[EL] ELB News and Commentary 5/23/18

Sat Jun 23 10:02:30 PDT 2018

“Candidate Coordination With Outside Groups Eased by Rulings”<http://electionlawblog.org/?p=99750>
Posted on June 23, 2018 10:00 am<http://electionlawblog.org/?p=99750> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<https://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=136709347&vname=mpebulallissues&jd=0000016428d7dd92ad6ff9f7d3b60002&split=0>
Congressional campaigns may find it easier to coordinate their messages with super political action committees and other outside groups as a result of Federal Election Commission decisions.
The commission dismissed complaints that messages posted on the campaign websites of Senate Democratic candidates Evan Bayh and Ted Strickland were echoed in television ads sponsored by the Senate Majority PAC, a Democratic super Political Action Committee supporting the candidates.
In another dismissed case, video footage shot by a company linked to House candidate Sean Eldridge was used in a campaign ad for the New York Democrat.
The cases could provide a roadmap to allow candidates to steer allied groups towards preferred messaging through selective public statements about their campaign needs….
The complaints were dismissed on a deadocked vote among the four FEC commissioners. Though all the candidates involved in the latest coordination enforcement cases are Democrats, the commission’s two Democrats voted to pursue enforcement action. Meanwhile, the two Republican commissioners voted to drop the matter.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Ninth Circuit Sees No Constitutional Problem with Allowing California All Vote by Mail Elections in Some Counties but Not Others<http://electionlawblog.org/?p=99748>
Posted on June 23, 2018 9:55 am<http://electionlawblog.org/?p=99748> by Rick Hasen<http://electionlawblog.org/?author=3>

The opinion here<http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf> is no surprise and seems right given that any California voter can vote by mail if she wishes. (On when lack of uniformity across counties or voters creates constitutional problems, see my University of Chicago Legal Forum piece, When Is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497192>.)

I’m surprised that Bush v. Gore did not make an appearance in the discussion, however, as it raised an issue of lack of uniform recount standards across counties.

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Posted in election administration<http://electionlawblog.org/?cat=18>

Five Years After John Roberts Says Federal Supervision of Voting Rules No Longer Necessary in South, and 2 Years After 4th Circuit Said North Carolina Targeted African Americans “with Almost Surgical Precision”, NC Suppression is Back<http://electionlawblog.org/?p=99746>
Posted on June 23, 2018 9:50 am<http://electionlawblog.org/?p=99746> by Rick Hasen<http://electionlawblog.org/?author=3>

Thwarted before, N.C. GOP wants photo ID mandate:<http://www.thetimesnews.com/news/20180622/thwarted-before-nc-gop-wants-photo-id-mandate>

North Carolina legislative Republicans on Thursday advanced their goal of permanently requiring voters to show photo identification — a proposal previously thwarted this decade by veto and federal judges who declared a similar mandate racially discriminatory.

Republicans want lawmakers, not governor, to decide who oversees elections<http://www.newsobserver.com/news/politics-government/article213683029.html>

Republicans want legislative leaders to appoint all members of the state elections board, a power now held by the governor.

State House GOP leaders on Friday afternoon introduced a proposal to change the North Carolina Constitution to create an eight-member State Board of Elections and Ethics Enforcement with all members chosen by the House speaker and the Senate leader.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Seven Ways Alabama Has Made It Harder to Vote: Five years ago, the Supreme Court struck down a key part of the landmark Voting Rights Act. Since then, Alabama has enacted a slew of restrictive voting laws and policies.”<http://electionlawblog.org/?p=99744>
Posted on June 23, 2018 9:40 am<http://electionlawblog.org/?p=99744> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/2018/06/23/us/politics/voting-rights-alabama.html>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“Ex-Trump Voter Fraud Commissioner Defends Misleading Reports In Court”<http://electionlawblog.org/?p=99742>
Posted on June 22, 2018 3:11 pm<http://electionlawblog.org/?p=99742> by Rick Hasen<http://electionlawblog.org/?author=3>

Tierney Sneed for TPM:<https://talkingpointsmemo.com/muckraker/ex-trump-voter-fraud-commissioner-defends-misleading-reports-in-court>

Former Trump voter fraud commissioner J. Christian Adams was in a federal court in Virginia Friday to defend reports his group released in 2016 and 2017 alleging that thousands of non-citizens were illegally registered to vote and possibly voting in Virginia.

