[EL] ELB News and Commentary 1/25/17

Wed Jan 25 09:03:41 PST 2017

“Trump’s Voting Investigation Is a Great Idea; As long as it looks like this.”<http://electionlawblog.org/?p=90634>
Posted on January 25, 2017 8:59 am<http://electionlawblog.org/?p=90634> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/trump_s_voting_fraud_investigation_is_a_great_idea.html?wpsrc=sh_all_dt_tw_top> for Slate. It begins:
President Donald Trump on Wednesday called<https://www.nytimes.com/2017/01/25/us/politics/donald-trump-administration.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0> for a “major investigation” into voter fraud. While his tweets<https://twitter.com/realDonaldTrump/status/824227824903090176?ref_src=twsrc%5Etfw> announcing the call<https://twitter.com/realDonaldTrump/status/824228768227217408?ref_src=twsrc%5Etfw> focus on the possibility of double voting and voter registration fraud, the main claim of fraud Trump has made over the past few months is that 3 million to 5 million illegal voters cast ballots in the election, which is his explanation for Hillary Clinton’s popular vote victory.
The claim that there were millions of illegal voters in this past election is false<https://www.washingtonpost.com/news/fact-checker/wp/2017/01/24/recidivism-watch-spicer-uses-repeatedly-debunked-citations-for-trumps-voter-fraud-claims/?hpid=hp_hp-top-table-main_no-name%3Ahomepage%2Fstory&tid=a_inl&utm_term=.78c09590e78e> and unsupported<https://www.washingtonpost.com/news/politics/wp/2017/01/24/donald-trumps-indefensible-claims-of-rampant-voter-fraud-are-now-white-house-policy/?utm_term=.55fc8eb85f42> by any credible evidence. The National Association of Secretaries of State, made up of the chief election officers of all 50 states, just issued a statement saying so<https://twitter.com/BraddJaffy/status/824244436519501825>. (Here is an explanation<http://www.slate.com/blogs/the_slatest/2016/12/01/clinton_lead_tops_2_5_million_as_trump_popular_vote_lie_spreads.html> of Trump’s apparent justification for making the claim.) Trump’s own lawyers<https://www.washingtonpost.com/news/the-fix/wp/2016/12/05/in-an-anti-recount-filing-trumps-lawyers-say-the-election-was-not-tainted-by-fraud-or-mistake/?utm_term=.37f03f146260> told a court in connection with Jill Stein’s request for a Michigan recount that “all available evidence suggests that the 2016 general election was not tainted by fraud or mistake.”
The administration has promised more details about the coming investigation later this week. Considering his continued advocacy for totally discredited voter fraud claims, there is no reason to believe that any investigation Trump orders would be fair and a search for the truth. Here, though, are some markers to determine whether it would be. Assuming Trump is not going to order a fair investigation, there should be a shadow investigation following these markers.
It concludes:
Baseless allegations of voter fraud hurt our democracy. You would think after the Department of Justice under President George W. Bush spent five years investigating voter fraud with nothing to show for it<https://mobile.nytimes.com/2007/04/12/washington/12fraud.html>, the voter fraud canard would have been put to bed years ago. This call for a major investigation, if done fairly, could finally put the issue to bed. Let’s not fool ourselves into believing President Trump would order a fair investigation. But if he doesn’t, we will need a shadow investigation to counter whatever a Trump commission might put out to support its boss’ baseless conclusions.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Civil Rights Group Rebukes Trump Justice Dept. Over Case Delays”<http://electionlawblog.org/?p=90632>
Posted on January 25, 2017 8:56 am<http://electionlawblog.org/?p=90632> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/01/24/us/politics/civil-rights-trump-administration-sessions.html?ref=politics>
A leading civil rights group on Tuesday denounced the Trump administration’s delay of legal cases to overhaul the Baltimore Police Department and challenge a voter ID law in Texas — two lawsuits that were major efforts of the Obama-era Justice Department. Senate Democrats, meanwhile, pushed back a confirmation vote on Senator Jeff Sessions as attorney general.
