“Tennessee Officials Are Trying To Get To The Bottom Of An Election Night Cyberattack”

Sam Levine for HuffPo:

Officials in Knox County, Tennessee, are trying to gather more information about a cyberattack that crashed a government website that displayed election results to the public during its primary election for local offices on Tuesday.

Dick Moran, the county’s top IT official, believes Knox County was the target of a denial-of-service attack in which actors with both domestic and foreign IP addresses deliberately flooded the county’s servers with traffic to try and crash them. The county website displaying election results went down for about an hour as polls closed on Tuesday. The crash meant that people who went to check election results between 8 and 9 p.m. on election night received an error message, according to the Knoxville News Sentinel. While the website was down, election officials printed out hard copies of the election results and gave them to reporters, WBIR, a local NBC affiliate, reported.


“House: Democrats Risk Disaster in California’s Top Two Primaries”

David Wasserman for the Cook Political Report:

Republicans badly need a few lucky breaks to hold their House majority in November. So far in 2018, it’s been the opposite story — from an unfriendly new Pennsylvania map to Speaker Paul Ryan’s retirement and bleak special election results. But with five weeks to go before California’s June 5 primary, Democrats are at risk of squandering several seats that would otherwise appear to be golden pickup opportunities.

Democrats’ path to a majority depends on California more than any other state: they have excellent chances in seven GOP seats that Hillary Clinton carried in 2016, and a few more could be long shots in a wave. But in at least four districts, Democratic over-enthusiasm has produced crowded fields that could lock Democrats out of the fall race altogether.

Under California’s unorthodox “top two” primary system — first implemented in 2012 — all candidates appear on the same June primary ballot and the top two finishers, regardless of party, advance to a November runoff. In 2012, catastrophe struck Democrats when their top candidate in the new 31st CD, Pete Aguilar, took third place in the primary behind two Republicans, locking them out of a highly winnable race (Aguilar won the seat in 2014).

The same fate could befall other Democrats in 2018. In the 39th, 48th and 49th districts — all Orange County GOP seats that voted for Clinton — the “blue wave” has generated throngs of viable Democratic candidates in districts where GOP voters traditionally make up a majority of the primary vote. And while Democrats have struggled to break out of their packs, there are at least two viable Republican candidates on the ballot in each of those races.


Stormy Watch

In addition to my Slate piece from last night, here are some notable contributions:

USA Today: Trump could face more legal trouble after confirming he repaid Michael Cohen, watchdogs say

WSJ: Trump’s Payment to Stormy Daniels Raises Campaign-Finance Questions

The Atlantic: Giuliani’s Defense Only Intensifies the Legal Risks for Trump

CPI, Donald Trump, Michael Cohen and the Stormy Daniels payment: a Q&A

Politifact: The $130,000 Stormy Daniels payoff: Was it a campaign expenditure?



“Regulating Campaign Finance through Legislative Recusal Rules”

Gene Mazo has posted this draft on SSRN (forthcoming, Timothy K. Kuhner and Eugene D. Mazo (eds.), Democracy by the People: Reforming Campaign Finance in America). Here is the abstract:

Each time reformers have sought to regulate campaign finance by statute, they have witnessed their efforts unravel before the Supreme Court. Given the Court’s hostility toward campaign finance restrictions, some scholars have come to view the legislative path as littered with pitfalls and have begun advocating for campaign finance solutions that are not legislative in nature. Congress does not need to pass a statue to address the problems of our campaign finance system. Instead, it can simply turn to its internal procedural rules. Such procedural rules are easier to pass, and they can be designed to have many of the same regulatory effects as more traditional statutory reforms. Moreover, Congress’s legislative procedural rules are much harder to subject to judicial review. As such. using legislative procedural rules to regulate money in politics may provide a path for Congress to get around some of the recent problems that its statutory reforms have faced.

One particular innovation that Congress could use to regulate campaign finance is legislative recusal. Legislative recusal rules, enacted separately in the House and Senate, would preclude members of each chamber from voting on any legislation that presents a member of Congress with a significant conflict of interest. For example, if a Super PAC spends a large sum of money to run ads on behalf of a candidate and its funders happen to have a strong interest in a specific piece of legislation, that congressional candidate, once elected to office, would be deemed to have a conflict and would be precluded from voting on such legislation.

In the early days of our republic, the very first House of Representatives adopted a legislative recusal rule. Today, legislative recusal rules exist in many state legislatures. Recusal rules are also common for judges and found throughout the judiciary, both at the state and at the federal level. The Senate and House have very different procedural rules, and legislative recusal rules that address campaign finance would have to be adopted separately in each house. A model for what these rules might look like could be borrowed from the judiciary. Importantly, because such recusal rules, in regulating the vote of a member of Congress, would only control legislative “outputs,” they would not interfere with the ability of donors or spenders to do what they wish with their money. As such, they would not impinge on anyone’s First Amendment rights. This is one of the most important reasons why campaign finance reformers should champion this path.

There has recently been a growing literature on how private ordering and private action can be used to make independent expenditure spending prohibitively expensive. For example, Ganesh Sitaraman has written about how private contracting between political candidates can be used to influence outside independent expenditure spending. Similarly, Nick Warshaw has explained how “super PAC insurance” can be used to threaten outside expenditure groups, whose spending activity would trigger an insurance premium payout to a candidate and thus provide the insured candidate with greater spending in response. These and other private ordering innovations seek to make it more expensive for independent expenditure groups to influence the outcome of an electoral campaign. Private ordering schemes are designed to ratchet up the cost of independent expenditures and make it more painful for entities like Super PACs to function.

Legislative recusal rules have similar goals. Such rules seek to diminish the influence that any particular political spender has. They do so by separating independent campaign spending from the ability of the officeholder to vote in favor of the spender’s legislative goals. If politicians are not able to vote for the financial interests of those who support them, we would have to worry less about donors and spenders trying to influence politicians nefariously, for the legislative votes of those who are the recipients of a donor’s or spender’s largesse would be taken away.

In 2000, John Copeland Nagle wrote about how legislative recusal rules could be used to combat the possible corruption that comes from large campaign contributions. Nagle proposed a solution whereby contributors should be allowed to give whatever they wish to political candidates, but successful candidates would then have to recuse themselves from voting on any legislation that directly affects those interests. More recently, Justin Levitt has suggested that legislative recusal rules might be used to combat independent expenditure spending as well, by making a winning candidate ineligible to take legislative action unusually benefiting the sponsor of the expenditure in question. Despite the efforts of these able scholars, however, our theory and knowledge of how legislative recusal rules should work in practice remains largely underdeveloped.

