[EL] ELB News and Commentary 7/20/16

Wed Jul 20 08:28:41 PDT 2016

“Senators in contempt over secret emails get day before Supreme Court of Virginia”<http://electionlawblog.org/?p=84432>
Posted on July 20, 2016 8:20 am<http://electionlawblog.org/?p=84432> by Rick Hasen<http://electionlawblog.org/?author=3>
Daily Press<http://www.dailypress.com/news/politics/dp-nws-secret-emails-privilege-20160719-story.html>:
A case that could recalibrate what documents state legislators can keep secret was heard Tuesday in the Supreme Court<http://www.dailypress.com/topic/crime-law-justice/justice-system/u.s.-supreme-court-ORGOV0000126-topic.html> of Virginia.
Vesilind v. Virginia State Board of Elections is primarily a redistricting case, brought to challenge 11 General Assembly<http://www.dailypress.com/topic/politics-government/virginia-general-assembly-ORGOV0000122-topic.html> districts under the state constitution. But a side issue has gotten four state senators, and two former senators, held in contempt of court by a Richmond Circuit Court judge.
That was the issue before the Supreme Court Tuesday: whether the Virginia Constitution allows state legislators to withhold emails and other documents, even when they’re subpoenaed in a lawsuit.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in redistricting<http://electionlawblog.org/?cat=6>

“Lobbyists have raised $7 million for Hillary Clinton. For Trump? Zero”<http://electionlawblog.org/?p=84430>
Posted on July 20, 2016 8:17 am<http://electionlawblog.org/?p=84430> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/news/powerpost/wp/2016/07/20/lobbyists-have-raised-7-million-for-hillary-clinton-for-trump-zero/>
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, lobbying<http://electionlawblog.org/?cat=28>

“The Supreme Court’s new definition of corruption is out of step with what Americans think”<http://electionlawblog.org/?p=84428>
Posted on July 20, 2016 8:16 am<http://electionlawblog.org/?p=84428> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Johnston writes <https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/20/defining-corruption-is-inherently-political-why-do-we-think-the-supreme-court-will-solve-it/> for The Monkey Cage.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in chicanery<http://electionlawblog.org/?cat=12>, Supreme Court<http://electionlawblog.org/?cat=29>

“Lewandowski Has Been Pitching Donors On His Own Pro-Trump Super PAC”<http://electionlawblog.org/?p=84426>
Posted on July 20, 2016 8:07 am<http://electionlawblog.org/?p=84426> by Rick Hasen<http://electionlawblog.org/?author=3>
BuzzFeed:<https://www.buzzfeed.com/tariniparti/lewandowski-has-been-pitching-donors-on-his-own-pro-trump-su?utm_term=.yu29OoaLr#.xgMYmKQ8P>
“He was pitching donors in the suites the last two nights,” said a GOP fundraiser who deals with major donors. “I don’t know how it’s going, but he’s basically attacking the other two super pacs and saying that they don’t know what they’re doing. It’s a pretty aggressive pitch.”
Lewandowski, who was fired from the campaign last month, also has a 120-day “cooling off” period before he can legally become fully part of an outside group supporting a campaign he was once running. However, because of the murkiness of coordination laws governing super PACs, he can fundraise, hire staff, build up operations, among other activities if he were to start his own.
But he can’t be directly involved with ads that specifically tell viewers to vote for Trump.
“I just don’t readily see how he can be effective starting his own new group… The market is shifting more to doing stuff than talking about doing stuff,” said an operative involved in the Trump super PAC world.
Adam Smith<https://twitter.com/asmith83/status/755770730101428224>: “What’s the CNN standard on a paid contributor under an NDA for a candidate he’s trying to start a super PAC for?”
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Voter beware: Thanks to ID laws, being registered isn’t enough to vote in many states”<http://electionlawblog.org/?p=84424>
Posted on July 20, 2016 8:04 am<http://electionlawblog.org/?p=84424> by Rick Hasen<http://electionlawblog.org/?author=3>
LAT letters to the editor, including one from Kathleen Unger of the great VoteRiders organization<http://www.voteriders.org/>.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>

Wisconsin Voter ID Decision Roundup<http://electionlawblog.org/?p=84422>
Posted on July 20, 2016 7:57 am<http://electionlawblog.org/?p=84422> by Rick Hasen<http://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel<http://www.jsonline.com/news/statepolitics/judge-issues-injunction-allows-voters-without-ids-to-cast-ballots-b99764677z1-387501461.html>
Reuters<http://www.reuters.com/article/us-usa-court-election-idUSKCN10000P>
WSJ<http://www.wsj.com/articles/judge-orders-safety-net-for-wisconsin-voters-who-lack-required-id-1468970113>
AP<https://www.washingtonpost.com/politics/judge-wisconsin-residents-who-lack-id-can-vote-in-november/2016/07/19/21655624-4dec-11e6-bf27-405106836f96_story.html>
And here is my earlier post, discussing the chances of success on appeal, if Wisconsin appeals.
[cid:image001.png at 01D1E260.B8D85C60]
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>

