[EL] ELB News and Commentary 6/10/16

[Rick Hasen]

“CREW Sues FEC Over Murray Energy Indecision”<http://electionlawblog.org/?p=83512>
Posted on June 10, 2016 8:51 am<http://electionlawblog.org/?p=83512> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://www.citizensforethics.org/press/entry/crew-sues-fec-over-murray-energy-indecision>:

Citizens for Responsibility and Ethics in Washington (CREW) sued the Federal Election Commission (FEC) today for failing to enforce its own regulations by refusing to investigate a 2012 CREW complaint against Murray Energy and its CEO Robert Murray for coercing employee donations and using corporate funds to make political contributions.

The Federal Election Campaign Act (FECA) prohibits employers from threatening employees to compel political contributions, in addition to laundering political contributions through these employees. The FEC’s own Office of General Counsel found reason to believe that potential violations may have occurred, but the commissioners once again deadlocked along party lines.  This is the third time in the past year that CREW has been forced to sue the FEC to attempt to make the agency do its job.

“The FEC’s decision not to open an investigation into Murray Energy’s coercion of its employees to support the company’s politics is unacceptable,” said CREW Executive Director Noah Bookbinder. “This was a clear example of a powerful corporation overstepping its authority and thinking it could operate above the law.”

FEC regulations specifically prohibit a PAC from making a contribution or expenditure by using money “secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, financial reprisals; … or other moneys required…as a condition of employment.”

“When employees’ jobs are at stake based on whether or not they contribute to the candidate of their employer’s choosing, their rights are being violated,” Bookbinder said. “The FEC needs to enforce its own rules.”

Read the lawsuit here<http://www.citizensforethics.org/page/-/PDFs/Legal/Murray%20Energy%20FEC%20Lawsuit.pdf>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


“Trump doesn’t have a national campaign. So the GOP is trying to run one for him.”<http://electionlawblog.org/?p=83510>
Posted on June 10, 2016 7:35 am<http://electionlawblog.org/?p=83510> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold<https://www.washingtonpost.com/politics/trump-doesnt-have-a-national-campaign-so-the-gop-is-trying-to-run-one-for-him/2016/06/09/a9e1f488-2df0-11e6-9b37-42985f6a265c_story.html> for WaPo:

Trump’s failure to build a truly national campaign has left it to the GOP to run one on his behalf, while also trying to extinguish the regular political brush fires set off by the unpredictable candidate. The arrangement has intensified the burden on the Republican National Committee, forcing it to absorb core campaign tasks and testing whether it has improved the field and data capabilities that it fell short on in 2012.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Anti-Trump Republicans seek last-ditch ‘delegate revolt'”<http://electionlawblog.org/?p=83508>
Posted on June 10, 2016 7:31 am<http://electionlawblog.org/?p=83508> by Rick Hasen<http://electionlawblog.org/?author=3>

Tal Koppan<http://www.cnn.com/2016/06/10/politics/gop-delegate-revolt-stop-donald-trump/index.html> reports for CNN.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


“Modern Elections Are Corruption, Sen. Al Franken Argues”<http://electionlawblog.org/?p=83506>
Posted on June 10, 2016 7:27 am<http://electionlawblog.org/?p=83506> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPo<http://www.huffingtonpost.com/entry/elections-corruption-al-franken_us_5759f0b4e4b0e39a28ad258f>:

“Well, I’m in the Senate. And it appears like there’s corruption to me,” said Franken.

Without naming names, Franken pointed to the case of Sen. Jerry Moran (R-Kan.), who briefly broke with his party<http://www.cnn.com/2016/03/24/politics/jerry-moran-merrick-garland-supreme-court-hearing/> to support holding hearings on President Barack Obama’s Supreme Court nominee, Merrick Garland.

Well-funded outside groups<http://cjonline.com/news/2016-03-25/conservative-groups-threaten-fund-ads-primary-opponent-against-sen-jerry-moran> threatened to run ads and support challengers to Moran because of his statements, and he reversed himself <http://www.politico.com/story/2016/04/jerry-moran-merrick-garland-senate-court-hearings-221493> to oppose hearings.

“Doesn’t that appear like corruption? To anybody? I see members of the press nodding, involuntarily. It’s amazing,” Franken said.

Franken and other Democrats noted that part of the Supreme Court’s decision assumed Congress would require spending to be disclosed, but bills that have been offered to require disclosure have been blocked by Republicans.

