[EL] ELB News and Commentary 12/10/16

Fri Dec 9 15:43:49 PST 2016

Also reposting link to Teddy Rave article with corrected link:

Michigan Supreme Court, on 3-2 Party Line Vote, Refuses to Take Up Suit to Revive Recount<http://electionlawblog.org/?p=89850>
Posted on December 9, 2016 3:11 pm<http://electionlawblog.org/?p=89850> by Rick Hasen<http://electionlawblog.org/?author=3>
You can find the court’s order, a concurring opinion, and two dissenting opinions at this link. <https://t.co/qJT8swWLGO>  The two Democrats dissented.
Two Republican judges on Trump’s short list recused.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Homeland Security: ‘Deeply Concerned’ About Attempted Breach of Georgia Computer System”<http://electionlawblog.org/?p=89847>
Posted on December 9, 2016 2:41 pm<http://electionlawblog.org/?p=89847> by Rick Hasen<http://electionlawblog.org/?author=3>
Byron Tau<http://www.wsj.com/articles/homeland-security-deeply-concerned-about-attempted-breach-of-georgia-computer-system-1481317853?mod=wsj_streaming_stream> for WSJ:
he Department of Homeland Security said it is “deeply concerned” about what appears to be an attempted breach of Georgia’s secretary of state computer systems<http://www.wsj.com/articles/georgia-reports-attempt-to-hack-states-election-database-via-ip-address-linked-to-homeland-security-1481229960> that has been tracked to a federal internet address.
In a response to Georgia sent Thursday night, the department said it had tracked the IP address to part of the U.S. Customs and Border Protection computer network—a part of Homeland Security that isn’t typically involved in cybersecurity efforts.
Georgia Secretary of State Brian Kemp this week said the state had discovered an unsuccessful attempt to breach the firewall of computer systems that house sensitive data, such as voter registration and corporate information. The attempt occurred on Nov. 15, Mr. Kemp wrote in a letter.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“A ‘Political Horror Show’ of Recounts, 16 Years After Hanging Chads”<http://electionlawblog.org/?p=89845>
Posted on December 9, 2016 2:21 pm<http://electionlawblog.org/?p=89845> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/12/09/us/a-political-horror-show-of-recounts-16-years-after-hanging-chads.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=sectionfront>
States still have vastly different systems for calling recounts and for carrying them out. Counting standards are inconsistent, state to state, and obscure provisions, like one in Michigan that deems some precincts not “recountable,” threaten to raise more public doubt about elections than confidence. Some of the most basic questions — is it better to count by hand, or with a machine? — have not been settled.
And the process is endlessly mired in political and legal maneuvering; some days this week, the legal fight was playing out in the three states, seemingly simultaneously, in nearly every level of state and federal courts, while partisan leaders held dueling news conferences.
“This is a learning opportunity for the nation, to watch what’s going on now, and to realize how chaotic and confusing the process can be,’’ said Edward B. Foley, the director of the Election Law Project at Ohio State University’s Moritz College of Law<http://moritzlaw.osu.edu/election-law/>. “That would not be desirable in a situation where it would make a difference.”…
