[EL] ELB News and Commentary 6/15/17

Thu Jun 15 08:30:30 PDT 2017

“Black Civil Rights Groups To Meet With Democratic Leaders On Voting”<http://electionlawblog.org/?p=93157>
Posted on June 15, 2017 8:12 am<http://electionlawblog.org/?p=93157> by Rick Hasen<http://electionlawblog.org/?author=3>
BuzzFeed reports.<https://www.buzzfeed.com/darrensands/black-civil-rights-groups-to-meet-with-democratic-leaders?utm_term=.qeEQP6aR9o#.shb8g5Z4pm>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Justice Neil Gorsuch offers early clues to Supreme Court tenure”<http://electionlawblog.org/?p=93155>
Posted on June 15, 2017 8:05 am<http://electionlawblog.org/?p=93155> by Rick Hasen<http://electionlawblog.org/?author=3>
Richard Wolf<https://www.usatoday.com/story/news/politics/2017/06/15/justice-neil-gorsuch-offers-early-clues-supreme-court-tenure/102825022/> for USA Today:
More signs of his emerging role came in May, when Gorsuch sided with Justice Clarence Thomas in urging the court to consider whether to lift a ban on unlimited federal election spending by political parties. The court refused to hear the case, but Gorsuch went out of his way to note his disapproval.
“It shows he’s not shy to be out there,” said Rick Hasen, a University of California-Irvine law professor who maintains a blog on election law. “I feel like he’s hit the blocks running, and I don’t think he’s likely to exhibit the kind of caution that we’ve seen from some justices.”
Later that month, the court agreed to hear Ohio’s challenge<https://www.usatoday.com/story/news/politics/2017/05/30/supreme-court-hear-case-ohio-voter-purges/102307898/> to a federal appeals court ruling that struck down the aggressive way it purges voters from registration rolls. Voting rights groups decried the move, while those more concerned about voter fraud cheered it.
It’s impossible to know if Gorsuch was among at least four justices needed to approve hearing the case next term. But the move could signify that some of the court’s more conservative justices believe Ohio and other states have a right to purge voters for not voting in several successive elections.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Senators Grill Trump Judicial Nominees On Provocative Blog Posts”<http://electionlawblog.org/?p=93152>
Posted on June 15, 2017 7:57 am<http://electionlawblog.org/?p=93152> by Rick Hasen<http://electionlawblog.org/?author=3>
Nina Totenberg reports<http://www.npr.org/2017/06/15/533014228/senators-grill-trump-judicial-nominees-on-provocative-blog-posts?live=1> for NPR on “The Case of the Bloviating Bloggers.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

NC Gov. Cooper Says NC General Assembly May Drag Out Passing New Redistricting Plan that is Unconstitutional<http://electionlawblog.org/?p=93149>
Posted on June 15, 2017 7:54 am<http://electionlawblog.org/?p=93149> by Rick Hasen<http://electionlawblog.org/?author=3>
WFAE:<http://wfae.org/post/wfae-exclusive-governor-cooper-talks-redistricting-i-77-tolls-budgets-and-gun-bill>
Cooper: It’s pretty rare when the United States Supreme Court issues a 9-0 decision on such a controversial issue as redistricting. But it’s clear that these racially gerrymandered districts are unconstitutional. I don’t think we should have another budget pass or another legislative session without fixing this problem. And the Republican leadership is dragging its feet on drawing these maps. They say they want direction from the court. But there’s no direction that the court is going to give them except a time limit on when they need to have the maps drawn and when the election is going to be.
Bullock: And that guidance the federal panel says will come quickly, so I do want to bring up the Republican leaders of the General Assembly points, sir. Why not wait to at least see what their timeline is? Why not let this process take a bit of time and make sure that it’s done correctly?