This article discusses how legislative recusal rules should be implemented in each house of Congress, how these rules should be structured to regulate campaign finance, and what advantages such rules have over statutory reforms. Part I discusses the source of Congress’s internal procedural rules and how controversies concerning legislative procedure have been handled by the courts. Part II looks at the judicial recusal rules used by the judiciary, as well as at some of the criticisms levied against current judicial recusal mechanisms. Part III proposes a system of regulating campaign finance through the adoption of legislative recusal rules in Congress. It addresses questions concerning when such recusal rules should take effect, what activities would trigger them, and who would make the decision of whether a legislator must recuse himself in a particular instance. Finally, Part IV discusses the procedures that would need to be followed in each house of Congress for the rules proposed here to be adopted.


“Rudy Giuliani May Have Just Implicated President Trump In Serious Campaign Finance Violations”

I have written this piece for Slate. It begins:

Donald Trump’s new lawyer Rudy Giuliani took to Sean Hannity’s Fox News program Wednesday night to defend the president from the ongoing Mueller investigation and to calm the waters for the Trump faithful.

But it looks like he’s gotten the president into potentially greater legal jeopardy by admittingthat Trump repaid his fixer Michael Cohen for the $130,000 payment to adult film performer Stormy Daniels to keep her quiet, seemingly contradicting the president and potentially implicating Trump and his campaign in some serious campaign finance violations.


“Josh Kaul criticizes Attorney General Brad Schimel over voter ID comments and handling of rape kits”

Milwaukee Journal-Sentinel:

Democratic candidate for attorney general Josh Kaul criticized Wisconsin’s top cop Wednesday, saying he had made ludicrous comments about voter ID, had failed to test rape kits and hadn’t taken action to keep the internet moving at the same speed for everyone.

Attorney General Brad Schimel last month suggested President Donald Trump would not have won Wisconsin without the state’s voter ID law.

With those comments, Schimel had admitted the law was designed to prevent people from voting, Kaul maintained in his first news conference of his campaign.


Breaking: Ninth Circuit Denies Rehearing En Banc in Montana Campaign Contributions Case, Teeing Up Issue for Possible Supreme Court Review

Back in October, I wrote the following:

In Major Victory in Case with National Significance, Ninth Circuit on 2-1 Vote Upholds Montana Contribution Limits; Judge Bea Would Appear to Hold *All* Limits Unconstitutional

In Lair v. Motl, a case I have been closely watching, the Ninth Circuit on a 2-1 vote reversed a district court decision and upheld Montana’s contribution limits.

The case is of course important to Montana, but it has national ramifications because the theory accepted by the trial court (and in part by a 9th Circuit motions panel) would have required very specific evidence of bribery-like corruption to sustain virtually any contribution limit. It would have had the effect of bringing down those limits wherever the precedent was applied.  In today’s opinion by Judge Fisher, the court reaffirms the much laxer standard of review that has applied to contribution limits in the past, including in cases like Shrink Missouri, and even the later Randall case.

Judge Bea in dissent believes that the Supreme Court’s decisions in Citizens United and McCutcheon change everything, and that virtually all contribution limits now fail strict scrutiny (this, despite the fact that Citizens United expressly said it had nothing to say about contribution limits).  From Judge Bea:

In footnote 5, the majority opinion notes that “[u]nder the dissent’s logic…Montana’s evidence is inadequate to justify any contribution limit whatsoever, no matter how high.” This is quite correct. Absent a showing of the existence or appearance of quid pro quo corruption based on objective evidence, the presence of a subjective sense that there is a risk of such corruption or its appearance does not justify a limit on campaign contributions. Restrictions on speech must be based on fact, not conjecture.

Whether the Supreme Court would go so far as Judge Bea is uncertain. But because any review would come up to the Supreme Court on a discretionary cert. petition, it may be hard to get the Court to bite on taking a case which would have such major ramifications for campaign financing in this country (particularly because many cases come up to the Court on non-discretionary appeals).

Today the 9th Circuit denied rehearing en banc. Judge Ikuta, for five judges wrote a dissent, to which Judges Fisher and Murguia responded. Judge Ikuta did not go as far as Judge Bea did in the panel decision. Instead she says that the Supreme Court’s opinions in Citizens United and McCutcheon have changed the Court’s approach to considering evidence of corruption to sustain a campaign contribution law.

Judge Ikuta’s dissent hits on an unresolved question. There are a number of campaign contribution cases, such as Shrink Missouri, decided when the Court was much more deferential to campaign finance regulations and much more willing to let states and localities support contribution limits with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do.

The Supreme Court could well grant cert. in this case to resolve the ambiguity. The result, under the current Court, would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response). For that reason, the Court could decide to take a pass, as it has to the multiple challenges to the soft money provisions of the McCain-Feingold law which Jim Bopp has brought to the Court (he’s behind this one too).

In other words: if the Court decides this case following the jurisprudence it has been adopting in the campaign finance cases, it is hard to see how it will conclude many campaign contribution limits will stand. For this reason, the Court may not want to go down that road, given how disruptive and crazy such a ruling would be.


“Corruption Is Bad; A new proposal would actually do something about it.”


This paucity of serious work is not an accident. Think tanks themselves are meant to influence the political process, and think tanks have to get their funding somewhere. Some of the worst Washington corruption scandals in recent years have involved think tanks leveraging their reputations to help corporate donors.

So the latest policy proposal from the liberal-leaning Roosevelt Institute deserves special attention. Authored by incoming federal trade commissioner Rohit Chopra as he awaited Senate confirmation for his new post, the paper marks the first comprehensive attempt to rethink federal anti-corruption policy in years ― maybe since the Watergate era. Instead of focusing on campaign contributions and elections, Chopra takes a look at the way special interests exercise undue influence over the federal bureaucracy and the broader policy debate in Washington.

“We can’t just address money in politics,” Chopra told HuffPost. “We have to address money in government.”


“Secret Donors Lose Round as Court Expedites FEC Disclosure Case”

Bloomberg BNA:

The federal appeals court in Washington will quickly review whether to keep secret the identity of “John Doe” plaintiffs trying to prevent the Federal Election Commission from revealing their role in campaign spending.
Briefing in the case, known as John Doe v. FEC, is set to be completed by July 2, the U.S. Court of Appeals for the District of Columbia Circuit ordered. The order followed a motion for expedited consideration from FEC lawyers, who said “the commission and the public have an unusual interest in expedited review” of the disclosure issues involved in the case.
One of the secret plaintiffs, known as John Doe 2, “was the undisputed source of the contribution at issue,” according to the FEC’s motion to speed up the case. The plaintiffs funneled $1.7 million to a super-political action committee through a well-known nonprofit, the American Conservative Union, which was falsely reported as the source of the contribution.
The super-PAC, called Now or Never PAC, spent more than $8 million, mostly on TV ads, opposing Democrats in the 2012 and 2014 elections.

