[EL] ELB News and Commentary 8/2/17

Wed Aug 2 06:58:44 PDT 2017

“Trump Loyalist Mixes Businesses and Access at ‘Advisory’ Firm”<http://electionlawblog.org/?p=94143>
Posted on August 2, 2017 6:55 am<http://electionlawblog.org/?p=94143> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/08/01/us/politics/corey-lewandowski-trump.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=10&pgtype=sectionfront&_r=0>
About a week after leaving his old firm, Mr. Lewandowski started a new consulting business, according to corporate filings. And now, as he takes on an increasingly broad role as an unofficial White House adviser, he is building a roster of clients with major interests before the Trump administration, including an Ohio-based payday lender seeking to block or overturn new federal financial regulations<http://topics.nytimes.com/topics/reference/timestopics/subjects/c/credit_crisis/financial_regulatory_reform/index.html?inline=nyt-classifier>.
Mr. Lewandowski appears to be positioning his new firm as an “advisory” business, part of a growing cohort of Washington influencers who advise companies on how to navigate the government but do not register as lobbyists or disclose their clients. A draft contract obtained by The New York Times stipulates that Mr. Lewandowski’s firm “cannot and will not engage in any lobbying or advocacy services.”…
But Mr. Lewandowski, who is known for his keen understanding of Mr. Trump’s news media tastes and habits, used an appearance on NBC’s “Meet the Press”<http://www.nbcnews.com/meet-the-press/video/fire-richard-cordray-lewandowski-to-new-chief-of-staff-1013246531986> on Sunday to press his new client’s interests, calling for Mr. Trump to oust the bureau’s director, Richard Cordray, an Obama holdover who has led the effort to pass new payday lending requirements.
“It’s my recommendation to the president of the United States to fire Richard Cordray,” Mr. Lewandowski said….
Rejecting a question from the “Meet the Press” host, Chuck Todd, about whether he had “a client that wants to see” Mr. Cordray fired, Mr. Lewandowski said: “No, no. I have no clients whatsoever.” He explained his opposition to Mr. Cordray by pointing to a similar position taken by Representative Jeb Hensarling, Republican of Texas and the chairman of the House Financial Services Committee, who has called on Mr. Trump to dismiss Mr. Cordray<https://www.housingwire.com/articles/39774-hensarling-to-cfpbs-cordray-you-deserve-to-be-fired-immediately>.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, lobbying<http://electionlawblog.org/?cat=28>

“States with Election Day registration see bonus for democracy”<http://electionlawblog.org/?p=94141>
Posted on August 2, 2017 6:47 am<http://electionlawblog.org/?p=94141> by Rick Hasen<http://electionlawblog.org/?author=3>
Boston Globe:<https://www.bostonglobe.com/metro/2017/08/02/states-with-election-day-registration-see-bonus-for-democracy/RkdGMQXCqJd1kEoJM1cW4J/story.html>
Voting on Election Day usually entails some pre-planning, with registration required several days, if not weeks, ahead of time in most places.
But now, following a court decision last week, Massachusetts is under pressure to join more than a dozen other states — including Connecticut, Maine, and Vermont — in allowing residents to register or reregister on Election day, and vote moments later.
While the state’s top election official is raising concerns about costs, research shows that allowing same-day, or election-day, registration can bolster democracy by motivating voters to go to the polls.
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Posted in voter registration<http://electionlawblog.org/?cat=37>

Top Recent Downloads in Election Law on SSRN<http://electionlawblog.org/?p=94138>
Posted on August 2, 2017 6:46 am<http://electionlawblog.org/?p=94138> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
Top Downloads For:
LSN: Election Law & Voting Rights (Topic)
Recent Top Papers (60 days)
As of: 03 Jun 2017 – 02 Aug 2017
Rank

Paper

Downloads

1.

The 2016 U.S. Voting Wars: From Bad to Worse<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257>
Richard L. Hasen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>
University of California, Irvine School of Law
Date Posted: 14 Jul 2017
Last Revised: 24 Jul 2017

146

2.

The Causes and Consequences of Gerrymandering<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2990638>
Nicholas Stephanopoulos<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=636048>
University of Chicago Law School
Date Posted: 22 Jun 2017
Last Revised: 22 Jun 2017

108

3.

Campaign Finance Reform Without Law<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001972>
Robert Yablon<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2277973>
University of Wisconsin Law School
Date Posted: 14 Jul 2017
Last Revised: 22 Jul 2017

92

4.

Resurrection: Cooper v. Harris and the Transformation of Racial Gerrymandering into a Voting Rights Tool<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2985755>
Richard L. Hasen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>
University of California, Irvine School of Law
Date Posted: 14 Jun 2017
Last Revised: 14 Jun 2017

90

5.

