[EL] ELB News and Commentary 6/13/16

[Rick Hasen]

Verrilli’s Regret<http://electionlawblog.org/?p=83540>
Posted on June 13, 2016 7:28 am<http://electionlawblog.org/?p=83540> by Rick Hasen<http://electionlawblog.org/?author=3>

From must-read Adam Liptak exit interview<http://mobile.nytimes.com/2016/06/12/us/politics/americas-appellate-lawyer-recaps-5-years-of-legal-high-drama.html?referer=https://www.google.com/> with the outgoing SG:

The loss he most regrets, Mr. Verrilli said, was in 2013, in Shelby County v. Holder<http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html>, which effectively struck down the heart of the Voting Rights Act of 1965.

“There are some powerful real-world consequences that followed very quickly from that decision,” he said. “It was an iconic statute and an important part of American history. That was a tough loss.”
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


New Montana Lawsuit Attacks Ban on False Speech by Judicial Candidates<http://electionlawblog.org/?p=83537>
Posted on June 13, 2016 7:21 am<http://electionlawblog.org/?p=83537> by Rick Hasen<http://electionlawblog.org/?author=3>

Read the motion<http://electionlawblog.org/wp-content/uploads/160610-Myers-Mtn-for-Prel-Inj-Brf.pdf> for a preliminary injunction.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, judicial elections<http://electionlawblog.org/?cat=19>


“Democracy Diminished: LDF Releases Report on State and Local Threats to Voting Rights Three Years After Landmark Shelby County Decision”<http://electionlawblog.org/?p=83535>
Posted on June 13, 2016 7:13 am<http://electionlawblog.org/?p=83535> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://www.naacpldf.org/press-release/democracy-diminished-ldf-releases-report-state-and-local-threats-voting-rights>:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF), released a report titled, Democracy Diminished: State and Local Threats to Voting Post-<http://www.naacpldf.org/publication/democracy-diminished-state-and-local-threats-voting-post-shelby-county-alabama-v-holder>Shelby County, Alabama v. Holder<http://www.naacpldf.org/publication/democracy-diminished-state-and-local-threats-voting-post-shelby-county-alabama-v-holder> (Shelby County), a detailed collection of state, county, and local voting changes — proposed or implemented — during the past three years since the Supreme Court’s decision in Shelby County, Alabama v. Holder<http://www.naacpldf.org/case/shelby-county-alabama-v-holder>. The Court’s decision in Shelby County eliminated the provision of the Act that for fifty years required jurisdictions with a history of voting discrimination to submit proposed changes to a federal authority for preclearance before implementation. The “preclearance provision” of Section 5 of the Voting Rights Act has long been regarded as the most important means of protecting minority voters from voting discrimination. The Shelby County decision struck down the formula that brought state and local jurisdictions under Section 5’s preclearance protocol. The report released today was published by the Thurgood Marshall Institute<http://www.naacpldf.org/press-release/ldf-names-two-renowned-scholars-senior-research-fellows-ldf%E2%80%99s-thurgood-marshall-instit>, a research, policy and communications hub within LDF.

“Democracy Diminished shows how the Supreme Court’s decision in the Shelby County case — which second-guessed the judgment of Congress, the testimony of experts and overwhelming evidence of voting discrimination — has left millions of minority voters vulnerable to voter suppression schemes in towns, counties and states across the country, ” said Sherrilyn Ifill<http://www.naacpldf.org/sherrilyn-ifill>, LDF’s President and Director-Counsel.

Since the Shelby County decision, LDF has closely monitored the actions of formerly covered states and localities while continuing to robustly enforce other provisions of the VRA. LDF and other civil rights groups led by the Leadership Conference on Civil Rights, have pressed Congress to pass legislation that restores preclearance provisions of the Voting Rights Act in a manner that complies with the proscriptions set out by the Supreme Court in the Shelby County decision. Although proposed legislation has been introduced in every Congressional session since the Shelby County decision, it has stalled in the House of Representatives.

“Until the Voting Rights Act is fully intact, we must all play a role in protecting every individual’s right to vote,” said Leah Aden<http://www.naacpldf.org/leah-aden>, Senior Counsel at LDF and principal author of the report. “We urge Congress to hold immediate hearings on legislation introduced to amend the Voting Rights Act.” Democracy Diminished makes this call to action all the more urgent by cataloging extensive voting changes made on the state and local level in thirteen states and illustrating the vulnerability citizens of color currently experience across the country.

