[EL] ELB News and Commentary 8/22/16

[Rick Hasen]

Election Litigation 2016: Where Things Stand<http://electionlawblog.org/?p=85648>
Posted on August 22, 2016 8:38 am<http://electionlawblog.org/?p=85648> by Rick Hasen<http://electionlawblog.org/?author=3>

With 77 days to go until Election Day, and early voting starting much sooner in some places, here is the major litigation affecting election procedures and voting that I’m watching the most closely:

Wisconsin: One trial judge required Wisconsin officials to accept an affidavit instead of one of the strict voter ids for voting. A 7th Circuit panel reversed that holding, and we are awaiting the entire 7th Circuit en banc to rule on this question.  A second trial judge struck a number of election rollbacks in Wisconsin, including those limited to early voting. The state has petitioned the 7th Circuit to stay that judge’s order pending appeal. I expect we will hear something on this case this week.

North Carolina: The 4th Circuit struck a number of challenged election rollbacks based upon a finding that North Carolina passed the law with racially discriminatory intent. The state will file a cert. petition in the Supreme Court, and in the meantime it has asked the Supreme Court to reinstate some of the laws that the 4th Circuit blocked. Chief Justice Roberts has asked the plaintiffs to file a reply by this Thursday, the 25th. Expect a ruling the following week (and given the slow pace set by the Chief, I do not expect the stay to be granted so close to the election).

Texas: We thought things were done in Texas for the time being, after the 5th Circuit found that Texas’s strict voter id law violated Section 2 of the Voting Rights Act and ordered a softening by the trial judge (as well as a remand after the election to consider whether Texas acted with racially discriminatory intent). Texas and the plaintiffs agreed in the trial court on an affidavit requirement for softening to apply in this election only, which seemed to settle things for November. But last week the Texas AG left open the possibility of seeking emergency relief with the Supreme Court to get the full voter id requirement reinstated for November. Nothing’s been filed yet, and given the lengthy delay and timing such a request would almost certainly be denied.

Ohio: We are waiting on a couple of cases out of the 6th Circuit over whether the Ohio legislature’s rollback of early voting was permissible. Two lower courts said it was not. Frankly, I’m quite surprised these rulings are not out yet as time is tight—and the theories of the plaintiffs here seem the shakiest in terms of proving a violation.  We are also awaiting a 6th Circuit ruling on a so-far-unsuccessful challenge to its voter purge procedures, for removing people from the ballot who have not been active voters.

Arizona: Democrats are looking for a court order to make sure that the long lines that materialized in the primary will not reappear on election day. Awaiting a district court ruling.

Kansas/EAC: The D.C. Circuit is considering an appeal over the issue of whether an EAC bureaucrat exceeded his authority when he allowed Kansas and Arizona to require documentary proof of citizenship for voters who register to vote in federal elections using the federal form. There is also litigation over the “dual” voting system that SOS Kobach has put in place over the objections of voting rights activists.

[If you want details on any of these cases, use the search box on ELB or check out the Major Pending Election Cases <http://moritzlaw.osu.edu/election-law/major-pending-cases/> at the indispensable Election Law @ Moritz website).


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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>


“What I’ve found researching ranked-choice voting: It makes voting harder, lowers participation”<http://electionlawblog.org/?p=85646>
Posted on August 22, 2016 8:17 am<http://electionlawblog.org/?p=85646> by Rick Hasen<http://electionlawblog.org/?author=3>

Jason McDaniel oped,<http://bangordailynews.com/2016/08/20/opinion/contributors/what-ive-found-researching-ranked-choice-voting-it-makes-voting-harder-lowers-participation/> Bangor Daily News.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Trump Running Pre-Citizens United Type Campaign But Without Soft Money<http://electionlawblog.org/?p=85644>
Posted on August 22, 2016 7:43 am<http://electionlawblog.org/?p=85644> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT <http://www.nytimes.com/2016/08/22/us/politics/donald-trump-fundraising.html?ref=politics> on the worst of both worlds for Trump campaign:

The arrangement is a kind of throwback to the pre-Citizens United era, when party organizations — not independent “super PACs” and political nonprofits — assumed many of the financial and organizational burdens of national campaigns.

But it also highlights the bind in which Republican leaders find themselves as Mr. Trump’s struggles threaten to undermine the party’s Senate and House candidates in November: As dependent as Mr. Trump is on their organization, the party is now deeply dependent on Mr. Trump’s surging base of small donors to finance it.
“There is no moving the turnout operation or the absentee ballot program away from Donald Trump and in some senator’s favor,” Reince Priebus, the Republican National Committee chairman, said in an interview on Sunday with CBS’s “Face the Nation.” “It doesn’t work that way. There’s no hundred million dollars in a drawer that might not be spent on one person, but in favor of another.”

