates the NC Constitution, see here, the state courts held that the Governor must be able to have effective control over this Board.   Because the Governor, under the law struck down, could only appoint four of the eight Board members and could not remove all eight members, the Governor’s right to control the Board was violated.

The constitutional principle being applied here is a state-constitutional version of the “unitary executive branch” theory of government.  The court first decided a State Board of Elections inherently carries out executive functions primarily. Taking the view that the NC Constitution embodies the unitary executive branch principle (without the court using that language explicitly), the court then held that the Governor must have effective control of such a Board to be able to execute the laws faithfully.

In the federal system, the “unitary executive branch” theory is, politically, most associated in recent years with the administration of George W. Bush.  And this theory is the basis for the current constitutional challenge to the design of the Consumer Financial Protection Bureau.

States can structure their own separation of powers systems differently, of course, from the federal system.  I thought it was interesting to see, though, that the basis for this major election-law decision from the NC courts was the unitary executive branch principle.


Baptist Standard: Texas Discrimination in Redistricting “Give[s] Jesus a Black Eye”

Baptist Standard editorial:

The common denominator of these rulings is an overt attempt to suppress voting by racial minorities, particularly African-Americans and Latinos.

What’s so embarrassing is the hypocrisy of it all. Texas prides itself on being one of the most religious—and down here, that pretty much means Christian—states in the nation. Our politicians often campaign, at least in part, on their devout faith. We make ourselves feel good by reminding ourselves, and others, of how much we love Jesus and how strictly we follow the Ten Commandments.

And yet, collectively, we lead the nation in suppressing the vote of racial and ethnic minorities. That action contradicts everything Jesus and the prophets said about how to treat our neighbors. When overtly religious people—and in our case, an entire culture—treat others dreadfully, not to mention illegally, we give Jesus a black eye.


Breaking: NC Court Rejects Law Changing North Carolina Board of Elections to Help Republicans

A unanimous three-judge North Carolina state court, in a 43-page decision here, held that North Carolina’s attempt to change the nature of election boards in the state to help favor Republicans violates the state constitution. (The judges were not unanimous on other challenged laws.) It is a big win for voting rights.

There is little question that the Republican North Carolina legislature, facing a new Democratic governor, attempted to change the election laws for partisan reason. Under the existing law, the governor would have been able to have a majority on both the state election board and county boards. These boards have broken down on party lines on issues such as how much early voting to set (as noted in the court’s opinion). The new plan would have taken the Elections Board, broken it up into a separate elections and ethics board, given the legislature the power to appoint a number of the members, required that the members be equally divided among parties, given Republicans control of the boards in even-numbered (presidential and congressional) election years, and required that it would take a majority to do anything on the board. In the event of a partisan deadlock, default rules would kick in that would benefit Republicans, such as one early voting site per county, and only during business hours.

The court held that this power grab violated three provisions of the North Carolina state constitution (the separation of powers clause, the executive powers clause, and the faithful execution clause. The unanimous court relied heavily on an earlier case involving taking powers away from the former Governor, Pat McCrory.

The case can be appealed, but note that the state Supreme Court has a new Democratic majority, to the extent this issue breaks on party lines (it well may not break along these lines). I’ll have to leave to others who know NC state constitutional law better than I do to handicap what will happen further on appeal.

Another question is whether the Legislature, with a veto-proof majority, could make other changes to election rules which could undermine the governor or the Elections Board’s powers without running afoul of the state constitution.

One thing the legislature could do is something like cutting back directly on early voting through a state statute, something which would not require the action of the Elections Board. Sure the legislature could try that, but it would immediately be challenged in federal court as a Voting Rights Act and U.S. constitutional violation. And given the earlier findings in the NC voting case that the North Carolina legislature acted with racially discriminatory intent (a ruling that the Supreme Court will soon decide whether to take up), it seems like a risky move. Indeed it is a move that could put North Carolina back under federal supervision of its voting rules.

Early stories via News and ObserverWRAL.

[This post has been updated.]


“In Emails, Neil Gorsuch Praised a Leading Republican Activist Behind Voter Suppression Efforts”

Ari Berman:

Few people in the Republican Party have done more to limit voting rights than Hans von Spakovsky. He’s been instrumental in spreading the myth of widespread voter fraud and backing new restrictions to make it harder to vote.

But it appears that von Spakovsky had an admirer in Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, according to emails released to the Senate Judiciary Committee covering Gorsuch’s time working in the George W. Bush Administration.

