[EL] legal muster

Mon Nov 7 16:19:54 PST 2016

(Both Madonna and a porn star apparently extended such offers to Trump supporters. For the record, Hasen said such deals don’t pass legal muster.)

Boy, Rick gets more interesting questions than I do.

Since, however, the cable folks like controversy among experts, let me say that I'm not so sure. I suppose it might depend on whether there is a market value for such services, which would depend on whether Madonna and the unnamed porn star consider themselves professionally in the business (it seems for the latter the case might be strong). I'm skeptical that every favor someone might do for a voter would count as vote buying. But if we're worried about it, that may be a reason to ban ballot selfies, without which it will be difficult for the vendor to monitor performance of the voter. So many issues raised. Tough call, I guess.

Rick gets way more interesting questions than I do.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, November 07, 2016 7:08 PM
To: Election Law Listserv
Subject: [EL] more news 11/7/16

MA Court, Relying on State Constitution, Allows Three Voters to Vote Who Missed Registration Deadline<http://electionlawblog.org/?p=88951>
Posted on November 7, 2016 3:55 pm<http://electionlawblog.org/?p=88951> by Rick Hasen<http://electionlawblog.org/?author=3>
The opinion is here<http://electionlawblog.org/wp-content/uploads/ma-reg.pdf>. (Case brought by ACLU.)
Doesn’t really seem to decide anything of significance except for these three voters. And the opinion contains this non-sequitur: “Both sides have a substantial likelihood of success on the merits.” That’s not how it works. If both sides have equally strong arguments, then the party bearing the burden of proof loses.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88951&title=MA%20Court%2C%20Relying%20on%20State%20Constitution%2C%20Allows%20Three%20Voters%20to%20Vote%20Who%20Missed%20Registration%20Deadline>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“‘I’m Not Getting a Lot of Sleep,’ Says Election Law Prof Rick Hasen”<http://electionlawblog.org/?p=88949>
Posted on November 7, 2016 3:44 pm<http://electionlawblog.org/?p=88949> by Rick Hasen<http://electionlawblog.org/?author=3>
A truer headline has not been written.
This is a Q and A <http://www.nationallawjournal.com/id=1202771759093/Im-Not-Getting-a-Lot-of-Sleep-Says-Election-Law-Prof-Rick-Hasen?back=DC&kw=%27I%27m%20Not%20Getting%20a%20Lot%20of%20Sleep%2C%27%20Says%20Election%20Law%20Prof%20Rick%20Hasen&et=editorial&bu=National%20Law%20Journal&cn=20161107&src=EMC-Email&pt=Legal%20Times%20Afternoon%20Update&slreturn=20161007174754> with me at the National Law Journal. The intro:
Rick Hasen’s Election Law Blog typically draws about 3,000 visitors a day, but traffic has tripled and even quadrupled in the final two weeks of the 2016 presidential election.
It’s no wonder.
Hasen, a professor at the University of California, Irvine School of Law, is one of the nation’s foremost experts on election law and a go-to source for the media and attorneys who want to know the latest on the races. In recent days Hasen has been called on by the New York Times to explain the law and ethics of so-called ballot selfies, been tapped by seemingly every publication in the country to discuss voter fraud, and even fielded queries from several reporters on the legality of trading oral sex for a Clinton vote. (Both Madonna and a porn star apparently extended such offers to Trump supporters. For the record, Hasen said such deals don’t pass legal muster.) We caught up with Hasen on the eve of the election to find out what the past month has been like for him and how this election cycle has differed from those before. His answers have been edited for length.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88949&title=%E2%80%9C%E2%80%98I%E2%80%99m%20Not%20Getting%20a%20Lot%20of%20Sleep%2C%E2%80%99%20Says%20Election%20Law%20Prof%20Rick%20Hasen%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“History Shows that Our Elections Are Rigged—Just Not the Way Donald Trump Thinks They Are”<http://electionlawblog.org/?p=88947>
