[EL] ELB News and Commentary 5/6/17

Sat May 6 06:06:23 PDT 2017

“Georgia special election smashes all-time spending record”<http://electionlawblog.org/?p=92406>
Posted on May 6, 2017 6:01 am<http://electionlawblog.org/?p=92406> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/05/06/georgia-special-election-spending-record-238054>
It’s official: Georgia’s special election will be the most expensive House race in U.S. history.
Candidates and outside groups have aired or reserved more than $29.7 million worth of TV ads in the race to replace HHS Secretary Tom Price in Congress, which will break a five-year-old record for House spending — highlighting the outsized importance a sliver of the Atlanta suburbs has taken on in national politics.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Hacked records show Bradley Foundation taking its conservative Wisconsin model national”<http://electionlawblog.org/?p=92404>
Posted on May 6, 2017 5:58 am<http://electionlawblog.org/?p=92404> by Rick Hasen<http://electionlawblog.org/?author=3>
Daniel Bice for the Milwaukee Journal-Sentinel<https://projects.jsonline.com/news/2017/5/5/hacked-records-show-bradley-foundation-taking-wisconsin-model-national.html>:
Long a player on the national stage, the Lynde and Harry Bradley Foundation in Milwaukee has been quietly using its vast resources to construct state-by-state networks of activist groups to win support for its conservative agenda from coast to coast.
This previously undisclosed effort by the Bradley Foundation was revealed in hundreds of thousands of documents swiped by international hackers from the foundation’s server<http://fox6now.com/2016/11/03/really-bizarre-milwaukees-charitable-bradley-foundation-network-hacked-by-anonymous-group/> late last year.
Those internal documents, obtained by the Milwaukee Journal Sentinel in recent months, show the conservative powerhouse is working to duplicate its success in Wisconsin under Republican Gov. Scott Walker, focusing on such swing states as North Carolina and Colorado….
Those internal files point out the Bradley Foundation was following the lead of liberal philanthropists called the “Gang of Four” who famously achieved this by putting big bucks into Colorado to further their agenda there more than a decade ago. A book on their success, called “The Blueprint: How the Democrats Won Colorado,”<https://www.amazon.com/Blueprint-Democrats-Colorado-Republicans-Everywhere/dp/1936218003> came out in 2010.
Today, Wisconsin liberals have their own alliance of groups, often funded by unions or billionaires such as George Soros<http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237>, that provide help to Democrats and liberal candidates for nonpartisan office.
One Wisconsin Now, for example, digs up dirt on conservative politicians<http://onewisconsinnow.org/> that can be used in political ads, and Emerge Wisconsin and Wisconsin Progress<http://www.wisconsinprogress.org/trainings/> recruit and train liberal candidates and grass roots activists<http://www.emergewi.org/>, just as the Bradley-funded American Majority does for candidates on the other side side of the aisle<https://americanmajority.org/training/>. The Center for Media and Democracy posts original reporting and stories<http://www.prwatch.org/> while pursuing a left wing agenda.
An internal Bradley document compiles a list of 17 liberal organizations that “attack groups and people helping the Foundation further its mission” — an enemies list<https://projects.jsonline.com/news/2017/5/5/bradley-foundation-enemy-list.html>, of sorts. Making the list were two Wisconsin groups, One Wisconsin Now and the Center for Media and Democracy, and a host of national ones, including Media Matters for America, Democracy Alliance and Open Society.
