[EL] ELB News and Commentary 9/9/17

Rick Hasen rhasen at law.uci.edu
Fri Sep 8 19:12:28 PDT 2017


Three Judge Court Explains Why NC Congressional Partisan Gerrymandering Case Will Go Forward Despite Whitford<http://electionlawblog.org/?p=94717>
Posted on September 8, 2017 6:45 pm<http://electionlawblog.org/?p=94717> by Rick Hasen<http://electionlawblog.org/?author=3>
Opinion <http://www.politico.com/f/?id=0000015e-639b-d7ac-a3fe-77bbb28d0001> rejecting request for stay pending resolution of the Whitford partisan gerrymandering case at SCOTUS.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Oops Dept: “Two NC Republicans say they accidentally asked the Supreme Court to end gerrymandering”<http://electionlawblog.org/?p=94710>
Posted on September 8, 2017 2:00 pm<http://electionlawblog.org/?p=94710> by Rick Hasen<http://electionlawblog.org/?author=3>
News and Observer:<http://amp.newsobserver.com/news/politics-government/state-politics/article172017607.html>
Two of the three North Carolina lawmakers who had joined with prominent national politicians to oppose gerrymandering have now backtracked, saying they didn’t mean to add their names on an anti-gerrymandering letter sent to the Supreme Court.
Rep. Mark Meadows and Rep. Walter Jones, both Republicans, signed on to the legal brief<https://lowenthal.house.gov/uploadedfiles/wisconsin-amicus-9-6-17.pdf>along with Democratic Rep. David Price.
Meadows blamed an “error” <http://amp.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article171737932.html?utm_medium=referral&utm_campaign=amp&utm_source=www.newsobserver.com-RelayMediaAMP> and Jones blamed “miscommunication” for their participation. Meadows also made a point to say he supports the N.C. General Assembly, which is in charge of drawing the state’s lines for its members of Congress.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Today’s Must-Read: “Analysis: Heritage Foundation’s Database Undermines Claims of Recent Voter Fraud”<http://electionlawblog.org/?p=94707>
Posted on September 8, 2017 1:36 pm<http://electionlawblog.org/?p=94707> by Rick Hasen<http://electionlawblog.org/?author=3>
The Brennan Center<http://www.brennancenter.org/press-release/analysis-heritage-foundations-database-undermines-claims-recent-voter-fraud> comes through with tedious but very important debunking work:
The Presidential Advisory Commission on Election Integrity relies on a database produced by the Heritage Foundation to justify baseless claims — by President Trump and some of the panel’s members — of rampant voter fraud. But according to an analysis<https://www.brennancenter.org/publication/heritage-fraud-database-assessment> of the database by the Brennan Center for Justice at NYU School of Law, the numbers in the database reveal exactly the opposite.
Claims that the database contains almost 1,100 proven instances of voter fraud are grossly exaggerated and devoid of context, according to Heritage Fraud Database: An Assessment<https://www.brennancenter.org/publication/heritage-fraud-database-assessment>. It confirms what numerous studies have consistently shown: Voter fraud is vanishingly rare, and impersonating a voter at the polls is less common a phenomenon than being struck by lightning.
“The database includes an assortment of cases, many unrelated or tangentially related, going back decades, with only a handful pertaining to non-citizens voting or impersonation at the polls,” writes the author. “They add up to a molecular fraction of the total votes cast nationwide. Inadvertently, the Heritage Foundation’s database undermines its claim of widespread voter fraud.
A closer examination of the database shows:

  *   Among the examples in the Heritage document are a case from 1948 (when Harry S. Truman beat Thomas Dewey) and a case from 1972 (when Richard Nixon defeated George McGovern). Only 105 of its 749 cases came from within the past five years.
  *   In reviewing billions of votes cast, the Heritage Foundation identified just 10 cases involving in-person impersonation fraud at the polls (fewer than the number of members on the president’s Commission).
  *   The database includes only 41 cases involving non-citizens registering, voting, or attempting to vote over five decades, highlighting the absurdity of President Trump’s claim that millions of non-citizens voted in the 2016 election alone.
  *   A vast majority of fraud “examples” cited by the Heritage Foundation would not be addressed by the voter suppression laws its staff supports, including “Election Integrity” Commission member Hans von Spakovsky, a senior legal fellow at Heritage. Von Spakovsky distributed copies of the database at the panel’s first meeting in July.
  *   Many cases highlighted in the database show that existing laws and safeguards are already preventing voter fraud — the ineligible voters or individuals engaging in misconduct were discovered and prevented from casting a ballot.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


