[EL] more news 11/4/16

Fri Nov 4 13:45:13 PDT 2016

Breaking: Federal Court in OH Restrains Trump, Roger Stone, Stop the Steal and *Those “Associated” with Clinton Campaign* from Voter Intimidation<http://electionlawblog.org/?p=88754>
Posted on November 4, 2016 12:57 pm<http://electionlawblog.org/?p=88754> by Rick Hasen<http://electionlawblog.org/?author=3>
The order is here<http://electionlawblog.org/wp-content/uploads/14118592299.pdf>. It is broad and important, including stopping Roger Stone’s group from purported to engage in “exit polling” that is really about questioning and hassling voters.
It doesn’t apply to the Ohio Republican Party, I assume because there is no evidence that the ORP, unlike the Trump campaign or Roger Stone, has engaged in any activity that has threatened voters or claimed a massive problem of voter fraud.
BUT, why does the order also apply to “groups associated with the Clinton for Presidency campaign?”  Is this an effort to be “even-handed?” There’s certainly no evidence that I’ve seen anywhere of the Clinton campaign raising vote fraud or threatening to harass voters at the polling place.  Very odd.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“The Counter” Burger Restaurant Could Get in Legal Trouble for Offering Free Fries with “I Voted” Sticker<http://electionlawblog.org/?p=88751>
Posted on November 4, 2016 12:49 pm<http://electionlawblog.org/?p=88751> by Rick Hasen<http://electionlawblog.org/?author=3>
From my NYT Room for Debate today<http://www.nytimes.com/roomfordebate/2016/11/04/are-voting-booth-selfies-fun-or-dangerous>:

Back in 2008, I noted<http://electionlawblog.org/archives/011866.html> that Ben and Jerry’s, in an act of civic virtue, promised free ice cream on Election Day to everyone who showed an “I Voted” sticker. But this ran afoul of a long-running federal prohibition on vote buying<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=257564>. I was called a “crotchety spoilsport<http://electionlawblog.org/?p=11224>” for raising this argument, as Elie seems to treat me now, but my fear was that payment for turnout — especially directed to certain areas only — could be the basis for more worrisome vote buying. The Ben and Jerry’s story ended happily, with the ice cream company responding<http://www.businesswire.com/portal/site/google/?ndmViewId=news_view&newsId=20081029006185&newsLang=en> by giving free ice cream to voters and nonvoters alike, including kids.

And yet,,,,,

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Posted in election administration<http://electionlawblog.org/?cat=18>, vote buying<http://electionlawblog.org/?cat=43>

Breaking: 9th Circuit, on 6-5 Vote, Allows AZ “Ballot Harvesting” for This Election, Leaving Possible #SCOTUS Action<http://electionlawblog.org/?p=88743>
Posted on November 4, 2016 12:27 pm<http://electionlawblog.org/?p=88743> by Rick Hasen<http://electionlawblog.org/?author=3>
You can find the opinions (including two dissents) at this link.<http://electionlawblog.org/wp-content/uploads/16-16698_stay_orderappxdissents.pdf>
Aside from the merits of this decision (which I discussed in this post)<http://electionlawblog.org/?p=88306>, there is a whole lot going on in this opinion about proper application of the Purcell principle<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676> (as in, when courts should act at the last minute in voting cases to protect voting rights) as well as the proper application of en banc procedures in this case (the case proceeded from an en banc call to an immediate order issuing an injunction pending further appeal) in just two days. There is also the question whether this is fairly characterized as an injunction or stay pending a hearing that will occur in January. The dissent is right that this is an injunction rather than a stay, and at least at the Supreme Court level there is a higher standard to get one of those.
Perhaps most interestingly, this is the case where Judge Reinhardt<http://electionlawblog.org/?p=88536> opined that given the makeup of the en banc panel that the plaintiffs would likely lose. So the judge’s nose-counting was off here.
So Arizona’s only option here would be to address an emergency request to Justice Kennedy, putting him in a very unusual position. He likely agrees with the dissenters, if only on the Purcell principle and the Ninth Circuit’s super truncated procedure. So does he stay the injunction or does he refer to the whole Court, which could well divide 4-4, leaving the 6-5 en banc ruling standing.
Lucky things are not close in AZ. (Kidding.)
[This post has been updated.]
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Court Permanently Blocks Kansas’s Dual Voter Registration System”<http://electionlawblog.org/?p=88741>
Posted on November 4, 2016 11:34 am<http://electionlawblog.org/?p=88741> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://www.aclu.org/news/court-permanently-blocks-kansas-dual-voter-registration-system>
A state court has ordered<https://www.aclu.org/sites/default/files/field_document/memorandum_decision_brown_v_kobach_2016.pdf> a permanent halt to Kansas’ dual voter registration system, meaning thousands of Kansans will have their votes counted for federal, state, and local elections in next week’s election and beyond.
The American Civil Liberties Union challenged the dual system, which had allowed some Kansans to vote for federal offices but not state and local offices, due solely to their method of registration. Secretary of State Kris Kobach attempted to formalize the system via an administrative rule, and the ACLU asked the court to permanently block it. Judge Larry Hendricks today agreed, ruling that Kobach “simply lacks the authority to create a two-tiered system of voter registration.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Fake Clinton campaign ads circulating on Twitter falsely tell supporters they can vote by text”<http://electionlawblog.org/?p=88739>
Posted on November 4, 2016 11:06 am<http://electionlawblog.org/?p=88739> by Rick Hasen<http://electionlawblog.org/?author=3>
NYDN reports. <http://www.nydailynews.com/news/national/fake-clinton-ads-twitter-supporters-vote-text-article-1.2856830>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>

