[EL] ELB News and Commentary 11/8/16

Tue Nov 8 08:25:38 PST 2016

Blogging Today Here, and @Slate, and I’m on Twitter<http://electionlawblog.org/?p=89007>
Posted on November 8, 2016 8:22 am<http://electionlawblog.org/?p=89007> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ll be following and commenting on the action through a live blog<http://www.slate.com/blogs/the_slatest/2016/11/08/election_day_live_blog_results_exit_polls_and_more.html> at Slate, here at #ELB, and at my Twitter feed.<https://twitter.com/rickhasen>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Racial Disparities in Long Lines at Polling Places Too<http://electionlawblog.org/?p=89005>
Posted on November 8, 2016 8:04 am<http://electionlawblog.org/?p=89005> by Rick Hasen<http://electionlawblog.org/?author=3>
Emily Badger<http://www.nytimes.com/2016/11/09/upshot/why-long-voting-lines-today-could-have-long-term-consequences.html?ref=politics> for NYT’s The UpShot:
Early voters, urban voters and minority voters are all more likely to wait and wait and wait. In predominantly minority communities, the lines are about twice as long as in predominantly white ones, Mr. Pettigrew has found<http://www.stephenpettigrew.com/research/>. And minority voters are six times as likely as whites to wait longer than an hour to vote. Those disparities persist even within the same town or county, suggesting they don’t reflect simply the greater difficulty of putting on elections in populous cities.
“That means members of minority communities are forgoing wages; they’re having to juggle child and family care and all sorts of other things that white voters don’t have to do,” said Charles Stewart III, an M.I.T. political scientist. (In a presidential election, he has estimated, all this waiting nationwide adds up to about a billion dollars in lost wages.)…
n North Carolina, where a federal court struck down voting restrictions that it said targeted blacks with “almost surgical precision<http://www.pbs.org/wgbh/frontline/article/court-north-carolina-voter-id-law-targeted-black-voters/>,” there have already been reports during early voting of black voters who encountered long lines and gave up<https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2016/11/06/daily-202-many-african-americans-unenthusiastically-settle-for-hillary-clinton/581f38f4e9b69b6085905de9/>.
“In America, we have heightened awareness about racial disparities,” Mr. Stewart said. “And isn’t it really sad to say here’s yet another area in which the racial disparities exist, particularly in light of the fact that one of the top goals of African-American political activism for a century has been access to the poll.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Voting Begins After Competing Claims of Fraud, Intimidation”<http://electionlawblog.org/?p=89003>
Posted on November 8, 2016 7:59 am<http://electionlawblog.org/?p=89003> by Rick Hasen<http://electionlawblog.org/?author=3>
AP reports:<http://abcnews.go.com/Politics/wireStory/competing-claims-voter-fraud-intimidation-raise-tensions-43379631>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Republicans Appealing Soft Money Ruling to the Supreme Court<http://electionlawblog.org/?p=89000>
Posted on November 8, 2016 7:56 am<http://electionlawblog.org/?p=89000> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports<https://www.washingtonpost.com/local/public-safety/panel-upholds-soft-money-ban-but-sends-gop-campaign-finance-challenge-to-supreme-court/2016/11/08/ea567d0c-a539-11e6-8042-f4d111c862d1_story.html>:
James Bopp Jr., the lead lawyer for the plaintiffs who sued the Federal Election Commission, said Monday that “we just believe they’re wrong, and we’re certainly appealing to the Supreme Court.”
Once an appeal is filed, Bopp said he would expect a case to reach the high court by February for consideration next year or in 2018.
As I wrote yesterday:<http://electionlawblog.org/?p=88945>
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.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Sixty billionaires and millionaires accounted for 57% of $370 million super PAC Spending”<http://electionlawblog.org/?p=88998>
Posted on November 8, 2016 7:44 am<http://electionlawblog.org/?p=88998> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ<http://www.wsj.com/articles/wealthy-donors-played-outsize-role-this-election-1478561726> on the most underreported story of the election season.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Big Law Mans the Phones for National Election Protection Efforts”<http://electionlawblog.org/?p=88996>
Posted on November 8, 2016 7:40 am<http://electionlawblog.org/?p=88996> by Rick Hasen<http://electionlawblog.org/?author=3>
NLJ reports.<http://www.nationallawjournal.com/home/id=1202771783839?kw=Big%20Law%20Mans%20the%20Phones%20for%20National%20Election%20Protection%20Efforts&et=editorial&bu=National%20Law%20Journal&cn=20161108&src=EMC-Email&pt=Daily%20Headlines>
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Posted in election administration<http://electionlawblog.org/?cat=18>, election law biz<http://electionlawblog.org/?cat=51>

