[EL] ELB News and Commentary 7/11/17

Tue Jul 11 09:11:26 PDT 2017

“Voting rights battle in Pasadena could have Texas-wide legal ramifications”<http://electionlawblog.org/?p=93750>
Posted on July 11, 2017 9:09 am<http://electionlawblog.org/?p=93750> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/07/11/voting-rights-battle-pasadena-could-come-wide-legal-ramifications/>
And that’s where the case comes back to Wheeler’s name.
Heath points out that four candidates preferred by Hispanic voters prevailed in the 2015 elections — the only contests held under the 6-2 map. Among them was Wheeler, who was re-elected in a district that’s not majority-minority but is still “effective for Hispanics,” Heath said.
“That’s 50 percent (of the council seats) and Hispanics made up about 50 percent of the citizen voting-age population, so that was proportional representation,” Heath added.
But Nina Perales of the Mexican American Legal Defense Fund — the attorney representing the Hispanic plaintiffs against the city — has repeatedly pointed out in court that Wheeler was assisted in his 2015 victory by “special circumstances” — his incumbency and his last name. Meanwhile, the number of Hispanic-majority districts was reduced to three under the 6-2 map.
The case could reverberate beyond Pasadena’s city limits. Legal experts contend that a decision by the 5th Circuit could guide other courts<http://lyldenlawnews.com/2017/04/13/new-threat-rising-voting-rights-act/> around the country that are considering similar voting rights cases.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Meet the Vote Suppressors and Conspiracy Theorists on Trump’s ‘Election Integrity’ Commission”<http://electionlawblog.org/?p=93748>
Posted on July 11, 2017 9:05 am<http://electionlawblog.org/?p=93748> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Berman:<https://www.thenation.com/article/meet-the-liars-and-conspiracy-theorists-on-trumps-election-integrity-commission/>
The likes of Kobach, Blackwell, von Spakovsky, and Adams have for years spread debunked lies about voter fraud<http://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth> and have championed efforts to make it harder to vote<https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html?_r=0>, often in violation of federal law. Putting them on an “election integrity” commission is as bad of an idea as Trump forming a “cybersecurity unit<http://www.cnn.com/2017/07/10/politics/trump-ends-cyber-security-plan-putin/index.html>” with Vladimir Putin.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Secretaries of State pass resolution supporting state rights to oversee elections”<http://electionlawblog.org/?p=93746>
Posted on July 11, 2017 9:00 am<http://electionlawblog.org/?p=93746> by Rick Hasen<http://electionlawblog.org/?author=3>
WDRB:<http://www.wdrb.com/story/35850579/secretaries-of-state-pass-resolution-supporting-state-rights-to-oversee-elections?platform=hootsuite>
The nation’s Secretaries of State sent a clear message to the White House.
Members of the National Association of Secretaries of State meeting in Indianapolis unanimously passed a bipartisan resolution underscoring the Constitutional rights of of states to administer local, state and federal elections.
The resolution is in response to a letter from the Presidential Commission on Election Integrity, which requested secretaries turn over sensitive information about every voter including including party affiliation, voting history and Social Security numbers.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“While Kobach Commission Bumbles, DOJ Sends Its Own Voter Suppression Signals”<http://electionlawblog.org/?p=93744>
Posted on July 11, 2017 8:49 am<http://electionlawblog.org/?p=93744> by Rick Hasen<http://electionlawblog.org/?author=3>
TPM reports.<http://talkingpointsmemo.com/muckraker/doj-nvra-letter-voter-purge-signals>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, Department of Justice<http://electionlawblog.org/?cat=26>, The Voting Wars<http://electionlawblog.org/?cat=60>

Two from Ned Foley: One on Due Process and Elections, the Other on Partisan Gerrymandering<http://electionlawblog.org/?p=93742>
Posted on July 11, 2017 8:44 am<http://electionlawblog.org/?p=93742> by Rick Hasen<http://electionlawblog.org/?author=3>
The U Chicago Law Review has posted Ned’s Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws<http://lawreview.uchicago.edu/node/4016>. This is one of Ned’s most significant pieces tying together historical research, jurisprudence, and judicial precedent in an effort to develop a framework that is both theoretically sound and operationally practical—and potentially applicable to multiple different specific areas of election law.
He has also posted a draft of The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999738> Here is the abstract:
It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander—the one provided the name for this category of pernicious partisanship—a fixed historical benchmark by which to judge the distortion of legislative districts.
This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives—after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch—not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, theory<http://electionlawblog.org/?cat=41>

