[EL] ELB News and Commentary 11/10/17

Fri Nov 10 08:15:17 PST 2017

Quote of the Day<http://electionlawblog.org/?p=95936>
Posted on November 10, 2017 8:10 am<http://electionlawblog.org/?p=95936> by Rick Hasen<http://electionlawblog.org/?author=3>
https://twitter.com/johnhmerrill/status/926190265525788672 …<https://t.co/B4iIziFIB6>
<https://twitter.com/JohnHMerrill/status/926546875184041984>

[https://pbs.twimg.com/profile_images/742076939960225792/JLuz0w4j_normal.jpg]John Merrill @JohnHMerrill<https://twitter.com/JohnHMerrill>
Counselor, there is no confusion. The confusion has been created by these trolls who are trying to change the conversation. I am not aware of any time in the history of the state where any individual has been denied the opportunity to vote in the general election if qualified.
12:29 PM - Nov 3, 2017<https://twitter.com/JohnHMerrill/status/926546875184041984>
—Alabama Secretary of State John Merrill, who desperately needs to pick up a history book.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Here’s What Could Happen With Roy Moore And The Alabama Senate Ballot”<http://electionlawblog.org/?p=95934>
Posted on November 10, 2017 8:06 am<http://electionlawblog.org/?p=95934> by Rick Hasen<http://electionlawblog.org/?author=3>
Paul Blumenthal<https://www.huffingtonpost.com/entry/roy-moore-alabama-senate-ballot_us_5a04baa6e4b0937b51108e64> for HuffPost:
Allegations that Roy Moore, the Republican Senate candidate in Alabama, sexually assaulted a 14-year-old<https://www.washingtonpost.com/investigations/woman-says-roy-moore-initiated-sexual-encounter-when-she-was-14-he-was-32/2017/11/09/1f495878-c293-11e7-afe9-4f60b5a6c4a0_story.html?utm_term=.e0c957614e21> and sought or maintained relationships with other teenage girls when he was in his early 30s has prompted calls from his fellow Republicans for him to step aside. But with the election only about a month away, options to replace Moore are limited.
Alabama election law prohibits a candidate from withdrawing from the ballot within 76 days before an election. The Senate special election between Moore and Democratic Party nominee Doug Jones is set for Dec. 12, or 33 days away. This means Moore cannot be replaced on the ballot with another Republican; not easily, at least.
Here are a few of the options for Republicans, based on information discussed by Pepperdine University election law professor Derek T. Muller<http://excessofdemocracy.com/blog/2017/11/sorting-out-the-alabama-senate-election-possibilities-in-light-of-roy-moore> on his blog and Twitter<https://twitter.com/derektmuller>:…
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Russia Twitter trolls rushed to deflect Trump bad news”<http://electionlawblog.org/?p=95932>
Posted on November 10, 2017 8:01 am<http://electionlawblog.org/?p=95932> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://www.cbsnews.com/news/twitter-trolls-russia-donald-trump-bad-news-ap-investigation/>
Disguised Russian agents on Twitter rushed to deflect scandalous news about Donald Trump just before last year’s presidential election<https://www.cbsnews.com/election-2016/>while straining to refocus criticism on the mainstream media and Hillary Clinton’s campaign, according to an Associated Press analysis of since-deleted accounts.
Tweets by Russia-backed accounts such as “America_1st_” and “BatonRougeVoice” on Oct. 7, 2016, actively pivoted away from news of an audio recording in which Mr. Trump made crude comments about groping women<https://www.cbsnews.com/news/billy-bush-on-access-hollywood-trump-tape-i-wish-i-had-changed-the-topic/>, and instead touted damaging emails hacked from Clinton’s campaign chairman John Podesta<https://www.cbsnews.com/news/john-podesta-meets-with-house-intel-about-russias-efforts-to-influence-2016-election/>.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Excused Menendez Juror: He’s Not Guilty”<http://electionlawblog.org/?p=95930>
Posted on November 9, 2017 4:03 pm<http://electionlawblog.org/?p=95930> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://www.nbcnews.com/politics/congress/excused-menendez-juror-he-s-not-guilty-n819511?cid=public-rss_20171109>
A juror who was excused from the bribery trial of Sen. Bob Menendez on Thursday gave a glimpse into deliberations, saying most jurors favor acquittal and that she would have cast a not-guilty vote for the New Jersey Democrat on all counts.
Evelyn Arroyo-Maultsby spoke outside the courthouse after the jury was unable to reach a verdict after three full days and part of a fourth. The judge in August approved her leaving by this week because she had a trip planned for a family wedding….
Menendez and Florida eye doctor Salomon Melgen are charged with a bribery scheme in which Melgen allegedly bribed Menendez with trips on his private jet and luxury vacations so Menendez would lobby government officials on his behalf.
“They are friends. If I was rich and I had a lot of money and I want to take my friend somewhere, why can’t I?” Arroyo-Maultsby said.
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Posted in bribery<http://electionlawblog.org/?cat=54>

