[EL] ELB News and Commentary 2/10/17

Fri Feb 10 08:29:19 PST 2017

6th Circuit Rejects, in Part, Challenge to Law Making It Harder for Unions to Collect Money for Political Purposes through Check-Offs<http://electionlawblog.org/?p=91023>
Posted on February 10, 2017 8:20 am<http://electionlawblog.org/?p=91023> by Rick Hasen<http://electionlawblog.org/?author=3>
Michigan AFL-CIO v. Schuette<http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0028p-06.pdf>, with opinion by Judge Sutton.
My favorite line: “As the unions read this language, it explains why there was no First Amendment burden in Ysursa, Pizza, or Bailey, where the government was a regulator and employer, and why there is a burden here where the government has erected a ‘negative; obstacle to the unions’ ability to raise political funds. But this slice of Pizza does not tell the whole story.”

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“The Supreme Court will examine partisan gerrymandering in 2017. That could change the voting map.”<http://electionlawblog.org/?p=91021>
Posted on February 10, 2017 7:53 am<http://electionlawblog.org/?p=91021> by Rick Hasen<http://electionlawblog.org/?author=3>
Bernie Grofman<https://www.washingtonpost.com/news/monkey-cage/wp/2017/01/31/the-supreme-court-will-examine-partisan-gerrymandering-in-2017-that-could-change-the-voting-map/?utm_term=.7447d99caf10> at The Monkey Cage (and to be clear, the Supreme Court has not yet agreed to hear any case raising these issues):
If, in 2017, the court does not specify a manageable standard for identifying unconstitutional partisan gerrymandering, “partisanship gone wild” will continue indefinitely, leaving us with a never-ending political nightmare: congressional delegations whose partisan balance is frozen into place regardless of changes in the preferences of the voters.
Stopping egregious gerrymandering is not a partisan issue; it benefits Republicans right now, but in the past it has advantaged Democrats. Regardless of which political party gains, the loser is U.S. democracy.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Trump Tweets Interfering with J. Gorsuch’s Carefully Choreographed Distancing from Trump<http://electionlawblog.org/?p=91019>
Posted on February 10, 2017 7:49 am<http://electionlawblog.org/?p=91019> by Rick Hasen<http://electionlawblog.org/?author=3>
I explained<http://electionlawblog.org/?p=90981> the other day why Judge Gorsuch’s mild criticism of Pres. Trump’s statements about judges made for smart politics: mild enough so that Trump would not take offense, but strong enough to give him something credible to say when pushed by Democrats at upcoming hearings on Trump. I suggested the remarks were vetted before he said them, despite the President saying the remarks (reported by Sen. Blumenthal) were not true. (Trump said this after those shepherding J. Gorsuch confirmed the remarks).
Well the NY Times <https://www.nytimes.com/2017/02/09/us/politics/neil-gorsuch-supreme-court.html?ref=politics&_r=0> seems to confirm both the vetting and Trump interfering with the choreography:
The White House’s statements upended what had appeared to be a carefully calculated effort by Judge Gorsuch to gently distance himself from Mr. Trump’s attacks — what some observers saw as an attempt to blunt Democrats’ concerns about whether the judge would stand up to what they call Mr. Trump’s overreach.
While Judge Gorsuch may be working to allay those concerns — under the current Senate rules, he needs some Democratic support to be confirmed — Mr. Trump’s Twitter post and Mr. Spicer’s denials confirmed the worst suspicions of Democrats who were already bent on transforming the process into a referendum on the president….
Veterans of the Supreme Court confirmation process note that the ritual of private meetings with senators is almost completely staged for minimum controversy and maximum impact, with questions discussed in advance, answers honed and rehearsed, and no remark made unless it is intended to withstand public scrutiny.
“You don’t want any surprises, so there’s nothing that you don’t prepare for going into a meeting,” said Stephanie Cutter, a top Obama administration official who shepherded the nomination of Justice Sonia Sotomayor. “They knew this question would be coming, and they would have practiced an answer, and this was what he planned to say.”
Ms. Cutter recalled preparing Justice Sotomayor for a meeting with Senator Patrick J. Leahy, Democrat of Vermont, then the chairman of the Judiciary Committee, in which she worked to explain her <http://www.nytimes.com/2009/05/15/us/15judge.html> remarks that <http://www.nytimes.com/2009/05/15/us/15judge.html> that a “wise Latina woman”<http://www.nytimes.com/2009/05/15/us/15judge.html> could reach a “better” decision than a white man. Mr. Leahy left the meeting and promptly repeated the explanation to the assembled reporters, an effort to dispense with the issue before she came before the Senate for confirmation hearings.
“This might have been an attempt to make him look more independent,” Ms. Cutter said of Judge Gorsuch. “He could have created a story line about standing up to Trump.”
But the denials on Thursday were at odds with that narrative. Democrats were quick to jump on them as proof that Judge Gorsuch lacked judicial independence.

