[EL] ELB News and Commentary 1/27/17

[Rick Hasen]

“Mike Pence: Trump administration planning ‘full evaluation’ of voter fraud”<http://electionlawblog.org/?p=90713>
Posted on January 26, 2017 9:08 pm<http://electionlawblog.org/?p=90713> by Rick Hasen<http://electionlawblog.org/?author=3>

Ben Jacobs and Sam Levin <https://www.theguardian.com/us-news/2017/jan/26/trump-administration-voter-fraud-investigation-mike-pence> in The Guardian:

Vice-President Mike Pence<https://www.theguardian.com/us-news/mike-pence> said that the Trump administration will “initiate a full evaluation of voting rolls in the country and the overall integrity of our voting system in the wake of this past election”, according to audio obtained by the Guardian.
 Trump has pledged an investigation of voter fraud in the wake of his unfounded claims that between 3 million and 5 million fraudulent votes were cast in the 2016 election. In response to a question from Congressman Mo Brooks of Alabama, who described Trump as being “spot on” on the issue, Pence described the investigation that the administration is planning on undertaking. The vice-president, who focused on a Pew Research Center report often cited by Trump that referenced issues with faulty voter registrations, pledged to members of Congress: “We’ll be looking at ways to work with you and follow the facts and see where the facts go.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Voter fraud probe traced back to ex-MS welfare head”<http://electionlawblog.org/?p=90711>
Posted on January 26, 2017 6:27 pm<http://electionlawblog.org/?p=90711> by Rick Hasen<http://electionlawblog.org/?author=3>

Clarion Ledger<http://www.clarionledger.com/story/news/2017/01/26/voter-fraud-probe-traced-back-to-ex-mississippi-welfare-head/97094430/>:

The former Mississippi official whose tweet may have inspired President Trump to order a “major investigation” into voter fraud in the 2016 presidential election says he has been receiving death threats.

“There are people who want to kill me,” ex-welfare head Gregg Phillips told The Clarion-Ledger. “It’s insane.”

PolitiFact and others have traced the original claim regarding fraud on Election Day to Phillips, who in the past has been accused of profiting from connections he made while serving in government — something he has denied.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Trump delays signing directive on voter fraud”<http://electionlawblog.org/?p=90709>
Posted on January 26, 2017 6:11 pm<http://electionlawblog.org/?p=90709> by Rick Hasen<http://electionlawblog.org/?author=3>

The Hill:<http://thehill.com/homenews/administration/316410-trump-delays-signing-directive-on-voter-fraud>
President Trump scrapped plans on Thursday to a sign directive to move forward with an investigation into his unsubstantiated claims of widespread voter fraud.
White House press secretary Sean Spicer told reporters the signing was being postponed because the president was running behind schedule.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Trump Continues Unsubstantiated Claims Over Voter Fraud (Audio)”<http://electionlawblog.org/?p=90707>
Posted on January 26, 2017 5:31 pm<http://electionlawblog.org/?p=90707> by Rick Hasen<http://electionlawblog.org/?author=3>

Nate Persily and I were on Bloomberg Law Radio<https://www.bloomberg.com/news/audio/2017-01-26/trump-continues-unsubstantiated-claims-over-voter-fraud-audio> with June Grasso and Greg Stohr.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Voting Fraud Inquiry? The Investigators Got Burned Last Time”<http://electionlawblog.org/?p=90705>
Posted on January 26, 2017 5:26 pm<http://electionlawblog.org/?p=90705> by Rick Hasen<http://electionlawblog.org/?author=3>

Michael Waldman<https://www.nytimes.com/2017/01/26/opinion/voting-fraud-inquiry-the-investigators-got-burned-last-time.html?smid=tw-nytopinion&smtyp=cur> NYT oped looks back on the Bush DOJ U.S. attorneys scandal and related voter fraud investigation.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


This Hit on Don McGahn Using Words from Another’s Brief Doesn’t Seem Fair to McGahn<http://electionlawblog.org/?p=90703>
Posted on January 26, 2017 5:25 pm<http://electionlawblog.org/?p=90703> by Rick Hasen<http://electionlawblog.org/?author=3>

Dana Milbank<https://www.washingtonpost.com/opinions/yet-another-trump-official-has-recycled-somebody-elses-words/2017/01/26/ea2412ec-e3f3-11e6-a453-19ec4b3d09ba_story.html?postshare=6241485479340163&tid=ss_tw&utm_term=.4e52551e3eb8> quotes Andrew Herman, the lawyer whose brief was copied, saying “this is not a case of plagiarism” but the “product of a joint defense between the parties.”

That should be the end of the story.