Cooper: The reason they wanted to take time is because it’s quite possible that the maps that they pass again are not constitutional. So they want to drag this thing out so it’s bumping up against the next election. What we’re talking about is whether the legislature draws these maps or the court does. And if these maps aren’t drawn quickly, I would hope that the court would do it.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“The Senate’s Health Care Bill Remains Shrouded in Secrecy”<http://electionlawblog.org/?p=93147>
Posted on June 15, 2017 7:47 am<http://electionlawblog.org/?p=93147> by Rick Hasen<http://electionlawblog.org/?author=3>
NBC News:<http://www.nbcnews.com/politics/congress/senate-s-health-care-bill-remains-shrouded-secrecy-n772456>
The Senate is closing in on a health care bill that could affect coverage for tens of millions of Americans and overhaul an industry that makes up one-sixth of the economy.
Only one problem: Almost no one knows what’s in it.
In a striking break from how Congress normally crafts legislation, including Obamacare, the Senate is conducting its negotiations behind closed doors. The process began five weeks ago, after the House passed its version of health care reform, with a small working group of 13 senators that included no women.
The opaque process makes it impossible to evaluate whether there are any significant changes coming to health care. There are no hearings with health experts, industry leaders, and patient advocacy groups to weigh in where the public can watch their testimony or where Democrats can offer amendments.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“Pew: Request For Applications Signals Next Step In Voting Information Project Transition”<http://electionlawblog.org/?p=93145>
Posted on June 15, 2017 7:45 am<http://electionlawblog.org/?p=93145> by Rick Hasen<http://electionlawblog.org/?author=3>
Big news <http://editions.lib.umn.edu/electionacademy/2017/06/15/pew-request-for-applications-signals-next-step-in-voting-information-project-transition/> and a great opportunity to fund a crucial project.
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Posted in election administration<http://electionlawblog.org/?cat=18>

Today’s Must-Read: BuzzFeed on Dan Backer’s “Scam PACs” and the Hyperpartisan Websites Touting Them<http://electionlawblog.org/?p=93143>
Posted on June 15, 2017 7:42 am<http://electionlawblog.org/?p=93143> by Rick Hasen<http://electionlawblog.org/?author=3>
Great investigation<https://www.buzzfeed.com/craigsilverman/how-a-dc-lawyer-uses-hyperpartisan-websites-to-raise-money?utm_term=.abMEV5v2Xj#.rcq7Xl4Qzg> by Craig Silverman and Tarini Parti:
Those three groups — Great America PAC, Great America Alliance and Stop Hillary PAC— have been cited or promoted in some way in more than 110 articles on AAN dating back to 2015. Of those, just 11 contained a label noting to readers that the content was sponsored. (Click here<https://docs.google.com/spreadsheets/d/1RkvlF9Dz-UJgAmp8puc-0fDzhMbH5Aa3d8Nu-tdMHB4/edit?usp=sharing> to view a spreadsheet listing AAN articles that cite these and other related PACs or organizations.)
Though it’s not disclosed to readers, the PACs and AAN share a key person in common: a Washington-area lawyer named Dan Backer who is an outspoken opponent of campaign finance rules that limit money in politics.
Backer is notorious in Washington for filing paperwork on behalf of a slew of PACs that popped up at the height of the Tea Party movement. Some of those grassroots conservative groups have come under fire for spending little of what they raise on political activity, causing some Republicans<https://twitter.com/RogerJStoneJr/status/728690794782019584> to label them “scam PACs.”<http://www.politico.com/story/2015/01/super-pac-scams-114581>
Backer is widely acknowledged as a pioneer in creating and funding hybrid PACs, which merged traditional PACs with super PACs that can raise and spend unlimited money.
And now it seems he’s pioneered a model that utilizes the popularity of hyperpartisan news<https://www.buzzfeed.com/craigsilverman/partisan-fb-pages-analysis> to drive donations, petition sign ups, and general publicity for his PACs — largely without ever telling the reader that the website and PAC all trace back to the same person.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“How Congress Failed to Plan for Doomsday”<http://electionlawblog.org/?p=93141>
Posted on June 15, 2017 7:38 am<http://electionlawblog.org/?p=93141> by Rick Hasen<http://electionlawblog.org/?author=3>
Garrett Graff has written this piece<http://www.politico.com/magazine/story/2017/06/15/how-congress-failed-to-plan-for-doomsday-215266> for Politico, with the subhead: “What would happen if some crazed gunman or terrorist massacred Congress? We don’t really know—and that’s bad news for our democracy.”
