[EL] ELB News and Commentary 9/22/16

Thu Sep 22 08:16:28 PDT 2016

“Rep. John Delaney files FEC complaint over super PAC funded by opponent’s spouse”<http://electionlawblog.org/?p=86786>
Posted on September 22, 2016 8:08 am<http://electionlawblog.org/?p=86786> by Rick Hasen<http://electionlawblog.org/?author=3>

Baltimore Sun:<http://www.baltimoresun.com/news/maryland/politics/blog/bal-rep-john-delaney-files-fec-complaint-over-super-pac-funded-by-opponent-s-spouse-20160922-story.html>

Rep. John Delaney’s campaign has filed a complaint with the Federal Election Commission<http://www.baltimoresun.com/topic/politics-government/government/federal-election-commission-ORGOV0000275-topic.html> over a super PAC funded by his opponent’s spouse — an unusual arrangement the congressman said violates rules barring outside groups from coordinating with a candidate.

Maryland USA, created last summer, has spent $1.5 million supporting Republican Amie Hoeber’s run for the state’s 6th Congressional District. Virtually all of that money has come from a single donor: Mark Epstein, who is Hoeber’s husband.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Latest Fear on Far Right: Soros Funding Effort to Allow U.S. Citizens Overseas to Vote<http://electionlawblog.org/?p=86784>
Posted on September 22, 2016 7:57 am<http://electionlawblog.org/?p=86784> by Rick Hasen<http://electionlawblog.org/?author=3>

So much fear<http://www.breitbart.com/london/2016/09/21/surprise-that-will-end-trump-globalists-registering-8-million/> of eligible people voting.

If you think that’s paranoid check out the #SorosBLM hashtag <https://twitter.com/search?q=%23sorosblm&src=typd> on Twitter.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“How John McCain and Russ Feingold are riding the big money wave in their campaigns”<http://electionlawblog.org/?p=86782>
Posted on September 22, 2016 7:48 am<http://electionlawblog.org/?p=86782> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/powerpost/wp/2016/09/22/how-john-mccain-and-russ-feingold-are-riding-the-big-money-wave-in-their-campaigns/?postshare=5411474541183250>

John McCain and Russ Feingold used to be synonymous with their crusading overhaul of the campaign finance system that eliminated big money from federal elections.

But after a sea change to campaign finance laws following the Supreme Court “Citizens United” decision, McCain and Feingold are now benefiting from the largesse they once fought so fiercely against.

Supporters of Sen. McCain (R-Ariz.), seeking a sixth term after 30 years in the Senate, have boosted his campaign through a super PAC specifically designed to run ads on his behalf, financed almost entirely by six-figure donations from Wall Street titans and other corporate executives. Feingold, the former Senate Democrat trying to reclaim his old seat in Wisconsin, has been boosted by outside groups financed through “dark money” committees that don’t reveal their donors.

Neither is particularly happy about it, but they are not apologizing.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Editorial: The ethical collapse of Justices Michael Gableman and David Prosser”<http://electionlawblog.org/?p=86780>
Posted on September 22, 2016 7:43 am<http://electionlawblog.org/?p=86780> by Rick Hasen<http://electionlawblog.org/?author=3>

Cap Times:<http://host.madison.com/opinion/editorial/editorial-the-ethical-collapse-of-justices-michael-gableman-and-david/article_15ace076-2fd2-5641-92ab-f6a470c79df8.html?utm_medium=social&utm_source=facebook&utm_campaign=user-share>

Four years after Walker’s email declared that Johnson and the Wisconsin Club for Growth were vital to electing Prosser and Gableman, these two justices cast decisive votes in a state Supreme Court decision that shut down an investigation targeting the actions of Walker, Johnson and others. That investigation sought to determine whether the governor and his allies engaged in a conspiracy to illegally coordinate campaign activities in the recall fights of 2011 and 2012. The opinion in that 2015 high court ruling, which was written by Gableman, was so sweeping that the Milwaukee Journal Sentinel reported it could “reshape how campaigns are run in Wisconsin because it makes clear campaigns can work closely with outside groups, allowing more political money to flow without the names of donors being disclosed.”

