[EL] ELB News and Commentary 12/19/18

[Rick Hasen]

Remember “American/Western Tradition Partnership” Involved in Montana Elections in Case that Went to SCOTUS? Looks Like the National Right to Work Committee Was Secretly Behind It, Violating Montana Campaign Finance Laws<https://electionlawblog.org/?p=102926>
Posted on December 19, 2018 9:36 am<https://electionlawblog.org/?p=102926> by Rick Hasen<https://electionlawblog.org/?author=3>

Montana Free Press<https://www.bozemandailychronicle.com/news/politics/documents-allege-right-to-work-s-involvement-in-montana-elections/article_1aab6fe2-d946-53ee-92c3-50e587440929.html>:

Thousands of newly uncovered documents and recently filed court records bolster already mounting evidence tying the anti-union National Right to Work Committee to the political activities of conservative nonprofit groups accused of improperly coordinating Republican legislative primary campaigns in Montana.

Emails, documents and affidavits recently obtained by Montana’s commissioner of political practices paint a detailed picture of how the national anti-union group oversaw the activities of American Tradition Partnership, the group at the center of allegations of illegal third-party influence in Montana Republican primary campaigns in 2008, 2010 and 2012.

The National Right to Work Committee is a 501©4 “social welfare” group that, according to the IRS, is not supposed to engage in “direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”
…

Tens of thousands of pages of emails obtained by Montana Commissioner of Political Practices Jonathan Motl show a link between top NRTWC officials and political campaign activities in Montana.

A former NRTWC employee said in a sworn affidavit filed in Helena District Court that NRTWC staff members were relocated to Montana to work on the 2010 primary campaign, and their work was overseen by the political director of the national organization, Dimitri Kesari. Emails provided to Motl show that National Right to Work Executive Director Jedd Coburn was in regular communication with the groups doing political work in Montana and provided text for candidates’ campaign materials.

Motl said this latest trove of information is significant because it proves ATP was not acting as an independent issue advocacy organization, as the group claimed, but was instead part of a massive, coordinated campaign machine funded by an out-of state organization with the goal of changing the makeup of the Montana Legislature.

“Christian LeFer was here as a field operative for National Right to Work. Once you get there, then National Right to Work’s central role is more apparent,” Motl said. “I don’t think you can underestimate the significance, or the threat, that a coordinated, funded, centralized corporate-take-over of candidates poses (to elections).”

Motl said that in 2008, when Western Tradition Partnership first entered the scene in Montana, and in 2010 when the group changed its name to American Tradition Partnership, most people, including a previous commissioner of political practices, believed the group was an independent entity.
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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<https://electionlawblog.org/?cat=29>


Interesting Petition at Supreme Court Raises Question Whether Campaign Finance Report Must List Ultimate Recipient of Campaign Money (in This Case, an Iowa State Senator Secretly Paid to Switch Endorsement to Ron Paul)<https://electionlawblog.org/?p=102924>
Posted on December 19, 2018 9:13 am<https://electionlawblog.org/?p=102924> by Rick Hasen<https://electionlawblog.org/?author=3>

Cert. petition in Kesari v. U.S.<https://www.supremecourt.gov/DocketPDF/18/18-606/71052/20181105145712460_Kesari%20Petition%20Nov%205%202018%20EFile.pdf>, awaiting a response<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-606.html> from the SG’s office.

This question of disclosing the ultimate recipient of campaign money could have relevance to the Trump hush money payments issue and other issues as well.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Partisan Gerrymandering, the First Amendment, and the Political Outsider”<https://electionlawblog.org/?p=102922>
Posted on December 19, 2018 9:03 am<https://electionlawblog.org/?p=102922> by Rick Hasen<https://electionlawblog.org/?author=3>

Bertrall Ross has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3286492> on SSRN (forthcoming Columbia Law Review). Here is the abstract:

The most recent call for judicial intervention into state partisan gerrymandering practices ran aground on the shoals of standing doctrine in Gill v. Whitford. The First Amendment stood at the center of this latest gerrymandering challenge. Democratic voters claimed that the legislative districting scheme infringed on their associational rights by denying their party an opportunity for fair representation in the state legislature. For the Gill majority, the voters’ alleged representational harm was the sort of generalized grievance that failed to satisfy standing’s particularized injury requirement.

