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

[Rick Hasen]

“The 2016 U.S. Voting Wars: From Bad to Worse”<http://electionlawblog.org/?p=93897>
Posted on July 17, 2017 8:39 am<http://electionlawblog.org/?p=93897> by Rick Hasen<http://electionlawblog.org/?author=3>
I have posted this new draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257> on SSRN (for the pre-APSA event<https://www.electoralintegrityproject.com/san-francisco-workshop>, Protecting Electoral Security and Voting Rights: The 2016 U.S. Elections in Comparative Perspective).  Here is the abstract:
If the “voting wars” which have broken out across the post-2000 election landscape in the United States could be characterized as kind of trench warfare, the 2016 election saw a major escalation in weaponry, from the irresponsible rhetoric of a candidate who became commander-in-chief, to foreign interference and a flood of social media-driven propaganda, to troubling machine breakdowns and human error in election administration.Together the escalation threatens to undermine the public’s confidence in the fairness of the U.S. election process and ultimately American democracy itself. We live in dangerous times, which could get worse, and it is not easy to conceive of simple solutions for de-escalation and bolstering of legitimacy, especially given rapid technological change which has interfered with mediating and stabilizing democratic institutions.
This Article provides an overview of the legal and political integrity issues in the 2016 elections. It begins by describing the now “normal” voting wars between the hyperpolarized parties, a series of lawsuits aimed at shaping the rules for the registration of voters, the conduct of voting, and the counting of ballots. Restrictive voting laws have increased in number and severity in many states with Republican legislatures, and the judiciary itself often divides along partisan lines in determining the controversial laws’ legality. So far, the pace of litigation has remained at more than double the pre-2000 rate, and litigation in the 2016 election period is up 23 percent compared to the 2012 election period.
The Article then turns to the troubling escalation in the wars, from then-candidate Donald Trump’s unsubstantiated claims of fraud and election rigging, to Russian (and other) meddling in American elections and the rise of the “fake news” issue, to problems with vote counting machinery and election administration revealed by Green Party candidate Jill Stein’s self-serving recount efforts and further hyped through conspiracy theories. It concludes by considering the role that governmental and non-governmental institutions can play in attempting to protect American election administration from internal and external threats and to restore confidence in American elections.
This is the academic version of my NYT piece<https://www.nytimes.com/2017/07/15/opinion/sunday/dont-let-our-democracy-collapse.html?partner=rss&emc=rss> from yesterday. These are important issues. I hope we can focus more on them.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93897&title=%E2%80%9CThe%202016%20U.S.%20Voting%20Wars%3A%20From%20Bad%20to%20Worse%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>, voting technology<http://electionlawblog.org/?cat=40>


New Research: Election Litigation in 2016 Season Up 23 Percent Over 2012<http://electionlawblog.org/?p=93893>
Posted on July 17, 2017 8:29 am<http://electionlawblog.org/?p=93893> by Rick Hasen<http://electionlawblog.org/?author=3>
As I noted in my New York Times piece<https://www.nytimes.com/2017/07/15/opinion/sunday/dont-let-our-democracy-collapse.html?partner=rss&emc=rss> this weekend,
Since 2005<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=698201>, I have tracked the rate of election litigation, which tells us how often plaintiffs go to court to fight over election rules. My latest research<http://ssrn.com/abstract=3001257> demonstrates that election litigation in the 2016 election season is up 23 percent over 2012. This follows a rapid increase of such litigation in the period after the disputed presidential election of 2000, when it more than doubled<https://electionlawblog.org/?p=45951>.
Here are a couple of graphic representations from my underlying<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257> study:
[http://electionlawblog.org/wp-content/uploads/challenge.png]<http://electionlawblog.org/wp-content/uploads/challenge.png>[http://electionlawblog.org/wp-content/uploads/2016-2012.png]<http://electionlawblog.org/wp-content/uploads/2016-2012.png>
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“A Supreme Court mystery: Has Roberts embraced same-sex marriage ruling?”<http://electionlawblog.org/?p=93891>
Posted on July 17, 2017 8:15 am<http://electionlawblog.org/?p=93891> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Barnes<https://www.washingtonpost.com/politics/courts_law/a-supreme-court-mystery-has-roberts-embraced-same-sex-marriage-ruling/2017/07/16/33cd522a-68d1-11e7-8eb5-cbccc2e7bfbf_story.html?utm_term=.bf19b98b8acc> for WaPo:
A Supreme Court mystery: Has Chief Justice John G. Roberts Jr. embraced the court’s same-sex marriage decision that he so passionately protested two years ago?
The “does-he-doesn’t-he” question is prompted by a case that the court decided without oral arguments at the end of the recently completed term. The justices ruled in favor of same-sex couples, but did so in a way that has turned those who closely follow the court’s actions into a debating society.
And the answer could be important for more than curiosity’s sake. The court has accepted for its next term a case dealing with whether business owners must provide services for same-sex unions even if they are religiously opposed, and the nation’s courts are filling with cases about how far the 2015 same-sex marriage ruling extends.
The article discusses a debate<https://livestream.com/accounts/867536/events/7511201> among Erwin Chemerinsky, Leah Litman, and Judge Alex Kozinski at the recent UCI Law Supreme Court term in review event.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>