ACS Phone Briefing Today: Judicial Gerrymandering? The Voting Rights Act, Judicial Elections, and Redistricting


Judicial Gerrymandering? The Voting Rights Act, Judicial Elections, and Redistricting

May 2, 2018
01:00 PM – 02:00 PM
Event Location:
ACS Webinar


In recent weeks, the North Carolina General Assembly has proposed redrawing the map of the state’s District and Superior courts. Analysis of one proposed new map found it to be a racial and partisan gerrymander, with significant population deviations. The changes would “double-bunk” incumbent judges, reducing the number of judges of color in the state.   

With that context in mind, this call will provide an overview of Voting Rights Act jurisprudence as it relates to judicial elections. It will also cover the status of recent litigation challenging judicial districts under the VRA, such as Terrebonne Parish NAACP v. Jindal, and Alabama NAACP v. Alabama. Finally, the call will discuss the importance of a diverse judiciary and independent state courts, and how judicial redistricting can promote or undermine those aims. 

Leah Aden, Senior Counsel, NAACP-LDF
Kareem Crayton, Executive Director, Southern Coalition for Social Justice
Ezra Rosenberg, Co-Director, Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law

RSVP here


“Open-seat House hopefuls spend millions”

Open Secrets reports:

The growing number of departures by House incumbents this cycle is leaving a Wild West of open-seat races, some of which feature deep-pocketed candidates elbowing for a two-year stint in Congress.

The top self-funded candidates so far include familiar faces from elections’ past, such as Trone and Flinn, both of whom spent millions in failed House bids two years ago. And new ones, such as former California Mega Millions Lottery winner Gil Cisneros, a Democrat who appears to be the party’s pick in a congested primary race.

The 400-plus House candidates running for open seats this year have spent more than $32 million on their campaigns. Fourteen have spent at least $500,000.


“Kobach can pay contempt costs with state money, after lawmakers drop ban”

KC Star:

Kansas lawmakers have abandoned an effort to force Secretary of State Kris Kobach to pay out of his own pocket the costs of being held in contempt of court.

The decision ended a looming showdown between Kobach and the Legislature over who is on the hook financially. Kobach was dressed down by a federal judge during a civil trial over voter rights and ordered to pay attorney fees for the plaintiffs in the case.

The Legislature’s decision to drop the effort means Kobach will be able to use state money to pay any fines stemming from being found in contempt.


“U.S. District Court Puts Congressman Doug Lamborn on Colorado Republican Primary Ballot”


On May 1, U.S. District Court Judge Philip Brimmer issued a 25-page order in Goodall v Williams, 1:18cv-980. The order enjoins the Secretary of State of Colorado from enforcing the state’s ban on out-of-state circulators for candidate petitions. It also puts Congressman Doug Lamborn, a Republican who is running for re-election, back on the Republican primary ballot. The Colorado Supreme Court had removed him last week because it had found that he used petitioners who were not Colorado residents. But the Colorado Supreme Court had said nothing about the constitutionality of the ban on out-of-state petitioners.


“New Report on Impact of Seattle’s Democracy Voucher Program on Candidates’ Ability to Rely on Constituents for Fundraising”


Today, Free Speech For People released a new issue report on The Impact of Seattle’s Democracy Voucher Program on Candidates’ Ability to Rely on Constituents for Fundraising.

In 2015, Seattle voters enacted a novel democracy voucher program for public campaign financing. The objective of this analysis was to examine whether the democracy voucher program, first used in the 2017 election, led to candidates relying more on constituents, as opposed to non-constituent donors from other parts of the state or country, for their campaign funding. As we have explained, when political candidates rely on non-constituent donors for a significant portion of their campaign funding, democratic self-government may be affected because the policies and preferences of non-constituent donors often differ from those of constituents.

The results indicate that candidates who chose to participate in the voucher program raised a notably higher percentage of their funds from constituents than the typical percentages raised in pre-voucher elections, or by non-voucher-funded 2017 candidates. Before the voucher program, recent candidates for Seattle city office generally raised 65-80% of their funds from in-city. In the first voucher election, the two citywide (at-large) city council positions up for election saw a dramatic increase in the percentage of contributions from Seattle residents, with 93% or more of contributions coming from in-city. The city attorney candidate who participated in the voucher program saw a similar increase into the 90% in-city range from 2009 to 2017. In contrast, candidates who did not use the voucher program—either because they chose not to participate in the program, or ran in the mayoral race, which was not eligible for vouchers—raised funds in-city consistent with pre-voucher levels.

The overall trend is clear. The democracy voucher program enables candidates to raise the vast majority of their funds from constituents, as opposed to out-of-city donors.


Maryland Appellate Blog: “The Democracy Canon and the Oaks Ballot Dispute”

Steve Klepper:

The Maryland high court is about to hear, on emergency briefing, the appeal in Lamone v. Lewin. The administrator of the State Board of Elections is challenging the April 26 injunction requiring that former state senator Nathaniel Oaks’ name be removed from the June primary ballot.

The Court granted certiorari on Friday. The parties filed opening briefs on Monday and reply briefs on Tuesday, with arguments Wednesday. The briefs are available here.

The briefing is superb on both sides. Julia Doyle Bernhardt and Andrea Trento, with the Office of the Attorney General, and Mark Sitchel and Elizabeth Harlan, representing the challengers, did top-flight work on a frantic schedule. The quality of briefing should make the Court’s job easier, but the ultimate choice is a difficult one.Notwithstanding pending criminal charges against him, then-Senator Nat Oaks filed papers seeking the Democratic nomination for reelection to his Senate seat and for a seat on the Democratic State Central Committee on February 27, 2018. The statutory deadline for withdrawal was March 1. Four weeks later, Oaks pleaded guilty to wire fraud and resigned from the Maryland Senate. But Oaks was still a registered voter and was not in prison at the time, so he still remained technically eligible for the ballot, at least until his post-primary sentencing hearing. Three voters, including two candidates for central committee, filed suit on April 9, seeking to remove Oaks’ name from the ballot. The Anne Arundel County Circuit Court initially denied relief but granted reconsideration when Oaks voluntarily resigned his registration as a Maryland voter.

