[EL] ELB News and Commentary 6/24/17

[Rick Hasen]

ELB Podcast Episode 17. Josh Chafetz: Congress’s Power Before, During, and After Trump<http://electionlawblog.org/?p=93351>
Posted on June 23, 2017 4:59 pm<http://electionlawblog.org/?p=93351> by Rick Hasen<http://electionlawblog.org/?author=3>
In this era of polarization in politics, how much power does Congress have compared to the President and the courts? Is the Republican Congress a meaningful check on President Trump? How well does Congress do at policing ethical lapses of its own members?
On Episode 17 of the ELB Podcast, we talk with Josh Chafetz, Cornell Law School professor and author of the new book, Congress’s Constitution: Legislative Authority and the Separation of Powers.<https://www.amazon.com/Congresss-Constitution-Legislative-Authority-Separation/dp/0300197101>
You can listen to the ELB Podcast Episode 17 on Soundcloud<https://soundcloud.com/rick-hasen/elb-podcast-episode-17> or subscribe at iTunes.<https://geo.itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93351&title=ELB%20Podcast%20Episode%2017.%20Josh%20Chafetz%3A%20Congress%E2%80%99s%20Power%20Before%2C%20During%2C%20and%20After%20Trump>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Court Fines SOS Kobach $1000 for Misleading Court on NVRA Documents, Allows ACLU to Depose Kobach<http://electionlawblog.org/?p=93347>
Posted on June 23, 2017 2:02 pm<http://electionlawblog.org/?p=93347> by Rick Hasen<http://electionlawblog.org/?author=3>
The 24-page order and opinion<http://www.politico.com/f/?id=0000015c-d697-d0dd-ad5e-f69fb4f40000> of the magistrate judge could be appealed.  The underlying document—Kobach’s advice to Trump as to how to make it harder for people to register to vote by changing the federal National Voter Registration Act (NVRA)—remains under seal, but, as Josh Gerstein explain<http://www.politico.com/blogs/under-the-radar/2017/06/23/kris-kobach-fined-voting-lawsuit-trump-memo-239910>s, “Despite the ruling, the memo Kobach took into the meeting with Trump may well wind up in the public domain eventually. O’Hara suggested that if one of parties files the memo in court as part of formal pleadings in the case, it is likely to be made public.”
The magistrate judge also gave a glimpse as to what the document under seal actually says:
In response to the motion, defendant made patently misleading representations to the court about the documents, which at the time had not been produced to either the court or plaintiffs, such that the court was required to take defendant at his word. For example, in discussing the text of the draft amendment, defendant stated, “that text does not propose to ‘amend or alter’ an ‘eligibility-assessment procedures [sic] mandated by the NVRA.’” A review of the draft amendment, however, indicates that the text proposed amending the NVRA’s provisions governing the type of information a state could require voter-registration applicants provide to enable the state to assess the applicant’s eligibility.
In another example, defendant’s response brief states,
Plaintiffs theorize that ‘[A]ny alternative methods proposed by Defendant to alter the assessment of voter eligibility under the NVRA go directly to the second prong of the Tenth Circuit’s analysis.’ Pls. Memo. at 7. Plaintiffs suppose that, ‘efforts by Defendant to seek alternative means of assessing voter qualifications by amending the NVRA would suggest that a DPOC requirement is not the least restrictive method of verifying eligibility.’ Pls. Memo. at 7. First, had Plaintiffs actually sought the documents that they now claim they are seeking, Defendant would have responded that no such documents exist.
This paragraph gives the strong impression that neither of the two at-issue documents relate to proposals by defendant to amend the NVRA’s eligibility-assessment provisions. Upon in camera review of the documents, the undersigned learned this is clearly not the case.
The judge granted the right to depose Kobach rather than use written interrogatories because the judge feared more word games from Kobach. Indeed, the judge will personally preside over the 60 minute deposition on July 5 to rule on objections immediately. The deposition’s contents will, at least for now, be under seal.
(Kobach may appeal any or all of this from the magistrate judge to the district court judge.)
And, yeah, Kobach is the vice chair of President Trump’s “Election Integrity” commission.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93347&title=Court%20Fines%20SOS%20Kobach%20%241000%20for%20Misleading%20Court%20on%20NVRA%20Documents%2C%20Allows%20ACLU%20to%20Depose%20Kobach>
Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Issue Brief: Why Are Millions of Citizens Not Registered to Vote?”<http://electionlawblog.org/?p=93345>
Posted on June 23, 2017 11:24 am<http://electionlawblog.org/?p=93345> by Rick Hasen<http://electionlawblog.org/?author=3>
Pew:<http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2017/06/why-are-millions-of-citizens-not-registered-to-vote>
Despite these efforts, little is known about eligible but unregistered U.S. citizens’ exposure to opportunities to register, reasons for choosing not to, or attitudes toward the electoral system and civic engagement, or how many of them are interested in registering in the future. To begin to fill this gap, The Pew Charitable Trusts commissioned a nationally representative survey conducted in March and April 2016 that included a large population of unregistered individuals. This chartbook presents findings from the survey about the attitudes and experiences of those who said they were not registered to vote in the months preceding the 2016 presidential election, including:

