[EL] ELB News and Commentary 3/7/18

Wed Mar 7 06:54:01 PST 2018

Stormy Daniels Settlement Agreement Raises Fascinating Remedies and Contracts Issues, in Addition to Election Law Issues<http://electionlawblog.org/?p=98023>
Posted on March 7, 2018 6:43 am<http://electionlawblog.org/?p=98023> by Rick Hasen<http://electionlawblog.org/?author=3>

I’ve noted<http://electionlawblog.org/?p=97494> the potential campaign finance issues in potential hush money paid to porn star Stormy Daniels via Donald Trump’s lawyer Michael Cohen. There may be issues of excessive in-kind campaign contributions, or failure on Trump’s part to disclose a campaign expenditure.

But now Daniels has sued Trump and Cohen for a declaratory judgment declaring the contract is not valid or unenforceable. The complaint<http://msnbcmedia.msn.com/i/TODAY/z_Creative/Filed%20Complaint.pdf> includes a copy of the original contract and side agreement. Among the issues I spot:
1.      The contract bars Daniels from releasing pictures, texts, or other information about the Trump affair. It includes a $1 million dollar per disclosed ITEM liquidated damages provision. This means that this is an automatic amount, rather than the calculation of damages, although the contract ALSO allows disgorgement of profits AND injunctive relief. Big questions here as to whether such a liquidated damages provision is legal under CA law (there’s a choice of law question here too), as a reasonable approximation of actual damages and not unconscionable.
2.      According to the complaint, the document was never signed by Trump, but the parties otherwise seemed to perform under the contract, including the delivery of money. Does this part performance save the contract. If it created an implied contract by conduct, which provisions are in the contract? Does it include the arbitration provision?
3.      Given the arbitration provision, does the court or the arbitrator get to rule on these motions. If the court kicks the matter to arbitration, some or all of the proceedings may not be available to the public.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98023&title=Stormy%20Daniels%20Settlement%20Agreement%20Raises%20Fascinating%20Remedies%20and%20Contracts%20Issues%2C%20in%20Addition%20to%20Election%20Law%20Issues>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Lawmakers: Could Kansas Be Liable If Voter Fraud Database Leaks?”<http://electionlawblog.org/?p=98021>
Posted on March 7, 2018 6:05 am<http://electionlawblog.org/?p=98021> by Rick Hasen<http://electionlawblog.org/?author=3>

KCUR:<http://kcur.org/post/lawmakers-could-kansas-be-liable-if-voter-fraud-database-leaks#stream/0>

In a committee briefing on security matters Monday, Democratic Rep. Jeff Pittman raised concerns that Kansas could face lawsuits or have to pay for credit monitoring services if some of the records get hacked or improperly released.

Kansas currently makes the Crosscheck program free for any state that wants to participate. Pittman said Kansas should share the liability by charging states a small fee for every record they submit.

“It just makes sense,” Pittman said. “The more records a state puts in, the more at risk we are.”

In addition, the state should cut down on how many records are sent back and forth, he said.

Some critics of Crosscheck say it produces a high number of false positives — different people who have the same names and even same dates of births.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98021&title=%E2%80%9CLawmakers%3A%20Could%20Kansas%20Be%20Liable%20If%20Voter%20Fraud%20Database%20Leaks%3F%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

Kobach, Acting As Attorney, Asks Expert Mike McDonald About “Shit Sandwich” Tweet, Claims His Evidence Will Show Proof of Citizenship Law Prevented Up to 18,000 Noncitizens from Voting in Kansas<http://electionlawblog.org/?p=98019>
Posted on March 7, 2018 6:00 am<http://electionlawblog.org/?p=98019> by Rick Hasen<http://electionlawblog.org/?author=3>

Kansas.com:<http://www.kansas.com/news/politics-government/article203705739.html>

Kobach suggested another witness was also biased. He read aloud tweets from Michael McDonald, a professor at the University of Florida, that disparaged Kobach.

