[EL] ELB News and Commentary 11/13/17

Mon Nov 13 07:59:02 PST 2017

“Trump raised more dollars from small donations”<http://electionlawblog.org/?p=95978>
Posted on November 13, 2017 7:40 am<http://electionlawblog.org/?p=95978> by Rick Hasen<http://electionlawblog.org/?author=3>

Politifact analysis.<http://www.politifact.com/truth-o-meter/statements/2017/nov/13/kayleigh-mcenany/trump-raised-more-dollars-small-donations/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Bloomberg Law Brief: Trump Election Panel Sued (Audio)”<http://electionlawblog.org/?p=95976>
Posted on November 13, 2017 7:38 am<http://electionlawblog.org/?p=95976> by Rick Hasen<http://electionlawblog.org/?author=3>

Charles Stewart and I on Bloomberg Law<https://www.bloomberg.com/news/audio/2017-11-13/bloomberg-law-brief-trump-election-panel-sued-audio>.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Cuomo, a Master of the $50,000 Fund-Raiser, Bypasses Small Donors”<http://electionlawblog.org/?p=95974>
Posted on November 13, 2017 7:33 am<http://electionlawblog.org/?p=95974> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2017/11/13/nyregion/cuomo-a-master-of-the-50000-fund-raiser-bypasses-small-donors.html?_r=0>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Despite Recent Wins for Democrats, Gerrymanders Dim Hopes for 2018”<http://electionlawblog.org/?p=95972>
Posted on November 13, 2017 7:26 am<http://electionlawblog.org/?p=95972> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/11/12/us/politics/voting-gerrymander-virginia.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront&_r=1>

For Democrats, signs everywhere suddenly look rosy.

They won smashing victories last week in Virginia<https://www.nytimes.com/elections/results/virginia-governor-election-gillespie-northam> and other states. With voters giving the Trump presidency and the Republican-led Congress dismal grades, and the Democratic grass roots re-energized, hope is widespread for a takeover of the House of Representatives and a strong run in the Senate in the 2018 midterm elections.

But for all the optimism, the elections in Virginia last week vividly reflected why the reality might be a good deal harsher<https://www.nytimes.com/2017/11/08/upshot/the-other-virginia-elections-and-what-they-mean-for-2018.html>. While Democrats won the governorship by nearly nine percentage points and won a similar margin in total votes in legislative races, it appears likely, unless recounts reverse seats, that they will fall just short of taking control of the state’s heavily gerrymandered House of Delegates.

And around the country, gerrymandering<https://www.nytimes.com/2017/10/01/us/wisconsin-supreme-court-gerrymander.html>, refined to a high art, and increasingly restrictive voting laws have left many experts wary of assuming that the intensity of Democratic voters will translate into equally robust electoral gains.

For some, the lesson of Virginia is that grass-roots organizing and voters eager to turn out can pull off big wins in unlikely places. But for others, the gap between votes and legislative seats is a cautionary reminder that Democrats face daunting structural obstacles in turning around Republican majorities in Congress and in state legislatures.

“If Democrats win 52, 53, 54 percent of the national House vote, we’re likely to see Republicans hold onto control,” Nicholas Stephanopoulos, a University of Chicago law professor and an expert on gerrymanders, said in an interview. “Unless there’s a true wave, I think Democrats will be disappointed in 2018.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“The Burdens of Gerrymandering Are Borne by Communities of Color”<http://electionlawblog.org/?p=95970>
Posted on November 13, 2017 7:23 am<http://electionlawblog.org/?p=95970> by Rick Hasen<http://electionlawblog.org/?author=3>

Rep. Gwen Moor<https://www.nbcnews.com/think/opinion/burdens-gerrymandering-are-borne-communities-color-ncna817446>e for NBC Think.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“A Year After Trump’s Victory, Our Elections Aren’t Much More Secure”<http://electionlawblog.org/?p=95968>
Posted on November 13, 2017 7:19 am<http://electionlawblog.org/?p=95968> by Rick Hasen<http://electionlawblog.org/?author=3>