“An ‘I Voted’ Sticker Can Get You Free Stuff, but It Shouldn’t”<http://electionlawblog.org/?p=88992>
Posted on November 8, 2016 7:36 am<http://electionlawblog.org/?p=88992> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports.<http://www.nytimes.com/2016/11/09/us/politics/voted-sticker-freebies.html?smid=tw-share>
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Posted in vote buying<http://electionlawblog.org/?cat=43>

“The Real Voter Fraud”<http://electionlawblog.org/?p=88989>
Posted on November 8, 2016 7:33 am<http://electionlawblog.org/?p=88989> by Rick Hasen<http://electionlawblog.org/?author=3>
David Leonardt NYT column<http://www.nytimes.com/2016/11/08/opinion/the-real-voter-fraud.html?_r=0&referer=http://www.google.com/search?q=nyt+leonhardt&ie=UTF-8&oe=UTF-8&hl=en&client=safari>
Congress could set minimum standards for each state — requiring automatic voter registration, for example. I realize that most congressional Republicans now have little interest in voting rights. But I’d urge them to consider their party’s long-term interests: Opposing basic rights for large and growing groups is not so smart.
If Congress won’t act, the Supreme Court can. The court can acknowledge that its 2013 dismantling<http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html> of a key part of the Voting Rights Act hinged on an overly rosy view of the aftermath. The Equal Protection Clause offers one solution, as the scholar Richard Hasen has argued<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>: The justices could interpret it to overturn state laws making it harder to register and vote.
The Enlightenment ideas of our country’s founding have turned out to be pretty wise ones. Governments derive “their just powers from the consent of the governed,” as the Declaration of Independence says, and all Americans have “certain unalienable rights.” Voting, surely, is one of them.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“This is how you file a legal election complaint”<http://electionlawblog.org/?p=88987>
Posted on November 8, 2016 7:27 am<http://electionlawblog.org/?p=88987> by Rick Hasen<http://electionlawblog.org/?author=3>
Monkey Cage:<https://www.washingtonpost.com/news/monkey-cage/wp/2016/11/08/this-is-how-you-file-a-legal-election-complaint/>
To make it easier for citizens to complain officially, we have created the United States Election Complaint Portal at Michigan (USECPAM<http://usecpam.polisci.lsa.umich.edu/index.html>). This website contains contact information for state and county election officials, links to official election-complaint forms and procedures, and the state election law for each state (where available). As far as we know, no one has ever before compiled all these resources for each state.
During this year’s primaries, we’ve seen that state and county officials often use Twitter to respond to reports of polling-place problems and other election complaints and concerns. And so we also created a Twitter account (@elec_ballots) with still more information. Visitors will find the Twitter accounts for county- and state-level election officials, state-level Leagues of Women Voters and state-level political parties, organized into lists. All this contact information can also be found through the USECPAM website.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“10 Top Takeaways From 2016 When It Comes to Money in Politics”<http://electionlawblog.org/?p=88985>
Posted on November 8, 2016 7:25 am<http://electionlawblog.org/?p=88985> by Rick Hasen<http://electionlawblog.org/?author=3>
David Donnelly blogs.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Americans can vote from space, so why not from U.S. island territories?”<http://electionlawblog.org/?p=88983>
Posted on November 8, 2016 7:21 am<http://electionlawblog.org/?p=88983> by Rick Hasen<http://electionlawblog.org/?author=3>
CBC News reports.<http://www.cbc.ca/news/world/us-election-island-territories-1.3840319>
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Posted in voting<http://electionlawblog.org/?cat=31>