Trump DOJ, After Reopening Lois Lerner IRS Investigation, Concludes No Criminal Charges Warranted<http://electionlawblog.org/?p=94705>
Posted on September 8, 2017 1:33 pm<http://electionlawblog.org/?p=94705> by Rick Hasen<http://electionlawblog.org/?author=3>
The letter is here<https://twitter.com/frankthorp/status/906223864123985922>.
Some GOP lawmakers angry<http://thehill.com/homenews/house/349846-gop-lawmakers-furious-after-doj-declines-to-prosecute-lois-lerner>.
Given the political heat over this, it is a good sign that at least this part of the DOJ was not subject to or able to resist political pressures to prosecute.
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Posted in tax law and election law<http://electionlawblog.org/?cat=22>


Breaking: Challengers in Texas Voter ID Case Seek 5th Circuit En Banc Review of Stay Order and Full Review of Case<http://electionlawblog.org/?p=94702>
Posted on September 8, 2017 1:24 pm<http://electionlawblog.org/?p=94702> by Rick Hasen<http://electionlawblog.org/?author=3>
The other day I reported<http://electionlawblog.org/?p=94600> that a 5th Circuit motions panel, on a 2-1 vote, allowed Texas to enforce its revised voter id law pending appeal in the case. The court did this even though the trial court found Texas engaged in intentional racial discrimination, which should allow for a fuller remedy in the case.
Today the challengers asked the full 5th Circuit<http://electionlawblog.org/wp-content/uploads/veasey-en-banc-2.pdf> to reverse that decision.  The vote will be a good test for what is likely to happen on the merits when this case, almost inevitably, makes it back before the full 5th Circuit on the merits.
Update: Josh Blackman points out <http://joshblackman.com/blog/2015/03/01/en-banc-for-a-stay-in-the-5th-circuit/> that it is not clear that stays are subject to en banc review in the Fifth Circuit. But the ruling is also seeking full initial en banc review of the merits decision.
[This post has been updated.]
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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>, Voting Rights Act<http://electionlawblog.org/?cat=15>


League of Women Voters Amicus in Whitford<http://electionlawblog.org/?p=94700>
Posted on September 8, 2017 1:20 pm<http://electionlawblog.org/?p=94700> by Rick Hasen<http://electionlawblog.org/?author=3>
Another amicus<http://lwv.org/files/Gill.redistricting.amicus.The%20League%20of%20Women%20Voters.pdf> supporting the challengers.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Will Donald Trump let the Federal Election Commission rot?”<http://electionlawblog.org/?p=94698>
Posted on September 8, 2017 10:03 am<http://electionlawblog.org/?p=94698> by Rick Hasen<http://electionlawblog.org/?author=3>
Dave Levinthal <https://www.publicintegrity.org/2017/09/08/21164/will-donald-trump-let-federal-election-commission-rot> for CPI.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


“Virginia moves to eliminate voting machines considered top hacking target”<http://electionlawblog.org/?p=94696>
Posted on September 8, 2017 9:59 am<http://electionlawblog.org/?p=94696> by Rick Hasen<http://electionlawblog.org/?author=3>
Good news via Politico:<http://www.politico.com/story/2017/09/08/virginia-election-machines-hacking-target-242492>
Virginia’s election office on Friday urged the state’s election supervisors to prohibit touchscreen voting machines before November’s elections, saying the devices posed unacceptable digital risks.
If approved, the move would represent one of the most dramatic actions taken to help secure elections since a 2016 presidential race rife with concerns about digital meddling and vote tampering. Election security experts have long warned that such machines are a top target for hackers.

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Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>


