[EL] ELB News and Commentary 11/7/16

Mon Nov 7 08:43:57 PST 2016

"A supremely important choice: The court hangs in the balance, for Democrats, too"<http://electionlawblog.org/?p=88920>
Posted on November 7, 2016 8:33 am<http://electionlawblog.org/?p=88920> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped <http://www.nydailynews.com/opinion/rick-hasen-supremely-important-choice-article-1.2858853> for the NY Daily News. It begins:

For the last few months, Democrats have been criticizing Senate Republicans for failing to even hold a hearing for Judge Merrick Garland<http://www.nydailynews.com/news/politics/democrats-renew-call-senate-vote-merrick-garland-article-1.2783968>, whom President Obama has nominated to fill the late Justice Antonin Scalia's seat on the Supreme Court.

"We need nine," the refrain goes. But it's the balance of power on the Supreme Court and not the number of justices that matters. The fate of many of our most cherished rights hangs in the balance of not just the presidential race, but control of the Senate.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

"A cyberattack could disrupt Tuesday's U.S. elections - but wouldn't change the results"<http://electionlawblog.org/?p=88918>
Posted on November 7, 2016 8:20 am<http://electionlawblog.org/?p=88918> by Rick Hasen<http://electionlawblog.org/?author=3>

Charles Stewart and Merle King for The Monkey Cage.<https://www.washingtonpost.com/news/monkey-cage/wp/2016/11/07/a-cyberattack-could-disrupt-tuesdays-u-s-elections-but-wouldnt-change-the-results/>

My worries are more about the infrastructure (traffic, electricity, internet).  More about that soon.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

"Trump, GOP paying consultant dogged by voter fraud charges"<http://electionlawblog.org/?p=88916>
Posted on November 7, 2016 8:17 am<http://electionlawblog.org/?p=88916> by Rick Hasen<http://electionlawblog.org/?author=3>

AP: <http://www.kcbd.com/story/33644506/trump-gop-paying-consultant-dogged-by-voter-fraud-charges>

Donald Trump's campaign and the Republican National Committee have paid at least $1.8 million to a political operative whose roster of companies include several that have been repeatedly investigated for voter registration fraud, even as Trump has complained that the election is rigged against him.

Three employees of Strategic Allied Consulting, a firm owned by conservative operative Nathan Sproul, pleaded guilty in Florida four years ago to felony charges related to altering and destroying scores of voter registration forms. There were no formal actions against the firm
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"Amid Claims Of Fraud And Intimidation What Is (And Is Not) Allowed At Polling Sites"<http://electionlawblog.org/?p=88914>
Posted on November 7, 2016 8:15 am<http://electionlawblog.org/?p=88914> by Rick Hasen<http://electionlawblog.org/?author=3>

WFAE reports.<http://wfae.org/post/amid-claims-fraud-and-intimidation-what-and-not-allowed-polling-sites>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"Trump Advisor Roger Stone Promises Not to Harass Voters, as Parties Battle Over Poll Watchers"<http://electionlawblog.org/?p=88912>
Posted on November 7, 2016 8:07 am<http://electionlawblog.org/?p=88912> by Rick Hasen<http://electionlawblog.org/?author=3>

Emily Cadei<http://www.newsweek.com/trump-voter-harass-517701> for Newsweek.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

"SEPTA: Deal reached to end transit strike"<http://electionlawblog.org/?p=88910>
Posted on November 7, 2016 8:04 am<http://electionlawblog.org/?p=88910> by Rick Hasen<http://electionlawblog.org/?author=3>

Big news<http://www.philly.com/philly/news/Two-sides-still-talking-on-SEPTA-contract.html> for the votes of Philly.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"Clinton's super-sized fundraising machine pushes legal boundaries"<http://electionlawblog.org/?p=88908>
Posted on November 7, 2016 8:00 am<http://electionlawblog.org/?p=88908> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI<https://www.publicintegrity.org/2016/11/07/20437/clinton-s-super-sized-fundraising-machine-pushes-legal-boundaries>: <https://www.publicintegrity.org/2016/11/07/20437/clinton-s-super-sized-fundraising-machine-pushes-legal-boundaries>

Joint fundraising committees, often called "victory funds," are not new in federal politics. Candidates routinely raise money through these collaborative operations that, by design, split the funds they collect among a number of beneficiaries, such as national and state party committees, as well as the candidate's own campaign.

But instead of just transferring its cash to the signatories of the joint fundraising agreement, the Clinton campaign is also using a significant amount of the money the Hillary Victory Fund collects to finance pro-Clinton advertising.

This is innovative, to say the least. But it's also worrisome to campaign finance reformers who see it as a way to shift costs onto groups funded by big donors, thereby evading campaign contribution limits.

