[EL] ELB News and Commentary 2/22/17

Tue Feb 21 22:39:34 PST 2017

“Seattle tries voucher system to reform campaign finance”<http://electionlawblog.org/?p=91248>
Posted on February 21, 2017 10:34 pm<http://electionlawblog.org/?p=91248> by Rick Hasen<http://electionlawblog.org/?author=3>
Marketplace reports.<https://www.marketplace.org/2017/02/21/elections/seattle-tries-voucher-system-reform-campaign-finance>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Unanimous 4th Circuit Rejects Argument that VA Violates Constitution by Not Putting Party Preferences of Local Candidates on Ballot<http://electionlawblog.org/?p=91246>
Posted on February 21, 2017 10:31 pm<http://electionlawblog.org/?p=91246> by Rick Hasen<http://electionlawblog.org/?author=3>
Opinion.<http://www.ca4.uscourts.gov/Opinions/Published/161331.P.pdf>
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Posted in political parties<http://electionlawblog.org/?cat=25>

“FEC’s Direction in Doubt After Ravel’s Departure”<http://electionlawblog.org/?p=91244>
Posted on February 21, 2017 10:13 pm<http://electionlawblog.org/?p=91244> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=105973777&vname=mpebulallissues&jd=a0k9g7c7v3&split=0>
“I admit when I came here [to the FEC], I was naive,” Ravel said in the phone interview Feb. 21.
In her first year at the FEC, Ravel said, she “crossed party lines” and voted with the three Republican FEC commissioners—Lee Goodman, Caroline Hunter and Matthew Petersen—to strike the corporate campaign spending rules overturned by Citizens United, as well as on nearly two dozen campaign finance enforcement cases.
“It didn’t take long to realize that wasn’t going to work,” Ravel said. She blamed her frustration on Republican colleagues, who came with “an ideological bent to ensure that the purposes of the agency were not fulfilled.”…
Some have suggested Trump could try to use Ravel’s departure from the FEC to push the agency to further deregulate money in politics. The president would be barred by law from adding another Republican commissioner to the three currently on the FEC, but he could attempt to circumvent Democrats’ recommendations to replace Ravel, such as by appointing a Libertarian Party member or a conservative independent.
Others suggested, however, Trump was unlikely to pick a fight with Democrats over an FEC appointment with so many other personnel and policy issues at stake early in his presidency.
Robert Lenhard, a former Democratic FEC commissioner now in private law practice at the firm Covington & Burling, suggested Trump should consider “the overall make-up of the FEC in selecting new commissioners” and try to reduce turmoil at the troubled agency.
“Over the last eight years, the FEC has been a turbulent place, with commissioners turning to talk radio, the blogosphere and comedy shows to take their disputes to the public,” Lenhard said in an analysis<https://www.insidepoliticallaw.com/2017/02/20/what-next-for-the-fec/> published on his firm’s website. “Discord at the top has led to a poisonous atmosphere within the building, and the plummeting of employee satisfaction to the lowest depths of any federal agency.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Controversial AZ Measure May Make It Harder to Circulate Ballot Initiatives<http://electionlawblog.org/?p=91242>
Posted on February 21, 2017 8:52 pm<http://electionlawblog.org/?p=91242> by Rick Hasen<http://electionlawblog.org/?author=3>
Laurie Roberts<http://www.azcentral.com/story/opinion/op-ed/laurieroberts/2017/02/16/robertssos-30-arizona-you-just-took-hit/98003188/> AZ Republic column.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>

