[EL] ELB News and Commentary 6/12/17

Mon Jun 12 06:38:59 PDT 2017

No #SCOTUS Action in Wisconsin Partisan Gerrymandering Case Today<http://electionlawblog.org/?p=93076>
Posted on June 12, 2017 6:35 am<http://electionlawblog.org/?p=93076> by Rick Hasen<http://electionlawblog.org/?author=3>
Orders list.<https://www.supremecourt.gov/orders/courtorders/061217zor_o7kq.pdf>
Tune in next week to see if the Court grants a hearing in the case for next term (as I’m expecting).
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“In Watergate, One Set of Facts. In Trump Era, Take Your Pick.”<http://electionlawblog.org/?p=93074>
Posted on June 11, 2017 8:20 pm<http://electionlawblog.org/?p=93074> by Rick Hasen<http://electionlawblog.org/?author=3>
Jim Rutenberg NYT column:<https://www.nytimes.com/2017/06/11/business/media/comey-trump-watergate.html?ref=politics&_r=0>
Of course, Watergate unfolded in a much simpler time in the media industry.
There were three major news networks and PBS; a major paper or three in every city; and a political dynamic in which leaders duked it out by day and dined together at night. They did so on a solid foundation of agreed-upon facts and a sense of right and wrong that was shared if not always followed.
The Trump-Russia scandal is breaking during a time of informational chaos, when rival versions of reality are fighting for narrative supremacy.
The causes are legion: The advent of right-wing talk radio and Fox News; the influence of social sites like Facebook, Twitter, Reddit; and the mainstreaming of conspiracy sites like InfoWars, which had almost five million visitors <https://www.quantcast.com/infowars.com#trafficCard> in the last month. By allowing partisans to live in their separate informational and misinformational bubbles, and, in some cases, to allow real news to be rendered as false — and false news to be rendered as true<https://www.nytimes.com/2017/05/24/business/media/seth-rich-fox-news-sean-hannity.html?_r=0> — they have all contributed to the calcification of the national divide.
Mainstream journalism, a shiny and ascendant conveyor of truth during Watergate, is in a battered state after decades of economic erosion, its own mistakes and the efforts of partisan wrecking crews to discredit its work, the most recent one led by the president himself.
All of it gives the Trump White House something Nixon never had: a loyal media armada ready to attack inconvenient truths and the credibility of potentially damning witnesses and news reports while trumpeting the presidential counternarrative, at times with counterfactual versions of events.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>

“Op-ed: Ranked Choice Voting can help Utah elections”<http://electionlawblog.org/?p=93071>
Posted on June 11, 2017 8:05 pm<http://electionlawblog.org/?p=93071> by Rick Hasen<http://electionlawblog.org/?author=3>
Rebecca Chavez-Houck and Marc Roberts have written this ope<http://www.deseretnews.com/article/865681641/Op-ed-Ranked-Choice-Voting-can-help-Utah-elections.html>d for the Deseret News. (Rebecca Chavez-Houck (D) represents House District 24 – Salt Lake. Marc Roberts (R) represents House District 67 – Santaquin)
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“Supreme Court could tackle partisan gerrymandering in watershed case”<http://electionlawblog.org/?p=93068>
Posted on June 11, 2017 8:03 pm<http://electionlawblog.org/?p=93068> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Barnes for WaPo:<https://www.washingtonpost.com/politics/courts_law/supreme-court-could-tackle-partisan-gerrymandering-in-watershed-case/2017/06/11/e166e3aa-4c5d-11e7-bc1b-fddbd8359dee_story.html?utm_term=.d58d163e3976&wpmk=MK0000200>
The Supreme Court could announce as soon as Monday that it is either affirming or reversing the lower court’s decision, or, more likely, accepting the case for full briefing and arguments in the term that begins in the fall.
The case comes at a time when the dusty subject of reapportionment has taken on new significance, with many blaming the drawing of safely partisan seats for a polarized and gridlocked Congress. Barack Obama has said one of his post-presidency projects will be to combat partisan gerrymanders after the 2020 Census.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Al Franken Quotes Election Law Profs Guy Charles, David Schultz, in New Book<http://electionlawblog.org/?p=93065>
Posted on June 11, 2017 12:17 pm<http://electionlawblog.org/?p=93065> by Rick Hasen<http://electionlawblog.org/?author=3>
From Franken’s Giant of the Senate<https://www.amazon.com/Al-Franken-Giant-Senate/dp/1455540412/ref=sr_1_1?ie=UTF8&qid=1497208489&sr=8-1&keywords=al+franken+giant+of+the+senate>:
[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-06-11-at-12.16.29-PM.png]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-06-11-at-12.16.29-PM.png>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“A Pro-Trump Conspiracy Theorist, a False Tweet and a Runaway Story”<http://electionlawblog.org/?p=93063>
Posted on June 11, 2017 8:38 am<http://electionlawblog.org/?p=93063> by Rick Hasen<http://electionlawblog.org/?author=3>
Jeremy Peters for the NYT:<https://www.nytimes.com/2017/06/10/us/politics/comey-fake-news-twitter-posobiec.html?ref=politics&_r=0>
But as the journey of that one tweet shows, misinformed, distorted and false stories are gaining traction far beyond the fringes of the internet. Just 14 words from Mr. Posobiec’s Twitter account would spread far enough to provide grist for a prime-time Fox News commentary and a Rush Limbaugh monologue that reached millions of listeners, forging an alternative first draft of history in corners of the conservative media where President Trump’s troubles are often explained away as fabrications by his journalist enemies.
In this fragmented media environment, the spread of false information is accelerated and amplified by a web of allied activist-journalists with large online followings, a White House that grants them access and, occasionally, a president who validates their work. The right-wing media machine that President Bill Clinton’s aides once referred to as “conspiracy commerce<http://www.washingtonpost.com/wp-srv/politics/special/pjones/stories/pj011097.htm>” is now far more mature, extensive and, in the internet age, tough to counter.
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Posted in social media and social protests<http://electionlawblog.org/?cat=58>

