[EL] ELB News and Commentary 12/9/17

Sat Dec 9 14:26:48 PST 2017

“No Deal: How Secret Talks With Russia to Prevent Election Meddling Collapse”<http://electionlawblog.org/?p=96305>
Posted on December 9, 2017 2:22 pm<http://electionlawblog.org/?p=96305> by Rick Hasen<http://electionlawblog.org/?author=3>
BuzzFeed:<https://www.buzzfeed.com/johnhudson/no-deal-how-secret-talks-with-russia-to-prevent-election?utm_term=.osgxrzg7ed#.aazxgd0o9z>
The Trump administration has rejected a sweeping Russian proposal seeking a mutual ban on foreign political interference, three senior US administration officials tell BuzzFeed News.
Russia first broached the subject in July, when one of Vladimir Putin’s top diplomats arrived in Washington with a sheet of proposals aimed at addressing a top concern of the US government: A resurgence of Russian meddling in the 2018 elections.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

Lyle’s Take on SCOTUS’s Agreement to Hear Maryland Partisan Gerrymandering Case<http://electionlawblog.org/?p=96301>
Posted on December 8, 2017 6:06 pm<http://electionlawblog.org/?p=96301> by Rick Hasen<http://electionlawblog.org/?author=3>
Here.<http://lyldenlawnews.com/2017/12/08/justices-take-another-partisan-gerrymander-case/>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Wisconsin: ” Ethics Commission chair: Will provide clarifications on DOJ Doe report”<http://electionlawblog.org/?p=96299>
Posted on December 8, 2017 5:21 pm<http://electionlawblog.org/?p=96299> by Rick Hasen<http://electionlawblog.org/?author=3>
The latest:<https://www.wispolitics.com/2017/ethics-commission-chair-will-provide-clarifications-on-doj-doe-report/>
The state Ethics Commission will provide “clarifications” to the DOJ report on how agency staff handled John Doe records and will seek the release of sealed court documents to back up the contention employees acted properly, the commission chair tells WisPolitics.com.
David Halbrooks, speaking after the agency called an emergency meeting today, also said the commission has no concerns about administrator Brian Bell and counsel Brian Buerger amid a call from GOP Sen. Steve Nass for them to resign.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Lobbyists Ask for Votes. Some Lawmakers Want Much More.”<http://electionlawblog.org/?p=96296>
Posted on December 8, 2017 3:01 pm<http://electionlawblog.org/?p=96296> by Rick Hasen<http://electionlawblog.org/?author=3>
What a lede<https://www.nytimes.com/2017/12/08/us/lobbyists-sexual-harassment.html?_r=0> on this NYT story;
Vanessa Alarid was a lobbyist in New Mexico when she asked a lawmaker over drinks one night if she could count on his support for a bill that appeared to be coming down to a single vote.
“You can have my vote if you have sex with me,” Ms. Alarid recalled the lawmaker saying, although he used cruder language for sexual intercourse. He told Ms. Alarid she had the same first name as his wife, so he would not get confused if he called out in bed. Then he kissed Ms. Alarid on the lips, she said.
Shocked, Ms. Alarid, who was 32 at the time, pushed him away. Only after he was gone did she let the tears flow.
When her bill came up on the floor of the New Mexico House of Representatives the next day, March 20, 2009, it failed by a single vote, including a ‘No’ by the lawmaker, Representative Thomas A. Garcia.
As Ms. Alarid watched from the House gallery, she said Mr. Garcia blew her a kiss and shrugged his shoulders with arms spread.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, lobbying<http://electionlawblog.org/?cat=28>

