Monthly Archives: March 2017

“Circuit judge rules against Virginia gerrymandering claims, says districts ‘debatable’”

WaPo:

Richmond Circuit Court judge has ruled against a group that argued 11 of Virginia’s legislative districts are so sprawling that they do not meet the constitutional requirement for compactness.

The ruling is a setback for efforts to claim that Virginia’s legislative districts have been gerrymandered to favor Republicans and disenfranchise black voters, who tend to vote Democratic, but the matter is likely to be appealed to the state Supreme Court.

You can find the 15-page court opinion at this link.

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“Law professor, former Montana justice say Gorsuch will back ‘dark money’”

Missoulian:

Anthony Johnstone – professor at the University of Montana’s law school –previously served as state solicitor and during that time wrote an amicus brief in the Citizens United case on behalf of 26 states asking the high court to keep unlimited corporate contribution out of elections.

He said Gorsuch is a “smart, articulate, interesting judge,” but added that the 10th Circuit  is “notoriously strict” about what states can do to regulate money in politics, and it’s safe to believe his position on the matter would be similar if he was confirmed.

“I think there is one important area in which he may actually diverge from Justice Scalia in a way that is even more encouraging to those who wish to inject unlimited sums of money in politics and that’s with respect to dark money,” Johnstone said.

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“Arresting the Deterioration of Democracy”

Dan Tokaji at the Take Care blog:

American democracy is in trouble.  We are deeply divided along lines of race, class, and party. Our political discourse has coarsened as the level of vituperative political rhetoric has intensified. Racism, sexism, and nativism have reappeared at a level that we have not seen in decades. There is not even consensus on basic facts. Our President repeatedly makes statements that are demonstrably false, including claims of widespread vote-rigging that have no evidentiary support, while railing against the press for exposing his mendacity.

Bad as things are, the challenges that our democracy now confronts are bigger than Donald Trump. He did not create the divisions that the 2016 election revealed, though he has surfaced, exploited, and deepened them. The consequence is not only to embitter Americans toward one another during election campaigns, but also to make governance much more difficult after the election is over.

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“Simple Advice for Democrats Girding for Gorsuch”

Thoughtful Jonathan Bernstein, taking a different position than I have:

And so barring a real compromise, my advice to Democrats would be pretty simple. Forget about long-term strategy and trying to figure out the ideal time to use their Supreme Court filibuster at its most useful moment but before it goes away. That’s just guesswork.

Instead, they should filibuster now if and only if they are confident that Neil Gorsuch would be worse than whoever Trump would replace him with. If so, they should make clear it’s no blockade or revenge for Merrick Garland; it’s a one-time objection to someone they believe is unusually far from the mainstream. And, if so, they should be prepared for the possibility that they might actually defeat Gorsuch and have to live with a replacement nominee.

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“Bannon won’t face voter fraud charges in Florida”

Orlando Sentinel:

President Donald Trump’s senior adviser Steve Bannon will not face charges related to his registration to vote in Miami despite spending most of his time elsewhere, South Florida prosecutors said Thursday.

The Miami-Dade County State Attorney’s Office concluded in a memo that there was not enough evidence to prove any crime. Bannon registered to vote in the county on April 2, 2014, after leasing the first of two houses in Miami’s Coconut Grove neighborhood, then switched his registration to the Sarasota area last year.

Bannon never voted in Miami-Dade County, the prosecutors said. They also said there was insufficient evidence to prove Bannon falsely claimed to reside in Florida on a voter registration form, which is a felony.

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What Happened to Paul Clement’s Representation of WI in Partisan Gerrymandering Case?

Back in February it was reported that the Wisconsin legislature was bringing in Paul Clement to work on the partisan gerrymandering case.

Last week the Wisconsin DOJ filed its jurisdictional statement (the equivalent of a cert. petition for an appeal).  No Clement.  Would be odd to have them come in later.

Update: Michael Li believes that Clement is representing the Legislature itself and not the state. That would explain it and makes sense.