One tweet referenced reports that a staffer for Vice President Mike Pence had called Kobach an “(expletive) sandwich.”

McDonald said he didn’t have any bias against Kobach. “They’re tough, but they’re tweets,” McDonald said.

The trial is expected to last several days. Robinson will deliver a verdict in the bench trial.

Members of the public packed the Kansas City courtroom and a couple dozen more watched from an overflow room.

AP:<http://www.wibw.com/content/news/Legal-challenge-to-Kansas-election-law-goes-on-trial-476000433.html>

 Kansas Secretary of State Kris Kobach defended his state’s voter registration law Tuesday in federal court, claiming the measure he championed has prevented between 1,000 and 18,000 noncitizens from casting ballots.

During opening statements in a federal lawsuit challenging his authority to implement the requirements, Kobach said one of his experts will testify that the higher end of that range is more likely.

I am thrilled these issues are going to be the subject of cross examination.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98019&title=Kobach%2C%20Acting%20As%20Attorney%2C%20Asks%20Expert%20Mike%20McDonald%20About%20%E2%80%9CShit%20Sandwich%E2%80%9D%20Tweet%2C%20Claims%20His%20Evidence%20Will%20Show%20Proof%20of%20Citizenship%20Law%20Prevented%20Up%20to%2018%2C000%20Noncitizens%20from%20Voting%20in%20Kansas>
Posted in election administration<http://electionlawblog.org/?cat=18>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“California voters with sloppy signatures must have a chance to correct them, court rules”<http://electionlawblog.org/?p=98017>
Posted on March 7, 2018 5:33 am<http://electionlawblog.org/?p=98017> by Rick Hasen<http://electionlawblog.org/?author=3>

SacBee:<http://www.sacbee.com/news/politics-government/capitol-alert/article203746944.html>

California elections officials must notify voters before rejecting their mail-in ballots over concerns that the signature is not authentic, a San Francisco judge ruled this week.

Current California election law allows officials to toss out vote-by-mail ballots if they suspect the signature on the envelope does not match the signature on file for the voter, without giving the voter a chance to respond. In November, the American Civil Liberties Union, ACLU of Northern California and law firm Cooley LLP sued Secretary of State Alex Padilla, arguing the practice is unconstitutional.

San Francisco Superior Court Judge Richard Ulmer Jr. agreed and ruled<https://www.aclunc.org/docs/La_Follette%20_Order_Granting_Writ_of_Mandate.pdf> Monday that rejecting ballots without warning violates due process. He ruled that voters must be given a chance to explain and correct any discrepancies so their ballot might be still be counted.
Doug Chapin:<http://editions.lib.umn.edu/electionacademy/2018/03/07/match-please-ca-court-says-voters-should-have-chance-to-fix-messy-signatures/>
I’ve written before<http://editions.lib.umn.edu/electionacademy/2013/11/12/bad-writing-on-the-wall-could/> about the growing notion that handwritten signatures are problematic as a means of authenticating voters, but at least in California voters will get the chance to channel their inner second grader and try their hand again. I can’t imagine that the state will appeal but it’s still worth watching; if the ruling stands it will be yet another reason to encourage voters to complete and return their vote-by-mail ballots well before the deadline – just in case a better signature is required.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98017&title=%E2%80%9CCalifornia%20voters%20with%20sloppy%20signatures%20must%20have%20a%20chance%20to%20correct%20them%2C%20court%20rules%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>

“DOJ & FEC Complaints Urge Full Investigation of Apparent Illegal Coordination Between Trump and RNC & Outside Groups”<http://electionlawblog.org/?p=98014>
Posted on March 7, 2018 4:50 am<http://electionlawblog.org/?p=98014> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:<http://www.commoncause.org/press/press-releases/doj-fec-complaints-urge-investigation-of-illegal-coordination-between-trrump-rnc-and-outside-groups.html>

Today, Common Cause filed complaints with the Department of Justice (DOJ) and the Federal Election Commission (FEC) alleging reason to believe that President Trump and his campaign, Vice President Pence and his leadership PAC, the Republican National Committee (RNC), and a number of aides violated numerous campaign finance laws by coordinating “soft money” fundraising and spending with the Super PAC America First Action (AFA) and the dark money group America First Policies (AFP).

