[EL] ELB News and Commentary 6/5/18

[Rick Hasen]

“The Cybersecurity 202: Voters’ distrust of election security is just as powerful as an actual hack, officials worry”<http://electionlawblog.org/?p=99330>
Posted on June 5, 2018 7:29 am<http://electionlawblog.org/?p=99330> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/06/05/the-cybersecurity-202-voters-distrust-of-election-security-is-just-as-powerful-as-an-actual-hack-officials-worry/5b1567091b326b08e883912f/?utm_term=.62e1bb367fd7>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99330&title=%E2%80%9CThe%20Cybersecurity%20202%3A%20Voters%E2%80%99%20distrust%20of%20election%20security%20is%20just%20as%20powerful%20as%20an%20actual%20hack%2C%20officials%20worry%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“David Koch is leaving Koch Industries, stepping down from Americans for Prosperity”<http://electionlawblog.org/?p=99328>
Posted on June 5, 2018 7:27 am<http://electionlawblog.org/?p=99328> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo: <https://www.washingtonpost.com/news/powerpost/wp/2018/06/05/david-koch-is-leaving-koch-industries-stepping-down-from-americans-for-prosperity/?utm_term=.39c66842d617>

David Koch, one of the two billionaire brothers at the helm of the powerful conservative political network, is retiring from his family’s conglomerate, Koch Industries, and stepping down as chairman of the Americans for Prosperity Foundation.

His brother, Charles Koch, announced in a letter to employees of Koch Industries on Tuesday that David Koch’s health has been in decline since he was hospitalized last summer. He was not specific about the illness.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99328&title=%E2%80%9CDavid%20Koch%20is%20leaving%20Koch%20Industries%2C%20stepping%20down%20from%20Americans%20for%20Prosperity%E2%80%9D>
Posted in election law biz<http://electionlawblog.org/?cat=51>


Donald Trump Apparently Complying with Twitter Declaratory Judgment, Unblocking Plaintiffs (Which He Does Not Have to Do)<http://electionlawblog.org/?p=99324>
Posted on June 5, 2018 7:17 am<http://electionlawblog.org/?p=99324> by Rick Hasen<http://electionlawblog.org/?author=3>

DOJ has appealed<https://www.politico.com/story/2018/06/04/justice-department-appeals-court-ruling-on-trump-twitter-blocking-case-624160> the court ruling that President Trump cannot block people on Twitter. But the real news, as flagged by Cristian Farias<https://twitter.com/cristianafarias/status/1003997062227202048>, is that the President apparently has unblocked the plaintiffs in the lawsuit in the interim.

This unblocking is not something he has to do, and shows a compliance with the court decision that I wasn’t expecting.  As I blogged<http://electionlawblog.org/?p=99174> on May 24:

Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. “Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”….

The court is right that ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary (note the “at this time” language in the court opinion). It is a “myth” that declaratory judgments are milder, as Sam Bray argues<https://scholarship.law.duke.edu/dlj/vol63/iss5/2/>. And it made sense here for the court to piggy-back off that myth.

And yet, Donald Trump is a known norm breaker who has attacked the courts when they have decided against. It will be interesting to watch if the implicitly coercive declaratory judgment is enough to get Donald Trump to comply. Stephen Colbert even joked about it on The Late Show last night.

If Trump doesn’t comply, then we get into dicier territory, where an angrier judge can order Trump to comply and we will see what happens (as the President likes to say). Of course, this could all be mooted if the Second Circuit reverses on the merits on appeal….


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99324&title=Donald%20Trump%20Apparently%20Complying%20with%20Twitter%20Declaratory%20Judgment%2C%20Unblocking%20Plaintiffs%20(Which%20He%20Does%20Not%20Have%20to%20Do)>


Posted in Remedies<http://electionlawblog.org/?cat=57>


“Las Cruces City Council adopts ranked-choice voting”<http://electionlawblog.org/?p=99321>
Posted on June 5, 2018 7:08 am<http://electionlawblog.org/?p=99321> by Rick Hasen<http://electionlawblog.org/?author=3>

Gannett reports.<https://www.lcsun-news.com/story/news/local/2018/06/04/las-cruces-city-council-adopts-ranked-choice-voting/671612002/>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99321&title=%E2%80%9CLas%20Cruces%20City%20Council%20adopts%20ranked-choice%20voting%E2%80%9D>
Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


“Victory! Secretary of State of Arizona Agrees to Shed Burdensome Voting Requirement Following CLC Lawsuit”<http://electionlawblog.org/?p=99319>
Posted on June 4, 2018 4:34 pm<http://electionlawblog.org/?p=99319> by Rick Hasen<http://electionlawblog.org/?author=3>

