[EL] ELB News and Commentary 12/15/17

Fri Dec 15 08:15:47 PST 2017

Should FEC Commissioner Matt Petersen’s Performance at Senate Judiciary Hearing Be Disqualifying for Federal Bench? That’s Not an Easy Question<http://electionlawblog.org/?p=96453>
Posted on December 15, 2017 8:10 am<http://electionlawblog.org/?p=96453> by Rick Hasen<http://electionlawblog.org/?author=3>
Earlier this week I linked<http://electionlawblog.org/?p=96403> to an NLJ story about FEC Commissioner Petersen’s performance at a Senate Judiciary Committee hearing on whether he should be confirmed to a position as a federal district judge in DC.
Since that time, the following video has gone viral:
<https://twitter.com/SenWhitehouse/status/941484131757838337>
[https://pbs.twimg.com/amplify_video_thumb/941403179840831489/img/UDeArV9l4fzFp5R1.jpg]<https://twitter.com/SenWhitehouse/status/941484131757838337>
<https://twitter.com/SenWhitehouse/status/941484131757838337>

[https://pbs.twimg.com/profile_images/378800000051321410/55ff7ed4f6264c8eec19a81a66be6bb0_normal.png]Sheldon Whitehouse<https://twitter.com/SenWhitehouse>
✔@SenWhitehouse<https://twitter.com/SenWhitehouse>
MUST WATCH: Republican @SenJohnKennedy<https://twitter.com/SenJohnKennedy> asks one of @realDonaldTrump<https://twitter.com/realDonaldTrump>’s US District Judge nominees basic questions of law & he can’t answer a single one. Hoo-boy.
5:44 PM - Dec 14, 2017<https://twitter.com/SenWhitehouse/status/941484131757838337>

It is a devastating watch and I think it could well sink his nomination.  But should it?
I think that answer is far from easy.
On the one hand, most of these questions were pretty basic questions about trial practice, especially the Daubert and motion in limine questions related to evidence. (I don’t think people need to have Younger and Pullman abstention at their fingertips when they become district judges). Anyone with a decent amount of trial experience should know that, and it is clear from his answers that he didn’t know that.
On the other hand, it is not clear that we want all of our federal judges to be cut from the same cloth. Commissioner Petersen has extensive experience on the FEC, and I have no doubt he could read legal cases and resolve difficult statutory questions in his capacity as a judge. Not every trial judge needs to be a former litigator.
The real problem for me is that it appears that Petersen had not done his homework.  In preparing for a hearing like this, he really should have spent some time learning (or relearning) the kinds of basic things that trial court judges do. This is the only chance to really question someone before a lifetime appointment, and it is fair to expect them to be extra prepared.
I’m not saying I support Commissioner Petersen for a judgeship. He has always been nice in my interactions with him. But he has voted in doctrinaire lockstep fashion on the FEC, first following Don McGahn’s lead to tear down as much campaign finance law as the Republican commissioners could. I don’t like what he’s done on the FEC, and I don’t know how fair he’d be as a judge.
But I’m not sure that a gotcha performance is a reason to disqualify someone. Maybe lack of preparation is.
Not an easy case, as I said.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96453&title=Should%20FEC%20Commissioner%20Matt%20Petersen%E2%80%99s%20Performance%20at%20Senate%20Judiciary%20Hearing%20Be%20Disqualifying%20for%20Federal%20Bench%3F%20That%E2%80%99s%20Not%20an%20Easy%20Questi>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

