[EL] ELB News and Commentary 8/31/17

Thu Aug 31 07:01:12 PDT 2017

“Why Is This Dem Fixture Giving Cover To Trump’s Bogus Voter Fraud Panel?”<http://electionlawblog.org/?p=94530>
Posted on August 31, 2017 6:56 am<http://electionlawblog.org/?p=94530> by Rick Hasen<http://electionlawblog.org/?author=3>
TPM:<http://talkingpointsmemo.com/dc/whys-the-dem-whos-kept-new-hampshire-first-in-the-nation-helping-trump>
Gardner, the nation’s longest-serving secretary of state, is by far the most prominent Democrat on the commission. On Sept. 12 he will host its second meeting, in New Hampshire. Those moves have frustrated Democrats and even some Republicans back home.
“I personally wish that he had declined to be involved,” Fergus Cullen, the former chairman of the New Hampshire Republican Party and a frequent Trump critic, told TPM. “It gives this farce a sense of legitimacy.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94530&title=%E2%80%9CWhy%20Is%20This%20Dem%20Fixture%20Giving%20Cover%20To%20Trump%E2%80%99s%20Bogus%20Voter%20Fraud%20Panel%3F%E2%80%9D>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

Federal Court Which Struck Down Texas Voter ID Law Allows Its Use in Sept. 9 Local Elections<http://electionlawblog.org/?p=94527>
Posted on August 31, 2017 6:51 am<http://electionlawblog.org/?p=94527> by Rick Hasen<http://electionlawblog.org/?author=3>
This order<http://electionlawblog.org/wp-content/uploads/veasey-1077.pdf> makes sense given the Purcell Principle<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>.
Still pending are requests in the district court and 5th Circuit to allow Texas to continue to enforce its voter id law pending appeal (which could well take a year or more).
I expect the district court to reject that broader request, and I’m not sure what will happen in the Fifth Circuit or, potentially, at the Supreme Court.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94527&title=Federal%20Court%20Which%20Struck%20Down%20Texas%20Voter%20ID%20Law%20Allows%20Its%20Use%20in%20Sept.%209%20Local%20Elections>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Three on Campaign Finance from the Center for Public Integrity<http://electionlawblog.org/?p=94525>
Posted on August 31, 2017 6:41 am<http://electionlawblog.org/?p=94525> by Rick Hasen<http://electionlawblog.org/?author=3>
1.) Democrats say ‘Citizens United’ should die. Here’s why that won’t happen.<https://www.publicintegrity.org/2017/08/31/21144/democrats-say-citizens-united-should-die-here-s-why-won-t-happen> — By Sarah Kleiner
2.) Statehouses, not Congress, hosting biggest political money fights<https://www.publicintegrity.org/2017/08/31/21146/statehouses-not-congress-hosting-biggest-political-money-fights> — By Ashley Balcerzak
3.) Campaign regulation foes targeting state-level restrictions<https://www.publicintegrity.org/2017/08/31/21147/campaign-regulation-foes-targeting-state-level-restrictions> — By Ashley Balcerzak
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“National security imperative of addressing foreign cyber interference in U.S. elections”<http://electionlawblog.org/?p=94523>
Posted on August 30, 2017 8:27 pm<http://electionlawblog.org/?p=94523> by Rick Hasen<http://electionlawblog.org/?author=3>
Brookings event:<http://connect.brookings.edu/register-to-attend-cyber-security-elections>
When: Friday, September 8, 2017, 10:30 a.m. — 12:00 p.m.
Where: The Brookings Institution, Saul/Zilkha Room, 1775 Massachusetts Ave, NW, Washington, DC
What:
Free and fair elections are a foundational pillar of American democracy, one it has held other countries accountable for throughout history. In 2016, the U.S. presidential election was engulfed in the controversy of election interference. While many questions remain unanswered, it is clear that much more must be done to protect one of Americans’ fundamental rights—the right to vote. Electronic voting machines that produce no verified record are in use in many states, and most states do not have audits that are robust enough to detect malware which could impact vote counts. Resolving these and other election security issues are of critical importance ahead.
On September 8, the Center for 21st Century Security and Intelligence and the Governance Studies program at Brookings will host an event focused on the national security concerns surrounding election security in the United States. Panelists include Brookings Distinguished Fellow John R. Allen; Brookings Fellow Susan Hennessey; Alex Halderman of the University of Michigan; and Dean Logan of the Los Angeles County government. Michael O’Hanlon, senior fellow and director of research in Foreign Policy at Brookings, will moderate the discussion.
Following the discussion, panelists will take questions from the audience.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Trump voting panel apologizes after judge calls failure to disclose information ‘incredible’”<http://electionlawblog.org/?p=94521>
Posted on August 30, 2017 8:22 pm<http://electionlawblog.org/?p=94521> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/local/public-safety/trump-voting-panel-apologizes-after-judge-calls-failure-to-disclose-information-incredible/2017/08/30/675001ba-8d93-11e7-8df5-c2e5cf46c1e2_story.html?utm_term=.243e3e466b89>
Kollar-Kotelly said the panel’s after-the-fact argument was “incredible” when it said it did not believe documents prepared by individual commissioners for the July meeting had to have been posted in advance.
“You didn’t completely live up to the government’s representations,” Kollar-Kotelly told Justice Department lawyers at Wednesday’s hearing. “I want to know what things are not going to be covered” by the government’s pledges, she said.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Former Walker Aide, Target in John Doe Probe, Loses Seventh Circuit Appeal”<http://electionlawblog.org/?p=94519>
Posted on August 30, 2017 8:18 pm<http://electionlawblog.org/?p=94519> by Rick Hasen<http://electionlawblog.org/?author=3>
WisBar News:<http://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=25813>
 The U.S. Court of Appeals for the Seventh Circuit has ruled that Cynthia Archer, a former aide to Gov. Scott Walker, cannot pursue claims against six Milwaukee prosecutors and investigators who targeted her in a John Doe probe.
The three-judge panel in Archer v. Chisholm<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D08-29/C:16-2417:J:Wood:aut:T:fnOp:N:2019405:S:0>, No. 16-2417 (Aug. 29, 2017), ruled that the case “presents troubling accusations of a politically motivated investigation” but “Archer has not met her burden in overcoming” a defense of qualified immunity.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94519&title=%E2%80%9CFormer%20Walker%20Aide%2C%20Target%20in%20John%20Doe%20Probe%2C%20Loses%20Seventh%20Circuit%20Appeal%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

