[EL] order in DNC v. RNC; more news

Sat Nov 5 13:08:19 PDT 2016

Breaking: District Court in DNC v. RNC Case Denies Injunction, Contempt, and Extension of Voter Intimidation Decree, For Now<http://electionlawblog.org/?p=88833>
Posted on November 5, 2016 12:40 pm<http://electionlawblog.org/?p=88833> by Rick Hasen<http://electionlawblog.org/?author=3>
A 36-page opinion by the court is here.<http://electionlawblog.org/wp-content/uploads/gov-uscourts-njd-171979-138-0-pdf.pdf>
The court’s order denying all requested relief is here<http://electionlawblog.org/wp-content/uploads/3722.pdf>. The key portion of the order is its sole footnote:
The Court is not limiting post-election discovery requests to the events described in Nevada. The Court is aware that the reason that the evidence is so limited is due to the time constraints that the parties were operating under due to the approaching Election Day and, as a result, the limited discovery that could reasonably be provided in such a short period. Although the Court is denying Plaintiff’s current motion for injunctive relief, for a contempt finding, and for sanctions, nothing in the Court’s opinion prohibits Plaintiff from making similar motions in the future if, in its view, it believes that such motions are warranted in light of additional facts discovered during post-election discovery.
The judge is essentially saying that based on the record the Democrats put forward on a very truncated schedule, there was not enough evidence that the RNC or its agents (including potentially the Trump campaign, perhaps treated as the RNC’s agent) violated the longstanding order preventing the RNC from engaging in “ballot security” measures looking for “voter fraud” which can intimidate minority and other voters.
However, the judge recognizes that with the short timeframe there was not adequate time to develop the evidence, and that nothing in the denial today says anything about how the court would view the issue in post-election filings.
The opinion seems to take a narrow view of the “agency” question, saying the issue is not just whether the Trump campaign and the RNC were working together (they clearly are) but whether they are working together on ballot security (not enough evidence of that).  I think this finding could be vulnerable should the Democrats choose to appeal, either now or later.
In the end, on the evidence presented thus far, the court found the Democrats did not have enough evidence the RNC was engaged in prohibited activity:
Yet, in the Court’s view, the injunctive relief sought turns on the first element, that is, the DNC’s likelihood of success on the merits. For the reasons stated above, in light of the evidence currently in the record, the Court finds that the DNC has not demonstrated a likelihood of success concerning action taken by the RNC in light of the statements by Mr. Priebus, Governor Pence, Ms. Conway, Ms. Romney McDaniel, or Mr. Gleason. The poll watching activity in Nevada is not as clear. However, assuming that the DNC has shown a probability that it will succeed in demonstrating that the RNC is engaged in poll watching, the DNC has not done the same concerning whether such activity is related to voter fraud or ballot security, which is what the Decree prohibits. As noted, normal poll-watch functions are expressly permitted under the Consent Decree, so proving this fact alone would not entitle the DNC to relief. The Court is sensitive to the DNC’s position that such activity is suspicious in light of the RNC’s position that it is not engaging in any poll watching, but the Court’s only focus is whether the Decree itself is being violated.
At best, the DNC shows a possibility, not a probability, that the poll observers’ activities were related to voter fraud. The strongest evidence concerns the statements of O.P., who allegedly gave potential voters materially wrong information on four occasions. Even this evidence, however, turns on O.P.’s intent when she provided the erroneous advice – did she do so intentionally or was she unintentionally mistaken? More importantly, even if O.P.’s statements were intentionally misleading, the Court is unable to infer an overarching program based on the actions of one person. Outside of the O.P. examples, the DNC’s submissions on activities related to potential voter fraud are scant. K.H. reportedly filled out an incident report, but the Court would have to speculate as to whether the report related to alleged voter fraud. Critically, three observers who indicated that they worked for the RNC did not engage in any activities that could be deemed related to ballet security or voter fraud. As a result, the DNC has not demonstrated a probability of success on the critical issue – a program related to voter fraud – and its motion for injunctive relief is denied.
This is, of course, a loss for the DNC, but not really a complete one. Indeed, as I argued in Slate,<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_campaign_promises_not_to_intimidate_voters_on_election_day_that_s.html>this suit and the other suits around the country have served as information-forcing devices to get Republicans and the Trump campaign to reveal their plans surrounding “ballot security,” and to get assurances that the campaigns are taking steps to prevent voter intimidation on election day. Further, these courts are now open for business should there be problems on election day, and the potential for further court action remains, including for lawyers and professions on the Republican side who gave court assurances about what is planned for election day.
And in the meantime, there is still the order against the Trump campaign<http://electionlawblog.org/?p=88754> and others in Ohio, which is now the subject of a Sixth Circuit appeal. <https://twitter.com/chrisgeidner/status/794977772661854212>  I see some issues of due process, vagueness and overbreadth<http://electionlawblog.org/?p=88761> in that order and expect there will at least be a modification of it, if not an outright reversal.
[This post has been updated.]
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Posted in election administration<http://electionlawblog.org/?cat=18>

