[EL] ELB News and Commentary 11/6/16

Sun Nov 6 14:22:02 PST 2016

PA: The Most Important Election-Related Court Ruling Remaining Isn’t About Election Law: It’s About Transit Strikers in Philly<http://electionlawblog.org/?p=88881>
Posted on November 6, 2016 1:05 pm<http://electionlawblog.org/?p=88881> by Rick Hasen<http://electionlawblog.org/?author=3>
The Philadelphia SEPTA transit strike continues. A judge denied an injunction Friday but will revisit Monda<http://www.philly.com/philly/news/SEPTA-seeks-injunction-for-immediate-end-to-strike.html>y potentially issuing an injunction ordering workers back in light of the election. Getting Philadelphia voters to the polls Tuesday is key to the Democrats’ strategy in Pennsylvania, a crucial state for Clinton and for control of the Senate.
Meanwhile<http://www.philly.com/philly/news/Two-sides-still-talking-on-SEPTA-contract.html>, as the negotiations continue:
In the meantime, some Philadelphia residents have started offering free rides<http://www.philly.com/philly/news/20161106_SEPTA_strike__Good_Samaritan_gives_free_rides_to_elderly__disabled.html> to the disabled and the elderly. And a political action committee is funding rides to the polls via the ride-sharing services Uber and Lyft.
The transportation needs of the elderly, the disabled, and voters all were cited by SEPTA in its effort to seek an injunction<http://www.philly.com/philly/news/SEPTA-seeks-injunction-for-immediate-end-to-strike.html> that would end the strike.
The PAC, based in Menlo Park, Calif., is called My Ride to Vote, at myridetovote.org<https://myridetovote.org/>. As of midafternoon Sunday, it had raised more than $210,000 from 2,800 donors through a crowdfunding platform called CrowdPac.
Would-be voters can get a ride to the polls worth up to $15 by entering the code VOTEPA on Uber or Lyft, said Anna Soellner, who co-founded the PAC with tech entrepreneurs Marc Porat and Adam Berke. The funds also are being used to support rides in North Carolina and Florida, through a group called Voto Latino, she said.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88881&title=PA%3A%20The%20Most%20Important%20Election-Related%20Court%20Ruling%20Remaining%20Isn%E2%80%99t%20About%20Election%20Law%3A%20It%E2%80%99s%20About%20Transit%20Strikers%20in%20Philly>
Posted in campaigns<http://electionlawblog.org/?cat=59>

“Voters in Line When Polls Close Get to Vote”<http://electionlawblog.org/?p=88879>
Posted on November 6, 2016 12:58 pm<http://electionlawblog.org/?p=88879> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley blogs<https://medium.com/@Nedfoley/voters-in-line-when-polls-close-get-to-vote-42f37b175875#.4nxv19hm5>:

