[EL] ELB News and Commentary 11/8/16
Rick Hasen
rhasen at law.uci.edu
Wed Nov 9 10:19:46 PST 2016
Toward a Peaceful Transition of Power and a Responsible Trump Presidency<http://electionlawblog.org/?p=89099>
Posted on November 9, 2016 10:16 am<http://electionlawblog.org/?p=89099> by Rick Hasen<http://electionlawblog.org/?author=3>
Back in 2009, when Barack Obama took over at the end of George W. Bush’s term, I blogged<http://electionlawblog.org/?p=11905>:
Regardless of your politics, today is a day to celebrate the remarkable peaceful transitions to power that occur in this country with each presidential transition. It is something we should not take for granted.
It is a thought I’ve returned to frequently this election season, as Donald Trump made profoundly irresponsible comments <http://electionlawblog.org/?p=87068> about potentially not accepting the election results if he lost, and about how the election was “rigged” and voter fraud rampant. I assume he abandons these talking points now that he has won (with the ridiculous idea that was only rigged if he lost).
And now, as Donald Trump stands poised to take over at the end of Obama’s term, it looks like we will again have a peaceful transition of power, with Hillary Clinton having conceded and the Obama administration beginning transition planning with the Trump team. This is something to be grateful for.
I have been deeply concerned about Trump’s professed lack of respect for the rule of law and American institutions. I sincerely hope that he will surround himself with wise advisors who can counsel him to make careful and judicious choices, and to bolster American democracy and American institutions like a free press. I cannot say I am optimistic. But I will try to remain hopeful, and to wish him success as President, for the sake of the American people.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Notorious” Justice Ginsburg Wears Her “Dissent Jabot” While Rome Burns<http://electionlawblog.org/?p=89103>
Posted on November 9, 2016 9:58 am<http://electionlawblog.org/?p=89103> by Rick Hasen<http://electionlawblog.org/?author=3>
I said last night that Justice Ginsburg badly miscalculated <http://electionlawblog.org/?p=89052> in not resigning early in Obama’s second term to give him a chance to fill that seat with someone younger (Ginsburg is 83). The future of the Supreme Court was on the line last night, and Democrats, who had the first chance in over 40 years to have a progressive Supreme Court,<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause> blew it. The Court is now likely to be conservative for the next generation, and the results are going to be felt in every aspect of American life. As I wrote at TPM last year:
The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.
A conservative like Justice Scalia tends to vote to uphold abortion restrictions, strike down gun restrictions, and view the First Amendment as protecting the right to spend unlimited sums in elections. A liberal like Justice Ginsburg tends to vote the opposite way: to strike down abortion restrictions, uphold gun laws, and view the government’s interest in stopping undue influence of money in elections as justifying some limits on money in politics. This to not to say it is just politics in these cases, or that these Justices are making crassly partisan decisions. They’re not. It is that increasingly a Justice’s ideology and jurisprudence line up with one political party’s positions or another because Justices are chosen for that very reason.
My dean Erwin Chemerinsky was widely criticized<http://www.abajournal.com/news/article/chemerinsky_op-ed_calls_for_retirement_of_ginsburg_and_maybe_breyer/> when in 2014 he called on Justice Ginsburg to retire, but it was clearly the right call.
Today, Justice Ginsburg sported her dissent jabot<https://twitter.com/Courtartist/status/796405066445955072>, in a subtle critique of Trump. Yeah, that’ll do the trick.
I think in the last few years, all the hagiography and cult-like treatment of “Notorious RBG” went to her head. She made those ill-considered comments <http://www.reuters.com/article/us-election-trump-ginsburg-commentary-idUSKCN0ZT2IM> about Trump during the election likely because she thought she could help sway her millennial fans, and in doing so she crossed a dangerous line.
Dissent jabot: too little and too late.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
Did Restrictive Voter ID Laws and Other Voting Laws Matter to the Election Outcome?<http://electionlawblog.org/?p=89101>
Posted on November 9, 2016 9:48 am<http://electionlawblog.org/?p=89101> by Rick Hasen<http://electionlawblog.org/?author=3>
I am getting this question a lot this morning.
Let me begin by saying it is the wrong question to ask (for reasons I explain below).
