[EL] ELB News and Commentary 11/4/16

Fri Nov 4 09:06:31 PDT 2016

“That Supreme Court Stonewall May Not Crumble Anytime Soon”<http://electionlawblog.org/?p=88724>
Posted on November 4, 2016 8:53 am<http://electionlawblog.org/?p=88724> by Rick Hasen<http://electionlawblog.org/?author=3>

Carl Hulse<http://www.nytimes.com/2016/11/04/us/politics/that-supreme-court-stonewall-may-not-crumble-anytime-soon.html?ref=politics> for the NYT:

Senator Jeff Flake was startled a few months ago when a constituent pressed him on whether he was willing to hold up any Supreme Court<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org> nominee chosen by Hillary Clinton if she was elected president.

“I asked for how long, and he said for four years,” Mr. Flake, an Arizona Republican, recounted in an interview. “I said no, of course not. That is not what I came to Washington to do.”

But that’s precisely what some of his Republican colleagues are considering. Having already blocked President Obama’s nominee to replace Justice Antonin Scalia since March, they contend that Republicans should indefinitely stall any nomination by Mrs. Clinton to prevent an ideological shift in the court. Such a blockade would represent a major escalation in the judicial wars that have been waged in the Senate since the 1980s.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“A Narrower Majority for Republicans Could Widen the House Divide”<http://electionlawblog.org/?p=88722>
Posted on November 4, 2016 8:50 am<http://electionlawblog.org/?p=88722> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2016/11/04/us/politics/freedom-caucus-paul-ryan.html?ref=politics>:

But some members of the Freedom Caucus seem to have another agenda in mind. They strategized behind closed doors on Wednesday about how to press for their priorities during the lame-duck session, as well as under a potential President Donald J. Trump, aides said.

They also have been weighing rules changes they would like to see — within the party and for the House as a whole — largely intended to empower members with responsibilities typically reserved for leadership, including the selection of committee chairpersons. There is no need to clash with House leaders so long as their proposed changes are “considered fairly,” said Representative Andy Harris, Republican of Maryland and a member of the Freedom Caucus, who did not attend Wednesday’s meeting.

“I think that would involve a fair discussion of the issues,” he said. “I think that would involve a feeling that leadership is not putting its finger on the scale. Take a vote, and let the chips fall where they may.”

Members of the caucus are also concerned about a push from more moderate Republicans to toss out the so-called motion to vacate the chair, a procedural move through which a single member can force a vote to remove the speaker. One member of the Freedom Caucus, Representative Mark Meadows of North Carolina, tried to use it to oust John A. Boehner from his speakership last year, prompting many — including Mr. Ryan — to criticize it.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>

William & Mary Law Students Blogging on State Election Law Topics at StateofElections blog<http://electionlawblog.org/?p=88715>
Posted on November 4, 2016 8:06 am<http://electionlawblog.org/?p=88715> by Rick Hasen<http://electionlawblog.org/?author=3>

Announcement:

The William & Mary Election Law Society created the StateofElections blog in 2009 to give law students the opportunity to do original reporting on state election law topics of national, state, and local interest. In the lead up to Tuesday’s election, visitors will find coverage of numerous topics from poll watching in Pennsylvania to a critique of New Jersey’s Election Law Enforcement Commission to fusion voting on New York’s 2016 ballot. Visit www.stateofelections.com<http://www.stateofelections.com/>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Write-in Vote for President?”<http://electionlawblog.org/?p=88713>
Posted on November 4, 2016 8:05 am<http://electionlawblog.org/?p=88713> by Rick Hasen<http://electionlawblog.org/?author=3>

Jerry Goldfeder<http://www.stroock.com/siteFiles/Publications/WriteInForPresident.pdf> for Law.com.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Deal reached after GOP claims absentee ballots were handled improperly in Broward”<http://electionlawblog.org/?p=88711>
Posted on November 4, 2016 7:58 am<http://electionlawblog.org/?p=88711> by Rick Hasen<http://electionlawblog.org/?author=3>

Florida<http://www.miamiherald.com/news/local/community/broward/article112183717.html>—still struggling not to be the next Florida.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“How one Floridian — and 1.7 million others — lost the right to vote”<http://electionlawblog.org/?p=88709>
Posted on November 4, 2016 7:56 am<http://electionlawblog.org/?p=88709> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read<http://www.miamiherald.com/news/local/community/broward/article111783547.html> on Florida’s long path to restoration of voting rights for felons who have turned their lives around.