“NC governor and AG seek to end US Supreme Court review of voter ID case”<http://electionlawblog.org/?p=91240>
Posted on February 21, 2017 8:45 pm<http://electionlawblog.org/?p=91240> by Rick Hasen<http://electionlawblog.org/?author=3>
The News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article134017644.html>
Thomas Farr, a Raleigh attorney who has represented the lawmakers for several years in the elections law case, sent a letter to William McKinney, Cooper’s general counsel, arguing that neither the governor nor Stein have the authority to discharge him and others at his firm from the case and that he and others plan to continue in the case.
[Read: Response letter from attorney Thomas Farr to Gov. Roy Cooper’s chief counsel]<http://media2.newsobserver.com/content/media/2017/2/21/Letter%20to%20William%20McKinney%20and%20Grayson%20Kelley%202.21.2017.pdf>
If the request by Cooper and Stein to withdraw the appeal is granted, the State Board of Elections, its individual members and its executive director will not immediately be withdrawn from the case. They would have to make similar requests.
A spokesman for the state Board of Elections said the director, board members and staff learned of the decision by Cooper and Stein on Tuesday morning. A conference-call meeting had previously been scheduled for 2:15 p.m. Wednesday, but that meeting is now likely to include discussion about next steps.
North Carolina legislative leaders who shepherded the voting-law changes through the Republican-led General Assembly could continue an effort for U.S. Supreme Court review, but they would have to petition to intervene in the case. They are not named in the lawsuit.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“FEC member: I have the right to demand Trump prove voter fraud claims”<http://electionlawblog.org/?p=91238>
Posted on February 21, 2017 8:43 pm<http://electionlawblog.org/?p=91238> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN:<http://www.cnn.com/2017/02/21/politics/fec-ellen-weintraub-trump-voter-fraud/index.html>
A member of the Federal Election Commission was defiant Tuesday after a nonprofit group said her request that President Donald Trump provide proof of voter fraud merited an investigation into whether her comments were inappropriate.
Ellen Weintraub’s remarks were in response to a letter sent from the Cause of Action Institute to Lynne A. McFarland, the FEC inspector general, about a statement Weintraub made earlier in February<http://www.cnn.com/2017/02/10/politics/fec-ellen-weintraub-new-hampshire/>. Weintraub called on the President to substantiate his claim of massive voter fraud in New Hampshire, a call she repeated in her statement Tuesday….
The Cause of Action Institute is an independent group classified as a 501 (c) (3), meaning its work cannot be expressly political, and the group’s website says its goal is to ensure “the federal regulatory process is open, honest and fair.”
But a 2015 report<http://www.latimes.com/nation/la-na-cause-action-20150207-story.html> from the Los Angeles Times connected the group with conservative megadonors Charles and David Koch, and tax records show the Franklin Center for Government and Public Integrity<http://i2.cdn.turner.com/cnn/2017/images/02/21/franklin.center.pdf> as well as Donors Trust<http://i2.cdn.turner.com/cnn/2017/images/02/21/donors.trust.pdf> are among its donors. Tax records also show contributions to the Franklin Center from Donors Trust, a Koch-affiliated group, and the Charles Koch Foundation<http://i2.cdn.turner.com/cnn/2017/images/02/21/charles.koch.pdf>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Suit to Force Wake County NC to Clean Its Voter Rolls Under the NVRA Survives Motion to Dismiss<http://electionlawblog.org/?p=91235>
Posted on February 21, 2017 2:08 pm<http://electionlawblog.org/?p=91235> by Rick Hasen<http://electionlawblog.org/?author=3>
Court order:<https://publicinterestlegal.org/files/DOc.-37-Order-Denying-MTD.pdf>
Considering VIP-NC’s allegation that the number of registered voters in Wake County has exceeded, and continues to exceed, the number of eligible voters, which allegation is in turn supported by reliable data and WBOE’s failure to use available jury excuse information, a reasonable inference can be drawn that WCBOE is not making a reasonable effort to conduct a voter list maintenance program in accordance with the NVRA. See Martinez-Rivera, 166 F. Supp. 3d at 793-94 (holding that allegations of voter rolls containing more registered voters than citizens eligible to vote—a 105% registration rate—gave rise to a strong inference of a violation of the NVRA and stated a plausible claim for relief). Accordingly, the court finds VIP-NC has stated a claim for violation of 52 U.S.C. § 20507.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