A group of lawyers with the American Law Institute<https://www.ali.org/meetings/show/principles-law-election-administration-non-precinct-voting-and-resolution-ballot-counting-disputes-d/>, an independent research organization, discussed model legislation on Friday to help states clarify recount procedures.
E. Mark Braden, a member of that group and a former chief counsel of the Republican National Committee, said state procedures often made it difficult to resolve disputes and certify results in the short period between the election and the meeting of the Electoral College.
This year’s legal gymnastics show how difficult it is to resolve disputes under a tight deadline. “This circus atmosphere,” Mr. Braden said, “is very familiar to those of us who have done statewide recounts.”
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Trump blasts early voting: ‘Many things can go wrong’”<http://electionlawblog.org/?p=89843>
Posted on December 9, 2016 2:05 pm<http://electionlawblog.org/?p=89843> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2016/12/donald-trump-early-voting-232437>
Donald Trump on Friday expressed support for restricting voting rights.
Stumping for Louisiana Senate candidate John Kennedy, Trump urged supporters to help elect the Republican state treasurer to the U.S. Senate, a victory that would give the GOP a 52-48 majority in the upper chamber.
But the president-elect also recalled seeing extremely long lines in Florida during the state’s early voting period ahead of Election Day, suggesting “many things can go wrong” with so much time allocated to allow citizens to vote.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Donald Trump rewarding million-dollar donors with plum postings”<http://electionlawblog.org/?p=89837>
Posted on December 9, 2016 10:44 am<http://electionlawblog.org/?p=89837> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI reports.<https://www.publicintegrity.org/2016/12/09/20516/donald-trump-rewarding-million-dollar-donors-plum-postings>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Justices on Trump list to sit out recount case”<http://electionlawblog.org/?p=89834>
Posted on December 9, 2016 10:24 am<http://electionlawblog.org/?p=89834> by Rick Hasen<http://electionlawblog.org/?author=3>
Detroit News:<http://www.detroitnews.com/story/news/politics/2016/12/09/trump-justices-recount/95192294/>
Two Michigan Supreme Court Justices have disqualified themselves from considering a presidential recount appeal by Green Party candidate Jill Stein because Republican President-elect Donald Trump has named them among his possible picks for the United States Supreme Court.
Chief Justice Bob Young and Justice Joan Larsen, who have each appeared on short lists Trump released during the campaign, granted the Stein campaign request<http://www.detroitnews.com/story/news/politics/2016/12/06/stein-justices-recount/95039684/> on Thursday….
Larsen, 47, said she did not take the decision to disqualify herself lightly but conceded that her appearance on a Trump campaign list of 21 possible Supreme Court nominees creates a conflict.
“I did not seek inclusion on the list, had no notice of my inclusion before its publication, and have had not contact with the president-elect, or his campaign, regarding the vacancy,” Larsen wrote. “Yet the president-elect and his surrogates have repeatedly affirmed his intention to select someone from the list to fill the vacancy.”
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Posted in election administration<http://electionlawblog.org/?cat=18>

