Loyola Professors Commenting on SCOTUS News

Loyola Law School, Los Angeles professors are commenting on the news arising out of the U.S. Supreme Court today:

GRANT OF CERT

Gill v. Whitford (Wisconsin gerrymandering case)

• Professor Jessica Levinson: Levinson teaches Money, Politics & the Supreme Court and serves as president of the Los Angeles Ethics Commission. 
• Professor Justin Levitt: Levitt is a national renowned scholar on redistricting who runs the website, All About Redistricting. 

OPINIONS

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (civil procedure/personal jurisdiction)

• Professor Adam Zimmerman: “In terms of impact, I think this case is kind of the sleeper case of the term,” says the complex litigation expert and Gerald Rosen Fellow. “It's going to impact thousands of cases in state MDLs, class actions and, I think, federal MDL litigation (which comprises nearly 40% of all cases in our federal courts.)” Zimmerman’s immediate reaction to the opinion is available online via @Adam_Zimmerman. 
• Professors Allan Ides & Simona Grossi: The civil procedure experts filed an amicus brief in the case (below). 

Matal v. Tam (The Slants case; disparagement clause in trademark approval/First Amendment)

• Professor Justin Levitt: This case decides that the Federal Trademark Office can't refuse to register a trademark that may ‘disparage’ or ‘bring ... into contemp[t] or disrepute’ individuals or groups,” writes the constitutional law expert. “The case follows a line of recent cases looking very skeptically at government laws or policies that burden speech -- and an even longer line of recent cases looking even more skeptically at government laws or policies that treat some private speech worse than others based on its content or viewpoint. The Court divided 4-4 on the precise legal framework, but all 8 Justices hearing the case (Justice Gorsuch wasn't yet on the Court when this was heard) agreed that the statute prohibiting registration of disparaging marks was out of bounds, and that the question wasn't particularly close. This impacts not only The Slants (which will be able to get their name trademarked), but also some other prominent and very controversial brands, like the Washington Redskins, whose trademark had been canceled as ‘disparaging’ in June 2014.” 
• Professor Jennifer Rothman: “The decision is no surprise. The 8-0 decision -- that Gorsuch did not participate in -- holds that the bar to registering trademarks that are deemed ‘disparaging’ or offensive is struck down. This means that The Slants can register their mark for their band, even if some view it as disparaging or insulting to Asian people, and it also means that the Washington Redskins marks which were cancelled for the same reason will be reinstated. The decision also likely eliminates the bar on registering marks that are scandalous or immoral."

Citizens redistricting panels survive test

By Professor Jessica Levinson

This op-ed originally appeared in the Sacramento Bee. Levinson has also provided related commentary to the San Francisco Chronicle, Los Angeles Times, AZ Central and NBC 4-Los Angeles.

The U.S. Supreme Court just saved independent redistricting commissions, but a political earthquake could be coming next term.

Writing for a 5-4 majority, Justice Ruth Bader Ginsburg on Monday upheld the ability of citizens commissions to draw congressional district lines. At issue was the elections clause of the U.S. Constitution, which provides that the “Legislature” in each state shall prescribe the “times, places, and manner of holding elections for senators and representatives.”

The majority essentially found that the word “Legislature” includes not just elected lawmakers but also citizens acting in a legislative capacity, for instance when exercising their rights under initiatives or referendums to enact or repeal laws that affect congressional elections.

Had the court ruled the other way, it could have thrown the validity into question of other numerous other laws passed via direct democracy that affect congressional elections – open primaries, voter identification requirements, vote by mail provisions and early voting. In addition, California’s redistricting commission, likely legally indistinguishable from Arizona’s commission, now appears safe from this type of legal challenge. This ruling maintains the status quo throughout the country.

Read the complete op-ed.

A Step Forward to Slay the Gerrymander

By Professor Justin Levitt

In the early days of the Republic, Patrick Henry and James Madison were bitter political opponents. Henry thought that the new Constitution jeopardized states’ rights and individual liberties, and blamed Madison. When Madison sought a seat in the new Congress he had created, Henry sought revenge. He reportedly convinced Virginia’s legislature to draw their very first congressional districts to hurt Madison at the polls.

The burst of partisan pique would feel quite familiar today. For 200 years, American politicians have drawn election district lines to punish their enemies, favor their friends, and lock in their own job security at the voters’ expense. When incumbents gerrymander districts, the public’s partisan preferences are distorted, and communities are carved into electoral bits, to give those in power the best chance of staying in power. We are the only industrialized democracy that permits this conflict of interest.