“Ohio federal judge orders no voter harassment in Democrats’ lawsuit against Donald Trump, Republicans”<http://electionlawblog.org/?p=88737>
Posted on November 4, 2016 10:52 am<http://electionlawblog.org/?p=88737> by Rick Hasen<http://electionlawblog.org/?author=3>
Eric Heisig:<http://www.cleveland.com/court-justice/index.ssf/2016/11/ohio_federal_judge_orders_no_v.html>
A federal judge on Friday said he will issue a restraining order against Donald Trump’s campaign and longtime adviser Roger Stone to avoid “harassing or intimidating conduct” at polling places on Nov. 8 Election Day.
U.S. District Judge James Gwin did not specify exactly what will or will not be allowed but said the order would likely be generic and prohibit both Democrats and Republicans from any harassment of people entering and leaving polling places.
“It wouldn’t be any attempt to particularly identify as somebody being a Trump supporter or not,” Gwin said.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“A Russia-Linked Twitter Account Just Invited Hackers To Monitor The US Elections”<http://electionlawblog.org/?p=88735>
Posted on November 4, 2016 10:49 am<http://electionlawblog.org/?p=88735> by Rick Hasen<http://electionlawblog.org/?author=3>
Sheera Frenkel for Buzzfeed. <https://www.buzzfeed.com/sheerafrenkel/a-russia-linked-twitter-account-just-invited-hackers-to-moni?utm_term=.iqKbq4ZLw#.liKr9XO50>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

First Report from RNC v. DNC Oral Argument: Written Order By Tomorrow<http://electionlawblog.org/?p=88733>
Posted on November 4, 2016 9:49 am<http://electionlawblog.org/?p=88733> by Rick Hasen<http://electionlawblog.org/?author=3>
Flavio Komuves:<https://www.facebook.com/permalink.php?story_fbid=1233891749966634&id=166037433418743&comment_id=1233941839961625>
A 2.5 hour oral argument (with a 15 minute break) just concluded. The judge questioned both sides in detail on their affidavits and arguments. Judge Vazquez asked the RNC to submit some supplemental materials on the distinction between its vendors and contractors and whether state chairs were historically RNC members. He did not issue a ruling, expressing a hope that he will issue a written opinion later today, or tomorrow at the latest.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Democrats Now File Lawsuit in MI Against Trump, Stone and MI GOP<http://electionlawblog.org/?p=88730>
Posted on November 4, 2016 9:45 am<http://electionlawblog.org/?p=88730> by Rick Hasen<http://electionlawblog.org/?author=3>
And then there were six.<http://electionlawblog.org/wp-content/uploads/migop.pdf>

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

Breaking: 9th Circuit Grants En Banc in AZ Case Involving Counting Out-of-Precinct Ballots<http://electionlawblog.org/?p=88726>
Posted on November 4, 2016 9:30 am<http://electionlawblog.org/?p=88726> by Rick Hasen<http://electionlawblog.org/?author=3>
Order.<http://electionlawblog.org/wp-content/uploads/16-16685.pdf>
(Confusingly, there are now two en bancs named Feldman stemming from the same AZ case: this one on out of precinct ballots and the other on “ballot harvesting”<http://electionlawblog.org/?p=88536>).
From my coverage yesterday<http://electionlawblog.org/?p=88580>:
Same panel as in the other aspect of the Feldman case, same 2-1 split: this time<http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/02/16-16865.pdf>, whether Arizona’s rule that ballots cast by a voter in the wrong precinct should not count (for those races that the voter was eligible to vote in) violates Section 2 of the Voting Rights Act. The district court denied the preliminary injunction. The 9th Circuit, in a Judge Ikuta opinion, affirmed, relying in part on the Purcell princple. Chief Judge Thomas dissented, in a dissent filled with graphs showing how much of an outlier AZ is when it comes to ballots cast in the wrong precinct, and the racial disparities of this rule.
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Posted in election administration<http://electionlawblog.org/?cat=18>, provisional ballots<http://electionlawblog.org/?cat=67>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

--
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>
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http://electionlawblog.org<http://electionlawblog.org/>
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