More than 10,000 applications wait to be heard by the Florida Board of Executive Clemency. The backlog seems by design. The board, which meets four times annually, has tasked itself with an insurmountable amount of work and cannot keep up with the thousands of new applications it receives.

Scott rarely comments on the process, but in March, an Orlando television news reporter asked the governor at a public event if he realized how difficult the clemency process had become.

“It’s not,” Scott said, shaking his head. “Just look at how many people are voting. We have plenty of turnout.”
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Posted in felon voting<http://electionlawblog.org/?cat=66>

“FBI examining fake documents targeting Clinton campaign: sources”<http://electionlawblog.org/?p=88707>
Posted on November 4, 2016 7:52 am<http://electionlawblog.org/?p=88707> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters:<http://www.reuters.com/article/us-usa-election-documents-idUSKBN12Y2WY>

The FBI and U.S. intelligence agencies are examining faked documents aimed at discrediting the Hillary Clinton campaign as part of a broader investigation into what U.S. officials believe has been an attempt by Russia to disrupt the presidential election, people with knowledge of the matter said.

U.S. Senator Tom Carper, a Democrat on the Senate Homeland Security Committee, has referred one of the documents to the FBI for investigation on the grounds that his name and stationery were forged to appear authentic, some of the sources who had knowledge of that discussion said.

In the letter identified as fake, Carper is quoted as writing to Clinton, “We will not let you lose this election,” a person who saw the document told Reuters.

The fake Carper letter, which was described to Reuters, is one of several documents presented to the Federal Bureau of Investigation and the U.S. Department of Justice for review in recent weeks, the sources said.

…

In addition to the Carper letter, the FBI has also reviewed a seven-page electronic document that carries the logos of Democratic pollster Joel Benenson’s firm, the Benenson Strategy Group, and the Clinton Foundation, a person with knowledge of the matter said.

The document, identified as a fake by the Clinton campaign, claims poll ratings had plunged for Clinton and called for “severe strategy changes for November” that could include “staged civil unrest” and “radiological attack” with dirty bombs to disrupt the vote.

Like the Carper letter, it was not immediately clear where the fraudulent document had originated or how it had begun to circulate.

On Oct. 20, Roger Stone, a former Trump aide and Republican operative, linked to a copy of the document on Twitter with the tag, “If this is real: OMG!!”

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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Super PACs, ‘dark money’ groups eschew presidential race for Senate”<http://electionlawblog.org/?p=88705>
Posted on November 4, 2016 7:48 am<http://electionlawblog.org/?p=88705> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports.<https://www.publicintegrity.org/2016/11/04/20423/super-pacs-dark-money-groups-eschew-presidential-race-senate>

In a striking departure from the 2012 election, super PACs and other non-candidate organizations have spent more on U.S. Senate races in July, August and September than on the presidential election, a new analysis shows.

The spending pattern may be the best evidence yet that the big money that would normally go to supporting the GOP frontrunner has instead migrated down ballot, especially to U.S. Senate races where there is a strong chance Democrats may take control.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“The Voter Suppression Trail”<http://electionlawblog.org/?p=88700>
Posted on November 4, 2016 7:46 am<http://electionlawblog.org/?p=88700> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT op-doc retro video game. <http://www.nytimes.com/interactive/2016/11/01/opinion/voting-suppression-videogame.html?_r=0>

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Posted in election administration<http://electionlawblog.org/?cat=18>, election law "humor"<http://electionlawblog.org/?cat=52>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Are new voter ID laws unfairly blocking people from the polls?”<http://electionlawblog.org/?p=88698>
Posted on November 4, 2016 7:42 am<http://electionlawblog.org/?p=88698> by Rick Hasen<http://electionlawblog.org/?author=3>

NBC Today show video. <http://www.today.com/video/are-new-voter-id-laws-unfairly-blocking-people-from-the-polls-799928899531>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“How to fix Congress? Make representatives accountable to voters”<http://electionlawblog.org/?p=88696>
Posted on November 4, 2016 7:39 am<http://electionlawblog.org/?p=88696> by Rick Hasen<http://electionlawblog.org/?author=3>