The Board of Elections’ argument is straightforward. The Election Law Article contains clear deadlines, with “shall” language; it is unworkable for the Board to exercise discretion under these rules; and it is too late from a logistical standpoint to remove Oaks’ name from the ballot. Much of its argument consists of pointing to slippery slopes. The Board asserts that in “this election cycle alone, ten candidates have asked to have their names removed from the ballot since the passing of the withdrawal deadline,” and that removing Oaks’ name would require the Board to accommodate those other requests.

These are weighty concerns, but the challengers ask the Court to follow other states’ lead and read the Election Law Article with an eye to what leading scholar Rick Hasen calls the “Democracy Canon….


#HimToo: Second Secretary of State Quits Amid Sexual Harassment Allegations

First it was Wyoming, now Louisiana:

 With calls for his resignation increasing, Louisiana’s secretary of state announced Tuesday that he is leaving his position as state elections chief amid allegations he sexually harassed one of his employees.

Secretary of State Tom Schedler said in a letter to the governor that he will be stepping down May 8, becoming the highest-level public official in Louisiana to be felled by sexual misconduct accusations since the #MeToo movement began unseating people in positions of power in Hollywood, the media and government.


Lawsuit Accusing Former NC Gov McCrory, Holtzman Vogel Law Firm of Defamation for Falsely Claiming Voters Committed Fraud Survives Motion to Dismiss

News and Observer:

Four North Carolina voters can pursue their libel lawsuit against allies of former Gov. Pat McCrory and a Virginia law firm that tried to help the Republican politician’s unsuccessful effort to disqualify votes and win re-election in 2016, attorneys learned Tuesday.

Superior Court Judge Allen Baddour notified attorneys he’s decided to allow the four plaintiffs to continue their claims against the Pat McCrory Committee Legal Defense Fund, the Holtzman Vogel Josefiak Torchinsky law firm and four of the Warrenton, Virginia-based firm’s attorneys. The McCrory allies helped mount a last-ditch effort to sway a close election for governor by accusing voters in 52 counties of double voting and other misdeeds.

The voters from Guilford and Brunswick counties sued after being falsely accused of felony voting crimes like casting ballots in multiple states.


The Oddity of the Oral Argument in the Texas Redistricting Cases

As Adam Liptak and others have reported, much of the questioning at oral argument in this important case focused on whether it was premature for the Supreme Court to be hearing the case now.  More specifically, it was the “liberal wing” of the Court that focused so heavily on this issue.  Indeed, the questions Justices Ginsburg, Breyer, Sotomayor, and Kagan asked to  those defending Texas’ maps —  the state of Texas and the United States – were overwhelmingly about whether the Supreme Court appeal was premature.

What’s odd about this, which I haven’t seen noticed elsewhere, is that this is a battle the liberal wing of the Court seems to have lost already.  On Sept. 12, 2017, the Court in a 5-4 vote granted a stay of “the order” of the three-judge court.  All the same arguments were made then that are being made now about whether it is legally premature for the Court to be able to act in this case at all at this stage.  But by issuing a stay, the Court majority would seem to have resolved that issue.  The Supreme Court decided that the lower court proceedings had reached a stage at which Supreme Court action was legally appropriate.

To put the technical legal issue in a nutshell, the argument back in September, and again now, is that the lower court at this stage has only ruled on liability:  all it has done is hold that certain Texas congressional and state districts violated either the Constitution or the VRA.  But the lower court has not yet issued any injunction against the defendants.  Nor has the lower court issued any kind of remedial orders concerning new maps.   Despite that, Texas has been arguing that “the practical effect” of the lower court’s actions is tantamount to the court having issued an injunction.

When the Supreme Court issued a stay, it seemingly accepted this position.  After all, the Court does not “stay” opinions.  It stays actions of a lower court, such as the issuance or denial of an injunction.  The language in the Court’s September order is that the Court was staying  “the order” of the lower court.  So the Supreme Court, 5-4, has already concluded, it would seem, that the lower court’s actions did include issuing “an order” that has the “practical effect” of making the actions below more than just a liability ruling – in other words, there was jurisdiction to issue the stay, which implies fairly directly that jurisdiction exists to review the substance of the actions that the Court has stayed.

Understandably enough, the first lawyer up to argue for the challengers seemed quite surprised that the Court – really, Justices Ginsburg, Breyer, Sotomayor, and Kagan – focused so much of their time on the jurisdictional issue.  Here’s how Mr. Hicks began:

HICKS: Mr. Chief Justice, and may it please the Court:

I hadn’t anticipated doing this, but I’m going to start with the jurisdictional question, which, of course, is what you all start with.

Justice Breyer asked a key question, I think, of — of — of the other side in this.

He said, show me the language. Show me where they entered an injunction.

That’s the same question Justice Breyer presumably had in September, but he was on the losing side of the 5-4 vote then.

The question thus arises:  why did the liberal Justices spend so much time pursuing a battle it would seem has already been lost?

Moreover, winning this battle at this point — which means having at least one Justice who supported a stay turn around and conclude that the Court does not have jurisdiction over the case at this stage of the proceedings (and hence never had jurisdiction) — would be institutionally awkward.  When the Court issued the stay, it brought the entire judicial process below to a halt, which is where it has remained for eight months thus far.  The lower court has not been able to do anything about potential new maps.  For the Court now to say we don’t have jurisdiction after all is to say that the Court introduced a lengthy delay, for no legitimate reason, into creating valid election districts for Texas.

I’m not addressing whether the Court was right or wrong back in September to conclude that, in practical effect, the lower court had issued an “order” and hence the case was properly before the Court.  Given the stay, though, it does seem puzzling or at least curious that the liberal side of the Court continued to devote so much of its attention to re-fighting this battle.

We can speculate about why they might have done so, but I’m not looking to do that here.  My aim is simply to call attention to this odd aspect to the argument – one that meant there was much less discussion of the actual VRA and constitutional issues concerning the design of election districts in Texas.  And if the stay means that the Court has already decided it’s going to reach the merits of those issues, it’s all the more disappointing that comparatively little argument time was devoted to them.


“A dubious anniversary for the Federal Election Commission”


In separate interviews Thursday with the Center for Public Integrity, each of the four “holdover”  commissioners — who may continue to serve until President Donald Trump and the U.S. Senate replace them — confirmed that they have no immediate plans to step down.