In contrast with campaign financing in 2012, there is no outside cavalry of deep-pocketed super PACs preparing to buttress Mr. Trump’s television and field efforts. Two of the largest outside groups backing Mr. Trump began August with less than $4 million combined cash on hand, according to Federal Election Commission filings, half of it from a single donor, the wealthy New York investor Robert Mercer. The primary super PAC backing Mrs. Clinton, Priorities USA Action, reported $38.6 million in the bank and claimed an additional $44 million in committed funds from wealthy donors….

The parties cannot raise unlimited “soft money” contributions — money raised into state rather than federal accounts and parlayed into large-scale political advertising campaigns — as they could during the 1990s, before super PACs became legal.

“In 1996, national party committees could raise both federal money and nonfederal money,” said Benjamin L. Ginsberg, a former chief counsel at the Republican National Committee and a longtime Republican election lawyer. He added, “The 1996 R.N.C. raised significant money on its own it could spend as it saw fit.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Signs suggest Hillary Clinton may be more open to lobbyists in her administration”<http://electionlawblog.org/?p=85642>
Posted on August 22, 2016 7:41 am<http://electionlawblog.org/?p=85642> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/wp/2016/08/22/signs-suggest-hillary-clinton-may-be-more-open-to-lobbyists-in-her-administration/>
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Posted in lobbying<http://electionlawblog.org/?cat=28>


“What if Trump won’t accept defeat?”<http://electionlawblog.org/?p=85640>
Posted on August 22, 2016 7:33 am<http://electionlawblog.org/?p=85640> by Rick Hasen<http://electionlawblog.org/?author=3>

Eli Stokols for Politico.<http://www.politico.com/story/2016/08/donald-trump-concede-succession-227252?platform=hootsuite>
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“Opinion: Three ways Congress can muscle-up to your voting rights”<http://electionlawblog.org/?p=85638>
Posted on August 22, 2016 7:27 am<http://electionlawblog.org/?p=85638> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Golden and Larry Lessig<http://chicago.suntimes.com/opinion/opinion-three-ways-congress-can-muscle-up-to-your-voting-rights/> in the Chicago Sun-Times:

Fortunately, some in Congress are working toward a solution. Just before the national conventions, the House Democratic leadership announced its “By The
People” (BTP) legislative package. These reforms, backed by 187 members of the rank-and-file, are designed to “revitalize our nation’s voting laws, restore sanity to the electoral process, and empower everyday Americans to reclaim their voice in the political process.”

First, BTP would take a big step toward reforming the practice of gerrymandering by mandating independent state commissions that would more fairly draw America’s lopsided congressional districts. When over 84 percent of U.S. House races are foregone conclusions before voting even begins, and 95 percent of incumbents are reelected, largely due to rigged districts, it is time to take action. Clinton supports such action. Not a word from her opponent.

Second, BTP would restore essential provisions of the Voting Rights Act, which was eviscerated by the Supreme Court 2013 Shelby v. Holder ruling; promote automatic voter registration for all Americans when they turn 18; and expand early, in-person voting in every state. Clinton supports these actions. Not a word from her opponent.

Third, and perhaps most importantly, BTP would change the way congressional elections are funded, by leveraging small donations up to $150 with public matching funds at a ratio of 6 to 1— and 9 to 1 for candidates who choose not to accept contributions over $150. The law would force disclosure of the millions of dollars in dark money contributions that currently remain hidden within our system, and replace the gridlocked FEC with a five-member agency possessing increased investigative and enforcement powers. Clinton supports these changes. Silence from her opponent.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>


I Talked to Forward Thinking Radio About Plutocrats United, Out in Paperback This Week<http://electionlawblog.org/?p=85636>
Posted on August 22, 2016 7:19 am<http://electionlawblog.org/?p=85636> by Rick Hasen<http://electionlawblog.org/?author=3>

Listen.<http://www.forwardthinkingradio.com/2016/08/21/rick-hasen/>

Ordering info for the paperback. <https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300223544/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=&sr=>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>


“Can the States Save American Democracy?”<http://electionlawblog.org/?p=85633>
Posted on August 22, 2016 7:15 am<http://electionlawblog.org/?p=85633> by Rick Hasen<http://electionlawblog.org/?author=3>

Hendrick Smith<http://www.nytimes.com/2016/08/21/opinion/can-the-states-save-american-democracy.html?smid=tw-share> in the NYT Sunday Review:

Now, with Congress often gridlocked by Republicans from those safe districts, the initiative on reform has shifted to the states. Insurgency has spread beyond California and New York to unlikely Republican bastions like Arizona, Florida, Idaho, Indiana, Nebraska and South Dakota.