When President Bush nominated von Spakovksy to the Federal Election Commission in late 2005, Gorsuch wrote, “Good for Hans!”….


“This is how to get rid of gerrymandered districts”

Ryan D. Williamson, Michael Crespin, Maxwell Palmer and Barry C. Edwards for The Monkey Cage:

Overall, independent redistricting commissions have done a better job at avoiding gerrymandering, as measured by these three traditional criteria. As a result, districts drawn by independent commissions are likely to be less partisan and more competitive than districts drawn by state legislators.


“Trump’s Supreme Court Nominee Skeptical Of Federal Agency Power”

Nina Totenberg for NPR on Chevron deference:

At most Supreme Court confirmation hearings, questions focus on hot-button social issues — abortion, affirmative action, same-sex marriage — and the hearings next week on Supreme Court nominee Neil Gorsuch will be no exception.

But senators are also likely to spend a lot of time examining the nominee’s views on federal regulations — of the environment, health and safety laws for workers, and laws on consumer rights and business.

In question is a doctrine that Gorsuch has criticized but that also once helped his mother.


“McAuliffe vetoes bills he says could restrict voting rights”


Gov. Terry McAuliffe on Wednesday vetoed a bill that he said could disenfranchise qualified voters but Republican legislators said could reduce voter fraud.

HB 2343, sponsored by Del. Robert Bell, R-Charlottesville, would have required the state Department of Elections to provide local registrars with a list of voters who, according to data-matching systems, have been found to be registered in another state.


“Defining ‘dark money’ and discussing the state of money, politics and ethics in Missouri”

St. Louis Public Radio:

Earlier this month, the spotlight was cast on the brand new nonprofit called A New Missouri Inc. Formed by Gov. Eric Greitens’ campaign treasurer, the group’s focus will be to advocate for the governor’s policy agenda. Its nonprofit status assigned by the IRS means that A New Missouri can take unlimited contributions and it does not have to release information about who gave those contributions.

While the non-profit’s status is perfectly legal, this raises questions about so-called “dark money,” political contributions and ethics in the state of Missouri. This non-profit is viewed by some as a potential loophole out of Amendment 2, which placed caps on campaign donation limits in Missouri.

It should be noted that politicians on both sides of the aisle, like New York Gov. Andrew Cuomo, utilize such loopholes in campaign finance.

On Thursday’s St. Louis on the Air, host Don Marsh spoke with several people from across the political spectrum about how money and politics are treated in today’s world.

Wally Siewert, the director of the center for ethics in public life at the University of Missouri-St. Louis, is organizing a conference on this subject for March 24 and joined the program. Alongside him were University of California-Irvine Professor Richard Hasen and the Show Me Institute’s Director of Government Accountability Patrick Ishmael.


Former Texas Congressman Steve Stockman with the Exchange of the Day

News from a federal court in Houston:

According to the complaint, in 2011 Stockman set up a non-profit called Life Without Limits in Las Vegas. A single contributor donated $350,000 to the charity, which Stockman then allegedly funneled back to himself through donations made by his employees.

Stockman said he understood the charge. Judge Stephen Smith set bail at $25,000.

When the judge told Stockman he needed to obtain an attorney by Friday, the following exchange ensued:

Stockman: You said 2 o’clock tomorrow? I should have counsel by two?
Judge: Yes.
Stockman: I’ll have to hustle with that.
Judge: Yeah, you will. These are serious charge


“Judge throws out final challenge in 2012 Arizona redistricting case”


A judge on Thursday dismissed the final challenge to Arizona’s congressional and legislative district maps drawn by an independent commission in 2012.

Maricopa County Superior Court Judge Roger Brodman dismissed the challenge to the congressional map brought by a group of voters following the adoption of the maps. The U.S. Supreme Court has previously upheld the legality of the Arizona Independent Redistricting Commission itself and the legislative district maps.

Brodman rejected arguments that commissioners used improper procedures and illegally made decisions behind closed doors. He noted that it was important for him to rule because the appeals will likely take years and there are only two more general elections before the next mapmaking effort by a new commission.

You can find the Court’s opinion at this link.


“White House Official May Have Violated Campaign Finance Laws”

Mother Jones:

top White House national security official may have violated federal law by using campaign funds for personal business, campaign finance experts tell Mother Jones.