“Gerrymandering suit can proceed, Pa. Supreme Court rules”<http://electionlawblog.org/?p=95928>
Posted on November 9, 2017 3:59 pm<http://electionlawblog.org/?p=95928> by Rick Hasen<http://electionlawblog.org/?author=3>
Philly.com:<http://www.philly.com/philly/news/politics/state/gerrymandering-suit-can-proceed-pa-supreme-court-rules-20171109.html>
In a case that could force the redrawing of congressional maps before the 2018 elections, the Pennsylvania Supreme Court Thursday ordered a Commonwealth Court judge to hear a gerrymandering lawsuit by the end of the year.
…The high court’s 4-3 vote overturned a Commonwealth Court decision. In a hearing last month, Commonwealth Court Judge Dan Pelligrini said he did not see the case being decided before the 2018 elections, saying, “I can tell you it isn’t going to happen.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Should Alabama Republican Party Get to Replace Roy Moore on Senate Ballot If He Withdraws?<http://electionlawblog.org/?p=95923>
Posted on November 9, 2017 10:39 am<http://electionlawblog.org/?p=95923> by Rick Hasen<http://electionlawblog.org/?author=3>
With allegations<https://www.washingtonpost.com/investigations/woman-says-roy-moore-initiated-sexual-encounter-when-she-was-14-he-was-32/2017/11/09/1f495878-c293-11e7-afe9-4f60b5a6c4a0_story.html?hpid=hp_hp-top-table-main_moore-art-1pm%3Ahomepage%2Fstory&utm_term=.ea5c1da1a638> that Republican candidate for Senate in Alabama Roy Moore initiated sexual contact with a 14-year-old when he was 32, there is already talk about him withdrawing from the race. Derek Muller reports<https://twitter.com/derektmuller/status/928687268663095296> that Alabama law would not allow a replacement this late. But should courts allow it anyway?
I wrote in a Stanford Law Review article, The Democracy Canon<http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/03/Hasen.pdf>, about a similar situation which occurred when a candidate (Torricelli) withdrew from Senate in New Jersey after the deadline, and the New Jersey Supreme Court allowed a replacement (Lautenberg) to appear on the ballot anyway. Lautenberg went on to win. The opinion was controversial, and in my article I defend it as giving voters a real choice in an election when the statute did not absolutely forbid the replacement (applying what I call “The Democracy Canon”).  I’d say the same principle should apply here, if there is a permissible construction of the statute.  Here’s what I wrote defending the NJ Supreme Court:
The New Jersey Supreme Court held that even though the vacancy occurred fewer than fifty-one days before the election, and the Democratic Party’s selection of a replacement was to be made fewer than forty-eight days before the election, the Democrats could still name a replacement. The decision was unanimous among the seven justices, which included four Democrats, two Republicans, and an independent.
The Samson court relied heavily on the Democracy Canon in reaching its ruling, and especially on a string of earlier New Jersey cases which had extended filing and other election law deadlines under the authority of the Canon. Especially important was the court’s earlier decision in Catania v. Haberle, in which the court extended a statutory deadline for filling a vacancy on the ballot in a special election:
Concerns have been expressed that by giving this deadline provision a directory, rather than mandatory, construction we will create doubts about many other sections of the election law, a law that is driven by deadlines. Our only response is that this Court has traditionally given a liberal interpretation to that law, “liberal” in the sense of construing it to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day. Obviously, there will be cases in which provisions must be interpreted strictly, mandatorily, for in some cases it will be apparent that that interpretation serves important state interests, including orderly electoral processes. But those cases must be decided on their own facts, under the law involved. This Court has never announced that time limitations in election statutes should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature’s intent. There are states that have such rules, but New Jersey is not one of them….
The main criticism of the New Jersey Supreme Court was that its decision went against the apparently clear words of the statute. New Jersey Republican Party Chairman Joseph M. Kyrillos called the ruling that a change could be made fewer than forty-eight days before the election “absurd.” U.S. Senator Bill Frist, then chairman of the Senate G.O.P. campaign committee, called the argument to extend the time “a desperate grasp at getting around the law.”
But did the New Jersey Supreme Court in Samson really “bend the rules” to achieve the “desirable goal” to “permit candidates from each of the major parties to appear on the ballot in a Senate election”? Did it employ a “legal fiction” in stating that the statute was silent on the question of filling vacancies in fewer than forty-eight days?
No. The court was surely right that the statute did not expressly bar a party from choosing a replacement candidate fewer than forty-eight days before the election. Indeed, Bill Baroni, one of Forrester’s lawyers, conceded in a law journal article written after the case ended that “[t]he statute is silent as to what would happen after the forty-eighth day.” To reach the conclusion that the statute barred a party from filling a vacancy in a time shorter than forty-eight days before the election, one had to (at least implicitly) apply the expressio unius linguistic canon of construction: the inclusion of one thing (the right to fill vacancies at least forty-eight days before the election) indicated the exclusion of the other (no right to fill vacancies in forty-eight days or fewer). As Justice Scalia put it in talking about the expressio unius canon generally: “What [the expressio unius canon] means is this: If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay. The inclusion of the one class is an implicit exclusion of the other.
I concede that reading the New Jersey statute in light of the expressio unius canon alone leads to the conclusion that replacements are not allowed fewer than forty-eight days before the election. Indeed, this is the most natural reading of the statute purely as a linguistic matter. But as Professor Mullins has remarked, the reality of language in context is often more complex than “a simple matter of twelve-year-olds.” I
in the context of New Jersey statutory interpretation of election laws, the Samson interpretation followed the rules rather than bent them. The New Jersey Supreme Court, which had consistently used the Democracy Canon to extend deadlines for the benefit of voters, had long ago created a de facto clear statement rule when it came to statutory deadlines. The court essentially said that if the New Jersey legislature wanted a stricter statute, it needed to use unmistakably clear language like Colorado. As the Samson court observed: Our cases repeatedly have construed the election laws liberally, consonant with their purpose and with practical considerations related to process. We are aware of only one instance in which the Legislature amended an election provision to prevent the filling of a vacancy, effectively overriding the decision of this Court . . . .Indeed, despite criticism of the Samson opinion, the New Jersey Legislature has not amended its vacancy statute to impose clearer language.
I’d have to look more closely at the words of the statute in Alabama to see if it is possible to bend them to allow this. But why shouldn’t voters have a choice between two actual candidates if Moore withdraws?
UPDATE: The other issue are the overseas and military voters, who have already received ballots under UOCAVA.  I would think that if these voters cannot get replacement ballots it may be too late to allow a Moore replacement.
SECOND UPDATE: Much more from Derek <http://excessofdemocracy.com/blog/2017/11/sorting-out-the-alabama-senate-election-possibilities-in-light-of-roy-moore> on write-ins and other complications.
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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

