[EL] ELB News and Commentary 9/27/17

Tue Sep 26 20:27:36 PDT 2017

$250,000 Bought Face Time for Couple with President Trump at NYC Fundraising Dinner<http://electionlawblog.org/?p=95040>
Posted on September 26, 2017 8:14 pm<http://electionlawblog.org/?p=95040> by Rick Hasen<http://electionlawblog.org/?author=3>
So much for<https://www.nytimes.com/2017/09/26/us/politics/trump-republican-fund-raiser.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=9&pgtype=sectionfront&_r=0> the billionaire who funds his own campaigns.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“7 Senators Demand To Know If DOJ Is Involved With Trump Voter Fraud Probe”<http://electionlawblog.org/?p=95037>
Posted on September 26, 2017 7:37 pm<http://electionlawblog.org/?p=95037> by Rick Hasen<http://electionlawblog.org/?author=3>
HuffPost reports.<http://www.huffingtonpost.com/entry/justice-department-voter-fraud-panel-senate-democrats_us_59cac748e4b02aef6cd5eb62?gqa>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Wisconsin’s Mike Haas Explains How Feds Messed Up in Reporting Russian Election Hacking in WI<http://electionlawblog.org/?p=95035>
Posted on September 26, 2017 7:28 pm<http://electionlawblog.org/?p=95035> by Rick Hasen<http://electionlawblog.org/?author=3>
Talk <https://twitter.com/TheBeatWithAri/status/912803450353729536> with Ari Melber.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Some Russian-Paid Facebook Ads May Have Contained Express Advocacy, Making Them Illegal Under Current Law<http://electionlawblog.org/?p=95033>
Posted on September 26, 2017 7:19 pm<http://electionlawblog.org/?p=95033> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/09/26/facebook-russia-trump-sanders-stein-243172>
Green Party presidential candidate Jill Stein was the beneficiary of at least one Russian-bought ad on Facebook that federal government officials suspect were intended to influence the 2016 election.
Other advertisements paid for by shadowy Russian buyers criticized Hillary Clinton and promoted Donald Trump. Some backed Bernie Sanders and his platform even after his presidential campaign had ended, according to a person with knowledge of the ads.
The pro-Stein ad came late in the political campaign and pushed her candidacy for president, this person said.
“Choose peace and vote for Jill Stein,” the ad reads. “Trust me. It’s not a wasted vote. … The only way to take our country back is to stop voting for the corporations and banks that own us. #GrowaSpineVoteJillStein.”
But in the future they can easily avoid that<http://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647> and Russian government might be able to *legally* pay for election ads.
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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>

