[EL] ELB News and Commentary 11/27/17

Mon Nov 27 07:22:15 PST 2017

“Blowing Up Democracy and Charities in One Fell Swoop”<http://electionlawblog.org/?p=96130>
Posted on November 27, 2017 7:06 am<http://electionlawblog.org/?p=96130> by Rick Hasen<http://electionlawblog.org/?author=3>
Eliza Newlin Carney:<http://prospect.org/article/blowing-democracy-and-charities-one-fell-swoop>
By essentially repealing the so-called Johnson Amendment, a tax provision that bars charities from engaging in partisan politics, the House legislation frees up big donors to funnel even more unlimited, undisclosed money into campaigns, and, for the first time, to deduct that money from their taxes. The bill also threatens the credibility and viability of charitable groups, and would drastically reduce charitable giving—even as it robs education, housing, and health-care assistance from working families who invariably will turn to charities for help.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

The Measure of a Metric, Part I<http://electionlawblog.org/?p=96127>
Posted on November 26, 2017 8:31 pm<http://electionlawblog.org/?p=96127> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
Eric McGhee and I just posted a new article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3077766>, The Measure of a Metric, that discusses the measurement of partisan gerrymandering and that’s forthcoming in the Stanford Law Review. In this post and a couple more, I thought I’d highlight the paper’s main contributions.
One of them is to identify a series of criteria that can be used to evaluate gerrymandering metrics. For decades, there was no need for such formal assessment, because social scientists mostly used a single measure (partisan bias). Over the last few years, though, gerrymandering metrics have proliferated, and now include the efficiency gap, the mean-median difference, the difference between the parties’ average margins of victory, the declination, and others. So it’s important today, in a way it wasn’t previously, to think rigorously about what we want and don’t want from a measure.
One thing we want, in our view, is consistency with the following principle: If a party wins more seatswhile receiving the same votes, a metric should indicate a larger advantage for this party. This principle stems from what we see as the defining characteristic of partisan gerrymandering: manipulating the relationship between votes and seats so that a party is able to translate its popular support into legislative representation more effectively. Whatever else a measure does, it should capture this conceptual core.
Our second criterion is distinctness from other electoral values. Redistricting implicates not just partisan fairness but also electoral competitiveness, minority representation, population equality, and several other concerns. But it’s only partisan fairness that’s at the heart of partisan (as opposed to bipartisan or racial) gerrymandering. So it’s only partisan fairness that should be revealed by a metric.
Third, we think a measure should be broad in its scope. In other words, it should be usable whether a state is red, blue, or purple; whether turnout is roughly equal or varies sharply from district to district; and whether two or more than two parties are competing for office. Gerrymandering is possible in all of these electoral environments, so a metric should not be foiled by any of them.
Our fourth and final criterion is consistency with American electoral history. Every measure implies a certain ideal: a perfect score (usually zero) indicating that neither party benefits from, or is disadvantaged by, a district map. This ideal, in our opinion, should be one that plans have actually achieved with some regularity in previous elections. Otherwise a metric would suggest that most prior maps were gerrymanders—and its adoption would be so disruptive as to be infeasible.
That’s it for today; in the next couple days I’ll address how various measures perform under these criteria.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“In Tax Debate, Gift to Religious Right Could Be Bargaining Chip”<http://electionlawblog.org/?p=96124>
Posted on November 26, 2017 6:32 pm<http://electionlawblog.org/?p=96124> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/11/26/us/politics/johnson-amendment-churches-taxes-politics.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>
Among the changes in the tax bill that passed the House<https://www.nytimes.com/2017/11/16/us/politics/house-tax-overhaul-bill.html> this month is a provision to roll back the 1954 ban, a move that is championed by the religious right, but opposed by thousands of religious and nonprofit leaders, who warn that it could blur the line between charity and politics.
The change could turn churches into a well-funded political force, with donors diverting as much as $1.7 billion each year from traditional political committees to churches and other nonprofit groups that could legally engage in partisan politics for the first time, according to an estimate by the nonpartisan congressional Joint Committee on Taxation.
The Senate will begin voting as early as Wednesday on its own version of the sweeping tax rewrite, which the leaves the ban untouched, and differs in other key ways<https://www.nytimes.com/2017/11/09/us/politics/facing-math-trouble-house-panel-races-to-adjust-tax-bill.html> from the House version. The Senate bill has yet to garner enough support from Republicans to pass along party lines, with Republican senators raising concerns about the bill’s cost and approach, including how small businesses are treated<https://www.nytimes.com/2017/11/18/us/politics/ron-johnson-senate-tax-cut.html> and the elimination of the Affordable Care Act requirement<https://www.nytimes.com/2017/09/18/us/politics/obamacare-repeal-vote.html> that most Americans have health insurance or pay a penalty….
Critics warn that the change could dramatically increase untraceable political spending and lead to the creation of “sham churches<https://www.councilofnonprofits.org/article/house-tax-bill-gives-political-churches-multi-billion-dollar-payoff>” to take advantage of the new avenue for political spending, which — unlike donations to candidates, “super PACs” and party committees — would allow donors to deduct contributions.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