Posted on November 7, 2016 3:34 pm<http://electionlawblog.org/?p=88947> by Rick Hasen<http://electionlawblog.org/?author=3>
Charles Zelden writes.<http://www.processhistory.org/zelden-voting/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88947&title=%E2%80%9CHistory%20Shows%20that%20Our%20Elections%20Are%20Rigged%E2%80%94Just%20Not%20the%20Way%20Donald%20Trump%20Thinks%20They%20Are%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Breaking: Three-Judge Court Rejects Challenge to McCain-Feingold Soft Money Issues, Teeing Up Issue for (New) Supreme Court<http://electionlawblog.org/?p=88945>
Posted on November 7, 2016 3:29 pm<http://electionlawblog.org/?p=88945> by Rick Hasen<http://electionlawblog.org/?author=3>
Back in August I wrote at NLJ<http://www.nationallawjournal.com/id=1202734808860/OpEd-The-McCainFeingold-Act-May-Doom-Itself> about Republicans’ third attempt to overturn McCain-Feingold’s limits on how much political parties can raise from donors for election related advertising and other things. I wrote that if the Republicans would be successful in getting a three-judge court, that would put the Supreme Court in a position where, because of technical procedural reasons, it would almost certainly take the case. When I wrote that in August, Justice Scalia was still on the Court, and I said there was a good chance that the Roberts Court, if confronted with the soft money rules, could well overturn them, killing the second part of McCain-Feingold. (The Court killed the first part, the limit on corporate and labor union independent spending, in Citizens United).
Well today the three judge court ruled unanimously ruled,<https://t.co/tAQJ54CKFu> and rightly so, that it is bound by the Supreme Court’s earlier decision in the McConnell case upholding the soft money rules.
So the issue is perfectly teed up through appeal to the Supreme Court. But…
no more Justice Scalia means that Court is likely evenly divided at best on the question. So little prospect now the ban would be overturned.
If we get a ninth Justice things could change. A Clinton-appointed Justice would almost certainly vote to uphold the limits, while a Trump-appointed Justice would almost certainly vote to strike them down.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88945&title=Breaking%3A%20Three-Judge%20Court%20Rejects%20Challenge%20to%20McCain-Feingold%20Soft%20Money%20Issues%2C%20Teeing%20Up%20Issue%20for%20(New)%20Supreme%20Court>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“The Supreme Court Ruled That Voting Restrictions Were a Bygone Problem. Early Voting Results Suggest Otherwise”<http://electionlawblog.org/?p=88943>
Posted on November 7, 2016 3:10 pm<http://electionlawblog.org/?p=88943> by Rick Hasen<http://electionlawblog.org/?author=3>
Emily Bazelon<http://www.nytimes.com/2016/11/07/magazine/the-supreme-court-ruled-that-voting-restrictions-were-a-bygone-problem-early-voting-results-suggest-otherwise.html> for NYT Magazine.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88943&title=%E2%80%9CThe%20Supreme%20Court%20Ruled%20That%20Voting%20Restrictions%20Were%20a%20Bygone%20Problem.%20Early%20Voting%20Results%20Suggest%20Otherwise%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“A Guide to the Voter Suppression, Intimidation Lawsuits”<http://electionlawblog.org/?p=88941>
Posted on November 7, 2016 3:08 pm<http://electionlawblog.org/?p=88941> by Rick Hasen<http://electionlawblog.org/?author=3>
Fortune magazine.<http://new.fortune.com/2016/11/07/voter-suppression-intimidation-lawsuits-minoirities/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88941&title=%E2%80%9CA%20Guide%20to%20the%20Voter%20Suppression%2C%20Intimidation%20Lawsuits%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Roger Stone: “we will not allow the dark forces behind Hillary’s campaign to engage in voter fraud and tampering.”<http://electionlawblog.org/?p=88939>
Posted on November 7, 2016 3:00 pm<http://electionlawblog.org/?p=88939> by Rick Hasen<http://electionlawblog.org/?author=3>
A new email from Roger Stone, less contrite than what he told the court<http://electionlawblog.org/?p=88870> over the weekend:

From: Stop The Steal <info at stopthesteal.org<mailto:info at stopthesteal.org>>
To:
Sent: Monday, November 7, 2016 2:03 PM
Subject: Join the Stop the Steal training call tonight at 9pm EST
Stop The Steal Prevails Against Clinton Thugs
Courts Reject False Challenges Against Stop The Steal
With Americans becoming acquainted with the corrupt, crooked, and callous nature of the Clinton Political Machine, Bill &amp; Hillary tried to stop our efforts to ensure a fair vote.
Since the start, we have made it clear that we will not allow the dark forces behind Hillary’s campaign to engage in voter fraud and tampering.
As we gathered red-blooded Americans across the country to protect the voting process in their communities, the Clintons went to the court to try and stop us.
This type of legislating from the bench was shot down by the district court of appeals, who reversed two orders against Stop The Steal in Ohio and Arizona.
Now, we are preparing for Election Day and need your help.
Please make sure to sign back into your profile on Stop The Steal and get all the information and tips you need to be ready for this Tuesday, and agree to our terms of service.
Try as they might, the Clintons cannot stop the sheer will of the American people.
They cannot stop you… unless you sit idly by and let them.
It’s time to end the corrupt political system and send a clear message.
Together, we will #StopTheSteal!
Those who still have the capability and desire to conduct non-partisan exit polls with us need to join our conference call tonight at 9 pm EST.
Dial in Number: (641) 715 0700, PIN: 693300. We will conduct a short call in which we will go over rules and guidelines for exit polling.
Please visit the Citizens Toolbox on StoptheSteal.org<http://alecto.eocampaign1.com/f6e7333f-a52d-11e6-90cc-06ead731d453/2ac64de0-a533-11e6-90cc-06ead731d453/bc439f49-a52f-11e6-90cc-06ead731d453/link-click> for all of these resources!
In Victory,
Roger Stone
PS – We still have legal battles to fight in several other states before Election Day. Please donate to help us win these efforts and secure a fair vote for ALL AMERICA.
If you are signing into our system to do exit polls, please see the counties where help is especially needed below:
Ohio
Cutahoga, Franklin, Hamilton,
Arizona
Pima County
Colorado
Arapahoe, Jefferson, Larimer
Texas
Bexar, Harris, Jefferson
Florida
Broward, Hillsborough, Miami-Dade, Monroe, Palm Beach
Pennsylvania
Allegheny, Montgomery, Philadelphia
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88939&title=Roger%20Stone%3A%20%E2%80%9Cwe%20will%20not%20allow%20the%20dark%20forces%20behind%20Hillary%E2%80%99s%20campaign%20to%20engage%20in%20voter%20fraud%20and%20tampering.%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

SCOTUS, Without Asking for Response from Republicans, Rejects Attempt to Revive Trump Voter Intimidation Decree; J. Ginsburg Weighs In {Corrected]<http://electionlawblog.org/?p=88934>
Posted on November 7, 2016 11:47 am<http://electionlawblog.org/?p=88934> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Geidner:<https://www.buzzfeed.com/chrisgeidner/appeals-court-no-new-anti-voter-intimidation-rules-in-place?utm_term=.mu8NzYkNyQ#.ocgZOQaZVx>
On Monday afternoon, the Supreme Court denied Democrats’ request to reinstate a trial court order barring the presidential campaigns and others from several activities views by the lower court as voter intimidation tactics.
A federal appeals court had issued a stay of that order, effectively reversing it, leading Democrats to ask the Supreme Court to reverse the appeals court. The justices denied the request so without even seeking a response from the Donald Trump campaign.
The Supreme Court issued a one-sentence order denying the request. Additionally, Justice Ruth Bader Ginsburg issued a short statement noting that she denied the Democrats’ request “[m]indful that Ohio law proscribes voter intimidation” — citing to and quoting from Ohio law: “‘Harassment in violation of the election law’ includes an ‘improper practice or attempt tending to obstruct, intimidate, or interfere with an elector in registering or voting at a place of registration or election.’”
The full order is here.
I am not all that surprised by this order, except for the fact that the Court did not even ask for a response from Republicans.
Also notable, Justice Ginsburg did not recuse herself<http://electionlawblog.org/?p=88899>, despite earlier comments critical of Donald Trump. I expect her to be criticized for that, but I think it is clear from this that she would not recuse in any other Trump-related election litigation.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88934&title=SCOTUS%2C%20Without%20Asking%20for%20Response%20from%20Republicans%2C%20Rejects%20Attempt%20to%20Revive%20Trump%20Voter%20Intimidation%20Decree%3B%20J.%20Ginsburg%20Weighs%20In%20%7BCorrected%5D>
Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

