[EL] ELB News and Commentary 8/26/16

[Rick Hasen]

“New York Law Curbs Impact of Citizens United”<http://electionlawblog.org/?p=85890>
Posted on August 26, 2016 7:56 am<http://electionlawblog.org/?p=85890> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=96342120&vname=mpebulallissues&jd=a0k0f7z7d4&split=0>:
The impact of legislation signed by Gov. Andrew M. Cuomo (D) to combat the effects of the U.S. Supreme Court’s Citizens United decision will hurt nonprofit charities that were not intentionally targeted by the bill, according to “good government” groups.
The bill<https://www.nysenate.gov/legislation/bills/2015/S8160> (S. 8160), which was signed by Cuomo Aug. 24, would prohibit coordination between independent expenditure groups and campaigns and make other changes to the state’s campaign finance and lobbying laws. The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission eliminated decades-old restrictions on corporate campaign spending and allowed outside groups to raise and spend unlimited amounts for “independent expenditures” to influence campaigns.
While Cuomo hailed the measure as the first of its kind, the state’s leading good government groups urged him to veto the measure because it failed to address the ethical scandals that have rocked Albany, N.Y., in recent years. They also said the bill will “seriously harm some of New York’s most prestigious institutions.”
The bill, which generally took effect immediately, establishes strict limits on coordination, including a ban on coordination with independent spending groups formed by candidates, run by a candidate’s family members or run by former staffers.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Controversy vs. Corruption”<http://electionlawblog.org/?p=85888>
Posted on August 26, 2016 7:32 am<http://electionlawblog.org/?p=85888> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza Newlin Carney<http://prospect.org/article/controversy-versus-corruption>:

All that helps explain why Clinton casts GOP attacks as purely partisan. Clinton is finding it harder to explain, however, why the line between the business and interests of the Clinton Foundation and its donors, and her work as secretary of state, became so hazy. Both Clinton and Democratic Party officials are bracing themselves for the next round of email disclosures. The appearance of a conflict of interest has thrown Democrats and their standard-bearer on the defensive—despite scant evidence thus far that any laws have been broken.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>
“Millions From Maxed-Out Clinton Donors Flowed Through Loophole”<http://electionlawblog.org/?p=85886>
Posted on August 26, 2016 7:28 am<http://electionlawblog.org/?p=85886> by Rick Hasen<http://electionlawblog.org/?author=3>

Bill Allison<http://www.bloomberg.com/politics/graphics/2016-dnc-contributions/> for Bloomberg.

Is it right to call it a “loophole” when the Supreme Court required these entities in McCutcheon?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“The Government Shouldn’t Get to Do Unconstitutional Things by Only Doing Them for Short Periods of Time”<http://electionlawblog.org/?p=85884>
Posted on August 26, 2016 7:25 am<http://electionlawblog.org/?p=85884> by Rick Hasen<http://electionlawblog.org/?author=3>

Ilya Shapiro and Thomas Berry<http://www.cato.org/blog/government-shouldnt-get-do-unconstitutional-things-only-doing-them-short-periods-time> for Cato on a campaign finance PAC-related case with a cert. petition at SCOTUS.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Some Recent Election-Related Writing and Coverage<http://electionlawblog.org/?p=85882>
Posted on August 26, 2016 7:23 am<http://electionlawblog.org/?p=85882> by Rick Hasen<http://electionlawblog.org/?author=3>

Rounded up<http://www.law.uci.edu/news/faculty/election2016-roundup.html> by @UCILaw, and also including comments of my Dean, Erwin Chemerinsky.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“4 experts make the case that the Clinton Foundation’s fundraising was troubling”<http://electionlawblog.org/?p=85880>
Posted on August 26, 2016 7:21 am<http://electionlawblog.org/?p=85880> by Rick Hasen<http://electionlawblog.org/?author=3>

Good piece<http://www.vox.com/2016/8/25/12615340/hillary-clinton-foundation> at Vox. As I’ve said, there was nothing special about Clinton’s exchange of donations for access. That’s business as usual. And that’s the problem.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Irony Alert: Trump Campaign CEO, Former Breitbart Head, Accused of Voter Fraud<http://electionlawblog.org/?p=85878>
Posted on August 26, 2016 7:00 am<http://electionlawblog.org/?p=85878> by Rick Hasen<http://electionlawblog.org/?author=3>

The Guardian<https://www.theguardian.com/us-news/2016/aug/26/steve-bannon-florida-registered-vote-donald-trump> has an explosive story on Steve Bannon, the former head of Breitbart and now the Trump campaign CEO, possibly committing voter fraud:

Donald Trump’s new presidential campaign chief is registered to vote in a key swing state at an empty house where he does not live, in an apparent breach of election laws.