Just hours after President Trump was inaugurated, the Justice Department on Friday filed requests to delay scheduled hearings in the two cases. Kristen Clarke, the executive director of the Lawyers’ Committee for Civil Rights Under Law<https://lawyerscommittee.org/>, called the requests “astonishing.”
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>

“Trump’s voter fraud claims undermine the democratic process and his presidency”<http://electionlawblog.org/?p=90630>
Posted on January 25, 2017 8:51 am<http://electionlawblog.org/?p=90630> by Rick Hasen<http://electionlawblog.org/?author=3>
Dan Balz:<https://www.washingtonpost.com/politics/trumps-voter-fraud-claims-undermine-the-voting-system-and-his-presidency/2017/01/24/a71d58ee-e288-11e6-a453-19ec4b3d09ba_story.html?utm_term=.36fe1879b217>
There is no benign explanation for President Trump’s false assertion that millions of people voted illegally in the last election. It is either a deliberate attempt to undermine faith in the democratic process, an exhortation to those who favor new restrictions on access to the ballot box or the worrisome trait of someone with immense power willing to make wild statements without any credible evidence.
By repeating as president what he had said as a candidate, for whatever purpose, Trump is now striking at the foundation of a democratic society. This is yet another example of Trump being willing to cast doubt on information, individuals or institutions that he believes threaten his legitimacy, challenge his authority or question his actions, from attacks on “phony polls” or the “dishonest media” to assertions now of vast voter fraud.
This is not a debate about the size of the crowd at last week’s presidential inauguration. That is a piddling controversy compared to his claim that the election system overseen by the states is somehow riddled with fraud. Trump is chipping away at a shared public confidence in a system that is fundamental to a representative government for no apparent reason other than that he’s bothered by the fact that, although duly elected and now in the White House, he lost the popular vote to Hillary Clinton by almost 3 million votes.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

My Prediction on Voting Rights under Trump/Sessions<http://electionlawblog.org/?p=90628>
Posted on January 25, 2017 8:46 am<http://electionlawblog.org/?p=90628> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<http://www.slate.com/articles/news_and_politics/politics/2017/01/how_trump_will_change_america_predictions.html>, at Slate’s set of predictions for the new administration.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90628&title=My%20Prediction%20on%20Voting%20Rights%20under%20Trump%2FSessions>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“ACLU seeks copy of Kobach’s proposed changes to U.S. election law”<http://electionlawblog.org/?p=90626>
Posted on January 25, 2017 8:44 am<http://electionlawblog.org/?p=90626> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://www2.ljworld.com/news/2017/jan/24/aclu-seeks-copy-kobachs-proposed-changes-us-electi/>
The American Civil Liberties Union asked a federal court to force Kansas Secretary of State Kris Kobach to turn over proposed changes to the nation’s voter registration law that the conservative Republican was photographed bringing to a meeting in November with Donald Trump.
That draft document — which is partially obscured by Kobach’s left arm and hand in the photograph taken by The Associated Press — is being sought as part of the ACLU’s lawsuit challenging Kansas’ restrictive voter registration law. The ALCU filed its request for the proposed amendments late Monday.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90626&title=%E2%80%9CACLU%20seeks%20copy%20of%20Kobach%E2%80%99s%20proposed%20changes%20to%20U.S.%20election%20law%E2%80%9D>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Big Money’s Other Casualty: Fair Courts”<http://electionlawblog.org/?p=90624>
Posted on January 25, 2017 8:28 am<http://electionlawblog.org/?p=90624> by Rick Hasen<http://electionlawblog.org/?author=3>
Dorothy Samuels and Alicia Bannon for TAP.<http://prospect.org/article/big-money%E2%80%99s-other-casualty-fair-courts>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19>

“Can Our Political Institutions Handle Our Political Divisions?”<http://electionlawblog.org/?p=90622>
Posted on January 25, 2017 8:27 am<http://electionlawblog.org/?p=90622> by Rick Hasen<http://electionlawblog.org/?author=3>
New Lee Drutman report<https://www.newamerica.org/political-reform/policy-papers/can-our-political-institutions-handle-our-political-divisions/> for the New America Foundation:
Executive Summary
The United States is a politically divided nation. These divisions have only grown deeper in the past decade. They are increasingly paralyzing our democratic institutions, which rely on cooperation and compromise to function. They are threatening to tear our country apart.
