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

Detroit News:

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

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

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

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

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

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

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


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

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



More to come.



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

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

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

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

Schedule of Events

Pre-order from Amazon

Pre-order the Audiobook from Audible

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

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

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

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

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

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


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

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

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

March 5, 2018

Cardozo School of Law
Room 1008
Lunch will be served

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

Hosted by the Floersheimer Center for Constitutional Democracy.

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


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

Cass Sunstein column on Justice Scalia’s Heller opinion:

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

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

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

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

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

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


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


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

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

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

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


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


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

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

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

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

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


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


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

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

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

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


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

Arizona Republic:

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

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

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

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


Scoring the Pennsylvania Proposals

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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



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


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

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


“Democrats outline roster of election security measures”


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

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


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

Michael Chertoff and Grover Norquist WaPo oped:

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

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

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


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


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

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

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

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


Introducing PlanScore — Evaluating New Maps

If the Supreme Court specifies a standard for partisan gerrymandering claims this term, it will become very important to be able to evaluate the partisan implications of new district plans. Whether these new plans are remedial (designed after an existing map has been invalidated) or simply enacted after the next Census, their likely partisan consequences will be relevant to their legality.

Until now, only politicians and their hired experts have had the capacity to properly analyze the partisanship of proposed plans. To conduct such an analysis, it was necessary (1) to compile precinct-level election results, demographic data, and incumbency status; (2) to create a precinct-level model of the legislative vote as a function of the other variables; and (3) to use this model to estimate the likely performance of each district in the new map. This work was too laborious and technical to be done by journalists, legislators, or lawyers—let alone ordinary voters.

PlanScore, the new website launched by Ruth Greenwood, Simon Jackman, Eric McGhee, Mike Migurski, and me, tries to fill this data void. Perhaps the site’s most unique feature is an upload page where a user can upload a district plan—and then immediately receive an analysis of the map’s likely efficiency gap, partisan bias, and mean-median difference. The output page also includes sensitivity testing showing the plan’s probable efficiency gap under different electoral scenarios, a visualization of the plan’s districts, and data about the districts’ racial composition.

To provide this information, we did on the back end all of the work that politicians and their experts perform to analyze a new map. In other words, we compiled all of the precinct-level data, constructed the model, and coded the site so that estimates can be generated instantly for any district configuration that a user submits. The model currently does not incorporate incumbency effects, but we plan to add this capability in the very near future. The upload page also currently supports only Pennsylvania, but again we plan to add more states soon (especially ones that might find themselves in remedial proceedings due to ongoing litigation).

As an example of PlanScore’s utility, consider the remedial plan that was recently offered by Pennsylvania’s Republican legislative leaders after the state’s congressional map was struck down. We uploaded the map on the site, and learned the following about it:

  • Its efficiency gap, partisan bias, and mean-median difference are all likely to be very large and pro-Republican, toward the rightward edge of the historical distribution of all three metrics.
  • If Democrats improve substantially on their 2016 performance, the map will grow ever more skewed in a Republican direction. The Republican advantage under the map, in other words, is highly resistant to pro-Democratic shifts in the vote.
  • Compared to their predecessors, the map’s districts are less irregular and more compact. But this aesthetic progress comes without any accompanying gain in partisan fairness.
  • The map creates one black-majority district and one more district with a large enough black population (42% CVAP) to enable African American voters to elect their preferred candidate.

As the Pennsylvania remedial process continues to unfold, we plan to continue to assess proposed plans on PlanScore. And since the upload page is now functional, we invite you to do the same!


“State and local election infrastructure vulnerable to attacks ahead of midterm elections, Democrats warn in new report”

ABC News:

State and local election systems remain vulnerable to outside attacks ahead of the upcoming midterm elections, House Democrats warned in a new report obtained by ABC News.

The final report issued by the Congressional Task Force on Election Security, a Democratic working group formed last summer by House Minority Leader Nancy Pelosi, D-Calif., calls for increased federal resources to protect local and state election systems and replace aging infrastructure and new regulations to help election technology vendors to improve security.


In Response to FEC Complaint by Common Cause, Trump’s Lawyer Michael Cohen Says He Paid $130,000 to Porn Star. Is There a Campaign Finance Violation?

Maggie Haberman for the NYT:

Michael D. Cohen, President Trump’s longtime personal lawyer, said on Tuesday that he had paid $130,000 out of his own pocket to a pornographic-film actress who had once claimed to have had an affair with Mr. Trump.

