[EL] ELB News and Commentary 7/4/17

[Rick Hasen]

“What Is Kris Kobach Up To?”<http://electionlawblog.org/?p=93545>
Posted on July 3, 2017 9:46 pm<http://electionlawblog.org/?p=93545> by Rick Hasen<http://electionlawblog.org/?author=3>
Charles Stewart <http://www.politico.com/magazine/story/2017/07/03/what-is-kris-kobach-up-to-215332> for Politico:
If Kobach’s goal was to create a super crosscheck program, he would have been disappointed, even if every state had complied. His letter requests data that are ill-suited for accurate matching. Not only are the matching methods that are likely to be employed poorly suited to producing accurate results, the Department of Homeland Security immigration dataset, which might provide some information about the presence of noncitizens on voter rolls, can’t be searched by name.
Therefore, the data requested by the commission will leave unsatisfied anyone who has a serious interest in how much double-voting or noncitizen voting there actually is in the United States. Most likely, the results of low-quality matches using the voter files that do arrive will significantly overstate the amount of double voting and voting by noncitizens. If a poor match occurs, the list maintenance programs of the states will be unfairly impugned, lowering the confidence of voters for no good reason. This is why no one I have talked to who runs elections, Democrat or Republican, is happy with Kobach’s request….
Kobach is a controversial figure in election administration, which is illustrated by the negative reactions from his colleagues on both sides of the aisle to his request. This negative reaction is not evidence, as Trump’s recent tweet<https://twitter.com/realDonaldTrump/status/881137079958241280> suggests, that the states are trying to hide something. Quite the opposite. There’s a large political middle in the election administration community that recognizes the value of database matching for the purpose of maintaining the integrity of the voter registration system.
Database matching protocols can be designed so that they comply with the safeguards of the National Voter Registration Act, thus keeping the path to the ballot box clear for all eligible voters while closing the door to ineligibles. The process can be effective if good data, good protocols, and attention to privacy are accounted for from the start. The election administration community will be watching carefully to see if the Pence Commission can learn from its stumble out of the gate.
 …
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“California’s Far North Deplores ‘Tyranny’ of the Urban Majority”<http://electionlawblog.org/?p=93543>
Posted on July 3, 2017 9:42 pm<http://electionlawblog.org/?p=93543> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/07/02/us/california-far-north-identity-conservative.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=9&pgtype=sectionfront>
However, two recent initiatives have channeled the deep feeling of underrepresentation.
In May, a loose coalition of northern activists and residents, including an Indian tribe and the small northern city of Fort Jones, joined forces to file a federal lawsuit arguing that California’s legislative system is unconstitutional because the Legislature has not expanded with the population.
The suit, filed against the California secretary of state, Alex Padilla, who oversees election laws in California, calls for an increase in the membership of the bicameral Legislature, which since 1862 has capped the number of lawmakers at 120.
The lawsuit argues that California now has the least representative system of any state in the nation. Each State Assembly member represents nearly 500,000 people and each state senator twice that…..
The second initiative is a proposed amendment to California’s Constitution that would change the method for dividing districts of the Legislature’s upper house, the Senate. Instead of being based on population as they are now, Senate seats would be tied to regions, giving a larger voice to rural areas in the same way the federal Senate does.
“I am asking the people with power to give up some of their power in order to allow all the voices in the state to have a little bit more strength than they do right now,” said Mr. Gallagher, the assemblyman.
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Posted in voting<http://electionlawblog.org/?cat=31>