“BlackRock Executive’s Kasich Donation May Cost $37 Million”<http://electionlawblog.org/?p=95031>
Posted on September 26, 2017 5:02 pm<http://electionlawblog.org/?p=95031> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg<https://www.bloomberg.com/news/articles/2017-09-25/blackrock-executive-s-kasich-donation-may-cost-firm-37-million>:
BlackRock Inc.<https://www.bloomberg.com/quote/BLK:US> faces a ban on collecting about $37 million in fees from Ohio public-sector clients after discovering that one of its top executives ran afoul of pay-to-play rules during last year’s presidential campaign.
Mark Wiedman, the head of BlackRock’s iShares unit, donated $2,700 to John Kasich in January 2016 during a fundraiser for the Ohio governor’s campaign to become the Republican presidential nominee, according to a regulatory filing.
Wiedman inadvertently triggered anti-corruption measures that the U.S. Securities and Exchange Commission adopted in 2010 after scandals involving money manager contributions to state officials, the firm said. The pay-to-play rules affected the 2016 presidential campaign because five sitting governors participated, including Mike Pence of Indiana, Donald Trump<https://www.bloomberg.com/billionaires/id/1252249>’s running mate in the general election.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Brill: “OC High Schools: Nowhere To Go But Up On Voter Registration”<http://electionlawblog.org/?p=95029>
Posted on September 26, 2017 4:59 pm<http://electionlawblog.org/?p=95029> by Rick Hasen<http://electionlawblog.org/?author=3>
The following is a guest post from Laura Brill:
Orange County set a participation record<http://www.ocregister.com/2016/12/12/oc-voter-turnout-skyrocketed/> in the last presidential election, with more than 80% of registered voters casting ballots, the highest percentage in 40 years. High schools in the OC, however, are not setting any records on a key test of engaging young adults in the political process.
Students in California can pre-register to vote at age 16. That means that when they turn 18, they will automatically be able to vote in the next election.  Very few people know that the pre-registration option exists.  High schools, where 16-year-olds spend most of their days, generally do little or nothing to inform their students about pre-registration or to help them pre-register.
Low registration and pre-registration rates translate into low voting rates.  In 2014, just 8.2%<http://explore.regionalchange.ucdavis.edu/ourwork/projects/copy2_of_UCDavisCCEPPolicyBrief92014YouthVote.pdf> of eligible youth aged 18-24 voted in the 2014 statewide election – a mere 285,000 of 3.5 million eligible young people. While voter turnout of all age groups improved in the 2016 presidential election, only53%<http://www.ppic.org/publication/millennial-voters-and-california-politics/> of California millennials (ages 18-34) have registered to vote and only one in four is a likely voter.
Since 2003, state law has required the California Secretary of State to provide voter registration materials to public high schools. California lawmakers amended the law in 2014 to encourage high schools to create more opportunities for high school students to register to vote, including through community emails and website links.
In October 2016, Secretary of State Alex Padilla sent out questionnaires to California high schools asking about their plans for voter registration leading up to the November election. Only 260<http://admin.cdn.sos.ca.gov/reports/2016/student-voter-registration.pdf> out of more than 1300<http://www.cde.ca.gov/ds/sd/cb/ceffingertipfacts.asp> – fewer than 20% – even bothered to respond.
The Secretary of State has been encouraging easy, inexpensive, and sensible measures to promote registration on-line.  But visit your nearest public high school website, and the odds are  you will find no information about registering to vote.
In response to public records requests, the office of the Orange County Registrar of Voters provided data on OC pre-registration figures.  As of mid-August 2017, just over one thousand of the many thousands of eligible students in OC have pre-registered.
Irvine is ahead of the OC curve, with designated administrators responsible for high school voter registration efforts, and a city-run High School Youth Action Team<http://www.cityofirvine.org/teens/high-school-youth-action-team>, which runs voter registration drives and seeks to engage youth in leadership roles in the community. Even Irvine, however, with just 187 voter pre-registrations, could step up its game.  Other cities have even fewer students pre-registered to vote.  Tustin, 45; Huntington Beach, 44; Fullerton, 36, Newport Beach, 26.
If we want to look on the bright side, at least we can marvel at the tremendous opportunities for improvement.
Just about everyone who just started senior year this August will be 18 or older by the time November 2018 rolls around.  Orange County has some of the most competitive congressional, state and local races in the country.  Getting these students registered today could make a critical difference in that election.
With school underway and with High School Voter Education Weeks<http://www.sos.ca.gov/elections/voting-resources/voting-california/help-strengthen-our-democracy/high-school-voter-education-weeks/> starting throughout California on September 18, it’s time for us to urge our high schools to do better. If you are a parent, please speak up at school board and PTA meetings and contact<http://www.cde.ca.gov/schooldirectory/> principals and superintendents. Teachers can make sure their students know pre-registration is an option and can explain the mechanics of getting registered and casting a ballot.
Students can learn valuable leadership skills organizing registration drives for current students and helping campaigns to get out the vote.  And their spontaneous social media posts could be more effective in motivating their peers than mass mailings of candidate attack ads.
So for all those high schoolers wondering what a real leadership opportunity looks like and when it will come along, the answer may be right in front of us.  As William Mulholland said as water began flowing from the Owens Valley to Southern California:  There it is.  Take it.
Laura W. Brill is a co-founding partner at Kendall Brill & Kelly LLP, a Los Angeles based law firm.  She writes regularly about democracy, election law, and youth issues.

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Posted in voter registration<http://electionlawblog.org/?cat=37>

“Tyranny of the Minority”<http://electionlawblog.org/?p=95027>
Posted on September 26, 2017 4:42 pm<http://electionlawblog.org/?p=95027> by Rick Hasen<http://electionlawblog.org/?author=3>
Inaugural<https://www.nytimes.com/2017/09/25/opinion/trump-electoral-college-minority.html> Michelle Goldberg NYT column:
There are ways out.
The National Popular Vote Interstate Compact — a plan in which states agree to award all their electoral votes to the national popular vote winner — could circumvent the Electoral College if enough states enacted it.
Don Beyer, a Democratic representative from Virginia, has introduced the Fair Representation Act, which would change the way the House is elected, replacing single-member districts with larger districts represented by several people. They’d be chosen by a system of ranked voting that would allow third parties to compete without becoming spoilers, while giving political minorities a say in the process. The resulting delegations, Beyer told me, would be more likely to be proportional, creating space for Massachusetts Republicans as well as Oklahoma Democrats.
Enactment of either of these plans, which would transform the ways we choose our leaders, is remote. But absent reform, our system could eventually face a legitimacy crisis. Levinson, perhaps the most prominent among progressive critics of the Constitution, argues that the crisis is already here: “At some point we need to discuss the extent to which the entire constitutional system is full of these anti-majoritarian aspects.”
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, electoral college<http://electionlawblog.org/?cat=44>

