[EL] ELB News and Commentary 7/25/16

Sun Jul 24 20:25:01 PDT 2016

“As Democrats Gather, a Russian Subplot Raises Intrigue”<http://electionlawblog.org/?p=84555>
Posted on July 24, 2016 8:20 pm<http://electionlawblog.org/?p=84555> by Rick Hasen<http://electionlawblog.org/?author=3>
David Sanger<http://www.nytimes.com/2016/07/25/us/politics/donald-trump-russia-emails.html?ref=politics> for the NYT:
Proving the source of a cyberattack is notoriously difficult. But researchers have concluded that the national committee was breached by two Russian intelligence agencies, which were the same attackers behind previous Russian cyberoperations at the White House, the State Department and the Joint Chiefs of Staff last year. And metadata from the released emails suggests that the documents passed through Russian computers. Though a hacker claimed responsibility for giving the emails to WikiLeaks, the same agencies are the prime suspects. Whether the thefts were ordered by Mr. Putin, or just carried out by apparatchiks who thought they might please him, is anyone’s guess….
It may take months, or years, to figure out the motives of those who stole the emails, and more important, whether they were being commanded by Russian authorities, and specifically by Mr. Putin. But the theft from the national committee would be among the most important state-sponsored hacks yet of an American organization, rivaled only by the attacks on the Office of Personnel Management by state-sponsored Chinese hackers, and the attack on Sony Pictures Entertainment, which Mr. Obama blamed on North Korea. There, too, embarrassing emails were released, but they had no political significance. The WikiLeaks release, however, has more of a tinge of Russian-style information war, in which the intent of the revelations is to alter political events. Exactly how, though, is a bit of a mystery, apart from embarrassing Democrats and further alienating Mr. Sanders’s supporters from Mrs. Clinton.
Evidence so far suggests that the cyberattack was the work of at least two separate agencies, each apparently working without the knowledge that the other was inside the Democrats’ computers. It is unclear how WikiLeaks obtained the email trove. But the presumption is that the intelligence agencies turned it over, either directly or through an intermediary. Moreover, the timing of the release, between the end of the Republican convention and the beginning of the Democratic one, seems too well-planned to be coincidental.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Under pressure from Bernie Sanders, Democrats poised to change how they pick nominees”<http://electionlawblog.org/?p=84553>
Posted on July 24, 2016 8:15 pm<http://electionlawblog.org/?p=84553> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Megarian<http://www.latimes.com/politics/la-na-pol-bernie-sanders-democratic-rules-20160722-snap-story.html> for the LAT:
Democrats reached an agreement on Saturday that could sharply reduce the influence of superdelegates in the next presidential election, resolving an emotionally charged issue that threatened to boil over this week.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Leaked DNC emails reveal the inner workings of the party’s finance operation”<http://electionlawblog.org/?p=84551>
Posted on July 24, 2016 8:09 pm<http://electionlawblog.org/?p=84551> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/inside-the-democratic-partys-scramble-for-big-money/2016/07/24/0f02b56c-51c0-11e6-b7de-dfe509430c39_story.html>
The DNC emails show how the party has tried to leverage its greatest weapon — the president — as it entices wealthy backers to bankroll the convention and other needs. At times, DNC staffers used language in their pitches to donors that went beyond what lawyers said was permissible under a White House policy designed to prevent any perception that special interests have access to the president.
Top aides also get involved in wooing contributors, according to the emails. White House political director David Simas, for instance, met in May with a half-dozen top party financiers in Chicago, including Fred Eychaner, one of the top Democratic donors in the country, the documents show….
Last year, the DNC, in consultation with Clinton’s campaign, also decided to reverse a ban on donations from the PACs of corporations, unions and other groups.
After those limits were lifted, DNC Chairwoman Debbie Wasserman Schultz and other top party officials showered corporate lobbyists with calls, emails and personal meetings seeking convention support and PAC contributions to the party, according to a spreadsheet logging the contacts.
In one May email, a DNC finance staffer asked whether the conglomerate Honeywell could get a hotel room in Philadelphia for a $60,000 donation to the host committee.
“This is $60k we definitely wouldn’t get otherwise and Honeywell is the biggest PAC contributor in the country,” she wrote, adding: “They’re definitely a bit pissy about our PAC policy flip flop and that offering this gesture would definitely help our relationships with them for later in the election cycle and for years to come.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>

