[EL] ELB News and Commentary 7/20/17

Thu Jul 20 07:57:34 PDT 2017

“Kelly: States ‘nuts’ if they don’t ask feds for election protection help”<http://electionlawblog.org/?p=93966>
Posted on July 20, 2017 7:45 am<http://electionlawblog.org/?p=93966> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico reports.<http://www.politico.com/story/2017/07/19/kelly-us-elections-help-240738>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

Today’s Must Read: “Exclusive: Read the Previously Undisclosed Plan to Counter Russian Hacking on Election Day”<http://electionlawblog.org/?p=93964>
Posted on July 20, 2017 7:44 am<http://electionlawblog.org/?p=93964> by Rick Hasen<http://electionlawblog.org/?author=3>
Quite a wow from Time:<http://time.com/4865798/russia-hacking-election-day-obama-plan/>
President Obama’s White House quietly produced a plan in October to counter a possible Election Day cyber attack<http://time.com/4559968/election-hackers-security-infrastructure/> that included extraordinary measures like sending armed federal law enforcement agents to polling places, mobilizing components of the military and launching counter-propaganda efforts.
The 15-page plan<https://www.scribd.com/document/354227068/Russia-Hacking-President-Obama-s-Previously-Undisclosed-Election-Day-Plan#download&from_embed>, a copy of which was obtained by TIME, stipulates that “in almost all potential cases of malicious cyber activity impacting election infrastructure, state, local, tribal, and territorial governments” would have primary jurisdiction to respond.
 But in the case of a “signifcant incident” the White House had several “enhanced procedures” it was prepared to take.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“What I Heard – And Didn’t – At Yesterday’s PACEI Meeting”<http://electionlawblog.org/?p=93962>
Posted on July 20, 2017 7:39 am<http://electionlawblog.org/?p=93962> by Rick Hasen<http://electionlawblog.org/?author=3>
A ChapinBlog.<http://editions.lib.umn.edu/electionacademy/2017/07/20/what-i-heard-and-didnt-at-yesterdays-pacei-meeting/>

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Donald Trump debuts new election integrity panel by hinting at big-league voter fraud”<http://electionlawblog.org/?p=93960>
Posted on July 20, 2017 7:37 am<http://electionlawblog.org/?p=93960> by Rick Hasen<http://electionlawblog.org/?author=3>
Celeste Katz<https://mic.com/articles/182522/donald-trump-debuts-new-election-integrity-panel-by-hinting-at-big-league-voter-fraud#.Z67gOPT7T> for Mic.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Hacking the Vote: Who Helped Whom?”<http://electionlawblog.org/?p=93958>
Posted on July 19, 2017 8:36 pm<http://electionlawblog.org/?p=93958> by Rick Hasen<http://electionlawblog.org/?author=3>
NYR Daily:<http://www.nybooks.com/daily/2017/07/19/hacking-the-vote-trump-russia-who-helped-whom/>
Similarly, bots can be programmed to search for certain keywords and particular users. That could account for why Russian bots were propagating anti-Clinton messages in places like Wisconsin: they might have simply been following the lead of other pro-Trump Twitter users. Moreover, once the bots’ Russian handlers saw attention being focused on the Rust Belt near the end of the campaign by Trump’s team, they would not have needed insider information to direct their fake accounts to spread false information in those precincts. As Issie Lapowsky observed<https://www.wired.com/story/russia-trump-targeting-fake-news/> recently in Wired, “…there’s nothing preventing a Russian actor or anyone else from reading the news and understanding the American electorate, and thanks to readily available digital tools, targeting that electorate is simple.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“North Carolina Court to Rule on Law on Gov’s Elections Role”<http://electionlawblog.org/?p=93956>
Posted on July 19, 2017 8:29 pm<http://electionlawblog.org/?p=93956> by Rick Hasen<http://electionlawblog.org/?author=3>
 AP:<https://www.usnews.com/news/best-states/north-carolina/articles/2017-07-19/north-carolina-court-to-rule-on-law-on-govs-elections-role>
The state Supreme Court said Wednesday it will take up Gov. Roy Cooper’s lawsuit against state legislative leaders. The decision bypasses an intermediate appeals court and schedules a Supreme Court hearing on Aug. 28.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Campaign Finance Reform without Law?”<http://electionlawblog.org/?p=93954>
Posted on July 19, 2017 8:20 pm<http://electionlawblog.org/?p=93954> by Rick Hasen<http://electionlawblog.org/?author=3>
Robert Yablon has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001972> on SSRN (forthcoming Iowa L. Rev). Here is the abstract:
Conventionally understood, campaign finance reform is a matter of public regulation. Reformers believe that, without adequate government intervention, wealthy individuals and entities are destined to exert outsized influence over elections and governance. Propelled by that belief, they have spent decades advocating regulatory fixes, with relatively little to show for it. Many existing regulations are watered down and easy to circumvent. Efforts to bolster them have repeatedly hit doctrinal and political roadblocks — obstacles that are more formidable today than ever before.
This Article seeks to shift campaign finance discourse toward private ordering. Because scholars and reformers have long focused on public regulation, they have largely overlooked possible private correctives. The Article maps that uncharted terrain, revealing an array of extra-legal mechanisms that at least somewhat constrain money’s electoral clout. This survey suggests that numerous private actors have incentives and capacities to implement additional extra-legal reform. The Article then sketches several potential private interventions, and it assesses the interplay between public regulation and private reform. Private reform is no silver bullet, but to ignore private ordering even as public regulation flounders makes little sense. Especially given the significant constraints on public intervention, it is vital for campaign finance scholars and reformers to look beyond the law.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Congress, Statutory Interpretation, and the Failure of Formalism”<http://electionlawblog.org/?p=93952>
Posted on July 19, 2017 8:19 pm<http://electionlawblog.org/?p=93952> by Rick Hasen<http://electionlawblog.org/?author=3>
Can’t wait to read this new one<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2998699> from Abbe Gluck in U Chicago L. Rev:
The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress.
What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing.
With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges—even formalists—already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project.
After laying this groundwork, this Essay offers ten new rules of statutory interpretation— objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule—the CBO Canon—and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases
already is.
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

