[EL] ELB News and Commentary 10/4/16

[Rick Hasen]

7th Cir. Issues Temporary Stay in IL Election Day Registration Case<http://electionlawblog.org/?p=87150>
Posted on October 4, 2016 5:51 pm<http://electionlawblog.org/?p=87150> by Rick Hasen<http://electionlawblog.org/?author=3>

Sun-Times:<http://chicago.suntimes.com/politics/judge-clears-way-for-election-day-registration-in-polling-places/>

The attorney general’s office on Sept. 30 filed a motion for a stay of the lower court ruling, pending appeal. A judge on Tuesday granted that motion, while also giving the defendants until Thursday to provide a statement about why they believe the appeals should be expedited, according to court records.

The decision means same day registration in polling places will continue this Election Day, on Nov. 8.

That last sentence seems premature. There’s a chance this entire appeal could be expedited and the rule changed before the election.

From the order:<http://electionlawblog.org/wp-content/uploads/schloz.pdf>

IT IS ORDERED that the appellants’ emergency motion to stay is GRANTED. The district court’s order of September 27, 2016, enjoining defendants from implementing the Election Day voter registration at precinct polling locations is stayed pending appeal.

IT IS FURTHER ORDERED that appellants and appellees shall file by 2:00 p.m. onThursday, October 6, 2016, a statement about whether they believe that the appeals should be expedited. If so, the parties shall include proposed briefing dates with their statements.
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Posted in election administration<http://electionlawblog.org/?cat=18>


FEC Deadlocks in CREW Disclosure Case So No Appeal<http://electionlawblog.org/?p=87148>
Posted on October 4, 2016 5:44 pm<http://electionlawblog.org/?p=87148> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=98252092&vname=mpebulallissues&jd=a0k2c1m2c2&split=0>
Thee Federal Election Commission won’t appeal a federal court decision reviving an enforcement complaint against conservative nonprofit groups that refused to disclose their donors.
Officials said the FEC commissioners deadlocked 3-3 along party lines in a vote behind closed doors on whether to appeal last month’s decision by Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia.
The ruling came in a case filed by the liberal nonprofit group Citizens for Responsibility and Ethics in Washington (CREW), which challenged the FEC’s dismissal of an enforcement action against the conservative groups American Action Network (AAN) and Americans for Job Security (AJS) (Citizens for Responsibility and Ethics in Washington v. FEC, D.D.C., No. 14-cv-1419, memorandum opinion 9/19/16) (4347 Money & Politics Report, 9/20/16<http://news.bna.com/mpdm/display/link_res.adp?fedfid=98252092&fname=a0k1k7k4c9&vname=mpebulallissues>).
The conservative groups have spent millions on political ads favoring Republicans since 2010 without disclosing any of their donors. CREW charged that the groups violated FEC rules requiring any organization with a “major purpose” of influencing elections to register with the FEC and report its donors.
The deadlocked vote on whether to appeal Cooper’s ruling was expected because Republican and Democratic FEC commissioners have been deeply divided over how to handle disclosure issues. The result raises a major question, however, about how the FEC will resolve the enforcement matters involving the conservative groups.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


“The Hacker Behind The New Clinton Leaks Denies That He Made Stuff Up”<http://electionlawblog.org/?p=87146>
Posted on October 4, 2016 5:37 pm<http://electionlawblog.org/?p=87146> by Rick Hasen<http://electionlawblog.org/?author=3>

BuzzFeed:<https://www.buzzfeed.com/sheerafrenkel/the-hacker-behind-the-new-clinton-leaks-denies-that-he-made?utm_term=.vhaMzK7AM#.buDz5bnwz>

Despite the many questions raised over new documents allegedly leaked from the servers of Democratic presidential nominee Hillary Clinton, the hacker known as “Guccifer 2.0” continued to insist Tuesday that the documents were real, and that they were a small preview of much more to come.

In a private chat with BuzzFeed News, Guccifer 2.0 wrote that “all files are authentic” and that they came from the Clinton Foundation’s private server. When asked about the widespread speculation that the documents weren’t legitimate and a statement by the Clinton Foundation that “none of the folders or files shown are from the Clinton Foundation,” Guccifer 2.0 appeared to double down, writing: “is it possible that some ppl r trying to divert attention from my release by spreading false accusations?”…

Yet Guccifer 2.0 refused to answer questions of when the Clinton Foundation servers were hacked, or how the hack was accomplished. Guccifer 2.0 also refused to answer why the documents — which mostly contained donor information — seem to imply some connection between donations to the Clinton Foundation and the receipt of federal funds through the TARP program, which were largely distributed during the administration of George W. Bush. Also left unanswered: why many of the individuals who appear as donors in the documents are not listed as donors in the foundation’s public disclosures.

Some observers speculated that the files came from the Democratic Congressional Campaign Committee (DCCC), which was itself hacked<https://www.buzzfeed.com/salvadorhernandez/fbi-investigating-another-suspected-hack-on-democrats> earlier this year. “Given the Russians’ long track record of faking the origin and doctoring the content of documents acquired through cyber attacks, the Committee is working to determine if these were stolen from our network,” Meredith Kelly, DCCC National Press Secretary, told BuzzFeed News….