“On Campaign Finance, Republicans and Democrats Could Not Be Further Apart”<http://electionlawblog.org/?p=84420>
Posted on July 20, 2016 7:48 am<http://electionlawblog.org/?p=84420> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul Blumenthal reports<http://www.huffingtonpost.com/entry/2016-campaign-finance-reform_us_578e67abe4b04ca54ebef3bf> for HuffPo.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

Oops<http://electionlawblog.org/?p=84418>
Posted on July 20, 2016 7:42 am<http://electionlawblog.org/?p=84418> by Rick Hasen<http://electionlawblog.org/?author=3>
The Hill<http://thehill.com/regulation/administration/288350-doj-staffer-tweet-about-melania-trump-from-agency-account>:
A staffer at the Department of Justice is in hot water after sending a tweet about Melania Trump from the agency’s Twitter account.
In a statement Tuesday, a Justice official said a “staffer in the public affairs office erroneously used the official Department of Justice Twitter handle to post a tweet that was intended for a personal account.”
“CNN is the biggest troll of all lmao #Petty,” the staffer reportedly tweeted with a CNN story aboutbDonald Trump<http://thehill.com/people/donald-trump>’s campaign denying accusations that his wife plagiarized a 2008 speech fromMichelle Obama<http://thehill.com/people/michelle-obama> when speaking at the Republican National Convention in Cleveland on Monday night.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in Department of Justice<http://electionlawblog.org/?cat=26>

FEC Wants to Know About Super PAC Expenses for “Fundraising” When Candidate’s Husband is Only Donor<http://electionlawblog.org/?p=84415>
Posted on July 20, 2016 7:39 am<http://electionlawblog.org/?p=84415> by Rick Hasen<http://electionlawblog.org/?author=3>
Following up on this post,<http://electionlawblog.org/?p=84390> see this letter<http://electionlawblog.org/wp-content/uploads/maryland-fec.pdf>.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, federal election commission<http://electionlawblog.org/?cat=24>

“States can bring political ‘dark money’ into the light”<http://electionlawblog.org/?p=84413>
Posted on July 20, 2016 7:37 am<http://electionlawblog.org/?p=84413> by Rick Hasen<http://electionlawblog.org/?author=3>
Ann Ravel has written this LA Times oped.<http://www.latimes.com/opinion/op-ed/la-oe-ravel-dark-money-campaign-spending-20160718-snap-story.html>
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

FEC Defends Electioneering Communications Disclosure Requirements<http://electionlawblog.org/?p=84411>
Posted on July 19, 2016 4:07 pm<http://electionlawblog.org/?p=84411> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Gerstein tweets.<https://twitter.com/joshgerstein/status/755537687122173952>
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Kobach Calls Latest ACLU Action on His Voting Cutbacks “Frivolous” But He’s Lost to Them Numerous Times<http://electionlawblog.org/?p=84409>
Posted on July 19, 2016 3:17 pm<http://electionlawblog.org/?p=84409> by Rick Hasen<http://electionlawblog.org/?author=3>
Wichita Eagle<http://www.kansas.com/news/politics-government/election/article90513792.html>
[cid:image001.png at 01D1E260.B8D85C60]
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