And New York voters have a rare chance to lead the way out.

Proposal 1 on the November ballot would change the way that New York draws district lines. But more important, it could also change the model for change, across the country.

Scholarship in the Swirl of an Election

By Associate Professor Justin Levitt

Every four years, the presidential election contest dominates the news, bringing with it not only daily policy and political scuffles, but plentiful skirmishes over the rules for conducting elections and persuading the electorate. Every 20 years, the presidential election roughly coincides with the decennial redistricting process, as political lines are drawn to restructure representation across the country. The year 2012 represents one of those comet-like convergences, where the full infrastructure of democracy is not only buffeted by winds of change but becomes suddenly, fleetingly, salient -- and new and old media alike examine every development in painstaking detail.

In such an environment, just as vulcanologists flock to the latest eruption, election law scholars tend to find the daily developments irresistible. We rationalize the engagement by understanding that we can offer context and texture and a bit of both legal and historical perspective. But when we're most honest with ourselves, perhaps it's just that we want to be where the action is, in a field to which we've devoted our professional lives. Your Loyola election law faculty aren't immune -- both Jessica Levinson and I have attempted to engage the day-to-day in a way that we hope contributes more good than harm.

But perhaps particularly in the swirl of an election season, it's also tremendously useful to be able to step back as well. Which is why I'm grateful for two opportunities this past week to think more deeply about election law scholarship that's not dependent on yesterday's headline.

On Thursday, Josh Douglas (Kentucky), Derek Muller (Pepperdine), and Jessica Levinson (Loyola) joined me at Loyola for a small junior scholars' gathering on the law of democracy, taking advantage of Josh's trip to southern California. The research, though preliminary, promises to be both bold and diverse, encompassing an investigation of civil pleading pertinent to election litigation, an examination of the curious constitutional structure of candidate qualifications, and a reconceptualization of the fundamental struggle at the heart of campaign finance law. I learned quite a bit, and am grateful for my colleagues' critique of my own early thoughts.

Then, on Friday, I took Rick Hasen up on a gracious offer to join him at UC Irvine for an election law symposium featuring many of my heroes in the field. The symposium was titled "Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance." The papers and discussants' remarks represented a broad array of outlook and methodology, from the rigorously empirical to the richly philosophical to the painstakingly historical. The room was super heated, but the discussion was coolly engaging; proceedings are here for those who wish to see for themselves. I'm delighted to have had such spectacular fora to develop long-term research in the midst of the madness of the moment.

The Real Potential in Albany's Mishap of the Moment

By Associate Professor Justin Levitt

The lines of our election districts lie at the core of our democracy. They decide whose voices are represented, and to what degree. New York's districting process rarely serves as a model of civic virtue. But now, there's an unusual chance for change.

In Albany, legislators choose their voters more than the other way around. It is a Twilight Zone process; incumbents purport "To Serve the Public," and cycle after cycle, we discover it's a cookbook that they're using.

Where legislators are in charge of drawing their own lines, there is a natural tendency to choose private and partisan self-interest over the public interest. If you had the capacity to ensure your own job security, no matter how well you performed ... wouldn't you do the same?

Both Democrats and Republicans have used this process to their advantage, and to the detriment of voters of every stripe, in New York no less than elsewhere. The current process is bogged down as incumbents bicker over who can grab more for themselves. Governor Cuomo has boldly tried to break the cycle, by threatening a veto of the legislature's latest, something predecessors have been unwilling to do.

The veto threat is right. But maybe, just maybe, not the veto itself. A veto would likely throw matters definitively to the courts, which is a slow and expensive route -- and involves a responsibility the courts don't want. Just look at the ongoing mess in Texas.

Redistricting: Should Valley Districts Completely Stay within the Valley?

By Associate Clinical Professor Jessica Levinson

This piece originally appeared on KCET.org.
Redistricting seems to be the one governmental process that can unite members of both aisles. And by unite I mean join together in fighting each other tooth and nail. I have previously detailed the numerous fights -- both at the courthouse and in the ballot box -- surrounding the newly drawn state legislative lines. Now comes word that a fight is brewing on the local level as well.

Valley leaders are asking for the creation of new city council maps. Specifically, representatives for the San Fernando Valley are urging the creation of six districts completely contained in the Valley. These districts would not stretch over the hill. Currently there are seven city council districts in the Valley. So why would they want fewer districts? Two of those districts stretch over the hill into West Los Angeles and Hollywood.