No
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Steve Klein Defends South Dakota Reversing Voters on Ethics Measure<http://electionlawblog.org/?p=90701>
Posted on January 26, 2017 1:22 pm<http://electionlawblog.org/?p=90701> by Rick Hasen<http://electionlawblog.org/?author=3>

Here.<https://www.pillaroflaw.org/index.php/blog/entry/south-dakota-s-measure-22-and-the-dangers-of-democracy>

If in fact the measure is unconstitutional (I haven’t looked yet and have no opinion on that), the appropriate thing to do is to challenge it in court. Not to have those who are completely self-interested decide reverse a vote of the people.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Voter ID Lawsuits Live on Despite Likely Trump Policy Shift”<http://electionlawblog.org/?p=90699>
Posted on January 26, 2017 1:15 pm<http://electionlawblog.org/?p=90699> by Rick Hasen<http://electionlawblog.org/?author=3>

AP:<http://hosted.ap.org/dynamic/stories/U/US_VOTER_ID_LAWSUITS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2017-01-26-07-19-11>

Federal lawsuits challenging voter ID requirements in Texas and North Carolina won’t just disappear, even if Justice Department lawyers who once argued against the laws effectively switch sides to advocate for them under President Donald Trump’s administration, civil rights lawyers say.

What Trump’s Justice Department will do isn’t yet known, but Trump’s comments on the campaign trail and since taking office suggest the agency will re-examine its strategy and may support the two states’ toughest-in-the-nation requirements that voters show picture identification at the polls. President Barack Obama’s Justice Department launched high-profile legal challenges against those laws, arguing that the requirements were unnecessary and unconstitutional.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Pro Golfer Denies Telling Trump About Voter Fraud”<http://electionlawblog.org/?p=90697>
Posted on January 26, 2017 11:00 am<http://electionlawblog.org/?p=90697> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/01/26/us/politics/donald-trump-administration.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news>

Gathered with the top leaders of Congress, President Trump on Monday apparently relayed the story in all seriousness<https://www.nytimes.com/2017/01/25/us/politics/trump-bernhard-langer-voting-fraud.html?ref=politics>: pro golfer Bernhard Langer had told him a story that really stuck with him.

As Mr. Trump relayed it, Mr. Langer had been in line to vote in Florida when he was told by an official that he could not cast a ballot. But people all around him who looked far more suspect — Mr. Trump tossed out the names of Latin American countries that the voters might have come from — were allowed to draw up provisional ballots.

There was a problem with the story: Mr. Langer is a German citizen.

Now Mr. Langer says he never talked to Mr. Trump, that he was told the story by a friend, then told the story to a friend who told it to someone with ties to the White House — who apparently told it to Mr. Trump. He certainly never tried to vote in Florida.

So, if the anecdote was important to Mr. Trump’s erroneous belief that millions of illegal immigrants gave Hillary Clinton her 2.8 million-ballot win in the popular vote, it was based on fourth-hand information.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Illegal Voting Claims, and Why They Don’t Hold Up”<http://electionlawblog.org/?p=90695>
Posted on January 26, 2017 10:57 am<http://electionlawblog.org/?p=90695> by Rick Hasen<http://electionlawblog.org/?author=3>

Nate Cohn,<https://www.nytimes.com/2017/01/26/upshot/illegal-voting-claims-and-why-they-dont-hold-up.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news> for NYT’s The UpShot.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Tammy Patrick Does Exit Interview of Maricopa County Recorder Helen Purcell for Electionline<http://electionlawblog.org/?p=90693>
Posted on January 26, 2017 10:30 am<http://electionlawblog.org/?p=90693> by Rick Hasen<http://electionlawblog.org/?author=3>

Read here.<http://www.electionline.org/index.php/electionline-weekly>
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Posted in election administration<http://electionlawblog.org/?cat=18>, election law biz<http://electionlawblog.org/?cat=51>


Trump Executive Order on Voter ID Investigation Apparently Imminent<http://electionlawblog.org/?p=90691>
Posted on January 26, 2017 8:56 am<http://electionlawblog.org/?p=90691> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters:<http://live.reuters.com/Event/Election_2016?utm_source=twitter&utm_medium=Social> “Trump will sign executive order Thursday about voter fraud investigation – White House”

As we await the details, yesterday over at Slate I set some markers<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> on what a fair investigation would actually look like.

I’m not optimistic.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“South Dakota Legislators Seek Hasty Repeal of Ethics Law Voters Passed”<http://electionlawblog.org/?p=90689>
Posted on January 26, 2017 8:54 am<http://electionlawblog.org/?p=90689> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/01/25/us/south-dakota-repeal-ethics-law-vote.html?smprod=nytcore-iphone&smid=nytcore-iphone-share&_r=2>

Stung by scandal and rebelling against a state government known for its resistance to public scrutiny<https://www.publicintegrity.org/2015/11/09/18522/south-dakota-gets-f-grade-2015-state-integrity-investigation>, South Dakota voters narrowly approved a ballot measure<http://www.nytimes.com/elections/results/south-dakota-ballot-measure-22-campaign-finance-overhaul> in November to impose ethics oversight and campaign finance restrictions aimed at cleaning up the capitol in Pierre.