K.T. McFarland—who currently serves as President Donald Trump’s deputy national security adviser—appears to have used thousands of dollars of campaign money several years ago for the design and maintenance of a website promoting her work as a paid political pundit and for payments to a self-described “agent for expert commentators who enjoy being frequent guests on talk radio and TV.”

“Payments for a website to promote her business appear to be an illegal personal use of campaign funds,” says Lawrence Noble of the Campaign Legal Center.

“Judge Gorsuch’s Writings Signal He Would Be A Conservative On Social Issues”

Nina Totenberg for NPR:

With the Senate Judiciary Committee set to open hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, the game of confirmation cat and mouse is about to begin. Senators will try to get a fix on Gorsuch’s legal views — and the nominee will try to say as little as possible.

Supreme Court scholars and practitioners on the right and left may disagree about whether they want to see Gorsuch confirmed, but in general there is little doubt about the nominee’s conservatism. Indeed, his conservative pedigree is the reason he was picked.

“On issues like abortion and affirmative action and gun rights and states’ rights, we can expect him overall to be a reliable conservative vote and someone who is going to forcibly and eloquently put forward conservative positions on the court,” predicts Richard Hasen, professor of law and political science at the University of California, Irvine.

Not that Gorsuch has ruled on all these issues. He has not. But the legal road signs are there.


“Republicans move to curb Dem powers in the states”

Reid Wilson in The Hill:

Republicans who control legislatures in key states around the country are moving to seize power from Democratic executive officers and independent judges, enraging Democrats, who say the moves undermine the will of voters.

Republicans defend the proposals as steps necessary to balance power between branches of government — and analysts say the GOP is doing now what both Republicans and Democrats have done since the founding of the republic.


“No Charges, but Harsh Criticism for de Blasio’s Fund-Raising”


The federal inquiry found a pattern in which Mr. de Blasio or his associates solicited contributions from donors seeking favors from the city and then contacted city agencies on their behalf, according to a statement from the United States attorney for the Southern District of New York. But the decision not to bring charges, the statement said, came after weighing among other things, “the high burden of proof, the clarity of existing law” and challenge of proving corruption without “evidence of personal profit.”

State prosecutors, who examined Mr. de Blasio’s unsuccessful 2014 effort to help Democrats regain control of the State Senate, concluded that the aspects of the undertaking amounted to an “end run” around limits on contributions to candidates, according to a 10-page letter outlining their findings.


“Call for Papers: Summer Conference on Election Science, Reform, and Administration”


Paper proposals are being invited for a Summer Conference on Election Science, Reform, and Administration, hosted by Reed College and Portland State University, and co-sponsored by the Early Voting Information Center at Reed College and the Election Data and Science Lab at MIT. The conference will be held in Portland, OR from July 26-27, 2017.

The goals of the conference are, first, to provide a forum for scholars in political science, public administration, law, computer science, statistics, and other fields who are working to develop rigorous empirical approaches to the study of how laws and administrative procedures affect the quality of elections in the United States; and, second, to build scientific capacity by identifying major questions in the field, fostering collaboration, and connecting senior and junior scholars.

The conference is designed to facilitate close attention to the papers presented, including extensive feedback and discussion. Therefore, papers should represent new work, with early drafts of papers encouraged.

We hope that a wide variety of topics will be addressed at the conference. We are particularly interested in new and innovative projects that address long standing questions about the impact of election reforms on registration and turnout at both the state and federal level; how the voter experience has improved or eroded during the two recent waves of election reform; and the research design and methodological challenges in election science. The following is a list provides a few sample ideas, but should not be considered exhaustive:

  • How new or changed election laws affect the size and makeup of the pool of registered voters and the federal, state, and/or local electorates;
  • Professionalization (or the lack thereof) and the quality of election administration;
  • Evaluating the impact of voting centers, consolidated precincts, and convenience voting;
  • How election reform has differentially impacted historically disadvantaged segments of the electorate;
  • The analytical and methodological tools needed to work with voter registration and voter history files, and challenges in making causal inferences when working with these files;
  • New methods for connecting other behavioral records (e.g. survey data) or geospatial data with voter history and voter turnout data

Airfare, lodging, and conference meals will be covered for paper presenters and discussants. Other scholars are welcome to attend if they can cover conference costs (details to be announced within a month).

Lonna Atkeson, University of New Mexico, and Bernard Fraga, Indiana University, will serve as program co-chairs, and Paul Gronke, Reed College and Phil Keisling, Center for Public Service at PSU, will act as conference organizers and hosts.