Statement from FEC Commissioner Weintraub on Call for Investigation into Trump Voter Fraud Comments<http://electionlawblog.org/?p=91233>
Posted on February 21, 2017 1:50 pm<http://electionlawblog.org/?p=91233> by Rick Hasen<http://electionlawblog.org/?author=3>
New statement:
Statement of Commissioner Ellen L. Weintraub Regarding Request for Investigation1 Filed With FEC Inspector General
As a Commissioner on the Federal Election Commission, I am acutely aware that our democracy rests on the faith of the American people in the integrity of their elections.
The President of the United States has, without providing evidence, alleged a massive conspiracy to bus thousands of voters from one state to another to cast illegal votes in the 2016 elections.
Any such allegation challenging the legitimacy of federal elections would be of great concern to me. As it happens, this particular allegation falls squarely within the jurisdiction of the Federal Election Commission, since the expense of these buses has not been accounted for on any campaign-finance filing. Accordingly, I have asked the President for his evidence.
But let there be no doubt: It is absolutely within my official duties as a federal election official to comment publicly on any aspect of the integrity of federal elections in the United States. I will not be silenced.
Update: Weintraub tweets<https://twitter.com/EllenLWeintraub/status/834164808832397312>:: Here’s the “request for investigation” that a nonprofit filed today with @FEC<https://twitter.com/FEC> Inspector Gen., seeking to muzzle me. http://causeofaction.org/assets/uploads/2017/02/2017.02.21-CoA-Inst.-Req.-for-Investigation-Commr-Weintraub-Ethics.pdf …<https://t.co/BcqygrE4ii>“
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

NC Republican Legislative Leaders Argue NC Gov. Cooper Cannot Fire Outside Counsel in #SCOTUS Voting Case<http://electionlawblog.org/?p=91231>
Posted on February 21, 2017 1:28 pm<http://electionlawblog.org/?p=91231> by Rick Hasen<http://electionlawblog.org/?author=3>
WRAL:<http://www.wral.com/cooper-stein-move-to-end-voting-rights-case/16542573/>
It’s unclear what the practical effect of this step will be. Ordinarily, a plaintiff withdrawing from a lawsuit would leave the lower court ruling in place. However, in North Carolina, General Assembly leaders have the ability to defend lawsuits on behalf of the state.
A spokeswoman for Senate President Pro Tem Phil Berger<http://wral.com/14549734/?ncga_id=129>noted that Cooper and Stein aren’t the clients of the outside attorneys, so they cannot fire them, and the attorneys will continue representing the state.
“Roy Cooper’s and Josh Stein’s desperate and politically motivated stunt to derail North Carolina’s voter ID law is not only illegal, it also raises serious questions about whether they’ve allowed their own personal and political prejudices and conflicts of interest to cloud their professional judgment,” Berger and House Speaker Tim Moore<http://wral.com/14549734/?ncga_id=157>said in a joint statement.
The State Board of Elections also remains a defendant in the case, but a spokesman for the agency could say only that lawyers for the board are reviewing the matter.
I’ve gone into the morass before trying to figure out who can control NC litigation in these circumstances and I will have to leave this to NC law gurus. It may end up having to be sorted out in state courts.
In the meantime, if the case is not formally withdrawn soon, I’d bet some good money that the four conservative Justices, expecting a Justice Gorsuch, will vote to grant cert.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Fighting voter ID laws in the courts isn’t enough. We need boots on the ground”<http://electionlawblog.org/?p=91229>
Posted on February 21, 2017 1:10 pm<http://electionlawblog.org/?p=91229> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Molly McGrath LA Times oped:<http://www.latimes.com/opinion/op-ed/la-oe-mcgrath-voter-id-help-20170221-story.html>
States that have implemented voter ID laws have shown little to no interest in helping their citizens comply. And the advocacy organizations that oppose these laws have few resources for direct voter assistance. Instead, groups like the American Civil Liberties Union have focused on challenging voter ID mandates in court. That’s essential, but it’s not enough. As court battles proceed, we must acknowledge our collective obligation to voters like Cinderria by investing in on-the-ground, in-person support.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Party by Association: Charting a New Path to Responsive Party Government”<http://electionlawblog.org/?p=91227>
Posted on February 21, 2017 1:08 pm<http://electionlawblog.org/?p=91227> by Rick Hasen<http://electionlawblog.org/?author=3>
Tabatha Abu El-Haj has posted this draft <http://ssrn.com/abstract=2920649> on SSRN.  Here is the abstract:
Hardly a day goes by without a headline decrying the hyperpolarization and dysfunction of Congress. While the 2016 election has heightened these concerns, the fact is that for nearly a decade those who follow politics closely have been sounding alarm bells about the myriad ways our party system is failing to live up to its democratic function. Some have been preoccupied with ideological polarization and legislative gridlock; others with the apparent disconnect between the policies pursued and the preferences of the constituencies represented; others still with an important secondary effect — the aggrandizement of executive power. Whatever the emphasis, there is little question that the growing academic consensus is that the party system is in need of fundamental reform if responsible and responsive governance is to emerge. The results of the 2016 election strongly indicate that this is one arena in which the public and experts agree.
This Article argues that it is time to bite the bullet and admit that a large part of the problem is that the governing theory of how to achieve responsible and responsive parties is just not working. Party reformers — both academics and practitioners — need to accept that “responsible party government” has run its course as a means for achieving democratic accountability, that the Supreme Court ought to abandon its attachment to the theory as a driver of its decisions pertaining to the First Amendment rights of political parties, and that it should be eschewed as the theoretical underpinning of all regulatory proposals.
Without denying that parties are associations of ruling elites in the business of seeking election or that educating voters is difficult, the Article draws on the insights of a range of empirical research in sociology and political science to argue that we can demand more from parties and expect more from citizens. An alternate path to responsive governance, it argues, exists once we conceive of political parties primarily as civic associations rather than producers of brands. Viewed as associations, the capacity of political parties to foster responsiveness and accountability would depend less on their capacity to speak and the coherence of their platform, and more on the depth and breadth of their political networks. The strength of a political party ought to be assessed in terms of its capacity to generate informed, representative political engagement through a broad cadre of party activists with ties to a broader more representative swath of the electorate.
The Article concludes by exploring the implications of an associational party perspective for legal doctrine and regulatory reform, by focusing on two related current controversies. The first is the constitutional challenge, pending in the Supreme Court, to the federal ban on using soft-money to fund campaigns. The second is the debate over how to deregulate party financing to level the playing field so they can effectively compete with Super PACs and similar entities.
Looking forward to reading this!
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>

