Monthly Archives: December 2016

Correction: North Carolina Officials Try for Emergency SCOTUS Relief in Racial Gerrymandering Case

Note: This post has been significantly corrected. See below.

Back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.

The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.

The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. That motion remains pending, and ordinarily things would wait for the lower court order to issue.

But now the state has filed this emergency motion with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.

The petition, with Paul Clement as counsel of record, seems unlikely to succeed. To begin with, as noted, the Court would ordinarily wait for the lower court to rule before ruling itself. And although Jan. 11 is the beginning of the new NC term, nothing requires the legislature to begin work on the petition that day. The work must be done by March 15.  So this seems like an odd rush. Why not at least wait until after the first of the year to file this, so that Justice, clerk, and lawyer time can be better preserved over the holidays?

The timing is no mystery. Gov. McCrory leaves office tomorrow night. The new incoming governor, Roy Cooper, is a Democrat likely to have different views on these issues than McCrory.  Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration. Although the governor is not a party to the redistricting suit, the Governor and AG will likely express opinions in the litigation going forward, opinions adverse to the Republican legislature.

The goal here is to preserve as much Republican power in the state as possible despite the election of a Democratic governor, attorney general, and now majority on the State Supreme Court. Republicans could suffer losses in 2017 elections, and this motion would forestall it. It is of a piece with efforts to take away Cooper’s appointment powers and to mess with the election commissions to take away Democratic majorities on those commissions.

On the merits, given that the lower court could have imposed new districts for 2016, it does not seem like a special election in 2017 is a great impingement on voters’ rights as the petition alleges. Indeed, the harm to the other side is two more years of districts found to be unconstitutional.

My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state’s governor and attorney general.

Important note and correction: The original version of this tweet stated that outgoing Gov. McCrory was involved in filing this emergency petition. This is in error. The state provides no role for the governor in redistricting controversies. Chris Geidner: “A spokesperson for McCrory confirmed to BuzzFeed News that, ‘Governor McCrory did not have anything to do with the legal motion filed in the US Supreme Court.” The spokesperson went on to say that the governor’s office is not a party to that lawsuit and not involved in the case.'”

I very much regret the error and apologize to Gov. McCrory.

Share this:

After Years of Unconscionable Delay in Texas Redistricting Case, Another Plea for an Order

The Texas redistricting plaintiffs are getting desperate for a ruling, out of fear that further delay will endanger fixed maps for the 2018 elections.  This case has been going on for the better part of a decade. Plaintiffs have now submitted in this letter and this motion for judgment before the three-judge court asking for relief to come very soon.

I have no inside knowledge of what is going on behind the scenes, but I’ve long had a guess, which I’ll now make public: Judge Smith, who is a likely dissenter from the ruling, is dragging his feet precisely to delay a final resolution until the 2018 elections (and now until there is a new (conservative) 9th Justice confirmed to the Supreme Court.

Here is some bits from my November 2015 post on this case and the unconscionable delay:

The three-judge panel, which has been hearing permutations of this case for about half the redistricting cycle, today issued a 7-page unanimous order rejecting some of the plaintiffs’ request for a preliminary injunction to change the redistricting plans pending a further resolution on the merits.

When this motion was filed, I saw it as an attempt to prod what plaintiffs must believe to be a dilatory three-judge court. But today the three-judge court essentially said two things: (1) we are working really hard on a final decision but we are not there yet; and (2) doing yet another map is just going to confuse things and make them worse.

I expect what is going on behind the scenes is that we are not going to see a unanimous opinion.  Instead we are going to see a split opinion, and if Texas is on the losing end of things, a quick appeal to the Supreme Court.  (Maybe an appeal if Texas wins too, but that’s less certain.)

The wheels of Justice turn slowly, but if they turn much more slowly we’ll be gearing up for the next redistricting cycle! The best case scenario now is a ruling in a case originally filed in 2011 affecting the 2018 elections.

And here’s a post from April 2016 where I called the delay unconscionable.

Share this:

Obama Strikes Back at Russia for Election Hacking”


President Obama struck back at Russia on Thursday for its efforts to influence the 2016 election, ejecting 35 suspected Russian intelligence operatives from the United States and imposing sanctions on Russia’s two leading intelligence services.

The administration also penalized four top officers of one of those services, the powerful military intelligence unit known as the G.R.U.

Intelligence agencies have concluded that the G.R.U. ordered the attacks on the Democratic National Committee and other political organizations, with the approval of the Kremlin, and ultimately enabled the publication of the emails it harvested to benefit Donald J. Trump’s campaign.

