[EL] ELB News and Commentary 7/18/17

Sat Feb 18 14:30:06 PST 2017

It’s Beginning to Look a Lot Like …. Heather<http://electionlawblog.org/?p=91186>
Posted on February 18, 2017 2:26 pm<http://electionlawblog.org/?p=91186> by Rick Hasen<http://electionlawblog.org/?author=3>
We will wait until i<http://abovethelaw.com/2017/02/the-next-dean-of-yale-law-school-and-other-law-dean-news/>t is official for the full congratulatory blog post….
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“Virginia voter registration records have loopholes but no evidence of widespread fraud”<http://electionlawblog.org/?p=91184>
Posted on February 18, 2017 2:08 pm<http://electionlawblog.org/?p=91184> by Rick Hasen<http://electionlawblog.org/?author=3>
Very useful piece<http://pilotonline.com/news/government/local/virginia-voter-registration-records-have-loopholes-but-no-evidence-of/article_6ad3e1d5-3ef6-56ce-b0d9-7052bf3c3d36.html> from the Virginia Pilot.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Texas Prosecutors Could Target Voters Who Used Affidavits and Refused to Show Valid IDs<http://electionlawblog.org/?p=91182>
Posted on February 18, 2017 2:00 pm<http://electionlawblog.org/?p=91182> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://www.toledoblade.com/Nation/2017/02/18/Hundreds-of-Texans-may-have-voted-improperly-They-allegedly-signed-sworn-statement-instead-of-showing-photo-ID.html>
The Texas law requires voters to show one of seven approved forms of identification to cast ballots. It was softened in August to allow people without a driver’s license or other photo ID to sign an affidavit declaring that they have an impediment to obtaining required identification.
Even after the affidavits were introduced, voters who possess an acceptable photo ID were still required to show it at the polls.
The revelations come as President Donald Trump makes frequent claims that the nation’s voting systems are vulnerable to fraud. The president has repeatedly said, without citing any evidence, that he would have won the popular vote if not for 3 million to 5 million immigrants in the country illegally who voted for his Democratic opponent, Hillary Clinton.
An Associated Press analysis of roughly 13,500 affidavits submitted in Texas’ largest counties found at least 500 instances in which voters were allowed to get around the law by signing an affidavit and never showing a photo ID, despite indicating that they possessed one.
Others used the sworn declarations to lodge protest statements against the law.
One affidavit from Hidalgo County, along the Texas-Mexico border, read: “Did not want to ‘pander’ to government requirement.” In Tarrant County, an election judge noted on an affidavit: “Had photo ID but refused to show it.”
“If we see that somebody blatantly says ‘I have ID’ and refused to show it, we’re going to turn that over to the D.A.,” said Stephen Vickers, chief deputy elections administrator for Tarrant County, which includes Fort Worth. “If they tried to use the affidavit to get around the system, yeah, I see that as a violation.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“John Doe leak investigators reviewed documents at the Wisconsin Supreme Court”<http://electionlawblog.org/?p=91179>
Posted on February 18, 2017 10:16 am<http://electionlawblog.org/?p=91179> by Rick Hasen<http://electionlawblog.org/?author=3>
The Milwaukee Journal-Sentinel reports.<http://www.jsonline.com/story/news/politics/2017/02/17/john-doe-leak-investigators-remove-documents-wisconsin-supreme-court/98047646/>