Gill was the latest in a series of First Amendment freedom of association fights between partisan insiders — members or supporters of one of the two major political parties — that dates back to the 1970s. In these fights, the interests and needs of political outsiders — both nonvoters and those unaffiliated with the major political parties — have gone unheard and unaddressed. Political outsiders were not always marginalized in legal controversies involving the freedom of association. In fact, the Supreme Court originally constructed its First Amendment freedom of association doctrine in the 1950s to protect the political activity of dissident minority groups excluded from democratic politics.

In this Essay, I argue that advocates should return to the Court’s initial freedom of association concern with ensuring the inclusion of political outsiders’ voices in the democratic space. Gerrymandering can inflict multiple harms, on both insiders and outsiders. While partisan gerrymandering may deprive one political party of holding power in a way that corresponds to its electoral support in the jurisdiction (a “representational harm”), it can also prevent individuals who do not belong to the majority party in the gerrymandered districts from being able to effectively participate in elections (a “participatory harm”). Both political outsiders and members of the minority party experience this latter harm. I argue that the participatory harm should drive future gerrymandering challenges. Such claims could empower political outsiders, advance minority parties’ interest in fair representation, and overcome the standing obstacles laid out by the Court in Gill.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“Russia and Republicans attempt to suppress black vote, but Russians are slicker”<https://electionlawblog.org/?p=102920>
Posted on December 19, 2018 9:00 am<https://electionlawblog.org/?p=102920> by Rick Hasen<https://electionlawblog.org/?author=3>

Joe Davidson WaPo column.<https://www.washingtonpost.com/politics/2018/12/19/russia-republicans-attempt-suppress-black-vote-russians-are-slicker/?utm_term=.6434b41cfcf1>
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“Super PACs and Dark Money Groups Outspent Candidates in a Record Number of Races in 2018”<https://electionlawblog.org/?p=102918>
Posted on December 19, 2018 8:58 am<https://electionlawblog.org/?p=102918> by Rick Hasen<https://electionlawblog.org/?author=3>

Report<https://www.issueone.org/wp-content/uploads/2018/12/2018-outside-spending.pdf>:

As Democrats and Republicans battled for dominance in both the House of Representatives and the Senate in 2018, super PACs and dark money groups collectively outspent the candidates’ own campaigns in a recordbreaking 16 races, according to data provided to Issue One by the Center for Responsive Politics. Control of the House and Senate for the next two years was determined by a small number of elections in 2018. Super PACs and dark money groups focused most of their spending in these races. Democrats needed a net gain of 23 seats to win a majority in the House and a net gain of two seats to win control of the Senate. Democrats ultimately flipped the House, but Republicans added one seat to their majority in the Senate. The new data shows that candidates were outspent by outside groups in seven Senate races and nine House races. This amounted to more than half of the 13 competitive Senate contests and about 10 percent of the House races ranked as competitive by the Cook Political Report. Non-candidate, non-party groups have now outspent candidates in 48 congressional races since the Supreme Court’s 2010 Citizens United decision, with one-third of that total occurring in 2018. This phenomenon occurred 11 times in 2016, and only once in 2010, according to the Center for Responsive Politics.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


#NC09: “Attorney: Man at center of 9th District election investigation has violated no laws”<https://electionlawblog.org/?p=102916>
Posted on December 19, 2018 8:54 am<https://electionlawblog.org/?p=102916> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL:<https://www.wral.com/attorney-man-at-center-of-9th-district-election-investigation-has-violated-no-laws/18073005/>

The attorney for McCrae Dowless, the Bladen County political operative at the center of a state investigation into election irregularities in the 9th Congressional District, said Tuesday that her client “has not violated any state or federal campaign laws, and current ongoing investigations will prove the same.”

Editorial: Cooper offers legislators a deal they shouldn’t refuse<https://www.wral.com/editorial-cooper-offers-legislators-a-deal-they-shouldn-t-refuse/18073701/>:

Gov. Roy Cooper has offered North Carolina’s Republican legislative leaders a good deal on legislation to overhaul election, ethics and lobbying oversight — House Bill 1029.<https://www.ncleg.net/Sessions/2017/Bills/House/PDF/H1029v5.pdf> They will make a mistake to pass it up.