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“If Voting Machines Were Hacked, Would Anyone Know?”<http://electionlawblog.org/?p=93139>
Posted on June 14, 2017 4:02 pm<http://electionlawblog.org/?p=93139> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler for NPR.<http://www.npr.org/2017/06/14/532824432/if-voting-machines-were-hacked-would-anyone-know?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social>
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

“Special counsel is investigating Trump for possible obstruction of justice, officials say”<http://electionlawblog.org/?p=93137>
Posted on June 14, 2017 3:37 pm<http://electionlawblog.org/?p=93137> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/world/national-security/special-counsel-is-investigating-trump-for-possible-obstruction-of-justice/2017/06/14/9ce02506-5131-11e7-b064-828ba60fbb98_story.html?tid=sm_tw&utm_term=.1e216b2b4a04>
The special counsel overseeing the investigation into Russia’s role in the 2016 election is interviewing senior intelligence officials as part of a widening probe that now includes an examination of whether President Trump attempted to obstruct justice, officials said.
The move by Special Counsel Robert S. Mueller III<https://www.washingtonpost.com/world/national-security/deputy-attorney-general-appoints-special-counsel-to-oversee-probe-of-russian-interference-in-election/2017/05/17/302c1774-3b49-11e7-8854-21f359183e8c_story.html?tid=ptv_rellink&utm_term=.91a2f6dcc3d8> to investigate Trump’s own conduct marks a major turning point in the nearly year-old FBI investigation, which until recently focused on Russian meddling during the presidential campaign and on whether there was any coordination between the Trump campaign and the Kremlin. Investigators have also been looking for any evidence of possible financial crimes among Trump associates, officials said.
Trump had received private assurances from former FBI Director James B. Comey starting in January that he was not personally under investigation. Officials say that changed shortly after Comey’s firing.
Have to see this revelation in light of Trump’s threat to fire Mueller. For Trump to fire him now would look like Trump saving own skin. I’d say, contra some others, that if Trump fires Mueller now, Rs would more seriously consider impeachment, giving them the preferred Pence.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Electoral Integrity Project Pre-APSA Workshop, Aug. 30 in San Francisco<http://electionlawblog.org/?p=93135>
Posted on June 14, 2017 3:15 pm<http://electionlawblog.org/?p=93135> by Rick Hasen<http://electionlawblog.org/?author=3>
Very excited to be participating in this event<https://www.electoralintegrityproject.com/san-francisco-workshop>, Protecting Electoral Security and Voting Rights: The 2016 U.S. Elections in Comparative Perspective.
Preliminary program<https://www.dropbox.com/s/22ybhrxzanvffrl/2017%20EIP%20pre-APSA%20program%20and%20abstracts.pdf?dl=0>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The Strange Civil Rights Views of Trump’s Latest Court Nominees”<http://electionlawblog.org/?p=93133>
Posted on June 14, 2017 12:38 pm<http://electionlawblog.org/?p=93133> by Rick Hasen<http://electionlawblog.org/?author=3>
Kyle Barry <http://www.politico.com/magazine/story/2017/06/14/trump-judicial-nominees-civil-rights-newsom-bush-schiff-215253> for Politico:
Bush is shocking in his blatant disdain for equal rights and animus toward racial and other minorities. While blogging under a pseudonym in 2008, Bush invoked Dr. Martin Luther King Jr. to attack women’s reproductive rights. In a post<https://urldefense.proofpoint.com/v2/url?u=https-3A__elephantsinthebluegrass.blogspot.com_2008_01_legacy-2Dfrom-2Ddr-2Dkings-2Ddream-2Dthat.html-3Fm-3D1&d=DQMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=xYiApOB9FHxVY5OKjUXFPa18lDF2U-8jzj6Mk8-MA-w&m=BmBWI7_Gvo7fT574ikz-c4iap06C22VNxz9FPTgG5zI&s=0y0BiRjg4tIk4fHqD57NqCAbmLj5Pa-EORDQq9i6opU&e=> titled “The Legacy from Dr. King’s Dream That Liberals Ignore,” Bush joined Newsom in comparing Dred Scott to Roe (both “relied on similar reasoning and activist justices”), and wrote that “slavery and abortion” are the “two greatest tragedies in our country.” In his Senate questionnaire<https://www.judiciary.senate.gov/imo/media/doc/Bush%20SJQ.pdf>, he dismissively referred to the brutal 1993 beating of Rodney King by Los Angeles police officers as a “police encounter.” In another blog post, he brushed aside the discriminatory effects of voter ID laws. Bush has also said<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.afj.org_blog_trump-2Djudicial-2Dnominee-2Djohn-2Dk-2Dbush-2Dhas-2Dadvocated-2Dstripping-2Dfirst-2Damendment-2Dprotections-2Dfrom-2Dthe-2Dpress&d=DQMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=xYiApOB9FHxVY5OKjUXFPa18lDF2U-8jzj6Mk8-MA-w&m=BmBWI7_Gvo7fT574ikz-c4iap06C22VNxz9FPTgG5zI&s=vVTzPyJrVgw8_7GC_ejcvvqpM5X4yHMz6zjL7_xM3_k&e=> that a landmark Supreme Court ruling protecting the freedom of the press was wrongly decided, a view disturbingly convenient for a president who incessantly attacks the media. Perhaps most troubling about Bush, though, is what he hasn’t voiced: In forms filed with the U.S. Senate, Bush failed to disclose—as required by Senate Judiciary Committee rules—that a Louisville social club to which he belongs had a long history of excluding African-Americans, women and Jews.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Supreme Court Could Agree to Hear WI Partisan Gerrymandering, Voting Rights Cases as Early as Monday<http://electionlawblog.org/?p=93131>
Posted on June 14, 2017 11:49 am<http://electionlawblog.org/?p=93131> by Rick Hasen<http://electionlawblog.org/?author=3>
John Elwood<http://www.scotusblog.com/2017/06/relist-watch-108/> for SCOTUSBlog’s “Relist Watch:”
his week we have five new relists, taxing even my prodigious ability to string transitions between questions presented. For people who have been watching the recent North Carolina election cases like Harris v. Cooper<http://www.scotusblog.com/case-files/cases/harris-v-cooper/>, 16-166<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-166.htm>, our first new relist is like déjà vu all over again. In Gill v. Whitford<http://www.scotusblog.com/case-files/cases/gill-v-whitford/>, 16-1161, the state of Wisconsin seeks review of the judgment of a three-judge district court, which by a divided vote (and in a total of 159 pages<http://www.scotusblog.com/wp-content/uploads/2017/04/16-1161-op-bel-dist-ct-wisc.pdf> of opinions) invalidated the state legislative district map on the grounds that it represented unlawful partisan – yes, partisan, not racial – gerrymandering. In light of all the language in Vieth v. Jubelirer<https://supreme.justia.com/cases/federal/us/541/267/> about the lack of judicially manageable standards for partisan-gerrymander claims, successful partisan-gerrymandering claims have been something of a unicorn, so this case undoubtedly has the court’s full attention. The case is part of the court’s tiny appellate (not certiorari) docket, which means they have to do something with it. Summary affirmance seems unlikely; summary reversal would be a heavy lift when dealing with a 119-page majority opinion. So perhaps the smart bet would be that the court will note probable jurisdiction, set the case for argument, and brace itself for the sea of green<http://img01.deviantart.net/e033/i/2005/192/3/1/sky_of_blue_sea_of_green_by_choffman36.jpg> (briefs<http://www.bidssupply.com/v/vspfiles/photos/C304-GR-2.jpg>) that will be washing its way<http://www.npr.org/assets/news/2015/04/double-stack.gif> over the summer.