After DNC Takes Sean Spicer Deposition About Violation of Consent Decree in RNC v. DNC Case, DNC Wants More Discovery and RNC Wants Court to Acknowledge Consent Decree Over<http://electionlawblog.org/?p=96449>
Posted on December 15, 2017 7:53 am<http://electionlawblog.org/?p=96449> by Rick Hasen<http://electionlawblog.org/?author=3>
We can’t see or read the Spicer deposition, because it is under seal, but see these two<http://electionlawblog.org/wp-content/uploads/rnc-207.pdf> post-deposition letters<http://electionlawblog.org/wp-content/uploads/rnc-208.pdf> from the RNC.  In the second, the RNC writes:
The RNC believes that a mere reading of the deposition transcript will refute the DNC’s assertions, which range from wholly speculative to wishfully inaccurate. In particular, the hearsay from anonymous sources in the Politico article is not probative and cannot rebut Mr. Spicer’s sworn testimony under cross-examination. Further, as to the DNC’s previously-denied request for a deposition of Mr. Priebus (ECF No. 182), the DNC still has no evidence that Mr. Priebus was involved in ballot security activities. As to its new request for depositions of Messrs. Roman and Parscale, the DNC concedes that they were not RNC personnel at all, and thus were not subject to the Decree. Finally, the request flies in the face of this Court’s instruction on November 29, 2017: “[A]sk for [discovery] on any basis you want, but I just want to let you know that I anticipate that unless you have other evidence that what [Mr. Spicer] said is not accurate and it’s material, I’m not going to be inclined to go any further.” Tr. at 50 (emphasis added).
This may all be over very soon.
I wrote here at Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/donald_trump_will_supercharge_voter_suppression_if_the_rnc_consent_decree.html> on what that means.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96449&title=After%20DNC%20Takes%20Sean%20Spicer%20Deposition%20About%20Violation%20of%20Consent%20Decree%20in%20RNC%20v.%20DNC%20Case%2C%20DNC%20Wants%20More%20Discovery%20and%20RNC%20Wants%20Court%20to%20Ackn>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Alabama SOS Office Still Saying, Apparently Contrary to Alabama Law, that Roy Moore Can Pay for a Recount If He Wants One<http://electionlawblog.org/?p=96447>
Posted on December 15, 2017 7:40 am<http://electionlawblog.org/?p=96447> by Rick Hasen<http://electionlawblog.org/?author=3>
Al.com:<http://www.al.com/news/index.ssf/2017/12/roy_moore_recount_could_cost_1.html#incart_river_index>
Alabama’s election handbook <http://ali.state.al.us/documents/election-handbook.pdf> spells out several offices that are not included in state laws for contesting elections: lieutenant governor, U.S. senator, and U.S. representative.
There are other provisions, however, that indicate a candidate or political party could request a recount,
“It’s our contention the votes can be recounted,” John Bennett, Deputy Chief of Staff for the Secretary of State’s office told AL.com<http://al.com/>. “We contend that authority is there.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96447&title=Alabama%20SOS%20Office%20Still%20Saying%2C%20Apparently%20Contrary%20to%20Alabama%20Law%2C%20that%20Roy%20Moore%20Can%20Pay%20for%20a%20Recount%20If%20He%20Wants%20One>

