[EL] ELB News and Commentary 9/20/16

[Rick Hasen]

Is a Vote for Stein or Johnson a Vote for Trump? Yes Without Instant Runoff Voting<http://electionlawblog.org/?p=86688>
Posted on September 20, 2016 7:32 am<http://electionlawblog.org/?p=86688> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this USA Today oped<http://www.usatoday.com/story/opinion/2016/09/20/millennials-third-party-clinton-trump-be-careful-rick-hasen/90710934/>: (with a condescending headline I did not choose)

Many Millennials and other voters<http://www.theatlantic.com/politics/archive/2016/09/clinton-millennials-sanders-warren/500165/> who are cool toward Hillary Clinton<http://www.theatlantic.com/politics/archive/2016/09/hillary-clinton-millennials-philadelphia/500540/>, and warming up to Libertarian Party candidate Johnson or Green Party candidate Stein, may not remember how third-party alternatives like Ralph Nader helped elect George W. Bush overAl Gore in 2000. Nader drew tens of thousands more votes in Florida than the difference between Bush and Gore, and could well have<http://www.sscnet.ucla.edu/polisci/faculty/lewis/pdf/greenreform9.pdf> cost Gore the election.

Despite Nader saying there was “not a dime’s worth of difference<http://www.theatlantic.com/politics/archive/2011/09/i-love-you-ralph-nader-but/245349/>” between Republican Bush and Democrat Gore, without Nader on the Florida ballot, we might not have had an Iraq War and all of its aftermath.

And thanks to our convoluted presidential election system, we might see history repeat itself….

How do third-party candidates end up as “spoilers”? First, ballot access is relatively easy in the United States. In most states, it is not that hard for any candidate with even a small amount of support to get on the ballot. Second, once these candidates get on the ballot, they have virtually no chance of gaining even a single Electoral College vote. With just a couple of exceptions, whoever gets the most votes in any state wins all of the state’s electoral votes. So people can easily vote for candidates who have no realistic chance of winning the race, but do have a chance to distort the outcome.

Our winner-take-all Electoral College system tends to produce only two viable parties. Everyone knows this, making third-party candidates suffer in terms of name recognition, money, and organizational skills. The final hurdle for these outsiders is a relatively high polling threshold (15%<http://www.npr.org/2016/09/16/494284705/johnson-stein-officially-dont-make-the-presidential-debate-cut> this year in national polls) to get into the presidential debates. That creates a very difficult chicken-and-egg problem for these candidates, who need public recognition to get into the debates, but who need the debates for the public recognition.

Candidates like Nader<http://www.latimes.com/opinion/op-ed/la-oe-nader-spoilers-20160612-snap-story.html> have loudly protested that they are not “spoilers<https://www.washingtonpost.com/opinions/ralph-nader-i-was-not-a-spoiler-in-2000-jill-stein-doesnt-deserve-that-insulting-label-either/2016/09/02/02df0e74-6fa3-11e6-993f-73c693a89820_story.html?utm_term=.9a5f6e19a779>,” correctly pointing out that they have the right to run for office like everyone else, that the Constitution does not guarantee the Republican and Democratic parties the right to run unopposed in elections, and that they add valuable voices and perspectives to the debate.

There is much to be said for this position in the abstract. The best way to deal with it going forward is to adopt  something like “instant runoff voting<http://www.wsj.com/articles/third-party-candidates-dont-have-to-be-spoilers-1473436855>” in our presidential races. Under that system, the votes of people who picked candidates at the bottom of the results would be re-allocated to their second choice, until one candidate had a majority of votes. I strongly support such a change in future elections….

The only certainty, however, is that under the rules in effect for 2016, third-party voters who stick with their first choice risk ending up with their last choice.