In previous chats with BuzzFeed News, the Guccifer 2.0 account appeared to type in nearly-fluent English. On Tuesday, however, the account only used short replies — often with emojis — and in broken English.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“What is a Plutocracy?”<http://electionlawblog.org/?p=87144>
Posted on October 4, 2016 5:28 pm<http://electionlawblog.org/?p=87144> by Rick Hasen<http://electionlawblog.org/?author=3>

Daily Dot<http://www.dailydot.com/layer8/plutocracy-explained/> reports.


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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Trump Used Foundation Funds for 2016 Run, Filings Suggest”<http://electionlawblog.org/?p=87142>
Posted on October 4, 2016 5:23 pm<http://electionlawblog.org/?p=87142> by Rick Hasen<http://electionlawblog.org/?author=3>

Real Clear Politics:<http://www.realclearpolitics.com/articles/2016/10/04/trump_used_foundation_funds_for_2016_run_filings_suggest.html>

That check is one of at least several donations to suggest Trump used his private foundation, funded by outside donors, to launch and fuel his political ambitions. Such contributions, if they were made solely for Trump’s benefit, could violate federal self-dealing laws for private foundations.

From 2011 through 2014, Trump harnessed his eponymous foundation to send at least $286,000 to influential conservative or policy groups, a RealClearPolitics review of the foundation’s tax filings found. In many cases, this flow of money corresponded to prime speaking slots or endorsements that aided Trump as he sought to recast himself as a plausible Republican candidate for president.

Although sources familiar with the thinking behind the donations cautioned that Trump did not explicitly ask for favors in return for the money, they said the contributions were part of a deliberate effort by Trump to ingratiate himself with influential conservatives and brighten his political prospects.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, tax law and election law<http://electionlawblog.org/?cat=22>


County, Investigating Voter Fraud, Will Bar “I Voted” Stickers Because of Fear of Vote Buying<http://electionlawblog.org/?p=87140>
Posted on October 4, 2016 5:14 pm<http://electionlawblog.org/?p=87140> by Rick Hasen<http://electionlawblog.org/?author=3>

This is weird:<http://capitolfax.com/2016/10/04/kankakee-states-attorney-opens-voter-fraud-investigation-in-rep-cloonen-race/>

The Kankakee County State’s Attorney’s Office has opened an investigation into voter fraud. This unprecedented action was taken in response to reports of individuals from Chicago offering gifts to potential voters in exchange for a vote for Kate Cloonen, Hillary Clinton and others. Our office takes seriously the obligation to protect the rights of citizens to vote for the candidate of their choice, and to do so without undue influence from special interest groups. The investigation will also focus on the authenticity of vote by mail requests. Several applications have been filed with the election authority that appear to be fraudulently executed. These documents were also filed by people who are not voters in Kankakee County.

As a result of the information we currently have, and in an effort to end the ongoing practices aimed at illegally gaining a victory for specific candidates changes have been made to the processes. Effective immediately no “I voted” stickers will be issued to voters. This will end the practice of vote purchasers using the stickers as proof of voting. A register has been created to keep track of all individuals dropping off “vote by mail” applications so that contact information is available if questions arise regarding any applications.

Unlike a ballot selfie, an “I Voted” sticker does not prove how someone voted.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>


“Democrats sue Florida over vote-by-mail verification”<http://electionlawblog.org/?p=87138>
Posted on October 4, 2016 5:09 pm<http://electionlawblog.org/?p=87138> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<http://www.politico.com/states/florida/story/2016/10/democrats-sue-florida-over-vote-by-mail-verification-106031>

Democrats are suing Florida’s top election official in federal court to stop the practice of election officials tossing vote by mail ballots if the signature on the ballot envelope does not match the one on file.

The lawsuit <http://www.politico.com/states/f/?id=00000157-8c74-d51f-adf7-ae7592a00000> was filed in the U.S. District Court for the Northern District of Florida by the Florida Democratic Party and the Democratic National Committee. The listed defendant is Secretary of State Ken Detzner, who oversee state elections.


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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>


“How A Bank Error Led to the Throwing Out of an Election”<http://electionlawblog.org/?p=87136>
Posted on October 4, 2016 5:06 pm<http://electionlawblog.org/?p=87136> by Rick Hasen<http://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/how-bank-error-led-throwing-out-election>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Election Systems Class Action Says Voting Machines Can Be Manipulated”<http://electionlawblog.org/?p=87134>
Posted on October 4, 2016 5:02 pm<http://electionlawblog.org/?p=87134> by Rick Hasen<http://electionlawblog.org/?author=3>

Top Class Actions:<https://topclassactions.com/lawsuit-settlements/lawsuit-news/345701-election-systems-class-action-says-voting-machines-can-manipulated/?utm_medium=email&utm_campaign=103%20Newsletter&utm_content=103%20Newsletter+CID_3a799394be84ff671a06d702ac750099&utm_source=Campaign%20Monitor&utm_term=Link%20httpstopclassactionscomlawsuit-settlementslawsuit-news345701-election-systems-class-action-says-voting-machines-can-manipulated>

A company that sells vote counting machines is facing a class action lawsuit that alleges its voting systems are subject to unnecessary monitoring and vulnerable to manipulation.

Plaintiff Anthony I. Provitola filed the election class action lawsuit on Monday, claiming that this vulnerability in the voting system sold by Election Systems & Sofware LLC may put the outcome of the 2016 election at risk.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>


“See The Amazing Campaign Contortionists Twist The Finance Rules”<http://electionlawblog.org/?p=87131>
Posted on October 4, 2016 4:58 pm<http://electionlawblog.org/?p=87131> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumenthal<http://www.huffingtonpost.com/entry/campaign-finance-clinton-trump-bush-rubio_us_57f2c63be4b0d0e1a9a9360c> for HuffPo describes the deregulatory spiral.


