[EL] ELB News and Commentary 11/5/16

Fri Nov 4 21:04:26 PDT 2016

“The election might not end on Tuesday night — and that’s okay”<http://electionlawblog.org/?p=88817>
Posted on November 4, 2016 8:49 pm<http://electionlawblog.org/?p=88817> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley and Charles Stewart WaPo oped<https://www.washingtonpost.com/opinions/the-election-might-not-end-on-tuesday-night--and-thats-okay/2016/11/04/b93e6ca4-a294-11e6-a44d-cc2898cfab06_story.html?wpmk=MK0000200>:
Moreover, it would be reasonable for a candidate behind by several thousand votes in a state critical to winning the electoral college to think it possible to make up the difference by provisional ballots. Our research<http://files.www.lawandpolitics.org/content/vol-xxviii-no-4/Foley_Color_1110.pdf> shows that in 2012, President Obama extended his margin of victory in multiple battleground states by more than 20,000 votes during the time between election night returns and final certification of the results. Obviously, these gains didn’t make a difference in the outcome, because Obama already had won. But they show that votes counted after Election Day could determine the outcome of a much closer election.
 Gains of this magnitude are much larger than what routinely occurred before the enactment of Help America Vote. While other factors may play a role, such as increased reliance on mailed ballots, our statistical analysis indicates this increase is largely due to provisional voting. It also explains why the overtime vote tends to favor Democratic candidates, whose voters are disproportionately affected by the kind of circumstances (such as a change of address) that can cause the need to vote provisionally. In other words, an election that is not decided on election night is more likely than not to end up favoring Hillary Clinton.
Because no count is officially complete until it includes all valid provisional ballots, every state has a well-rehearsed operating manual for conducting this procedure. Missouri’s experience in 2008 is instructive. It took 15 days to determine that John McCain narrowly beat Obama there (although the outcome didn’t alter Obama’s overall electoral college victory). Reviewing Missouri’s provisional ballots, which kept the state “too close to call” for two weeks, proceeded without difficulty, and there is good reason to think that this model could work even when an overtime state was necessary for reaching an electoral college majority.
Thus, if this year’s presidential election ends up being closer than previously expected, we should be prepared for the possibility that provisional ballots take us into extra innings. This won’t be a sign that the system is “rigged,” but that it’s working as designed.

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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>

“Dirty Tricks, Vandalism and the Dark Side of Politics”<http://electionlawblog.org/?p=88815>
Posted on November 4, 2016 8:38 pm<http://electionlawblog.org/?p=88815> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT<http://www.nytimes.com/2016/11/05/us/politics/dirty-tricks-vandalism-and-the-dark-side-of-politics.html?ref=politics> reports.

