"House Democrats ask for Justice investigation as New York AG looks into Trump Foundation"<http://electionlawblog.org/?p=86512>
Posted on September 14, 2016 8:03 am<http://electionlawblog.org/?p=86512> by Rick Hasen<http://electionlawblog.org/?author=3>
Democrats have found a way<https://www.washingtonpost.com/news/post-nation/wp/2016/09/13/democrats-ask-for-investigation-of-trump-foundation-donation/?utm_term=.0247d334e5e1> to keep Trump-Bondi in the press.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>
"New Documents Released From Hack of Democratic Party"<http://electionlawblog.org/?p=86510>
Posted on September 14, 2016 8:03 am<http://electionlawblog.org/?p=86510> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/09/14/us/politics/dnc-hack.html?ref=politics>
The documents released Tuesday were not immediately as damaging as the first trove, and they proved difficult to access. WikiLeaks, the anti-secrecy platform, posted multiple messages on Twitter explaining how to download the documents after users struggled to do so. Initial reports suggested that they were old records related to the committee's donor outreach program.
Their release is likely to put more focus on Russia's efforts to meddle in the presidential election. American intelligence agencies and private investigators concluded in July<http://www.nytimes.com/2016/07/27/us/politics/spy-agency-consensus-grows-that-russia-hacked-dnc.html> that the hack was the work of the Russian government.
I'd say it is getting less and less likely that we will actually see some big October surprise from DNC documents. My guess is that if they had something explosive to reveal, it would have been out by now. But we'll see.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>
"S O S! Voter ID dominates the race for New Mexico's chief election official"<http://electionlawblog.org/?p=86508>
Posted on September 14, 2016 7:59 am<http://electionlawblog.org/?p=86508> by Rick Hasen<http://electionlawblog.org/?author=3>
The Santa Fe Reporter contains this article.<http://www.sfreporter.com/santafe/article-12473-s-o-s_.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
"The rise of GOP mega-donor Rebekah Mercer"<http://electionlawblog.org/?p=86505>
Posted on September 14, 2016 7:57 am<http://electionlawblog.org/?p=86505> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports<https://www.washingtonpost.com/politics/the-rise-of-gop-mega-donor-rebekah-mercer/2016/09/13/85ae3c32-79bf-11e6-beac-57a4a412e93a_story.html>:
Mercer exemplifies a new breed of activist donors that has risen since the Supreme Court kicked off a flood of big money into elections in 2010. As one of the most influential figures in Trump's orbit, she threatens to undercut the candidate's insistence that he is free from the influence of elite contributors. And her access shows how donors can easily move between a campaign and a super PAC that is supposed to operate independently.
In response to a question about Mercer's influence on the campaign, Trump spokeswoman Hope Hicks said in a statement: "The only special interest Mr. Trump is beholden to is the American people."
The 42-year-old former Wall Street trader is not your typical mega-donor, and not just because of the vast wealth of her father, who earned an estimated $150 million last year, according to Forbes.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>
"Judge issues extraordinary dissent in voting rights case"<http://electionlawblog.org/?p=86503>
Posted on September 14, 2016 7:50 am<http://electionlawblog.org/?p=86503> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Gerstein<http://www.politico.com/blogs/under-the-radar/2016/09/judge-issues-extraordinary-dissent-in-voting-rights-case-228126> for Politico.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Donald Trump Gave at Least $15,000 in Undisclosed Money to Help WI Republicans<http://electionlawblog.org/?p=86501>
Posted on September 14, 2016 7:43 am<http://electionlawblog.org/?p=86501> by Rick Hasen<http://electionlawblog.org/?author=3>
A nugget buried in the must-read Guardian John Doe story:<https://www.theguardian.com/us-news/ng-interactive/2016/sep/14/john-doe-files-scott-walker-corporate-cash-american-politics?CMP=Share_iOSApp_Other>
good example of the way things worked was the donation made by Donald Trump. On 3 April 2012, two months before the governor faced the electorate, Walker flew to New York for a rapid-fire string of fundraising meetings with big money interests.
He travelled the length of Fifth Avenue in Manhattan, making stops at the investment bank Morgan Stanley, a hedge fund, a corporate law firm, and the residence of publishing tycoon Steve Forbes. He also enjoyed a 45-minute audience with Trump<http://www.documentcloud.org/documents/3105985-2012-08-14-Exhibits-01-100-PT2.html#document/p9/a317522> in his Fifth Avenue lair.
