[EL] ELB News and Commentary 9/19/17

Tue Sep 19 07:41:25 PDT 2017

“California postpones an election to help one of its own”<http://electionlawblog.org/?p=94907>
Posted on September 19, 2017 7:30 am<http://electionlawblog.org/?p=94907> by Rick Hasen<http://electionlawblog.org/?author=3>
Derek Muller:<http://excessofdemocracy.com/blog/2017/9/california-postpones-an-election-to-help-one-of-its-own>
A sure sign of political manipulation of an election is delaying it. Troubled states like the Democratic Republic of the Congo, Somalia, and Haiti have recently come under United Nations scrutiny for delaying their elections.
And then there’s California, where Democrats are attempting to postpone a recall effort to hold onto a supermajority in the legislature.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, recall elections<http://electionlawblog.org/?cat=11>

Trump DOJ, Again Siding with Texas in Voter ID Case, Opposes Having Entire 5th Circuit Hear Appeal Initially<http://electionlawblog.org/?p=94904>
Posted on September 19, 2017 7:28 am<http://electionlawblog.org/?p=94904> by Rick Hasen<http://electionlawblog.org/?author=3>
Full throated defense<http://electionlawblog.org/wp-content/uploads/Marc_Veasey_et_al_v._Greg_Abb_74.pdf> of Texas’s current position in this litigation, a 180 from where DOJ was during the Obama administration.
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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>

Republican Governors Association Launches News Site, Doesn’t Reveal Its Backing until AP Asks<http://electionlawblog.org/?p=94902>
Posted on September 19, 2017 7:19 am<http://electionlawblog.org/?p=94902> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<https://apnews.com/f97fbf53c0c84468ae046f861ecf3b64>
The Republican Governors Association has quietly launched an online publication that looks like a media outlet and is branded as such on social media. The Free Telegraph blares headlines about the virtues of GOP governors, while framing Democrats negatively. It asks readers to sign up for breaking news alerts. It launched in the summer bearing no acknowledgement that it was a product of an official party committee whose sole purpose is to get more Republicans elected.
Only after The Associated Press inquired about the site last week was a disclosure added to The Free Telegraph’s pages identifying the publication’s partisan source.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Trump Nominee to FEC Tried to Shred Texas’ Already-Weak Ethics Laws”<http://electionlawblog.org/?p=94900>
Posted on September 19, 2017 7:01 am<http://electionlawblog.org/?p=94900> by Rick Hasen<http://electionlawblog.org/?author=3>
Christopher Hooks<https://www.texasobserver.org/trump-trey-trainor-fec-nominee/> for the Texas Observer.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

“Political campaigns prep for battle with hackers”<http://electionlawblog.org/?p=94898>
Posted on September 19, 2017 6:59 am<http://electionlawblog.org/?p=94898> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/09/19/hackers-political-campaigns-242863>
Candidates are quizzing prospective campaign managers on anti-hacking plans. Democratic committees like the Democratic Congressional Campaign Committee, which was breached last year, have switched internally from email to encrypted messaging apps. And both parties are feverishly trying to spread advice and best practices to new campaigns before they become targets.
The political world is officially obsessed with cybersecurity in 2017 — especially the Democrats burned by the hacking of their committees and operatives during the 2016 election. Much of the Democratic Party’s permanent apparatus has already changed its day-to-day operations as a result, while beginning the slow process of persuading its decentralized, startup-like campaign ecosystem to follow suit.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

“Professor Lessig’s Electoral College Litigation”<http://electionlawblog.org/?p=94896>
Posted on September 19, 2017 6:58 am<http://electionlawblog.org/?p=94896> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Bauer:<http://www.moresoftmoneyhardlaw.com/2017/09/professor-lessigs-electoral-college-litigation/>
There is more to be said about the complexities of a reform initiative like the one Professor Lessig has advanced, but the evaluation requires attention in the first instance to the question of the various ways in the current structure of our politics that democratic values are best advanced and respected.
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Posted in electoral college<http://electionlawblog.org/?cat=44>