In the most detailed explanation of the 2016 payment made to the actress, Stephanie Clifford, Mr. Cohen, who worked as a counsel to the Trump Organization for more than a decade, said he was not reimbursed for the payment.

“Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly,” Mr. Cohen said in a statement to The New York Times. “The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.”

He declined to answer several follow-up questions, including whether Mr. Trump had been aware that Mr. Cohen made the payment, why he made the payment or whether he had made similar payments to other people over the years.

Here is a statement from Cohen, where he said he used his personal funds “to facilitate a payment.”

Orin Kerr:

The press is widely reporting, apparently based on this statement, that Cohen said he paid the $130,000 to Daniels out of his own pocket. The phrase “out of his own pocket” seems to be used by pretty much every story. “Trump’s Longtime Lawyer Says He Paid Stormy Daniels Out of His Own Pocket,” the New York Times headline says. And the Fox News headline is similar: “Michael Cohen, Trump’s lawyer, says he paid Stormy Daniels $130,000 out of own pocket.”

Now, clearly the most important part of the story is verification from the President’s own personal lawyer that, in 2016, he was himself involved in paying $130,000 to a porn star who had claimed to have had an affair with the President. I’m old enough to remember when something like that would have been a major Presidential scandal.That seems like a long time ago.

But, with my apologies, let me focus on one really small part of the story: Does Cohen actually say he paid the $130,000 out of his own pocket? If Cohen’s statement above is the only statement he has made, which as far as I can tell is the case, he never actually says that. All Cohen says is that he used his personal funds to “facilitate a payment of $130,000.”

To “facilitate”, the dictionary tells us, means to assist with or to make something easier. Given that, I would think that the most literal reading of Cohen’s statement is just that he used his own funds to arrange the payment. He’s not making any statement about whose $130,000 was paid. For example, if it took Cohen a few hundred dollars to set up an entity to pay Daniels, and to wire someone else’s $130,000 to her, then he would have been using his own personal funds to faciltate that payment. Sending on the money would be a transaction between two parties, Daniels and the entity Cohen set up, and there would have been no need to reimburse Cohen $130,000 because it wasn’t Cohen’s money that was sent.

Now whether Cohen paid using his own funds or was reimbursed personally by Trump or someone else, it still may be a campaign finance violation IF this is was a campaign related payment. If Cohen paid, then he made an excessive contribution to the campaign. If he funneled money for others, it might be a conduit contribution or an unreported campaign expenditure from Trump.

The real unanswered question is whether this was a campaign-related payment, or instead money paid to cover up a private affair. We’ve seen something like this before, in the John Edwards-Bunny Mellon hush money situation (where the jury found Edwards not guilty). The difference here is that this happens in the throes of the campaign, and it seems harder to argue that this is something just to preserve Trump’s reputation unrelated to the campaign.

Thomas Frampton has a detailed analysis of the legal issues and permutations (written before Cohen’s admission) over at the Harvard Law Review blog. A key point from Frampton:

While there is much we still need to learn about the $130,000 reportedly paid to Daniels, there can be little doubt of its purpose. According to recent reporting, while rumors about Trump and Daniels had circulated for years, Daniels was talking with SlateGood Morning America, and other media outlets in October 2016. The Trump campaign was still reeling from the Oct. 7, 2016 revelation of the infamous Access Hollywoodtape, but by the end of the month, the campaign had turned a corner: Clinton’s sizeable national polling advantage was evaporating. Then, “about a week before the election, Daniels stopped responding to calls and text messages” from the media. According to the Wall Street Journal, the Delaware LLC that transferred the money to Daniels’s representative was formed on October 17, 2016, less than three weeks before the November 7, 2016 election. At least with respect to the motivation for the payment, the evidence that was lacking in the Edwards case (and which ultimately sunk the prosecution) is abundant in Trump’s case….