They all know the FEC, in the midst of a critical midterm election campaign, is teetering on the brink of a de facto shutdown: If one commissioner retires, resigns or otherwise isn’t present, the agency that regulates and enforces campaign money laws loses its four-commissioner quorum and can’t conduct high-level business. No passing rules. No penalizing scofflaws. No providing official advice to political committees seeking it.

“If the commission loses a quorum … it obviously affects the public,” Hunter said.


“Trump campaign has paid portions of Michael Cohen’s legal fees: Sources”

ABC News:

The Trump campaign has spent nearly $228,000 to cover some of the legal expenses for President Donald Trump’s personal attorney Michael Cohen, sources familiar with the payments tell ABC News, raising questions about whether the Trump campaign may have violated campaign finance laws.

Federal Election Commission records show three payments made from the Trump campaign to a firm representing Cohen. The “legal consulting” payments were made to McDermott Will and Emery — a law firm where Cohen’s attorney Stephen Ryan is a partner — between October 2017 and January 2018.

Cohen has said that he did not have a formal role in the Trump campaign, and it is illegal to spend campaign funds for personal use – defined by the FEC as payments for expenses “that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder.”

“They’re on shaky legal ground,” said Stephen Spaulding, chief of strategy at the nonprofit watchdog group Common Cause. “It sounds like they are really pushing the envelope … If the campaign were to say they are campaign-related payments, then maybe it’s okay to use campaign funds. But he can’t have it both ways.”


“Meet the little-known ‘big fish’ megadonor setting the tone for GOP primary races”


Behind just about every divisive Senate Republican primary this year, an amiable Midwestern businessman is bankrolling the candidate who claims to be the most hard-charging, anti-establishment conservative in the race.

Richard Uihlein, a wealthy shipping-supplies magnate from Illinois who shuns the spotlight, has risen to become one of the most powerful — and disruptive — GOP donors in the country.

For years, Uihlein has given money to isolated races in the service of his anti-union, free-market and small-government views. But he has dramatically increased his giving this cycle, pouring $21 million into races from Montana to West Virginia to ensure more conservative victories in the upcoming midterm elections, Federal Election Commission records show.


“Pa. gerrymandering’s surprise co-conspirators: Democrats”

Philly Inquirer:

But all those Democrats omitted an important detail: Each one joined with the GOP legislative majority in 2011 to pass the map that the state’s highest court would toss out as a Republican partisan gerrymander.

In all, three dozen state Democrats joined Republicans to push the map through; it would not have passed without the minority party’s backing.


“Fake Green Party Candidate Exposed as Having Ties to Republican Congressman”

Daily Beast:

The former Green Party candidate in a congressional race has been exposed as a Republican plant with ties to the GOP congressman he supposedly sought to challenge

Michael Zak petitioned to run under the Green Party ticket in New York’s 27th congressional district, a seat currently held by Rep. Chris Collins. Zak’s candidacy petition listed as the official contact person Ross Kostecky, a local Republican operative who interned on Collins’s 2009 campaign for Erie County, New York executive, The Daily Beast has found.


Roundup on Stories About Texas Voter ID Decision

Howard has it. 

And see my earlier post on the case, which begins:

In what I consider to be a fundamentally disingenuous analysis by 5th Circuit Judge Edith Jones, a divided 5th Circuit panel has not only held that Texas’s replacement voter id law (enacted in response to an earlier finding, upheld by the 5th Circuit that its original strict voter id law violated the Voting Rights Act) is legal. It also has essentially precluded the district court from putting Texas back under federal supervision for its voting rules based on a finding of intentional discrimination in voting on the basis of race. Judge Higginbotham’s concurrence makes nice noises about the “race or party” question I have been writing about for a long time, but in the end he does not appear to disagree with Judge Jones’s conclusion that the district court cannot put Texas back under preclearance based on an earlier finding of racially discriminatory intent. (Perhaps the plaintiffs can seek clarification on rehearing on this point, and get Judge Higgenbotham to open this back up.)

This ruling is likely to stand, because, despite the persuasiveness of Judge Graves’s dissent, the Fifth Circuit’s partisan balance has changed since the last go at this case, and an en banc process is likely to be unsuccessful, and the Supreme Court is unlikely to get involved either.



May 7 ACS Event: Firewalling Democracy: Election Security as a National Security Issue

This looks like a great lineup (use the link to rsvp):

In January 2017, then-Secretary of Homeland Security Jeh Johnson designated election infrastructure as critical infrastructure – thereby making it a priority for cybersecurity assistance and protections that the federal government provides to both public and private entities. To some critics, Johnson’s designation was too little too late, –coming two months after the 2016 elections were hacked by Russians and manipulated by virtual troll farms. To others, it signaled unwelcome federal intervention in local election administration. As the 2018 midterm elections approach, the current administration says there are ongoing conversations about how agencies can counter election related cyber threats. Yet, NSA Director Admiral Michael Rogers recently testified that the NSA hasn’t been asked to counter Russian election interference or been granted new legal authorities to do so. What is – and what can – be done to protect our elections from foreign and other interference?

Welcome: Caroline Fredrickson, ACS President

Introduction: A.J. Bhadelia, Manager, Public Policy and Government Affairs, Google

Philippa (Pippa) Scarlett, (Moderator), former Deputy Intellectual Property Enforcement Coordinator at the White House and current ACS Board Member.
Joseph Lorenzo Hall, Chief Technologist, Center for Democracy and Technology
Tom Hicks, Commissioner, U.S. Election Assistance Commission
Laura Rosenberger, Senior Fellow and Director of the Alliance for Securing Democracy, The German Marshall Fund of the United States
Ciara Torres-Spelliscy, Associate Professor of Law, Stetson University College of Law

Lunch will be served at 12:00 and the program will begin at 12:30.



“The Justice Department Deleted Language About Press Freedom And Racial Gerrymandering From Its Internal Manual”


The part of the manual addressing the Justice Department’s civil rights work was revised in March. In a section discussing enforcement of the Voting Rights Act, the new version removes previous references to redistricting and racial gerrymandering.

The previous version stated: “The Voting Section defends from unjustified attack redistricting plans designed to provide minority voters fair opportunities to elect candidates of their choice and endeavors to achieve racially fair results where courts find, following Shaw v. Reno, 113 S.Ct. 286 (1993), and Johnson v. Miller, 115 S.Ct. 2475 (1995), that redistricting plans constitute unconstitutional racial gerrymanders.”

That section is gone from the new version, and there are no direct references to redistricting or racial gerrymandering. References in earlier versions of the manual to other types of voting rights issues that fall under the purview of the Civil Rights Division — from the bans on literacy tests and poll taxes to language access protections — are included in the new version.


