[EL] ELB News and Commentary 5/24/17

Wed May 24 08:40:14 PDT 2017

“Commentary: Dunlap badly mistaken in agreeing to serve on Trump voter fraud panel”<http://electionlawblog.org/?p=92806>
Posted on May 24, 2017 8:34 am<http://electionlawblog.org/?p=92806> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this oped <http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/> for the Portland Press Herald. It begins:
Maine Secretary of State Matthew Dunlap is making a serious mistake by agreeing to participate<http://tinyurl.com/mpz6etd> in a sham “voter integrity” commission established by President Trump to validate his ludicrous claims about voter fraud. But it is not too late for Dunlap to withdraw, and it’s the right thing to do….
President Trump raised the voter fraud rhetoric to an unprecedented extent by claiming before the election that there was massive voter fraud taking place in “urban” (read: minority) areas of Pennsylvania and elsewhere. After the election, he made a totally debunked<http://www.pressherald.com/2017/02/12/fact-check-stephen-millers-voter-fraud-claims-are-totally-false/> claim that 3 million or more noncitizens voted in 2016. So far, the most credible count of such votes, by the Brennan Center for Justice, is 30 possible noncitizen votes across the entire country<http://www.brennancenter.org/press-release/new-survey-local-election-officials-debunks-trump%E2%80%99s-claims-millions-improperly-voted>. That’s right: not millions, not thousands, not even hundreds.
No responsible election professional or academic has supported Trump’s claims of massive fraud. There’s only one election professional I know of who has: Kansas Secretary of State Kris Kobach, who said, without credible evidence, that there could be a million or more fraudulent votes in the election. Kobach has a reputation for hyping unsubstantiated claims of voter fraud for his own political agenda.
Of course, Trump and Vice President Mike Pence have put Kobach in charge of a so-called “Election Integrity” commission nominally headed by Pence. Prior commissions examining election problems have been bipartisan and headed by party elders: former presidents Jimmy Carter and Gerald Ford in 2000, Carter and former Secretary of State James A. Baker III in 2004, and Bob Bauer and Ben Ginsberg in 2012. There’s no Democratic co-chair of this commission.
No one expects this commission to do what the other commissions did: consult experts, hear testimony and issue a data-driven report on ways to improve the electoral process for all Americans, Democrat or Republican. Instead, the commission’s report is likely to echo the president’s unsubstantiated allegations that fraud – or the potential for fraud – is serious. So serious, the commission will likely urge the passage of national legislation making it harder for people to register and vote. It is a means to suppress votes on a national scale.
And this is where Maine’s secretary of state fits in. He’s going to be used like a patsy….
Dunlap is skeptical of Trump’s claims<http://www.pressherald.com/2017/05/11/maines-secretary-of-state-could-join-trump-commission-on-voter-fraud/>, and has said his purpose in serving on the commission is to work from the inside, with a seat on the table. There is no reason to believe he can serve this purpose, even if he issues a minority report disagreeing with its findings. The report will still be trumpeted as a “bipartisan” commission that reached certain conclusions.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

Anita Earls: “Bringing sanity to racial-gerrymandering jurisprudence”<http://electionlawblog.org/?p=92804>
Posted on May 24, 2017 8:27 am<http://electionlawblog.org/?p=92804> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Anita Earls<http://www.scotusblog.com/2017/05/symposium-bringing-sanity-racial-gerrymandering-jurisprudence/> in the SCOTUSBlog symposium<http://www.scotusblog.com/category/special-features/symposium-on-october-term-2016s-racial-gerrymandering-decisions/> on Cooper v. Harris:
Although not breaking new ground, the court’s post-2010 census round of racial gerrymandering cases make clear that while not every district drawn as a majority-black or majority-Latino district is a racial gerrymander subject to strict scrutiny, states seeking to use packing to weaken the voting strength of black or Latino voters cannot hide behind the Voting Rights Act to do so.