Here’s Why We Still Need Federal Oversight of Voting under the VRA, Part 3,249<http://electionlawblog.org/?p=84404>
Posted on July 19, 2016 2:55 pm<http://electionlawblog.org/?p=84404> by Rick Hasen<http://electionlawblog.org/?author=3>
News from NC:<http://www.journalnow.com/news/local/board-splits-over-early-voting-sites/article_10c89751-478f-52f9-bedc-25269637aa49.html>
Early voting sites in two of Winston-Salem’s prominent minority neighborhoods are in jeopardy after the Forsyth County Board of Elections approved a plan last week that moves sites at Winston-Salem State University’s Anderson Center and the Sprague Street Recreation Center to other locations.
The plan, which includes 15 early voting sites around the county, was approved by the Republican majority of the board Friday and will be submitted to the State Board of Elections for consideration in the next week. A second plan, drafted by the board’s lone Democrat, Fleming El-Amin, will also be submitted to the state board.
El-Amin said he kept the Anderson Center and Sprague Street locations in his plan to ensure the African-American and Hispanic populations that make up the majority of east and southeast Winston-Salem have easy access to early voting sites. The majority plan, submitted by Republican board members Ken Raymond and Stuart Russell, does away with those sites in favor of an additional site in the southwest portion of the county and a site further east.
UPDATE:<https://twitter.com/lordsutch/status/755523609939050497> Chris Lawrence points out that the county in which this took place was not one of the 40 counties in North Carolina<https://www.justice.gov/crt/jurisdictions-previously-covered-section-5> which used to be subject to preclearance. A good argument for making preclearance broader!
[cid:image001.png at 01D1E260.B8D85C60]
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Breaking: Federal District Court Softens WI Voter ID Law, Allowing Affidavit in Place of ID<http://electionlawblog.org/?p=84394>
Posted on July 19, 2016 12:58 pm<http://electionlawblog.org/?p=84394> by Rick Hasen<http://electionlawblog.org/?author=3>
You can find Judge Adelman’s 44-page order here<https://www.aclu.org/legal-document/frank-v-walker-preliminary-injunction-motion-granted?redirect=legal-document/frank-v-walker-motion-granted>.
I’m about to jump on a call, and so I will post more later. But suffice to say that this is a very big deal, and at first blush (subject to closer review) it is not clear to me that this broad relief will be upheld by the 7th Circuit panel that upheld Wisconsin’s voter id law in the first place.
UPDATE: I have now had a chance to read the order in Frank v. Walker and I offer this analysis:
1.      Judge Adelman, who wrote today’s decision in Frank v. Walker, was the same judge who initially ruled that the entire law was unconstitutional and a violation of the Voting Rights Act. That ruling was overturned on appeal by a 7th Circuit panel, led by Judge Frank Easterbrook, and the 7th Circuit divided 5-5 over whether to take the case en banc (including on the question of emergency relief) over strong dissents from among others, Judge Richard Posner. The ACLU then petitioned the Supreme Court to take the case (a decision which was controversial at the time, when Justice Scalia was still on the Court and the chances of a 5-4 affirmance rather high), but the Supreme Court declined to hear the case. Plaintiffs then went back to the district court and asked for some as-applied relief, for those voters who faced special burdens in getting voter id. Judge Adelman first ruled that he had no authority to do that given the earlier 7th Circuit opinion, but then Judge Easterbrook, for the 7th Circuit panel said that the 7th Circuit’s first opinion did not preclude this relief, and Judge Adelman should consider it. He did, and today’s ruling is the product of that ruling. (There is a separate Wisconsin federal case, the One Wisconsin Now case, raising a similar as-applied challenge, which remains pending.
2.      Judge Adelman’s decision canvasses (relying in part on evidence from the other case) the difficulties that some voters have faced obtaining “free” state identifications from the state DMV. (The state supreme court, in a separate lawsuit, mandated that DMV adopt procedures for voters with difficulty obtaining id so as not to violate the right of WI residents to vote under the state constitution.) Although it is not clear how many voters are having problems getting the id that wanted them, it is clear from the evidence here and in the other case that some voters are facing serious impediments to voting.
3.      At this stage of the case, the plaintiffs asked Judge Adelman to require the state not just to rely on the DMV procedures for voters who have difficulty obtaining voter id but to allow those voters to vote by affidavit, swearing that they are eligible voters but face an unreasonable impediment in getting a voter id. In today’s ruling Judge Adelman granted that relief. He modeled it after the approach of North Carolina and South Carolina, both of whom created a reasonable impediment procedure when faced with litigation over their voter id laws. (Further update: As Gerry Cohen points ou<https://twitter.com/gercohen/status/755522921322479616>t, this remedy is broader than NC, where someone casting a ballot with an affidavit has to file a provisional ballot.)
4.      It is not clear how much voters in NC and SC rely on the reasonable impediment procedures, in part because there is inadequate publicity about them and inadequate knowledge on the part of poll workers and others about this option of voting without id. (I discuss this disjunction between theory and practice in Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available<http://electionlawblog.org/?p=80636>)). Nonetheless, the reasonable impediment affidavit is far better than nothing.
5.      The question remains whether the 7th Circuit will agree with this remedy should the state of Wisconsin choose to appeal. Here, there are two issues. First is one of timing. Changes too close to the election appear to be frowned upon under the Purcell Principle<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>. The judge was cognizant of that, not requiring the affidavit option for the August election but requiring for November. I think we are far enough out from November that this does not come too late. The other, more serious question is the scope of the remedy. It could well be that the 7th Circuit was imagining a much more limited remedy, such as allowing individual voters to get an administrative hearing or court order to get id rather than offering the affidavit to all. Or the 7th Circuit might believe the class of voters who should be offered an id must be much narrower, such as those who have tried to go the DMV route but who have been successful. It is not clear to me whether or not the 7th Circuit will agree that the remedy is too broad here.
6.      And then if the 7th Circuit reverses and time is getting shorter, what does a 4-4 SCOTUS do? That’s an interesting question.
[This post has been updated.]
[cid:image001.png at 01D1E260.B8D85C60]
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>