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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“The Texas Voter ID Fight Keeps Getting Weirder”<http://electionlawblog.org/?p=87129>
Posted on October 4, 2016 4:54 pm<http://electionlawblog.org/?p=87129> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg Businessweek:<http://www.bloomberg.com/politics/articles/2016-09-29/texas-voter-id-fight-keeps-getting-weirder>

On Sept. 20, the federal district judge who oversaw the August agreement denied a plea<https://www.brennancenter.org/sites/default/files/legal-work/2016.09.07_Private-Plaintiffs-Mtn-Further-Relief.pdf>from the NAACP, the League of United Latin American Citizens, and Dallas and Hidalgo counties claiming Harris County clerk Stan Stanart and Texas Attorney General Ken Paxton were effectively intimidating voters by publicly suggesting<http://www.houstonpress.com/news/harris-county-clerk-will-vet-voters-who-claim-to-lack-photo-id-8704744> that people who filed affidavits could be criminally prosecuted if it turned out they’d been issued driver’s licenses or other IDs in the past. “If you sign that affidavit and you lie about not being able to get a photo ID, you can be prosecuted for perjury,” Paxton told Fox News on Aug. 18.

The judge’s ruling was a victory for Stanart, an active member of the state Republican Party whose campaign website touts him as “the proven conservative leader.” Harris County, which covers Houston, is the biggest in Texas and third-largest in the U.S., with a population the size of Kentucky. Early voting in Texas starts on Oct. 24.

Stanart says he’s already compared lists of registered voters against state driver’s license records so that his staff will be prepared to spot any affidavits filed by people who should have had appropriate ID. “If we suspect that they’re doing it intentionally and doing it for fraudulent purposes, I’m going to be inclined to turn them over to the DA,” says Stanart, who worked in the county tax office before he was elected county clerk in 2010. “We will have chaos if we don’t have people that are willing to follow the law.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


“Progress Report on the Presidential Commission on Election Administration”<http://electionlawblog.org/?p=87126>
Posted on October 4, 2016 4:49 pm<http://electionlawblog.org/?p=87126> by Rick Hasen<http://electionlawblog.org/?author=3>

Democracy Fund:<http://www.democracyfund.org/publications/progress-report-on-the-presidential-commission-on-election-administration>

The United States’ electoral system has always been imperfect — a work in progress. And yet the health of our democracy depends on the quality of our elections. All over the country, we entrust local officials to run elections as smoothly as possible. In fact, we depend on these officials to oversee more than 8,000 election jurisdictions nationwide — verifying the eligibility of voters, designing the ballots, and counting the votes.

The decentralized administration of elections means there are always new challenges to be addressed and new opportunities for improvement. It is for this reason that the Presidential Commission on Election Administration (PCEA) was established by an Executive Order on March 28, 2013, with the goal of confronting problems and institutionalizing processes that allow for improvement.

After an extensive six-month inquiry, the bipartisan PCEA, comprised of experts and practitioners, issued The American Voting Experience<https://www.supportthevoter.gov/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf> report, which stated: “the problems hindering efficient administration of elections are both identifiable and solvable.” In the report, members of the PCEA unanimously agreed on a set of best practices and recommendations they hoped would focus institutional energy on a select number of important policy changes, while spawning experimentation among the thousands of local officials who shared similar concerns.

Our new report<http://www.democracyfund.org/publications/progress-report-on-the-presidential-commission-on-election-administration> highlights the progress made in several areas since the PCEA recommendations were released, notably in the areas of voter registration, access to voting, polling place management, and voting technology.

MORE from the press release:

A bipartisan effort to shorten voting lines and improve how elections are administered has yielded major progress in both red and blue states, according to a report released today<http://bit.ly/PCEAProgress> by the Democracy Fund. The Presidential Commission on Election Administration (PCEA) was established by Executive Order in 2013 to identify best practices in election administration and improve the voting experience. President Obama named his former White House Counsel Bob Bauer, and Ben Ginsberg, National Counsel to Mitt Romney’s Presidential Campaign, to identify problems and present potential solutions for future elections.

“The work being done around the country to implement the bipartisan recommendations of the Presidential Commission on Election Administration are a true sign of what is possible when people work together to solve problems,” said Adam Ambrogi, the Director of the Democracy Fund’s Elections Program. “We applaud the election administrators from both political parties who have adopted these recommendations to reduce lines at the polls, expand early voting, and make it easier to register to vote.”

The PCEA first released a report on best practices and recommendations to modernize the American electoral system over two years ago—including recommendations to increase access to online voter registration, expand early and absentee voting, modernize voting machines, and promote best practices for election administrators and states to follow. The Democracy Fund believes there is value in continuing to measure its progress and promote bipartisan reforms in the future.

After interviewing dozens of state and national election officials, the Democracy Fund uncovered the following progress on the PCEA’s recommendations. Officials say the PCEA has helped:
·         Double the number of states that have approved online voter registration to 38, plus the District of Columbia.
·         Expand the number of states that share information with each other and perform outreach to eligible but unregistered voters, such as the ERIC program, to 21 states, plus the District of Columbia.
·         Introduce or increase early voting in five states—including a new ten-day early vote program in Massachusetts and a new two-week early vote program in Rhode Island. There are still 13 states in which early voting is not available. As more information becomes available, early voting is likely to take root in these remaining states.
·         Spur recommendations for improving the voting process for military and Americans abroad that are now being considered by multiple states.
·         Reveal factors contributing to lengthy polling place wait times for voters in over a dozen jurisdictions.

