[EL] ELB News and Commentary 7/28/18

Fri Jul 27 20:51:14 PDT 2018

“Liberal activists embrace ‘dark money’ in Supreme Court fight”<http://electionlawblog.org/?p=100337>
Posted on July 27, 2018 8:49 pm<http://electionlawblog.org/?p=100337> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/liberal-activists-embrace-dark-money-in-supreme-court-fight/2018/07/27/0b21582c-902a-11e8-bcd5-9d911c784c38_story.html?utm_term=.bfb09e6c494b>

Liberal activists, who were dramatically outspent in their last fight to fend off President Trump’s Supreme Court nominee, are embracing a tactic that has been a mainstay of the conservative political playbook: tapping a war chest financed by unidentified donors to try to influence judicial nominations.

Demand Justice, a new group run by former aides to Hillary Clinton and President Barack Obama, plans to raise and spend at least $5 million to try to block the confirmation of Brett M. Kavanaugh, Trump’s pick to replace Justice Anthony M. Kennedy. The group is housed within another nonprofit, allowing it to mask not only the names of its donors but the size of their contributions….

By far the most influential group on judicial nominations is the conservative Judicial Crisis Network, which works to fill judicial vacancies across the country, including in state supreme courts and appellate courts.

It spent $17 million opposing Obama’s nominee, D.C. Circuit Court Judge Merrick Garland, and supporting Trump’s previous pick, Supreme Court Justice Neil M. Gorsuch.

So far, it has spent $5.3 million on its pro-Kavanaugh campaign focused on states where Senate Democrats are most vulnerable in the 2018 midterms, according to the group. It is prepared to spend as much as $10 million or more.

It received $23.5 million from a separate nonprofit, the Wellspring Committee, which funds conservative causes and groups, according to Wellspring’s tax records. Most of the money Wellspring received that year came from a single $28.5 million donation — and the identity of that donor remains unknown publicly.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“The Stealth Campaign to Kill Off Obamacare”<http://electionlawblog.org/?p=100335>
Posted on July 27, 2018 8:39 pm<http://electionlawblog.org/?p=100335> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/07/27/business/the-stealth-campaign-to-kill-off-obamacare.html?rref=collection%2Fsectioncollection%2Fbusiness&action=click&contentCollection=business&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=sectionfront>

In 2010, before the Affordable Care Act was passed by Congress, the pharmaceutical industry’s top lobbying group was a very public supporter of the measure. It even helped fund a multimillion-dollar TV ad campaign<https://www.nytimes.com/2009/08/09/health/policy/09lobby.html>backing passage of the law.

But last year, when Republicans mounted an aggressive effort to repeal the law, the group made a point of staying outside the fray. “We’ve not taken a position,” Stephen Ubl, head of the organization, the Pharmaceutical Research and Manufacturers of America, known as PhRMA, said in an interview in March 2017.

That stance, however, was at odds with its financial support of another group, the American Action Network, which was heavily involved in the effort to repeal the act, often referred to as Obamacare. The network spent an estimated $10 million<https://americanactionnetwork.org/press/american-action-network-launches-one-million-robocalls-support-american-health-care-act/> on an ad campaign designed to build voter support for its elimination…

PhRMA was one of AAN’s biggest donors the previous year, giving it $6.1 million, federal regulatory filings show<https://www.documentcloud.org/documents/4328046-PhRMA2016-990-SEARCHABLE.html>. And PhRMA had a substantial interest in the outcome of the repeal efforts. Among other actions, the Republican-backed health bill would have eliminated a fee the companies pay the federal government, one estimated at $28 billion<https://www.jct.gov/publications.html?func=startdown&id=5000> over a decade.

But there was no way the public could have known at the time about PhRMA’s support of the network or the identity of other deep-pocketed financiers behind the group.

Unlike groups receiving its funds, PhRMA and similar nonprofits must report the grants in their own Internal Revenue Service filings. But the disclosures don’t occur until months or sometimes more than a year after the donation.
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Posted in tax law and election law<http://electionlawblog.org/?cat=22>

“Companies must align political contributions with core values”<http://electionlawblog.org/?p=100332>
Posted on July 27, 2018 8:36 pm<http://electionlawblog.org/?p=100332> by Rick Hasen<http://electionlawblog.org/?author=3>

Daniel Bross and Bruce Freed SF Chronicle oped:<https://www.sfchronicle.com/politics/article/Companies-must-align-political-contributions-with-13109229.php>

The Center for Political Accountability’s new study, “Collision Course<http://politicalaccountability.net/reports/cpa-reports/collision-course-the-risks-companies-face-when-their-political-spending-and-core-values-conflict-and-how-to-address-them>: The Risks Companies Face When Their Political Spending and Core Values Conflict and How to Address Them,” argues that when companies contribute to political campaigns, they expose themselves to potential risk if policy outcomes clash with core company values and policies. Look no further than the more than 200 CEOs demanding repeal of a North Carolina law that blocked transgender individuals from using restrooms in publicly owned buildings that correspond to their gender identity.

