[EL] ELB News and Commentary 12/14/17

[Rick Hasen]

Rachel Maddow: “Roy Moore Mistaken in Alabama Recount Claim”<http://electionlawblog.org/?p=96421>
Posted on December 14, 2017 7:03 am<http://electionlawblog.org/?p=96421> by Rick Hasen<http://electionlawblog.org/?author=3>

Rachel Maddow<http://www.msnbc.com/rachel-maddow/watch/roy-moore-mistaken-in-alabama-recount-claim-1116203075993> discussing issue (and my blog post) <http://electionlawblog.org/?p=96376> starting around the 8 minute mark.

Earlier:

Alabama SOS Merrill Still Won’t Engage on the Merits Over Whether Roy Moore Can Get a Recount If He Pays for It, But Disparages Attorneys and Judges from California<http://electionlawblog.org/?p=96397>

Still no response on the merits from Moore:
<https://twitter.com/srl/status/941050301406240773>

[https://pbs.twimg.com/profile_images/843962466539208704/JM49BrmS_normal.jpg]Sam Levine<https://twitter.com/srl>
✔@srl<https://twitter.com/srl>

Just talked to Alabama SoS, who continues to maintain Moore can request recount (@rickhasen<https://twitter.com/rickhasen> disputes this). Anyone with standing, he says, can request.

SoS said recount can only occur once certification is done, and would have to be completed by Jan 3.
1:00 PM - Dec 13, 2017<https://twitter.com/srl/status/941050301406240773>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Protect Democracy Releases Legal Memo on Constitutional Prohibition Against Delay of Elections for Partisan Purposes”<http://electionlawblog.org/?p=96419>
Posted on December 14, 2017 6:45 am<http://electionlawblog.org/?p=96419> by Rick Hasen<http://electionlawblog.org/?author=3>

Memo.<https://protectdemocracy.org/resource-library/document/protect-democracy-releases-legal-memo-constitutional-prohibition-delay-elections-partisan-purposes/>

More at Take Care<https://takecareblog.com/blog/the-unwritten-story-in-alabama-they-almost-didn-t-hold-an-election>:

In all of the discussion about the political ramifications of yesterday’s special election in Alabama, let’s not lose sight of the most important point: there was an election.  That shouldn’t be taken for granted.  We were dangerously close to a situation in which one party orchestrated the delay of an election to avoid losing—a situation that would have endangered the very foundation of our democracy.  Because such an idea was even considered at a high level—Senate Majority Leader Mitch McConnell reportedly sent a secret memo<http://www.cnn.com/2017/11/17/politics/trump-mcconnell-moore-alabama/index.html> to the White House Counsel’s Office floating theories for how to do this—we must take seriously the threat that such a plan could be deployed in another election in the future. We must also be clear now on why that would never be permissible (or constitutional).

To recap: In the weeks leading up to the special election, as accusations of misconduct appeared to weaken Roy Moore’s standing in the polls and it seemed he might leave the race, Republican leaders explored options for delaying the election—presumably to reduce their party’s chances of losing.  To her credit, Governor Ivey never gave any public indication that she was considering a delay.  But the next governor placed in her shoes may not be so principled.  Troublingly, one study earlier this year found that half<https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/10/in-a-new-poll-half-of-republicans-say-they-would-support-postponing-the-2020-election-if-trump-proposed-it/?utm_term=.680f69ee4a50> of the Republican respondents said that they would support postponing an election if President Trump called for it.

Postponing or canceling an election to shore up one party’s chances of victory would be dangerous and antithetical to American democracy.  It would also be unconstitutional.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“Money Is Flowing Into State Supreme Court Races, Study Says”<http://electionlawblog.org/?p=96417>
Posted on December 14, 2017 6:41 am<http://electionlawblog.org/?p=96417> by Rick Hasen<http://electionlawblog.org/?author=3>

Carrie Johnson of NPR<https://www.npr.org/2017/12/14/570738598/money-is-flowing-into-state-supreme-court-races-study-says> on this new Brennan Center report<https://www.brennancenter.org/publication/politics-judicial-elections>. From the summary of the report:

For the first time, we undertook an in-depth analysis of donor transparency among interest groups and found that “dark money” spending, by groups whose funding sources are concealed from the public, is booming in state supreme court elections. Outside spending by interest groups also broke records again, while there were more high-cost races than ever before. Recognizing that expensive and politicized supreme court elections are now a fixture in many states, this year we also changed the report’s title, dropping the word “New” from The New Politics of Judicial Elections.

