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

[Rick Hasen]

“Senate Dysfunction Blocks Bipartisan Criminal Justice Overhaul”<http://electionlawblog.org/?p=86610>
Posted on September 16, 2016 7:19 am<http://electionlawblog.org/?p=86610> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2016/09/17/us/politics/senate-dysfunction-blocks-bipartisan-criminal-justice-overhaul.html?ref=politics>:

A major criminal-justice overhaul bill seemed destined to be the bipartisan success story of the year, consensus legislation that showed lawmakers could still rise above politics and take on a serious societal problem.

Then the election got in the way. With Donald J. Trump demanding “law and order” and Senate Republicans divided on the wisdom of reducing federal mandatory minimum sentences, the effort that began with real promise stalled, and now its Senate authors acknowledge there is virtually no chance for action on the measure this year.

“I do believe it is over,” said Senator Richard J. Durbin of Illinois, the No .2 Democrat in the Senate, who put considerable effort into difficult negotiations with Republicans to strike a compromise. “We missed an opportunity.”

What remains is a stunning display of dysfunction given the powerful forces arrayed behind legislation meant to provide a second chance for nonviolent offenders facing long prison sentences while also saving tax dollars on prison costs.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>


“North Carolina’s Fragile Voting Rights Victory”<http://electionlawblog.org/?p=86608>
Posted on September 16, 2016 7:14 am<http://electionlawblog.org/?p=86608> by Rick Hasen<http://electionlawblog.org/?author=3>

Scott Lemieux for TAP<http://prospect.org/article/north-carolina%E2%80%99s-fragile-voting-rights-victory>.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Anti-Trump Republicans: Don’t Waste Your Vote. Trade It.”<http://electionlawblog.org/?p=86606>
Posted on September 16, 2016 7:07 am<http://electionlawblog.org/?p=86606> by Rick Hasen<http://electionlawblog.org/?author=3>

Vote trading ideas are back, this time on the NYT oped page<http://www.nytimes.com/2016/09/16/opinion/anti-trump-republicans-dont-waste-your-vote-trade-it.html?ref=opinion&_r=0> (John Stubbs and Ricardo Reyes):

Republican voters who refuse to vote for Donald J. Trump are in a bind. They could vote for Hillary Clinton, but that means supporting a candidate whose positions likely run counter to their beliefs. Or they could vote for Gary Johnson, the Libertarian candidate, whose positions might be closer to their own but who stands almost no chance of winning a single state, let alone the White House.

Fortunately, there’s a precedent, and a solution: vote trading, which was first attempted during the 2000 election and which, thanks to today’s more robust internet, could make all the difference in a tight race.

Sixteen years ago, the concern was that votes for the left-leaning third-party candidate, Ralph Nader, could siphon off critical support for Al Gore in swing states like Florida. Gore supporters begged Naderites not to “throw away” their vote — an insinuation that Nader voters found offensive.

As the election neared, though, “Nader Trader” websites<http://www.slate.com/articles/news_and_politics/high_concept/2000/10/naders_traders.html> emerged. The idea was simple: A Nader supporter in Florida, where every vote mattered, could promise to vote for Mr. Gore — and, in exchange, a Gore supporter in a Democratic stronghold like Washington, D.C., would promise to vote for Mr. Nader.

It was a good idea, but in 2000, it didn’t work. Word didn’t spread fast enough, and the internet was still in its infancy. But it’s worth revisiting.

First, consider the size of the #NeverTrump Republican vote. In 2012<http://www.cnn.com/election/2012/results/state/OH/president/> Ohio Republicans went 94 percent for Mitt Romney; President Obama received 5 percent of their votes and 1 percent went to “other.” This year, because of Mr. Trump’s candidacy, the percentage of Republicans who have indicated they are voting for Mrs. Clinton or Mr. Johnson or are unsure is 18.2 percent.