“In reversal, feds proclaim Russians did not seek to hack Wisconsin’s election system”<http://electionlawblog.org/?p=95025>
Posted on September 26, 2017 4:35 pm<http://electionlawblog.org/?p=95025> by Rick Hasen<http://electionlawblog.org/?author=3>
Patrick Marley<http://www.jsonline.com/story/news/2017/09/26/wisconsin-elections-commission-offers-apology-raises-questions-hacking-attempt/703660001/> for the Milwaukee Journal-Sentinel:
The federal Department of Homeland Security reversed itself Tuesday and told Wisconsin officials that the Russian government had not tried to hack the state’s voter registration system last year.
Instead, Homeland Security said, the Russians had attempted to access a computer system controlled by another state agency.
The development — disclosed during a meeting of the Wisconsin Elections Commission — came four days after federal officials told the state that Russians had tried to hack systems in Wisconsin and 20 other states<http://www.jsonline.com/story/news/politics/2017/09/22/homeland-security-russians-tried-hack-wisconsins-election-system/694570001/>.
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Posted in election administration<http://electionlawblog.org/?cat=18>

The New Wave of Gerrymandering Scholarship — Part II<http://electionlawblog.org/?p=95020>
Posted on September 26, 2017 4:23 pm<http://electionlawblog.org/?p=95020> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>
Yesterday I mentioned a new article on the efficiency gap by Eric McGhee. Today I’d like to highlight a paper that Eric and I recently wrote: The Measure of a Metric, forthcoming in the Stanford Law Review. This paper makes several points, only one of which I’ll emphasize here. This is that there is a high degree of convergence among different measures of partisan gerrymandering, especially in competitive electoral contexts. Accordingly, there is little need to try to identify a single “best” metric; in many electoral settings, any measure will do.
For several decades, most scholars quantified partisan gerrymandering using partisan bias. This metric asks how different the parties’ seat shares would be if they each received the same proportion (typically 50%) of the statewide vote. A few years ago, Eric introduced the efficiency gap, which compares the parties’ respective rates of “wasted” votes (votes that don’t contribute to a candidate’s election). More recently, other academics have advocated subtracting a party’s mean vote share, across all of the districts in a plan, from its median vote share; and comparing the parties’ average margins of victory in the districts won by each of them.
In our paper, Eric and I point out that there are several mathematical links between these measures: Partisan bias and the efficiency gap are equal when an election is tied statewide. The mean-median difference is equal to partisan bias divided by the slope of the seat-vote curve. The efficiency gap is equal to the mean-median difference multiplied by the slope of the seat-vote curve when an election is tied statewide. And the efficiency gap is equal to the difference between the parties’ average margins of victory if these margins are weighted by the shares of seats won by each party. These mathematical ties suggest that, in theory at least, there is significant overlap between the various gerrymandering metrics.
Next, Eric and I show that the overlap exists in practice as well. We calculate partisan bias, the efficiency gap, and the mean-median difference for state house plans from 1972 to 2014. We then plot these measures against one another in elections that were closer statewide than 55% to 45%. (The proponents of partisan bias and the mean-median difference discourage using these metrics when elections are uncompetitive statewide.)
As the below charts indicate, all three of the measures are strongly related. In each graph, the points hug the best fit line quite closely. The specific correlations are 0.89 (partisan bias and efficiency gap), 0.91 (partisan bias and mean-median difference), and 0.80 (efficiency gap and mean-median difference).
[http://electionlawblog.org/wp-content/uploads/pic2-1-300x219.png]
[http://electionlawblog.org/wp-content/uploads/pic3-1-300x219.png]
[http://electionlawblog.org/wp-content/uploads/pic4-300x220.png]
Lastly, to learn even more about the metrics’ connections, Eric and I subject them to factor analysis. (This is a data reduction technique that seeks to identify latent variables that are linear functions of the observed variables and that capture as much as possible of the variance in the data.) This analysis yields an exceptionally significant first factor that accounts for a whopping 97% of the total variance. All of the measures load very heavily onto this factor, and in the same direction.