[*] Outside spending by interest groups shattered records. Rather than contributing to candidates or political parties, wealthy interests are increasingly relying on outside spending by groups as a way to influence state supreme court elections, mirroring the trend in elections for political offices since the Supreme Court’s 2010 decision in Citizens United v. FEC. During the 2015-16 supreme court election cycle, political action committees, social welfare organizations, and other non-party groups engaged in a record $27.8 million outside spending spree, making up an unprecedented 40 percent of overall supreme court election spending (as compared with only 29 percent in 2013-14). Funneling spending through outside groups may be attractive to donors because it often allows them to avoid campaign contribution limits and disclosure requirements.

[*] Supreme court elections saw an influx of secret money. The growth of outside spending by interest groups has brought with it a stunning lack of transparency. For the first time, this report quantified the amount of money in state supreme court elections coming from sources concealed from the public. We found that only 18 percent of interest groups’ outside expenditures during 2015-16 could be easily traced to transparent donors. With respect to the remaining expenditures, donors were either undisclosed (54 percent), a type of spending known as “dark money,” or buried behind donations from one group to another (28 percent), making it difficult or impossible to discern the ultimate funding source, a type of spending known as “gray money.” Such secrecy risks leaving voters uninformed about who is seeking to shape state high courts, and leaves litigants (and often even judges) without the tools to identify potential conflicts of interest.

[*] There were more million-dollar supreme court races than ever before. Twenty-seven justices were elected in $1 million-plus races in 2015-16, compared with the previous high of 19 justices in 2007-08. Pennsylvania also set an all-time national record for its 2015 election, attracting a total of $21.4 million in spending for three open seats. A greater number of justices elected in high-dollar races means more potential conflicts of interest and heightened pressure on all judges to curry favor with wealthy interests who can subsidize the increasingly high cost of a future election

[*] More than half of all states with elected high courts are now impacted by big-money elections. By the start of 2017, 20 states had at least one sitting justice who had been involved in a $1 million race during his or her tenure. By contrast, in 1999, the number was only seven. As of January 2017, one-third of all elected justices sitting on the bench had run in at least one $1 million-plus election. These figures highlight that across the country, politicized state supreme court elections are no longer the exception, but the rule.

[*] Campaign ads targeted judicial decisions, often in misleading ways. More than half of all negative television ads aired during the 2015-16 election cycle criticized judges for their rulings on the bench, often in a misleading way designed to stoke emotion and anger. Targeting judicial decisions poses worrying threats to judicial independence, and there is both anecdotal and empirical evidence that such election pressures impact how judges rule in cases.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Alabama Secretary Of State Has Curious Recollection Of Civil Rights Movement”<http://electionlawblog.org/?p=96415>
Posted on December 14, 2017 6:38 am<http://electionlawblog.org/?p=96415> by Rick Hasen<http://electionlawblog.org/?author=3>

Joe Patrice<https://abovethelaw.com/2017/12/alabama-secretary-of-state-has-curious-recollection-of-civil-rights-movement/> for Above the Law.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Doubting the intelligence, Trump pursues Putin and leaves a Russian threat unchecked”<http://electionlawblog.org/?p=96413>
Posted on December 14, 2017 6:38 am<http://electionlawblog.org/?p=96413> by Rick Hasen<http://electionlawblog.org/?author=3>

Extensive WaPo report:<https://www.washingtonpost.com/graphics/2017/world/national-security/donald-trump-pursues-vladimir-putin-russian-election-hacking/?utm_term=.c33a3aad6cc7>

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“Staring at the Sun; An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws”<http://electionlawblog.org/?p=96411>
Posted on December 14, 2017 6:34 am<http://electionlawblog.org/?p=96411> by Rick Hasen<http://electionlawblog.org/?author=3>

New Eric Wang<https://object.cato.org/sites/cato.org/files/pubs/pdf/pa829.pdf> for Cato.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Third Circuit Says U.S. District Court in 2016 Should Not Have Imposed County Distribution Requirements without Finding That They Would be Harmless”<http://electionlawblog.org/?p=96409>
Posted on December 13, 2017 5:39 pm<http://electionlawblog.org/?p=96409> by Rick Hasen<http://electionlawblog.org/?author=3>

BAN reports.<http://ballot-access.org/2017/12/13/third-circuit-says-u-s-district-court-in-2016-should-not-have-imposed-county-distribution-requirements-without-finding-that-they-would-be-harmless/>
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Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>