Adams and his group, the Public Interest Legal Foundation, are being sued for defamation and voter intimation by four voters, all citizens, who were named in PILF’s reports that listed alleged non-citizen illegal registrants.
Attorneys for Adams and PILF argued that the reports were not targeting the defendants but rather the government officials who Adams claims are not enforcing voter fraud laws.

The plaintiffs argued that the report amounted to character assassination of those falsely alleged to be non-citizens. If anyone’s character was being assassinated, Adams’ attorney Michael Lockerby argued, it was those of the government officials who hadn’t prosecuted allegations of voter fraud.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

ACS Webinar: “Hurry Up and Wait: What’s Next with Redistricting?”<http://electionlawblog.org/?p=99740>
Posted on June 22, 2018 2:10 pm<http://electionlawblog.org/?p=99740> by Rick Hasen<http://electionlawblog.org/?author=3>

Announcement via email:

 Hurry Up and Wait: What’s Next with Redistricting?<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fgo.pardot.com%2Fe%2F388742%2Ftration-html-sco-id-2583367143%2Ffnq6x8%2F537048929&data=02%7C01%7Cjkatzman%40acslaw.org%7C3486aa3206e243eb929508d5d83ea6c3%7C68f0261aecd5440ea931b9416a380d30%7C0%7C0%7C636652685962269246&sdata=XOM9sIxYqJlCHhKSCb2HHggIa8phGOatmRc4pUz9Jrw%3D&reserved=0>

Join ACS on June 26 at 4:30pm Eastern for a webinar featuring Paul Smith of the Campaign Legal Center and Michael Li of the Brennan Center for Justice discussing the Supreme Court’s two recently decided partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone, and a third redistricting case – Abbott v. Perez – for which a decision is expected soon. Smith and Li will provide an overview of these decisions, the status of redistricting, and the larger legal context in the redistricting battle. Register here<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fgo.pardot.com%2Fe%2F388742%2Ftration-html-sco-id-2583367143%2Ffnq6x8%2F537048929&data=02%7C01%7Cjkatzman%40acslaw.org%7C3486aa3206e243eb929508d5d83ea6c3%7C68f0261aecd5440ea931b9416a380d30%7C0%7C0%7C636652685962269246&sdata=XOM9sIxYqJlCHhKSCb2HHggIa8phGOatmRc4pUz9Jrw%3D&reserved=0>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Will the Texas Redistricting Case, Likely to Be Decided By Supreme Court Next Week, End with Another Whimper Rather than a Bang?<http://electionlawblog.org/?p=99737>
Posted on June 22, 2018 12:07 pm<http://electionlawblog.org/?p=99737> by Rick Hasen<http://electionlawblog.org/?author=3>

I had though<http://electionlawblog.org/?p=98408>t that the partisan gerrymandering cases were going to end with a whimper rather than a bang, and that’s exactly what happened<https://slate.com/news-and-politics/2018/06/anthony-kennedy-wont-rule-on-gerrymandering.html>.

With thoughts that Justice Thomas or Alito<http://electionlawblog.org/?p=99702> likely have the opinion in the Texas redistricting cases (now much more likely Alito than Thomas), I had initially thought that was bad news for the plaintiffs.

But it could well be that this case too ends not with a major decision, but with a punt (as in Benisek) on the standards for issuing injunctions.

