Report – Changing climate shifts timing of European floods. Science 11 Aug 2017: Vol. 357, Issue 6351, pp. 588-590. DOI: 10.1126/science.aan2506
“A warming climate is expected to have an impact on the magnitude and timing of river floods; however, no consistent large-scale climate change signal in observed flood magnitudes has been identified so far. We analyzed the timing of river floods in Europe over the past five decades, using a pan-European database from 4262 observational hydrometric stations, and found clear patterns of change in flood timing. Warmer temperatures have led to earlier spring snowmelt floods throughout northeastern Europe; delayed winter storms associated with polar warming have led to later winter floods around the North Sea and some sectors of the Mediterranean coast; and earlier soil moisture maxima have led to earlier winter floods in western Europe. Our results highlight the existence of a clear climate signal in flood observations at the continental scale.”
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The petition of the day is:Dahda v. United States 17-43
Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.
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Internet Archive post: “Through the Great 78 Project the Internet Archive has begun to digitize 78rpm discs for preservation, research, and discovery with the help of George Blood, L.P.. 78s were mostly made from shellac, i.e., beetle resin, and were the brittle predecessors to the LP (microgroove) era. @great78project for uploads as they happen. The digitization project currently focuses on discs that are less likely to be commercially available–or available at all in digital form–particularly focusing on underrepresented artists and genres. Digitization will make this less commonly available music accessible to researchers in a format where it can be manipulated and studied without harming the physical artifacts. We have preserved the often very prominent surface noise and imperfections and included files generated by different sizes and shapes of stylus to facilitate different kinds of analysis. There’s no way to predict if the digital versions of these 78s will outlast the physical items, so we are preserving both to ensure the survival of these cultural materials for future generations to study and enjoy.”
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State of the Climate 2016 – “An international, peer-reviewed publication released each summer, the State of the Climate is the authoritative annual summary of the global climate published as a supplement to the Bulletin of the American Meteorological Society. The report, compiled by NOAA’s Center for Weather and Climate at the National Centers for Environmental Information is based on contributions from scientists from around the world. It provides a detailed update on global climate indicators, notable weather events, and other data collected by environmental monitoring stations and instruments located on land, water, ice, and in space. This is the twenty-seventh issuance of the annual assessment now known as State of the Climate. Surface temperature and carbon dioxide concentration, two of the more publicly recognized indicators of global-scale climate change, set new highs during 2016, as did several surface and near-surface indicators and essential climate variables. Notably, the increase in CO2 concentration was the largest in the nearly six-decade observational record.” Download by Chapter:
Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.
A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.
The right of expressive association
There is an obvious difficulty in relying on the First Amendment in partisan-gerrymandering cases: The Supreme Court has never considered voting a form of protected speech. It has, however, long recognized that voting is a form of protected association, at least in certain contexts. Before getting to those cases, it’s helpful to examine the roots of the right of expressive association.
The original associational-rights cases involved groups like the NAACP and the Communist Party that were extremely unpopular – one might even say persecuted – in many parts of the country. In NAACP v. Alabama ex rel. Patterson, for example, the Supreme Court invalidated a requirement that the NAACP disclose its membership list. Justice John Marshall Harlan II’s opinion for the court remarked that “the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” In other words, expressive association is a necessary corollary of free speech.
The right of expressive association is closely linked to the First Amendment’s prohibition on content and viewpoint discrimination. As Justice Antonin Scalia put it in one of his last dissenting opinions, “the First Amendment is a kind of Equal Protection Clause for ideas.” It prohibits the government from abusing its authority to suppress disfavored points of view. Most importantly, it restricts the dominant political group’s authority to diminish the voices of those who might challenge their grip on power.
Thus, in the first generation of association cases, disfavored groups like the NAACP and the Communist Party relied on the First Amendment to prohibit the government from taking adverse action against them and their members. These cases rest partly on the individual liberty interest identified in NAACP v. Alabama. But they’re also grounded in a larger vision of how democracy should function.