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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, campaigns<http://electionlawblog.org/?cat=59>


“Sheldon Adelson Backs G.O.P. Congressional Candidates More Than Donald Trump”<http://electionlawblog.org/?p=86686>
Posted on September 20, 2016 7:28 am<http://electionlawblog.org/?p=86686> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/09/21/us/politics/republican-fundraising-sheldon-adelson-donald-trump.html>

The Las Vegas billionaire Sheldon G. Adelson<http://topics.nytimes.com/top/reference/timestopics/people/a/sheldon_g_adelson/index.html?inline=nyt-per> is shifting tens of millions of dollars into groups backing congressional Republicans despite months of entreaties from allies ofDonald J. Trump<http://www.nytimes.com/interactive/2016/us/elections/donald-trump-on-the-issues.html?inline=nyt-per>, according to several Republicans with knowledge of Mr. Adelson’s giving, dealing a major setback to Mr. Trump’s efforts to rally deep-pocketed Republican givers.

Mr. Adelson had once dangled the possibility<http://www.nytimes.com/2016/05/14/us/politics/sheldon-adelson-donald-trump.html> of giving as much as $100 million to pro-Trump “super PACs<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>,” an infusion that with a stroke would have given Mr. Trump a financially competitive network of outside groups to back his presidential campaign.

But with less than two months remaining in the campaign, the mercurial casino magnate — who entertained but ultimately rebuffed pitches from an array of Republican candidates during the party’s nominating contest this election cycle — appears to be focusing instead on Republicans in the House and Senate.

Republicans briefed on his giving said Mr. Adelson had committed $20 million each to two super PACs backing Senate and House Republicans, contributions that would again make<https://www.opensecrets.org/outsidespending/summ.php?disp=D> Mr. Adelson the single largest known donor to political organizations in the country. CNN, which first reported the $40 million in contributions on Tuesday night, also said that Mr. Adelson had allocated only $5 million to supporting Mr. Trump.

As I wrote last night,<http://electionlawblog.org/?p=86672> the $5 million from someone like Adelson is quite a dis of Trump.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


” An inside look at how politicians beg for big checks”<http://electionlawblog.org/?p=86684>
Posted on September 20, 2016 7:27 am<http://electionlawblog.org/?p=86684> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold<https://www.washingtonpost.com/politics/an-inside-look-at-how-politicians-beg-for-big-checks/2016/09/19/c0308e24-7c1b-11e6-bd86-b7bbd53d2b5d_story.html> for WaPo:

Wisconsin Gov. Scott Walker had a lot of wealthy targets to hit in Palm Beach, Fla., on an April afternoon in 2011. There was a possible call with casino tycoon Sheldon Adelson. There was a private meeting with a clutch of high-level donors at the home <http://host.madison.com/ct/news/local/crime_and_courts/blog/exclusive-look-at-walker-s-cross-country-cultivation-of-high/article_56ea8a32-a5e7-11e1-b0f7-001a4bcf887a.html> of oil executive William “Lee” Hanley and his wife, Alice. And there was a car ride with two top advisers to hedge fund executive Paul Singer.

“Billionaire who writes large checks,” a fundraising consultant bluntly reminded Walker (R) in a briefing memo on Singer, adding: “You would like Paul Singer to donate $1m and help get the word out to his peers.”

Such heavy-handed attempts to extract huge contributions dominate email exchanges between Walker and his aides that were released in a trove of state investigative documents <https://www.documentcloud.org/public/search/projectid:%2029102-the-john-doe-files> leaked to the Guardian <https://www.theguardian.com/us-news/ng-interactive/2016/sep/14/john-doe-files-scott-walker-corporate-cash-american-politics> last week. The documents, produced as part of a now-halted “John Doe” probe into suspected illegal campaign coordination<https://www.washingtonpost.com/politics/wisconsin-gov-scott-walker-suspected-of-coordinating-with-outside-groups/2014/06/19/1c176676-f7ea-11e3-a3a5-42be35962a52_story.html>, reveal in stark terms how the chase for big money by politicians has largely become a frantic pursuit of billionaires and corporate executives.

“Take Koch’s [sic] money,” Kate Doner, Walker’s fundraising consultant, urged him in September 2011. “Get on a plane to Vegas and sit down with Sheldon Adelson. Ask for $1m now. Corporations. Go heavy after them to give . . . Create a list of legislation that passed and benefits whom.”

