[EL] ELB News and Commentary 8/5/14
Rick Hasen
rhasen at law.uci.edu
Mon Aug 4 19:51:35 PDT 2014
MS Election Law Expert: McDaniel Playing a "Weak Hand"
<http://electionlawblog.org/?p=63994>
Posted on August 4, 2014 7:36 pm <http://electionlawblog.org/?p=63994>by
Rick Hasen <http://electionlawblog.org/?author=3>
KARN
<http://www.karnnewsradio.com/common/more.php?m=58&ts=1407204302&article=62CD5E551C2311E4B51EFEFDADE6840A&mode=2>:
Mississippi election law expert Matthew Steffey said this statute is
"unenforceable because you can't quiz individual voters on what
their intentions are in the voting booth because it violates their
right to vote anonymously in a polling place," noting the concept
would be "inconceivable in a court of law," and "unprecedented in
American politics."
Steffey, a professor of election law at Mississippi College School
of Law in Jackson, says the McDaniel team is "playing a very weak hand."
"Lawyers have to make the case they can make, not the case they
would like to make," Steffey said in an interview with ABC News.
"And the very fact that we are talking about polls which Sen.
McDaniel must know, certainly his lawyers know will have no role in
court room litigation, can't possibly be the basis for judicial
opinion....that' s not evidence, that's at least double hearsay, it
may be worse than that."
Steffey notes the "most important number" is the cross-over votes
and that has been their argument since the run-off.
"If he had a large number (of cross-over votes) we wouldn't be
talking about polls and throwing out 71 percent of Democratic votes,
he's doing that because it's all he's got," he said.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63994&title=MS%20Election%20Law%20Expert%3A%20McDaniel%20Playing%20a%20%E2%80%9CWeak%20Hand%E2%80%9D&description=>
Posted in election administration <http://electionlawblog.org/?cat=18>
"Senate Rules Committee to Take Up Election Agency Nominees After
Recess" <http://electionlawblog.org/?p=63992>
Posted on August 4, 2014 7:10 pm <http://electionlawblog.org/?p=63992>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg BNA:
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=50888509&vname=mpebulallissues&jd=a0f4c2d3c7&split=0>"The
Senate Rules and Administration Committee is expected to consider two
Republican nominees to the Election Assistance Commission sometime after
Congress returns in September from a five-week recess. Movement toward
Senate confirmation of the nominees could put the bipartisan, four-seat
EAC on track to revival after more than two years without any
commissioners to head the agency. The two pending Republican nominees
joined two Democratic EAC nominees now awaiting Senate confirmation."
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63992&title=%E2%80%9CSenate%20Rules%20Committee%20to%20Take%20Up%20Election%20Agency%20Nominees%20After%20Recess%E2%80%9D&description=>
Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>
"Prosecutors in Wisconsin 'John Doe' Case Call on Seventh Circuit to
Assess Evidence" <http://electionlawblog.org/?p=63990>
Posted on August 4, 2014 7:08 pm <http://electionlawblog.org/?p=63990>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=50888508&vname=mpebulallissues&jd=a0f4c2d3a0&split=0>:
Special prosecutors pursuing a secret "John Doe" investigation
focusing on alleged coordination between Wisconsin Gov. Scott
Walker's (R) political campaign and conservative groups contend a
federal district judge ignored "significant evidence" of potentially
illegal conduct when he quashed their investigation in May (O'Keefe
v. Chisholm, 7^th Cir., No. 14-1822, 8/1/14).
The prosecutors' views were presented in briefs outlining the points
expected to made in oral arguments scheduled for Sept. 9 before a
federal appeals court in Chicago.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63990&title=%E2%80%9CProsecutors%20in%20Wisconsin%20%E2%80%98John%20Doe%E2%80%99%20Case%20Call%20on%20Seventh%20Circuit%20to%20Assess%20Evidence%E2%80%9D&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
Former Indiana SOS Todd Rokita Says Immigrant Children May Carry
Ebola <http://electionlawblog.org/?p=63988>
Posted on August 4, 2014 7:01 pm <http://electionlawblog.org/?p=63988>by
Rick Hasen <http://electionlawblog.org/?author=3>
Political Wire.