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

“How Much Will Voters Trust Election Results On Election Day?”<http://electionlawblog.org/?p=88813>
Posted on November 4, 2016 8:31 pm<http://electionlawblog.org/?p=88813> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Monthly reports.<http://www.texasmonthly.com/the-daily-post/much-will-voters-trust-election-results-election-day/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Ohio GOP files election complaint against Democratic Party”<http://electionlawblog.org/?p=88811>
Posted on November 4, 2016 8:30 pm<http://electionlawblog.org/?p=88811> by Rick Hasen<http://electionlawblog.org/?author=3>
Cincinnati Enquirer:<http://www.cincinnati.com/story/news/politics/elections/2016/11/03/ohio-gop-files-election-complaint-against-democratic-party/93233808/>
The Ohio Republican Party has filed a complaint with federal election officials, claiming the Ohio Democratic Party sent mailers without required disclaimers to identify the source of the brochures or who paid for them.
The flyers, encouraging support for federal, state and local Democratic candidates, had return addresses and postage meter stamps indicating they came from the ODP, the complaint states. But the mailings didn’t include boxes printed on them with a “paid for by” disclaimer or text indicating ODP sent the mailings, the Ohio Republican Party claims.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“The closer the race, the more likely a legal challenge”<http://electionlawblog.org/?p=88807>
Posted on November 4, 2016 8:17 pm<http://electionlawblog.org/?p=88807> by Rick Hasen<http://electionlawblog.org/?author=3>
AP reports.<http://www.sfgate.com/news/politics/article/The-closer-the-race-the-more-likely-a-legal-10594462.php>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Republicans and the Myth of Election Fraud”<http://electionlawblog.org/?p=88805>
Posted on November 4, 2016 8:08 pm<http://electionlawblog.org/?p=88805> by Rick Hasen<http://electionlawblog.org/?author=3>
William Barber NYT oped.<http://www.nytimes.com/2016/11/05/opinion/republicans-and-the-myth-of-election-fraud.html?_r=0>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Roger Stone Files Declaration Seeking to Minimize His Involvement with “Stop the Steal”<http://electionlawblog.org/?p=88803>
Posted on November 4, 2016 7:53 pm<http://electionlawblog.org/?p=88803> by Rick Hasen<http://electionlawblog.org/?author=3>
This one filed <https://www.scribd.com/document/330043999/Stone-Motion-to-Dismiss> in the NV case:
 I am not employed by Stop the Steal nor am I an officer of it. I do happen to be a volunteer for it, as are many other people. In no sense do I run Stop theSteal, but I do assist in managing one of its projects. I did not establish Stopthe Steal. I do not control its bank account or in any other way manage its affairs…
With regard to the exit polling Stop the Steal will be conducting on electionday next week, I have no intention whatsoever of violating any law orregulation, nor do I have any intention of targeting minority-majority precincts or of contacting individual voters based on their race or color.Indeed, it is my intention that all voters in a given precinct, or at least asmany as possible, be contacted. However, since our election day effort isnational, the amount of volunteers in any one state, including Nevada, will beminimal
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

Daily Caller Accuses FEC Commissioner Ann Ravel of Quid Pro Quo with President Obama to Stay at FEC; Ravel Denies<http://electionlawblog.org/?p=88801>
Posted on November 4, 2016 7:49 pm<http://electionlawblog.org/?p=88801> by Rick Hasen<http://electionlawblog.org/?author=3>
Story<http://dailycaller.com/2016/11/03/source-obama-agreed-to-deal-with-fec-commissioner-to-keep-her-from-stepping-down/>
Commissioner Ravel response.<https://twitter.com/AnnMRavel/status/794712864720359424>
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Posted in federal election commission<http://electionlawblog.org/?cat=24>

“U.S. Govt. Hackers Ready to Hit Back If Russia Tries to Disrupt Election”<http://electionlawblog.org/?p=88799>
Posted on November 4, 2016 7:43 pm<http://electionlawblog.org/?p=88799> by Rick Hasen<http://electionlawblog.org/?author=3>
Wow story from NBC News<http://www.nbcnews.com/news/us-news/u-s-hackers-ready-hit-back-if-russia-disrupts-election-n677936> (though hard to know if this is a deliberate misinformation campaign aimed at deterrence):
U.S. military hackers have penetrated Russia’s electric grid, telecommunications networks and the Kremlin’s command systems, making them vulnerable to attack by secret American cyber weapons should the U.S. deem it necessary, according to a senior intelligence official and top-secret documents reviewed by NBC News.
American officials have long said publicly that Russia, China and other nations have probed and left hidden malware on parts of U.S critical infrastructure, “preparing the battlefield,” in military parlance, for cyber attacks that could turn out the lights or turn off the internet across major cities.
It’s been widely assumed that the U.S. has done the same thing to its adversaries. The documents reviewed by NBC News — along with remarks by a senior U.S. intelligence official — confirm that, in the case of Russia.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