“Republicans Keep Corporate Lobbying Secret By Adding Riders To Spending Bills”<http://electionlawblog.org/?p=93889>
Posted on July 17, 2017 8:09 am<http://electionlawblog.org/?p=93889> by Rick Hasen<http://electionlawblog.org/?author=3>
IBT:<http://www.ibtimes.com/political-capital/republicans-keep-corporate-lobbying-secret-adding-riders-spending-bills-2565514>
In the waning years of the Obama presidency, Democratic lawmakers and good-government groups seemed optimistic that the administration would enact rules forcing companies to disclose more of their political spending. Despite Obama’s stated support for increased transparency in political spending, though, the rules were never implemented — and now Republicans are quietly continuing their practice of slipping language into spending bills to try to statutorily block such rules from being enacted in the future.
As annual legislation to fund the government’s financial regulators comes before Congress this week, GOP legislators have buried a provision in the bill<http://docs.house.gov/meetings/AP/AP00/20170713/106248/BILLS-115HR-FC-AP-FY2018-AP00-FinancialServicesandGeneralGovernment.pdf> that would bar the Securities and Exchange Commission (SEC) from considering a rule that would require companies to tell shareholders whether and how they are spending company money on politics. A separate provision would block federal officials from requiring government contractors to more fully disclose their political spending.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


“Outgoing Ethics Chief: U.S. Is ‘Close to a Laughingstock’”<http://electionlawblog.org/?p=93887>
Posted on July 17, 2017 8:01 am<http://electionlawblog.org/?p=93887> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/07/17/us/politics/walter-shaub-ethics.html?_r=2>
 Actions by President Trump and his administration have created a historic ethics crisis, the departing head of the Office of Government Ethics said. He called for major changes in federal law to expand the power and reach of the oversight office and combat the threat.
Walter M. Shaub Jr., who is resigning<https://www.nytimes.com/2017/07/06/us/politics/walter-shaub-office-of-government-ethics-resign.html> as the federal government’s top ethics watchdog on Tuesday, said the Trump administration had flouted or directly challenged long-accepted norms in a way that threatened to undermine the United States’ ethical standards, which have been admired around the world.
“It’s hard for the United States to pursue international anticorruption and ethics initiatives when we’re not even keeping our own side of the street clean. It affects our credibility,” Mr. Shaub said in a two-hour interview this past weekend — a weekend Mr. Trump let the world know he was spending at a family-owned golf club that was being paid to host the U.S. Women’s Open tournament. “I think we are pretty close to a laughingstock at this point.”
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


“Colorado secretary of state tells Trump election commission it is looking in the wrong place, suggests another data source”<http://electionlawblog.org/?p=93884>
Posted on July 16, 2017 4:59 pm<http://electionlawblog.org/?p=93884> by Rick Hasen<http://electionlawblog.org/?author=3>
Denver Post:<http://www.denverpost.com/2017/07/14/colorado-secretary-of-state-trump-election-commission-response/>
Colorado Secretary of State Wayne Williams told the Trump administration in a letter dated Friday that the state’s election system works well and that a blanket request for voter information isn’t an effective way to seek out fraud.
Williams’ nine-page response to President Donald Trump’s election integrity commission includes several recommendations to improve elections and suggests that it look elsewhere in its mission to uncover wrongdoing.
“While this data may serve a purpose,” Williams wrote in his letter to the commission Friday, “a single request for data that lacks the non-public data necessary to accurately match voters across states can’t be used to effectively assess the accuracy of voter rolls.”
Williams, a Republican, urged the voter commission to reach out to the Election Registration and Information Center — a 20-state group that maintains elections, motor vehicle, death, felon and other records and is maintained by member states’ agencies.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


Pence-Kobach Commission Slated to Devote Only One Hour of 1st Meeting to Discuss “Possible Topics for Commission” to Address; No Expert Testimony<http://electionlawblog.org/?p=93882>
Posted on July 16, 2017 4:37 pm<http://electionlawblog.org/?p=93882> by Rick Hasen<http://electionlawblog.org/?author=3>
Agenda<https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/agenda-initial-meeting-07192017.pdf> for July 19 meeting.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


Will Trump Jr’s Ignorance of Campaign Finance Law Let Him Off The Hook? What About Manafort?<http://electionlawblog.org/?p=93877>
Posted on July 16, 2017 10:47 am<http://electionlawblog.org/?p=93877> by Rick Hasen<http://electionlawblog.org/?author=3>
Andy Grewal<http://yalejreg.com/nc/if-trump-jr-didnt-know-campaign-finance-law-he-didnt-break-it/> makes a careful and good case that based on what we know, there might not be enough wilfulness on the part of Donald Trump Jr. for him to be criminally prosecuted. This is an important point and much more persuasive than other arguments I’ve seen against criminal liability (contorted readings of the statute, First Amendment defenses, etc.)
But two caveats.