And in that respect, critics see Clinton's big-money operation as a way for well-heeled donors to better access and influence the woman who may be the next president of the United States.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

Final Goldfeder Presidential Quiz of the Season<http://electionlawblog.org/?p=88906>
Posted on November 7, 2016 7:56 am<http://electionlawblog.org/?p=88906> by Rick Hasen<http://electionlawblog.org/?author=3>

Last call. <http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"'Super PACs' Spend Freely as Control of New York Senate Hangs in Balance"<http://electionlawblog.org/?p=88903>
Posted on November 6, 2016 8:39 pm<http://electionlawblog.org/?p=88903> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<http://www.nytimes.com/2016/11/07/nyregion/super-pacs-spend-freely-as-control-of-new-york-senate-hangs-in-balance.html?_r=0>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

WWGD (What Will Ginsburg Do) in OH Trump Voter Intimidation Lawsuit?<http://electionlawblog.org/?p=88899>
Posted on November 6, 2016 8:23 pm<http://electionlawblog.org/?p=88899> by Rick Hasen<http://electionlawblog.org/?author=3>

With the Democrats having filed<http://electionlawblog.org/?p=88885> what is the closest we are likely to get to a Clinton v. Trump case before the Court (that's because I don't expect the election to go into overtime), I'm wondering the following:

Suppose you are Justice Ginsburg and you think the Sixth Circuit panel really blew it<http://electionlawblog.org/?p=88859> in how it mishandled the Ohio Trump voter intimidation stay request. You would vote to overturn the 6th Circuit and restore the injunction. There aren't enough other Justices to get your way (maybe you get Justice Sotomayor to go with you), and Supreme Court rules allow you to not publicly announce your dissent from the denial of an injunction or stay.

Do you publicly state your opposition or not? If you speak, you will be criticized for failing to recuse in a case involving Trump. Over the summer J. Ginsburg criticized Trump, repeatedly, and then said she should not have made those remarks. Conservatives said if we ever got a Clinton v. Trump, Ginsburg should recuse. (There's no mechanism to force her to do so or put it to a Court vote.)

Interesting question.

(For my takes on the Ginsburg comments, see The Real Reason Why Judges Should Keep Quiet About Elections<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/07/ruth_bader_ginsburg_s_trump_remarks_will_have_long_lasting_effects.html>, Slate, July 19, 2016 (with Dahlia Lithwick) and Ruth Bader Ginsburg's Slam of Trump Does the Nation No Favors<http://www.reuters.com/article/us-election-trump-ginsburg-commentary-idUSKCN0ZT2IM>, Reuters Opinion, July 13, 2016.)

UPDATE: Alex Botomon notes <https://twitter.com/abotoman/status/795486267140173828> on Twitter that if Justice Ginsburg recuses that would be noted in the order whether or not she dissents. "So announcing dissent may draw attention to the non-recusal. But public would know she didn't recuse either way." I think that's right.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

"Would it matter if either Trump or Clinton refused to concede? Yes and no"<http://electionlawblog.org/?p=88897>
Posted on November 6, 2016 8:17 pm<http://electionlawblog.org/?p=88897> by Rick Hasen<http://electionlawblog.org/?author=3>

The CS Monitor reports.<http://www.csmonitor.com/USA/2016/1106/Would-it-matter-if-either-Trump-or-Clinton-refused-to-concede-Yes-and-no>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

"Marion County Indianapolis denies right to cast provisional ballots"<http://electionlawblog.org/?p=88894>
Posted on November 6, 2016 7:50 pm<http://electionlawblog.org/?p=88894> by Rick Hasen<http://electionlawblog.org/?author=3>

Robbin Stewart's right<http://ballots.blogspot.com/2016/11/breaking-news-marion-county.html> that under federal law Marion County needs to offer him a provisional ballot-they don't have to count it though.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

$100 (Legal) Vote Buying in Tribal Election<http://electionlawblog.org/?p=88892>
Posted on November 6, 2016 7:45 pm<http://electionlawblog.org/?p=88892> by Rick Hasen<http://electionlawblog.org/?author=3>

Buffalo News:<http://buffalonews.com/2016/11/06/straight-ticket-vote-buying-aided-seneca-party-election-sweep/>

Sometimes, an election vote that is supposed to be secret really isn't secret at all.

That is what happened last Tuesday, when members of Seneca Nation elected every candidate sponsored by the Seneca Party, according to critics of the election.

Seneca Party candidates won all 30 contested offices, including president, treasurer and all the members of the Tribal Council. Not one candidate who opposed the Seneca Party came away with a victory.

Critics of the election, especially the two unsuccessful candidates for president - J. Conrad "J.C." Seneca and Sally Snow - said there are two reasons for the Seneca Party's sweep.

During the voting, poll watchers for the Seneca Party could determine whether voters were casting a straight ballot for the Seneca Party candidates, or taking time to vote for other candidates, they say. And Seneca and casino jobs for the voters and their families are dependent on the straight ballot, the critics said.