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

Federal Court Punishes State of Texas for Dragging Its Feet in “Motor Voter” Case<http://electionlawblog.org/?p=91177>
Posted on February 18, 2017 10:12 am<http://electionlawblog.org/?p=91177> by Rick Hasen<http://electionlawblog.org/?author=3>
Release from Texas Civil Rights Project:<https://www.texascivilrightsproject.org/en/2017/02/17/release-federal-judge-sanctions-state-in-motor-voter-law-case/>
Today, the U.S. District Court For the Western District Of Texas ordered sanctions<https://www.texascivilrightsproject.org/en/wp-content/uploads/2017/02/Order-Motion-for-Sanctions.pdf> against the state of Texas for undue delay in our “motor voter” case, Stringer v. Pablos.
On January 24, the Texas Civil Rights Project, with co-counsel at Waters Kraus LLP, submitted a Motion to Sanction<https://www.texastribune.org/2017/01/26/civil-rights-group-asks-sanction-state-voter-regis/> the state for repeatedly, and without justification, ignoring a federal court’s order to provide the necessary documents to move forward with the case.
In his sanctions order, U.S. District Court Judge Orlando L. Garcia found that the state’s months long delay to produce the needed documents has been disruptive, time consuming, cost consuming. The Court also found that the Office of the Attorney General for the State of Texas willfully disregarded court-ordered deadlines.
The state must now incur the reasonable expense in bringing forth the motion to compel and motion to sanction. It must also cover court reporter fees, travel expenses, and attorney’s fees.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Citing Trump’s voter fraud lie, states are working to make it harder to vote”<http://electionlawblog.org/?p=91175>
Posted on February 18, 2017 10:07 am<http://electionlawblog.org/?p=91175> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Kira Lerner <https://thinkprogress.org/states-voter-fraud-bc6dc0dd598d#.3z74xcxxy> at Think Progress;
At the annual gathering of secretaries of state in Washington, D.C. this week, Republican elections chiefs blocked an attempt to official denounce<http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-s-top-elections-officer-1487370745-htmlstory.html>Trump’s lie. Instead, they cited the president’s claims, telling ThinkProgress they support measures like voter ID laws, cuts to same-day registration, and efforts to make it harder to register to vote.
Alabama’s Republican Secretary of State repeated the White House’s unsubstantiated claim that thousands of out-of-state citizens cast ballots in New Hampshire, potentially handing the state to Hillary Clinton<http://www.unionleader.com/voters-first/Narrow-margins-in-popular-and-electoral-votes-Clinton-wins-NH-11102016>. New Hampshire’s Secretary of State defended his state’s voter accessibility while his legislature pushes for a measure that would potentially block thousands of college students from casting ballots. And Nevada’s Secretary of State said she supports voter ID laws because she has never had a problem showing an ID to vote….
Voting experts have repeated since the election that there is no proof of fraud on the level that Trump has claimed. At the National Association of Secretaries of State convention, David Becker, executive director of the Center for Election Innovation and Research, reminded the attendees that if massive fraud had occurred, they would be the first to know.
“There is a system of checks and balances in place,” he said during a panel on trust in elections. “We all know in this room that if there were massive voter registration fraud, we would have seen large numbers of flagged records that didn’t match DMV records or social security records, that we would have seen unusual levels of activity we hadn’t seen before, that we would have seen large numbers of requests for out of state mail ballots that we hadn’t seen before.”
None of that occurred, but that hasn’t stopped elections chiefs from crying fraud.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“To safeguard voting rights, go local”<http://electionlawblog.org/?p=91170>
Posted on February 17, 2017 12:45 pm<http://electionlawblog.org/?p=91170> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Douglas CNN oped.<http://www.cnn.com/2017/02/17/opinions/improve-voting-local-level-douglas/index.html>
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Judge Gorsuch: States Can Keep Ineligible Candidates Off the Election Ballot<http://electionlawblog.org/?p=91166>
Posted on February 17, 2017 8:12 am<http://electionlawblog.org/?p=91166> by Rick Hasen<http://electionlawblog.org/?author=3>
I just came across an unpublished 2012 10th Circuit opinion from Judge Gorsuch in Hassan v. Colorado.  Here is the full opinion, and I’ve bolded the most important last sentence:
NEIL M. GORSUCH<http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0183411701&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>, Circuit Judge.
 Abdul Karim Hassan is a naturalized citizen who wishes to run for the Presidency of the United States. This even though the Constitution says “[n]o person except a natural born Citizen … shall be eligible to the Office of President.” U.S. Const. art. II, § 1, cl. 4<http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000583&cite=USCOARTIIS1CL4&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>. After the Colorado Secretary of State informed him that his ineligibility for office precluded his placement on the ballot, Mr. Hassan brought this lawsuit asserting that the natural-born-citizen requirement, and its enforcement through state law barring his access to the ballot, violates the Citizenship, Privileges and Immunities, and Equal Protection Clauses of the Fourteenth Amendment. The magistrate judge heard the case on consent of the parties and eventually concluded that the Fourteenth Amendment did not affect the validity of Article II’s distinction between natural-born and naturalized citizens. See Hassan v. Colorado, 870 F.Supp.2d 1192 (D.Colo.2012)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2027630886&pubNum=0004637&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>; see also Hassan v. New Hampshire, No. 11–cv–552–JD, 2012 WL 405620 (D.N.H. Feb. 8, 2012)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2027070612&pubNum=0000999&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)> (reaching same conclusion in Hassan’s challenge to exclusion from New Hampshire ballot). The magistrate judge granted summary judgment to defendants and Mr. Hassan appealed.
We affirm. We discern no reversible error in the magistrate judge’s disposition and see little we might usefully add to the extensive and thoughtful opinion he issued. To be sure, Mr. Hassan contends the magistrate judge overlooked one aspect of his claim. Mr. Hassan insists his challenge to Colorado’s enforcement of the natural-born-citizen requirement did not depend exclusively on invalidation of Article II<http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=USCOARTIIS1CL4&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)> by the Fourteenth Amendment. Even if Article II properly holds him ineligible to assume the office of president, Mr. Hassan claims it was still an unlawful act of discrimination for the state to deny him a place on the ballot. But, as the magistrate judge’s opinion makes clear and we expressly reaffirm here, a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office. See generally  Munro v. Socialist Workers Party, 479 U.S. 189, 193–95, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1986160454&pubNum=0000708&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>; Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127079&pubNum=0000708&originatingDoc=I0a1da6acf6be11e1b343c837631e1747&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>.
The judgment of the district court is affirmed. Appellant’s motion for publication is denied.
Richard Winger pointed to<http://ballot-access.org/2017/01/31/judge-neil-gorsuch-has-good-but-sparse-record-for-minor-party-and-independent-voters-and-candidates/> the campaign finance decision in Riddle as a good one for minor parties. This one is less good.
UPDATE: Richard Winger weighs in<http://ballot-access.org/2017/02/17/election-law-expert-rick-hasen-suggests-judge-neil-gorsuch-ruled-unfavorably-on-ballot-access-in-presidential-qualifications-case/>.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, Supreme Court<http://electionlawblog.org/?cat=29>

“Lobbyists helped bankroll Donald Trump’s transition”<http://electionlawblog.org/?p=91164>
Posted on February 17, 2017 8:06 am<http://electionlawblog.org/?p=91164> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI reports.<https://www.publicintegrity.org/2017/02/17/20725/lobbyists-helped-bankroll-donald-trump-s-transition>
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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
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