[EL] ELB News and Commentary 12/13/18

Wed Dec 12 20:50:03 PST 2018

North Carolina: “A new 9th District congressional election — if called — would be a full do-over”; and Bill Would Resolve Dispute over State Elections Board<https://electionlawblog.org/?p=102800>
Posted on December 12, 2018 8:48 pm<https://electionlawblog.org/?p=102800> by Rick Hasen<https://electionlawblog.org/?author=3>

News and Observer<https://www.newsobserver.com/news/politics-government/article223011255.html>:

A proposal that would require another primary in the 9th Congressional District if suspected absentee ballot fraud results in a new election won legislative approval Wednesday.

The requirement for a complete do-over in the 9th District is part of wide-ranging legislation that restructures the State Board of Elections and keeps information about campaign finance investigations secret….

If there is a new election, the voter ID law that the legislature passed last week would not be used.

The legislation also requires the state elections board to report on efforts to identify and investigate instances of potential absentee ballot harvesting, and report absentee ballot data and trends for the past five election cycles.

The bill also splits the State Board of Elections and Ethics Enforcement into two agencies, returning them to their pre-2017 condition. The change is meant to resolve a long-running dispute between the Republican-controlled legislature and Democratic Gov. Roy Cooper.

The legislature tried to tinker with Cooper’s appointment powers and board membership, but Cooper prevailed in court. The board of elections now has nine members: four Republicans, four Democrats and an unaffiliated voter. Under the proposed law, the board would shrink to five members, with no more than three from one party. The governor would appoint all members from nominees submitted by the Democratic and Republican parties.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Senate votes to overturn Trump administration donor disclosure rule for ‘dark money’ groups”<https://electionlawblog.org/?p=102798>
Posted on December 12, 2018 8:44 pm<https://electionlawblog.org/?p=102798> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/senate-votes-to-overturn-trump-administration-donor-disclosure-rule-for-dark-money-groups/2018/12/12/92d8d93a-fe3d-11e8-ad40-cdfd0e0dd65a_story.html?utm_term=.43d09aa32253>

The Senate on Wednesday voted 50 to 49 to overturn a Trump administration policy that allows politically active nonprofits to withhold from the government the identities of their donors, underscoring a growing unease among Democrats over the influence of wealthy donors and foreign actors in U.S. elections.

The Senate move is unlikely to survive the GOP-led House, which must vote on the resolution before the end of the year, or receive the support of President Trump, whose Treasury Department enacted the rule earlier this year.

Still, Sens. Jon Tester (D-Mont.) and Ron Wyden (D-Ore.), who pushed for the resolution, cheered the vote, which was made possible with unanimous support from Democratic senators and the backing of one moderate Republican senator, Susan Collins of Maine.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“NC election fraud: Concerning number of absentee ballots not returned in Columbus Co.”<https://electionlawblog.org/?p=102796>
Posted on December 12, 2018 8:25 pm<https://electionlawblog.org/?p=102796> by Rick Hasen<https://electionlawblog.org/?author=3>

WECT:<http://www.wect.com/2018/12/12/concerning-number-absentee-ballots-not-returned-columbus-co/>

As evidence mounts of potential election fraud in Bladen County, WECT has learned this may not be an isolated problem. WECT has just uncovered that things in Columbus County may be even worse.

About a third of the absentee ballots that were requested in Columbus County during the 2018 general election never got returned to the Board of Elections. That’s an even higher percentage of missing ballots than the unreturned ballot numbers that raised the red flags in Bladen County.

There were 557 absentee ballots requested in Columbus County during the November election, more than double the number requested in Columbus County during the last mid-term election in 2014. Of those 557 ballots, 181 of them (32%) disappeared, and most of the missing absentee ballots were mailed to registered Democrats.