The Bradley Foundation board voted in 2014 to approve pursuing grants intended “to mitigate the damage” these groups can do, according to the minutes<https://www.documentcloud.org/documents/3700871-Meeting-Minutes-Oct-14-2014.html> of the meeting.
But Wisconsin liberals already trail their conservative counterparts in important ways. They don’t have state-based legal centers or think tanks, for instance.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Federal judge: Parts of Missouri’s campaign finance law unconstitutional; $2,600 donor limit stays”<http://electionlawblog.org/?p=92402>
Posted on May 5, 2017 8:38 pm<http://electionlawblog.org/?p=92402> by Rick Hasen<http://electionlawblog.org/?author=3>
Jo Mannies for St. Louis Public Radio:<http://news.stlpublicradio.org/post/federal-judge-parts-missouri-s-campaign-finance-law-unconstitutional-2600-donor-limit-stays#stream/0>
Parts of Missouri’s new campaign finance law is unconstitutional, but the $2,600 individual donor limit will stick, according to a ruling issued Friday by Senior District Judge Ortrie Smith of the Western District of Missouri.
But in striking down a provision in the law that banned certain committee-to-committee transfers, it’s opened up the ability to raise an unlimited amount of money through a local political action committee and transfer that cash to a different PAC. In effect, that will make campaign money harder to track and makes it easier for candidates to get around the individual donor limit.
The Missouri Ethics Commission referred calls to Attorney General Josh Hawley, who didn’t immediately return a request for comment on whether he’d appeal the ruling.
The opinion is linked at the bottom of the story.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Calvin TerBeek Flags Remarkable Justice Alito Speech, Some of Which Defends Citizens United<http://electionlawblog.org/?p=92400>
Posted on May 5, 2017 8:24 pm<http://electionlawblog.org/?p=92400> by Rick Hasen<http://electionlawblog.org/?author=3>
Calvin at the Faculty Lounge asks: Is Justice Alito a Crit (or Just a Movement Conservative)?<http://www.thefacultylounge.org/2017/05/is-justice-alito-a-crit.html> on “a rather remarkable speech<http://www.scotusmap.com/posts/2> Justice Alito gave at the Claremont Institute in early February received relatively little media attention (Mark Joseph Stern excepted<http://www.slate.com/blogs/the_slatest/2017/02/13/justice_alito_declares_carbon_dioxide_is_not_a_pollutant.html>).”
From the post:.
And in connecting free speech issues with criticism of the “media elite,” Alito echoes a conservative truism dating back at least to Goldwater’s 1964 presidential campaign, at the same time working in a defense of Citizens United:
Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans. 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Iowa: “Branstad signs controversial voter ID bill into law”<http://electionlawblog.org/?p=92398>
Posted on May 5, 2017 8:13 pm<http://electionlawblog.org/?p=92398> by Rick Hasen<http://electionlawblog.org/?author=3>
Des Moines Register:<http://www.desmoinesregister.com/story/news/politics/2017/05/05/branstad-signs-controversial-voter-id-bill-into-law/311568001/>
Iowa voters soon will need to show identification at the polls under a new law signed Friday by Gov. Terry Branstad.
The measure overhauls Iowa’s election laws through a series of changes that Republicans say are needed to ensure the integrity of the process and to prevent fraud, but which Democrats and others argue will suppress votes by creating barriers for the poor, elderly, people with disabilities and minorities. …
The American Civil Liberties Union of Iowa, which lobbied against the bill, issued a statement saying it is considering litigation to stop the law from moving forward.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>