“Some say it’s time California had statewide rules for provisional ballots”<http://electionlawblog.org/?p=84549>
Posted on July 24, 2016 11:22 am<http://electionlawblog.org/?p=84549> by Rick Hasen<http://electionlawblog.org/?author=3>
John Myers reports<http://www.latimes.com/politics/la-pol-ca-provisional-ballots-state-rules-20160724-snap-story.html> for LAT.
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Posted in election administration<http://electionlawblog.org/?cat=18>, provisional ballots<http://electionlawblog.org/?cat=67>

“Presidential Election Will Shape Supreme Court, and National Policies, for Years to Come”<http://electionlawblog.org/?p=84547>
Posted on July 24, 2016 11:17 am<http://electionlawblog.org/?p=84547> by Rick Hasen<http://electionlawblog.org/?author=3>
Jess Bravin<http://www.wsj.com/articles/presidential-election-will-shape-supreme-court-and-national-policies-for-years-to-come-1469207258> for the WSJ:
A single Democratic appointment to the Supreme Court could doom the 2010 Citizens United decision, which struck down restrictions on corporate and union political spending. That ruling and other opinions invalidating campaign finance laws came on 5-4 conservative majority votes that said restrictions on finance amounted to a restraint of free speech. A Clinton appointee almost certainly would join liberal justices who dispute that analogy and have signaled an intent to significantly narrow or overrule the Citizens United ruling.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Does Gary Johnson Not Understand How the 12th Amendment Works?<http://electionlawblog.org/?p=84545>
Posted on July 23, 2016 3:26 pm<http://electionlawblog.org/?p=84545> by Rick Hasen<http://electionlawblog.org/?author=3>
From the Ryan Lizza New Yorker<http://www.newyorker.com/magazine/2016/07/25/gary-johnson-the-third-party-candidate> story:
“If it gets thrown to the House of Representatives and it goes beyond one ballot, I could be President,” Johnson said, smiling at the absurdity of the idea. “Because, if it goes beyond one ballot, Democrats are not going to cross over the line to change to Trump, and Republicans are not going to go over the line to support Clinton. They’re going to have to compromise, and I’d be the compromise.”
The 12th amendment provides that if no one gets a majority for President the House votes by state, and it is hard to imagine the Republican not chosen by the House.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

TX, Voting Rights Plaintiffs Agree on Affidavit Option for Voting in Aug 2 Election<http://electionlawblog.org/?p=84543>
Posted on July 23, 2016 3:22 pm<http://electionlawblog.org/?p=84543> by Rick Hasen<http://electionlawblog.org/?author=3>
The shape <https://t.co/HZm0Tk8PUf> of things to come?
Via Josh Gerstein<https://twitter.com/joshgerstein/status/756965668856197121>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

For a Virginia Governor, Writer’s Cramp and Advil<http://electionlawblog.org/?p=84541>
Posted on July 23, 2016 10:44 am<http://electionlawblog.org/?p=84541> by Rick Hasen<http://electionlawblog.org/?author=3>
Richmond Times-Disptach:<http://www.richmond.com/news/virginia/government-politics/article_718d04d8-70b2-5bfb-aa8c-0ff1ca108b8d.html>
In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”
McAuliffe’s statement did not give a timeline for when the policy will be repaired by individual orders. Data errors in McAuliffe’s list of felons believed to meet the order’s criteria will likely complicate the process by requiring more review to prevent irreversible mistakes.
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Posted in felon voting<http://electionlawblog.org/?cat=66>

“Judge issues blueprint for fixes in Texas’ voter ID law”<http://electionlawblog.org/?p=84539>
Posted on July 22, 2016 8:51 pm<http://electionlawblog.org/?p=84539> by Rick Hasen<http://electionlawblog.org/?author=3>
The Houston Chronicle reports.<http://www.chron.com/news/politics/texas/article/Judge-issues-blueprint-for-fixes-in-Texas-voter-8402109.php>
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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>