There is no record of the conversation between the two men. But it appears to have been a warm encounter, as the John Doe files show that Trump wrote a check for $15,000<http://www.documentcloud.org/documents/3105985-2012-08-14-Exhibits-01-100-PT2.html#document/p11/a317523> on the same day. Who was the beneficiary of Trump's generosity? Wisconsin Club for Growth.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
If a Presidential Nominee Or President Elect Withdraws or Dies<http://electionlawblog.org/?p=86497>
Posted on September 14, 2016 7:37 am<http://electionlawblog.org/?p=86497> by Richard Pildes<http://electionlawblog.org/?author=7>
In response to lots of media requests on improbable election scenarios, I've laid out in today's Washington Post/Monkey Cage, here<https://www.washingtonpost.com/news/monkey-cage/wp/2016/09/14/what-happens-if-a-u-s-presidential-candidate-withdraws-or-dies-before-the-election-is-over/>, the existing legal framework and gaps for the four crucial contexts in which a presidential nominee or "President-elect" might withdraw or die before being sworn into office:
1. The Republican or Democratic nominee withdraws or dies before the November election.
2. The winner of the vote on election day withdraws or dies after the election but before the electoral college meets and formally votes in December.
3. The winner of the electoral college vote withdraws or dies before Congress actually formally receives the vote from the electors and counts it in January.
4. The winner of the electoral college vote, as received and counted by Congress, withdraws or votes before being sworn in.
For some of these scenarios, what is most troubling is the absence of a clear legal framework established in advance of the moment of crisis. It would certainly be better for Congress to enact legislation to fill in the gaps, where it has the power to do so, during the veil of ignorance that exists before anyone knows which partisans would benefit from particular legal rules. But I'm not betting on that happening.
For a fuller academic treatment of these issues, see Akhil Amar's article, "Presidents, Vice Presidents, and Death: Closing the Constitution's Succession Gap.<http://heinonline.org/HOL/Page?handle=hein.journals/arklr48&div=12&g_sent=1&collection=journals>"
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Wow. Wow. Wow: Guardian Publishes WI "John Doe" Documents, Showing WI Republicans Panicked over Losing State Supreme Court Control<http://electionlawblog.org/?p=86498>
Posted on September 14, 2016 7:34 am<http://electionlawblog.org/?p=86498> by Rick Hasen<http://electionlawblog.org/?author=3>
This is this week's must read.<https://www.theguardian.com/us-news/ng-interactive/2016/sep/14/john-doe-files-scott-walker-corporate-cash-american-politics?CMP=Share_iOSApp_Other> And it is bound to get attention as the Supreme Court of the US considers whether to take up John Doe case.
I wish I had time to go through the 1500 pages of papers the Guardian has posted along with this series.
A snippet:
By now the anxiety surrounding the fate of the Wisconsin supreme court judge, David Prosser, is growing more intense. "This could stop everything that Walker is trying to accomplish and [the unions] know it. Goes without saying, that would be a bad thing,"Seaholm says<http://www.documentcloud.org/documents/3105950-Strategy-Coordination.html#document/p7/a317545>, writing to Tim Phillips, AFP's national president.
By 20 March, two weeks before the election, worry is distilling into panic. Brian Fraley of the Wisconsin-based conservative think-tank the MacIver Institute, shoots an impassioned plea for help to what he calls his "group" of like-minded lobbying groups and individuals, forwarded to Walker's chief of staff and other top advisers in Madison.
"David Prosser is in trouble,"<http://www.documentcloud.org/documents/3105957-Prosser.html#document/p6/a317546> Fraley begins. "And if we lose him, the Walker agenda is toast, as could be the Senate GOP majority and any successes creating a new redistricted map. That's not hyperbole."
By the end of the bitter campaign, some $3.5m was spent by outside lobby groups channeling undisclosed corporate money to support Prosser's re-election - more than eight times the $400,000 the judge was allowed to spend himself. That included $1.5m from WCfG and its offshoot Citizens for a Strong America, and $2m from Wisconsin Manufacturers & Commerce (WMC), all of it in unaccountable "dark money".
It worked. Prosser was re-elected<http://archive.jsonline.com/news/statepolitics/122364728.html>, with a squeaky-tight margin of just 7,000 votes and after a fraught recount. The following month, Walker boasted to the Republican kingmaker, Karl Rove, "Club for Growth-Wisconsin was the key to retaining Justice Prosser<http://www.documentcloud.org/documents/3105957-Prosser.html#document/p18/a317547%20"Guardian">....
