[EL] ELB News and Commentary 6/1/18

Fri Jun 1 09:00:18 PDT 2018

“The Equal Rights Amendment Was Just Ratified by Illinois. What Does That Mean?”<http://electionlawblog.org/?p=99291>
Posted on June 1, 2018 8:58 am<http://electionlawblog.org/?p=99291> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2018/05/31/us/equal-rights-amendment-illinois.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=10&pgtype=sectionfront>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Huntington Beach asks court to dismiss its lawsuit challenging resident’s petition for local gun ban”<http://electionlawblog.org/?p=99289>
Posted on June 1, 2018 8:52 am<http://electionlawblog.org/?p=99289> by Rick Hasen<http://electionlawblog.org/?author=3>

LAT reports.<http://www.latimes.com/socal/daily-pilot/news/tn-dpt-me-injunction-20180531-story.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“My Incredibly Bizarre Email Exchange With AL Sec. of State John Merrill: ‘BradCast’ 5/31/2018”<http://electionlawblog.org/?p=99287>
Posted on June 1, 2018 8:43 am<http://electionlawblog.org/?p=99287> by Rick Hasen<http://electionlawblog.org/?author=3>

Brad Blog:<http://bradblog.com/?p=12593>

All of which brings us to last week, when a federal court in New York determined that public officials — in that case, the President of the United States — was in violation of the Constitution’s First Amendment for blocking perceived “political opponents” on Twitter. (My interview with one of the plaintiffs in that case is here<http://bradblog.com/?p=12516>.)

Before we covered the ruling on a BradCast last week<http://bradblog.com/?p=12588> with University of Kentucky College of Law constitutional expert Joshua A. Douglas, who had also been blocked by Merrill (my interview with him on that earlier last year is here<http://bradblog.com/?p=12426>), I sought comment from the Secretary as to whether he intended to restore those he’d blocked, given the federal court ruling.

The subsequent string of bizarre emails [PDF]<http://bradblog.com/Docs/BradFriedman_JohnMerrill_EmailThread_053018_REDACTED.pdf> and phone calls I then received from the state’s top election official is remarkable, and we share those on today’s show, in the interest of Alabama voters who head to the polls next week.

In addition to steadfastly refusing to unblock the election law experts and journalists he’s blocked on Twitter, Merrill unleashes a number of unhinged and often inexplicable rants in response to polite queries about both the Twitter blocks and whether Merrill has asked county election officials to set their vote tabulation computers to preserve scanned ballot images in the upcoming primary, in order to make public oversight of results somewhat easier.

At several points, Merrill’s Deputy Chief of Staff and Communications Director John Bennett attempted to intercede via both email and phone. As I explain on the show today, the call from Bennett was very pleasant and he seemed to me, in truth, somewhat embarrassed by his boss’ behavior. But he promised to get back to me after looking into both the Twitter ruling and the issue of Alabama’s ES&S computer tabulation systems capturing digital ballot images. A note he sent shortly thereafter confirmed that they do. (See the PDF linked above for details.)

But, then Merrill blew things up again, with another string of emailed rants. Among the odd attacks from the emails in which the first term Sec. of State describes himself as “a nationally recognized expert in the field of elections”, Merrill charges that I have a “problem…bigger than one that I have the ability to solve” (but refuses to specify what that “problem” might be), that I live with my mother (I don’t), “has absolutely no idea what [I’m] talking about” (despite some 15 years of covering elections and voting systems as a journalist), and should try to “get a job with an elections program system” so I can “contribute to the discussion as an expert in the field”. That’s just a taste.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“New York Judge Declares a Mistrial in Ex-County Executive’s Bribery Case”<http://electionlawblog.org/?p=99285>
Posted on June 1, 2018 8:41 am<http://electionlawblog.org/?p=99285> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/new-york-judge-declares-a-mistrial-in-ex-county-executives-bribery-case-1527797169?emailToken=1669ea289dd959c3cc4e2c50ee6c2af76n9QBInugPAdijoCft11fOhj8WIaRzfXQw2/hjHBUW6JqmfmQ2h0EQjx2ZgLt0ziicdRESWUCkthVPrFQ4sZJ8He2JR8g65BGxAFIHDBGqcKdAcHEbZ1PUJF5LhC3oTUoxwxTbSaOuEjFQH2YhsniA%3D%3D&reflink=article_email_share>

A Long Island judge on Thursday declared a mistrial in the case of Edward Mangano, the former Nassau County executive accused of public-corruption crimes, after the jury failed to reach a unanimous verdict.