Prosser and Gableman were asked to recuse themselves from the John Doe case, but both refused to do so. In light of Walker’s assertion in his email to Rove — and all the information that has been made available over the past several years with regard to the John Doe inquiry — it is now evident that the refusal put the justices at odds with established law. The U.S. Supreme Court has determined that the due process clause of the U.S. Constitution’s 14th Amendment requires jurists to recuse themselves when there is evidence of actual bias and when so-called “extreme facts” create a “probability of bias.” That standard was established in the 2009 case of Caperton v. A.T. Massey Coal Co., which established that major campaign activity on behalf of a jurist by a party to a case that comes before the jurist creates an appearance of a conflict of interest so “extreme” that the jurist’s failure to recuse himself constitutes a violation of due process protections.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, judicial elections<http://electionlawblog.org/?cat=19>

“USA TODAY analysis: Super PAC donations surge past $1 billion”<http://electionlawblog.org/?p=86778>
Posted on September 22, 2016 7:37 am<http://electionlawblog.org/?p=86778> by Rick Hasen<http://electionlawblog.org/?author=3>

And nearly half the money<http://www.usatoday.com/story/news/politics/elections/2016/2016/09/21/usa-today-analysis-super-pac-donations-surge-past-1-billion/90790546/> came from 62 individuals, companies and unions.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“New $25 voucher program coming to Seattle voters”<http://electionlawblog.org/?p=86776>
Posted on September 22, 2016 7:34 am<http://electionlawblog.org/?p=86776> by Rick Hasen<http://electionlawblog.org/?author=3>

I’m watching this <http://www.king5.com/news/local/seattle/new-25-voucher-program-coming-to-seattle-voters/323095664> with excitement.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Honored to Be Named Again to Daily Journal’s Top 100 CA Lawyers<http://electionlawblog.org/?p=86774>
Posted on September 22, 2016 7:30 am<http://electionlawblog.org/?p=86774> by Rick Hasen<http://electionlawblog.org/?author=3>

Profile.<http://www.law.uci.edu/news/in-the-news/2016/djournal-hasentop100-092116.pdf>
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“Ex-Cuomo Aides Charged in Federal Corruption Inquiry”<http://electionlawblog.org/?p=86772>
Posted on September 22, 2016 7:18 am<http://electionlawblog.org/?p=86772> by Rick Hasen<http://electionlawblog.org/?author=3>

Huge NY news:<http://www.nytimes.com/2016/09/23/nyregion/cuomo-former-aides-charges.html?_r=1>

Federal corruption charges were announced on Thursday against two former close aides to Gov. Andrew M. Cuomo<http://topics.nytimes.com/top/reference/timestopics/people/c/andrew_m_cuomo/index.html?inline=nyt-per>, a senior state official and six other people, in a devastating blow to the governor’s innermost circle and a repudiation of how his prized upstate economic development programs were managed.

The charges against the former aides, Joseph Percoco and Todd R. Howe, and the state official, Alain Kaloyeros, were the culmination of a long-running federal investigation into the Cuomo administration’s attempts to lure jobs and businesses to upstate New York’s limping economy by furnishing billions of dollars in state funds to developers from Buffalo to Albany. Mr. Howe is cooperating with the investigation, according to a 79-page criminal complaint<http://www.nytimes.com/interactive/2016/09/22/nyregion/Percoco-Complaint.html> unsealed on Thursday.

The charges stemmed from “two overlapping criminal schemes involving bribery, corruption and fraud in the award of hundreds of millions of dollars in state contracts and other official state benefits,” federal prosecutors said in the complaint….