President elect Trump on Twitter, after Putin declined to eject American diplomats: “Great move on delay (by V. Putin) – I always knew he was very smart!”

Share this:

ELB Quick Hits

Electionline Weekly: The List (What’s In and Out in Election Administration for 2017)

Politico, Ward picked to lead Obama-Holder redistricting project

NLJ, McDonnell Case Casts Long Shadow in Public-Corruption Prosecutions

Jonathan Adler and Seth Tillman each weigh in on Ed Kilgore’s silly call for President Obama to recess appoint Merrick Garland to the Supreme Court.

New depressing poll on voters who believe conspiracy theories such as the idea that millions of illegal votes were cast in the 2016 election.


Share this:

NC: “Judge puts NC GOP elections board makeover on hold after Roy Cooper sues”

News and Observer:

Governor-elect Roy Cooper filed a lawsuit on Friday challenging the General Assembly’s special session law that revamps the state elections board.

Cooper’s attorneys asked a Wake County Superior Court judge to block the law from taking effect while the lawsuit pends. Judge Donald Stephens granted the request after a one-hour hearing Friday afternoon.

The law was set to take effect on Sunday, when the North Carolina State Board of Elections would officially have ceased to exist. That change will be delayed for at least a week, and Stephens set another hearing on the case for Thursday.

The law would merge the elections board with the State Ethics Commission, which administers ethics laws governing lobbyists, elected officials and government employees. The merger was approved by the Republican-led legislature during its special session earlier this month and signed by Republican Gov. Pat McCrory, one of several changes attempting to limit the power Cooper.

Cooper’s attorneys argue in the lawsuit filing that the change violates the state’s constitution.

“The General Assembly passed a bill that, among other things, radically changes the structure and composition of the executive agency responsible for administrating our state’s election laws,” the lawsuit says. “Those changes are unconstitutional because they violate the separation of powers provisions enshrined in the North Carolina Constitution by shifting control over that agency away from the governor to the General Assembly.”…

Under the new law, the new elections and ethics board wouldn’t be able to take action with a simple majority – six of eight members must vote in favor. If the board deadlocks, matters could then be appealed to a Wake County Superior Court judge.

Cooper’s lawsuit argues that the supermajority requirement means the new board is “likely to be consistently deadlocked and unable to act” and therefore “will not be able to execute the election laws.”

The lawsuit also notes that if the board can’t get bipartisan agreement on early voting schedules – and courts decline to intervene – the schedules would default to the minimum number of hours allowed by law: A single site open only during weekday business hours and the Saturday before the election.

Cooper referenced that scenario in a news release Friday afternoon. “A tie on a partisan vote would accomplish what many Republicans want: making it harder for North Carolinians to vote,” he said. “It will result in elections with longer lines, reduced early voting, fewer voting places, little enforcement of campaign finance laws, indecision by officials and mass confusion.”

Share this:

US DOT Settles with Alabama over Access to Drivers License Offices, Relevant to Voter ID


After a year-long investigation, U.S. Transportation Secretary Anthony Foxx today announced that the U.S. Department of Transportation (USDOT) has reached an agreement with the Alabama Law Enforcement Agency (ALEA) to ensure that driver licensing services in the state will be available to all residents, regardless of race, color or national origin, in compliance with Title VI of the 1964 Civil Rights Act.

“The U.S. Department of Transportation took on this issue as part of our responsibility under Title VI to prevent discriminatory behavior, and I’m pleased to have reached this agreement with the State of Alabama,” said U.S. Transportation Secretary Anthony Foxx. “DMVs play a critical role in the day-to-day functioning of the American people, including ensuring their ability to drive to work and other essential services and to get proper identification needed to vote or open a bank account. No one should be prevented from accessing these services based on their race, color or national origin – Title VI is not optional.”

In late 2015, the State of Alabama announced that it planned to close or reduce service to 31 driver license offices throughout the state. Because its preliminary analysis of the closures suggested that the service modifications would disproportionately impact African American residents in the state’s “Black Belt” region, USDOT opened an investigation into whether this action violated Title VI, which prohibits entities that receive federal funding from discriminating on the basis of race, color or national origin in their programs and activities. The State of Alabama and ALEA, in particular, receive Federal assistance from the Department and, therefore, are subject to Title VI’s nondiscrimination prohibition.

UPDATE: See this NAACP-LDF release.

Share this:

ELB Quick Hits

Kevin J. Hamilton and Jonathan S. Berkon in WaPo oped: “The inconvenient fact is, actual voter fraud is vanishingly rare in American politics. The McCrory campaign backed more than 50 county-level “protests” alleging fraud, and almost all of them were unceremoniously dismissed by Republican-dominated election boards. But the so-called voter fraud taint lives on. Even in his brief concession speech, McCrory spoke of ‘continued questions that should be answered regarding the voting process.'”

