[EL] ELB News and Commentary 12/24/17

[Rick Hasen]

Doug Jones’ Alabama Senate Victory Should Be Certified Senate Winner on Dec. 28; What Options Will Roy Moore Have?<http://electionlawblog.org/?p=96590>
Posted on December 24, 2017 1:03 pm<http://electionlawblog.org/?p=96590> by Rick Hasen<http://electionlawblog.org/?author=3>
Alabama Secretary of State John Merrill announced<http://sos.alabama.gov/newsroom/secretary-state-john-h-merrill-announces-date-state-canvassing-board-meeting> that the official certification of Doug Jones as the winner will be Dec. 28, allowing Jones to be sworn in when the Senate reconvenes on January 3.
Roy Moore has not yet conceded (an act of no formal legal significance) and he has been making noises about a legal challenge (likely more about fundraising<https://twitter.com/rickhasen/status/942767550726672387> than anything else).
So what could Roy Moore do?

  1.  Moore could try to file an election contest under election law, making some kind of claim of voter fraud or other irregularity. Aside from the fact that this is an extreme longshot, given that we have seen no evidence of any problems in Alabama’s election that could swing the election from Jones to Moore, it does not appea<http://electionlawblog.org/?p=96376>r from the Alabama elections code that Moore is entitled to file an election contest in state court.  Only losing candidates for certain state offices, not federal offices<http://electionlawblog.org/?p=96435>, can file an election contest. (The Secretary of State may believe otherwise, given his earlier erroneous interpretations<http://electionlawblog.org/?p=96397> of Alabama law on this point.)
  2.  Moore could seek to contest the election outcome in the U.S. Senate. The Senate is constitutionally given the power<https://www.senate.gov/artandhistory/history/common/contested_elections/intro.htm> to determine these kinds of disputes, but given that there appear to be no grounds for contesting the election outcome, this would go nowhere (even putting aside the fact that Republicans have no appetite for keeping Moore around).
  3.  Moore could file a federal lawsuit claiming some kind of constitutional problem with how the election was conducted. Here the problem is the simple lack of evidence that Moore could point to in federal court.
In short, Moore does not appear to have any viable options to contest the election outcome.  But that might not stop him from trying (or fundraising).

