[EL] ELB News and Commentary 7/27/17

[Rick Hasen]

New Texas Bill Aimed at Absentee Ballot Fraud Could Violate First Amendment By Criminalizing Some Discussions of Candidates<http://electionlawblog.org/?p=94065>
Posted on July 26, 2017 7:17 pm<http://electionlawblog.org/?p=94065> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ve said for years that if Republicans were serious about combatting voter fraud, at the top of the list would be measures to stop absentee ballot fraud. Voter fraud is rare, but when it does happen, it more often involves absentee ballots than anything else.
So I’m not opposed to increased penalties for buying and selling absentee ballots, or coercing voters to vote in a particular way.
But a new Texas bill (SB 5—not the same as the earlier SB 5 involving voter id) would appear to make it a felony for family members to discuss candidates or issues while there is an absentee ballot in the house. Texas Tribune:<https://www.texastribune.org/2017/07/26/texas-senate-backs-crackdown-mail-voter-fraud/>
On Wednesday, Senate Democrats said they backed the main thrust of the bill, but they voted against it because the definition of “election fraud” would include anyone who sought to “influence the independent exercise of the vote of another in the presence of the ballot or during the voting process.”
The bill would treat such offenses as Class A misdemeanors, punishable by up to one year in jail and up to $4,000 in fines. Repeat offenders or those illegally influencing voters aged 65 and older would get stiffer penalties.
West, along with others Democrats — including Sens. Judith Zaffirini<https://www.texastribune.org/directory/judith-zaffirini/>, of Laredo, and José Rodríguez<https://www.texastribune.org/directory/jose-rodriguez/> of El Paso — asked if that provision applied to family members or roommates discussing candidate choices while a mail-in ballot was nearby, perhaps around a dining room table.
“Under this particular section, both of them could be charged with a particular offense, because they were assisting one another in filling out their ballots,” West said, pointing out that other sections of that bill carried exceptions for family members — but not the section in dispute.
Hancock confirmed the fraud definition would apply to voters filling out ballots at home, the same as it would for voters being influenced at the polls.
“In this particular section, once you have your ballot, you’re treated as any other citizen who has a ballot,” he said.  “When we’re dealing with the disabled, when we’re dealing with the elderly, I think they deserve the same privacy and protection as every other voter.”
Hancock also suggested family members were unlikely to bring forward allegations of voter fraud originating at dining room tables.

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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, The Voting Wars<http://electionlawblog.org/?cat=60>


“GOP mapmaker behind NC’s illegal gerrymanders back at the drawing table again”<http://electionlawblog.org/?p=94063>
Posted on July 26, 2017 6:49 pm<http://electionlawblog.org/?p=94063> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article163823333.html>
Republican leaders have tapped a familiar consultant to help with the drawing of new districts for electing General Assembly members after maps he drew six years ago were found by the federal courts to include illegal racial gerrymanders.
Tom Hofeller, a seasoned GOP mapmaker and a chief architect of the 2011 N.C. maps, is working with legislative leaders again on how to create new districts that will pass muster.
Rep. David Lewis, a Harnett County Republican and House redistricting leader, informed a group of legislators on Wednesday of Hofeller’s return to a process that could determine how the state is divided into political districts for the rest of the decade.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Kobach Promises Pence-Kobach Commission Will Deliver “Statistical Conclusions” from Voter Data He Won’t Let the Public Check<http://electionlawblog.org/?p=94061>
Posted on July 26, 2017 6:33 pm<http://electionlawblog.org/?p=94061> by Rick Hasen<http://electionlawblog.org/?author=3>
Seems fair.<https://twitter.com/CelesteKatzNYC/status/890356335803498501>
(Earlier post <http://electionlawblog.org/?p=94041> on Kobach’s pattern of misleading court in voting litigation)
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Worried about election hacking, L.A. County officials are turning to hackers for help”<http://electionlawblog.org/?p=94059>
Posted on July 26, 2017 3:23 pm<http://electionlawblog.org/?p=94059> by Rick Hasen<http://electionlawblog.org/?author=3>
LAT:<http://www.latimes.com/business/technology/la-fi-defcon-voting-20170724-story.html>
Local election officials are looking for some good hackers.
As part of an effort to create a new voting system, Los Angeles County computer specialists are headed this week to Defcon, one of the world’s largest hacking conventions, where attendees will try to compromise a new target — voting equipment.
County Registrar-Recorder Dean C. Logan said he hopes Defcon’s new Voting Village will give his staff more to worry about as they work to revamp the way Los Angeles County votes.
Defcon, which draws 20,000 participants to Las Vegas yearly, has set aside a space this year for hackers to pick apart voting machines, assail voter-registration databases and carry out mock attacks on various voting processes from around the country.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voting technology<http://electionlawblog.org/?cat=40>