Blockbuster from Gizmodo on Crosscheck: “Even a Novice Hacker Could Breach the Network Hosting Kris Kobach’s Bogus Voter Fraud Program”<http://electionlawblog.org/?p=95921>
Posted on November 9, 2017 10:05 am<http://electionlawblog.org/?p=95921> by Rick Hasen<http://electionlawblog.org/?author=3>
Big from Gizmodo<https://gizmodo.com/even-a-novice-hacker-could-breach-the-network-hosting-k-1820263699> on Crosscheck:
A program overseen by the head of President Trump’s so-called “election integrity” commission—which is now largely a tool for driving conspiracy theories<https://gizmodo.com/trumps-absurd-fake-voter-commission-advances-after-vic-1797210994> about “massive voter fraud” in the United States—is placing the personal data of millions of American voters at risk, according to internal records and security experts who examined the program at Gizmodo’s request….
Gizmodo has learned, however, that the records passing through the Crosscheck system have been stored on a server in Arkansas operating on a network rife with security flaws. What’s more, multiple sets of login credentials, which could be used by virtually anyone to directly access the Crosscheck system—as well the encrypted voter data it contains—have been compromised.
Our investigation into the program builds on the work of ProPublica, which last month published<https://www.propublica.org/article/crosscheck-the-voter-fraud-commission-wants-your-data-keep-it-safe> a report describing multiple security flaws plaguing Crosscheck’s operations. Documents obtained under state transparency laws by the anti-Trump group Indivisible Chicago revealed that Crosscheck had emailed Illinois election officials both the username and password to the program’s FTP server—credentials that Illinois neglected to redact before releasing the emails publicly.
The emails further revealed that participating states had submitted millions of voter files to the Arkansas server using an unencrypted transfer protocol. Gizmodo has learned that while some of the data sets were encrypted prior to being transferred, the passwords to decrypt three year’s worth of the voter files belonging to every state participating in Crosscheck have likewise been exposed.
The internet address of the Crosscheck server was redacted in the Illinois records exposing the program’s login credentials. It was not redacted, however, in the emails of Idaho election officials released to Indivisible Chicago this month. On Monday, Gizmodo provided the server’s publicly available location to multiple security firms and requested an analysis of its vulnerabilities.
The results are troubling, to say the least. They not only confirm the findings contained in ProPublica’s report, but further reveal an alarming array of previously unreported weaknesses in the network hosting the Crosscheck server….
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