  1.  This is based on what we know. We are seeing but a tiny sliver of the evidence the special counsel is seeing. It may be that Trump Jr.’s extreme recklessness<http://yalejreg.com/nc/if-trump-jr-didnt-know-campaign-finance-law-he-didnt-break-it/#comment-23331> would be enough.  And it may be that Manafort, who attended the meeting and worked on campaigns would have the right mental state for criminal liability. We still don’t know what we don’t know.
  2.  Trump Jr. can still be civilly liable, even if he’s too ignorant to be criminally liable. So Andy’s last sentence seems incorrect. (“Nonetheless, the relevance of a FECA prosecution to Trump Jr. has likely been greatly<https://electionlawblog.org/?p=93740> overstated<http://www.newsweek.com/could-donald-jr-kushner-and-manafort-go-jail-russia-meeting-you-bet-they-can-636836> in current public debates and, going forward, commentators should take into account FECA’s mens rea standards before alleging a campaign finance law violation.”)
Update: Grewal modified his post after I posted this, qualifying some of the statements noted above.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


“NRCC blows off DCCC request to team up against foreign hackers”<http://electionlawblog.org/?p=93875>
Posted on July 16, 2017 10:33 am<http://electionlawblog.org/?p=93875> by Rick Hasen<http://electionlawblog.org/?author=3>
Weigel:<https://www.washingtonpost.com/news/powerpost/wp/2017/07/14/nrcc-blows-off-dccc-request-to-team-up-against-foreign-hackers/?utm_term=.9acfd42eec58>
The National Republican Congressional Committee dismissed as a “political stunt” a letter from its counterpart, the Democratic Congressional Campaign Committee, asking for the two parties to team up on combating hacking ahead of the 2018 election.
“This letter was delivered by an intern and immediately leaked to the press to generate attention around a cheap political stunt,” National Republican Congressional Committee spokesman Jesse Hunt said. “Cybersecurity is a high priority for us and has been for some time now. Unfortunately, the DCCC made it clear they’re more interested in trying to score political points than actually thwarting interference.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Head Of Trump Voter Fraud Probe Wanted To Change Law To Make Registering More Difficult”<http://electionlawblog.org/?p=93873>
Posted on July 16, 2017 8:22 am<http://electionlawblog.org/?p=93873> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPo:<http://www.huffingtonpost.com/entry/kris-kobach-nvra_us_59698037e4b017418627ac98>
Kansas Secretary of State Kris Kobach (R), the official leading President Donald Trump<http://www.huffingtonpost.com/topic/donald-trump>’s voter fraud probe, apparently sought to amend federal voting law to make it possible to require proof of citizenship during the voter registration process, according to an email made public Friday<https://www.scribd.com/document/353834967/Kris-Kobach-Email> as part of an ongoing lawsuit with the American Civil Liberties Union.
The email offers the firmest evidence yet that Kobach was interested in amending the 1993 National Voter Registration Act<https://www.justice.gov/crt/national-voter-registration-act-1993-nvra>, as has been speculated. The NVRA ― a law championed by voting advocates ― requires motor vehicle, public assistance and some other state agencies to provide voter registration opportunities, and outlines the procedure by which voters can be removed from the rolls.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


150,000 Attempts on Election Day to Hack into South Carolina Voter Database<http://electionlawblog.org/?p=93871>
Posted on July 16, 2017 8:12 am<http://electionlawblog.org/?p=93871> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ:<https://www.wsj.com/articles/south-carolina-may-prove-a-microcosm-of-u-s-election-hacking-efforts-1500202806>
To understand the scale of the hacking attempts against election systems in the 2016 presidential election, consider South Carolina.
On Election Day alone, there were nearly 150,000 attempts to penetrate the state’s voter-registration system, according to a postelection report<http://www.scstatehouse.gov/CommitteeInfo/HouseLegislativeOversightCommittee/AgencyWebpages/ElectionCommission/Letter%20from%20SEC%20to%20Oversight%20Subcommittee%20with%20attachments%20(April%2028,%202017).pdf> by the South Carolina State Election Commission.
And South Carolina wasn’t even a competitive state. If hackers were that persistent against a state that President Donald Trump won comfortably, with 54.9% of the vote, it suggests they may have targeted political swing states even more.
As I wrote<https://www.nytimes.com/2017/07/15/opinion/sunday/dont-let-our-democracy-collapse.html?smid=tw-nytimes&smtyp=cur> in my NYT Sunday Review piece:
By 2020, cyberattacks could try to alter or erase voter registration databases, bring down our power grids<https://www.nytimes.com/2017/07/06/technology/nuclear-plant-hack-report.html?_r=1> or transportation infrastructure, or do something else to interfere with actual voting on Election Day. The next hacks could include malicious, false information interspersed with accurate stolen files; public confidence in the fairness of our electoral process could decrease further, even if the hacks are unsuccessful, as incendiary and unsupported claims about voter fraud, cheating and altered vote totals spread via social media.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, 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
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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