[EL] ELB News and Commentary 3/4/17

Sat Mar 4 10:18:32 PST 2017

Adam Liptak on Judge Gorsuch with a Style Like Kennedy’s But an Ideology Like Scalia’s<http://electionlawblog.org/?p=91479>
Posted on March 4, 2017 10:12 am<http://electionlawblog.org/?p=91479> by Rick Hasen<http://electionlawblog.org/?author=3>
Interesting read<https://www.nytimes.com/2017/03/03/us/politics/neil-gorsuch-anthony-kennedy-supreme-court.html?ref=politics>:
The White House hopes the bond matters to Justice Kennedy, too. In choosing Judge Gorsuch to replace Justice Antonin Scalia and floating the names of other former Kennedy clerks<https://www.nytimes.com/2017/02/06/us/politics/neil-gorsuch-trump-supreme-court-nominee.html> for the next Supreme Court vacancy, administration officials have sought to reassure Justice Kennedy, 80, that the court will be in good hands should he choose to retire and open a seat for another, younger justice.
While Judge Gorsuch learned a great deal in Justice Kennedy’s chambers, the lessons seem to have been more personal than political.
“There were a lot of ideologues both left and right, and he wasn’t one of them,” said Stephen F. Smith<http://law.nd.edu/directory/stephen-smith/>, who served as a law clerk to Justice Clarence Thomas that same term and is now a law professor at the University of Notre Dame. “He was careful, quiet.”
Judge Gorsuch’s critics say his own mild and courteous manner masks a fierce commitment to a right-wing agenda, and political scientists say he is likely to vote with the court’s most conservative justices rather than with Justice Kennedy. In closely divided cases, Justice Kennedy often holds the crucial vote, and he generally leans right. He wrote the majority opinion, for instance, in the Citizens United campaign finance case.
But in recent years, Justice Kennedy has joined the court’s four-member liberal wing in major cases establishing a right to same-sex marriage, protecting abortion rights and upholding affirmative action.
“It’s safe to say that little of Justice Kennedy rubbed off on him when it comes to certain critical areas of the law,” Nan Aron, the president of the Alliance for Justice<http://www.afj.org/>, a liberal group, said of Judge Gorsuch.
From me earlier in the week at CNN opinion, Why Gorsuch Could Lead Court in the Wrong Direction.<http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Georgia: “Democrats cry foul as House Republicans redraw district lines”<http://electionlawblog.org/?p=91477>
Posted on March 4, 2017 10:06 am<http://electionlawblog.org/?p=91477> by Rick Hasen<http://electionlawblog.org/?author=3>
Atlanta Journal-Constitution:<http://www.myajc.com/news/state--regional-govt--politics/democrats-cry-foul-house-republicans-redraw-district-lines/sOOXVi3vMCWJCB7gpAntTN/>
Georgia House Republicans made a late bid Friday to change the district boundaries for eight Republicans and one Democrat.
The one Democrat, Rep. Sheila Jones, D-Atlanta<http://legislativenavigator.myajc.com/#members/143>, is not happy.
Jones said she didn’t know about House Bill 515<http://legislativenavigator.myajc.com/#bills/HB/515> until it was being presented to the Reapportionment Committee late Wednesday afternoon….
The biggest changes strengthen Republican districts that have become more competitive. Golick won re-election in November with 53 percent of the vote over Democrat Erick Allen, down from the 60 percent to 40 percent margin by which Golick won in 2014. Golick declined comment.
In south Metro Atlanta, Rep. Brian Strickland, R-McDonough<http://legislativenavigator.myajc.com/#members/835>, has seen his margin of victory fall from 6 percentage points in 2012 to less than 2 percentage points in 2016. HB 515 takes several GOP-heavy precincts out of Griffin Republican Rep. Karen Mathiak<http://legislativenavigator.myajc.com/#members/4894>’s neighboring District 73 and gives them to Strickland.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Elections: State Progress, Federal Train Wreck”<http://electionlawblog.org/?p=91475>
Posted on March 4, 2017 10:02 am<http://electionlawblog.org/?p=91475> by Rick Hasen<http://electionlawblog.org/?author=3>
Miles Rapoport<http://prospect.org/article/elections-state-progress-federal-train-wreck> for TAP:
Two issues, however, were too fraught with partisan conflict to achieve any consensus on the part of the assembled secretaries of state: Russian hacking and calculated interference in the election, and the president’s claim of massive voter fraud….
Bill Gardner has been secretary of state in New Hampshire for 41 years, reveling in New Hampshire’s role in the primary, proud of the fact that the state ranks consistently in the top five states in terms of turnout, and very protective of the integrity of his elections. So when Trump insisted, and White House aide Stephen Miller repeated, that “anyone who has done any work in New Hampshire” knows that buses of illegal voters from Massachusetts come to New Hampshire every election, Gardner was really angry. But he says he doesn’t want to just categorically deny it; he wants to show Mike Pence and the president: “Appoint a fair commission with Pence at the head, no election officials on it,” Gardner said. “Come to New Hampshire. Look at everything, everywhere, including the pictures we take of anyone who votes without a picture ID. See what fraud you find. And if you don’t find any, please stop saying it.”
Iowa Secretary Paul Pate and Colorado Secretary Wayne Williams were more circumspect. They both said that they do not see anything like the kind of fraud the president alleges, but if anyone can produce evidence that there is, they will look at it carefully. So when California Secretary of State Alex Padilla, the chair of the elections committee, circulated a resolution criticizing Trump and defending the integrity of the elections, the buzzing and huddled conversations began. There were efforts to soften the language, and the Republicans drafted a counter-resolution. But when the motion was made to consider the resolution, a Republican secretary immediately moved to adjourn the meeting, blindsiding Padilla. The motion carried, the meeting ended, and the silence was loud and sullen,
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Georgia: “FBI investigating data breach involving state voters”<http://electionlawblog.org/?p=91473>
Posted on March 4, 2017 8:43 am<http://electionlawblog.org/?p=91473> by Rick Hasen<http://electionlawblog.org/?author=3>
WSB:<http://www.wsbtv.com/news/local/breaking-fbi-investigating-hack-of-ksu-server/499353979>
The Federal Bureau of Investigation is investigating an alleged data breach at the Center for Election Systems at Kennesaw State University.
Channel 2 Investigative Reporter Aaron Diamant<https://twitter.com/AaronDiamantWSB> reports the state voter data kept by the Center for Election Systems was compromised. Sources tell Diamant the hack happened Wednesday night.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