Partisan Gerrymandering and the Illusion of Unfairness<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2993876>
Jacob Eisler<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1625495>
University of Cambridge – Jesus College
Date Posted: 29 Jun 2017
Last Revised: 29 Jun 2017

82

6.

The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999738>
Edward B. Foley<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=33055>
Ohio State University (OSU) – Michael E. Moritz College of Law
Date Posted: 12 Jul 2017
Last Revised: 12 Jul 2017

70

7.

Prisoner Voting Saga: Reasons for Challenges<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2984495>
Kanstantsin Dzehtsiarou<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=928424>
University of Liverpool
Date Posted: 19 Jun 2017
Last Revised: 23 Jun 2017

44

8.

Introduction: The Past, Present, and Future of Free Speech<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2988066>
Joel M. Gora<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=30178>
Brooklyn Law School
Date Posted: 19 Jun 2017
Last Revised: 22 Jun 2017

36

9.

Citizens United, Liberty, and John Stuart Mill<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995180>
Melina Constantine Bell<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2735986>
Washington and Lee University
Date Posted: 30 Jun 2017
Last Revised: 30 Jun 2017

22

10.

Compulsory Voting and TV News Consumption<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2969105>
Raphael Bruce<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2490452> and Rafael Costa Lima<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2637783>
University of Sao Paulo (USP) – Department of Economics and Universidade Federal de Pernambuco
Date Posted: 30 May 2017
Last Revised: 10 Jun 201

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Posted in pedagogy<http://electionlawblog.org/?cat=23>

“Trump’s fundraising prowess keeps Republican Party close”<http://electionlawblog.org/?p=94136>
Posted on August 2, 2017 6:31 am<http://electionlawblog.org/?p=94136> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://apnews.com/d9154939959f4015a9ff54ae54ea3813/Trump's-fundraising-prowess-keeps-Republican-Party-close>
Trump’s fundraising prowess is the engine of the Republican National Committee and a lifeline for every Republican planning to rely on the party for financial help during next year’s congressional races. Leaning heavily on Trump’s appeal among small donors, the party has raised $75 million in the first six months of the year, more than double what the Democratic National Committee had raised by the same point in President Barack Obama’s first year.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

Unanimous FEC Concludes Project Veritas Employee Likely Violated FEC Rules by Facilitating Foreign Contributions in Sting<http://electionlawblog.org/?p=94134>
Posted on August 1, 2017 7:34 pm<http://electionlawblog.org/?p=94134> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=118024784&vname=mpebulallissues&jd=0000015d9f04d5a5afddbf8cfac10002&split=0>
An undercover operative for a conservative group likely violated rules against foreign campaign contributions while seeking to show Hillary Clinton’s presidential campaign was willing to break those same rules, the Federal Election Commission concluded<http://eqs.fec.gov/eqsdocsMUR/17044422255.pdf>.
The FEC said in newly released documents that Laura Loomer, an employee of Project Veritas Action, appeared to violate campaign finance rules by taking money from a Canadian national to buy Clinton campaign merchandise.
An analysis written by the FEC general counsel’s office and unanimously backed by the agency’s commissioners accused Loomer of “knowingly providing substantial assistance to a foreign national in making a contribution.” However, the FEC said it wouldn’t seek any penalties in the case because of the small amount of money involved.
The FEC’s discussion of the knowingly standard for providing substantial assistance in helping a foreign individual make a contribution (pages 5-6 of the analysis<http://eqs.fec.gov/eqsdocsMUR/17044422255.pdf>) could be relevant to the Don Jr. Russian meeting controversy.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