The upshot of these findings is that, at least in competitive electoral settings, the academic debate over gerrymandering metrics is largely tangential. All of the measures are tightly interwoven in these settings, and tell mostly the same substantive story. Scholars, litigants, and courts may therefore cite as few or as many of the metrics as they like, secure in the knowledge that their choice is not particularly consequential.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Why Banning Russian Facebook Ads Might Be Impossible”<http://electionlawblog.org/?p=95018>
Posted on September 26, 2017 10:52 am<http://electionlawblog.org/?p=95018> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece <http://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647> for Politico magazine. It begins:
Lost amid the debate over whether Facebook can be trusted to police itself to stop Russian and other foreign interference in future U.S. elections or whether new legislation is necessary to accomplish this task is a potential insuperable roadblock to effective regulation: the conservative justices on the United States Supreme Court and their views of the First Amendment….
Soon after Citizens United, a foreign national named Benjamin Bluman, a Canadian lawyer who was then living in New York, brought suit arguing that he had a First Amendment right to spend 50 cents to print flyers at Kinko’s and distribute them in Central Park urging a vote for Barack Obama. A three-judge federal district court, citing the interest in self-government, disagreed with Bluman, uphold<https://www.bloomberglaw.com/public/desktop/document/Bluman_v_Federal_Election_Commission_Civil_No_101766_BMK_RMURMC_2?1506299353>ing the foreign spending ban. The Supreme Court affirmed<https://www.supremecourt.gov/orders/courtorders/010912zor.pdf> without issuing an opinion.
Bluman is the authority for the principle that a ban on foreign electioneering does not violate the First Amendment. But in a part of Bluman that has not been much noticed, the three-judge court construed the statute barring foreign election spending to apply only to express advocacy (“Vote for Obama”), not to issue advocacy (“Tell Hillary to show us her emails”). The district court held it had to read the statute this way thanks to another Roberts Court opinion<https://www.bloomberglaw.com/document/X177BT8003?jcsearch=551%20U.S.%20449#jcite>, which held that reading the issue advocacy test broadly would violate the First Amendment. In other words, as the lower court understood the statute, Bluman legally could have spent millions of dollars promoting President Obama’s reelection effort, so long as he avoided the magic words of advocacy or the “functional equivalent” of express advocacy.
We don’t yet have the language of a Klobuchar-Warner bill that would apparently extend the definition of electioneering communications to cover foreign spending on Facebook and other digital media ads, but if that language is broad, the same conservative Supreme Court that brought us Citizens United could hold that the First Amendment prevents Congress from regulating any foreign spending on elections that is not the functional equivalent of express advocacy. The Court’s newest Justice, Neil Gorsuch, has already shown himsel<http://www.abajournal.com/news/article/supreme_court_summarily_upholds_caps_on_contributions_to_political_parties>f to be skeptical of campaign finance limits.
The result would be that any broader foreign spending ban would be wholly ineffective. For example, it appears that during the 2016 election, Russian-government backed advertising pushed Trump rallies in 17 cities in Florida<http://www.thedailybeast.com/russians-appear-to-use-facebook-to-push-pro-trump-flash-mobs-in-florida> and targeted immigration and same-sex marriage messages<https://www.wired.com/story/facebook-ties-more-than-5000-political-ads-to-bogus-russian-accounts/> to voters in key Midwestern states. It also stirred up<https://www.washingtonpost.com/business/technology/russian-operatives-used-facebook-ads-to-exploit-divisions-over-black-political-activism-and-muslims/2017/09/25/4a011242-a21b-11e7-ade1-76d061d56efa_story.html?utm_term=.e49263cadf54> anti-Muslim sentiment and controversy over the Black Lives Matter movement. These ads likely would not be considered express advocacy or its functional equivalent, and therefore Congress might lack the power to ban them as the Supreme Court understands the First Amendment—even though they were purchased by foreigners.
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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>