Divided societies have survived as democracies. But to do so, divided societies require careful attention to the design of their political institutions.
For too long, political reformers have attended to the downstream consequences of division, trying to bridge ever-widening political divides by getting political elites to build relationships and work together across party lines. This paper argues that these efforts may be futile. Instead, we need to attend to the institutional choices that are exacerbating these divides. We may not heal the divisions overnight. But to the extent they exist, we can manage them.
Scholarship on managing divided societies through democratic structures leads to three basic institutional recommendations: a weak executive, a strong legislature elected through proportional representation, and a high degree of federalism. Unfortunately, the U.S. only has one of these features: federalism.
This paper briefly covers each of these three topics, assessing the ways in which our political institutions exacerbate our political divides, and how they could instead mitigate and diffuse our divides.
The recommendation is straightforward. We need to shift the institutional balance of power — away from the executive, and towards the legislature and state and local government, to the greatest extent possible. Fortunately, our existing Constitution allows us to make the necessary changes. It is more a matter of political understanding and political will.
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Posted in political polarization<http://electionlawblog.org/?cat=68>

“Lobbyists expect boom times under Trump”<http://electionlawblog.org/?p=90620>
Posted on January 25, 2017 8:25 am<http://electionlawblog.org/?p=90620> by Rick Hasen<http://electionlawblog.org/?author=3>
The Hill <http://thehill.com/business-a-lobbying/business-a-lobbying/315772-lobbyists-expect-boom-times-under-trump> reports.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90620&title=%E2%80%9CLobbyists%20expect%20boom%20times%20under%20Trump%E2%80%9D>
Posted in lobbying<http://electionlawblog.org/?cat=28>

“Trump Promises ‘Major Investigation’ of Voter Fraud in 2016 Election”<http://electionlawblog.org/?p=90618>
Posted on January 25, 2017 8:09 am<http://electionlawblog.org/?p=90618> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/01/25/us/politics/donald-trump-administration.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0>
Mr. Trump doubled down Wednesday on his fraudulent assertion that millions of illegal immigrants gave Hillary Clinton her 2.8 million-ballot victory in the popular vote, saying he would order a “major investigation” and tighten voting controls.
More on this from me coming soon.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“CNN Slams Trump Over Voter Fraud Claims”<http://electionlawblog.org/?p=90616>
Posted on January 24, 2017 2:46 pm<http://electionlawblog.org/?p=90616> by Rick Hasen<http://electionlawblog.org/?author=3>
Forceful Jake Tapper.<https://politicalwire.com/2017/01/24/cnn-slams-trump-voter-fraud-claims/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90616&title=%E2%80%9CCNN%20Slams%20Trump%20Over%20Voter%20Fraud%20Claims%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“It’s Time to Investigate ‘Voter Fraud’”<http://electionlawblog.org/?p=90614>
Posted on January 24, 2017 2:39 pm<http://electionlawblog.org/?p=90614> by Rick Hasen<http://electionlawblog.org/?author=3>
Andrew Cohen<https://www.brennancenter.org/blog/its-time-to-investigate-voter-fraud>:
To that end, if he’s really serious about learning more about the massive fraud he says occurred, President Trump should create a blue-ribbon presidential commission to study voting rights, voter suppression, and allegations of voter fraud in the 2016 election. The panel should be led by former Supreme Court justices Sandra Day O’Connor, David Souter, and John Paul Stevens– all Republican appointees. The lead investigator of the Commission should be former U.S. Attorney Patrick Fitzgerald<https://en.wikipedia.org/wiki/Patrick_Fitzgerald>— another Republican appointee. Congress should endorse the endeavor.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Sean Spicer just said Trump believes millions voted illegally. Here’s the problem: No one can tell him otherwise.”<http://electionlawblog.org/?p=90612>
Posted on January 24, 2017 1:23 pm<http://electionlawblog.org/?p=90612> by Rick Hasen<http://electionlawblog.org/?author=3>