BuzzFeed reports.<https://www.buzzfeed.com/kevincollier/the-democrats-did-well-on-tuesday-but-that-doesnt-mean-our?utm_term=.tqkjqMbjVY#.wq4DLmJDB7>
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Posted in election administration<http://electionlawblog.org/?cat=18>

Supreme Court Agrees to Hear Case Involving Minnesota’s Ban on All Political Apparel in the Polling Place<http://electionlawblog.org/?p=95966>
Posted on November 13, 2017 7:08 am<http://electionlawblog.org/?p=95966> by Rick Hasen<http://electionlawblog.org/?author=3>

The case is Minnesota Voters Alliance v. Mansky<http://www.scotusblog.com/case-files/cases/minnesota-voters-alliance-v-mansky/>, Here’s the question presented from the cert. petition:<http://www.scotusblog.com/wp-content/uploads/2017/06/16-1435-petition.pdf>

Minnesota election law forbids voters from wearing political badges, political buttons, or other political insignia at the polling place. See Minn. Stat. § 211B.11. The ban broadly prohibits any material “designed to influence and impact voting,” or “promoting a group with recognizable political views,” even when the apparel makes no reference to any issue or candidate on the ballot. The Eighth Circuit, aligned with the Fifth and D.C. Circuits, invoked Burson v. Freeman, 504 U.S. 191 (1992), to hold that a state can impose a “speechfree zone” without infringing on the Free Speech Clause of the First Amendment. There is deep tension between those decisions and the reasoning in decisions of the Fourth and Seventh Circuits, which hold that the First Amendment does not allow a state to prohibit all political speech.

The question presented is: Is Minnesota Statute Section 211B.11, which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?

This is the kind of knotty First Amendment question that the Court has shown an interest in taking in recent years, and the result of the case could be relevant not only to speech at polling places, but also to the line between election advocacy and issue advocacy which affects the scope of campaign finance laws.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>

What Are the Public Interests in Not Cancelling or Postponing an Election?<http://electionlawblog.org/?p=95963>
Posted on November 11, 2017 2:11 pm<http://electionlawblog.org/?p=95963> by Rick Hasen<http://electionlawblog.org/?author=3>

As I noted in this earlier post<http://electionlawblog.org/?p=95953> on Alabama, it raises constitutional concerns to cancel or postpone an election, unless the reason to do so is to deal with a potential constitutional violation of holding the election as scheduled.

I was an amicus<http://news.findlaw.com/hdocs/docs/elections/svrepvshlly82703amirh.pdf> in a 2003 case involving the ACLU’s attempt to postpone the California recall election until the state could come up with something more reliable than punch cards to count voters’ votes. Those machines were really troublesome, and in the end about 9 percent of Los Angeles County voters cast a ballot in that election without a valid vote recorded on the recall question.

In the course of the en banc Ninth Circuit rejecting the ACLU’s argument for a delay until the machines could be replaced, the Court explained<http://caselaw.findlaw.com/us-9th-circuit/1370510.html> why it was not an abuse of discretion for the trial court not to delay the election. Among the issues the court considered were the public reliance interests in not having a delay:

f the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date.   Time and money have been spent to prepare voter information pamphlets and sample ballots, mail absentee ballots, and hire and train poll workers.   Public officials have been forced to divert their attention from their official duties in order to campaign.   Candidates have crafted their message to the voters in light of the originally-announced schedule and calibrated their message to the political and social environment of the time.   They have raised funds under current campaign contribution laws and expended them in reliance on the election’s taking place on October 7. Potential voters have given their attention to the candidates’ messages and prepared themselves to vote.   Hundreds of thousands of absentee voters have already cast their votes in similar reliance upon the election going forward on the timetable announced by the state.   These investments of time, money, and the exercise of citizenship rights cannot be returned.   If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again.   In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun.