Thus, when on Friday<http://lasvegassun.com/news/2016/nov/06/long-lines-part-of-frenetic-finish-to-nevadas-earl/> the lines for early voting in Nevada were so long as to require keeping the polls open until after the scheduled closing hour, voting continued — as required by this law — until all those waiting in line at closing time were able to cast their ballots.
There was no need for a court order. Or a directive from the Secretary of State or other election official. It wasn’t optional or discretionary. It happened automatically, by force of this statutory requirement. If it hadn’t happened, it would have been a violation of the law — as well as the underlying elementary principle that the statutory requirement protects.
That’s why it’s so troubling to hear a major-party presidential candidate assert<http://abcnews.go.com/Politics/donald-trump-early-voting-lines-evidence-rigged-system/story?id=43332509> that “it’s a rigged system” because this statutory requirement was followed as it must be.
To be sure, the candidate prefaced<https://www.washingtonpost.com/video/politics/trump-complains-about-nevada-polling-station-being-kept-open/2016/11/05/fb00892c-a3b8-11e6-8864-6f892cad0865_video.html> his “rigged system” assertion with the statement: “It’s being reported that certain key Democratic polling locations in Clark County were kept open for hours and hours beyond closing time to bus and bring Democratic voters in.” If it were indeed true that the polls were staying open “to bus” in extra voters who had not been waiting in line at closing time, that would be a violation of the same state law. But I’ve searched for news reports of any such busing in of extra voters, or indeed any casting of ballots by voters other than those already waiting in line, and I haven’t been able to find a single such report.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88879&title=%E2%80%9CVoters%20in%20Line%20When%20Polls%20Close%20Get%20to%20Vote%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Ari Berman Talks to Brian Stelter About How Journalists Cover Voter Fraud<http://electionlawblog.org/?p=88877>
Posted on November 6, 2016 12:54 pm<http://electionlawblog.org/?p=88877> by Rick Hasen<http://electionlawblog.org/?author=3>
Watch.<https://twitter.com/ReliableSources/status/795357566888906752>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88877&title=Ari%20Berman%20Talks%20to%20Brian%20Stelter%20About%20How%20Journalists%20Cover%20Voter%20Fraud>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Vox Has Oversimplified Debate over the Legality of Vote Trading: Explained<http://electionlawblog.org/?p=88875>
Posted on November 6, 2016 12:15 pm<http://electionlawblog.org/?p=88875> by Rick Hasen<http://electionlawblog.org/?author=3>
Vox says<http://www.vox.com/policy-and-politics/2016/11/3/13478042/third-party-clinton-vote-trading> people in swing states should feel perfectly comfortable exchanging votes in people in safe states to help defeat Trump.  They quote my friend (and congressional candidate) Jamie Raskin as saying that now that there’s one ninth circuit case saying that a particular Nader Trader website was protected by the First Amendment, it is all legal.
Actually, that’s a gross oversimplification:
As I told the NY Times:<http://www.nytimes.com/2016/09/29/upshot/if-your-vote-doesnt-really-count-is-there-anything-you-can-do.html?_r=0>
What would be considered crossing the line, and what type of dynamic could we see this fall?
A. In this election, it would allow, for example, a Jill Stein supporter in a swing state like Ohio to vote for Hillary Clinton in exchange<https://medium.com/labor-for-millennials/vote-pairing-a-solution-for-those-who-want-to-support-the-green-party-but-still-defeat-trump-476ff1753491#.wkoim4jxp> for<https://medium.com/@OmanReagan/solving-the-2016-election-with-strategic-voting-2609f897bc09#.wzb19cypr> a Clinton supporter in a safe state like California to agree to vote for Jill Stein. The supposed benefit of this trade is that the Ohio voter helps Clinton get elected in a place where a vote for a third-party candidate can act as a spoiler, but Stein’s overall popular vote totals would be the same, potentially entitling Stein to some public financing for her campaign and showing the candidate’s popularity.
Some have claimed that vote swapping constitutes illegal vote buying under federal law or state statutes. The California Secretary of State went after a website that offered vote swapping in the 2000 election, claiming that it violated state anti-vote buying prohibitions. The case, Porter v. Bowen<https://scholar.google.com/scholar_case?case=6535498774163727228&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, went to the United States Court of Appeals for the Ninth Circuit, which held that the activity was protected by the First Amendment and did not raise the danger of an exchange of money for votes. The state tried to take it to the full Ninth Circuit, which refused to take the case. Three judges, however, issued a dissenting statement<https://scholar.google.com/scholar_case?case=17724474267864434771&hl=en&as_sdt=6&as_vis=1&oi=scholarr> suggesting that vote swapping is illegal vote buying not protected by the First Amendment, and it is quite possible that another court would agree with the dissenters should the issue arise again.
[Update: A website<http://swapavote.com/> has been created for such vote swapping, and there’s also a site aimed at Republicans<http://www.nytimes.com/2016/09/16/opinion/anti-trump-republicans-dont-waste-your-vote-trade-it.html>.]\
Q. What’s your own view on the legality of vote swapping?
A. I am uncertain whether vote swapping would count as illegal vote buying. One key point is that these kinds of agreements are inherently unenforceable, given the secret ballot. You might tell me you are Stein supporter in Ohio who would vote for Clinton if I would vote for Stein, but you could be someone sitting in another country, or a Stein supporter in Ohio who still plans to vote for Stein.
But the larger point is that people are looking for ways around the fact that we have this odd system, where we make it really easy for third-party candidates to get on the ballot in most places, but almost impossible for them to win. A much more rational solution to this problem would be to adopt instant runoff voting<http://instantrunoff.com/instant-runoff-home/> [in which voters rank candidates in order of preference] so that a vote for Stein could go to Clinton (or for Gary Johnson could go to Trump) if that’s a voter’s second choice.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88875&title=Vox%20Has%20Oversimplified%20Debate%20over%20the%20Legality%20of%20Vote%20Trading%3A%20Explained>
Posted in campaigns<http://electionlawblog.org/?cat=59>

Breaking: Roger Stone and Stop the Steal Call Off the Hounds, and Dems May Win By Losing Again in Nevada<http://electionlawblog.org/?p=88870>
Posted on November 6, 2016 10:12 am<http://electionlawblog.org/?p=88870> by Rick Hasen<http://electionlawblog.org/?author=3>
Much has been made of the Democrats’ losing a number of cases they have filed to try to get Trump, the RNC and Roger Stone to be barred from acts of voter intimidation.
But, as I wrote yesterday<http://electionlawblog.org/?p=88833> regarding the loss in the DNC v. RNC case:
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.