“The reason they did that was they knew that being able to have secret money was to their advantage, and it’s to the disadvantage of the American people, and the American people know it,” Franken said.

“Make no mistake about it. This is about corruption, and not just the appearance of it,” he added.

The Moran example strikes me as not corruption at all, and if it is problematic, the problem is more one of inequality<https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453?ie=UTF8&*Version*=1&*entries*=0>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>


“Statement by Reform Groups on Campaign Finance Reform Package Unveiled Yesterday by Senate Democrats”<http://electionlawblog.org/?p=83504>
Posted on June 10, 2016 7:22 am<http://electionlawblog.org/?p=83504> by Rick Hasen<http://electionlawblog.org/?author=3>

Statement by Reform Groups on Campaign Finance Reform Package Unveiled Yesterday by Senate Democrats<http://cts.dundee.net/t/3687289/91898075/19690/2/>

The following statement <http://cts.dundee.net/t/3687289/91898075/19690/3/> is being issued today by: Brennan Center for Justice, Common Cause, CREW, CWA, Democracy 21, Democracy Matters, Demos, Every Voice, People For the American Way, Public Citizen, Represent.Us, The Rootstrikers Project at Demand Progress, U.S PIRG and Voices for Progress.

The American people overwhelmingly want their elections to be of, by and for the people. They want everyone’s voice to have a chance to be heard in Washington, D.C. They want the barriers reduced that prevent qualified people from running for and serving in public office. In short, they object to today’s big money campaign finance system and the central role it plays in rigging Washington, and want a new system.

We applaud the national leadership being provided by Senators Chuck Schumer (NY), Sheldon Whitehouse (RI), Tom Udall (NM), Jeff Merkley (OR) and their Senate Democratic colleagues in taking the campaign finance reform issue to the country and in injecting the issue into the public debate that occurs during a national election.

The reform package<http://cts.dundee.net/t/3687289/91898075/19691/4/> offered by Senate Democrats yesterday contains a number of important reform proposals.

They include overturning the Citizens United decision; closing secret money loopholes in the disclosure laws; shutting down individual-candidate super PACs; strengthening rules prohibiting coordination between outside spending groups and candidates; creating a new campaign finance enforcement agency to replace the failed, dysfunctional FEC; requiring disclosure within 48 hours of contributions of $1,000 or more; banning former members from lobbying Congress; and strengthening lobbying disclosure and conflict of interest rules.

The package does not include the campaign finance reform measure essential to ensuring that all Americans are participants: the creation of a public financing system for presidential and congressional elections. This system is needed to provide an alternative way for candidates to run competitive races for federal office without becoming obligated to influence-seeking funders.

Public financing has public support. A majority of Americans – 72 percent in one recent survey – support a comprehensive reform package that includes small donor, public financing. State and local efforts have been successful, conducted by both ballot measures and legislative action.

Senate Majority Leader McConnell has led efforts for many years that have blocked Senate consideration of campaign finance reform legislation. Campaign finance reform legislation also has passed over Senator McConnell’s opposition.

We appreciate and support the efforts being undertaken by Senate Democrats this year to focus national attention on the need for campaign finance reform and to help set the stage for future reform fights in Congress. Beginning next year, our organizations believe that any campaign finance reform efforts in Congress must include the creation of a public financing system for presidential and congressional races.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Husted appeals 2nd ruling tossing Ohio voting laws”<http://electionlawblog.org/?p=83502>
Posted on June 9, 2016 3:25 pm<http://electionlawblog.org/?p=83502> by Rick Hasen<http://electionlawblog.org/?author=3>

The Columbus Dispatch reports.<http://www.dispatch.com/content/stories/local/2016/06/09/husted-appeals-2nd-ruling-that-ohios-voting-laws-are-unconsitutional.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“There’s No Escaping the Top of the Ballot”<http://electionlawblog.org/?p=83500>
Posted on June 9, 2016 2:39 pm<http://electionlawblog.org/?p=83500> by Richard Pildes<http://electionlawblog.org/?author=7>

At The Atlantic, Michelle Cottle has a nice piece<http://www.theatlantic.com/politics/archive/2016/06/theres-no-escaping-the-top-of-the-ballot/485744/> on the difficulty down ballot Republicans are likely to have in separating themselves from Donald Trump (if he proves to be a liability), given how much more nationalized elections have become in recent decades.  That nationalization, of course, is a reflection of how polarized and partisan politics has become, both nationally and in the states.  The piece includes this good quote:

“Ask any of the 2014 red-state Democrats from the Senate how it went when they localized their races—but you’ll have a hard time reaching them, because they’re no longer in office,” quipped a Democratic campaign operative who requested anonymity to avoid offending colleagues.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Charles Lane Presses Republican Party to Create Superdelegates<http://electionlawblog.org/?p=83497>
Posted on June 9, 2016 2:29 pm<http://electionlawblog.org/?p=83497> by Richard Pildes<http://electionlawblog.org/?author=7>

While a number of politicians and commentators are pressuring the Democratic Party to eliminate its superdelegates, Charles Lane in today’s Washington Post has a piece<https://www.washingtonpost.com/opinions/in-praise-of-superdelegates/2016/06/08/530234f0-2d8e-11e6-9b37-42985f6a265c_story.html> pushing the Republican Party to create a cadre of superdelegates as well.

Defending a role for superdelegates against the populist critiques Bernie Sanders makes of them (when he is not lobbying for their support), Lane writes:

But to the extent he is making a good-faith claim — that it’s undemocratic to allocate a critical mass of convention votes to 700-plus elected officials and other party “regulars,” rather than let primary voters, non-Democrats included, pick new delegates every four years — it’s a simplistic one.

Parties are entitled to think about continuity and electability, without which, obviously, they can never achieve their policy goals. Hence, they’re entitled to favor loyalists, like the superdelegates, and known quantities, like Clinton — for all her flaws — over interlopers, like Sanders.
Lane concludes:

When Democrats and Republicans have passed through this crucible of disruption and realignment, we will still need them, or some new, improved version, to frame issues, channel political participation, select candidates and, one hopes, forge consensus.

No party can perform any of those functions without the power to differentiate between “one of us” and everyone else.

This is an early signal of the kinds of debates likely to take place in full force after the election, particularly for the Republican Party if Donald Trump loses badly, as I suggested in my own recent Washington Post piece<https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/25/two-myths-about-the-unruly-american-primary-system/> on the history of the nomination process.
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Posted in political parties<http://electionlawblog.org/?cat=25>


“NCSL/SLLC Supreme Court Redistricting Cases Webinar”<http://electionlawblog.org/?p=83495>
Posted on June 9, 2016 1:09 pm<http://electionlawblog.org/?p=83495> by Rick Hasen<http://electionlawblog.org/?author=3>

Announcement:

It is a banner year in the Supreme Court for redistricting cases! Aside from Evenwel v. Abbott, holding that states may redraw legislative districts based on total population, the Court decided three other redistricting cases that will be important for the 2020 redistricting cycle. Rick Hasen, University of California Irvine School of Law, will provide a brief overview of redistricting law as it relates to the cases. Bruce Adelson, Federal Compliance Consulting, and Mark Packman, Gilbert LLP, will discuss the cases and how they will affect redistricting.

Date:  July 12
Time:  12:00 PM EDT

The webinar is FREE. Continuing legal education (CLE) credit is not offered.

Register here<http://comm.ncsl.org/NCSLMeetings.aspx?prid=83810259>.


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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Groups Sue New York Over Inaccessible Online Voter Registration for People With Disabilities”<http://electionlawblog.org/?p=83493>
Posted on June 9, 2016 12:15 pm<http://electionlawblog.org/?p=83493> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<https://www.aclu.org/news/groups-sue-new-york-over-inaccessible-online-voter-registration-people-disabilities>:

The American Civil Liberties Union and Disability Rights Advocates today sued the New York State Board of Elections and Department of Motor Vehicles over online voter registration that is inaccessible to people with disabilities.

The lawsuit was filed on behalf of the National Federation of the Blind, the Center for the Independence of the Disabled, and individual plaintiffs who are blind. States are required by law to meet accessibility and confidentiality standards when providing services such as online voter registration, but New York is failing to comply, the complaint charges.

“Online voter registration is key to ensuring access to the ballot for people with disabilities. Yet in New York, it’s not just difficult for hundreds of thousands of people with disabilities to register online, it’s virtually impossible,” said ACLU attorney Susan Mizner. “We’ve told the state where the worst barriers are. It can easily fix the problems, but has refused to do so.”

Those barriers include DMV web pages and downloadable forms that can’t be read out loud by the screen-reader software used by blind and low-vision people to hear and navigate computer screen content. On the privacy rights front, the software cannot read the fillable form’s section on party affiliation on the Board of Elections website; blind and low-vision voters are forced to disclose this private information when they print out the form and get someone else to help them sign it, destroying their privacy and independence.

