[EL] corrected link to Judge Gorsuch's dissent mentioning Vieth case

Mon Feb 20 08:25:50 PST 2017

https://scholar.google.com/scholar_case?case=4431699369959973484#p1193

From: Rick Hasen <rhasen at law.uci.edu>
Date: Monday, February 20, 2017 at 7:52 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: ELB News and Commentary 2/20/17

“Dysfunction and Deadlock at the Federal Election Commission”<http://electionlawblog.org/?p=91203>
Posted on February 20, 2017 7:45 am<http://electionlawblog.org/?p=91203> by Rick Hasen<http://electionlawblog.org/?author=3>
Departing<https://electionlawblog.org/?p=91191> FEC Commissioner Ann Ravel has penned this oped <https://www.nytimes.com/2017/02/20/opinion/dysfunction-and-deadlock-at-the-federal-election-commission.html> for the NYT.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91203&title=%E2%80%9CDysfunction%20and%20Deadlock%20at%20the%20Federal%20Election%20Commission%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

NC: “Fact Check: Were ‘tens of thousands’ of 2016 voters not verified?”<http://electionlawblog.org/?p=91201>
Posted on February 20, 2017 7:42 am<http://electionlawblog.org/?p=91201> by Rick Hasen<http://electionlawblog.org/?author=3>
WRAL:<http://www.wral.com/fact-check-were-tens-of-thousands-of-2016-voters-not-verified-/16533541/>
During a discussion of voter fraud during this week’s episode of WRAL News’ “On the Record,”<http://www.wral.com/news/local/asset_gallery/5997358/> Francis De Luca of the conservative Civitas Institute cited a statistic to highlight the potential that some number of people in North Carolina may have wrongfully voted.
“Since this election, tens of thousands of people have not been verified, their verifications failed since the election, or they were removed for other reasons – after voting,” De Luca said.
Civitas has pointed to failed voter verification issues before. Following the 2016 election, De Luca was the lead plaintiff in a lawsuit that complained roughly 3,000 people who registered and voted on the same day<http://www.wral.com/-civitas-sues-over-same-day-registrations/16266320/> failed the state’s verification process, which uses the mail. Asked about the difference between that claim of 3,000 voters and “tens of thousands,” De Luca said the statistic he was citing was more recent than the lawsuit, which he has since withdrawn.
THE QUESTION: Have “tens of thousands” of 2016 voters in North Carolina been removed as active voters since the election? If so, what does that mean?
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91201&title=NC%3A%20%E2%80%9CFact%20Check%3A%20Were%20%E2%80%98tens%20of%20thousands%E2%80%99%20of%202016%20voters%20not%20verified%3F%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Commissioner Ravel’s Departure–and the Virtues of Deadlock”<http://electionlawblog.org/?p=91199>
Posted on February 20, 2017 7:28 am<http://electionlawblog.org/?p=91199> by Rick Hasen<http://electionlawblog.org/?author=3>
Bauer:<http://www.moresoftmoneyhardlaw.com/2017/02/commissioner-ravels-departure-virtues-deadlock/>
Rick Hasen suggests that<https://electionlawblog.org/?p=91191> Mr. Trump could now break the agency deadlock and add a libertarian voice to the agency, creating a majority for active deregulation without violating the rule against one party holding more than half the seats.   Once in the past, in the Carter Administration, a president tried a move like this and it did not end well<https://www.washingtonpost.com/archive/politics/1978/08/12/zagoria-fec-nomination-to-be-dropped/df265505-d4c8-4c61-b486-06abe92f2bce/?utm_term=.939c87614583>. Maybe in this more deeply polarized time, the outcome would be different. But here again, Mitch McConnell would have a say in the matter, and it would be surprising if he supported this provocative maneuver, which would be mostly a distraction. The FEC is not much of a problem for the Republicans: Deadlock has worked well enough for them.
So why bother to take on this new fight? How much more could the FEC not do?
But if the Republicans did cooperate with the President to pack the Commission with their own, it would cast new light on the reasons why an agency like this might be wisely structured to be 50-50, with no party controlling. Democrats and reformers, resisting the Republican power play, will now appeal to this feature of the FEC’s design. Dreaded deadlock<https://www.nytimes.com/2017/02/20/opinion/dysfunction-and-deadlock-at-the-federal-election-commission.html> will start to look much better.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91199&title=%E2%80%9CCommissioner%20Ravel%E2%80%99s%20Departure%E2%80%93and%20the%20Virtues%20of%20Deadlock%E2%80%9D>
Posted in federal election commission<http://electionlawblog.org/?cat=24>