J. Christian Adams, Members of Pence-Kobach Fraudulent Fraud Squad, Suggests von Spakovsky Was Right to Suggest Keeping Democrats Off Commission<http://electionlawblog.org/?p=95917>
Posted on November 9, 2017 8:50 am<http://electionlawblog.org/?p=95917> by Rick Hasen<http://electionlawblog.org/?author=3>
Hans von Spakovsky, in a released email a while back<http://www.campaignlegalcenter.org/news/press-releases/foia-response-reveals-true-partisan-intent-pence-kobach-commission>, suggested that Pence-Kobach should keep all Democrats off the sham voting commission.
Now, in light of news <http://electionlawblog.org/?p=95905> that Maine SOS Matt Dunlap, one of the few Democratic members of the Commission, has sued the Commission, von Spakovsky’s frequent ally (and fellow commission member J. Christian Adams, just tweeted this:<https://twitter.com/ElectionLawCtr/status/928652951614382080>
[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-11-09-at-8.44.03-AM-300x247.png]
Jessica Huseman asks<https://twitter.com/JessicaHuseman/status/928660119348531206>: “Are you referencing his email saying Democrats shouldn’t be allowed on the commission?”  Think the answer is clearly yes.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“How states can fix the Electoral College and prevent future Trumps”<http://electionlawblog.org/?p=95915>
Posted on November 9, 2017 7:47 am<http://electionlawblog.org/?p=95915> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley<https://www.usatoday.com/story/opinion/2017/11/09/fix-electoral-college-prevent-future-trumps-adopt-runoff-voting-edward-foley-column/839492001/> for USA Today:
This point is different from the one about Hillary Clinton winning almost 3 million<https://www.nytimes.com/elections/results/president> more votes nationally than Trump. That much-mentioned truth is irrelevant to how the Electoral College is supposed to work. It would matter if there were any realistic chance of replacing the Electoral College with something different, but there isn’t. And meanwhile, it blinds us to the problem that in 2016, the Electoral College did not function properly even according to its own logic. As long as we are stuck with the Electoral College, we should make it operate as intended.
This requires fixing the state laws that implement the Electoral College system. The good news is that each state already has the constitutional power to repair its own laws, without the need for three-quarters of the states agreeing<https://www.billofrightsinstitute.org/founding-documents/additional-amendments/> to a constitutional amendment or some sort of multi-state compact<http://www.nationalpopularvote.com/written-explanation> that would not take effect until enough states sign on. If just a couple of states had adopted the necessary fix before last year, Clinton might be president now. To understand why, let’s review what went wrong, why it’s inconsistent with the Electoral College’s original intent, and how states already are empowered to remedy the defect.
Trump was able to win these states without a majority because there were more than two candidates on the ballot. Without Jill Stein and Gary Johnson in the mix, Clinton might have received more votes than Trump in some of these six states. If she had done so in just Florida and either Pennsylvania, Michigan, or North Carolina, that would have been enough for her to win the White House.
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Posted in electoral college<http://electionlawblog.org/?cat=44>