“Guest column: We still need majority-minority judicial sub-districts”<http://electionlawblog.org/?p=93061>
Posted on June 11, 2017 8:32 am<http://electionlawblog.org/?p=93061> by Rick Hasen<http://electionlawblog.org/?author=3>
Pascal Frank Calogero Jr. writes for The Advocate<http://www.theadvocate.com/baton_rouge/opinion/article_4b579fec-4c64-11e7-a07b-2327eceeb04c.html> (La.).
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Sheldon Adelson Organizing Super PAC to Support Republican Redistricting Efforts in 2020<http://electionlawblog.org/?p=93057>
Posted on June 10, 2017 9:39 am<http://electionlawblog.org/?p=93057> by Rick Hasen<http://electionlawblog.org/?author=3>
Teddy Schleifer<http://www.cnn.com/2017/06/10/politics/romney-trump-midterms-donors/index.html> for CNN:
One person filling some of the fundraising leadership void left by Trump: Sheldon Adelson, the party’s largest contributor, who is preparing for possible headwinds ahead of 2018, according to a person with knowledge of his plans.
Adelson has begun sounding out other contributors, such as the Ricketts family, on forming a new super PAC that would focus on governors’ races and state legislative races ahead of the next redistricting cycle in 2020. Adelson would be willing to commit substantial resources to the group, which is still in early talks but is envisioned as a heavyweight GOP group similar to the Senate Leadership Fund or Congressional Leadership Fund.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, redistricting<http://electionlawblog.org/?cat=6>

“Trump Can Take Payments From Foreign Governments, U.S. Says”; DOJ Borrows From Prof’s Article without Citation<http://electionlawblog.org/?p=93052>
Posted on June 10, 2017 8:31 am<http://electionlawblog.org/?p=93052> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg<https://www.bloomberg.com/politics/articles/2017-06-09/trump-can-accept-payments-from-foreign-governments-u-s-argues?utm_campaign=pol&utm_medium=bd&utm_source=applenews> on this DOJ brief:<https://www.documentcloud.org/documents/3862230-2017-6-9-350862663-Trump-Motion-to-Dismiss.html>
George Washington did it, so Donald Trump can too.
That’s the Justice Department’s take on why the 45th president isn’t violating the U.S. Constitution by accepting payments for goods and services from foreign governments without congressional approval.
The foreign emoluments clause of the Constitution doesn’t apply to fair-market commercial transactions, such as hotel bills, golf club fees, licensing payments and office rent, the Justice department argued Friday in a filing. The government is asking a judge to throw out a lawsuit brought by a watchdog group that claims Trump’s business dealings violate the Constitution.
 Andy Grewal: “Chunk of it seems to have been lifted from my article https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902391 …<https://t.co/q0RxdDuDT7> and then massaged to change wording [�] .”
Update: More on the issue of business transactions and emoluments from Seth Tillman<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2957162>, from which it appears the government also borrowed<https://twitter.com/JoshMBlackman/status/873565384959561731>.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, Department of Justice<http://electionlawblog.org/?cat=26>