White House Responds to State Resistance to Pence-Kobach Demand for Data<http://electionlawblog.org/?p=93541>
Posted on July 3, 2017 9:34 pm<http://electionlawblog.org/?p=93541> by Rick Hasen<http://electionlawblog.org/?author=3>
Mic:<https://mic.com/articles/181413/maryland-official-abruptly-quits-donald-trumps-controversial-voter-fraud-panel-report-said#.sav5INdyc>
Asked for comment about the recent turmoil involving the commission, a White House spokesperson responded late Monday night: “President Trump has charged this commission with producing a set of recommendations to increase the American people’s confidence in our election system.”
The spokesperson continued, “The Commission has asked for voter rolls from publicly available data from all fifty states and the District of Columbia which can be submitted to federally secure systems. This is the beginning of a fact finding process that will help ensure the purity and transparency of our electoral process.”
Failure to comply with the request, the spokesperson said, “at a minimum diminishes the process that will secure the sanctity of the individual vote and our democracy.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Happy Fourth of July! Show Us Your Papers”<http://electionlawblog.org/?p=93538>
Posted on July 3, 2017 7:18 pm<http://electionlawblog.org/?p=93538> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT editorial:<https://www.nytimes.com/2017/07/03/opinion/voter-fraud-data-kris-kobach.html>
The better question is what Mr. Trump and his allies so desperately hope to find. Remember that the commission was reverse-engineered to provide a veneer of legitimacy<https://www.nytimes.com/2017/05/15/opinion/trump-voter-fraud-commission.html> to Mr. Trump’s bogus claims that millions of noncitizens voted in 2016 — his explanation for losing the popular vote to Hillary Clinton by almost three million. (One would think that sitting in the Oval Office might have eased his pain.) But the circumstances of its creation are secondary to its real goal — to make voting harder for millions of Americans, on the understanding that Republicans win more elections when fewer people vote. According to the election-law expert Rick Hasen, the commission will probably aim<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/donald_trump_s_voter_fraud_commission_is_itself_an_enormous_fraud.html?wpsrc=sh_all_dt_tw_top> to roll back parts of the National Voter Registration Act of 1993, also known as the motor-voter law, which has registered millions of voters.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Trump’s Voter Suppression Efforts Have Begun”<http://electionlawblog.org/?p=93536>
Posted on July 3, 2017 7:13 pm<http://electionlawblog.org/?p=93536> by Rick Hasen<http://electionlawblog.org/?author=3>
Great Dale Ho NYT oped:<ttps://www.nytimes.com/2017/07/03/opinion/trumps-voter-suppression-efforts.html>
There are obvious data privacy concerns. Digital security experts have called<http://www.politico.com/story/2017/07/01/trump-voter-fraud-panel-hackers-240168> the plan a gold mine for hackers. Mr. Kobach’s letter says the data will be held on a “secure FTP site,” but offers no details. Mr. Kobach himself appears to be backtracking<http://www.kansascity.com/news/politics-government/article159113369.html>, recently saying that, notwithstanding his request to other states, he will not be giving Kansas voters’ Social Security information to his own commission.
More important, it’s obvious that the commission collecting this information is intended to sell President Trump’s lie that he “won” the popular vote (once you deduct the millions of supposedly illegal votes, of course).
We know this because Mr. Kobach, the de facto head of the commission, is a champion<http://www.kansascity.com/news/politics-government/article117957143.html#storylink=cpy> of that lie: “I think the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin between him and Hillary Clinton,” he told reporters last fall.
This commission is not meant to ensure that America’s voter rolls are accurate. It is meant to disenfranchise voters.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


Without Explanation, Luis Borunda Quits Pence-Kobach Fraud Commission [Corrected]<http://electionlawblog.org/?p=93533>
Posted on July 3, 2017 7:09 pm<http://electionlawblog.org/?p=93533> by Rick Hasen<http://electionlawblog.org/?author=3>
Baltimore Sun:<http://www.baltimoresun.com/news/maryland/politics/bs-md-borunda-resigns-trump-20170703-story.html>
Maryland’s deputy Secretary of State has resigned from a controversial Trump<http://www.baltimoresun.com/topic/politics-government/donald-trump-PEBSL000163-topic.html> administration panel probing alleged voter fraud in last year’s presidential election….Borunda did not respond to a request for comment.
Correction: The initial headline of this post indicated that Borunda is a Democrat.  I based that on this report<https://thinkprogress.org/fraud-commission-rhodes-bf8cd04daec4>. However, there are other indications he is a Republican<http://www.baltimoresun.com/news/maryland/politics/bs-md-trump-borunda-elections-20170628-story.html>. Faced with the uncertainty, I’ve removed the party information in the headline.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


