[EL] more news 12/10/18

Mon Dec 10 11:50:02 PST 2018

Trump's 'Obama Did It Too' Legal Defense Does Not Hold an Ounce of Water"<https://electionlawblog.org/?p=102744>
Posted on December 10, 2018 11:45 am<https://electionlawblog.org/?p=102744> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece for Slate. It begins<https://slate.com/news-and-politics/2018/12/trump-obama-campaign-finance-crime-tweets.html>:

President Donald Trump may never face a criminal penalty or impeachment proceedings for violating campaign finance laws in alleged conspiracy with his former personal lawyer, Michael Cohen. But on Monday, he tweeted an apparent legal defense for the apparent criminal violations that is beyond unconvincing. He argued that hidden hush-money payments to his mistresses in the weeks before the 2016 election were merely "simple private transaction<https://twitter.com/realDonaldTrump/status/1072095127894667265>[s]" rather than illegal campaign contributions, or that his problems amount to no more than his lawyer making a paperwork mistake. The president went on to compare Cohen's actions to the reporting errors<https://twitter.com/realDonaldTrump/status/1072098604599394305> to which the Obama campaign admitted and ultimately dealt with through the payment of civil fines, the apparent point being that even if Trump did anything wrong, he should only be on the hook for civil penalties. In reality, Trump's conduct and applicable campaign finance rules suggest that he would already be in serious legal jeopardy if he were not the sitting president.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>

"North Carolina Democrat preparing for special election in contested congressional race"<https://electionlawblog.org/?p=102742>
Posted on December 10, 2018 10:14 am<https://electionlawblog.org/?p=102742> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2018/12/10/north-carolina-mccready-special-election-1054208?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>

The Democrat in a North Carolina congressional race marred by accusations of election fraud said Monday that his team is already preparing for the possibility of a special election that would supersede the allegedly tainted contest held last month.

"We're gearing up right now in case we do have a special election. This is in the hands of the North Carolina State Board of Elections that's launched an investigation," Dan McCready said in an interview on MSNBC's "Morning Joe."
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Posted in campaigns<https://electionlawblog.org/?cat=59>

"Campaign finance fraud accusations haunt Spano, congressional office"<https://electionlawblog.org/?p=102740>
Posted on December 10, 2018 10:12 am<https://electionlawblog.org/?p=102740> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/states/florida/story/2018/12/10/campaign-finance-fraud-accusations-haunt-spano-congressional-office-734974?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>

U.S. Rep.-elect Ross Spano is struggling to hire office staff as he relies on a controversial adviser: one of the friends at the center of a campaign finance scandal that is rocking the Florida Republican.

Spano, an attorney and outgoing state legislator with past financial troubles, recently admitted in a letter<https://www.politico.com/f/?id=00000167-94cd-df8f-adff-bdfdc17f0002> to the Federal Election Commission that he might have committed a campaign finance "violation" in failing for two months to disclose $180,000 he accepted from two friends. Spano, who personally loaned his campaign $174,500, says the funds he received were loans.
But if the FEC deems the "loans" to be campaign contributions, they would exceed legal donation limits of $2,700 per cycle, per contributor. And experts say it could constitute a criminal violation by Spano and, potentially, the two people who gave his campaign the money - Cary Carreno and Karen Hunt.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

"The Remarkable Tale of the Corporate Lobbyist Sworn in as a Temporary U.S. Senator"<https://electionlawblog.org/?p=102738>
Posted on December 10, 2018 9:52 am<https://electionlawblog.org/?p=102738> by Rick Hasen<https://electionlawblog.org/?author=3>

David Dayen:<https://theintercept.com/2018/12/10/jon-kyl-senator-arizona/>

Few have paid much attention to Kyl, who is wrapping up one of the strangest and - to his critics - one of the most corrupt tenures in the modern history of the Senate. Kyl was a registered lobbyist at a powerhouse D.C. law firm, who lived and worked in Washington for five and a half years before taking a four-month gig as a senator. His only floor speeches have involved matters at least glancingly tied to his lobbying. His entire term of office seems like a calculated attempt to refresh his contacts and gain clout from the inside, only to spin back out to influence the institution. He's supposed to represent Arizona, but increasingly it appears that he only represents K Street.
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>, lobbying<https://electionlawblog.org/?cat=28>

Reducing the Role of the Unrepresentative Caucuses in 2020<https://electionlawblog.org/?p=102732>
Posted on December 10, 2018 7:16 am<https://electionlawblog.org/?p=102732> by Richard Pildes<https://electionlawblog.org/?author=7>

As readers of this blog know, I'm no fan of how far the radical changes that were made in the 1970s to the presidential nominations process went in eliminating any special weight that elected party officials, from throughout the country, carried in that process (see here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064938>).  But if we are going to have a purely populist system of selection, primary elections are a far fairer, more representative means of gauging popular support than the caucuses.