“Everyone has the right to register to vote privately and independently, and online services are a great way to make that happen. Yet, because the state’s websites aren’t coded to operate with screen readers and other accessibility software, voters with disabilities can’t access those services. Voters should not be excluded from online registration or have their privacy violated just because they have a disability,” said Disability Rights Advocates attorney Christina Brandt-Young.

Plaintiff Eva Eason of New York City encountered numerous obstacles when attempting to update her voter information online after getting married. Eason, who is blind, could not access the DMV site at all, and was only able to access the Board of Elections online registration after getting assistance from someone who is sighted, compromising her privacy and independence.

“A lot of people paved the way and fought for me to be able to vote, so why is New York making it so difficult?” said Eason.

Plaintiff Meghan Schoeffling of Albany added, “I was thrilled when New York created an online voter registration form, thinking it would enable me and others to register to vote privately and independently for the first time. But because the DMV failed to ensure the site was fully accessible, I was unable to register to vote without sighted assistance.”

The lawsuit cites violations of the American with Disabilities Act and the Rehabilitation Act. It seeks immediate adjustments to ensure the websites are legally compliant; the creation of Board of Elections policies that ensure accessibility and provide a clear path of accountability; and the development of policies and procedures to ensure the sites remain accessible.

“There are many barriers that can stand in the way of New Yorkers with disabilities exercising their right to vote. The shame of inaccessible online registration is that there is an easy and inexpensive fix. It’s a mystery why the New York State Board of Elections refuses to do it, and it’s disappointing. People with disabilities have the right to privacy and independent registration and voting just like every other New York voter. It’s the law,” said Susan Dooha, executive director of the Center for Independence of the Disabled, New York.

The complaint, Eason v. New York State Board of Elections, was filed in the U.S. District Court for the Southern District of New York. Co-counsel in this case is Brown, Goldstein & Levy, LLP.

Mark Riccobono, president of the National Federation of the Blind, said, “The right to vote is a fundamental one, and equal access to this right cannot and must not be denied to blind Americans. Equal access means the ability to participate in all aspects of the voting process, including registering to vote, with complete privacy and independence. The National Federation of the Blind is committed to ensuring equal access for blind voters in New York and across the nation.”

The complaint is at: https://www.aclu.org/legal-document/eason-v-new-york-state-board-elections-complaint
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Posted in election administration<http://electionlawblog.org/?cat=18>, voters with disabilities<http://electionlawblog.org/?cat=71>


“Unusual election outcomes are the new normal with California’s top-two primary rules”<http://electionlawblog.org/?p=83491>
Posted on June 9, 2016 12:11 pm<http://electionlawblog.org/?p=83491> by Rick Hasen<http://electionlawblog.org/?author=3>

Important John Myers<http://www.latimes.com/politics/la-pol-ca-top-two-primary-california-results-20160609-snap-story.html> for the LAT:

The new system has been especially tough on incumbents in the Legislature. In the five elections preceding the new system, only 8% of Assembly members and 2% of state senators faced a challenge from inside their political party. Since 2010, those numbers have skyrocketed.

In the state Senate, 28% of incumbents have faced same-party challenges. In the Assembly, the figure is 21%. In the congressional races, 12% have been same-party contests since 2010.

In one example, 40-year Democratic Rep. Pete Stark of Fremont was the first to be toppled by a younger challenger from within his party<http://latimesblogs.latimes.com/california-politics/2012/11/pete-stark-defeated.html>.

“The system has encouraged more candidates to run,” said Eric McGhee, a research fellow at the nonpartisan Public Policy Institute of California.

McGhee has spent several years attempting to measure the effect of not only the top-two primary, but also the state’s creation of an independent citizen commission to draw political boundaries.

Even when accounting for other factors, he said there is something to the argument that the top-two primary, by widening the net of potential candidates and voters, has led to at least incrementally more moderate lawmakers.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>


“American Samoans seek full citizenship in Supreme Court appeal”<http://electionlawblog.org/?p=83489>
Posted on June 9, 2016 12:07 pm<http://electionlawblog.org/?p=83489> by Rick Hasen<http://electionlawblog.org/?author=3>

David Savage<http://www.latimes.com/world/asia/la-fg-court-samoan-citizens-20160609-snap-story.html> for the LAT.
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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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