[EL] ELB News and Commentary 9/4/16

Sun Sep 4 07:59:30 PDT 2016

“On Road to 270, Arizona is home to best chance for a spoiler”<http://electionlawblog.org/?p=86212>
Posted on September 4, 2016 7:55 am<http://electionlawblog.org/?p=86212> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<https://www.apnews.com/f262d4ce64c14a0590059737fbaa371a>

If Hillary Clinton carries Arizona in November, there’s a good chance it won’t be because Democrats on their own have flipped a reliable GOP state they hope to win consistently someday.

Instead, Clinton and Democrats may have Gary Johnson to thank.

The Libertarian Party nominee’s best chance to influence the presidential race may come in Arizona, where the former New Mexico governor appeals to a group of finicky conservatives who make up part of the GOP base.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, third parties<http://electionlawblog.org/?cat=47>

“Trump bashed big money in politics but hires ex-Citizens United chief who pushed for it”<http://electionlawblog.org/?p=86210>
Posted on September 4, 2016 7:47 am<http://electionlawblog.org/?p=86210> by Rick Hasen<http://electionlawblog.org/?author=3>

NJ.com:<http://www.nj.com/politics/index.ssf/2016/09/trump_bashes_big_money_in_politics_but_hires_man_who_pushed_for_it.html>

Throughout his Republican presidential primary run, Donald Trump<https://www.donaldjtrump.com/> repeatedly decried the influence of money in politics. The celebrity businessman accused his opponents of being swayed by big-dollar donors and declared that, because of his wealth, he was not beholden to special interests.

But in a twist of irony, the man Trump recently hired as his deputy campaign manager is the person who led the effort to remove limits on campaign donations and boosted the flow special-interest money in elections.

David Bossie was president of Citizens United, the advocacy group whose lawsuit led to the U.S. Supreme Court throwing out a century of laws and previous rulings andrelaxing restrictions<http://archive.tobacco.org/news/295828.html> on campaign donations by unions and corporations.

The 5-4 decision led to an explosion of secret money<http://www.bloomberg.com/news/articles/2011-05-19/secret-donors-multiply-in-u-s-with-finances-dwarfing-watergate> flowing into U.S. elections and the creation of super political action committees, which can take in unlimited union, corporate, and individual donations.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Schuette takes straight-party voting fight to Supreme Court”<http://electionlawblog.org/?p=86207>
Posted on September 4, 2016 7:43 am<http://electionlawblog.org/?p=86207> by Rick Hasen<http://electionlawblog.org/?author=3>

The Detroit Free Press reports.<http://www.freep.com/story/news/local/michigan/2016/09/02/schuette-straight-party-voting-supreme-court/89776084/>

I’m sure Republicans would rather not have voters have the choice to reject the entire Republican ticket if they choose to reject Trump.

I rate <http://electionlawblog.org/?p=86158> Michigan’s chances of getting emergency relief from the Supreme Court as low.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>

“Election forecasters try to bring some order to a chaotic political year”<http://electionlawblog.org/?p=86205>
Posted on September 4, 2016 7:39 am<http://electionlawblog.org/?p=86205> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Balz:<https://www.washingtonpost.com/politics/election-forecasters-try-to-bring-some-order-to-a-chaotic-political-year/2016/09/03/5f2af308-71df-11e6-9781-49e591781754_story.html>

For those who wish this long and often dismal presidential campaign were over, help is already here. To the rescue have come the forecasters — political scientists with prediction models that have already called the election, in some cases many months ago.

Their work will soon be published collectively in the upcoming issue of the journal PS: Political Science and Politics. On Friday, a handful of the forecasters appeared in Philadelphia at the annual meeting of the American Political Science Association to offer their thoughts. Some of their analyses have been carried on Larry Sabato’s Crystal Ball website at the University of Virginia.

Lost in the extraordinary amount of attention that has been focused on the strengths and weaknesses of Hillary Clinton and Donald Trump is the reality that the outcome of presidential elections often depends as much or more on fundamentals as on candidate performance. It’s not that campaigns and candidates don’t matter, but events play out against a backdrop of attitudes and conditions that often favors one side over the other from the very start….