As the complaints state, “America First Action and America First Policies, not only were founded by President Trump, his campaign committee, the RNC and their agents – but continued to work in cooperation, consultation, and concert with President Trump, his campaign committee, the RNC and their agents.”
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98014&title=%E2%80%9CDOJ%20%26%20FEC%20Complaints%20Urge%20Full%20Investigation%20of%20Apparent%20Illegal%20Coordination%20Between%20Trump%20and%20RNC%20%26%20Outside%20Groups%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Senator Wyden Questions Top Voting Machine Manufacturer Over Reported Security Gaps”<http://electionlawblog.org/?p=98012>
Posted on March 7, 2018 4:46 am<http://electionlawblog.org/?p=98012> by Rick Hasen<http://electionlawblog.org/?author=3>

Gizmodo:<https://gizmodo.com/senator-wyden-questions-top-voting-machine-manufacturer-1823558022>

Voting machine manufacturer ES&S is facing new questions from a prominent US lawmaker regarding the security of its voting systems.

Sen. Ron Wyden, Democrat of Oregon, has asked ES&S to explain by March 30th whether its voting machines or other products come equipped with a remote-access capability. Wyden’s questions<https://www.wyden.senate.gov/imo/media/doc/wyden-2nd-election-cybersecurity-letter-to-ess.pdf> follow a report published by the New York Times Magazine last month, in which ES&S is described as having sold election-management systems with remote-access software preinstalled.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98012&title=%E2%80%9CSenator%20Wyden%20Questions%20Top%20Voting%20Machine%20Manufacturer%20Over%20Reported%20Security%20Gaps%E2%80%9D>
Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>

Pa Legislative Challengers in Congressional Redistricting Case File Reply with Supreme Court<http://electionlawblog.org/?p=98010>
Posted on March 6, 2018 1:58 pm<http://electionlawblog.org/?p=98010> by Rick Hasen<http://electionlawblog.org/?author=3>

You can read it here<https://www.supremecourt.gov/DocketPDF/17/17A909/37842/20180306134417897_Reply%20for%20Stay%20Application%203.6.18%20v2%20Final.pdf>.

Justice Alito or the Court could rule at any time.  I’d expect something in the next few days.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98010&title=Pa%20Legislative%20Challengers%20in%20Congressional%20Redistricting%20Case%20File%20Reply%20with%20Supreme%20Court>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

Elections and Thresholds in Gerrymandering Litigation<http://electionlawblog.org/?p=98007>
Posted on March 6, 2018 1:13 pm<http://electionlawblog.org/?p=98007> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

Say you’re trying to determine whether a district plan that has been used in multiple elections has been highly skewed in a party’s favor. Would you look only at how the plan performed in its first election? Or would you consider all of the results of the elections held under the plan? I think you would choose the latter approach. It wouldn’t be sensible to ignore the outcomes of the subsequent elections. After all, those outcomes provide additional, valuable information about the plan, either confirming or undermining the tentative conclusion drawn from the first election result.

The state of Wisconsin, however, has the opposite intuition. Last week, it filed an amicus brief<https://www.supremecourt.gov/DocketPDF/17/17-333/37022/20180228142022399_Benisek%20v%20Lamone%20-%20Wisconsin%20Amicus%20-%20FINAL.pdf> in Benisek v. Lamone arguing that Maryland’s congressional plan has not been especially asymmetric, despite recording one of the largest average skews in modern history over the 2012, 2014, and 2016 elections. In Wisconsin’s view, only the 2012 election is relevant to assessing the plan. And in that election, the plan was only moderately tilted in a Democratic direction. It was not yet apparent that the plan would go on to exhibit one of the worst average asymmetries of the last half-century.