A leading example is the line of patronage cases that began with Elrod v. Burns, in which the Supreme Court struck down the practice of firing public employees who weren’t members of the Democratic Party, which controlled Cook County, Illinois. After describing the harm to individual employees, the plurality turned to systemic concerns arising from this practice: “It is not only belief and association which are restricted where political patronage is the practice,” wrote Justice William Brennan. “The free functioning of the electoral process also suffers.” Discrimination against non-party members tended to “starve political opposition,” thus “tip[ping] the electoral process in favor of the incumbent party.” In other words, party-based discrimination distorts the political process, entrenching the dominant party in power while subordinating its chief rival.
Voting as association
Partisan gerrymandering effects a comparable systemic harm, albeit through a different mechanism. By manipulating district lines, the dominant party can entrench itself in power even when the political winds shift. The increasingly sophisticated technology that line-drawers have at their disposal exacerbates the problem. It allows the dominant party to capture a large percentage of seats while ensuring that its majority will hold in both bad times and good.
That’s true not only in Wisconsin, from which Gill v. Whitford emerges, but in other states that would be competitive but for gerrymandering. Take my own state of Ohio. Although Ohio is a consummate purple state in presidential elections, Republican mapmakers drew lines there in 2011 that give their party a supermajority of districts – three-quarters of the state’s congressional delegation and roughly two-thirds of its state legislative districts. These districts were drawn with the goal of creating a firewall that would ensure Republican control even in a strong Democratic year. And they’ve been a spectacular success, ensuring Republican control of the Ohio state legislature throughout the current decade. Because they diminish the power of the non-dominant party in a manner that’s both substantial and enduring, excessive partisan gerrymanders violate the right of expressive association.
Still, one might argue that compelled disclosure and patronage are very different from redistricting. In the original association cases, particular individuals were harmed – discouraged from or punished for affiliating with disfavored groups. Moreover, those cases don’t directly involve voting. It’s a leap, one might argue, to hold that the right of association is implicated when voters, candidates and parties associate through the electoral process.
As it turns out, the Supreme Court made this leap long ago. For almost a half-century, the court has recognized that voting is a form of association protected by the First Amendment. The first voting-as-association case was Williams v. Rhodes, which challenged Ohio’s ballot-access requirements for new political parties like George Wallace’s American Independent Party. Justice Hugo Black’s opinion for the court relied on both the First Amendment right of association and equal protection to strike down this requirement. Ohio’s onerous rules for adding new parties to the ballot gave “the two old, established parties a decided advantage … plac[ing] substantially unequal burdens on both the right to vote and the right to associate.” In Williams, the Supreme Court thus stressed the risk of dominant parties using voting rules to entrench themselves in power, thereby harming non-dominant parties and their supporters.
Several years later, in Anderson v. Celebrezze, the Supreme Court again relied on the right of association to invalidate another ballot-access rule in Ohio, this time one that would have kept John Anderson from running as an independent presidential candidate in 1980. Justice John Paul Stevens’ opinion for the majority recognized that there’s no “litmus-paper test” to separate valid and invalid restrictions on voting and association. Rather, the court should weigh the “character and magnitude” of the burden on voting and association against the state’s asserted interests. Although “reasonable, nondiscriminatory restrictions” can usually be justified by important regulatory interests, a stronger justification is required for more serious burdens, including ones that discriminate against outsider candidates and their supporters.
A subsequent case involving write-in voting in Hawaii, Burdick v. Takushi, reaffirmed Anderson’s “flexible” standard while clarifying that strict scrutiny applies only if the burden on voting and association is “severe.” Other cases like Tashjian v. Republican Party of Connecticut and Washington State Grange v. Washington Republican Party apply this standard to electoral rules that burden the associational rights of major parties and their adherents. The Anderson-Burdick balancing test is now used in constitutional challenges to a wide variety of election laws, including ballot access, blanket primaries and even voter ID. What’s not commonly recognized is that this legal standard originated in voting-as-association cases.
