[EL] ELB News and Commentary 9/27/16
Rick Hasen
rhasen at law.uci.edu
Tue Sep 27 08:04:30 PDT 2016
Still Troubling: Donald Trump Says He Will Accept Outcome of Election “Is She Wins”<http://electionlawblog.org/?p=86893>
Posted on September 27, 2016 7:56 am<http://electionlawblog.org/?p=86893> by Rick Hasen<http://electionlawblog.org/?author=3>
Near the end of last night’s debate. Lester Holt asked each candidate an important question about accepting the results if on the losing end of the election. The question is important because of Trump’s irresponsible vote rigging claims earlier this year. <http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html> He has suggested that in places like Pennsylvania, there are ‘certain areas” of the state (which I see as code word for minority urban areas) where the vote might be stolen.
At first I was happy with Trump’s debate answer, until people pointed out that he hedged by saying he will support Hillary Clinton “if she wins,” leaving open the potential to argue she did not really win the election because of rigging. And indeed his answer to the question raised the specter of people being made citizens by the Obama Administration so that they can vote in this election, which is a new theme on the right. Here’s the relevant part of the transcript<http://www.nytimes.com/2016/09/27/us/politics/transcript-debate.html?ref=politics&_r=0>:
HOLT: One of you will not win this election. So my final question to you tonight, are you willing to accept the outcome as the will of the voters? Secretary Clinton?
CLINTON: Well, I support our democracy. And sometimes you win, sometimes you lose. But I certainly will support the outcome of this election.
And I know Donald’s trying very hard to plant doubts about it, but I hope the people out there understand: This election’s really up to you. It’s not about us so much as it is about you and your families and the kind of country and future you want. So I sure hope you will get out and vote as though your future depended on it, because I think it does.
HOLT: Mr. Trump, very quickly, same question. Will you accept the outcome as the will of the voters? TRUMP: I want to make America great again. We are a nation that is seriously troubled. We’re losing our jobs. People are pouring into our country.
The other day, we were deporting 800 people. And perhaps they passed the wrong button, they pressed the wrong button, or perhaps worse than that, it was corruption, but these people that we were going to deport for good reason ended up becoming citizens. Ended up becoming citizens. And it was 800. And now it turns out it might be 1,800, and they don’t even know.
HOLT: Will you accept the outcome of the election?
TRUMP: Look, here’s the story. I want to make America great again. I’m going to be able to do it. I don’t believe Hillary will. The answer is, if she wins, I will absolutely support her.
I know Trump made some comments about this post-debate on CNN, but I have not yet tracked those down. If I find the comments I will update this post.
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>
Mike McDonald is Grouchy About National Voter Registration Day<http://electionlawblog.org/?p=86891>
Posted on September 27, 2016 7:42 am<http://electionlawblog.org/?p=86891> by Rick Hasen<http://electionlawblog.org/?author=3>
and for good reason.
Start here.<https://twitter.com/ElectProject/status/780756517863628800>
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Posted in election administration<http://electionlawblog.org/?cat=18>
Kansas Court Extends Ban on Kobach’s “Dual Registration” Voting System Through November, Expresses Great Annoyance at Kobach<http://electionlawblog.org/?p=86887>
Posted on September 27, 2016 7:18 am<http://electionlawblog.org/?p=86887> by Rick Hasen<http://electionlawblog.org/?author=3>
Here is the orde<http://electionlawblog.org/wp-content/uploads/brown-kobach.pdf>r, issued Friday.
It also requires Kansas officials to notify dual registration voters that they can vote in all elections this November.