On the other hand, it does seem somewhat harder to prove that the payment is a campaign “contribution” if its original source was Trump’s own personal funds, but for reasons that are more atmospheric than legal: it strikes me as harder to convince a jury that such an expense is fundamentally about the election (rather than about personal, reputational harm) when the candidate himself ponies up the cash, even if the timing is suspicious. Consider the following. A follicly-challenged candidate, who (in his private life) takes great pride in his baldness, has learned from his advisors that he will gain ten points in the polls if he undergoes a painful hair-replacement surgery. The candidate’s desire to be elected eventually overcomes his affinity for his baldness, and though he never would have dreamed of such a thing before his candidacy, he assents to the $5,000 operation. On the most basic, legalistic level, it shouldn’t matter whether the candidate or a supporter pays for the $5,000 operation: the payment is a “contribution” to the campaign. But if such a case were ever to go to trial, it would seem much easier to mount a defense that this payment was “personal” in some basic way if the candidate himself paid for it.

Given pre-candidate Trump’s reputation, it is not clear that the payment in this instance could be considered personal so as to not sully his already-sullied reputation.  Remember this comes after the “grab them by the pussy” comments.

I don’t expect much to come out of the FEC, and in terms of possible criminal charges Frampton notes that since this stems from the campaign, there would be good reason for Jeff Sessions to recuse from any consideration of whether DOJ would charge Cohen or anyone else with a crime. (Wholly apart from the politics, the John Edwards saga, not to mention Sens. Menendez and Ted Stevens may make the Department a little gun shy.)


“Experts launch PlanScore.org to allow citizens to evaluate redistricting schemes”


PlanScore.org—a new website developed by redistricting experts and Silicon Valley coding experts— allows citizens to upload proposed state districting maps and instantaneously have them scored for partisan symmetry using three widely-accepted measures: the efficiency gap, partisan bias, and the mean-median difference.  This scoring is based on precinct-level data and resembles how mapmakers evaluate their own plans.  Until now, this information was available primarily to experts with access to costly software.

“We are thrilled to be able to bring PlanScore to the public,” said PlanScore’s executive director Michal Migurski, a geospatial code and data expert who recently served as chief technology officer of Code for America. “With crucial information at their fingertips, citizens will be more empowered to hold their elected officials accountable for producing maps that strengthen rather than detract from our democracy.”

In addition to allowing citizens to score maps, the website offers historical data for state house and U.S. congressional district plans from 1972 to the present.  Presently, the website enables citizens to score proposed maps for Pennsylvania, with Wisconsin, North Carolina, Maryland and Ohio coming soon.  By 2020, PlanScore plans to allow maps to be scored for all 50 states.

An analysis conducted through PlanScore shows that the Pennsylvania congressional map proposed February 9 by Republican legislative leaders to meet the state Supreme Court’s order is still seriously skewed in favor of Republican candidates and voters.  The new map was scored for partisan symmetry using the three measures mentioned above. The proposed congressional map has an efficiency gap of 10.9 percent, a partisan bias of 11.5 percent, and a mean-median difference of 5.8 percent, all in the direction of the Republicans who control the legislature.  For each of these measures, scores of zero reflect a mapping scheme with no skew.  This compares to the present congressional map with an efficiency gap of 14.3 percent, a partisan bias of 15.9 percent, and a mean-median difference of 5.5 percent, all in a Republican direction.

“This new proposal by the legislative leadership in Pennsylvania reveals the same large and durable Republican advantage as the plan the state Supreme Court struck down,” said PlanScore board member and University of Chicago Law School Professor Nicholas Stephanopoulos. “PlanScore instantaneously discloses this information, which previously was only available to politicians and their hired experts. PlanScore will be an invaluable tool whenever district lines are being drawn, making their partisan implications clear for all to see.”

PlanScore is a non-partisan website and tool developed by redistricting and coding experts.  Its board members include: Dr. Eric McGhee, inventor of the efficiency gap; Dr. Simon Jackman, CEO of the US Studies Centre at the University of Sydney and formerly Professor of Political Science and Statistics at Stanford University, and an expert witness on the measures of partisan symmetry in the Gill v. Whitford Wisconsin gerrymandering case; Nicholas Stephanopoulos, Professor of Law at the University of Chicago Law School and co-counsel in Gill v. Whitford; Ruth Greenwood, Senior Legal Counsel at the Campaign Legal Center and co-counsel in Gill v. Whitford; and Michal Migurski, geospatial coding and data expert who recently served as chief technology officer of Code for America.


“Russia Sees Midterm Elections as Chance to Sow Fresh Discord, Intelligence Chiefs Warn”


 Russia is already meddling in the midterm elections this year, the top American intelligence officials said on Tuesday, warning that Moscow is using a digital strategy to worsen the country’s political and social divisions.