The second reason why the Seneca Party swept the election, the critics said, is vote buying, which is legal in the Seneca Nation.

"As long as you have a party that is going to pay people $100 for a vote, they are going to keep winning," said Sally Snow, one of the two unsuccessful presidential candidates. "I refused to pay for votes. I do not want to become the first woman president in the history of the Seneca Nation by paying people for their votes."
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Posted in vote buying<http://electionlawblog.org/?cat=43>

"We Hold These Truths to Be Selfie-Evident"<http://electionlawblog.org/?p=88890>
Posted on November 6, 2016 7:38 pm<http://electionlawblog.org/?p=88890> by Rick Hasen<http://electionlawblog.org/?author=3>

Stephen Klein and Patrick Jaicomo WSJ oped.<http://www.wsj.com/articles/we-hold-these-truths-to-be-selfie-evident-1478474966>
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Posted in campaigns<http://electionlawblog.org/?cat=59>

"Faithless Electors: What Happens If They Matter?"<http://electionlawblog.org/?p=88888>
Posted on November 6, 2016 7:30 pm<http://electionlawblog.org/?p=88888> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read Ned Foley:<http://moritzlaw.osu.edu/election-law/article/?article=13331>

A new report<http://bnonews.com/news/index.php/news/id5405> says that a second Democratic presidential elector in Washington State, which the Democrats are predicted to win, may refuse to cast his official Electoral College vote on December 19 for Hillary Clinton-despite his pledge to do so, pursuant to Washington State law, RCWA § 29A.56.340.

The state statute imposes a civil fine of $1000 on any such faithless elector: "Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars." But apparently two of Washington's twelve are willing to pay that fine in order to be what one of them calls a "conscientious elector".<https://www.adn.com/nation-world/2016/11/05/washington-state-elector-says-hed-never-vote-for-clinton/>

One or two faithless electors conceivably could make a difference this year. Here are a couple of maps that would give Clinton exactly the 270 Electoral College votes she needs, with not an extra elector to spare:

http://www.270towin.com/maps/PDGGQ

http://www.270towin.com/maps/G6DZY

Given the historically unprecedented unpopularity of both presidential candidates this year, I've been wondering whether America might actually confront the possibility of multiple faithless electors on both sides. Without trying to anticipate all the potential permutations, let's just stick for moment with the current situation in Washington State.
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Posted in electoral college<http://electionlawblog.org/?cat=44>

Democrats Seek SCOTUS Relief on Trump Voter Intimidation Ruling in Ohio<http://electionlawblog.org/?p=88885>
Posted on November 6, 2016 7:21 pm<http://electionlawblog.org/?p=88885> by Rick Hasen<http://electionlawblog.org/?author=3>

I noted earlier <http://electionlawblog.org/?p=88859> that a Sixth Circuit panel, cutting some important corners, reversed a trial court order barring the Trump campaign and others from acts of voter intimidation and other activity in Ohio.

The Democrats have now filed this application<http://electionlawblog.org/wp-content/uploads/2016.11.06-Ohio-Democratic-Party-Application-for-Stay.pdf> with Justice Kagan, which she is likely to refer to the Supreme Court, asking for the order to be reinstated. From the introduction:

Applicant respectfully requests that this Court vacate the order issued by the Court of Appeals for the Sixth Circuit on November 6, 2016, staying a temporary restraining order ("TRO") issued by the U.S. District Court for the Northern District of Ohio on November 4, 2016, that enjoined Donald J. Trump for President, Inc. ("the Trump Campaign") and associated persons from engaging in activities that would otherwise have the effect of intimidating, harassing, or coercing voters. The Sixth Circuit ordered the stay notwithstanding that it did not call for or receive a substantive response brief from Applicant and, by its own admission, had not yet reviewed the critical evidence on which the District Court relied.

This extraordinary departure from the most basic requirements of appellate procedure led the Sixth Circuit to issue a cursory order with no basis in law. A Court of Appeals cannot conclude that a lower court has abused its discretion without first reviewing and considering the actual evidence on which the lower court's decision was based. Yet the Sixth Circuit somehow found that the District Court had abused its discretion before it had even received the transcript of the evidentiary hearing, at which live witnesses presented testimony that informed the District Court's decision. Crucially, that decision was stayed even though it required compliance with specific, clear, and unchallenged provisions of Ohio election law. If left in place, the Court of Appeals' stay will, in the words of the Republican Director of the Cuyahoga County Board of Elections, put the "safety and well-being" of Ohio voters at risk from Trump-encouraged and unauthorized "watchdogs" at the polls. 415A. The Court of Appeals' unprecedented stay should be vacated without delay.

I continue to see long odds for this application.
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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>

--
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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