[EL] ELB News and Commentary 4/18/17

Mon Apr 17 20:37:25 PDT 2017

“Two plaintiffs join suit against Trump, alleging breach of emoluments clause”<http://electionlawblog.org/?p=92140>
Posted on April 17, 2017 7:25 pm<http://electionlawblog.org/?p=92140> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/two-plaintiffs-join-suit-against-trump-alleging-breach-of-emoluments-clause/2017/04/17/1d4aaa70-238a-11e7-a1b3-faff0034e2de_story.html?utm_term=.98dcd9d04698>
Two new plaintiffs — an association of restaurants and restaurant workers, and a woman who books banquet halls for two D.C. hotels — plan to join a lawsuit alleging that President Trump has violated the Constitution’s emoluments clause because his hotels and restaurants do business with foreign governments.
The new plaintiffs will be added to the case on Tuesday morning, according to a spokesman for Citizens for Responsibility and Ethics in Washington (CREW), a D.C.-based watchdog group.
CREW had originally filed suit against Trump in federal court in January, alleging that — by continuing to own his business, which rents out hotel rooms and meeting spaces to other governments — Trump had violated the constitutional provision that bans “emoluments” from foreign powers.
Legal experts had said that the case faced a serious hurdle: It wasn’t clear that the watchdog group actually had standing to sue in the first place. What harm had it suffered, specifically, because of Trump’s actions?
The new plaintiffs are intended to offer an alternative answer to that question. Both say that, as direct competitors of Trump’s restaurants and hotels, they may lose foreign clients, who may book with Trump properties to curry favor with the president.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

Court Orders Kobach to Produce Voting Document Shared with Trump, Suggests ACLU May Pursue Sanctions Against Kobach<http://electionlawblog.org/?p=92138>
Posted on April 17, 2017 7:19 pm<http://electionlawblog.org/?p=92138> by Rick Hasen<http://electionlawblog.org/?author=3>
Bryan Lowry <http://www.kansascity.com/news/politics-government/article145076069.html> in the KC Star:
A federal magistrate judge has ordered Kansas Secretary of State Kris Kobach to disclose documents outlining a strategic plan he presented to President Donald Trump in November, a decision that could have ramifications from Topeka to Washington.
Kobach, who served on Trump’s transition team, was photographed in November holding a stack of papers labeled as a strategic plan for the U.S. Department of Homeland Security. That plan, as revealed by the photograph, included the recommendations that the U.S. block all refugees from Syria and engage in “extreme vetting” of immigrants from countries considered high-risk.
It also contained a reference to voter rolls, which was partially obscured by Kobach’s hand in the photograph<http://www.kansas.com/news/politics-government/election/article116227188.html>….
Judge James O’Hara in Kansas City, Kan., ordered Kobach<http://media.kansascity.com/livegraphics/2017/pdf/ohara_order.pdf> to share the documents Monday after privately reviewing them <http://www.kansascity.com/news/politics-government/article143155339.html> earlier in the month. The judge will allow Kobach to redact the documents, but he wholly rejected the Kansas official’s argument that the papers were protected by Trump’s executive privilege and even questioned whether Kobach had met his duty of candor as an attorney in his efforts to prevent the ACLU from reviewing the papers.
O’Hara said that “even adopting defendant’s view that the executive privilege may be asserted by a president over communications made before he takes office, defendant doesn’t address the fact that now-President Trump conspicuously has not asserted the privilege over the photographed document.”
From fn 22 of the order<http://media.kansascity.com/livegraphics/2017/pdf/ohara_order.pdf>:
22 Defendant stated in his response to the motion to compel that the draft amendment “does not propose to ‘amend or alter’ an [sic] ‘eligibility-assessment procedures mandated by the NVRA.’” ECF No. 288 at 18. Defendant also stated “no such document exists” that shows defendant sought an alternative means of assessing voter qualification by amending the NVRA. Id. at 17. These statements, most charitably, can be construed as word-play meant to present a materially inaccurate picture of the documents. After plaintiffs review the documents to be provided under this order, the court leaves it to them to decide whether to seek sanctions against defendant in this regard. But whether plaintiffs elect to file a sanctions motion misses the larger point. As mentioned earlier, Secretary Kobach is both a defendant and counsel of record, and in the latter capacity is an officer of the court with a duty of candor and a duty not to assert frivolous arguments. At the risk of stating what should be obvious, when any lawyer takes an unsupportable position in a simple matter such as this, it hurts his or her credibility when the court considers arguments on much more complex and nuanced matters such as attorney-client privilege, deliberative-process privilege, executive privilege, and indeed, the ultimate issue of whether Kansas’s DPOC law is preempted by the NVRA.
(Emphasis added).
Ouch!
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Posted in chicanery<http://electionlawblog.org/?cat=12>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776–2015”<http://electionlawblog.org/?p=92136>
Posted on April 17, 2017 1:08 pm<http://electionlawblog.org/?p=92136> by Rick Hasen<http://electionlawblog.org/?author=3>
J.H. Snider has written this article <http://www.journals.uchicago.edu/doi/abs/10.1086/691177> for American Political Thought. Here is the abstract:
In the preamble to the US Declaration of Independence, Thomas Jefferson wrote that people have an “unalienable” right “to alter” their government. A total of 37 US states would eventually include in their state constitutions a similar provision promising the people the right at all times to alter or reform their government. Jefferson would later also argue that people should have a right to alter their constitution at periodic intervals. Eventually, 14 states, including New York, would adopt a constitutional provision implementing such a right. The distinctive democratic function of that right—except in states with the constitutional initiative—is that it allows the people to bypass the legislature’s gatekeeping power over constitutional reform. This article explains the long-term structural forces leading to increased opposition to calling a state constitutional convention. Some of these forces signal democratic dysfunction and should be cause for alarm.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Supreme Court Takes No Action Today in North Carolina Voting Case<http://electionlawblog.org/?p=92134>
Posted on April 17, 2017 7:19 am<http://electionlawblog.org/?p=92134> by Rick Hasen<http://electionlawblog.org/?author=3>
Today’s order list<https://www.supremecourt.gov/orders/courtorders/041717zor_09m1.pdf> means the Court has not ruled on whether or not to dismiss the cert. petition in the big North Carolina voting case, as the Democratic governor and AG ask, on the Republican legislature’s attempt to intervene in the case to keep the cert. petition alive, or on the cert. petition itself.
What does it mean that the Court did not act? Too hard to know, other than that someone at the Court wants to take a closer look at one or more of these questions.
UPDATE: The case has been relisted<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-833.htm> for the next conference,
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, 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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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