There will be further proceedings after the election, after Kobach raised a very late standing issue.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
This Week’s Goldfeder Presidential Quiz<http://electionlawblog.org/?p=86885>
Posted on September 27, 2016 7:08 am<http://electionlawblog.org/?p=86885> by Rick Hasen<http://electionlawblog.org/?author=3>
Have at it.<http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Pillar of Law Seeks Preliminary Injunction in Michigan ‘Ballot Selfie’ Lawsuit”<http://electionlawblog.org/?p=86883>
Posted on September 26, 2016 4:03 pm<http://electionlawblog.org/?p=86883> by Rick Hasen<http://electionlawblog.org/?author=3>
Release.<https://www.pillaroflaw.org/index.php/blog/entry/pillar-of-law-seeks-preliminary-injunction-in-michigan-ballot-selfie-lawsuit>
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Trump directed $2.3 million owed to him to his tax-exempt foundation instead”<http://electionlawblog.org/?p=86881>
Posted on September 26, 2016 3:03 pm<http://electionlawblog.org/?p=86881> by Rick Hasen<http://electionlawblog.org/?author=3>
Wow,<https://www.washingtonpost.com/politics/trump-directed-23-million-owed-to-him-to-his-charity-instead/2016/09/26/7a9e9fac-8352-11e6-ac72-a29979381495_story.html?postshare=1474923050077&tid=ss_tw> from future Pulitzer winner David Fahrenthold:
Donald Trump’s charitable foundation has received approximately $2.3 million from companies that owed money to Trump or one of his businesses but were instructed to pay Trump’s tax-exempt foundation instead, according to people familiar with the transactions.
In cases where he diverted his own income to his foundation, tax experts said, Trump would still likely be required to pay taxes on the income. Trump has refused to release his personal tax returns. His campaign said he paid income tax on one of the donations, but did not respond to questions about the others.
Big, big story.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
I’m Doing a Live Streaming Q&A Wed. at Noon Pacific: Rigged, Hacked, or Stolen: Legal Issues in the 2016 Election<http://electionlawblog.org/?p=86879>
Posted on September 26, 2016 2:47 pm<http://electionlawblog.org/?p=86879> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ll be interviewed by the great Henry Weinstein of UCI Law.
You can watch the livestream <http://livestream.com/accounts/867536/events/6384150> 9/28 at 12 pm Pacific.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Russian-born oil magnate gives big to Trump Victory”<http://electionlawblog.org/?p=86877>
Posted on September 26, 2016 2:45 pm<http://electionlawblog.org/?p=86877> by Rick Hasen<http://electionlawblog.org/?author=3>
Open Secrets:<http://www.opensecrets.org/news/2016/09/russian-born-oil-magnate-gives-big-to-trump-victory/>
Donald Trump has an interesting relationship with Russia, to say the least. He’s praised Vladimir Putin. Hisformer campaign chairman<http://www.nytimes.com/2016/08/15/us/politics/paul-manafort-ukraine-donald-trump.html?_r=0>, Paul Manafort, had business dealings with pro-Russia leaders in Ukraine. U.S. intelligence officials are investigating<https://www.yahoo.com/news/u-s-intel-officials-probe-ties-between-trump-adviser-and-kremlin-175046002.html> whether one of Trump’s foreign policy advisers met with senior Russia officials to discuss lifting economic sanctions in the event of a Trump presidency.