Alan Abramowitz of Emory University uses what he calls a Time for Change Forecasting Model. His model does not rely on polling data but instead takes into account the incumbent president’s approval rating at midyear, the growth rate of real gross domestic product in the second quarter of the election year and whether the incumbent president’s party has held the White House for one term or more than a term.

On that basis, his model predicts a narrow victory for Trump. But Abramowitz also suggests that Trump could underperform. “A model like mine that relies entirely on fundamentals is likely to miss the result because Trump is such an atypical candidate,” he said.

Abramowitz, who has been openly critical of Trump this year, said he would rather his model be wrong this time. In his paper, he writes: “The Time for Change model wi
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Posted in campaigns<http://electionlawblog.org/?cat=59>

Tweet of the Day<http://electionlawblog.org/?p=86203>
Posted on September 4, 2016 7:37 am<http://electionlawblog.org/?p=86203> by Rick Hasen<http://electionlawblog.org/?author=3>
View image on Twitter<https://twitter.com/LOLGOP/status/772160504907182081/photo/1>
[iew image on Twitter]<https://twitter.com/LOLGOP/status/772160504907182081/photo/1>
<https://twitter.com/LOLGOP>
 Follow<https://twitter.com/LOLGOP>
[https://pbs.twimg.com/profile_images/649031186845560832/c385MSMQ_normal.jpg]LOLGOP @LOLGOP<https://twitter.com/LOLGOP>

No one told you about the bris?
3:53 PM - 3 Sep 2016<https://twitter.com/LOLGOP/status/772160504907182081>
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·         <https://twitter.com/intent/retweet?tweet_id=772160504907182081>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Take Back the House, Democrats. Please.”<http://electionlawblog.org/?p=86201>
Posted on September 4, 2016 7:37 am<http://electionlawblog.org/?p=86201> by Rick Hasen<http://electionlawblog.org/?author=3>

Robert Frank<http://www.nytimes.com/2016/09/04/opinion/campaign-stops/take-back-the-house-democrats-please.html?action=click&module=TrendingGrid&region=TrendingTop&pgtype=collection&_r=0> in NYT Sunday Review.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>

“The spurious claims against voters’ Golden Week add up to GOP monkey business”<http://electionlawblog.org/?p=86199>
Posted on September 4, 2016 7:32 am<http://electionlawblog.org/?p=86199> by Rick Hasen<http://electionlawblog.org/?author=3>

Thomas Suddes column<http://www.cleveland.com/opinion/index.ssf/2016/09/the_spurious_claims_against_oh.html> in the Cleveland Plain Dealer.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Now Senator Flake Supports Confirming J. Garland in Lame Duck<http://electionlawblog.org/?p=86197>
Posted on September 4, 2016 7:26 am<http://electionlawblog.org/?p=86197> by Rick Hasen<http://electionlawblog.org/?author=3>

More cracks in the wall.<https://twitter.com/JoePerticone/status/772428168280113152>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Campaign finance reform vs. reality”<http://electionlawblog.org/?p=86195>
Posted on September 4, 2016 7:25 am<http://electionlawblog.org/?p=86195> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Jossey:<http://www.theday.com/article/20160904/OP03/160909832>

Issueone.org lists <https://www.issueone.org/organizations/> about three dozen nonprofits that exclusively or substantially work to regulate campaign speech. Available tax filings show these groups spend at least $77 million yearly bemoaning the money spent on political speech. Yet academic research stretching decades has yielded little evidence<http://www.washingtonexaminer.com/politics-aint-broke-so-reforms-wont-fix-it/article/2567569> for the basic claims of those who think government can make elections fairer or politicians less ‘corrupt’ by passing more limits on speech. What they lack in proof, however, is recouped in messaging. Money does not buy elections but it does buy perception.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“How to avoid alienating minority voters: A handy election-year checklist”<http://electionlawblog.org/?p=86193>
Posted on September 3, 2016 6:28 pm<http://electionlawblog.org/?p=86193> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix:<https://www.washingtonpost.com/news/the-fix/wp/2016/09/03/how-to-avoid-alienating-minority-voters-a-handy-election-year-checklist/>