Applying the voting-as-association standard
It’s true that the Supreme Court hasn’t yet applied the Anderson-Burdick standard to partisan gerrymandering. In fact, the court has been maddeningly unclear about what legal standard should apply in these cases. But for several reasons, the standard emerging from the voting-as-association cases provides the best fit for evaluating partisan gerrymandering claims.
The first is that the First Amendment right of association best captures the type of injury alleged, specifically the lasting harm to non-dominant political parties and their adherents arising from the dominant party’s self-entrenchment. Expressive-association cases have long focused on such harms, not only to the non-dominant party but to our political system. By contrast, equal protection law doesn’t accord any special status to political party affiliation. Unlike race or sex, party affiliation isn’t a protected class under the equal protection clause.
The second advantage of relying on the established voting-as-association standard is that it focuses on effects rather than intent. Recall that the Anderson-Burdick standard requires courts to weigh the “character and magnitude” of the burden on voting and association against the state’s asserted interests. An intent to harm the non-dominant party may be relevant, but it isn’t required. That’s a good thing, because intent is notoriously hard to prove or disprove, especially in redistricting cases. The Shaw v. Reno line of racial-gerrymandering cases exemplifies this difficulty. Under those cases, the pivotal question is whether race was the “predominant factor” in drawing a particular district. Twenty-four years after Shaw, the Supreme Court is still struggling to explain what this means. An effect-based test is preferable. Though Anderson-Burdick is hardly a bright-line rule, its balancing standard has proven manageable in other voting contexts and can be adapted to partisan-gerrymandering claims.
This brings me to a third advantage of relying on the voting-as-association cases to assess partisan gerrymandering claims: It provides a nuanced legal standard. The Anderson-Burdick balancing approach would allow lower courts to sort through the evidence, striking down the most egregious and unjustified partisan gerrymanders without categorically prohibiting any consideration of party affiliation when drawing districts. Of course, partisan-gerrymandering claims demand hard judgments. There are no bright lines here. But the legal standard that the Supreme Court has long used in voting-as-association cases provides the best fit for partisan-gerrymandering cases like Gill v. Whitford.
The post Symposium: A path through the thicket – the First Amendment right of association appeared first on SCOTUSblog.
NOAA: “Nationally standardized, raster-based inventories of land cover for the coastal areas of the U.S. Data are derived, through the Coastal Change Analysis Program, from the analysis of multiple dates of remotely sensed imagery. Two file types are available: individual dates that supply a wall-to-wall map, and change files that compare one date to another. The use of standardized data and procedures assures consistency through time and across geographies. C-CAP data forms the coastal expression of the National Land Cover Database (NLCD) and the A-16 land cover theme of the National Spatial Data Infrastructure. The data are updated every 5 years…”
Tyler Green is the solicitor general of Utah. Utah is one of 16 states that joined a merits-stage amicus curiae brief by the state of Texas in support of the appellants defending Wisconsin’s electoral map.
Attorneys who advise state elected officials need no crystal ball to see what an affirmance in Gill v. Whitford would mean for their clients. …
GILL’S REAL DEAL
A Play in Three Acts
Cast of Characters
Speaker of the Utah House: A woman in her early 50s; a recovering lawyer.
President of the Utah Senate: A man in his mid-60s; a retired medical doctor.
Legislative Counsel: A woman in her late 40s.
The Utah State Capitol.
Early 2021, after the U.S. Census Bureau releases the 2020 census results.
SETTING: We are in a large conference room at the capitol. Stacks of paper cover the main table. Foamboard charts rest on easels and against the walls. Beverages and a box of doughnuts sit on a side table.
AT RISE: LEGISLATIVE COUNSEL sits at the main table’s long side, facing the room’s door (which is closed). She alternately checks her watch and responds to texts or emails on her cell phone. COUNSEL raises her head as the SPEAKER OF THE HOUSE and the PRESIDENT OF THE SENATE open the door and enter.
