[EL] ELB News and Commentary 12/28/17

[Rick Hasen]

“U.S. Virginia Voting Mess Was Never Supposed to Happen After Bush v. Gore”<http://electionlawblog.org/?p=96633>
Posted on December 28, 2017 1:28 pm<http://electionlawblog.org/?p=96633> by Rick Hasen<http://electionlawblog.org/?author=3>
Fun Trip Gabriel piece<https://www.nytimes.com/2017/12/28/us/virginia-election-recount.html?smid=tw-share> in the NYT.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Maine Election Chief Shines Light On Voter Fraud Panel He Was Accused Of Legitimizing”<http://electionlawblog.org/?p=96631>
Posted on December 28, 2017 12:59 pm<http://electionlawblog.org/?p=96631> by Rick Hasen<http://electionlawblog.org/?author=3>
Maine Public Radio reports<http://mainepublic.org/post/maine-election-chief-shines-light-voter-fraud-panel-he-was-accused-legitimizing#stream/0>:
In May, Hasen wrote a column for the Portland Press Herald<http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/> warning Dunlap that he was being set up as a patsy.
“Dunlap’s participation just gives someone like Kris Kobach a cover to be able to claim that this is a bipartisan effort, when in fact it’s lopsided and seems aimed at some preconceived conclusions about where things are going to go,” he says.
And Hasen says he worries that the real agenda was to craft voting policies that could disenfranchise those who are not behind the conservative cause. He and others urged Dunlap not to legitimize the commission and boycott it altogether.
But Dunlap says he believes that by serving on the panel, he has a platform to call out irregularities in its work. That effort began with a public takedown of Kobach, the commission’s co-chairman, at a meeting in New Hampshire in September, when Dunlap challenged Kobach’s claim that the 5,000 people who registered to vote last year with out-of-state IDs and failed to later get in-state IDs, as required by N.H. state law, was evidence of voter fraud….
“It’s unfortunate, you know, the president wants to get something done, and all of these ‘resist’ people, which apparently now includes the Maine secretary of state, are trying to stop it,” he said on “Fox and Friends” last month.
Dunlap shrugs off the attacks, claiming that he has become a Trojan horse for the progressive resistance. He says he just wants to make sure the commission does its work transparently, and that whatever report it produces is shared and vetted.
Hasen says the odds of that happening are better now that a federal judge has ruled in Dunlap’s favor.
“I would much rather have people not participate in this sham commission than participate. But if someone is going to participate, they should be playing the watchdog role that Secretary Dunlap has been playing,” he says.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


What Election Geeks Have Been Waiting For: Electionline’s “In and Out” List for 2018<http://electionlawblog.org/?p=96629>
Posted on December 28, 2017 11:46 am<http://electionlawblog.org/?p=96629> by Rick Hasen<http://electionlawblog.org/?author=3>
Here.<http://www.electionline.org/index.php/electionline-weekly>
See if you can spot my contribution.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Alabama Court Rules, Consistent With My Understanding (but Not the Alabama SOS Understanding) That Court Lacks Jurisdiction to Hear Roy Moore Election Challenge<http://electionlawblog.org/?p=96626>
Posted on December 28, 2017 11:22 am<http://electionlawblog.org/?p=96626> by Rick Hasen<http://electionlawblog.org/?author=3>
The judge’s order<https://twitter.com/alanblinder/status/946450186859175936> saying the court has no jurisdiction relies on Alabama Code 17-16-44, which says that courts don’t have jurisdiction to hear election challenges unless expressly provided for by statute.  As I explained<http://electionlawblog.org/?p=96376> on election night, candidates for federal office may not contest election results in state court, but would need to go to the U.S. House or Senate. Alabama has made a deliberate policy choice not to have state courts get involved in these contest.
As I explained this morning,<http://electionlawblog.org/?p=96624> this leaves Moore to the U.S. Senate<https://www.senate.gov/artandhistory/history/common/contested_elections/intro.htm> or federal court, where his chances seem slim to none based on the earlier complaint.
Alabama has now officially <https://www.nytimes.com/2017/12/28/us/politics/roy-moore-block-election.html?smid=tw-share> certified Doug Jones as the winner.
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Posted in chicanery<http://electionlawblog.org/?cat=12>


