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Thu Jun 29 21:29:47 PDT 2017

VA Gov. McAuliffe Says He Won’t Send Data to Pence-Kobach Faux Commission<http://electionlawblog.org/?p=93459>
Posted on June 29, 2017 9:14 pm<http://electionlawblog.org/?p=93459> by Rick Hasen<http://electionlawblog.org/?author=3>
Statement.<https://twitter.com/GovernorVA/status/880558028138967040>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Grimes To Trump: I Won’t Send Kentucky Voter Data”<http://electionlawblog.org/?p=93457>
Posted on June 29, 2017 9:01 pm<http://electionlawblog.org/?p=93457> by Rick Hasen<http://electionlawblog.org/?author=3>
WFPL:<http://wfpl.org/grimes-to-trumps-federal-election-commission-i-wont-send-kentucky-voter-data/>
Kentucky Secretary of State Alison Lundergan Grimes says her office will not release state voter data to President Donald Trump’s election commission….
Grimes, a Democrat, issued a statement on Twitter <https://twitter.com/KySecofState/status/880588795527213056> saying she would not release state voters’ sensitive personal data to the federal government.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“House Bill Would Ax Election Panel, Bar Limits on Money in Politics”<http://electionlawblog.org/?p=93455>
Posted on June 29, 2017 8:58 pm<http://electionlawblog.org/?p=93455> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=115243783&vname=mpebulallissues&jd=a0m7k9r1p8&split=0>
Republicans in Congress are supporting provisions in a new House spending bill that would eliminate the U.S. Election Assistance Commission (EAC), restrict the Internal Revenue Service from limiting political activities of tax-exempt organizations and churches, and bar the Securities and Exchange Commission from requiring disclosure of corporate political spending.
Elimination of the EAC, a small agency headed by a bipartisan group of commissioners advising state and local election officials, has long been advocated by some Republican lawmakers. The latest push, however, comes shortly after the Trump administration created a new advisory commission focused on alleged voter fraud. The new panel, which is set to hold its first meeting July 19, is dominated by Republicans and seen by critics as pushing a partisan agenda.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, election administration<http://electionlawblog.org/?cat=18>

“Tracking Congress’s Library of Secret Law: Legislative Update for the 114th and 115th Congresses”<http://electionlawblog.org/?p=93453>
Posted on June 29, 2017 8:52 pm<http://electionlawblog.org/?p=93453> by Rick Hasen<http://electionlawblog.org/?author=3>
Dakota Rudesill:<https://lawfareblog.com/tracking-congresss-library-secret-law-legislative-update-114th-and-115th-congresses>
This week, three national<https://armedservices.house.gov/news/press-releases/update-hasc-markup-schedule-june-21-22> security<https://www.armed-services.senate.gov/hearings/17-06-26-schedule-for-armed-services-subcommittee-markups-of-the-national-defense-authorization-act-for-fiscal-year-2018> committees<https://appropriations.house.gov/calendar/eventsingle.aspx?EventID=394922> are “marking up” drafts of their annual bills.  Based on the early drafts (the “Chairman’s<http://docs.house.gov/meetings/AS/AS00/20170628/106123/BILLS-115HR2810ih.pdf> marks<https://appropriations.house.gov/uploadedfiles/bills-115hr-sc-ap-fy2018-defense-defense.pdf>”), this year will likely see Congress continuing to write Public Law provisions creating secret law at an historically high tempo.
Last year on Lawfare<https://www.lawfareblog.com/classified-legislation-tracking-congresss-library-secret-law>, I summarized the legislative component of my 2015 general study<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687223> of secret law as a three-branch phenomenon.  My research shows that it is not, in fact, true that all the law Congress writes is public.  We are now nearing the end of the fourth decade of congressional secret law, which takes the form of classified legislative documents given the force of law through references in three annual intelligence and national defense statutes.
After a refresher, this post provides a legislative update.  I analyze the public record regarding Congress’s classified legislating in the now-completed 114th Congress (2015-17) and in the current 115th Congress to date.  I flag a notable precedent for secret law’s contraction and recommend that Congress legislate automatic sunsets for all existing and future secret law.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“Georgians kept in the dark about many ad sponsors”<http://electionlawblog.org/?p=93451>
Posted on June 29, 2017 8:49 pm<http://electionlawblog.org/?p=93451> by Rick Hasen<http://electionlawblog.org/?author=3>
Issue One:<https://www.issueone.org/georgians-kept-dark-many-ad-sponsors/>
This year, residents of Georgia’s 6th Congressional District were bombarded with a seemingly never-ending cascade of political advertisements. But figuring out who was really behind this $60 million spending spree<https://www.issueone.org/money-behind-expensive-u-s-house-race-history/> is nothing short of a Herculean task.
Our disclosure laws are outdated. While the sponsors of ads must be disclosed, the names of politically active groups far too frequently provide little context about which interests or deep-pocketed donors are funding them, or what their true agendas are.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Charles Stewart, Leading Expert on Election Administration, Cautions on Pence-Kobach Science Experiment<http://electionlawblog.org/?p=93449>
Posted on June 29, 2017 8:42 pm<http://electionlawblog.org/?p=93449> by Rick Hasen<http://electionlawblog.org/?author=3>
Smart and careful post <https://electionupdates.caltech.edu/2017/06/29/first-thoughts-about-the-pence-commission-voting-list-request/> from Charles:
I’ve had a chance now to read the letter that vice-chair Kris Kobach<https://twitter.com/JessicaHuseman/status/880499627052736514> has sent to the states, requesting that they send the Pence Commission copies of their publicly available voter files.  My initial reactions fall into two buckets, the small and the expansive.
I want to make clear that there is no intrinsic problem with matching voting lists against other lists and reporting the results. In fact, valuable insights can emerge from linking voter records. I don’t know a better way to advance knowledge and practice than to conduct research, report the results, and then hash out what they mean.
But here’s the caveat.  As a social scientist who has conducted voter roll matching both for scientific research and for litigation, I know how hard it is to do this right.  For example, the well-known “birthday problem” makes it likely that two different people will be mistakenly matched to one another. Few people have the expertise to handle these complexities correctly.  Just as litigation is rarely the best vehicle to advance the science of a field, I worry about developing matching routines on the fly in the context of a commission that is controversial….
The existence of the Pence Commission is controversial already, and the day has now come that one of its most controversial activities has begun.  My intention here is to sidestep the political controversy and suggest two other things have been under-appreciated.  First, the Commission’s eyes may be bigger than its stomach.  Acquiring voter files from every state and matching them — among themselves and with other databases — will be a quagmire.  Second, public auditing of voter files based on database matching (and other procedures) is something that should be done more often and more publicly.  Because we have entrusted states to manage the voter files — for better or worse — a state-directed initiative would seem a better strategy than a controversial, high-visibility activity of a temporary federal commission.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