“Kobach Discovers College Students Live in College Towns”<http://electionlawblog.org/?p=94694>
Posted on September 8, 2017 9:52 am<http://electionlawblog.org/?p=94694> by Rick Hasen<http://electionlawblog.org/?author=3>
Jonathan Brater <http://www.brennancenter.org/blog/kobach-discovers-college-students-live-college-towns> for the Brennan Center:
Despite his claims that he won’t “pre-judge<http://elections.ap.org/content/kobach-says-he-wont-pre-judge-voter-fraud-panels-findings>” the findings of the Trump “Voter Fraud<https://www.brennancenter.org/issues/trump-fraud-commission>” Commission of which he is the vice-chair and public face, Kansas Secretary of State Kris Kobach is already inserting misleading claims into the public dialogue ahead of the Commission’s next meeting in New Hampshire. Specifically, he says<http://www.breitbart.com/big-government/2017/09/07/exclusive-kobach-out-of-state-voters-changed-outcome-new-hampshire-senate-race/> there must have been voter fraud in New Hampshire because people registered to vote with out-of-state driver’s licenses (which is legal), and some still do not have a New Hampshire license or car registration. From this alone, he claims the election was tainted because these people must not have been eligible to vote in New Hampshire (he also purports to be able to divine which candidate they voted for).
It’s worth noting that Kobach is basically recycling the same misleading claim<https://thinkprogress.org/kris-kobach-voter-fraud-cnn-e663d3b2d874/> he made after the election, when he suggested there was widespread voter fraud in New Hampshire because of the mere fact that people registering on election day used out of state licenses. But this is completely legal, and commonplace, especially for college students, who probably comprised the majority of these voters<http://nhpr.org/post/where-were-out-state-ids-used-vote-new-hampshire-last-november#stream/0>. A typical example would be someone who lived in Massachusetts and got a driver’s license at 16, moved to New Hampshire for college at 18, and registered to vote in New Hampshire.
But now, Kobach is making hay out of the fact that of the 6,540 individuals who registered with out of state IDs, 5,313 of them had not gotten a New Hampshire driver’s license or registered a car there as of August. From this alone, he claims there is “proof” they never were “bona fide residents” of New Hampshire and voted illegally. Philip Bump has already pointed out<https://www.washingtonpost.com/news/politics/wp/2017/09/08/kris-kobachs-leap-of-logic-on-voter-fraud-in-new-hampshire-should-be-disqualifying/?utm_term=.c4835ec25a8e> some of the flaws in this logic, but it’s worth explaining at least three reasons the claim is completely bogus:…
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Russian Facebook Political Ad Buys During 2016 Election Draw DOJ & FEC Complaints”<http://electionlawblog.org/?p=94692>
Posted on September 8, 2017 9:50 am<http://electionlawblog.org/?p=94692> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:<http://www.commoncause.org/press/press-releases/russian-facebook-political-ad-buys-during-2016-election-draw-doj-fec-complaints.html>
Today Common Cause filed a complaint with the U.S. Department of Justice (DOJ) and the Federal Election Commission (FEC) alleging that one or more unknown foreign nationals made expenditures, independent expenditures or disbursements in connection with the 2016 presidential election in violation of the Federal Election Campaign Act. …
To read the DOJ complaint, click here<http://www.commoncause.org/press/press-releases/facebook-doj-complaint.pdf>.
To read the FEC complaint, click here<http://www.commoncause.org/press/press-releases/facebook-fec-complaint.pdf>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, Department of Justice<http://electionlawblog.org/?cat=26>, federal election commission<http://electionlawblog.org/?cat=24>