<http://politicalwire.com/archives/2014/08/04/gop_lawmaker_says_migrant_children_may_carry_ebola.html>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63988&title=Former%20Indiana%20SOS%20Todd%20Rokita%20Says%20Immigrant%20Children%20May%20Carry%20Ebola&description=>
Posted in Uncategorized <http://electionlawblog.org/?cat=1>
CA Supreme Court Wants Briefing on Whether to Take Anti-CU Ballot
Measure Off the Ballot <http://electionlawblog.org/?p=63986>
Posted on August 4, 2014 4:12 pm <http://electionlawblog.org/?p=63986>by
Rick Hasen <http://electionlawblog.org/?author=3>
Horvitz & Levy'sAt the Lectern
<http://www.atthelectern.com/citizens-united-writ-petition-supreme-court-requests-expedited-preliminary-briefing/>
has the details.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63986&title=CA%20Supreme%20Court%20Wants%20Briefing%20on%20Whether%20to%20Take%20Anti-CU%20Ballot%20Measure%20Off%20the%20Ballot&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>
Read McDaniel's 243-Page #MSSEN Challenge with Exhibits
<http://electionlawblog.org/?p=63981>
Posted on August 4, 2014 3:30 pm <http://electionlawblog.org/?p=63981>by
Rick Hasen <http://electionlawblog.org/?author=3>
I have posted ithere
<http://www.scribd.com/doc/235855819/2014-8-4-Complaint-and-Exhibits>
(13 mb file on Scribd). My analysis of McDaniel's chances ishere
<http://electionlawblog.org/?p=63977>.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63981&title=Read%20McDaniel%E2%80%99s%20243-Page%20%23MSSEN%20Challenge%20with%20Exhibits&description=>
Posted in recounts <http://electionlawblog.org/?cat=50>
"Kansas, Arizona Require Proof of Citizenship for Voting; Thousands
Will Be Barred From Casting Ballots in State Primaries"
<http://electionlawblog.org/?p=63979>
Posted on August 4, 2014 2:25 pm <http://electionlawblog.org/?p=63979>by
Rick Hasen <http://electionlawblog.org/?author=3>
WSJ reports.
<http://online.wsj.com/articles/kansas-arizona-require-proof-of-citizenship-for-voting-1407109373?utm_content=buffer0f009&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63979&title=%E2%80%9CKansas%2C%20Arizona%20Require%20Proof%20of%20Citizenship%20for%20Voting%3B%20Thousands%20Will%20Be%20Barred%20From%20Casting%20Ballots%20in%20State%20Primaries%E2%80%9D&description=>
Posted in election administration <http://electionlawblog.org/?cat=18>,
NVRA (motor voter) <http://electionlawblog.org/?cat=33>, The Voting Wars
<http://electionlawblog.org/?cat=60>, voter registration
<http://electionlawblog.org/?cat=37>
Analysis: McDaniel Likely to Lose #MSSEN Challenge
<http://electionlawblog.org/?p=63977>
Posted on August 4, 2014 1:16 pm <http://electionlawblog.org/?p=63977>by
Rick Hasen <http://electionlawblog.org/?author=3>
A press conference concluded a few minutes ago by the McDaniel campaign
suggests that the campaign found far fewer illegal votes than the
approximately 7,600 votes separating him from Sen. Thad Cochran in the
MS Republican Senate primary. Instead, it sounds like the campaign has
alleged only 3,500 votes cast by voters who also (presumably illegally)
voted in the earlier Democratic primary. There are 9,500 other votes
said to be "irregular," and 2,500 allegedly improper absentee ballots.
Those numbers alone suggest there will not be enough to get a new
election, unless the "irregularities" are serious enough to call the
result in question. But that would not be impossible, depending on what
the evidence shows.
But the reason I expect McDaniel will likely lose is that he is not
asking for a new election. Instead, he is asking for a remedy of having
him declared the winner. He would apparently rely upon polling to show
that Democrats who voted in the primary did not intend to vote for the
eventual Republican nominee in the fall. This relies upon a MS code
provision saying that only those who will support the nominee in the
general election can vote in the primary.
To begin with, the interpretation of that provision before the election,
confirmed in a press release <http://electionlawblog.org/?p=62662>just
before the election from the Secretary of State and Attorney General was
that it was unenforceable <http://electionlawblog.org/?p=62528>. That
was the prevailing view before the election. If McDaniel didn't like it,
he should have sued before the election. Now such a claim should be
barred by laches (unreasonable delay).
Second, even if McDaniel's legal interpretation were correct and the
claim not barred by laches, polling evidence is likely not good enough
to show that there were more votes for Cochran.
Finally, as to a remedy, what McDaniel must be asking for is a
"proportional reduction" of votes based upon such polling, which would
subtract more votes from Cochran than McDaniel. That remedy was strongly
rejected in the contested Washington state governor's race between Rossi
and Gregoire, and I don't expect a court would accept that here to
declare the loser the winner.
In short, it is hard enough to get a court to declare a new election
after ballot irregularities. To get the court do declare the loser the
winner is a remedy which almost never happens absent strong proof of
fraud on the winner's side.
UPDATE: The McDaniel campaign has now posted its election contest
papers. Ihave put them up on Scribd
<http://www.scribd.com/doc/235855819/2014-8-4-Complaint-and-Exhibits>in
a 13 mb file (instead of the original 104 mb file). The contest presents
an even weaker claim than was described at the press conference. This
will almost surely fail before both the MS Republican party and in court.