But here’s what we know if we were trying to answer this question:
If restrictive voter id or other laws were enough to affect the presidential outcome, they would have had to have an effect on the electoral college outcome in a state that passed these laws. As of Wednesday morning, the only candidate I see in this category potentially is Wisconsin, where Donald Trump has a 27,000 vote lead. Were there more than 27,000 people (or whatever the margin will be after provisionals/absentees processed) who would have voted for Clinton but for the restrictive voter id law (with its minor softening through court-ordered DMV-produced temporary ids)? What about other laws that the Wisconsin legislature passed, such as on the treatment of absentee ballots<http://electionlawblog.org/?p=87956>? We will have to let the political scientists sort this out. I don’t think anyone can eyeball this to know.
It is more likely that voting restrictions affected down-ballot races. Consider North Carolina, which is now too close to call for the Governor’s race. After the 4th Circuit threw out the state’s voting law as discriminatory, counties (once again vested with discretion to set early voting rules for the first week of early voting) cut back on the amount of early voting in ways that might have affected the outcome. There were other issues with how North Carolina administered the vote. How much of the loss of Democratic vote was due to attempts to make it harder to vote, compared to other factors, such as less enthusiasm for Clinton than Obama? (After all, with no new voting restrictions, Democratic and African American turnout was way down in Pennsylvania.) Again, I will have to leave this to others to tease out.
Now, on why this is the wrong question: Of course pundits and partisans care about election outcomes, but when it comes to laws making it harder to register and vote, the right question focuses on the dignity of voters. Why should the state be able to make registration and voting harder without good reason? If you look at it this way, the turnout question is secondary and less important. Had Clinton won, there was a chance<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 Court could have read the Equal Protection Clause to give this fundamental protection to voters. Now I believe there is no chance. Don’t look to Congress or the Supreme Court to be protectors of voting rights. This will be fought state by state, and in red states voting might well become a lot harder.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“White Won. We are still the country that produced George Wallace. We are still the country that killed Emmett Till.”<http://electionlawblog.org/?p=89097>
Posted on November 9, 2016 9:23 am<http://electionlawblog.org/?p=89097> by Rick Hasen<http://electionlawblog.org/?author=3>
Jamelle Bouie:<http://www.slate.com/articles/news_and_politics/politics/2016/11/white_won.html>
Americans are stubbornly, congenitally optimistic. And the millions who backed Trump see something in his visage. Something that gives them hope. Here’s what I see. I see a man who empowered white nationalists and won. I see a man who demanded the removal of nonwhite immigrants and won. I see a man who pledged war crimes against foreign enemies and won. I see a man who empowers the likes of Rudy Giuliani and others who see blacks as potential criminals to control, not citizens to respect.
After the redemption of the South, black Americans—and nonwhites around the country—faced the nadir. Whites imposed new kinds of discrimination and turned a blind eye to the pogroms and racial terrorism that was scarring the American landscape.
In a few hours, millions of Americans will wake up in the age of Trump. I, and millions who look like me, will open our eyes to a second redemption. We can only hope—we can only pray—that we won’t reach a new nadir.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Democrats Will Push Electoral College Reform, But Odds Remain Heavily Against Change<http://electionlawblog.org/?p=89094>
Posted on November 9, 2016 9:17 am<http://electionlawblog.org/?p=89094> by Rick Hasen<http://electionlawblog.org/?author=3>
There seems no question<http://www.nytimes.com/elections/results/president?action=click&pgtype=Homepage&clickSource=story-heading&module=span-abc-region®ion=span-abc-region&WT.nav=span-abc-region> Hillary Clinton will lose in the Electoral College but win the popular vote. We saw this in 2000’s Bush-Gore race as well. These results no doubt will spark calls to reform the Electoral College, either through constitutional amendment or, more likely through the National Popular Vote initiative. <http://www.nationalpopularvote.com/>
I expect the debate will be intellectually interesting, on question such as whether we can extrapolate how things would have gone in this race had the candidates run a race aimed at racking up popular vote totals, and whether NPV is a “compact” requiring congressional approval.
But I don’t expect this debate to get anywhere politically. Both red states and small states will see it to their advantage to retain the Electoral College, and there will be a fierce fight against NPV if it gets significantly closer to reality. Yesterday’s results will only reenforce reasons to oppose change.
I think there’s little question if we were rewriting the Constitution today the Electoral College would be seen as anachronistic and out of sync with one person, one vote ideals. The same would be said of the Senate, which grossly favors small population states (like Montana and Rhode Island) over big population states (like California and Texas).
