[EL] ELB News and Commentary 8/30/16

Mon Aug 29 21:58:39 PDT 2016

Strange Goings On in 7th Circuit En Banc WI Voter ID Case: A 9th Vote Appears<http://electionlawblog.org/?p=85988>
Posted on August 29, 2016 9:46 pm<http://electionlawblog.org/?p=85988> by Rick Hasen<http://electionlawblog.org/?author=3>

On Friday, I linked<http://electionlawblog.org/?p=85911> to this per curiam order<http://electionlawblog.org/wp-content/uploads/walker-en-banc.pdf> from the Seventh Circuit in the two WI voter id/voting cases<http://electionlawblog.org/?p=85911>, I then noted<http://electionlawblog.org/?p=85939>:

Two years ago, when the en banc 7th Circuit considered an earlier stage of the Frank v. Walkerlitigation, in which a 7th Circuit panel had upheld WI’s strict voter id law against a facial challenge, the en banc court divided 5-5. But since then one of the conservatives on the court retired, leaving the possibility of a 5-4 vote in Frank to allow people without one of the strict forms of id to vote with an affidavit.

But one of the judges who could have been in such a five-judge majority, Judge Williams, did not participate in the case. We are not told why. It could be health, a need to recuse for some reason, or some other reason.

As Mark Sherman noted<https://twitter.com/shermancourt/status/769274954819010560> when the compromise per curiam order appeared, the unanimous per curiam could mask a 4-4 split.  Imagine if 4 judges wanted to restore the affidavit requirement and 4 did not, and 4 wanted to side with Wisconsin in its other challenge and four did not.  That would leave things standing as they were in any case, and would not do much good.

But now the 7th Circuit has reissued its per curiam order as amended<https://t.co/EZFh8xX8DT>, with Judge Williams listed as participating. The addition of Judge Williams appears to be the only difference to the opinion.

So why was Judge Williams out, and now in?

Here’s a guess, and it is only a guess: Judge Williams was otherwise travelling or not available, and the judge did not participate. But when some of us started asking about this as a compromise for a 4-4 split, Judge Williams decided to add her name to silently dispel that notion.

Or maybe not. Because the judge did not give a reason for not participating the first time, it is hard to know what to make of this.

Thanks to eagle-eyed Wisconsin Election Protection, for noting the amended order.<https://twitter.com/EPWisco/status/770432448492625920>

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

“Harry Reid Cites Evidence of Russian Tampering in U.S. Vote, and Seeks F.B.I. Inquiry”<http://electionlawblog.org/?p=85986>
Posted on August 29, 2016 9:37 pm<http://electionlawblog.org/?p=85986> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/08/30/us/politics/harry-reid-russia-tampering-election-fbi.html?ref=politics>

The Senate minority leader, Harry Reid<http://topics.nytimes.com/top/reference/timestopics/people/r/harry_reid/index.html?inline=nyt-per> of Nevada, asked the F.B.I.<http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_bureau_of_investigation/index.html?inline=nyt-org> on Monday to investigate evidence suggesting that Russia may try to manipulate voting results in November.

In a letter to the F.B.I. director, James B. Comey Jr., Mr. Reid wrote that the threat of Russian interference “is more extensive than is widely known and may include the intent to falsify official election results.” Recent classified briefings from senior intelligence officials, Mr. Reid said in an interview, have left him fearful that President Vladimir V. Putin’s “goal is tampering with this election.”

News reports on Monday said the F.B.I. warned state election officials several weeks ago that foreign hackers had exported voter registration data from computer systems in at least one state, and had pierced the systems of a second one.

The bureau did not name the states, but Yahoo News<https://www.yahoo.com/news/fbi-says-foreign-hackers-penetrated-000000175.html>, which first reported the confidential F.B.I. warning, said they were Arizona and Illinois. Matt Roberts, a spokesman for Arizona’s secretary of state, said the F.B.I. had told state officials that Russians were behind the Arizona attack.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, voting<http://electionlawblog.org/?cat=31>

“Donald Trump’s Unorthodoxy Extends to Spending”<http://electionlawblog.org/?p=85984>
Posted on August 29, 2016 9:27 pm<http://electionlawblog.org/?p=85984> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ:<http://www.wsj.com/articles/donald-trumps-unorthodoxy-extends-to-spending-1472510807>

Republican Donald Trump<http://topics.wsj.com/person/T/Donald-Trump/159> has said he isn’t interested in running a traditional presidential campaign. Campaign-finance records show he’s not: Half of the campaign’s 10 highest-paid consultants over the course of the election had never previously worked for a presidential campaign.

Just one of Democrat Hillary Clinton<http://topics.wsj.com/person/C/Hillary-Clinton/6344>’s top 10 consultants had no presidential campaign experience, according to a Wall Street Journal review of Federal Election Commission records through July that focused on firms paid for consulting services, including on field, digital and strategic efforts.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Judge: Citizens United must disclose donor information to NY”<http://electionlawblog.org/?p=85982>
Posted on August 29, 2016 9:09 pm<http://electionlawblog.org/?p=85982> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://www.newsadvance.com/news/national/wire/judge-citizens-united-must-disclose-donor-information-to-ny/article_8e352fed-159d-5384-8884-626ca6edbea3.html>

A nonprofit conservative organization advocating for less government must reveal information about major donors to the state’s attorney general if it wants to solicit money in the state, a judge ruled Monday as he rejected First Amendment claims.

