[EL] ELB News and Commentary 10/11/16

Tue Oct 11 09:16:32 PDT 2016

“Kobach: Trump comments ‘pale in comparison’ to issues facing country”<http://electionlawblog.org/?p=87392>
Posted on October 11, 2016 8:58 am<http://electionlawblog.org/?p=87392> by Rick Hasen<http://electionlawblog.org/?author=3>

Bryan Lowry reports<http://www.kansas.com/news/politics-government/election/article107448292.html>:

Kobach, who made no public comments about the tape over the weekend, said he remains committed to supporting Trump. He cited issues such as border security and the national debt as the reason.

“These issues are so big that his unfortunate comments from 11 years ago really pale in comparison,” Kobach said.

Kobach, the only statewide official to endorse Trump ahead of the Kansas caucus, has advised Trump on immigration policy throughout the campaign and played a key role in adding Trump’s proposal to build a wall along the southern border to the official Republican Party platform.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Maine Gov. Paul LePage: Maybe the country needs Trump to show ‘authoritarian power'”<http://electionlawblog.org/?p=87390>
Posted on October 11, 2016 8:55 am<http://electionlawblog.org/?p=87390> by Rick Hasen<http://electionlawblog.org/?author=3>

Holy Cow.<http://www.cnn.com/2016/10/11/politics/paul-lepage-authoritarian-power/index.html>

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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Trump Cites Bogus Story From Russian Propaganda Outlet At PA Rally”<http://electionlawblog.org/?p=87388>
Posted on October 11, 2016 8:50 am<http://electionlawblog.org/?p=87388> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<http://talkingpointsmemo.com/livewire/trump-reads-erroneous-sputnik-news-article-at-rally>

Donald Trump read from an article ripped from Sputnik News, the Kremlin-backed news outfit, that misattributed quotes to a Hillary Clinton adviser to make the case at a Monday rally that her advisors thought she could have “done something” about the Benghazi attacks.

Speaking in Wilkes-Barre, Pennsylvania, Trump held an article print-out in the air and made reference to Clinton confidante Sidney Blumenthal.

“He’s now admitting they could have done something about Benghazi,’’ Trump said, as quoted by Newsweek<http://www.newsweek.com/vladimir-putin-sidney-blumenthal-hillary-clinton-donald-trump-benghazi-sputnik-508635>. “This just came out a little while ago.”

“Clinton was in charge of the State Department, and it failed to protect U.S. personnel at an American consulate in Libya. If the GOP wants to raise that as a talking point against her, it is legitimate,” Trump read from the article before dropping it on the ground dramatically.

But the words Trump was reading didn’t come from Blumenthal. Instead, he was reading a brief excerpt of an article<http://www.newsweek.com/benghazi-biopsy-comprehensive-guide-one-americas-worst-political-outrages-385853> from Newsweek’s Kurt Eichenwald, which Blumenthal had emailed to John Podesta, Clinton’s campaign chairman whose hacked emails have been published in part this week on Wikileaks.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Early Voting Could Hand Election to Hillary Clinton Well Before Nov. 8”<http://electionlawblog.org/?p=87386>
Posted on October 11, 2016 8:47 am<http://electionlawblog.org/?p=87386> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/10/12/us/politics/early-voting-registration.html?ref=politics>

Democrats are requesting more absentee ballots in Florida than they were at this point in 2012, with increases of 50 percent in the heavily Hispanic areas around Miami and Orlando. In North Carolina, where Mitt Romney built enough of a lead in early voting four years ago to edge out a victory over President Obama, Democrats are requesting mail-in ballots in larger numbers than in 2012, while Republicans’ participation is declining.

These results will have more impact than ever this year, as record numbers of people are expected to cast their votes early. So many Americans will have voted by Election Day — more than 40 percent in swing states, according to the Clinton campaign — that the winner could be known before November.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18>

How Big Money Sways Policy Even When It Isn’t Spent<http://electionlawblog.org/?p=87384>
Posted on October 11, 2016 8:42 am<http://electionlawblog.org/?p=87384> by Rick Hasen<http://electionlawblog.org/?author=3>

I made this point in Plutocrats United<https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>, and here it is in relation to opposition to the American-US Air airline merger, via ProPublica:<https://www.propublica.org/article/airline-consolidation-democratic-lobbying-antitrust>

While labor was the friendly face of the merger, Tom Horne, the former Arizona attorney general, who is now out of politics, said that he experienced an uglier side of the campaign.

Horne, a conservative Republican, invoked<http://archive.azcentral.com/opinions/articles/20130818airline-merger-price-increase-horne.html> Adam Smith’s The Wealth of Nations in explaining why he joined the Obama administration in challenging the deal. Soon after the complaint was filed, Horne says his political consultant was told by a lobbyist that $500,000 would be spent on ads against Horne in his upcoming primary if he didn’t drop the suit.

A former Horne staffer gave the same account. The case was settled before the primary campaign got underway. American Airlines and the lobbyist denied they had threatened to attack Horne.

Horne said the promised political retribution shocked him. “Nothing remotely like that ever happened before or after,” he said. “I was in statewide office for 12 years.”

When the Justice Department moved to drop the case, Horne felt he could not continue to contest the merger on his own. His office didn’t have the resources to go up against two giant companies.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, lobbying<http://electionlawblog.org/?cat=28>

“Donald Trump warns that ‘other communities’ are poised to steal the election”<http://electionlawblog.org/?p=87382>
Posted on October 11, 2016 8:34 am<http://electionlawblog.org/?p=87382> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/the-fix/wp/2016/10/11/donald-trump-warns-that-other-communities-are-poised-to-steal-the-election/>

His comments about alleged wide-scale voter fraud on Monday — comments which, we cannot emphasize frequently enough, are not supported by any evidence<https://www.washingtonpost.com/news/the-fix/wp/2016/08/03/heres-how-rare-in-person-voter-fraud-is/> — were direct in their implications. In the past, he’s said that “certain sections” of the state<https://www.washingtonpost.com/news/the-fix/wp/2016/08/12/donald-trump-says-hell-only-lose-pennsylvania-where-hes-down-9-points-is-if-cheating-goes-on/>might commit fraud to swing the results, an obvious reference to long-simmering (and long-debunked) rumors about voter fraud in Philadelphia. On Monday, he simply said it.

“So important that you get out and vote. So important that you watch other communities, because we don’t want this election stolen from us,” Trump said in Ambridge, Pa., northwest of Pittsburgh. “We don’t want this election stolen from us. We do not want this election stolen.”

Later, he spoke from Wilkes-Barre. CBS’s Sopan Deb transcribed<https://twitter.com/SopanDeb/status/785649427583213568>:

Honestly, folks, you know I went to school in Philadelphia and I love Philadelphia. I love Philadelphia and I hope we’re going to do great in Philadelphia. I went to school there. I love the school. I loved everything but I just hear such reports about Philadelphia. And we have to make sure we’re protected. We have to make sure the people of Philadelphia are protected that the vote counts are 100 percent. Everybody wants that, but I hear these horror shows. I hear these horror shows and we have to make sure that this election is not stolen from us and is not taken away from us. And everybody knows what I’m talking about.

If anybody doesn’t know what he’s talking about, we wrote about it<https://www.washingtonpost.com/news/the-fix/wp/2016/08/12/donald-trump-says-hell-only-lose-pennsylvania-where-hes-down-9-points-is-if-cheating-goes-on/> when Trump first raised the subject in August. Four years ago, a number of precincts around Philadelphia recorded no votes for Mitt Romney. The places where that happened were, in the words of the Philadelphia Inquirer “clustered in almost exclusively black sections of West and North Philadelphia” — places where most of the residents were members of one of President Obama’s most loyal voting constituencies. (Nonwhite voters in Pennsylvania prefer Hillary Clinton by 56 points<http://www.fandm.edu/uploads/files/222225192411477697-f-m-poll-release-september-2016.pdf> in a recent poll from Franklin & Marshall College.)
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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>

“Hurricanes and Voting Rights”<http://electionlawblog.org/?p=87380>
Posted on October 11, 2016 8:26 am<http://electionlawblog.org/?p=87380> by Rick Hasen<http://electionlawblog.org/?author=3>

Ned Foley <http://prawfsblawg.blogs.com/prawfsblawg/2016/10/hurricanes-and-voting-rights.html> on the murky law surrounding the Florida decision.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Lessons From Pa.’s Judicial Retirement Age Ballot Fiasco”<http://electionlawblog.org/?p=87378>
Posted on October 11, 2016 8:11 am<http://electionlawblog.org/?p=87378> by Rick Hasen<http://electionlawblog.org/?author=3>

Howard Bashman:<http://www.thelegalintelligencer.com/id=1202769603634/Lessons-From-Pas-Judicial-Retirement-Age-Ballot-Fiasco?cmp=share_twitter&slreturn=20160911110835>

s polling expert Berwood Yost of Franklin & Marshall College persuasively demonstrated in an essay that The Philadelphia Inquirer published last week, the current phrasing of the ballot question is misleading insofar as it omits that Pennsylvania’s current judicial retirement age is 70. As currently phrased, voters are likely to understand the proposed amendment as imposing a retirement age of 75 in place of no currently applicable judicial retirement age.

As Yost’s op-ed demonstrated, 64 percent of Pennsylvania voters surveyed in September preferred enacting mandatory judicial retirement at 75 years old in place of no existing limit. However, when voters were asked if the judicial retirement age should be raised to 75 from its current limit of 70, only 39 to 45 percent of voters favored the proposal….

Of course, raising the judicial retirement age would apply to all judges, not only Saylor. As a result, the five Democratic justices would also be able to serve five extra years before mandatory retirement would apply to them. Why keeping Saylor on a court that seems assured of having a large Democratic majority for Saylor’s remaining time in office is of such importance to Republican legislators is a question whose answer is far from readily apparent.

Additionally, it is a commonly accepted fact that Pennsylvania’s legislators oppose abolishing partisan judicial elections because the political parties are benefitted in various ways when judicial candidates must run in partisan elections. Once an individual becomes a judge, however, to remain in office he or she must win more than 50 percent of the vote in nonpartisan retention elections every 10 years.

Increasing Pennsylvania’s judicial retirement age is thus likely to result in fewer and less frequent partisan elections to fill open judicial seats. If the existence of partisan judicial elections in fact financially benefits political parties in Pennsylvania, it would seem that those parties would be inflicting financial harm on themselves by causing such elections to happen less frequently.

It would be truly fitting that a deceptive ballot question intended to obtain voter approval of a judicial retirement age increase by depriving voters of that very fact, spearheaded by Republican legislators with some Democratic approval, in fact cemented a Democratic majority at the Supreme Court of Pennsylvania for many more years and financially harmed both political parties.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>, judicial elections<http://electionlawblog.org/?cat=19>

“When questioned, Bayh camp failed to reveal Apollo meetings”<http://electionlawblog.org/?p=87376>
Posted on October 11, 2016 8:00 am<http://electionlawblog.org/?p=87376> by Rick Hasen<http://electionlawblog.org/?author=3>

IndyStar:<http://www.indystar.com/story/news/politics/2016/10/10/when-questioned-bayh-camp-failed-reveal-apollo-meetings/91861724/>

Evan Bayh met several times with executives from a future employer during his final months in the U.S. Senate — a direct contradiction of what his campaign has said in recent weeks.

Bayh landed a lucrative job with private equity giant Apollo Global Management shortly after leaving office in January 2011. He had in the months prior worked against a tax increase on carried interest and a provision of the Dodd-Frank Wall Street Reform act that would have hurt the bottom lines of companies like Apollo.

The timing of the new job prompted IndyStar to ask Bayh’s campaign about a half dozen  taxpayer-funded trips Bayh took to New York City during the last half of 2010. The flurry of travel was unusual for Bayh — he hadn’t used taxpayer money to travel to New York City since 2002.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

“The Supreme Court Is Being Hypocritical”<http://electionlawblog.org/?p=87374>
Posted on October 11, 2016 7:49 am<http://electionlawblog.org/?p=87374> by Rick Hasen<http://electionlawblog.org/?author=3>

Gabe Roth NYT oped:<http://www.nytimes.com/2016/10/11/opinion/the-supreme-court-is-being-hypocritical.html>

So went another case in what I call the court’s self-referential docket. Each year, the justices hear a handful of suits that have parallels with how they act as stewards of their institution. But instead of changing their own practices in light of their holdings in these cases, the justices too often carry on as before, as if they can play by their own rules when it comes to transparency and accountability.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, Supreme Court<http://electionlawblog.org/?cat=29>

“Wikileaks Emails Purport to Reveal Ties Between Clinton Campaign, Super PAC”<http://electionlawblog.org/?p=87372>
Posted on October 11, 2016 7:42 am<http://electionlawblog.org/?p=87372> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ:<http://blogs.wsj.com/washwire/2016/10/10/wikileaks-emails-purport-to-reveal-ties-between-clinton-campaign-super-pac/>

WikiLeaks’ latest release of what the website says are emails taken from the Clinton campaign reveals the close ties between campaign and its allied super PAC, illustrating a growing trend this election cycle.

The emails—whose authenticity the Clinton campaign declined to verify—purport to show that the Clinton campaign sought to bolster fundraising of its allied super PAC, Priorities USA Action, but advised aides how to stay within the confines of campaign-finance law, which prohibits campaigns and super PACs from coordinating on strategy.

In one memo, the campaign described fundraising conversations staff could have with Priorities officials without running afoul of the law. Campaign officials can “identify donor prospects” for the super PAC and provide contact information, the memo said, but can’t “explicitly request” that the super PAC solicit major donations.

My read of the memo is that it advised the Clinton campaign and its allied Super PAC to do exactly what the D.C. Circuit and the FEC said they could do. It’s horrible but legal and few expect unilateral Democratic disarmament.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Super PAC Megadonors Are Giving More Than Ever In 2016”<http://electionlawblog.org/?p=87370>
Posted on October 11, 2016 7:28 am<http://electionlawblog.org/?p=87370> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumenthal<http://www.huffingtonpost.com/entry/super-pac-donors-2016_us_57fc068de4b0e655eab6f34e> for HuffPo:

Overall, super PACs have raised approximately $955 million this year, according to FEC reports, far more than they did at this point in the 2012 campaign<http://www.huffingtonpost.com/2012/10/27/sheldon-adelson-super-pac_n_2030517.html>. What’s more, the biggest contributors are responsible for a growing percentage of the total flowing into super PACs. Some of the 2016 data runs through August, while other groups’ disclosures go through June.

