[EL] ELB News and Commentary 6/8/17

Thu Jun 8 07:30:25 PDT 2017

Comey Testifies He Has Do Doubt Russians Interfered in Election, But Confident They Did Not Directly Alter Votes in 2016 Election<http://electionlawblog.org/?p=93018>
Posted on June 8, 2017 7:27 am<http://electionlawblog.org/?p=93018> by Rick Hasen<http://electionlawblog.org/?author=3>
Watch live.<https://www.c-span.org/video/?429381-1/former-fbi-director-comey-set-testify-russia-probe&live>
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Montana congressman-elect Gianforte apologizes for ‘assault’ on reporter”<http://electionlawblog.org/?p=93016>
Posted on June 8, 2017 7:21 am<http://electionlawblog.org/?p=93016> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/powerpost/wp/2017/06/07/montana-congressman-elect-gianforte-apologizes-for-assault-on-reporter/?utm_term=.b225b8c6bd20>
Montana congressman-elect Greg Gianforte, who was charged with a misdemeanor after allegedly slamming Guardian reporter Ben Jacobs to the ground for asking a question, has apologized<https://www.theguardian.com/us-news/2017/jun/07/greg-gianforte-ben-jacobs-assault-case-civil-settlement> to the reporter and announced a donation to the Committee to Protect Journalists.
“Notwithstanding anyone’s statements to the contrary, you did not initiate any physical contact with me, and I had no right to assault you,” Gianforte wrote in a letter published Wednesday night. “I am sorry for what I did and the unwanted notoriety this has created for you. I take full responsibility.”
Jacobs accepted the apology, which accompanied a $50,000 donation to the CPJ. “I have accepted Mr. Gianforte’s apology and his willingness to take responsibility for his actions and statements,” he said in a statement released by a spokesman. “I hope the constructive resolution of this incident reinforces for all the importance of respecting the freedom of the press and the First Amendment and encourages more civil and thoughtful discourse in our country.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“The Trump Voter Fraud Agenda Is Here”<http://electionlawblog.org/?p=93014>
Posted on June 8, 2017 7:18 am<http://electionlawblog.org/?p=93014> by Rick Hasen<http://electionlawblog.org/?author=3>
Mark Joseph Stern for Slate:<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/the_trump_voter_fraud_agenda_has_arrived_in_new_hampshire.html>
New Hampshire residents who register to vote within 30 days of an election may soon find an unexpected presence at their door: state investigators and law enforcement officers demanding proof that they live in the state<http://www.slate.com/blogs/the_slatest/2017/03/13/new_hampshire_republicans_push_voter_intimidation_bill.html>. And for that, they can probably thank Donald Trump.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Appeals court to weigh Texas voting law limiting language interpreters”<http://electionlawblog.org/?p=93012>
Posted on June 8, 2017 7:17 am<http://electionlawblog.org/?p=93012> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/06/08/appeals-court-consider-texas-election-law-language-interpreters/>
Amid last-minute efforts to overhaul<https://www.texastribune.org/2017/05/23/texas-house-backs-voter-id-overhaul-changes/> the state’s voter identification law in light of an ongoing legal fight, the Texas Legislature gaveled out without addressing another embattled election law that’s now moving forward in federal court.
The U.S. 5th Circuit Court of Appeals on Thursday will take up a legal challenge to an obscure provision in the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“More than $200,000 raised in Seattle Democracy Vouchers, so far”<http://electionlawblog.org/?p=93010>
Posted on June 8, 2017 7:14 am<http://electionlawblog.org/?p=93010> by Rick Hasen<http://electionlawblog.org/?author=3>
KING5:<http://www.king5.com/news/politics/more-than-200000-raised-in-seattle-democracy-vouchers-so-far/446754166>
The August primary is less than two months away, and if you’re registered to vote in the city of Seattle, you may have money to use that you’ve forgotten about.
Remember the new Democracy Voucher program? So far, more than $200,000 dollars worth of vouchers have been raised by candidates who have officially qualified for the program.
Position 8 council candidate Jon Grant currently leads with more than $129,000 in vouchers, followed by fellow position 8 candidate Teresa Mosqueda who has raised more than $61,000 in vouchers. City Attorney Pete Holmes has raised nearly $40,000 in his race.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Scrap new Texas voter ID law, plaintiffs tell federal judge”<http://electionlawblog.org/?p=93008>
Posted on June 8, 2017 7:07 am<http://electionlawblog.org/?p=93008> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/06/07/legal-foes-call-judge-scrap-new-texas-voter-id-law/>
A new law softening Texas’ strict voter identification requirements doesn’t absolve the lawmakers from intentionally discriminating against minority voters in 2011 — nor would it properly accommodate those voters going forward, the state’s opponents in a long-running lawsuit argued Wednesday.
“Unfortunately, what the court is in the midst of is a larceny in progress,” Chad Dunn, a lawyer representing some of the challengers, told U.S. District Judge Nelva Gonzales Ramos, accusing the Texas Legislature of trying to skirt responsibility for its sins of discrimination — reminiscent of state actions in the 1950s and 1960s. “It is a litigation strategy masquerading as a legislative function.”
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Posted in 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>