Innovative state programs that have come out of the PCEA report include:
·         In Ohio, Secretary of State Jon Husted is tackling wait times to vote, and now requires that counties provide detailed plans for mitigating wait times in any polling place that did not meet the PCEA 30-minute wait time standard in the 2012 general election.
·         In Chicago, the Chicago Lawyers Committee for Civil Rights Under Law and Chicago Board of Elections partnered to recruit and manage a corps of community and four-year college students from Cook County schools to work the polls on Election Day. The wildly successful program increased bilingual support for voters, reduced transmission times, and resulted in higher civic participation among students. Similar programs have now been adopted in Rhode Island and California.
·         Alabama passed a bill allowing officials to use ePollbooks in polling places, incorporating new technology to make the check-in process easy for voters and for poll workers. Alabama Secretary of State John Merrill expressed the usefulness of the PCEA report in informing legislators on the value of this type of technology in the polling place.
·         New Mexico appropriated $12 million for the purchase of new voting equipment for each of New Mexico’s 33 counties. Voters began casting ballots on the new equipment in the November 2014 election. The improvement was essential—before the switch, Bernalillo County Clerk Maggie Toulouse Oliver reported a high failure rate for memory cards.

“At a time when the issue of cyber security is all over the news, it’s important to note that across the country election administrators are doing the work to make our voting easy, secure, and effective for eligible voters,” saidJoe Goldman, President of the Democracy Fund. “Electronic voting machines aren’t run via the internet—they’re run by our hardworking election officials. So much of this fear mongering we’ve seen in recent weeks is more about headlines than reality.”

Both elections officials and advocates interviewed by the Democracy Fund report that the PCEA was very useful in defining policy agendas and advancing pro-voter initiatives. While we know that there will be hitches in the 2016 election process, the right question to ask in those places is: Did they take PCEA seriously? As the 2016 presidential election fast approaches, the Democracy Fund recommends further action as a result of this report—including a challenge to all jurisdictions to quickly adopt PCEA recommendations that have increased voting access in so many states.
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Posted in election administration<http://electionlawblog.org/?cat=18>, PCEA (Bauer-Ginsberg Commission)<http://electionlawblog.org/?cat=79>


“Want to be a ‘foreign agent’? Serve in US Congress first”<http://electionlawblog.org/?p=87124>
Posted on October 4, 2016 4:43 pm<http://electionlawblog.org/?p=87124> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports.<http://www.politico.eu/article/want-to-be-a-foreign-agent-serve-in-us-congress-first/>


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Posted in lobbying<http://electionlawblog.org/?cat=28>


Are You One of the Millions Suffering from Electoral Dysfunction?<http://electionlawblog.org/?p=87122>
Posted on October 4, 2016 4:33 pm<http://electionlawblog.org/?p=87122> by Rick Hasen<http://electionlawblog.org/?author=3>

Watch.<https://www.facebook.com/SeePolitical/videos/1244148132293564/>
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Posted in election law "humor"<http://electionlawblog.org/?cat=52>


“New Year, Same Story: 2016 CPA-Zicklin Index Chills Speech”<http://electionlawblog.org/?p=87120>
Posted on October 4, 2016 4:27 pm<http://electionlawblog.org/?p=87120> by Rick Hasen<http://electionlawblog.org/?author=3>

CCP statement.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


WI Prosecutors’ Statement on #JohnDoe Cert Denial<http://electionlawblog.org/?p=87118>
Posted on October 4, 2016 4:26 pm<http://electionlawblog.org/?p=87118> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<https://twitter.com/SJohnsonWPR/status/782995450043305984>

What a shame.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>, Supreme Court<http://electionlawblog.org/?cat=29>


“Appeals Court Overrules Proof-Of-Citizenship Voting Requirement in Three States”<http://electionlawblog.org/?p=87116>
Posted on October 4, 2016 4:20 pm<http://electionlawblog.org/?p=87116> by Rick Hasen<http://electionlawblog.org/?author=3>

Kendrick Burns blogs<http://knowledgecenter.csg.org/kc/content/appeals-court-overrules-proof-citizenship-voting-requirement-three-states> for CSG.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Misunderstanding of Statistics Confounds Analyses of Criminal Justice Issues in Baltimore and Voter ID Issues in Texas and North Carolina”<http://electionlawblog.org/?p=87114>
Posted on October 4, 2016 4:19 pm<http://electionlawblog.org/?p=87114> by Rick Hasen<http://electionlawblog.org/?author=3>

James Scanlan<http://www.fed-soc.org/blog/detail/misunderstanding-of-statistics-confounds-analyses-of-criminal-justice-issues-in-baltimore-and-voter-id-issues-in-texas-and-north-carolina> at Fed Soc blog:

I have written here before, most recently in “Things the President Doesn’t Know About Racial Disparities<http://www.fed-soc.org/blog/detail/things-the-president-doesnt-know-about-racial-disparities>”  (Aug. 5, 2016), about the way the federal government, including the President, base many civil rights law enforcement policies on an understanding of statistics that is the exact opposite of reality. In particular, policies involving fair lending, school discipline, and criminal justice are based on the belief that relaxing standards or otherwise reducing the frequency of adverse outcomes will tend to reduce (a) percentage differences in rates of experiencing the outcomes and (b) the proportion racial minorities and other disadvantaged groups make up of persons experiencing the outcomes. In fact, however, reducing the frequency of an outcome tends to increase both (a) and (b).