Now, in Nevada, Roger Stone, in response to complaints against him<http://electionlawblog.org/wp-content/uploads/stone-nv.pdf>, is causing the following to be posted on the Stop the Steal website:
2. The following statement is about to be published on Stop the Steal’s website, and it will be emailed Monday to every volunteer nationwide:
You must not:
a. Speak (or encourage anyone else to speak )to any voter before he goes into a polling place, about ANYTHING, or who appears to be in line to vote or headed into a polling place.
b. Speak to ANYONE within 100 feet of the entrance to any polling place
c. Go inside a polling location for any reason other than to vote yourself, and when voting yourself and inside a polling place say or do anything not directly related to casting your own vote
d. Record by audio or video or any other method of sound or video reproduction the comments of anyone who has voted without that person’s permission
e. Wear or display any badge, button, or clothing that promotes any political candidate or party
f. Photograph the conduct of voting at a polling place or record the conduct of voting, or of any voter in line to vote (no matter how far distant from a polling place) or who appears to be headed into a polling place to vote or who is within 100 feet of a polling place even if that person has already voted
g. Without regard to distance from a polling place, ask any person who has not yet voted their name, address or political affiliation or how that voter plans to mark his or her ballot
h. It is our goal to conduct a neutral, scientifically-based and methodically sound exit poll at certain targeted precincts for the purpose of preparing the exit poll actual
3. A conference call will be offered to all volunteers in order to reiterate these rules to them on Monday evening. Volunteers are being asked to ask people who have voted if they will be willing to participate in a simple, voluntary 3-question poll: “Did you just vote; did you vote four years ago; and for whom did you vote today”. The answers are then to be tabulated or otherwise recorded and then turned in to Stop the Steal.  They are not asked their name or any personal identification, only these three questions and these three questions only.
The affidavit also gives information about the scope of his operation in NV.
Democrats may not have gotten an injunction, but this is prety good from their perspective.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88870&title=Breaking%3A%20Roger%20Stone%20and%20Stop%20the%20Steal%20Call%20Off%20the%20Hounds%2C%20and%20Dems%20May%20Win%20By%20Losing%20Again%20in%20Nevada>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Unusual Ad in Utah’s Major Paper<http://electionlawblog.org/?p=88864>
Posted on November 6, 2016 8:09 am<http://electionlawblog.org/?p=88864> by Richard Pildes<http://electionlawblog.org/?author=7>