“Democracy Diminished is a living account of the aftermath of the Shelby Countydecision,” said Janai Nelson<http://www.naacpldf.org/janai-nelson>, LDF’s Associate Director-Counsel.

Additionally, bookmark this ongoing tally<http://www.naacpldf.org/document/states-responses-shelby-decision> of states and localities’ responses to Shelby County, Alabama v. Holder.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble”<http://electionlawblog.org/?p=83533>
Posted on June 13, 2016 7:09 am<http://electionlawblog.org/?p=83533> by Rick Hasen<http://electionlawblog.org/?author=3>

Samuel Sadeghi has posted this student comment<http://www.uclalawreview.org/wp-content/uploads/2016/06/Sadeghi-63-5-update.pdf> in the UCLA Law Review.  Here is the abstract:

Collateral censorship occurs when an intermediary refuses to carry a speaker’s message for fear of legal liability. Election speech intermediaries are prone to engage in collateral censorship because their interests do not align with the interests of election speakers, yet the common law places liability on intermediaries and speakers alike. But collateral censorship is not a problem unique to election speech. It would threaten the vibrancy of Internet speech had it not been for the Communications Decency Act immunizing Internet intermediaries from civil liability (except intellectual property law). The rationales and successes of the CDA justify immunizing election speech intermediaries because they, like Internet intermediaries, do not share the same characteristics as traditional publishers, have misaligned interests that are seldom addressed by the market, and are incentivized to censor valuable speech when uncertain about liability. This Comment proposes model legislation to immunize election speech intermediaries, but only from claims for defamation and violation of state false election speech laws. Such legislation would largely remove election speech intermediaries’ incentive to censor election speech that may seem unlawful (or legally troublesome), but in fact be lawful and highly valuable to our democracy.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Reagan hit with new complaint over ‘Election Bible'”<http://electionlawblog.org/?p=83531>
Posted on June 13, 2016 7:04 am<http://electionlawblog.org/?p=83531> by Rick Hasen<http://electionlawblog.org/?author=3>

Arizona Republic<http://www.azcentral.com/story/news/politics/elections/2016/06/08/reagan-wont-issue-updated-manual-election-workers/85577418/>:

A Chandler attorney has filed a complaint against Secretary of State Michele Reagan over her decision to not revamp the state’s official election-procedures manual for poll workers ahead of the 2016 primary and general elections.

In a letter Thursday, attorney Tom Ryan asked Attorney General Mark Brnovich to force Reagan to reissue the manual, or to refer the matter to the special prosecutor who is already investigating Reagan’s failure to mail publicity pamphlets in advance of last month’s special election.

Ryan also asks Brnovich to “take all actions” necessary to ensure the “integrity of Arizona’s elections.”

The secretary of state is required to issue<http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/16/00452.htm&Title=16&DocType=ARS> the manual no later than 30 days before each election, according to state law, and submit it to the governor and the attorney general at least 90 days ahead of each election.

“She’s incapable of running this office,” said Ryan, who also targeted Reagan on the pamphlet issue and has called for her impeachment.
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Posted in election administration<http://electionlawblog.org/?cat=18>


Gerald Nichol Benediction for the Wisconsin GAB<http://electionlawblog.org/?p=83528>
Posted on June 13, 2016 6:59 am<http://electionlawblog.org/?p=83528> by Rick Hasen<http://electionlawblog.org/?author=3>

Distributed <http://electionlawblog.org/wp-content/uploads/Nichol-Benediction-for-GAB.pdf> at the GAB’s final meeting, by GAB Board Member Gerald Nichol.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Time to Preorder the Indispensable Lobbying Manual, Coming in 5th Edition<http://electionlawblog.org/?p=83526>
Posted on June 13, 2016 6:56 am<http://electionlawblog.org/?p=83526> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=241500596&sc_channel=email&sc_rec=&sc_sid=&CUSTOMER_NUMBER%3B=&sc_jid=160606AO&sc_cid=5010086-16A>
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Posted in lobbying<http://electionlawblog.org/?cat=28>
Could Republican Donor Strike Lead Trump to Take Public Financing?<http://electionlawblog.org/?p=83524>
Posted on June 13, 2016 6:52 am<http://electionlawblog.org/?p=83524> by Rick Hasen<http://electionlawblog.org/?author=3>

I doubt it, but here’s Politico:<http://www.politico.com/story/2016/06/gop-donors-donald-trump-224218>

Still, many are struggling to see a clear path forward. Zwick noted that Trump is far behind where Romney was in the donor chase at this point four years ago. One option, he said, is for Trump to accept public financing. Under federal election laws, that would allow him to receive a lump sum of government funds while capping how much he’d be able to spend. In 2008, John McCain accepted public financing but found himself massively outspent by Barack Obama.