In emails and other correspondence, Mr. Percoco and Mr. Howe referred to the bribes as “ziti,” according to the complaint. Mr. Percoco apparently used the name “Herb” while discussing the arrangement.
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Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>

“Appeals court to hear challenge to Virginia’s voter-identification law”<http://electionlawblog.org/?p=86770>
Posted on September 22, 2016 7:16 am<http://electionlawblog.org/?p=86770> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/local/public-safety/appeals-court-to-hear-challenge-to-virginias-voter-identification-law/2016/09/21/b8c75674-802e-11e6-8327-f141a7beb626_story.html>

I can’t believe the state board of elections hired Thor.<http://electionlawblog.org/?p=78115>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Hillary Clinton Struggles to Replicate Obama’s Small-Donor Juggernaut”<http://electionlawblog.org/?p=86768>
Posted on September 21, 2016 8:28 pm<http://electionlawblog.org/?p=86768> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2016/09/22/us/politics/hillary-clinton-money-obama.html?ref=politics>:

In an illustration of the lack of enthusiasm for her among some liberal activists, just 24 percent of the contributors to Mrs. Clinton’s campaign so far have given $200 or less. In 2012, 43 percent of the money to Mr. Obama was from contributors who gave $200 or less, and this year 58 percent of the giving to Mr. Sanders’s grass-roots bid came from small-dollar donors.

Without this online network, Mrs. Clinton is being made to continue with an aggressive calendar of fund-raisers with rich donors as Election Day grows near — events that can limit her time in swing states and reinforce concerns that give rank-and-file Democrats pause.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Texas lawmakers take up issue of voter fraud”<http://electionlawblog.org/?p=86766>
Posted on September 21, 2016 8:19 pm<http://electionlawblog.org/?p=86766> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting turn of tables at CBS Austin,<http://keyetv.com/news/local/texas-lawmakers-take-up-issue-of-voter-fraud> with Democrat raising voter fraud concerns:

“Voting by mail is extremely important,” said Bill Maxey with the Texas Democratic Party.

Mail in ballots are meant to help senior citizens, people with disabilities and those who are out of the count during elections. “But we have loopholes in the law that are allowing people, I think to, work the system,” says Maxey.

At Wednesday’s hearing, he told House lawmakers that 9,500 mail-in ballots came from an RV park in Texas that has only 138 lots. He says Republicans from other states are driving their RVs to Texas to vote, in order to avoid paying income taxes in their home states.
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, chicanery<http://electionlawblog.org/?cat=12>

“High Court Could Eye Wisconsin Campaign Finance Probe”<http://electionlawblog.org/?p=86764>
Posted on September 21, 2016 8:11 pm<http://electionlawblog.org/?p=86764> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=97683061&vname=mpebulallissues&jd=a0k1p5p0g1&split=0>
U.S. Supreme Court intervention in a case dealing with possible campaign finance violations by Wisconsin Gov. Scott Walker (R) remains “a long shot,” despite new evidence the governor was involved in a fundraising scheme involving undisclosed contributions during a 2012 recall election, legal scholars and election law practitioners told Bloomberg BNA.
Many in the campaign finance world are eagerly awaiting the Supreme Court’s response to a petition for certiorari filed by a group of Wisconsin district attorneys objecting to a 4-2 ruling by the Wisconsin Supreme Court in July 2015. The state court ruling shut down the prosecutors’ “John Doe” criminal probe of possible illegal coordination between Walker and two dozen conservative advocacy organizations(Chisholm v. Two Unnamed Petitioners<http://www.bloomberglaw.com/public/document/John_T_Chisholm_et_al_v_Two_Unnamed__et_al_Docket_No_1501416_US_M>, U.S., No. 15-1416, petition for a writ of certiorari 4/27/16).
The Supreme Court court is expected to make a decision on whether to hear the case in a matter of days or weeks. The court’s opening conference is scheduled for Sept. 26 and news on cases accepted for review will follow.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>, tax law and election law<http://electionlawblog.org/?cat=22>

“2016 state election agency accessibility report”<http://electionlawblog.org/?p=86762>
Posted on September 21, 2016 8:03 pm<http://electionlawblog.org/?p=86762> by Rick Hasen<http://electionlawblog.org/?author=3>

BallotPedia<https://ballotpedia.org/2016_state_election_agency_accessibility_report>:

Aspiring political candidates must interact with state election agencies, which administer state election laws and determine whose names will be printed on election ballots. These agencies differ significantly from state to state, particularly with regard to accessibility. In order to determine how accessible state election agencies are to political candidates, Ballotpedia conducted an analysis of agency websites in all 50 states, grading states according to three distinct criteria: ease of access, quality of information, and response speed.