Federal prosecutors said they would retry the case, which had offered a window into what they had called the county’s pay-to-play culture.
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Posted in bribery<http://electionlawblog.org/?cat=54>

Jonathan Tobin Blames Voting Rights Act, Liberal Judges for Republican Gerrymandering<http://electionlawblog.org/?p=99283>
Posted on June 1, 2018 8:38 am<http://electionlawblog.org/?p=99283> by Rick Hasen<http://electionlawblog.org/?author=3>

Here at the National Review.<https://www.nationalreview.com/2018/05/gerrymandering-examples-caused-liberal-judges/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-05-31&utm_term=NR5PM%20Actives>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Ex-FBI honcho blasts Trump over Blagojevich”<http://electionlawblog.org/?p=99281>
Posted on June 1, 2018 7:51 am<http://electionlawblog.org/?p=99281> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2018/05/31/trump-blagojevich-pardon-fbi-mueller-comey-616113>

A top former FBI official accused President Donald Trump of acting out of spite against federal law enforcement after the president suggested Thursday he might commute former Illinois Gov. Rod Blagojevich’s 14-year prison term.

Robert Grant, a longtime colleague and friend of special counsel Robert Mueller who headed the FBI’s Chicago office at the time of the Blagojevich investigation, told POLITICO in an interview that Trump is working to upend the FBI’s work as personal revenge for the special counsel probe he’s facing.

“It’s so disheartening to think that the president of the United States would overturn the evidence heard by a judge and jury, all out of an animus toward Bob Mueller, James Comey and [former U.S. Attorney] Pat Fitzgerald,” said Grant, who is now retired from the FBI. “Blagojevich got caught by wiretaps and microphones and he was engaging in a practice that we believed he was taking part in for quite awhile … I don’t think anybody who listened to those tapes would think anything but it was an incredibly corrupt governor who was dealing with corrupt associates.”
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Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>

“Increasing Trust in Elections”<http://electionlawblog.org/?p=99279>
Posted on June 1, 2018 7:49 am<http://electionlawblog.org/?p=99279> by Rick Hasen<http://electionlawblog.org/?author=3>

Tammy Patrick<http://www.electionline.org/index.php/electionline-weekly> with the lead story in this week’s Electionline.
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Posted in election administration<http://electionlawblog.org/?cat=18>

David Brooks Calls for Ranked Choice Voting in Multimember Districts<http://electionlawblog.org/?p=99277>
Posted on June 1, 2018 7:48 am<http://electionlawblog.org/?p=99277> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT column.<https://www.nytimes.com/2018/05/31/opinion/voting-reform-partisanship-congress.html>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

“The D’Souza Pardon, Briefly Explained”<http://electionlawblog.org/?p=99274>
Posted on May 31, 2018 2:44 pm<http://electionlawblog.org/?p=99274> by Rick Hasen<http://electionlawblog.org/?author=3>

Brian Svoboda blogs.<https://www.lawandpoliticsupdate.com/2018/05/the-dsouza-pardon-briefly-explained/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Virginia Supreme Court upholds 11 challenged state legislative districts”<http://electionlawblog.org/?p=99272>
Posted on May 31, 2018 2:42 pm<http://electionlawblog.org/?p=99272> by Rick Hasen<http://electionlawblog.org/?author=3>

Richmond Times-Dispatch:<http://www.richmond.com/news/virginia/government-politics/virginia-supreme-court-upholds-challenged-state-legislative-districts/article_d192faf3-455d-572f-8a63-5e2e13b8a71c.html>

The Supreme Court of Virginia declined to set aside a ruling that upheld 11 General Assembly districts that were challenged as being designed for political purposes.

In the Thursday ruling<http://www.courts.state.va.us/opinions/opnscvwp/1170697.pdf>, the state’s high court upheld a March ruling by Richmond Circuit Court Judge W. Reilly Marchant.