The prospect of a controversial billionaire accepting taxpayer funding would be one of the more bizarre twists of the 2016 campaign. But for a struggling Trump, it might be worth pursuing — especially with rising doubts about whether he can fill his coffers.

“Could they get organized and pull it off? Sure,” Zwick said. “They don’t have a lot of time left.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Again Before the Supreme Court: Can There Be ‘Issues Speech’ During Campaigns?”<http://electionlawblog.org/?p=83522>
Posted on June 13, 2016 6:48 am<http://electionlawblog.org/?p=83522> by Rick Hasen<http://electionlawblog.org/?author=3>

Bauer<http://www.moresoftmoneyhardlaw.com/2016/06/supreme-court-can-issues-speech-campaigns/>:

The Supreme Court will soon decide whether to take up a major case<http://www.campaignfreedom.org/wp-content/uploads/2013/10/DSF-v.-Denn-Petition-for-Certiorari.pdf> about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”–speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations.

This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.

In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Down and Out and Voteless in Ohio”<http://electionlawblog.org/?p=83520>
Posted on June 13, 2016 6:45 am<http://electionlawblog.org/?p=83520> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT editorial.<http://www.nytimes.com/2016/06/13/opinion/down-and-out-and-voteless-in-ohio.html?ref=opinion&_r=0>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Breaking: Supreme Court Won’t Hear American Samoa Citizenship Case<http://electionlawblog.org/?p=83518>
Posted on June 13, 2016 6:41 am<http://electionlawblog.org/?p=83518> by Rick Hasen<http://electionlawblog.org/?author=3>

There was no noted dissent <http://www.supremecourt.gov/orders/courtorders/061316zor_h31i.pdf> in denying a hearing in the Tuaua case. There was a BIG push to get this heard, with lots of opeds and stories.

And yet….no dice.
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Posted in voting<http://electionlawblog.org/?cat=31>


“10th Circuit: Kansas Can’t Block Voters From Casting Ballots”<http://electionlawblog.org/?p=83516>
Posted on June 11, 2016 11:08 am<http://electionlawblog.org/?p=83516> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://abcnews.go.com/US/wireStory/10th-circuit-kansas-block-voters-casting-ballots-39770859>

Kansas cannot prevent thousands of eligible voters from casting ballots in the November federal election because they didn’t prove they were U.S. citizens when registering to vote at motor vehicle offices, a federal appeals court ruled Friday.

The 10th U.S. Circuit Court of Appeals ruling temporarily upholds a court order that required Kansas to allow those individuals to vote in federal elections even though they didn’t provide citizenship documentation when applying or renewing their driver’s licenses, as required under Kansas law. The state has said as many as 50,000 people could be affected.

The appeals court judges said Kansas had not made the necessary showing for a stay pending appeal, but agreed to hear the appeal quickly.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Voter Fraud Probe In California Turns Into Voter Intimidation Boondoggle”<http://electionlawblog.org/?p=83514>
Posted on June 10, 2016 9:30 am<http://electionlawblog.org/?p=83514> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM<http://talkingpointsmemo.com/muckraker/jon-lopey-siskiyou-county-voter-fraud-probe>:

Having police come to your home wielding weapons and asking questions about your voter registration status just days before an election sends a clear signal.

That signal wasn’t lost on residents of Hmong communities in rural northern California, who said police came to their doors doing just that earlier this month. They said authorities also set up a roadway checkpoint to target Hmong drivers, threatening to arrest and prosecute them if they voted illegally.

Following those allegations of flagrant voter intimidation in the lead-up to Tuesday’s state primary, the sheriff of Siskiyou County, where just about 43,000 people reside, told TPM his deputies played only a “minor” role in a state-led gumshoe probe into potential voter registration fraud. Sheriff Jon Lopey (pictured right) said deputies accompanied investigators to provide security in an area he described as potentially dangerous and “inundated” with what he estimated to be 2,000 illegal marijuana grow sites.

But the accounts of voter intimidation were serious enough that investigators from the Secretary of State’s Office, joined by staffers from the state Attorney General’s Office, were dispatched on June 7 to monitor polling places across Siskiyou County.

“What began as an investigation of alleged voter fraud quickly evolved into an investigation of potential voter intimidation,” a spokesman said in a statement emailed to TPM.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>


“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>


--
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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