[EL] ELB News and Commentary 7/15/17

Sat Jul 15 12:15:57 PDT 2017

“Don’t Let Our Democracy Collapse”<http://electionlawblog.org/?p=93869>
Posted on July 15, 2017 12:11 pm<http://electionlawblog.org/?p=93869> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<https://www.nytimes.com/2017/07/15/opinion/sunday/dont-let-our-democracy-collapse.html> for the New York Times Sunday Review.  It begins;
The strength and integrity of the American electoral process are under tremendous strain, but the worst may be yet to come.
In just the past few weeks, we learned that in the midst of the 2016 campaign the president’s eldest son, Donald J. Trump Jr., was willing to meet<https://www.nytimes.com/2017/07/11/us/politics/trump-russia-email-clinton.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=43&pgtype=sectio> with a woman described to him as a “Russian government attorney” to get dirt on his father’s opponent. Voters across the country asked<http://www.cnn.com/2017/07/13/opinions/trump-panel-scaring-away-voters/index.html> election officials to remove their names<https://twitter.com/Taniel/status/885948057224871936> from voting rolls so that their personal information would not be turned over to the Orwellian Election Integrity commission<https://www.whitehouse.gov/blog/2017/07/13/presidential-advisory-commission-election-integrity> that the president established to try to substantiate his outrageous<http://www.politifact.com/truth-o-meter/statements/2016/nov/28/donald-trump/donald-trumps-pants-fire-claim-millions-illegal-vo/> and false<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/?tid=a_inl&utm_term=.a8349642feda> charge that there were three million or more illegal voters in 2016. The president has stacked<http://www.mcclatchydc.com/news/nation-world/national/article161006494.html> this commission with a rogues’ gallery<http://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth> of people with reputations<https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html?mcubz=1> for false and exaggerated claims of voter fraud. Democratic and Republican state officials have resisted<http://www.npr.org/2017/07/09/536263092/what-states-can-and-cant-do-with-voter-data> the commission’s call to turn over voting lists.
And yet as bad as things are, the health of our electoral process is likely to deteriorate further, with some of the threats striking at the very basis of democratic society: our confidence that votes have been fairly and accurately counted. What’s worse, we cannot count on the courts, the president, Congress or state legislatures to save us. It will take bipartisan cooperation among state and local election officials, facilitated by nongovernmental organizations committed to sound principles of election administration, to get us past this dangerous point.
It concludes:
Faced with this vacuum, nongovernmental organizations need to take the lead on fostering cooperation across various levels of government and among political parties. The efforts of the Presidential Commission on Election Administration<http://web.mit.edu/supportthevoter/www/> (a bipartisan group President Barack Obama appointed to study problems with the 2012 elections), the Pew<http://www.pewtrusts.org/en/projects/election-initiatives> Charitable Trusts, the Bipartisan Policy Center<https://bipartisanpolicy.org/topics/governance/> and others show that this kind of work can be effective. Led by Pew, red as well as blue states have adopted online voter registration<http://www.pewtrusts.org/en/multimedia/data-visualizations/2016/state-online-voter-registration-systems> and voluntarily cooperated<http://www.pewtrusts.org/en/projects/election-initiatives/about/upgrading-voter-registration/eric> to clean voter rolls in a way that is careful enough to avoid inadvertent disenfranchisement.
The next urgent area of cooperation must be election cybersecurity. Faced with a serious, imminent threat, Democrats and Republicans should have every reason to work together. Unfortunately, Pew has announced plans to cease its work in election administration<http://editions.lib.umn.edu/electionacademy/2017/06/15/pew-request-for-applications-signals-next-step-in-voting-information-project-transition/> at this crucial time, and it is not clear who can step up to take its place.
The future is scary. Public confidence in the fairness of the election process is already largely driven<https://electionupdates.caltech.edu/2017/06/05/graphic-of-the-week-1-polarization-in-state-voter-confidence/> by who wins and who loses. State and local election officials need to overcome partisanship and resistance in areas where they can cooperate, and we need to support organizations that foster that. It may not sound sexy, but our democracy is counting on them.
Don’t miss the great graphic<https://static01.nyt.com/images/2017/07/16/opinion/sunday/16hasen/16hasen-master768.jpg> accompanying the piece.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Russia will be back. Here’s how to hack-proof the next election.”<http://electionlawblog.org/?p=93867>
Posted on July 15, 2017 8:59 am<http://electionlawblog.org/?p=93867> by Rick Hasen<http://electionlawblog.org/?author=3>
Former National Security Adviser Tom Donilon in WaPo<https://www.washingtonpost.com/opinions/russia-will-be-back-heres-how-to-hack-proof-the-next-election/2017/07/14/f085e870-67d5-11e7-a1d7-9a32c91c6f40_story.html?utm_term=.264303504236&wpmk=MK0000200>:
We now know that Russian President Vladimir Putin ordered<https://www.washingtonpost.com/world/national-security/intelligence-chiefs-expected-in-new-york-to-brief-trump-on-russian-hacking/2017/01/06/5f591416-d41a-11e6-9cb0-54ab630851e8_story.html?utm_term=.31665447c6bc> a comprehensive effort to interfere with the 2016 presidential election. This mission involved the cybertheft and strategic publication of politically sensitive emails, the placement and amplification of misinformation on social media, overt propaganda and efforts to penetrate the systems of dozens<https://www.vox.com/world/2017/6/13/15791744/russia-election-39-states-hack-putin-trump-sessions> of state election authorities.
This is not speculation or political posturing; it is the public and high-confidence conclusion of the U.S. intelligence community. And it is wholly consistent with past Soviet and Russian use of “active measures<https://en.wikipedia.org/wiki/Active_measures>” — intelligence operations meant to shape an adversary’s political decisions — with the strategic goal of undermining the integrity of and confidence in the West. Modern technology has only increased the speed, scale and efficacy of such actions.
This would be alarming even as a one-time occurrence, but as former FBI director James B. Comey recently warned, “They will be back<https://www.nytimes.com/2017/06/10/us/politics/trump-comey-russia-fbi.html>.” The fact is that, so far, Putin has paid too small a price to meaningfully deter him in the future.
Here are five concrete steps the United States should take to meet this ongoing threat to our democracy…
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