“Debunking Kobach’s latest voter fraud lie”<http://electionlawblog.org/?p=94690>
Posted on September 8, 2017 8:03 am<http://electionlawblog.org/?p=94690> by Rick Hasen<http://electionlawblog.org/?author=3>
Zack Roth<https://thedailydemocracy.org/2017/09/08/debunking-kobachs-latest-voter-fraud-lie/> for the Daily Democracy.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Kris Kobach’s leap of logic on voter fraud in New Hampshire should be disqualifying”<http://electionlawblog.org/?p=94688>
Posted on September 8, 2017 7:48 am<http://electionlawblog.org/?p=94688> by Rick Hasen<http://electionlawblog.org/?author=3>
Philip Bump:<https://www.washingtonpost.com/news/politics/wp/2017/09/08/kris-kobachs-leap-of-logic-on-voter-fraud-in-new-hampshire-should-be-disqualifying/?utm_term=.4f429cd267ce>
Kobach is the co-chairman of the Presidential Advisory Commission on Election Integrity, alongside the vice president of the United States. He is running a federal investigation into the integrity of the voting system — and he cites college kids at Dartmouth as “proof” that Hillary Clinton actually lost the state. His commission, in fact, could ask New Hampshire for the data to investigate these 5,000 cases itself, at which point Kobach could inform the public about whether or not fraud had been proven. Instead he riffed on a Washington Times article.
This isn’t a game. Trump’s commission seems clearly designed to present fraud as a significant threat to the electoral system, a claim that’s belied by any number of studies, including one looking specifically at New Hampshire<https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/28/we-cant-find-any-evidence-of-voting-fraud-in-new-hampshire/?utm_term=.00800b7f3d3a>, and the lack of nearly any actual uncovered examples<https://www.washingtonpost.com/news/the-fix/wp/2016/12/01/0-000002-percent-of-all-the-ballots-cast-in-the-2016-election-were-fraudulent/> of it. (If millions voted illegally in California, as some have claimed, you’d have thought maybe one would have been caught.) The effect of the commission will invariably be to call for new legislation making it harder to vote. Such a law in Kansas meant that 34,000 fewer people voted<https://www.washingtonpost.com/news/the-fix/wp/2014/10/09/gao-voter-id-laws-in-kansas-and-tennessee-dropped-2012-turnout-by-over-100000-votes/?utm_term=.582f96abd994> in that state in 2012 than in 2008, with those affected skewing younger and less white. Read: More Democratic.
Kobach’s past behavior and other recent comments<https://www.washingtonpost.com/news/politics/wp/2017/07/19/this-completely-astonishing-interview-totally-undercuts-trumps-voter-fraud-investigation/?utm_term=.13c6f296ca24> have suggested he’s inappropriate for his Trump-appointed role; this Breitbart essay makes that more clear. Incidentally, it was revealed recently that Kobach is compensated<http://www.kansascity.com/news/politics-government/article170581152.html> for his work at the conservative site. As a paid columnist, the logical leaps of that piece are questionable, much less as one of the two guys running an ostensibly objective look at if there is fraud in the system.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Election Integrity Commission members accuse New Hampshire voters of fraud”<http://electionlawblog.org/?p=94686>
Posted on September 8, 2017 7:45 am<http://electionlawblog.org/?p=94686> by Rick Hasen<http://electionlawblog.org/?author=3>
Weigel <https://www.washingtonpost.com/news/powerpost/wp/2017/09/08/election-integrity-commission-members-accuse-new-hampshire-voters-of-fraud/?utm_term=.61c0b2261135> for WaPo:
Kobach apparently made no attempt to contact voters who’d cast ballots but held out-of-state IDs. Thursday night, The Washington Post asked voters who’d done so to tell their stories; three did so within 60 minutes — college students, who were living in New Hampshire but did not change their licenses……
It’s possible that thousands of other New Hampshire college students voted the same way; the ability of temporary residents to swing close elections has been controversial in the state for years, as Democrats go through the same biennial battle<https://twitter.com/JenniferDYWest/status/905914322152550400> to drive up turnout on campuses.
“Apparently, Kobach is saying that voting should be limited to people who drive cars,” said David Becker<https://www.electioninnovation.org/our-staff/>, director of the Center for Election Innovation. “He’s basically saying Bill Gardner, New Hampshire’s secretary of state — his colleague — is incompetent. And he’s doing it without a basis.”
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Undue Burdens and Potential Opportunities in Voting Rights and Abortion Law”<http://electionlawblog.org/?p=94684>
Posted on September 8, 2017 7:40 am<http://electionlawblog.org/?p=94684> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Karlan has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3028277> on SSRN (forthcoming, Indiana Law Journal). Here is the abstract:
This essay explores two areas of law that at first blush might seem relatively disconnected from one another: voting rights and reproductive justice.
Many years ago, I joked about one aspect of that connection: “Redistricting, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology, and often a need to ‘pull [and] haul’ rather indelicately at the very end. And of course, it often involves somebody getting screwed.” But the connection between them is actually more profound — and potentially more promising.
First, a citizen’s right to vote and a woman’s right to decide whether to terminate a pregnancy share a distinctive structure: they are rights-creating and stereoscopic. That is, they enable the exercise of other rights and lie at the intersection of the liberty and equality values expressed by the Fourteenth Amendment.
Second, these rights have undergone a similar doctrinal evolution over the last half-century, as the Supreme Court first ratcheted up and then relaxed the level of judicial scrutiny. Both are now subject to an undue burden standard. While that doctrinal retrenchment has rightly been subject to withering criticism, in recent cases courts have begun to analyze burdens in ways that take into account the interaction between the challenged restrictions and socioeconomic disadvantage.
The emerging, more muscular understanding of undue burden allows us an opportunity, within the confines of current constitutional doctrine, to talk about how economic inequality and poverty undermine constitutional values of self-determination, liberty, and equality.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“A Vote Is a Terrible Thing to Waste”<http://electionlawblog.org/?p=94682>
Posted on September 8, 2017 7:39 am<http://electionlawblog.org/?p=94682> by Rick Hasen<http://electionlawblog.org/?author=3>
WNYC:<http://www.wnyc.org/story/vote-terrible-thing-waste/>
Breitbart was the Senate Democrats’ point man for redistricting. But though he grew up in a Democratic household and still identifies with its values, he’s not exactly fond of his native political party.
“Legislative redistricting in New York isn’t a question of Democrats versus Republicans — it’s more like Bolsheviks versus Mensheviks,” he said. “The two majority parties combine to preserve their interests as majorities against the minorities in their respective houses.”
In evoking the factional split in the early Soviet Union, Breitbart isn’t suggesting Democrats and Republicans are like two different types of Communists. He’s saying that both parties are like Bolsheviks in that they’re so dedicated to majority rule in one house – the Democrats in the Assembly and the Republicans in the Senate — that they’ll sacrifice many members to permanent minority, or Menshevik, status in the other house. (Although that beats imprisonment, exile and execution, which the Bolsheviks wreaked upon the Mensheviks.)
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Russia’s Facebook Ads Could Spell Trouble for Any American Who Lent a Hand”<http://electionlawblog.org/?p=94680>
Posted on September 8, 2017 7:38 am<http://electionlawblog.org/?p=94680> by Rick Hasen<http://electionlawblog.org/?author=3>
Brendan Fischer blogs.<http://www.campaignlegalcenter.org/news/blog/russia-s-facebook-ads-could-spell-trouble-any-american-who-lent-hand>

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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>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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