“It’s Happening Here; Our election systems are at grave risk of cyberattacks. When will Congress take action?”<http://electionlawblog.org/?p=93006>
Posted on June 7, 2017 3:32 pm<http://electionlawblog.org/?p=93006> by Rick Hasen<http://electionlawblog.org/?author=3>
Larry Norden <http://www.slate.com/articles/technology/future_tense/2017/06/congress_needs_to_act_now_to_secure_our_election_systems.html> for Slate:
We must recognize that we live in a world where foreign interests are vying for power on the world stage by trying to shape American politics or even attempting to create doubts that democracy really works. Against that backdrop, it is clear that strengthening election security is essential to protecting our national security.
It is time for members of Congress to step up. They can encourage urgent action by state and local funders by providing them with time-limited grants to do things like replace antiquated machines, upgrade the hardware and software that supports voter registration, and conduct post-election audits to confirm to the public that they can trust the results. State and local election officials know what improvements their systems need, and security experts have made clear recommendations. Congress should listen to these voices and use its powers to strengthen election systems’ ability to withstand the next attack.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

New Monthly Email on Election Policy from Ballotpedia<http://electionlawblog.org/?p=93004>
Posted on June 7, 2017 9:16 am<http://electionlawblog.org/?p=93004> by Rick Hasen<http://electionlawblog.org/?author=3>
Announcement<https://ballotpedia.org/The_Ballot_Bulletin>:
Staying on top of election policy news throughout the states just became easier.
Ballotpedia, the Encyclopedia of American politics, is providing readers with the latest updates in election policy through a new monthly email, The Ballot Bulletin.
Ballotpedia tracks developments in election policy at the federal, state, and local levels. In each email, we will discuss a prominent event relating to electoral systems, redistricting, and voter provisions. We will also track relevant legislation, providing links to and summaries of the bills themselves. Finally, we will track the status of court cases dealing with election policy matters.
Subscribe and stay informed.
Launching July 2017
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Court eyes next step in Texas voter ID challenge”<http://electionlawblog.org/?p=93001>
Posted on June 7, 2017 7:18 am<http://electionlawblog.org/?p=93001> by Rick Hasen<http://electionlawblog.org/?author=3>
Austin American-Statesman:<http://www.statesman.com/news/court-eyes-next-step-texas-voter-challenge/NUqsEm5K4M2sakTH5mrYOO/>
U.S. District Judge Nelva Gonzales Ramos, who has already ruled that the Republican-backed voter ID law was enacted in 2011 with the intent to discriminate against minority voters, will confer with lawyers on how best to determine whether Texas should be penalized for violating the U.S. Voting Rights Act.
One possible remedy, Ramos has acknowledged, would be to require Texas to gain U.S. Justice Department approval before making any future changes to election law or voting procedures.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“New Report Analyzes Demographic and Geographic Impact of Oregon’s Automatic Voter Registration Program”<http://electionlawblog.org/?p=92999>
Posted on June 7, 2017 7:00 am<http://electionlawblog.org/?p=92999> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://www.americanprogress.org/press/release/2017/06/07/433692/release-new-report-analyzes-demographic-geographic-impact-oregons-automatic-voter-registration-program/>
A new report released today by the Center for American Progress’ Liz Kennedy and Rob Griffin, along with voting experts Tova Wang and Professor Paul Gronke, provides a demographic and geographic portrait of how Oregon’s automatic voter registration system (AVR)—the first in the nation—has expanded the state’s electorate and registered hundreds of thousands of eligible citizens to vote. The findings of this exclusive new analysis provide strong evidence in favor of AVR, not only given the increase in people registered to vote and voters, but also how the program has succeeded in making Oregon’s voter rolls more representative of the state’s population by registering younger, less urban, lower-income, and more ethnically diverse individuals.
The report<https://www.americanprogress.org/issues/democracy/reports/2017/06/07/433677/votes-automatic-voter-registration/> is accompanied by a robust set of graphics and charts as well as a video<https://www.youtube.com/watch?time_continue=3&v=gwLyY7bMcrI> and an interactive map that brings the story to life by showcasing the regions and communities that benefited the most from AVR, displaying both the percentage of AVR registrants in an area as well as their participation rates on election day.
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Posted in election administration<http://electionlawblog.org/?cat=18>