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

Wisconsin Republican Legislative Leaders Look for Force Out Michael Haas and Brian Bell, Purportedly Over John Doe<http://electionlawblog.org/?p=96445>
Posted on December 14, 2017 8:23 pm<http://electionlawblog.org/?p=96445> by Rick Hasen<http://electionlawblog.org/?author=3>
Patrick Marley<https://twitter.com/patrickdmarley/status/941499538677927938> with the details on this.
I don’t know Bell but Haas is one of the country’s finest election administrators.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96445&title=Wisconsin%20Republican%20Legislative%20Leaders%20Look%20for%20Force%20Out%20Michael%20Haas%20and%20Brian%20Bell%2C%20Purportedly%20Over%20John%20Doe>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Facebook Political Ads Get Bare-Bones Guidance From FEC”<http://electionlawblog.org/?p=96443>
Posted on December 14, 2017 8:06 pm<http://electionlawblog.org/?p=96443> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=125137469&vname=mpebulallissues&jd=000001605713dc0aa3657f3feaba0002&split=0>
Candidates and political groups may be heading into another congressional election cycle without guidance about what their ads should reveal about who’s paying to influence Facebook’s almost 160 million U.S. users.
The Federal Election Commission deadlocked along party lines in a Dec. 14 meeting<https://www.fec.gov/updates/december-14-2017-open-meeting>, unable to agree on an advisory opinion on Facebook ads that contain pictures or videos.
Democrats on the commission wanted each ad to show a sponsor’s name and address, similar to current rules for broadcast and print campaign ads. Republican commissioners backed requiring disclaimers without providing specifics about what information should be displayed.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96443&title=%E2%80%9CFacebook%20Political%20Ads%20Get%20Bare-Bones%20Guidance%20From%20FEC%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“The Price Black Voters Paid to Defeat Roy Moore; Black voters endured waves of voter suppression to help elect Doug Jones to the U.S. Senate, and it didn’t have to be that way.”<http://electionlawblog.org/?p=96441>
Posted on December 14, 2017 7:59 pm<http://electionlawblog.org/?p=96441> by Rick Hasen<http://electionlawblog.org/?author=3>
Brentin Mock<https://www.citylab.com/equity/2017/12/alabamas-election-system-still-fed-up/548303/?utm_source=nl-atlantic-daily-121417&silverid=MzEwMTkwMjM5NTMwS0> for CityLab.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96441&title=%E2%80%9CThe%20Price%20Black%20Voters%20Paid%20to%20Defeat%20Roy%20Moore%3B%20Black%20voters%20endured%20waves%20of%20voter%20suppression%20to%20help%20elect%20Doug%20Jones%20to%20the%20U.S.%20Sena>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Did Alabama Just Violate Federal Voting Law? Assessing the state’s ‘inactive’ voter scheme.”<http://electionlawblog.org/?p=96439>
Posted on December 14, 2017 7:56 pm<http://electionlawblog.org/?p=96439> by Rick Hasen<http://electionlawblog.org/?author=3>
Slate:<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/12/it_looks_like_alabama_violated_federal_law_with_its_inactive_voter_scheme.html>
Theoretically, voters who received the first postcard and did nothing (as instructed) remained active and received no further correspondence. Stuart Naifeh, a voting rights attorney at Demos, told me that, under the federal National Voter Registration Act<https://www.justice.gov/crt/about-national-voter-registration-act>, states cannot begin to remove voters from the rolls without some initial indication—such as bounced mail—that they have changed addresses. To put it another way: If Alabama is listing voters as inactive because they didn’t respond to one or both postcards—but neither was returned to sender—it is probably breaking federal law.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96439&title=%E2%80%9CDid%20Alabama%20Just%20Violate%20Federal%20Voting%20Law%3F%20Assessing%20the%20state%E2%80%99s%20%E2%80%98inactive%E2%80%99%20voter%20scheme.%E2%80%9D>
Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Proposal to Let Churches and Other Nonprofits Get Political Blocked from Tax Bill”<http://electionlawblog.org/?p=96437>
Posted on December 14, 2017 7:55 pm<http://electionlawblog.org/?p=96437> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ:<https://www.wsj.com/livecoverage/tax-bill-2017/card/1513303223>
Sen. Ron Wyden (D., Ore.) says the chamber’s parliamentarian has blocked a proposal to let churches and charities engage in partisan politics<https://www.wsj.com/articles/tax-code-change-could-free-churches-charities-to-become-political-players-1512988201>, keeping it out of the final tax bill set to be unveiled Friday.
The repeal of the Johnson Amendment was in the House tax bill but not in the Senate’s version, and it was a priority for President Donald Trump during the 2016 campaign.
Republicans are advancing the tax bill under procedures known as reconciliation. That lets them pass the measure with a simple majority in the Senate and thus no Democratic votes. But it also comes with constraints, namely the Byrd rule. That law, named for the late Sen. Robert Byrd (D., W. Va.), prevents reconciliation bills from containing provisions that aren’t primarily fiscal in nature on a simple-majority vote.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96437&title=%E2%80%9CProposal%20to%20Let%20Churches%20and%20Other%20Nonprofits%20Get%20Political%20Blocked%20from%20Tax%20Bill%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Alabama SOS Deputy Chief of Staff Says Alabama Rules May Allow Moore to Request Recount, Despite Plain Language in the Alabama Code to the Contrary<http://electionlawblog.org/?p=96435>
Posted on December 14, 2017 2:27 pm<http://electionlawblog.org/?p=96435> by Rick Hasen<http://electionlawblog.org/?author=3>
Interview with Business Insider:<http://www.businessinsider.com/alabama-recount-process-if-roy-moore-doesnt-concede-senate-election-2017-12>
Beyond that, Moore might not have a recourse.
“However, several offices are not included in Alabama’s law for contesting elections: lieutenant governor, U.S. senator, and U.S. representative,” Alabama’s election handbook<http://ali.state.al.us/documents/election-handbook.pdf> reads. “The omission of U.S. senators and representatives is probably due to the fact that each house of Congress is the final judge of its own members’ qualifications.”
John Bennett, Merrill’s deputy chief of staff, told Business Insider on Wednesday that the handbook is not the law, but rather an interpretation of the law, and that it is too soon to discuss the possibility of a recount.
But he also said that Sections 17-16-20<http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/17-16-20.htm> and 17-16-21<http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/17-16-21.htm> of Alabama’s election law “probably” allow political parties or the candidates themselves to request a recount in elections for both state-level and federal positions.
“We’re just not at that point,” he said. “We should get to verifying the vote first.”
Earlier: Breaking: Under Alabama Law, Roy Moore May Not Be Able to Request a Recount If The Margin is More than 0.5%<http://electionlawblog.org/?p=96376>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96435&title=Alabama%20SOS%20Deputy%20Chief%20of%20Staff%20Says%20Alabama%20Rules%20May%20Allow%20Moore%20to%20Request%20Recount%2C%20Despite%20Plain%20Language%20in%20the%20Alabama%20Code%20to%20the%20Contrary>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Is Gerrymandering The Best Way To Make Sure Black Voters Are Represented?<http://electionlawblog.org/?p=96429>
Posted on December 14, 2017 1:40 pm<http://electionlawblog.org/?p=96429> by Richard Pildes<http://electionlawblog.org/?author=7>
This<https://fivethirtyeight.com/features/is-gerrymandering-the-best-way-to-make-sure-black-voters-are-represented/> is the third installment of FiveThirtyEight’s well-regarded podcast series called “The Gerrymandering Project<https://fivethirtyeight.com/tag/gerrymandering-podcast/>.”   This episode focuses on racial gerrymandering in North Carolina.   Commentary comes from, among many others, Anita Earls, who is now running for a seat on the North Carolina Supreme Court.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96429&title=Is%20Gerrymandering%20The%20Best%20Way%20To%20Make%20Sure%20Black%20Voters%20Are%20Represented%3F>
Posted in VRAA<http://electionlawblog.org/?cat=81>