Why isn’t this illegal vote buying? California made that claim after 2000, and the 9th Circuit held that these were not binding promises, and they were a form of First Amendment protected speech.  Not clear if other courts would agree should this arise again. (Here’s the last <http://cdn.ca9.uscourts.gov/datastore/opinions/2007/08/06/0655517.pdf> of the Ninth Circuit’s opinions on this.)
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Posted in campaigns<http://electionlawblog.org/?cat=59>, vote buying<http://electionlawblog.org/?cat=43>


“Legislating in the Shadows”<http://electionlawblog.org/?p=86604>
Posted on September 16, 2016 7:00 am<http://electionlawblog.org/?p=86604> by Rick Hasen<http://electionlawblog.org/?author=3>

Chris Walker has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2826146> on SSRN (forthcoming Penn L Rev).  Here is the abstract:

Federal agencies are deeply involved in legislative drafting — both in the forefront by drafting the substantive legislation the Administration desires to submit to Congress and in the shadows by providing confidential “technical drafting assistance” on legislation that originates from congressional staffers. This technical drafting assistance helps Congress avoid considering legislation that would unnecessarily disrupt the current statutory scheme by leveraging agency expertise on the subject matter. But it also allows the agency to play an active yet opaque role in drafting legislation from the very early stages. In fact, the empirical findings presented in this Article, based on extensive interviews and surveys at some twenty federal agencies, suggest that agencies provide technical drafting assistance on the vast majority of proposed legislation that directly affects them and on nearly all such legislation that gets enacted.

The under explored yet widespread practice of legislating in the shadows has important implications for administrative law theory and doctrine and the conventional principal–agency bureaucratic model. On the one hand, this phenomenon perhaps supports the growing scholarly call that agencies should be allowed to engage in more purposivist interpretation (than their judicial counterparts) because of their expertise in legislative history and purpose and their role in statutory drafting. On the other, the phenomenon may cast some doubt on the foundations for judicial deference to agency statutory interpretations, in that agencies are intimately involved in drafting the legislation that ultimately delegates to the agencies the authority to interpret that legislation. In other words, many of the agency self-delegation criticisms raised against Auer deference could apply with some force to agency statutory interpretation and Chevron deference as well. Or we should at least be considering more closely the administrative state’s role in drafting legislation — especially drafting legislation in the shadows — when considering to what degree courts should defer to agency statutory interpretations. Such reconsideration is particularly warranted in light of the transparency concerns implicated by agency legislating in the shadows.

This looks like it will be a very important paper.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>


“Polling places become battleground in U.S. voting rights fight”<http://electionlawblog.org/?p=86602>
Posted on September 16, 2016 6:54 am<http://electionlawblog.org/?p=86602> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters<http://www.reuters.com/article/us-usa-election-vote-precincts-insight-idUSKCN11M0WY>:

A Reuters survey found local governments in nearly a dozen, mostly Republican-dominated counties in Georgia have adopted plans to reduce the number of voting stations, citing cost savings and efficiency.

In seven of those counties, African-Americans, who traditionally back Democrats, comprised at least a quarter of the population, and in several counties the changes will disproportionately affect black voters. At least three other counties in Georgia dropped consolidation plans under public pressure.

While polling place cutbacks are on the rise across the country, including in some Democratic-run areas, the South’s history of racial discrimination has made the region a focus of concern for voting rights advocates.

Activists see the voting place reductions as another front in the fight over Republican-sponsored statewide voting laws such as stricter ID requirements that disproportionately affect minority and poorer voters who tend to vote for the Democratic Party.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Debate for Democracy: Hillary Clinton and Donald Trump should address concerns about our representative democracy in the debate”<http://electionlawblog.org/?p=86600>
Posted on September 16, 2016 6:52 am<http://electionlawblog.org/?p=86600> by Rick Hasen<http://electionlawblog.org/?author=3>

FEC Commissioner Ann Ravel at US News.<http://www.usnews.com/opinion/articles/2016-09-15/make-the-first-presidential-debate-about-democracy?body=>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


“Activists twist Watergate to stigmatize corporate speech”<http://electionlawblog.org/?p=86598>
Posted on September 16, 2016 6:51 am<http://electionlawblog.org/?p=86598> by Rick Hasen<http://electionlawblog.org/?author=3>

Brad Smith and Luke Wachob in The Hill. <http://thehill.com/blogs/congress-blog/politics/295997-activists-twist-watergate-to-stigmatize-corporate-speech>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Election Officials’ Not-So-Secret Weapon Against Doubts: Resilience”<http://electionlawblog.org/?p=86596>
Posted on September 16, 2016 6:50 am<http://electionlawblog.org/?p=86596> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2016/09/16/election-officials-not-so-secret-weapon-against-doubts-resilience/>