HIGHLIGHTS

·         According to Ballotpedia’s analysis, Vermont’s<https://ballotpedia.org/2016_state_election_agency_accessibility_report#Total_scores> election agency was the nation’s most accessible in 2016. The state earned 49 of 50 possible points.

·         New Mexico<https://ballotpedia.org/2016_state_election_agency_accessibility_report#Total_scores>, meanwhile, ranked at the bottom, earning six out of 50 possible points.

·         As part of its analysis, Ballotpedia sent email inquiries<https://ballotpedia.org/2016_state_election_agency_accessibility_report#Speed_of_access> to every state election agency and measured response times. Of the 35 states that responded within the specified 96-hour time frame, 29 did so within 24 hours.

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

“Donald Trump, Pam Bondi and $25K: Was it pay to play?”<http://electionlawblog.org/?p=86758>
Posted on September 21, 2016 8:01 pm<http://electionlawblog.org/?p=86758> by Rick Hasen<http://electionlawblog.org/?author=3>

Politifact Florida:<http://www.politifact.com/florida/article/2016/sep/21/donald-trump-pam-bondi-and-25k-was-it-pay-play/>

With some of the facts of the case unknown, Clinton’s ad makes claims that cannot be proven. For that reason, we decided to not put this statement on our Truth-O-Meter. Still, with all the news stories re-circulating about the donation, we wanted to take a closer look at the situation and separate fact from speculation….

We can’t prove this was an attempt to “cover up the donation,” as Clinton said, but experts said the situation makes the mistakes peculiar.

Brian Galle, a law professor at Georgetown University said any “minimally competent” foundation should not list the wrong name on a tax return because a charitable organization has an identification number — more formally an employee identification number. Galles said that number is usually requested before you cut the check.

“Though the regulations do not explicitly state that foundations must do an EIN search, common sense dictates that that is the bare, bare minimum step that probably is necessary to verify accurately,” Galle said. “Given a strong motive to conceal, the added risks of delay, and a literally unbelievably basic mistake, a reasonable person could well conclude that this was a deliberate effort to obfuscate.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, tax law and election law<http://electionlawblog.org/?cat=22>

First Circuit, Relying on Evenwel, Rejects “Prison Gerrymandering” Claim<http://electionlawblog.org/?p=86755>
Posted on September 21, 2016 3:47 pm<http://electionlawblog.org/?p=86755> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the unanimous 1st Circuit opinion at this link.<http://riaclu.org/documents/Davidson_v_Cranston_1st_Circuit_decision_092116.pdf> Here is a statement from Demos<http://www.demos.org/press-release/statement-response-federal-appeals-court-decision-cranston-%E2%80%9Cprison-gerrymandering%E2%80%9D-cas>.  From the opinion:

It is true that Evenwel did not decide the precise question before us. Nevertheless, we hold that its methodology and logic compel us to hold in favor of Cranston. Evenwel dictates that we look at constitutional history, precedent, and settled practice. 136 S. Ct. at 1126. Doing so leads us to find the inclusion of the ACI prisoners in Ward Six constitutionally permissible. In particular, Evenwel did not disturb Supreme Court precedent that apportionment claims involving only minor deviations normally require a showing of invidious discrimination, which has not even been alleged here. Wi Without such a showing of discrimination, Evenwel reinforces that federal courts must give deference to decisions by local election authorities related to apportionment. Finally, the Evenwel Court gave general approval to the use of total-population data from the Census in apportionment, which is what Cranston used here. Application of these principles requires us to uphold the constitutionality of Cranston’s decision to include the ACI inmates in Ward Six.