Most importantly, this line of cases, and particularly Kagan’s opinion in Cooper, should put to rest the false dichotomy of “is it race or is it party” that threatened to turn racial-gerrymandering doctrine into a meaningless standard. The census data puts racial data squarely in front of legislators enacting redistricting plans. In most states, election returns showing past voting patterns are also routinely in front of legislators. Party affiliation and voting patterns are also almost everywhere correlated to race. In the absence of direct “smoking gun” evidence of legislative intent, teasing out legislative motive from a binary framework of deciding whether race or party was the predominant factor is an abstraction that does not reflect the real world.
The court’s opinion in Cooper makes clear the common-sense understanding that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” The equal protection clause does not have a partisanship exception. State legislators cannot intentionally assign voters to districts on the basis of their race as long as they ultimately want a particular partisan result. So race may predominate even if the legislature’s ultimate goal was a partisan one. Had the court gone the other way on this question, we would face a situation in which when white voters bring a racial gerrymander claim (the 1990s cases), race is the predominant factor, but when black voters bring the claim (the cases from 2010 through this term), party is thought to predominate. That “heads I win, tails you lose” outcome would have been manifestly unjust.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Texas House backs voter ID overhaul, with changes”<http://electionlawblog.org/?p=92802>
Posted on May 24, 2017 8:20 am<http://electionlawblog.org/?p=92802> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Tribune:<https://www.texastribune.org/2017/05/23/texas-house-backs-voter-id-overhaul-changes/>
The Texas House on Tuesday tentatively approved legislation to overhaul the state’s embattled voter identification law, moving it one step closer to Gov. Greg Abbott<https://www.texastribune.org/directory/greg-abbott/>’s desk.
Senate Bill 5<http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB5> would in several ways relax what some had called the nation’s most stringent ID requirements for voters — a response to court findings that the current law discriminated against black and Latino voters.
The 95-54 vote followed a six-hour debate that saw fierce pushback from Democrats, who argued the legislation wouldn’t go far enough to expand ballot access and contains provisions that might discourage some Texans from going to the polls. Democrats proposed a host of changes through amendments, a few of which surprisingly wriggled through….
Last year, the U.S. 5th Circuit Court of Appeals ruled<https://www.texastribune.org/2016/07/20/appeals-court-rules-texas-voter-id/> Texas lawmakers discriminated against minority voters by enacting the 2011 law. U.S. District Judge Nelva Gonzales Ramos upped the ante in April<https://www.texastribune.org/2017/04/10/texas-intentionally-discriminated-2011-voter-id-law-judge-rules-again/>, ruling the state discriminated on purpose. That raised the possibility she could invoke a section of the Voting Rights Act to place Texas under federal oversight of its election laws — a process called preclearance.
The state’s lawyers want to point to SB 5 next month when they return to Ramos’ Corpus Christi court for a hearing on how to remedy the voting violations. Republican leaders hope she will accept the new law and refrain from putting Texas under preclearance.
“SB 5 addresses every situation that the courts have found in six years of litigation,” King said.
Ramos temporarily softened the ID rules for the 2016 elections, and Huffman’s legislation largely follows its lead. It would allow people without photo ID to vote if they presented alternate forms of ID<https://www.texastribune.org/2016/10/24/texplainer-what-id-do-i-need-voting/> and signed affidavits swearing a “reasonable impediment”<http://www.sos.state.tx.us/elections/forms/pol-sub/reasonable-impediment-declaration.pdf> kept them from obtaining what was otherwise required.
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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>

“Top hacker conference to target voting machines”<http://electionlawblog.org/?p=92800>
Posted on May 24, 2017 8:16 am<http://electionlawblog.org/?p=92800> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/05/23/defcon-hacker-conference-voting-machines-238734>
Hackers will target American voting machines—as a public service, to prove how vulnerable they are.
When over 25,000 of them descend on Caesar’s Palace in Las Vegas at the end of July for DEFCON, the world’s largest hacking conference, organizers are planning to have waiting what they call “a village” of different opportunities to test how easily voting machines can be manipulated.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

Looking Good: New FEC Website Relaunches<http://electionlawblog.org/?p=92798>
Posted on May 24, 2017 8:14 am<http://electionlawblog.org/?p=92798> by Rick Hasen<http://electionlawblog.org/?author=3>
Looks<http://www.fec.gov/> to be a great improvement.  Kudos!