5. Don’t try to implement laws and rules that reduce black and Latino voter participation<https://www.washingtonpost.com/news/wonk/wp/2016/02/04/new-evidence-that-voter-id-laws-skew-democracy-in-favor-of-white-republicans/?tid=a_inl>.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Arizona Long Lines Case May Partially Settle<http://electionlawblog.org/?p=86191>
Posted on September 3, 2016 6:19 pm<http://electionlawblog.org/?p=86191> by Rick Hasen<http://electionlawblog.org/?author=3>

Arizona’s Politics.<http://arizonaspolitics.blogspot.com/2016/09/breakingread-federal-case-stemming-from.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Where Has Hillary Clinton Been? Ask the Ultrarich”<http://electionlawblog.org/?p=86189>
Posted on September 3, 2016 6:06 pm<http://electionlawblog.org/?p=86189> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/09/04/us/politics/hillary-clinton-fundraising.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0>

Mr. Trump has pointed to Mrs. Clinton’s noticeably scant schedule of campaign events this summer to suggest she has been hiding from the public. But Mrs. Clinton has been more than accessible to those who reside in some of the country’s most moneyed enclaves and are willing to spend hundreds of thousands of dollars to see her. In the last two weeks of August, Mrs. Clinton raked in roughly $50 million at 22 fund-raising events, averaging around $150,000 an hour, according to a New York Times tally.

And while Mrs. Clinton has faced criticism for her failure to hold a news conference for months, she has fielded hundreds of questions from the ultrarich in places like the Hamptons, Martha’s Vineyard, Beverly Hills and Silicon Valley.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, Plutocrats United<http://electionlawblog.org/?cat=104>

Helen Purcell, Maricopa Voting Chief, Says She’s Won Primary by 185 Votes<http://electionlawblog.org/?p=86184>
Posted on September 3, 2016 11:35 am<http://electionlawblog.org/?p=86184> by Rick Hasen<http://electionlawblog.org/?author=3>

Wow, <http://recorder.maricopa.gov/electionresults/eresults.aspx> 154,682 to 154,497.

Purcell’s been in charge of the vote counting, including in her own race, and there could be a request for a recount or a contest.

Raises questions of what precautions jurisdictions take when the chief election officer is herself on the ballot.

Purcell was blamed for the very long lines during the Arizona primary earlier this year.

And of course she’s the unwitting lender of her name to the Purcell Principle. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>

(h/t Paul Weich)
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Posted in election administration<http://electionlawblog.org/?cat=18>
The Trump Donation to the Bondi Group….It’s Not What’s Illegal But What’s Legal<http://electionlawblog.org/?p=86182>
Posted on September 3, 2016 11:14 am<http://electionlawblog.org/?p=86182> by Rick Hasen<http://electionlawblog.org/?author=3>

This good story<https://www.washingtonpost.com/news/post-politics/wp/2016/09/01/trump-pays-irs-a-penalty-for-his-foundation-violating-rules-with-gift-to-florida-attorney-general/?postshare=9471472847883822&tid=ss_tw-bottom> by WaPo’s David Fahrenthold explains how a $25,000 contribution to Florida AG Bondi wound up illegally, and apparently inadvertently, getting paid out of the Trump Foundation account (which cannot make such political donations) rather than from Trump personally.  The explanation for how this happened seems plausible enough.

But the real scandal here is not that a payment came from a foundation but that Trump was giving money to Bondi while Bondi was deliberating over whether or not to investigate fraud allegations against Trump University. After the $25,000 donation, Bondi decided not to pursue the case.

Quid pro quo?  Not proven. But conflict of interest for the AG to solicit money from someone while contemplating a civil [corrected] investigation of that person? That stinks.

And imagine if Hillary Clinton had made a contribution to someone who was deciding whether to investigate her. That certainly would have been a bigger story.