Here’s another tie: Simon Grigorievich Kukes, former chief executive of a now-defunct Russian state-owned oil company, who contributed more than $150,000 to Trump’s campaign and joint fundraising committee, Trump Victory<http://www.opensecrets.org/jfc/top.php?type=C&cycle=2016>. This is the first election cycle he has contributed, according to FEC documents. Kukes gave $2,700 directly to Trump’s campaign in March, and then a total of $149,000 to Trump Victory in June and July; another $2,700 of that went to Trump directly, while the remainder was divided between the Republican National Committee’s main account, its convention account and its headquarters account.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Toobin on the Supreme Court After Scalia<http://electionlawblog.org/?p=86875>
Posted on September 26, 2016 12:47 pm<http://electionlawblog.org/?p=86875> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<http://www.newyorker.com/magazine/2016/10/03/in-the-balance>, with quotes on Pam Karlan and Heather Gerken on Citizens United and voting rights.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Ballot Selfies Used to Coerce Voters in Russia (or More Evidence Why Mark Joseph Stern is Wrong)<http://electionlawblog.org/?p=86873>
Posted on September 26, 2016 12:09 pm<http://electionlawblog.org/?p=86873> by Rick Hasen<http://electionlawblog.org/?author=3>
More evidence <http://www.nybooks.com/articles/2016/09/29/real-power-vladimir-putin/> that Mark Joseph Stern is super wrong<http://electionlawblog.org/?p=86835> on ballot selfies. It is not just about vote buying, but coercion:
Instead, Garrels’s subjects follow the time-tested Russian strategies of adaptation and circumvention. On the eve of recent elections, for example, students at Chelyabinsk State University were informed that, to express their gratitude for government-issued scholarships, they should support United Russia, Putin’s party. To verify that support, officials required students to use their cell phones to photograph their ballot as they voted. Some students complied with a twist: they placed a thread in the shape of a check mark next to “United Russia,” photographed the ballot, and then removed the thread and voted as they pleased.
According to Authoritarian Russia, by the political scientist Vladimir Gel’man, it is precisely such microstrategies of coping that help perpetuate Russia’s authoritarian politics. Like most politicians, Russia’s leaders are simply “rational power maximizers.” The difference is that they operate in a country almost entirely devoid of institutional and political constraints on elite behavior. Gel’man thus shows little interest in Putin’s worldview, or the views of those around him; in fact, he writes, “ideology as such has probably been the least meaningful factor in Russian politics since the Soviet collapse.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>
Presidential Election Law Forum at Fordham on Friday<http://electionlawblog.org/?p=86870>
Posted on September 26, 2016 12:05 pm<http://electionlawblog.org/?p=86870> by Rick Hasen<http://electionlawblog.org/?author=3>
Announcement via email:
Friday, September 30, 2016 at Fordham Law School, 150 West 62 Street, New York City
Lunch and Welcome Reception (12:00 to 12:30)
Panel 1 (12:30 to 1:50) (Moderated by Professor Jerry Goldfeder):
· Prof. Edward B. Foley (Third-Party and Independent Presidential Candidate: The Need for a Runoff Mechanism)
· Prof. Eugene D. Mazo (Some Thoughts on Presidential Ineligibility in the Midst of a Presidential Campaign)
· Prof. Michael T. Morley (Reforming the Contested Convention: Rethinking the Presidential Nomination Process)
· Richard Winger (Does the Constitution Provide More Ballot Access Protection for Presidential Elections than in U.S. House Elections?)
Panel 2 (2:00 to 3:00) (Moderated by Professor Jerry Goldfeder):
· Prof. Derek T. Muller (Natural Born Citizen Challenges in the 2016 Presidential Election)
· Prof. Anthony J. Gaughan (Ramshackle Federalism: America’s Archaic and Dysfunctional Presidential Election System)
· Sean J. Wright (Time to End Presidential Caucuses)
Keynote Address (3:15 to 3:45)
· Michael Waldman (President of the Brennan Center for Justice at NYU School of Law)
Jerry Goldfeder<http://www.stroock.com/people/JGoldfeder>, Special Counsel at Stroock & Stroock & Lavan LLP and Adjunct Professor of Law at Fordham Law School, will be moderating the Fordham Law Review‘s Election Law Forum on September 30, 2016, at Fordham’s Lincoln Center campus.
The Forum’s panels will include election law experts from around the country. The Keynote Address will be given by Michael Waldman<http://www.brennancenter.org/expert/michael-waldman>, former speech writer for President Bill Clinton and currently President of the Brennan Center for Justice at NYU School of Law.
