[EL] ELB News and Commentary 7/21/17

Fri Jul 21 07:24:18 PDT 2017

Ronald Klain on Where Trump is Making His Mark: The Judiciary<http://electionlawblog.org/?p=93988>
Posted on July 21, 2017 7:22 am<http://electionlawblog.org/?p=93988> by Rick Hasen<http://electionlawblog.org/?author=3>
Klain in WaPo:<https://www.washingtonpost.com/opinions/the-one-area-where-trump-has-been-wildly-successful/2017/07/19/56c5c7ee-6be7-11e7-b9e2-2056e768a7e5_story.html?hpid=hp_no-name_opinion-card-a%3Ahomepage%2Fstory&utm_term=.d86217a71554>
What about Trump? He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.
Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s. Many of Trump’s judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 — and beyond.
How conservative are Trump’s picks? Dubbed “polemicists in robes<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/trump_s_judicial_nominees_john_bush_and_damien_schiff_will_help_transform.html>” in a headline on a piece by Slate’s Dahlia Lithwick, Trump’s nominees are strikingly . . . Trumpian. One Trump nominee blogged that Kennedy was a “judicial prostitute<https://web.archive.org/web/20080610122330/http:/omniaomnibus.typepad.com:80/omnia_omnibus/2007/06/index.html>” for trying to find a middle ground on the court, and said that he “strongly disagree[d]<http://www.politico.com/magazine/story/2017/06/14/trump-judicial-nominees-civil-rights-newsom-bush-schiff-215253>” with the court’s decision striking down prosecution of gay people under sodomy laws. Another equated<https://elephantsinthebluegrass.blogspot.com/2008/01/legacy-from-dr-kings-dream-that.html> the Supreme Court’s decision in Roe v. Wade, upholding a woman’s right to choose to have an abortion, to the court’s 19th-century Dred Scott finding that black people could not be U.S. citizens. Another advocated an Alabama law<http://abcnews.go.com/TheLaw/story?id=3259389&page=1> that denied counsel to death-row inmates.
See also my earlier LAT oped, Gorsuch is the New Scalia, Just as Trump Promised.<http://www.latimes.com/opinion/op-ed/la-oe-hasen-gorsuch-scalia-20170627-story.html>
It is Trump on judges which will keep evangelical and other support from the right, even from those who would otherwise oppose Trump for his handling of the Russia investigation and the presidency more generally.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Hill investigators, Trump staff look to Facebook for critical answers in Russia probe”<http://electionlawblog.org/?p=93986>
Posted on July 20, 2017 5:16 pm<http://electionlawblog.org/?p=93986> by Rick Hasen<http://electionlawblog.org/?author=3>
CNN:<http://www.cnn.com/2017/07/20/politics/facebook-russia-investigation-senate-intelligence-committee/index.html?sr=twCNN072017facebook-russia-investigation-senate-intelligence-committee0913AMVODtopLink>
There are two questions. One is: Was there coordination or collusion between the campaigns and these technology tools, which overwhelmed the search engine tools so that certain stories popped up at the top of your newsfeed. The second is, on a broader basis going forward: How do we prevent this from happening again?” Warner said.
Likewise, House investigators plan to interview former Trump campaign digital director Brad Parscale as part of their probe. A Democratic committee source said they want to know whether Parscale or anyone else from the campaign helped guide Russian targeting of fake news stories.
 …
Another Trump campaign digital staffer said that there is no evidence to prove the theory popular among Democrats, but said that only Facebook can answer three critical questions: were the same databases used by the Trump campaign and Russian operatives to coordinate targeting of voters; was money used to promote pro-Trump posts, and, if so, how much was spent and by whom; and will Facebook reveal if bots were successfully used to push fake news posts?
“Those three questions answer everything,” the second Trump campaign staffer said.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