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Posted in federal election commission<http://electionlawblog.org/?cat=24>

“FEC Memo Says Cruz Declines to Amend Disclosure Reports”<http://electionlawblog.org/?p=92796>
Posted on May 24, 2017 8:11 am<http://electionlawblog.org/?p=92796> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=112449944&vname=mpebulallissues&jd=a0m5d3p5y7&split=0>
Sen. Ted Cruz (R-Texas) has refused demands by the Federal Election Commission to provide more public details about more than $1 million in bank loans that helped finance his original campaign for the Senate in 2012, according to a new memorandum<http://www.fec.gov/agenda/2017/documents/mtgdoc_17-19-a.pdf> from FEC staff auditors.
Questions about Cruz’s loans were raised in news reports during last year’s presidential campaign, when the Texas senator was running for the Republican presidential nomination. The questions have never been fully resolved, according to the FEC auditors.
An audit finding that Cruz violated campaign finance reporting rules is set to be considered at the FEC commissioners’ next open meeting May 25. Cruz’s office told Bloomberg BNA that the campaign disclosure reports would be amended after the FEC commissioners approve the audit findings.
Cruz acknowledged in a letter to the FEC in January 2016 that he used loans from Goldman Sachs Group Inc. and Citibank, a subsidiary of Citigroup Inc., to help finance his 2012 campaign for the Senate. The letter did not provide details about the loans, including whether they were secured by assets held jointly by Cruz and his wife, Heidi, who had worked for Goldman Sachs.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Did the 2016 Election Cause John Roberts To Change His Views on Race?”<http://electionlawblog.org/?p=92794>
Posted on May 24, 2017 8:02 am<http://electionlawblog.org/?p=92794> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/did-2016-election-cause-john-roberts-change-his-views-race>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Greg Kesich: Court gives new life to flawed election system that gave us LePage”<http://electionlawblog.org/?p=92792>
Posted on May 24, 2017 7:56 am<http://electionlawblog.org/?p=92792> by Rick Hasen<http://electionlawblog.org/?author=3>
Portland Press Herald column:<http://www.pressherald.com/2017/05/24/greg-kesich-court-ruling-gives-new-life-to-flawed-election-system-that-gave-us-lepage/>
Because let’s be clear: They can make ranked-choice voting go away, but they can’t make the reasons people put ranked-choice voting on the ballot go away. They will be on display next year.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

Rick Hills on the Racial Redistricting Cases<http://electionlawblog.org/?p=92786>
Posted on May 24, 2017 7:20 am<http://electionlawblog.org/?p=92786> by Richard Pildes<http://electionlawblog.org/?author=7>
Rick Hills, a colleague, has a provocative essay at prawfsblawg<http://prawfsblawg.blogs.com/prawfsblawg/2017/05/is-scotus-transcending-partisan-voting-in-the-race-districting-decisions.html#more>, on the post-2010 racial redistricting cases, including Monday’s decision in the North Carolina case.  Here is how he opens his analysis (his words, not mine):
Since at least the 2010 census, Republican state legislators in the South have been zealously “packing” black voters into districts with ever-larger black majorities in order to minimize Democrats’ political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012<https://www.thenation.com/article/how-gop-resegregating-south/>, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.
This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie<https://supreme.justia.com/cases/federal/us/532/234/case.html>) had pressed for a lax, fact-based review of race-based districts under an incomprehensible “predominant factor” test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt<https://supreme.justia.com/cases/federal/us/517/899/case.html>) and Justice Kennedy (in Miller v. Johnson<https://supreme.justia.com/cases/federal/us/515/900/case.html>), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.
After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, “strict-in-theory, rational-basis-in-fact” sort of color-blindness<http://prawfsblawg.blogs.com/prawfsblawg/2015/03/fair-weather-color-blindness-in-the-alabama-redistricting-case.html>?
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“ACLU seeks sanctions against Kobach and public disclosure of Trump documents”<http://electionlawblog.org/?p=92783>
Posted on May 23, 2017 5:51 pm<http://electionlawblog.org/?p=92783> by Rick Hasen<http://electionlawblog.org/?author=3>
Bryan Lowry:<http://www.kansascity.com/news/politics-government/article152102442.html>
The American Civil Liberties Union has asked a federal court to enable documents from Kansas Secretary of State Kris Kobach’s November meeting with President Donald Trump to be made public.