Topics will include:
· Third-Party and Independent Presidential Candidates: The Need for a Runoff Mechanism
· Reforming the Contested Convention: Rethinking the Presidential Nomination Process
· Natural Born Citizen Challenges in the 2016 Presidential Election
· America’s Archaic and Dysfunctional Presidential Election System
· The Future of Presidential Caucuses
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Corporations in Politics Are Like a Tractor-Trailer Drifting Into Your Lane”<http://electionlawblog.org/?p=86868>
Posted on September 26, 2016 12:04 pm<http://electionlawblog.org/?p=86868> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/allowing-corporations-politics-runs-risk-pushing-rest-us-road>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“New Lawsuit Challenges Constitutionality of Alabama’s Felony Disenfranchisement Law”<http://electionlawblog.org/?p=86866>
Posted on September 26, 2016 12:02 pm<http://electionlawblog.org/?p=86866> by Rick Hasen<http://electionlawblog.org/?author=3>
Release<http://www.campaignlegalcenter.org/news/press-releases/new-lawsuit-challenges-constitutionality-alabama-s-felony-disenfranchisement-law>:
The Campaign Legal Center, the Voting Rights Institute, and the law firm of Jenner & Block, alongside a star-studded team of civil rights lawyers, today filed a lawsuit<http://www.campaignlegalcenter.org/sites/default/files/Thompson%20v.%20Rucho%20Complaint%20FILED.pdf> in Alabama district court on behalf of U.S. citizens with past felony convictions who have been denied the right to vote due to the state’s strict, discriminatory and arbitrary felony disenfranchisement system.
The lawsuit, Thompson v. Alabama, calls for the court to rule the law is racially discriminatory, unconstitutional and a violation of the Voting Rights Act. The lawsuit also asserts a theory that, if successful, could sharply limit the scope of permissible felon disenfranchisement nationwide, arguing that the 14th Amendment does not allow the blanket disenfranchisement of citizens for minor non-violent offenses that are irrelevant to voting.
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Posted in felon voting<http://electionlawblog.org/?cat=66>
DC Circuit Finds Evidence of Threat of Non-Citizen Voting Very Minor in Kobach-EAC Case<http://electionlawblog.org/?p=86862>
Posted on September 26, 2016 9:34 am<http://electionlawblog.org/?p=86862> by Rick Hasen<http://electionlawblog.org/?author=3>
Back on September 9,<http://electionlawblog.org/?p=86390> the DC Circuit issued an order in one of the EAC cases, holding that the district court should have issued a preliminary injunction against the order put out by EAC Director Brian Newby (without getting approval of the EAC Commissioners) giving Kansas and a few other states the ability to demand documentary proof of citizenship before someone could vote using the federal voting form. This was a huge deal as it was litigated before and the EAC refused to do so for vote fraud huckster and Kansas SOS Krisk Kobach in a case that went all the way to the Supreme Court. Newby used to work with Kobach in Kansas and was seen by many to be doing his bidding.
When the DC Circuit ruled, it did so before a full opinion was ready. The opinion in the case, along with a dissent, is now out<http://pdfserver.amlaw.com/nlj/9-26-16%20DC%20Circuit%20opinion%20Newby.pdf>. The court finds that Newby acted arbitrarily and capriciously in violation of the Administrative Procedure Act:
The Leagues have a substantial (perhaps overwhelming) likelihood of success on the merits. Under section 9(b) of the NVRA, 52 U.S.C. § 20508(b), the Federal Form requires registrants to supply information as part of their application only insofar as it is “necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” Id. § 20508(b)(1) (emphasis added); see also ITCA, 133 S. Ct at 2259 (section 9(b) “acts as both a ceiling and a floor with respect to the contents of the Federal Form”). In a contemporaneous internal memorandum, which this court may consider, see Tourus Records, Inc. v. DEA, 259 F.3d 731, 738 (D.C. Cir. 2001), Executive Director Newby justified his decisions by stating that “[s]tate-specific instructional changes are ministerial, and, thus, routine.” Brian D. Newby, Acceptance of State-Instructions to Federal Form for Alabama, Georgia, and Kansas at 2 (Feb. 1, 2016). Far from considering whether these amendments were “necessary” (as required by the NVRA), he concluded that the “examples of need for these changes are irrelevant to [his] analysis” because of “the role and right[] of the states to set the framework for acceptance and completion of the [Federal F]orm.” Id. at 4-5. Newby viewed his role merely to “review the request[s] for clarity and accuracy.” Id. at 2. Because Newby expressly found that the criterion set by Congress — i.e., whether the amendments were necessary to assess eligibility — was “irrelevant” to his analysis, id. at 4, it is difficult to imagine a more clear violation of the APA’s requirement that an agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted).