David Becker Ties DOJ Actions on Voter List Purging to Pence-Kobach Commission and Move to Disband EAC<http://electionlawblog.org/?p=93447>
Posted on June 29, 2017 8:39 pm<http://electionlawblog.org/?p=93447> by Rick Hasen<http://electionlawblog.org/?author=3>
Smart post:<http://www.routefifty.com/management/2017/06/trump-election-integrity-commission-state-voter-data/139107/>
The fact that all these things happened on the same day raises significant questions and concerns. Is the DOJ coordinating with the PACEI, and if so, what role is the DOJ playing in the PCEI’s efforts? How does the DOJ react to the privacy concerns raised by the PACEI’s requests? While the DOJ is relying upon data provided by the states to the EAC, is it aware that the agency is on the chopping block? And how will the special counsel, while working for the DOJ investigating acts arising from Russia’s efforts to influence and manipulate the outcome of the 2016 election, view efforts to eradicate the one agency best situated to work with federal agencies and election officials to protect against future threats?
David also explains how a lot of the data the Pence-Kobach commission wants is not really publicly available:
It’s very important to note that most of this data is not available to the public, as it is highly sensitive personally identifiable information (PII). For instance, in most states the date of birth, Social Security number (last four digits or otherwise), felon status, military status, and other information is not, and should not, be made available to the public, and the commissioners on the PACEI should certainly know that. Can you imagine making publicly available to anyone with an internet connection, foreign or domestic, a complete list of all military voters and their home addresses, let alone including birthdates and social security numbers?
Furthermore, without that PII, using only the public information regarding identity (usually name and address only), it is virtually impossible to use that data to analyze anything. The states and those of us who have expertise in working with voter registration data will tell you that you need several other reference points (usually the PII) to effectively match a record with another record and conclusively state those records relate to the same individual. For instance, if you have a “Sean O’Hara” in one state living at 123 First Street, and a “Sean O’Hara” living at 123 First Avenue in another state, can you know that these two records relate to the same Sean O’Hara? Of course not. So a choice must be made—either collect enough data, including sensitive data, to make the analysis useful (which requires a comprehensive security plan), or get virtually no utility from the data whatsoever. It appears that the PACEI has chosen the latter, but it’s unclear why.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

--
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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