“This anti-voter fraud program gets it wrong over 99 percent of the time. The GOP wants to take it nationwide.”<http://electionlawblog.org/?p=93984>
Posted on July 20, 2017 3:10 pm<http://electionlawblog.org/?p=93984> by Rick Hasen<http://electionlawblog.org/?author=3>
WonkBlog:<https://www.washingtonpost.com/news/wonk/wp/2017/07/20/this-anti-voter-fraud-program-gets-it-wrong-over-99-of-the-time-the-gop-wants-to-take-it-nationwide/?utm_term=.26082b88c4b2>
At the inaugural meeting of President Trump’s Election Integrity Commission on Wednesday, commission Vice-Chairman Kris Kobach of Kansas praised a data collection program<https://www.whitehouse.gov/the-press-office/2017/07/19/remarks-vice-president-pence-and-elected-officials-first-meeting> run by his state as a model for a national effort to root out voter fraud.
States participating in the program, known as the Interstate Crosscheck System, send their voter registration files to Kansas. Kansas election authorities compare these files to those from other states. Each participating state receives back a list of their voter registrations that match the first name, last name and date of birth of a voter in another state. States may act upon the findings as they wish, although Crosscheck provides some guidelines for purging voter registrations from the rolls.
In theory, the program is supposed to detect possible cases of people voting in multiple locations. But academics and states that use the program have found that its results are overrun with false positives, creating a high risk of disenfranchising legal voters. A statistical analysis of the program published earlier this year<https://www.dropbox.com/s/fokd83nn4x6wuw9/OnePersonOneVote.pdf?dl=0> by researchers at Stanford, Harvard, UPenn and Microsoft, for instance, found that Crosscheck “would eliminate about 200 registrations used to cast legitimate votes for every one registration used to cast a double vote.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Postal Service broke law in pushing time off for workers to campaign for Clinton, investigation finds”<http://electionlawblog.org/?p=93982>
Posted on July 20, 2017 2:34 pm<http://electionlawblog.org/?p=93982> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/politics/postal-service-broke-law-in-pushing-time-off-for-workers-to-campaign-for-clinton-investigation-finds/2017/07/19/3292741c-6ca0-11e7-b9e2-2056e768a7e5_story.html?utm_term=.cf52b2a4001d>
The U.S. Postal Service engaged in widespread violations of federal law by pressuring managers to approve letter carriers’ taking time off last fall to campaign for Hillary Clinton and other union-backed Democrats, investigators said Wednesday.
High-level postal officials had for years granted employees’ requests for unpaid leave, leading last year to an “institutional bias” in favor of Clinton and other Democrats endorsed by the National Association of Letter Carriers, one of the largest postal unions. The Postal Service’s Office of Special Counsel and inspector general found that the agency violated the Hatch Act, which restricts federal employees from working for or against a political candidate or party during election season.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>

“Donald Trump Tells His Voter Fraud Panel: Find Me ‘Something’”<http://electionlawblog.org/?p=93980>
Posted on July 20, 2017 1:14 pm<http://electionlawblog.org/?p=93980> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Waldman<http://www.thedailybeast.com/donald-trump-tells-his-voter-fraud-panel-find-me-something> for the Daily Beast.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Behind the Price of Power: Q&A with former Rep. David Jolly (R-FL)”<http://electionlawblog.org/?p=93978>
Posted on July 20, 2017 1:12 pm<http://electionlawblog.org/?p=93978> by Rick Hasen<http://electionlawblog.org/?author=3>
Issue One:<https://www.issueone.org/behind-price-power-qa-former-rep-david-jolly-r-fl/>
To help inform Issue One’s landmark report, “The Price of Power,”<https://www.issueone.org/price-of-power/> we interviewed several members of our bipartisan ReFormers Caucus<https://www.issueone.org/reformers/> at-length about their experiences with fundraising and concerns with the “committee tax” imposed on lawmakers.
Every Tuesday and Thursday over the next few weeks, we will release edited excerpts of those conversations with these former lawmakers to supplement and expand on the disturbing picture the report painted: that of a broken democracy, which Congress itself must act to fix.
***
David Jolly, a member of Issue One’s ReFormers Caucus, is a Republican who represented Florida’s 13th Congressional District in the U.S. House of Representatives from March 2014  until January 2017. During his first term, Jolly served on the House Veteran Affairs Committee and House Transportation and Infrastructure Committee. During his second term, Jolly served on the House Appropriations Committee.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump DOJ: Trust Texas to Fix Racist Voter ID Law Without Court Oversight”<http://electionlawblog.org/?p=93974>
Posted on July 20, 2017 1:10 pm<http://electionlawblog.org/?p=93974> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Observer reports.<https://www.texasobserver.org/trump-doj-trust-texas-fix-racist-voter-id-law-without-court-oversight/>