Seth Barrett Tillman argues it is much more uncertain than Eisen, Painter, and Tribe say whether the President is bound by the Foreign Emoluments Clause.

Poliitco: Trump rewards big donors with jobs and access:

More than a third of the almost 200 people who have met with President-elect Donald Trump since his election last month, including those interviewing for administration jobs, gave large amounts of money to support his campaign and other Republicans this election cycle.

Together the 73 donors contributed $1.7 million to Trump and groups supporting him, according to a POLITICO analysis of Federal Election Commission records, and $57.3 million to the rest of the party, averaging more than $800,000 per donor.

E.J. Dionne argues against the Electoral College (and George Will’s defense of it) and for instant-runoff voting.

WaPo video: The civil rights case that haunts Donald Trump’s pick for attorney general

CPI reviews Election 2016 “by the numbers.”


Share this:

“Outsourcing Politics: The Hostile Takeovers of Our Hollowed out Political Parties”

Sam Issacharoff has posted this draft on SSRN (forthcoming, Houston Law Review).  Here is the abstract:

In 2016, both the Republicans and Democrats experienced efforts at hostile takeover of their presidential campaigns. On the Republican side of the ledger, the takeover was successful and ultimately yielded the presidency of Donald Trump. The Democratic effort, by a candidate who never actually joined the party, was beaten back only after a long and bruising primary campaign.

This article examines some of the sources of weakness of contemporary political parties that leave them less able to control their internal party selection processes, and that further hamper their ability to govern effectively. The key insight is taken from a view of the political party as a firm, following the pioneering work of Ronald Coase, and then to merge that onto the modern understanding of political parties as a precarious balance of the desires of the electoral faithful, the interests of the party apparatus, and the governance needs of the party’s elected officials. In effect, this paper joins the economic insights of Coase to the political analysis of V.O. Key.

Historically, American political parties managed divergent interests by control over three critical political functions: access to campaign funding, delivery of patronage governmental positions, and control over the nomination process. Each of these functions has been compromised by legal reforms over the past century. With the inability to internalize control over critical organizational functions, the various constituencies of the modern political party have the choice to “buy not make,” in the language of modern firm economics. Over time, the external option has changed the dynamic of politics, as evident in the last presidential election.

This article does not offer a simply story of redemption through reform. The political party of old would strike modern sensibilities as insufficiently transparent and inclusive. But in the absence of the coordinating role of the party, politics becomes more atomized, rhetoric hardens, and governance becomes more complicated.

Can’t wait to read this!

Share this:

Blogging Break and Happy Holidays!

Blogging will be light through New Year’s–-regular ELB News and Commentary mailings for Election Law listserv members will resume on January 3.

Once again it has been a busy year for the Election Law Blog and, with all the surprises of 2016, who knows what 2017 will bring?  I certainly didn’t expect to be covering so much on the Constitution’s Foreign Emoluments Clause of all things.

I was honored that the Election Law Blog remains in the ABA Journal‘s “Blawg 100” Hall of Fame.

2016 saw the publication of my new book, Plutocrats United. I had great discussions on a book tour in the winter and spring.

I have a number of projects in the works for 2017, and if all goes very well, I hope a new book will appear in the upcoming year.

In addition, the 6th edition of the Election Law casebook (with Lowenstein, Tokaji, and Stephanopoulos) will be out for the fall, as will the 4th edition of my Remedies: Examples and Explanations book.

I wish all my readers a safe, healthy, and happy 2017.

Below the fold you’ll find a list of articles and opeds that I’ve published (or that were released in draft) in 2016. I have also listed this year’s ELB podcasts. Thanks for reading (and listening)!

Continue reading Blogging Break and Happy Holidays!

Share this:

“Virtually no fraud in U.S. vote”

News and Observer editorial:

Despite their considerable victories in November’s elections, Republicans have lost badly on one issue – voter fraud.

Republican-led states, most notably North Carolina, have passed laws preventing people from voting in the name of another or registering people who are not eligible to vote, even as those restrictions made it harder or impossible for thousands of eligible voters to cast a vote. It’s a necessary protection, Republicans maintain. Indeed President-elect Donald Trump tweeted that “millions” of people voted illegally.

More than a month after the general election, a fine combing of the results shows what opponents of restrictive voting laws have always contended: voting fraud is a myth used to justify the suppression of voters likely to vote Democratic.

Share this: