[EL] Yale Law record

[Smith, Brad]

As interesting as the express advocacy question, would the Law Record "non- endorsement," aired  as an IE TV ad by a Liberal PAC or interest group, trigger "rescue funds" in support of Hillary under a law like that struck down in Arizona Free Enterprise Club?

Sent from my iPhone

On Oct 27, 2016, at 11:39 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:

“Some Donald Trump Voters Call for Revolution if Hillary Clinton Wins”<http://electionlawblog.org/?p=88181>
Posted on October 27, 2016 8:28 am<http://electionlawblog.org/?p=88181> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/10/28/us/politics/donald-trump-voters.html?ref=politics>
People are going to march on the capitols,” said Mr. Halbrook, who works at a call center. “They’re going to do whatever needs to be done to get her out of office, because she does not belong there.”
“If push comes to shove,” he added, and Mrs. Clinton “has to go by any means necessary, it will be done.”
Interviews with more than 50 Trump supporters at campaign events in six states over the past week revealed a distinct change from the rollicking mood earlier this year, when Mr. Trump’s surprising primary successes and emergence as an unconventional Republican standard-bearer set off broad excitement. The crowds appeared on edge and quick to lash out.
And while some voters emphatically disputed polls suggesting that Mrs. Clinton would win, others offered an apocalyptic vision of what life would be like if she did.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88181&title=%E2%80%9CSome%20Donald%20Trump%20Voters%20Call%20for%20Revolution%20if%20Hillary%20Clinton%20Wins%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>


“Donations to Foundation Vexed Hillary Clinton’s Aides, Emails Show”<http://electionlawblog.org/?p=88179>
Posted on October 27, 2016 8:26 am<http://electionlawblog.org/?p=88179> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/10/27/us/politics/bill-hillary-clinton-foundation-wikileaks.html?ref=politics>
In the years before Hillary Clinton<http://www.nytimes.com/topic/person/hillary-rodham-clinton?inline=nyt-per> announced she would run again for president, her top aides expressed profound concerns in internal emails about how foreign donations to the Clinton Foundation and Bill Clinton’s own moneymaking ventures would affect Mrs. Clinton’s political future.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88179&title=%E2%80%9CDonations%20to%20Foundation%20Vexed%20Hillary%20Clinton%E2%80%99s%20Aides%2C%20Emails%20Show%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Washington and South Dakota could become the first states to enact campaign finance vouchers”<http://electionlawblog.org/?p=88177>
Posted on October 27, 2016 8:19 am<http://electionlawblog.org/?p=88177> by Rick Hasen<http://electionlawblog.org/?author=3>
Lee Drutman <http://www.vox.com/polyarchy/2016/10/26/13424890/washington-south-dakota-campaign-finance-vouchers> for Vox.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88177&title=%E2%80%9CWashington%20and%20South%20Dakota%20could%20become%20the%20first%20states%20to%20enact%20campaign%20finance%20vouchers%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Republicans place heavy bet on super PAC cash to hold Senate majority”<http://electionlawblog.org/?p=88175>
Posted on October 27, 2016 8:18 am<http://electionlawblog.org/?p=88175> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul Kane<https://www.washingtonpost.com/news/powerpost/wp/2016/10/27/republicans-place-heavy-bet-on-super-pac-cash-to-hold-senate-majority/> for WaPo.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88175&title=%E2%80%9CRepublicans%20place%20heavy%20bet%20on%20super%20PAC%20cash%20to%20hold%20Senate%20majority%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“How incumbency, not gerrymandering, may protect the Republican House majority”<http://electionlawblog.org/?p=88173>
Posted on October 27, 2016 8:15 am<http://electionlawblog.org/?p=88173> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Barber<https://www.washingtonpost.com/news/monkey-cage/wp/2016/10/27/how-incumbency-not-gerrymandering-may-protect-the-republican-house-majority/> for The Monkey Cage.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88173&title=%E2%80%9CHow%20incumbency%2C%20not%20gerrymandering%2C%20may%20protect%20the%20Republican%20House%20majority%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Dump the Electoral College!”<http://electionlawblog.org/?p=88171>
Posted on October 27, 2016 8:13 am<http://electionlawblog.org/?p=88171> by Rick Hasen<http://electionlawblog.org/?author=3>
Roy Ulrich<http://prospect.org/article/dump-electoral-college> for TAP.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88171&title=%E2%80%9CDump%20the%20Electoral%20College!%E2%80%9D>
Posted in electoral college<http://electionlawblog.org/?cat=44>


The Conservatives’ Supreme Court End Game is a Political Power Play<http://electionlawblog.org/?p=88168>
Posted on October 27, 2016 8:05 am<http://electionlawblog.org/?p=88168> by Rick Hasen<http://electionlawblog.org/?author=3>
Ilya Shapiro<http://thefederalist.com/2016/10/26/senate-refuse-confirm-hillary-clintons-judicial-nominees/> says just let the Supreme Court die out if Democrats control the presidency and Senate.
Ted Cruz says<https://www.washingtonpost.com/news/post-politics/wp/2016/10/26/cruz-says-theres-precedent-for-keeping-ninth-supreme-court-seat-empty/> we are fine with 8 Justices, maybe less.
Just so we’re all clear on the Garland delay etc., this is all about the struggle for political power.
This is true whether it is Democrats or Republicans seeking a majority on the Court.
Conservatives are staring at the potential for the first progressive Supreme Court in a half-century.<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause> It would be a huge change.
And it all comes down now to who controls the Senate<http://electionlawblog.org/?p=87734>.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88168&title=The%20Conservatives%E2%80%99%20Supreme%20Court%20End%20Game%20is%20a%20Political%20Power%20Play>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“At ‘Poll Watcher Training’ Class, Republicans Trade Rumors, Fears of Fraud”<http://electionlawblog.org/?p=88166>
Posted on October 27, 2016 7:51 am<http://electionlawblog.org/?p=88166> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ:<http://blogs.wsj.com/washwire/2016/10/27/at-poll-watcher-training-class-republicans-trade-rumors-concerns-about-fraud/>
Republican presidential nominee Donald Trump has been raising hackles for weeks about a “stolen” election, and on Wednesday morning, in a suburban public library in northern Virginia, more than two dozen Republicans heeded his call.
The group had signed up for a “poll watcher training” class through the local Republican Party. They were mostly retirees, all white, except for one woman from India.
Many said they appreciated Mr. Trump’s dire predictions of election fraud in defiance of a number of GOP leaders and elected officials who say he is undermining voter confidence<http://www.wsj.com/articles/trump-renews-warning-about-stolen-election-1476229634>. Experts say fraud, particularly impersonating voters, is scarce, and Mr. Trump has offered no evidence for his claims.
“Very clearly there is going to be massive voter fraud, and it will definitely be to ensure Hillary Clinton wins,” said Penny Hendrix, a 52-year-old stay-at-home mom in Fairfax Station. “I’ve been concerned about this for some time, and Trump bringing it up is raising awareness.”…
Carol Loulis of Reston didn’t hesitate when asked her biggest concern. “Illegals voting,” she said, adding that she saw people voting in 2012 who didn’t appear to speak English. “I definitely should have called the attention of the election officials, but I think I let it go.”
Uh, you don’t have to speak English to be a citizen eligible to vote.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88166&title=%E2%80%9CAt%20%E2%80%98Poll%20Watcher%20Training%E2%80%99%20Class%2C%20Republicans%20Trade%20Rumors%2C%20Fears%20of%20Fraud%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“The Watchers Watching Elections”<http://electionlawblog.org/?p=88164>
Posted on October 27, 2016 7:48 am<http://electionlawblog.org/?p=88164> by Rick Hasen<http://electionlawblog.org/?author=3>
That’s the lead story in this month’s issue of NCSL’s The Canvass<http://www.ncsl.org/research/elections-and-campaigns/the-canvass-october-2016.aspx>.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88164&title=%E2%80%9CThe%20Watchers%20Watching%20Elections%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>


“Do Trump’s calls for poll watchers constitute incitement?”<http://electionlawblog.org/?p=88162>
Posted on October 27, 2016 7:45 am<http://electionlawblog.org/?p=88162> by Rick Hasen<http://electionlawblog.org/?author=3>
Steven Mazie for The Economist.<http://www.economist.com/blogs/democracyinamerica/2016/10/entangled-rigging?fsrc=scn/tw_ec/do_trump_s_calls_for_poll_watchers_constitute_incitement_>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


This Would Make a Great Final Exam Question on Express Advocacy<http://electionlawblog.org/?p=88160>
Posted on October 27, 2016 7:33 am<http://electionlawblog.org/?p=88160> by Rick Hasen<http://electionlawblog.org/?author=3>
Yale Law Record:<http://yalerecord.org/2016/10/26/the-yale-record-does-not-endorse-hillary-clinton/>
In its 144-year history, The Yale Record has never endorsed a Democratic candidate for president. In fact, we have never endorsed any candidate for president. This is, in part, due to our strong commitment to being a tax-exempt 501(c)3 organization, which mandates that we are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”
This year’s presidential election is highly unusual, but ultimately no different: The Yale Record believes both candidates to be equally un-endorsable, due to our faithful compliance with the tax code.
In particular, we do not endorse Hillary Clinton’s exemplary leadership during her 30 years in the public eye. We do not support her impressive commitment to serving and improving this country—a commitment to which she has dedicated her entire professional career. Because of unambiguous tax law, we do not encourage you to support the most qualified presidential candidate in modern American history, nor do we encourage all citizens to shatter the glass ceiling once and for all by electing Secretary Clinton on November 8.
The Yale Record has no opinion whatsoever on Dr. Jill Stein.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>


Koch Brothers Assess What Went Wrong with Political Strategy, Are Shredding Documents<http://electionlawblog.org/?p=88157>
Posted on October 27, 2016 7:20 am<http://electionlawblog.org/?p=88157> by Rick Hasen<http://electionlawblog.org/?author=3>
Must-read Vogel<http://www.politico.com/story/2016/10/koch-brothers-campaign-struggles-230325>.
Earlier in the month, the network held a document clean-up and retention week during which shredding bins were brought to the offices of various network groups, and employees were encouraged to identify sensitive files for destruction. Since there is no evidence of any active investigation into the Koch network, there’s nothing prohibiting the groups from destroying old files — a security safeguard that’s becoming more common in politics and business as concerns rise about hacking<http://www.politico.com/story/2016/10/john-podesta-cybersecurity-hacked-emails-230122> and cyber-attacks.
And Holden on Tuesday told POLITICO that the document shredding was unrelated to concerns about possible investigations from a Democratic Senate, but rather was standard operating procedure “to protect our donors and their privacy and our strategy.”

<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88157&title=Koch%20Brothers%20Assess%20What%20Went%20Wrong%20with%20Political%20Strategy%2C%20Are%20Shredding%20Documents>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Trump Campaign Admits Its Strategy Depends on Suppressing Democratic Turnout, But Is It Illegal?<http://electionlawblog.org/?p=88154>
Posted on October 27, 2016 7:06 am<http://electionlawblog.org/?p=88154> by Rick Hasen<http://electionlawblog.org/?author=3>
This must-read Bloomberg Business piece<http://www.bloomberg.com/news/articles/2016-10-27/inside-the-trump-bunker-with-12-days-to-go> explains that with Trump behind, the campaign’s strategy depends upon lowering Democratic turnout:
To compensate for this, Trump’s campaign has devised another strategy, which, not surprisingly, is negative. Instead of expanding the electorate, Bannon and his team are trying to shrink it. “We have three major voter suppression operations under way,” says a senior official. They’re aimed at three groups Clinton needs to win overwhelmingly: idealistic white liberals, young women, and African Americans. Trump’s invocation at the debate of Clinton’s WikiLeaks e-mails and support for the Trans-Pacific Partnership was designed to turn off Sanders supporters. The parade of women who say they were sexually assaulted by Bill Clinton and harassed or threatened by Hillary is meant to undermine her appeal to young women. And her 1996 suggestion that some African American males are “super predators” is the basis of a below-the-radar effort to discourage infrequent black voters from showing up at the polls—particularly in Florida.
On Oct. 24, Trump’s team began placing spots on select African American radio stations. In San Antonio, a young staffer showed off a South Park-style animation he’d created of Clinton delivering the “super predator” line (using audio from her original 1996 sound bite), as cartoon text popped up around her: “Hillary Thinks African Americans are Super Predators.” The animation will be delivered to certain African American voters through Facebook “dark posts”—nonpublic posts whose viewership the campaign controls so that, as Parscale puts it, “only the people we want to see it, see it.” The aim is to depress Clinton’s vote total. “We know because we’ve modeled this,” says the official. “It will dramatically affect her ability to turn these people out.”
The Trump team’s effort to discourage young women by rolling out Clinton accusers and drive down black turnout in Miami’s Little Haiti neighborhood with targeted messages about the Clinton Foundation’s controversial operations in Haiti is an odd gambit. Campaigns spend millions on data science to understand their own potential supporters—to whom they’re likely already credible messengers—but here Trump is speaking to his opponent’s. Furthermore, there’s no scientific basis for thinking this ploy will convince these voters to stay home. It could just as easily end up motivating them.
Greg Sargent is skeptical <https://www.washingtonpost.com/blogs/plum-line/wp/2016/10/27/fearful-and-angry-trump-supporters-brace-for-the-worst-a-crushing-defeat/?utm_term=.e40a967ac1e7> that this method will work; indeed there are signs it can have the opposite effect of firing up Democrats. I think Greg is likely right.
But I’m interested in the legality of all of this.
Standing by itself, what the campaign describes may be odious, but it is not illegal. There is no law against negative campaigning, or discouraging people from voting through legal means (not by, say, giving misinformation about where to vote). But the Trump campaign also has promoted “poll watching” and other operations which many see as a sign of voter intimidation. Trump has engaged in so much of this activity, that the DNC is trying to use it to extend the consent decree against the RNC <http://electionlawblog.org/?p=88127> for voter intimidation activity extended for up to 8 more years. These brazen statements from the Trump campaign marginally increase the chances of success of that effort, because they confirm that the campaign has an interest in making it harder for likely Democratic voters, including minority voters, to come out to the polls and vote.
It’s not a good look for the Trump campaign, and the allied RNC campaign.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88154&title=Trump%20Campaign%20Admits%20Its%20Strategy%20Depends%20on%20Suppressing%20Democratic%20Turnout%2C%20But%20Is%20It%20Illegal%3F>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Appeals courts are dismantling stricter voter ID laws”<http://electionlawblog.org/?p=88152>
Posted on October 26, 2016 8:11 pm<http://electionlawblog.org/?p=88152> by Rick Hasen<http://electionlawblog.org/?author=3>
Mark Walsh has written this extensive article<http://www.abajournal.com/magazine/article/voter_id_laws> in the ABA Journal.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88152&title=%E2%80%9CAppeals%20courts%20are%20dismantling%20stricter%20voter%20ID%20laws%E2%80%9D>

Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


ELB Podcast Episode 15. Ned Foley: Ballot Battles, Past, Present, and Future<http://electionlawblog.org/?p=88147>
Posted on October 26, 2016 5:12 pm<http://electionlawblog.org/?p=88147> by Rick Hasen<http://electionlawblog.org/?author=3>
Is this year’s concern about “election rigging” and violence at the polls unprecedented? Where do Donald Trump’s claims fit within disputes over American elections? Have we as a country gotten better since Bush v. Gore at resolving our election disputes?
On Episode 15 of the ELB Podcast, we talk with Ohio State’s Ned Foley, author of Ballot Battles: The History of Disputed Elections in the United States.<https://www.amazon.com/Ballot-Battles-History-Disputed-Elections/dp/0190235276>
You can listen to the ELB Podcast Episode 14 on Soundcloud<https://soundcloud.com/rick-hasen/elb-podcast-episode-15-ned-foley-ballot-battles-past-present-and-future> or subscribe at iTunes.<https://geo.itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2>
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Posted in ELB Podcast<http://electionlawblog.org/?cat=116>, election administration<http://electionlawblog.org/?cat=18>


Ballot Selfies, Ice Cream, Civic Virtue, and Election Integrity<http://electionlawblog.org/?p=88143>
Posted on October 26, 2016 4:17 pm<http://electionlawblog.org/?p=88143> by Rick Hasen<http://electionlawblog.org/?author=3>
In the fight over the constitutionality of bans on ballot selfies, I’m having a definite sense of deja vu.
Back in 2008, I noted <http://electionlawblog.org/archives/011866.html> that Ben and Jerry’s, in an act of civic virtue, promised free Ice Cream on election day to everyone who showed an “I Voted” sticker. “Ben and Jerry’s is giving free ice cream<http://www.benjerry.com/features/i_voted/>for turnout. The problem is that paying for turnout—even in a civic minded gesture such as this one—is illegal in elections in which federal candidates are on the ballot. I’ve written extensively<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=257564> about the issue. The only out I see for the ice cream company is that one need not prove one voted; it is enough to say “I voted. But if I were Ben and Jerry’s lawyer, I’d tell them to shut this down.”
I was called a “crotchety spoilsport”<http://electionlawblog.org/?p=11224> for raising this argument, but my fear was that payment for turnout—especially directed to certain areas only—could be the basis for vote buying charges in federal elections that would be worrisome. The Ben and Jerry’s story ended happily, with the ice cream company responding<http://electionlawblog.org/?p=11224>: ““On the evening of November 4th, from 5 — 8 pm, Ben & Jerry’s ice cream Scoop Shops will be giving away free scoops across the nation. ‘Originally, we planned to give free scoops away just to those who voted. We found out afterwards that certain laws may not allow it. So instead we’re celebrating our election with a national party,” said Walt Freese, Chief Euphoria Officer of the Vermont based ice-cream maker. ‘Democracy never tasted so sweet,’ added Freese summing up the effort.” So even kids, who cannot vote, get free ice cream.
The current selfie battle now is the similar one, with people saying that I’m trying to stifle civic-minded conduct. With reports of going after Justin Timberlake for posting a ballot selfie<http://www.cbsnews.com/videos/voting-booth-selfies-could-land-you-in-trouble/> raising everyone’s hackles, I thought it worth re-explaining what the issue<http://blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is-a-threat-to-democracy/> is with what looks to be very patriotic conduct:
We haven’t had the secret ballot throughout American history. Indeed, before the rise of the “Australian ballot” printed by the government, political parties in some places printed their own ballots. Each party’s ballot would be a different color. There would even be parades to march people to the polls with their colored ballots. So it was very easy to see how people voted — and to reward or punish them if desired.The secret ballot made vote buying and coercion that much more difficult. Sure, I can tell you I voted for the candidate you wanted me to — but how would you know if I were telling the truth? Indeed, turnout went down as each state adopted the secret ballot.These days in the United States, vote buying is relatively rare. When it does happen, it usually requires the cooperation of someone in the polling place to verify how people voted or through an absentee-ballot scam….But it is not just the 1970s. We have prosecutions for vote buying every year, and many of them involve absentee ballots, where it is possible to see how someone voted and collect and mail their ballot.
So on the one hand we have the value of First Amendment expression. On the other hand, we have the danger of a kind of voter fraud that actually happens—the sale of votes, or the coercion of votes (by a spouse, employer, union boss, church leader, whoever) that can be facilitated when one can confirm how one voted.  This kind of fraud, unlike voter impersonation fraud, actually happens in large enough numbers to be a real problem. And while it hasn’t happened with ballot selfies yet, the two kinds of voting are similar enough that a state should be able to take steps before the problem gets out of hand. A ban on ballot selfies would prevent the photographing and sharing of a voted ballot, not other expressive conduct, like pictures in the voting booth, posts saying who you voted for, etc. As I wrote: “Tell the world you voted for Trump! Use skywriting. Scream it to the heavens. We just won’t give you the tools to sell your vote or get forced to vote one way or another.”
The biggest hurdle in my view to the first amendment argument for a ballot selfie ban is when states allow absentee balloting. Those states which allow absentee balloting but ban ballot selfies have to justify one over the other. And I think the more that states with mail in or absentee voting do to prevent voters from sharing their voted ballots with others, the more likely it would be for courts to uphold the ban.
Ultimately, it may be the Supreme Court which has to resolve the dispute.
In the end, this is not about stifling civic minded conduct. As with the Ben and Jerry’s issue, it is preventing other activities which threaten the integrity of our elections.
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, campaigns<http://electionlawblog.org/?cat=59>


“Super-Suppressors: the 18 North Carolina counties that are strangling early voting to death”<http://electionlawblog.org/?p=88141>
Posted on October 26, 2016 3:48 pm<http://electionlawblog.org/?p=88141> by Rick Hasen<http://electionlawblog.org/?author=3>
Insightus:<http://www.insight-us.org/blog/super-suppressors-the-18-north-carolina-counties-that-are-strangling-early-voting-to-death/>
In a fit of pique, 18 of the state’s 100 Republican-controlled county boards of elections noted that “at least one” can also mean “only one.” And so they devised 2016 EV plans that called for the shuttering of all but one EV site during the first seven days of early voting.

The poster child for this effort was Guilford County, which cut its Week 1 site numbers from 16 in 2012 to just 1 in 2016 – a whopping 94% cut. The result, which was entirely predictable, is illustrated in the graph above, which is a county-by-county breakdown of the number of ballots cast thus far in the first days of early voting, from October 20th through 24th (expressed as a percentage of the ballots cast during the corresponding period in 2012). Guilford County has earned the dubious distinction of being the state’s most successful voting super-suppressor, posting just 3% of the number of ballots its voters cast during the same interval in 2012.
Also joining this select club of super-suppressors are Alamance (10% of 2012’s ballots cast in 2016), Brunswick (25%), Craven (15%), Forsyth (6%), Gaston (22%), Henderson (19%), Jackson (19%), Johnston (11%), Mecklenburg (22%), Nash (20%), Northampton (19%), Onslow (13%), Polk (34%), Robeson (11%), Rowan (13%), Sampson (16%) and Wayne (15%) counties. Meanwhile, voting action in the state’s 82 other counties is averaging 124% of 2012’s performance.
The members of the North Carolina’s Super Suppressors Club have done what Gov. McCrory, the North Carolina GOP and the General Assembly could not: in effect, they cut the Early Voting period in their counties from 17 days down to just 9, by starving their voters for the first week of Early Voting. And it’s all perfectly legal (albeit obviously immoral).
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88141&title=%E2%80%9CSuper-Suppressors%3A%20the%2018%20North%20Carolina%20counties%20that%20are%20strangling%20early%20voting%20to%20death%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“In ballot selfie battle, free speech beats fear of voter fraud”<http://electionlawblog.org/?p=88138>
Posted on October 26, 2016 3:45 pm<http://electionlawblog.org/?p=88138> by Rick Hasen<http://electionlawblog.org/?author=3>
Alison Frankel blogs.<http://blogs.reuters.com/alison-frankel/2016/10/26/in-ballot-selfie-battle-free-speech-beats-fear-of-voter-fraud/>
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88138&title=%E2%80%9CIn%20ballot%20selfie%20battle%2C%20free%20speech%20beats%20fear%20of%20voter%20fraud%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>


“Are We Ready to Run Our Elections?”<http://electionlawblog.org/?p=88136>
Posted on October 26, 2016 3:42 pm<http://electionlawblog.org/?p=88136> by Rick Hasen<http://electionlawblog.org/?author=3>
Livestream Thursday<http://bipartisanpolicy.org/events/are-we-ready-to-run-our-elections/> from Bipartisan Policy Center with Bauer, Ginsberg and more.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88136&title=%E2%80%9CAre%20We%20Ready%20to%20Run%20Our%20Elections%3F%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>


Two from Common Cause<http://electionlawblog.org/?p=88134>
Posted on October 26, 2016 3:31 pm<http://electionlawblog.org/?p=88134> by Rick Hasen<http://electionlawblog.org/?author=3>
Voters in 11 Swing States Advised to Make Voting Plan: 2016 Election Swing State Report<http://www.commoncause.org/press/press-releases/voters-in-11-swing-states-advised-to-make-voting-plan-2016-election-swing-state-report.html>
Report: Citizen-Led Redistricting Increases Voter Choices while Gerrymandering Leaves 33 Million with Only One Candidate on the Ballot<http://www.commoncause.org/press/press-releases/report-citizen-led-redistricting-increases-voter-choices-gerrymandering-leaves-33-million-with-only-one-candidate-on-the-ballot.html>
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88134&title=Two%20from%20Common%20Cause>
Posted in election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>


TMZ Misquoted Officials About Fears of Voter Fraud<http://electionlawblog.org/?p=88131>
Posted on October 26, 2016 3:27 pm<http://electionlawblog.org/?p=88131> by Rick Hasen<http://electionlawblog.org/?author=3>
Pro Publica/Electionland:<https://projects.propublica.org/electionland/national/tmz-article-on-voting-fraud-falsely-reports-concerns/>
Yesterday TMZ posted an article declaring voter fraud to be “a real concern”<http://www.tmz.com/2016/10/25/donald-trump-voter-fraud-hillary-clinton/>. (Yes, that TMZ.) Here’s how the story begins:
NBC, ABC, CBS, CNN and most blogs are trying to convince you there is virtually NO EVIDENCE of voter fraud, so Trump’s fears are bogus … but we drilled down and some officials who run the voting systems around the country are VERY worried about fraudulent voting.
But here’s the thing: Two of the three election officials the story cites told us TMZ attributes things to them they did not say, and that they have no concerns whatsoever about the possibility of voter fraud.
“That’s not what I said,” Marcy Crawford, the Republican Deputy Commissioner of the Board of Elections for Allegany County, New York, said after we read what TMZ had attributed to her. The story does not quote Crawford directly, but says that Crawford “tells us voter fraud in her county is a real concern. She says everyone’s talking about it in her office.”
While Crawford said she told TMZ she had “heard talk” of concerns of voter fraud elsewhere, she also said she told TMZ she had no concerns about actual fraud in her southern New York County, nor does anyone else in her office. Crawford’s colleague, Democratic Deputy Commissioner Barbara Broughton, said she was present for the TMZ interview, and confirmed that TMZ misreported the conversation. Broughton stressed that every step of the process is double checked and bipartisan. “I don’t see how [fraud] is even possible,” she said.
John Arntz, director of the Department of Elections in San Francisco County, California, also said he never told TMZ he was concerned about fraud. While he said TMZ accurately described how a voter’s identity is checked in California — that poll workers must confirm voters’ namees and addresses — he said TMZ falsely reported that he “concedes that it leaves the system open to fraud.”
“I did not say that this means our system is open to fraud since there are many checks and balances in place regarding the casting of ballots,” Arntz told us. “In the 14 years since I’ve been here, voter fraud has not been an issue and I don’t expect it to be an issue going forward.”
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88131&title=TMZ%20Misquoted%20Officials%20About%20Fears%20of%20Voter%20Fraud>
Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


Breaking: DNC Asks for RNC to Be Held in Contempt, Voter Intimidation Consent Decree Extended 8 More Years<http://electionlawblog.org/?p=88127>
Posted on October 26, 2016 2:26 pm<http://electionlawblog.org/?p=88127> by Rick Hasen<http://electionlawblog.org/?author=3>
Back in August, I blogged<https://electionlawblog.org/?p=85289> about how Donald Trump could be violating a longstanding consent decree against the RNC engaging in “ballot security” measures which have been found to intimidate minority voters. I explained how the consent decree began in the 1980s, was extended by the courts over RNC’s objection (which went all the way to the Supreme Court in an unsuccessful effort to get them involved), and now expires in 2017 unless extended for up to another 8 years by order of the Court. I explained that there were two issues: first, was Trump engaging in voter intimidation activities (it looked like he had) and second, whether Trump could be seen as an “agent” of the RNC (because the decree applies only to the RNC, its employees, and agents).
Last week I wrote, in response from the RNC trying to distance itself from Trump’s activities, “I think it is already too late for the RNC, and I’m sure Democrats are collecting the evidence they need to in order to go back into court to extend this another 8 years.”
Well now it’s happened.
The DNC filed papers <http://electionlawblog.org/wp-content/uploads/Memorandum-of-Law-in-Support-of-OTSC.pdf> saying that the RNC, through Trump’s actions has already violated the consent decree, and asks for another 8-year extension.  From the papers:
Defendant Republican National Committee (“RNC”) has violated the Final Consent Decree entered in Democratic Nat’l Comm. v. Republican Nat’l Comm., No. 81-cv-3876 (DRD) (Nov. 1, 1982) (“1982 Consent Decree”), as modified by order of this Court on July 27, 1987 (“1987 Consent Decree”), and again on December 1, 2009 (“2009 Consent Decree”) (collectively the “Consent Decree” or “Decree”), by supporting and enabling the efforts of the Republican candidate for President, Donald J. Trump, as well as his campaign and advisors, to intimidate and discourage minority voters from voting in the 2016 Presidential Election. Trump has falsely and repeatedly told his supporters that the November 8 election will be “rigged” based upon fabricated claims of voter fraud in “certain areas” or “certain sections” of key states. Unsurprisingly, those “certain areas” are exclusively communities in which large minority voting populations reside. Notwithstanding that no evidence of such fraud actually exists, Trump has encouraged his supporters to do whatever it takes to stop it—“You’ve got to get everybody to go out and watch . . . and when [I] say ‘watch,’ you know what I’m talking about, right?”—and has been actively organizing “election observers” to monitor polling stations in “certain areas.” Trump has even encouraged his “watchers” to act like vigilante law enforcement officers.
Although certain RNC officials have attempted to distance themselves from some of the Trump campaign’s more recent statements, there is now ample evidence that Trump has enjoyed the direct and tacit support of the RNC in its “ballot security” endeavors, including the RNC’s collaboration on efforts to prevent this supposed “rigging” and “voter fraud.” In a rally in Denver, Colorado, on August 3, 2016, Trump’s vice presidential running mate, Indiana Governor Mike Pence, admitted that the RNC was directly coordinating with the Trump campaign on “ballot integrity” initiatives, stating that “the Trump campaign and the Republican National Committee are working very very closely with state governments and secretaries of states all over the country to ensure ballot integrity.” 8-3 Replay: Pence Denver Rally Town Hall, TrumpTube.tv, http://trumptube.tv/donald-trump-rally-speech-video/video/pence-live-stream-town-hall-8-3-16/, at 16:22-37 (last accessed Oct. 26, 2016). Following the third presidential debate, Trump’s campaign manager told a reporter that the campaign was working to combat purported voter fraud by “actively working with the national committee, the official party, and campaign lawyers to monitor precincts around the country.” These efforts are directly funded by the RNC through its joint fundraising committee established “to elect Republicans up and down the ballot,” see Certification of Angelo J. Genova, Esq. (hereinafter “Genova Cert.”) at Ex. 1 (RNC & Trump Campaign Announce Agreements, GOP.com<http://GOP.com>, May 17, 2016), and specifically to fund the Trump campaign, see Genova Cert. at Ex. 2 (Statement of Organization, Trump Make America Great Again Committee, FEC-1074541, May 25, 2016). The RNC’s support of Trump’s efforts to recruit “watchers” who are intended to intimidate voters at their polling places violates this Court’s Consent Decree as modified in 2009, which explicitly forbid the RNC from engaging in so-called “ballot security” measures directly, indirectly, or through its agents or employees. See Genova Cert. at Ex. 20 & 22 (1982 and 2009 Consent Decrees) The RNC’s conduct also violates the Consent Decree under well settled law prohibiting defendants from evading court orders by acting in concert with third parties. See, e.g., Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990) (“The law does not permit the instigator of contemptuous conduct to absolve himself of contempt liability by leaving the physical performance of the forbidden conduct to others.”).