Russia is using fake accounts on social media — many of them bots — to spread disinformation, the officials said. European elections are being targeted, too, and the attacks were not likely to end this year, they warned.

“We expect Russia to continue using propaganda, social media, false-flag personas, sympathetic spokespeople and other means of influence to try to exacerbate social and political fissures in the United States,” Dan Coats, the director of national intelligence, told the Senate Intelligence Committee at its annual hearing on worldwide threats.

Mr. Coats and the other intelligence chiefs laid out a pair of central challenges for the United States: contending with the flow of Russian misinformation and shoring up the defenses of electoral systems, which are run by individual states and were seen as highly vulnerable in 2016.


Pennsylvania Governor Rejects Republican Legislative Leaders’ Proposed Districting Plan, Meaning Special Master Will Draw Congressional Districts

Gov. statement:

 Governor Tom Wolf today told the Pennsylvania Supreme Court that he will not accept the proposed map Republican legislative leaders submitted because it, too, is a partisan gerrymander that does not comply with the court’s order or Pennsylvania’s Constitution.

“Partisan gerrymandering weakens citizen power, promotes gridlock and stifles meaningful reform,” Governor Wolf said. ” As non-partisan analysts have already said, their map maintains a similar partisan advantage by employing many of the same unconstitutional tactics present in their 2011 map.

“The analysis by my team shows that, like the 2011 map, the map submitted to my office by Republican leaders is still a gerrymander. Their map clearly seeks to benefit one political party, which is the essence of why the court found the current map to be unconstitutional.”

Read a statement from Professor Moon Duchin on her analysis here.

The analysis by Governor Wolf’s team confirms the universal analysis of various non-partisan experts that say the Republican leaders’ submission is another partisan gerrymander.

  • Princeton University professor Sam Wang said bluntly that “a prettier map can still conceal ill intent” and “it appears that Republicans are not dealing in good faith with the Pennsylvania Supreme Court’s order.”

  • Washington Post data expert concluded, “Pennsylvania Republicans have drawn a new congressional map that is just as gerrymandered as the old one.”

  • The New York Times found the submitted map would extract the same partisan advantage for Republicans as the current one.

  • Brian Amos, a redistricting expert at the University of Florida, said, “…There was still a strong Republican bias, which is why the congressional and State Senate plans were struck down for being gerrymanders.”


My New One at WaPo on the Second Anniversary of Justice Scalia’s Death: “Antonin Scalia’s disruption of the Supreme Court’s ways is here to stay”

I have written this piece for the Washington Post. A snippet:

Scalia disrupted business as usual on the court just like Gingrich disrupted the U.S. House of Representatives in the 1990s and Trump is now disrupting the presidency. Scalia changed the way the Supreme Court writes and analyzes its cases and the tone judges and lawyers use to disagree with each other, evincing a pungent anti-elitist populism that, aside from some criminal procedure cases, mostly served his conservative values. Now the judiciary is being filled at a frenetic pace by Trump and Senate Republicans with Scalian acolytes like Supreme Court Justice Neil M. Gorsuch, who will use Scalia’s tools to further delegitimize their liberal opponents and continue to polarize the federal courts….

Scalia came in with different ideas, which he said were compelled by the limited grant of judicial power in the Constitution and would increase the legitimacy of judicial decision-making. He offered revamped, supposedly neutral jurisprudential theories. Yet, as I argue in my upcoming book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption,” his doctrines were usually flexible enough to deliver opinions consistent with his conservative libertarian ideology.

He was an “originalist” who believed that constitutional provisions should be interpreted in line with their public meaning at the time of enactment, as when he argued that the 14th Amendment’s equal protection clause did not apply to sex discrimination — except when he wasn’t, as when in affirmative action cases, he consistently ignored evidence that at the time the equal protection clause was ratified, Congress enacted preferences specifically intending to help African Americans.

Under his view of “textualism,” the interpretation of statutes turned on wordplay. He refused to look at “legislative history” such as committee reports to figure out what members of Congress thought a statute meant. He’d instead pull out a dictionary and try to parse the words like a grammar lesson. It was this unremitting textualism that led him to dissent in the 2015 case King v. Burwell, one of the court’s Obamacare cases. If it were up to Scalia, the law would have gone into a death spiral because of his interpretation of a single clause of a single sentence in the 2,700-page statute read out of context. But he was not always a textualist — other times, as in an obscure case involving the admission of evidence that a witness had committed a crime, Scalia argued for rewriting a statute “to do least violence to the statutory text” when its meaning was “absurd.”