“Kaine’s acceptance of gifts in Virginia could create opening for Republicans”<http://electionlawblog.org/?p=84537>
Posted on July 22, 2016 8:45 pm<http://electionlawblog.org/?p=84537> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/politics/kaines-acceptance-of-gifts-in-state-office-could-offer-republicans-an-opening/2016/07/22/8508b2cc-4f7f-11e6-a7d8-13d06b37f256_story.html>:
There are stark differences between Kaine’s gifts and McDonnell’s. For one, Kaine’s gifts were properly disclosed; McDonnell failed to disclose some of what he received.
For another, Kaine has never faced accusations of promising state action in exchange for any of his gifts….
During his eight years as Virginia’s lieutenant governor and then governor, Kaine disclosed that he accepted $201,600 in personal gifts, according to data compiled from the Virginia Public Access Project, a nonpartisan tracker of money in state politics.
The majority of those gifts came in the form of air travel, including from the 2008 campaign of President Obama, which paid to fly Kaine across the country as a campaign surrogate. Under murky Virginia law, the proper way to disclose such political travel has been unclear; other politicians have disclosed it as a campaign contribution to their political action committee, rather than a personal gift, as did Kaine.
I also missed this earlier Politico piece:<http://www.politico.com/story/2016/06/tim-kaine-virginia-veep-mcdonnell-clinton-224888>
Shortly after winning the governorship in 2005, Kaine and his family vacationed on the exclusive West Indies island of Mustique in a house belonging to Charlottesville-area investor James B. Murray Jr. Murray made a fortune investing in cellphones together with Kaine’s Senate predecessor, Mark Warner. Murray invited Kaine to spend a week at his house to relax after the campaign.
“I didn’t consider it a gift: There was no cash, I just let him use a house,” Murray said in an interview with Politico. “There was no quid pro quo. I don’t have any business with him.”
For the purpose of the disclosure, Kaine’s staff determined that $18,000 was the fair market value of a week’s stay. Kaine paid all his own expenses besides lodging.
“It’s just the kind of thing you do for a friend, but who’s to draw the line?” Murray said. “It’s probably better to declare everything.”

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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

“Trump Would Fund Super-PACs Aimed at Taking Down Cruz, Kasich”<http://electionlawblog.org/?p=84531>
Posted on July 22, 2016 3:38 pm<http://electionlawblog.org/?p=84531> by Rick Hasen<http://electionlawblog.org/?author=3>
Republican unity plan<http://www.bloomberg.com/politics/articles/2016-07-22/trump-would-fund-super-pacs-aimed-at-taking-down-cruz-kasich-iqybu9m1> leaked to Bloomberg:
Donald Trump plans to create and fund super-PACs specifically aimed at ending the political careers of Ted Cruz and John Kasich should either run for office again, after both snubbed the Republican nominee during his party’s convention this week, a source familiar with Trump’s thinking told Bloomberg Politics on Friday.
The plan would involve Trump investing millions of his own money –perhaps $20 million or more — in one or two outside groups about six months before their respective election days if Texas Senator Cruz or Ohio Governor Kasich stand for office again. The source said Trump is willing to set up two separate super-PACs – one for Cruz and one for Kasich – and put millions into each.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Breaking: Wisconsin Will Go to 7th Circuit to Block Softening of Voter ID Law: What’s Next?<http://electionlawblog.org/?p=84529>
Posted on July 22, 2016 3:27 pm<http://electionlawblog.org/?p=84529> by Rick Hasen<http://electionlawblog.org/?author=3>
Wisconsin will seek to reverse <https://www.doj.state.wi.us/news-releases/attorney-general-brad-schimel-appeals-preliminary-injunction-issued-frank-v-walker> the order<https://www.aclu.org/legal-document/frank-v-walker-preliminary-injunction-motion-granted?redirect=legal-document/frank-v-walker-motion-granted> of the federal district court from earlier this week requiring election officials to allow those who lack the right form of ID to vote in WI elections to be able to vote upon signing an affidavit that they face a reasonable impediment in getting the right form of ID.
The suit will go to the 7th Circuit, presumably to the Easterbook-led panel again—the same court that sent the case back to Judge Adelman in the district court and told him to entertain a remedy for those voters who face special burdens in obtaining the right form of ID.
The motion for a stay<https://www.doj.state.wi.us/sites/default/files/news-media/Motion%20to%20Stay.PDF> filed in the district court previews the kinds of arguments that Wisconsin will make when, as is inevitable, the trial court denies this motion and an emergency motion is filed in the 7th circuit. The main arguments are that the affidavit is unnecessary, as the DMV procedures are good enough, and that in any case the affidavit is overbroad (because it would allow filling in “other” and any excuse for filing the id.
What will the 7th Circuit do?  I’m not sure. It would not surprise me if the court trimmed the id requirement back a bit. But it is possible that the court does nothing and sees how it goes this election, or that it rejects the affidavit entirely.
Whatever the 7th Circuit does could be taken en banc, and the last time that court divided 5-5 on what to do. That could happen again if the 7th Circuit gets rid of the affidavit entirely for the next election. [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]
And the Supreme Court? I don’t expect there would be 5 votes to do anything, unless it is about an issue of making a change too close to the election.
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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>