Amicus Brief in Whitford<http://electionlawblog.org/?p=94515>
Posted on August 30, 2017 6:40 pm<http://electionlawblog.org/?p=94515> by Heather Gerken<http://electionlawblog.org/?author=6>
I just had the pleasure of filing an amicus brief<https://law.yale.edu/system/files/documents/pdf/Faculty/heatherk.gerken_amicus_8.30.17etal.pdf> in the Supreme Court’s partisan gerrymandering case, Whitford, with all-stars Jonathan Katz<http://jkatz.caltech.edu/>, Gary King<https://gking.harvard.edu/>, Larry Sabato<http://www.centerforpolitics.org/staff_sabato.html>, and Sam Wang<http://election.princeton.edu/about/>. The brief not only reflects the views of some of the best minds in the field; it is also likely to be the only brief that cites Shakespeare, the Bible, and John Rawls.
The brief makes three main points. First, the path for resolving this case is clear because the Court has trod it so many times before. In elections controversies and controversies on which elections ride, the Court has largely hewed to the same approach. It has announced what Justice Kennedy calls a “workable standard” while leaving the precise test to be ironed out by the lower courts.
Second, a workable standard is readily available: partisan symmetry. It relies on the simplest, most intuitive test for detecting discrimination: what would happen if the tables were turned? The roots of this standard are ancient, and it enjoys resounding support among social scientists.
Finally, despite partisan symmetry’s many merits, the brief nonetheless urges the Court to assure itself that the standard will lend itself to manageable tests going forward. The brief then identifies several criteria for making that judgment: Whatever test is used should be reliable and difficult to manipulate. The test should deploy actual election outcomes rather than hypothetical maps created by experts. Courts should be able to adapt the symmetry standard to different contexts and apply it without relying unduly on experts or displacing appropriate democratic judgments. Finally, the test should measure electoral opportunity rather than guarantee proportional victories and map cleanly onto the constitutional wrongs that animate redistricting law.
It was an honor to work with such extraordinary academics. Princeton’s Sam Wang gets special credit for the many hours he spent walking through the social science with me and framing arguments. This was also a chance to revisit the pleasures of writing a brief. If my new day job<https://law.yale.edu/yls-today/news/heather-gerken-selected-next-dean-yale-law-school> doesn’t work out….
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94515&title=Amicus%20Brief%20in%20Whitford>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“North Carolina redistricting maps OK’d, head to judges next”<http://electionlawblog.org/?p=94513>
Posted on August 30, 2017 3:07 pm<http://electionlawblog.org/?p=94513> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://apnews.com/c385cd4bddf9446aae02818b92e6b930>
North Carolina legislators finished redrawing House and Senate district maps Wednesday, beating a court-ordered deadline later this week. Now Republicans who drew them must see whether federal judges agree they’ve cured problems with racial bias in the previous maps.
Largely along party lines, the House voted 68-47 to approve the Senate map just a few hours after the Senate voted 30-15 for the House boundaries. Each chamber had approved its own lines earlier in the week, following robust debate. Redistricting legislation is not subject to Democratic Gov. Roy Cooper’s veto.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Prosecutors: Menendez bribery scheme went on for years”<http://electionlawblog.org/?p=94511>
Posted on August 30, 2017 2:52 pm<http://electionlawblog.org/?p=94511> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/08/30/robert-menendez-bribery-trial-prosecution-case-242178>
Democratic Sen. Robert Menendez allegedly starting taking bribes from a wealthy donor shortly after he entered the Senate in 2006, federal prosecutors assert in a new document.
Menendez’s bribery and corruption trial is set to begin next week. In preparation for that, Justice Department prosecutors filed a new document<http://www.politico.com/f/?id=0000015e-33cd-df04-a5df-b7ef52610001> Wednesday laying out their case against the New Jersey senator, as well as Dr. Salomon Melgen, his alleged co-conspirator. Melgen has already been convicted in a separate case of bilking Medicare but has not been sentenced yet.
Menendez’s fate — and the what happens to his Senate seat if convicted — is part of the drama surrounding the high-profile case. Menendez has denied all allegation of wrongdoing, and he has denied any talk of a plea deal with the Justice Department.
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Posted in bribery<http://electionlawblog.org/?cat=54>