Northeast Ohio Coalition for the Homeless v. Husted<http://www.scotusblog.com/case-files/cases/northeast-ohio-coalition-homeless-v-husted/>, 16-1068, represents something of a classic candidate for cert: a clear split that even the respondent acknowledges (though disparaging it as “stale<http://i.dailymail.co.uk/i/pix/2015/04/01/10/272B0E3A00000578-3021159-image-m-5_1427882018952.jpg>” and “shallow<http://i.dailymail.co.uk/i/pix/2015/05/05/02/28504A6E00000578-3068003-Glamour_girl_The_star_appeared_to_be_in_her_element-a-53_1430789435308.jpg>”) on a discrete legal issue: “Whether private parties can sue to enforce 52 U.S.C. § 10101.” But what is “10101”? I mean, other than the base-2 rendering of the age at which drinking Jäger Bombs<https://s-media-cache-ak0.pinimg.com/originals/96/7b/f2/967bf2c07ed7aeca811714dad3eeb29a.jpg> stops being illegal and becomes merely a<https://img.buzzfeed.com/buzzfeed-static/static/2014-11/27/11/campaign_images/webdr01/23-people-who-are-definitely-hungover-right-now-2-29403-1417104621-5_dblbig.jpg> bad<https://s-media-cache-ak0.pinimg.com/originals/99/a2/6d/99a26d6a8694ac39ce480a24a5d97cef.jpg> idea<https://flavorwire.files.wordpress.com/2011/11/funny-people-merman.jpg?w=1920>. Turns out Section 10101 is a provision of the Voting Rights Act that provides that no one acting under color of law may “deny the right of any individual to vote in any election because of an error or omission” on a registration, application or ballot if the error or omission “is not material” in determining whether the individual is qualified to vote. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] Also, they invented Jäger Bombs.<https://ci.memecdn.com/7014962.jpg>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Trump Campaign Statements Protected in Travel Ban Case, Group Says”<http://electionlawblog.org/?p=93129>
Posted on June 14, 2017 10:39 am<http://electionlawblog.org/?p=93129> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<https://www.bna.com/trump-campaign-statements-n73014453276/>
Relying on statements President Donald Trump made during his campaign to argue against his proposed immigration restrictions could chill free speech in campaigns, posing “an unacceptable risk to First Amendment interests,” according to a new brief filed with the Supreme Court ( Trump v. International Refugee Assistance Project, U.S. No. 16-1436, brief filed 6/9/17).
The friend-of-the-court brief<http://www.campaignfreedom.org/wp-content/uploads/2017/06/Trump-v.-Intl-Regugee-Assistance-Amicus_6.9.17.pdf> filed by the nonprofits Center for Competitive Politics (CCP) and Public Policy Legal Institute (PPLI) urges the high court to grant review of a lower court decision that struck down Trump’s executive order banning travel to the U.S. by individuals from six Muslim-majority countries. Challengers of the ban cited Trump’s campaign statements to argue that the travel ban targets Muslims and thus violates religious freedom, also guaranteed by the First Amendment….
he Supreme Court brief filed by CCP and PPLI argues that the Supreme Court should take the travel-ban case in order to uphold precedents established in recent campaign finance cases, such as Citizens United v. Federal Election Commission and McCutcheon v. FEC, and other cases. In these rulings, the court majority provided broad First Amendment protection to campaign speech, the brief said.
Other observers also have suggested that arguments emphasizing First Amendment protections for campaign speech could play a significant role in the travel ban case. Richard Hasen, an election law expert and University of California Irvine law professor, noted in an article posted on his Election Law Blog a dissent by Ninth Circuit Judge Alex Kozinski at an erlier stage of the travel-ban litigation. The dissent offered a possible “lifeline” to Trump by arguing that it would violate the First Amendment to take Trump’s campaign statements “evincing anti-Muslim animus seriously (or literally),” Hasen said.
“It’s an argument that just might attract the [Supreme] Court’s conservatives … and lead them to reject constitutional challenges to the new executive order,” Hasen said. “And that would be a shame, not just for this case, but for all cases raising claims of government bias.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

--
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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