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

Tue Aug 8 09:01:30 PDT 2017

“Voter Fraud Allegations Roil Montana Elections Officials”<http://electionlawblog.org/?p=94230>
Posted on August 8, 2017 8:57 am<http://electionlawblog.org/?p=94230> by Rick Hasen<http://electionlawblog.org/?author=3>
AP: <http://flatheadbeacon.com/2017/08/07/voter-fraud-allegations-roil-montana-elections-officials/>
Secretary of State Corey Stapleton’s allegations of voter fraud in Montana has widened a rift with elections officers across the state, some of whom want the elections chief to dial back his rhetoric.
As they prepare to meet for their annual convention Tuesday, elections officials are hoping to rebuild relations with Stapleton, whose combative style has left some put off.
“We are hoping for better communications with the secretary of state, and I’m hopeful that will happen in the near future,” said Regina Plettenberg, the election administrator from Ravalli County and president of the Montana Association of Clerk & Recorders and Election Administrators.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Here’s a voter fraud myth: Richard Daley ‘stole’ Illinois for John Kennedy in the 1960 election”<http://electionlawblog.org/?p=94228>
Posted on August 8, 2017 8:51 am<http://electionlawblog.org/?p=94228> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul von Hippel:<https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/08/heres-a-voter-fraud-myth-richard-daley-stole-illinois-for-john-kennedy-in-the-1960-election/?utm_term=.f16fa97c2209>
President Trump has chartered a Commission on Election Integrity to investigate his claim that millions of voters, including undocumented immigrants, voted illegally in 2016. Although no evidence has been offered to support this allegation, it does evoke some popular histories of election fraud in the United States.
One of the most famous examples — cited<http://www.washingtontimes.com/news/2017/jul/17/voter-fraud-commission-might-be-trumps-enduring-le/> by proponents of Trump’s commission — is the 1960 presidential election, when Chicago Mayor Richard J. Daley allegedly “stole” Illinois for the Democratic presidential campaign of John F. Kennedy.
But the story of the stolen 1960 election rests on several myths. When myths are replaced with evidence, it’s not clear that the election was stolen at all.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

SCOTUSBlog Symposium on Gill v. Whitford, the WI Partisan Gerrymandering Case<http://electionlawblog.org/?p=94226>
Posted on August 8, 2017 8:33 am<http://electionlawblog.org/?p=94226> by Rick Hasen<http://electionlawblog.org/?author=3>
First entries from:
Amy Howe (explainer)<http://www.scotusblog.com/2017/08/justices-tackle-partisan-gerrymandering-plain-english/>.
Thomas Wolf.<http://www.scotusblog.com/2017/08/symposium-bringing-whitford-focus/>

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Coming This Spring: My New Book on Justice Scalia<http://electionlawblog.org/?p=94224>
Posted on August 8, 2017 7:49 am<http://electionlawblog.org/?p=94224> by Rick Hasen<http://electionlawblog.org/?author=3>
Yale University Press:<http://yalebooks.yale.edu/book/9780300228649/justice-contradictions>
The Justice of Contradictions
Antonin Scalia and the Politics of Disruption
Engaging, but caustic and openly ideological, Antonin Scalia was among the most influential justices to serve on the United States Supreme Court in generations. In this fascinating new book, legal scholar Richard L. Hasen assesses Scalia’s complex legacy as a conservative legal thinker and disruptive public intellectual.
The left saw Scalia as an unscrupulous foe who amplified his judicial role with scathing dissents and outrageous public comments. The right viewed him as a rare, principled justice committed to neutral tools of constitutional and statutory interpretation. Hasen provides a more nuanced perspective, demonstrating how Scalia was crucial to reshaping jurisprudence on issues from abortion to gun rights to separation of powers. A jumble of contradictions, Scalia promised neutral tools to legitimize the Supreme Court, but his jurisprudence and confrontational style moved the Court to the right, alienated potential allies, and helped to delegitimize the institution he was trying to save.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“Trump Already Profiting from 2020 Campaign”<http://electionlawblog.org/?p=94222>
Posted on August 7, 2017 6:14 pm<http://electionlawblog.org/?p=94222> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/trump-already-profiting-2020-campaign>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, conflict of interest laws<http://electionlawblog.org/?cat=20>