Paper proposals of no more than 250 words should be submitted by April 15, 2017.  Submit proposals at http://bit.ly/PDXelection – we expect to announce decisions by May 1.  Any questions can be sent to atkeson@umn.edu, bfraga@indiana.edu, or gronke@reed.edu.

Scholars wishing to attend without presenting a paper should also contact Emily Hebbron (hebbron@reed.edu) by May 1st.  Further details about the conference will posted on the conference Web site soon thereafter.


“The Voting Rights of Ex-Felons and Election Outcomes in the United States”

Tilman Klumpp, Hugo Mialon, and Michael Williams have posted this draft on SSRN. Here is the abstract:

Approximately one in forty adult U.S. citizens has lost their right to vote, either temporarily or permanently, as a result of a felony conviction. Because laws restricting voting by felons and ex-felons disproportionately affect minorities, and minorities tend to vote for Democratic candidates, it has been hypothesized that felony disenfranchisement hurts Democratic candidates in elections, thus helping Republican candidates. We test this hypothesis using variation in felony disenfranchisement laws across U.S. states and over time. During the 2000s, a number of states restored the voting rights of ex-felons. Using difference-in-differences regressions, we estimate the effect of laws re-enfranchising ex-felons on the vote shares of major party candidates in elections for seats to the U.S. House of Representatives. We argue that the regression estimates provide an upper bound for the true effect of restoring voting rights to ex-felons on the vote shares of major party candidates. Using this upper bound, no House majority would have been reversed in any year between 1998 and 2012, had all states allowed ex-felons to vote.


Nonprofit Vote and U.S. Elections Project Report on Voter Turnout


Nonprofit VOTE and the U.S. Elections Project are excited to release “America Goes to The Polls,” a report that ranks all 50 states in voter turnout for the 2016 election and identifies policies that help contribute to higher turnout.


  • National turnout of eligible voters was 60.2% – 1.6 percentage points above the 58.6% turnout in 2012, though slightly lower than 2008. Four in 10 eligible voters did not vote.

  • The highest turnout states were Minnesota (74.8%), Maine (72.8%), New Hampshire (72.5%), Colorado (72.1%), Wisconsin (70.5%), and Iowa (69.0%). All six offered same day voter registration, enabling voters to register or update their registration when they vote. Five were battleground states targeted by the campaigns.

  • The lowest turnout states were Hawaii (43%), West Virginia (50.8%), Texas (51.6%), Tennessee (52.0%) and Arkansas (53.1%). These five states were at the bottom for the third consecutive presidential election. None were battleground states. All five cut off the ability to register or update a registration three to four weeks before Election Day.


#SCOTUS Schedules NC Voting Case Cert Petition, and Motion to Dismiss It, for March 31 Conference

The case is back on the Justices’ conference list. (More on the dispute and the delay.)

The first thing the Justices will do is decide the motion to dismiss the cert petition (put in by North Carolina’s governor and AG, and opposed by NC’s legislature). If the Court grants the motion to dismiss, the case is over and the 4th Circuit’s opinion stands.

If the Court denies the motion, it will then consider whether to grant or deny the cert. petition, a decision in which the Court has complete discretion.

A third possibility is that the Court issues some other kind of order to resolve the motion to dismiss (such as asking for more briefing or sending the question to another court if that is procedurally possible) and does not yet rule on the cert petition.

Orders from the March 31 conference likely will issue on April 3. If the court is inclined to hear the case, we may well not hear anything on April 3, as they usually take another week to look over such cases to make sure there’s no procedural problem with the case which would make granting it problematic.



New NAS Project on The Future of Voting

New Project: The Future of Voting: Accessible, Reliable, Verifiable Technology

Committee members

Project Scope
An ad hoc committee under the auspices of the Committee on Science, Technology and Law and the Board on Computer Science and Telecommunications will conduct a study that will: (1) document the current state of play in terms of technology, standards, and resources for voting technologies; (2) examine challenges arising out of the 2016 federal election; (3) evaluate advances in technology currently (and soon to be) available that may improve voting; and (4) offer recommendations that provide a vision of voting that is easier, accessible, reliable, and verifiable.  The committee will issue a report at the conclusion of the study.