  *   Less than 20 percent of eligible citizens have been offered the chance to register at a motor vehicle or other government agency.
  *   The unregistered were more likely to say they do not vote because they dislike politics or believe voting will not make a difference, while people who are registered but vote infrequently say they do not vote more often because they are not informed enough about the candidates or issues.
  *   At least 13 percent of the unregistered, generally those who are younger and more civically engaged, say they could be motivated to register in the future.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93345&title=%E2%80%9CIssue%20Brief%3A%20Why%20Are%20Millions%20of%20Citizens%20Not%20Registered%20to%20Vote%3F%E2%80%9D>
Posted in voting<http://electionlawblog.org/?cat=31>


“Has the Top Two Primary Elected More Moderates?”<http://electionlawblog.org/?p=93343>
Posted on June 23, 2017 11:22 am<http://electionlawblog.org/?p=93343> by Rick Hasen<http://electionlawblog.org/?author=3>
Eric (“Efficiency Gap”) McGhee and Boris Shor have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2991673> on SSRN.  Here is the abstract:
Party polarization is perhaps the most significant political trend of the past several decades of American politics. Many observers have pinned hopes on institutional reforms to reinvigorate the political center. The Top Two primary is one of the most interesting and closely-watched of these reforms: a radically open primary system that removes much of the formal role for parties in the primary election and even allows for two candidates of the same party to face each other in the fall. In this paper, we leverage the adoption of the Top Two in California and Washington to explore the reform’s effects on legislator behavior. We find an inconsistent effect since the reform was adopted in these two states. The evidence for post-reform moderation is stronger in California than in Washington, but some of this stronger effect appears to stem from a contemporaneous policy change—district lines drawn by an independent redistricting commission—while still more might have emerged from a change in term limits that was also adopted at the same time. The results validate some claims made by reformers, but question others, and their magnitude casts some doubt on the potential for institutions to reverse the polarization trend.
Can’t wait to read this!

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93343&title=%E2%80%9CHas%20the%20Top%20Two%20Primary%20Elected%20More%20Moderates%3F%E2%80%9D>
Posted in political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>, primaries<http://electionlawblog.org/?cat=32>, redistricting<http://electionlawblog.org/?cat=6>


