[EL] ELB News and Commentary 2/27/17

Mon Feb 27 07:46:06 PST 2017

“Outside groups spent more than candidates in 27 races, often by huge amounts”<http://electionlawblog.org/?p=91342>
Posted on February 27, 2017 7:22 am<http://electionlawblog.org/?p=91342> by Rick Hasen<http://electionlawblog.org/?author=3>
Open Secrets analysis.<https://www.opensecrets.org/news/2017/02/outside-groups-spent-more-than-candidates-in-27-races-often-by-huge-amounts/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Ohio SOS Husted Finds 82 Non-Citizens Voted in Ohio Last Year<http://electionlawblog.org/?p=91340>
Posted on February 27, 2017 7:15 am<http://electionlawblog.org/?p=91340> by Rick Hasen<http://electionlawblog.org/?author=3>
WCMH:<http://wdtn.com/2017/02/27/ohio-secretary-of-state-investigation-found-non-citizens-registered-to-vote-cast-illegal-ballots/>
According to a release from Husted, 385 people who are not citizens of the United States are registered to vote in Ohio. Out of those, 82 voted in at least one election in the last year…..
“In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Secretary Husted said….
Husted added that one of the cases where a non-citizen cast a ballot occurred in jurisdictions where an election was decided by one vote or tied.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

Breaking: Without Noted Dissent, Supreme Court Affirms Lower Court Allowing Disclosure in Major Campaign Disclosure Case<http://electionlawblog.org/?p=91333>
Posted on February 27, 2017 6:34 am<http://electionlawblog.org/?p=91333> by Rick Hasen<http://electionlawblog.org/?author=3>
Today the Supreme Court affirmed<https://www.supremecourt.gov/orders/courtorders/022717zor_k5fm.pdf> (that is, agreed the lower court was correct, although not necessarily on the reasoning) in Independence Institute v. FEC<http://www.scotusblog.com/wp-content/uploads/2016/12/16-743-opinion-below-D.D.C.pdf>, a major case which could have called into question the effectiveness of federal and state disclosure laws.
There was a full court press to hear this case—check out the large number of amicus briefs <http://www.scotusblog.com/case-files/cases/independence-institute-v-federal-election-commission/> supporting review. And, for reasons I explain here<http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2016/06/9_-_Hasen_-_Stan._L._Rev.pdf>, there was an extra good chance the Court would have taken this case because of its procedural posture: this came on appeal (not a cert petition) directly from a three-judge district court, and a decision not to hear the case means that the lower court got the right result.
Twice (in McConnell v. FEC and Citizens United), the Supreme Court by lopsided majorities held that it is permissible to require disclosure of money spent on political speech, even if that speech does not contain magic words of advocacy, like vote for or vote against. Independence Institute was an attempt to get the Court to take a third bite at this apple, and to carve an exception for “genuine issue advocacy” which names candidates and could affect elections. The result of a reversal here would have been to create a kind of constitutional exemption to disclosure which would be easy for outside groups to get around—kind of what we are seeing on the federal level, but on the state and local level too.
The concern expressed in some of the briefs supporting review complained that disclosure will chill participation in non-profit groups.  I’ve argued in the past <https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=1948313> that chilling effects here are greatly exaggerated, and there already is an exemption to disclosure for groups that can show they face a genuine threat of harassment. And non-profits that are worried about this and disclosure of their membership etc. can set up a separate fund to fund these ads, letting donors to this fund know their identities will be disclosed.
While the Court has been steadily whittling away and striking down campaign laws limiting contributions and spending in elections, it has held the line on the constitutionality of disclosure laws. And that’s a good thing. A small, but real, victory for those who support reasonable campaign finance regulation.
And, somewhat surprisingly, no written dissent by Justice Thomas (or Justice Alito), who has expressed the most resistance to the constitutionality of campaign finance disclosure laws.
[This post has been updated.]
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