A somewhat different context, but it does point out what’s at stake when an election is cancelled or postponed.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Some Authority That Cancelling Senate Election in Alabama, as Hugh Hewitt Suggests, Would Violate the 17th Amendment<http://electionlawblog.org/?p=95961>
Posted on November 11, 2017 1:57 pm<http://electionlawblog.org/?p=95961> by Rick Hasen<http://electionlawblog.org/?author=3>

A smart reader emails:

I just read your piece responding to Hugh Hewitt, and I had been looking at the question a little since he posted his (really bad) idea.
Valenti v. Rockefeller 292 F. Supp. 851<https://scholar.google.com/scholar_case?case=7864804679016411244&hl=en&as_sdt=6&as_vis=1&oi=scholarr> (1968) offers substantial support for the idea that cancelling (or never authorizing to begin with) a special election would violate the 17th amendment.  In that case, a suit was brought seeking to speed up New York’s special election to replace Robert F. Kennedy after his assassination.

This didn’t involve a retroactive change in New York law, but it happened that RFK’s assassination produced about the longest possible appointment scenario under New York law, since it was just after the cutoff where the special election would be in November 1968, and instead NY law would push it to the next even year election in November 1970.  The suit was brought to require New York under the 17th amendment’s vacancies clause to move the election forward.

The court rejected the plaintiff’s claim, but did state an important limiting principle which is relevant to Hewitt’s plan:

[W]e do agree with plaintiffs that the Amendment’s drafters did intend to place some limit on the discretion of the states concerning the timing of vacancy elections by specifying that a Governor may make only a “temporary” appointment until an election is held. We would have difficulty, for example, squaring the word “temporary” with a statute providing that the Governor’s appointee is to serve out the remainder of a term regardless of its length. The question before this court is whether § 296 exceeds the limits of the discretion conferred upon the states by the Amendment.

So while perhaps before the writ was promulgated, Gov Ivey could have delayed it until, say, November 2018 without any constitutional issue, it seems clear enough that under the reasoning in Valenti, a full cancellation would drive right over the limiting principle around “temporary” appointments under the 17th amendment.  Valenti was per curiam summarily affirmed by the Supreme Court at 393 U.S. 405 (1969) “The motion to affirm is granted and the judgment is affirmed.”  (It was a 3 judge district court so no 2nd circuit action)

UPDATE:  Garrett Epps also points me a very important 7th Circuit case making this claim, Judge v. Quinn.<http://caselaw.findlaw.com/us-7th-circuit/1530437.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

No, the Alabama Legislature Should Not Be Able to Constitutionally Cancel the Special Senate Election to Avoid a Democratic Win<http://electionlawblog.org/?p=95953>
Posted on November 11, 2017 12:12 pm<http://electionlawblog.org/?p=95953> by Rick Hasen<http://electionlawblog.org/?author=3>

Seems odd that I have to even write this, but over on Twitter, Hugh Hewitt makes a pitch<https://twitter.com/hughhewitt/status/929415700896198657> for Alabama to cancel the special election and allow Sen. Strange to complete the term:
<https://twitter.com/hughhewitt/status/929415700896198657>

[https://pbs.twimg.com/profile_images/882932371451858945/kIxg7PYO_normal.jpg]Hugh Hewitt <https://twitter.com/hughhewitt>
✔@hughhewitt<https://twitter.com/hughhewitt>

If @GovKayIvey<https://twitter.com/GovKayIvey> and legislature agreed to cancel special election and provide that appointed senator serves until end of term, tough to see how federal ct overturns law when the Moore/Jones objections arrive.
10:29 AM - Nov 11, 2017<https://twitter.com/hughhewitt/status/929415700896198657>
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(He writes: “If @GovKayIvey<https://twitter.com/GovKayIvey> and legislature agreed to cancel special election and provide that appointed senator serves until end of term, tough to see how federal ct overturns law when the Moore/Jones objections arrive.”)