I illustrate the pertinent statistical pattern by showing how lowering a test cutoff, while tending to reduce percentage differences in pass rates, tends to increase percentage differences in failure rates. Lowering a cutoff will also tend to increase the proportion the lower-scoring group makes up of both persons who pass the test and persons who fail the test.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>


“Behind Donald Trump’s calls for his supporters to monitor the polls in November”<http://electionlawblog.org/?p=87112>
Posted on October 4, 2016 4:15 pm<http://electionlawblog.org/?p=87112> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports.<https://www.washingtonpost.com/news/the-fix/wp/2016/10/03/behind-donald-trumps-calls-for-his-supporters-to-monitor-the-polls-in-november/>


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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Voter suppression’s last stand: North Carolina’s new Jim Crow counties”<http://electionlawblog.org/?p=87110>
Posted on October 4, 2016 4:11 pm<http://electionlawblog.org/?p=87110> by Rick Hasen<http://electionlawblog.org/?author=3>

Insightus:<http://insight-us.org/fair-places-2016-pt-1.html>

In the wake of a federal court decision overturning North Carolina’s “monster voter suppression law,” the NC-GOP’s executive director issued a call for “party-line changes to early voting” by the state’s Republican-controlled county boards of elections.

Our review of the state’s early voting plan for this year finds that many boards did just the opposite. Still, a defiant band of renegades – the state’s New Jim Crow counties – did answer that call with cuts disproportionately falling on minority voters and promising election day chaos. But voting rights advocates are fighting back.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“DMV retraining workers on voter ID”<http://electionlawblog.org/?p=87106>
Posted on October 4, 2016 4:05 pm<http://electionlawblog.org/?p=87106> by Rick Hasen<http://electionlawblog.org/?author=3>

Patrick Marley<http://www.jsonline.com/story/news/politics/elections/2016/10/04/dmv-retraining-workers-voter-id/91547688/>:

The Division of Motor Vehicles began retraining hundreds of workers Tuesday in response to reports they had given incomplete or inaccurate information at stations around the state.

“We still have plenty of time to right any wrongs that may have occurred,” DMV Administrator Kristina Boardman told reporters.

Molly McGrath<https://twitter.com/votermolly/status/783375407101808640> of VoteRiders on DMV request for their recording of DMV workers giving wrong instructions: “Here is first and only request I received from the state. 21 minutes before the hearing. 5 days after the news broke. They will get by eod”

Full transcript <https://drive.google.com/file/d/0B8LurBVUNQZfRlRDY2thckMwOFk/view> of DMV interactions.


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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“US Supreme Court rejects John Doe appeal”<http://electionlawblog.org/?p=87104>
Posted on October 4, 2016 3:56 pm<http://electionlawblog.org/?p=87104> by Rick Hasen<http://electionlawblog.org/?author=3>

Wisconsin State Journal:<http://host.madison.com/wsj/news/local/govt-and-politics/us-supreme-court-rejects-john-doe-appeal/article_12186a27-1c78-5dfe-93e4-7e2d8a03da54.html>

The U.S. Supreme Court on Monday rejected an appeal by three Democratic district attorneys seeking to revive a criminal investigation into Gov. Scott Walker’s recall campaign — effectively ending the legal wrangling over the four-year-old probe.

The decision marks a major victory for Walker and his Republican allies, who mounted a vigorous challenge to the secretive, so-called John Doe II investigation that involved investigators issuing dozens of subpoenas and seizing equipment and millions of documents from those under investigation.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>, Supreme Court<http://electionlawblog.org/?cat=29>


“One Wisconsin Institute Seeks Suspension of Voter ID Law as Evidence Shows Rampant Problems in Implementation of New Voter ID Rules”<http://electionlawblog.org/?p=87101>
Posted on October 4, 2016 3:47 pm<http://electionlawblog.org/?p=87101> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://onewisconsinnow.org/institute/press/one-wisconsin-institute-seeks-suspension-of-voter-id-law-as-evidence-shows-rampant-problems-in-implementation-of-new-voter-id-rules/>:

Recent media reporting on Gov. Scott Walker<http://onewisconsinnow.org/scottwalker/>’s administration violating federal Judge James Peterson’s order in One Wisconsin Institute, et. al. v. Thomsen has spurred the plaintiffs to seek a suspension of the state voter ID law. Audio recording provided to the court and reported on by the Milwaukee Journal Sentinel<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.jsonline.com_story_news_politics_elections_2016_10_03_dmv-2Dworkers-2D6-2Dmore-2Dstations-2Dgive-2Dwrong-2Dvoter-2Did-2Dinfo_91461338_&d=DQMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=REKL9G0LNjaPMV_EEHSiMWzic-yWzX5fviazMvZ-pac&m=BXXekaYCE-LuUFVDJbeYaNXBODodbrLAhjZdhd3BJBo&s=ixF57_DTuT3VafLGk3vRgcoH-AL9k2nTrRId2ssRa-Q&e=> reveal numerous instances of false or misleading information being given out at DMV locations around the state.

