All posts by Rick Hasen

5th Circuit Will Hear Galveston Redistricting Lawsuit En Banc, Offering Another Chance to Weaken the Voting Rights Act

Voting Rights Act

Here’s the order.

Here’s my earlier coverage:

Breaking: Fifth Circuit Panel, While Affirming that Galveston, Texas Violated the Voting Rights Act, Calls for En Banc Rehearing So They Can Rule Against Galveston

Well this is an interesting (and disturbing) order. A Fifth Circuit panel has unanimously held that the district lines for the legislative body in Galveston County, Texas violates the Voting Rights Act as currently interpreted by the 5th Circuit by diluting the power of black and Latino voters.

But the panel in the same order says that existing circuit precedent which allows considering a so-called rainbow coalition of black and Latino voters cannot be considered together for purposes of the Voting Rights Act, even if they vote together to prefer candidates of their choice against the preferences of the white majority of voters. “That precedent establishes the validity of so-called minority-coalition claims like those brought in this case. And this panel is bound by it under the rule of orderliness. But the court’s decisions in this respect are wrong as a matter of law. The text of Section 2 does not support the conclusion that distinct minority groups may be aggregated for purposes of vote-dilution claims.”

Kind of sense that the 5th Circuit sitting en banc (as a whole) will be likely to agree; it’s the most conservative appeals court body in the country.

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Speaking at Baker Institute (Rice) This Friday at Conference Previewing 2024 Elections

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I’ll be on a panel with Joshua Sellers on legal issues and the 2024 election. You can register for a free livestream.

Conference schedule:

Agenda

Please scroll for descriptions of the conference panels.

8:55 amWelcome Remarks
9:00 amPanel I — A Presidential Election With Legal Issues Like No Other
Moderated by: Mark K. Updegrove, Presidential Historian,  ABC News; President and CEO, LBJ Foundation
Richard L. Hasen
Professor of Law and Political Science, University of California, Los Angeles; Director, Safeguarding Democracy Project
Joshua Sellers
Professor of Law, The University of Texas at Austin
10:15 amBreak
10:30 amPanel II — Dissatisfaction With the Two-Party System
The Honorable Pat McCrory
Former Governor of North Carolina; National Co-Chair, No Labels
The Honorable Jay Nixon
Former Governor of Missouri; Ballot Integrity Project Director, No Labels
11:45 amLunch
12:15 pmLunch Conversation
Major Garrett
CBS News Chief Washington CorrespondentTBD
1:15 pmBreak
1:30 pmPanel III — A View From the Campaign BusModerated by: Julie Mason, Host, “The Julie Mason Show”Galen Bacharier
Politics Reporter, Des Moines RegisterDave Carney
CEO, Norway Hill Associates, Inc.Marianne LeVine
Political Reporter, The Washington Post
2:45 pmBreak
3:00 pmPanel IV — Looking Forward to the 2024 ElectionModerated by: Lisa Lerer, National Political Correspondent, The New York Times
Nathan L. Gonzales
Editor & Publisher, Inside Elections
Rebecca Pearcey
Partner, Political Communications, Bryson Gillette
Alex Thompson
National Political Correspondent, Axios
Amy Walter
Publisher & Editor-in-Chief, Cook Political Report
4:15 pmAdjourn
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“Battle over ‘legal ballot harvesting’ being waged in New York”

absentee ballots

Times-Union:

U.S. Rep. Elise Stefanik is waging a court challenge against New York’s new vote-by-mail law in court while also promoting “legal ballot harvesting” on the campaign trail as the fierce and costly battle for control of Congress in next year’s election has already begun. 

New York Republicans are arguing the state law allowing “no-excuse” mail-in voting is unconstitutional and, if not halted right away, could hurt the “likelihood of future victory” for GOP candidates. …

Democrats, in legal briefs filed in response to the lawsuit in recent weeks, contend the state Legislature’s method to create early voting by mail for all New Yorkers — through a bill and not a constitutional amendment — is a sound, legal practice. 

“There is no express language in the New York constitution that precludes early voting by mail,” attorneys for state Attorney General Letitia James countered in a brief. 

Democrats argue extending vote by mail to anyone is within the scope of the Legislature’s ability to act within its constitutional right to dictate the “manner” in which New Yorkers vote. 

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“How election officials are planning to avoid a repeat of 2020’s slow vote count”

election administration, election subversion risk

Zach Montellaro for Politico:

Election officials are preparing to count votes a lot faster in 2024, desperate to avoid a repeat of the long ballot count that left the winner of the presidential race uncertain for days in 2020.