Importantly, on the issue of the state requiring this information to prevent non-citizen voting the court wrote:
First, the states — and the public — “indisputably ha[ve] a compelling interest in preserving the integrity of [the] election process.” Purcell, 549 U.S. at 4 (internal quotation marks omitted). What is disputable is whether an injunction would actually do much, if any, harm to that interest. An injunction would undermine this interest if it permitted fraudulent registration by non-citizens. But there is precious little record evidence that it would do so. Kansas represented in its request letter that between 2003 and 2015 eighteen non-citizens had tried to or successfully registered to vote. Only one of them attempted to use the Federal Form. When the requests of Arizona and Kansas to add their proof-of-citizenship requirements to the Federal Form were rejected in 2014, it appeared that only a tiny fraction of one percent of registered voters were non-citizens. Earlier this year, a federal district court in Kansas found similarly little evidence of fraudulent registration by non-citizens trying to register at the Department of Motor Vehicles. See Fish v. Kobach, No. 16-2105, 2016 WL 2866195, at *29 (D. Kan. May 17, 2016). Additionally, the Tenth Circuit observed that the states have other tools at their disposal to ensure the integrity of elections, including protections against voter fraud. See Kobach, 772 F.3d at 1197, 1199. This court need take no position now on what evidence the Commission ought to require to show that documentary proof of citizenship is “necessary” for purposes of section 20508(b)(1), but observes only that, on the evidence before this court, the likely harm to election integrity appears minimal. Kobach suggests that he does not need to provide any evidence of harm to justify the state’s interest in election integrity, relying on a case where the question was whether, as a matter of constitutional law, a state interest in preventing voter fraud could justify a state’s voter identification law. See State Appellee Intervenor Br. 58 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191, 195–97 (2008) (Stevens, J., joined by Roberts, C.J. & Kennedy, J.)). That is immaterial to the factual question presented here — the extent to which an injunction would harm this valid state interest.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>
“FCC Has Failed to Protect Voters’ Right to Know Who Is Behind Political Ads in Election 2016”<http://electionlawblog.org/?p=86860>
Posted on September 26, 2016 8:03 am<http://electionlawblog.org/?p=86860> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.campaignlegalcenter.org/news/press-releases/fcc-has-failed-protect-voters-right-know-who-behind-political-ads-election-2016>
The Campaign Legal Center, Common Cause, Sunlight Foundation and Benton Foundation today filed a complaint with the Federal Communications Commission<http://www.campaignlegalcenter.org/sites/default/files/2016-09-26%20Complaint%20-%20WCPO-TV.pdf>urging the agency to take immediate action against WCPO-TV of Cincinnati for failure to comply with the longstanding public file requirements of Section 315 of the Communications Act. The complaint was accompanied by a letter to FCC Chairman Tom Wheeler<http://www.campaignlegalcenter.org/sites/default/files/2016-09-26%20%20Letter%20to%20Chairman%20Wheeler%20re%20Enforcement%20of%20Online%20Public%20File%20Obligations.pdf>, chastising the commission for doing “absolutely nothing” to enforce public file rules.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Voting Rights: Will Court Protections Deliver?”<http://electionlawblog.org/?p=86858>
Posted on September 26, 2016 7:52 am<http://electionlawblog.org/?p=86858> by Rick Hasen<http://electionlawblog.org/?author=3>
Allegra Chapman <http://prospect.org/article/voting-rights-will-court-protections-deliver> for TAP.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
--
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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