“How the FEC Turned a Blind Eye to Foreign Meddling”<http://electionlawblog.org/?p=94894>
Posted on September 18, 2017 9:01 pm<http://electionlawblog.org/?p=94894> by Rick Hasen<http://electionlawblog.org/?author=3>
Ann Ravel <http://www.politico.com/magazine/story/2017/09/18/fec-foreign-meddling-russia-facebook-215619> for Politico:
I suggested to the commission that the FEC consult with internet and tech experts to discuss how the agency’s current approach may or may not fit with future innovations. Starting this conversation should have been noncontroversial, especially at an agency whose very mission is to inform the public about the sources behind campaign spending.
But my comments were greeted with harassment and death threats stoked by claims by the three Republican commissioners that increased transparency in internet political advertising was censorship. Requiring financial disclosure, they argued, “could threaten the continued development of the internet’s virtual free marketplace of political ideas and democratic debate.” One commissioner went so far as to tell me that even talking about this subject at the commission would itself “chill speech.”
Not only was it taboo to suggest that the FEC adapt to the times, the commission was barely interested in enforcing rules already in place. In one instance, Republican commissioners had blocked enforcement of a law that explicitly prohibits foreign interference in U.S. elections, despite clear evidence that foreign nationals had spent large sums of money to influence a California ballot measure. Next, they blocked attempts to strengthen FEC regulations to protect the integrity of our political process when there is evidence of foreign contributions. This intransigence, in the face of open interference by foreign nationals, might as well have been a giant neon sign announcing to hostile actors worldwide that there would be no consequences for illegally meddling in American elections.
But that was before the 2016 election, before the mounting evidence of Russian disinformation operations designed to disrupt our political process. Surely the FEC has changed its response as new facts have come to light?
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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>, federal election commission<http://electionlawblog.org/?cat=24>

“Is Kobach a private citizen on Trump commission? Question will test transparency law”<http://electionlawblog.org/?p=94891>
Posted on September 18, 2017 2:26 pm<http://electionlawblog.org/?p=94891> by Rick Hasen<http://electionlawblog.org/?author=3>
KC Star:<http://www.kansascity.com/news/politics-government/article173996136.html>
Kansas Secretary of State Kris Kobach’s use of private email for a presidential commission could bring him into conflict with a 1-year-old state law meant to increase government transparency.
Kobach, a candidate for Kansas governor, told ProPublica<https://www.propublica.org/article/experts-say-the-use-of-private-email-by-trumps-voter-fraud-commission-isnt-legal> last week that he was serving on President Donald Trump’s voting fraud commission as a private citizen rather than as Kansas secretary of state and that he was using his personal gmail account for commission business rather than his official state account.
Kobach, a candidate for Kansas governor and vice chair of the commission, said using his state account would be a “waste of state resources.”
Kobach’s spokeswoman, Samantha Poetter, reasserted the claim that Kobach was serving on the commission “in his personal capacity” in an email late Monday afternoon. She indicated that the records were being forwarded to federal personnel.
“Commission members are considered ‘Special Government Employees’ under federal law. The members of the Commission were never issued federal email accounts, but they received ethics training and were instructed that they could continue to use personal email accounts as long as they ensure that all emails relating to commission business are copied or forwarded to a federal government email account,” Poetter said.
“Because Secretary Kobach is serving on the Commission in his personal capacity, not as a representative of the State of Kansas, he determined that it would be inappropriate to use his Kansas state email account. The title ‘Kansas Secretary of State’ follows his name in some printed material simply because it identifies to the reader who he is. It does not indicate that he is conducting Kansas State business while serving on the Commission,” Poetter said, contending that other government officials on the commission are similarly not serving in their official capacities.
“Secretary Kobach’s personal emails concerning the Commission are therefore not subject to KORA, since he is not conducting public business on behalf of the State of Kansas while serving on the Commission,” she said.
Poetter, who serves as spokeswoman for both Kobach’s state office and his campaign, sent the statement from her campaign email address as opposed to her official state account.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