Kobach earlier this month handed over the documents, which outline a proposed strategic plan for the U.S. Department of Homeland Security, under a federal judge’s order<http://www.kansascity.com/news/politics-government/article149757479.html>. However, he marked the documents as confidential.<http://www.kansascity.com/news/politics-government/article150296992.html>
The ACLU filed a motion with U.S. District Court of Kansas in Kansas City, Kan. late Monday seeking to remove that designation and enable their contents to be shared with the wider public.
Kobach’s office did not immediately comment on the matter.
The ACLU also asked the court to sanction Kobach for his earlier failure to comply with the discovery process and to reopen discovery to allow Kobach to be deposed to answer questions about the documents. If the court sanctions Kobach, he will face fines.
“Defendant should be sanctioned for a pattern of misrepresentation and a fundamental lack of candor directed at obscuring documents that Defendant wished not to disclose,” the ACLU’s filing states. “Defendant’s misleading conduct has not only unnecessarily prolonged this discovery dispute…it has raised basic questions about the integrity of Defendant’s representations to Plaintiffs and to the Court, and merits sanctions.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Is Anthony Kennedy Ready to Put an End to Partisan Gerrymandering? The Supreme Court’s swing voter will decide the future of American elections.”<http://electionlawblog.org/?p=92780>
Posted on May 23, 2017 4:52 pm<http://electionlawblog.org/?p=92780> by Rick Hasen<http://electionlawblog.org/?author=3>
Jitters.<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/05/is_anthony_kennedy_ready_to_put_an_end_to_partisan_gerrymandering.html>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92780&title=%E2%80%9CIs%20Anthony%20Kennedy%20Ready%20to%20Put%20an%20End%20to%20Partisan%20Gerrymandering%3F%20The%20Supreme%20Court%E2%80%99s%20swing%20voter%20will%20decide%20the%20future%20of%20American%20>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Cooper v. Harris: Proxy Battles & Partisan War”<http://electionlawblog.org/?p=92778>
Posted on May 23, 2017 4:48 pm<http://electionlawblog.org/?p=92778> by Rick Hasen<http://electionlawblog.org/?author=3>
Mike Parsons <https://moderndemocracyblog.com/2017/05/23/cooper-v-harris-proxy-battles-partisan-war/> on yesterday’s Supreme Court racial gerrymandering decision.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92778&title=%E2%80%9CCooper%20v.%20Harris%3A%20Proxy%20Battles%20%26%20Partisan%20War%E2%80%9D>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“Why Texas Lawmakers Don’t Want The Courts To Handle Voter ID Law”<http://electionlawblog.org/?p=92776>
Posted on May 23, 2017 12:37 pm<http://electionlawblog.org/?p=92776> by Rick Hasen<http://electionlawblog.org/?author=3>
Texas Standard talks<http://tpr.org/post/why-texas-lawmakers-dont-want-courts-handle-voter-id-law#stream/0> to Joey Fishkin.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92776&title=%E2%80%9CWhy%20Texas%20Lawmakers%20Don%E2%80%99t%20Want%20The%20Courts%20To%20Handle%20Voter%20ID%20Law%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Real Voter Fraud: Suppression, Intimidation and Denying the Right to Vote “<http://electionlawblog.org/?p=92774>
Posted on May 23, 2017 12:14 pm<http://electionlawblog.org/?p=92774> by Rick Hasen<http://electionlawblog.org/?author=3>
Jim Condos, Vt. Secretary of State writes<https://www.sec.state.vt.us/media/849647/secretary-of-state-jim-condos-true-voter-fraud-op-ed.pdf>:
I am deeply troubled by the announcement that the President signed an executive order establishing a commission to review alleged voter fraud in our elections. Since the 2016 election, President Trump has made repeated unsubstantiated claims of widespread voter fraud. Credible studies have shown over and over again that widespread voter fraud simply does not exist, and election officials from across the country, Democrat and Republican, agree. So why the brazen claims of widespread voter fraud? I believe these unproven claims are an effort to set the stage to weaken and skew our democratic process through a systematic national effort of voter suppression and intimidation….