Stephen Bannon<https://www.theguardian.com/us-news/2016/aug/17/donald-trump-stephen-bannon-breitbart-news-kellyanne-conway>, the chief executive of Trump’s election campaign, has an active voter registration at the house in Miami-Dade County, Florida, which is vacant and due to be demolished to make way for a new development.

“I have emptied the property,” Luis Guevara, the owner of the house, which is in the Coconut Grove section of the city, said in an interview. “Nobody lives there … we are going to make a construction there.” Neighbors said the property had been abandoned for several months

Bannon, 62, formerly rented the house for use by his ex-wife, Diane Clohesy, but did not live there himself. Clohesy, a Tea Party activist, moved out of the house earlier this year and has her own irregular voting registration arrangement. According to public records, Bannon and Clohesy divorced seven years ago.
Bannon previously rented another house for Clohesy in Miami from 2013 to 2015 and assigned his voter registration to the property during that period. But a source with direct knowledge of the rental agreement for this house said Bannon did not live there either, and that Bannon and Clohesy were not in a relationship.

Bannon, Clohesy and Trump’s campaign repeatedly declined to answer detailed questions about Bannon’s voting arrangements. Jason Miller, a Trump campaign spokesman, eventually said in an email: “Mr Bannon moved to another location inFlorida<https://www.theguardian.com/us-news/florida>.” Miller declined to answer further questions.

So did Bannon commit voter fraud by lying about his residency?  If he in fact maintained residency by moving to another location in Florida, and he intended to make Florida his permanent residence, then arguably no, even if he was spending much of his time in other states. The question of residency is often difficult in practice, particularly for people who live in multiple places. But if he maintained no home in Florida and spent no time living there, there’s a decent chance he is fraudulently registered. These inquiries are notoriously fact specific.

There’s been a similar claim leveled against Ann Coulter for years. <http://www.salon.com/2014/07/15/ann_coulters_voter_fraud_secret_why_she_urged_republican_not_to_push_issue/>

So while we may for now give the benefit of the doubt to Bannon, until more facts are ferreted out, we can know with confidence that his inflammatory Breitbart news, which fans the flames of rampant voter fraud as part of the fraudulent fraud squad and its network of phonies, would not do the same if they were covering someone like Bannon, especially if he were a person of color.

UPDATE: Michael McDonald checked the voter file and no evidence of Bannon actually voting in Miami-Dade. So is this voter registration fraud? Mike:<https://twitter.com/ElectProject/status/769186200544505856> “I’ll take him at his word that he briefly lived in the home (its a rental) – and at the time he intended to live there.”

But if this is the explanation, why didn’t the campaign say this instead of suggesting he had set up residency somewhere else in Florida? It shows the campaign was flat-footed at best in its response. Now the question: does he really have another Florida residence?
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Illinois redistricting referendum won’t appear on ballot”<http://electionlawblog.org/?p=85876>
Posted on August 25, 2016 8:43 pm<http://electionlawblog.org/?p=85876> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://m.apnews.com/ap/db_268748/contentdetail.htm?contentguid=BxkrO2lt>

A divided Illinois Supreme Court narrowly ruled Thursday that a voter referendum seeking to change how Illinois draws political boundaries is unconstitutional, making it ineligible to appear on the November ballot.

The high court, in a 4-3 decision, affirmed the ruling by a Cook County judge who determined the ballot initiative seeking to give legislative mapmaking power to an independent commission instead of lawmakers didn’t meet constitutional muster. It’s the second failed attempt to overhaul redistricting by petition in two years.