“Who? White House names unknowns to voting panel”<http://electionlawblog.org/?p=93341>
Posted on June 23, 2017 11:18 am<http://electionlawblog.org/?p=93341> by Rick Hasen<http://electionlawblog.org/?author=3>
Zack Roth:<https://thedailydemocracy.org/2017/06/22/who-white-house-names-unknowns-to-voting-panel/>
President Trump’s commission on voter fraud appears to be struggling to attract A-list talent, at least among Democrats.
The White House announced<https://www.whitehouse.gov/the-press-office/2017/06/21/president-donald-j-trump-announces-intent-nominate-personnel-key> three new members of the panel late Wednesday: Mark Rhodes, the clerk for Wood County, West Virginia; David Dunn (pictured), an Arkansas lobbyist and former Democratic state lawmaker; and Luis Borunda, a deputy secretary of state for Maryland, and an appointee of Gov. Larry Hogan, a Republican.
“Never heard of any of these folks,” Rick Hasen, an election law professor at the University of California, Irvine and a long-time close observer of the world of election administration, wrote on Twitter<https://twitter.com/rickhasen/status/877894171452874752> Thursday.
Of the three, only Rhodes appears to have direct experience running elections — for a county with a population of just 86,000. Borunda’s portfolio<http://sos.maryland.gov/Pages/Deputy-Secretary-Luis-Borunda.aspx> in the secretary of state’s office doesn’t include elections, according to his bio. And Dunn appears to have focused<http://www.capitolpartners.co/partners/> mostly on economic and tax issues.
“No disrespect but there are many significantly more qualified election practitioners from whom [to] choose, but who would likely say no,” Michelle Shafer, a senior adviser on elections technology for the Council on State Governments, wrote on Twitter<https://twitter.com/michelleshafer/status/877914488242098181>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93341&title=%E2%80%9CWho%3F%20White%20House%20names%20unknowns%20to%20voting%20panel%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


Verified Voting/Common Cause Letter: Government Needs to Do More to Deal with Risk of Voting Machine Hacking<http://electionlawblog.org/?p=93339>
Posted on June 23, 2017 8:13 am<http://electionlawblog.org/?p=93339> by Rick Hasen<http://electionlawblog.org/?author=3>
Letter:<https://www.verifiedvoting.org/verified-voting-letter-to-the-us-senate-select-committee-on-intelligence/>
This letter was sent to the US Senate Select Committee on Intelligence following a hearing on June 21, 2017. (Download PDF<https://www.verifiedvoting.org/wp-content/uploads/2017/06/SSCI.hearing.letter.6.22.17.pdf>)
Verified Voting vigorously applauds the Senate Select Committee on Intelligence for its leadership and commitment to securing our elections. With clear evidence that foreign attackers sought to attack our 2016 elections through various means, our intelligence agencies warn that hostile attackers will be back to attack future elections. Congress and the most vulnerable states should act with urgency to fund and implement protective reforms that will make our election systems resilient against cyber attack: funding the adoption of paper ballots and accessible ballot marking systems, and implementing robust, manual post-election audits of the votes.
The June 21 hearing is an important first step toward those reforms, providing valuable information through witness testimony and questions of the Senators. We wish to expand on several key points that were raised in the hearing to ensure a clear understanding of the challenges we face in securing our elections.
It is crucial to understand that further reforms are urgently needed to bolster the mitigations currently in place so that it is possible to detect and correct a cyber attack on the vote count.
Some testimony asserted that pre-election testing and post-election audits currently in place would catch errors in vote tallies caused by a malicious attacker or software failure. Unfortunately, pre-election testing, though helpful for ensuring the completeness of ballot programming, can be defeated by malicious software designed to detect when the system is in test mode. This is what happened with Volkswagen diesels cars: the software caused the cars’ emissions systems to behave correctly during testing, but then allowed them to pollute under non-testing conditions.
Likewise, while post-election audits currently in place in some states may serve to detect errors in the vote count—and indeed in a number of past elections have detected outcome-changing errors—such audits cannot be relied upon nationally. A post-election audit requires examination of some number of paper ballots marked by voters, to serve as a check on the software vote count. Because voters in five states are consigned to paperless machines, and nine other states contain jurisdictions that do not have paper ballots, it is impossible to conduct a legitimate post-election audit to detect software errors in 14 states.
Moreover, while roughly 70% of the nation has paper ballots,1 little more than half the country conducts post-election audits2 and, with few exceptions, these audits are not strong enough to always reliably detect vote count errors caused by cyber attacks or software problems. This is why we need paper ballots and robust post-election audits: to have sufficient evidence to detect and correct errors in all jurisdictions, not just in some jurisdictions.
Although most voting machines are not directly connected to the Internet, they nonetheless may be exposed to hacking attacks through other connections, as Dr. Alex Halderman explained in his testimony.3 Furthermore, 32 states allow the online casting of ballots for military and overseas voters;4 these ballots are directly exposed to Internet attacks. Because these ballots are cast electronically, their accuracy cannot be verified or accurately audited.
At the hearing, Senators pressed the important point that our current system does not ensure that State election directors will disclose breaches to the public or other entities. In some localities, election systems are managed by outside vendors, some of which may not have the resources to implement strong security. In these cases the vendors would be responsible to detect and report vulnerabilities or intrusions. But vendors may feel a financial and reputational disincentive to disclose vulnerabilities or breaches of their systems. Without reforms to require such disclosure, we cannot reasonably expect to learn of all breaches and vulnerabilities. This exacerbates the difficulty of addressing security challenges.
Paper ballots and post-election ballot audits provide resilience to cyber attacks on our voting process, because the paper ballot is physical, tangible evidence of voter intent that will remain untouched by a cyber attack. In the hearing we were told that one of our adversaries’ aims is to sow distrust in our elections so as to undermine U.S. democratic principles. Paper ballots and audits provide transparency and instill voter confidence in the process. By combining paper ballots with routine, mandatory post-election manual audits, we directly and effectively undercut our adversaries’ ability to shed doubt on the election outcome. Voters will have evidence to support the computer tallies, improving both transparency and voter confidence.
We thank you for focusing on this critical issue and for your commitment to address it. We hope to work with you to move the entire nation to resilient, auditable, transparent and accessible voting systems and stand ready to assist any way we can.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93339&title=Verified%20Voting%2FCommon%20Cause%20Letter%3A%20Government%20Needs%20to%20Do%20More%20to%20Deal%20with%20Risk%20of%20Voting%20Machine%20Hacking>


Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
Ga. SOS Brian Kemp Still Skeptical Russians Tried to Hack Voting Machines<http://electionlawblog.org/?p=93337>
Posted on June 23, 2017 8:09 am<http://electionlawblog.org/?p=93337> by Rick Hasen<http://electionlawblog.org/?author=3>
This<https://www.washingtonpost.com/graphics/2017/world/national-security/obama-putin-election-hacking/?utm_term=.d62dce759fa6>, from the SOS of a state whose voting security is most worrisome:
Brian Kemp, the Republican secretary of state of Georgia, used the call to denounce Johnson’s proposal as an assault on state rights. “I think it was a politically calculated move by the previous administration,” Kemp said in a recent interview, adding that he remains unconvinced that Russia waged a campaign to disrupt the 2016 race. “I don’t necessarily believe that,” he said.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93337&title=Ga.%20SOS%20Brian%20Kemp%20Still%20Skeptical%20Russians%20Tried%20to%20Hack%20Voting%20Machines>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>


Today’s Must-Read: “Obama’s secret struggle to punish Russia for Putin’s election assault”<http://electionlawblog.org/?p=93335>
Posted on June 23, 2017 8:07 am<http://electionlawblog.org/?p=93335> by Rick Hasen<http://electionlawblog.org/?author=3>
What a WaPo story:<https://www.washingtonpost.com/graphics/2017/world/national-security/obama-putin-election-hacking/?utm_term=.ed89eb2cf7a7>
In political terms, Russia’s interference was the crime of the century, an unprecedented and largely successful destabilizing attack on American democracy. It was a case that took almost no time to solve, traced to the Kremlin through cyber-forensics and intelligence on Putin’s involvement. And yet, because of the divergent ways Obama and Trump have handled the matter, Moscow appears unlikely to face proportionate consequences….
In early September, Johnson, Comey, and Monaco arrived on Capitol Hill in a caravan of black SUVs for a meeting with 12 key members of Congress, including the leadership of both parties.
The meeting devolved into a partisan squabble.
“The Dems were, ‘Hey, we have to tell the public,’ ” recalled one participant. But Republicans resisted, arguing that to warn the public that the election was under attack would further Russia’s aim of sapping confidence in the system.
Senate Majority Leader Mitch McConnell (R-Ky.) went further, officials said, voicing skepticism that the underlying intelligence truly supported the White House’s claims. Through a spokeswoman, McConnell declined to comment, citing the secrecy of that meeting.
Key Democrats were stunned by the GOP response and exasperated that the White House seemed willing to let Republican opposition block any pre-election move….
he White House also worried that they had not yet seen the worst of Russia’s campaign. WikiLeaks and DCLeaks, a website set up in June 2016 by hackers believed to be Russian operatives, already had troves of emails. But U.S. officials feared that Russia had more explosive material or was willing to fabricate it.
“Our primary interest in August, September and October was to prevent them from doing the max they could do,” said a senior administration official. “We made the judgment that we had ample time after the election, regardless of outcome, for punitive measures.”
The assumption that Clinton would win contributed to the lack of urgency.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93335&title=Today%E2%80%99s%20Must-Read%3A%20%E2%80%9CObama%E2%80%99s%20secret%20struggle%20to%20punish%20Russia%20for%20Putin%E2%80%99s%20election%20assault%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Trump loses patience with his White House counsel”<http://electionlawblog.org/?p=93333>
Posted on June 23, 2017 7:53 am<http://electionlawblog.org/?p=93333> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/06/23/trump-don-mcgahn-white-house-counsel-russia-239876>
White House counsel Don McGahn has largely stepped back from managing Donald Trump’s response to the expanding Russia investigation, but that hasn’t stopped the president from lashing out at him about it anyway.
Trump started the week by giving McGahn, a loyal supporter who was among the first Washington establishment figures to sign on with his presidential campaign, a dressing down in the Oval Office for not doing more to squash the Russia probe early on.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93333&title=%E2%80%9CTrump%20loses%20patience%20with%20his%20White%20House%20counsel%E2%80%9D>
Posted in election law biz<http://electionlawblog.org/?cat=51>