Good morning. Sorry we’re late—again.
(She stands and shakes hands with the SPEAKER and the PRESIDENT.)
No problem. I just got the text that your caucus meeting ran long.
Yes. We moved through the caucus agenda as fast as we could, but the members had lots of questions about the redistricting process.
(She motions to the side table.)
Snacks or a drink?
Thanks. I need a blood-sugar boost after that meeting.
(All three walk to the side table and take turns getting doughnuts and drinks.)
(She talks while getting food and walking to her seat at the main table.)
Picking up where the president left off—one of the first questions at caucus was how we’re going to start drawing new boundaries. Some members suggested tweaking the current map based on the 2020 data. But other members said we can’t do that because of a new Supreme Court case. Are they right?
(Returning to her seat, food in hand.)
I’m afraid so. Actually, it’s a 2018 case called Gill v. Whitford. This is the first time we’ve redistricted since then.
(Seated at the table.)
The court said we can’t use our old map?
Well, the court didn’t expressly prohibit states from basing new boundaries on old ones. But in a state like Utah, the opinion unquestionably has that effect—we have to start from scratch.
What’s wrong with our current map’s boundaries?
They produce too many Republican legislators.
(With his mouth full of doughnut.)
It’s true. Under the court’s opinion, the new boundaries must give more legislative seats to Democrats.
How can the court tell states the “correct” number of legislative seats for each political party? I thought elections did that.
You’d think so, right? “Au contraire,” says the court.
(She hands papers to the SPEAKER and the PRESIDENT.)
It’s actually a little complicated. Here are copies of the opinion. I’ve highlighted the key parts.
(Drops papers on table.)
After that caucus, I can’t handle this lawyer-speak. What’s the punchline? How could the court have reached this result?
Here’s the quick version. In 2011, Wisconsin’s legislature drew new districts based on the 2010 census. After the 2012 and 2014 elections, the Democratic Party in Wisconsin was mad because its candidates won fewer of the new districts than the party thought they deserved based on the number of statewide votes for Democrats.
So this is a proportionality issue—the idea that if a political party gets 40 percent of statewide votes for legislative candidates, it should win a corresponding 40 percent of legislative seats.
Correct. But things didn’t pan out that way for Wisconsin’s Democrats. In 2012, Republicans won 60 of 99 seats in the Wisconsin State Assembly with 48.6 percent of the statewide two-party vote. And in 2014, Republicans won 63 of 99 seats with 52 percent of the statewide vote. Seeing those results, some Democrats in Wisconsin sued. A federal district court declared Wisconsin’s new district boundaries unconstitutional. The Supreme Court agreed.
Unconstitutional on what basis?
The court said the election results in the new districts violated the Democratic Party’s rights under the equal protection clause.
Hold on. The political party’s right to equal protection? Doesn’t the equal protection clause protect the rights of individuals—not the rights of groups?
That’s exactly what prior Supreme Court redistricting cases said. It’s one reason Gill is such a sea change: It’s the first redistricting case extending equal protection rights to a group.
Do other groups—such as groups of racial minorities—also now have those same equal protection rights in redistricting cases?
No. At least, not yet. Race-based claims weren’t raised in Gill.
So political parties—groups that exist to win executive or legislative seats from voters in elections—now have a constitutional right to get a certain number of legislative seats in court from a federal judge? And groups of racial minorities don’t have that right?
Correct on both counts. The opinion also makes redistricting challenges easier. Before Gill, a plaintiff claiming that a new district violated his equal protection rights could challenge only his individual district. But Gill allowed the plaintiffs to challenge the entire statewide plan.
Did the Supreme Court realize the incentives it created by allowing challenges to a state’s entire redistricting plan? Or how much more expensive it will be for states to defend those bigger lawsuits? Or the potential for plaintiffs to frame claims of race-based discrimination as political discrimination to take advantage of those new rules?