“Justice Ginsburg fails an important test of judicial ethics”<http://electionlawblog.org/?p=88981>
Posted on November 8, 2016 7:16 am<http://electionlawblog.org/?p=88981> by Rick Hasen<http://electionlawblog.org/?author=3>
Jonathan Adler:<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/07/justice-ginsburg-fails-an-important-test-of-judicial-ethics/>
So, Ginsburg participated in a case in which she repeatedly disparaged one of the parties and expressed a strong preference for that party’s defeat in the very election that was the subject of the case. This was unethical of her to do. She should have recused.
One possible defense of Ginsburg’s failure to recuse is that (as far as I am aware) no recusal motion was filed. This is a fair point. Yet there is no question that Ginsburg was aware of the issue. After making her comments, she was subject to substantial criticism (including commentary that noted the recusal obligation she had created) and she acknowledged the inappropriateness of her remarks in her statement expressing regret.
My earlier post on the recusal question is here.<http://electionlawblog.org/?p=88899>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“What Happens If Donald Trump Loses and Won’t Concede?”<http://electionlawblog.org/?p=88979>
Posted on November 8, 2016 7:13 am<http://electionlawblog.org/?p=88979> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Melber for NBC News.<http://www.nbcnews.com/storyline/2016-election-day/what-happens-if-donald-trump-loses-won-t-concede-n679481>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Federal Court Slams Democrats in PA Trump Voter Intimidation Lawsuit<http://electionlawblog.org/?p=88969>
Posted on November 7, 2016 9:33 pm<http://electionlawblog.org/?p=88969> by Rick Hasen<http://electionlawblog.org/?author=3>
The Guardian:<https://www.theguardian.com/us-news/2016/nov/07/donald-trump-poll-watcher-voter-fraud-roger-stone-steal-the-vote>
Judge Diamond wrote in denying a temporary restraining order: “Neither witness knew of any actual voter intimidation efforts or of any voters who had actually been intimidated. Rather, both were concerned that Mr Trump’s statements ‘might’ or ‘could’ intimidate African-American or Latino voters. This is not proof of the likelihood of harm.”
The judge also criticized the Democratic party for filing a lawsuit so close to election day, and for attempting to call in the chair of the state Republican party as a witness on the day before the election, one of his busiest days of the year.
If anyone has the written ruling, please pass it along.
UPDATE: Quite a ruling <http://electionlawblog.org/wp-content/uploads/ED-Pa-Diamond-Order-2016-11-07.pdf> from Judge Diamond.
MORE from Politico<http://www.politico.com/blogs/under-the-radar/2016/11/voter-intimidation-injunction-pennsylvania-230901>, also on denial of NC orde<http://www.politico.com/f/?id=00000158-40d8-d8a3-ad5a-5edb06570001>r, which leaves open possibility of returning on Election Day, which is part of what Democrats wanted:
That said, voters are entitled to cast their ballots without fear of reprisal or threat of physical harm. See 52 U.S.C. § 10307(b) (making it illegal for any person, “whether acting under color of law or otherwise,” to “intimidate, threaten, or coerce . . . any person for voting”); 42 U.S.C. § 1985(3). On Election Day, if it becomes apparent that agents of any defendant or supporters encouraged by any defendant are making an effort to intimidate minority voters or to further incite intimidation of voters, the plaintiff may renew the motion.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“A group of political scientists says Trump’s attacks on our democracy are unprecedented and dangerous”<http://electionlawblog.org/?p=88967>
Posted on November 7, 2016 9:25 pm<http://electionlawblog.org/?p=88967> by Rick Hasen<http://electionlawblog.org/?author=3>
Greg Sargent:<https://www.washingtonpost.com/blogs/plum-line/wp/2016/11/07/a-group-of-political-scientists-says-trumps-attacks-on-our-democracy-are-unprecedented-and-dangerous/>
As a general rule, political scientists tend to shy away from taking public stands for — or against — candidates that might make them appear partisan or somehow lacking in scientific objectivity. So it’s notable that a large group of political scientists has now signed an open letter<https://drive.google.com/file/d/0B7l0lh4nmE3OSkpCWjJJNGVoNXc/view> warning that their academic experience persuades them that Donald Trump poses a unique menace to American democracy.
The letter<https://drive.google.com/file/d/0B7l0lh4nmE3OSkpCWjJJNGVoNXc/view>, which was signed by hundreds of political science professors at U.S. colleges and universities, defends the decision to weigh in on this particular election by noting that “our profession has always had strong normative commitments” to the convictions that “peace is preferable to war, freedom to tyranny, justice to injustice, equality to inequality, democracy to authoritarianism,” as well as to John Adams’ notion that our government must be one “of laws, and not of men.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Spread of Early Voting Is Forging New Habits and Campaign Tactics”<http://electionlawblog.org/?p=88965>
Posted on November 7, 2016 9:24 pm<http://electionlawblog.org/?p=88965> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports.<http://www.nytimes.com/2016/11/08/us/early-voting-campaign-tactics.html?_r=0>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18>