Breaking: VA Supreme Court on 4-3 Vote, Reverses Gov. McAuliffe’s Blanket Felon Reenfranchisement Order<http://electionlawblog.org/?p=84523>
Posted on July 22, 2016 2:59 pm<http://electionlawblog.org/?p=84523> by Rick Hasen<http://electionlawblog.org/?author=3>
You can find the 63 pages of opinions here<http://electionlawblog.org/wp-content/uploads/va-felon.pdf>.
This is a big blow both politically to Democrats (who would have gotten a boost from the restoration of voting rights to felons who had secured their sentences) as well as to the cause of felon reenfranchisement generally.
This decision is based upon interpretation of the Va Constitution, and there does not seem to be a path to the U.S. Supreme Court (not that there would be a majority to overturn this is any case). Much of the opinions are a debate about standing. Here is the money quote from the majority on the merits;
The assertion that a Virginia Governor has the power to grant blanket, group pardons is irreconcilable with the specific requirement in Article V, Section 12 that the Governor communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon. This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons. No such requirement exists in the United States Constitution, and thus, the text of Article V, Section 12 of the Constitution of Virginia undermines the Governor’s argument by analogy.
From one of the two dissents:
The merits of this case do not concern the issue of whether the Governor has done 18 something he has no right to do, but rather whether he has done what he has a right to do in an 19unconstitutional manner. Indeed, it is particularly telling that the majority does not dispute the 20 fact that the Governor may remove an individual felon’s political disabilities for any reason he  chooses, including that he has served his sentence.  Moreover, the majority acknowledges that the Governorcould use many individual orders to achieve the mass restoration of rights he sought to accomplish under the Executive Order. Thus, the majority, in essence, takes the position that the SuspensionClause requires the Governor to exercise his executive powers in a different, less efficient manner.
[This post has been updated]
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Posted in election administration<http://electionlawblog.org/?cat=18>, felon voting<http://electionlawblog.org/?cat=66>, The Voting Wars<http://electionlawblog.org/?cat=60>

This Week’s Goldfeder Presidential Quiz Questions<http://electionlawblog.org/?p=84521>
Posted on July 22, 2016 12:35 pm<http://electionlawblog.org/?p=84521> by Rick Hasen<http://electionlawblog.org/?author=3>
Knock yourself out.<http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Presidential Primary Voter Turnout at 30% with Republican Increases and Democratic Decline”<http://electionlawblog.org/?p=84519>
Posted on July 22, 2016 12:27 pm<http://electionlawblog.org/?p=84519> by Rick Hasen<http://electionlawblog.org/?author=3>
FairVote number crunch.<http://www.fairvote.org/presidential_primary_voter_turnout_at_30_with_republican_increases_and_democratic_decline>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, primaries<http://electionlawblog.org/?cat=32>

--
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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