“Gov. Walker doesn’t get to pick which laws or which court orders he follows,” commented One Wisconsin Institute Executive Director Scot Ross. “The judge was clear in his ruling and this new evidence shows Gov. Walker and his administration are not following their own rules and they are not complying with the federal court order on the voter ID law,”

A link to the filing is available here.<https://drive.google.com/open?id=0B8LurBVUNQZfZjZIdi1IWERQbmM>

In their filing, One Wisconsin Institute provided transcripts of multiple visits to the DMV, some by voters seeking ID. In most cases, DMV employees provided inaccurate information that was inconsistent with how the state claimed the ID petition process should work. In addition, the filing shows roughly one-third of people whose petitions were denied have not received an ID to which they were entitled because they have moved and the state has made little effort to locate them. Finally, the Institute filing cites a lack of outreach by the state to inform people about the ID petition process, and in fact, the state has spent no additional money to advertise the process in response to a previous court order requiring that they notify the public.

The latest reports of bureaucratic malfeasance at the state DMV are not the first when it comes to the state voter ID law. In 2011, immediately after the Republican controlled legislature and Gov. Walker rushed to pass the requirement, it was revealed that a top official at the Department of Transportation directed employees to not volunteer that free IDs were available to low income individuals<http://archive.jsonline.com/news/statepolitics/129400013.html>.

Ross noted that evidence presented over the course of the two-week court trial held in May, gives no reason to trust that the Walker administration would fairly administer the voter ID law. Testimony from a Republican insider revealed that, in their private deliberations, GOP state Senators were “giddy” over the prospects of passing a voter ID law they believed would discourage voting and help them win elections. The witness, under oath, testified that current Republican Senate President Mary Lazich urged her colleagues to consider the impact of voter ID on areas of the state that have overwhelmingly supported Democratic candidates, including the City of Milwaukee and the state’s college campuses.
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Trump and Election Protection in 2016”<http://electionlawblog.org/?p=87099>
Posted on October 4, 2016 3:42 pm<http://electionlawblog.org/?p=87099> by Rick Hasen<http://electionlawblog.org/?author=3>

Bauer:<http://www.moresoftmoneyhardlaw.com/2016/10/election-protection-2016/>

Donald Trump has urged his supporters<https://www.washingtonpost.com/news/post-politics/wp/2016/10/01/trump-urges-supporters-to-monitor-polling-places-in-certain-areas/> to check closely for fraud and irregularities at the polling places. He wants them to make sure the voting is on the “up and up,” and he implies that there is a reason it might not be: he believes that there is a “big, big problem” which apparently “nobody has the guts to talk about.”

Rick Hasen, among others, has criticized Trump<http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html> for claiming the widespread existence of a problem—impersonation voting fraud—which in fact occurs with extreme infrequency, and he worries that Trump supporters’ response to the demand that they somehow solve this “big, big problem” may intimidate voters, deterring some from exercising their right to vote. Hasen’s concern is fully justified.

This is not to suggest Trump or any other candidate should not expect, or should not do what he or she can, to help bring about an orderly election in which the rules, including the eligibility rules, are followed. There are any number of defensible “protect the vote” programs that his or any campaign, or political party, might put in place. But normally, the campaign or party defines the problem with precision, trains observers, and deploys lawyers to go about the task capably and responsibly. Instead Trump seems intent on issuing a alarm that any supporter can interpret as he or she wishes. The choice for Trump is not between measures to protect the vote and none at all, but between a genuine,competently structured program of voter protection and a wild political swing. That he chose the latter is deeply unfair to the voters.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Just 31, Not 1000+, Non-Citizen Voters Shown to Have Voted in Virginia over Last Ten Years<http://electionlawblog.org/?p=87096>
Posted on October 4, 2016 3:37 pm<http://electionlawblog.org/?p=87096> by Rick Hasen<http://electionlawblog.org/?author=3>

Over the weekend, Drudge<https://twitter.com/rickhasen/status/782675917285896192> had a headline stating: “Report: 1,000+ Illegal Voters in Virginia.”  And Dan Sciavino, Jr. tweeted<https://twitter.com/i/web/status/782883808613896192>: “Terrible. We know who the 1,000+ illegal aliens ARE NOT VOTING FOR! A fixed presidential election in the making….will we ever know!?!?”

But if you look at the underlying report,<https://publicinterestlegal.org/files/Report_Alien-Invasion-in-Virginia.pdf> they have identified only 31 actual non-citizen voters in Virginia over the last 10 years. No doubt there are some more, as not all the counties have responded yet. But it is not 1,000 plus non-citizens voting in Va.  (“In the 8 jurisdictions that provided us with lists of aliens recently removed from their voter rolls, we discovered that 31 non-citizens had cast a total of 186 votes between 2005 and 2015. The most alien votes were cast in 2012 followed by 2008, the year President Obama was elected to his first term.” (emphasis omitted))

Don’t believe all the hype.  Non-citizen voting is a real, but pretty small, problem (because the penalties are high and the payoff low).  We should still deal with the problem with universal voter registration conducted by the federal government and national voter id with optional thumb print, as I argued in my 2012 book, The Voting Wars.