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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Kobach’s Looking-Glass Commission”<http://electionlawblog.org/?p=93972>
Posted on July 20, 2017 1:08 pm<http://electionlawblog.org/?p=93972> by Rick Hasen<http://electionlawblog.org/?author=3>
Eliza Newlin Carney:<http://prospect.org/article/kobach%E2%80%99s-looking-glass-commission>
That’s why a Kobach-launched database dubbed the Interstate Crosscheck Program, designed to eliminate registrations in more than one state, is so riddled with errors. The program “promotes purging registration records that share a common name and date of birth,” concludes a recent study<https://5harad.com/papers/1person-1vote.pdf> by several leading scholars, an approach that would yield 200 false positives for every legitimate case of double-registration.
By contrast, a sophisticated database created in 2009 by a bipartisan team of election administrators, technology experts, and academics has proven far more reliable. Its creators spent more than three years hashing out how to accurately and securely cross-check voter data between states. The result was the Electronic Registration Information Center (ERIC), now a nonprofit consortium run by 20 states and the District of Columbia.
Several election experts have wondered why Trump’s commission didn’t make ERIC its first stop when seeking voter data. Wayne Williams, the Republican secretary of state of Colorado, recently urged Kobach in a letter<http://www.documentcloud.org/documents/3895073-WAYNE-WILLIAMS-letter-to-commission.html> to learn about ERIC’s processes and security protocols. While the commission’s request for voter data “may serve a purpose,” Williams cautioned, “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.”
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Posted in election administration<http://electionlawblog.org/?cat=18>

NC Supreme Court Puts on Hold for Now Further Actions to Create New Elections/Ethics Board<http://electionlawblog.org/?p=93970>
Posted on July 20, 2017 12:33 pm<http://electionlawblog.org/?p=93970> by Rick Hasen<http://electionlawblog.org/?author=3>
Letter.<https://twitter.com/josh_lawson/status/888115573594374146>
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Posted in election administration<http://electionlawblog.org/?cat=18>

Maine SOS Dunlap and Az SOS Reagan Defend Pence-Kobach Commission on PBS News Hour<http://electionlawblog.org/?p=93968>
Posted on July 20, 2017 10:07 am<http://electionlawblog.org/?p=93968> by Rick Hasen<http://electionlawblog.org/?author=3>
Interview:<http://www.pbs.org/newshour/bb/state-election-officials-see-trumps-voter-fraud-probe/>
WILLIAM BRANGHAM: Matthew Dunlap, what about this larger concern that has been raised by some people that this commission and its mission is going to be used to justify further national crackdown on voting rights? What do you make of that?
MATTHEW DUNLAP: That’s one of my favorite questions to get out of all of this, is that somehow we’re trying to undo the electoral process.
My position is, is that you have these lingering questions that have been around for a while now about illegal activity around elections. Sunshine is the greatest disinfectant. I have full confidence that everything that’s been claimed will probably be largely debunked.
And what we will find will probably be the product of mistakes and errors and unintended actions that were never meant to become felonies. So I think, you know, with that understanding, I think we’re going to find that we have a really pretty good system that’s very, very decentralized, which actually adds to its level of security against some of the allegations that we have heard about, like the Russian Federation getting involved in hacking our elections.
I think the systems that we have in place, which are run by local election officials, actually will be found to work very, very well, and that American voters should feel pretty good about the systems that help us elect our leadership and decide issues.
WILLIAM BRANGHAM: Michele Reagan, you heard Matthew here say that he believes the commission will largely debunk many of these claims.
But just today, the co-chairman of the commission, Kris Kobach, said on MSNBC that he says, we may never know whether or not Hillary Clinton in fact won the popular vote. That is an implication that is very likely the potential that three million illegal votes were cast.
Is the head of the commission is making that kind of a statement, does that concern you at all about the thrust of this commission?
MICHELE REAGAN: What really concerns me is the good work that the commission could be doing. And I hope — and I have high hopes that they will look forward to some of these suggestions that states are making.
Quite unimpressive answers.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, 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>
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http://electionlawblog.org<http://electionlawblog.org/>
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