[EL] ELB News and Commentary 2/4/17

Sat Feb 4 12:53:30 PST 2017

“Trump executive order on voter fraud quietly stalled”<http://electionlawblog.org/?p=90909>
Posted on February 4, 2017 12:46 pm<http://electionlawblog.org/?p=90909> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://www.newsminer.com/news/national/trump-executive-order-on-voter-fraud-quietly-stalled/article_1b1cf54b-fe98-55ee-9153-8ae4984c8b13.html>
An executive action commissioning the probe is still planned but could be several weeks away, two senior administration officials said Friday. Although Trump instructed staff to jump on the project last week, he has not discussed the issue in recent days, according to two other people in close touch with the president. All demanded anonymity to discuss private conservations.
Asked about the status of the effort, White House spokeswoman Lindsay Walters said: “I do not have an update at this time.”
 The indefinite delay comes as some of Trump’s advisers counseled him to abandon the idea, arguing it was a distraction from more pressing issues. There is no evidence of widespread voter fraud in last November’s election. Trump won the Electoral College vote but lost the popular vote by nearly 2.9 million votes to Democrat Hillary Clinton.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“As White House backs down on voter fraud, debate far from over”<http://electionlawblog.org/?p=90907>
Posted on February 3, 2017 3:34 pm<http://electionlawblog.org/?p=90907> by Rick Hasen<http://electionlawblog.org/?author=3>
The Christian Science Monitor reports.<http://www.csmonitor.com/USA/Politics/2017/0203/As-White-House-backs-down-on-voter-fraud-debate-far-from-over>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Ohio Seeks Supreme Court Review of 6th Circuit Ruling on Voter Purge Procedures Under Motor-Voter<http://electionlawblog.org/?p=90905>
Posted on February 3, 2017 3:28 pm<http://electionlawblog.org/?p=90905> by Rick Hasen<http://electionlawblog.org/?author=3>
This<https://t.co/RUeu1FFBB5> could be an important case.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

House Administration Committee to Mark Up Bill to Eliminate Election Assistance Commission, Presidential Public Financing<http://electionlawblog.org/?p=90903>
Posted on February 3, 2017 3:25 pm<http://electionlawblog.org/?p=90903> by Rick Hasen<http://electionlawblog.org/?author=3>
Here’s the notice.<https://cha.house.gov/hearing/priorities-house-officers-and-legislative-branch-entities-fy-2018-and-beyond-panel-two>
We’ve seen these moves on the House side before. Presumably, this would be subject to a filibuster by Senate Democrats, but we’ll see.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>

“Electoral Vulnerabilities in the United States: Past, Present, and Future”<http://electionlawblog.org/?p=90901>
Posted on February 3, 2017 3:22 pm<http://electionlawblog.org/?p=90901> by Rick Hasen<http://electionlawblog.org/?author=3>
Charles Stewart has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2908509> on SSRN.  Here is the abstract:
The purpose of this paper is to put the issues of election integrity that arose in 2016 in context, and to suggest along the way how it is that one should be sanguine about the administration of elections in the United States. First, I identify four integrity-related themes that have arisen in American elections since the 2000 presidential election. Second, I briefly discuss what it means to assess the health of the American electoral system, to help confine the scope of this article. Third, I provide two frameworks for assessing the health of the election system, one that takes the perspective of a typical voter, and the other that focuses on the flow of information conveyed in an election. In each of these assessments, I make reference to research conducted over the past two decades that inform our assessment of the health of the election process. I conclude by bringing this discussion back to the specific case of 2016, providing a preliminary assessment of the health of the election process in the most recent federal election.
I look forward to reading this!
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90901&title=%E2%80%9CElectoral%20Vulnerabilities%20in%20the%20United%20States%3A%20Past%2C%20Present%2C%20and%20Future%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Trump wants to force you — the taxpayer — to pay for campaigning from the pulpit”<http://electionlawblog.org/?p=90899>
Posted on February 3, 2017 9:18 am<http://electionlawblog.org/?p=90899> by Rick Hasen<http://electionlawblog.org/?author=3>
Ellen Aprill <https://www.washingtonpost.com/posteverything/wp/2017/02/03/trump-wants-to-force-taxpayers-to-pay-for-campaigning-from-the-pulpit/?utm_term=.884f04aad02f> for WaPo:
At Thursday’s National Prayer Breakfast, President Trump renewed his campaign pledge to repeal — in his words, “totally destroy<http://www.cnn.com/2017/02/02/politics/johnson-amendment-trump/>” — the Johnson Amendment, a provision of our tax code that prohibits charitable entities, including churches, mosques and synagogues, from intervening in campaigns for elected office, at the risk of losing of their tax-exempt status.
Bad idea, Mr. President.
Current law already permits religious leaders and religious organizations to express their views about candidates without undermining our campaign finance laws. What they can’t do is express those views on the taxpayer’s dime. Doing away with the Johnson Amendment would undermine the principle that all campaign finances are taxed at least once, placing taxpayers in the unreasonable position of subsidizing the partisan agendas of religious entities.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Judge Gorsuch Likely to Join SCOTUS in April, Hearing Full Cases in October, Barring Filibuster/Nuclear Option<http://electionlawblog.org/?p=90897>
Posted on February 3, 2017 9:10 am<http://electionlawblog.org/?p=90897> by Rick Hasen<http://electionlawblog.org/?author=3>
So reports <http://www.rollcall.com/grassley-outlines-timeline-getting-trumps-scotus-nominee-confirmed/> Roll Call.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