“Trump Order Could Lure Churches into Dark Money Politics”<http://electionlawblog.org/?p=92396>
Posted on May 5, 2017 8:06 pm<http://electionlawblog.org/?p=92396> by Rick Hasen<http://electionlawblog.org/?author=3>
Kate Ackley reports<http://www.rollcall.com/news/politics/religious-liberty-campaign-finance-trump> for Roll Call.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

What To Look for When the Supreme Court Decides the North Carolina Redistricting Case<http://electionlawblog.org/?p=92393>
Posted on May 5, 2017 11:57 am<http://electionlawblog.org/?p=92393> by Richard Pildes<http://electionlawblog.org/?author=7>
The Court has already decided one major racial redistricting case this Term, Bethune-Hill, from Virginia.  The other major racial redistricting case, Cooper v. Harris, from North Carolina, is now one of three cases outstanding the longest since argument.  Cooper involves two congressional districts, CD 1 and CD 12 (by now, CD 12 must have been litigated before the Supreme Court more times than any congressional district in history).  I want to untangle the various issues at stake and provide perspective on which legal issues are the key ones to focus on when this opinion finally comes down.
To begin, the issues concerning CD 1 and CD 12 are quite different – and the ones involving CD 1 have the broadest legal significance (that makes it a bit unfortunate that most of the oral argument focused on CD 12).
For CD 1, the issues center on the legitimate role of race in the districting process, in a state where significant levels of white cross-over voting exist for candidates black voters also prefer.  In CD 1, the North Carolina legislature increased the black voting-age population (BVAP) from 47.76% to 52.65%, even though at that lower population level the district had regularly performed as a successful Voting Rights Act (VRA) district – it had consistently elected the candidate of choice of black voters.  But the State argues that to safely comply with the VRA, it sought to create a majority-black district.  The plaintiffs argue that the VRA doesn’t require turning districts that are already working as VRA districts into majority-minority districts, and that NC therefore acted unconstitutionally by using race to an excessive and unjustified extent.
At stake here is whether the VRA requires creating majority-minority districts, even when districts with interracial coalitions are effectively electing candidates of choice of minority voters without minority voters needing to constitute a majority.

  1.  For CD 1 the critical legal issues lie at the intersection of the VRA and the Constitution regarding the permissible role of race in the design of districts:
     *   The first significant issue is whether “race predominated” in drawing CD 1 and – just as importantly – if so why.  More colloquially, the question is whether CD 1 is a racial gerrymander (racial gerrymanders can be constitutional, but the districts must survive strict scrutiny).  The lower court called CD a “textbook example of” a racial gerrymander.  But it provided two different kinds of reasons for that conclusion; the way the Court responds to these two different approaches is critical.
(1) Much of the lower court opinion concludes race predominated because the state set a specific racial target or floor on the BVAP the district had to have, which the redistricters said they did because that’s what the VRA requires.  The lower court quoted the redistricters for making clear that the VRA required that CD have a BVAP “of at least 50 percent plus one person.”  In passages like the following, the court suggested that it was the application of this racial floor, in itself, that required the conclusion that race had predominated: “Because traditional districting criteria were considered, if at all, solely insofar as they did not interfere with this 50-percent-plus-one person minimum floor, the quota operated as a filter through which all line-drawing decisions had to pass.”
Passages like this suggest it is sufficient for a court to conclude that a racial gerrymander has occurred if the redistricters apply a specific racial floor that a district must be above.
(2) But despite having said that, the court went on to provide a second type of reason to support concluding that race predominated in CD 1.   The court found that the redistricters also split counties and precincts when needed to meet this 50% BVAP target.  In legal terms, this means they subordinated traditional districting principles to the goal of meeting this target.
The significant issue is whether in deciding whether race predominates the first type of reason is indeed sufficient or whether redistricters must, in addition, subordinate traditional districting principles by doing things like splitting counties and precincts.  The Supreme Court already engaged these issues to an extent in Bethune-Hill, as I’ve discussed<http://electionlawblog.org/?p=91415>, where the Court announced “[r]ace may predominate even when a reapportionment plan respects traditional principles.” But everything the Court says about these questions is important and any additional clarification the Court offers regarding when race predominates in the legal sense will be meaningful.
B.  If CD 1 is a racial gerrymander and strict scrutiny applies, does the Court accept NC’s defense that increasing the BVAP to over the 50% level is an appropriate way to comply with the VRA here?  In rejecting that defense, the lower court expressed its view in strong terms:
The suggestion that the VRA would somehow require racial balkanization where, as here, citizens have not voted as racial blocs, where crossover voting has naturally occurred, and where a majority-minority district is created in blatant disregard for fundamental redistricting principles is absurd and stands the VRA on its head.
How will the Court address NC’s defense?