In a telephone interview with the Guardian, Prosser, who retired from the state supreme court in July, said that in his view sufficient time had passed between his re-election in 2011 and the judgment in the John Doe case in 2015 for any potential conflict of interest to fade. "If this had been a year after the contributions I think I would have had to withdraw, but it was four years. There was no expectation on the part of recipient or givers that the contributions were designed to effect litigation, and so the contributions raised no questions whatsoever."
Prosser said that at the time of his re-election he was facing hostile TV ads that falsely tried to link him to Walker's contentious anti-union legislation Act 10, while he himself was unable directly to solicit large amounts of campaign contributions under new strict fundraising limits imposed by an earlier Democratic-controlled legislature. "I certainly expected Wisconsin Manufacturers & Commerce sooner or later to put some money into my campaign. Of course I was going to hope that somebody would come in and defend me because I was unable to defend myself."
But the judge stressed that the only spending involved came from "third parties in which no one on my campaign knew they were coming, didn't ask for them, and frankly if they hadn't come I would have been blown out of the water by false advertising".
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, Supreme Court<http://electionlawblog.org/?cat=29>
"Kobach, Johnson exchange blows in voter law debate"<http://electionlawblog.org/?p=86495>
Posted on September 13, 2016 8:36 pm<http://electionlawblog.org/?p=86495> by Rick Hasen<http://electionlawblog.org/?author=3>
Fortunately, this<http://m.cjonline.com/news/state/2016-09-13/kobach-johnson-exchange-blows-voter-law-debate> is not meant literally.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
Two from Michael Gilbert<http://electionlawblog.org/?p=86493>
Posted on September 13, 2016 8:20 pm<http://electionlawblog.org/?p=86493> by Rick Hasen<http://electionlawblog.org/?author=3>
Aggregate Limits in the States<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2837927>
Forthcoming in Democracy by the People: Reforming Campaign Finance in America (Timothy K. Kuhner and Eugene D. Mazo eds., Cambridge University Press, 2017)
Abstract:
This chapter, written for an edited volume on campaign finance, examines aggregate contribution limits and their potential to combat corruption. Base limits cap the amount one can contribute to individual candidates, while aggregate limits cap the amount one can give to all candidates. As I explain, base limits should tend to affect the magnitude of corrupt acts while aggregate limits should tend to affect their frequency. The Supreme Court failed to appreciate that second point in McCutcheon v. FEC, concluding that aggregate limits serve no anti-corruption purpose and violate the Constitution. Many observers interpreted McCutcheon to foreclose all aggregate limits, and some states stopped enforcing their aggregate limits as a result, but that reaction is unjustified. McCutcheon does not reach beyond federal law, and aggregate limits remain viable at sub-national levels of government. They offer an under-theorized but important mechanism for reducing corruption.
Entrenchment, Incrementalism, and Constitutional Collapse<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2837796>
Virginia Law Review, Forthcoming
Abstract:
Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: entrenched law is difficult to change. Scholars and legal designers have long understood this idea, which can be called the first status quo bias of entrenchment. I show that a second bias lurks: entrenchment confines changes that do take place to incremental steps. As entrenchment deepens, the scope of potential change to law collapses on the status quo. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters' preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts fundamental questions of legal design in new light, and it may explain why some constitutions endure while others collapse.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
"Courts uphold trimming of Ohioans' voting rights"<http://electionlawblog.org/?p=86491>
Posted on September 13, 2016 6:22 pm<http://electionlawblog.org/?p=86491> by Rick Hasen<http://electionlawblog.org/?author=3>
Darrel Rowland <http://www.dispatch.com/content/stories/local/2016/09/13/absentee-votes-ruling.html> for the Columbus Dispatch:
In a pair of court decisions that could help Donald Trump, Ohioans' voting rights were pared back Tuesday for the 2016 presidential election.
The U.S. Supreme Court declined to review an appeals court panel's 2-1 ruling throwing out Golden Week, the period in which Ohioans could both register to vote and cast an early ballot.
Several hours later a separate but equally divided panel of that same Cincinnati-based appellate court largely upheld restrictions enacted by the GOP-dominated legislature in 2014 and signed by Republican Gov. John Kasich.