The creation of six districts totally contained in the Valley would therefore increase the voice of those living, as we say in L.A., "over the hill." This strategy makes sense, at least to those living in the Valley. A representative who has to consider the needs of constituents on both sides of the hill would likely be be less attuned to the needs of constituents in the Valley than someone representing a district wholly contained in the Valley.

To understand why the creation of districts wholly contained within the Valley (as opposed to keeping the status quo, which includes districts on both sides of the hill) would give Valley residents a greater voice in Los Angeles politics one must to some extent look into the psyche on Angelenos. Certainly there are far too many things that divide us -- because of the city's layout, we share few common experiences. No doubt one of greatest dividers in Los Angeles is geography. We divide ourselves between east and west and certainly between north and south. Often we divide (and to a certain extent define) ourselves by where we live. In this debate the greatest divider may be "the hill" which separates the Valley from the rest of Los Angeles. There are, no doubt, places in Los Angeles where you can hear discussions about "eastsiders," "westsiders" and "Valley dwellers."

It remains to be seen whether Valley leaders will win and whether there will be six city council districts there. It does seem clear that many people who live in the Valley do not believe that they share common interests with non-Valley dwellers and mistrust public officials who say they will represent both sides of the hill.

The Los Angeles City Council will need to vote on final maps by July 1.

Professor Justin Levitt Testifies Before Senate Judiciary Committee on New State Voting Laws

Justin Levitt, Associate Professor of Law, testified in Washington, D.C. before the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Human Rights.

The hearing examined new state voting laws that threaten to suppress turnout nationwide.

Professor Levitt is an expert on election law, and author of A Citizen's Guide to Redistricting. He also launched the website, All About Redistricting.

Dear Californians, You Don't Matter

By Visiting Associate Clinical Professor Jessica Levinson

This op-ed was originally published by KCET.

Well, at least when it comes to picking the next leader of the free world. In a previous post, I queried, "When it Comes to Presidential Politics, Does California Even Matter?" Democrats count on (take for granted) the Golden State and its 55 electoral votes--one-fifth of the total votes needed to win the presidency. Candidates visit our state to raise money, but not much else. Presidential campaigns are won and lost in the battle ground states. California is decidedly not such a state.

Read the complete post at KCET.org.

Re-Shaping California's Political Landscape One Line at a Time

This op-ed was originally published by the Daily Journal.

By Associate Clinical Professor Jessica A. Levinson

The political blood sport, commonly known as redistricting, hit a fever pitch on June 10, when California's newly-minted independent redistricting commission presented draft maps to the public. Simply put, every 10 years we count how many people live here, and then we draw legislative lines according to that demographic information. While this may not sound particularly spicy, determining who draws district lines and how those lines are drawn evokes a legal and political struggle of epic proportions. Political wonks, voting rights attorneys, and interested members of the public know that where district lines are drawn can dictate the composition and balance of power in the state legislatures and Congress.

In 2008, California voters approved Proposition 11, a Gov. Arnold Schwarzenegger-supported ballot initiative that took the power of drawing state legislative lines away from legislators. Instead of legislators drawing their own legislative lines, Proposition 11 provided that a 14-member independent redistricting commission comprised of five Democrats, five Republicans, and four Independents would draw district lines for the State Assembly, state Senate, and Board of Equalization.

The oft-repeated purpose of Proposition 11 was to create a system in which the voters chose their legislators, and not the other way around. California has long been the poster child for gerrymandered districts, which reflect a legislator's desire to draw herself a safe district, but not necessarily one that best represents demographic realities. Looking at the last lines drawn by the Legislature in 2001 perhaps best elucidates this phenomenon. In that year, the Legislature accomplished two rarities. First, they agreed on something. Second, they were successful at their stated purpose.

Miller-McCune praises Prof. Levitt's All About Redistricting website

Miller-McCune recently praised Associate Professor Justin Levitt's All About Redistricting website in the story, "Website Demystifies Redistricting":

The once-a-decade reshuffling mandated by the Constitution now has a comprehensive source that helps to explain its complex details.

Justin Levitt, an expert on election law and a professor at Los Angeles' Loyola Law School has launched All About Redistricting, an interactive website that helps the average person understand all the intricacies of redistricting. With redistricting being a hot topic, and its fairness routinely questioned, the launch of Levitt's website is particularly timely.

Read the full story.

The real victims of election ID laws

Originally published in Politico June 14, 2011.