This is a much worse pay-to-play problem than we’ve seen with the Clinton Foundation stories, at least what we know so far.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, conflict of interest laws<http://electionlawblog.org/?cat=20>

“Yes, the U.S. presidential election could be manipulated”<http://electionlawblog.org/?p=86180>
Posted on September 3, 2016 7:31 am<http://electionlawblog.org/?p=86180> by Rick Hasen<http://electionlawblog.org/?author=3>

William Sweeney, Chad Vickrey, and Katherine Ellena WaPo oped<https://www.washingtonpost.com/opinions/global-opinions/yes-the-us-presidential-election-could-be-manipulated/2016/09/02/b125885e-6afe-11e6-ba32-5a4bf5aad4fa_story.html?utm_term=.46ef613d926b>:

Is the U.S. presidential election vulnerable to manipulation by a losing candidate? Could the integrity of our electoral process be successfully challenged? Unfortunately, the answer to these questions is yes.

The International Foundation for Electoral Systems<http://www.ifes.org/> (IFES) has supported the integrity of political and electoral processes in more than 145 countries for nearly 30 years<http://www.ifes.org/about>. We have developed a rigorous methodology to analyze vulnerabilities throughout the electoral process, drawing on international standards and commitments that stem from fundamental rights guaranteed in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and other international accords. We have applied this in multiple countries to fortify elections against malpractice, fraud and systemic manipulation.

From this global perspective and experience, we have increasingly seen the credibility of elections — and, in some cases, the stability of the election environment — hinge on the ability of electoral institutions, and in particular the election dispute resolution process, to withstand increasingly sophisticated political manipulation.
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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>

“Voting Restrictions Won’t ‘Make America Great Again'”<http://electionlawblog.org/?p=86176>
Posted on September 3, 2016 7:05 am<http://electionlawblog.org/?p=86176> by Rick Hasen<http://electionlawblog.org/?author=3>

Mary Curtis commentary<http://www.npr.org/sections/codeswitch/2016/09/03/490934773/voting-restrictions-wont-make-america-great-again?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews> for NPR.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Michigan Begs Supreme Court to Reinstate Ban on ‘Straight-Ticket’ Voting”<http://electionlawblog.org/?p=86174>
Posted on September 2, 2016 7:36 pm<http://electionlawblog.org/?p=86174> by Rick Hasen<http://electionlawblog.org/?author=3>

Cristian Farias <http://www.huffingtonpost.com/entry/michigan-supreme-court-straight-ticket-voting_us_57c9e31ae4b0e60d31df336d> for HuffPo.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Donald Trump’s Likely Campaign Finance Violations By Failing To List Amounts Owed To Former Staffer(s)”<http://electionlawblog.org/?p=86172>
Posted on September 2, 2016 7:25 pm<http://electionlawblog.org/?p=86172> by Rick Hasen<http://electionlawblog.org/?author=3>

Arizona’s Politics.<https://t.co/3DB8iLmTDO>

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

“Judge orders new election for Hubbard/Franks state representative race in St. Louis”<http://electionlawblog.org/?p=86170>
Posted on September 2, 2016 3:01 pm<http://electionlawblog.org/?p=86170> by Rick Hasen<http://electionlawblog.org/?author=3>

St. Louis Post-Dispatch:<http://www.stltoday.com/news/local/govt-and-politics/judge-orders-new-election-for-hubbard-franks-state-representative-race/article_0df17a1d-db2b-5b8f-a583-80f28ef0e73f.html>

A St. Louis circuit judge on Friday tossed out the results of the Aug. 2 Democratic primary battle between state representative candidates Penny Hubbard and Bruce Franks and ordered a new election.

Circuit Judge Rex Burlison sided with Franks, saying absentee ballots were cast improperly and could have affected the outcome of the race. A new election is set for Sept. 16.

The judge’s 22 page opinion <http://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/2/91/29194fee-33a6-59b1-b4b5-7541d745e082/57c9f31d105d9.pdf.pdf> makes it clear that there’s no evidence a voter acted fraudulently, but local election officials did not follow state law and the difference between the candidates was smaller than the number of questionable absentee ballots.
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Posted in election administration<http://electionlawblog.org/?cat=18>

Quote of the Day: Voter Suppression Edition<http://electionlawblog.org/?p=86168>
Posted on September 2, 2016 2:45 pm<http://electionlawblog.org/?p=86168> by Rick Hasen<http://electionlawblog.org/?author=3>

Longtime Republican consultant Carter Wrenn, a fixture in North Carolina politics, said the GOP’s voter fraud argument is nothing more than an excuse.