“Voter Fraud, Redux et Redux”<http://electionlawblog.org/?p=91197>
Posted on February 20, 2017 7:26 am<http://electionlawblog.org/?p=91197> by Rick Hasen<http://electionlawblog.org/?author=3>
Miles Rapoport blogs<http://www.challengestodemocracy.us/home/voter-fraud-redux-et-redux/#sthash.SjkFqaJE.dpbs> at the Ash Center’s Challenges to Democracy blog.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91197&title=%E2%80%9CVoter%20Fraud%2C%20Redux%20et%20Redux%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“A Long-Running Scandal and a Senate Pick Stir Corruption Questions in Alabama”<http://electionlawblog.org/?p=91195>
Posted on February 20, 2017 7:25 am<http://electionlawblog.org/?p=91195> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/02/19/us/alabama-senate-pick-corruption-questions.html?_r=0>
Mr. Strange, a former lobbyist widely regarded as ambitious and long seen as the future of Republican politics in Alabama, attended some of the grand jury testimony. Then Mr. Bentley, in his second and final term, chose Mr. Strange as Mr. Sessions’s replacement in the Senate and scheduled a special election for 2018.
When his appointment was announced, Mr. Strange, 63, said the rampant speculation about an inquiry involving the governor was “unfair to him and unfair to the process.” He also said, in a remark that has since been parsed, analyzed and criticized, “We have never said in our office that we are investigating the governor.”
Less than a week later, the man Mr. Bentley chose to succeed Mr. Strange as attorney general, Steven T. Marshall, appointed Alabama’s equivalent of a special prosecutor and asked her to “assume oversight of the state’s interest in the current investigative matter relating to Gov. Robert Bentley, to include all potential criminal matters arising from that investigation.”
One of the lawyers leading the inquiry, Matt Hart, helped to secure the conviction last year of Michael G. Hubbard<https://www.nytimes.com/2016/06/11/us/michael-hubbard-alabama-house-speaker-is-convicted-of-12-felony-ethics-charges.html>, then the speaker of the State House of Representatives.
Although many senior Republicans in Alabama and in Washington strongly urged Mr. Bentley to appoint Mr. Strange, the only one of six finalists to have been elected statewide, the choice and Mr. Marshall’s acknowledgment of an investigation still upset many people here.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91195&title=%E2%80%9CA%20Long-Running%20Scandal%20and%20a%20Senate%20Pick%20Stir%20Corruption%20Questions%20in%20Alabama%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>