That’s significant, since former Sheriff Lewis Hatcher is a Democrat, and lost his seat by just 37 votes.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Tabloid Publisher’s Deal in Hush-Money Inquiry Adds to Trump’s Danger”<https://electionlawblog.org/?p=102794>
Posted on December 12, 2018 8:23 pm<https://electionlawblog.org/?p=102794> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/12/12/nyregion/trump-american-media-michael-cohen.html>

Until this week, it was largely Mr. Cohen’s word against the president’s denials. That is why the admission by A.M.I. is “highly significant, because it goes to corroborate” Mr. Cohen’s testimony, said Jeff Tsai, part of the prosecution team that accused Senator John Edwards of campaign finance violations when he arranged for payoffs to a pregnant mistress during his 2008 presidential campaign.

“In any future prosecution, Mr. Cohen’s credibility is squarely at issue — as it should be — and that is where you see the nature of corroboration, either in the form of witnesses or documents, become such a pivotal factor in a prosecution,” Mr. Tsai said.

The Edwards case — which ended in an acquittal and mistrial — has been invoked by Trump allies as an example of prosecutorial overreach. Central to Mr. Edwards’s defense was that the payments were intended not to help his campaign but to hide the affair from his wife — that they were personal, not political.

Mr. Trump seemed to hint at this strategy in a tweet responding to Mr. Cohen’s admissions, in which he made an oblique reference to a “simple personal transaction” that was being wrongly called “a campaign contribution.”

Given the president’s stance, the disclosure of A.M.I.’s understanding that the efforts were campaign-related — and its promise of future cooperation — shows that potential witnesses against Mr. Trump go beyond Mr. Cohen.

Indeed, the A.M.I. agreement with prosecutors said there was at least one other person associated with Mr. Trump’s campaign involved in an initial discussion in August 2015, attended by Mr. Cohen and Mr. Pecker, in which they agreed that the publisher would help the campaign by identifying negative stories about Mr. Trump’s relationships with women “so they could be purchased and their publication avoided.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Multiple Indiana voting laws on trial in federal court”<https://electionlawblog.org/?p=102792>
Posted on December 12, 2018 8:21 pm<https://electionlawblog.org/?p=102792> by Rick Hasen<https://electionlawblog.org/?author=3>

Indiana Lawyer<https://www.theindianalawyer.com/articles/48898-multiple-indiana-voting-laws-on-trial-in-federal-court>:

Indianapolis attorney Robbin Stewart was raised to value the right to vote.

In his home state of Delaware, Stewart watched his mother work as a citizen lobbyist to protect the environment, and he got his first taste of political activism when as a 10-year-old he joined the campaign of a man running for state representative. He earned his J.D. degree in 1993 at the University of Missouri School of Law and then completed an LLM on state constitutions and voting rights at the University of Missouri-Kansas City.

However, since 2005, when Indiana started requiring voters to show their picture before casting a ballot, Stewart has had trouble. He wants to vote, but he does not want to show his photo ID.

Stewart filed federal lawsuits in 2008 and 2010 and lately has started recording videos of what happens when he declines to show his driver’s license to poll workers. To date, his efforts have been in vain. Federal courts have dismissed his previous complaints, and his votes have largely gone uncounted.

Wearing a suit coat with blue jeans and what appear to be Chuck Taylor sneakers, Stewart said his skills as an attorney are limited, especially for the work some may consider to be tilting at windmills, but he has no plans to quit. He has another lawsuit in the U.S. District Court for the Southern District of Indiana, Robbin Stewart v. Marion County Election Board, et al., 1:18-cv-01487, and is attempting, again, to cast a valid vote without an ID.

“I’m a little bit crazy,” Stewart said, “and I’m a little bit this well-educated lawyer with a really deep traditional sense of what my rights are under the state Constitution.”