“The second most important election of 2018 is this June in Maine”

Lee Drutman for Vox:

Some good news came out of Maine last week. Supporters of ranked-choice voting delivered more than 80,000 signatures on behalf of a statewide referendum, well over the 61,123 they needed to get the measure on the ballot. That means that Maine residents will vote in June on whether they want ranked-choice voting.

If news of a state referendum on ranked-choice voting in Maine sounds familiar, that’s because it is. Maine residents already did this once before, in November 2016.

If Maine implements ranked-choice voting, over the objection of threatened political incumbents, it could set an important precedent for the nation, building momentum for a much-needed reform to our broken electoral system. That makes the June Maine vote the second most important election of 2018.


Texas Defends Its Lack of Latino Appellate Judges by Claiming It is All About Party, Not Race

Courthouse News Service:

“Since 1945, only five of the 76 justices to serve on the Supreme Court, a mere 6.6 percent, were Latino. During the same period, 69 of those 76 justices, or 89.5 percent, were white,” LUPE said in its first amended complaint, filed in September 2016. “Since 1945, only two of the 48 judges to serve on the Court of Criminal Appeals, or 4.2 percent, were Latino. During the same period, 44 of those 48 judges, or 91.7 percent, were white.”

When a vacancy comes up on either court, the governor appoints a replacement, who serves until the next general election and can then run for the seat.

“No Latino candidate has ever won election to either court without first being appointed by the governor,” the amended complaint states….

But Texas argues that its statewide judicial elections are being decided along partisan political lines, not racial lines.

Republicans dominate elections in Texas, perhaps more so than in any other U.S. state. Democrats have not won a statewide race in Texas since 1994.

The party affiliation of the 18 judges on the high courts appears to back Texas’ claims: All of them are Republican.

Besides that, Texas says, history and precedent is on its side.

In a pretrial brief filed early Monday, Texas cited the en banc Fifth Circuit’s 1993 ruling in LULAC v. Clements, in which a majority of the appellate court’s judges rejected a challenge to Texas’ process for selecting judges through countywide elections.


NC: “Wake-Mecklenburg maps stand as GOP drew them, with hours left before candidates file”

News and Observer:

A panel of judges rejected a request from Democrats and voters who filed the first lawsuit this decade challenging North Carolina lawmakers’ redistricting plans to provide relief from election districts in Wake and Mecklenburg counties they contend are unconstitutional.

The decision came on Monday hours before candidates are set to begin filing for office.

The t]hree superior court judges noted time constraints in their decision and said that while the challengers might indeed have issues appropriate for the state court to consider, they did not arise from the Dickson case.


“California Local Redistricting Project Releases New Tool to Facilitate Local Redistricting Reform”


Today, the California Local Redistricting Project – a joint project of the University of the Pacific, McGeorge School of Law’s Capital Center for Law & Policy and California Common Cause – announced the release of a new tool to enable local governments to fight redistricting abuse at the local level. The Project’s ordinance generator, hosted at www.localredistricting.org/generator, enables any user to easily draft a sample ordinance for establishing a local, independent redistricting commission, which is considered a vital redistricting best practice by good government watchdogs.


“Trump’s Controversial Pick to Run the 2020 Census Withdraws”

Ari Berman:

The Trump administration’s controversial pick to run the 2020 census has withdrawn from consideration to be deputy director of the US Census Bureau, according to sources close to the bureau.

In November, Politico reported that the administration planned put Thomas Brunell, a political science professor who has defended Republican redistricting efforts in more than a dozen states, in charge of the decennial census count. He was supposed to begin in late November, according to documents from the Census Bureau released by the watchdog group Protect Democracy as part of a Freedom of Information Act request. But civil rights advocates and Democratic members of Congress pushed back against the appointment.

Now Brunell has withdrawn from consideration, according to two sources who were informed of his decision. Brunell and the Commerce Department, which houses the Census Bureau, did not immediately respond to requests for confirmation.


Top Recent Downloads in Election Law on SSRN


Rank Paper Downloads

How Big Money Ruined Public Life in Wisconsin

U.S. District Court – Eastern District of WI

What is Puerto Rico?