Roy Moore Files Last Minute Lawsuit to Delay Certification, But It is Likely Going Nowhere<http://electionlawblog.org/?p=96624>
Posted on December 28, 2017 8:14 am<http://electionlawblog.org/?p=96624> by Rick Hasen<http://electionlawblog.org/?author=3>
AL.com:<http://www.al.com/news/index.ssf/2017/12/state_canvassing_board_to_cert.html#incart_std>
Doug Jones’ win over Roy Moore is expected to be made official today when the state canvassing board meets to certify the results of the Dec. 12 special election for the U.S. Senate, despite a lawsuit by Moore seeking to delay the proceedings.
Secretary of State John Merrill said this morning on CNN that the 1 p.m. meeting of the state canvassing board will be held as scheduled.
“Doug Jones will be certified today at 2 p.m. eastern time, 1 p.m. central time,” Merrill told CNN. “The governor, Kay Ivey, our attorney general Steve Marshall and I will meet in the office of the secretary state, in the executive office, and we will sign the documents certifying him as the senator for the state of Alabama. He will be sworn in by Vice President Pence on the third of January when the Senate returns.”
Moore filed a lawsuit<http://www.al.com/news/index.ssf/2017/12/roy_moore_files_complaint_to_d.html#incart_std> late Wednesday seeking to delay certification of the election and claiming “systematic election fraud.” Moore had previously declined to concede and has been raising money to investigate reports of voter fraud.
Back on the 24th, I explained<http://electionlawblog.org/?p=96590> the very limited options open to Moore.  Nothing in this lawsuit <https://www.scribd.com/document/367998949/Roy-Moore-Complaint#from_embed> changes this, other than showing how weak a claim Moore is making. It seems to boil down to: I should have won under the exit poll and all of this voting by African Americans must show fraud.
More on the weakness from Taniel <https://twitter.com/Taniel/status/946367771247603712> and Michael McDonald.<https://twitter.com/ElectProject/status/946388426814902274>
So assuming the certification goes through, what are Moore’s options?  As indicated in numerous posts, Moore, as a candidate for federal office, does not seem entitled under Alabama law to file a state election contest. (The Secretary of State disagrees, though he has not explained why). He could file a complaint with the U.S. Senate, which has constitutional authority to decide these kinds of disputes, but he is unlikely to have a sympathetic audience. Or he could file a federal lawsuit making constitutional claims—though if the current lawsuit is any indication, he has no serious arguments.
More likely he will continue to drag this out, and try to delegitimize<https://twitter.com/rickhasen/status/945791495348424705> Doug Jones’ win, and will continue to fundraise<https://twitter.com/rickhasen/status/945037433111904256> for his own benefit.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Who’s Winning the Culture War? Corporate America”<http://electionlawblog.org/?p=96622>
Posted on December 27, 2017 6:46 pm<http://electionlawblog.org/?p=96622> by Rick Hasen<http://electionlawblog.org/?author=3>
David Hopkins<https://www.nytimes.com/2017/12/27/opinion/culture-war-corporate-america.html?_r=0> NYT oped:
You might say that the winner of the culture wars is neither Democrats nor Republicans. In legislative terms, American corporations have claimed the biggest victories so far.
The growing sectional divide — the coasts and a handful of Midwestern and Mountain West states vote blue, while voters in the culturally conservative heartland of the South and interior West largely vote red — is magnified by winner-take-all electoral rules that concentrate representation in the hands of local partisan majorities. The Alabama Senate race was an exception, but this largely produces a stable arrangement of “red” and “blue” states and districts that seldom deviate from their normal partisan alignments regardless of the individual candidates seeking office….
The contemporary geographic coalitions of the parties primarily reflect the nation’s roiling cultural conflicts, but the representatives chosen via today’s electoral map are equally polarized over economic policies — and it is pocketbook issues, not social matters, that dominate the business of Congress. Increasingly unfettered by a declining bloc of dissident party moderates from the Northeast and Pacific Coast, ascendant red-state Republicans have prioritized an ambitious conservative economic agenda encompassing regulatory rollbacks, repeal of the Affordable Care Act and substantial cuts to federal taxes — like the tax bill passed last week — and entitlement programs. Departures from this small-government approach, such as the No Child Left Behind and Medicare Part D programs enacted during the George W. Bush presidency, have fallen out of fashion among post-Tea Party Republican leaders increasingly devoted to the pursuit of ideological purity.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“For a prominent California consumer group and savvy political consultants, documents reveal a close financial relationship”<http://electionlawblog.org/?p=96620>
Posted on December 27, 2017 3:19 pm<http://electionlawblog.org/?p=96620> by Rick Hasen<http://electionlawblog.org/?author=3>
Great reporting<http://www.latimes.com/politics/la-pol-ca-consumer-watchdog-nonprofit-payments-20171215-story.html> from John Myers for the LAT:
For three years, Lehane and Fabiani served as directors of Main Street American Values — an organization with no staff and a low public profile. In every year the nonprofit made donations, it sent checks to Consumer Watchdog. Lehane said in an email to The Times that he’s known Court and others “for a long while” and that he has “been in the foxhole with them on various consumer-related projects over the years.”
In 2015, Consumer Watchdog joined Airbnb, then a Lehane client, in a successful effort to kill legislation in the state Capitol that would have imposed new rules on the home-sharing industry<http://www.latimes.com/local/political/la-me-pc-airbnb-legislation-20150421-story.html>.
The bill would have required Airbnb homeowners to tally up the nights rented and the amount paid to ensure taxes were collected, though it did not require any personal information from renters. The day before a key legislative hearing, Consumer Watchdog claimed the bill was a privacy threat.
More than five dozen local government and public safety groups supported the measure; Airbnb, two industry groups and Consumer Watchdog were opposed. “We didn’t make any friends, as we often don’t do,” Court said.
The bill’s author, state Sen. Mike McGuire (D-Healdsburg), said the eleventh-hour opposition was a surprise. “When we tried to talk to Consumer Watchdog about the facts of the legislation, they seemed quite entrenched and weren’t interested in learning more about the bill,” he said….
Under federal tax law as a 501(c)(3) nonprofit, Consumer Watchdog is not required to reveal its donors. But Court, who has been president since 2003, in the past has frequently advocated for transparency. In a book that year, he lamented the “growth of deception” caused by donors — in his example, corporations — to groups “who hide their identities from the public.”
A major Consumer Watchdog donor was the San Francisco-based Tides Foundation, which gives money to social justice and human rights efforts. For the four years beginning in 2012, federal tax returns show it gave more than $1 million to Consumer Watchdog. Over the same period, it received $955,000 in donations from Lehane’s nonprofit.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