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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>

“Remembering Rosanell Eaton, An Outspoken Advocate for Voting Rights”<https://electionlawblog.org/?p=102790>
Posted on December 12, 2018 2:38 pm<https://electionlawblog.org/?p=102790> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/sections/codeswitch/2018/12/12/675866249/remembering-rosanell-eaton-an-outspoken-advocate-for-voting-rights?utm_medium=RSS&utm_campaign=news>:

To Rosanell Eaton, the restrictive new laws seemed familiar. Eaton was the granddaughter of enslaved people who grew up under Jim Crow in Louisburg, N.C., and had been fighting against rules meant to keep black people from voting for nearly as long as she was legally eligible to cast a ballot. In the early 1940s, after she turned the legal voting age, Eaton traveled by mule wagon to register to vote at the Franklin County courthouse. But she found herself before three white men, who confronted her and tried to stop her. They demanded that she recite the Preamble to the Constitution of the United States — a common “literacy test” used to discourage and block and turn away black people from voting voters.

Eaton, unshaken, recited the entire thing. The men conceded and allowed her to register, making Eaton one of the first black voters in North Carolina since Reconstruction.

Eaton, who died on Saturday at the age of 97, was a well-known advocate for voting rights among Carolinians — she was a member of the NAACP, a county poll worker and a special registrar commissioner, helping thousands of people register to vote — but it wasn’t until she became the face of the lawsuit against the voting rules that North Carolina adopted in 2013 that she gained national prominence. Eaton, then 92, used her biography to place her state’s new rules into a larger history of disenfranchisement. “We have been this way before, but now we have been turned back and it’s a shame and a disgrace, and absolutely disgusting,” she said to a crowd at voting rights rally.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Experts Debunk Trump’s Claim That Cohen’s Campaign Violations Are Similar To Obama’s”<https://electionlawblog.org/?p=102788>
Posted on December 12, 2018 1:31 pm<https://electionlawblog.org/?p=102788> by Rick Hasen<https://electionlawblog.org/?author=3>

I spoke<https://www.npr.org/2018/12/12/676198885/experts-debunk-trumps-claim-that-cohens-campaign-violations-are-similar-to-obama> with Ari Shapiro of NPR’s All Things Considered.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

In Cooperation Agreement with Government, National Enquirer Parent Company Admits It Made Payments to Trump’s Mistress to Influence the 2016 Presidential Election<https://electionlawblog.org/?p=102780>
Posted on December 12, 2018 10:49 am<https://electionlawblog.org/?p=102780> by Rick Hasen<https://electionlawblog.org/?author=3>

From a DOJ release:<https://www.justice.gov/usao-sdny/pr/michael-cohen-sentenced-3-years-prison>

The Office also announced today that it has previously reached a non-prosecution agreement with AMI, in connection with AMI’s role in making the above-described $150,000 payment before the 2016 presidential election.  As a part of the agreement, AMI admitted that it made the $150,000 payment in concert with a candidate’s presidential campaign, and in order to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 presidential election.  AMI further admitted that its principal purpose in making the payment was to suppress the woman’s story so as to prevent it from influencing the election.

Assuming AMI’s continued compliance with the agreement, the Office has agreed not to prosecute AMI for its role in that payment.  The agreement also acknowledges, among other things, AMI’s acceptance of responsibility, its substantial and important assistance in this investigation, and its agreement to provide cooperation in the future and implement specific improvements to its internal compliance to prevent future violations of the federal campaign finance laws.  These improvements include distributing written standards regarding federal election laws to its employees and conducting annual training concerning these standards.