Huefner: “The Perils of Allowing Absentee Ballot Harvesting”<http://electionlawblog.org/?p=88797>
Posted on November 4, 2016 7:36 pm<http://electionlawblog.org/?p=88797> by Rick Hasen<http://electionlawblog.org/?author=3>
Steve Huefner:<http://moritzlaw.osu.edu/election-law/article/?article=13327>
Indeed, earlier this year the American Law Institute approved a set of principles (which can be found here<https://www.ali.org/news/articles/election-law-procedures-early-and-absentee-voting-and-resolution-disputed-presidential-election-now-available/>) for conducting early and absentee voting, one of which is akin to Arizona’s anti-harvesting law. (I serve as the Associate Reporter for this ALI project.) That ALI principle essentially provides that absentee voters should only be permitted to return their ballots by mail or by hand, either personally or by an agent or family member who should be allowed to deliver only two ballots at a time. This principle reflects a careful balancing of a number of relevant interests at stake in how elections are conducted, and makes eminent sense for the vast majority of voters who do have reliable access to the U.S. mail, and who also can conveniently drop off their ballots in person. As Judge Bybee’s dissenting opinion in today’s Ninth Circuit decision noted, the 2005 bipartisan Commission on Federal Election Reform also had called for similar limitations on absentee ballot harvesting, which a number of states besides Arizona have long had in place.
The harder question is how to balance the reasonable justifications for these general prohibitions on absentee ballot harvesting against the burden such a prohibition may impose on a small minority of affected voters who are far from the election offices and lack access to reliable mail service, as for instance the voters identified in the complaint in the Arizona case. Yet the Ninth Circuit presumably could have limited its order to that subset of voters, rather than enjoining Arizona’s new law in its entirety. Meanwhile, with respect to all other voters, those groups who wish to harvest their absentee votes could be allowed instead to provide postage, rather than hand delivery, for their ballots.
Instead, today’s Ninth Circuit decision unfortunately has essentially rejected Arizona’s legitimate reasons for the anti-harvesting law as it applies to most of the absentee voters in the state. At the least, the court ought to have explored a narrower injunction.
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

Breaking: Federal Court in AZ Refuses Injunction Barring Voter Intimidation Against the Trump Campaign and Stone<http://electionlawblog.org/?p=88794>
Posted on November 4, 2016 7:27 pm<http://electionlawblog.org/?p=88794> by Rick Hasen<http://electionlawblog.org/?author=3>
A snippet from the opinion:<http://electionlawblog.org/wp-content/uploads/file0.6353179100352811.pdf>
Second, whether true or false, and whether appealing or repugnant to the listener, Mr. Trump’s and his agents’ statements that the election is rigged, that voter fraud is being perpetrated en masse by “illegal aliens,” and that his supporters should go to polls and watch to ensure a fair election, without more, simply do not prove actual or likely intimidation. One can seriously question the wisdom of stirring up supporters about a controversial issue, encouraging them to go to a precinct that is not their own, and telling them to look for “voter fraud” without defining what it is, leaving individuals to their own devices to figure out how to go about that task.9 If the objective of observing is to detect persons voting more than once, the fact that the observer is in a precinct not their own, whether in the next town or the next state, only adds to the difficulty of recognizing a voter coming through the line more than once. And if the objective of observing, as strongly suggested by the candidate’s statements, is to detect persons attempting to vote who are ineligible because they are not citizens, it is beyond question that no one can tell a person’s citizenship based on what that person looks like or sounds like. But whatever the shortcomings of the Trump Campaign’s statements on this issue might be, simply arguing there is voter fraud and urging people to watch out for it is not, without more, sufficient to justify the extraordinary relief that an injunction constitutes.
The next question is whether plaintiffs take this to the 9th Circuit.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Breaking: Federal Court Temporarily Lifts CO Ban on Most Ballot Selfies for Upcoming Election<http://electionlawblog.org/?p=88791>
Posted on November 4, 2016 5:40 pm<http://electionlawblog.org/?p=88791> by Rick Hasen<http://electionlawblog.org/?author=3>
From the court’s 28 page opinion and orde<http://electionlawblog.org/wp-content/uploads/co-selfieodf.pdf>r:
The Court therefore ORDERS that Defendants Mitch Morrissey, in his official capacity as District Attorney for the Second Judicial District, and Cynthia Coffman, in her official capacity as Colorado Attorney General, are enjoined from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws. Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places.
In other words, selfies will be okay in this election so long as you don’t use it to break another law, like to coerce someone or sell your vote.
Besides disagreeing on the merits, I think the court has the Purcell Principle wrong.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18>