The emails were written in 2011 and 2012 when Walker was raising funds to combat the attempted recall of a group of Republican state senators and then the governor himself. The documents expose how he played a leading role in securing big checks, making personal pleas to rich conservatives across the country.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


“The Allure of Reform and A Modest Proposal”<http://electionlawblog.org/?p=86682>
Posted on September 20, 2016 7:05 am<http://electionlawblog.org/?p=86682> by Rick Hasen<http://electionlawblog.org/?author=3>

Bauer:<http://www.moresoftmoneyhardlaw.com/2016/09/allure-reform-modest-proposal/>

Matt Grossman and David A Hopkins have pronounced many decades of liberal reform to be a failure. In a new book<https://www.amazon.co.uk/Asymmetric-Politics-Ideological-Republicans-Democrats/dp/0190626593>, they argue that<http://www.vox.com/polyarchy/2016/9/12/12882214/political-reform-liberal-failure> the 1970s reform program did not lead to the success of liberal policies but may have been primarily advantageous to “ideological Republicans.” For a party that is “a coalition of social groups, each with pragmatic policy concerns,” the Democrats wound up undermining the transactional politics among various interests that would produce their preferred policy outcomes. Making matters worse was a shift of voter sentiment against government-driven solutions. The Republicans, happy to oblige the popular sentiment by blocking legislation, fared better than Democrats actually interested in passing it. Grossman and Hopkins conclude that in the future, Democrats “should assess whether each potential change is likely to benefit the Democratic coalition or the more ideological Republicans.”

The problem always is the hazards of predicting the partisan or policy impact of any reform measure. To the extent that Grossman and Hopkins are urging Democrats to guess, they are necessarily allowing for the fairly large possibility that they will guess wrong. And even the ways in which they may be wrong are not anticipated all that reliably. In other words, both the benefits and the costs–the shape of success and the look of failure–will be very hard to judge. The mistakes made can be costly.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“The Success of the Voter Fraud Myth”<http://electionlawblog.org/?p=86680>
Posted on September 19, 2016 10:13 pm<http://electionlawblog.org/?p=86680> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT editorial:<http://www.nytimes.com/2016/09/20/opinion/the-success-of-the-voter-fraud-myth.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region>

How does a lie come to be widely taken as the truth?

The answer is disturbingly simple: Repeat it over and over again. When faced with facts that contradict the lie, repeat it louder.

This, in a nutshell, is the story of claims of voting fraud in America — and particularly of voter impersonation fraud, the only kind that voter ID laws can possibly prevent….

Credit for this mass deception goes to Republican lawmakers, who have for yearspushed a fake story<http://www.nytimes.com/2014/10/13/opinion/the-big-lie-behind-voter-id-laws.html> about voter fraud, and thus the necessity of voter ID laws, in an effort to reduce voting among specific groups of Democratic-leaning voters. Those groups — mainly minorities, the poor and students — are less likely to have the required forms of identification.

Behind closed doors, some Republicans freely admit<http://www.nytimes.com/2016/09/17/us/some-republicans-acknowledge-leveraging-voter-id-laws-for-political-gain.html?smid=tw-share&_r=0> that stoking false fears of electoral fraud is part of their political strategy. In a recently disclosed<http://www.nytimes.com/2016/09/19/opinion/an-email-trail-leads-to-gov-walker.html>email from 2011, a Republican lobbyist in Wisconsin wrote<https://assets.documentcloud.org/documents/3105957/Prosser.pdf> to colleagues about a very close election for a seat on the State Supreme Court. “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?” he wrote. “I obviously think we should.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


NRA Sends Incorrect Voter Registration Materials in Wisconsin<http://electionlawblog.org/?p=86678>
Posted on September 19, 2016 9:55 pm<http://electionlawblog.org/?p=86678> by Rick Hasen<http://electionlawblog.org/?author=3>

Patrick Marley<https://twitter.com/patrickdmarley/status/777946339795537920>: ‘. at NRA<https://twitter.com/NRA> is sending voter registration packets to WI voters but telling them to send them to wrong place — the state instead of local clerks”

More<https://twitter.com/patrickdmarley/status/777949420729925632>: “So far, the state has received 24 @NRA<https://twitter.com/NRA> voter registration applications that should have gone to local clerks”

Here is a mailer<https://www.scribd.com/document/324608762/NRA-Registration-Mailer-Redacted> that went to a rural area in Wisconsin.