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Student Election Law Symposium at Berkeley Law on April 7

Announcement via email:

 On Friday, April 7, ElectionLaw@Boalt (EL@B), a student group at Berkeley Law, is hosting its First Annual Election and Political Law Symposium, titled “The Future of Democracy.” The Symposium includes five events throughout the day that focus on political law, voting rights, and election administration. Our lunchtime event will be a workshop with the Voting Rights Institute, and our keynote panel includes a discussion with Justin Levitt and Ann Ravel.

There is no cost for attendance and registration is only required if you hope to receive CLE credit. Here is a link to our Facebook event.

9:30 – 10:30 Breakfast and Panel: Political Law in Theory and in Practice

1: Margaret Prinzing (Partner, Remcho, Johansen, & Purcell)

2: Jonathan Mintzer (Associate, Sutton Law Firm)

Moderator: Adam Lioz (Counsel, Demos)

Warren Room

10:30 – 11:45 Panel: Voting Rights and Community Empowerment

1: Pedro Hernandez (Deputy Director, FairVote California)

2: Mindy Romero (Professor, UC Davis)

3: Nicolas Heidorn (Legislative Director, CA Common Cause)

Moderator: Sophia TonNu (Law student)

Room 132

11:45 – 12:00 Break

12:00 – 1:45 Lunch and Workshop on

Voting Rights

1: Danielle Lang (Deputy Director of Voting Rights, Campaign Legal

Center)

2: Justin Levitt (Professor, Loyola; former Deputy Assistant Attorney

General, Civil Rights Division)

3: Mindy Romero (Professor, UC Davis)

Room 132

1:45 – 2:00 Break

2:00 – 3:15 Panel: Innovation in ElectionAdministration

1: Chris Jerdonek (Commissioner, SF Elections Commission)

2: Dean Logan (County Clerk, Los Angeles County)

3: Charles Belle (Director, Start Up Policy Lab)

4: Kim Alexander (President / Founder, California Voter Foundation)

Moderator: Meghan Fenzel (Law student)

Room 132

3:15 – 3:30 Break

3:30 – 5:00 Keynote: Future of National Election and Political Reform Efforts

1: Ann Ravel (Former Chairwoman, Federal Elections Commission)

2: Justin Levitt (Professor, Loyola; former Deputy Assistant Attorney

General, Civil Rights Division)

Discussant: Bertrall Ross (Professor, UC Berkeley)

Room 132

5:00 – 6:30 Reception

Freehouse

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Judge Gorsuch Gives Dissatisfying Written Answer About Citizens United and Expenditures

During the hearings, I criticized an answer Judge Gorsuch gave to Senator Leahy which suggested there was ample room for Congress to regulate expenditures after Citizens United. Derek Muller pushed back a bit but conceded “Judge Gorsuch’s answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate.”

Well Sen. Leahy followed up in a written question, and Judge Gorsuch continues to insist on spending limits being possible upon proof of quid pro quo corruption (which I think is essentially foreclosed by both Citizens United and the follow-up American Tradition Partnership). See page 65 of this document:

13. When I asked you about Citizens United and concerns about corruption, you said, “I think there is lots of room for legislation in this area that the Court has left. The Court indicated that if, you know, proof of corruption can be demonstrated, that a different result may be obtained on expenditure limits.” You then added, “And I think there is ample room for this body to legislate, even in light of Citizens United, whether it has to do with contribution limits, whether it has to with expenditure limits, or whether it has to do with disclosure requirements.” However, Citizens United states that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

In the Bullock case in 2012, the same five justices who decided Citizens United overturned a Montana Supreme Court ruling, and refused even to consider a record showing that “independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.”

a. What “room for legislation” were you referring to?

b. What types of expenditure limits would be consistent with Citizens United? Or did you misstate the holding of Citizens United?