“Did companies’ donations buy a Trump change in private prison policy?”<http://electionlawblog.org/?p=91471>
Posted on March 3, 2017 6:46 pm<http://electionlawblog.org/?p=91471> by Rick Hasen<http://electionlawblog.org/?author=3>
McClatchy reports.<http://www.bnd.com/news/politics-government/article136339598.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Homeless coalitions petition U.S. Supreme Court to protect voters from disenfranchisement over trivial errors”<http://electionlawblog.org/?p=91469>
Posted on March 3, 2017 6:42 pm<http://electionlawblog.org/?p=91469> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.chandralaw.com/blog/2017/03/homeless-coalitions-petition-us-supreme-court-to-ensure-voters-can-protect-themselves-from-assaults.shtml>
Today, the Northeast Ohio Coalition for the Homeless<http://www.neoch.org/> and the Columbus Coalition for the Homeless<http://www.columbushomeless.org/>, joined by the Ohio Democratic Party<https://ohiodems.org/>, filed a petition for certiorari asking the U.S. Supreme Court to hear their challenge against Ohio voter-suppression laws<http://www.chandralaw.com/blog/images/2017-03-03%20No.%2016-__%20NEOCH%20Cert%20Petition.pdf> known as S.B. 205 and 216. The homeless coalitions and ODP are plaintiffs in a long-running voting-rights lawsuit<http://moritzlaw.osu.edu/electionlaw/litigation/NEOCHvhusted.php> against Ohio Secretary of State Jon Husted and Ohio Attorney General Michael DeWine.
The challenged laws require throwing out absentee and provisional ballots based on trivial, technical errors on ballot forms–even where elections boards do not otherwise question voters’ identity and eligibility. For example, Secretary Husted’s position at trial was that voters who write their names in legible cursive on ballot forms, instead of printing in roman letters, should be disenfranchised.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Another redistricting blow for Virginia GOP: Judges award $1.3 million in attorneys fees”<http://electionlawblog.org/?p=91467>
Posted on March 3, 2017 4:01 pm<http://electionlawblog.org/?p=91467> by Rick Hasen<http://electionlawblog.org/?author=3>
Ouch!<http://www.dailypress.com/news/politics/dp-nws-attorneys-fees-redistricting-20170303-story.html>
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Posted in election law biz<http://electionlawblog.org/?cat=51>, redistricting<http://electionlawblog.org/?cat=6>
“Utah House approves ranked choice voting for primary elections”<http://electionlawblog.org/?p=91465>
Posted on March 3, 2017 3:48 pm<http://electionlawblog.org/?p=91465> by Rick Hasen<http://electionlawblog.org/?author=3>
Interesting.<http://utahpolicy.com/index.php/features/today-at-utah-policy/12533-utah-house-approves-ranked-choice-voting-for-primary-elections>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