The fact that Vice President Pence and Kansas Secretary of State Kris Kobach have been announced as Chair and Vice Chair of this commission confirms my worst fears. Both are unabashed supporters of restrictive voter ID laws, as they exaggerate claims of voter fraud. Secretary Kobach has championed some of the most restrictive voting laws in the country. The leadership of this commission is a clear prelude to what I expect to be a reinvigorated nationwide campaign promoting strict voter suppression laws and voter intimidation.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

“A Surprise Win for Campaign Contribution Limits”<http://electionlawblog.org/?p=92772>
Posted on May 23, 2017 12:07 pm<http://electionlawblog.org/?p=92772> by Rick Hasen<http://electionlawblog.org/?author=3>
Daniel Weiner and Ian Vandewalker blog.<https://www.brennancenter.org/blog/surprise-win-campaign-contribution-limits>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Maine high court says ranked-choice voting is unconstitutional”<http://electionlawblog.org/?p=92769>
Posted on May 23, 2017 12:04 pm<http://electionlawblog.org/?p=92769> by Rick Hasen<http://electionlawblog.org/?author=3>
Portland Press Herald:<http://www.pressherald.com/2017/05/23/maine-high-court-says-ranked-choice-voting-is-unconstitutional/>
Maine’s highest court found Tuesday that the ranked-choice voting system passed at referendum last November violates the Maine Constitution.
In its advisory opinion, the Maine Supreme Judicial Court acknowledges the validity of citizen-initiative ballot questions but notes that even citizen-enacted laws can be unconstitutional.
I have posted the court’s opinion at this link.<http://electionlawblog.org/wp-content/uploads/17me100.pdf>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92769&title=%E2%80%9CMaine%20high%20court%20says%20ranked-choice%20voting%20is%20unconstitutional%E2%80%9D>
Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“House Democratic leader raises concern with Gardner election appointment”<http://electionlawblog.org/?p=92767>
Posted on May 23, 2017 11:48 am<http://electionlawblog.org/?p=92767> by Rick Hasen<http://electionlawblog.org/?author=3>
Concord Monitor:<http://www.concordmonitor.com/democratic-leader-concerned-about-bill-gardner-appointment-10240790>
The House Democratic leader is seeking assurances that no New Hampshire taxpayer dollars will be used to support an election integrity commission President Donald Trump created to review alleged voter fraud.
Trump recently tapped longtime New Hampshire Secretary of State Bill Gardner to sit on the commission. It’s not yet clear when the group will start meeting or how much time it will consume.
“I am hoping that you will provide the citizens of New Hampshire assurance that no state money is used for your travel or accommodations while you are working in Washington, D.C. on this Commission,” wrote House Minority Leader Steve Shurtleff in a letter to Gardner on Monday. “In addition, I would hope that your state time is not used in the pursuit of your work for the commission.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Scheduled to Be Interviewed by Senator Bernie Sanders About Trump and “Voter Fraud”<http://electionlawblog.org/?p=92763>
Posted on May 23, 2017 6:02 am<http://electionlawblog.org/?p=92763> by Rick Hasen<http://electionlawblog.org/?author=3>
Tune in<https://www.facebook.com/senatorsanders/photos/a.91485152907.84764.9124187907/10155948537592908/?type=3&theater> to “The Bernie Sanders Show” today at 11 eastern.