  1.  For CD 12, the issues are more narrowly fact-bound ones about whether politics or race was the predominant reason for the district’s design.  As with CD 1, the BVAP was much higher after the redistricting than before and was similarly increased to over the 50% line:  it went from 43.7% to 50.66%.  But for this district, the state’s defense is very different.  The state does not assert that it did this because of the VRA and the state denies setting any racial target for the district.  Pure partisan politics, the State argues, caused the district to be designed as it was; this increase in the BVAP was simply the fallout from a partisan gerrymander.
If the Court concludes that CD 12 was a racial gerrymander, there is no doubt the district will be found unconstitutional.  The state has offered no defense to the claim of racial gerrymandering for CD 12 (unlike CD 1) because the defense here is that no racial gerrymander took place, period.
The issue of untangling racial from political purposes is a recurring one in these cases, and the way the Court untangles those threads here will provide some guidance to lower courts.  But because the disputes are largely factual ones, the legal issues at stake are not generally as broadly significant as those concerning CD 1.
There is, though, one element the Court is likely to address that will affect many cases.  The Court spent much time at oral argument over a passage (really, a sentence) authored by Justice Breyer in an earlier North Carolina redistricting opinion, Easley v. Cromartie, that has caused a good deal of uncertainty and confusion in the lower courts.  Given how much attention the Court spent at argument on this passage, the Court is likely to try to clarify the meaning of this language from this earlier NC case.

  1.  There is also a complex procedural dimension to this case, which undoubtedly contributes to why the case has been pending so long.  As is not uncommon in redistricting cases, we have two parallel sets of litigation here:  both the North Carolina Supreme Court and the federal courts have addressed the same factual and legal issues.  And the state and federal courts came to different conclusions, factually and legally, about both CD 1 and CD 12.
The case before the Supreme Court arises out of the federal litigation.  But the Court has to confront the issue of how to handle situations where we have competing state and federal court findings of fact involving the same federal legal claims.  Normally, the Court would apply the clear-error standard of review to the findings of the trial court whose decision the Court is reviewing – here, the federal court.  But should the clear-error standard be applied differently when there is an additional set of findings of fact (here, contrary ones) in a separate state court proceeding?  These are interesting procedural issues in federal-courts law, but they do not directly involve the substantive questions about the legitimate role of race in the districting process and the relationship between the VRA and the Equal Protection clause of the Constitution.
Short summary: even though the oral argument almost entirely neglected CD 1, that’s where I’ll be focused first when this case comes down.
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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>

“Two (at most) secret donors funded 93% of pro-Rubio nonprofit”<http://electionlawblog.org/?p=92391>
Posted on May 5, 2017 7:37 am<http://electionlawblog.org/?p=92391> by Rick Hasen<http://electionlawblog.org/?author=3>
Open Secrets:<https://www.opensecrets.org/news/2017/05/two-donors-funded-rubio-nonprofit/>
A politically active nonprofit that supported Sen. Marco Rubio’s (R-Fla.) failed 2016 presidential bid raised nearly $22 million in two years, 93 percent of which came from either one or two anonymous donors, tax documents obtained by the Center for Responsive Politics show.
Conservative Solutions Project, a 501(c)(4) “social welfare” organization with no employees or volunteers<https://www.documentcloud.org/documents/3673070-Conservative-Solutions-Project-2015.html#document/p3/a350378> that isn’t supposed to be primarily political, spent millions of dollars<https://www.opensecrets.org/news/2016/05/new-tax-forms-rubio-dark-money-legacy-even-darker/> on ads, research and polling to boost the Florida senator’s candidacy, but it appears to have done little or no social welfare — unless one counts portraying Rubio as a champion on taxes and foreign policy as being a public good. That raises questions of whether CSP crossed a legal line by acting mainly as a political group — and also whether it existed to benefit a single person, violating the IRS’ “private benefit” rule.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Pro-Trump super PACs have already spent $1 million on Election 2020”<http://electionlawblog.org/?p=92389>
Posted on May 5, 2017 7:36 am<http://electionlawblog.org/?p=92389> by Rick Hasen<http://electionlawblog.org/?author=3>
Dave Levinthal reports<https://www.publicintegrity.org/2017/05/05/20832/pro-trump-super-pacs-have-already-spent-1-million-election-2020> for CPI.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“New Survey of Local Election Officials Debunks Trump’s Claims that Millions Improperly Voted in 2016”<http://electionlawblog.org/?p=92387>
Posted on May 5, 2017 7:35 am<http://electionlawblog.org/?p=92387> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.brennancenter.org/press-release/new-survey-local-election-officials-debunks-trump%E2%80%99s-claims-millions-improperly-voted>
Noncitizen voting in the 2016 election was exceedingly rare, according to a new analysis of information from local election administrators by the Brennan Center for Justice at NYU School of Law.
To produce this new resource, researchers conducted standardized, in-depth interviews with election officials in 42 jurisdictions across the country, including administrators in eight of the 10 jurisdictions with the largest populations of noncitizens. Of 23.5 million votes tabulated in the areas surveyed, election officials referred an estimated 30 incidents of suspected noncitizen voting for further investigation or prosecution, representing 0.0001 percent of the votes cast. Other findings of Noncitizen Voting: The Missing Millions<https://www.brennancenter.org/publication/noncitizen-voting-missing-millions> include:

  *   Forty jurisdictions — all but two of the 42 studied — reported no known incidents of noncitizen voting in 2016. All of the officials spoken with said that the incidence of noncitizen voting in prior years was not significantly greater than in 2016.
  *   In the 10 counties with the largest populations of noncitizens in 2016, only one reported any instances of noncitizen voting, consisting of fewer than 10 votes. New York City, home to two of the counties, refused to participate in the study.
  *   In California, Virginia and New Hampshire — the states where Trump claimed the problem of noncitizen voting was especially acute — no official we spoke with identified any incidents of noncitizen voting in 2016.
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Posted in election administration<http://electionlawblog.org/?cat=18>

Mike Roman Now Working for Trump Administration<http://electionlawblog.org/?p=92385>
Posted on May 5, 2017 7:17 am<http://electionlawblog.org/?p=92385> by Rick Hasen<http://electionlawblog.org/?author=3>
Pro Publica:<https://www.propublica.org/article/you-helped-us-find-hires-the-white-house-never-announced>
Mike Roman, a longtime Republican opposition researcher who worked for billionaire brothers Charles and David Koch before joining the Trump campaign, is now the White House’s director of special projects and research. He is one of a half-dozen unannounced hires the White House has made since President Trump took office.
Roman, who led the Kochs’ surveillance and intelligence-gathering unit<http://www.politico.com/story/2015/11/the-koch-brothers-intelligence-agency-215943> before it was disbanded in April 2016, is best known for promoting a video showing members of the New Black Panthers allegedly intimidating voters outside a Philadelphia polling place in 2008. That controversial video of two men yelling racial slurs led to infighting and political recriminations<http://www.nytimes.com/2010/07/07/us/07rights.html> inside the Justice Department and became a flash point for conservative media.
We found out about Roman’s job as well as the titles of other White House staffers with the help of readers. (Roman’s title was not included in his White House financial disclosure<https://drive.google.com/file/d/0BzpLrfAn0dfvdTdLeE1sMzZlV0E/view>, but a White House official confirmed his position to ProPublica. The official also confirmed the other staffers’ job titles but did not respond to other questions.)
Roman, who made roughly $246,000 in salary from the Koch-backed Freedom Partners, according to his financial disclosure, was also a contributor to the conservative news site Breitbart<http://www.breitbart.com/author/mike-roman/> and was tapped<https://www.theguardian.com/us-news/2016/oct/18/controversial-republican-mike-roman-to-run-donald-trumps-election-protection> to run Trump’s “election protection” poll-watching efforts this November. He did not respond to ProPublica’s requests for comment.
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Posted in election law biz<http://electionlawblog.org/?cat=51>

--
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>
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http://electionlawblog.org<http://electionlawblog.org/>
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