With ballooning deficits and substantial unemployment among the urgent problems confronting the states, many state legislatures spent their first
days of the 2011 session attempting to restrict the way that voters prove their identity at the polls.

Five states passed voter ID laws in 2011. The most stringent preclude citizens from voting a valid ballot unless they show specific documents. Opinion polls reveal that the public supports this idea. But those behind this effort have forgotten both their priorities and their obligation to safeguard the vote -- the most fundamental of constitutional rights -- not just for most U.S. citizens but for all.

The public supports restrictive ID rules because most Americans have ID. We think nothing of showing ID for conveniences, so we think nothing of showing it as a condition for a basic constitutional right. Because we have the correct ID, and our friends have the correct ID, we think every citizen has the correct ID.

The facts, however, say different. Most of these recent laws demand current, government-issued photo ID with an expiration date. Yet 11 percent of voting-age citizens do not have this sort of ID, according to reliable studies. The estimated impact on actual voters ranges from 1 percent to 12 percent, depending on the state. Even using the most conservative figure, this amounts to more than 1.6 million voters nationwide.

Some are hurt more than others by this. Roughly 18 percent of seniors don't have the right ID. Only 5 percent of Anglo voters but at least 10 percent of African-American voters and 11 percent of Latino voters don't have the right ID.

Prof. Justin Levitt's All About Redistricting gets a nod from the Washington Post

Washington Post political blogger Aaron Blake Tweeted of Associate Professor Justin Levitt's All About Redistricting website: "Want to know the latest on redistricting in a certain state? An AWESOME tool: http://bit.ly/kb6eTk."

Prof. Justin Levitt launches All About Redistricting website

Associate Professor Justin Levitt, a national expert on redistricting, has launched All About Redistricting, an online guide to the process of drawing electoral district lines. The site is at redistricting.lls.edu.

All About Redistricting explains state-by-state the intricacies of the process with easy-to-digest breakdowns of state rules, summaries of procedures and links to relevant state websites. A series of interactive maps (example at right) guide users through the process. Levitt, a prolific scholar whose works include A Citizens Guide to Redistricting, includes his analyses of everything from current litigation to reform initiatives. Redistricting is underway nationwide in a process that will continue through 2012.

"This website is designed to be a one-stop easy-reference site for all sorts of redistricting information," said Levitt. "For each state's congressional and state legislative districts, we track the current status, describe who draws the lines and the rules for when and how the lines are drawn, and follow redistricting litigation from start to finish. Maps and charts quickly put the states in national context. And the site gathers other resources explaining how the process works now and how it might work in the future, all together in one place."

Levitt has served in various capacities for several presidential campaigns, including as the National Voter Protection Counsel in 2008. He coordinated the amicus response in Crawford v. Marion County Election Board, a Supreme Court challenge to a state's voter ID requirements. Prior to joining the Loyola faculty, he was counsel at the Brennan Center for Justice. A magna cum laude graduate of Harvard Law School, Levitt also teaches Constitutional Law at Loyola Law School.

The big redistricting story of 2011: 'We, the People'

By Associate Professor Justin Levitt

For my own contribution to the "11 on '11" kickoff of the Loyola Law School blog, I'd like to focus on redistricting. Every 10 years, the electoral districts of local, state and federal representatives are redrawn to keep pace with population movement. This cycle begins again in just a few months, as the Census Bureau releases the results of the national Census. Redistricting will then flare across the national consciousness for a few short moments, leaving scholars and pundits the remainder of the decade to interpret for a confused public the import of the process for the electoral landscape. For observers of the political process, redistricting is much like the medieval reappearance of a decennial comet--only with a lot more litigation.

At least three developments merit special attention in 2011. All revolve around the role that we, the people, have in redistricting.

One: The first is our latest attempt to assert control over the process. In most jurisdictions, legislators are in charge of drawing their own district lines or the lines they hope to inhabit. Because the composition of a district can have a direct and substantial impact on an incumbent's job security, legislators are naturally tempted to pick and choose voters based on personal or partisan reward or punishment. Districts have been drawn to include prominent donors or exclude promising challengers, notably including then-state Senator Barack Obama. When practiced by insiders with a stake in the game, the process can be the most vicious of political bloodsports.

Assoc. Prof. Justin Levitt featured in Gerrymandering

Associate Professor Justin Levitt is featured prominently in the new movie Gerrymandering, starting its run this Friday at the Nuart Theater. I'm including some information on the film below, and you can find details about the theater here.