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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Wisconsin AG Brad Schimel will take ‘a more expansive look’ at the now-defunct GAB”<http://electionlawblog.org/?p=96588>
Posted on December 24, 2017 12:47 pm<http://electionlawblog.org/?p=96588> by Rick Hasen<http://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2017/12/24/wisconsin-ag-brad-schimel-take-more-expansive-look/979991001/>
State Attorney General Brad Schimel said he will be taking “a more expansive look into whether there were other illegal activities going on” at the now-defunct Government Accountability Board.
Schimel made his comments about the old GAB during a television interview that aired Sunday on “Upfront With Mike Gousha.”
Last week, Republican state Senate leaders authorized Schimel to look into activities of the shuttered agency, including wide-ranging probes it conducted with prosecutors of Gov. Scott Walker and other Republicans.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“In an election, tie goes to …”<http://electionlawblog.org/?p=96586>
Posted on December 24, 2017 12:41 pm<http://electionlawblog.org/?p=96586> by Rick Hasen<http://electionlawblog.org/?author=3>
Daily Press:<http://www.dailypress.com/news/politics/dp-nws-elections-tie-20171221-story.html>
“In runoffs you see a drastic reduction in turnout,” said Samuel Issacharoff, a law professor at New York University with a special interest in election law.
“It tends to favor the wealthier candidate,” he said.
Drawing lots, instead of rerunning the election, also saves communities the considerable expense of organizing an election, and ensures people that they’ll have a representative — even if half of them voted for another — ready to serve from day one of the office’s term, he said.
“Drawing lots is probably fairer than having a new election. First, running an election is costly. Second, making people return to the polls is burdensome, and the electorate for the runoff is likely to be smaller, and may not even be a subset of the original group of voters,” said Stanford University law professor Pamela Karlan….
When state laws direct disputes over the conduct of election to the legislature, courts are often reluctant to step in in battles over election results, said William and Mary’s Green.
“They’re leery of the political thicket,” she said.
And the key point about whatever path a state chooses to deal with recounts, disputes over election results and ties, she, said, is to stick with what the law dictates all the way through a dispute.
“You can’t say you want new rules after the fact,” said Green.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Black Turnout in Alabama Complicates Debate on Voting Laws”<http://electionlawblog.org/?p=96584>
Posted on December 24, 2017 12:30 pm<http://electionlawblog.org/?p=96584> by Rick Hasen<http://electionlawblog.org/?author=3>
Important NYT read:<https://www.nytimes.com/2017/12/24/us/alabama-voting-blacks-.html?_r=0>
But research, particularly of voter ID laws in Texas, Wisconsin and other states, provides an imprecise picture of how much similar laws suppress turnout. And Eitan Hersh, a Tufts University political scientist who contributed to the analysis of Texas’ strict voter ID law, said research indicated that voter ID laws could alter very close elections but might not be as influential as some critics claim.
“These laws are complicated to assess,” Mr. Hersh said. “Alabama was a place where there was a lot of campaigning, and when campaigns liven up, you have a lot of mobilization efforts” that could offset the effect of an ID law on turnout…..
Some voting rights advocates stress that the relevant measure should be whether people were unable to vote, not whether particular policies determined the outcome of the election.
“Voter suppression might not be attributable in every instance to changing an election outcome, but it’s significant to people who have barriers in front of them at the ballot box,” said Myrna Pérez, the deputy director of the democracy program at the Brennan Center for Justice at the New York University School of Law. She added: “The country is going to be poorer if we only care about voter suppression when it affects the outcome.”
The outcome, however, is increasingly the standard by which voting-rights cases are decided. The Supreme Court’s Shelby County v. Holder decision, which dramatically scaled back the Voting Rights Act, relieved scores of states and local governments with a history of bias from the need to prove that new election rules did not discriminate. Since 2013, the burden of proving discrimination — and the cost of detecting and litigating it — has been shifted to minority voters and the groups that represent them.
To many, that’s a standard that rankles.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“#MeToo in the Courts”<http://electionlawblog.org/?p=96582>
Posted on December 23, 2017 12:03 pm<http://electionlawblog.org/?p=96582> by Rick Hasen<http://electionlawblog.org/?author=3>
Listen to Slate Amicus:<http://www.slate.com/articles/podcasts/amicus/2017/12/judge_alex_kozinski_s_accusers_speak_out.html>
The cultural whirlwind of #MeToo has reached the judiciary, reluctantly bringing Dahlia Lithwick into the fray along with it. In a piece for Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/12/judge_alex_kozinski_made_us_all_victims_and_accomplices.html>, she detailed her firsthand experiences with Judge Alex Kozinski. Dahlia’s was one of many accounts that that have now surfaced. Heid Bond was one of the first women prepared to go on the record. A former clerk to Judge Kozinski, she now writes romance novels under the name Courtney Milan. You can read Bond’s piece here<http://www.courtneymilan.com/metoo/kozinski.html> and Judge Kozinski’s statement here<https://assets.documentcloud.org/documents/4332061/Alex-Kozinski-s-full-statement-announcing-his.pdf>. We speak with three of Kozinski’s accusers—Heidi Bond, Emily Murphy, and Leah Litman—and hear their ideas about what needs to change to allow women to work safely and successfully in a system often shrouded in secrecy. …
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Virginia: “Simonds says Yancey’s team pulled ‘stunt’ in court certification”<http://electionlawblog.org/?p=96577>
Posted on December 23, 2017 9:51 am<http://electionlawblog.org/?p=96577> by Rick Hasen<http://electionlawblog.org/?author=3>
Daily Press<http://www.dailypress.com/news/newport-news/dp-nws-newport-news-simonds-reaction-20171221-story.html>:
The next morning, the judges received a letter from recount official Kenneth Mallory, chosen by Yancey’s team, saying that a ballot was tossed should have gone to Yancey. The voter had filled in the bubble next to Gillespie’s name, but also put an X through that bubble. She or he chose Republicans for two other statewide offices and had filled in the bubbles for both Yancey and Simonds. Simonds’ bubble had a slash through it.
After lawyers and judges argued and deliberated for hours, the judges ruled it in favor of Yancey. It was now a tie.
The State Board of Elections will hold a drawing in Richmond on Wednesday to choose a winner.
Right before the hearing ended, Democrats said there was one ballot from Denbigh that they thought should be reviewed, but the judges said it was too late.
“It was really unfair that the Yancey team decided to pull this stunt and it made it unfair for our side because we were not prepared to be there with some other ballots to be considered,” Simonds said.
In the letter, Mallory wrote that he initially thought the ballot indicated a vote for Yancey. After a three- to four-minute debate, a recount official appointed by Simonds’ team convinced him that it shouldn’t be counted.
Yancey’s lawyer, Trevor Stanley, called Mallory Tuesday night, according to Gretchen Heal, Yancey’s legislative aide. Mallory then wrote the letter.
Heal said Simonds’ characterization wasn’t fair.
“I have empathy for (Simonds), I understand where she’s at, but the circumstances here — we didn’t go hunting this down,” Heal said Thursday. “It kind of happened beyond our purview, really.”
NYT:<https://www.nytimes.com/2017/12/20/us/virginia-house-election-tie.html?smid=tw-share>
A lawyer for the Virginia House Democratic caucus, Marc Elias, said that the local court’s decision about the ballot was wrong and that he was assessing legal options. “The Republicans themselves had affirmed that this result was accurate yesterday before changing their minds today,” Mr. Elias said in a statement. “After conceding this seat and their majority, they are now desperately trying to claw both back.”
Ms. Simonds’s representative argued before the judges that the disputed ballot should not be counted because it was an example of an “overvote,” when multiple candidates for the same race are chosen. However, the Virginia Department of Elections, in a guide to hand-counting ballots, appears to address<https://www.elections.virginia.gov/Files/ElectionAdministration/ElectionLaw/ExamplesforHandcounting.pdf> the issue, showing an example in which a voter marks two candidates but clarifies the intention using “an additional mark or marks that appear to indicate support.” In that case, the guide says, “the ballot shall be counted.”