Shortly after the measure was enacted in 2016, a Huffington Post article<https://www.huffingtonpost.com/entry/corporations-lgbt-north-carolina_us_5720f5f4e4b0b49df6a9d76d>skewered 45 corporations publicly opposing the law for helping to elect the law’s supporters. Those companies had donated generously to a national political committee, allowed under law to accept direct corporate contributions, that helped switch partisan control of the North Carolina legislature in the 2010 election. The group spent at least $1.6 million to affect the state’s legislative elections from 2010 through 2015.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Possible new election twist for voters who want to rank more than 3 choices: Try 10”<http://electionlawblog.org/?p=100330>
Posted on July 27, 2018 7:35 pm<http://electionlawblog.org/?p=100330> by Rick Hasen<http://electionlawblog.org/?author=3>

The SF Chronicle reports.<https://www.sfchronicle.com/bayarea/article/Possible-new-election-twist-for-voters-who-want-13109151.php?utm_campaign=email-premium&utm_source=CMS%20Sharing%20Button&utm_medium=social>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“Voter system glitch let 11,000 non-citizens register in Pennsylvania”<http://electionlawblog.org/?p=100327>
Posted on July 27, 2018 4:38 pm<http://electionlawblog.org/?p=100327> by Rick Hasen<http://electionlawblog.org/?author=3>

Philly Inquirer:<http://www.philly.com/philly/news/voter-system-glitch-pennsylvania-non-citizens-registration-motor-voter-20180727.html>

More than 11,000 non-citizens who weren’t eligible to register to vote in Pennsylvania since the mid-1990s inadvertently registered because of an oversight in the Pennsylvania Department of Transportation’s motor-voter system, a State Department analysis revealed.

The thousands of potentially ineligible voters on the rolls prompted the agency to undertake a process of confirming registrations, which resulted in 2,500 people being removed from the list recently. But about 8,700 of those registrants remain on the rolls across 64 counties, and those counties will now be tasked with confirming their eligibility or removing them from the rolls….

It is not yet clear if any — or how many — of the more than 11,000 registrants cast an illegal vote in an election, or if any illegal ballots were cast in the May primary, which the department indicated beforehand it was trying to prevent….

Murren said the agency has “no further information” about illegal votes beyond figures released last fall, when the State Department announced that noncitizens may have cast 544 ballots illegally out of more than 93 million ballots from 2000 through 2017. Those illegal ballots — one in every 172,000 votes — were revealed after the ineligible registrants reported themselves as having mistakenly registered, the department has said.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“Trump admin has no central strategy for election security, and no one’s in charge”<http://electionlawblog.org/?p=100325>
Posted on July 27, 2018 2:55 pm<http://electionlawblog.org/?p=100325> by Rick Hasen<http://electionlawblog.org/?author=3>

NBC News:<https://www.nbcnews.com/politics/elections/trump-admin-has-no-central-strategy-election-security-no-one-n895256>

After nearly two years of calling Russian election interference<https://www.nbcnews.com/politics/elections/russians-penetrated-u-s-voter-systems-says-top-u-s-n845721> a hoax and its investigation a witch hunt, on Friday afternoon President Donald Trump is scheduled to preside over the first National Security Council meeting devoted to defending American democracy from foreign manipulation.

Nineteen months into his presidency, there is no coherent Trump administration strategy to combat foreign election interference — and no single person or agency in charge, current and former officials tell NBC News.

Today’s meeting, by the way, lasted less than 30 minutes. <https://twitter.com/rickhasen/status/1022935619524280323>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

None of the Six Republican Candidates for Kansas Secretary of State Sees Voter Fraud as a Major Problem (as SOS Kobach Has Falsely Claimed)<http://electionlawblog.org/?p=100322>
Posted on July 27, 2018 2:20 pm<http://electionlawblog.org/?p=100322> by Rick Hasen<http://electionlawblog.org/?author=3>

Interesting contrast:<https://www.kansas.com/news/politics-government/election/article215224575.html>

The candidates largely agreed that voter fraud is not a systemic issue but committed themselves to enforcing the state’s election laws. They also said they want to focus on improving the less-talked-about administrative side of the office, such as the state’s publications and business database and registration systems.

Update:

Maybe that’s not quite right:
[https://pbs.twimg.com/profile_images/947625143798415360/l_NAmVap_bigger.jpg]<https://twitter.com/rickhasen>
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 3h<https://twitter.com/rickhasen/status/1022993185797156866>
<https://twitter.com/rickhasen/status/1022993185797156866>

Replying to @Taniel<https://twitter.com/_/status/1022991726632419328>

https://twitter.com/rickhasen/status/1022955118835236864 …<https://t.co/tJY1mfWCUX>
[https://pbs.twimg.com/profile_images/538548703527575552/9v70-cFQ_bigger.jpeg]<https://twitter.com/Taniel>
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Taniel<https://twitter.com/Taniel>
✔@Taniel<https://twitter.com/Taniel>

at least this county commissioner (running as a Republican) says he wants to go further than Kobach-like laws to audit the voter rolls & identify noncitizens, though: https://twitter.com/Taniel/status/1022862656246562816 …<https://t.co/LwxfFczsUp>
<https://twitter.com/Taniel/status/1022862656246562816>
Taniel<https://twitter.com/Taniel/status/1022862656246562816>
✔@Taniel<https://twitter.com/Taniel/status/1022862656246562816>