While some people are wondering if this is some kind of dirty trick, my guess is that it is more a question of incompetence.
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Posted in voter registration<http://electionlawblog.org/?cat=37>


FL Officials Trying to Keep McMullin Off Presidential Ballot, Reversing Earlier Interpretation of FL Ballot Access Law<http://electionlawblog.org/?p=86676>
Posted on September 19, 2016 7:56 pm<http://electionlawblog.org/?p=86676> by Rick Hasen<http://electionlawblog.org/?author=3>

Missed this Politico story <http://www.politico.com/states/florida/story/2016/09/ballot-experts-past-rulings-question-scott-administrations-decision-to-block-third-part-presidential-candidate-105562> from last week, and it looks like McMullin would have a good case if the campaign went to court:

he decision by Gov. Rick Scott’s administration to block Evan McMullin’s presidential campaign from the general election ballot seems contrary to past decisions made by his own election officials, and is deemed “unfair” and unenforceable by some ballot access experts.

On Aug. 31, the Independent Party of Florida formally filed nominating papers to make McMullin its presidential candidate in Florida. McMullin is a former CIA operative and Republican staffer in the U.S. House of Representatives who was recruited by a group of GOP consultants, including Florida’s Rick Wilson, looking for an alternative to Donald Trump.

n a Sept. 7 letter, Division of Elections Director Maria Matthews informed Ernest Bach, chair of the Independent Party of Florida, that its nominee for president could not be on the general election ballot.

The department, which is overseen by Scott, said the Independent Party of Florida could not get its nominee placed on the general election because it is not recognized as a “national party” by the Federal Election Commission….

The Scott administration’s recent decision seemingly runs contrary to a different 2011 ruling made by his Department of State.

That one dealt with a group called Americas Elect, which was pushing to get a presidential nominee on Florida’s ballot. The group, which was a non-profit organized as a 501(c)4, formed to advocate for a national online primary.

In a Sept. 2011 letter to an attorney representing the group, <http://www.politico.com/states/f/?id=00000157-34b2-dcf8-a9ff-74fbe9810001> Department of State officials said they only have a “ministerial function” in qualifying candidates, so they could put up no road blocks as long as filing paperwork was on time and complete.

“Therefore, if a minor political party registered in Florida files the required certificate, which is complete on its face … the Secretary ‘shall order the names of the candidates nominated by the minor political party to be included on the ballot,’” read a letter signed by Daniel Nordby, the department’s former general counsel.

He said DOS would allow a candidate nominated by the group on the ballot, but clarified the “Department’s ministerial placement of the party’s candidates on the ballot” would not prevent an outside legal challenge. The letter specifically mentions the same statutes the department cited when blocking the Florida Independent Party’s general election ballot access.

“So Florida and other states were very respectful of Americans Elects and went out of their way to ease ballot access … they didn’t want to get sued,” Winger, who edits Ballot Access News, told POLITICO Florida. “Now that the parties are suffering in Florida and are less powerful, the state feels it can change the rule with impunity.”

When asked about the ruling, Beatrice, the department spokeswoman, pointed to a change made to the statutes in question during the 2011 Legislation session. The department ruling, though, came in September of that year, which was months after the legislative session…

n a statement sent to POLITICO Florida Friday afternoon, Secretary of State Ken Detzner acknowledged that the agency “made a legal error in 2012 when we granted these minor parties placement on the ballot.”
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Posted in ballot access<http://electionlawblog.org/?cat=46>


Adelson Gives Trump Super PAC a Relatively Paltry Sum of $5 Million; More Generous Supporting Rs for House and Senate<http://electionlawblog.org/?p=86672>
Posted on September 19, 2016 7:43 pm<http://electionlawblog.org/?p=86672> by Rick Hasen<http://electionlawblog.org/?author=3>

CNN:<http://www.cnn.com/2016/09/19/politics/sheldon-adelson-2016-spending/index.html>