Irony Alert: Is Kansas SOS Kobach Foot-Dragging on Investigation of Alleged Voter Fraud by Republican Sheriff?<http://electionlawblog.org/?p=91193>
Posted on February 19, 2017 3:14 pm<http://electionlawblog.org/?p=91193> by Rick Hasen<http://electionlawblog.org/?author=3>
Lawrence Journal-World:<http://www2.ljworld.com/news/2017/feb/19/douglas-county-sheriff-his-mother-under-investigat/>
Sheriff McGovern, a Republican who was re-elected in 2016, said he and his mother had no intention of wrongdoing when she registered to vote at an address that she no longer lived at.
When asked why he thought it would be legal for his mother to continue being registered at a house she no longer owned or occupied, McGovern initially responded by saying he discussed the matter with Douglas County Clerk Jamie Shew and was assured that it was OK.
But that explanation left questions about why Lois McGovern’s address was changed to the sheriff’s house just days prior to the November general election — despite the fact that Lois McGovern didn’t live at that address either.
When asked to explain, McGovern said that may have been the point that he received guidance from Shew. He said he may not have received any advice from Shew prior to the primary election. He said he didn’t remember whether he talked to Shew about the primary election issue.
Shew said he is certain that he never gave McGovern any advice that it would be permissible for his mother to remain registered at the Schwarz Road house that she had sold. Shew said that Sheriff McGovern asked about the issue just prior to picking up a ballot for his mother for the general election. Shew said he’s not sure what caused the sheriff to raise the question.
A source with knowledge of County Courthouse workings told the Journal-World that McGovern asked about the issue after a county employee confronted him when he tried to pick up a ballot for the general election. The county employee questioned whether Lois McGovern still lived in the county, said the source, who asked to remain anonymous because the source was not authorized to speak publicly about the matter.
McGovern said he doesn’t recall that confrontation, but also said he could not recall what led him to change his mother’s address to his home….
The secretary of state’s prosecution division is now reviewing the case for possible charges, but it is not clear that Kobach’s office was working on the case prior to the Journal-World contacting the office.
A Douglas County resident filed two complaints about the McGovern incidents: one was filed in early September after the primary election, and the second was filed in late October before the general election. The complainant confirmed that the secretary of state’s office never reached out to get additional information about the case.
County Clerk Shew, a Lawrence Democrat, also said he did not hear from the secretary of state’s office about the complaints. He said that is unusual, because in past instances of complaints, the secretary of state’s office has contacted him early in the process to confirm basic information about the voter’s registration and other details.
Caskey, the election official with Kobach’s office, said he didn’t have information readily available on when the case was forwarded to prosecutors.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91193&title=Irony%20Alert%3A%20Is%20Kansas%20SOS%20Kobach%20Foot-Dragging%20on%20Investigation%20of%20Alleged%20Voter%20Fraud%20by%20Republican%20Sheriff%3F>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Rather Than Continued Stalemate, Federal Election Commission May Now Lead Way to Campaign Finance Deregulation<http://electionlawblog.org/?p=91191>
Posted on February 19, 2017 9:20 am<http://electionlawblog.org/?p=91191> by Rick Hasen<http://electionlawblog.org/?author=3>
As we have long been expecting, Federal Election Commissioner Ann Ravel has announced her resignation<https://medium.com/@AnnMRavel/departing-the-federal-election-commission-fee0ae9d63a1#.rnsxy9bev> from the Federal Election Commission, effective March 1. For the last decade or more, beginning with the FEC tenure of Don McGahn (now the White House Counsel for President Trump), the FEC has stalemated on the most important questions about regulation of money in federal elections. Republican commissioners have pursued a deregulatory agenda, reading the laws and regulations in ways to have fewer limits, and much less disclosure, than (I believe) a fair reading of the law would allow. As Commissioner Ravel’s parting shot, she has issued a report on the stalemates, Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp. <http://www.fec.gov/members/ravel/ravelreport_feb2017.pdf> The deadlocks have allowed a lot of questionable and illegal activity to go through because the chances of FEC enforcement (or court action in the face of a deadlocked FEC) are small.
I will miss having Commissioner Ravel on the Commission—she, along with longtime FEC Commissioner Ellen Weintraub—has used every opportunity to call public attention to deadlock at the FEC and the dangers to American democracy. Commissioner Ravel went further than Commissioner Weintraub, including the infamous “male nipples” segment<http://electionlawblog.org/?p=77518> on the Daily Show.
I cannot begrudge Commissioner Ravel for wanting to leave an agency that is so dysfunctional, and where morale i<https://www.publicintegrity.org/2017/01/19/20599/morale-tatters-federal-election-commission-eyes-changes>s among the lowest at any federal agency.
And yet, things may now get much, much worse with her departure.
As I explained to Eric Lichtblau in the New York Times<https://www.nytimes.com/2017/02/19/us/politics/fec-elections-ann-ravel-campaign-finance.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news&_r=0>, the departure is potentially transformative, because now President Trump can use the vacancy to break the deadlock and turn the agency  into an engine for deregulation. Here’s how:
By law, no more than three commissioners on the FEC can be of the same political party. Generally this has meant three Democrats (or commissioners siding with Democrats) and three Republicans. The President has generally given the leadership of the party in the Senate on the other side a chance to pick commissioners from that party (though there was a dispute <http://electionlawblog.org/?p=9510> in 2007-8 over the controversial nomination of Hans von Spakovsky to the FEC).
Suppose President Trump decides not to follow this convention (and given the fact that he hasn’t followed other conventions, this would be unsurprising) He could appoint a libertarian or independent to Ravel’s position, thereby not violating the rules about having more than three Republican appointees. Thanks to Senator Reid, there is no more filibuster of executive nominations in the Senate, so Republicans in the Senate can force this choice through. The result? Four commissioners who can now do rulemaking, advisory opinions, and take positions in litigation that will make the FEC the leader in deregulating the political process.
This would be extremely attractive to Don McGahn, who has the President’s ear, and essentially declared war on Democrats at the FEC. The only question is if Republicans in the Senate think they would pay a price from Democrats by going down this route.
Think things can’t get much worse at the FEC from the reform perspective? Think again.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91191&title=Rather%20Than%20Continued%20Stalemate%2C%20Federal%20Election%20Commission%20May%20Now%20Lead%20Way%20to%20Campaign%20Finance%20Deregulation>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