At this point, 17 states have become reform battlegrounds. In six, lawsuits are challenging racial or partisan gerrymandering, and in five more, that goal is being pursued by popular movements, state governors or legislative bodies. This summer, federal courts have ruled in favor of suits seeking to strike down strict photo-identification requirements in Texas, North Carolina and North Dakota. The courts found that the requirements discriminated against minorities, and often seniors and students. Other citizen lawsuits have won restoration of early voting days in Ohio and straight-ticket voting for Michigan.

South Dakota and Washington State are holding referendums on proposals for more transparent elections; similar petition drives fell just short of success in Arizona and Idaho. This year, reformers in California, New York and Washington State have been mustering votes to press Congress to control campaign funding and ban corporate campaign contributions.

In the pushback against Citizens United, 17 states and more than 680 local governments have appealed to Congress for a constitutional amendment, either through a letter to Congress, referendums, legislative resolutions, city council votes or collective letters from state lawmakers. In the most prominent case, California’s 18 million registered voters get to vote in November on whether to instruct their 55-member congressional delegation to “use all of their constitutional authority” to overturn Citizens United. Washington State is holding a similar referendum.

In 2014, a Democratic amendment proposal to allow regulation and limits on electoral spending won a 54-42 majority in the Senate, strictly along party lines, but fell short of the 60 votes needed to prevent a filibuster. Now bills calling for a 6-to-1 match of public funds for small campaign donations up to $150, or requiring disclosure of funders for campaign ads, have wide Democratic support, but are blocked by Republican opposition.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Sacramento’s new ‘slush funds’: Ballot measure committees”<http://electionlawblog.org/?p=85631>
Posted on August 22, 2016 7:13 am<http://electionlawblog.org/?p=85631> by Rick Hasen<http://electionlawblog.org/?author=3>

San Jose Mercury News<http://www.mercurynews.com/california/ci_30271317/sacramentos-new-slush-funds-ballot-measure-committees>:

A Bay Area News Group analysis shows that the number of candidate-controlled ballot measure committees has skyrocketed from six to at least three dozen over the past decade. Of the nearly $3 million spent by these committees since 2013, only $1 out of every $4 was used to help pass or kill measures that actually made it to the ballot.

Under the vague language of a 47-year-old political law, elected officials can legally operate these committees — but the way they’re doing it appears to bend state laws and rules governing how the money may be spent. And no state agency adequately monitors the situation.

I have argued<http://electionlawblog.org/archives/hasen-usc.pdf> that it would be constitutional to impose contribution limits on candidate-controlled ballot measure committees because they present the same dangers as contributions directly to candidates.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Donald Trump, a ‘Rigged’ Election and the Politics of Race”<http://electionlawblog.org/?p=85629>
Posted on August 21, 2016 1:29 pm<http://electionlawblog.org/?p=85629> by Rick Hasen<http://electionlawblog.org/?author=3>

Today’s must-read <http://www.nytimes.com/2016/08/22/us/politics/donald-trump-a-rigged-election-and-the-politics-of-race.html?smid=tw-share> from Maggie Haberman and Matt Flegenheimer in the NYT:

Darrell L. Clarke, Philadelphia’s City Council president, said the racial overtones of Mr. Trump’s remarks were clear.

“When you talk about ‘certain areas’ in Pennsylvania, we all know what that means,” he said. “He’s talking about Philadelphia and some of the urban areas.”

The Trump campaign recently started a website<https://www.donaldjtrump.com/lp/volunteer-to-be-a-trump-election-observer> urging people to sign up as election watchers. All campaigns bring on poll watchers, but they are required to go through extensive training about what crosses the line into intimidation.

The Republican National Committee has been operating under a consent decree for more than three decades, after claims that members of the committee intimidated minority voters at the polls in the 1970s and 1980s. Mr. Trump’s campaign, according to committee officials, is not bound by that document, despite the intermingling of their resources.

The consent decree is set to expire soon, but not before the election. Republicans have fretted that Mr. Trump’s bombast would invite Democrats to fight to keep it in place.

Mr. Braden, the Republican election lawyer, said that sweeping talk about fraud could backfire in tight Senate races in which Republicans end up ahead by a slim margin.

“From my perspective, no, it is not helping,” he said. “A more measured, thoughtful discussion of the issue, which is worth discussing, would be helpful.”

“But that,” he added, “does not seem to be his style.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


--
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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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