“Prominent appeals court Judge Alex Kozinski accused of sexual misconduct”<http://electionlawblog.org/?p=96293>
Posted on December 8, 2017 2:54 pm<http://electionlawblog.org/?p=96293> by Rick Hasen<http://electionlawblog.org/?author=3>
Huge story<https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html?tid=ss_tw&utm_term=.fabe86071617> at WaPo.
This from a former clerk is a must-read<http://www.courtneymilan.com/metoo/kozinski.html>.
UPDATE: Judge Kozinski to the LA Times:<http://www.latimes.com/local/lanow/la-me-ln-kozinski-sexual-misconduct-20171208-story.html> “If this is all they are able to dredge up after 35 years, I am not too worried.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96293&title=%E2%80%9CProminent%20appeals%20court%20Judge%20Alex%20Kozinski%20accused%20of%20sexual%20misconduct%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Wisconsin Judge Steps Down from Politically Charged “John Doe” Case After Reporter Finds Tweet Judge Made About Case Before It Was Assigned to Him<http://electionlawblog.org/?p=96291>
Posted on December 8, 2017 2:53 pm<http://electionlawblog.org/?p=96291> by Rick Hasen<http://electionlawblog.org/?author=3>
Milwaukee Journal Sentinel:<https://www.jsonline.com/story/news/politics/2017/12/08/john-doe-attorney-disputes-attorney-general-brad-scags-report-says-he-referred-case-lawyer-regulator/935095001/>
The John Doe judge overseeing possible contempt proceedings of nine state officials withdrew from the case Friday because he had posted comments about the case on Twitter before he was assigned the case this spring.
Jefferson County Circuit Judge William Hue said he had forgotten about the posts until the Milwaukee Journal Sentinel asked him about them on Thursday. He said Friday he was disappointed to be losing an interesting case but thought he needed to step aside so no one questioned whether the judge hearing the case was impartial.
“I don’t want to be the focus of any attention here,” Hue said.
State Supreme Court Chief Justice Patience Roggensack will appoint his replacement, but has not said when that would happen.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Breaking: Supreme Court Surprisingly Adds SECOND Partisan Gerrymandering Case to Its Calendar This Term, This One from Maryland<http://electionlawblog.org/?p=96284>
Posted on December 8, 2017 2:11 pm<http://electionlawblog.org/?p=96284> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court has agreed to hear  <https://www.supremecourt.gov/orders/courtorders/120817zr_8o6a.pdf> a partisan gerrymandering case from Maryland, Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/>. (As with the Wisconsin gerrymandering case<http://electionlawblog.org/?p=93199>, Gill v. Whitford, the Court has postponed the question of jurisdiction as it agreed to hear this appeal—this may be because there are questions about whether courts should properly be hearing these cases).
This is a surprise. Many people thought the Court would simply hold this case pending Gill, and send it back after Gill.
So what gives?
There are differences between the two cases. Gill challenges a statewide plan, while Benisek challenges a particular district. Benisek’s theory of the case is more firmly grounded in the First Amendment. It is really hard to say at this point.
One thing it might mean is that Gill does not resolve the question of partisan gerrymandering but the Court (i.e., Justice Kennedy) wants things resolved this term. For instance, if the Court rejected something on standing or procedural grounds about Gill, this presents another opportunity to take a pass at the case. Then again, there’s a pending North Carolina case which is about the strongest indication of pure partisan intent as the Court is likely to ever see. Legislative leaders in North Carolina admitted they were acting for pure partisan purposes (in order to forestall a claim of racial gerrymandering). The NC case was put on hold after Gill, though that one too could have been set for argument.
It could also be that Gill finds partisan gerrymandering claims justiciable, but leaves certain issues open, issues which the Court then must resolve in Benisek.
But really, when reporters reached out to me last week to ask why the case was relisted, my answer was “who knows?”  I stand by that answer.
Here are the questions presented in Benisek, courtesy of SCOTUSBlog:<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/>
Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle<https://supreme.justia.com/cases/federal/us/429/274/case.html> burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.
[This post has been updated.]
Second Update: Here’s an interesting theory<https://twitter.com/biesecker1/status/939266496559271936>: “Maybe they want to hear a challenge to a Democratic gerrymander in addition to the Wisconsin Republican gerrymander?” Indeed, at the Gill argument, Chief Justice Roberts expressed concern about how the courts could appear too political in deciding these cases.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Reforming the Presidential Nomination Process<http://electionlawblog.org/?p=96276>
Posted on December 8, 2017 8:35 am<http://electionlawblog.org/?p=96276> by Richard Pildes<http://electionlawblog.org/?author=7>
Since the creation in the 1970s of the modern, primary-election dominated process for nominating presidential candidates, there has been little scholarly or public commentary devoted to large-scale re-assessments of that system or consideration of major structural changes to it.
Discrete issues within this system have, of course, received attention, such as what the appropriate sequencing of primaries in various states ought to be, or whether open rather than closed primaries should be used.  Recently, however, NYU hosted the first major reconsideration of the populist turn in the 1970s to the primary-dominated system, a bipartisan process that included leading party figures experienced in the presidential nomination process, along with academic scholars.  That process produced many provocative and intriguing suggestions for reform, such as re-instating the two-thirds requirement for nomination; limiting primary contests to two candidates, chosen by national conventions that come before the primaries; introducing a role for ranked-choice voting; restoring a greater role for party figures within the convention voting process, and other ideas.
The papers will be published next year as a Symposium on the Presidential Nomination Process in the NYU Law Review.  An online video of the presentations is now available here<http://www.nyulawreview.org/news-and-events/presidential-nominations-process-symposium-videos>, which also features a keynote address by former Senator and candidate for the Democratic nomination in 2000, Bill Bradley.
A list of the program is below.  My own paper, which I have blogged about before here<https://electionlawblog.org/?p=95884>, is posted on SSRN here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064938>.
Program:
Panel One – A Historical and Comparative Look at Nominations Systems
Moderator:
Benjamin Ginsberg, Partner, Jones Day
Paper Presenters:
John Frederick Martin, Partner, Bancroft Private Equity
Richard Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law
Panel Two – The 2016 Experience: Rules, Parties, and the Media
Moderator:
Beth Myers, Co-Founder, Esplanade Strategies
Paper Presenters:
Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, NYU School of Law
William Mayer, Professor of Political Science, Northeastern University
Panel Three – Thinking About Reform
Moderator:
Donna F. Edwards, former U.S. Representative, Maryland’s 4th Congressional District (2008-2017)
Paper Presenters:
Elaine Kamarck, Director of the Center for Effective Public Management, The Brookings Institution
Bruce Cain, Professor of Political Science, Stanford University
Keynote Address
Bill Bradley, former US Senator for NJ (1979-1997) and candidate for the Democratic nomination for President (2000).
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96276&title=Reforming%20the%20Presidential%20Nomination%20Process>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Compelling closing arguments bring federal trial over Pa. gerrymandering to an end”<http://electionlawblog.org/?p=96281>
Posted on December 8, 2017 8:34 am<http://electionlawblog.org/?p=96281> by Rick Hasen<http://electionlawblog.org/?author=3>
WHYY:<https://whyy.org/articles/compelling-closing-arguments-bring-federal-trial-pa-gerrymandering-end/>
The federal trial over Pennsylvania’s congressional district map wrapped up in a Philadelphia courtroom on Thursday with a string of stirring closing arguments before a three-judge panel.
During four days of deliberations, a group of more than 20 Pennsylvania voters challenged the way Republican lawmakers drew the state’s congressional districts in 2011, asserting a gerrymandering scheme that violates the U.S. Constitution.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96281&title=%E2%80%9CCompelling%20closing%20arguments%20bring%20federal%20trial%20over%20Pa.%20gerrymandering%20to%20an%20end%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>