“A Guide to Election Year Activities of Section 501(c)(3) Organizations”<http://electionlawblog.org/?p=89832>
Posted on December 9, 2016 10:06 am<http://electionlawblog.org/?p=89832> by Rick Hasen<http://electionlawblog.org/?author=3>
Steven Sholk has published an updated version<http://www.gibbonslaw.com/Files/Publication/0252d647-2c42-4cdd-a61a-023d6b962551/Presentation/PublicationAttachment/40d0ace2-62db-4a68-927e-087527a93b81/Sholk-2016.pdf> of his very useful publication.
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Posted in election administration<http://electionlawblog.org/?cat=18>, tax law and election law<http://electionlawblog.org/?cat=22>

“Lawyers’ Committee for Civil Rights Under Law Secures Important Voting Rights Victory in Rural Georgia”<http://electionlawblog.org/?p=89830>
Posted on December 9, 2016 10:03 am<http://electionlawblog.org/?p=89830> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:
The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), the law firm of Carlton Fields, Georgia NAACP and attorney Jerry Wilson announced a settlement agreement in the case, Georgia State Conference of the NAACP, et al. v. Emanuel County Board of Commissioners.<http://lccrul.pr-optout.com/Tracking.aspx?Data=HHL%3d82889%26JDG%3c%3b28493%3e%26SDG%3c90%3a.&RE=MC&RI=4572568&Preview=False&DistributionActionID=4379&Action=Follow+Link>  Under the agreement, the electoral map for Emanuel County, Georgia, will be re-drawn to establish two majority-African American school board districts. Through the creation of at least two “majority minority” districts, African American residents of Emanuel County will be afforded the opportunity to elect school board candidates of choice.
The settlement resolves a federal lawsuit filed in the U.S. District Court for the Southern District of Georgia in February 2016, alleging that the County’s current electoral map violates Section 2 of the Voting Rights Act of 1965 (VRA) by diluting the voting power of African Americans. The lawsuit was brought on behalf of the Georgia NAACP, the state’s oldest and largest civil rights organization, and two Emanuel County voters….
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Obama Orders Intelligence Report on Russian Election Hacking”<http://electionlawblog.org/?p=89828>
Posted on December 9, 2016 10:01 am<http://electionlawblog.org/?p=89828> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/12/09/us/obama-russia-election-hack.html?_r=0>
President Obama<http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per> has ordered American intelligence agencies to produce a full report on Russian efforts<https://www.nytimes.com/2016/11/17/us/politics/white-house-confirms-pre-election-warning-to-russia-over-hacking.html> to influence the 2016 presidential election, his homeland security adviser said on Friday. He also directed them to develop a list of “lessons learned” from the broad campaign the United States has accused Russia<http://topics.nytimes.com/top/news/international/countriesandterritories/russiaandtheformersovietunion/index.html?inline=nyt-geo> of carrying out to steal emails, publish their contents and probe the vote-counting system.
“We may have crossed a new threshold here,” Lisa Monaco, one of Mr. Obama’s closest aides and the former head of the national security division of the Justice Department, told reporters Friday. “He expects to receive this report before he leaves office.”
The report, according to senior administration officials, will trace the attacks on the Democratic National Committee and on prominent individuals like John D. Podesta<https://www.nytimes.com/2016/10/12/us/politics/hillary-clinton-emails-wikileaks.html>, the chairman of Hillary Clinton’s presidential campaign.
But it is unclear that the contents of the report will be made public.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

Call for Papers: “Protecting electoral security and voting rights: The 2016 American elections in comparative perspective”<http://electionlawblog.org/?p=89826>
Posted on December 9, 2016 8:14 am<http://electionlawblog.org/?p=89826> by Rick Hasen<http://electionlawblog.org/?author=3>
This looks like <https://sites.google.com/site/electoralintegrityproject4/events-1/san-francisco-aug-2017> it will be a great pre-APSA event in San Francisco.
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Posted in election administration<http://electionlawblog.org/?cat=18>
“Fiduciary Voters?”<http://electionlawblog.org/?p=89797>
Posted on December 9, 2016 7:45 am<http://electionlawblog.org/?p=89797> by Rick Hasen<http://electionlawblog.org/?author=3>
Teddy Rave has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2868889> [corrected link] on SSRN (Duke Law Journal).  Here is the abstract:
What does the majority owe the minority when issues are put to a vote? This question is central to direct democracy, where voters bypass the legislature and enact law directly. Some scholars have argued that voters in direct democracy bear fiduciary-like duties because they act as representatives when casting their ballots. The Supreme Court, by contrast, has suggested that voters are not agents of the people and thus have no fiduciary obligation. By focusing on whether direct-democracy voters are representatives who bear duties, both sides have framed the issue incorrectly. They have imported a legal tool — fiduciary duty — from private law designed to combat a governance problem absent from direct democracy: a principal–agent problem. The real governance problem in direct democracy is the tyranny of the majority. Once we focus on the right problem, private law — specifically corporate law — provides useful insights. Corporate law imposes duties — sometimes confusingly also called “fiduciary” — on shareholder majorities to consider minority interests when voting. Although these duties do not require the majority to subordinate its own interests like a true duty of loyalty, courts recognize the need to police for opportunism when the minority is vulnerable to exploitation. Looking to these private-law voter duties can help explain a puzzling line of Supreme Court cases reviewing the constitutionality of ballot initiatives that rolled back legislation benefiting minority groups. In direct democracy, where structural protections for the minority are lacking, courts may be playing a familiar institutional role from corporate law: keeping the majority from exploiting the minority.

