… or, how to escape the uneasy mix of race and party in court challenges to partisan redistricting, as suggested by Rick Hasen of the Election Law Blog in this article posted at SSRN. Hasen suggests three ways to approach the issue of race in gerrymandering:

1. Race or party: In this approach, a court’s task is to decide whether a case is “really” about race rather than party, with certain legal consequences flowing from the determination. Some of the racial gerrymandering cases fit into this category. Based on Easley v. Cromartie,  courts need to decide whether race or party predominated in drawing district lines. If race predominated, the lines are likely impermissible.

2. Party as a proxy for race, equating proof of discriminatory partisan intent with proof of discriminatory racial intent. The Fourth Circuit used this approach in a recent case involving the constitutionality of a major North Carolina voting law which imposed a strict voter identification requirement and made cutbacks to other voting rules. The Court held that the state legislature acted with a racially discriminatory intent because legislators relied upon racial data to achieve partisan ends in designing this law, and this reliance made party discrimination a form of race discrimination.

3.  The party all the time approach: courts shift toward policing partisan election laws more directly. It is not that race does not matter on the ground in states and areas with conjoined polarization, but that a legal focus on the racial aspects of the dispute obscures rather than elucidates the stakes and the appropriate remedies. A move toward party all the time would have courts focus on partisan gerrymandering and dilution in the redistricting context, and on partisan intent and effect as to voting restrictions.

    

Florida’s official report on “non-valid” voting, required by law since the infamous hanging chad debacle of 2000, found nearly 65,000 Florida voters left their ballot blank, also known as an “undervote,” while more than 82,000 wrote the name of someone who did not qualify to run for president in Florida. The total, 161,000 votes, is more than Donald Trump’s margin of victory – 131,000 — in the state. Secretary of State Ken Detzner’s office concluded the spike in “non-valid votes” was not the result of voter confusion or problems with voting equipment.

Taken with the extraordinary rate of disenfranchisement in the state – some 1.7 million Florida citizens, or 10.43% of the state’s voting-age population, are disenfranchised because of a criminal conviction – its food for thought looking ahead to 2020. See: Floridians for a Fair Democracy

That’s the summary of the Trump immigration order by Benjamin Wittes of the Brookings Institute in “Lawfare” today. Wittes dissects the drafting of the purpose clause, the lack of connection between the stated purpose and the order itself, and a number of other inconsistencies and mysteries including:

-Sec. 3(c) bans “entry”—which to the best of my knowledge has had no meaning in the Immigration and Nationality Act (INA) since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. Pre-IIRIRA law did use the term “entry,” but that is no longer the case.

-Section 3(g) talks of waivers on a case-by-case basis for people who are otherwise denied visas or other benefits under the immigration laws pursuant to the order. If a person needs a waiver to obtain “other benefits,” does that mean that nationals of the seven countries are denied any benefit under the INA without a waiver, benefits such as naturalization, adjustment of status, or temporary protected status, even if they are already in the US?

-On its face, the order bars entry of both immigrants and non-immigrants. Again, as entry is not defined, and no one was given any time to draft implementing guidance or to clarify any points, it’s no surprise that Customs and Border Protection doesn’t seem to know how to apply it to lawful permanent residents (LPRs). The INA, at section 101(a)(13)(C), says that green card holders will not be deemed as seeking admission absent the factors enumerated therein—factors that do not include an executive order banning entry. Yet Reuters and The Guardian are both reporting quotations from a DHS public relations official, stating that the order does apply to LPRs.

Yesterday’s excellent article by Ilya Somin in the Washington Post clearly explains the constitutional problems with the new president’s executive order on sanctuary cities:

• Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both separation of powers and federalism.

• Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by ordering them to enforce federal law. Such policies violate the Tenth Amendment.

A Federal Court of Appeal in California heard oral argument this month in the case of  Dominic Hardie, a basketball coach with a 15-year old conviction for possessing less than a gram of crack cocaine. A former college basketball player, Hardie served no time for the plea in 2001, and since has gotten a degree in social work, worked as an investigator for the child protective services agency in Texas, and started a girls basketball program in Houston that has sent 30 girls to college on scholarships.

But in 2012, the NCAA enacted a ban on anyone with a felony conviction participating in an NCAA-certified tournament, such as those where Hardie’s Triple D Hoops AAU team would play in front of Division 1 coaches. Now Hardie is alleging the ban has a disparate impact on African Americans, and challenging it as a violation of the Civil Rights Act.

Hardie himself commented on the oral argument: “Hearing a judge say, ‘That’s a penalty you’re going to have to pay for the rest of your life,’ that’s hard to hear. That’s why I’m fighting it. We’re talking about mass incarceration and disparate impact. Hopefully we can change these prehistoric laws which pretty much everybody has concluded are ridiculous.”

The Supreme Court today declined to review the Texas voter id case, but Chief Justice Roberts suggested future review when the case is done in the lower court, and when, it is likely, there will be five conservative votes yet again on the Supreme Court:

“The Texas officials who are defendants in this lawsuit have petitioned for certiorari. Their petition asks the Court to review whether the Texas Legislature enacted SB14 with a discriminatory purpose and whether the law results in a denial or abridgment of the right to vote under §2. Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration. As for the §2 claim, the District Court has yet to enter a final remedial order. Petitioners may raise either or both issues again after entry of final judgment. The issues will be better suited for certiorari review at that time.”

It seems likely that in this Texas case and in the North Carolina voting case (cert. petition still pending), the Court will eventually limit Section 2 of the VRA, making it harder to challenge voting restrictions laws and allowing more Republican legislatures to enact similar laws.