[EL] ELB News and Commentary 8/9/17

Wed Aug 9 07:47:57 PDT 2017

“They sued for Clinton’s emails. Now they want information on California voters”<http://electionlawblog.org/?p=94238>
Posted on August 9, 2017 7:43 am<http://electionlawblog.org/?p=94238> by Rick Hasen<http://electionlawblog.org/?author=3>
LAT:<http://www.latimes.com/politics/la-pol-ca-judicial-watch-voter-registration-records-20170808-story.html>
California’s top elections officer and 11 county registrars have been asked to hand over detailed voter registration records or face a federal lawsuit, a request that centers on new accusations that the records are inaccurate.
The effort by the conservative-leaning organization Judicial Watch<http://www.latimes.com/topic/politics-government/judicial-watch-ORGPOL00002-topic.html> seeks an explanation for what its attorneys contend are official records that don’t match the group’s estimates of the legally eligible voting population in the counties, including Los Angeles County….
The exact size of the alleged errors is unclear. Judicial Watch declined a request from the Los Angeles Times to provide the full details of its voter registration analysis.
Dean Logan, the registrar of voters for Los Angeles County, countered that the two lists are quite different. He said the inactive voter list is more like “a fail-safe to make sure that people are not administratively disenfranchised.”
Even then, elections officials argue the lists shouldn’t be compared with ACS data, which are compiled with caveats about population accuracy.
“Voter registration is not a survey,” Gail Pellerin, registrar of voters in Santa Cruz County, said in questioning Judicial Watch’s methodology. “We deal in real facts.”
“We may be in litigation shortly,” Popper said when asked why the information won’t be shared.
Those details, however, are at the heart of the complaint. Judicial Watch alleges that adding together the active and inactive voter lists in the 11 counties produces a total number of voters significantly larger than the estimate of voting-age citizens calculated by the U.S. Census Bureau’s American Community Survey. The organization used the ACS five-year average for its baseline of eligible voters….
See also Sac Bee: More voters than eligible adults? Group makes dubious claim about California<http://www.sacbee.com/news/politics-government/capitol-alert/article166187232.html>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter registration<http://electionlawblog.org/?cat=37>

“Investor Reaction to Covert Corporate Political Activity”<http://electionlawblog.org/?p=94236>
Posted on August 9, 2017 7:38 am<http://electionlawblog.org/?p=94236> by Rick Hasen<http://electionlawblog.org/?author=3>
Timothy Werner has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3008652> on SSRN (forthcoming Strategic Management Journal).
Here is the abstract:
Citizens United vs. Federal Election Commission and subsequent developments created a covert channel for firms to allocate resources from corporate treasuries to political activity. Through the use of a financial market event study of an accidental disclosure of firms’ contributions to a Republican non-profit organization, I examine investors’ reactions to covert investment in independent political expenditures. I find that, on average, contributing firms experienced positive abnormal returns around the disclosure event and that these abnormal returns were more positive for firms in heavily regulated industries, as well as those previously making campaign contributions to candidates. However, firms that recently faced a shareholder resolution on political spending disclosure experienced negative abnormal returns, suggesting that the controversial nature of covert activity moderated investors’ reactions.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Why Limits on Contributions to Super Pacs Should Survive Citizens United”<http://electionlawblog.org/?p=94234>
Posted on August 8, 2017 9:29 pm<http://electionlawblog.org/?p=94234> by Rick Hasen<http://electionlawblog.org/?author=3>
Al Alschuler, Larry Tribe, Norm Eisen, and Richard Painter have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3015462> on SSRN. Here is the abstract:
Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded.
No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption.
The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.”
This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it.
The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld.
The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart.
The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Justice Dept. sides with Ohio’s purge of inactive voters in case headed to Supreme Court”<http://electionlawblog.org/?p=94232>
Posted on August 8, 2017 9:26 pm<http://electionlawblog.org/?p=94232> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/world/national-security/justice-department-reverses-position-to-allow-ohio-to-purge-inactive-voters-from-rolls/2017/08/08/e93c5116-7c35-11e7-9d08-b79f191668ed_story.html?utm_term=.5107beec1f88>

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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, 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
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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