I responded that I doubted that a court would agree it is constitutional to cancel the election, and Hugh asked for authority in which a court has ordered an election to be conducted that a state legislature has cancelled.

I cannot find any direct historical comparisons; that is I cannot find any time where a legislature sought to cancel a special election and keep the temporary appointee in the seat until the next scheduled election. Probably because doing so is inherently undemocratic.  Indeed, here’s some historical precedent:

[http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-11-11-at-11.37.32-AM.png]<http://electionlawblog.org/wp-content/uploads/Screen-Shot-2017-11-11-at-11.37.32-AM.png>It seems to me that cancelling an election already in progress (military and overseas voters are already voting under UOCAVA) would raise serious equal protection/due process problem.  It also seems that Roe v. Alabama <https://openjurist.org/43/f3d/574/roe-v-state> (which I write about in the Democracy Canon<http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/03/Hasen.pdf> beginning at page 121) says that states cannot change election procedures already in progress (except to cure a constitutional violation).

It would set a terrible precedent to cancel an election because the party in power expects to lose.

In the special context of the 17th amendment, it provides that for special election to fill Senate vacancies, “That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The legislature has already directed how the election should take place, and so unless one adopts the argument (which was made by some during Bush v. Gore) that the state legislature has the plenary power to change the rules in the middle of an election/recount, the legislature has already directed how the election should take place.

There is also an argumen<http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1051&context=nulr>t that the 17th Amendment REQUIRES replacement elections. It cannot simply be cancelled with a temporary placeholder serving the remaining term.

While I don’t believe it would be constitutional to cancel this election in progress, I have written<http://electionlawblog.org/?p=95923> (much to the dismay of some of my friends who are Democrats) that if Moore withdraws, Republicans should be able to replace him on the ballot if there is a way to do so without disenfranchising military voters.  Voters should have a real choice in the election.

All of this appears to be merely an academic discussion right now.  Moore says he’s not withdrawing, the Alabama’s governor says she won’t cancel or reschedule the election.

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

“Trump Says Putin ‘Means It’ About Not Meddling in U.S. Elections”<http://electionlawblog.org/?p=95951>
Posted on November 11, 2017 10:56 am<http://electionlawblog.org/?p=95951> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/11/11/world/asia/trump-putin-election.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0>

President Trump said on Saturday that he believed President Vladimir V. Putin was sincere in his denials of interference in the 2016 presidential elections, calling questions about Moscow’s meddling a politically motivated “hit job” that was hindering cooperation with Russia on life-or-death issues.

Speaking after meeting privately with Mr. Putin on the sideline of the Asia Pacific Economic Cooperation summit meeting in Danang, Vietnam, Mr. Trump said that he had again asked whether Russia had meddled in the contest, but that the continued focus on the issue was insulting to Mr. Putin.

Mr. Trump said it was time to move past the issue so that the United States and Russia could cooperate on confronting the nuclear threat from North Korea, solving the Syrian civil war and working together on Ukraine.

“He said he didn’t meddle — I asked him again,” Mr. Trump told reporters<https://www.nytimes.com/2017/11/11/us/politics/full-transcript-of-trumps-remarks-on-russia.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>traveling with him aboard Air Force One as he flew to Hanoi for more meetings. “You can only ask so many times. I just asked him again. He said he absolutely did not meddle in our election. He did not do what they are saying he did.”…

Mr. Trump heaped disdain on the former leaders of three American intelligence agencies — John O. Brennan, the former C.I.A. director; James R. Clapper Jr., the former director of national intelligence; and James B. Comey, the F.B.I. director he fired this year — appearing to suggest that they were less trustworthy than Mr. Putin.

“I mean, give me a break — they’re political hacks,” Mr. Trump said. “You have Brennan, you have Clapper, and you have Comey. Comey’s proven now to be a liar, and he’s proven to be a leaker, so you look at that. And you have President Putin very strongly, vehemently says he had nothing to do with that.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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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