Donald Trump Jr. Emails Paint Serious Case of Campaign Finance Violations<http://electionlawblog.org/?p=93740>
Posted on July 11, 2017 8:28 am<http://electionlawblog.org/?p=93740> by Rick Hasen<http://electionlawblog.org/?author=3>
Just to recap where we are:
It is illegal for a person to solicit<https://www.law.cornell.edu/cfr/text/11/110.20> a contribution to a campaign from a foreign individual or entity. To solicit<https://www.law.cornell.edu/cfr/text/11/300.2>:
means to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation<https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=0fcb84060af4a95b1215bd056128d391&term_occur=4&term_src=Title:11:Chapter:I:Subchapter:C:Part:300:300.2>, transfer of funds, or otherwise provide anything of value. A solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation<https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=0fcb84060af4a95b1215bd056128d391&term_occur=5&term_src=Title:11:Chapter:I:Subchapter:C:Part:300:300.2>, transfer of funds, or otherwise provide anything of value. A solicitation may be made directly or indirectly. The context includes the conduct of persons involved in the communication. A solicitation does not include mere statements of political support or mere guidance as to the applicability of a particular law or regulation.
(This is from another FEC regulation, incorporated by reference into the foreign contribution ban.)
In˚ two<https://twitter.com/DonaldJTrumpJr/status/884789418455953413> tweets<https://twitter.com/DonaldJTrumpJr/status/884789839522140166>, Donald Trump Jr. released an email chain that explains the meeting  he had with the Russian lawyer to get “dirt” on Hillary Cinton that has been the subject of the investigation. (He released them just as the NYT posted a story<https://www.nytimes.com/2017/07/11/us/politics/trump-russia-email-clinton.html?action=Click&contentCollection=BreakingNews&contentID=65556520&pgtype=article> on them.)
Looking at the emails, it seems pretty serious. Trump Jr. got an email from his friend stating: “Emin just called and asked me to contact you with something very interesting. The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”
Trump Jr. replied almost immediately: “If it’s what you say I love it especially later in the summer.”
Hard to see how there is not a serious case here of solicitation. Trump Jr. appears to have knowledge of the foreign source and is asking to see it. As I explained earlier<http://electionlawblog.org/?p=93733>, such information can be considered a “thing of value” for purposes of the campaign finance law.
It is also possible other laws were broken, such as the laws against coordinating <https://www.justsecurity.org/42956/open-door-moscow-facts-potential-criminal-case-trump-campaign-coordination-russia/> with a foreign entity on an expenditure.  There could also be related obstruction, racketeering, or conspiracy charges, but these are really outside my area of specialization and I cannot say.
But there’s a lot for prosecutors to sink their teeth into. Pretty close to the smoking gun people were looking for.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“The research that convinced SCOTUS to take the Wisconsin gerrymandering case, explained”<http://electionlawblog.org/?p=93737>
Posted on July 11, 2017 7:52 am<http://electionlawblog.org/?p=93737> by Rick Hasen<http://electionlawblog.org/?author=3>
Nick Stephanopoulos<https://www.vox.com/the-big-idea/2017/7/11/15949750/research-gerrymandering-wisconsin-supreme-court-partisanship> for Vox.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