Conservative megadonor Sheldon Adelson and his wife, Miriam, have committed roughly $45 million so far to Donald Trump’s presidential campaign and downballot Republicans’ attempt to control Congress, according to a person familiar with Adelson’s thinking.
The billionaire on Tuesday will disclose having given $20 million to the Senate Leadership Fund, a super PAC linked to George W. Bush hand Karl Rove and Senate Majority Leader Mitch McConnell.
A check of a similar size is expected to go to the Congressional Leadership Fund, a similar super PAC focused on the House of Representatives.
And to back Trump, a donation of at least $5 million is likely headed to the political operation helmed by the Ricketts family, who are expected to finally spend their fortunes on Trump as well. Other cash may be routed to Ricketts-led nonprofit groups that are not required to disclose the funders.
By contrast, Gingrich and Romney super pacs each saw north of $10 million in 2012, with Adelson and his wife contriubuting somewhere between $98 and $150 million helping Republicans in 2012.
This plutocrat at least seems unenthused with Trump. (Maybe it is the support from white supremacists and neo-Nazis.  I don’t know.)
And another thing. If Trump were a multi-billionaire shouldn’t he have hit $100 million to his own campaign by now?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Texas May Pass a New Voter ID Law to Get Past “Democrat” Judge<http://electionlawblog.org/?p=86670>
Posted on September 19, 2016 4:08 pm<http://electionlawblog.org/?p=86670> by Rick Hasen<http://electionlawblog.org/?author=3>

From the KUT report<http://kut.org/post/federal-judge-says-texas-election-officials-need-follow-voter-id-court-order> I’ve just linked to:

During an appearance on Laura Ingraham’s radio show today, Lt. Gov. Dan Patrick says the Texas Legislature will try to pass a new voter ID law in the next session.

“I was one of the authors of our photo voter ID law that the court struck down,” he says. “We have a judge, a Democrat who’s just eviscerating our photo voter ID. We’re going to have to pass it again come January when we go back into session.”

Kinda think review of any new Texas voter id law is going to end up before the same judge, so we will see how this works out.
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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>


“Federal Judge Says Texas Election Officials Need to Follow Voter ID Court Order”<http://electionlawblog.org/?p=86668>
Posted on September 19, 2016 4:07 pm<http://electionlawblog.org/?p=86668> by Rick Hasen<http://electionlawblog.org/?author=3>

KUT:<http://kut.org/post/federal-judge-says-texas-election-officials-need-follow-voter-id-court-order>

A federal judge sided again today with plaintiffs in the long legal battle over Texas’ voter ID law.

This time, the U.S. Department of Justice joined the group of Texas voters<http://www.npr.org/2016/09/10/493399804/justice-department-says-texas-is-misleading-voters-in-id-law-re-education> challenging the state’s law, arguing Texas election officials were misleading voters about court-ordered changes to the law.

According to lawyers in the case, during a hearing for that motion today, U.S. District Judge Nelva Gonzales Ramos ordered state officials to do a better job of communicating the changes she ordered several weeks ago.
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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>


Breaking: Court Holds FEC Applied Wrong Test to See If Koch-Allied Groups are Breaking Law by Not Registering as Political Committees<http://electionlawblog.org/?p=86666>
Posted on September 19, 2016 10:13 am<http://electionlawblog.org/?p=86666> by Rick Hasen<http://electionlawblog.org/?author=3>

Major win<http://www.citizensforethics.org/press-release/crew-wins-major-lawsuit-fec/> for CREW here.

The court’s opinion<http://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2016/09/19161556/Document-52-9-19-16-Court-Mem-Op-on-MSJ.pdf> granting CREW summary judgment explains that the three (Republican) FEC Commissioners used the wrong test to decide if AAN and AJS (501(c)(4)s that don’t disclose their donors) violated the law by not registering as political committees, because “their major purpose” could well be the election and defeat of federal candidates.

There’s still a long road here, but it is possible that the FEC will finally be forced to treat these sham Super PACs as political committees and force disclosure of election-related spending.


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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


“Evenwel v. Abbott: Recent Developments at SCOTUS and Implications for Redistricting”<http://electionlawblog.org/?p=86664>
Posted on September 19, 2016 9:18 am<http://electionlawblog.org/?p=86664> by Rick Hasen<http://electionlawblog.org/?author=3>

Upcoming CLE program <https://www.lawline.com/course/evenwel-v-abbott-recent-developments-at-scotus-and-implications-for-redistricting> with Jessica Ring Amunson.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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