Former Wisconsin Senator Tells ProPublica No Sign of Voter Fraud to Support Strict Voter ID Laws<http://electionlawblog.org/?p=93531>
Posted on July 3, 2017 2:47 pm<http://electionlawblog.org/?p=93531> by Rick Hasen<http://electionlawblog.org/?author=3>
ProPublica interview<https://www.propublica.org/article/a-wisconsin-republican-looks-back-with-regret-at-voter-id-and-redistricting> with former WI legislator Dale Schultz:
The Republicans pushing the voter ID effort cited voter fraud as a concern and a reason to tighten voting rules and requirements. Did anyone ever show you compelling evidence of that?
No, in fact, quite the opposite. Some of the most conservative people in our caucus actually took the time to involve themselves in election-watching and came back and told other caucus members that, “I’m sorry, I didn’t see it.”
In terms of voting laws, look, I don’t have a fundamental problem with having to show a photo ID in order to vote, but what I do have a problem with are the severe restrictions on what kind of photo ID is allowed and also using these laws to suppress the votes of specific groups.
You need to understand, I come from the old school of the “Institution of the Senate.” When I was coming up through the ranks, and even when I was majority leader, I put great stock and respect into the chairmanship system. When you were given a chair of a committee, you were expected to put the good of the Senate above all else. So when the chair of the Senate elections committee says there’s a problem with voter fraud in the state, and the committee passes a bill out, you take them at their word.
But that’s on me.
Anyway, I ultimately ordered my staff to launch our own investigation and come up with three concrete examples of voter fraud in Wisconsin. Well, guess what? They couldn’t do it, and you need to understand the time, I had graduates from the University of Wisconsin journalism school on staff who’d worked for national publications. But we did come up with two examples. One was a Republican legislative staffer who’d voted in the Madison area as well as back in her hometown in the same election. The other was the estranged wife of a Republican. That’s it, and both examples were on the Republican side.
Did you ever raise the lack of evidence with your Republican colleagues?
Our caucuses were quite raucous. Our meetings and how we dealt with one another was blunt.
I asked my colleagues to show me three specific examples, and all I got was a bunch of hand-wringing and drama-filled speeches about the “buses of Democrats being brought up from Chicago.” I said, “Show me where that was ever prosecuted or even charges brought.” It was crickets. Nobody could give me an answer, and that was both an eye-opening and sad moment for me because I think it finally hit me that time-honored tradition of the “Institution of the Senate” was all but dead….
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


Maine Secretary of State, Democrat on Pence-Kobach “Election Integrity” Commission, Won’t Turn Over Voter Data to Kobach<http://electionlawblog.org/?p=93529>
Posted on July 3, 2017 1:49 pm<http://electionlawblog.org/?p=93529> by Rick Hasen<http://electionlawblog.org/?author=3>
Letter<https://twitter.com/AriBerman/status/881977404339650560> (via Ari Berman).
See my earlier Commentary: Dunlap badly mistaken in agreeing to serve on Trump voter fraud panel<http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Lawyers’ Committee for Civil Rights Under Law Files Hatch Act Complaint Against Kris Kobach”<http://electionlawblog.org/?p=93527>
Posted on July 3, 2017 1:38 pm<http://electionlawblog.org/?p=93527> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:
 Today, the Lawyers’ Committee for Civil Rights Under Law filed a formal Hatch Act Complaint <https://www.scribd.com/document/352832809/Hatch-Act-Letter-With-Exhibits-7-3-17> against Kris Kobach who appears to have violated the Hatch Act in connection with his role as Vice Chair of the Presidential Advisory Commission on Election Integrity.  Kobach, who recently announced his candidacy for the 2018 Kansas gubernatorial election, has repeatedly exploited his Commission role to promote his candidacy and to solicit campaign contributions. Some of these actions took place while Mr. Kobach appeared in his official capacity as a representative of the “Election Integrity Commission”.
“Kris Kobach appears to be using his official role as head of the so-called Election Integrity Commission to promote his candidacy for Governor of Kansas,” said Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. “The Hatch Act’s central purpose is to prevent federal employees from using their official position for electoral purposes.  We deem the President’s Election Integrity Commission to be a baseless tool to promote voter suppression and Mr. Kobach’s unlawful abuse of his role as head of the Commission for partisan ends only underscores the illegitimacy of the Commission itself.  The separation of official and campaign business is critical to ensuring that partisanship does not infect official government business.”
The Hatch Act prohibits any executive branch employee from “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.” Kris Kobach, a special government employee, is subject to the Hatch Act because of his role with the Commission.  While SGEs, unlike full-time employees, can run for partisan political office, they must maintain strict separation between their candidacy and their federal government service.  Mr. Kobach appears to have violated the Hatch Act on multiple occasions.  Kobach prominently used his position as Vice Chair of the Commission to promote his candidacy and to solicit campaign funds.
“A Presidential Commission that could greatly affect our Nation’s electoral system must operate free of partisan influence or ulterior motives.  By exploiting his Commission role to promote his candidacy for Governor, Mr. Kobach has raised serious doubt as to both,” said Daniel Jacobson, Associate, Arnold & Porter Kaye Scholer LLP.
Instances in which Mr. Kobach took action that may have violated the Hatch Act include the following:
Mr. Kobach promoted his June 30 interviews with Fox News and MSNBC—in which he was indisputably appearing as a representative of the Commission—on his Twitter page in advance. He then provided summaries and video of the Fox News interview on his Twitter and Facebook pages, as well as on his campaign website, shortly after the interview aired.  In so doing, Mr. Kobach made clear that those appearances while acting for the Commission were also in furtherance of his campaign.
The homepage of Mr. Kobach’s campaign website includes two television interviews that Mr. Kobach conducted on Fox News and MSNBC on June 30, 2017, both of which focused entirely on Mr. Kobach’s work on the Commission.
The “About” page of the campaign website further highlights Mr. Kobach’s role on the Commission, stating that “President Trump knows there is no greater leader on these issues, which is why he named Kris to serve as the Vice Chair of the Presidential Commission on Election Integrity.”
The “News” page of the website links to three news stories, each of which centers on Mr. Kobach’s work on the Commission. There is a “Contribute” button immediately to the right of the stories, and immediately below that Contribute button the page displays the most recent post on Mr. Kobach’s Facebook page (which as of July 1, was his June 30 Fox News interview discussing the work of the Commission).
 Mr. Kobach’s Twitter profile states that the page is “Paid for by Kansas for Kobach,” and his Facebook page displays his campaign logo.  The Twitter and Facebook pages collectively contain at least 28 different posts in which Mr. Kobach has described his work on the Commission.  These include 3 Twitter posts on June 30 promoting or recapping Mr. Kobach’s interviews on Fox News and MSNBC that same day, and a June 30 Facebook post embedding video of the Fox News interview.
Mr. Kobach has also described his role on the Commission in campaign appearances.  For instance, Mr. Kobach appeared on a local “let’s have a beer and talk” television segment the day he launched his campaign.  In the course of the interview, he referenced his position as Vice Chair of the Commission and described the work he expected the Commission to perform.
The Lawyers’ Committee for Civil Rights Under Law filed a formal complaint today with the Office of Special Counsel and will continue to closely examine and scrutinize the activities of the Election Integrity Commission.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, The Voting Wars<http://electionlawblog.org/?cat=60>