What Does Judge Gorsuch Think About Partisan Gerrymandering? A Tiny Tea Leaf<http://electionlawblog.org/?p=91188>
Posted on February 18, 2017 4:35 pm<http://electionlawblog.org/?p=91188> by Rick Hasen<http://electionlawblog.org/?author=3>
For more than the last decade, since the Supreme Court decided Vieth v. Jubelirer<https://casetext.com/case/vieth-v-jubelirer-4#p281>, plaintiffs have been angling to get another case raising the question before the Supreme Court. In Vieth, Justice Kennedy sided with the dissenters in holding that partisan gerrymandering cases are justiciable (meaning courts can hear the challenge), but he also sided with Justice Scalia’s plurality opinion rejecting all of the proposed standards for separating permissible from impermissible considerations of party in redistricting as “judicially unmanageable.”
Now there is a race of sorts to get one or more partisan gerrymandering cases before the Court while Justice Kennedy remains on it. There are notable cases from Wisconsin, North Carolina, and Maryland that the Court could hear within the next term or so. The hope is that there is a new standard that would satisfy Justice Kennedy.
So where would Judge Gorsuch fall here?  We don’t have any direct writing I know of as to his views on partisan gerrymandering. But there is an opinion that Judge Gorsuch wrote<https://casetext.com/case/vieth-v-jubelirer-4#p281> dissenting from the denial of rehearing en banc in a case raising the question whether the Guarantee Clause provides a judicially manageable standard to address a complaint about a tax measure.  Judge Gorsuch wrote a paragraph comparing the plaintiffs’ claims with the claims in Vieth on the question of judicially manageable standards:
The situation we confront in this case is more than a little reminiscent of the one the Supreme Court faced in Vieth, where the plaintiffs sought to challenge a political gerrymander as unconstitutional. There, 18 years of experimenting by various courts failed to yield any sure standards for litigating those sorts of cases. Here, we encounter an arguably longer history of failed efforts to develop standards for litigating Guarantee Clause cases involving individual citizen initiatives—one extending into the nineteenth century. There, the plaintiffs sought to identify and defend as workable their own set of legal standards at the motion to dismiss stage, but the Court found those efforts unavailing and affirmed the dismissal of the complaint. Here, the plaintiffs haven’t even attempted to identify workable legal standards for adjudicating their case despite many opportunities over many years. If the law’s promise of treating like cases alike is to mean something, this case should be put to bed now as Vieth’s was then, rather than being destined to drag on forlornly to the same inevitable end. I respectfully dissent.
Make of it what you wish.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91188&title=What%20Does%20Judge%20Gorsuch%20Think%20About%20Partisan%20Gerrymandering%3F%20A%20Tiny%20Tea%20Leaf>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

--
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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170220/4a086d7b/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2022 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170220/4a086d7b/attachment.png>