“Yale Names Heather Gerken as First Woman Law Dean”<http://electionlawblog.org/?p=91225>
Posted on February 21, 2017 1:03 pm<http://electionlawblog.org/?p=91225> by Rick Hasen<http://electionlawblog.org/?author=3>
The NLJ:<http://www.nationallawjournal.com/id=1202779572664/Yale-Names-Heather-Gerken-as-First-Woman-Law-Dean?mcode=0&curindex=0&curpage=ALL>
Yale Law School has named its first female dean.
University officials announced Tuesday that Yale Law professor Heather Gerken, 48, will assume the deanship on July 1, replacing outgoing dean Robert Post. Gerken will be the first woman to lead the 193-year-old law school, which holds the No. 1 spot on U.S. News & World Report’s law school rankings.
“Yale Law School is very lucky to be able to draw on the energy, brilliance, and leadership of Heather Gerken,” Post said in an announcement of her appointment. “This is a time of change in the nation and in legal education, and Heather is perfectly situated to take the helm of this extraordinary place. She has the entire confidence of the school.”
Beyond New Haven, Connecticut, legal academics who know Gerken are praising her selection.
“She’s brilliant and she’s a mensch,” said Rick Hasen<https://mail.alm.com/owa/redir.aspx?C=CXQmB0vfC0aOsu7qF6NFGVe0Tb7SX9QIru6t1fQy1Z29lss10yvhou_jmPFRM_6S3YZSB2aCzcc.&URL=http%3a%2f%2fwww.nationallawjournal.com%2fid%3d1202771759093%3fkeywords%3dRick%2bHasen>, a professor at the University of California, Irvine School of Law who, like Gerken, is an expert in election law.
“There are people in the world who are whip smart and always impress you with their intellect, and there are people in the world who are kind, thoughtful and considerate. Heather is the rare person who combines both. I expect she will be an excellent dean.”
Congratulations to Yale!
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Posted in election law biz<http://electionlawblog.org/?cat=51>