The current bill on the Democratic governor’s desk is fatally flawed. Cooper is right to veto it. Provisions to keep investigations into campaign violations secret are wrong. “This bill makes it harder to root out corruption in elections and campaign finance,” Cooper said.<https://www.wral.com/secrecy-provision-in-elections-board-bill-prompting-cooper-veto/18072490/>

If legislators remove those provisions Cooper says he’ll sign a new bill that will also resolve objections imposed by judges when an earlier version of the law failed legal challenges.
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Posted in campaigns<https://electionlawblog.org/?cat=59>


Michigan: “GOP bid to strip power from Democratic secretary of state likely dead”<https://electionlawblog.org/?p=102914>
Posted on December 19, 2018 8:49 am<https://electionlawblog.org/?p=102914> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit Free Press<https://www.detroitnews.com/story/news/politics/michigan/2018/12/18/michigan-house-kills-bid-strip-power-secretary-state/2358789002/>:

A Senate Republican power play proposal to shift campaign oversight from Democratic Secretary of State-elect Jocelyn Benson to a new political commission is poised to die in the Michigan House.

The House Elections Committee will not take up the controversial legislation when it meets Wednesday morning for the last time of the year, said Rep. Aaron Miller, who chairs the panel.

With two days left in the lame-duck session, the proposal is “dead” in committee, Miller, R-Sturgis, said late Tuesday. “No games are going to be played tomorrow. Full disclosure, those bills are not coming up tomorrow.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, election administration<https://electionlawblog.org/?cat=18>


“Embattled Florida elections official sues to get job back”<https://electionlawblog.org/?p=102912>
Posted on December 19, 2018 8:44 am<https://electionlawblog.org/?p=102912> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.tampabay.com/florida-politics/buzz/2018/12/18/embattled-florida-elections-official-sues-to-get-job-back/>
A former Florida elections official is asking a federal judge to reinstate her after she was removed from office by Gov. Rick Scott.
Embattled Broward elections supervisor Brenda Snipes filed a lengthy federal lawsuit on Monday against Scott and Senate President Bill Galvano.
The lawsuit contends that Snipes’ due process rights were violated and that the law allowing the governor to suspend elected officials is unconstitutional.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>


North Carolina Governor to Veto Bill Allowing a New Primary and General Election in #NC09 in the Event NC Elections Board Finds Fraud<https://electionlawblog.org/?p=102910>
Posted on December 18, 2018 1:08 pm<https://electionlawblog.org/?p=102910> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports. <https://apnews.com/48531575a9f2419c99b074d846b09f78>

As with the voter id bill, this one may be subject to a veto override.

Republicans want a new primary in case the Republican candidate, Mark Harris, is tainted by the allegations of fraud in Bladen County.
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Posted in campaigns<https://electionlawblog.org/?cat=59>


Trump Foundation Shutting Down in Settlement as NY AG Finds, Among Other Things, Illegal Coordination with the Trump Campaign<https://electionlawblog.org/?p=102907>
Posted on December 18, 2018 8:08 am<https://electionlawblog.org/?p=102907> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/trump-agrees-to-shut-down-his-charity-amid-allegations-he-used-it-for-personal-and-political-benefit/2018/12/18/dd3f5030-021b-11e9-9122-82e98f91ee6f_story.html?utm_term=.fca5a30cb578>:

New York Attorney General Barbara Underwood announced that the Donald J. Trump Foundation is dissolving as her office pursues its lawsuit against the charity, Trump and his three eldest children.

The attorney general’s suit, filed in June, alleged “persistently illegal conduct” at the charity and sought to have the foundation shut down. Underwood is continuing to seek more than $2.8 million in restitution and has asked a judge to ban the Trumps temporarily from serving on the boards of other New York nonprofits.