DOJ flips on SCOTUS purge case<http://electionlawblog.org/?p=94217>
Posted on August 7, 2017 5:14 pm<http://electionlawblog.org/?p=94217> by Justin Levitt<http://electionlawblog.org/?author=4>
Justin here (and with a caveat: at DOJ, I worked on amicus briefs on this issue, including in this case).
Today, DOJ filed an amicus brief<https://www.justice.gov/sites/default/files/briefs/2017/08/07/16-980_husted_v_randolph_institute_ac_merits.pdf> in Husted v. A. Philip Randolph Institute<http://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/>.  The case, now at SCOTUS, is about whether the NVRA prevents certain types of purges.  The NVRA says that before officials can take someone off the rolls because they’ve moved, either the voter has to tell the official they’ve moved, or the official has to send a forwardable notice and wait two federal elections to see if the voter makes contact.  Most states send that latter notice after getting some affirmative evidence of a move rendering them ineligible — an indication in the USPS change-of-address system, for example, or unforwardable mail that can’t be delivered.  A few states — including Ohio and Georgia, where there’s separate litigation — send the notice after a period in which voters haven’t voted or otherwise made contact with officials, meaning that someone’s subject to purge for inactivity alone.  The fight is about whether the NVRA permits Ohio to do this.
I won’t get into the statutory interpretation arguments here — the statute is complicated, and the competing arguments on either side argue about surplusage, which means you’ve really got to dive into exactly which piece does what.  And I won’t get into the policy arguments here either — truly modernizing voter registration<https://www.brennancenter.org/voter-registration-modernization> would mean accounting for moves to keep eligible people registered in the right place, rather than worrying about separately purging in one place and adding in another.
But the DOJ filing is notable in and of itself.  Today, DOJ said that Ohio’s purge is fine. But as the brief itself notes, that’s not what DOJ said last year, either in amicus participation in a Georgia federal trial court<https://www.justice.gov/crt/case-document/file/926371/download> or in the 6th Circuit version<https://www.justice.gov/crt/file/881821/download> of this very case.  (As mentioned, I was involved.)  It’s quite rare for the DOJ to change course after a filing a brief in the court of appeals: the Solicitor General’s office is often called the “Tenth Justice<http://www.nytimes.com/1987/10/25/books/what-price-advocacy.html>,” in part because while reversals happen, there’s a thumb on the scale to treat DOJ filings with some internal quasi-precedential weight.
And the brief is also notable for another reason: the signature block<https://www.justice.gov/sites/default/files/briefs/2017/08/07/16-980_husted_v_randolph_institute_ac_merits.pdf> shows no participation from career civil rights attorneys.  (The same thing happened<https://twitter.com/_justinlevitt_/status/890369345557110784> with the controversial Title VII filing two weeks ago in the 2d Circuit, when DOJ weighed in on the opposite site of the EEOC.)  In the normal course, you’ll see political and career attorneys from both the appropriate DOJ Division and the SG’s office, like this brief here<https://www.justice.gov/sites/default/files/briefs/2017/07/21/16-668_magee_ac_pet.pdf>.  Not so today.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Voting machine maker sues to block rival companies’ paper-using devices”<http://electionlawblog.org/?p=94215>
Posted on August 7, 2017 3:42 pm<http://electionlawblog.org/?p=94215> by Rick Hasen<http://electionlawblog.org/?author=3>
Austin American-Statesman:<http://www.mystatesman.com/news/local-govt--politics/voting-machine-maker-sues-block-rival-companies-paper-using-devices/Y971XOXQ5DMxaNxyDegs9O/>
The manufacturer of the digital voting machines used across the state has filed suit in Travis County state District Court, seeking to block the Texas secretary of state from certifying rival machine makers whose devices produce a paper receipt of votes cast.
The lawsuit adds to the growing controversy surrounding the security of voting systems across the country — prompted, in part, by fears of potential hacking and by claims by President Donald Trump that millions of illegal votes<http://www.politifact.com/truth-o-meter/statements/2016/nov/28/donald-trump/donald-trumps-pants-fire-claim-millions-illegal-vo/> were cast in the 2016 election.
The lawsuit filed by Austin-based Hart InterCivic — the manufacturer of the eSlate voting machines used in Travis County — asks a state judge to pre-emptively rule that voting machines that produce a paper record don’t comply with state laws requiring the use of electronic voting machines for all countywide elections.
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Posted in voting technology<http://electionlawblog.org/?cat=40>