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


5 Money in Politics Lessons from WI John Doe<http://electionlawblog.org/?p=86594>
Posted on September 16, 2016 6:48 am<http://electionlawblog.org/?p=86594> by Rick Hasen<http://electionlawblog.org/?author=3>

CREW blogs.<http://www.citizensforethics.org/five-money-politics-lessons-wisconsin-john-doe-investigation-leak/>


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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


“Hillary Clinton Takes Aim at Voters Drifting Toward Third Party”<http://electionlawblog.org/?p=86592>
Posted on September 15, 2016 8:07 pm<http://electionlawblog.org/?p=86592> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/09/16/us/politics/hillary-clinton-presidential-race.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=sectionfront>

WASHINGTON — Hillary Clinton<http://www.nytimes.com/interactive/2016/us/elections/hillary-clinton-on-the-issues.html?inline=nyt-per> and her Democratic allies, unnerved by the tightening presidential race, are making a major push to dissuade disaffected voters from backing third-party candidates, and pouring more energy into Rust Belt states, where Donald J. Trump is gaining ground.

With Mrs. Clinton enduring one of the rockiest stretches of her second bid for the presidency, her campaign and affiliated Democratic groups are shifting their focus to those voters, many of them millennials, who recoil at Mr. Trump, her Republican opponent, but now favor the Libertarian nominee, Gary Johnson<https://www.nytimes.com/topic/person/gary-e-johnson?inline=nyt-per>, or the Green Party candidate, Jill Stein.

While still optimistic that the race will turn decisively back in Mrs. Clinton’s favor after the debates, leading Democrats have been alarmed by the drift of young voters toward the third-party candidates.

The principal “super PAC<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>” supporting Mrs. Clinton’s candidacy, Priorities USA Action, has concluded from its polling and other research that the reluctance to embrace the Democratic nominee among those who intensely dislike Mr. Trump is not going away and must be confronted.

“We’ll be launching a multimillion-dollar digital campaign that talks about what’s at stake and how a vote for a third-party candidate is a vote for Donald Trump, who is against everything these voters stand for,” said Justin Barasky, a strategist for Priorities USA.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, third parties<http://electionlawblog.org/?cat=47>


“State Police investigating voter registration fraud”<http://electionlawblog.org/?p=86590>
Posted on September 15, 2016 6:26 pm<http://electionlawblog.org/?p=86590> by Rick Hasen<http://electionlawblog.org/?author=3>

IndyStar<http://www.indystar.com/story/news/politics/2016/09/15/state-police-investigating-voter-registration-fraud/90407438/>:

The Indiana State Police is investigating what it says are fraudulent voter registration forms in Marion and Hendricks counties.

The forms are among more than 28,000 submitted to county registration offices by a little-known group called the Indiana Voter Registration Project.

“We have determined at least 10 voter registration forms are confirmed to have fraudulent information,” said Dave Bursten, an Indiana State Police spokesman.

Bursten said a team of six detectives is working to determine whether other forms are also fraudulent. The FBI has also been briefed, he said.

“This is not an investigation that’s going to end in three days,” he said. “This is going to take time to peel back multiple layers of the onion.”

The group has no website and is not registered with the Indiana secretary of state’s office.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>


“Ohio Purging Voters”<http://electionlawblog.org/?p=86588>
Posted on September 15, 2016 3:25 pm<http://electionlawblog.org/?p=86588> by Rick Hasen<http://electionlawblog.org/?author=3>

Yup.<http://www.13abc.com/content/news/Ohio-purging-voters-from-rolls-393618441.html>

The State of Ohio says it’s a fair system. A judge recently ruled in favor of voter purging. The ACLU has filed an appeal. While Brickner agrees that states need a clean list, he doesn’t think people who haven’t recently voted should suffer.

“We don’t run on a use it or lose it system,” he says.