More on the Morass of North Carolina Law on Who Can Represent the State in NC Voting Litigation Before SCOTUS<http://electionlawblog.org/?p=90895>
Posted on February 3, 2017 8:09 am<http://electionlawblog.org/?p=90895> by Rick Hasen<http://electionlawblog.org/?author=3>
Yesterday I wrote this piece at Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html> suggesting that NC Governor Cooper withdraw the pending Supreme Court cert. petition in the case considering North Carolina’s strict voting law. I pointed to this statute<http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=147-17> giving the governor and AG, now both Democrats, the right to control that litigation over the Board of Elections.
In response, Brent Wilcox pointed to another statute<http://ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_120/GS_120-32.6.pdf> making the AG have to represent the General Assembly (which supports the voter id law) when a state statute is at issue, giving the GA the right to employ outside counsel that can supplant the AG, but also giving the governor the right to “employ counsel on behalf of the State.”
It seems like a real mess, with a decent (but not ironclad) argument that the governor would have the right to withdraw the cert petition, and a very strong argument that at least the governor can file a brief or letter with the Supreme Court urging it to decline review.
The full mess of North Carolina law is explained in this excellent article<http://scholarship.law.unc.edu/nclr/vol92/iss6/8/>, John Harris, Holes in the Defense: Evaluating the North Carolina Attorney General’s Duty to Defend and the Responses of Other Government Actors<http://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=4688&context=nclr>.  There is an extensive discussion of the morass, beginning on page 2048.  One small snippet:
The waters become even muddier if and when the legislative branch enters the fray. Recall that there is no clear legal authority for the General Assembly to hire its own counsel to represent the State, whether in addition to or in place of the Attorney General. This would arguably violate the arrangement contemplated by the Constitution, in which the power to defend the laws of the state rests with the executive branch. On the other hand, the Attorney General’s constitutional duties are merely “prescribed by law,” which gives the General Assembly wide latitude to legislate the inner workings of inter-branch relationships when it comes to the defense of state laws.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Invalid votes for president spike in Florida, outnumbering Trump’s margin of victory here”<http://electionlawblog.org/?p=90893>
Posted on February 3, 2017 7:38 am<http://electionlawblog.org/?p=90893> by Rick Hasen<http://electionlawblog.org/?author=3>
Tampa Bay Times.<http://www.tampabay.com/blogs/the-buzz-florida-politics/invalid-votes-for-president-spike-in-florida-outnumbering-trumps-margin-of/2311755>
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Posted in election administration<http://electionlawblog.org/?cat=18>
“The Supreme Court Confirmation Argument, and Limits”<http://electionlawblog.org/?p=90891>
Posted on February 3, 2017 7:35 am<http://electionlawblog.org/?p=90891> by Rick Hasen<http://electionlawblog.org/?author=3>
Bauer blogs.<http://www.moresoftmoneyhardlaw.com/2017/02/supreme-court-confirmation-argument-limits/>

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Possible expansion of lobbying restrictions threaten First Amendment”<http://electionlawblog.org/?p=90889>
Posted on February 3, 2017 7:31 am<http://electionlawblog.org/?p=90889> by Rick Hasen<http://electionlawblog.org/?author=3>
Eric Wang oped<http://thehill.com/blogs/pundits-blog/campaign/317618-possible-expansion-of-lobbying-restrictions-threaten-first> in The Hill.

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Posted in lobbying<http://electionlawblog.org/?cat=28>

--
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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