All that reshaped the Ohio electoral landscape to one less favorable to minority and Democratic voters - and thus presumably more to Trump's liking.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
3rd Circuit Denies En Banc Appeal in Sen. Menendez Case<http://electionlawblog.org/?p=86489>
Posted on September 13, 2016 4:42 pm<http://electionlawblog.org/?p=86489> by Rick Hasen<http://electionlawblog.org/?author=3>
Nest stop SCOTUS?<http://www.politico.com/story/2016/09/menendez-loses-in-appeals-court-228127>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, Speech or Debate Clause<http://electionlawblog.org/?cat=36>
Another OH Voting Rights Loss: Divided 6th Cir. Mostly Rejects Order Easing Absentee/Provisional Balloting<http://electionlawblog.org/?p=86484>
Posted on September 13, 2016 3:24 pm<http://electionlawblog.org/?p=86484> by Rick Hasen<http://electionlawblog.org/?author=3>
Over an impassioned dissent recounting the disparate racial effects of its decision, a 6th Circuit panel has voted 2-1 to mostly reject <https://t.co/WKFwktAUh4> a district court order rejecting some Ohio voting rules which make it harder for voters voting absentee or with provisional ballots. The dissent accuses the majority of condoning racist laws that make it harder for people of color to vote.
No one paying attention will fail to notice that the majority opinion was written by two white, Republican appointed judges, while the dissent was written by 94 year-old Damon Keith, an African-American judge appointed by Jimmy Carter.
I expect that we will see a petition for review before the entire Sixth Circuit in this case, which is a more likely path to reversal than before a 4-4 Supreme Court.
>From Judge Boggs' majority opinion:
In 2014, Ohio enacted Senate Bills 205 and 216. Among other changes to Ohio election law, they (1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters. The district court held that all three provisions impose an undue burden on the right to vote and disparately impact minority voters.
We affirm the plaintiffs' undue-burden claim only as it relates to the requirement imposed by Senate Bill 205 that in-person and mail-in absentee voters complete the address and birthdate fields on the identification envelope with technical precision. We reverse the district court's finding that the other provisions create an undue burden. We also reverse the district court's finding that the provisions disparately impact minority voters. We affirm the district court's other holdings.
And near the end of the majority opinion there's this:
We deeply respect the dissent's recounting of important parts of the racial history of our country and the struggle for voting rights, and we agree that this history may always be appropriately borne in mind. However, that history does not without more determine the outcome of today's litigation over voting practices and methods. The legal standards we must follow are set out in the cases we discuss concerning the standards embodied in the Fourteenth Amendment and Section 2 of the Voting Rights Act. With respect to the dissent's discussion regarding factual findings, this opinion does not quarrel with the district court over its recitation of the record or of any credibility determinations made by the district court. Rather, our holding is that the district court's legal conclusions from that record are in certain parts erroneous, as set forth in this opinion, and in light of other parts of the record that the court did not consider.
The lengthy dissent by Judge Keith begins:
Democracies die behind closed doors. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002). By denying the most vulnerable the right to vote, the Majority shuts minorities out of our political process. Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote, the Majority has abandoned this court's standard of review in order to conceal the votes of the most defenseless behind the dangerous veneers of factual findings lacking support and legal standards lacking precedent. I am deeply saddened and distraught by the court's deliberate decision to reverse the progress of history. I dissent.
In complete abandonment of the clearly erroneous standard of review, the Majority displaces several of the district court's well-reasoned and supported factual findings. The Majority's decision to gut the factual findings of the district court and to advance legal standards without precedent in order to shut the most vulnerable out of the political process must be subjected to the natural antiseptic of sunlight. The unfettered right to vote is the bedrock of a free and democratic society-without it, such a society cannot stand. This right is fundamental. It is the most valuable right a person possesses, because without it, all other rights are meaningless. As history has shown time and time again, laymen and jurists alike have actively worked to deny the right to vote to minorities, in both obvious and obscure ways. The Voting Rights Act ("VRA"),1sought to right this wrong by allowing all citizens-unrestrained-to exercise their right to vote regardless of race. While the VRA and Equal Protection Clause sought to bring this nation forward, closer to a society free of racial discrimination, today the Majority's opinion takes us several steps back. Because the Majority has completely ignored the applicable standard of review and has instead engaged in its own fact finding and reweighing of the evidence in complete disregard for the clearly erroneous standard of review, because the Majority has created a legal standard in contradiction to existing case law based on a concurring opinion and dictum, and because the Majority has dishonored the struggle for the right of the most vulnerable to vote, I dissent. I would instead affirm the district court in full.
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
Texas, Opposing Motion by DOJ and Others, Says It is Doing Good Enough Job on Voter ID Softening Education<http://electionlawblog.org/?p=86482>
Posted on September 13, 2016 9:18 am<http://electionlawblog.org/?p=86482> by Rick Hasen<http://electionlawblog.org/?author=3>
Response.<https://www.scribd.com/document/323872736/Texas-Voter-ID-Response>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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