Monthly Archives: September 2018

“A Quiet Docket May Be Just the Right Medicine for the Supreme Court”

Adam Liptak for the NYT:

The current docket may appear a little sleepy. But additional cases could change that. Before the new term ends next June, the court may hear cases on partisan gerrymandering, whether a federal employment discrimination law protects gay and transgender people and the fate of a federal program that protects immigrants brought to the United States as children.

There is good reason to think that a Justice Kavanaugh, or any other justice appointed by Mr. Trump, might vote differently from Justice Kennedy on all three issues.

“We are headed for a whole new world,” Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University, said at a recent news briefing. “The only real questions are how far are we going to go and how fast are we going to get there.”

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“Studies: Voter ID tied to lower turnout in Wisconsin”

Wisconsin Center for Investigative Journalism:

A UW-Madison study commissioned by Dane County Clerk Scott McDonell in 2017 estimated that thousands of registered voters in Dane and Milwaukee counties were deterred or prevented from voting because of the photo ID requirement in the 2016 presidential election — a situation that more heavily affected low-income people and African-Americans. The survey was mailed to 2,400 registered voters; 293 were returned.

Based on the sampling weight, UW-Madison political science professor Kenneth Mayer concluded that between 11,701 and 23,252 people did not vote due to confusion over voter ID requirements or lack of proper identification.

Trump won Wisconsin by 22,748 votes.

Mayer’s conclusion was challenged by a free market, limited government legal group, which contended there was no proven linkage between the photo ID requirement and the election results. Will Flanders, research director at the Wisconsin Institute for Law and Liberty, said the study “pushed a narrative” of voter suppression but did not actually prove it.

“The most this survey can claim to prove is that the administration of the law could have been improved or that the candidates could have run better ground games,” Flanders wrote.

But, with the 2018 general election approaching, stories like Brooke Evans’ show how easily confusion about voting can jeopardize voting. If it were not for her own efforts to help homeless students, Evans said, she herself might not have been able to vote.

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“North Dakota Voters Appeal to US Supreme Court for Protections”


On September 27, the Native American Rights Fund(NARF), on behalf of its clients, a group of Native American voters in North Dakota, filed an emergency appeal to the United States Supreme Court. They are asking the court to stay a recent Eighth Circuit decision that allows the State of North Dakota to impose new voter identification and residential address requirements in the upcoming election, even though early voting already has begun. Earlier this week, a divided panel of judges from the U.S. Court of Appeals for the Eighth Circuit removed a lower court’s order, which was put in to place in April of this year to protect Native American and other voters in North Dakota. The order barred the enforcement of a voter ID law that the District Court identified as discriminatory and unconstitutional. (Read more about the case.) This week’s order from the Eighth Circuit allows North Dakota to begin using the discriminatory new law in the upcoming election. It not only changed the rules of the election after early voting had begun, it created a situation where several thousand people in North Dakota, who are qualified to vote in North Dakota, will be unable to vote in this year’s election simply because they do not have a residential address or because they lack the documentation and/or funds to obtain the required voter identification.

You can find the emergency application here.

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“Judge Denies Trump’s Request to Dismiss Emoluments Lawsuit”


Congressional Democrats cleared a key hurdle on Friday in their effort to sue President Trump over whether he is illegally profiting from business dealings with foreign governments, in a case that could give the lawmakers access to the Trump Organization’s finances.

Judge Emmet G. Sullivan of the United States District Court in Washington ruled that the lawmakers have standing to sue Mr. Trump for accepting payments and other benefits from foreign governments without obtaining permission from Congress, which would violate the Constitution’s clause that bars federal officials from accepting gifts, or emoluments, from foreign powers without congressional approval.

Judge Sullivan dismissed the Justice Department’s claim that the legislators did not have standing to sue and denied its request to dismiss the lawsuit.

“The court finds that the plaintiffs have standing to sue the president for allegedly violating the Foreign Emoluments Clause,” Judge Sullivan wrote in his opinion. Mr. Trump “has neither asked for their consent nor provided them with any information about the prohibited foreign emoluments he has already allegedly accepted.”