“California must elect 12,000 people to end ‘corruption,’ candidate for governor says”<http://electionlawblog.org/?p=96618>
Posted on December 27, 2017 1:20 pm<http://electionlawblog.org/?p=96618> by Rick Hasen<http://electionlawblog.org/?author=3>
SacBee:<http://www.sacbee.com/news/politics-government/capitol-alert/article189766224.html>
John Cox, a Republican running for governor, has a radical plan to shake up politics in California. He’s explaining it to everybody who will listen.
Running on the slogan “Clean Out the Barn,” a pastoral-themed variation of President Donald Trump’s “Drain the Swamp,” Cox is the brain behind a proposed statewide initiative to dramatically reshape the Democratic-dominated state Legislature.
The idea, which he hopes to put on the November 2018 ballot, would create thousands of new elected officials by subdividing each Assembly and Senate district into 100 districts….
“First of all, this is not going to happen,” argues Jessica Levinson, a professor at Loyola Law School and president of the Los Angeles Ethics Commission. “When it comes to anything on the ballot, the default (position of voters) is ‘no,’ and you have to move them to a ‘yes.’ There will be an enormous amount of political pressure and money behind a ‘no’ campaign from the establishment and familiar faces.”
That said, Levinson added that it is a “little nutty” the state only has 120 lawmakers for nearly 40 million residents. “We have shown that we are willing to make some changes,” including how districts are redrawn and the top-two primary, under which the two-highest votegetters regardless of party advance to the fall. “But this is a major change.”
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>


DNC Wants More Discovery (of Priebus, Mike Roman and Brad Parscale) in DNC v. RNC Consent Decree Case<http://electionlawblog.org/?p=96615>
Posted on December 27, 2017 11:16 am<http://electionlawblog.org/?p=96615> by Rick Hasen<http://electionlawblog.org/?author=3>
Unsealed lette<http://electionlawblog.org/wp-content/uploads/dncvrnc-letter-spicer.pdf>r.
(h/t Sam Levine)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


--
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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