“In Potential Recusal Reversal, Neil Gorsuch Leaves Door Open to Hearing Supreme Court Cases Involving Billionaire Backer Philip Anschutz”

Important Charlie Savage:

My Denver-based colleague Julie Turkewitz and I have been taking a look at the relationship between Neil Gorsuch, the Supreme Court nominee, and Colorado billionaire Philip Anschutz. The New York Times published it tonight and it will be in tomorrow’s newspaper. One thing the article deals with briefly is the question of whether Gorsuch will recuse himself from cases involving Anschutz’s numerous business interests. This is too weedy of an issue to plumb in depth in a newspaper article, but I’ll explore it a bit more here for legal ethics nerds.

Bottom line up front: Gorsuch systematically sought to recuse himself from such cases on the appeals court, but he is signaling that he may change that practice and leave himself free to participate in cases involving Anschutz’s interests if he is confirmed to the Supreme Court.


“New Report Quantifies Supreme Court’s Impact on 2016 Election Spending”


Today, Demos released a new report entitled Court Cash: 2016 Election Money Resulting Directly from Supreme Court Rulings. The report quantifies for the first time the direct impact of four of the Supreme Court’s most significant money in politics cases on 2016 election spending.

Key findings include:

  • The Supreme Court’s rulings led to more than $3 billion in spending on the 2016 elections, which is equivalent to 45 percent of the total cost of the elections.
  • The Court’s rulings led to 77 percent of spending in competitive congressional races, and 49 percent of spending the presidential election can be attributed to the Court.
  • The Court’s rulings allowed 123 wealthy candidates to spend $161 million on their own campaigns.
  • 1724 wealthy donors contributed $274 million in “McCutcheon Money” in 2016—money that went beyond what would have been permitted by the previous “aggregate” contribution limit.
  • Buckley v. Valeo resulted in more 2016 campaign spending than Citizens United v. FEC.

This report demonstrates the profound impact of Supreme Court decisions on the role of big money in American politics. Given the upcoming Senate Judiciary Committee hearing on Judge Gorsuch’s pending nomination to the high court – and his record on this issue – the report speaks volumes about what is at stake for our democracy.


“Republicans relieved Trump eased up on voter fraud claims”


Prominent Republicans across the country are breathing a sigh of relief that President Donald Trump has so far not aggressively pursued his pledge for a “major investigation” into his allegations of widespread voter fraud that he claims robbed him the popular vote.

Current and former GOP state party chairs and other officials said in interviews that the unverified allegation was at best a distraction and at worst a damaging statement that could erode confidence in elections. And even as Trump continues to make some outrageous claims — including that former President Barack Obama tapped his Trump Tower phones — he’s now directing much of his attention to replacing Obamacare and juicing up the job market.


“Report: Kansas Election Law Suppressing Turnout”


Kansas’ “strictest in the nation” election law may have been written with the intent to discriminate against certain groups of voters and should be reviewed by the U.S. Department of Justice to ensure that it doesn’t violate federal law, a civil rights panel says in a report issued Tuesday.

The report, written by the Kansas Advisory Committee to the U.S. Commission on Civil Rights, says that the proof of citizenship and voter ID requirements imposed by a 2011 Kansas law “may impose a substantially higher burden than that which has been previously challenged in the U.S. Supreme Court.”

Download the report from the Kansas Advisory Committee to the U.S. Commission on Civil Rights.


“Neil Gorsuch Has Web of Ties to Secretive Billionaire”


The publicity-shy billionaire Philip F. Anschutz inherited an oil and gas firm and built it into an empire that has sprawled into telecommunications, railroads, real estate, resorts, sports teams, stadiums, movies and conservative publications like The Weekly Standard and The Washington Examiner.

Mr. Anschutz’s influence is especially felt in his home state of Colorado, where years ago Judge Neil M. Gorsuch, a Denver native, the son of a well-known Colorado Republican and now President Trump’s nominee for the Supreme Court, was drawn into his orbit.

As a lawyer at a Washington law firm in the early 2000s, Judge Gorsuch represented Mr. Anschutz, his companies and lower-ranking business executives as an outside counsel. In 2006, Mr. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court. And since joining the court, Judge Gorsuch has been a semiregular speaker at the mogul’s annual dove-hunting retreats for the wealthy and politically prominent at his 60-square-mile Eagles Nest Ranch.


“Veteran political reporter Michael Beckel joins Issue One”


Veteran political reporter Michael Beckel today joined Issue One as manager of investigations, research and policy analysis.