A decision on the appeal is expected any day.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“What Leaked John Doe Docs Reveal About WI Elections”<http://electionlawblog.org/?p=86586>
Posted on September 15, 2016 3:17 pm<http://electionlawblog.org/?p=86586> by Rick Hasen<http://electionlawblog.org/?author=3>

I spoke with WPR’s Central Time about the case and the potential for Supreme Court review. Listen.<http://www.wpr.org/what-leaked-john-doe-docs-reveal-about-wi-elections>

.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, Supreme Court<http://electionlawblog.org/?cat=29>


Trump-Bondi Timeline Doesn’t Let Trump Off the Hook<http://electionlawblog.org/?p=86583>
Posted on September 15, 2016 3:07 pm<http://electionlawblog.org/?p=86583> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday I linked <http://electionlawblog.org/?p=86540> to a NY Times stor<http://www.nytimes.com/2016/09/15/us/politics/pam-bondi-donald-trump-foundation.html?ref=politics&_r=0>y which suggested that maybe the $25,000 from Trump to Florida AG Bondi was not meant to influence her choice on whether to go after Trump U fraud claims, on grounds that the check came after the matter came to light:

But documents obtained this week by The New York Times, including a copy of Mr. Trump’s check, at least partly undercut that timeline. Although the check was received by Ms. Bondi’s committee four days after the Sentinel report, and was recorded as such in her financial disclosure filings, it was actually dated and signed by Mr. Trump four days before the article appeared.

But now there is this <http://www.orlandosentinel.com/opinion/columnists/os-rubio-murphy-bondi-trump-scott-maxwell-20160915-column.html> from the Orlando Sentinel:

Part of Bondi’s claim has been ignorance –that she didn’t even know her office had been asked to probe Trump.

If so, she was just about the only one in her office who didn’t know what was going on.

I found emails from Aug. 30, 2013 — more than two weeks before Bondi’s campaign took the money from Trump — copied to Bondi’s chief of staff, deputy attorney general, assistant attorney general and spokeswoman that mention the New York Attorney General pursuing a case against Trump University and noting that Florida complaints were involved.

(My emphasis).

Will this new info appear in the NY Times?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“BREAKING: Virginia Supreme Court slaps down Republicans’ attempt to block ex-felons from voting”<http://electionlawblog.org/?p=86581>
Posted on September 15, 2016 12:58 pm<http://electionlawblog.org/?p=86581> by Rick Hasen<http://electionlawblog.org/?author=3>

Think Progress:<https://thinkprogress.org/breaking-supreme-court-slaps-down-virginia-republicans-attempt-to-block-ex-felons-from-voting-5ab6b4f2b290#.xnof844zr>

The Virginia Supreme Court rejected a petition<https://twitter.com/AGMarkHerring/status/776483953909833728/photo/1> from Republican leaders on Thursday that sought to hold Virginia Gov. Terry McAuliffe (D) in contempt<http://www.richmond.com/news/virginia/article_397c5a9f-5695-521c-a791-fabae3e17812.html>for restoring the voting rights<https://thinkprogress.org/virginia-governor-bypasses-court-ruling-to-help-200-000-ex-felons-vote-7b17c78453c0#.987jm6gqm> of tens of thousands of ex-offenders ahead of the 2016 election.

McAuliffe attempted<https://thinkprogress.org/virginia-governor-will-allow-more-than-200-000-ex-felons-to-vote-6fed1f64fc16#.z37rh55p5> to automatically restore the rights of all 200,000 former felons in the state with an executive order back in April — bringing the state in line with nearly 40 others<http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx> across the country that allow people to become full citizens again after serving their sentences.

But the state’s Republican leaders sued<https://thinkprogress.org/virginia-republicans-sue-to-stop-200-000-ex-felons-from-voting-8daa9125589a#.k0459bn3f>, claiming the governor had overstepped his legal authority. A narrow majority on the Virginia Supreme Court agreed, and the registrations of thousands of ex-offenders who had been hoping to vote for the first time in decades were put in jeopardy.