Derek Muller on the History of Alabama’s Recount Law and Why It Does Not Apply To Senate Candidates<http://electionlawblog.org/?p=96407>
Posted on December 13, 2017 5:28 pm<http://electionlawblog.org/?p=96407> by Rick Hasen<http://electionlawblog.org/?author=3>
<https://twitter.com/derektmuller/status/941108775833997314>

[https://pbs.twimg.com/profile_images/674439042302218240/GVyi2qEn_normal.jpg]Derek T. Muller<https://twitter.com/derektmuller>
✔@derektmuller<https://twitter.com/derektmuller>

1/ So.

You're curious why Alabama permits challengers to petition for recounts for most offices, but not United States Senate?

Here's a little story.
4:53 PM - Dec 13, 2017<https://twitter.com/derektmuller/status/941108775833997314>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Convergence and Divergence of Gerrymandering Theories<http://electionlawblog.org/?p=96405>
Posted on December 13, 2017 3:28 pm<http://electionlawblog.org/?p=96405> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

I noted<http://electionlawblog.org/?p=96348> a couple days ago that Maryland’s Sixth Congressional District is unconstitutional under the Benisek plaintiffs’ district-specific test, while Maryland’s congressional map is also (probably) unlawful under the Whitford plaintiffs’ statewide test. (The Benisek test requires discriminatory intent with respect to a particular district, as well as a discriminatory effect in the form of that district flipping from the opposing party to the line-drawing party. The Whitford test requires discriminatory intent with respect to a plan as a whole, a discriminatory effect in the form of a large and durable partisan asymmetry, and a lack of a legitimate justification for this asymmetry.)

Generalizing a bit, the Benisek and Whitford theories can be expected to point in the same direction when (1) the previous plan was symmetric (or favored the opposing party); (2) the current plan is asymmetric in the direction of the line-drawing party; and (3) the current plan’s asymmetry was achieved exclusively by flipping districts from the opposing party to the line-drawing party. In these circumstances, there is both discriminatory intent (the aim to flip at least one district) and a discriminatory effect (the actual flipping of at least one district) under the Benisek test. All of the elements of the Whitford test are satisfied as well: a partisan asymmetry that is deliberate, severe, persistent, and unjustified.

However, when these criteria are not satisfied, the Benisek and Whitford approaches can be expected to diverge. Start with the symmetry of the previous plan. What if it was already highly skewed in favor of the line-drawing party? What if, for example, Maryland Democrats already controlled seven out of eight congressional seats throughout the 2000s? Then there would be no liability under the Benisek test, because Maryland Democrats could design a highly asymmetric map without flipping any districts from Republican to Democratic control. All they would have to do is maintain their hold on their seven existing districts. Conversely, there would be liability under the Whitford test, because the new map would be intentionally, significantly, durably, and unjustifiably asymmetric. That it happened to be as asymmetric as its predecessor would be legally irrelevant.

Next, consider the asymmetry of the current plan. What if it’s not skewed in favor of the line-drawing party? What if, say, Maryland Democrats previously controlled three out of eight congressional seats, and then designed a new map that would enable them to win four seats? That Maryland Democrats are going from three to four seats (not from six to seven) would make no difference under the Benisek test. There would still be the intent to flip a seat, as well as a seat actually flipped, and hence liability. On the other hand, the current map’s overall fairness would make a dispositive difference under the Whitford test. A plaintiff would not be able to show that the plan is skewed toward the line-drawing party if it actually treats the major parties symmetrically.

Lastly, take scenarios where the current plan’s asymmetry was achieved in more complicated ways. Assume, for instance, that Maryland Democrats went from six to seven congressional seats not just by flipping the Sixth District from R to D, but also by flipping the First District in the same direction and by enabling Republicans to win a seat that was previously held by Democrats. Then there would be three viable claims under the Benisek test: one by Republicans in the Sixth District, another by Republicans in the First District, and yet another by Democrats in the seat that was deliberately flipped from Democratic to Republican control. Under the Whitford test, in contrast, there would be just one claim and by just one party’s supporters. Republican voters throughout Maryland could contend that the map as a whole is biased against them.