Breaking and Big: En Banc 9th Circuit, on 7-4 Vote, Won’t Require AZ to Count Ballots Cast Out of Precinct; Next to #SCOTUS?<http://electionlawblog.org/?p=88789>
Posted on November 4, 2016 5:25 pm<http://electionlawblog.org/?p=88789> by Rick Hasen<http://electionlawblog.org/?author=3>
The other shoe just dropped in Arizona.
The Ninth Circuit, en banc, issued this short order<https://www.scribd.com/document/330039339/Document-1#from_embed> declining an injunction pending appeal on the en banc case, and making it clear that when the en banc court considers this matter fully, what will not consider whether such ballots cast in this election should be counted. The court gave a quick cite to the Purcell principle in a short order.
This is a big deal, because there will be a lot of these ballots if history is any guide, and if the presidential election or any other election comes down to whether or not to count these provisional ballots, this matters a lot.
I expect that Democrats will take this to the Supreme Court, as this will be the only chance to get these ballots potentially counted for this election. I don’t think the chances that the Court will issue an injunction pending appeal are high. This looks like one of those cases that will divide 4-4. Hard to see a fifth vote for the argument that AZ’s rule violates Section 2 of the Voting Rights Act<http://electionlawblog.org/?p=88580> coming from Kennedy or Roberts. Possible, but unlikely.
And because this involves the counting of ballots after the election and not the collection of absentee ballots before the election (in the other aspect of the Feldman case), the timetable at the Supreme Court will be a bit more relaxed (but still super expedited).
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88789&title=Breaking%20and%20Big%3A%20En%20Banc%209th%20Circuit%2C%20on%207-4%20Vote%2C%20Won%E2%80%99t%20Require%20AZ%20to%20Count%20Ballots%20Cast%20Out%20of%20Precinct%3B%20Next%20to%20%23SCOTUS%3F>
Posted in election administration<http://electionlawblog.org/?cat=18>, provisional ballots<http://electionlawblog.org/?cat=67>, The Voting Wars<http://electionlawblog.org/?cat=60>

“GOP Voting Fraud Squads Are Nothing New”<http://electionlawblog.org/?p=88784>
Posted on November 4, 2016 4:27 pm<http://electionlawblog.org/?p=88784> by Rick Hasen<http://electionlawblog.org/?author=3>
Rick Perlstein<http://washingtonspectator.org/gop-voting-fraud-election-2016/> in the Washington Spectator.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88784&title=%E2%80%9CGOP%20Voting%20Fraud%20Squads%20Are%20Nothing%20New%E2%80%9D>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Disenfranchisement and Over-Incarceration”<http://electionlawblog.org/?p=88782>
Posted on November 4, 2016 4:25 pm<http://electionlawblog.org/?p=88782> by Rick Hasen<http://electionlawblog.org/?author=3>
Murat Mungan has posted this draft on SSRN<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2863035>.  Here is the abstract:
Disenfranchisement laws in many states prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group. In particular, disenfranchisement laws may cause the political process to push the sentences for criminal offenses upwards. In this article, I construct a simple model with elected law enforcers who propose sentences to maximize their likelihood of election. I show, with the help of the median voter theorem, that even without disenfranchisement, elections typically generate over-incarceration, i.e. longer than optimal sentences. Disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people’s criminal tendencies, i.e. when criminals vote less frequently than non-criminals.
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Posted in felon voting<http://electionlawblog.org/?cat=66>