No one knows; we don’t get to ask the Supreme Court questions. But Gill certainly increases the burdens and risks to states from redistricting lawsuits. The statutory right to attorney’s fees for successful claims won’t be lost on potential plaintiffs, either.
But just because someone can file a lawsuit doesn’t mean they will win. How easy will it be for plaintiffs to win on these claims?
In general, a plaintiff wins an equal protection claim by showing that the state treated him differently for an invidious or irrational purpose—and that the differential treatment had a discriminatory effect.
What’s the alleged invidious purpose here? That the state invidiously discriminates against a political party by drawing district boundaries that deprive it of political power?
But legislatures have done that since … forever!
I know. The court called this a “political gerrymandering” claim, but that phrase itself is redundant. The 1886 version of Webster’s dictionary defines gerrymandering as drawing district lines “with a view to give a political party an advantage over its opponent.” This isn’t a new phenomenon.
So why is it now a constitutional problem?
I don’t know. In fact, a prior Supreme Court case called Vieth v. Jubelirer arguably held that political-gerrymandering claims don’t exist. But Vieth was messy—multiple opinions, and no clear majority—so the Gill majority worked around it.
Wait a minute. Other redistricting rules really restrain our ability to draw boundaries that benefit one political party. We have to comply with the Supreme Court’s “one-person, one-vote” rule. Districts must meet compactness and contiguity requirements. And we try to keep political subdivisions in the same district. Did Gill get rid of those rules?
No. We still must follow them. But political gerrymandering is now actionable.
So new boundaries can’t favor a political party. And we must follow the old rules. But now we expressly consider the likely partisan electoral outcome in each new proposed district—to make sure that each party’s number of seats aligns with its percentage of the statewide vote?
As best I can tell.
How close a match does the Constitution require? Suppose we predict that a political party will get 40 percent of the statewide vote. So we draw a map that should give its candidates 40 percent of the seats. But, unexpectedly, the political party wins 45 percent of the statewide vote—and wins only its expected 40 percent of the seats. Or the party gets its expected 40 percent of the vote, but only 33 percent of the seats. Constitutional problems?
Gill really doesn’t say.
So our message to the caucus is: We have to draw boundaries that give more seats to our political opponents. Yet we can’t know in advance if we’re giving them enough seats—or even how they can successfully challenge the new map. And if a challenge does succeed, a federal judge might award them seats they didn’t win at election.
(Looking at the SPEAKER.)
Remind me who said courts were the “least dangerous branch”?
STILL TO BE DRAFTED
Act II: Lawsuits, Inevitably
Act III: Judges Draw Overtly Partisan Boundaries
- At Constitution Daily, Lyle Denniston reports on the latest appeals-court filing in the entry-ban case, noting that “[t]he Trump Administration’s legal team indicated on Wednesday that it will take the heated controversy over immigration back to the Supreme Court if government power to exclude foreign nationals is not restored shortly by a federal appeals court.”
- In an op-ed at The Hill, Jonathan Scruggs wonders which side corporations will take in the upcoming First Amendment case involving a custom-cake baker who refused to supply a cake for a same-sex wedding; he maintains that “this moment will offer great insight into the current state of our free speech culture, both corporately and generally.”
- In an op-ed at The Daily Caller, James Gottry urges the court to review a similar case involving a florist, who “faces the loss of everything she owns because her personal exercise of conscience has been recast as personified discrimination.”
Remember, we rely exclusively on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.