Maine SOS Dunlap Defends His Participation on Pence-Kobach Fraud Commission, Calls Kobach a “Good Guy”<http://electionlawblog.org/?p=94213>
Posted on August 7, 2017 3:38 pm<http://electionlawblog.org/?p=94213> by Rick Hasen<http://electionlawblog.org/?author=3>
Interview.<http://www.pressherald.com/2017/08/06/bill-nemitz-maines-elections-chief-sees-no-monsters-under-the-bed/>

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Political Donors Put Their Money Where the Memes Are”<http://electionlawblog.org/?p=94211>
Posted on August 7, 2017 3:27 pm<http://electionlawblog.org/?p=94211> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/08/06/business/media/political-donors-put-their-money-where-the-memes-are.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0>
Imagine you’re a millionaire or billionaire with strong political views and a desire to spread those views to the masses. Do you start a think tank in Washington? Funnel millions to a shadowy “super PAC”? Bankroll the campaign of an up-and-coming politician?
For a growing number of deep-pocketed political donors, the answer is much more contemporary: Invest in internet virality.
As TV, radio and newspapers give way to the megaphonic power of social media, today’s donor class is throwing its weight behind a new group of partisan organizations that specialize in creating catchy, highly shareable messages for Facebook, Twitter and other social platforms. Viral media expertise is emerging as a crucial skill for political operatives, and as donors look to replicate the success of the social media sloganeers who helped lift President Trump to victory, they’re seeking out talented meme makers.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>

“Voter Suppression in the Mirror and Looking Forward”<http://electionlawblog.org/?p=94209>
Posted on August 7, 2017 2:02 pm<http://electionlawblog.org/?p=94209> by Rick Hasen<http://electionlawblog.org/?author=3>
Miles Rapoport<http://prospect.org/article/voter-suppression-mirror-and-looking-forward> at TAP.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

C-SPAN to Air 7th Annual UCI Law Supreme Court Term in Review on Wed at 8 PM Eastern<http://electionlawblog.org/?p=94207>
Posted on August 7, 2017 10:53 am<http://electionlawblog.org/?p=94207> by Rick Hasen<http://electionlawblog.org/?author=3>
You can watch here, <https://www.c-span.org/video/?430922-2/supreme-court-term-review> from the event back in July.
Panelists