NM: “Judge: State workers can take paid leave to vote in most elections”<http://electionlawblog.org/?p=95912>
Posted on November 9, 2017 7:31 am<http://electionlawblog.org/?p=95912> by Rick Hasen<http://electionlawblog.org/?author=3>
The New Mexican reports.<http://www.santafenewmexican.com/news/local_news/judge-state-workers-can-take-paid-leave-to-vote-in/article_6f7b5902-bd30-51cd-aab6-5a8e06ef652c.html>

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Posted in voting<http://electionlawblog.org/?cat=31>

LDF Files Response to Alabama’s Motion for Summary Judgment in Alabama Photo Voter ID Law Case<http://electionlawblog.org/?p=95910>
Posted on November 9, 2017 7:23 am<http://electionlawblog.org/?p=95910> by Rick Hasen<http://electionlawblog.org/?author=3>
Here.<http://www.naacpldf.org/press-release/ldf-files-response-alabama%E2%80%99s-motion-summary-judgment-alabama-photo-voter-id-law-case>

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Breaking: Maine SOS Dunlap, Democratic Member of Pence-Kobach Voter Fraud Commission, Sues Commission in Federal Court<http://electionlawblog.org/?p=95905>
Posted on November 9, 2017 7:01 am<http://electionlawblog.org/?p=95905> by Rick Hasen<http://electionlawblog.org/?author=3>
Add to the many lawsuits against the sham voting commission this new complaint<http://electionlawblog.org/wp-content/uploads/dunlap-complaint.pdf> filed by one of its own members, Maine, Secretary of State Matt Dunlap.
The law and good conscience require Secretary Dunlap to participate meaningfully in the work of the Commission; however, despite diligent efforts to gain access, Secretary Dunlap has been, and continues to be, blocked from receiving Commission documents necessary to carry out his responsibilities. Secretary Dunlap reluctantly undertakes this action in good faith to proactively pursue his rights and obligations in court, in an endeavor to ensure that he can fulfill his responsibilities as a Commissioner and in hopes that the Commission can salvage a process that, at present, risks becoming exactly the kind of one-sided, partisan undertaking the Federal Advisory Committee Act was designed to prohibit.
I’ve been critical<http://www.pressherald.com/2017/05/24/commentary-dunlap-badly-mistaken-in-agreeing-to-serve-on-trump-voter-fraud-panel/> of Secretary Dunlap being on the commission.  It does not deserve any legitimacy. But given that he’s on the commission, I’m very happy to see him calling this out.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95905&title=Breaking%3A%20Maine%20SOS%20Dunlap%2C%20Democratic%20Member%20of%20Pence-Kobach%20Voter%20Fraud%20Commission%2C%20Sues%20Commission%20in%20Federal%20Court>
Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, 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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