“White House releases sensitive personal information of voters worried about their sensitive personal information”<http://electionlawblog.org/?p=93865>
Posted on July 14, 2017 3:32 pm<http://electionlawblog.org/?p=93865> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/wonk/wp/2017/07/14/white-house-releases-sensitive-personal-information-of-voters-worried-about-their-sensitive-personal-information/?utm_term=.50136e4c4bcd>
The White House on Thursday made public a trove of emails it received from voters offering comment on its Election Integrity Commission. The commission drew widespread criticism when it emerged into public view<https://www.washingtonpost.com/news/wonk/wp/2017/06/29/trumps-voter-fraud-commission-wants-to-know-the-voting-history-party-id-and-address-of-every-voter-in-america/?utm_term=.1e7b5ed58505> by asking for personal information, including addresses, partial social security numbers and party affiliation, on every voter in the country….
The White House does not appear to have issued any such public guidelines or warnings before many of the emails were sent.
“These are public comments, similar to individuals appearing before commission to make comments and providing name before making comments,” said Marc Lotter, Press Secretary to Mike Pence, in an email. “The Commission’s Federal Register notice asking for public comments and its website make clear that information ‘including names and contact information’ sent to this email address may be released.”
The Federal Register notice<https://www.federalregister.gov/documents/2017/07/05/2017-14210/the-presidential-commission-on-election-integrity-pcei-upcoming-public-advisory-meeting> soliciting comments was published on July 5. The White House page<https://www.whitehouse.gov/blog/2017/07/13/presidential-advisory-commission-election-integrity>was published on July 13.
Approximately half of the emails published by the White House were dated prior to July 5.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

The Road to Put Texas Back under Federal Supervision for Voting Just Got Longer<http://electionlawblog.org/?p=93863>
Posted on July 14, 2017 2:22 pm<http://electionlawblog.org/?p=93863> by Rick Hasen<http://electionlawblog.org/?author=3>
There are two federal courts considering whether or not Texas should be “bailed back” into preclearance coverage under Section 3 of the Voting Rights Act. That section lets a court in its discretion put a state under federal supervision for some or all of its voting changes for up to 10 years.
There’s a request pending in the Texas voter id case, which should be heard this summer.
There is also a request in the longrunning Texas redistricting case. Michael Li, at the trial, now reports<https://twitter.com/mcpli/status/885944781364502531> that bail in won’t be considered until the fall at the earliest, and possibly not until 2018.
That matters.
The voter id case is before a single federal district judge, and a bail in decision would get appealed to the 5th Circuit, where it could face a tough time and possible long, en banc process.
The redistricting case is before a three-judge court, with direct appeal to SCOTUS.  (No 5th Circuit intervention.) I thought this meant the Supreme Court could address bail relatively soon, and before the 2020 redistricting.
But this timeline puts a possible bail in back in time, perhaps for a few years.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