Supreme Court Allows Texas To Drag Out Redistricting Appeal, Enjoying Benefit of Temporary Stay<http://electionlawblog.org/?p=95016>
Posted on September 26, 2017 8:04 am<http://electionlawblog.org/?p=95016> by Rick Hasen<http://electionlawblog.org/?author=3>
Michael Li:<http://txredistricting.org/post/165742182526/scotus-rejects-request-to-speed-up-texas>
In one-line orders today (here<http://t.umblr.com/redirect?z=https%3A%2F%2Fwww.supremecourt.gov%2Forders%2Fcourtorders%2F092517zr2_k5fm.pdf&t=YTcxOWE4MDI0OGMyNDBkOTgzNDA5NDM2NmRhOTQ2MjE2NTZlOGEyOCxRbE16UUVueQ%3D%3D&b=t%3Ajo0wCwzsKNqQjK4H1LXAng&p=http%3A%2F%2Ftxredistricting.org%2Fpost%2F165742182526%2Fscotus-rejects-request-to-speed-up-texas&m=1> and here<http://t.umblr.com/redirect?z=https%3A%2F%2Fwww.supremecourt.gov%2Forders%2Fcourtorders%2F092517zr3_8759.pdf&t=YjRhYWNmNDc1YjdmM2ViZWFkZjFkMzMwM2FhNzVlMzZmYTU2YTVjNyxRbE16UUVueQ%3D%3D&b=t%3Ajo0wCwzsKNqQjK4H1LXAng&p=http%3A%2F%2Ftxredistricting.org%2Fpost%2F165742182526%2Fscotus-rejects-request-to-speed-up-texas&m=1>), the Supreme Court rejected a request<http://t.umblr.com/redirect?z=http%3A%2F%2Fprojects.statesman.com%2Fdocuments%2F%3Fdoc%3D4060147-Redist-SCOTU-Expedite&t=Y2I0MGI4YTE0ZjViYWI1NDFhNGE2YmY1NGQ4NzllODIwZmU3NjU2ZixRbE16UUVueQ%3D%3D&b=t%3Ajo0wCwzsKNqQjK4H1LXAng&p=http%3A%2F%2Ftxredistricting.org%2Fpost%2F165742182526%2Fscotus-rejects-request-to-speed-up-texas&m=1> by plaintiffs in the Texas redistricting case that the Supreme Court expedite appeals by the State of Texas.
The plaintiffs’ requests would have sped up the cases by having the parties forgo the filing of jurisdiction statements (essentially skipping one step in the process) and setting an expedited briefing schedule. This would have allowed the high court to consider whether to take the cases at its January 5, 2018 conference. …
At this juncture, it is hard to say exactly when briefing will be complete or when the cases will reach the Justices since a lot will depend on whether parties will file briefs early or, conversely in the case of the State of Texas, take its full allotted time to file its papers. It is still possible the cases could reach the Justices by early January or perhaps earlier. But it is possible to see the first round of briefing being dragged out into the new year.
See my earlier: The Supreme Court is in No Hurry to Protect Voters from Gerrymandering<https://www.washingtonpost.com/news/posteverything/wp/2017/06/28/the-supreme-court-is-in-no-hurry-to-protect-voters-from-gerrymandering/?utm_term=.1c6b6216e091>, Washington Post (Post Everything), June 28, 2017
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

“The end of political campaigns as we know them? A new study suggests we’re doing it all wrong.”<http://electionlawblog.org/?p=95014>
Posted on September 26, 2017 7:47 am<http://electionlawblog.org/?p=95014> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo:<https://www.washingtonpost.com/news/the-fix/wp/2017/09/26/the-end-of-political-campaigns-as-we-know-them-a-new-study-suggests-were-doing-it-all-wrong/?deferJs=true&outputType=default-article&utm_term=.2236c687d4f4&wpmk=MK0000200>
Billions of dollars are spent every election cycle on advertising, which accounts for the lion’s share of the money in U.S. politics<https://www.cookpolitical.com/analysis/national/political-advertising/2018-campaign-ad-spend-will-be-billions>. Campaigns also spend countless hours organizing voter contacts in hopes of winning over would-be supporters.
A new study suggests it’s largely a waste — or something close to it.
The study from the University of California’s Joshua L. Kalla and Stanford University’s David E. Broockman<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3042867> challenges some of the most widespread preconceptions about political campaigns — starting, first and foremost, with the idea that trying to persuade voters is a good use of a campaign’s time and resources. (A brief description of the study can be found here<http://www.scholarsstrategynetwork.org/brief/what-election-campaigns-need-learn-persuade-voters-about-candidates-and-ballot-measures>.)
The study’s authors combined a hodgepodge of 40 existing experiments on the persuasive effects of advertising and campaign contacts, and then they added nine extensive new studies of their own. The new studies were conducted during the 2016 election with the labor group Working America, an affiliate of the AFL-CIO.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“More Company Boards Add Oversight of Political Spending”<http://electionlawblog.org/?p=95012>
Posted on September 26, 2017 7:44 am<http://electionlawblog.org/?p=95012> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ:<https://www.wsj.com/articles/more-company-boards-add-oversight-of-political-spending-1506398461>
More large companies are disclosing how they spend to influence government, and company boards are taking on a more direct role in overseeing that spending, a new study finds.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D95012&title=%E2%80%9CMore%20Company%20Boards%20Add%20Oversight%20of%20Political%20Spending%E2%80%9D>
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
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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