The point of these examples (which could be multiplied many times over) is that the Benisek and Whitford theories are not equivalent in their scope. Sometimes (as in Benisek itself) the two tests do converge. But in several other situations—whenever flipped districts are not tantamount to an asymmetric map—the two approaches yield different conclusions.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


FEC Commissioner Petersen Gets Tough Questioning at Hearing to Become Federal District Court Judge<http://electionlawblog.org/?p=96403>
Posted on December 13, 2017 2:25 pm<http://electionlawblog.org/?p=96403> by Rick Hasen<http://electionlawblog.org/?author=3>

NLJ:<https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/12/13/federal-judicial-nominee-flunks-motion-in-limine-definition-at-senate-hearing/>

A nominee for a District of Columbia judgeship took a beating at his Senate confirmation hearing Wednesday when he could not define motion in limine.

U.S. district court nominee Matthew Petersen<https://www.fec.gov/about/leadership-and-structure/mathew-s-petersen/>, a member of the Federal Election Commission, has never tried a case, has taken fewer than 10 depositions, and demurred when asked—twice—if he knew what a motion in limine is.

“My background is not in litigation … I understand the path that many successful district court judges have taken has been a different one than I have taken,” Petersen said at first.

When asked a second time, he said point-blank: “I would probably not be able to give you a good definition right here at the table.”
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Posted in federal election commission<http://electionlawblog.org/?cat=24>


“Native Americans Again Seek to Protect their Right to Vote”<http://electionlawblog.org/?p=96400>
Posted on December 13, 2017 2:23 pm<http://electionlawblog.org/?p=96400> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<https://www.narf.org/nd-voting-rights/>

On December 13, 2017, the Native American Rights Fund again brought action against the state of North Dakota seeking to overturn North Dakota’s newest discriminatory voter ID law. NARF filed an amended complaint<https://www.narf.org/nill/documents/20171213nd-voting-complaint.PDF> on behalf of Native American Plaintiffs impacted by the discriminatory law. Last year, NARF fought on behalf of Native American Plaintiffs to enjoin enforcement of North Dakota’s voter ID law<https://www.narf.org/cases/3057/>, which disproportionately prevented Native Americans from exercising their right to vote.  In that action, Judge Daniel L. Hovland of the U.S. District Court for the District of North Dakota found “[i]t is undisputed that the more severe conditions in which Native Americans live translates to disproportionate burdens when it comes to complying with the new voter ID laws.” Judge Hovland, therefore, held the law likely violated the U.S. Constitution because it disproportionately kept Native Americans from voting and required the state to provide a fail-safe mechanism for those without IDs in the 2016 general election. Judge Hovland wrote, “it is clear that a safety net is needed for those voters who simply cannot obtain a qualifying voter ID with reasonable effort.”Video looks at NARF’s 2016 ND voting case.

In light of this defeat, the legislature amended their law earlier this year, but the new law failed to include meaningful protections for voters’ rights<https://www.narf.org/north-dakota-voter-id-law/>.

See also this flyer<http://electionlawblog.org/wp-content/uploads/Arizona-Voting-Rights-Hearing_Jan-2018.41.pdf> about a January hearing in Phoenix by the Native American Voting Rights Coaltion.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


Alabama SOS Merrill Still Won’t Engage on the Merits Over Whether Roy Moore Can Get a Recount If He Pays for It, But Disparages Attorneys and Judges from California<http://electionlawblog.org/?p=96397>
Posted on December 13, 2017 12:10 pm<http://electionlawblog.org/?p=96397> by Rick Hasen<http://electionlawblog.org/?author=3>

Montgomery Advertiser:<http://www.montgomeryadvertiser.com/story/news/politics/southunionstreet/2017/12/13/merrill-skeptical-outstanding-ballots-alter-alabama-senate-result/948895001/>

It was not immediately clear Wednesday if Moore could request a recount at the current margins. State law allows candidates to challenge recounts outside the automatic trigger if they are willing to pay the costs. Merrill suggested in interviews that that could be an option — albeit an expensive one — for Moore. But election law expert Rick Hasen noted in a post late Tuesday<http://electionlawblog.org/?p=96376> that the law only appears to cover statewide offices, not federal ones.

Asked about this Wednesday, Merrill said “if we need advice or counsel on this matter, we’ll be seeking it from attorneys and judges in the state of Alabama, not attorneys and judges in the state of California.”