New York University School of Law, New York University School of Law, United States Court of Appeals for the Ninth Circuit and Covington & Burling – Washington, D.C. Office

Precedent, Three-Judge District Courts, and the Law of Democracy

University of Kentucky – College of Law and University of Cincinnati – College of Law

Reconstituting Constitutional Orders

Yale Law School, Constitutional Court of Colombia, Yale Law School, Wissenschaftskolleg zu Berlin, Supreme Court of Canada, Yale University, European University Institute, Program in Law and Public Affairs, Princeton University, Yale University – Law School, Constitutional Court of Italy

Continuing Evidence of Discrimination Among Local Election Officials

University of California, Berkeley, University of Georgia, University of Michigan – Political Science, Students, University of California, Berkeley – School of Information, University of California, Berkeley – School of Information and University of California, Berkeley – School of Information

‘Civil Right No. 1:’ Dr. King’s Unfinished Voting Rights Revolution

University of California, Irvine School of Law

The Disparate Impact Canon

Barry University School of Law

Judging Law in Election Cases

Emory University School of Law and Emory University School of Law

Partisan Gerrymandering: Re-Establishing the Political Question Doctrine in Gill v. Whitford

UCLA School of Law

Pick on Someone Your Own Size: Eradicating Partisan Bias with District Shapes Based on Previous Voting Behavior

Leiden University – Europa Institute

“DHS Statement On NBC News Coverage Of Election Hacking”—WOW

Oh my:

Today, Jeanette Manfra, National Protection and Programs Directorate (NPPD) Assistant Secretary for the Office of Cybersecurity and Communications, released the following statement regarding the recent NBC news coverage on the Department of Homeland Security’s efforts to combat election hacking.

“Recent NBC reporting has misrepresented facts and confused the public with regard to Department of Homeland Security and state and local government efforts to combat election hacking.  First off, let me be clear: we have no evidence – old or new – that any votes in the 2016 elections were manipulated by Russian hackers.  NBC News continues to falsely report my recent comments on attempted election hacking – which clearly mirror my testimony before the Senate Intelligence Committee last summer – as some kind of “breaking news,” incorrectly claiming a shift in the administration’s position on cyber threats.  As I said eight months ago, a number of states were the target of Russian government cyber actors seeking vulnerabilities and access to U.S. election infrastructure. In the majority of cases, only preparatory activity like scanning was observed, while in a small number of cases, actors were able to access the system but we have no evidence votes were changed or otherwise impacted.

“NBC’s irresponsible reporting, which is being roundly criticized elsewhere in the media and by security experts alike, undermines the ability of the Department of Homeland Security, our partners at the Election Assistance Commission, and state and local officials across the nation to do our incredibly important jobs. While we’ll continue our part to educate NBC and others on the threat, more importantly, the Department of Homeland Security and our state and local partners will continue our mission to secure the nation’s election systems.

“To our state and local partners in the election community: there’s no question we’re making real and meaningful progress together. States will do their part in how they responsibly manage and implement secure voting processes.  For our part, we’re going to continue to support with risk and vulnerability assessments, offer cyber hygiene scans, provide real-time threat intel feeds, issue security clearances to state officials, partner on incident response planning, and deliver cybersecurity training. The list goes on of how we’re leaning forward and helping our partners in the election community.  We will not stop, and will stand by our partners to protect our nation’s election infrastructure and ensure that all Americans can have confidence in our democratic elections.”


“Election Security in All 50 States”–New CAP Report and Big Monday Event

Center for American Progress:

In 2016, America’s elections were targeted by a foreign nation-state intent on infiltrating and manipulating our electoral system. On September 22, 2017, it was reported that the U.S. Department of Homeland Security (DHS) notified 21 states that were targeted by hackers during the 2016 election.1 Among those states notified by DHS were: Alabama, Alaska, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Minnesota, Ohio, Oklahoma, Oregon, North Dakota, Pennsylvania, Virginia, and Washington.2 Arizona, California, Iowa, Texas, and Wisconsin were also among those states originally contacted by DHS. However, those states have denied that their election systems were attacked.3 Ultimately, hackers only reportedly succeeded in breaching the voter registration system of one state: Illinois.4 And while DHS did not name those responsible for the attempted hacks, many believe the culprits can be traced back to Russia.5 Experts have warned that a future attack on our election infrastructure, by Russia or other malicious actors, is all but guaranteed.6

By now, the American people have been alerted to many vulnerabilities in the country’s election systems, including the relative ease of voting machine hacking,7 threats to voter registration systems and voter privacy,8 and disinformation campaigns waged by foreign nation-states aimed at confusing voters and inciting conflict.9 If left unaddressed, these vulnerabilities threaten to undermine the stability of our democratic system….

