Monthly Archives: September 2017

City of Pasadena Texas, Under Federal Voting Rights Preclearance for Intentional Racial Discrimination, Poised to Drop Appeal UPDATED AND CORRECTED

UPDATE to the post below: The information I had was incomplete.  This settlement still must be approved twice by the Pasadena City Council, which likely will not happen until some time in November.


City will also pay $1 million (presumably in fees). Details to come. (Updated news story).

This is a big deal.

The findings of intentional discrimination against Latino voters were stark.

It was unclear what the 5th Circuit was going to do in this appeal, but the facts were pretty damning.

Now the ball looks like it will be in the Trump DOJ’s court to police Pasadena’s redistricting efforts.

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“Litigating the Line Between Past and Present; The Supreme Court is about to take up another blockbuster voting rights case. At its core is a struggle over the limits of history.”

Sara Mayeux for Bunk History:

How past is the past? That quandary, among the definitional puzzles of the human condition, is also the crux of the voting rights battles currently rending statehouses and federal courts around the country. Election law is an intricate tangle of constitutional doctrine, federal statutes and regulations, state laws and procedures, and local practices. It’s among the most complicated of legal specialties. And yet the blockbuster voting rights cases that federal courts in North Carolina, Texas, Wisconsin, and elsewhere have decided in recent years—one of which, Gill v. Whitford, the Supreme Court will hear on October 3—are not, fundamentally, technical legal disputes. Fundamentally they are philosophical fights about the burdens of history.

Consider Shelby County v. Holder, the 2013 Supreme Court decision that partially invalidated the Voting Rights Act. Congressman John Lewis implored the Court to save the Act in a powerful amicus brief. Quoting from Lewis’s memoir, the brief detailed the 1965 march across Selma’s Pettus Bridge, which ultimately impelled the Act’s passage, and in particular, the moment in the course of that march when an Alabama state trooper with a billy club cracked open the left side of the young John Lewis’s skull: “Bleeding badly and barely hanging onto consciousness,” Lewis “tried to stand up from the pavement only to find himself surrounded by women and children weeping, vomiting while ‘men on horses [moved] in all directions, purposely riding over the top of fallen people, bringing the animals’ hooves down on shoulders, stomachs, and legs.’”

Apparently unmoved by this image, a 5-4 majority of the Court joined the opinion of Chief Justice John Roberts, which depicted those men and horses not as still riding in the minds of those who saw them but rather as neatly suspended in a hermetically sealed “before” to which the present world had little connection. “History did not end in 1965,” Roberts insisted. “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

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“Federal authorities didn’t tell Wisconsin for a year about Russian involvement in hacking attempts”

Milwaukee Journal-Sentinel:

Wisconsin officials for a year were not told about specific attempts by the Russian government to gain access to the state’s voter registration database, the leaders of the state Elections Commission said Friday.

Friday’s statement from the commission comes after a week of conflicting reports about what Russian agents attempted to do and when state and federal officials knew about them.

\Wisconsin systems were targeted in July and August 2016. Wisconsin officials were aware of the attempts but not that Russian government actors were behind them, according to Friday’s statement and public records. In one of the incidents, the attack was targeted at a different state agency, not the Elections Commission.

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A few final notes about the gerrymandering articles I flagged over the last few days: First, the Election Law Journal (where three of the pieces are forthcoming) has generously agreed to make them available free of charge. The McGhee article is here; the Chen article here; and the Caughey et al. article here.

Second, all of the authors worked on amicus briefs in Whitford that built on the pieces I cited. McGhee’s brief is here; a brief representing Chen and other political geographers is here; and a brief discussing the findings of Caughey et al. is here.

And third, in a recent paper of mine, I confirmed the findings of Caughey et al. at the congressional level. I determined, that is, that a pro-Democratic (pro-Republican) efficiency gap leads to a congressional delegation with a significantly more liberal (conservative) ideological midpoint, even holding constant voters’ preferences. The key chart is below; it shows large differences in representation, for states with similar electoral environments, based on whether their congressional plans exhibit pro-Democratic, pro-Republican, or more neutral skews.

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“Slashing corporate taxes opens floodgate on ‘dark money’ ads”

Ezra Reese oped:

Political organizations very rarely withhold donors currently because the 35 percent tax is simply too high. A cut in that rate to 20 percent, however, would lead a number of political organizations and their donors to conclude that withholding the names of at least some donors would be worth the price. The result would be political organizations that raise unlimited, undisclosed funds, pay a relatively small tax on those funds, and then spend all remaining funds on political ads.

This loophole could be closed by an FEC ruling that political organizations engaged in federal electoral activity should register and report under federal campaign finance law (which unlike the IRS system, requires mandatory reporting enforced by both civil and criminal penalties). But at the FEC, trends are cutting the other way, with half the current commissioners believing that a political organization need not register and report unless it is spending most of its funds on communications that “expressly advocate” for or against federal candidates, a standard that many organizations are deft at avoiding.

A large cut in the corporate rate, without action to preserve that rate as applied to political spending, will create a roadmap to raise unlimited amounts of undisclosed money, spend it all on political activity, and pay only a minimal tax. The result would be an eclipse on the sunlight of public disclosure of political spending.

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Is Justice Gorsuch in Play in Ohio Voter Purge Case?

Sam Bagenstos, in a fine amicus brief for former DOJ officials, makes a very strong textualist argument (along with other arguments) that Ohio’s voter purge process violates the plain meaning of the NVRA and HAVA.  (Sam makes other persuasive arguments too, including pointing out that the current Trump Administration’s read of the statute conflicts with more than two decades of earlier consistent interpretation by DOJ.)

I’ll be watching closely to see whether Justice Gorsuch, who otherwise I would expect to have sympathy with Ohio’s position, follows the close textual reading in Sam’s brief.