Indiana: “Rokita, Messer deny wrongdoing in possible straw donor scheme”


Three Indiana members of Congress gave and received money from Ohio Rep. Jim Renacci in what experts said may have been an improper straw donor scheme — including two Indiana congressmen running for the U.S. Senate.

The Senate candidates, Reps. Todd Rokita and Luke Messer, denied any wrongdoing. Rep. Jackie Walorski’s campaign did not respond to multiple phone calls and emails seeking comment.

The Cincinnati Enquirer reported that Messer and Walorski received contributions from Renacci’s congressional campaign between April and June last year. Although he was not named in that story, Rokita also received campaign contributions from Renacci.

Within two months of receiving a donation, all three then contributed money to Renacci’s gubernatorial campaign. In Messer’s case, the contribution occurred just one day after his campaign received a donation from Renacci.


5th Circuit ID ruling … and the Texas redistricting case.

Earlier today, Rick noted the 5th Circuit’s opinion on Texas’s voter ID law.  I agree with much of his critique of the court’s resolution of the section 3(c) preclearance issue.

In my post on the Texas redistricting cases earlier this week, I highlighted one reason why Judge Jones’ analysis of the section 3 issue is dangerous: it takes any teeth out of plaintiffs’ abilities to confront intentional discrimination when a jurisdiction can reap the benefits of the discriminatory law while fighting and delaying resolution.  Under Judge Jones’ structure, there’s little incentive not to discriminate, as long as the officials implementing the law calculate that they’ll be marginally better off in the interim between passage of the law and the imposition of an eventual remedy.  And under this structure, section 3 becomes completely impotent.  We’re back to whac-a-mole.

Particularly in light of the 5th Circuit’s decision, it seems like an opportune time to plug Josh Douglas’s and Michael Solimine’s excellent (and now exceedingly timely) article on three-judge courts’ interaction with circuit decisions.  Depending on what happens at SCOTUS with the Texas redistricting case argued earlier this week, the three-judge Texas redistricting court may well find that it is asked to confront Judge Jones’ opinion about the impact of a later-enacted law.  And then the three-judge court is going to have to decide exactly how much attention to pay to that 5th Circuit opinion, which is exactly the issue that Josh and Michael lay out in interesting detail.


Breaking and Analysis: Divided 5th Circuit Rejects Latest Challenge to Texas’s Voter ID Law, But Prospect for Further Litigation Remains

You can find a majority opinion by Judge Jones, concurring opinion by Judge Higginbotham, and dissenting opinion by Judge Graves in Veasey v. Abbott at this link.

In what I consider to be a fundamentally disingenuous analysis by 5th Circuit Judge Edith Jones, a divided 5th Circuit panel has not only held that Texas’s replacement voter id law (enacted in response to an earlier finding, upheld by the 5th Circuit that its original strict voter id law violated the Voting Rights Act) is legal. It also has essentially precluded the district court from putting Texas back under federal supervision for its voting rules based on a finding of intentional discrimination in voting on the basis of race. Judge Higginbotham’s concurrence makes nice noises about the “race or party” question I have been writing about for a long time, but in the end he does not appear to disagree with Judge Jones’s conclusion that the district court cannot put Texas back under preclearance based on an earlier finding of racially discriminatory intent. (Perhaps the plaintiffs can seek clarification on rehearing on this point, and get Judge Higgenbotham to open this back up.)

This ruling is likely to stand, because, despite the persuasiveness of Judge Graves’s dissent, the Fifth Circuit’s partisan balance has changed since the last go at this case, and an en banc process is likely to be unsuccessful, and the Supreme Court is unlikely to get involved either.

Now the details.

After many years of fighting Democrats in the state legislature, Republicans pushed through a very strict voter id law for voting, SB 14. A group of voting rights plaintiffs, with the support of the US DOJ, argued that the law violated both Section 2 of the Voting Rights Act and the Constitution. The district court found both a racially discriminatory effect under Section 2 as well as that the law was enacted with a racially discriminatory intent. That latter finding was important for two reasons: (1) it allowed the court not to defer on remedies, and it could throw out the entire law; and (2) the finding could serve as a predicate for the court, acting under Section 3 of the VRA, to put Texas back under preclearance for up to 10 years for some or all of the changes to its voting rules.

After a while, the case made it to the 5th Circuit sitting en banc, where a majority of the strongly divided court held that the trial court was right in finding a racially discriminatory effect, and another (somewhat overlapping) majority of the court held that the trial court relied on some improper evidence to figure out discriminatory intent, BUT there could well be enough permissible evidence in the record to support such a finding. Judge Jones dissented vociferously, believing there was no evidence of discriminatory effect or intent and she would have ended the case right there.

The 5th circuit remanded to the trial court. The Supreme Court refused to get involved, but Chief Justice Roberts signaled he would like to when the case was final.

While the case was pending, the district court implemented an order which softened Texas’s voter id law, including allow people to sign a statement indicating that they had a reasonable impediment to voting. Texas later enacted a new law, SB 5, which mostly (but not perfectly) tracked the interim remedy established by Texas, which in my view, while not perfect, was a great improvement on the old law.

The case went back to the trial court, and after the election of President Trump the U.S. DOJ essentially switched sides. Texas and the U.S. took the position that the enactment of SB 5 solved all the problems and mooted the case. The district court disagreed, and held that this did not cure either the problem of discriminatory effect or intent. It set a hearing on the question of putting Texas back under federal supervision. A motions panel of the 5th Circuit stopped the trial court’s action until the appeal could be settled.

Both Judge Jones in her majority opinion and Judge Graves in dissent agreed the case was not moot. Only Judge Higgenbotham said that it was. On the merits, Judge Jones said that SB 5 cured any voting rights violation, and that the trial court found no evidence the new law was passed with intentional discrimination. Accordingly, there would be no basis for putting Texas back under federal preclearance. She wrote: “Further, because SB 5 constitutes an effective remedy for the only deficiencies testified to in SB 14, and it essentially mirrors an agreed interim order for the same purpose, the State has acted promptly following this court’s mandate, and there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c). See McCrory, 831 F.3d at 241 (declining to impose relief under Section 3 of the Voting Rights Act and noting ‘[s]uch remedies ‘[are] rarely used’. . . .’).”