The main takeaway from the Center for American Progress’ research and analysis is that all states have room for improvement:

  • Fourteen states use paperless DRE machines in at least some jurisdictions. Five states rely exclusively on paperless DRE machines for voting.
  • Thirty-three states have post-election audit procedures that are unsatisfactory from an election security standpoint, due either to the state’s use of paperless DRE machines, which cannot be adequately audited, or other factors. At least 18 states do not legally require post-election audits or require jurisdictions to meet certain criteria before audits may be carried out.
  • Thirty-two states allow regular absentee voters and/or U.S. citizens and service members living or stationed abroad to return voted ballots electronically, a practice deemed insecure by election and cybersecurity experts.
  • At least 10 states do not provide cybersecurity training to election officials.

This point cannot be overemphasized: Even states that received a B or a C have significant vulnerabilities that leave them susceptible to hacking and infiltration by sophisticated nation-states. However, by making meaningful changes to how elections are carried out, states can improve their overall election security while supporting public confidence in election procedures and outcomes…..

And this event Monday:

Due to popular demand this event is full and we are no longer accepting RSVPs. Please tune in to the livestream of this event!

In 2016, Russia sought to breach the U.S. elections, including attempting to hack into many states’ election systems. Fourteen months later, despite many states taking proactive measures, U.S. election infrastructure remains vulnerable to attacks. Without leadership from this administration to defend America’s elections from attacks by sophisticated enemies who want to undermine our democratic process, the necessary funding and resources to protect future elections have not been forthcoming. Despite bipartisan efforts in Congress to bolster election security and provide needed funding, legislation remains blocked.

The Center for American Progress is releasing a report on election security preparedness in all 50 states, assigning grades to each state. CAP’s research and report card are designed to identify and provide information on strengths and shortcomings in each state’s election security preparedness. A better understanding of how each state can improve its election security preparedness can help build urgency for appropriate solutions and arm stakeholders with information to demand increased security measures.

Please join CAP for a discussion about best practices and the vulnerabilities in election infrastructure that threaten to undermine America’s free and fair elections—the cornerstone of our self-government. We will feature major figures on the front lines of this important national security issue.

Introductory remarks:
Neera Tanden, President and CEO, Center for American Progress

Keynote remarks: 
Sen. Amy Klobuchar (D-MN)

Part I: Armchair discussion:
Jeh Johnson, former U.S. Secretary of Homeland Security

Moderated by:
Neera Tanden, President and CEO, Center for American Progress

Part II: Panel discussion:
Judd Choate, Director of Elections, State of Colorado
Edgardo Cortes, former Commissioner of Elections, Commonwealth of Virginia
Jamil Jaffer, Founder, National Security Institute, George Mason University Law School

Moderated by:
Winnie Stachelberg, Executive Vice President, External Affairs, Center for American Progress



Liberal Wisconsin Supreme Court Candidate Speaking Out on Judicial Issues in Ways Some Find Troubling

Fascinating Patrick Marley report in the Milwaukee Journal-Sentinel.  Usually it is conservatives pushing the envelope on judicial campaign speech. But now there’s this:

Tim Burns is doing what state Supreme Court candidates have long avoided — telling voters what he thinks of the issues of the day.

He fears the voter ID law disenfranchises minorities.

He believes the state’s $3 billion incentive package for Foxconn Technology Group is a raw deal for taxpayers.

And Burns — who is advertising that he’s a Democrat in the officially nonpartisan race — thinks the state’s high court has titled its decisions to corporations instead of the average person.

This isn’t normal. Typically, court candidates avoid overtly stating their political affiliation or directly talking about issues that might come before them as justices — although they often provide hints about their leanings.

Burns contends the traditional approach isn’t fair to voters and has contributed to liberals losing court races most of the time over the past decade. His opponents say his method of campaigning raises questions about his ability to be impartial and would bar him from hearing certain cases.

Burns is an attorney in the Madison office of the national law firm Perkins Coie who specializes in suing insurance companies. His opponents are Milwaukee County Circuit Judge Rebecca Dallet and Sauk County Circuit Judge Michael Screnock.