The flaw in Wisconsin’s position should be obvious: It’s now 2018, and we can’t pretend that the 2014 and 2016 elections didn’t happen. Those elections did take place, and their outcomes need to be taken into account in evaluating Maryland’s congressional plan. Perhaps one could quibble over whether the plan’s average or median skew should be the focus of the analysis (though they happen to be almost identical). But it’s untenable to try to turn the clock back to 2012—to act as if voters didn’t cast ballots, and candidates didn’t run campaigns, in subsequent years.

This point, that more information is better than less, may be a bit banal. More interesting is why Wisconsin felt the need to intervene in Benisek, and to take such an odd stance about the data that should be considered. The state’s reasoning seems to be as follows: In a different case involving North Carolina’s congressional map, the plaintiffs’ expert<http://www.campaignlegalcenter.org/sites/default/files/18%20Jackman%20original%20report%20amended.pdf> identified a partisan asymmetry threshold that, if exceeded by a plan in its first election, means that the plan will likely go on to exhibit an average skew of at least one congressional seat. In 2012, the Maryland map’s partisan asymmetry fell below this threshold. Yet certain amici<https://www.supremecourt.gov/DocketPDF/17/17-333/33630/20180129160807435_17-333%20ac%20The%20Campaign%20Legal%20Center%20et%20al..pdf> now contend, based on election results from 2012, 2014, and 2016, that the map has indeed been highly asymmetric. This contention is thus inconsistent with the map’s performance in its first election.

Wisconsin’s argument reflects a number of misconceptions that are worth correcting about thresholds in partisan gerrymandering litigation. First, no one has asked the Supreme Court (or any other court) to endorse a particular numerical cutoff, above which a plan would presumptively be invalid. Instead, the plaintiffs’ position in all of the recent cases has been that any setting of thresholds should be deferred until later, when courts have gained more experience with measures of partisan asymmetry. It’s premature now, before a single federal case has reached a final judgment, to try to draw the line between excessive and tolerable asymmetries.

Second, the threshold the expert suggested in the North Carolina case doesn’t apply to plans, like Maryland’s, that are challenged after they have been used in multiple elections. The expert asked what first-election asymmetry has historically been associated with a lifetime-average asymmetry of at least one congressional seat. This approach makes perfect sense when (as in North Carolina) one election is all we have to go on. Then we’d like to know what that one election tells us about a plan’s probable future performance. But the approach is unnecessary when (as in Benisek) a plan has already been in place for the better part of a decade. Then we don’t have to predict how the plan is likely to fare in its second election, its third election, and so forth. We can just examine those elections’ actual results.

And third, the expert’s first-election cutoff may be even less relevant in future cycles, if suits start to be filed before rather than after plans have been used. In this decade, all of the partisan gerrymandering litigation that has enjoyed any success has been ex post litigation, launched after plans have been in effect for one (or more) elections. But if the plaintiffs prevail in either gerrymandering case now pending before the Supreme Court, it’s possible that future litigants will bring their claims ex ante. Ex ante suits, after all, both resolve plans’ constitutionality more quickly and prevent candidates from winning under unlawful maps and subsequently benefiting from their incumbency. Ex ante suits, though, would have no reason to rely on a threshold set on the basis of first election results. Indeed, there would be no such results for them to cite. Instead, ex ante suits would probably assess plans’ performances under a range of electoral scenarios, weighted according to their likelihood. This isn’t hard to do—in fact, today’s gerrymanderers do it all the time—but, understandably, it isn’t what was done in this cycle’s ex post cases.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98007&title=Elections%20and%20Thresholds%20in%20Gerrymandering%20Litigation>
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/>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180307/8a2e0af5/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2022 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180307/8a2e0af5/attachment.png>