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Ned Foley on Why Oral Argument Might Matter in WI Partisan Gerrymandering Case, and Some Questions


It is often said that oral arguments rarely make a difference to the outcome of a Supreme Court case, that the Justices’ minds are essentially made up before oral argument begins.

But Gill v. Whitford, the blockbuster partisan gerrymandering case from Wisconsin, looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.

There are two reasons for this.   First, Justice Kennedy—whose vote is widely understood as crucial to determining whether or not the Constitution is interpreted as containing a judicially enforceable constraint on the deliberately partisan manipulation of legislative districts—has made clear from his own previous opinions on the topic that he is genuinely torn between two opposing view: on the one hand, the need to identify some such constraint; and on the other, the inability to do so thus far. Even if Justice Kennedy goes into Tuesday’s oral argument tentatively leaning towards one side or the other (having read all the briefs filed in the case), there is a significant possibility that what is said during the argument could push him back in the opposite direction.   There is little doubt that even now, so far into the litigation of this issue, Justice Kennedy is still very much open to persuasion on this issue. It is, of course, the task of the Supreme Court advocate to be persuasive when and where the opportunity exists, and there may be moments in Tuesday’s argument—in responding to one of his questions, or even one of another Justice’s—when the advocate can make a point that either dislodges a previous expectation based on the reading of the briefs or instead solidifies a tentative understanding.

The second reason is that, even after all the briefs (or maybe because of all of them), there is still much uncertain and unsettled about the litigation of monumental lawsuit and thus important points that the oral argument can clarify or pin down in ways that might be helpful to one side or the other. For example, how important is the so-called “standing” issue, upon which the state of Wisconsin places much emphasis in its briefs, but which received relatively less attention in the district court (and virtually no discussion in the media’s consideration of the case)? In other words, could this particular lawsuit fail not because of an invalid theory on the merits of the claim, but because the plaintiffs did not identify specific districts that were harmed as a result of the statewide gerrymander (and thus did not attempt to link specific plaintiffs with a district-specific injury, even if the unconstitutionality of the gerrymander had a statewide character)?

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“Why Retirements May Hold the Key in Whether Republicans Can Keep the House”

Nate Cohn for NYT’s The Upshot:

Democrats often lament that the House electoral playing field is stacked against them, but that’s not their only problem.

The Republican structural edge in the House is fully realized only with the added advantage of incumbency. The Democrats would be overwhelming favorites to retake the House in this political environment if no incumbents chose to run for re-election, even with all of the burdens of gerrymandering and geography.

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“Menendez’s Actions on a Donor’s Behalf Were ‘Unusual,’ Witnesses Say”


In one instance, Mr. Menendez, according to testimony, met with two former high-ranking Democratic senators — Tom Harkin of Iowa and Harry Reid of Nevada — to discuss a Medicare billing dispute that would have cost Dr. Melgen millions of dollars. In a second, prosecution witnesses said he pressured the State Department and Customs and Border Protection officials to help Dr. Melgen, who owned a cargo-scanning equipment company, maintain his business’s presence at ports in the Dominican Republic.

In particular, prosecutors said, Mr. Menendez urged Customs and Border Protection to stop a donation of cargo-scanning equipment from the United States government that would have cut into Dr. Melgen’s profits.

“It’s somewhat unusual to have a senator or a member of Congress to ask us to stop — in a way, stop doing our law enforcement mission,” Stephanie Talton, a former congressional liaison for Customs and Border Protection, testified. Ms. Talton had received an email from an aide to Mr. Menendez asking her to “please consider holding off on the delivery of any such equipment until you can discuss this matter with us.”

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“FEC fines contractor that gave pro-Clinton super PACs illegal cash”


The Federal Election Commission has fined Boston-based Suffolk Construction Co., a federal government contractor, for making illegal contributions to a pro-Hillary Clinton super PAC, according to a letter from the agency.

The $34,000 settlement between the FEC and Suffolk appears to mark the FEC’s first penalty against a government contractor for illegally contributing money to a super PAC — a kind of political group that may raise unlimited amounts of money from corporations and unions.

The Center for Public Integrity first reported in April 2016 that Suffolk Construction had made a pair of $100,000 contributions to Priorities USA Action, the main super PAC supporting Clinton’s 2016 Democratic presidential campaign. Campaign finance reform groups Democracy 21 and the Campaign Legal Center filed a joint complaint with the FEC in July 2016, based in part on the Center for Public Integrity’s previous reporting.

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The Connection Between Voting Rights and Sports Betting?

Ryan Rodenberg and John Holden have posted this draft on SSRN.  Here is the abstract:

We find PASPA’s partial and non-uniform ban on state-sponsored sports wagering to run afoul of the equal sovereignty doctrine’s general constraints as set forth in Shelby County and Northwest Austin. PASPA also fails equal sovereignty scrutiny for two other narrower reasons. First, for a law motivated to address a “national problem” with no geographic borders, PASPA’s various carve-outs for no fewer than nine states are irrational. Not only does the discrimination manifest itself between grandfathered states and non-grandfathered states, but there is also an unconstitutional differentiation between Nevada and the other exempt states. Second, PASPA’s grandfathered exceptions are perpetual in nature, making them more suspect than the temporary provisions of the Voting Rights Act ruled unconstitutional by the Supreme Court in Shelby County. If the equal sovereignty question is presented to the Supreme Court in the current Christie II litigation or a later sports gambling-specific dispute, the appropriate remedy would be to sever out § 3704’s differential grandfather clause, not eviscerate § 3702’s blanket ban. Such a remedy would be an unwelcome result for New Jersey and Nevada, but a correct application of the equal sovereignty doctrine vis-à-vis PASPA.

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