Newer Republican Plan to Deal with Roy Moore Has a Better Shot at Constitutionality Than Last Proposal<http://electionlawblog.org/?p=96122>
Posted on November 26, 2017 4:04 pm<http://electionlawblog.org/?p=96122> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ve written<http://electionlawblog.org/?p=96022> about the likely unconstitutionality of a plan which would have temporary Senator Luther Strange resign from his seat, and have the Alabama governor call a new election. This seems pretty clearly to violate the 17th Amendment.
But buried in this NYT story <https://www.nytimes.com/2017/11/25/us/politics/trump-roy-moore-mcconnell-alabama-senate.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=stream&module=stream_unit&version=latest&contentPlacement=9&pgtype=sectionfront> on Trump standing by Roy Moore is a somewhat different plan:
Mr. McConnell even enlisted Washington campaign lawyers with experience in Alabama elections to devise a four-page memo outlining a legal avenue to block Mr. Moore’s path, but the White House counsel’s office ignored the document entirely. …
The campaign lawyers commissioned by the Senate leader last week sent a memo to the White House counsel, Donald F. McGahn II, arguing that, based on Alabama precedent, if Mr. Strange were to resign, Ms. Ivey could appoint a new senator. They also made the case that Ms. Ivey was within her rights to delay the special election.
“Our recommendation is to combine Steps 1 and 2: Strange resigns; the governor fills the vacancy with a new appointee; and the governor delays the special election to give the new appointee time to run as an independent candidate,” the lawyers wrote.
As I understand it, this would not be calling a new election, meaning that the Democratic and Republican nominees would stay in place. It would instead delay the election and give the newly appointed temporary Senator a chance to run a write-in campaign.
Now I am not certain if delaying an election already in progress (military and other absentee voters have already voted) solely for political reasons would be permissible under Alabama law and constitutional (under the Equal Protection and Due Process clauses). But it seems less of a constitutional affront than the original idea of a do-over.
The point seems moot.  The election is Dec. 12, and there’s no sign of any of this happening.
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Posted in voting<http://electionlawblog.org/?cat=31>