Point-Counterpoint in Compliance Week on Proposed SEC Disclosure Rule on Corporate Political Spending<http://electionlawblog.org/?p=96427>
Posted on December 14, 2017 9:11 am<http://electionlawblog.org/?p=96427> by Rick Hasen<http://electionlawblog.org/?author=3>
Read.<http://files.politicalaccountability.net/news/in-the-news/point-counterpoint-sec-political-disclosure-rule/CPA_-_Compliance_Week_point-counterpoint.pdf>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96427&title=Point-Counterpoint%20in%20Compliance%20Week%20on%20Proposed%20SEC%20Disclosure%20Rule%20on%20Corporate%20Political%20Spending>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

Alabama SOS Responds to Why He Blocked Me, Saying I Should Have Called Him Privately, But Still Doesn’t Respond on Merits of Recount Law<http://electionlawblog.org/?p=96423>
Posted on December 14, 2017 8:02 am<http://electionlawblog.org/?p=96423> by Rick Hasen<http://electionlawblog.org/?author=3>

Amazing.
<https://twitter.com/rickhasen/status/941336368264888321>

[https://pbs.twimg.com/profile_images/765759170654171142/yEiZFugK_normal.jpg]Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>
I did not see this. I can't imagine what the reaction would have been if I would have called him privately to tell him what I think Alabama law is. I posted the research on my blog for all to see and I tagged him so he could see it.
Thanks! https://twitter.com/stevenmazie/status/941333254468263937 …<https://t.co/AdACsbPGCS>
7:57 AM - Dec 14, 2017<https://twitter.com/rickhasen/status/941336368264888321>

  *   <https://twitter.com/intent/tweet?in_reply_to=941336368264888321>
 77 Replies<https://twitter.com/intent/tweet?in_reply_to=941336368264888321>

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Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
I think a private call from me would have been totally inappropriate.
View image on Twitter<https://twitter.com/stevenmazie/status/941333254468263937/photo/1>
[iew image on Twitter]<https://twitter.com/stevenmazie/status/941333254468263937/photo/1>
<https://twitter.com/stevenmazie/status/941333254468263937>

[https://pbs.twimg.com/profile_images/626221481719037952/W7IDpQUC_normal.jpg]Steven Mazie<https://twitter.com/stevenmazie>
✔@stevenmazie<https://twitter.com/stevenmazie>
In case you can't see this in your feed, @rickhasen<https://twitter.com/rickhasen>, an answer from John Merrill
7:45 AM - Dec 14, 2017<https://twitter.com/stevenmazie/status/941333254468263937>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96423&title=Alabama%20SOS%20Responds%20to%20Why%20He%20Blocked%20Me%2C%20Saying%20I%20Should%20Have%20Called%20Him%20Privately%2C%20But%20Still%20Doesn%E2%80%99t%20Respond%20on%20Merits%20of%20Recount%20Law>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
Rick Hasen
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UC Irvine School of Law
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