“Despite Claims To Contrary, Trump Has Signed No Major Laws 5 Months In”<http://electionlawblog.org/?p=93331>
Posted on June 23, 2017 7:51 am<http://electionlawblog.org/?p=93331> by Rick Hasen<http://electionlawblog.org/?author=3>
NPR:<http://www.npr.org/2017/06/23/533840991/despite-claims-to-contrary-trump-has-signed-no-major-laws-5-months-in>
Measuring laws passed by counting rather than by significance is pretty meaningless. More on that in a bit. Among modern Oval Office occupants, Presidents Jimmy Carter (52), George H.W. Bush (41) and Bill Clinton (41) had all signed more bills into law than Trump has by this point in their presidencies.
So, what has Trump accomplished with Congress so far? Nothing that political scientists would categorize as major pieces of legislation. We looked at this question as Trump hit his 100 days mark. This story contains<http://www.npr.org/2017/04/27/525753448/white-house-touts-historic-28-laws-signed-by-trump-but-what-are-they> more detail on legislation he signed in the early part of his presidency.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93331&title=%E2%80%9CDespite%20Claims%20To%20Contrary%2C%20Trump%20Has%20Signed%20No%20Major%20Laws%205%20Months%20In%E2%80%9D>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>


“Jack Abramoff is back — as a registered lobbyist”<http://electionlawblog.org/?p=93329>
Posted on June 23, 2017 7:46 am<http://electionlawblog.org/?p=93329> by Rick Hasen<http://electionlawblog.org/?author=3>
What could go wrong?<https://www.publicintegrity.org/2017/06/22/20942/jack-abramoff-back-registered-lobbyist>

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93329&title=%E2%80%9CJack%20Abramoff%20is%20back%20%E2%80%94%20as%20a%20registered%20lobbyist%E2%80%9D>
Posted in lobbying<http://electionlawblog.org/?cat=28>


“Increasing Voter Turnout for 2018 and Beyond”<http://electionlawblog.org/?p=93327>
Posted on June 23, 2017 7:28 am<http://electionlawblog.org/?p=93327> by Rick Hasen<http://electionlawblog.org/?author=3>
Tina Rosenberg NYT column.<https://www.nytimes.com/2017/06/13/opinion/increasing-voter-turnout-2018.html?smid=tw-nytopinion&smtyp=cur&_r=0>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93327&title=%E2%80%9CIncreasing%20Voter%20Turnout%20for%202018%20and%20Beyond%E2%80%9D>
Posted in voting<http://electionlawblog.org/?cat=31>



--
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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170624/3719f3c6/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170624/3719f3c6/attachment.png>