Many may want electoral college reform more than ever, but the political path forward seems quite steep.
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Posted in electoral college<http://electionlawblog.org/?cat=44>
“Texas man arrested after attempting to vote twice”<http://electionlawblog.org/?p=89092>
Posted on November 9, 2016 8:54 am<http://electionlawblog.org/?p=89092> by Rick Hasen<http://electionlawblog.org/?author=3>
McClatchy:<http://www.mcclatchydc.com/news/politics-government/election/article113442673.html>
A man was arrested in Fort Bend County, Texas for attempting to vote twice Tuesday, the county sheriff’s office announced in a tweet.
The voter claimed he was working for Donald Trump and that he was simply testing the voting system, the sheriff’s office said.
That seemed to be the extent of the multiple voting uncovered yesterday.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>
“The Democratic Party Establishment Is Finished”<http://electionlawblog.org/?p=89090>
Posted on November 9, 2016 8:34 am<http://electionlawblog.org/?p=89090> by Rick Hasen<http://electionlawblog.org/?author=3>
Jim Newell:<http://www.slate.com/articles/news_and_politics/politics/2016/11/the_democratic_party_establishment_is_finished_after_trump.html>
The midterm losses? That was just a bad cycle, structurally speaking; presidential demographics would make up for it. The party establishment made a grievous mistake rallying around Hillary Clinton. It wasn’t just a lack of recent political seasoning. She was a bad candidate, with no message beyond heckling the opposite sideline. She was a total misfit for both the politics of 2016 and the energy of the Democratic Party as currently constituted. She could not escape her baggage, and she must own that failure herself.
Theoretically smart people in the Democratic Party should have known that. And yet they worked giddily to clear the field for her. Every power-hungry young Democrat fresh out of law school, every rising lawmaker, every old friend of the Clintons wanted a piece of the action. This was their ride up the power chain. The whole edifice was hollow, built atop the same unearned sense of inevitability that surrounded Clinton in 2008, and it collapsed, just as it collapsed in 2008, only a little later in the calendar. The voters of the party got taken for a ride by the people who controlled it, the ones who promised they had everything figured out and sneeringly dismissed anyone who suggested otherwise. They promised that Hillary Clinton had a lock on the Electoral College. These people didn’t know what they were talking about, and too many of us in the media thought they did.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, political parties<http://electionlawblog.org/?cat=25>
Orin Kerr on President Trump and Checks and Balances<http://electionlawblog.org/?p=89088>
Posted on November 9, 2016 8:32 am<http://electionlawblog.org/?p=89088> by Rick Hasen<http://electionlawblog.org/?author=3>
Well worth reading:<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/09/the-trump-break-point/>
Here’s why I think this is really important. The modern presidency comes with extraordinary power. The president has power over the entire executive branch, from the military to the Justice Department to the FBI to the administrative state. The Constitution provides for a number of checks on that power. The courts provide some very important checks, of course, at least when cases get to them.
But the most important checks on a president come from Congress. On a routine basis, the president needs Congress to enact laws that allow and pay for what the president wants to do. The president needs the Senate to confirm nominees. And at the very extreme end, the president needs to avoid an outright rebellion in Congress that could lead to impeachment and removal. As a result, how far Trump can go depends a lot on how far Congress will let him go.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>
“Labor Unions Spent A Record Amount On The Elections. But Not As Much As These 5 People.”<http://electionlawblog.org/?p=89086>
Posted on November 9, 2016 8:25 am<http://electionlawblog.org/?p=89086> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPo reports.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“How the stampede for big money enabled Donald Trump’s rise”<http://electionlawblog.org/?p=89084>
Posted on November 9, 2016 8:18 am<http://electionlawblog.org/?p=89084> by Rick Hasen<http://electionlawblog.org/?author=3>
This Matea Gold piece <https://www.washingtonpost.com/politics/how-the-stampede-for-big-money-enabled-donald-trumps-rise/2016/11/08/1adf559a-a209-11e6-8d63-3e0a660f1f04_story.html> is spot-on and what I’ve been saying. The money story is the most underappreciated one of 2016.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“The Election Wasn’t Rigged, But Is the System Still Flawed”<http://electionlawblog.org/?p=89082>
Posted on November 9, 2016 8:16 am<http://electionlawblog.org/?p=89082> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley<http://moritzlaw.osu.edu/election-law/article/?article=13361> on the vote count, the Electoral College, and a possible runoff for President.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, election administration<http://electionlawblog.org/?cat=18>, electoral college<http://electionlawblog.org/?cat=44>
Roundups of Election Administration and Election Reform Action<http://electionlawblog.org/?p=89080>
Posted on November 9, 2016 8:04 am<http://electionlawblog.org/?p=89080> by Rick Hasen<http://electionlawblog.org/?author=3>
From Doug Chapin:<http://editions.lib.umn.edu/electionacademy/2016/11/09/morning-after-i-need-coffee-just-the-facts-roundup/?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHElections+%28The+Election+Academy%29>
+ The day had typical, isolated excitement but all in all the election system worked<http://www.startribune.com/competing-claims-of-voter-fraud-intimidation-raise-tensions/400365001/> – as usual. The award for the jurisdiction who had the worst day was undoubtedly Durham, NC<http://www.charlotteobserver.com/news/local/article113248708.html> where morning problems led to polling extensions in a few precincts and a long night entering returns.