Some Republicans running to replace Kris Kobach are trying to out-Kobach him. See:

Dennis Taylor says the "proof of citizenship" law was insufficient. He now wants to "audit election eligibility:" check if passports are phony, investigate every person...http://www.abilene-rc.com/news/republicans-campaign-for-secretary-of-state/article_b0ed94bc-90d6-11e8-a865-fb17b6168841.html …<https://twitter.com/Taniel/status/1022862656246562816>
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4:55 PM - Jul 27, 2018<https://twitter.com/Taniel/status/1022993962083213312>

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Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

Oklahoma Law Review Symposium: “Falsehoods, Fake News, and the First Amendment”<http://electionlawblog.org/?p=100320>
Posted on July 27, 2018 2:11 pm<http://electionlawblog.org/?p=100320> by Rick Hasen<http://electionlawblog.org/?author=3>

This<https://digitalcommons.law.ou.edu/olr/vol71/iss1/> definitely looks worth diving into soon:

Volume 71, Number 1 (2018)
Symposium: Falsehoods, Fake News,
and the First Amendment

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1339&context=olr>

Editor’s Introduction<https://digitalcommons.law.ou.edu/olr/vol71/iss1/1>
Mitchell B. Bryant

Panel 1: Falsehoods and the First Amendment

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1340&context=olr>

False Speech and the First Amendment<https://digitalcommons.law.ou.edu/olr/vol71/iss1/2>
Erwin Chemerinsky

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1341&context=olr>

An Introductory Essay: Old Principles for an (Allegedly) Brave New World<https://digitalcommons.law.ou.edu/olr/vol71/iss1/3>
Harry F. Tepker

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1342&context=olr>

Truth, Courage, and Other Human Dispositions: Reflections on Falsehoods and the First Amendment<https://digitalcommons.law.ou.edu/olr/vol71/iss1/4>
Jonathan D. Varat

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1343&context=olr>

Lies, Line Drawing, and (Deep) Fake News<https://digitalcommons.law.ou.edu/olr/vol71/iss1/5>
Marc Jonathan Blitz

Panel 2: Election Lies

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1344&context=olr>

(At Least) Thirteen Ways of Looking at Election Lies<https://digitalcommons.law.ou.edu/olr/vol71/iss1/6>
Helen Norton

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1345&context=olr>

Legislating Against Lying in Campaigns and Elections<https://digitalcommons.law.ou.edu/olr/vol71/iss1/7>
Joshua S. Sellers

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1346&context=olr>

Free Speech and Domain Allocation: A Suggested Framework for Analyzing the Constitutionality of Prohibition of Lies<https://digitalcommons.law.ou.edu/olr/vol71/iss1/8>
James Weinstein

Panel 3: The Brave New World of Free Speech

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1347&context=olr>

Forward into the Past: Speech Intermediaries in the Television and Internet Ages<https://digitalcommons.law.ou.edu/olr/vol71/iss1/9>
Gregory P. Magarian

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1348&context=olr>

The Right to Receive Foreign Speech<https://digitalcommons.law.ou.edu/olr/vol71/iss1/10>
Joseph Thai

PDF<https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1349&context=olr>

Suing the President for First Amendment Violations<https://digitalcommons.law.ou.edu/olr/vol71/iss1/11>
Sonja R. West
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Is Lying About an Election Free Speech or Fraud?”<http://electionlawblog.org/?p=100318>
Posted on July 27, 2018 2:05 pm<http://electionlawblog.org/?p=100318> by Rick Hasen<http://electionlawblog.org/?author=3>

Matt Ford<https://newrepublic.com/article/150265/lying-election-free-speech-fraud> for The New Republic.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“US Supreme Court weighs in: We’ve all been pronouncing ‘gerrymander’ wrong”<http://electionlawblog.org/?p=100316>
Posted on July 27, 2018 1:01 pm<http://electionlawblog.org/?p=100316> by Rick Hasen<http://electionlawblog.org/?author=3>

This is fun.<https://www.bostonglobe.com/metro/2018/07/27/supreme-court-weighs-all-been-pronouncing-gerrymander-wrong/AJpMaamc4ZZVIOLYNH24pK/story.html>
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Steve Annear<https://twitter.com/steveannear>
✔@steveannear<https://twitter.com/steveannear>

<https://twitter.com/steveannear/status/1022894895814590467>

Marblehead sent a letter to the Supreme Court calling them out for saying "gerrymandering" wrong. (Technically, everyone does).

And the court responded: http://bos.gl/6vmYunG <https://t.co/ckicH0OpTi>
10:22 AM - Jul 27, 2018<https://twitter.com/steveannear/status/1022894895814590467>

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Posted in redistricting<http://electionlawblog.org/?cat=6>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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