Breaking in Alabama Senate Race: “Voters Sue State to Prevent Planned Destruction of Election Records”<http://electionlawblog.org/?p=96277>
Posted on December 8, 2017 8:29 am<http://electionlawblog.org/?p=96277> by Rick Hasen<http://electionlawblog.org/?author=3>
Press release<http://electionlawblog.org/wp-content/uploads/alabama-ballot-release.pdf>:
A Republican, a Democrat, an Independent and a minister yesterday asked a Montgomery circuit court judge to order protection of election materials from next week’s special Senate election. The voters say these materials are essential for verifying the accuracy of the election results and that the State plans to destroy them.
At issue are the “ballot images” created by the digital scanners paper ballots are fed into. Eighty five percent of vote-counting machines in the state count votes by reading the ballot images.
“The Secretary of State’s office is legally required to set procedures to assure all election materials for 22 months after a federal election,” explains election transparency expert John Roberts Brakey. “Even the envelopes from absentee ballots have to be kept. Destroying the ballot images is illegal. We’re only asking the Secretary of State to follow the law.”
You can find the motion for a temporary restraining order here<http://electionlawblog.org/wp-content/uploads/alabama-tro.pdf>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96277&title=Breaking%20in%20Alabama%20Senate%20Race%3A%20%E2%80%9CVoters%20Sue%20State%20to%20Prevent%20Planned%20Destruction%20of%20Election%20Records%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

“Prospects Brightening for Redistricting Reform”<http://electionlawblog.org/?p=96274>
Posted on December 8, 2017 7:56 am<http://electionlawblog.org/?p=96274> by Rick Hasen<http://electionlawblog.org/?author=3>
Miles Rapoport <http://prospect.org/article/prospects-brightening-redistricting-reform> for TAP.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

--
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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