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Today’s Must Read: Adam Liptak, “A Bitter Nominee, Questions of Neutrality, and a Damaged Supreme Court”

Adam in the NYT:

His performance on Thursday, responding to accusations of sexual misconduct at a hearing of the same Senate committee, sent a different message. Judge Kavanaugh was angry and emotional, embracing the language of slashing partisanship. His demeanor raised questions about his neutrality and temperament and whether the already fragile reputation of the Supreme Court as an institution devoted to law rather than politics would be threatened if he is confirmed

“This whole two-week effort has been a calculated and orchestrated political hit,” he said, “fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

In a sharp break with decorum, Judge Kavanaugh responded to questions about his drinking from two Democratic senators — Amy Klobuchar of Minnesota and Sheldon Whitehouse of Rhode Island — with questions of his own about theirs. He later apologized to Ms. Klobuchar….

Chief Justice Roberts spoke in the wake of a series of confirmation hearings tinged with partisanship but nothing like the all-out war the American public saw on Thursday. If the chief justice feared that the court’s reputation could be damaged by them, he has reason to be terrified now.

“We don’t work as Democrats or Republicans,” he said in the 2016 remarks, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

As it happens, a reliable way to predict how justices will vote in highly charged cases is to check the political party of the president who appointed them. There was one exception to that rule in recent decades: Justice Anthony M. Kennedy could be unpredictable.

My only quibble here is with the use of the word “decades.”  Souter and Stevens, for example, also did not follow what would become the Republican party line.

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“Political Fairness in Redistricting: What Wisconsin’s Experience Teaches”

Judge Lynn Adelman has posted this draft on SSRN (forthcoming University of Memphis Law Review). Here is the abstract:

In this paper, to be presented at an election law forum sponsored by the Memphis Law Review and published in a forthcoming issue of the Memphis Law Review, I argue that the law and practice of redistricting should address the question of political fairness. I base my argument on the history of redistricting in Wisconsin which I discuss at some length. Although under the Wisconsin Constitution redistricting is a legislative responsibility, in every Wisconsin redistricting since the 1950s lawsuits were started and courts became involved. Moreover, all of the maps drawn by courts, one by the Wisconsin Supreme Court and three by three-judge federal courts, were politically unfair. This was true whether or not the courts that drew the maps chose to ignore or consider political factors. The fact is, from a political standpoint, none of the courts knew what they were doing.

I contend that state legislatures should establish a standard of political fairness with which redistricting plans must comply. In the absence of such legislation, entities that engage in redistricting, such as courts or commissions, should on their own initiative endeavor to create politically fair plans and utilize all available tools including modern computer technology to assist them. A politically fair plan is one that reflects the political complexion of the state. In other words, the composition of legislative districts should be based on the preference of the state’s voters. Thus, if a state is 53 percent Republican, then 53 percent of its legislative districts should at least lean Republican, and if a state is 51 percent Democratic, then 51 percent of the state’s legislative districts should at least lean Democratic.

In order to determine the political make up of a state, it is essential to rely on a sufficient number of elections held over a sufficient period of time and to avoid elections that are overly determined by candidate specific factors. Thus, a redistricting entity should calculate the percentage of votes received by candidates of both major parties in the five preceding presidential or gubernational elections and average them. This will create an accurate political profile of the state. This process will enable the redistricting entity to establish a standard of political fairness that will govern drawing the map. Under the standard, each party is entitled to a percentage of legislative districts equal to the average percentage of votes it received in the five elections.

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“Tom Steyer to Spend Millions Backing Andrew Gillum in Florida”


Tom Steyer, the billionaire investor and Democratic activist, has directed his political operation to spend more than $5 million aiding Andrew Gillum’s campaign for governor of Florida, an enormous investment that will test whether fired-up Democratic voters can flip control of a state long dominated by Republicans.

The campaign between Mr. Gillum, who is the progressive mayor of Tallahassee, and Representative Ron DeSantis, a conservative lawmaker who has aligned himself closely with the White House, has become one of the clearest contests of strength nationwide between the Democratic Party’s rising liberal wing and the Republican Party as President Trump has reshaped it.

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