Connecticut SOS Changes Her Mind About Cooperating with Pence-Kobach Commission<http://electionlawblog.org/?p=93524>
Posted on July 3, 2017 9:35 am<http://electionlawblog.org/?p=93524> by Rick Hasen<http://electionlawblog.org/?author=3>
Celeste Katz:<https://mic.com/articles/181347/connecticuts-secretary-of-state-has-a-few-questions-about-donald-trumps-voter-fraud-panel?utm_campaign=ckatz+twitter&utm_content=buffer3f57b&utm_medium=social&utm_source=twitter.com#.XIlOsWLpp>
When President Donald Trump’s new Commission on Election Integrity<https://mic.com/articles/180997/as-white-house-election-integrity-panel-begins-work-civil-rights-watchdogs-set-up-a-hotline#.Mg6ke0OYF> sent out a request<https://www.scribd.com/document/352564920/Correspondence-PEIC-Letter-to-North-Carolina-06282017> for reams of personal information about voters, Denise Merrill was skeptical — but tentatively cooperative.
The Connecticut secretary of state released a statement<http://www.sots.ct.gov/sots/lib/sots/releases/2017/06-29-2017_-kobach_commission.pdf> saying that “in the spirit of transparency,” she would release publicly available information, while still “ensuring that the privacy of voters is honored by withholding protected data.”
But that very issue of transparency — specifically, questions about how the commission intends to use the data — led Merrill to inform the panel she won’t be playing along after all.
“I am in receipt of your request for information and have concluded that fulfilling your request is not in the best interest of Connecticut residents,” Merrill wrote to her Kansas counterpart, Kris Kobach, who’s chairing the panel with Vice President Mike Pence<https://mic.com/topic/mike-pence>.
Merrill’s letter<https://www.scribd.com/document/352805756/Merrill-Response-to-Kris-Kobach-Presidential-Advisory-Commission-on-Election-Integrity> is dated July 2, the day after Trump questioned what states are “trying to hide” by refusing to hand over information to the “very distinguished VOTER FRAUD PANEL.”
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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
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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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