Gerken, Katz, King, Sabato and Wang Amicus Brief in WI Partisan Gerrymandering Case Pushes Symmetry Standard<http://electionlawblog.org/?p=94508>
Posted on August 30, 2017 2:25 pm<http://electionlawblog.org/?p=94508> by Rick Hasen<http://electionlawblog.org/?author=3>
Read it here.<http://electionlawblog.org/wp-content/uploads/16-1161bsacHeatherK.GerkenEtAl..pdf>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94508&title=Gerken%2C%20Katz%2C%20King%2C%20Sabato%20and%20Wang%20Amicus%20Brief%20in%20WI%20Partisan%20Gerrymandering%20Case%20Pushes%20Symmetry%20Standard>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Ballot Selfies Could Lead To Voter Pressure, Expert Says”<http://electionlawblog.org/?p=94506>
Posted on August 30, 2017 2:18 pm<http://electionlawblog.org/?p=94506> by Rick Hasen<http://electionlawblog.org/?author=3>
Law360:<https://www.law360.com/articles/959010>
Allowing voters to take selfies with their marked ballots could allow groups to put pressure on members to reveal their votes, a political science professor testified Tuesday in the New York federal bench trial of a suit by voters who claim the selfie ban violates their First Amendment rights.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94506&title=%E2%80%9CBallot%20Selfies%20Could%20Lead%20To%20Voter%20Pressure%2C%20Expert%20Says%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>

“After Disclosure Failure, DC Judge Wants List of Trump Voter Commission Docs”<http://electionlawblog.org/?p=94504>
Posted on August 30, 2017 2:13 pm<http://electionlawblog.org/?p=94504> by Rick Hasen<http://electionlawblog.org/?author=3>
The NLJ:<http://www.nationallawjournal.com/legaltimes/id=1202796899080/After-Disclosure-Failure-DC-Judge-Wants-List-of-Trump-Voter-Commission-Docs?kw=After%20Disclosure%20Failure%2C%20DC%20Judge%20Wants%20List%20of%20Trump%20Voter%20Commission%20Docs&et=editorial&bu=National%20Law%20Journal&cn=20170830&src=EMC-Email&pt=Legal%20Times%20Afternoon%20Update>
A federal judge is stepping in to ensure that President Donald Trump’s voter integrity commission is in compliance with public disclosure laws.
Justice Department lawyer Elizabeth Shapiro apologized to U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia in a hearing <http://ia801509.us.archive.org/7/items/gov.uscourts.dcd.187847/gov.uscourts.dcd.187847.25.0.pdf> Wednesday for “confusion” over what documents the Presidential Advisory Commission on Election Integrity was required <http://www.nationallawjournal.com/id=1202793320229> to post publicly prior to its first meeting on July 19. The judge accepted her apology, but noted that because the government “didn’t live up” to its initial representations of what would be disclosed, she would require new declarations about how the commission plans to comply with disclosure rules under the Federal Advisory Committee Act moving forward.
“If you’re doing compliance, it’s the end of the case. If you are not doing compliance, it’s not the end of the case,” the judge told the government lawyers.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D94504&title=%E2%80%9CAfter%20Disclosure%20Failure%2C%20DC%20Judge%20Wants%20List%20of%20Trump%20Voter%20Commission%20Docs%E2%80%9D>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, 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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