It is here where Judge Jones was disingenuous. The trial court found, looking at only proper evidence allowed by the 5th Circuit’s earlier decision, that the original enactment of SB 14 was done with a racially discriminatory purpose. As Judge Graves argues in dissent, this should have been reviewed for clear error and there was no clear error. Thus, even if Texas’s enactment of SB5 later on was not done with racially discriminatory intent, SB 14 was, and that alone could be the basis for the imposition of preclearance. Judge Jones just ignores all that and throw out the right of plaintiffs in the first instance to seek Section 3 relief before the district court.

And Judge Higgenbotham in his concurrence seems to go along. He argues the whole case is moot, which my last paragraph shows it is definitely not on the precelarance question. The rest of his opinion notes the race or party problem (“The  difficulty lies in disentangling partisan advantage and racial purpose when a party controls the legislature and racial minorities are heavily invested in the opposite party.”) He then goes on to suggest, that passing election laws on pure partisan grounds could well raise a constitutional problem under strict scrutiny. (“Where, as here, the state cannot show that its hurried pursuit of a so recently arrived fear of voter fraud exists beyond the fantasy of political spin, its efforts can only be described in terms of race or the pursuit of political advantage. Either way, strict scrutiny is triggered—when the answer to the charge of racial purpose is a claim that the true purpose was partisan advantage, the state action fails for want of a legitimate purpose. This, because we have not a dilution but an outright denial of the right to vote.”) There’s a lot to like here, and Judge Higgenbotham cites my Harvard Law Review Forum piece making this point. But that doesn’t excuse what he’s done here.

Judge Graves makes excellent points in his lengthy dissent. But if this case goes en banc, it is a tough road ahead. Remember that not only has Judge Prado [corrected] left (picked off by Trump as an ambassador for potentially political reasons), there are now three deeply conservative judges now on that court (Ho, Willettt and now Duncan). It is a tough road indeed there, and at the Supreme Court. CJ Roberts was eager to get involved to help Texas. He’s likely not going to be eager to help voting rights plaintiffs.

[This post has been updated.]




“House Intelligence Committee Releases Findings on Russian Election Interference”


The House Intelligence Committee released on Friday a roughly 250-page report on Russia’s interference in the 2016 presidential election, laying out Republicans’ conclusion after a yearlong investigation that they had found no evidence that the Trump campaign aided Moscow’s efforts.

[Read the report.]

Their conclusions are certain to be attacked by Democrats on the committee, who have accused the Republicans of prematurely closing the investigation and failing to conduct it with the rigor that the subject called for out of a desire to protect President Trump. The committee also released dissenting views from the Democrats.

Adam Smith on Twitter:



“New Report: Many Election Day Lines Shorter in 2016, But Some Long Waits Remain”


Fewer Americans waited in long lines to vote during 2016’s presidential election compared with 2012, but a significant number of polling places still experienced average wait times over 30 minutes, according to a new Bipartisan Policy Center report published today.

BPC and the CalTech/MIT Voting Technology Project conducted the largest-ever national study of polling place wait times on Election Day 2016, with poll workers measuring lines at 4,006 voting precincts in 88 jurisdictions across 11 states, including swing states Michigan, Virginia, and Florida. Studied locations accounted for about 8 percent of all votes cast in the 2016 presidential election.

Notably, states that had the longest wait times in 2012 like Michigan, Florida, and Virginia saw the biggest improvements in 2016.



“Trump pushes to swap Electoral College for popular vote”


President Donald Trump on Thursday voiced support for doing away with the Electoral College for presidential elections in favor of a popular vote because the latter would be “much easier to win.”

The president’s support for a popular-vote presidential election came as an aside during a freewheeling Thursday morning interview with “Fox & Friends,” the Fox News morning show he is known to watch and from which he receives almost unflinchingly positive coverage. Trump made the remark amid a larger point about public figures who publicly support him in turn benefiting from a boost of popularity from Trump supporters.

Meanwhile, the National Popular Vote compact moved closer to approval in Connecticut.


FEC Commissioners Petersen and Hunter Attack FEC Commissioner Weintraub

In footnote 2 of this document, the two Republican FEC Commissioners attack Democratic FEC Commissioner , calling her work encouraging CREW to sue in Court and other actions “ill-advised public statements on social media and attempts to obstruct routine Commission operations.”

Next year’s holiday party is going to be something else.


“Democratic Sen. Robert Menendez is ‘severely admonished’ by Ethics Committee, ordered to repay gifts”


The Senate Ethics Committee said Thursday that Sen. Robert Menendez (D-N.J.), who avoided conviction in a federal corruption trial last year, violated federal law and Senate rules in accepting unreported gifts from a friend and political ally whom Menendez used his office to assist.

In a four-page “letter of admonition,” the six members of the panel ordered Menendez to pay back the gifts he received from Salomon Melgen, a Florida eye doctor, and said that he is “hereby severely admonished.”

“Your assistance to Dr. Melgen under these circumstances demonstrated poor judgment, and it risked undermining the public’s confidence in the Senate,” the letter reads. “As such, your actions reflected discredit upon the Senate.”

The Ethics Committee findings complete a winding, six-year saga that saw Menendez accused of corrupt dealings to benefit a political donor, Melgen, only to see his prosecution end in a mistrial last November after 10 weeks in court.

After the mistrial, most jurors told reporters that they believed Menendez had not committed the crimes that federal prosecutors alleged and a grand jury had charged him with. On Jan. 31, a judge dismissed all charges against Menendez after prosecutors decided not to pursue a second trial.


Facebook’s Definition of Issue Ads is Broad Enough to Encompass Lots of Non-Election Related Advertising

Via the Intercept, comes this new definition from Facebook of what counts as a “political ad” which will count for certain new vetting procedures (my emphasis below):


A “political ad” is defined as an ad that:

  • Is made by or on behalf of a candidate for public office, a political party, or a political action committee;
  • Advocates for the outcome of an election to public office or relates to the voting in an election for public office;
  • Relates to any national legislative issue of public importance in the place where the ad is being run; or
  • Is otherwise regulated as political or election-related advertising

Advertisers are required to comply with applicable law — and that includes election-related laws that require disclosures. We’re providing new tools that will bring greater transparency around the ads on Facebook. While it’s up to every advertiser to assess their own legal obligations, we hope that these tools will help candidates, political parties and other organizations provide people with more information about who’s behind the ads they’re seeing.

On why this matters and the difficulties ahead, here is my earlier post:

(How) Will Facebook Self-Regulate “Issue Ads” Intended to Affect U.S. Elections? The Details Matter a Lot

Via the NY Times comes news that Facebook will not only support passage of the Honest Ads Act(currently pending in committee where it may stay), but will also self-regulate “issue ads.” The self-regulation is important, because it may be that some government regulation in this area is unconstitutional. Still, the details will matter, and it remains to be seen if Facebook will have the interest and patience in coming up with full and effective self-regulation.  I explain why in this post.