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People have a lot of faith in Reuters, but not as much in Breitbart:”…A study of close to 9,000 people found that the most trusted source of news is The Economist, while the Occupy Democrats organization was the least trusted source. The University of Missouri recently ran a questionnaire distributed by 28 newsrooms across the country. Those newsrooms asked their audiences to answer questions about the types of content they consume and how much they’re willing to pay for that content. About 67 percent of people who replied consider themselves likely or very likely to trust the news, which means nearly 33 percent of them are unlikely or very unlikely to trust the news…”
“The most comprehensive study to date of the growing universe of partisan websites and Facebook pages about US politics reveals that in 2016 alone at least 187 new websites launched, and that the candidacy and election of Donald Trump has unleashed a golden age of aggressive, divisive political content that reaches a massive amount of people on Facebook. Thanks to a trinity of the internet, Facebook, and online advertising, partisan news websites and their associated Facebook pages are almost certainly making more money for more people and reaching more Americans than at any time in history. In some cases, publishers are generating hundreds of thousands of dollars a month in revenue, with small operations easily earning five figures thanks to one website and at least one associated Facebook page…To fully understand and showcase the massive new world of online partisan news, BuzzFeed News spoke to more than a dozen liberal and conservative site owners and writers, obtained financial filings from the IRS, and created a database of 667 political news websites covering US politics on the left and the right…”
“Nazi-looted books found in German libraries Sensational finds of art works make headlines in provenance research, but books were also looted by the Nazis. Looking for them in small libraries is the goal of a new project….The Lost Art Foundation has organized a program called “Initial Check” in order to enable the search for stolen books in smaller German libraries: The program has tasked three experienced provenance researchers to scour libraries in Saxony-Anhalt, and look for suspicious items. Their aim is to find out whether such inventory items are in fact looted goods…”
See also –
- Gurlitt Art Trove – “After authorities discovered a hoard of artworks in the Munich apartment of Cornelius Gurlitt, the special taskforce “Schwabinger Kunstfund” was formed in order to clarify their origin, as well as that of other works later found in Salzburg. Its primary task was to investigate whether any of the works in Gurlitt’s possession were illegally confiscated from their owners by the National Socialist regime between 1933 and 1945. The work of the taskforce, for which the German Lost Art Foundation assumed responsibility on 1 April 2015, concluded on 31 December 2015 as planned. In January 2016, the German Lost Art Foundation will launch a new project titled “Gurlitt Provenance Research” which will continue the investigation of the Gurlitt art collection. Research efforts will focus on determining the provenance of works which have not yet been conclusively clarified. Of primary interest are works for which there is a suspicion that they went missing as a result of Nazi persecution or for which such claims have been made…”
Exh: Between Definite and Dubious, Liebieghaus, Frankfurt a.M., until 27 Aug 2017 -“…With the aid of twelve selected objects, the exhibition will offer insights into the history of the museum in the years 1933 to 1945 and tell the stories of the people intimately linked with the twelve works. Since 2001, the Städel Museum has been examining its collections with regard to artworks whose owners were deprived of them in connection with Nazi persecution. It was thus one of the first museums in Germany to embark on this task…”
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“The Space Weather Media Viewer site & app features near-real-time imagery from a wide variety of NASA missions as well as video interviews with prominent scientists about the causes of space phenomena and NASA-created visualizations.”
Investigate report by the Free Law Project: “PACER/ECF is a system of 204 websites that is run by the Administrative Office of the Courts (AO) for the management of federal court documents. The main function of PACER/ECF is for lawyers and the public to upload and download court documents such as briefs, memos, orders, and opinions. In February we reported that we disclosed a major vulnerability in PACER/ECF to the AO. The proof of concept and disclosure/resolution timeline are available here. We are pleased to share that this issue is now properly addressed, and that we are now able to report more details about it. Throughout the process of researching, disclosing, and resolving this vulnerability, the AO has been prompt and professional, something that we greatly appreciate given the considerable constraints and complexities they are facing. However, despite their skill in dealing with this issue, after discovering it we have lingering concerns about the security of PACER/ECF on the whole. In this post, we discuss three topics. First, we outline what the vulnerability was and how to identify if you were a victim of it. Second, we discuss why the vulnerability is troubling for a system of PACER/ECF’s size and importance. Third, we offer concrete actions that the AO can take to prevent this kind of problem in the future…”