Flashback to Adam Liptak’s column, A.C.L.U.’s Own Arguments May Work Against It in Voting Rights Case<http://www.nytimes.com/2015/10/13/us/politics/aclus-own-arguments-may-work-against-it-in-voting-rights-case.html>.
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Posted in felon voting<http://electionlawblog.org/?cat=66>, redistricting<http://electionlawblog.org/?cat=6>

“Why campaign finance laws probably won’t stop Hannity and Lewandowski from helping Trump”<http://electionlawblog.org/?p=86753>
Posted on September 21, 2016 3:17 pm<http://electionlawblog.org/?p=86753> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports.<https://www.washingtonpost.com/news/the-fix/wp/2016/09/21/why-campaign-finance-laws-probably-wont-stop-hannity-and-lewandowski-from-helping-trump/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

One of the WI #JohnDoe Movants Was Directly Emailing WI Chief Justice About the Case<http://electionlawblog.org/?p=86746>
Posted on September 21, 2016 1:12 pm<http://electionlawblog.org/?p=86746> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday, in an odd order<http://electionlawblog.org/wp-content/uploads/9.20.16-Court-Order.pdf>, the Wisconsin Supreme Court ordered a previously sealed document from the Special Prosecuto<http://electionlawblog.org/wp-content/uploads/11.11.15-REDACTED-Response-of-Special-Prosecutor.pdf>r in the John Doe case to be unsealed. Three Justices voted to unseal; three recused themselves; and Justice Abrahamson refused to vote.[Update: Judge Abrahamson Abrahamson filed a separate document that says: ““Contrary to my request, the following was omitted from the order dated September 20, 2016, released by Chief Justice Roggensack in the three matters identified above. The following should be added to that order:

Shirley S. Abrahamson, J., did not participate in this order.”]

I haven’t had time to go through the whole thing, but a reader on Twitter notes<https://twitter.com/susanmcrawford/status/778674334147698689> the the filing includes information about ex parte communications not part of the record via email from one of the John Doe plaintiffs [apparently Eric O’Keefe/Club for Growth] to the Chief Justice. The special prosecutor wanted the emails put into the record:

9-20-16-court-order<http://electionlawblog.org/wp-content/uploads/9.20.16-Court-Order.pdf> 11-11-15-redacted-response-of-special-prosecutor<http://electionlawblog.org/wp-content/uploads/11.11.15-REDACTED-Response-of-Special-Prosecutor.pdf>[creen-shot-2016-09-21-at-1-10-42-pm]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2016-09-21-at-1.10.42-PM.png>
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Conservatives File Voter Registration Lawsuits; Liberals Say It’s Blocking Votes”<http://electionlawblog.org/?p=86744>
Posted on September 21, 2016 12:56 pm<http://electionlawblog.org/?p=86744> by Rick Hasen<http://electionlawblog.org/?author=3>

Pam Fessler reports<http://www.npr.org/2016/09/21/494871244/conservatives-file-voter-registration-lawsuits-liberals-say-its-blocking-votes?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social> for NPR.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Leaked Documents Show Court’s Dismissal of the John Doe Investigation Was Based on a False Premise”<http://electionlawblog.org/?p=86742>
Posted on September 21, 2016 12:52 pm<http://electionlawblog.org/?p=86742> by Rick Hasen<http://electionlawblog.org/?author=3>

CMD release.<http://go.exposedbycmd.org/o/632/t/0/blastContent.jsp?email_blast_KEY=1351650>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Kris Kobach, ACLU clash in court over proof of citizenship voting law”<http://electionlawblog.org/?p=86740>
Posted on September 21, 2016 11:55 am<http://electionlawblog.org/?p=86740> by Rick Hasen<http://electionlawblog.org/?author=3>

Topeka Capital-Journal:<http://cjonline.com/news/2016-09-21/kris-kobach-aclu-clash-court-over-proof-citizenship-voting-law>

Secretary of State Kris Kobach said in court Wednesday an elderly couple challenging Kansas’ proof of citizenship voting law hadn’t demonstrated they are citizens – and therefore eligible to sue.