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

“How the Skewed Demographics of the Donor Class Pull Our Politics to the Right”<http://electionlawblog.org/?p=91017>
Posted on February 10, 2017 7:42 am<http://electionlawblog.org/?p=91017> by Rick Hasen<http://electionlawblog.org/?author=3>
McElwee, Rhodes, and Schaffner in Slate:<http://www.slate.com/articles/news_and_politics/politics/2017/02/the_skewed_demographics_of_the_donor_class_are_pulling_our_politics_to_the.html>
The prospect of big donors warping the political system loomed large in the 2016 election. On the left, Bernie Sanders warned of an<https://mic.com/articles/117510/11-powerful-quotes-from-bernie-sanders-show-why-he-s-a-progressive-icon#.LmJxlwTY0> “oligarchic society” in which big donors dictated the political agenda. On the right, Donald Trump mocked his opponents<http://www.msnbc.com/rachel-maddow-show/after-mocking-the-kochs-puppets-trump-huddles-david-koch> as “puppets” of the Koch brothers. Now that Trump is filling his administration with an unprecedented number of donors<http://www.politico.com/story/2016/12/donald-trump-donors-rewards-232974>, their influence over politics is even more deserving of study. Yet so far there has been no systematic research into the demographic makeup and political views of the wealthiest donors. Who are they? What are their politics?
Our research suggests the donor class is a stratified group that does not represent the diversity of America and is politically to the right of the general population. Trump’s donors were incredibly white and extremely male: 95 percent were white, and 64 percent were white men. Hillary Clinton, who had more gender diversity among her donors, still had an overwhelmingly white donor pool. Though money in politics is normally considered to be an issue tied to class (and it is!) our new report, Whose Voice, Whose Choice?<http://www.demos.org/publication/whose-voice-whose-choice-distorting-influence-political-donor-class-our-big-money-electi>, shows that the influence of a white, wealthy, and male donor class could impede progress on gender and racial equity.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

What a Mess with North Carolina’s Election/Ethics Commission(s)<http://electionlawblog.org/?p=91015>
Posted on February 10, 2017 7:37 am<http://electionlawblog.org/?p=91015> by Rick Hasen<http://electionlawblog.org/?author=3>
WRAL:<http://www.wral.com/court-ruling-creates-uncertainty-for-ethics-and-elections-panels-/16519984/>
One of those bills scrapped the State Board of Elections and merged its duties with the state Ethics Commission. It put the newly combined panel under the state’s existing Ethics Commission until this summer.
A Superior Court panel stayed<http://www.wral.com/cooper-challenges-gop-revamp-of-election-boards/16385838/> that merger until Cooper’s lawsuit challenging the new arrangement could be heard.
But the Court of Appeals on Thursday stayed that lower court order, allowing the merger to go forward. Lawyers for Cooper have appealed that ruling to the state Supreme Court, which lawyers on all sides of the case hope will act Friday.
Until then, the ethics panel is unsure whether it is sitting as the old Ethics Commission or the newly formed panel overseeing both elections and ethics laws.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Trump apologized to Bernhard Langer for mistaken ‘voter-fraud’ story”<http://electionlawblog.org/?p=91013>
Posted on February 9, 2017 1:08 pm<http://electionlawblog.org/?p=91013> by Rick Hasen<http://electionlawblog.org/?author=3>
Palm Beach Post:<http://www.mypalmbeachpost.com/sports/golf/trump-apologized-bernhard-langer-for-mistaken-voter-fraud-story/4Crddx0hvz8aNfdjim3EhO/>
When Thrush tried to contact Langer to confirm the story he reached his daughter Christina, who told him, “He is not a friend of President Trump’s, and I don’t know why he would talk about him.”
Langer said Thursday that his daughter was misquoted, and that he had received a call from Trump, who had apologized.
“We talked on the phone and he was very clear,” Langer said. “If there was anything that hurt me, he apologized. And I apologized too, for some of the quotes that were incorrect, and we’re on good terms.
“It was fun talking to him briefly and I thought that’s a great gesture from him because he’s got a lot of other things to be concerned about, not just this golfer Bernhard Langer. For him to take the time and clear things up is pretty amazing.”
Langer said he was “very disappointed in the article, the way it was written and what happened. It’s not the first time and it may not be the last time because it’s out of my control.”
Langer, who is a Trump supporter, said he considers Trump a friend but not a close friend.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Federal Agency Tasked with Protecting Election Integrity is on the Cutting Block”<http://electionlawblog.org/?p=91011>
Posted on February 9, 2017 1:02 pm<http://electionlawblog.org/?p=91011> by Rick Hasen<http://electionlawblog.org/?author=3>
Molly Danahy<http://www.campaignlegalcenter.org/news/blog/federal-agency-tasked-protecting-election-integrity-cutting-block> for CLC.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>