Redistricting reform group OneVirginia2021 brought the lawsuit and both rulings are a setback for those who want to take politics out of district line drawing, which is done by the Virginia General Assembly and approved by the governor.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Trump Lawyers at Jones Day Resist Discovery Demand in DNC Hack Suit”<http://electionlawblog.org/?p=99270>
Posted on May 31, 2018 2:33 pm<http://electionlawblog.org/?p=99270> by Rick Hasen<http://electionlawblog.org/?author=3>

NLJ:<https://www.law.com/nationallawjournal/2018/05/31/trump-lawyers-at-jones-day-resist-discovery-demand-in-dnc-hack-suit/?cmp=share_twitter&kw=Trump%20Lawyers%20at%20Jones%20Day%20Resist%20Discovery%20Demand%20in%20DNC%20Hack%20Suit&et=editorial&bu=National%20Law%20Journal&cn=20180531&src=EMC-Email&pt=Breaking%20News>

President Donald Trump’s campaign lawyers at Jones Day<https://www.law.com/law-firm-profile?id=163&name=Jones-Day> pushed back Thursday against a nonprofit group’s pursuit of documents related to the 2016 hack of the Democratic National Committee, assailing the request as a “last-ditch effort to launch a fishing expedition into the president’s and the campaign’s files.”

The new court filing<https://assets.documentcloud.org/documents/4489831/Trump-Discovery-DNC-20180531.pdf> by the Trump campaign’s outside legal team came in response to a lawsuit alleging<https://at.law.com/UnswSc?cmp=share_twitter> that the Trump campaign and one of its high-profile informal advisers, Roger Stone, conspired with Russia and WikiLeaks to publicly release emails stolen from Democratic National Committee servers in the District of Columbia.

The lawsuit<https://assets.documentcloud.org/documents/3893512/Protect-Democracy-20170712.pdf>, organized by the nonprofit Protect Democracy Project and filed in Washington federal district court, claims the release of the emails caused emotional stress and harm to a pair of DNC donors and a former staff member of the committee—all named plaintiffs in the case—whose emails and sensitive personal information were obtained in the breach.

The Jones Day legal team, including partner Michael Carvin, said the discovery process would interfere with the ongoing criminal investigation of Russian interference in the 2016 election. Robert Mueller III, the special counsel leading the investigation, would be forced to coordinate “not just with congressional committees but also with these private plaintiffs.”

“Discovery also threatens to prejudice individuals who have been or will be indicted, by potentially requiring them to sit for civil depositions despite their privilege against self-incrimination,” Carvin wrote.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“The Return of the Spoils System”<http://electionlawblog.org/?p=99268>
Posted on May 31, 2018 9:12 am<http://electionlawblog.org/?p=99268> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza Newlin Carney<http://prospect.org/article/return-spoils-system> for TAP.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Appeals court yet to rule on Wisconsin voter ID and other election laws after 16 months”<http://electionlawblog.org/?p=99266>
Posted on May 31, 2018 9:00 am<http://electionlawblog.org/?p=99266> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2018/05/31/appeals-court-yet-rule-voter-id-election-laws-after-16-months/656115002/>

More than a year after hearing arguments, a federal appeals court has yet to rule on a host of Wisconsin voting laws, including aspects of the state’s voter ID statute.

The long delay has left some scratching their heads and raised questions about whether the court will act before this year’s elections, including the fast-approaching Aug. 14 primary.

“It is rare but not unprecedented for a case to take this long,” said Joshua Douglas, a University of Kentucky College of Law professor. “I do think it’s very weird and I’m very surprised it has taken this long.”

What’s at issue has only grown more complicated. In one recent development, the state sued a voting rights group to try to prevent it from contacting voters who have had difficulty getting free state IDs….

Typically, courts don’t like to change voting rules close to an election, but Douglas, Stephanopoulos and Rick Hasen, an election law professor at the University of California, Irvine, said they believed there was still time for the appeals court to act this election cycle.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Trump says he will pardon Dinesh D’Souza, an Obama critic who violated campaign limits”<http://electionlawblog.org/?p=99264>
Posted on May 31, 2018 8:57 am<http://electionlawblog.org/?p=99264> by Rick Hasen<http://electionlawblog.org/?author=3>

USA Today:<https://www.usatoday.com/story/news/politics/2018/05/31/dinish-dsouza-latest-beneficiary-trump-pardon-power/658961002/>

 President Trump said Thursday he would pardon conservative commentator Dinesh D’Souza, convicted in 2014 of making illegal campaign contributions.

“Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!” Trump tweeted Thursday<https://twitter.com/realDonaldTrump/status/1002177521599860736> as he headed to Texas.