Not all ads that the Russian government and others ran in the 2016 elections intended to influence the elections would be governed by federal law barring foreign nationals from spending money in U.S. elections. Those that do not expressly advocate the election or defeat of a candidate are not barred unless they appear on television or radio close to the election and feature the candidate’s name or likeness. So when Russians ran an ad saying “Hillary is a Satan” close to the election it would not be covered. The Honest Ads Act would extend the rules applying to television and radio to digital ads, and so “Hillary is a Satan” would be covered and the Russian government could not pay for such ads close to the election.

But as the Times explains  lots of the Russian ads did not even mention a candidate but were intended to influence the election:

Law enforcement officials say Russian agents, looking to stir discord, posed as Americans with Facebook pages that represented a range of political viewpoints, from “Blacktivist” to “Heart of Texas.”…

The policy builds on an announcement in October that Facebook would start verifying advertisers running “election-related” ads. Critics said that would not capture many of the ads run by Russian agents around the 2016 election, which focused on issues rather than specific elections. One Internet Research Agency ad, for example, featured a Confederate flag and said, “The South will rise again!”

Facebook’s move on Friday would address those issue ads. Most of the Russian ads focused on “divisive political issues like guns, L.G.B.T. rights, immigration and racial issues,” Senator Mark Warner, Democrat of Virginia, said in a statement.

“That’s why today’s announcement by Facebook is so important,” he added.

I explained in pieces in Politico and Slate that it is not clear that the conservative Supreme Court will allow the government to bar foreign spending on issue ads that do not mention a candidate by name. (For the full academic discussion of the relevant constitutional cases and regulations, see my recently published piece, Cheap Speech and What It has Done (to American Democracy), 16 First Amendment Law Review 200, 217-222 (2018)).

But Facebook is not a government actor, and it can choose to exclude these ads if paid for by foreign governments, or require disclosure of them. There’s no First Amendment problem with that at all, but it’s not clear exactly how this will work.

Here’s the relevant part of yesterday’s announcement from Facebook’s Rob Goldman and Alex Himel:

Last October, we announced that only authorized advertisers will be able to run electoral ads on Facebook or Instagram. And today, we’re extending that requirement to anyone that wants to show “issue ads” — like political topics that are being debated across the country. We are working with third parties to develop a list of key issues, which we will refine over time. To get authorized by Facebook, advertisers will need to confirm their identity and location. Advertisers will be prohibited from running political ads — electoral or issue-based — until they are authorized.

In addition, these ads will be clearly labeled in the top left corner as “Political Ad.” Next to it we will show “paid for by” information. We started testing the authorization process this week, and people will begin seeing the label and additional information in the US later this spring…

.We know we were slow to pick-up foreign interference in the 2016 US elections. Today’s updates are designed to prevent future abuse in elections — and to help ensure you have the information that you need to assess political and issue ads, as well as content on Pages. By increasing transparency around ads and Pages on Facebook, we can increase accountability for advertisers — improving our service for everyone.

Here’s a hypothetical to flesh out some issues. Let’s assume that Facebook, working with these third parties, can successfully identify key issues like “Black Lives Matter,” immigration, or gay rights and religious liberties. Suppose an ad comes in from a group formed in the U.S. called “Traditional Values Coalition” or “Progress Now!” running ads on LGBT issues.

  1. Will Facebook require these groups to disclose their donors? What if their donors consist of a series of shell groups, hiding the real identity of the group? How will Facebook know that they’ve figured out who the real donors are?
  2. What happens if Facebook determines that some of the donors are foreign? Will it apply a percentage test?
  3. Will foreign ads simply be subject to disclosure regulation, or will the ads be rejected if from a foreign source even if federal law does not bar the ads (such as “Hillary is a Satan” if the Honest Ads Act does not apply, or LGBT ads if it does apply)?
  4. What if the material is from a media corporation that is a foreign entity, like The Guardian? (Suppose The Guardian editorializes “Don’t vote for Trump.”) if so, how will it decide who counts as the media?

There are many more questions, but Facebook has some difficult decisions to make if it goes ahead with this.


“Trump judicial nominee says he’s personally witnessed voter fraud”

Washington Times:

Michael J. Truncale, one of President Trump’s judicial nominees, said Wednesday he’s personally witnessed incidents of voter fraud while serving as an election judge in Texas.

He made the revelation under questioning by Sen. Mazie Hirono, Hawaii Democrat, who objected to comments Mr. Truncale had made in 2014 about the prevalence of voter fraud. She said the problem is not widespread.

Mr. Truncale, a Texas lawyer who previously ran for Congress in 2012 and is now Mr. Trump’s pick for a district judgeship, said he couldn’t say how widespread the problem is, but said he’d seen instances in Jefferson County.

“I was once an election judge and had people from other states come by wanting to vote and I denied their ballot because they weren’t even Texans, or properly registered, so I’ve seen that,” Mr. Truncale said.


Rick Pildes: “Why gerrymandering is going to get even worse”

Smart Rick Pildes at the Monkey Cage:

We have had only two redistricting cycles (2000 and 2010) in this transformed political terrain. When the stakes are so high that partisan control of the House might hang in the balance, more aggressive partisan efforts to gerrymander will, not surprisingly, flourish….

The modern era of regular decennial redistricting began in the 1970s, when every state began to have to redraw districts every decade, after the new census, to meet the equal-population requirements of the Supreme Court’s one-vote, one-person doctrine. Since then, we have not had a redistricting cycle with as virulent a combination of incentive and capacity to gerrymander.

What’s more, our politics are so polarized that partisan political conflicts have come to seem existential. Each party believes that, if the other gains control, the very identity of the United States will be compromised. The perceived stakes could not be much higher….

On top of these structural changes in politics, other more widely recognized factors contribute to making gerrymandering worse today. Technological changes make precision gerrymandering easier. Voters are far more polarized, which makes gerrymanders more reliable and enduring because voting patterns are more stable and easier to predict.

But while the ability to gerrymander successfully has improved, the transformation in the structure of our politics has changed even more dramatically. Control of our political institutions has been evenly divided over an exceptionally sustained period. And the nature of our hyperpolarized, existential politics has raised the stakes even more.  It’s no wonder that we are seeing such aggressive partisan gerrymandering in so many places.