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

Wed May 17 08:59:32 PDT 2017

“The Criminal President?”<http://electionlawblog.org/?p=92578>
Posted on May 17, 2017 8:51 am<http://electionlawblog.org/?p=92578> by Rick Hasen<http://electionlawblog.org/?author=3>
Painter and Eisen<https://www.nytimes.com/2017/05/17/opinion/trump-comey-memo-obstruction-justice.html?_r=1> with another NYT oped:
We have previously called for Congress to set up an independent 9/11-style commission on the Russia and Flynn investigations, and for the Department of Justice to appoint a special prosecutor. This appointment is necessary because Congress can’t actually prosecute anyone who may have committed crimes, including obstruction of justice, in connection with the Trump-Russia matter. This week’s revelations about the president, the most powerful man in the country, emphasize the need for these independent structures to be erected and to encompass these new allegations.
At least for now, we need not address the question, fully briefed to the Supreme Court during Watergate, but never resolved, of whether a special prosecutor could indict the president; as with Nixon, the question may again be obviated by other events, like the House initiating impeachment proceedings and the president resigning.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

A Few Words About Erwin Chemerinsky, Leaving as UCI Law Dean<http://electionlawblog.org/?p=92573>
Posted on May 17, 2017 8:12 am<http://electionlawblog.org/?p=92573> by Rick Hasen<http://electionlawblog.org/?author=3>
Erwin Chemerinsky, the founding dean of UCI Law, has just announced he will be stepping down at the end of June to begin a position as dean at UC Berkeley.
Let me offer a few words about Erwin and about UCI Law.
Everyone knew before he became dean that Erwin is a famously wonderful teacher and a master of synthesizing and explaining constitutional law and so much else. What was not known is how talented he would be as an administrator and a leader.
Beginning a law school at the start of the serious downturn in the legal market was tough. No one knew how it would go. But Erwin, surrounding himself with excellent staff, and with great support from the chancellors and provosts of UCI, built UCI Law immediately into a world class institution. The people who came here were risk takers, and that added to the entrepreneurial atmosphere from the beginning.
The stellar faculty he recruited (present company excepted), the diverse and brilliant students he attracted, the hard-working staff who supported him, all worked to build an institution that will not only rank highly on the conventional measures of scholarship, but rank highly for its humanity: its commitment to clinical teaching so that our students are prepared for the real world; its emphasis on social justice, and the need to better the world; and its place as one of friendship and compassion, where people are happy to come to work, to study, and to learn from one another.
Erwin has been a great friend to me, giving me support and wise advice when I needed it. He has been a leader with boundless energy (he made even the busiest and most productive of us feel like slackers). The UCI Law community owes him a great debt for beginning us on the path of a truly great institution.
The future will no doubt hold challenges, but it is hard to imagine anyone who could have started us on a surer or better path.
Thank you Erwin.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Trump “Voter Fraud” Commission Still Has Empty Slots<http://electionlawblog.org/?p=92571>
Posted on May 17, 2017 8:01 am<http://electionlawblog.org/?p=92571> by Rick Hasen<http://electionlawblog.org/?author=3>
I noted last week<http://electionlawblog.org/?p=92496> that the commission has only six announced members (out of 12-15). This includes only two Democrats, and there is good reason not to count NH SOS Gardner as a Democrat.
And no announced research director.
Let’s see if any more Democrats and election professionals step up. I sure hope they don’t participate in this sham.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Two declare candidacies for Ohio secretary of state”<http://electionlawblog.org/?p=92569>
Posted on May 17, 2017 7:58 am<http://electionlawblog.org/?p=92569> by Rick Hasen<http://electionlawblog.org/?author=3>
Race to watch.<http://www.dispatch.com/news/20170517/two-declare-candidacies-for-ohio-secretary-of-state>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“New CCP Issue Brief: ‘Dark Money’ Drops to 2.9% of Campaign Spending in 2016”<http://electionlawblog.org/?p=92567>
Posted on May 17, 2017 7:48 am<http://electionlawblog.org/?p=92567> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.campaignfreedom.org/2017/05/17/new-ccp-issue-brief-dark-money-drops-to-2-9-of-campaign-spending-in-2016/>
The Center for Competitive Politics, America’s largest nonprofit defending First Amendment political free speech rights, released a new Issue Brief<http://www.campaignfreedom.org/wp-content/uploads/2017/05/2017-05-08_Issue-Brief_Wachob_Putting-Dark-Money-In-Context.pdf> today analyzing the amount of so-called “dark money,” or election campaign spending by nonprofits that are not required to publicly report the private information of their supporters to the government unless the contributions are earmarked for campaign ads, over the last six election cycles. Among other things, CCP’s Brief found:

  *   “Dark money” declined in both absolute and relative terms from the last presidential election cycle, down to $184 million from $309 million.
  *   “Dark money” accounted for only 2.9% of all campaign expenditures in 2015-2016.
  *   Nonprofits have never accounted for more than 5% of all election campaign spending in any election cycle.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Today’s Must Read: Bob Bauer on the Trump “Mercurial” Presidency<http://electionlawblog.org/?p=92565>
Posted on May 17, 2017 7:44 am<http://electionlawblog.org/?p=92565> by Rick Hasen<http://electionlawblog.org/?author=3>
Over at Lawfare.<https://www.lawfareblog.com/mercurial-presidency-trump-and-governing-crisis>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Bauer on Supreme Court Cert. Denial of Hawaii Open Primary Case<http://electionlawblog.org/?p=92563>
Posted on May 17, 2017 7:43 am<http://electionlawblog.org/?p=92563> by Rick Hasen<http://electionlawblog.org/?author=3>
Here.<http://www.moresoftmoneyhardlaw.com/2017/05/political-parties-problems/>
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Posted in political parties<http://electionlawblog.org/?cat=25>, Supreme Court<http://electionlawblog.org/?cat=29>

“The 25th Amendment Solution to Remove Trump”<http://electionlawblog.org/?p=92561>
Posted on May 16, 2017 8:43 pm<http://electionlawblog.org/?p=92561> by Rick Hasen<http://electionlawblog.org/?author=3>
Ross Douthat NYT column:<https://www.nytimes.com/2017/05/16/opinion/25th-amendment-trump.html>
Which is not an argument for allowing him to occupy that office. It is an argument, instead, for using a constitutional mechanism more appropriate to this strange situation than impeachment: the 25th Amendment to the Constitution, which allows for the removal of the president if a majority of the cabinet informs the Congress that he is “unable to discharge the powers and duties of his office” and (should the president contest his own removal) a two-thirds vote by Congress confirms the cabinet’s judgment.
The Trump situation is not exactly the sort that the amendment’s Cold War-era designers were envisioning. He has not endured an assassination attempt or suffered a stroke or fallen prey to Alzheimer’s. But his incapacity to really govern, to truly execute the serious duties that fall to him to carry out, is nevertheless testified to daily — not by his enemies or external critics, but by precisely the men and women whom the Constitution asks to stand in judgment on him, the men and women who serve around him in the White House and the cabinet.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“U.S. For Voting Rights Advocates, Court Decision Is ‘Temporary Victory’”<http://electionlawblog.org/?p=92559>
Posted on May 16, 2017 7:18 pm<http://electionlawblog.org/?p=92559> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Wines<https://www.nytimes.com/2017/05/16/us/for-voting-rights-advocates-court-decision-is-temporary-victory.html> in the NYT:
It seemed like an important victory for voting rights advocates on Monday when the Supreme Court<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org> declined to reconsider an appellate decision striking down North Carolina’s restrictive voting law. But those who follow the arcana of election law have another view — that the justices have merely postponed a showdown over what kind of voting rules are acceptable and how much influence partisanship should have over access to the ballot box.
And in that struggle, it is by no means certain who will prevail.
A parade of voting rights cases is headed for likely review by the Supreme Court — including challenges to gerrymanders in Wisconsin, North Carolina and Texas and a ruling against another restrictive voter law in Texas. At the same time, states controlled by Republican legislatures and governors are continuing to enact stringent election laws, many of them similar to the ones already moving through the courts.
The pending cases and new laws raise some of the same issues the justices declined to address in the North Carolina case: What is the reach of the Voting Rights Act<http://topics.nytimes.com/topics/reference/timestopics/subjects/v/voting_rights_act_1965/index.html?inline=nyt-classifier> since the court struck down its most powerful provisions in 2012? Is it legal to disadvantage minority voters if the motivation is political gain, not racial or ethnic hostility? How heavily can the court weigh in on partisan issues like gerrymandering and voter ID requirements before it becomes even more enmeshed in partisanship itself?
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Hillary Clinton Starts “Dark Money” Group, Gets Attacked by Campaign Legal Center<http://electionlawblog.org/?p=92557>
