Monthly Archives: April 2018

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.

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“A dubious anniversary for the Federal Election Commission”

CPI:

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.

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“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.”

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

WaPo:

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.

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“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.

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“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.

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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.

 

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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.

 

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

BuzzFeed:

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.

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

IndyStar:

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.

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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.

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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.]

 

 

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