U.S. District Judge Sidney H. Stein said that states have a strong interest to ensure that charities do not serve as fronts for fraud and crime and the lawsuit by the conservative organization, Citizens United, failed to show that the requirement “lacks a substantial relation to these important governmental interests.”

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Analysis: New Wisconsin Voter ID Rules Expose Law’s Real Aim”<http://electionlawblog.org/?p=85980>
Posted on August 29, 2016 3:54 pm<http://electionlawblog.org/?p=85980> by Rick Hasen<http://electionlawblog.org/?author=3>

Zack Roth on why the 7th Circuit en banc WI voter id compromise isn’t so good for voters.<http://www.nbcnews.com/politics/elections/analysis-new-wisconsin-voter-id-rules-expose-law-s-real-n639581>
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Posted in 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>

Breaking: #SCOTUS Will Not Force OH to List Johnson/Weld as Libertarians on the Ballot<http://electionlawblog.org/?p=85975>
Posted on August 29, 2016 2:45 pm<http://electionlawblog.org/?p=85975> by Rick Hasen<http://electionlawblog.org/?author=3>

The Court, without comment or noted dissent, has turned down<https://twitter.com/cristianafarias/status/770375669675065345> the Libertarians’ request to have Johnson and Weld listed as Libertarians on the ballot. This not only would have helped Johnson and Weld by giving them a party label; it also would have helped the Libertarians get back ballot access in Ohio.

Now Johnson/Weld will be on ballot and can get votes in Ohio, but as independents.

There will now be two “Johnsons” <http://www.sos.state.oh.us/sos/mediaCenter/2016/2016-08-24.aspx> listed on the Presidential/VP ballots as independents in Ohio.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, Supreme Court<http://electionlawblog.org/?cat=29>, third parties<http://electionlawblog.org/?cat=47>

“Early voting in Milwaukee to include remote sites”<http://electionlawblog.org/?p=85973>
Posted on August 29, 2016 1:05 pm<http://electionlawblog.org/?p=85973> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<http://www.jsonline.com/story/news/politics/elections/2016/08/29/early-voting-milwaukee-include-remote-sites/89549930/>

Milwaukee officials plan to allow early voting on the north and south sides for two weeks starting Oct. 10 in a move that some Democrats are warning could lead to voter confusion.

Under the still-developing plans, the location for early voting would change after two weeks. The plans are “unnecessarily complicated,” said Joe Zepecki, a Democratic strategist.

“Where the objective is making it easier for people to vote, you want to have clarity and consistency throughout,” he said. “(This plan) doesn’t lend itself to everyone in a community knowing where they can vote.”…

The city is able to set such an early voting schedule because of a recent court ruling that struck down limits on early voting<http://www.jsonline.com/story/news/politics/2016/07/30/judge-strikes-down-wisconsin-voter-id-early-voting-laws/87803408/> approved by GOP Gov. Scott Walker and Republicans who control the Legislature. Under those limits, early voting could not have started until Oct. 24 and could not have included weekend voting.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Trump is already trying to delegitimize a Clinton victory. Historians say that might be unprecedented.”<http://electionlawblog.org/?p=85971>
Posted on August 29, 2016 12:46 pm<http://electionlawblog.org/?p=85971> by Rick Hasen<http://electionlawblog.org/?author=3>

Greg Sargent.<https://www.washingtonpost.com/blogs/plum-line/wp/2016/08/29/trump-is-already-trying-to-delegitimize-a-clinton-victory-historians-say-that-might-be-unprecedented/?utm_term=.b53c301300dc>
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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>

NC Files Reply Brief in #SCOTUS Voting Case; Expect Decision from Court Soon<http://electionlawblog.org/?p=85967>
Posted on August 29, 2016 12:31 pm<http://electionlawblog.org/?p=85967> by Rick Hasen<http://electionlawblog.org/?author=3>

With this reply<http://electionlawblog.org/wp-content/uploads/16A168-Reply.pdf>, briefing is now complete.

My earlier coverage and predictions.<http://electionlawblog.org/?p=85866>

Thanks to Lawrence Hurley for the document.
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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>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“State’s chief justice won’t contest moving on to general election with opponent”<http://electionlawblog.org/?p=85965>
Posted on August 29, 2016 8:59 am<http://electionlawblog.org/?p=85965> by Rick Hasen<http://electionlawblog.org/?author=3>

Tacoma News Tribune<http://www.thenewstribune.com/news/politics-government/article98374962.html>:

For a time, Washington State Supreme Court Chief Justice Barbara Madsen thought her runaway lead over two opponents in the August primary election might send her unopposed into the general election.

She was unsure in early August <http://www.thenewstribune.com/news/politics-government/election/article93614842.html> whether old election rules for judges — which said candidates who got more than 50 percent of vote in the primary didn’t have to face a challenger in the general election — still applied in this year’s election.

Now Madsen says she’s accepting the opinion of the Secretary of State’s Office that, yes, she will face second-place primary finisher Greg Zempel in November.

“I’m not prepared to dispute that with the secretary of state, so that looks like what’s going to happen,” she said last week.

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Posted in judicial elections<http://electionlawblog.org/?cat=19>

“Advocating for Fair Elections in a Small Mississippi Town”<http://electionlawblog.org/?p=85963>
Posted on August 29, 2016 8:50 am<http://electionlawblog.org/?p=85963> by Rick Hasen<http://electionlawblog.org/?author=3>

CLC blog<http://www.campaignlegalcenter.org/news/blog/advocating-fair-elections-small-mississippi-town>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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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