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


“Major cases on voter purging, union power await Supreme Court in 2018”<http://electionlawblog.org/?p=96575>
Posted on December 23, 2017 9:35 am<http://electionlawblog.org/?p=96575> by Rick Hasen<http://electionlawblog.org/?author=3>
Pete Williams reports<https://www.nbcnews.com/politics/supreme-court/major-cases-voter-purging-union-power-await-supreme-court-2018-n831126> for NBC News.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Court: Trump voter fraud commission must give Democrat member more access”<http://electionlawblog.org/?p=96573>
Posted on December 22, 2017 8:53 pm<http://electionlawblog.org/?p=96573> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<https://www.politico.com/story/2017/12/22/trump-voter-fraud-committee-democrat-access-318433>
President Donald Trump’s commission investigating voter fraud must give one of its Democratic members access to more of the panel’s records, a federal judge ruled Friday night.
U.S. District Court Colleen Kollar-Kotelly said Maine Secretary of State Matt Dunlap appeared to have been denied documents needed to be an active player in the deliberations of what is formally known as the President’s Advisory Commission on Election Integrity….
In her 24-page opinion<https://www.politico.com/f/?id=00000160-80d7-da3c-a371-80ff4b980001>, Kollar-Kotelly cited three instances where she said Dunlap was not given adequate access to information needed to participate in the panel’s deliberations. The judge said Dunlap should have been informed about and seen a draft of a controversial request asking states to submit their voter rolls and other sensitive, but publicly-available, information about voters.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


--
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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