3 Judge Court Rejects Motion to Dismiss in Another NC Partisan Gerrymandering Case<http://electionlawblog.org/?p=91462>
Posted on March 3, 2017 3:36 pm<http://electionlawblog.org/?p=91462> by Rick Hasen<http://electionlawblog.org/?author=3>
They are going to be piling up as we expect the Supreme Court to take up the Wisconsin case next term.
Today’s latest opinion, in Common Cause v. Rucho<http://electionlawblog.org/wp-content/uploads/rucho-dismiss.pdf>, is unanimous and discusses the efficiency gap. which plays a big role in the Wisconsin case.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Needed: Fresh Eyes to Improve New York’s Constitution”<http://electionlawblog.org/?p=91460>
Posted on March 3, 2017 3:21 pm<http://electionlawblog.org/?p=91460> by Rick Hasen<http://electionlawblog.org/?author=3>
J.H. Snider writes.<http://www.gothamgazette.com/opinion/6789-needed-fresh-eyes-to-improve-new-york-s-constitution-part-one-mandarin>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“FairVote and Leading Maine Civic Groups File Briefs Defending Ranked Choice Voting”<http://electionlawblog.org/?p=91458>
Posted on March 3, 2017 3:19 pm<http://electionlawblog.org/?p=91458> by Rick Hasen<http://electionlawblog.org/?author=3>
Release.<http://www.fairvote.org/fairvote_and_leading_maine_civic_groups_file_briefs_defending_ranked_choice_voting>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

DC Circuit, Citing “My Cousin Vinny,” Holds @99Rise Campaign Finance Protesters at #SCOTUS Can Be Charged Under Law Barring “Harangues or Orations”<http://electionlawblog.org/?p=91456>
Posted on March 3, 2017 12:34 pm<http://electionlawblog.org/?p=91456> by Rick Hasen<http://electionlawblog.org/?author=3>
Tony Mauro<http://www.nationallawjournal.com/home/id=1202780501514/Citing-My-Cousin-Vinny-DC-Circuit-Upholds-SCOTUS-Protest-Ban?mcode=1202617074964&curindex=0> for the NLJ:
A federal appeals panel on Friday upheld the law barring anyone from making “a harangue or oration” at the U.S. Supreme Court—the latest in a series of rulings protecting the high court from protesters inside the building or on its grounds<http://www.nationallawjournal.com/id=120277695653?germane=1202780501514>.
The ruling by the U.S. Court of Appeals for the D.C. Circuit<https://assets.documentcloud.org/documents/3480421/Bronstein-20170303.pdf> stemmed from a coordinated protest that interrupted a public session of the Supreme Court on April 1, 2015. One after another, five demonstrators rose to object, through slogans and songs, to the court’s 2010 Citizens United ruling on campaign finance.
The five were arrested for violating 40 U.S.C. § 6134, the “harangue or oration” statute. The protesters moved to dismiss the charges, and a federal district judge ruled that the law was too vague.<http://www.nationallawjournal.com/id=1202745553861?keywords=bronstein+supreme+court>
The episode was also notable because during discovery, the court’s audiotape of the protest was produced, containing some “hot mic” comments<http://www.nationallawjournal.com/id=1202744544902> from justices while the demonstrators spoke. “Give them stiff, stiff sentences,” Justice Antonin Scalia muttered. “Oh, please,” Chief Justice Roberts Jr. said as the protest wore on.
From the opinion:<https://assets.documentcloud.org/documents/3480421/Bronstein-20170303.pdf>
Turning to the facts here, a person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior—even in staccato bursts, seriatim. And yet, in a coordinated fashion, each Appellee is alleged to have directed a variation of the same message to the Justices of the Supreme Court and the assembled audience. Their coordinated standing, facing the bench, and messaging indicate the Appellees were addressing the Court and gallery. Cf. MY COUSIN VINNY (20th Century Fox 1992) (Judge Chamberlain Haller: “Don’t talk to me sitting in that chair! . . . When you’re addressing this court, you’ll rise and speak to me in a clear, intelligible voice.”). Viewed objectively, these alleged acts could easily be considered speeches to a public assembly that tended to disrupt the Court’s operations—conduct covered by § 6134’s prohibition of “make a harangue or oration.”