D’Souza is serving five years probation<https://www.usatoday.com/story/news/politics/2014/09/23/obama-critic-dinesh-dsouza-sentenced/16094107/> for making illegal campaign contributions in the names of others to support the candidacy of Republican New York Senate candidate Wendy Long, who lost to Sen. Kirsten Gillibrand. Those straw donations allowed him to give $20,000 in illegal contributions to the campaign, exceeding the $5,000 legal limit.

D’Souza pleaded guilty to the charge. And though he argued that he was being selectively prosecuted because of his attacks on President Barack Obama, he later backed off the claim at his sentencing.

“I’m sorry for what I did. I have never said otherwise,” he said. “I have never even said I am being selectively prosecuted. I feared that I was being.”

The D’Souza pardon would continue Trump’s use of clemency power to correct what he perceives as unjust, politically motivated prosecutions. But they also come amid investigations into his own campaign and inner circle — including a probe into whether his personal attorney, Michael Cohen, violated the law when he illegally paid off a porn star who said she had a relationship with Trump.

Rick Hasen, a University of California, Irvine law professor who specializes in election law, said the pardon sends “yet another signal to Michael Cohen and others about the possibility of a Trump pardon — and this one, like potentially Cohen’s case — involves campaign finance violations.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Bill Whitford on District-Specific Gerrymandering Claims<http://electionlawblog.org/?p=99261>
Posted on May 31, 2018 8:08 am<http://electionlawblog.org/?p=99261> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

The following is a guest post from Bill Whitford, a retired law professor at the University of Wisconsin and the lead plaintiff in Gill v. Whitford:

Richard Pildes<http://electionlawblog.org/?p=99131> recently suggested that while the Supreme Court may begin subjecting partisan gerrymanders to constitutional restraints, it will require an evaluation of partisan excess that proceeds on a district-by-district basis.  In our case, Gill v.Whitford, we have proposed a statewide analysis that compares statewide votes to seats.  At first glance it may appear that a district-by-district approach would be a less intrusive limitation on what has traditionally been a legislative function (redistricting).  In fact, a district-by-district approach will involve the courts in many of the problems that historically made them reluctant to place constitutional restraints on partisan gerrymanders, and to a much greater degree than if the courts proceeded on a statewide analysis.

A district-by-district approach to state legislative apportionments invites proponents of the disadvantaged party (Democrats in Wisconsin) to challenge many districts, in order to flip party control in the legislature.  The latter is the only thing that really matters in determining legislative output.  That in turn is going to place a tremendous burden on trial courts, all of whom will be three judge district courts.  Either there will be many separate cases, or one massive case involving many districts (at least 20 districts in Wisconsin).  Each case will have to get into the details of how the district lines of particular districts were chosen, what alternatives were rejected, and so forth.  I can easily imagine two days of trial time per district (one day per side to present evidence), but suppose we cut that estimate in half.  That still leaves a 3 to 4 week trial, with three judges who will not be able to work on other cases during that period.  That presents a very concrete manageability issue at the trial court level.

Furthermore, there aren’t clear ways to evaluate whether a single district is a partisan gerrymander.  Just because the district is flipped from one party to another shows little, as it may be part of an effort to correct a previous gerrymander.  Moreover, one district’s lines are also the lines of other districts, and so some kind of statewide analysis will be needed just to decide whether the apportionment of one district represents an excess partisan gerrymander or rather a necessary accommodation for legitimate redistricting concerns elsewhere in the State.  Because the standard for so deciding specific district cases is necessarily subjective, there is great likelihood that each judicial result will be evaluated, by both scholarly and popular commentary, as a product of the judges’ political allegiances.  This is precisely the concern that Chief Judge Roberts expressed at oral argument<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_bpm1.pdf> in our case.  Under a statewide approach, there are more objective tests of excessive partisanship, such as the efficiency gap, the mean-median difference, and comparison of the votes/seats mismatch with the votes/seats ratios of randomly drawn computer maps using non-partisan criteria.

Finally, precisely because the standard used under a district-by-district analysis is necessarily subjective, there is very likely to be a plausible appeal directly to the Supreme Court in almost every case.  The Court has already experienced this in the racial gerrymandering cases. The Court can avoid hearing these cases only by summarily affirming the trial court (or in a few cases by summarily reversing).  But because these cases bring with them intense political interest, and often significant consequences, summary disposition will often be difficult.  This is not good for the Supreme Court’s workload.  It may present a real manageability issue at the Supreme Court level.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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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