Updated Versions of Some of My Forthcoming Papers<http://electionlawblog.org/?p=94888>
Posted on September 18, 2017 12:07 pm<http://electionlawblog.org/?p=94888> by Rick Hasen<http://electionlawblog.org/?author=3>
I’ve recently updated these pieces:
Cheap Speech and What It Has Done (to American Democracy), First Amendment Law Review (forthcoming 2018) (draft available<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>)
The 2016 U.S. Voting Wars: From Bad to Worse, William and Mary Bill of Rights Journal (forthcoming 2018) (draft available<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001257>)
Resurrection: Cooper v. Harris and the Transformation of Racial Gerrymandering into a Voting Rights Tool, ACS Supreme Court Review (forthcoming 2017) (draft available<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2985755>)
Essay: Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases, William and Mary Law Review(forthcoming 2018) (draft available<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Elite Political Ignorance: Law, Data, and the Representation of (Mis)Perceived Electorates”<http://electionlawblog.org/?p=94886>
Posted on September 18, 2017 12:04 pm<http://electionlawblog.org/?p=94886> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Elmendorf and Abby Wood have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3034685> on SSRN. Here is the abstract:
It is common to think of political elites—candidates, legislators, party officials, and campaign advisers—as specialists in learning the preferences of voters. But recent studies find that political elites believe public opinion within legislative districts to be more conservative than it actually is, and that extreme candidates are more electable than moderates (despite compelling evidence to the contrary). Campaign staffers overestimate their candidate’s electoral prospects. Moreover, natural and researcher-designed experiments show that informing legislators about constituency preferences changes roll-call votes, as legislators recalibrate to better represent public opinion in their districts.
This Article introduces the problem of elite political ignorance to the legal-academic literature. We make three principal contributions. First, we review political science findings on elite (mis)perceptions of voter preferences. Second, in light of ongoing technological developments that may provide elites with better information, we consider the likely benefits and costs of reducing elite political ignorance. The immediate impacts would probably include better alignment between the roll-call votes of representatives and the policy preferences of their constituents; reduced political polarization; less racial discrimination by campaigns and representatives; and lower-cost enforcement of the Voting Rights Act. However, over time, a reduction in elite ignorance could also engender more severe and enduring partisan gerrymanders; greater political and demographic skew in the population of regular voters; more inequity in the provision of constituent services; and micro-targeted campaigns that slowly erode democracy-sustaining norms and belief structures in the public.
We argue that most of the benefits of reduced political ignorance could be realized without incurring these costs if elites acquired better information about the distribution of voter preferences within districts, without learning the preferences of identifiable individuals. Our third contribution is to suggest public and private tools for realizing the twin objectives of constituency-level transparency and voter-level obscurity. Among other things, we argue that campaign-finance voucher programs have great and heretofore unappreciated potential for reducing elite ignorance, and that a suitably anonymized voucher regime could provide detailed constituency-level information while concealing the preferences of individual voters. Efforts to keep elites in the dark about the preferences of identifiable individuals will also depend on cooperation from social media companies.
This piece is worth your time.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, social media and social protests<http://electionlawblog.org/?cat=58>