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, social media and social protests<http://electionlawblog.org/?cat=58>

Allison Hayward Appointed to CA Fair Political Practices Commission<http://electionlawblog.org/?p=91454>
Posted on March 3, 2017 12:05 pm<http://electionlawblog.org/?p=91454> by Rick Hasen<http://electionlawblog.org/?author=3>
Announcement <http://www.satprnews.com/2017/03/02/controller-yee-appoints-ethics-and-elections-attorney-to-fppc/> (via CCP)<http://www.campaignfreedom.org/2017/03/02/congratulations-allison/>.
Congrats, Allison!
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“What Boards Need To Know About Corporate Political Spending”<http://electionlawblog.org/?p=91451>
Posted on March 3, 2017 6:29 am<http://electionlawblog.org/?p=91451> by Rick Hasen<http://electionlawblog.org/?author=3>
Interview<https://www.linkedin.com/pulse/what-boards-need-know-corporate-political-spending-paul-denicola> with Bruce Freed.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump courts donors with eye on 2020”<http://electionlawblog.org/?p=91449>
Posted on March 3, 2017 6:26 am<http://electionlawblog.org/?p=91449> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico<http://www.politico.com/story/2017/03/trump-donors-2020-235632> on how the plutocrats are united:
Trump boasted that as president he wouldn’t be beholden to donors because he was wealthy himself and poured $66 million<http://www.politico.com/story/2016/10/donald-trump-10-million-campaign-230483> from his own fortune into his campaign, which didn’t get much support from big-money super PACs. His side was outspent dramatically by the campaign and super PACs supporting his Democratic rival Hillary Clinton, but Trump benefited from an unprecedented wave of free publicity that swirled around his unconventional circus-like campaign.
Inside GOP finance circles, there’s a growing recognition that Trump might not be able to run that type of asymmetrical campaign after four years of the types of scandals and critical media coverage that have buffeted him during his early days in the White House. So Trump and his team have set about systematically courting the biggest GOP moneymen with the types of perks typically used to win over new donors and keep old ones happy, among them access and appointments.
Trump has tapped or is considering mega-donors who supported his rivals for all manner of positions, from his pick for deputy commerce secretary<http://www.politico.com/blogs/donald-trump-administration/2016/11/trump-officially-nominates-todd-ricketts-to-be-deputy-commerce-secretary-231990>, Todd Ricketts, to his stalled pick for director<http://www.politico.com/story/2017/02/white-house-scaramucci-234519> of the Office of Public Engagement and Intergovernmental Affairs, Anthony Scaramucci, to his likely pick for ambassador to Canada<https://www.bloomberg.com/politics/articles/2017-03-01/trump-said-to-pick-donor-kelly-craft-for-ambassador-to-canada>, Kelly Knight Craft.
Meanwhile, his cabinet is a who’s who of Trump’s top donors, including Small Business Administrator Linda McMahon, who gave $6 million to a pro-Trump super PAC, Treasury Secretary Steve Mnuchin, who was Trump’s campaign finance director and Commerce Secretary Wilbur Ross, who gave more than $200,000 to aid Trump’s efforts. Trump’s withdrawn pick for labor secretary, Andy Puzder, was also a major donor.
“Trump has been very methodical and clever,” said one person who works closely with major Republican donors. “The process began within days of the election.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>

Bauer Sympathetic to J. Gorsuch’s Rethinking of Standard for Reviewing Contribution Limits<http://electionlawblog.org/?p=91447>
Posted on March 3, 2017 6:17 am<http://electionlawblog.org/?p=91447> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob is a lot more sympathetic<http://www.moresoftmoneyhardlaw.com/2017/03/contribution-limits-standards-review/> to the project than I was in my recent CNN Opinion piece <http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/> on Judge Gorsuch’s jurisprudence.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, 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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