Several battleground states have passed new laws to facilitate quicker counting and implemented more efficient processing procedures. The faster races are tabulated, the faster they’re called — and the shorter the period of uncertainty in which misinformation can spread, as when then-President Donald Trump escalated conspiracy theories about the vote count in 2020 and falsely declared himself the victor.

“We’re going to continue to be laser focused on the space and time between when the polls close and the unofficial results are announced,” said Michigan Secretary of State Jocelyn Benson, a Democrat. “But what 2020 also showed us is that in addition to that time period, if the unofficial results are not what certain candidates had in mind or had hoped for, that we need to be prepared for them to double down on their misinformation.”

In addition to states counting votes more quickly and starting the process earlier, mail voting is expected to be down from 2020, when the pandemic led an unprecedented number of voters to avoid in-person polling places.

But issues remain. Counting procedures vary state by state, and partisan fighting has sometimes bogged down changes election workers want. And some key states — most notably Pennsylvania — still lag behind, election officials and experts warn, and in an exceptionally close presidential race it could still take days to know the winner.

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E.J. Dionne WaPo Column Discusses the Threats to Voting Rights, and the Need for a Constitutional Amendment Protecting the Right to Vote (Citing My Upcoming Book, “A Real Right to Vote”)

Real Right to Vote, Voting Rights Act

E.J. Dionne WaPo column:

In his decision in Shelby, Chief Justice John G. Roberts Jr. claimed that even without a strong Section 4, the Voting Rights Act bans discrimination under Section 2, which “is permanent, applies nationwide, and is not at issue in this case.”

Permanent? Not if the 2-1 decision last week from the U.S. Court of Appeals for the 8th Circuit is allowed to stand.

The court’s majority arrogantly tossed aside what Congress explicitly said it was doing when it passed the law, claiming miraculous powers to read the “text and structure” of the act as preventing private parties, including civil rights groups, from bringing cases under Section 2. As the Atlantic’s Adam Serwer noted, the ruling’s claim that only the Justice Department had this authority ignored “Congress’s intentions, Supreme Court precedent and decades of practice.”

This is no minor bit of judicial activism. Rick Hasen, a law professor at UCLA, wrote on the Election Law Blog website that the ruling would eliminate the bulk of the cases aimed at protecting voting rights, since “the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources.” Bye bye, Voting Rights Act. Indeed, there were immediate signs (in a key Louisiana case, for example) that the 8th Circuit ruling would be used to overturn earlier voting rights actions…..

Preventing Trump from overthrowing liberal democracy is certainly a necessary step, but it’s not sufficient. Renewing the fight for a new Voting Rights Act and the access-enhancing reforms in the Freedom to Vote Act is essential. But it’s also time to address one of the major flaws of our Constitution: It does not contain an explicit, affirmative guarantee of every citizen’s right to vote. Enacting a constitutional amendment that would do so, Hasen argues, would bring our voting wars to an inclusive conclusion.

“Why do we let the state put barriers in front of people when they exercise their right to vote?” Hasen asked in an interview. The director of UCLA’s Safeguarding Democracy Project, Hasen details his proposed amendment and the case for it in a forthcoming book, “A Real Right to Vote.” A carefully framed amendment, he argues, could simultaneously protect voter access and assure election integrity. He’d link automatic voter registration with a nationwide, universal, nondiscriminatory form of voter identification.

Polarization makes amending the Constitution nearly impossible these days, one reason Hasen addresses fears on both the left and the right. But whatever chances Hasen’s amendment has, it calls on Americans to address the most important question facing our democracy: Are we truly committed to being a democracy? We’ll decide that at the ballot box next November, but we’ll have a lot more work to do even if we get the initial answer right.

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“Here’s how a major ruling on the Voting Rights Act could affect Louisiana”

Voting Rights Act

Nola.com:

A ruling this week that private individuals and groups can’t demand enforcement of the Voting Rights Act could have major impact in Louisiana, as the state uses that decision to try to quash a legal challenge to its Republican-drawn congressional maps.

The ruling by a federal appeals court in St. Louis created “new and important” precedent to an ongoing lawsuit against Louisiana’s maps, Attorney General and Gov.-elect Jeff Landry wrote in documents filed Wednesday with the New Orleans-based U.S. Court of Appeals for the 5th Circuit.

The 5th Circuit — viewed as one of the most conservative courts in the federal appellate system — had ruled days earlier that Louisiana’s map likely violates the Voting Rights Act, and gave lawmakers until Jan. 15 to come up with a new redistricting plan. The court explicitly acknowledged then that private citizens have a right to sue under Section 2 of the landmark 1965 law.