FEC Commissioner Ellen Weintraub <https://www.washingtonpost.com/news/in-theory/wp/2016/11/03/how-to-fix-congress-make-representatives-accountable-to-voters/> for WaPo.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“If he loses, Trump will continue spreading destruction and mayhem. This chart shows how.”<http://electionlawblog.org/?p=88694>
Posted on November 4, 2016 7:37 am<http://electionlawblog.org/?p=88694> by Rick Hasen<http://electionlawblog.org/?author=3>

Greg Sargent<https://www.washingtonpost.com/blogs/plum-line/wp/2016/11/04/if-he-loses-trump-will-continue-spreading-destruction-and-mayhem-this-chart-shows-how/> for The Plum Line.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Legal team seeking to undo super PACs files suit to push FEC to act”<http://electionlawblog.org/?p=88692>
Posted on November 4, 2016 7:33 am<http://electionlawblog.org/?p=88692> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/post-politics/wp/2016/11/04/legal-team-seeking-to-undo-super-pacs-files-suit-to-push-fec-to-act/>

A bipartisan group of congressional members and candidates is filing a federal suit Friday against the Federal Election Commission, seeking to force the agency to act on a complaint <https://www.washingtonpost.com/politics/can-super-pacs-be-put-back-in-the-box/2016/07/06/9beb18ba-43b1-11e6-8856-f26de2537a9d_story.html> it brought against 10 super PACs in July.

The maneuver is part of a legal strategy aimed at rolling back SpeechNow.org v. FEC, the federal appellate court decision that led to the birth of super PACs, which can accept unlimited donations. Once the FEC takes up the complaint and dismisses it or deadlocks on it — as it is ultimately expected to do — the group plans to file a broader suit against the agency that it hopes will ultimately reach the Supreme Court.

I’ve expressed skepticism <http://electionlawblog.org/?p=84160> about this strategy.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Quote of the Day: Republican Early Voting Cutback Edition<http://electionlawblog.org/?p=88690>
Posted on November 4, 2016 7:28 am<http://electionlawblog.org/?p=88690> by Rick Hasen<http://electionlawblog.org/?author=3>

“Republicans don’t want early voting because they suck at early voting….It’s not an advantage (for Democrats); it’s the law. And when things don’t go the way Republicans want, they change the law.”

–WI Sen. Jon Erpenbach (D-Middleton), quoted in Milwaukee Journal-Sentinel<http://www.jsonline.com/story/news/politics/elections/2016/11/04/gop-leader-wants-early-voting-limits/93255376/>, “GOP Leader Wants Early Voting Limits.”

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“These Officials Help Write Ballot Questions. Companies Write Them Checks.”<http://electionlawblog.org/?p=88687>
Posted on November 4, 2016 7:20 am<http://electionlawblog.org/?p=88687> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/11/05/us/politics/secretaries-of-state-elections-ballot-initiatives.html?partner=socialflow&smid=tw-nytnational&smtyp=cur&_r=0>

Big-money corporate lobbying has reached into one of the most obscure corners of state government: the offices of secretaries of state, the people charged with running elections impartially.

The targeting of secretaries of state with campaign donations, corporate-funded weekend outings and secret meetings with industry lobbyists reflects an intense focus on often overlooked ballot questions, which the secretaries frequently help write.

The ballot initiatives are meant to give voters a direct voice on policy issues such as the minimum wage and the environment. But corporate and other special interests are doing their best to build close ties with the secretaries because a difference of even a few words on a ballot measure can have an enormous impact on the outcome.

The influence campaign has intensified, with more citizen-driven ballot initiatives to be decided on Election Day this year than at any time in the past decade.

Secretaries of state from Washington, Ohio, Colorado and Nevada — all Republicans — participated in closed-door meetings in May with representatives from Reynolds American, the nation’s second-largest tobacco company<http://www.rjrt.com/transforming-tobacco/who-we-are/>; the National Restaurant Association; and the National Rifle Association, while ballot initiative signatures in those states were still being collected, documents obtained through open records requests show<https://www.documentcloud.org/documents/3149260-GOP-SOS-Fund-Raising-and-Ballot-Initiative-Project.html#document/p24/a323964>….