No TRO Against Trump, NVGOP in NV Suit, Roger Stone Matter Continued to Monday<http://electionlawblog.org/?p=88780>
Posted on November 4, 2016 4:12 pm<http://electionlawblog.org/?p=88780> by Rick Hasen<http://electionlawblog.org/?author=3>
So reports<https://twitter.com/RileySnyder/status/794677721389350912> Riley Snyder.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Maricopa County GOP to poll watchers: Follow, photograph voters if voter fraud suspected”<http://electionlawblog.org/?p=88778>
Posted on November 4, 2016 4:04 pm<http://electionlawblog.org/?p=88778> by Rick Hasen<http://electionlawblog.org/?author=3>
Arizona Center for Investigative Reporting:<http://azcir.org/2016/11/04/az-maricopa-county-gop-poll-watchers-follow-photograph-election-voter-fraud-intimidation/>
Democrats who have become increasingly worried about possible voter intimidation at the polls say local Republicans could find themselves on the wrong side of the law, after a poll watching training led by the Maricopa County GOP. Republican activists there were told to follow and photograph voters they suspect of breaking a new Arizona law banning “ballot harvesting.”
The situation is further complicated by the fact that the 9th U.S. Circuit Court of Appeals on Friday temporarily blocked the new law<http://www.reuters.com/article/us-usa-election-arizona-idUSKBN12Z2KE> that makes it a felony to collect and submit someone else’s mail-in ballot.
Walter Opaska, co-founder of the Arizona Republican Attorney Association, on Oct. 28, told a room of about 100 Republicans being trained to represent the party at polling locations what to do if they see a person bring “a bucket” of ballots into the polling place.
In a recording provided to AZCIR, Opaska urges poll watchers to report such incidents to the poll inspector, who is charged with managing the poll location, and to follow those people to their cars, photograph them, their vehicle and their license plate.
Here’s my favorite part:
“You don’t go right up to someone’s face and take a photo. You kind of do it on the sly, and ideally they don’t even know what you’re doing,” LaSota said. “If they don’t know they’re being photographed, how can they be intimidated?”
We’ll see what happens with the ballot harvesting ban and with the lawsuit against the AZ GOP in terms of these tactics.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88778&title=%E2%80%9CMaricopa%20County%20GOP%20to%20poll%20watchers%3A%20Follow%2C%20photograph%20voters%20if%20voter%20fraud%20suspected%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Justice Kennedy Asks for Response in AZ Ballot Harvesting Case by 9 am Saturday<http://electionlawblog.org/?p=88775>
Posted on November 4, 2016 3:56 pm<http://electionlawblog.org/?p=88775> by Rick Hasen<http://electionlawblog.org/?author=3>
Bush v. Gore speed.<https://twitter.com/brahmresnik/status/794673887283847169>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88775&title=Justice%20Kennedy%20Asks%20for%20Response%20in%20AZ%20Ballot%20Harvesting%20Case%20by%209%20am%20Saturday>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Exclusive: The Democratic National Committee Has Told the FBI It Found Evidence Its HQ Was Bugged”<http://electionlawblog.org/?p=88773>
Posted on November 4, 2016 3:48 pm<http://electionlawblog.org/?p=88773> by Rick Hasen<http://electionlawblog.org/?author=3>
David Corn<http://www.motherjones.com/politics/2016/11/dnc-told-fbi-it-may-have-been-bugged> for Mother Jones.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

State of Arizona and Arizona Republican Party File Joint Application for #SCOTUS Stay in Ballot Harvesting Case<http://electionlawblog.org/?p=88771>
Posted on November 4, 2016 3:43 pm<http://electionlawblog.org/?p=88771> by Rick Hasen<http://electionlawblog.org/?author=3>
I know time is short, but here you have<https://t.co/gPP9soPNSm> the state of Arizona aligning with one of the political parties in an official way against the other.
Not a good look.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Independent Spending in Senate Races over $500 Million”<http://electionlawblog.org/?p=88769>
Posted on November 4, 2016 3:40 pm<http://electionlawblog.org/?p=88769> by Rick Hasen<http://electionlawblog.org/?author=3>
Campaign Finance Institute:<http://www.cfinst.org/Press/PReleases/16-11-04/INDEPENDENT_SPENDING_IN_SENATE_RACES_OVER_500_MILLION.aspx>
With the Pennsylvania Senate race leading the way at over $113 million dollars in general election independent spending, all Senate races have combined for $532 million. This continues a trend over the previous two election cycles of increasing use of independent expenditures in Senate races.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Cross your fingers for an uneventful Election Day”<http://electionlawblog.org/?p=88767>
Posted on November 4, 2016 3:30 pm<http://electionlawblog.org/?p=88767> by Rick Hasen<http://electionlawblog.org/?author=3>
Jerry Goldfeder<http://colreaction.stroock.com/Reaction/RSProcess.asp?RSID=P5MGfMkg4AnQ7q_1rJvFpw&RSTYPE=OPENATTACH> on avoiding election day disasters.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88767&title=%E2%80%9CCross%20your%20fingers%20for%20an%20uneventful%20Election%20Day%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“A disputed presidential election would be a mess”<http://electionlawblog.org/?p=88765>
Posted on November 4, 2016 3:23 pm<http://electionlawblog.org/?p=88765> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Douglas oped<http://www.cnn.com/2016/11/04/opinions/what-happens-if-election-contested-douglas/index.html> for CNN.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