Monday’s conflicting decision by Missouri’s U.S. Court of Appeals for the 8th Circuit will almost certainly be appealed to the Supreme Court. If upheld, legal experts predict it would dramatically erode enforcement of the Civil Rights-era law that grew the voting power of Black Americans….

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“Voting machine trouble in Pennsylvania county triggers alarm ahead of 2024”

voting technology

Politico:

Voters in the swing county of Northampton, Pennsylvania, mostly moved on after their new touchscreen voting machines glitched during a down-ballot judge’s race in 2019.

But when a similar issue cropped up earlier this month, it triggered a backlash within the county — one that has left state and local election officials in this key swing state racing to restore voter confidence ahead of what could be another contentious presidential election.

“We’re at the peak of mistrust of one another, but until that subsides, counties like ours need to be nearly perfect, and I think this system allows us to do that,” County Executive Lamont McClure told POLITICO before Northampton certified the vote on Tuesday, arguing the glitch resulted from human error.

The debate playing out in Northampton comes as election officials across the country are still contending with the consequences of Donald Trump’s 2020 fraud claims, which often centered around how votes are counted at the local level. With Trump a current frontrunner for the Republican nomination, that skepticism could only mount….

The 2019 election was the first time Northampton used the touchscreen voting machines from Election Systems & Software. That year, a programming glitch caused the ES&S machines to significantly undercount the votes for the Democratic candidate in a local judges’ race. Then on Nov. 7 this year, Northampton residents who showed up at their local polling station found that printouts from the same devices didn’t match the votes they had submitted digitally for two down-ballot judges contests.

Like in 2019, county officials and ES&S have said the errors did not affect any votes or alter the outcome of the races — both uncompetitive, up-down votes on whether to retain state judges. They argue the machines themselves are highly reliable and not to blame, saying the problem was caused by a one-off human error in the programming.

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“Why are U.S. courts afraid of the 14th Amendment? Because it’s radical.”

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Sherrilyn Ifill for WaPo oped:

The 14th Amendment is treated as a suggestion but rarely imposed in full measure when the status quo will be upended. This was perhaps most famously on display in 1955, in the case of Brown II, when the Supreme Court undercut its majestic decision of a year earlier in Brown v. Board of Education,by hedgingon the immediate end to segregated schools and counseling instead that local officials should move with “all deliberate speed.”

The Colorado court’s approach to Section 3 continues this tradition. To find that a president incited a violent insurrection against the United States but hold that such a president can still run for public office — indeed to return to the presidency itself — could not stand in starker opposition to the words and spirit of Section 3.

The 14th Amendment has once again proved too bold for the judges empowered to interpret it. Political forces are at play again, this time fearful of a backlash if Trump is removed from the ballot. As this case makes its way through the appellate process and, most likely, to the Supreme Court, it should be understood in the context of how the timidity and unwillingness of judges to acquiesce to the judgment of the 14th Amendment’s framers effectively derailed our democracy’s promise after Reconstruction and until the mid-20th century. We must ensure that it does not do the same in the 21st.

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Eleventh Circuit Reverses District Court Holding that Georgia’s At-Large Elections to State Public Service Commission Violates the Voting Rights Act; Ruling If Upheld Would Make It Very Difficult to Challenge Statewide At-Large Systems

Voting Rights Act

Another conservative court reading section 2 of the Voting Rights Act in ever narrower ways. The ruling is here:

The Georgia General Assembly determined that the State’s PSC—a constitutionally created state commission with statewide authority and statewide responsibilities—should be elected statewide. Georgia chose this electoral format to protect critical policy interests and there is no evidence, or allegation, that race was a motivating factor in this decision. On the facts of this case, we conclude that plaintiffs’ novel remedial request fails because Georgia’s chosen form of government for the PSC is afforded protection by federalism and our precedents. In simple terms, plaintiffs have failed to propose a viable remedy and cannot satisfy the first Gingles precondition as we understand it. Because the district court made mistakes of law, we reverse.

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“Your Local Newspaper Might Not Have a Single Reporter; Rise of ‘ghost newsrooms’ spawns effort by local news startups to fill the void”

cheap speech

WSJ:

The Gleaner, the local newspaper in Henderson, Ky., has sections focused on features, sports, news and opinion.

What it doesn’t have: a single reporter on staff.

The publication is one of the “ghost newsrooms” that increasingly dot the American media landscape—newspapers that have little to no on-the-ground presence in the localities whose name they bear. It is a sobering development in an industry that has been brought to its knees by the rise of digital media and large technology companies.