“The Koch brothers out with the Republican secretaries of state — that’s a news story I don’t need,” Allen Richardson, a Koch lobbyist, joked, unaware that a reporter was in attendance.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>, election administration<http://electionlawblog.org/?cat=18>

Another Dry Run for U.S. Election Day? “Massive cyber-attack grinds Liberia’s internet to a halt”<http://electionlawblog.org/?p=88684>
Posted on November 4, 2016 6:55 am<http://electionlawblog.org/?p=88684> by Rick Hasen<http://electionlawblog.org/?author=3>

The Guardian:<https://www.theguardian.com/technology/2016/nov/03/cyberattack-internet-liberia-ddos-hack-botnet?CMP=share_btn_tw>

The entire internet infrastructure of the African nation of Liberia<https://www.theguardian.com/world/liberia> has been brought to a grinding halt after it was targeted by hackers using the same weapon that caused the largest cyber-attack in history just two weeks ago.

The attack was a distributed denial of service, or DDoS, in which a network of infected computers – a botnet – is directed to bombard its target with traffic, overloading its servers.

The weapon used in the October attack<https://www.theguardian.com/technology/2016/oct/21/ddos-attack-dyn-internet-denial-service>, the Mirai botnet, was particularly effective because it harnessed infected, internet-connected devices such as DVR players and digital cameras.

See my October 21 post: If Today’s Internet Outage/Hacking Was a Dry Run for Election Day, Things Could Get Very Bad<http://electionlawblog.org/?p=87926>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Are Voting Booth Selfies Fun or Dangerous?”<http://electionlawblog.org/?p=88682>
Posted on November 4, 2016 6:49 am<http://electionlawblog.org/?p=88682> by Rick Hasen<http://electionlawblog.org/?author=3>

Elie Mystal and I debated ballot selfies<http://www.nytimes.com/roomfordebate/2016/11/04/are-voting-booth-selfies-fun-or-dangerous> at NYT’s Room for Debate.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Democrat’s Voter Intimidation Case Goes Before Federal Court Friday”<http://electionlawblog.org/?p=88680>
Posted on November 4, 2016 6:43 am<http://electionlawblog.org/?p=88680> by Rick Hasen<http://electionlawblog.org/?author=3>

Pam Fessler curtainraiser<http://www.npr.org/2016/11/04/500634397/democrats-voter-intimidation-case-goes-before-federal-court-friday?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social> for NPR.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Possible Record $18 Million Penalty for Campaign Finance Violations in Washington State<http://electionlawblog.org/?p=88676>
Posted on November 3, 2016 8:24 pm<http://electionlawblog.org/?p=88676> by Rick Hasen<http://electionlawblog.org/?author=3>

See the opinion <http://electionlawblog.org/wp-content/uploads/GMA.pdf> in State of Washington v. Grocery Manufacturers Association.  A snippet:

[creen-shot-2016-11-03-at-8-21-42-pm]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-11-03-at-8.21.42-PM.png>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Three-Judge District Court in DC Rejects Challenge to McCain-Feingold Disclosure Requirements, Noting Danger of Foreign Influence<http://electionlawblog.org/?p=88673>
Posted on November 3, 2016 8:15 pm<http://electionlawblog.org/?p=88673> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the unanimous opinion for Judges Millett, Kollar-Kotelly, and Mehta at this link<https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1500-53>.  A snippet:

[creen-shot-2016-11-03-at-8-14-28-pm]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-11-03-at-8.14.28-PM.png>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88673&title=Three-Judge%20District%20Court%20in%20DC%20Rejects%20Challenge%20to%20McCain-Feingold%20Disclosure%20Requirements%2C%20Noting%20Danger%20of%20Foreign%20Influence>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Shooting Your Brand in the Foot: What Citizens United Invites”<http://electionlawblog.org/?p=88671>
Posted on November 3, 2016 8:04 pm<http://electionlawblog.org/?p=88671> by Rick Hasen<http://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy has posted this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665705> on SSRN (Rutgers Law Review). Here is the abstract:

Part of what makes corporate political spending so fraught is the how valuable brand identity is to the average firm, the heterogeneous political views of customers and shareholders, as well as the increasing political polarization of the many segments of the America public. This means that corporate political spending which associates a brand with one political party is likely to alienate customers or shareholders who feel strongly affiliated with the opposite political party. American consumers have a long tradition of boycotting goods or services for political reasons and American shareholders have a history of divesting to make a political point. Thus there is a nontrivial risk that customers and investors will vote with their dollars when they discover corporate political activity. Furthermore, the ability to boycott or divest has been given a technological boost with the advent of multiple smartphone applications that provide end-users with instantaneous data about the politics behind mass marketed brands. This technology empowers a consumer to buy goods that are more closely aligned with the consumer’s political views and for investors to do the same with stocks. Finally this piece explores how consumer groups and investors have both coordinated efforts to pressure firms to leave the American Legislative Exchange Council (ALEC). This type of orchestrated one-two punch could be the wave of the future for politically active firms.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“How States Moved Toward Stricter Voter ID Laws”<http://electionlawblog.org/?p=88669>
Posted on November 3, 2016 7:45 pm<http://electionlawblog.org/?p=88669> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<http://www.nytimes.com/interactive/2016/11/03/us/elections/how-states-moved-toward-stricter-voter-id-laws.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news&_r=0>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Oops! Dems Seize On GOP Lawyer’s Apparent Slip On Poll Watcher Call”<http://electionlawblog.org/?p=88667>
Posted on November 3, 2016 7:38 pm<http://electionlawblog.org/?p=88667> by Rick Hasen<http://electionlawblog.org/?author=3>

Tierney Sneed <http://talkingpointsmemo.com/muckraker/dems-goper-s-mention-of-rnc-in-poll-training-call-shows-they-violated-decree> for TPM:

In legal action claiming that the Republican National Committee was illegally engaged in ballot security activities, Democrats are pointing to a conference call in which a Republican operative mentioned that certain GOP ballot security initiatives in Virginia were being handled by the RNC, before quickly walking the comment back.

“I’ve got the folks RNC has hired on — um, to help them with…,” Virginia Republican Party General Counsel Chris Marston allegedly said, according to a transcript of a poll worker training conference call filed in court by the Democratic National Committee Thursday.

“I’m sorry. The RNC is not doing anything related to Election Day operations,” Marston went on to say with laughter, according to the transcript. The DNC, nonetheless, argued that the comment indicated “the RNC’s involvement and obfuscation.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Not Intimidated: A court has gotten the Trump campaign on the record promising not to intimidate voters on Election Day. That is huge.”<http://electionlawblog.org/?p=88665>
Posted on November 3, 2016 5:06 pm<http://electionlawblog.org/?p=88665> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_campaign_promises_not_to_intimidate_voters_on_election_day_that_s.html> for Slate. It begins:

On Friday morning<http://electionlawblog.org/?p=88641>, a federal district court will hear arguments<http://electionlawblog.org/?p=88127> in a dispute<https://www.brennancenter.org/legal-work/dnc-v-rnc-consent-decree> between the Democratic National Committee and the Republican National Committee over whether the RNC, the Trump campaign, and its allies are violating a long-standing consent decree barring the RNC from engaging in intimidation of minority voters at the polls. It’s not the only case being heard on an emergency basis this week: Democrats have filed suit against<http://electionlawblog.org/?p=88351> Donald Trump, Republican state parties, and Trump ally Roger Stone in the battleground states of Arizona, Nevada, North Carolina<http://electionlawblog.org/?p=88646>, Ohio, and Pennsylvania. In the Nevada suit, Stone has been ordered to explain<http://electionlawblog.org/?p=88651> at a separate Friday hearing what his questionable “Stop the Steal” organization<https://www.theguardian.com/us-news/2016/oct/20/citizens-for-donald-trump-exit-poll-roger-stone-rigged-election-claim> is planning for Election Day.

But regardless of how these hearings go Friday, the lawsuits have already borne fruit by getting the campaign on the record with its plans and promises not to intimidate voters. In an important development on Thursday afternoon, the Trump campaign in response to the lawsuits sent an email<http://electionlawblog.org/?p=88629> to Nevada campaign workers describing for them what constitutes illegal harassment and what constitutes good behavior. By getting Trump on the record promising not to harass voters with its “ballot security” activities, the Democrats have significantly lessened the chances of Trump-driven voter intimidation on Election Day.
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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
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http://electionlawblog.org<http://electionlawblog.org/>
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