“A Guy In A Trump Shirt Carried A Gun Outside Of A Virginia Polling Place. Authorities Say That’s Fine.”<http://electionlawblog.org/?p=88831>
Posted on November 5, 2016 11:59 am<http://electionlawblog.org/?p=88831> by Rick Hasen<http://electionlawblog.org/?author=3>
Ryan Reilly:<http://www.huffingtonpost.com/entry/trump-supporter-gun-voter-intimidation-virginia_us_581cf16ee4b0aac624846eb5>
A man wearing a Donald Trump<http://www.huffingtonpost.com/news/donald-trump/> shirt and carrying a weapon stood outside a voting location in Loudoun County, Virginia, on Friday. Authorities in the nation’s richest county are apparently OK with that.
Erika Cotti encountered the man when she went to vote at the county’s registrar’s office, she told The Huffington Post. Virginia doesn’t have early voting per se, but voters can cast in-person absentee ballots for a host of reasons<https://g.co/kgs/28IZFT>, like if they’re going to be out of the county or city on Election Day.
“I had my 9-year-old son with me. I felt intimidated,” Cotti said. “And I had to explain to my 9-year-old why a man with a 357 magnum is standing outside the polling station.”
Cotti said the man offered her a Republican sample ballot, which she declined.
“He’s like, ‘Who are you going to vote for, crooked Hillary?’ And I was like, that’s really none of your business,” Cotti said, adding that the man was standing in the sidewalk outside of the office when they left and blocking their path.
Now imagine all this the same but the guy is African-American….
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Lawmaker sues Montana commissioner of political practices”<http://electionlawblog.org/?p=88829>
Posted on November 5, 2016 11:38 am<http://electionlawblog.org/?p=88829> by Rick Hasen<http://electionlawblog.org/?author=3>
AP<http://hosted.ap.org/dynamic/stories/M/MT_MONTANA_ELECTIONS_ETHICS_COMPLAINT_MTOL-?SITE=MTKAL&SECTION=HOME&TEMPLATE=ap_template.html&CTIME=2016-11-04-19-50-53>:
A Montana lawmaker sued Commissioner of Political Practices Jonathan Motl on Friday for saying the legislator faces penalties for revealing a confidential ethics complaint he filed against Gov. Steve Bullock, a lawsuit Motl said was timed to sway voters in a close governor’s race.
The attorney for Rep. Brad Tschida, R-Missoula, says in the federal lawsuit that Motl’s threat of penalties has silenced him and prevents him from performing legislative acts.
“Motl is violating Rep. Tschida’s First Amendment right to free speech by threatening him with criminal sanctions for communicating with fellow legislators concerning an inherently legislative duty,” wrote Tschida’s attorney, Matthew Monforton, who is also a Republican representative from Bozeman.
Motl responded that Tschida violated the confidentiality provision again by recounting the contents of the ethics complaint in the lawsuit- and he has now brought Monforton into the mess.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Supreme Court Attempts To Slow Flood Of Last-Minute Election Litigation”<http://electionlawblog.org/?p=88827>
Posted on November 5, 2016 10:41 am<http://electionlawblog.org/?p=88827> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Geidner <https://www.buzzfeed.com/chrisgeidner/supreme-court-attempts-to-slow-flood-of-last-minute-election?utm_term=.haMNmByOM#.prM5Jekz9> for BuzzFeed:
The Supreme Court attempted to slow an ever-expanding map<https://www.buzzfeed.com/chrisgeidner/rulings-in-three-election-related-challenges-favor-democrats> of pre-election litigation on Saturday — sending a message to lower courts that the time had passed for rulings that would change the way election laws are implemented for Tuesday’s election….
For election law lawyers, it is a message that the so-called “Purcell principle” — referring to an earlier Supreme Court election law case<https://supreme.justia.com/cases/federal/us/549/1/> — remains in effect. The Purcell principle is, as law professor Rick Hasen explains<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676> it, “the idea that courts should not issue orders which change election rules in the period just before the election.” Such late changes in the way elections are carried out are disfavored because they risk causing confusion to voters, candidates, election law administrators, and courts.
The spirit motivating the Purcell principle became abundantly clear on Saturday after the Supreme Court issued its order, when people immediately began asking what would happen to ballots that were collected in between the 9th Circuit’s Friday order and the Supreme Court’s Saturday order, or what would happen to ballots collected after the 9th Circuit’s order but not yet submitted by the time of the Supreme Court’s order. The Arizona Secretary of State quickly attempted to stop any confusion on that point, announcing<https://twitter.com/brahmresnik/status/794948192311734272> that ballots collected during the period when the law was enjoined could be submitted on Monday and will be counted.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Chutzpah Dep’t: Dallas Woodhouse, the Guy That Lobbied NC Election Boards to Restrict Early Voting, Takes Credit for Efforts to Overcome EV Cutbacks<http://electionlawblog.org/?p=88825>
Posted on November 5, 2016 10:38 am<http://electionlawblog.org/?p=88825> by Rick Hasen<http://electionlawblog.org/?author=3>
Wow.<https://twitter.com/wccubbison/status/794679633061040129>
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Posted in 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
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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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