You can find the opinion at this link<http://www.illinoiscourts.gov/Opinions/SupremeCourt/2016/121077.pdf>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>
“A Theory of Bribery”<http://electionlawblog.org/?p=85874>
Posted on August 25, 2016 3:02 pm<http://electionlawblog.org/?p=85874> by Rick Hasen<http://electionlawblog.org/?author=3>

Looking forward to reading this <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828840> by Deborah Hellman (forthcoming, Cardozo Law Review):

In a unanimous opinion in McDonnell v. United States, the Supreme Court invalidated the conviction of the former Governor of Virginia on charges of bribery and called attention to the critical role that bribery laws play in democratic government. Bribery laws fulfill this function by determining what actions of governmental officials are, and are not, for sale. Bribery laws also undergird the Court’s campaign finance cases. Campaign finance doctrine rests on the assumption that a legitimate campaign contribution is distinguishable from a bribe, a least in theory. But is it? In order to answer this question, we need a theory of bribery. This is no easy task.

This article offers a new theory of bribery according to which agreements to exchange official acts for something else only constitute bribery when the value exchanged for the political act is something external to politics. According to this “external value” account, trading a legislative vote for money is bribery while trading it for another vote is not.

An “external value” theory of bribery explains why campaign contributions are controversial. Contributions can be seen as money or politics. However recent Supreme Court cases treat giving money to the campaigns of political candidates and elected officials as a central form of political participation. But if the campaign contribution is a purely political act, it becomes increasingly difficult to distinguish a campaign contribution from a bribe.
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Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
Strange Goings on in Vermont Campaign Finance<http://electionlawblog.org/?p=85872>
Posted on August 25, 2016 3:00 pm<http://electionlawblog.org/?p=85872> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s a story<http://vtdigger.org/2016/07/26/as-sorrells-tenure-winds-down-campaign-finance-case-heats-up/> from late July that probably deserves more coverage:

Accusations are flying in the state’s ongoing prosecution of an alleged campaign finance law violation from nearly two years ago.

The case involving Attorney General Bill Sorrell’s pursuit of Dean Corren, who ran for lieutenant governor in 2014, is still pending in federal district court in Burlington and Washington County Superior Court.

Sorrell is leaving office next year. He signaled in a recent interview that he is prepared to settle for less than his original request of $72,000 in fines and penalties. He accused Corren and his lawyer, John Franco, of being responsible for the delays in the case.

Corren called Sorrell’s interest in a settlement “disingenuous.” Corren said he would not agree to a deal, had already spent close to $20,000 in legal fees and wanted his name cleared.

Corren insists Sorrell should drop the state case because a ruling by District Judge William Sessions this year contained sections Corren said completely undermined the attorney general’s fundamental argument that a bulk email sent out on Corren’s behalf by the Democratic Party was not allowable while he was taking public funds to pay for his campaign.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>
“U.S. District Court Enjoins Illinois 5% Petition Requirement for Candidates for U.S. House who Make a Substantial Effort”<http://electionlawblog.org/?p=85870>
Posted on August 25, 2016 2:59 pm<http://electionlawblog.org/?p=85870> by Rick Hasen<http://electionlawblog.org/?author=3>

BAN reports.<http://ballot-access.org/2016/08/25/u-s-district-court-enjoins-illinois-5-petition-requirement-for-candidates-for-u-s-house-who-make-a-substantial-effort/>
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Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>
DOJ and Private Plaintiffs File #SCOTUS Responses in NC Emergency Voting Case<http://electionlawblog.org/?p=85866>
Posted on August 25, 2016 12:42 pm<http://electionlawblog.org/?p=85866> by Rick Hasen<http://electionlawblog.org/?author=3>

Private Plaintiffs’ response<https://www.scribd.com/document/322178169/2016-08-25-Opposition-to-States-Application>.

DOJ’s response.<https://assets.documentcloud.org/documents/3034743/16A168-Response-United-States.pdf>

Chief Justice Roberts can now decide this motion himself or refer to the Court. (NC might try to draft a reply by tomorrow).  I’d expect a decision early next week. Here’s what I said<http://electionlawblog.org/?p=85336> about the chances when NC filed its emergency motion:

But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the assurances<http://electionlawblog.org/?p=84989> the state gave the fourth circuit that a decision by the end of July would be enough time to implement its decision. And they waited SEVENTEEN DAYS to file this thing. Second, there is a finding of intentional discrimination here, and as I argue in my piece Reining in the Purcell Principle<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>, such a finding should weigh heavily on a court in considering whether a last minute change is warranted. That is, even if a change comes at the last minute from a court, it can well be justified if the state has engaged in deliberately bad conduct. In these circumstances, as I’ve written<http://electionlawblog.org/?p=85043>, I don’t expect Justice Breyer to be a fifth vote for a “courtesy stay.”