Thus, I was glad to see this report in David Weigel's Washington Post story<https://www.washingtonpost.com/politics/paloma/the-trailer/2018/12/09/the-trailer-what-we-learned-from-all-the-2018-results-the-winners-losers-flippers-voters-and-spenders/5c0ae53a1b326b67caba2b49/?utm_term=.968768179bd1> today assessing the midterms and the coming 2020 process.  In the context of reporting the decision of Nebraska Democrats to replace their caucus with a primary, Weigel writes:

That process revealed a gap between the support for grass-roots candidates in caucuses and their support from a wider electorate. In 2008, Barack Obama clobbered Hillary Clinton in Nebraska's caucuses, winning 67.6 percent of the vote and two-thirds of the state's delegates. Weeks later, he took just 49.1 percent of the vote in the nonbinding primary. Clinton careened into the same trap eight years later, as Sen. Bernie Sanders(I-Vt.) won 57.1 percent of the caucus vote, then just 46.9 percent in the nonbinding primary.

In 2016, 14 states held caucuses, and all but two of them backed Sanders. But the 2020 caucus pool has shrunk to just eight states: Iowa, Nevada, Alaska, Hawaii, Kansas, North Dakota, Utah and Washington. Nearly 200 delegates formerly chosen in caucuses will be chosen in primaries instead, something that reform advocates favored as a way to broaden the electorate.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

"Vanguard is no friend to shareholders seeking more details on firms' political spending"<https://electionlawblog.org/?p=102734>
Posted on December 10, 2018 7:04 am<https://electionlawblog.org/?p=102734> by Rick Hasen<https://electionlawblog.org/?author=3>

Philly Inquirer reports<http://www2.philly.com/business/vanguard-blackrock-fidelity-political-spending-donations-morningstar-votes-20181207.html>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

Steve Huefner Argues for Anti-Ballot Harvesting Laws in Light of North Carolina Absentee Voting Scandal<https://electionlawblog.org/?p=102731>
Posted on December 10, 2018 7:00 am<https://electionlawblog.org/?p=102731> by Rick Hasen<https://electionlawblog.org/?author=3>

Steve at Moritz:<https://moritzlaw.osu.edu/election-law/article/?article=13451>

But the North Carolina story makes clear that it behooves states to do more to promote the security of absentee voting by mail. For starters, reform advocates must recognize that the convenience of absentee voting comes with a cost. By contrast, in-person voting, whether on Election Day or beforehand, has none of the risks that the unfolding scandal in North Carolina has exposed. (Additionally, though unconnected to the problems of ballot harvesting, in-person voting also has much lower rates of lost votes or invalid ballots than does mail-in voting.)

Meanwhile, efforts to impose strict voter identification requirements ostensibly to secure voting against the hypothetical and seldom realized possibilities of in-person "voter fraud" do nothing to reduce the very real - and frequently realized - risks of absentee voting fraud, and if anything serve to misdirect attention away from where it is needed. Instead, measures necessary to promote the integrity of absentee voting include, among others, prohibitions on ballot harvesting, enforcement of these prohibitions through monitoring of the ballot return process, public education about the proper way to return a voted absentee ballot, and absentee ballot tracking tools for voters.

Indeed, absent public awareness of the hazards of ballot harvesting, the first form of ballot harvesting fraud - when operatives collect a batch of absentee ballots only to discard them - can be especially difficult to detect and prevent. So it also behooves each voter both to know that delivering a voted ballot to any intermediary is fraught with risk (and may be illegal, depending on the state), as well as to take advantage of whatever mechanisms election officials make available to track the status of an absentee ballot to make sure that the voter's voted ballot has reached the election officials. But after witnessing what has happened this past election in Bladen County, no state should hesitate to make absentee ballot harvesting illegal, and to take steps to increase awareness and enforcement of this prohibition.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

Breaking: Supreme Court Declines to Hear Austin, Texas Low Campaign Contributions Case, Takes No Action on North Carolina Gerrymandering Petition<https://electionlawblog.org/?p=102729>
Posted on December 10, 2018 6:49 am<https://electionlawblog.org/?p=102729> by Rick Hasen<https://electionlawblog.org/?author=3>

With no noted dissent, the Supreme Court has turned down<https://www.supremecourt.gov/orders/courtorders/121018zor_f2ah.pdf> a cert. petition in the Zimmerman campaign finance case from Austin Texas. I flagged this case<https://electionlawblog.org/?p=102560> (along with a Montana case that the Court will consider taking up in January) as significant challenges to the existing constitutional structure governing campaign contributions. This is good news for those who support reasonable limits on money in elections.

The Court also took no action in the North Carolina partisan gerrymandering case. I think the Court is almost certainly going to take up that case, but we may not get this news until the next scheduled conference order list in early January.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

--
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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