When Politics Becomes Existential<http://electionlawblog.org/?p=91331>
Posted on February 26, 2017 11:29 am<http://electionlawblog.org/?p=91331> by Richard Pildes<http://electionlawblog.org/?author=7>
Judge Laurence H. Silberman has been a respected conservative judge for more than 30 years on the D.C. Circuit and has extensive executive branch experience as well.  Alarmed by the erosion of long-standing institutional practices and norms concerning the appropriate behavior of governmental actors, he took to the WSJ op-ed<https://www.wsj.com/articles/a-notorious-2016-for-ginsburg-and-comey-1487978570> pages and a recent speech to express concern about the way our most important legal institutions are starting to be deformed by today’s political environment and to “bend in the political winds.”
Although Judge Silberman does not use these terms, I would say what he is describing is the way in which we have entered an age of existential politics.  When politics is perceived to be existential (by one side or the other or both), the very identity of the country, or even possibly its existence in a recognizable form, is perceived to be at stake.  Politics is no longer a matter of ordinary disagreement about values and policy.  Losing an election is no longer a disappointing result that can be lived with in the knowledge that there will be other elections and other battles. The stakes are perceived to be much too high for that.  The outcome of elections are no longer seen to be potentially reversible in the next election.  This election is “our last chance” to keep our country as we know it.  Or the outcome of this election will destroy our country as we know it.
Once politics is widely perceived as existential, actions previously thought out of bounds become easy to justify.  Given the ends perceived to be at stake, many previously unacceptable means are justified.  Existing laws might still be complied with, but healthy democracies depend as well on a thick infrastructure of conventions, well-developed traditions, and norms that are at least as important as the formal legal architecture of government.  Yet if “this much is at stake,”  the pressure and temptation to override those conventions, traditions, and norms becomes overwhelming.
This is the framework within which I understand the two specific examples that  Judge Silberman raised.  First was Justice Ginsburg’s public comments about Donald Trump’s candidacy, which Silberman calls “as openly political as any justice has been in my memory — perhaps ever.”  Although Justice Ginsburg later apologized for crossing this line, the temptation no doubt came from her perception that Donald Trump posed a unique, even existential, threat to American democracy.  The second was the FBI’s performance throughout the Clinton email investigation.  Part of the reason James Comey appears to have made his 11th hour announcement of a re-opened investigation was to preempt leaks from lower level FBI officials — who no doubt believed those potential leaks justified given their perception of the unique threat Hillary Clinton posed to American democracy.
Existential politics does not just tempt individual public actors to override the constraints that traditionally bound their roles.  It also threatens to undermine the perceived integrity of the institutions in which these actors operate.  Indeed, Judge Silberman believes “[James Comey’s] performance was so inappropriate for an FBI director that I doubt the bureau will ever completely recover.”
If many people, on either side or both, continue to believe that American politics today is indeed a matter of existential stakes, we can expect to see more of the corrosion of the long-standing conventions, institutional self-understandings, and norms that have, till now, governed American institutional practices.
Judge Silberman concludes:
As I ponder the damage done in 2016 to both institutions, the Supreme Court and the Justice Department, I worry that it will be irreversible—that in the future, Supreme Court justices will be induced by aggressive reporters to make injudicious remarks, and that attorneys general (and deputies) will have difficulty limiting the FBI to its investigative role.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Judge Leon Puts EAC Chair in Interesting Position: It Has to Say Whether Brian Newby Acted within the Scope of His Authority<http://electionlawblog.org/?p=91328>
Posted on February 26, 2017 8:17 am<http://electionlawblog.org/?p=91328> by Rick Hasen<http://electionlawblog.org/?author=3>
Via Josh Gerstein<https://mobile.twitter.com/joshgerstein/status/835640588124962817?p=p> comes news of this latest ruling<https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv0236-133> in League of Women Voters v. Newby, concerning a directive from EAC director Newby allowing states (including SOS Kobach’s Kansas) to require documentary proof of citizenship before using the federal form to register in federal elections.  This is a long-running dispute that has played out in numerous lawsuits and numerous courts across the country.  Judge Leon has already been reversed once by the D.C. Circuit on his temporary order.
Judge Leon sees this as a morass:
[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-02-26-at-8.14.24-AM.png]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-02-26-at-8.14.24-AM.png>
But having the Election Assistance Commission decide this will put it in a tough spot, and it could well come down to the position of the new chair, Commissioner Masterson. It was clear in earlier aspects of this dispute that Commissioner Hicks believes Newby acted without authority and Commissioner McCormick likely believes Newby had authority. Masterson, like McCormick, is a Republican appointee but a straight shooter. Hicks is the Democratic appointee and the other Democratic seat remains vacant.
Interesting times.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Political Road Map: If you think it’s time to rein in money in politics, look to Sacramento or to California’s voters”<http://electionlawblog.org/?p=91326>
Posted on February 26, 2017 8:03 am<http://electionlawblog.org/?p=91326> by Rick Hasen<http://electionlawblog.org/?author=3>
John Myers LAT column <http://www.latimes.com/politics/la-pol-ca-road-map-money-politics-state-efforts-20170226-story.html> on Ann Ravel.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Judge Easterbrook Asks in WI Case: Why Can’t Republicans Make “Pro-Republican Changes” to Make It Harder to Vote?<http://electionlawblog.org/?p=91322>
Posted on February 24, 2017 7:07 pm<http://electionlawblog.org/?p=91322> by Rick Hasen<http://electionlawblog.org/?author=3>
In the oral argument in today’s Wisconsin [corrected] case, around the 29 minute mark<http://media.ca7.uscourts.gov/sound/external/nr.16-3091.16-3091_02_24_2017.mp3>, Judge Easterbrook asks plaintiffs’ counsel: “A large part your brief reads as if the argument is: ‘When Democrats are in control they are free to expand voting. When Republicans in control they are prohibited from making any pro-Republican changes.’ That can’t be right… Why are the standards when Republicans are in control any different from when Democrats are in control?”
So “pro-Republican changes” must equal contracting the right to vote. And that’s ok?
I do address the one-way ratchet issue in these vote denial cases in this piece<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>,
Another issue in the case is whether treating counties rather than voters is constitutional. I address that question in: When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497192>, 2015 University of Chicago Legal Forum 193 (2015).

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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
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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