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Posted in campaigns<http://electionlawblog.org/?cat=59>

“These Super PAC Donors Were Able To Hide Their Identities Before The Election”<http://electionlawblog.org/?p=89822>
Posted on December 9, 2016 7:44 am<http://electionlawblog.org/?p=89822> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPo reports.<http://www.huffingtonpost.com/entry/2016-super-pac-donors_us_584a309de4b0e05aded34958>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump donors continued to give millions after his election victory”<http://electionlawblog.org/?p=89820>
Posted on December 9, 2016 7:35 am<http://electionlawblog.org/?p=89820> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/post-politics/wp/2016/12/08/trump-donors-continued-to-give-millions-after-his-election-victory/?postshare=4671481259040072&tid=ss_tw&utm_term=.b394a183017f>
From Oct. 20 to Nov. 28, Trump’s campaign and two joint fundraising committees with the RNC brought in a total of $111 million, edging out the nearly $106 million Clinton’s campaign raised with its two joint fundraising committees.
The Republican’s total was boosted by the $10 million he gave his campaign in late October. In all, the billionaire real estate developer put $66.13 million of his personal funds into his bid — a substantial sum, but far short of the $100 million<https://www.washingtonpost.com/news/post-politics/wp/2016/10/31/no-donald-trump-has-not-given-his-campaign-100-million-and-other-answers-to-your-money-questions/?utm_term=.cb9e4f31f6e4> he repeatedly said he would end up contributing.
Over the course of the campaign, Clinton substantially outraised Trump, bringing in more than the $1 billion she aimed to collect in conjunction with the national party. More than 3.1 million individual donors supported her bid. Trump’s campaign collected $853 million with the RNC, filings show.
In the final stretch of the race, the Republican nominee’s spending picked up — but he still spent far less than his rival.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Trump’s Continued Ownership of Business Enterprises Will Cause Serious Problems for His Presidency and the Country, Says Bipartisan Group of Leading Governance Experts”<http://electionlawblog.org/?p=89818>
Posted on December 9, 2016 7:32 am<http://electionlawblog.org/?p=89818> by Rick Hasen<http://electionlawblog.org/?author=3>
Letter.<http://www.democracy21.org/money-in-politics/press-releases-money-in-politics/trumps-continued-ownership-of-business-enterprises-will-cause-serious-problems-for-his-presidency-and-the-country-says-bipartisan-group-of-leading-governance-experts/>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

“Trump victory sets off a tsunami of lobbying activity by companies”<http://electionlawblog.org/?p=89816>
Posted on December 9, 2016 7:30 am<http://electionlawblog.org/?p=89816> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/business/economy/trump-victory-sets-off-a-tsunami-of-lobbying-activity-by-companies/2016/12/08/a05f69c2-b680-11e6-b8df-600bd9d38a02_story.html?utm_term=.10f15ef68b99>

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Posted in lobbying<http://electionlawblog.org/?cat=28>

“Evaluating voter experience Wait times at polls in 2016 election improved in several key states, new survey results show.”<http://electionlawblog.org/?p=89814>
Posted on December 9, 2016 7:23 am<http://electionlawblog.org/?p=89814> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://news.mit.edu/2016/evaluating-voter-experience-1208>
While many voters reported long lines at polling locations around the country during the 2012 presidential election, this year the overall amount of time people had to wait to vote improved significantly, according to a new survey examining voter experience during the 2016 presidential election. Charles Stewart III, the Kenan Sahin Distinguished Professor of Political Science at MIT, today presented the preliminary findings of the Survey on the Performance of American Elections (SPAE), during a conference hosted by the Pew Charitable Trusts on the evolution of voting administration since the 2012 election.
Stewart found that in a number of states where voters experienced some of the longest waiting times in the 2012 presidential election — including South Carolina, Virginia, and Maryland — there was notable improvement in 2016. In Florida, Stewart found “tremendous improvement in terms of how long people reported that they waited to vote.”
The findings show that “all the effort over the last four years that was invested in dealing with problems President Obama identified with lines, those efforts appear to have paid off,” Stewart says.
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Posted in election administration<http://electionlawblog.org/?cat=18>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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