Here’s my earlier post<http://electionlawblog.org/?p=98816>, from after the Texas oral argument:

What is An Injunction? The Texas Redistricting Case at the Supreme Court and a Way to Duck the Merits<http://electionlawblog.org/?p=98816>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

North Carolina Passes Retroactive “Sore Loser” Law Removing Constitution Party Members from the Ballot; Lawsuit is Coming<http://electionlawblog.org/?p=99733>
Posted on June 22, 2018 8:15 am<http://electionlawblog.org/?p=99733> by Rick Hasen<http://electionlawblog.org/?author=3>

This is some brazen stuff:

[http://electionlawblog.org/wp-content/uploads/nc-letter.jpg]<http://electionlawblog.org/wp-content/uploads/nc-letter.jpg>
[https://pbs.twimg.com/profile_images/1119524038/CPNC_Logo_-_Small_bigger.png]<https://twitter.com/ConstituPartyNC>
<https://twitter.com/ConstituPartyNC>
ConstitutionPartyNC at ConstituPartyNC<https://twitter.com/ConstituPartyNC>

<https://twitter.com/ConstituPartyNC/status/1009991100541566977>

We will be issuing a press release shortly on @NCSBE<https://twitter.com/NCSBE> decision to remove 3 of our candidates form the ballot after they legally filed. Expect legal action to be taken accordingly. #ncpol<https://twitter.com/hashtag/ncpol?src=hash>
7:46 PM - Jun 21, 2018<https://twitter.com/ConstituPartyNC/status/1009991100541566977>

·         <https://twitter.com/intent/like?tweet_id=1009991100541566977>

4<https://twitter.com/intent/like?tweet_id=1009991100541566977>

·         <https://twitter.com/ConstituPartyNC>

See ConstitutionPartyNC's other Tweets<https://twitter.com/ConstituPartyNC>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

I imagine Republicans did this out of fear that the Constitution Party could divide the vote on the right and help Democrats.

Can’t think of another example of a retroactive law removing qualified candidates from the ballot before.

(Some background on the law<http://www.charlotteobserver.com/news/state/north-carolina/article213527884.html>.)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

The FEC’s “Superpower”<http://electionlawblog.org/?p=99731>
Posted on June 22, 2018 6:55 am<http://electionlawblog.org/?p=99731> by Rick Hasen<http://electionlawblog.org/?author=3>

Ellen Weintraub:<https://www.fec.gov/resources/cms-content/documents/2018-06_ELW_statement_re_CREW_v._FEC_-CHGO-.pdf>

With a bolt out of the blue last Friday, a panel of the D.C. Circuit Court of Appeals bestowed a superpower upon the Federal Election Commission. Unfortunately, it is the power to kill any FEC enforcement matter, wholly immune from judicial review. Thanks, but no thanks.

Left in place, this decision destroys not just the right that Congress gave the American people to challenge the FEC’s enforcement decisions, but the FEC’s entire enforcement mechanism. The panel’s decision1 flies in the face of what Congress intended and urgently needs to be reconsidered by the en banc D.C. Circuit.

It is no secret that my obstructionist colleagues on the Federal Election Commission spike most major enforcement cases. One of the only ways that big cases can be forced forward is when a judge reviewing the case shreds my colleagues’ legal reasoning and leaves them with little choice on remand. But this startling split opinion from the D.C. Circuit removes that judicial review entirely whenever my colleagues add a few newly conjured magic words about prosecutorial discretion to their statement regarding any dismissal. While the decision was technically a win for my agency, it will have far-reaching negative consequences for the law that the D.C. Circuit panel cannot have intended.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Lee Goodman: “I did not approve or authorize the envelope or its identification of me as [FEC] ‘Chairman.'”<http://electionlawblog.org/?p=99726>
Posted on June 21, 2018 9:44 pm<http://electionlawblog.org/?p=99726> by Rick Hasen<http://electionlawblog.org/?author=3>

In an earlier post,<http://electionlawblog.org/?p=99709> I linked to a story and posted a picture of an endorsement letter in a South Dakota AG’s race where former FEC Commissioner Lee Goodman is identified as the “Chairman” of the FEC.

Former Commissioner Goodman reached out to say: “I’m sending you two emails clarifying the facts and request that you clarify I did not approve or authorize the envelope or its identification of me as ‘Chairman.'”

I have reprinted the two letters he sent me below the fold:

Continue reading →<http://electionlawblog.org/?p=99726#more-99726>
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Posted in election law biz<http://electionlawblog.org/?cat=51>

--
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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