  *   Erwin Chemerinsky<https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/>, Dean and Professor of Law, UC Berkeley Law School, Founding Dean, UCI Law
  *   Hon. Alex Kozinski<https://www.fjc.gov/history/judges/kozinski-alex>, U.S. Court of Appeals for the Ninth Circuit
  *   Hon. Leondra R. Kruger<http://www.courts.ca.gov/33016.htm>, Supreme Court of California
  *   Leah Litman<http://www.law.uci.edu/faculty/full-time/litman/index.html>, UCI Law
  *   Greg Stohr<https://www.bloomberg.com/authors/ABoe0szR3_0/greg-stohr>, Bloomberg
  *   Moderated by Rick Hasen<http://www.law.uci.edu/faculty/full-time/hasen/index.html>, UCI Law
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Small Donor Empowerment Depends on the Details”<http://electionlawblog.org/?p=94205>
Posted on August 7, 2017 9:49 am<http://electionlawblog.org/?p=94205> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.cfinst.org/Press/PReleases/17-08-07/Small_Donor_Empowerment_Depends_on_the_Details.aspx>
The Campaign Finance Institute (CFI) is pleased to announce that the new issue of The Forum: A Journal of Applied Research in Contemporary Politics (peer-reviewed) includes a major article by Michael J. Malbin and Michael Parrott, “Small Donor Empowerment Depends on the Details: Comparing Matching Funds in New York and Los Angeles.” The Forum has made the article freely available for download, here<https://www.degruyter.com/downloadpdf/j/for.2017.15.issue-2/for-2017-0015/for-2017-0015.pdf>. It substantially enlarges and revises the working papers previously made available by CFI.
ABOUT THE ARTICLE:
Political campaigns have long been financed by people with well above average incomes, but the balance has tilted dramatically in recent years. A number of jurisdictions have sought to rebalance the incentives through new (or updated) public financing programs. Unfortunately, much of the discussion about the programs’ effects has been sweepingly generic. The programs do differ from each other and we have good reason to expect that “success” or “failure” will depend both on their goals and the programs’ details. This article<https://www.degruyter.com/downloadpdf/j/for.2017.15.issue-2/for-2017-0015/for-2017-0015.pdf> focuses on why New York’s program is more effective than Los Angeles’ for city council races, and why both are less successful in mayoral than city council races.
We asked these research questions for reasons explained in the article’s<https://www.degruyter.com/downloadpdf/j/for.2017.15.issue-2/for-2017-0015/for-2017-0015.pdf> closing sentences:
Pluralism has many virtues, but it is essentially a system for promoting deliberation and compromise among those who already have resources to bring to the political bargaining table. . . . Tools designed to bring more small donors into the system are meant to enlarge the table – to help give more people, and different kinds of people, a meaningful voice. . . . This concern goes to the heart of successful democratic representation. It should not be dismissed lightly. We owe it to those who try to address the concern to see whether and how their efforts bear fruit.
The article<https://www.degruyter.com/downloadpdf/j/for.2017.15.issue-2/for-2017-0015/for-2017-0015.pdf> focuses on one type of program that has become a model in recent years. Until recently New York City was the only jurisdiction with a multiple matching system explicitly designed to increase the role of small donors. Previous studies noted the apparent successes of matching funds in New York City, which offer $6 in matching funds for each of the first $175 that a donor contributes to a participating candidate. These studies have included “Small Donors, Big Democracy”<http://www.cfinst.org/pdf/state/NYC-as-a-Model_ELJ_As-Published_March2012.pdf> (by CFI authors) in the Election Law Journal and “Donor Diversity through Matching Funds”<http://www.cfinst.org/pdf/state/NY/DonorDiversity.pdf> published jointly by CFI and the Brennan Center.
However, it has been difficult to feel entirely comfortable with these conclusions when there was only one jurisdiction to test. After Los Angeles revised its system in 2013, serious comparisons became possible that made it possible to sort out the effects of the two cities’ programs from the effects of their larger environments.
This new look at the evidence has found that New York City’s program increased the number, proportional role, and diversity of small donors in city council elections but that the Los Angeles program was substantially less effective. The article distinguished program effects from the broader context by using a methodology that compared the donors to city council candidates over time against donors to state legislative candidates who sought to represent the same geographical space. A series of explanations were tested, leading us to conclude that the policy details were affecting the results. The policies had less of an impact on mayoral than city council candidates in both cities. This suggests that the programs might have to be adapted if applied to larger constituencies, such as for Governor or the U.S. Congress.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“While Trump tweets about seemingly irrelevant stuff, his team is fundamentally reshaping US health, safety, environmental rules.”<http://electionlawblog.org/?p=94203>
Posted on August 7, 2017 8:51 am<http://electionlawblog.org/?p=94203> by Rick Hasen<http://electionlawblog.org/?author=3>
Key Eric Lipton thread<https://twitter.com/EricLiptonNYT/status/894526633910185984> on twitter.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94203&title=%E2%80%9CWhile%20Trump%20tweets%20about%20seemingly%20irrelevant%20stuff%2C%20his%20team%20is%20fundamentally%20reshaping%20US%20health%2C%20safety%2C%20environmental%20rules.%E2%80%9D>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

--
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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