“FBI gave heads-up to fraction of Russian hackers’ US targets”<http://electionlawblog.org/?p=96120>
Posted on November 26, 2017 3:48 pm<http://electionlawblog.org/?p=96120> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://apnews.com/f1a5570b7ce04d39bab00ae3a9041460/FBI-didn't-tell-US-targets-as-Russian-hackers-hunted-emails>
The FBI failed to notify scores of U.S. officials that Russian hackers were trying to break into their personal Gmail accounts despite having evidence for at least a year that the targets were in the Kremlin’s crosshairs, The Associated Press has found.
Nearly 80 interviews with Americans targeted by Fancy Bear, a Russian government-aligned cyberespionage group, turned up only two cases in which the FBI had provided a heads-up. Even senior policymakers discovered they were targets only when the AP told them, a situation some described as bizarre and dispiriting.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“New York Hasidim challenge Constitution in bid to forge the first ultra-Orthodox town in America”<http://electionlawblog.org/?p=96118>
Posted on November 26, 2017 3:43 pm<http://electionlawblog.org/?p=96118> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg/Haaretz:<https://www.bloomberglaw.com/product/blaw/exp_blp/ewogICAgImN0eHQiOiAiRE9DIiwKICAgICJpZCI6ICJPWlRaR0JCVThKUkY/cmVzb3VyY2VfaWQ9NGU4ZTJhMzViNjA5OGQxYzdlYzNmZTAzNjZmYzhiNGEiLAogICAgInNpZyI6ICI2RUNGeXE3aFlMR0RBanNSR2VsYm8yK1wvSzk0PSIsCiAgICAidGltZSI6ICIxNTExNzMzNjI0IiwKICAgICJ1dWlkIjogImRYTGtTa0Fzb291TUhzTkRVS0hPeWc9PWpGenF0c0VoVVNEWno4d2JMS3V0YkE9PSIsCiAgICAidiI6ICIxIgp9Cg==?emc=BLAW%3A153764505%3A0>
Palm Tree may sound like a good moniker for a topical vacation resort, but it’s actually the name of the first new town being established in New York State in 35 years. The community is earmarked only for Satmar Hasidim – a move critics say will be closely scrutinized for possible breaching of the U.S. Constitution’s separation of church and state.
And that legal scrutiny might happen even though both sides of the issue, the Satmar Hasidim and other area residents, are delighted with the Hasidim’s secession – the latter because they want to keep their town semirural and are tired of voters turning down tax increases that would fund public schools and other local services, like a library.
After decades of legal fights between the Town of Monroe and other parties against Kiryas Joel, the Satmar village that is part of Monroe, both sides claimed victory after a November 7 referendum in which Monroe residents voted overwhelmingly to create the new town.
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Posted in voting<http://electionlawblog.org/?cat=31>

“Older Voters Stymied by Tighter ID Requirements”<http://electionlawblog.org/?p=96116>
Posted on November 26, 2017 3:38 pm<http://electionlawblog.org/?p=96116> by Rick Hasen<http://electionlawblog.org/?author=3>
Paula Span<https://www.nytimes.com/2017/11/24/health/voting-eligibility-elderly.html> NYT column:
Physical barriers at polling places, a longtime obstacle for the elderly and disabled citizens of any age, can prevent older voters’ participation. Voting machines may not accommodate people who use wheelchairs or are visually impaired.
The Government Accountability Office last month reported the results of a survey of 178 polling places used in 2016. Accessibility had improved since 2000, the G.A.O. concluded, but the great majority still had impediments <http://www.gao.gov/products/GAO-18-4> outside — like steep ramps or inadequate parking — or inside that could discourage or exclude disabled voters.
Federal law requires accessibility, but “there’s very little enforcement and resources devoted to ensuring that older Americans and others with disabilities can vote,” said Wendy Weiser of the Brennan Center for Justice<https://www.brennancenter.org/>at New York University.
More recently, a wave of onerous state voting requirements has added to the problem, with an outsized effect on older voters, argues a new report<https://www.aging.senate.gov/press-releases/casey-klobuchar-release-report-on-barriers-to-voting-for-older-americans> by Senator Robert Casey, Democrat of Pennsylvania, and Senator Amy Klobuchar, Democrat of Minnesota.
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Posted in voters with disabilities<http://electionlawblog.org/?cat=71>, voting<http://electionlawblog.org/?cat=31>

“Culling Voter Rolls: Battling Over Who Even Gets to Go to the Polls”<http://electionlawblog.org/?p=96114>
Posted on November 26, 2017 3:35 pm<http://electionlawblog.org/?p=96114> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<https://www.nytimes.com/2017/11/25/us/voter-rolls-registration-culling-election.html?_r=0>
Conservative groups and Republican election officials in some states say the poorly maintained rolls invite fraud and meddling by hackers, sap public confidence in elections and make election workers’ jobs harder. Voting rights advocates and most Democratic election officials, in turn, say that the benefits are mostly imaginary, and that the purges are intended to reduce the number of minority, poor and young voters, who are disproportionately Democrats.
“The goal here is not election integrity,” Stuart Naifeh, the senior counsel at the voting rights group Demos<http://www.demos.org/>, said. “It’s intimidation and suppression of voters.”
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