But the state’s overwhelmingly Republican legislature is racing this week to set aside that new law by using its emergency powers, prompting cries of protest from voters and critics, who are calling the hasty efforts an antidemocratic power grab.

In effect, they say, the state’s voters are being told that their votes don’t matter.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Trump’s Lies Pave the Way for an Assault on Voting Rights”<http://electionlawblog.org/?p=90687>
Posted on January 26, 2017 7:58 am<http://electionlawblog.org/?p=90687> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read Dale Ho NYT oped:<https://www.nytimes.com/2017/01/26/opinion/trumps-lies-pave-the-way-for-an-assault-on-voting-rights.html?smid=tw-share&_r=0>

So why would the president make this easily debunked claim that there was widespread voter fraud?

First, he faces a legitimacy problem. I’m not talking about rigged or hacked voting machines. The Rust Belt recounts show only that our voting systems score high on integrity. Sure, voting machines can always use improvements, and meltdowns have happened (see Florida, 2000). But, despite unsubstantiated concerns raised by Jill Stein and others, there is no evidence of large-scale fraud or miscounting — certainly nothing that could tip multiple states by tens of thousands of votes. The truth is that Mr. Trump won critical battleground states and the Electoral College with 304 votes. And that’s why he’s the president….

Second, there’s a more insidious longer-term purpose here as well. Propaganda about illegal voting has been used — throughout history and in modern times — to justify unnecessary restrictions on voting<https://www.nytimes.com/2016/11/04/opinion/the-strange-career-of-the-voter-fraud-myth.html>. Unpopular incumbents like Mr. Trump can help their odds of re-election with measures that make it harder for people to vote.

Judging by the people with whom the president surrounds himself, such restrictions may be in the cards, starting with a clearer path for states to enact restrictive identification requirements. The president’s nominee for attorney general, Jeff Sessions, was infamous in the 1980s for a failed voter fraud prosecution<https://www.nytimes.com/2017/01/09/magazine/the-voter-fraud-case-jeff-sessions-lost-and-cant-escape.html> against three civil rights activists, one of whom was a close aide of the Rev. Dr. Martin Luther King Jr. That incident helped doom his nomination for a federal judgeship.

And just a few days ago, Mr. Sessions declined to commit to continuing the Department of Justice’s litigation against voter suppression laws in Texas and North Carolina — the latter of which was described by the United States Court of Appeals for the Fourth Circuit as targeting African-American voters “with almost surgical precision.” Ominously, the Justice Department recently asked for a postponement of a hearing in the Texas case, which might herald a switch in sides — and a transformation of the department from a reliable defender of voting rights into an enabler of state-mandated voting restrictions.

The next step might be forcing voters to submit documents proving that they’re citizens. The source of Mr. Trump’s professed beliefs about illegal voting is apparently Kris Kobach, the Kansas secretary of state, who supported a law that has prevented tens of thousands of Kansans from registering to vote. Last year, in a case brought by the A.C.L.U., the United States Court of Appeals for the 10th Circuit blocked the law, ruling that Kansas can’t require citizenship papers from voters who register at the D.M.V. In an opinion by a George W. Bush appointee, Judge Jerome Holmes, the court warned that the Kansas law risked “mass denial of a fundamental constitutional right,” and called Mr. Kobach’s assertions about widespread noncitizen voting “pure speculation.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Frustrated Republicans press McConnell to kill the filibuster”<http://electionlawblog.org/?p=90685>
Posted on January 26, 2017 7:15 am<http://electionlawblog.org/?p=90685> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports.<http://www.politico.com/story/2017/01/senate-house-filibuster-mcconnell-234192>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Oral Argument in WI Voter ID Appeals Before 7th Circuit Reset for Feb. 24<http://electionlawblog.org/?p=90683>
Posted on January 26, 2017 7:12 am<http://electionlawblog.org/?p=90683> by Rick Hasen<http://electionlawblog.org/?author=3>

The court postponed the original January date without explanation.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Bob Bauer, of Presidential Commission on Election Administration, Skeptical of Trump Call for Voter Fraud Investigation<http://electionlawblog.org/?p=90681>
Posted on January 26, 2017 7:08 am<http://electionlawblog.org/?p=90681> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read:<http://www.moresoftmoneyhardlaw.com/2017/01/president-trumps-voter-fraud-investigation/>