In this role, he will lead and manage research projects related to Congress and running for office, as well as unearth the untold stories on and off Capitol Hill that deal with government ethics and political reform.

Congrats to Issue One for such a fine hire!


“15 States File Amicus Brief Seeking Clarification On NVRA, Non-Voting And List Maintenance”

Doug Chapin:

Fifteen states have filed an amicus curiae (“friend of the court”) brief in the U.S. Supreme Court asking it to hear a case in order to clarify if and how states may use evidence of non-voting as a factor in removing voters from the rolls.

The question stems from an Ohio case I wrote about last April. There, plaintiffs challenged the state’s “supplemental process” for list maintenance, which uses failure to vote over a two-year period as a trigger for mailings seeking confirmation that the voter still wishes to vote. The allegation is that the use of non-voting as a trigger violates the Nation Voter Registration Act (NVRA), which expressly prohibits the removal of voters simply for failure to vote.

That argument failed to persuade the trial court to block the law, but last September a panel of the federal Sixth Circuit Court of Appeals voted 2-1 to direct the lower court to hear the case, finding that the use of non-voting as a trigger should be understood as “resulting” in a voter’s removal for failure to vote. Ohio has petitioned the U.S. Supreme Court to hear the case….

While it’s worth noting that all 15 state amici, like Ohio, have Republican chief state election officials – and thus a point of view on voter list maintenance that may be in conflict with others, including their Democratic counterparts – this is still an important issue needing clarification. Plaintiffs, and some other states, agree with the appeals court that using non-voting data to trigger confirmation mailings as part of list maintenance programs violates the law – but having clarity from the Supreme Court would likely go a long way in helping states nationwide structure their processes. Either way, what the Court decides (or lets stand by not deciding) is likely to have significant impact on states’ voter roll maintenance.


Michael Li: “What’s Next in the Texas Redistricting Case?”

I asked Michael Li, who knows Texas redistricting issues as well as anyone, to explain some of the confusion surrounding the next stages of the case.  The following guest post is very informative:

What’s Next in the Texas Redistricting Case?

Last Friday’s late night 2-1 decision in the Texas redistricting case inevitably brings the big question – what next? But perhaps fittingly for a case where it took over 2.5 years after trial to get a decision (and only a partial one at that), the question is a bit harder to answer than in the normal redistricting case. There are several reasons why.

  1. The court needs to find a way to rule on the 2013 map. While Friday’s ruling was a sweeping one, it also was a ruling on an old plan – the state’s 2011 congressional plan (Plan C185). But Texas never implemented that plan. Instead, it was replaced in early 2012 by a court-ordered interim map (Plan C235) that Texas subsequently adopted on a permanent basis in 2013 without changes. This fact led Fifth Circuit Judge Jerry Smith to argue in his dissent that claims about the 2011 map had been mooted by the 2013 map. Texas Attorney General Ken Paxton echoed this position in a press release Monday in which he said no changes whatsoever were needed to the current map.

Things aren’t quite so simple, however. For one thing, several of the districts that the majority found problematic in the 2011 plan also exist unchanged in the 2013 plan. Take, for example, TX-35 – the long, spindly district between Austin and San Antonio represented by Lloyd Doggett – which the court found had been drawn predominately on the basis of race and could not be justified as a majority-minority district under Section 2 of the Voting Rights Act. Ditto TX-27, where the court found the placement of the large Latino population of Nueces County in “an Anglo district had the effect and intent to dilute” Latino votes. Both these districts are exactly identical in the two maps, and the changes needed to address infirmities identified by the court could be significant. Dismantling of TX-35, in particular, likely would require sizeable changes to districts in Central Texas as the Austin and San Antonio portions of TX-35 get separated and reallocated. (General Paxton may be on firmer ground in North Texas where the court’s interim plan redrew TX-33 to create an additional minority opportunity district in the DFW area, thus arguably addressing the bulk of the problems the court found in the region.)

But if General Paxton is wrong about the eventual need for changes to the configuration of Texas’ current congressional districts, he is right that no changes are required at this time. That’s because the court bifurcated trial on claims about the 2011 and 2013 maps and thus far has held trial and ruled only on the 2011 congressional map.