Underwood said Tuesday that her investigation found “a shocking pattern of illegality involving the Trump Foundation — including unlawful coordination with the Trump presidential campaign, repeated and willful self-dealing, and much more.”…

At one point, Trump used the charity’s money to make a $25,000 political donation to Florida Attorney General Pamela Bondi (R). The charity didn’t tell the IRS about that, as required — and instead listed that donation as a gift to a totally unrelated charity in Kansas with a similar name. Trump’s team blamed accounting mistakes.

During the 2016 campaign, state investigators allege, Trump effectively “ceded control” of his charity’s money to his political campaign. He raised more than $2 million at a fundraiser in Iowa that flowed into the foundation. Then, the state said, Trump campaign manager Corey Lewandowski determined when and where it would be given away.

“Is there any way we can make some disbursements . . . this week while in Iowa?” Lewandowski wrote in an email cited in Underwood’s lawsuit.

Trump gave away oversized checks from the foundation at campaign events in the key early-voting states of Iowa and New Hampshire, pausing his campaign rallies to donate to local veterans’ groups.

Federal law<https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations> prohibits charities from participating in political campaigns. As president, Trump has called repeatedly f<https://www.washingtonpost.com/news/wonk/wp/2017/12/14/in-small-win-for-democrats-the-final-tax-bill-wont-include-a-provision-to-allow-churches-to-endorse-political-candidates/?utm_term=.7f8d38076c4b>or that law to be repealed.

I’m wondering what the SDNY thinks about these Trump Foundation campaign finance violations, which don’t require reliance on the argument that paying hush money can be a campaign contribution. These violations seem straightforward
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“Ex-Trump adviser Roger Stone admits to spreading lies online in lawsuit settlement”<https://electionlawblog.org/?p=102905>
Posted on December 18, 2018 7:53 am<https://electionlawblog.org/?p=102905> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/news/us-news/ex-trump-advisor-roger-stone-admits-spreading-lies-online-lawsuit-n949151?cid=sm_npd_nn_tw_ma>
Former presidential adviser and longtime Republican operative Roger Stone admitted in federal court papers filed Monday that he has spread false information online.
In the settlement, which was first reported by the Wall Street Journal<https://www.wsj.com/articles/roger-stone-admits-spreading-lies-on-infowars-11545093097>, Stone retracted the information and apologized to Guo Wengui, an outspoken critic of the Chinese government also known as Miles Kwok.
A defamation lawsuit filed by Guo in May said Stone had used the far-right conspiracy theory site InfoWars to accuse Guo of making illegal political donations to Hillary Clinton and financing a presidential run by former Trump strategist Steve Bannon.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Editorial: N.C. GOP, more than state Elections Board, needs transparency”<https://electionlawblog.org/?p=102903>
Posted on December 18, 2018 7:51 am<https://electionlawblog.org/?p=102903> by Rick Hasen<https://electionlawblog.org/?author=3>

WRAL editorial:<https://www.wral.com/editorial-n-c-gop-leadership-more-than-state-elections-board-is-in-need-transparency/18071530/>

It is hard to imagine where the North Carolina GOP leadership found the gall to have the Ninth Congressional District Republican Executive Committee pass a “resolution” <https://www.wral.com/opinion/document/18071533/> demanding the State Board of Elections “immediately certify” <https://www.wral.com/gop-to-nc-elections-board-show-evidence-of-fraud-or-certify-9th-district-election/18070660/> Mark Harris the winner of that district’s disputed election.

These are the same politicians who have spent the last eight years rigging elections through hyper-partisan gerrymandering; mid-election changes in ballot order and candidate identification; placing illegal limits on early voting; passing voter ID legislation courts ruled targeted African-Americans with “surgical precision;” and more.

While purporting to push voter ID laws to thwart voter fraud, these same GOP leaders have expressed token concern about the very strong indications that mail-in absentee voting was manipulated – particularly in the Ninth District.
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“A Call to The Bar: Fight for The National Popular Vote Initiative<https://electionlawblog.org/?p=102901>
Posted on December 18, 2018 7:47 am<https://electionlawblog.org/?p=102901> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder<https://www.law.com/newyorklawjournal/2018/12/12/a-call-to-the-bar-fight-for-the-national-popular-vote-initiative/> in the NYLJ.
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Posted in electoral college<https://electionlawblog.org/?cat=44>


--
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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