But don’t expect non-citizens to steal the presidential election.
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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>, voter id<http://electionlawblog.org/?cat=9>


“Election board: Article alleging voter fraud is fake”<http://electionlawblog.org/?p=87094>
Posted on October 4, 2016 3:23 pm<http://electionlawblog.org/?p=87094> by Rick Hasen<http://electionlawblog.org/?author=3>

Columbus Disptach:<http://www.dispatch.com/content/blogs/the-daily-briefing/2016/10/fake-story.html>

An article posted on the Christian Times website stated that a Columbus electrical worker found a dozen sealed ballot boxes filled with thousands of ballots for the Nov. 8 election. The ballots contained votes for Hillary Clinton and other Democratic candidates, the report stated.

The Board of Elections investigated, and said it was fake.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Money in Politics: How Far Does the Egalitarian Position Go?<http://electionlawblog.org/?p=87091>
Posted on October 4, 2016 12:22 pm<http://electionlawblog.org/?p=87091> by Richard Pildes<http://electionlawblog.org/?author=7>

Cross-posted from Balkinization:

Egalitarian arguments in the US for regulating campaign spending almost always stop at regulating money in the context of elections.  But why don’t the same arguments also extend to regulating spending in the context of public debate more generally?  That is, if the leading issues of the day are health-care or environmental policy, does the egalitarian view on money in democracy lead to the conclusion that government ought to be able to cap the amount any particular individual or entity can spend to try to influence the public on climate change, or Obamacare, or anything else?  Why should the egalitarian argument for limiting spending on elections stop at elections – doesn’t that argument logically extend to limiting spending on public debate more generally?  Does democratic equality matter only in elections and why should it not matter more generally?

The narrower and much criticized anti-corruption justification for campaign-finance regulation has an answer to these questions.  Only candidates for office can be corrupted.  Even if we reject Buckley v. Valeo’s distinction between contributions and expenditures and take the view that both can corrupt candidates, it still is a candidate for office whose corruption we are concerned about.  But in the context of general public debate, the public cannot be “corrupted” in the same sense by money spent to influence views –there is no quid pro quo, even on the most expansive definition, possible between the undifferentiated public and those actors who might spend money on policy ads for or against certain issues.  Thus, limiting regulation to the election context makes sense on the corruption rationale because only in elections are there candidates who can be corrupted.

But if you accept the egalitarian rationale, then the reasons for distinguishing between elections and public debate more generally becomes more difficult to understand as a matter of principle.  I raise this question in part because many European systems that regulate spending in elections do also regulate spending on public debate more generally, although this fact is not, I believe, widely known.  For example, many European countries impose bans on “paid political advertising” on television and radio altogether.  The specifics of these bans vary.  In the UK, the ban applies to any ad “directed toward a political end” or on behalf of an entity that is mainly a “political” entity.  When governments justify these bans on paid political advertising – which, again, apply at any time, whether or not an election is pending – they make virtually the same arguments about “distortion” and “equality” that egalitarian campaign finance reformers in the United States make.

Thus, the U.K. Parliament argued in court that the ban was necessary to “avoid the unacceptable risk that the political debate would be distorted in favor of deep pockets funding advertising in the most potent and expensive media.”  Asserting that the objective of the law was to “enhance the public debate,” the U.K. asserted that “[u]nregulated broadcasting of paid political advertisements would turn democratic influence into a commodity which would undermine impartiality in broadcasting and the democratic process.”  Switzerland, defending a similar ban on broadcast political ads in another case, similarly asserted the ban was “aimed at enabling formation of public opinion protected from the pressures of powerful financial groups, while at the same time promoting equal opportunities for the different components of society.”  Similarly, Norway argued that its ban was “aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to avoid that those who were well endowed obtained an undesirable advantage through the possibility of using the most potent and pervasive medium.”

Those challenging the bans on political ads in these cases, all which were decided by the European Court of Human Rights (ECHR), were small animal-rights groups or minor political parties.  For present purposes, let’s leave aside the specific outcomes; the ECHR first tried to carve out exceptions for certain groups, then more recently upheld the power of countries to ban paid political ads, despite the First Amendment-like provisions in the European Convention on Human Rights.   As a matter of principle, what do campaign finance egalitarians believe about whether there is any reason that the egalitarian argument should not be extended to limiting spending on public debate more generally?  I cover these cases on bans regarding paid political advertising, and others from the ECHR involving the structure of democracy, in this recently posted essay, Supranational Courts and the Law of Democracy:  The European Court of Human Rights.<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2838967>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Why Trump wants his supporters to monitor the polls in ‘certain areas'”<http://electionlawblog.org/?p=87089>
Posted on October 2, 2016 3:45 pm<http://electionlawblog.org/?p=87089> by Rick Hasen<http://electionlawblog.org/?author=3>

The Christian Science Monitor:<http://www.csmonitor.com/USA/Politics/2016/1002/Why-Trump-wants-his-supporters-to-monitor-the-polls-in-certain-areas>

But Trump appears to have encouraged crowds in rural Pennsylvania this weekend to become polling station watchdogs. But he didn’t elaborate on what they should watch for, only that they should “watch carefully<https://www.washingtonpost.com/news/post-politics/wp/2016/10/01/trump-urges-supporters-to-monitor-polling-places-in-certain-areas/>, because we’re going to win the state of Pennsylvania,” according to The Washington Post.

In August, Trump repeatedly said that without tougher voter ID laws like the one a federal appeals court struck down in North Carolina because they found it discriminatory, voters could vote 10 or 15 times<http://www.politifact.com/truth-o-meter/statements/2016/aug/15/donald-trump/donald-trumps-baseless-claims-about-election-being/> for his opponent, a claim Politifact, a project that fact-checks political statements, labeled “pants on fire.”