Posted on May 16, 2017 9:44 am<http://electionlawblog.org/?p=92557> by Rick Hasen<http://electionlawblog.org/?author=3>
I suspect pressure like this<http://www.campaignlegalcenter.org/news/press-releases/onward-together-breaks-clinton-s-promise-end-secret-unaccountable-money-politics> will get Clinton to voluntarily disclose donors to her new 501c4.
But who knows these days?
Hypocrisy is a bipartisan problem.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump’s Fraudulent Voter-Fraud Commission”<http://electionlawblog.org/?p=92555>
Posted on May 16, 2017 7:20 am<http://electionlawblog.org/?p=92555> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT editorial:<https://www.nytimes.com/2017/05/15/opinion/trump-voter-fraud-commission.html?smid=tw-nytopinion&smtyp=cur&_r=0>
To state the obvious, this isn’t a commission. It’s a self-driving vehicle preprogrammed to arrive at only one destination: that strange, fact-free land in which, according to Mr. Trump and many conservatives, hordes of foreigners and people without valid photo identification flood the polls, threatening the nation’s electoral integrity. The right-wing politicians and anti-voter activists who appear to believe this never trouble themselves with the actual data.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“New Report: Extreme Partisan Maps Account for 16-17 Republican Seats in Congress”<http://electionlawblog.org/?p=92553>
Posted on May 16, 2017 7:15 am<http://electionlawblog.org/?p=92553> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<https://www.brennancenter.org/press-release/new-report-extreme-partisan-maps-account-16-17-republican-seats-congress>
The 2018 midterms will be fiercely fought, with a focus on control of the U.S. House after years of Republican dominance. At the same time, the U.S. Supreme Court will likely hear a challenge to partisan gerrymandering in Gill v. Whitford later this year. And both parties gearing up for the new national redistricting cycle starting in 2021. Congressional maps are back in the political spotlight.
Today, a new repor<http://www.brennancenter.org/publication/extreme-maps>t from the Brennan Center for Justice at NYU School of Law finds that extreme partisan bias in congressional maps account for at least 16-17 Republican seats in the current Congress –a significant portion of the 24 seats Democrats would need to gain control of the House in 2020 – and that only a small number of swing states account for the vast majority of this partisan skew.
Extreme Maps<http://www.brennancenter.org/publication/extreme-maps>, the first in-depth report to use data from the 2016 election as well as the 2014 and 2012 cycles, focuses on the most egregious map-drawing abuses. The congressional maps in question have high levels of “partisan bias” – the degree of systematic advantage one party receives over another in turning votes into seats – under at least three widely accepted statistical measures.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

SCOTUSBlog Rounds Up Stories on North Carolina Voting Case Cert Denial<http://electionlawblog.org/?p=92551>
Posted on May 16, 2017 7:13 am<http://electionlawblog.org/?p=92551> by Rick Hasen<http://electionlawblog.org/?author=3>
Here.<http://www.scotusblog.com/2017/05/tuesday-round-up-378/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Supreme Court order unlikely to deter voting restrictions”<http://electionlawblog.org/?p=92549>
Posted on May 16, 2017 7:06 am<http://electionlawblog.org/?p=92549> by Rick Hasen<http://electionlawblog.org/?author=3>
Mark Sherman<http://www.mcclatchydc.com/news/politics-government/national-politics/article150727522.html> for the AP:
The Supreme Court’s refusal to breathe new life into North Carolina’s sweeping voter identification law might be just a temporary victory for civil rights groups.
Republican-led states are continuing to enact new voter ID measures and other voting restrictions, and the Supreme Court’s newly reconstituted conservative majority, with the addition of Justice Neil Gorsuch, could make the court less likely to invalidate the laws based on claims under the federal Voting Rights Act or the Constitution.
The justices on Monday left in place last summer’s ruling by the 4th U.S. Circuit Court of Appeals striking down the law’s photo ID requirement to vote in person and other provisions, which the lower court said targeted African-Americans “with almost surgical precision.”
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, 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
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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