Michael Kang Wins Best Election Law Paper of 2017 from AALS Election Law Section<http://electionlawblog.org/?p=96112>
Posted on November 26, 2017 3:32 pm<http://electionlawblog.org/?p=96112> by Rick Hasen<http://electionlawblog.org/?author=3>
Franita Tolson:
I am happy to inform you that the AALS Section on Election Law has selected Gerrymandering and the Constitutional Norm Against Government Partisanship by Michael Kang (Emory) as the Best Election Law Paper of 2017.  We received a lot of submissions, and the contest demonstrated that the Section has scholars who are brilliant and doing cutting edge work.  The Section would like to thank our very distinguished panel of judges—Ellen Katz, Guy Charles, and Sam Issacharoff—for their hard work in making this selection.  It was a very difficult choice, and Michael should be commended for writing such an amazing piece.
The Section will present Michael with an award at our meeting on Thursday, January 4, 2018 from 10:30-12:15.  We will also be doing a panel on the 25th Anniversary of Shaw v. Reno.  If you will be at AALS this year, I sincerely hope that you can make it!
Michael’s paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019390> is excellent!  Go read it.
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“Civil Rights Groups Launch National Effort to Combat Alarming Voter Purge Attempt”<http://electionlawblog.org/?p=96110>
Posted on November 26, 2017 3:30 pm<http://electionlawblog.org/?p=96110> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.brennancenter.org/press-release/civil-rights-groups-launch-national-effort-combat-alarming-voter-purge-attempt>
Today, leading national civil rights organizations are urging state and county election officials in jurisdictions across the country to reject the Public Interest Legal Foundation’s (PILF) coordinated attempt to launch a wide-scale voter purge effort across the country. Using deceptive tactics promoting voter suppression, and urging actions that could in fact violate the legal requirements of the National Voter Registration Act (NVRA), PILF’s action has created an immediate need for clarification. In response the coalition of organizations, including the Lawyers’ Committee for Civil Rights Under Law, Brennan Center for Justice at NYU School of Law, and Demos, are offering guidance to jurisdictions on how to comply with the NVRA.
The national effort comes in direct response to letters<https://publicinterestlegal.org/files/Sample-2017-notice.pdf> recently sent by PILF to hundreds of local election officials. In them, the group’s suggested actions could violate legal requirements under the NVRA, a law Congress passed to increase voter participation and registration. PILF uses an unreliable and inaccurate assessment of voter registration rates to accuse the jurisdictions it has targeted of having more voters on the rolls than eligible residents. It then falsely claims these high registration rates alone provide strong evidence that a jurisdiction is not fulfilling its obligation to maintain accurate voter registration databases. PILF has threatened litigation if their proposed measures are not taken. PILF’S letter is part of a larger concerted effort to remove voters from registration lists and further its false and baseless claim that there is widespread voter fraud across the country.
The three civil rights organizations sent a letter and accompanying memo<https://lawyerscommittee.org/wp-content/uploads/2017/11/NVRA-List-Maintenance-Memo-11-20-17.pdf> to the jurisdictions targeted by PILF. The groups make it clear the jurisdictions can protect themselves against PILF’s threats and offer to provide assistance in that area. The memo also asserts PILF’s justification for a voter purge, which includes misleading use of U.S. Census Bureau data, is baseless.
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Republicans Are Candid About the True Price of the Tax Bill”<http://electionlawblog.org/?p=96108>
Posted on November 26, 2017 3:26 pm<http://electionlawblog.org/?p=96108> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy<https://www.brennancenter.org/blog/republicans-are-candid-about-true-price-tax-bill>:
Republican contributors were not amused by the Senate’s lack of accomplishment and withheld money for the 2018 campaign. Donations to Senate Republicans went from $7 million in March to only $2 million in July and August, “a poor showing for a majority party with a decided advantage on the midterm map,” wrote The New York Times.<https://www.nytimes.com/2017/09/22/us/politics/republican-donors-obamacare-repeal.html>
Now it’s no surprise the wealthy put money into politics seeking tax benefits for their businesses, themselves and their heirs. But what is different this year is the surprising candor of both donors and recipients – officeholders allegedly representing all of their constituents, rich and poor alike – about the transactional nature<http://www.motherjones.com/politics/2017/11/republicans-say-theyve-got-to-act-on-tax-reform-or-donors-might-get-mad/> of the game. The equation could not be simpler: donations in exchange for tax cuts.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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
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