More details here<https://www.justice.gov/usao-sdny/press-release/file/1119501/download>, including about another member of the Trump campaign present at the meeting:

[https://electionlawblog.org/wp-content/uploads/Screen-Shot-2018-12-12-at-1.14.24-PM.png]<https://electionlawblog.org/wp-content/uploads/Screen-Shot-2018-12-12-at-1.14.24-PM.png>[https://electionlawblog.org/wp-content/uploads/Screen-Shot-2018-12-12-at-1.15.18-PM.png]<https://electionlawblog.org/wp-content/uploads/Screen-Shot-2018-12-12-at-1.15.18-PM.png>

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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

Supreme Court Might Not Hear North Carolina Partisan Gerrymandering Case Until Next Term, Meaning Possible Decision in June 2020, and Potentially Leaving NC Districts in Place for 2020 Elections and Perhaps Rendering Case Moot<https://electionlawblog.org/?p=102778>
Posted on December 12, 2018 9:08 am<https://electionlawblog.org/?p=102778> by Rick Hasen<https://electionlawblog.org/?author=3>

So predicts key Court watcher John Elwood:<https://twitter.com/johnpelwood/status/1072897341005459457>
[https://pbs.twimg.com/profile_images/1027236869476573184/PFqQJu6__bigger.jpg]<https://twitter.com/rickhasen>
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 12h<https://twitter.com/rickhasen/status/1072882239187312640>
<https://twitter.com/rickhasen/status/1072882239187312640>

Hey @johnpelwood<https://twitter.com/johnpelwood>. The Supreme Court seems almost certain to take the North Carolina partisan gerrymandering case (because it did find a gerrymander). It's now listed as "rescheduled" on the docket. Any chance of an order before the 1/4 conference? https://www.supremecourt.gov/docket/docketfiles/html/public/18-422.html …<https://t.co/fHlLxDJ2Vf> Thanks!
[https://pbs.twimg.com/profile_images/1066866245226553344/XfStxGSY_bigger.jpg]<https://twitter.com/johnpelwood>
<https://twitter.com/johnpelwood>
John Elwood at johnpelwood<https://twitter.com/johnpelwood>

My instinct is Court won't act before 1/4 conference. I suspect they'll reschedule until late January, so argument would come next fall. I doubt John Roberts wants to revisit an issue that flummoxed Court last time & have only April to June to decide. Better to have all of OT19.
<https://twitter.com/intent/like?tweet_id=1072897341005459457>
3<https://twitter.com/intent/like?tweet_id=1072897341005459457>
8:53 AM - Dec 12, 2018<https://twitter.com/johnpelwood/status/1072897341005459457>
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Such punting could leave North Carolina’s gerrymandered districts in place for the 2020 elections, perhaps mooting the entire controversy as we enter the new redistricting cycle.

UPDATE. Here’s Bob Barnes with an alternative theory<https://twitter.com/scotusreporter/status/1072917891073351680>:
[https://pbs.twimg.com/profile_images/1066866245226553344/XfStxGSY_bigger.jpg]<https://twitter.com/johnpelwood>
<https://twitter.com/johnpelwood>
John Elwood at johnpelwood<https://twitter.com/johnpelwood>

 · 11h<https://twitter.com/johnpelwood/status/1072897341005459457>
<https://twitter.com/johnpelwood/status/1072897341005459457>

Replying to @rickhasen<https://twitter.com/_/status/1072882239187312640>

My instinct is Court won't act before 1/4 conference. I suspect they'll reschedule until late January, so argument would come next fall. I doubt John Roberts wants to revisit an issue that flummoxed Court last time & have only April to June to decide. Better to have all of OT19.
[https://pbs.twimg.com/profile_images/378800000082664229/d1aa41b411da85811704203729a25ff0_bigger.jpeg]<https://twitter.com/scotusreporter>
<https://twitter.com/scotusreporter>
Robert Barnes<https://twitter.com/scotusreporter>
✔@scotusreporter<https://twitter.com/scotusreporter>

The Maryland case is expedited and will also be on the 1/4 conference, according to the lawyers. Might the justices have rescheduled NC so that they consider them together?
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5<https://twitter.com/intent/like?tweet_id=1072917891073351680>
10:15 AM - Dec 12, 2018<https://twitter.com/scotusreporter/status/1072917891073351680>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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See Robert Barnes's other Tweets<https://twitter.com/scotusreporter>

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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

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