The second of these interests is his own reelection. Until we learn otherwise, Mr. Trump will be a candidate for re-election in 2020. Now, as president, he intends to order up some investigation with implications for this candidacy. Critical commentators have touched on this concern to some degree, warning that this investigation might be intended to feed into the broader GOP initiative on voter ID<http://talkingpointsmemo.com/livewire/sean-spicer-voter-id-laws> and other restrictions on the franchise. The investigation would serve to spur proposals for further additional restrictions that, while unwarranted as policy but designed to burden voters, could discourage or impede voting primarily in communities with high Democratic support. This is a possible, perhaps even a likely, outcome, and it both deeply objectionable and sure to spark a new round of voting rights litigation. But the context in which the President has raised the issue is not his party’s programmatic attention to voter fraud, but his election, the 2016 election, and his conviction that it cost him millions of votes….

Rick Hasen lays out the requirements<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/trump_s_voting_fraud_investigation_is_a_great_idea.html> for a new Commission that would look fairly and therefore credibly into this claim of fraud. He is highly skeptical that Mr. Trump would establish a Commission that met these standards. But he does not entirely write off the possibility that with appropriate bipartisan leadership and expert staffing, and with a mandate to examine both illegal voting and vote suppression produced by unjustified “anti-fraud” measures, “this call for a major investigation, if done fairly, could finally put the issue to bed.”  But the problem with any inquiry set up by this President is the source –a candidate for office, with clear political interests and a repeatedly stated, unshakeable belief in what the conclusion should be. It is difficult to see who, with the credibility and expertise needed for this enterprise, would–or should–agree to participate under these conditions.

A popular explanation, tending to minimize the ethical issue, is that this is all a matter of presidential personality or psychology. But the ethical issue becomes unavoidable if the original impulse, if that is what it was, is now replaced by an investigation; if the tweet now turns into an Executive Order<http://www.cnn.com/2017/01/25/politics/trump-calls-for-major-investigation-into-voter-fraud/> or other official directive.

The recurrent emphasis on the President’s volatility, while a reasonable enough concern, allows attention drift too far from a core problem: abuse of official position. Presidents are skilled politicians who keep close watch on their political well-being as they formulate policy and make decisions, but there are limits, and crucial are those constraints having to do with the misuse of official authority to improve their electoral prospects.

The President is entitled, of course, to “believe what he believes.” He is free to make the case for an inquiry into the voting fraud. But once he has made it, he should stand aside and leave the choice of proceeding to others, to experts and election officials, outside his Administration. The President has been heard on this subject. The best course for him now is the functional equivalent of recusal.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Republicans in Minnesota, Virginia propose changes to their electoral college rules”<http://electionlawblog.org/?p=90679>
Posted on January 26, 2017 7:04 am<http://electionlawblog.org/?p=90679> by Rick Hasen<http://electionlawblog.org/?author=3>

Weigel:<https://www.washingtonpost.com/news/post-politics/wp/2017/01/25/republicans-in-minnesota-virginia-propose-changes-to-their-electoral-college-rules/?utm_term=.1be0a1553516>

Republicans in two swing states lost by President Trump in 2016 have introduced legislation that would have benefited Trump in the 2016 election, by splitting up their electoral votes by congressional districts instead of awarding them statewide.

In Minnesota, Speaker of the House Kurt Daudt has introduced a bill<https://www.revisor.mn.gov/bills/text.php?number=HF0406&version=latest&session=90&session_number=0&session_year=2017> that would assign one electoral vote to each of the state’s districts, and two to the winner of the statewide popular vote. In Virginia, Rep. Mark Cole (R-Fredericksburg) has introduced<http://wtkr.com/2017/01/24/bill-would-end-virginias-winner-take-all-electoral-vote-system/> identical legislation, and passed it through the Elections Subcommittee on a party-line vote.

If active in 2016, the bills would have handed a total of 11 electoral votes from Hillary Clinton to Trump, in states won by Clinton. Trump won six of Virginia’s 13 districts, and five of Minnesota’s eight districts. In Minnesota, that would have meant a 5-5 electoral vote tie for Trump; nationwide, it would have bumped his electoral vote total to 317.
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Posted in electoral college<http://electionlawblog.org/?cat=44>


“Analysis: Donald Trump fraud search could become witch hunt”<http://electionlawblog.org/?p=90677>
Posted on January 26, 2017 7:03 am<http://electionlawblog.org/?p=90677> by Rick Hasen<http://electionlawblog.org/?author=3>

Kimberly Atkins<http://www.bostonherald.com/news/us_politics/2017/01/analysis_donald_trump_fraud_search_could_become_witch_hunt> in the Boston Herald.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


--
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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