“Trump Pick for Civil Rights Role Is a Lawyer Who’s Pushed Voting Restrictions”<http://electionlawblog.org/?p=94884>
Posted on September 18, 2017 8:48 am<http://electionlawblog.org/?p=94884> by Rick Hasen<http://electionlawblog.org/?author=3>
Pema Levy<http://www.motherjones.com/politics/2017/09/trump-pick-for-civil-rights-role-is-a-lawyer-whos-pushed-voting-restrictions/> for Mother Jones:
In mid-August, as Washington reeled over the deadly white supremacist rallies in Charlottesville, Virginia, President Donald Trump quietly announced his pick for the top civil rights job at the Department of Homeland Security. The woman he chose doesn’t have a background in national security or in protecting civil rights. Instead, she’s a Republican election lawyer who has worked with conservative groups pushing for policies that restrict the ability of minorities to vote.
The appointment of Cameron Quinn to a prominent civil rights role is a testament to the influence in the Trump administration of a small cadre of conservative lawyers and activists who have fought against voting rights in recent years, many of whom<http://www.motherjones.com/politics/2017/07/trumps-election-commission-is-a-reunion-for-controversial-bush-justice-division/>Trump appointed to the commission he convened to ensure election integrity….
Quinn’s track record in election law has drawn criticism from Democrats and earned her a reputation as a Republican activist. She has been involved in Republican efforts to push the unproven narrative that voter fraud is a widespread threat that must be combated with restrictive voting laws, such as voter ID requirements. These measures have repeatedly been found to disproportionately reduce voting among minority, poor, and elderly citizens.
In 2005, when Republicans were trying to provide academic proof of widespread voter fraud, a top lawyer for Bush’s reelection campaign founded the American Center for Voting Rights (ACVR) to raise concerns about illegal voting. Quinn served as one of the group’s directors. The group, staffed<https://web.archive.org/web/20070630060033/http:/www.pfaw.org/pfaw/general/default.aspx?oid=21015> with Republican operatives, faced allegations<http://www.mcclatchydc.com/news/nation-world/national/article24465892.html> that it was a front for efforts by Karl Rove and national Republicans seeking to disenfranchise Democratic voters through restrictive laws. ACVR and its nonprofit arm attempted to assemble evidence of voter fraud with their own research reports, submitted court briefs, and hired lobbyists to help pass voter ID laws in Missouri and Pennsylvania. They were aided in this effort by the Republican National Lawyers Association, where Quinn was a member and served in various leadership roles over the years. (A few years later, as an independent consultant, she counted<http://moritzlaw.osu.edu/electionlaw/litigation/documents/ContinuedTranscriptofSenateProceedings.pdf> the association as a client.)
ACVR closed its doors—really just a PO box<http://www.bradblog.com/?p=1283>—suddenly in March 2007. Its website domain expired, taking with it the group’s reports and testimony. Quinn’s LinkedIn page and Republican National Lawyers Association bio page do not mention it. By the time of ACVR’s demise, Quinn was working as the special counsel for voting matters at the Civil Rights Division of the Justice Department, succeeding von Spakovsky.
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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Facebook Knows More About Russia’s Election Meddling. Shouldn’t We?”<http://electionlawblog.org/?p=94882>
Posted on September 18, 2017 8:30 am<http://electionlawblog.org/?p=94882> by Rick Hasen<http://electionlawblog.org/?author=3>
Jim Rutenberg NYT column.<https://www.nytimes.com/2017/09/17/business/facebook-russia.html>

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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>

“Obama Election Commission Chair: Trump Fraud Panel a ‘Calamitous Failure’”<http://electionlawblog.org/?p=94880>
Posted on September 18, 2017 8:28 am<http://electionlawblog.org/?p=94880> by Rick Hasen<http://electionlawblog.org/?author=3>
NBC News:<https://www.nbcnews.com/politics/white-house/obama-election-commission-chair-trump-fraud-panel-calamitous-failure-n801766>
Voting experts who have been following President Donald Trump’s voter fraud commission with watchful eyes for the past several months aren’t impressed with the panel’s early efforts.
Commission detractors, including a former presidential commission chairman, told NBC News that four months after the president created his commission to examine the election system, the group is limping along after two public meetings and may end up doing more harm than good.
“F at the beginning, F all along, F now. It’s an F enterprise,” said Bob Bauer, a Democrat who served as the co-chairman of President Barack Obama’s presidential election commission in 2013 and 2014….
David Becker, executive director and founder of the Center for Election Innovation & Research, a nonprofit Washington institute, said the commission had no accomplishments to date and was on the wrong track.
“If there’s been a more embarrassing or less accomplished presidential commission in history, I’d love for someone to point it out,” said Becker, who has worked with a group that conducts much of the same voter data sharing the commission aims to do.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Shalom Lamm Partner Gets 6 Months In Bloomingburg Voter Fraud Case”<http://electionlawblog.org/?p=94878>
Posted on September 18, 2017 8:25 am<http://electionlawblog.org/?p=94878> by Rick Hasen<http://electionlawblog.org/?author=3>
The Forward:<http://forward.com/fast-forward/382853/shalom-lamm-partner-gets-6-months-in-bloomingburg-voter-fraud-case/>
Kenneth Nakdimen, who pled guilty to voter fraud in the small upstate New York village of Bloomingburg this year, received a six-month prison sentence on Friday.
Nakdimen’s co-defendant, developer Shalom Lamm, is still awaiting sentencing<http://forward.com/news/373928/shalom-lamm-guilty-voter-fraud-hasidic-bloomingburg/>. The two were involved in a controversial project<http://forward.com/news/357030/how-the-hasids-won-the-battle-of-bloomingburg-and-everyone-else-lost/> to build homes for Hasidic Jews in the rural village.

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Posted in chicanery<http://electionlawblog.org/?cat=12>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>
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