Earlier: Crazy in Alabama: Why Isn’t Alabama Secretary of State John Merrill Correcting His Error About Recounts Made Last Night on CNN?<http://electionlawblog.org/?p=96390>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“AL Sec. of State still sowing confusion over Jones win”<http://electionlawblog.org/?p=96395>
Posted on December 13, 2017 11:18 am<http://electionlawblog.org/?p=96395> by Rick Hasen<http://electionlawblog.org/?author=3>

Zachary Roth:<https://thedailydemocracy.org/2017/12/13/al-sec-of-state-still-sowing-confusion-over-jones-win/>

Alabama Sec. of State John Merrill is claiming Roy Moore can request a recount in Tuesday’s U.S. Senate race, which Moore lost by 21,000 votes. But state law appears to say otherwise.

Merrill’s stance could help the GOP delay seating Democrat Doug Jones in the U.S. Senate. It’s just the latest example of the secretary of state, a Republican and Moore backer, creating serious doubts about his ability to administer the crucial race fairly….

But Rick Hasen, a respected election law expert at the University go California, Irvine, wrote online<http://electionlawblog.org/?p=96376> that Merrill got it wrong. Citing state law, Hasen wrote that only candidates for state-level positions, not federal ones, are entitled to a recount whatever the margin.

The Alabama Law Institute’s Election Handbook appears to support<https://twitter.com/derektmuller/status/940817095478083584> Hasen.

“I understand that Merrill may have made an error in the heat of the election (but truly, this is something he should have known going into such a high profile and closely watched election),” Hasen wrote<http://electionlawblog.org/?p=96390> Wednesday morning. “But what explains his failure to correct things now? We are moving from a mistake to possibly something else.”

Merrill’s response? He blocked Hasen on Twitter<https://twitter.com/rickhasen/status/940978535388160000>. (It’s not the first time that Alabama’s chief elections official has blocked an election expert who dared criticize him. One was even blocked<https://twitter.com/rickhasen/status/940979536589594624> after saying Merrill shouldn’t block people on Twitter).

Asked by The Daily Democracy whether Merrill stood by his interpretation of the recount law, a spokesman didn’t respond.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Crazy in Alabama: Why Isn’t Alabama Secretary of State John Merrill Correcting His Error About Recounts Made Last Night on CNN?<http://electionlawblog.org/?p=96390>
Posted on December 13, 2017 8:04 am<http://electionlawblog.org/?p=96390> by Rick Hasen<http://electionlawblog.org/?author=3>

As I explained in this post<http://electionlawblog.org/?p=96376>, it looks like Roy Moore cannot request a recount in the Alabama Senate race if the margin is greater than 0.5% (there’s an automatic recount for the 0.5% range). Last night on CNN, Alabama SOS John Merrill got it wrong, saying that Moore could pay for a recount in the larger range.  The statute does not allow this for federal offices.

I understand that Merrill may have made an error in the heat of the election (but truly, this is something he should have known going into such a high profile and closely watched election).

But what explains his failure to correct things now? We are moving from a mistake to possibly something else.

More: WKRG reports: “Election Law Expert Argues Moore Cannot Request Recount”<http://wkrg.com/2017/12/13/election-law-expert-argues-moore-cannot-request-recount/>

WaPo<https://www.washingtonpost.com/news/politics/wp/2017/12/13/why-roy-moores-hope-for-a-recount-is-a-very-long-long-shot/?utm_term=.f058f1a6839e>: Why Roy Moore’s hope for a recount is a very long long shot

UPDATE: SOS Merrill has now blocked me on twitter.
23h<https://twitter.com/rickhasen/status/940975764752629760>
[https://pbs.twimg.com/profile_images/765759170654171142/yEiZFugK_normal.jpg]Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

#ELB<https://twitter.com/hashtag/ELB?src=hash>: Crazy in Alabama: Why Isn’t Alabama Secretary of State John Merrill Correcting His Error About Recounts Made Last Night on CNN? http://electionlawblog.org/?p=96390 <https://t.co/hgqINntnnH>
<https://twitter.com/rickhasen/status/940978535388160000>

[https://pbs.twimg.com/profile_images/765759170654171142/yEiZFugK_normal.jpg]Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

And rather than respond to me on the merits, the Alabama Secretary of State, its chief election officer, has blocked me on Twitter. Unreal. pic.twitter.com/a3Rzeo224O<https://t.co/a3Rzeo224O>
8:15 AM - Dec 13, 2017<https://twitter.com/rickhasen/status/940978535388160000>
[View image on Twitter]<https://twitter.com/rickhasen/status/940978535388160000/photo/1>

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Posted in election administration<http://electionlawblog.org/?cat=18>, recounts<http://electionlawblog.org/?cat=50>


--
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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