“Of course it’s political. Why else would you do it?” he said, explaining that Republicans, like any political party, want to protect their majority. While GOP lawmakers might have passed the law to suppress some voters, Wrenn said, that does not mean it was racist.

“Look, if African Americans voted overwhelmingly Republican, they would have kept early voting right where it was,” Wrenn said. “It wasn’t about discriminating against African Americans. They just ended up in the middle of it because they vote Democrat.”

In must-read WaPo story<https://www.washingtonpost.com/politics/courts_law/inside-the-republican-creation-of-the-north-carolina-voting-bill-dubbed-the-monster-law/2016/09/01/79162398-6adf-11e6-8225-fbb8a6fc65bc_story.html?postshare=101472834315371&tid=ss_tw>

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

“The People And The Power”<http://electionlawblog.org/?p=86166>
Posted on September 2, 2016 1:57 pm<http://electionlawblog.org/?p=86166> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Backer<http://dailycaller.com/2016/09/02/the-people-and-the-power/> at the Daily Caller defending unlimited money in politics.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Michigan Asks for Emergency #SCOTUS Relief in Straight-Ticket Voting Case<http://electionlawblog.org/?p=86158>
Posted on September 2, 2016 11:08 am<http://electionlawblog.org/?p=86158> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday I reported<http://electionlawblog.org/?p=86107> that Michigan lost a bid for en banc review of a stay a trial court order stopping Michigan from getting rid of straight-ticket (party lever) voting, on grounds that doing so would be a Voting Rights Act violation.

Now Chris Geidner reports <https://twitter.com/chrisgeidner/status/771769849894801408> that Michigan is seeking emergency relief at the Supreme Court in this case, and it wants a resolution by Sept. 8. That’s a tight time frame with Labor Day weekend. (In the Ohio case, Justice Kagan just gave Ohio until the 8th to file its response).

I haven’t seen the full petition yet, so it is hard for me to judge what’s likely to happen in the case. But from what I know at this point, getting a stay will be tough going for the state.

UPDATE: Here<https://www.scribd.com/document/322858098/16A225-Stay-Application> [updated link] is the stay request. OK, this is really not well done.  The introduction promises a Purcell type argument<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>, the best type of argument to try to find a fifth liberal Justice who could get interested in the case. But then the brief does not mention Purcell again, at all!

And then the lead argument is that this case is in contradiction with Crawford, the case rejecting a facial challenge to Indiana’s voter id law. NOT the way to attract a fifth Justice, and not really responsive to the argument that the law violates Section 2 of the Voting Rights Act. (The petition does address the VRA issue second). (And I don’t think the weakness of the brief is intentional, as it might have been with the Clement brief)<http://electionlawblog.org/?p=86119>.

Add to that the fact that the Sixth Circuit said a stay made sense because Michigan failed to offer any affirmative evidence supporting its view that straight ticket voting did not burden minority voters.

These weaknesses and the really quick timetable make me think this is not going to be a winner for emergency SCOTUS relief for the state of Michigan, even if, after a full appeal, the state of Michigan could well win its case.

SECOND UPDATE: Justice Kagan has called for a response<https://twitter.com/chrisgeidner/status/771806324703236096> to the petition by 10 am on Wednesday 9/7.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

Justice Kagan Asks for OH to Respond to “Golden Week” Emergency Petition<http://electionlawblog.org/?p=86156>
Posted on September 2, 2016 10:46 am<http://electionlawblog.org/?p=86156> by Rick Hasen<http://electionlawblog.org/?author=3>

Response due<https://twitter.com/chrisgeidner/status/771718655788851200> Thursday, Sept. 8.

See my earlier coverage and thoughts<http://electionlawblog.org/?p=86121> on this case.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

--
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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