Breaking: NC Gov, AG Take Steps to Withdraw from #SCOTUS Voting Case–But Case Not (Yet) Over<http://electionlawblog.org/?p=91218>
Posted on February 21, 2017 9:19 am<http://electionlawblog.org/?p=91218> by Rick Hasen<http://electionlawblog.org/?author=3>
Last week I explained the following:<http://electionlawblog.org/?p=91144>
North Carolina has filed its reply brief<http://electionlawblog.org/wp-content/uploads/16-833-Reply-Brief.pdf> in the North Carolina voting case, and the Supreme Court is set to review it<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-833.htm> at its March 3 conference. (If the Court does grant review, it typically takes at least two conferences before that announcement is made.)
A few weeks ago, I wrote<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html> at Slate that “in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court<http://electionlawblog.org/wp-content/uploads/North-Carolina-Voter-ID-Cert-Petition-FINAL.pdf> to review the 4th Circuit’s decision<http://electionlawblog.org/wp-content/uploads/nc-4th.pdf> striking down North Carolina’s strict voting law.”  I followed that up with a blog post<http://electionlawblog.org/?p=90895> stating that NC law was not clear on whether the Governor had the authority to withdraw the petition, but at the least he could put in a letter expressing his disagreement with the argument that the Supreme Court should review the case.
The governor and AG were non-committal,<http://www.wral.com/cooper-not-tipping-hand-on-whether-he-ll-withdraw-nc-voter-id-appeal/16495766/> and now it appears they’ve filed nothing. Without explanation. And with a lot riding on this. By the time the Court would hear the case, we likely will have a Fifth conservative Justice and this important opinion could be reversed.
Now comes a press release from the governor’s office:

FOR IMMEDIATE RELEASE
February 21, 2017

Governor Cooper, AG Stein Take Steps to Withdraw from Voting Restrictions Case

Raleigh: Today, Governor Roy Cooper and Attorney General Josh Stein have taken steps to withdraw the state’s petition for a Writ of Certiorari to the U.S. Supreme Court of State of North Carolina V. North Carolina State Conference of the NAACP, the voting restrictions law overturned by the Fourth Circuit Court of Appeals last year.

Last year, judges on the Fourth Circuit overturned North Carolina’s 2013 voting restrictions law after finding that it sought to “target African Americans with almost surgical precision” in order to limit access to the ballot box.  The previous administration joined in petitioning the U.S. Supreme Court to hear the case on December 27th.

This morning, the Governor’s General Counsel and Chief Deputy Attorney General jointly sent a letter discharging outside counsel in the case on behalf of the State. Also today, the Governor’s Office and the NC Department of Justice formally withdrew the State and Governor’s request for the U.S. Supreme Court to review the Fourth Circuit’s decision.

After the Governor’s Office and N.C. Department of Justice withdraw, the State Board of Elections, its individual members, and its Executive Director will remain in the case for the time being.

“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Governor Cooper said. “It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters.”

“The right to vote is our most fundamental right,” said AG Stein. “Voting is how people hold their government accountable. I support efforts to guarantee fair and honest elections, but those efforts should not be used as an excuse to make it harder for people to vote.”

###

It is unclear to me what it means for the Board of Elections and its executive director to “remain in the case for the time being.”  This again is one of those odd aspects as to who controls North Carolina litigation.  Not clear to me if they can get or keep outside counsel. Correction: It appears Republicans still have a majority on this board (at least until the courts decide if the structure of this board can change as NC legislature ordered last year).  Also, I am not sure if the Legislature can seek to intervene at this time. I welcome clarification from those who understand North Carolina law on this point.
More as I know it. But getting this case withdrawn would be a big deal and a good thing.
UPDATE: The post<https://twitter.com/JoshStein_/status/834092483361521665> from the NC AG says the plaintiffs will give up their right to up to $12 million in attorney’s fees in exchange for dropping the case. That’s a nice way to frame the issue for NC voters.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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http://electionlawblog.org<http://electionlawblog.org/>
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