+ It was a mixed bag for incumbent Secretaries of State as Washington’s Kim Wyman was leading in her re-election bid<http://www.seattletimes.com/seattle-news/politics/washington-secretary-of-state-kim-wyman-tina-podlodowski/> while West Virginia’s Natalie Tennant was defeated by challenger Mac Warner<http://www.register-herald.com/news/warner-beats-tennant-in-race-for-secretary-of-state/article_76dcb40d-c7fa-5ebb-8acf-f79b500fb9a3.html>.
+ There are also four new Secretaries of State: Jay Ashcroft in Missouri<http://www.ky3.com/content/news/Jay-Ashcroft-wins-Missouri-secretary-of-state-race-400494181.html>, Cory Stapleton in Montana<http://www.greatfallstribune.com/story/news/politics/2016/11/08/secretary-state/93449870/>, Maggie Toulouse Oliver in New Mexico<http://www.sfreporter.com/santafe/article-12712-second-chance.html> and Dennis Richardson in Oregon<http://www.oregonlive.com/politics/index.ssf/2016/11/oregon_secretary_of_state_race.html>.
+ In Florida, Mark Earley was elected election supervisor in Leon County<http://www.tallahassee.com/story/news/2016/11/08/mark-earley-takes-supervisor-elections-post/93466452/>, Alan Hays in Lake County<http://www.southlakepress.com/news/20161108/hays-coasts-to-easy-win-in-supervisor-of-elections-race> and Sharon Harrington was unseated by Tommy Doyle in Lee County<http://www.news-press.com/story/news/politics/2016/11/08/doyle-defeats-incumbent-harrington-supervisor-elections-race/93166124/>.
+ Alaska voted <http://www.ktuu.com/content/news/Alaska-voters-consider-ballot-measures-on-voter-registration-student-loan-interest-rates-400497411.html> to link voter registration to the Alaska Permanent Fund.
+ Maine voted <http://www.wmtw.com/article/question-5-asks-mainers-to-approve-ranked-choice-voting/7482915> to approve ranked-choice voting.
+ Missouri voted<http://www.ozarksfirst.com/news/ozarks-politics/missouri-both-cigarette-taxes-fail-term-limits-voter-id-pass> to amend the state constitution to require voter ID.
From Every Voice<http://us1.campaign-archive1.com/?u=d77d4a197583f647063d7317c&id=fc4e837c49&e=014b0a7000>:
* Missouri voters overwhelmingly approved<http://www.stltoday.com/news/local/govt-and-politics/missouri-cigarette-taxes-failing-voters-supporting-campaign-contribution-limits-and/article_7c141a74-b7d1-558b-a2c4-911aa85acba8.html> a measure to reinstate contribution limits for state elections (though they unfortunately also supported a restrictive voter ID measure).
* In Multnomah County, Oregon, a contribution limits measure<http://results.oregonvotes.gov/ResultsSW.aspx?type=CTYALL&cty=26&map=CTY> won with 88 percent of the vote.
* South Dakota voters approved IM-22<https://twitter.com/SDIntegrity/status/796260826764242947> to increase transparency, reduce the power of lobbyists, strengthen enforcement measures, and empower everyday people through a small-dollar voucher program. The initiative faced stiff opposition from the Koch-backed group there.