“Will Supreme Court Cut More of Voting Rights Act?”<http://electionlawblog.org/?p=93050>
Posted on June 10, 2017 8:24 am<http://electionlawblog.org/?p=93050> by Rick Hasen<http://electionlawblog.org/?author=3>
Kimberly Robinson<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=113762589&vname=mpebulallissues&jd=a0m6g5d1v4&split=0> for Bloomberg BNA:
After the U.S. Supreme Court’s landmark 2013 decision in Shelby Cty. v. Holder<http://www.bloomberglaw.com/public/document/Shelby_Cnty_v_Holder_133_S_Ct_2612_186_L_Ed_2d_651_2013_Court_Opi?doc_id=X1JQI5M003>, Democrats have increasingly turned to another part of the Voting Rights Act, Section 2, to challenge what they see as restrictive voting requirements.
Despite recent victories under that provision, election law litigator Paul M. Smith<http://www.campaignlegalcenter.org/team/paul-m-smith> questioned its validity in a “post-Kennedy” world. Smith, of the Campaign Legal Center, Washington, was referring to the speculation that swing-Justice Anthony M. Kennedy might retire in coming years.
Section 2 isn’t likely to fall in the near future, William S. Consovoy<http://consovoymccarthy.com/team/william-s-consovoy/>, of Consovoy McCarthy Park PLLC, Washington, said. But if Democrats use Section 2 to aggressively attack state laws, it could put the provision at risk.
Smith, who frequently represents Democrats and minorities in voting right challenges, and Consovoy, frequently on the other side, were speaking on a voting rights panel at the annual convention of the progressive American Constitution Society in Washington June 9.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

Breaking: 3-Judge Court in NC Racial Gerrymandering Case Wants Briefing on Whether to Order Special Election, Etc.<http://electionlawblog.org/?p=93046>
Posted on June 9, 2017 2:35 pm<http://electionlawblog.org/?p=93046> by Rick Hasen<http://electionlawblog.org/?author=3>
The three judge court is acting <http://electionlawblog.org/wp-content/uploads/Covington-Notice.pdf> even before the official mandate from the Supreme Court.  Among other things, the court wants to know who speaks for North Carolina.  A very good question.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

ACORN Flawed Business Model Apparently Reappears in Indiana Voter Registration Effort<http://electionlawblog.org/?p=93044>
Posted on June 9, 2017 2:13 pm<http://electionlawblog.org/?p=93044> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://apnews.com/6b71a926cb624a209851b41ac616b184?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP>
Twelve employees of a Democrat-linked group focused on mobilizing black voters in Indiana are accused of submitting fake or fraudulent voter registration applications ahead of last year’s general election in order to meet quotas, according to charging documents filed Friday.
Prosecutors allege that 11 temporary workers employed by the Indiana Voter Registration Project created and submitted an unknown number of falsified applications. According to a probable cause affidavit, a supervisor for those canvassers, Holiday Burke, was also charged, as was the group.
Marion County Prosecutor Terry Curry said State Police found no evidence of voter fraud or voter suppression and that the charges against the workers arose from “a very bad, ill-advised business practice” of setting canvassers what appears to be a daily quota….
Curry said it’s unclear how many problematic applications were submitted, but that it was “a relatively small number.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

View the Front Matter of Lowenstein, Hasen, Tokaji, Stephanopoulos, Election Law-Cases and Materials 6e<http://electionlawblog.org/?p=93042>
Posted on June 9, 2017 1:31 pm<http://electionlawblog.org/?p=93042> by Rick Hasen<http://electionlawblog.org/?author=3>
The book<http://www.cap-press.com/books/isbn/9781531004729/Election-Law-Sixth-Edition> is on its way to the printer, and in the meantime, here<http://www.cap-press.com/pdf/9781531004729.pdf> are the table of contents, etc.
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Posted in pedagogy<http://electionlawblog.org/?cat=23>

“White House Official Violated Law Banning Political Activity, Agency Says”<http://electionlawblog.org/?p=93039>
Posted on June 9, 2017 11:16 am<http://electionlawblog.org/?p=93039> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT: <https://mobile.nytimes.com/2017/06/09/us/politics/dan-scavino-hatch-act-amash.html?emc=edit_tnt_20170609&nlid=1811197&tntemail0=y&_r=0&referer=>
Dan Scavino Jr., the White House director of social media, violated a federal law that prohibits political activity by government employees, the federal agency empowered to enforce the law has concluded, citing the tweet Mr. Scavino sent in April calling for the defeat of a Republican member of Congress who has been critical of President Trump.
The United States Office of Special Counsel took no official action to punish Mr. Scavino, but it issued a warning that became public on Friday that “if in the future he engages in prohibited poitical activity while employed in a position covered by the Hatch Act<https://osc.gov/Pages/HatchAct.aspx>,” it could move to enforce the 78-year-old law.<https://osc.gov/Pages/HatchAct.aspx>
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>

“Bernie Sanders and Rick Hasen Are Two Sides of the Same Defective Coin on Free Speech”<http://electionlawblog.org/?p=93037>
Posted on June 9, 2017 8:24 am<http://electionlawblog.org/?p=93037> by Rick Hasen<http://electionlawblog.org/?author=3>
Joe Albanese <http://www.campaignfreedom.org/2017/06/08/bernie-sanders-and-rick-hasen-are-two-sides-of-the-same-defective-coin-on-free-speech/> for the Center for Competitive Politics.
My rebuttal. <https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300223544/ref=asap_bc?ie=UTF8>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93037&title=%E2%80%9CBernie%20Sanders%20and%20Rick%20Hasen%20Are%20Two%20Sides%20of%20the%20Same%20Defective%20Coin%20on%20Free%20Speech%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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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