“Intent is Enough: Invidious Partisanship in Redistricting”<http://electionlawblog.org/?p=94132>
Posted on August 1, 2017 6:54 pm<http://electionlawblog.org/?p=94132> by Rick Hasen<http://electionlawblog.org/?author=3>
Justin Levitt has written this piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011062> for the William and Mary redistricting symposium.  Here is the abstract:
When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that too much partisanship in the redistricting process violates the Constitution, but failed to agree on how much is too much (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” But this is a sprint to answer the wrong question: it is perhaps the question Justices have asked, yes, but not the one best illuminating the problem.
This paper suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish egregious unconstitutional partisanship from normal politics. In this endeavor, the nature of the intent, not the magnitude of the impact, matters most. A pivotal case just last Term reveals that the invidious intent of a state actor to subordinate others based on perceived partisan affiliation constitutes a constitutional violation, no matter the severity of any resulting injury. Testing for this intent provides the screening device the Justices seek. The proffered quantitative tests of the scholarly community may be valuable in this analysis, but not for the reason most think: they show not the threshold of impact necessary for a violation, but suggestive evidence of invidious intent.
I’ve read earlier drafts of this piece and I highly recommend it (even though I approach these issues very differently).
Download it while it is hot!
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Is the Voting Process at Risk?”<http://electionlawblog.org/?p=94130>
Posted on August 1, 2017 2:04 pm<http://electionlawblog.org/?p=94130> by Rick Hasen<http://electionlawblog.org/?author=3>
I spoke<http://www.wpr.org/shows/voting-process-risk> with Kathleen Dunn on Wisconsin Public Radio.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“U.S. judge denies Common Cause effort to block Trump voter commission”<http://electionlawblog.org/?p=94128>
Posted on August 1, 2017 1:38 pm<http://electionlawblog.org/?p=94128> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/local/public-safety/us-judge-denies-common-cause-effort-to-block-trump-voter-commission/2017/08/01/57abf36c-76d3-11e7-9eac-d56bd5568db8_story.html?utm_term=.5cc25513ee3d>
A federal judge on Tuesday declined to temporarily bar President Trump’s voting commission from collecting voter data from states and the District, saying a federal appeals court likely will be deciding the legality of the request.
U.S. District Judge Royce C. Lamberth of the District denied an emergency motion by Common Cause, a nonprofit government watchdog group. The group alleged the request for voting history and political party affiliation by the Trump administration violates a Watergate-era law<https://www.washingtonpost.com/local/public-safety/us-judge-set-to-hear-new-challenge-to-trump-voter-commission-tuesday/2017/07/31/cb040170-7632-11e7-9eac-d56bd5568db8_story.html> that prohibits the government from gathering information about how Americans exercise their First Amendment rights.
Lamberth advised the group to flesh out its claims by documenting the commission’s activity at a recent July 19 meeting while the lawsuit continues.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“The Franchise Project Launches, Releases 50-State Voting Access Scorecard”<http://electionlawblog.org/?p=94126>
Posted on August 1, 2017 12:17 pm<http://electionlawblog.org/?p=94126> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://thefranchiseproject.com/the-franchise-project-launches-releases-50-state-voting-access-scorecard/>
Today marks the launch of The Franchise Project (TFP)<https://thefranchiseproject.com/>, a voting rights advocacy organization that aims to educate and empower grassroots activists to engage in effective voting rights advocacy at the local level. The group’s 50-State Voting Access Scorecard<https://thefranchiseproject.com/voter-scorecards/> helps identify state laws and practices that create barriers to voting access. Then, TFP outlines concrete actions people can take to make voting easier in their states.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
SOS Kobach Appealing to Tenth Circuit to Try to Stop His Deposition by ACLU About Voting Plans<http://electionlawblog.org/?p=94124>
Posted on August 1, 2017 9:43 am<http://electionlawblog.org/?p=94124> by Rick Hasen<http://electionlawblog.org/?author=3>
Wow.<http://www.kansascity.com/news/politics-government/article164733447.html>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

New Book from Me: Examples & Explanations for Remedies, Fourth Edition<http://electionlawblog.org/?p=94122>
Posted on August 1, 2017 8:06 am<http://electionlawblog.org/?p=94122> by Rick Hasen<http://electionlawblog.org/?author=3>
For those teaching or taking a Remedies course, or who want to understand damages, injunctions, restitution and more, the new edition of my Remedies E&E is now out.
From the book’s description of what’s new for the 4th edition: <http://wklegaledu.com/examples-explanations/id-9781454881292/Examples__Explanations_for_Remedies_Fourth_Edition>

  *   A new discussion of the draft Restatement of the Law Torts (Third): Liability for Economic Harm’s treatment of the economic harm rule
  *   A new discussion of special emotional distress rules for cases involving high risk of causing such distress, such as mishandling human remains and injuring pets
  *   A new discussion of emotional distress damages for breach of contract
  *   A new section discussing of the basis for temporary restraining orders, including the appealability of such orders (which has become a contested issue in challenges to Trump administration executive orders)
  *   A new section discussing the controversy over the use of nationwide injunctions in highly charged political cases, a trend that has emerged to challenge policies of both the Obama and Trump administrations
  *   A new discussion of restitutionary claims for constructive trusts involving disproportionate gains, such as lottery winnings, under both the common law and Restatement (Third) of Restitution
  *   A new section on opportunistic breach of contract in Restitution, including the Supreme Court’s recent endorsement of the section in a 2015 case
  *   A new section on the relationship between laches and statutes of limitations and new Supreme Court authority on the question
(Also available at Amazon<https://www.amazon.com/Examples-Explanations-Remedies-Richard-Hasen/dp/1454881291/ref=asap_bc?ie=UTF8>.)
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Posted in Remedies<http://electionlawblog.org/?cat=57>

“Separate facts, myths on voter fraud in Ky.”<http://electionlawblog.org/?p=94120>
Posted on August 1, 2017 7:44 am<http://electionlawblog.org/?p=94120> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Douglas oped.<http://www.kentucky.com/opinion/op-ed/article164627172.html>
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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
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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