“What an election law expert worries about on election day”<http://electionlawblog.org/?p=88932>
Posted on November 7, 2016 10:39 am<http://electionlawblog.org/?p=88932> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<http://www.latimes.com/opinion/op-ed/la-oe-hasen-election-day-worries-20161108-story.html> to run in tomorrow’s LA Times. It begins:
For those of us who follow elections and election law professionally, election day itself is pretty uneventful—unless of course you work for a campaign. There often are reports of “flipped votes” for one candidate or another thanks to a miscalibrated machine, problems of long lines here or there and various little hiccups, but generally nothing major.
This time around, though, I am more nervous than usual. Here are the three things I am most worried about, from least to most concerning.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88932&title=%E2%80%9CWhat%20an%20election%20law%20expert%20worries%20about%20on%20election%20day%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“NC GOP Brags About Low Black Turnout–After Lobbying To Limit Early Voting”<http://electionlawblog.org/?p=88930>
Posted on November 7, 2016 10:26 am<http://electionlawblog.org/?p=88930> by Rick Hasen<http://electionlawblog.org/?author=3>
Tierney Sneed <http://talkingpointsmemo.com/muckraker/nc-gop-brags-about-depressed-black-turnout> for TPM.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88930&title=%E2%80%9CNC%20GOP%20Brags%20About%20Low%20Black%20Turnout%E2%80%93After%20Lobbying%20To%20Limit%20Early%20Voting%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The Supreme Court and Voter Suppression”<http://electionlawblog.org/?p=88928>
Posted on November 7, 2016 9:31 am<http://electionlawblog.org/?p=88928> by Rick Hasen<http://electionlawblog.org/?author=3>
Andrew Cohen<https://www.brennancenter.org/analysis/supreme-court-and-voter-suppression>:
I wonder what goes through the mind of U.S. Supreme Court Chief Justice John Roberts these frantic days as he reads one account after another of voter suppression in the 2016 election. Does he regret his decisive vote in Shelby County v. Holder<https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>, the 2013 decision that struck down the preclearance provision of the Voting Rights Act?
Does he acknowledge, even to himself, that by stripping federal officials of much of their power to preclude discriminatory election rules he has disenfranchised countless American citizens who have been blocked from voting this election cycle? Does he feel bad, or silly even, about proclaiming how “different” things are today when it comes to racial discrimination in voting? Things don’t look so different to that 100-year-old woman in North Carolina whom Republicans tried to disenfranchise<https://www.thenation.com/article/north-carolina-republicans-tried-to-disenfranchise-a-100-year-old-african-american-woman/>, do they?
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88928&title=%E2%80%9CThe%20Supreme%20Court%20and%20Voter%20Suppression%E2%80%9D>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

NC GOP Press Release Highlights Decrease in African-American Voting in State<http://electionlawblog.org/?p=88926>
Posted on November 7, 2016 9:19 am<http://electionlawblog.org/?p=88926> by Rick Hasen<http://electionlawblog.org/?author=3>
Brazen.<https://twitter.com/RaleighReporter/status/795669824135430145>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88926&title=NC%20GOP%20Press%20Release%20Highlights%20Decrease%20in%20African-American%20Voting%20in%20State>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Double Voting is Extremely Rare, and One Solution Might Be Worse”<http://electionlawblog.org/?p=88924>
Posted on November 7, 2016 9:05 am<http://electionlawblog.org/?p=88924> by Rick Hasen<http://electionlawblog.org/?author=3>
Derek Willis<https://projects.propublica.org/electionland/national/double-voting-extremely-rare/?utm_campaign=sprout&utm_medium=social&utm_source=twitter&utm_content=1478538186> for ProPublica.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88924&title=%E2%80%9CDouble%20Voting%20is%20Extremely%20Rare%2C%20and%20One%20Solution%20Might%20Be%20Worse%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

“Justice Department to Monitor Polls in 28 States on Election Day”<http://electionlawblog.org/?p=88922>
Posted on November 7, 2016 9:02 am<http://electionlawblog.org/?p=88922> by Rick Hasen<http://electionlawblog.org/?author=3>
Press release. <https://www.justice.gov/opa/pr/justice-department-monitor-polls-28-states-election-day>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88922&title=%E2%80%9CJustice%20Department%20to%20Monitor%20Polls%20in%2028%20States%20on%20Election%20Day%E2%80%9D>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>

--
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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20161108/4decc468/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20161108/4decc468/attachment.png>