To begin with, despite all the talk of massive fraud by the McDaniel
campaign for weeks, there is virtually nothing substantiating fraud
alleged in the complaint. The main "fraud" is Democrats who intended to
vote for the Democratic nominee during the general election being
allowed to vote in the Republican primary. Given that such voting was
deemed acceptable before the election by both the Secretary of State and
the Attorney General (in line with longstanding practice and an earlier
AG opinion), neither the party nor the court will count this as fraud.
As to other potential fraud and irregularities, there is nothing here
that meets the standard to show enough fraud in the election to require
it to be overturned. At most this shows that the elections were not
administered competently in some jurisdictions. (This is not breaking
news to anyone who follows how elections are actually run.) There's
nothing to show that these problems were deliberate fraud, or done in a
way that particularly hurt McDaniel.
In sum, I'd reiterate the point I made earlier before I could see this
filing. At most, what McDaniel alleges should lead to a new election.
Surely any election lawyer with some experience who would say that
McDaniel will be declared with winner with this dossier is smoking
something which I believe is still illegal in the state of Mississippi.
Finally, I think it is clear that McDaniel should become a national
member of the Fraudulent Fraud Squad. His website today still accuses
Democrats of "stealing" the election. It is a serious allegation, but
one not backed by the evidence. Such charges are pernicious when they
are not backed by proof. For weeks McDaniel promised that proof and has
not delivered.
I only hope that those Republicans on the receiving end of spurious
claims of voter fraud will remember this the next time when they might
be in the position to stop unsubstantiated charges like that from being
levied against others.
[This post has been updated to fix typos]
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63977&title=Analysis%3A%20McDaniel%20Likely%20to%20Lose%20%23MSSEN%20Challenge&description=>
Posted in chicanery <http://electionlawblog.org/?cat=12>, election
administration <http://electionlawblog.org/?cat=18>, recounts
<http://electionlawblog.org/?cat=50>, The Voting Wars
<http://electionlawblog.org/?cat=60>
"GOP commissioners quash FEC dark money probe"
<http://electionlawblog.org/?p=63975>
Posted on August 4, 2014 12:00 pm
<http://electionlawblog.org/?p=63975>by Rick Hasen
<http://electionlawblog.org/?author=3>
Sunlight Blog.
<http://sunlightfoundation.com/blog/2014/08/04/gop-commissioners-quash-fec-dark-money-probe/>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63975&title=%E2%80%9CGOP%20commissioners%20quash%20FEC%20dark%20money%20probe%E2%80%9D&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24>
"Another blow to campaign finance disclosure in Wisconsin?"
<http://electionlawblog.org/?p=63973>
Posted on August 4, 2014 11:58 am
<http://electionlawblog.org/?p=63973>by Rick Hasen
<http://electionlawblog.org/?author=3>
/The Capital Times/
<http://host.madison.com/ct/news/local/writers/jack_craver/another-blow-to-campaign-finance-disclosure-in-wisconsin/article_384ff3cc-1819-11e4-8716-0019bb2963f4.html>reports
<http://host.madison.com/ct/news/local/writers/jack_craver/another-blow-to-campaign-finance-disclosure-in-wisconsin/article_384ff3cc-1819-11e4-8716-0019bb2963f4.html>.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63973&title=%E2%80%9CAnother%20blow%20to%20campaign%20finance%20disclosure%20in%20Wisconsin%3F%E2%80%9D&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Exclusive: McDaniel Team Strikes 'Black' References From Press
Release" <http://electionlawblog.org/?p=63971>
Posted on August 4, 2014 9:35 am <http://electionlawblog.org/?p=63971>by
Rick Hasen <http://electionlawblog.org/?author=3>
Daily Caller:
<http://dailycaller.com/2014/08/04/exclusive-mcdaniel-team-strikes-black-references-from-press-release/?utm_source=twitterfeed&utm_medium=twitter>
Still refusing to concede, Chris McDaniel's team issued a press
release late last week saying that the Mississippi GOP is
"prohibited from recognizing Thad Cochran as their nominee for U.S.
Senate in accordance with the rules of the Republican National
Committee" --- because Democrats participated in his election.
But a first draft of that same release, obtained by The Daily
Caller, twice called out "black Democrats" as the culprits.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D63971&title=%E2%80%9CExclusive%3A%20McDaniel%20Team%20Strikes%20%E2%80%98Black%E2%80%99%20References%20From%20Press%20Release%E2%80%9D&description=>
Posted in campaigns <http://electionlawblog.org/?cat=59>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140804/63ffe2c1/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140804/63ffe2c1/attachment.png>
View list directory