Federal Court Upholds Alaska Individual Contribution Limits, Aggregate Non-Resident Limit, and Aggregate Political Party Limits<http://electionlawblog.org/?p=88962>
Posted on November 7, 2016 9:02 pm<http://electionlawblog.org/?p=88962> by Rick Hasen<http://electionlawblog.org/?author=3>
Interesting opinion. <http://electionlawblog.org/wp-content/uploads/ak-cf.pdf>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Why This Election is Different: Anxiety and the Future: A Tweetstorm<http://electionlawblog.org/?p=88960>
Posted on November 7, 2016 8:51 pm<http://electionlawblog.org/?p=88960> by Rick Hasen<http://electionlawblog.org/?author=3>
I tried to pull together some thoughts<https://storify.com/rickhasen/why-this-election-is-different-anxiety-and-the-fut> on why this election is different for many of us.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Bonus Quote of the Day: Fraudulent Fraud Squad Edition<http://electionlawblog.org/?p=88958>
Posted on November 7, 2016 8:42 pm<http://electionlawblog.org/?p=88958> by Rick Hasen<http://electionlawblog.org/?author=3>
<https://twitter.com/JamesOKeefeIII>
 Follow<https://twitter.com/JamesOKeefeIII>
[https://pbs.twimg.com/profile_images/710984911637843968/xRyfnhhM_normal.jpg]James O'Keefe @JamesOKeefeIII<https://twitter.com/JamesOKeefeIII>
We'll have teams everywhere tomorrow. If you are doing something wrong on Election Day we find you we film you and we will make you famous.
1:30 PM - 7 Nov 2016<https://twitter.com/JamesOKeefeIII/status/795740278619574272>

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Fear Is Driving Voting Rights Advocates and Vigilantes to Watch Polling Stations”<http://electionlawblog.org/?p=88956>
Posted on November 7, 2016 8:40 pm<http://electionlawblog.org/?p=88956> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/11/08/us/fear-is-driving-voting-rights-advocates-and-vigilantes-to-watch-polling-stations.html>
Millions of Americans will cast their ballots on Tuesday under intense scrutiny both from vigilantes who fear the election will be rigged and from thousands of voting rights advocates who fear the tally will be distorted by intimidation and, perhaps, the suppression of a minority vote that may be crucial to the outcome.
On one side are groups like the Oath Keepers, one of dozens of right-wing and militia groups responding to Donald J. Trump’s warnings about a stolen election. The organization has issued a nationwide “call to action” to its members, urging them to go “incognito” to polling stations on Election Day to “hunt down” instances of fraud.
On the other side are more than 100 civic and legal groups, claiming at least 10,000 volunteers, and perhaps many more. They plan to deploy at polling places nationwide to watch for signs of voter intimidation and other roadblocks to voting. Election officials and observers say they are hoping for an orderly final day of voting, but they are girding for the possibility of fights, intimidation and, perhaps, worse.
Adding to the anxiety is fear of Election Day hacking, perhaps by foreign interests.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Quote of the Day: Voting Too Easy Edition<http://electionlawblog.org/?p=88954>
Posted on November 7, 2016 8:33 pm<http://electionlawblog.org/?p=88954> by Rick Hasen<http://electionlawblog.org/?author=3>
<https://twitter.com/WalshFreedom>
 Follow<https://twitter.com/WalshFreedom>
[https://pbs.twimg.com/profile_images/740684176072925184/i3NUKuQN_normal.jpg]Joe Walsh <https://twitter.com/WalshFreedom>
✔@WalshFreedom<https://twitter.com/WalshFreedom>
Early voting is like picking the winner of a baseball game in the 7th inning.

Stop this early voting craze. Quit making it so easy to vote.
8:52 AM - 7 Nov 2016<https://twitter.com/WalshFreedom/status/795670189065076736>

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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
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