When McAuliffe attempted to get around the court order<https://thinkprogress.org/virginia-governor-bypasses-court-ruling-to-help-200-000-ex-felons-vote-7b17c78453c0#.987jm6gqm> by signing each clemency petition individually, the Republican legislators sued him for contempt of court. Had the state Supreme Court accepted their arguments, thousands of ex-offenders in the state could have seen their voting rights re-appear and disappear twice in the span of just a few months.
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Posted in felon voting<http://electionlawblog.org/?cat=66>


More on Withdrawal of a Presidential Nominee<http://electionlawblog.org/?p=86573>
Posted on September 15, 2016 12:45 pm<http://electionlawblog.org/?p=86573> by Richard Pildes<http://electionlawblog.org/?author=7>

I’m posting this two-minute video segment I did on what happens if a presidential nominee withdraws, from the very good website Talks on Law, mostly for the amusement of my friends.  This is the first time I’ve worked with a website that inserts graphics and videos into otherwise unexciting legal commentary.  I thought the result was kind of fun:
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Clinton Might Not Renominate J. Garland for #SCOTUS But Would Not Ask Him to Withdraw<http://electionlawblog.org/?p=86571>
Posted on September 15, 2016 12:14 pm<http://electionlawblog.org/?p=86571> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg.<http://www.bloomberg.com/politics/articles/2016-09-15/hillary-clinton-hints-she-may-not-renominate-garland-for-court?utm_content=politics&utm_campaign=socialflow-organic&utm_source=twitter&utm_medium=social&cmpid%3D=socialflow-twitter-politics>

I’m still expecting Garland confirmation in lame duck if Clinton wins and Dems take the Senate.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


2d Cir. Panel Rules from Bench at End of Oral Argument in Denying Candidate Bid to Get on Ballot<http://electionlawblog.org/?p=86569>
Posted on September 15, 2016 11:55 am<http://electionlawblog.org/?p=86569> by Rick Hasen<http://electionlawblog.org/?author=3>

The WSJ reports:<http://www.wsj.com/articles/congressional-hopeful-loses-bid-for-primary-1473888490>

A would-be contender for retiring U.S. Rep. Steve Israel’s seat won’t get his name on a primary ballot after monthslong legal battle<http://www.wsj.com/articles/n-y-republican-seeks-to-postpone-house-election-date-to-december-1472521217>, a federal appeals court ruled Wednesday.

A three-judge panel of the Second U.S. Circuit Court of Appeals in New York overturned a lower court decision calling for an Oct. 6 Republican primary <http://www.wsj.com/articles/federal-judge-denies-n-y-politicians-request-to-delay-election-1472603823> in the state’s 3rd Congressional District, comprising portions of Nassau, Suffolk and Queens counties.

The decision brings to a close a long fight waged by Philip Pidot, a former fraud investigator who argued that he had been wrongfully barred from the GOP primary ballot in June.

That’s not so unusual. But what is unusual is that the United States Court of Appeals for the Second Circuit ruled orally from the bench on the question, vacating the injunction and reversing the district court.

Listen to the last ten seconds of the oral argument in the case.<http://www.ca2.uscourts.gov/decisions/isysquery/fb96ab1b-765a-4691-8e01-a606273c187c/%204/doc/16-3028.mp3>
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Posted in ballot access<http://electionlawblog.org/?cat=46>


“A few steps to overcome American ‘vetocracy””<http://electionlawblog.org/?p=86567>
Posted on September 15, 2016 10:53 am<http://electionlawblog.org/?p=86567> by Rick Hasen<http://electionlawblog.org/?author=3>

Francis Fukuyama oped<http://www.sfchronicle.com/opinion/article/A-few-steps-to-overcome-American-vetocracy-9222920.php> in SF Chronicle.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


“Protecting the Ballot for All: How Federal Courts Have Vindicated the Constitution and Prevented Voter Suppression by the States in the Run Up To the 2016 Election”<http://electionlawblog.org/?p=86565>
Posted on September 15, 2016 10:45 am<http://electionlawblog.org/?p=86565> by Rick Hasen<http://electionlawblog.org/?author=3>

New CAC issue brief.<http://theusconstitution.org/sites/default/files/briefs/Protecting-the-Ballot-for-All.pdf>

See also this resource page <http://theusconstitution.org/voting-rights-courts> on relevant litigation.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Big Election Law Biz News: Paul Ryan from Campaign Legal Center to Common Cause<http://electionlawblog.org/?p=86561>
Posted on September 15, 2016 10:04 am<http://electionlawblog.org/?p=86561> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s the announcement. <http://www.commoncause.org/press/press-releases/PaulSRyan.html?referrer=https://t.co/37FgGYikFS?referrer=http://www.commoncause.org/press/press-releases/PaulSRyan.html>

This is the second big pickup for Common Cause in recent months, with David Vance also coming from the Campaign Legal Center.