http://bit.ly/2feWvCS

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88864&title=Unusual%20Ad%20in%20Utah%E2%80%99s%20Major%20Paper>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Breaking 6th Cir. Panel, Without Full Response from Democrats, Reverses OH Trump Voter Intimidation Order<http://electionlawblog.org/?p=88859>
Posted on November 6, 2016 8:03 am<http://electionlawblog.org/?p=88859> by Rick Hasen<http://electionlawblog.org/?author=3>
Via Chris Geidner<https://twitter.com/chrisgeidner/status/795293539492134912/photo/1>, comes this short order from a Sixth Circuit panel in the OH case against the Trump campaign and others to stop voter intimidation. Yesterday I wrote that I see some issues of due process, vagueness and overbreadth<http://electionlawblog.org/?p=88761> in the District Court’s order and I expected there will at least be a modification of it, if not an outright reversal.
But there’s a procedural wrinkle here. The plaintiffs had not yet filed their opposition to the stay. Instead, they were asked only<http://electionlawblog.org/?p=88853> to file an opposition to the Trump campaign’s request for an initial en banc hearing before the entire Sixth Circuit. That response was limited to 10 pages and focused on why en banc review is unwarranted.
Now, this very conservative 6th Circuit panel says it reviewed the Trump campaign’s stay request and the Democrats’ opposition to the en banc and that was enough to conclude that the Democrats were unlikely to succeed on the merits. That seems procedurally unfair.
Not clear what the next steps are. Democrats could seek en banc review (after saying it was not initially warranted), but the 6th Circuit I believe still leans Republican, and this one could break on party lines. (Though not necessarily, given the problems with this injunction.)
The Democrats could also try the Supreme Court, but they are divided 4-4 and have been wary of election orders just before the election. <http://electionlawblog.org/?p=88819>
So this is probably the end of the line for this.
But, as I wrote yesterday<http://electionlawblog.org/?p=88833> regarding the loss in the DNC v. RNC case:
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.
[This post has been updated.]
Further update: The Sixth Circuit has denied initial en banc consideration.<https://twitter.com/chrisgeidner/status/795374732602408960>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88859&title=Breaking%206th%20Cir.%20Panel%2C%20Without%20Full%20Response%20from%20Democrats%2C%20Reverses%20OH%20Trump%20Voter%20Intimidation%20Order>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Specter of election day violence looms as Trump spurs vigilante poll watchers”<http://electionlawblog.org/?p=88857>
Posted on November 5, 2016 9:32 pm<http://electionlawblog.org/?p=88857> by Rick Hasen<http://electionlawblog.org/?author=3>
The Guardian reports.<https://www.theguardian.com/us-news/2016/nov/05/election-day-violence-donald-trump-poll-watchers>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88857&title=%E2%80%9CSpecter%20of%20election%20day%20violence%20looms%20as%20Trump%20spurs%20vigilante%20poll%20watchers%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Briefs Filed in 6th Circuit Emergency Appeal of TRO in OH Trump Voter Intimidation Case<http://electionlawblog.org/?p=88853>
Posted on November 5, 2016 9:03 pm<http://electionlawblog.org/?p=88853> by Rick Hasen<http://electionlawblog.org/?author=3>
Yesterday a federal court in Ohio out an 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.
The Trump campaign’s 6th Circuit emergency stay request is here<https://assets.documentcloud.org/documents/3214568/Emergency-Motion-for-Stay.pdf>, and their request for an initial en banc is here<https://t.co/ExeL5BClQH>. The Democrats’ response to the request of an initial en banc is here<https://t.co/rYqrBA2KS3>. It has not yet filed an opposition to the emergency stay request.
I expect we will hear some time on Sunday whether the 6th Circuit will take this case en banc, and if it does, whether the order of the trial court can stand. If the 6th Circuit denies the en banc, then I expect there will be a panel order for a quick response from the Democrats.
I will have to leave to others who know the 6th Circuit best what is likely to happen next.
[This post has been updated.]
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88853&title=Briefs%20Filed%20in%206th%20Circuit%20Emergency%20Appeal%20of%20TRO%20in%20OH%20Trump%20Voter%20Intimidation%20Case>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Donald Trump Says Early Voting Lines Are Evidence of ‘Rigged’ System”<http://electionlawblog.org/?p=88851>
Posted on November 5, 2016 8:40 pm<http://electionlawblog.org/?p=88851> by Rick Hasen<http://electionlawblog.org/?author=3>
ABC:<http://abcnews.go.com/Politics/donald-trump-early-voting-lines-evidence-rigged-system/story?id=43332509>
As Donald Trump<http://abcnews.go.com/topics/news/donald-trump.htm> swept his campaign across the country in a final sprint, he claimed that long lines in Clark County, Nevada, were evidence of electoral wrongdoing.
“It’s being reported that certain key Democratic polling locations in Clark County were kept open for hours and hours beyond closing time to bus and bring Democratic voters in,” Trump said.
“Folks, it’s a rigged system. It’s a rigged system. And we’re going to beat it,” he said.
Before Trump took the stage, Michael McDonald, the state chairman of the Nevada Republican Party<http://abcnews.go.com/topics/news/us/republican-party.htm> seemed to assert that the polls were staying open to allow for “a certain group” to vote.
“Last night in Clark County. They kept a poll open until 10 o’clock at night so a certain group could vote. It wasn’t in an area that normally has high transition,” he said. “You think this is a free and easy election?”
I have seen no evidence of illegal voting in Nevada. Jon Ralson doesn’t think<https://twitter.com/RalstonReports/status/795073139247984640> much of it.
As I wrote<https://twitter.com/rickhasen/status/794912434246909952> earlier today, If you are asking: “Why should we make it easy for *these* people to vote?”, you’re doing democracy wrong.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88851&title=%E2%80%9CDonald%20Trump%20Says%20Early%20Voting%20Lines%20Are%20Evidence%20of%20%E2%80%98Rigged%E2%80%99%20System%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“In Orange County, mostly white residents heed Donald Trump’s call to be on the lookout for voter fraud”<http://electionlawblog.org/?p=88849>
Posted on November 5, 2016 1:37 pm<http://electionlawblog.org/?p=88849> by Rick Hasen<http://electionlawblog.org/?author=3>
Great LA Times piece.<http://www.latimes.com/local/california/la-me-oc-poll-observer-20161102-story.html>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88849&title=%E2%80%9CIn%20Orange%20County%2C%20mostly%20white%20residents%20heed%20Donald%20Trump%E2%80%99s%20call%20to%20be%20on%20the%20lookout%20for%20voter%20fraud%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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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