“Institutional Control of Redistricting and the Geography of Representation”<http://electionlawblog.org/?p=91009>
Posted on February 9, 2017 12:47 pm<http://electionlawblog.org/?p=91009> by Rick Hasen<http://electionlawblog.org/?author=3>
Edwards, Crespin, Williamson, and Palmer with a new article<http://www.journals.uchicago.edu/doi/abs/10.1086/690633> in the Journal of Politics.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Remember When It Looked Like Iowa SOS Was Going to Propose Mild Voter ID Bill with Bipartisan Support?<http://electionlawblog.org/?p=91007>
Posted on February 9, 2017 12:38 pm<http://electionlawblog.org/?p=91007> by Rick Hasen<http://electionlawblog.org/?author=3>
Not so much.<http://www.desmoinesregister.com/story/news/politics/2017/02/08/contentious-voter-id-bill-introduced-iowa-house/97665444/>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Public Support for Campaign Finance Reform: The Role of Policy Narratives, Cultural Predispositions, and Political Knowledge in Collective Policy Preference Formation*”<http://electionlawblog.org/?p=91005>
Posted on February 9, 2017 12:36 pm<http://electionlawblog.org/?p=91005> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul Jorgensen, Geeboo Song and Michael Jones with new article<http://onlinelibrary.wiley.com/doi/10.1111/ssqu.12357/full> in Social Science Quarterly.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Why We Need the Election Assistance Commission”<http://electionlawblog.org/?p=91003>
Posted on February 9, 2017 12:34 pm<http://electionlawblog.org/?p=91003> by Rick Hasen<http://electionlawblog.org/?author=3>
Matt Weil<https://bipartisanpolicy.org/blog/why-we-need-the-election-assistance-commission/> of the Bipartisan Policy Center makes the case why it would be absolutely crazy to eliminate the only federal agency looking at issues like the reliability of voting machines and maintaining accurate voter registration lists.
This should be a nonpartisan issue. But alas little is these days.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>

“Time for Act II of the MOVE Act”<http://electionlawblog.org/?p=91001>
Posted on February 9, 2017 12:23 pm<http://electionlawblog.org/?p=91001> by Rick Hasen<http://electionlawblog.org/?author=3>
U.S. Vote Foundation:<https://www.usvotefoundation.org/UOCAVA-reform-agenda>
Rarely does the first iteration of a law translate legislative intent into implementation flawlessly and durably. The legislative process allows us to correct, improve or update laws as needed in our changing times. It’s an ongoing process, and one we should embrace!
A new round of legislative reform is needed to ensure that the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and its progeny continue to play a vital role. In 2009, the Military and Overseas Voter Empowerment Act (MOVE) was passed as a much-needed, bipartisan reform to UOCAVA; and it has served as a mechanism to modernize key aspects of UOCAVA. The MOVE Act’s creation was informed by years of research, including work by U.S. Vote Foundation’s (US Vote) Overseas Vote initiative (formerly Overseas Vote Foundation), and it has been demonstrably successful in accelerating the transition to online methods for most overseas and military voting processes across all states.
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Posted in military voting<http://electionlawblog.org/?cat=48>

Ever Wonder Why There Are Few Illegal Non-Citizen Voters? Today One Got 8-Year Prison Term<http://electionlawblog.org/?p=90999>
Posted on February 9, 2017 12:19 pm<http://electionlawblog.org/?p=90999> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas AG press release<https://www.texasattorneygeneral.gov/news/releases/ag-paxtons-office-obtains-voter-fraud-conviction-in-tarrant-county>.
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Posted in election administration<http://electionlawblog.org/?cat=18>

NY Department of Investigation Responds to Larry Levy Claims that Voter Fraud in NY is Easy<http://electionlawblog.org/?p=90996>
Posted on February 9, 2017 9:45 am<http://electionlawblog.org/?p=90996> by Rick Hasen<http://electionlawblog.org/?author=3>
Letter to the editor at WSJ:<https://www.wsj.com/articles/voter-fraud-myth-and-the-big-unlocked-gate-1486597770>
Larry Levy’s “Voter Fraud a Myth? That’s Not What New York Investigators Found” (op-ed, Feb. 2) claims that a 2013 investigation by the City of New York Department of Investigation (DOI) found a real problem with potential voter fraud in this city.
Although the DOI appreciates when the work of our office is highlighted, it is a concern when a report we prepared is used to suggest something beyond what the study was intended to do. We did not substantiate a single instance of actual illegal voting. Rather, we found various systemic vulnerabilities including the failure to purge voters who had died from the rolls. However, our report expressly stated that the evidence collected by the investigation was “not a finding of actual voter fraud.”
Unsubstantiated claims of voter fraud not only distract from our work, they hinder law-enforcement activities needed to keep
all of us safe.

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

“How CREW Chair Norm Eisen Learned to Stop Worrying and Love the Nordstrom Corporation”<http://electionlawblog.org/?p=90994>
Posted on February 9, 2017 9:39 am<http://electionlawblog.org/?p=90994> by Rick Hasen<http://electionlawblog.org/?author=3>
Steve Klein blogs.<https://www.pillaroflaw.org/index.php/blog/entry/how-crew-chair-norm-eisen-learned-to-stop-worrying-and-love-the-nordstrom-corporation>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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