Good luck to both!
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Posted in election law biz<http://electionlawblog.org/?cat=51>


“A Lesson for Trump From Scott Walker: If the Election Is Close, Cry Fraud”<http://electionlawblog.org/?p=86559>
Posted on September 15, 2016 10:02 am<http://electionlawblog.org/?p=86559> by Rick Hasen<http://electionlawblog.org/?author=3>

John Nichols writes <https://www.thenation.com/article/a-lesson-for-trump-from-scott-walker-if-the-election-is-close-cry-fraud/> for The Nation.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Local officials must identify Kansas voters affected by ruling”<http://electionlawblog.org/?p=86557>
Posted on September 15, 2016 7:45 am<http://electionlawblog.org/?p=86557> by Rick Hasen<http://electionlawblog.org/?author=3>

Wichita Eagle:<http://www.kansas.com/news/politics-government/article101953172.html>

Kansas county election offices are sorting through thousands of records to identify voters affected by a recent federal court order, according to Secretary of State Kris Kobach.

The U.S. Court of Appeals for the D.C. Circuit blocked Kansas and two other states<http://www.kansas.com/news/politics-government/article100999387.html>from requiring proof of citizenship from people who register to vote using the federal form.

Kobach said the state’s voter database does not differentiate between people who register with the federal form and the state form, so local election officers will have to physically go through paper records of people who tried to register since January to determine which voters were affected by the ruling.

He estimated the number of people affected would be between 200 and 400 statewide.

The state began requiring voters to provide proof of citizenship, such as a birth certificate or passport, when they register to vote in 2013. Before this year, federal form registrants were allowed to cast ballots in federal elections regardless of whether they provided proof of citizenship.

The U.S. Election Assistance Commission decided in late January to allow Kansas, Georgia and Alabama to require proof of citizenship with the federal form. The League of Women Voters challenged the rule in court, prompting Friday’s order, which will allow these voters to participate in this year’s presidential election.

A separate case remains pending <http://www.kansas.com/news/politics-government/article97375157.html> before the U.S. Court of Appeals for the 10th Circuit. That case concerns whether the state can require people who register at the DMV to provide proof of citizenship.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Mr. Justice Peter Thiel? Watch Senate Republicans Nuke the Filibuster for #SCOTUS Nominees if Trump Elected President<http://electionlawblog.org/?p=86555>
Posted on September 15, 2016 7:20 am<http://electionlawblog.org/?p=86555> by Rick Hasen<http://electionlawblog.org/?author=3>

Today’s headlines show a Trump presidency is now more likely<http://www.nytimes.com/2016/09/16/us/politics/hillary-clinton-donald-trump-poll.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0>, and that a President Trump has told Paypal co-founder Peter Thiel he will be nominated<http://www.huffingtonpost.com/entry/trump-peter-thiel-supreme-court_us_57d80d57e4b09d7a687f9b03> to the United States Supreme Court. Thiel has some anti-democratic views, especially about the role of women.  According to HuffPo:

In a 2009 essay, Thiel wrote<http://www.cato-unbound.org/2009/04/13/peter-thiel/education-libertarian>: “I no longer believe that freedom and democracy are compatible.” Part of the reason for that incompatibility, Thiel argued, was that women had gained the right to vote and that the government sometimes helps poor people.

“Since 1920,” he wrote, “the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” (He laterclarified his comments<http://www.cato-unbound.org/2009/05/01/peter-thiel/suffrage-isnt-danger-other-rights-are>, saying he didn’t want to disenfranchise anyone.

Now, it is far from certain Trump will be elected President, and it seems unlikely that a President Trump would nominate Thiel, who would face stiff resistance even from some Republicans in Congress (in part because of his libertarian views and sexual orientation).

But let’s not miss the big point here.

If Trump is elected President, and Republicans hold a narrow majority in the Senate, Republicans will get rid of the filibuster if necessary in order to get the Republicans’ choices for the Supreme Court on the Court—potentially solidifying a conservative bloc on the Supreme Court for the next generation.