3-Judge Court has 45 Questions for Parties in Texas Redistricting Trial to Address at Saturday Trial Closing<http://electionlawblog.org/?p=93860>
Posted on July 14, 2017 1:55 pm<http://electionlawblog.org/?p=93860> by Rick Hasen<http://electionlawblog.org/?author=3>
Wow.<http://electionlawblog.org/wp-content/uploads/45-q.pdf>

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Posted in redistricting<http://electionlawblog.org/?cat=6>

“More than 3,000 Colorado voters have canceled their registrations since Trump election integrity commission request”<http://electionlawblog.org/?p=93858>
Posted on July 14, 2017 1:53 pm<http://electionlawblog.org/?p=93858> by Rick Hasen<http://electionlawblog.org/?author=3>
Denver Post:<http://www.denverpost.com/2017/07/13/trump-election-integrity-commissions-colorado-voters-cancel-registration/>
Nearly 3,400 Coloradans canceled their voter registrations<http://www.denverpost.com/2017/07/11/colorado-voters-unregister-donald-trump-integrity-commission/> in the wake of the Trump administration’s request for voter info, the Secretary of State’s Office confirmed Thursday, providing the first statewide glimpse at the extent of the withdrawals.
The 3,394 cancellations represent a vanishingly small percentage of the electorate — 0.09 percent of the state’s 3.7 million registered voters. But the figure is striking nonetheless, with some county election officials reporting that they’ve never seen anything quite like it in their careers<http://www.denverpost.com/2017/07/10/trumps-voter-commission-is-frightening-away-denver-voters/>.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Common Cause Sues to Protect Voters Under Privacy Act”<http://electionlawblog.org/?p=93856>
Posted on July 14, 2017 1:51 pm<http://electionlawblog.org/?p=93856> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.commoncause.org/press/press-releases/PenceKobachLawsuit.html?referrer=http://www.commoncause.org/press/press-releases/PenceKobachLawsuit.html>
The nonpartisan good government watchdog group Common Cause filed suit today<http://www.commoncause.org/press/press-releases/common-cause-v-presidential.pdf> to protect the privacy rights of voters, specifically seeking to prevent “the unlawful collection, maintenance, use, and dissemination of the sensitive and personal voting data of millions of Americans,” by the Presidential Advisory Commission on Election Integrity, the Department of Homeland Security, and the Social Security Administration.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Republican FEC Commissioners Reject Comm’r Weintraub Proposal for Foreign Interference Rulemaking<http://electionlawblog.org/?p=93854>
Posted on July 14, 2017 1:18 pm<http://electionlawblog.org/?p=93854> by Rick Hasen<http://electionlawblog.org/?author=3>
Statement of reasons:<https://www.fec.gov/resources/about-fec/commissioners/statements/FOREIGN_NATIONAL_STATEMENT.pdf>
The specter of any foreign government meddling in U.S. elections is an issue that we, like all Americans, take very seriously. Contributions and expenditures by foreign nationals in connection with U.S. elections are prohibited by the Federal Election Campaign Act and Commission regulations. 52 U.S.C. § 30121; 11 C.F.R. § 110.20. For decades, the Commission has enforced the foreign national prohibition and we have voted to punish violations in several matters. 1 The Commission has committed to expedite pending enforcement matters that raise issues about foreign nationals’ potential involvement in U.S. elections, and we have done so.
We believe that this agency’s enforcement process is the proper mechanism for addressing any allegations about foreign interference in the 2016 presidential election.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, federal election commission<http://electionlawblog.org/?cat=24>