“Watchdogs Say Cuomo Is Skirting Campaign Finance Rules”<http://electionlawblog.org/?p=94057>
Posted on July 26, 2017 11:40 am<http://electionlawblog.org/?p=94057> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/07/26/nyregion/watchdogs-say-cuomo-is-skirting-campaign-finance-rules.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>
At the end of a video promoting Gov. Andrew M. Cuomo’s immigration policies, a disclaimer noted the advertisement’s funding source: an obscure anti-discrimination group called New Yorkers United Together.
The fledgling group, which has financed only the one online video, claims it has no ties to any politician. Two of the group’s co-founders said in interviews that the governor had nothing to do with the ad, other than agreeing to appear in it alongside several celebrities.
But a closer examination shows otherwise. All of the group’s co-founders are close friends of Mr. Cuomo’s. Three celebrities who spoke in the ad said they were asked to do so by Mr. Cuomo’s office, and another person said he was asked by the office to identify others who might be willing to participate.
The man hired to film the ad, Jimmy Siegel, has shot political spots for the governor in previous campaigns. And his website’s gallery of work examples seems to make clear where the idea for the video originated.
“Title: We are New York,” the website says<http://siegelstrategies.com/#our-work>. “Client: Andrew Cuomo.”
To government watchdogs, the connections are evidence that Mr. Cuomo is again skirting campaign finance rules by using a secretive nonprofit to advance his agenda.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>


Sixth Edition of Lowenstein et al Election Law Casebook Now Available! Nice Amazon Discount<http://electionlawblog.org/?p=94054>
Posted on July 26, 2017 11:20 am<http://electionlawblog.org/?p=94054> by Rick Hasen<http://electionlawblog.org/?author=3>
Here you go.<https://www.amazon.com/Election-Law-Daniel-Hays-Lowenstein/dp/1531004725/ref=sr_1_6?ie=UTF8&qid=1501092906&sr=8-6&keywords=richard+l.+hasen>
(More info<http://www.cap-press.com/books/isbn/9781531004729/Election-Law-Sixth-Edition> on the book from Carolina Academic Press.)
(If you are an instructor, use the Carolina link to request a pdf of the new Teacher’s Manual)
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Posted in pedagogy<http://electionlawblog.org/?cat=23>


Maine SOS Dunlap Responds to Calls for His Resignation from Pence-Kobach Commission<http://electionlawblog.org/?p=94052>
Posted on July 26, 2017 8:10 am<http://electionlawblog.org/?p=94052> by Rick Hasen<http://electionlawblog.org/?author=3>
From an interview in The Atlantic<https://www.theatlantic.com/politics/archive/2017/07/trump-vote-fraud-commission/534843/>:
Dunlap: Some of the people who are opposed rather vehemently to the very existence of this commission say that I should resign, because being a respected elections official and a Democrat only lends legitimacy to what many people are regarding as a sham to increase suppression and to disenfranchise voters.
Well, that’s arguable. I think you have to give it a shot first. If you’re not there saying the things that I’m saying, then the only things they’re talking about are how to stop voter fraud—without really trying to define what that means.
I, for one, don’t believe for a second that we’re going to find 3 million to 5 million illegally cast votes, as the president claims<https://www.theatlantic.com/politics/archive/2017/01/gregg-phillips-trump-voter-fraud/515046/>. My goals and hopes for this are that we can actually answer some of the lingering questions; put voters first; and, if there are opportunities to improve the process, we’ll do it with the voter in mind and not the elections administrators.
(I’m one of those vehemently opposed<http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/> people who believes SOS Dunlap should resign from the commission.)
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


More Bauer on Trump Campaign Potential Liability for Campaign Finance Violations<http://electionlawblog.org/?p=94048>
Posted on July 26, 2017 7:33 am<http://electionlawblog.org/?p=94048> by Rick Hasen<http://electionlawblog.org/?author=3>
Here.<http://www.moresoftmoneyhardlaw.com/2017/07/love-knows-bounds-criminal-intent-scope-campaign-finance-law/>
I think the severability point I raised last week<http://electionlawblog.org/?p=93950> is also important: that is, one can hold that the ban as applied to foreign principals (and particularly foreign governments) is constitutional even if the application to other foreign nationals could be overbroad under First Amendment analysis: See particularly Part IV.B of this Dick Fallon analysis. <http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1031&context=californialawreview> When there is an easy linguistic way to sever a portion of a statute, that should be done over striking down the entire statute as substantially overbroad.
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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
949.824.3072 - office
949.824.0495 - fax
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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