Must-Read from David Becker: “What We Know and Don’t Know about Election ‘Hacks’ in 2016”<http://electionlawblog.org/?p=92997>
Posted on June 7, 2017 6:54 am<http://electionlawblog.org/?p=92997> by Rick Hasen<http://electionlawblog.org/?author=3>
Key read and reality check from David Becker<https://www.electioninnovation.org/news/2017/6/6/what-we-know-and-dont-know-about-election-hacks-in-2016>.

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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“More on When Collusion with a Foreign Government Becomes a Crime”<http://electionlawblog.org/?p=92995>
Posted on June 7, 2017 6:44 am<http://electionlawblog.org/?p=92995> by Rick Hasen<http://electionlawblog.org/?author=3>
Key Bauer followup:<http://www.moresoftmoneyhardlaw.com/2017/06/collusion-foreign-government-becomes-crime-2/>
Evidence Supporting a Finding of “Substantial Assistance”
It follows that the evidence in support of the “substantial assistance” would be different in quantity and nature from what is needed for a “coordination” claim. The evidence on the public record shows the Trump campaign encouraging the Russian activities and making active use of the hacked results. If there is a doubt that this is enough, the answer is not to return to the coordination rules, devised mostly for other cases: This only confuses the issue. Rather than only look “externally” for direct communications between campaign and foreign government, the investigation would focus its efforts more “internally,” on the campaign’s intent to build this de facto political alliance with Russia.
Some of the questions would be:
–What do the records of the campaign–and the sworn testimony of campaign aides–establish about the strategic importance to the campaign of these Russian activities?
–Did the campaign decide that it would not denounce the Russians, either on its own initiative or in response to press queries, because it did not wish to discourage them from continuing on their course?
–Was the message intended for Russia discussed during preparations for the presidential debate, which would explain Mr. Trump’s special care in refusing to assign direct blame for the hacking to the government or to reject any assistance from the hackers?
–What were the specific plans for active messaging around the hacked emails–in the press, in the preparation of surrogates for media appearances, and in the remarks prepared for or by the candidate for rallies and his own press interviews?
If there is evidence of this kind, it would match up with the known campaign and Trump handling of the Russia issue and answer any question of intent. The president’s open praise for the hacking, his stated “love” of Wikileaks, his refusal to condemn any state interference in the elections, could not be passed off as “Trump being Trump,” as the candidate just playing with the issue and relishing the coverage that came with it. Instead these actions, together with other evidence of intent that may still come to light, would represent the execution of a very specific campaign strategy to provide substantial assistance to the Putin regime’s program of intervention in an American presidential election.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