At the same hearing, a Shawnee County District Court judge suggested he could extend an earlier order allowing some individuals who haven’t provided proof to vote in state and local races….

Kobach also provided a spreadsheet with names from Sedgwick County of naturalized citizens who had been registered to vote prior to becoming citizens and non-citizens who had attempted to vote. In total, the document contained about 25 names, gathered over the past decade.

ACLU attorneys argued that of the names on the list, just three had ever voted. During the same time period, thousands of people had registered to vote, they said. The evidence of non-citizen voting is nominal, they argued.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

WI Voters Differ on Views of Voter Fraud v. Voter Suppression, But More See More Suppression than Fraud Prevention from Voter ID<http://electionlawblog.org/?p=86738>
Posted on September 21, 2016 11:28 am<http://electionlawblog.org/?p=86738> by Rick Hasen<http://electionlawblog.org/?author=3>

Given Wisconsin Republicans’ fanning the voter fraud flames,<http://electionlawblog.org/?p=86522> I would have expected even more lopsided numbers in this new Marquette poll<http://law.marquette.edu/poll/> of Wisconsin voters:

Respondents were asked how many illegally cast votes by people not legally eligible they expected in November’s election and how many legal voters might be prevented from voting because of lack of proper identification. …Comparing each individual’s responses to the two items: 18 percent think more illegal votes are cast than legal votes are prevented, 26 percent think the two are equal and 37 percent think more legal votes are prevented than illegal votes cast. Nineteen percent don’t know on either or both questions.

Among Republicans, 27 percent think there are more illegal votes than legal voters prevented from voting, 30 percent think the two are equal and 24 percent think more legal voters are prevented from voting. Among Democrats, 7 percent think there are more illegal votes, 23 percent think the two are equal and 55 percent say there are more legal voters who are prevented from voting. Twenty-one percent of independents think there are more illegal votes, 26 percent think they are equal and 36 percent think more legal voters are denied their ability to vote.
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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>

“Softening Voter ID Laws Through Litigation: Is It Enough?”<http://electionlawblog.org/?p=86736>
Posted on September 21, 2016 9:21 am<http://electionlawblog.org/?p=86736> by Rick Hasen<http://electionlawblog.org/?author=3>

Today the Wisconsin Law Review Forward published this article of mine<http://wisconsinlawreview.org/wp-content/uploads/2016/09/Hasen-Final.pdf> (also in html format<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/>). From the Introduction:

Headlines about voter identification laws often place court rulings in a simple win or loss frame. For example, the New York Times headline describing the result inCrawford v. Marion County Election Board,1<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-1> a 2008 case involving the constitutionality of Indiana’s strict voter identification law, read: In a 6-3 Vote, Justices Uphold a Voter ID Law.2<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-2> Similarly, in reporting on the 2015 decision of the United States Court of Appeals for the Fifth Circuit involving Texas’ voter identification law, the Associated Press article was headlined Federal Court Strikes Down Tough Texas Voter ID Law.3<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-3>

In fact, the results in both cases were more nuanced. As reporter Linda Greenhouse explained in that New York Times article,4<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-4>the Supreme Court decision in Crawfordwas fractured. Although a majority of the Court rejected a full facial challenge to Indiana’s law on equal protection grounds, a plurality of the Court, as well as the dissenters, left open the possibility that Indiana’s law could be unconstitutional “as applied” to certain voters who faced special burdens in getting a voter identification law.5<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-5> Further, although the Fifth Circuit did hold in Veasey v. Abbott6<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-6> that Texas’s voter identification law violated Section 2 of the Voting Rights Act,7<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-7> the appeals court determined that the appropriate remedy would not be a wholesale abandonment of the law; instead it directed the lower federal district court to allow Texas to use its law in most instances, but to craft a remedy which would allow those facing special burdens additional ways to prove identity and cast a ballot.8<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-8> The Fifth Circuit, after rehearing the case en banc, ordered a similar remedy,9<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-9> and the trial court, with the cooperation of the parties, ordered an affidavit alternative in time for the November 2016 election.10<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-10> The parties then fought about whether Texas was properly implementing the alternative.11<http://wisconsinlawreview.org/softening-voter-id-laws-through-litigation-is-it-enough/#note-11>

In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number of voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.