So here’s my prediction: stay denied by the Supreme Court, either without comment, or with a dissent from Justices Alito and Thomas.


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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“How to seek consensus presidential nominees in 2020”<http://electionlawblog.org/?p=85864>
Posted on August 25, 2016 12:28 pm<http://electionlawblog.org/?p=85864> by Rick Hasen<http://electionlawblog.org/?author=3>

Saul Anuzis in The Hill<http://thehill.com/blogs/pundits-blog/campaign/292567-how-to-seek-consensus-presidential-nominees-in-2020>:

Last month the major parties held their conventions to pick presidential nominees Donald Trump<http://thehill.com/people/donald-trump> and Hillary Clinton<http://thehill.com/people/hillary-clinton>. But before we turn our attention solely to the general election, I’d like to highlight a sensible proposal that state parties have the power to enact before the 2020 elections that promises to benefit both parties.

We have become a multiple option society in nearly every way. Politics is no different, as the 11 serious candidates seeking the Republican nomination at the time of the Iowa caucuses can attest. A greater mix of candidates and choices can enrich our policy debates and allow parties to show they have a big tent that, when united, can hold a majority of Americans.

There’s just one problem: we only allow voters to indicate support for one candidate no matter how many choices they have. It’s time to seriously consider what Robert’s Rules of Order calls preferential voting and what many cities using it call “ranked choice voting.”

Ranked choice voting is a proven way to vote. Its recommendation by Robert’s Rules has led to extensive use by private organization elections, from the Utah Republican Party to the Oscars for Best Picture. London elects its mayor with ranked choice voting, and Australia has used it for its national elections for nearly a century.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>
“Do Scam PACs Have More Rights Than Scam Products?”<http://electionlawblog.org/?p=85862>
Posted on August 25, 2016 12:27 pm<http://electionlawblog.org/?p=85862> by Rick Hasen<http://electionlawblog.org/?author=3>

CREW blogs<http://www.citizensforethics.org/scam-pacs-rights/>.


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Posted in campaign finance<http://electionlawblog.org/?cat=10>
Ohio Files #SCOTUS Response in Gary Johnson Bid to Be Labeled “Libertarian” on Ohio Ballot<http://electionlawblog.org/?p=85860>
Posted on August 25, 2016 12:17 pm<http://electionlawblog.org/?p=85860> by Rick Hasen<http://electionlawblog.org/?author=3>

Filing<https://assets.documentcloud.org/documents/3034736/16A181-Response-OH.pdf>

(and a filing by intervenor Gregory Felsoci<https://assets.documentcloud.org/documents/3034737/16A181-Response-Felsoci.pdf> (more on Felsoci here<http://www.cleveland.com/open/index.ssf/2014/03/federal_judge_says_republicans.html>).

Justice Kagan can decide this or refer to the full Court. I expect a decision very soon, given the ballot printing deadline of Tuesday.

Thanks to Chris Geidner for links to the documents.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, political parties<http://electionlawblog.org/?cat=25>, Supreme Court<http://electionlawblog.org/?cat=29>
“Judge sets oral arguments to determine if Texas intended to discrminate with voter ID law”<http://electionlawblog.org/?p=85858>
Posted on August 25, 2016 11:52 am<http://electionlawblog.org/?p=85858> by Rick Hasen<http://electionlawblog.org/?author=3>

David Saleh Rauf reports<http://www.expressnews.com/news/politics/texas_legislature/article/Judge-sets-oral-arguments-to-determine-if-Texas-9184338.php?t=9de5082b424b6b00f7&cmpid=twitter-premium> in the San Antonio Express-News on this Order <https://www.documentcloud.org/documents/3034639-Order-Setting-Briefing-Schedule-on-Intent-8-25-16.html> setting a January argument date on the question whether Texas passed its voter identification law with a racially discriminatory purpose.

A finding of racially discriminatory purpose could allow the trial judge to strike the entire voter id law (and not just soften it). It could also lead, under Section 3 of the Voting Rights Act, to placing Texas back under Federal supervision of its voting laws for up to 10 years.

The story also notes that the Texas AG has seemed to indicate there will NOT be any emergency action to the Supreme Court before the election to reverse the softening of the law ordered by the 5th Circuit and adopted by Texas in the district court.
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--
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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