New Complications in NC Partisan Gerrymandering Case<http://electionlawblog.org/?p=92993>
Posted on June 6, 2017 10:06 pm<http://electionlawblog.org/?p=92993> by Rick Hasen<http://electionlawblog.org/?author=3>
Fascinating Lyle Denniston post<http://lyldenlawnews.com/2017/06/07/answers-new-questions-partisan-gerrymandering/>:
Both sides in a new Supreme Court test case on partisan gerrymandering – drawing new election districts to favor one party – on Tuesday answered the Justices’ questions about whether the case should stay alive, disagreeing sharply on that.
But they also may have raised a broad new question about what voters challenging such partisan-driven maps must do to make a case.  If the Justices feel they have to rule on that issue, it could make a major difference to the future of such disputes.
Besides that added issue, the two sides’ new briefs may have stirred up a new controversy over who speaks for North Carolina in election cases.  That is a complication that led the Justices to refuse last month to decide a major voting rights case from the same state….
In the new filing.<http://lyldenlawnews.com/wp-content/uploads/2017/06/16-166-Harris-on-jurisd..pdf> by lawyers for the two voters, they suggested that the answer should be “yes” to both questions: because the two voters had properly shown they would be harmed by the partisan congressional maps, and because the trial court had ruled against them, making its decision clear even though, they conceded, the court did not do so with the specific kind of order that the law governing such appeals might require.
In the new filing.<http://lyldenlawnews.com/wp-content/uploads/2017/06/16-166-bottom-side-on-juirisd..pdf> by the state Board of Elections, its lawyers suggested “no” as the answer to each question: because the two voters had not shown how they would be harmed, because they did not even show that they were Democrats or that they lived in districts that had been gerrymandered, and because the law on appeals in such cases is clear about the kind of lower court order that must be issued to resolve the case in the trial court….
That is the most consequential issue that might have surfaced in the new filings.  But the problem of who speaks for North Carolina, as a legal matter, has risen up again between the lines of the two new filings.
The “Cooper” whose name is in the title of this case, and of the earlier one decided in May, is Roy Cooper, who is the new Democratic governor of North Carolina, succeeding a Republican governor whom he defeated and who had been sued in the case by the two voters.
The voters’ lawyers noted in their filing that the state Board of Elections – also sued, along with the governor – no longer exists in North Carolina (it has been replaced by a new agency not yet in place), so Governor Cooper, the filing suggested, is the only party representing the state still in the case.
The Board’s filing was done by the lawyers in the name of that agency before it was abolished by the state legislature.  It does note, in a footnote at the end, that Governor Cooper “does not join this brief,” adding that he “does not object” to the views spelled out on the two questions by lawyers for the two voters.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“U.S. District Court Strikes Down Kentucky Campaign Finance Law that Let Individuals Give More to Democratic and Republican Committees than Committees of Other Parties”<http://electionlawblog.org/?p=92991>
Posted on June 6, 2017 9:52 pm<http://electionlawblog.org/?p=92991> by Rick Hasen<http://electionlawblog.org/?author=3>
BAN:<http://ballot-access.org/2017/06/06/u-s-district-court-strikes-down-kentucky-campaign-finance-law-that-let-individuals-give-more-money-to-democratic-and-republican-parties-than-other-parties/>
On June 6, 2017, U.S. District Court Judge William O. Bertelsman, a Carter appointee, struck down<http://ballot-access.org/wp-content/uploads/2017/06/Schickel-Win-6-6-17.pdf> a Kentucky campaign finance contribution limit that discriminated in favor of the Republican and Democratic Parties, and against all other parties. Shickel v Dilger, e.d., 2:15cv-155. The law, sec. 121.015(3)(b), said that individuals could give $5,000 to a “caucus campaign committee”, which was defined as: “members of the following caucus groups who receive contributions and make expenditures to support or oppose one or more specific candidates or slates of candidates for nomination or election, or a committee: 1. House Democratic caucus campaign committee; 2. House Republican caucus campaign committee; 3. Senate Democratic caucus campaign committee; and 4. Senate Republican caucus campaign committee.”
Because the law specifically names Republican and Democratic committees, and gives them the ability to receive $5,000 contributions, the law is discriminatory. Individuals generally can only give $1,000 to a candidate for state or local office, so a $5,000 contribution limit for contributions to these Democratic and Republican committees is valuable. UPDATE: starting July 1, 2017, that candidate limit goes from $1,000 to $2,000, due to a bill that passed the legislature earlier this year.
The case was filed on August 24, 2015, and was argued on January 10, 2017. Two of the three plaintiffs are Libertarian candidates. The third plaintiff is a Republican State Senator, John Shickel. Shickel did not complain about section 121.015(3)(b). His part of the case challenged another law that made it illegal for a lobbyist to give anything whatsoever to a legislator. That law was also struck down, partly because it is vague and, if taken literally, almost absurdly draconian. The decision mentions it might even apply to a drink of water. Thanks to Ken Moellman for this news
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Posted in ballot access<http://electionlawblog.org/?cat=46>, campaign finance<http://electionlawblog.org/?cat=10>, third parties<http://electionlawblog.org/?cat=47>

--
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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