This brief Essay first describes the theoretical softening which emerged in some voter identification litigation. It then explains that, at least to this point, such softening offers less than meets the eye in helping voters facing difficulties voting in states with strict voter identification requirements. It concludes that courts should strike down strict voter identification laws, because the laws deprive at least some voters of the ability to cast a valid vote for no good reason, and the softening devices do not yet appear to do enough.
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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>

“‘It’s just inherently intimidating’: Watchdog agency under fire for pressuring groups it regulates to oppose legislation”<http://electionlawblog.org/?p=86734>
Posted on September 21, 2016 8:28 am<http://electionlawblog.org/?p=86734> by Rick Hasen<http://electionlawblog.org/?author=3>

LAT:<http://www.latimes.com/politics/la-pol-sac-fppc-open-government-lobby-20160921-snap-story.html>

A rare and heated dispute has erupted between California’s campaign finance regulators  and open-government groups that have accused the watchdog agency of pressuring them to rescind their support for legislation designed to show who is funding political ads.

Supporters of the bill criticized the state Fair Political Practices Commission for heavy-handed tactics that they said included pushing groups the commission has the power to investigate and fine to drop their support for the transparency bill.

“It’s really inappropriate for a regulator who has enormous power over organizations to call up those organizations over which they have power, and lobby them,” said Trent Lange, president of California Clean Money Campaign. “It’s just inherently intimidating to have your regulator call you and ask you to do something.”

Michele Sutter, co-founder of the group Money Out Voters In, called it “shocking behavior by the FPPC.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“McCutcheon says court victory renders super PAC obsolete”<http://electionlawblog.org/?p=86732>
Posted on September 21, 2016 8:26 am<http://electionlawblog.org/?p=86732> by Rick Hasen<http://electionlawblog.org/?author=3>

Mary Troyan<http://www.montgomeryadvertiser.com/story/news/politics/2016/09/20/mccutcheon-says-court-victory-renders-super-pac-obsolete/90739290/> for Gannett.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“When the Electoral Map Governs Presidential Campaign Strategy”<http://electionlawblog.org/?p=86730>
Posted on September 20, 2016 9:32 pm<http://electionlawblog.org/?p=86730> by Rick Hasen<http://electionlawblog.org/?author=3>

John Harwood for the NYT:<http://www.nytimes.com/2016/09/21/us/politics/trump-clinton-electoral-college.html?ref=politics>

Donald J. Trump<http://www.nytimes.com/interactive/2016/us/elections/donald-trump-on-the-issues.html?inline=nyt-per>’s progress in national polls has done something in the 2016 presidential race that is unusual. It has made the Electoral College matter.

Usually it doesn’t. Because voter preferences are distributed relatively evenly across the United States, modest advantages in the popular vote usually translate into substantial majorities in the Electoral College.

But Mr. Trump, in T<http://www.nytimes.com/interactive/2016/us/elections/polls.html>he New York Times’s national polling average<http://www.nytimes.com/interactive/2016/us/elections/polls.html>, has pulled within two points of Hillary Clinton<http://www.nytimes.com/interactive/2016/us/elections/hillary-clinton-on-the-issues.html?inline=nyt-per>. In an election that close, state-to-state variations assume an outsize role.

If Mr. Trump draws within 1.5 percentage points of Mrs. Clinton in the popular vote,according to calculations by Harry Enten at FiveThirtyEight<http://fivethirtyeight.com/features/why-clintons-electoral-map-isnt-as-good-as-obamas/>, he would win 266 electoral votes under current patterns of support for the candidates. By tilting any of three additional battlegrounds — Colorado, New Hampshire or Pennsylvania — he would win the presidency.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, electoral college<http://electionlawblog.org/?cat=44>

--
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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