Greg Sargent<https://www.washingtonpost.com/blogs/plum-line/wp/2017/01/24/sean-spicer-just-said-trump-believes-millions-voted-illegally-heres-the-problem-no-one-can-tell-him-otherwise/?utm_term=.4b5a7cd2759c> for the Plum Line.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90612&title=%E2%80%9CSean%20Spicer%20just%20said%20Trump%20believes%20millions%20voted%20illegally.%20Here%E2%80%99s%20the%20problem%3A%20No%20one%20can%20tell%20him%20otherwise.%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Recidivism Watch: Spicer uses repeatedly debunked citations for Trump’s voter fraud claims”<http://electionlawblog.org/?p=90610>
Posted on January 24, 2017 1:22 pm<http://electionlawblog.org/?p=90610> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports:<https://www.washingtonpost.com/news/fact-checker/wp/2017/01/24/recidivism-watch-spicer-uses-repeatedly-debunked-citations-for-trumps-voter-fraud-claims/?hpid=hp_hp-top-table-main_no-name%3Ahomepage%2Fstory&tid=a_inl&utm_term=.78c09590e78e>
Spicer cited repeatedly debunked research to support Trump’s claim that millions of people voted illegally during the 2016 presidential election. These studies do not support Trump’s Four-Pinocchio claims of “millions” of people voting illegally — as we’ve covered here<https://www.washingtonpost.com/news/fact-checker/wp/2016/11/27/trumps-bogus-claim-that-millions-of-people-voted-illegally-for-hillary-clinton/?tid=a_inl&utm_term=.610dca978501>, here<https://www.washingtonpost.com/news/fact-checker/wp/2016/10/24/no-eric-trump-14-percent-of-noncitizens-are-not-registered-to-vote/?tid=a_inl&utm_term=.86b85e482cca>, here<https://www.washingtonpost.com/news/fact-checker/wp/2016/10/19/fact-checking-two-false-claims-by-trump-alleging-widespread-voter-fraud/?tid=a_inl&utm_term=.443df3a8a093>, here<https://www.washingtonpost.com/news/fact-checker/wp/2016/11/29/trump-camps-repeated-use-of-dubious-sources-on-voter-fraud/?utm_term=.8d601ed962f1> and here<https://www.washingtonpost.com/news/fact-checker/wp/2017/01/24/recidivism-watch-trumps-claim-that-3-5-million-people-voted-illegally-in-the-election/?utm_term=.279a68919461>.
Spicer claimed Trump believes there was widespread voter fraud, based on studies that were presented to him. Then Spicer cited a Pew study that — as we noted<https://www.washingtonpost.com/news/fact-checker/wp/2016/11/29/trump-camps-repeated-use-of-dubious-sources-on-voter-fraud/?utm_term=.8d601ed962f1> before<https://www.washingtonpost.com/news/fact-checker/wp/2016/10/24/no-eric-trump-14-percent-of-noncitizens-are-not-registered-to-vote/?tid=a_inl&utm_term=.86b85e482cca> — does not support this claim. Moreover, Spicer conflated the Pew study with another study that — again<https://www.washingtonpost.com/news/fact-checker/wp/2016/11/29/trump-camps-repeated-use-of-dubious-sources-on-voter-fraud/?utm_term=.8d601ed962f1> — does not support this claim.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Understanding the Adoption of Voter Identification Laws in the American States”<http://electionlawblog.org/?p=90608>
Posted on January 24, 2017 1:10 pm<http://electionlawblog.org/?p=90608> by Rick Hasen<http://electionlawblog.org/?author=3>
Daniel Biggers and Michael Hanmer have written this article<http://journals.sagepub.com/doi/10.1177/1532673X16687266> for American Politics Research.  Here is the abstract:
Recently, many states have reversed the decades-long trend of facilitating ballot access by enacting a wave of laws requesting or requiring identification from registrants before they vote. Identification laws, however, are not an entirely new phenomenon. We offer new theoretical insights regarding how changes in political power influence the adoption of identification laws. In the most extensive analysis to date, we use event history analysis to examine why states adopted a range of identification laws over the past several decades. We consistently find that the propensity to adopt is greatest when control of the governor’s office and legislature switches to Republicans (relationships not previously identified), and that this likelihood increases further as the size of Black and Latino populations in the state expands. We also find that federal legislation in the form of the Help America Vote Act seems to enhance the effects of switches in partisan control.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Donald Trump’s indefensible claims of rampant voter fraud are now White House policy”<http://electionlawblog.org/?p=90606>
Posted on January 24, 2017 1:00 pm<http://electionlawblog.org/?p=90606> by Rick Hasen<http://electionlawblog.org/?author=3>
The Fix:<https://www.washingtonpost.com/news/politics/wp/2017/01/24/donald-trumps-indefensible-claims-of-rampant-voter-fraud-are-now-white-house-policy/?utm_term=.55fc8eb85f42>
On Tuesday, the situation got worse. Press secretary Sean Spicer, asked to defend Trump’s illegal-vote comments, tried to claim that the claims were rooted in evidence.