He has also claimed dead voters handed President Obama the 2012 election, and suggested undocumented immigrants “just walk in and vote” in some polling places.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“How Hostile Poll-Watchers Could Hand Pennsylvania to Trump”<http://electionlawblog.org/?p=87087>
Posted on October 2, 2016 3:41 pm<http://electionlawblog.org/?p=87087> by Rick Hasen<http://electionlawblog.org/?author=3>

Erick Trickey<http://www.politico.com/magazine/story/2016/09/2016-election-pennsylvania-polls-voters-trump-clinton-214297> for Politico Magazine.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“A million Ohio voters didn’t get absentee ballot mailing”<http://electionlawblog.org/?p=87085>
Posted on October 2, 2016 2:49 pm<http://electionlawblog.org/?p=87085> by Rick Hasen<http://electionlawblog.org/?author=3>

Columbus Dispatch:<http://www.dispatch.com/content/stories/local/2016/10/02/1-a-million-ohio-voters-didnt-get-absentee-ballot-mailing.html>

The news release said, “Ohio Secretary of State Jon Husted today announced his office will begin mailing absentee ballot applications to voters statewide this weekend.”

What it didn’t say was that more than a million of Ohio’s 7.7 million registered voters wouldn’t get the mailing, because Husted’s office had pared the list beforehand.
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Posted in election administration<http://electionlawblog.org/?cat=18>


Doonesbury Tackles Voter Identification Fraud/Jim Crow<http://electionlawblog.org/?p=87083>
Posted on October 2, 2016 12:52 pm<http://electionlawblog.org/?p=87083> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<http://doonesbury.washingtonpost.com/strip/archive/2016/10/02>
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Don’t Point to Voter Registration Fraud, or Absentee Ballot Fraud, to Defend Trump’s Irresponsible Vote-Rigging Claims<http://electionlawblog.org/?p=87081>
Posted on October 2, 2016 12:14 pm<http://electionlawblog.org/?p=87081> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday I posted Trump’s Irresponsible Vote-Rigging Statements Literally Putting Our Democracy at Risk<http://electionlawblog.org/?p=87068>, in which I argued that Trump is undermining our faith in democracy itself by making irresponsible claims the election could be rigged through voter impersonation fraud and urging his followers, untrained to go to polls in “certain areas” to ferret out voter fraud.

In response to these claims, some have pointed to real instances of some kinds of fraud, as if this justifies Tump’s irresponsible claims. It does not.

As I wrote in response to such an argument on the election law listserv, in response to a claim that I deny the existence of voter fraud and am just trying to label Trump supporters as deporable, I wrote something along the lines of the following:

I never say voter fraud is non existent. In fact it happens occasionally with absentee ballots and I’ve long said we need more action to stop it. I’ve also said we need to clean up voter registration rolls to stop registration fraud. What is extremely rare and has not affected any election we know of since the 1980s is impersonation fraud, the kind of fraud state voter ID laws are meant to stop. See my 2012 book, The Voting Wars. <https://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300198248>

As far as the stories showing voter registration Fraud or absentee voting fraud, I have linked to other stories on most of these controversies, including a story pointing out that, despite the claims of True the Vote, the cascade mall shooter was a citizen when he vote<http://electionlawblog.org/?p=87028>d.

More to the point, Trump’s claims involve only impersonation fraud.  Here’s what I wrote on that inan LA Times oped:<http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html>

Trump contends that without strict voter identification laws, people can vote five, 10 or 15 times. He’s offered no evidence to back up this assertion, and for good reason. Even in states with modest means of identifying voters, such as comparing voters’ signatures in the poll ledger and on registration forms, there are safeguards to ensure against multiple voting.

In recent memory, the only publicized case<http://archive.jsonline.com/news/crime/shorewood-man-sentenced-to-jail-for-multiple-votes-in-several-elections-b99677321z1-370317801.html> involving someone voting in high multiples was a supporter of Wisconsin Republican Gov. Scott Walker when Walker was up for a recall. The voter tried to vote  five times in the recall and seven more times in four other elections. He was easily caught, well before Wisconsin passed its strict voter ID law. The voter claimed amnesia; his lawyer argued he suffered from mental illness. The case shows this isn’t a problem that’s going to happen on a grand scale….

Over the weekend, Trump upped his dangerous rhetoric, suggesting that in November cheating at the polls in “certain sections of the state” would hand Pennsylvania’s electoral votes to Clinton<http://www.latimes.com/topic/politics-government/government/presidents-of-the-united-states/bill-clinton-PEPLT007410-topic.html>. Never mind that Clinton is ahead in that battleground state by about 9 percentage points<http://www.realclearpolitics.com/epolls/2016/president/pa/pennsylvania_trump_vs_clinton-5633.html>. Trump’s “certain sections” reference is a dog whistle to those who wrongly believe that urban areas such as Philadelphia, with large black populations, are sites of rampant voter fraud.

Trump’s website is also recruiting “observers”  to stop “Crooked Hillary” from “rigging this election.” What exactly these observers’ duties or training would consist of is unspecified. Fair and legal election observation is possible and even desirable, but there’s a reason most states have laws against anything that might be construed as voter intimidation near polling places.

Sad!
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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>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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949.824.3072 - office
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