Updated: Witness at Meeting: Trump Jr. Asked Russian Attorney “for evidence of illicit money flowing to the Democratic National Committee”<http://electionlawblog.org/?p=93850>
Posted on July 14, 2017 8:01 am<http://electionlawblog.org/?p=93850> by Rick Hasen<http://electionlawblog.org/?author=3>
AP reports.<https://apnews.com/dceed1008d8f45afb314aca65797762a?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP>
Update: The updated version<https://apnews.com/dceed1008d8f45afb314aca65797762a> of the AP story now reads:
In his first public interview about the meeting, Akhmetshin said he accompanied Veselnitskaya to Trump Tower where they met an interpreter who participated in the meeting. He said he had learned about the meeting only that day when Veselnitskaya asked him to attend. He said he showed up in jeans and a T-shirt.
During the meeting, Akhmetshin said Veselnitskaya brought with her a plastic folder with printed-out documents that detailed what she believed was the flow of illicit funds to the Democratic National Committee. Veselnitskaya presented the contents of the documents to the Trump associates and suggested that making the information public could help the Trump campaign, he said.
“This could be a good issue to expose how the DNC is accepting bad money,” Akhmetshin recalled her saying.
Trump Jr. asked the attorney if she had all the evidence to back up her claims, including whether she could demonstrate the flow of the money. But Veselnitskaya said the Trump campaign would need to research it more. After that, Trump Jr. lost interest, according to Akhmetshin.

(Update: If this is true, it looks like now the RECEIPT of an in-kind contribution.)
More evidence of a potential illegal solicitation<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/donald_trump_jr_s_free_speech_defense_is_as_bogus_as_it_sounds.html> of a thing of value from a foreign source.
As I said at Slate:<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/donald_trump_jr_s_free_speech_defense_is_as_bogus_as_it_sounds.html>
Let’s first start with the statute Trump Jr. may have violated. Federal law<https://www.law.cornell.edu/uscode/text/52/30121> makes it a potential crime<http://uscode.house.gov/view.xhtml?req=(title:52%20section:30109%20edition:prelim)> for any person to “solicit”<https://www.law.cornell.edu/cfr/text/11/110.20> (that is, expressly or impliedly ask for<https://www.law.cornell.edu/cfr/text/11/300.2>) the contribution of “anything of value” from a foreign citizen.
While we do not know enough to say that Trump Jr. should be charged with violating this statute, emails<https://twitter.com/DonaldJTrumpJr/status/884789418455953413> released<https://twitter.com/DonaldJTrumpJr/status/884789839522140166> by Trump Jr. himself on Tuesday (as the New York Times was about to report on them<https://www.nytimes.com/2017/07/11/us/politics/trump-russia-email-clinton.html?action=Click&contentCollection=BreakingNews&contentID=65556520&pgtype=article>) provide more than enough detail to merit an investigation by special counsel Robert Mueller…..
t seems obvious that “I love it” constitutes solicitation in this instance. And there is a very strong argument to be made that “very high level and sensitive information” coming from the government of Russia is a “thing of value” for purposes of federal campaign finance law. The Federal Election Commission has said that providing free polling information<http://electionlawblog.org/?p=93733> to a candidate is a thing of value. It has said that when Grover Norquist’s Americans for Tax Reform gave a list of conservative activists in 37 states<http://electionlawblog.org/?p=93762> to the Bush–Cheney campaign in 2004, this was a thing of value which had to be reported by the campaign, even if the list was publicly posted on the group’s website. It said that Canadian campaign literature<http://electionlawblog.org/?p=93752> which an American candidate wanted to borrow from in his own campaign is a thing of value, even if its value is “nominal or difficult to ascertain.” It said that opposition research<http://eqs.fec.gov/eqsdocsMUR/28044192498.pdf> provided by a political group to Republican candidates can count as an in-kind contribution. And a federal court, in the prosecution of New Jersey Sen. Robert Menendez<http://electionlawblog.org/?p=93757>, said that a thing of value need only have subjective value to the recipient.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

Bauer: “Considering the Legal Defenses of the Trump Jr. Meeting”<http://electionlawblog.org/?p=93848>
Posted on July 14, 2017 7:46 am<http://electionlawblog.org/?p=93848> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Bauer<https://www.justsecurity.org/43111/legal-defenses-trump-jr-meeting/> at Just Security.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

Tokaji: “What Trump Jr. Did Was Bad, But It Probably Didn’t Violate Federal Campaign Finance Law”<http://electionlawblog.org/?p=93846>
Posted on July 14, 2017 7:43 am<http://electionlawblog.org/?p=93846> by Rick Hasen<http://electionlawblog.org/?author=3>
Dan Tokaji <https://www.justsecurity.org/43116/trump-jr-bad-didnt-violate-federal-campaign-finance-law/> at Just Security.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

--
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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http://electionlawblog.org<http://electionlawblog.org/>
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