The Gleaner newsroom once bustled with a staff of around 20. Now, it doesn’t have an office—it was closed a few years ago—and most of its content comes from other publications owned by its parent company: Gannett, home of USA Today and over 200 local news outlets including the Courier & Press of nearby Evansville, Ind.

What coverage there is of Henderson, a northwestern Kentucky city of about 30,000, is left to a few freelancers—including a husband-and-wife team that averages a few stories a month for the Gleaner, which publishes five days a week.

Dozens of newspapers across the country don’t have a single full-time reporter dedicated to that publication, according to a Wall Street Journal analysis and industry observers.

Many newspapers “are so depleted in staff, or maybe have no staff, that they’re not able to provide the sort of communication the residents in that community need to make wise decisions,” said Penelope Abernathy, a visiting professor at Northwestern University and lead author of a recent report on the state of local news in the U.S. 

In some places—including Henderson—startups have sprouted to cover the issues that no longer appear in the local paper’s pages, but not to a degree large enough to offset the decline of established news publications, the study said. 

The lack of local-news coverage could make it more difficult to detect corruption, journalists and industry observers say. They cite the importance of covering hot-button topics, especially as localities confront a number of societal issues, including school curricula and policing.

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“Johnson’s Release of Jan. 6 Video Feeds Right-Wing Conspiracy Theories”

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NYT:

Speaker Mike Johnson’s decision to publicly release thousands of hours of Capitol security footage from Jan. 6, 2021, has fueled a renewed effort by Republican lawmakers and far-right activists to rewrite the history of the attack that day and exonerate the pro-Trump rioters who took part.

Mr. Johnson’s move last week to make the footage available — something the far right has long demanded — came as he tried to allay the anger of hard-line Republican lawmakers for working with Democrats to keep the government funded. Now, some of the same people who were irate about that decision are using the Jan. 6 video to circulate an array of false claims and conspiracy theories about the largest attack on the Capitol in centuries.

Representative Marjorie Taylor Greene, the hard-right Georgia Republican, was among the first lawmakers to post false information about the newly released videos. She claimed on the social media site X that surveillance video showed a rioter holding a law enforcement badge in his hand, suggesting that he was an undercover police officer “disguised as a Trump supporter” and the attack was an inside job.

But the item in the man’s hand in the screen grab she circulated appears, upon closer inspection, to have been a vape pen. And the man who is seen in that image, Kevin Lyons, was in fact a heating-and-cooling technician — not a police officer — who was later convicted at a public trial of multiple federal charges and sentenced to more than four years in prison.

Ms. Greene later edited her post to remove the false claim, but not before it had spread widely among Trump supporters.

Senator Mike Lee, Republican of Utah, recirculated the same clip and false allegation that the man pictured had flashed a badge, adding that he looked forward to questioning Christopher S. Wray, the F.B.I. director, about the matter.

“How many of these guys are feds?” he asked in a separate post that included video of a violent clash between rioters and the police.

“Heads up,” former Representative Liz Cheney of Wyoming, who was the top Republican on the special House committee that investigated the Jan. 6 attack, responded to Mr. Lee. “A nutball conspiracy theorist appears to be posting from your account.”

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Louisiana, Seeking to Capitalize on 8th Circuit Ruling that Private Parties Cannot Sue for Violation of the Voting Rights Act, Plans to Ask En Banc Fifth Circuit to Reconsider Ruling Requiring Creation of Additional Black Congressional District

#2DaysOut, Voting Rights Act

Should have seen this one coming:

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Nevada Judge Rules Single Subject Violation Will Keep Abortion Rights Ballot Measure Off 2024 Ballot [Corrected Headline]

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Nevada Independent:

A Carson City judge has struck down an effort from reproductive rights groups to place a question on the 2024 ballot that aimed to establish a state constitutional right to abortion.

District Court Judge James Russell ruled Tuesday that the proposed question — which would have guaranteed a right to “all matters relating to pregnancy,” including birth control, abortion care and prenatal care — violated Nevada law because it was too broad for a single ballot question. He also said the implications of the question were unclear and it would implicitly require a funding source.

“This is probably the clearest case I have seen that I think there is a violation of the single subject rule,” Russell said Tuesday, according to KOLO News. “I’ve seen a lot of them over the years and in respect to this particular matter, there are too many subjects. Not all of which are functionally related to each other.” 

The ballot measure is being spearheaded by the Nevadans for Reproductive Freedom PAC, which was founded this year and is affiliated with Planned Parenthood’s advocacy arm. The PAC plans to appeal Russell’s ruling to the Nevada Supreme Court, according to KOLO News.

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