Press release.<http://www.campaignlegalcenter.org/news/press-releases/victory-secretary-state-arizona-agrees-shed-burdensome-voting-requirement>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99319&title=%E2%80%9CVictory!%20Secretary%20of%20State%20of%20Arizona%20Agrees%20to%20Shed%20Burdensome%20Voting%20Requirement%20Following%20CLC%20Lawsuit%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Ala. Secretary of State after Trump Twitter ruling: ‘I’m not unblocking anybody'”<http://electionlawblog.org/?p=99317>
Posted on June 4, 2018 4:26 pm<http://electionlawblog.org/?p=99317> by Rick Hasen<http://electionlawblog.org/?author=3>

Alabama Advertiser:<https://www.montgomeryadvertiser.com/story/news/politics/2018/06/04/ala-secretary-state-after-trump-twitter-ruling-im-not-unblocking-anybody/660742002/>

Alabama Secretary of State John Merrill said he has no intention of unblocking anybody on social media after a federal judge ruled President Donald Trump’s blocking of Twitter followers a violation of the First Amendment<https://www.cnbc.com/2018/05/23/trump-cant-block-twitter-followers-federal-judge-says.html>.

The ruling was specific to Trump only, according to coverage by the Washington Post<https://www.washingtonpost.com/news/the-switch/wp/2018/05/23/trump-cannot-block-twitter-users-for-their-political-views-court-rules/?noredirect=on&utm_term=.5ee5884aa335>, but it may have set an important precedent as online boundaries for public officials are defined within the context of public records and freedom of speech.

Merrill, who is infamous for blocking those who disagree with him as well as those he calls “trolls” on Twitter, said he will continue removing followers from his digital presence if he feels so inclined….

A Twitter search showed several instances where followers engaged Merrill on Twitter at his @JohnHMerrill<https://twitter.com/JohnHMerrill> handle before later claiming the secretary of state blocked them.

One of the most prominent followers blocked appears to be Rick Hasen, an election law expert at University of California-Irvine, who tweeted that Merrill blocked him after he corrected Merrill about Alabama law regarding recounts.

Merrill appeared on CNN following U.S. Sen. Doug Jones’ victory over former Alabama Chief Justice Roy Moore and said Moore could pay for a recount if the margin of victory was more than 0.5 percent. Hasen wrote on his blog, ElectionLawBlog.com<https://electionlawblog.org/?p=96390>, that “the statute does not allow this for federal offices” and took to Twitter to correct Merrill directly.

Hours later, Hasen tweeted, “And rather than respond to me on the merits, the Alabama Secretary of State, its chief election officer, has blocked me on Twitter. Unreal.”
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99317&title=%E2%80%9CAla.%20Secretary%20of%20State%20after%20Trump%20Twitter%20ruling%3A%20%E2%80%98I%E2%80%99m%20not%20unblocking%20anybody%27%E2%80%9D>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Masterpiece’s Surprising Possible Implications for Partisan Gerrymandering Claims: Bad Intent and Silent Actors<http://electionlawblog.org/?p=99315>
Posted on June 4, 2018 8:32 am<http://electionlawblog.org/?p=99315> by Rick Hasen<http://electionlawblog.org/?author=3>

Justice Kennedy’s majority opinion in Masterpiece Cakeshop today<https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf> is essentially a punt, requiring that body adjudicating claim of religious freedom against an anti-discrimination claim cannot have animus toward sincere religious beliefs. It decides nothing else. The Battle between Justices Kagan and Gorsuch over religious liberty’s clash with antidiscrimination laws shows what’s coming.

But there’s another aspect to the opinion that could have implications for the partisan gerrymandering cases, IF the Court holds these cases justiciable and they turn, at least in part, on legislative motivation for passing a redistricting law.

In Masterpiece, the Court holds that the Colorado board showed evidence of anti-religious animus. Here was the evidence of that found by the Court:

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners.And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content.

(My emphasis.)

This suggests that when one or more legislators or decisionmakers make a comment which shows a constitutionally impermissible intent, and the rest of the legislators or decisionmakers who vote on a question remain silent about it, then the bad intent can be inferred to the other decisionmakers.

If this principle were applied to redistricting places like North Carolina, Maryland, or Wisconsin, it would make it easier to show impermissible intent to favor one party over another. (North Carolina, as I’ve explained, is the cleanest of the three cases in this regard. And if the Court punts in the WI and MD cases this term, it could come back next term, and matter a lot IF Justice Kennedy remains on the Court.)


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99315&title=Masterpiece%E2%80%99s%20Surprising%20Possible%20Implications%20for%20Partisan%20Gerrymandering%20Claims%3A%20Bad%20Intent%20and%20Silent%20Actors>
Posted in Supreme Court<http://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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180605/ed21e76a/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180605/ed21e76a/attachment.png>