[EL] ELB News and Commentary 3/10/18

[Rick Hasen]

“Federal judges hear arguments in Pa. congressional map fight: Should they block new map?”<http://electionlawblog.org/?p=98086>
Posted on March 9, 2018 7:07 pm<http://electionlawblog.org/?p=98086> by Rick Hasen<http://electionlawblog.org/?author=3>

Philly Inquirer:<http://www.philly.com/philly/news/politics/state/pennsylvania-congressional-map-federal-lawsuit-hearing-judges-gerrymandering-20180309.html>

A panel of federal judges, asked by GOP lawmakers to block the new Pennsylvania congressional map, on Friday questioned whether it should wait for the U.S. Supreme Court to act on a similar request and if blocking the map would further disrupt an already tumultuous election cycle.

The three judges — Chief U.S. District Judge Christopher C. Conner for the Middle District of Pennsylvania, Judge Kent A. Jordan of the U.S.  Court of Appeals for the Third Circuit, and District Judge Jerome B. Simandle for the District of New Jersey — were equally aggressive Friday in questioning both sides in the case during four hours of testimony. They said they would release a decision soon.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Trump lawyer’s payment to porn star draws comparisons to John Edwards case”<http://electionlawblog.org/?p=98083>
Posted on March 9, 2018 6:46 pm<http://electionlawblog.org/?p=98083> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2018/03/09/trump-stormy-daniels-lawyer-payment-john-edwards-451462>

The key legal question is whether the $130,000 was intended to advance Trump’s chances in the election. If it was, it should not have been routed through a corporation and might amount to an illegally large campaign contribution. If Trump paid the money in connection with his campaign, it should have been reported on his campaign finance reports.

“I do think this is moving closer and closer to the territory where Edwards was subject to criminal prosecution,” said Hampton Dellinger, a former North Carolina deputy attorney general who closely followed the case against the former Democratic presidential hopeful….

The payment would only need to have been included in campaign finance reports if it was related to Trump’s candidacy, not if it was for personal reasons.

“I think the timing of this payment in relation to the campaign and some of the other statements that were supposedly made by Cohen make it a somewhat stronger case that this was not personal, but was campaign related,” said University of California law professor Rick Hasen. “It’s by no means a sure thing.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Dale Ho Examines Hans von Spakovsky Under Oath at Kansas Voter Suppression Trial<http://electionlawblog.org/?p=98081>
Posted on March 9, 2018 6:42 pm<http://electionlawblog.org/?p=98081> by Rick Hasen<http://electionlawblog.org/?author=3>

I really wish<http://www.kansascity.com/news/politics-government/article204422539.html> I could have been there

Bryan Lowry:

Ho also questioned von Spakovsky about his interpretation of the 14th Amendment, which differs from that of the U.S. Supreme Court and the U.S. State Department.

Von Spakovsky confirmed that he disagrees with most legal scholars that a person automatically becomes a U.S. citizen if he or she is born on U.S. soil under the 14thAmendment, saying that his interpretation is that at least one parent must also be a citizen.

Von Spakovsky testified that even a small number of non-citizens on voter rolls “could make the difference in a race that’s decided by a small number of votes,” but during cross-examination acknowledged that he could not name a specific federal election that was decided by non-citizen votes.

Von Spakovsky wrote the 2012 book “Who’s Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk.”

Ho asked him if his research for that book was peer-reviewed or whether he had ever written a peer-reviewed article on voter fraud.

“I’m not an academic, so I don’t use the peer review process,” von Spakovsky replied.

Now we know why von Spakovsky did not want to be<https://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth> my “research assistant.”

Tierney Sneed:<https://talkingpointsmemo.com/muckraker/hans-von-spakovsky-voter-fraud-definition-judge>

Earlier, Kansas Secretary of State Kobach had asked von Spakovsky what his definition of voter fraud was. Lorraine Minnite, an expert witness for the ACLU, had in previous testimony defined voter fraud as the “intentional corruption” of the electoral process by voters.

Von Spakovsky denied that intention or knowledge was necessary to consider an instance of illegal voting or registration fraud. He said that, regardless of their intention, whenever a non-citizen registers or votes “they are defrauding citizens” of a legitimate election.