Accordingly, Plaintiff Democratic National Committee (“DNC”) respectfully moves for an order directing Defendant RNC to show cause why the RNC should not be held in civil contempt for violating the Consent Decree entered in this action, as modified, and why sanctions should not issue as a result of those violations.
Plaintiff also respectfully requests expedited treatment of this matter. The election will take place in less than two weeks, and early voting is already underway in many states—including New Jersey, where early voting began on September 24. Meanwhile, Defendants’ ongoing violation of this Court’s Consent Decree will continue unabated until this Court acts.
I think this matter of the extension will get very serious consideration by the courts, including potentially the Supreme Court. It will also cause the RNC to do what it can<http://electionlawblog.org/?p=87898> to try to further distance itself<http://electionlawblog.org/?p=87888> from Trump’s election day activities.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88127&title=Breaking%3A%20DNC%20Asks%20for%20RNC%20to%20Be%20Held%20in%20Contempt%2C%20Voter%20Intimidation%20Consent%20Decree%20Extended%208%20More%20Years>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Justice Thomas’ 25 Years on the Supreme Court<http://electionlawblog.org/?p=88125>
Posted on October 26, 2016 1:42 pm<http://electionlawblog.org/?p=88125> by Richard Pildes<http://electionlawblog.org/?author=7>
At the Balkinization blog<https://balkin.blogspot.com/>, I recently posted this, which might be of interest to some on this blog:
This month marks the 25th year that Justice Clarence Thomas has been on the Supreme Court, which means he has now served one year longer than the man he replaced, Justice Thurgood Marshall (for whom I had the honor of clerking).  The major media are beginning to recognize this milestone, as in the stories here<https://www.washingtonpost.com/posteverything/wp/2016/10/21/why-doesnt-clarence-thomas-get-his-due-hes-a-black-man-who-challenged-liberal-orthodoxy/?utm_term=.ac9ce41c33b2>, here<https://www.washingtonpost.com/posteverything/wp/2016/10/21/why-doesnt-clarence-thomas-get-his-due-hes-a-black-man-who-challenged-liberal-orthodoxy/?utm_term=.ac9ce41c33b2>, and here. <http://www.cnn.com/2016/10/22/politics/clarence-thomas-supreme-court-25-years/>
Very few academic symposia exist thus far that are devoted to assessing the body of work Justice Thomas has produced in that quarter century.  Among the most prominent law schools, the only such symposium of which I am aware is one produced nine years ago by the NYU Journal of Law and Liberty, entitled The Unknown Justice.  Contributors included federal and state judges, such as David Sentelle of the D.C. Circuit and Robert S. Smith of the NY Court of Appeals; academics, such as Professors Nicole Garnett, Greg Maggs, Sam Issacharoff, Stephen Smith; and others.  For that collection of articles, see Vol. 4, No. 3, at this link<http://lawandlibertyblog.com/vol-4/>. For journalists looking for academic assessments of Justice Thomas’ work on the Court, this symposium offers a rich set of perspectives.
I wrote the brief introduction to that Symposium, in which I described my personal experiences with Justice Thomas, which stem from a scholarship program he’s been involved with at NYU for nearly two decades and conferences we have jointly hosted.  That introduction is here<http://www.law.nyu.edu/sites/default/files/ECM_PRO_064796.pdf>.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88125&title=Justice%20Thomas%E2%80%99%2025%20Years%20on%20the%20Supreme%20Court>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Some Machines Are Flipping Votes But That Doesn’t Mean They’re Rigged”<http://electionlawblog.org/?p=88119>
Posted on October 26, 2016 10:48 am<http://electionlawblog.org/?p=88119> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler for NPR.<http://www.npr.org/2016/10/26/499450796/some-machines-are-flipping-votes-but-that-doesnt-mean-theyre-rigged>
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88119&title=%E2%80%9CSome%20Machines%20Are%20Flipping%20Votes%20But%20That%20Doesn%E2%80%99t%20Mean%20They%E2%80%99re%20Rigged%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voting technology<http://electionlawblog.org/?cat=40>