And we can expect the same from Democrats: If Clinton is elected President and Democrats hold a narrow majority in the Senate, Democrats will get rid of the filibuster if necessary in order to get Democrats’ choices for the Supreme Court on the Court—potentially solidifying a liberal bloc on the Supreme Court for the next generation.

In short, as soon as either party needs the filibuster to get someone on the Court, they will.

And the stakes could not be higher. As I explained at TPM about a year ago<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>:

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Poll: Nearly half of Americans say voter fraud occurs often”<http://electionlawblog.org/?p=86553>
Posted on September 15, 2016 7:05 am<http://electionlawblog.org/?p=86553> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/the-fix/wp/2016/09/15/poll-nearly-half-of-americans-say-voter-fraud-occurs-often/?tid=sm_tw_pp&wprss=rss_the-fix>

Nearly half of Americans say that voter fraud occurs at least somewhat often according to a new Washington Post-ABC News poll<https://www.washingtonpost.com/page/2010-2019/WashingtonPost/2016/09/15/National-Politics/Polling/release_444.xml>, a viewpoint at odds with studies showing it rarely occurs in U.S. elections.

The poll also finds 63 percent of voters are confident that votes in this year’s presidential election will be counted accurately, down from about 7 in 10 in 2004.



And we know that Republicans have ginned up<http://electionlawblog.org/?p=86522> unsubstantiated reports of voter fraud for political purposes. It is noxious and undermines our democracy.


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


“Trump’s Call for a Flood of Poll Watchers Could Disrupt Some Voting Places”<http://electionlawblog.org/?p=86551>
Posted on September 15, 2016 7:00 am<http://electionlawblog.org/?p=86551> by Rick Hasen<http://electionlawblog.org/?author=3>

ProPublica reports.<https://www.propublica.org/article/trumps-call-for-a-flood-of-poll-watchers-could-disrupt-some-voting-places> [corrected link]

Back in August I blogged<http://electionlawblog.org/?p=85289> that such efforts might run afoul of an RNC consent decree aimed at stopping voter intimidation.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Conservative Bloc Could Grow Within House GOP; With centrists at risk in election, conservatives stand to gain more influence”<http://electionlawblog.org/?p=86549>
Posted on September 15, 2016 6:48 am<http://electionlawblog.org/?p=86549> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<http://www.wsj.com/articles/conservative-bloc-could-grow-within-house-gop-1473896138?mod=itp&mod=djemITP_h>


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Posted in political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>


“Protecting Companies from Political Spending Peril”<http://electionlawblog.org/?p=86547>
Posted on September 15, 2016 6:44 am<http://electionlawblog.org/?p=86547> by Rick Hasen<http://electionlawblog.org/?author=3>

Freed and Sandstrom blog<https://corpgov.law.harvard.edu/2016/09/14/protecting-companies-from-political-spending-peril/>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“GOP operatives discussed ginning up ‘voter fraud’ reports”<http://electionlawblog.org/?p=86545>
Posted on September 15, 2016 5:55 am<http://electionlawblog.org/?p=86545> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<http://www.jsonline.com/story/news/investigations/daniel-bice/2016/09/15/gop-operatives-discussed-ginning-up-voter-fraud-reports/90379224/>

Republican insiders discussed ginning up concerns over voter fraud<https://www.documentcloud.org/documents/3105957-Prosser.html> in the days after then-Supreme Court Justice David Prosser narrowly defeated challenger JoAnne Kloppenburg in April 2011.

“Do we need to start messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number? I obviously think we should,” wrote Steve Baas, a senior vice president with the Metropolitan Milwaukee Association of Commerce, to a group of conservative operatives on April 6, 2011, a day after the Prosser-Kloppenburg contest.

“Yes. Anything fishy should be highlighted,” wrote former Assembly Speaker Scott Jensen, a Republican. “Stories should be solicited by talk show hosts.”

Asked to clarify his email, Jensen said on Wednesday, “The British newspapers are world famous for printing illegally obtained information. I am disappointed that is now the standard at the Milwaukee Journal Sentinel.”

Rick Hasen, a national election law expert, said on his blog on Wednesday<http://electionlawblog.org/?p=86522> that the email exchange suggests that much of the talk about voter fraud is “all about manipulating Republican public opinion,” He added, “This cynical ‘messaging’ is sadly validating of what many of us have said.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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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