Update: The Internet went out at the Senate in the middle of this broadcast. They will broadcast the entire thing later in the week, and then I will link.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92763&title=Scheduled%20to%20Be%20Interviewed%20by%20Senator%20Bernie%20Sanders%20About%20Trump%20and%20%E2%80%9CVoter%20Fraud%E2%80%9D>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

NVRA Lawsuit in GA Allows 5,500 Additional Voters to Register in #GA06 Race<http://electionlawblog.org/?p=92761>
Posted on May 23, 2017 5:59 am<http://electionlawblog.org/?p=92761> by Rick Hasen<http://electionlawblog.org/?author=3>
Kristen Clarke tweets.<https://twitter.com/KristenClarkeJD/status/866817286962905089>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Supreme Court Affirms Ban on ‘Soft Money’ in Campaigns”<http://electionlawblog.org/?p=92759>
Posted on May 23, 2017 5:52 am<http://electionlawblog.org/?p=92759> by Rick Hasen<http://electionlawblog.org/?author=3>
Kate Ackley <http://www.rollcall.com/news/politics/supreme-court-affirms-ban-soft-money-campaigns?bt_alias=eyJ1c2VySWQiOiAiYTc0MzU1NTctZTEzMS00NDdiLTg2OWUtZmNhZjBmMmU0YTE4In0%3D&utm_medium=email&utm_source=rollcallheadlines&utm_campaign=newsletters> for Roll Call:
Sarbanes and outside advocates of new restrictions on political money said they were dismayed that Gorsuch, along with conservative Justice Clarence Thomas, went out of his way to say he wanted the court to hear oral arguments on the Louisiana case.
“It’s troubling that we’re seeing the most recent appointment to the Supreme Court, Justice Gorsuch, side with the most conservative on this, Justice Thomas,” said David Donnelly, president and CEO of Every Voice, which led a campaign against Gorsuch’s nomination over political money concerns.
Gorsuch “is way out of the mainstream. He’s very extreme when it comes to reviewing these questions about who has power in American politics,” Donnelly said.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“FEC member urges escalated Trump-Russia inquiry”<http://electionlawblog.org/?p=92757>
Posted on May 23, 2017 5:50 am<http://electionlawblog.org/?p=92757> by Rick Hasen<http://electionlawblog.org/?author=3>
Ken Vogel for Politico:<http://www.politico.com/story/2017/05/23/fec-trump-russia-facebook-238695>
Weintraub’s interest was piqued by an article published last week by TIME magazine<http://time.com/magazine/?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam> that revealed intelligence officials had evidence that Russian agents bought Facebook ads to disseminate election-themed stories. It also indicated that congressional investigators were examining whether Russian efforts to spread such content were boosted by two U.S. companies with deep ties to Trump — Breitbart News and Cambridge Analytica.
Representatives for the two companies did not respond to requests for comment.
It’s unlikely that the FEC would be able to build much of a case against Russia, partly because the Justice Department would have primacy on any criminal investigations.
However, Weintraub said, “if there are U.S. citizens involved in any way in spending foreign money to influence a U.S. election, then that would be something that we could and should pursue.”
Yet, the issue is not cut-and-dry, both because Facebook told TIME that it hasn’t found evidence of Russian agents buying ads on the social media platform and because, even if there were proof that Russian agents had paid for the ads, it’s not clear how the FEC would apply the law.
That’s partly because it could be argued that merely paying to disseminate news articles might not qualify as trying to influence an election. And it’s partly because the commission, which is currently comprised of three commissioners nominated by Republicans and two nominated by Democrats (with one Democratic seat vacant), has been famously divided on partisan lines, and its Republican appointees may be disinclined to pursue a case that would embarrass a president of their own party….
Paul Ryan, litigation director for Common Cause, said that if the Russian government paid to disseminate anti-Clinton content “then the activity would seemingly be covered by the ‘expenditure’ prong of the foreign national ban, rather than by the ‘contribution/donation’ prong of the ban.”
Debates about the specifics law aside, Ryan added that “common sense certainly suggests that Russia spending money to influence our elections should be covered by a statute that prohibits foreign nationals from spending money for the purpose of influencing a federal election.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>

Bauer on the Supreme Court’s Summary Affirmance in the McCain-Feingold Soft Money Case<http://electionlawblog.org/?p=92755>
Posted on May 23, 2017 5:44 am<http://electionlawblog.org/?p=92755> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob:<http://www.moresoftmoneyhardlaw.com/2017/05/supreme-court-political-parties/>
The Wild West in campaign finance, with the regulatory process in disarray, has caused all manner of distress among critics of the role of money in politics. But they could be comforted, finding some measure of compensation in a long series of disappointments. The state of disrepair in campaign finance may have convinced wavering Justices that Mr. Bopp was crying wolf, and that the parties, like everyone else out there, are not in dire straits. Better, then, to keep the reforms at least on the books and save judicial intervention for more compelling cases.
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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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