RESPONSE: As we discussed at the hearing, the Supreme Court has long recognized Congress’s authority to legislate regarding campaign contributions, expenditures, and disclosures, subject to the constraints of the First Amendment. For example, in Buckley v. Valeo, the Court held that “contribution and expenditure limitations both implicate fundamental First Amendment interests,” and that such restrictions therefore must pass heightened scrutiny. 424 U.S. 1, 23 (1976). At the same time, the Court recognized that one governmental interest sufficient to justify restrictions on contributions and expenditures is the government’s interest in combatting quid pro quo corruption, or the appearance of such corruption. In Buckley, the Court upheld certain contribution limitations enacted by Congress as furthering the compelling interest in combatting corruption. Meanwhile, the Court concluded that certain limitations on independent expenditures by individuals did not sufficiently advance the compelling interest to justify the heavy restriction on speech. Citizens United expanded on this point, holding that certain “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 558 U.S. 310, 314 (2010). Although the Court in Citizens United found that the Government had not shown a compelling interest in the regulation of certain independent expenditures, the Court has not expressly foreclosed any regulation of political expenditures that might implicate the Government’s interest in preventing quid pro quo corruption, or the appearance thereof.The Supreme Court also has recognized Congress’s authority to enact disclosure requirements relating to the political process. In Buckley, the Court identified three governmental interests that can be served by disclosure provisions: (i) equipping the electorate with information as to where political campaign contributions come from and how they are spent; (ii) deterring actual corruption and avoiding the appearance of corruption by exposing large contributions and expenditures to publicity; and (iii) gathering data to detect violations of the contribution limitations. 424 U.S. at 66-68. The Court noted that “disclosure requirements – certainly in most applications – appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” Id. at 68. The Court upheld certain disclosure and disclaimer requirements in Citizens United. 558 U.S. at 319.

(my emphasis)

A far cry from “lots of room for legislation in this area” and still overly softened.

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“Is Bethune-Hill a Major Voting Rights Victory or the Next Northwest Austin?”

Michael Parsons:

I agree with Pildes and Elias that Bethune-Hill is a significant decision that is likely to have profound consequences. But is this big news also good news? We’ll see. Many leading authorities foresee the Supreme Court growing increasingly hostile to voting rights claims, and even the more liberal wing of the Court seems exhausted by the crush of complex and fact-intensive redistricting cases. Justice Kennedy’s opinion in Bethune will—despite his entreaties to the contrary—do nothing to stem this tide. In the end, whether Bethune-Hill is viewed as a major voting rights victory or the next Northwest Austin will depend on how VRA advocates and opponents use it—and with whom the Supreme Court ultimately agrees in the years ahead.

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“How States Could Force Trump to Release His Tax Returns”

I have written this piece for Politico. A snippet:

Now, though, a band of state lawmakers is attempting to succeed where so many others have failed. In at least 24 states, legislators have introduced bills that would force Trump (and all other presidential candidates) to disclose their tax returns in order to qualify for their states’ ballots in 2020.

There’s one big obstacle, though: Requiring presidential candidates to release their taxes as a condition of ballot access may not be constitutional. And even if it is, the Democrats sponsoring such legislation run the risk of major retaliatory measures being taken in Republican states…..

The idea of using ballot access to force politicians to do something they don’t want to do is not new—nor is the fight over the move’s constitutionality. The Supreme Court’s 1995 ruling in U.S. Term Limits v. Thornton held that Arkansas could not deny ballot access to congressional candidates who had served more than three terms or to Senate candidates who served more than two terms—measures the state had enacted to create congressional term limits. The Court held that the Constitution set the exclusive qualifications for running for federal office (including age and citizenship requirements), and that allowing individual states to impose addition qualifications “would erode the structure designed by the Framers to form a ‘more perfect Union.’” So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.

In light of such precedent, what could possibly be the basis for upholding a state law barring ballot access for presidential candidates who decline to release their tax returns? After all, Article II of the Constitution includes exclusive qualifications for the office of the president: The president must be a natural-born citizen who is at least 35 years old and has resided in the United States for at least 14 years.

The answer lies in another part of Article II—the part that received some important attention in Bush v. Gore, the Supreme Court decision that Democrats love to hate. Famously, the 2000 case between Republican nominee George W. Bush and Democratic nominee Al Gore effectively handed the election to Bush when it ended the Florida recount….

 

 

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