There are no studies and no evidence that there is widespread voter fraud in general, much less from the 2016 election. (An election, we will remind you, in which a great deal of attention was paid to the possibility of fraud, given Trump’s having raised it before Election Day — probably because he expected to lose.)…
The most telling demonstration that Trump’s numbers and Spicer’s defense are nonsensical, though, came from a follow-up question posed to the press secretary. If millions of people voted illegally, Spicer was asked, wouldn’t that demand an investigation into the integrity of the election? (Such an investigation, of course, might put at risk Trump’s narrow margin of victory.)
“He won fairly,” Spicer said of his boss<https://twitter.com/ddale8/status/823969298959966209>.
Ironically, this, at least, was true.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90606&title=%E2%80%9CDonald%20Trump%E2%80%99s%20indefensible%20claims%20of%20rampant%20voter%20fraud%20are%20now%20White%20House%20policy%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Gov. Cuomo turns to Floyd Abrams for First Amendment Help”<http://electionlawblog.org/?p=90604>
Posted on January 24, 2017 12:56 pm<http://electionlawblog.org/?p=90604> by Rick Hasen<http://electionlawblog.org/?author=3>
Ron Collins blogs<https://concurringopinions.com/archives/2017/01/fan-139-first-amendment-news-gov-cuomo-turns-to-floyd-abrams-for-first-amendment-help.html> at Concurring Opinions:
Yes, it’s true: Floyd Abrams<https://www.cahill.com/professionals/floyd-abrams>, the nation’s preeminent First Amendment lawyer and author of the forthcoming The Soul of the First Amendment<https://www.amazon.com/Soul-First-Amendment-Floyd-Abrams/dp/0300190883/ref=sr_1_1?s=books&ie=UTF8&qid=1485220771&sr=1-1&keywords=The+Soul+of+the+First+Amendment> is defending two government officials against a claim of a First Amendment violation.
The lawsuit<https://echalk-slate-prod.s3.amazonaws.com/private/districts/466/resources/432a78d9-1014-45b4-8f74-fb37b1dfcd0f?AWSAccessKeyId=AKIAJSZKIBPXGFLSZTYQ&Expires=1797180262&response-content-disposition=%3Bfilename%3D%22Filed%2520Complaint%2520on%2520Governors%2520Ethics%2520Law.pdf%22&response-content-type=application%2Fpdf&Signature=f6Oj2VpnJXe2tZqvMzLZzrUkcLM%3D> was brought by Citizens Union<http://www.citizensunion.org/>. It claims that a New York ethics law<http://www.nysl.nysed.gov/libdev/excerpts/exc172.htm> violates First Amendment protections of free speech. It names Gov. Cuomo and state Attorney General Eric Schneiderman as defendants.
According to the New York Daily News,<http://www.nydailynews.com/new-york/gov-cuomo-hires-amendment-attorney-lawsuit-challenging-article-1.2953179> Mr. Abrams is representing the Governor thought it is “unclear how much Abrams and his firm are being paid since no contract has been filed yet with the state controller’s office. A Cuomo spokesman said the details with Abram’s firm are still being worked out.”
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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>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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