AZ Ballot Harvesting to Justice Kennedy; Trump OH Voter Intimidation Order to 6th Circuit<http://electionlawblog.org/?p=88763>
Posted on November 4, 2016 3:20 pm<http://electionlawblog.org/?p=88763> by Rick Hasen<http://electionlawblog.org/?author=3>
It’s like when they speed up those movies to 10 times real time.
Ohio case appeal. <https://twitter.com/chrisgeidner/status/794664968490811392>
AZ emergency application <https://twitter.com/rickhasen/status/794664850647445504> to J. Kennedy. (My earlier analysis<https://t.co/h30gOrW541> on why so much is riding on Justice Kennedy here.)
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

The Sloppy Ohio Court Order Against Trump, Etc.: A Nationwide and Unconstitutionally Broad Injunction?<http://electionlawblog.org/?p=88761>
Posted on November 4, 2016 2:30 pm<http://electionlawblog.org/?p=88761> by Rick Hasen<http://electionlawblog.org/?author=3>
In my last post <http://electionlawblog.org/?p=88754> on the order<http://electionlawblog.org/wp-content/uploads/14118592299.pdf> issued against Trump, Stop the Steal, etc. in the Ohio voter intimidation case, I noted the oddity that the injunction also applies against those working with the Clinton campaign but not the Ohio Republican Party. There’s no evidence that the Clinton campaign is likely to engage in any of these actions, and so an injunction against the campaign seems inappropriate. Some have suggested to me this was a typo, and if so we will hear about that in short order. I’m not sure that it was because I heard the judge at the hearing said it might apply evenhandedly.
In the meantime, I went back and looked at the order and I see that parts of it appear to apply to Trump and Stone’s actions, not just in Ohio but also anywhere in the U.S. Parts a-f do not expressly apply to Ohio, but part g applies in Ohio only. The paragraph after makes reference to Ohio law, but the rest of it does not. I think one could make a plausible argument that the judge has (likely inadvertently) issued a nationwide injunction against Trump, Stone, and others (including the Clinton campaign). Maybe someone will request clarification.
Also, the order seems to be very broad indeed, such as prohibiting any photography of voters or their vehicles. Also, it bans “admonishing.” That’s likely unconstitutionally vague, violating due process and the First Amendment.
I know that in these emergency cases things are sometimes sloppy, but this one seems like an especially sloppy one.
Let’s see if we get some clarification from the judge.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Breaking: Federal Court Blocks NC County Voter Purges as Likely Violating Federal Motor Voter Law<http://electionlawblog.org/?p=88757>
Posted on November 4, 2016 2:09 pm<http://electionlawblog.org/?p=88757> by Rick Hasen<http://electionlawblog.org/?author=3>
After the hearing<http://www.cbsnews.com/news/north-carolina-voter-challenge-process-seems-insane-judge/>, this opinion<http://electionlawblog.org/wp-content/uploads/NC-voter-purges.pdf> and order granting a preliminary injunction<http://electionlawblog.org/wp-content/uploads/NC-TRO.pdf> were expected.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

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>

--
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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