Super PAC funding in the 2016 election<http://www.huffingtonpost.com/news/elections-2016/> has largely been overshadowed by the success of GOP nominee Trump<http://www.huffingtonpost.com/news/donald-trump/>. The superrich, however, have been paying attention ― and pouring money into super PACs like never before.

An analysis of 2016 super PAC filings shows that the 257 donors giving $500,000 or more have contributed a total $709 million. That makes these big donors responsible for 74 percent of all super PAC money ― an increase of 7 percentage points from just before the 2012 election<http://www.huffingtonpost.com/2012/10/27/sheldon-adelson-super-pac_n_2030517.html>. The top 20 donors in 2016 have contributed a whopping $300 million, or nearly one-third of all contributions.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Dem ‘Dark Money’ org @ProgressNowCO boasts it took out GOP gov candidate ‘without any fingerprints'”<http://electionlawblog.org/?p=87368>
Posted on October 10, 2016 3:46 pm<http://electionlawblog.org/?p=87368> by Rick Hasen<http://electionlawblog.org/?author=3>

Great find<https://twitter.com/kenvogel/status/785610049917849600> by Ken Vogel showing how those on the left are taking full advantage of the deregulating campaign finance system created by Republicans.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

Breaking: Federal Court Extends FL Voter Registration for 1 Day, with Further Extension Possible [corrected title]<http://electionlawblog.org/?p=87362>
Posted on October 10, 2016 2:40 pm<http://electionlawblog.org/?p=87362> by Rick Hasen<http://electionlawblog.org/?author=3>

A federal court has issued a temporary restraining order<http://electionlawblog.org/wp-content/uploads/fla-reg.pdf> requiring Florida to allow voters to register through October 12, with a further extension possible of up to a week <http://electionlawblog.org/?p=87332> at the preliminary injunction hearing.

While I think Florida absolutely should have extended the deadline given that the governor told 1.5 million Floridians to evacuate during the last 5 days of registration (when we know 50,000 people voted in that period during 2012), I’m not so sure about the court’s reasoning. The court found Florida’s deadline in the face of the hurricane unconstitutional under even rational basis review (see page 12), an argument that’s pretty dubious. The court did not address the question whether such an extension is possible in a presidential election given Article II.

The judge did not address the Voting Rights Act claim.

He said that the governor, however, did not have the power to extend the deadline. That presumably fell to state election officials (who are nonetheless under the governor’s control.)

We will see if Florida makes an emergency run to the Eleventh Circuit. Ordinarily TROs are not appealable, but they are when they essentially decide the case.

More to come, no doubt.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“WikiLeaks hack reveals cozy relationship between Clinton campaign, super PAC”<http://electionlawblog.org/?p=87360>
Posted on October 10, 2016 1:57 pm<http://electionlawblog.org/?p=87360> by Rick Hasen<http://electionlawblog.org/?author=3>

Jonathan Swan<http://thehill.com/blogs/ballot-box/fundraising/300276-wikileaks-hack-reveals-cozy-relationship-between-clinton#.V_v-IMmBy18.twitter> for The Hill.

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

True the Vote Now Acknowledges that Mall Shooter Who Voted Was an American Citizen<http://electionlawblog.org/?p=87358>
Posted on October 10, 2016 9:48 am<http://electionlawblog.org/?p=87358> by Rick Hasen<http://electionlawblog.org/?author=3>

Newsletter:<http://truethevote.org/true-vote-week-10716>

You may be wondering what happened to the curious case of Arcan Cetin, the Washington State mall shooter from Turkey. State and federal law enforcement initially said Cetin was non-citizen. We discovered he was a registered and actively voting in U.S. elections. Last week, TTV shared Cetin’s voting record with appropriate law enforcement to probe the matter further, taking them at their word with respect to citizenship status. As questions began to mount about what appeared to be a non-citizen voter fraud case, federal immigration enforcement changed their story<http://www.king5.com/news/local/investigators-may-probe-cascade-mall-suspects-citizenship-status-voting-record/327490798>. Sure, weirder things have happened and bloggers<http://electionlawblog.org/?p=87028> who love to hate TTV tried to pin blame on us – but the reality is, we are asking the questions that need to be asked. The whole episode revealed just how faulty our [non-existent] system of citizenship verification in voter registration actually is, especially when federal authorities apparently can’t keep track of who’s naturalized or not.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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949.824.3072 - office
949.824.0495 - fax
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http://electionlawblog.org<http://electionlawblog.org/>
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