In the Trump Jr. Case, Can “Dirt” on Hillary Clinton Be “Anything of Value”?<http://electionlawblog.org/?p=93733>
Posted on July 11, 2017 7:24 am<http://electionlawblog.org/?p=93733> by Rick Hasen<http://electionlawblog.org/?author=3>
As I indicated in a blog post<http://electionlawblog.org/?p=93701> the other day, I think the foreign solicitation and coordination<https://www.law.cornell.edu/cfr/text/11/110.20> claims are credible.  The two big questions are knowledge it was a foreign source (now credible if last night’s New York Times story i<https://www.nytimes.com/2017/07/10/us/politics/donald-trump-jr-russia-email-candidacy.html?_r=0>s correct) as well as if the information being provided counts as “anything of value” for purposes of the law. There is at least one<https://twitter.com/derektmuller/status/884202298049560576> Federal Election Commission advisory opinion from 1990<https://cg-519a459a-0ea3-42c2-b7bc-fa1143481f74.s3-us-gov-west-1.amazonaws.com/legal/aos/72021.pdf> that polling data information could count as “anything of value:”
Mr. Hochberg commissioned this poll for his own potential candidacy and not on behalf of your campaign. Although Mr. Hochberg obviously will have knowledge of the polling information while he pursues his volunteer activities, Mr. Hochberg entered into the transaction with the pollster prior to working for your campaign and not in contemplation of working for your campaign. His receipt of the results was a completion of that transaction, rather than a receipt on behalf of your campaign. In such circumstances, Mr. Hochberg’s knowledge of the poll results by itself is not treated as a contribution of the poll and will not preclude his unpaid volunteer services to the campaign.
If, however, Mr. Hochberg imparts poll result information to you or anyone else working for your campaign, including any data or any analysis of the results, or if he uses the poll information to advise your campaign on matters such as campaign strategy or creating media messages, such poll information will constitute an in-kind contribution from Mr. Hochberg to your campaign, and an expenditure in an equal amount by your committee. 11 CFR 106.4(b). See also 11 CFR 104.13(a) and (b). The amount of such a contribution will be determined by calculating the share of the overall cost of the poll allocable to that particular information. Cf. 11 CFR 106.4(e). A determination as to the overall cost of the poll in its entirety will be premised upon the decreasing valuations presented in 11 CFR 106.4(g).

(emphasis added).
So I think this merits further investigation.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

Watch Archived Video of the 7th Annual UCI Law Supreme Court Term in Review<http://electionlawblog.org/?p=93731>
Posted on July 10, 2017 7:23 pm<http://electionlawblog.org/?p=93731> by Rick Hasen<http://electionlawblog.org/?author=3>
If you missed it before, here it is.<https://t.co/eQ5aOpO6v4>
Great program!  Thanks to everyone who helped put it together, and to our panelists, Justice Kruger, Judge Kozinski, Leah Litman, Greg Stohr, and Erwin Chemerinsky.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“ACLU Files Federal Lawsuit Over Trump Election Commission Secrecy”<http://electionlawblog.org/?p=93729>
Posted on July 10, 2017 5:00 pm<http://electionlawblog.org/?p=93729> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://www.aclu.org/cases/american-civil-liberties-union-v-donald-trump>
The American Civil Liberties Union filed a federal lawsuit<https://www.aclu.org/legal-document/american-civil-liberties-union-v-donald-trump-complaint> today over the lack of transparency by President Trump’s election commission.
The lawsuit charges the commission with failing to comply with the Federal Advisory Committee Act, which is designed to ensure public accountability of all advisory committees.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

Beyond Words: J. Christian Adams Appointed to Pence-Kobach Commission<http://electionlawblog.org/?p=93726>
Posted on July 10, 2017 4:28 pm<http://electionlawblog.org/?p=93726> by Rick Hasen<http://electionlawblog.org/?author=3>
If you look at this list of people on the Pence-Kobach commission:
Kobach<http://electionlawblog.org/?s=kobach&x=0&y=0>
Blackwell<http://electionlawblog.org/?s=blackwell&x=0&y=0>
von Spakovsky<http://electionlawblog.org/?s=%22von+spakovsky%22&x=0&y=0>
and now Christian Adam<https://twitter.com/chrisgeidner/status/884550746037002241>s…
it is hard to imagine a list of people less credible on the issue of the extent of voter fraud in the United States, and who have done more to raise the scourge of voter fraud as a means to advocate for laws to make it harder for people to register and to vote. This is not a list meant to inspire bipartisan cooperation on fixing election administration. It is assembling a rogues’ gallery of vote suppression.
The only one missing is John Fund.  Maybe he’ll be appointed their research director.
There was another Democrat named today, Alan Lamar King of Alabama.  Never heard of him, which is the pattern <http://electionlawblog.org/?p=93553> with most of the Democrats on the so-called “bipartisan commission.”

(Here’s a bit on my run-ins with Adams<http://electionlawblog.org/?p=60748>.)

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

--
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>
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