Applying the Foreign Solicitation Ban Against the Russian Government Consistent with the First Amendment<http://electionlawblog.org/?p=93950>
Posted on July 19, 2017 8:11 pm<http://electionlawblog.org/?p=93950> by Rick Hasen<http://electionlawblog.org/?author=3>
One issue which has arisen over possible campaign finance charges against Donald Trump Jr. concerns whether the statute is substantially overbroad in violation of the First Amendment. Eugene Volokh makes the case here<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/12/can-it-be-a-crime-to-do-opposition-research-by-asking-foreigners-for-information/?utm_term=.dd42f90b531e>, and I argue against application of the substantial overbreath doctrine here<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>. Eugene conjures up DREAMers or a foreign individual who wants to give dirt to Hillary Clinton on Donald Trump, as a way of arguing the statute is substantially overbroad. (I respond against the substantial overbreadth doctrine in the piece.)
But a reader points out an even easier way to avoid overbreath arguments.  The relevant statute<https://www.law.cornell.edu/uscode/text/52/30121>says that a person cannot take a campaign contribution (including an in kind contribution) from a “foreign principal.”  It then references another statute which defines<https://www.law.cornell.edu/uscode/text/22/611> a “foreign principal” to include, among other things, “a government of a foreign country and a foreign political party.”
It seems to me that’s pretty narrowly tailored, even if applications to other “foreign principals” or “foreign nationals” that Eugene can dream up might not be.
The U.S. government’s compelling interest in stopping foreign influence must be at its zenith when things of value are coming from foreign governments,.
It’s a nice point.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

Me SOS Dunlap Promises to Be “in a bear cage with a bullhorn” on Pence-Kobach Fraud Committee<http://electionlawblog.org/?p=93948>
Posted on July 19, 2017 7:57 pm<http://electionlawblog.org/?p=93948> by Rick Hasen<http://electionlawblog.org/?author=3>
Uh-huh.<http://www.pressherald.com/2017/07/19/trumps-election-integrity-panel-wont-probe-russian-infiltration-of-state-election-systems/>
I’ll believe it <http://electionlawblog.org/?p=93944> when I see it.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

SOS Kobach Says “We May Never Know the Answer” Whether Hillary Clinton Won Popular Vote for President in 2016<http://electionlawblog.org/?p=93946>
Posted on July 19, 2017 11:57 am<http://electionlawblog.org/?p=93946> by Rick Hasen<http://electionlawblog.org/?author=3>
Shameful.<https://twitter.com/mmurraypolitics/status/887745357899337728>
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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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http://electionlawblog.org<http://electionlawblog.org/>
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