To block use of the current map, the plaintiffs will need to find a way to tee up and get a ruling on the 2013 map. There are at least a couple of ways this could happen. One way would be for the court to proceed with trial on the 2013 claims. But given the very substantial overlap of factual allegations about the two maps, a full trial might not be necessary. It is possible that the plaintiffs could file a motion for an injunction of the 2013 map and ask for an expedited ruling. If granted, this would then put Texas in the position of needing to adopt a remedial map before candidate filing opens on November 14 for the 2018 primary.

2. There’s the question of what to do about the “bail in” claims.

At the same time, another issue could impact how the Texas case plays out and that’s the question of what to do with the plaintiffs’ claims to have Texas put back under preclearance coverage using the “bail in” provisions of Section 3 of the Voting Rights Act.

The plaintiffs have asserted that the Texas Legislature intentionally discriminated against minorities when it drew the 2011 congressional plan. And while that plan is no longer in effect, the plaintiffs have argued that intentional discrimination in the drawing of the plan can and should serve as the basis for bail-in.

But although the court agreed Friday with the plaintiffs that the 2011 plan was intentionally discriminatory, the timing of bail-in proceedings remains unclear. That’s because in addition to claims challenging the 2011 congressional plan, most of the plaintiffs also raised intentional discrimination claims about 2011 Texas state house plan (Plan H283), which the court has not yet decided. If the court decides to wait to hear the bail-in claims until it decides the state-house claims – a logical enough position given similar and often overlapping factual allegations – it could still be some time until the bail-in process begins.

In the meantime, a delay in bail-in could delay consideration of claims plaintiffs have made related to the 2013 maps. Indeed, at least some of the plaintiffs argued at the time of trial that the bail-in question should be decided first because bail-in would change the standard under which the 2013 maps are reviewed. And a delay in review of the 2013 maps, in turn, could delay an appeal of Friday’s ruling to the Supreme Court since absent an injunction of the 2013 map or a resolution of all claims in the case (or severance of some of the claims), there simply is no appealable order under applicable jurisdictional statutes.

3. It is unclear who will redraw the Texas map. A final wrinkle is uncertainty about who will eventually redraw the Texas map.

Ordinarily, when maps are struck down, longstanding and accepted precedent is that legislatures should be given the first crack at fixing them, and Texas is likely to insist that be the case here.

However, because the congressional plan was found to be intentionally discriminatory, plaintiffs could ask the court to redraw the map itself or appoint a special master to do so, and courts have granted such relief in similar situations.

In short, a big win for the Texas plaintiffs but still lots of unknowns.



“Lawsuit to Restore Former Felons’ Voting Rights in Florida”


On Monday, March 13 the Fair Elections Legal Network and Cohen Milstein Sellers & Toll PLLC filed a class action lawsuit that seeks to automatically restore former felons’ voting rights and eliminate Florida’s arbitrary process for re-enfranchisement. The plaintiffs include seven former felons who have applied for restoration of voting rights and have been denied for minor infractions, like traffic violations, or for no provided reason at all.

Full Text of the Hand v. Scott Complaint



“Voting Rights Advocates Announce Agreement with State of Nevada to Modernize Voter Registration Opportunities”


Voting rights advocates and Nevada officials announced today that they have signed a Memorandum of Understanding in order to streamline and modernize voter registration opportunities through the Nevada Department of Motor Vehicles (DMV). Demos, Project Vote, the American Civil Liberties Union of Nevada (ACLU), and the law firm Armstrong Teasdale LLP, working on behalf of the Mi Familia Vota Education Fund, the League of Women Voters of Nevada, and voter Eleanor Newell, held discussions with the office of the Governor, the DMV and Secretary of State Barbara Cegavske’s office to develop a protocol and timeline for bringing Nevada into compliance with the National Voter Registration Act of 1993 (NVRA).


“Report: 17-year-olds voted illegally in Wisconsin primary”


Dozens of 17-year-olds voted illegally across Wisconsin during last spring’s intense presidential primary, apparently wrongly believing they could cast ballots if they turned 18 ahead of the November general election, according to a new state report….

Commission spokesman Reid Magney said Monday that he’d never seen this issue crop up before. The teenagers were likely encouraged to go to the polls by messages flying around social media during the spring primary season saying 17-year-olds can vote in some states as long as they turn 18 before the November election, the report said.

Some political campaigns were also spreading false information about eligibility, the report said. The Sanders campaign specifically was sending out national messages on social media about 17-year-olds being able to vote in presidential primaries, Magney said, although Wisconsin election officials didn’t see any misinformation from that campaign about Wisconsin.