“Voting Booth Selfies Could Land You in Trouble”<http://electionlawblog.org/?p=88117>
Posted on October 26, 2016 9:47 am<http://electionlawblog.org/?p=88117> by Rick Hasen<http://electionlawblog.org/?author=3>
CBS News reports<http://www.cbsnews.com/videos/voting-booth-selfies-could-land-you-in-trouble/>. I talked to CBS’s Ben Tracy.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88117&title=%E2%80%9CVoting%20Booth%20Selfies%20Could%20Land%20You%20in%20Trouble%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>


“Revenge of the Anti-Federalists: What is at Stake with Vieth and the Gerrymandering of Congress”<http://electionlawblog.org/?p=88114>
Posted on October 26, 2016 9:38 am<http://electionlawblog.org/?p=88114> by Rick Hasen<http://electionlawblog.org/?author=3>
The following is a guest post from Anthony J. McGann, Charles Anthony Smith, Michael Latner and Alex Keena:
Following the death of Justice Antonin Scalia, the Supreme Court’s 5-4 decision in Vieth v. Jubelirer (541 US 267) is vulnerable. This decision effectively removed the threat of judicial intervention in partisan gerrymandering cases, and many state governments reacted by drawing radically biased district for the House of Representatives. However, as we argue in our book Gerrymandering in America<http://www.cambridge.org/catalogue/catalogue.asp?isbn=9781316507674>, this decision has profound constitutional consequences that go beyond even the immediate political effect that the Republicans are likely to control the House of Representatives until new districts come into force in 2022.
Vieth v. Jubelier effectively gave state governments control of the composition of the House and struck at the heart of the one-person, one-vote decisions of the 1960s and the reapportionment revolution that followed. In these decisions, the Court took away from state governments the power to determine the composition of Congress by malapportionment. Vieth v. Jubelirer gave state governments this power back – they still cannot draw districts with unequal population, but they can achieve the same effect by gerrymandering. Of course, this struggle between the Anti-Federalist principle of indirect control through state government and the Federalist principle of direct election by the People dates right back to the Federal Convention.
It is important to emphasize just how much the severity of partisan gerrymandering has increased since the Supreme Court’s decision in Vieth v. Jubelirer (2004). Before 2010 partisan bias had been minor, at least since the Supreme Court decided in the 1960s that all Congressional districts must have approximately equal population. However, by our calculations, partisan bias tripled in the districting round that followed the 2010 Census. The Democrats now require between 54% and 55% of the vote to have a chance of retaking the House.
Of course, the actual judgment in Vieth v. Jubelirer is complex, as there was no majority opinion. Justice Scalia, joined by three other Justices, argued that political gerrymandering was inherently non-justiciable – it was a political matter in which the Court had no business intervening. A fifth Justice (Justice Kennedy) agreed that no standard to adjudicate such cases currently existed. The effect, however, was the same. State governments did not have to fear judicial reprimand, so they were free to push partisan gerrymandering to the limit.
Vieth v. Jubelirer (2004) did not overturn Wesberry v. Sanders (376 US 1) – which required all Congressional districts to have approximately equal population – but undermined it by effectively removing the constraint on political gerrymandering. The Court’s opinion in Wesberry v. Sanders (1964) embraced an egalitarian conception of democracy and appeared to preclude political gerrymandering. Article 1§2 of the Constitution requires that Congress be elected by the “People of the Various States”. The Court interpreted this to imply the principle of “one person, one vote”, and to prohibit “classification of people in a way that unnecessarily abridges this right” (376 US 17-8). Although the Court did not rule on partisan gerrymandering until Davis v. Bandemer (1986), the line of argument in Wesberry v. Sanders (1964) would make little sense if state governments could simply replace malapportioned districts with radically gerrymandered ones.
It is notable that the judgment in Wesberry v. Sanders (1964) was very much framed in terms of the Great Compromise at the Federal Convention.. In limiting this power of state governments over the House, Wesberry v. Sanders (1964) can be seen as a restoration of the principle of the Great Compromise – the House should represent the People directly and proportionally, while the Senate represents the states.
In his plurality opinion in Vieth v. Jubelirer (2004), Justice Scalia argues for overturning Davis v. Bandemer (1986). However, the real target is the redistricting jurisprudence of the 1960s and the restriction of the power of state governments to control the composition of the House. Justice Scalia revived the “political question” doctrine that Justice Frankfurter used to oppose judicial intervention in districting in his dissent on Baker v. Carr (1962) and in Colegrove v. Green (328 US 549). Justice Frankfurter had argued that districting was an inherently political matter, in which the courts had no business intervening. However, the Court rejected this position in Baker v. Carr (1962). Instead Justice Scalia uses the definition of a “political question” given in the Court’s judgment in Baker v. Carr (1962), arguing that partisan gerrymandering is a “political question” because there is no suitable judicial standard for measuring partisan gerrymandering.
Justice Scalia’s reasoning as to why there is no suitable judicial standard can also be traced back to Justice Frankfurter. Justice Scalia rejects the majority rule principle – that a majority of voters should be able to elect a majority of representatives – as the basis of a judicial standard. This is because it is based on a group claim, and the constitution only grants rights of equal treatment to individual voters. Essentially Justice Scalia treats a group of partisans as a social group no different from (say) farmer or Catholics. Just as farmer and Catholics do not have a right to representation proportional to their number, neither do Democrats or Republicans. We can trace this argument back to Justice O’Connor’s opinion on Davis v. Bandemer (478 US 147) and Justice Frankfurter’s opinion in Colegrove v. Green (328 US 552). In our book<http://www.cambridge.org/catalogue/catalogue.asp?isbn=9781316507674> We argue that it is in fact possible to justify the majority rule principle strictly from the equal treatment of individual voters.
What is ultimately at stake is whether control of the House of Representatives is determined by direct election by the People and majority rule; or whether it depends on indirect control by state governments. Wesberry v. Sanders (1964) restored the principle of the Great Compromise that the House should represent the People directly, but Vieth v. Jubelirer (2004) undermined this. It is likely that the Supreme Court will reconsider this issue in the coming years. This will determine whether control of the House is decided by the People every two years, or by state governments every ten years.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88114&title=%E2%80%9CRevenge%20of%20the%20Anti-Federalists%3A%20What%20is%20at%20Stake%20with%20Vieth%20and%20the%20Gerrymandering%20of%20Congress%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“New Research: RCV Doesn’t Lower Turnout and Increases It When Replacing Runoffs”<http://electionlawblog.org/?p=88111>
Posted on October 26, 2016 9:33 am<http://electionlawblog.org/?p=88111> by Rick Hasen<http://electionlawblog.org/?author=3>
David Kimball blogs.<http://www.fairvote.org/new_research_rcv_doesn_t_lower_turnout_and_increases_it_when_replacing_runoffs>
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88111&title=%E2%80%9CNew%20Research%3A%20RCV%20Doesn%E2%80%99t%20Lower%20Turnout%20and%20Increases%20It%20When%20Replacing%20Runoffs%E2%80%9D>
Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


--
Rick Hasen
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UC Irvine School of Law
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