“Virginia Needs to Fix Its Racist Voting Law”<http://electionlawblog.org/?p=84392>
Posted on July 19, 2016 11:58 am<http://electionlawblog.org/?p=84392> by Rick Hasen<http://electionlawblog.org/?author=3>
Dale Ho<http://www.nytimes.com/2016/07/19/opinion/virginia-needs-to-fix-its-racist-voting-law.html?mwrsm=Twitter&_r=0> NYT oped:
THE Virginia Supreme Court will hear arguments on Tuesday in a lawsuit that aims to strip the right to vote from more than 206,000 people, including one in five African-American adults in the state. If state lawmakers win, they will keep Virginia trapped in a shameful part of history: when former Confederate states passed felon disenfranchisement laws after Reconstruction to suppress black political power.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in felon voting<http://electionlawblog.org/?cat=66>, The Voting Wars<http://electionlawblog.org/?cat=60>

Yeah, I’m Sure the Husband’s Super PAC is TOTALLY Independent of the Wife’s Campaign<http://electionlawblog.org/?p=84390>
Posted on July 19, 2016 11:57 am<http://electionlawblog.org/?p=84390> by Rick Hasen<http://electionlawblog.org/?author=3>
Bethesda Magazine<http://www.bethesdamagazine.com/Bethesda-Beat/Web-2016/Hoeber-Husband-Continue-To-Pump-Personal-Funds-into-Her-Bid-To-Oust-Rep-Delaney/>:
…Meanwhile, Epstein in early June put $300,000 into Maryland USA, an “independent expenditure” committee created late last year to promote Hoeber’s candidacy—bringing to more than $500,000 the amount that the couple has laid out over the past couple of months alone. Epstein’s latest contribution is relatively modest when compared to the $2.1 million he had previously donated to Maryland USA, a so-called Super PAC, since it was created a year ago..
In contrast, Hoeber’s personal campaign committee reported spending a total of nearly $560,000 through June 30, virtually all of this directed toward her campaign to secure the Republican nomination. And Maryland USA, in its latest filings, reported spending more than $1.45 million for independent expenditure efforts—including TV and digital advertising as well as direct mail—to promote her candidacy, most of it directed to the primary campaign.
Unlike a candidate’s personal campaign committee, which has strict limits on the amount of donations it can accept from anyone but the candidate, Super PACs can take unlimited contributions from individuals and corporations. Super PACs and other independent expenditure efforts are barred by law from coordinating their activities with a candidate’s campaign committee—notwithstanding that, in this instance, the candidate and the donor underwriting the Super PAC happen to reside under the same roof.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“ACLU Sues Kansas Over Dual Voter Registration System”<http://electionlawblog.org/?p=84388>
Posted on July 19, 2016 11:14 am<http://electionlawblog.org/?p=84388> by Rick Hasen<http://electionlawblog.org/?author=3>
Release<https://www.aclu.org/news/aclu-sues-kansas-over-dual-voter-registration-system>:
The American Civil Liberties Union today filed a lawsuit challenging Kansas’ dual voter registration system, charging it violates the Kansas Constitution and state law.
The dual system prevents qualified Kansas voters from voting in state and local elections due solely to their method of registration. Secretary of State Kris Kobach received administrative approval last week of a temporary regulation aimed at formalizing this system, which a court has already declared violates state law.
“Secretary Kobach continues to seek ways to confuse and obstruct voters in Kansas. His flagrant disregard of the court’s findings means that Kansans still face unnecessary barriers to voting. We’re asking the court to immediately block the temporary regulation and to ultimately end this dual system once and for all,” said Sophia Lakin, a staff attorney with the ACLU’s Voting Rights Project.
Shawnee County District Judge Franklin Theis last month<https://www.aclu.org/legal-document/belenky-v-kobach-order-denying-defendants-motion-dismiss>reiterated that Kobach cannot stop Kansans from voting in state and local elections simply because they registered to vote using federal forms that don’t require the same onerous documentation that Kobach prefers.
The dual system would allow some Kansans to vote for federal offices, like U.S. senator and U.S. representative, but not for their state representative, state senator, or other state and local offices.
[cid:image001.png at 01D1E260.B8D85C60]
Posted in election administration<http://electionlawblog.org/?cat=18>, 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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160720/a8503820/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 1504 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160720/a8503820/attachment.png>