* Voters in Berkeley, Calif. approved a measure<http://www.dailycal.org/2016/11/09/city-measures-t1-u1-v1-w1-x1-y1-z1-aa-pass-measures-bb-cc-dd-fail/> to create a small-donor matching system for elections.
* Voters in Howard County, Md. approved a charter amendment<http://www.commoncause.org/states/maryland/press/press-releases/howard-county-voters-vote-for-fair-elections.html> that will now allow the county council to create a small donor program like neighboring Montgomery County passed a couple years ago. Council members are ready to go.
* Voters in Washington State approved<http://www.seattletimes.com/seattle-news/politics/special-interest-campaign-spending-initiative-735/> an anti-Citizens United resolution.
* Voters in California appear poised to do the same<http://www.nytimes.com/elections/results/california>, but it is one of several initiatives not officially called yet.
* In Speaker Paul Ryan’s home of Rock County, Wisc., 86 percent of voters approved an anti-Citizens United resolution<http://www.gazettextra.com/20161108/rock_county_8216we_the_people8217_referendum_passes>. Several other communities in the state approved similar measures last night.
* Rhode Island approved an ethics reform<http://dailyjournalonline.com/news/national/govt-and-politics/the-latest-ri-voters-ok-ethics-oversight-of-lawmakers/article_e365f596-8416-5240-9b97-9f02186aa51d.html> initiative.
* In Alaska, voters will now be automatically registered to vote<http://www.ktuu.com/content/news/Alaska-voters-consider-ballot-measures-on-voter-registration-student-loan-interest-rates-400497411.html> when they file their personal dividend fund form.
* Maine voters approved<http://www.wagmtv.com/content/news/Maine-voters-approve-rank-choice-voting--400507681.html> ranked-choice voting.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Will Trump’s Rule of Law Be Our Rule of Law?”<http://electionlawblog.org/?p=89078>
Posted on November 9, 2016 7:59 am<http://electionlawblog.org/?p=89078> by Rick Hasen<http://electionlawblog.org/?author=3>
Dahlia Lithwick<http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_threat_to_the_rule_of_law.html> for Slate.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Nationally Prominent Races That May Go to Recount<http://electionlawblog.org/?p=89076>
Posted on November 9, 2016 7:58 am<http://electionlawblog.org/?p=89076> by Rick Hasen<http://electionlawblog.org/?author=3>
Ayotte-Hassan in NHSEN<http://www.nytimes.com/elections/results/new-hampshire-senate-ayotte-hassan>.
Cooper-McCrory in NCGOV.<http://www.nytimes.com/elections/results/north-carolina>
What else am I missing?
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Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>
Don’t Count on Congress or the Supreme Court to Fix Our Problems with Voting Rights: Things Will Get Worse<http://electionlawblog.org/?p=89072>
Posted on November 9, 2016 12:15 am<http://electionlawblog.org/?p=89072> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ll have much more to say on this soon. But I just wanted to note this point, as I’ve made earlier, that control of the political branches means control of the Supreme Court. And a conservative Supreme Court will be much less protective of voting rights than a liberal one.
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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>
Get Ready for the Supreme Court to Strike Down the Rest of McCain-Feingold, the Soft Money Ban<http://electionlawblog.org/?p=89070>
Posted on November 9, 2016 12:11 am<http://electionlawblog.org/?p=89070> by Rick Hasen<http://electionlawblog.org/?author=3>
I just wrote<http://electionlawblog.org/?p=89000> about the latest Republican challenge to the McCain-Feingold soft money limits. The case is teed up to the Supreme Court:
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%3D89070&title=Get%20Ready%20for%20the%20Supreme%20Court%20to%20Strike%20Down%20the%20Rest%20of%20McCain-Feingold%2C%20the%20Soft%20Money%20Ban>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Why Suing the President Is a Logistical Nightmare”<http://electionlawblog.org/?p=89068>
Posted on November 8, 2016 11:50 pm<http://electionlawblog.org/?p=89068> by Rick Hasen<http://electionlawblog.org/?author=3>
The Hollywood Reporter reports,<http://www.hollywoodreporter.com/thr-esq/why-suing-president-is-a-logistical-nightmare-944797> on what will happen with President Elect Trump’s civil lawsuits.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89068&title=%E2%80%9CWhy%20Suing%20the%20President%20Is%20a%20Logistical%20Nightmare%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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