That assessment caught Judge Julie Robinson’s attention. Between Kobach’s questioning and ACLU cross-examination, she asked about that definition, and brought up the thousands of citizens qualified to vote who are denied the ability to vote, alluding to restrictive laws.

“Would that not also be defrauding the electoral process?” asked Robinson, an appointee of President George W. Bush.

Von Spakovsky said no, and brought up voter ID laws and the case law around them. Von Spakovsky has been a staunch supporter of restrictive voting laws.

“As long as you have an open process to allow the potential voter to obtain the ID to vote,” that’s neither discriminatory nor unconstitutional, then the system is not being defrauded, he said.

Robinson said she was taking from that answer that von Spakovsky wanted to consider the context around burdens in this case. But, conversely, in non-citizen voting — whether that person made a mistake or there was an administrative error — context shouldn’t be considered, she said, describing von Spakovsky’s apparent view.

Why should you only look at it contextually when talking about citizens? Robinson asked.

Von Spakovsky tried to avoid the contradiction again, and said that context should be considered in prosecutions.

“I am not asking about prosecution,” Robinson said. She was asking him how he characterized voter fraud, she said.

Again, von Spakovsky brought up the distinctions he saw between prosecutions and the effect of when a non-citizen casts a ballot.

But Robinson appeared unconvinced. For thousands who are actual citizens, Robinson said, “that’s not diluting the vote? And that’s not impairing the integrity of the electoral process, I take it?”


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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Video of Kobach reveals details of private talks with Trump, members of Congress”<http://electionlawblog.org/?p=98079>
Posted on March 9, 2018 6:36 pm<http://electionlawblog.org/?p=98079> by Rick Hasen<http://electionlawblog.org/?author=3>

Bryan Lowry:<http://www.kansascity.com/latest-news/article204461409.html>

Video of Kobach’s deposition was screened before a small crowd at the federal courthouse in Kansas City, Kan., Friday against Kobach’s objections as part of a trial that will determine whether thousands can vote in Kansas this fall when the state selects a new governor…..

The video shows Kobach to be appear uncomfortable during some portions of the deposition, rubbing his eyes and crossing his hands as the ACLU peppered him with questions.

Kobach referred to the legislation as a “draft of a draft” and an “initial thought piece” about changes that would need to be made to the National Voter Registration Act to allow states to enact proof of citizenship requirements if the ACLU prevails in its lawsuit.

He repeatedly called it a contingency during the deposition.

Kobach emailed a member of Trump’s transition team a day after the Republican won the 2016 election that he had already begun working on legislation, including proposed changes to National Voter Registration Act based on his ongoing litigation with the ACLU…

said it referred to an “as yet uncreated amendment” to change the Act to incentivize states to adopt proof of citizenship policies, and that he did not discuss that item with Trump during his meeting.

“I think I may have discussed the general issue of aliens voting,” Kobach acknowledged during the deposition.

Kobach said that he didn’t remember if he and Trump discussed the scope of non-citizen voting in the country.

Roughly a week after his meeting with Kobach, Trump began claiming, without evidence, that he lost the popular vote due to millions of illegal votes.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Payment to Stormy Daniels could be election law violation, say experts”<http://electionlawblog.org/?p=98077>
Posted on March 9, 2018 6:33 pm<http://electionlawblog.org/?p=98077> by Rick Hasen<http://electionlawblog.org/?author=3>

NBC News reports:<https://www.nbcnews.com/politics/donald-trump/payment-stormy-daniels-could-be-election-law-violation-say-experts-n855336>

The case of the president, the payment and the porn star has raised questions that merit a federal criminal inquiry, some experts believe.

“There is enough here that warrants investigation,” said Richard Hasen, an election law expert and blogger and professor of law and political science at UC Irvine.

The issue is whether there is evidence in emails, or from witnesses, that the $130,000 payment to Daniels just before the 2016 election was made to silence Stormy Daniels<https://www.nbcnews.com/politics/donald-trump/stormy-daniels-sues-trump-says-hush-agreement-invalid-because-he-n854246> because her story could hurt Trump’s presidential candidacy.

If Trump lawyer Michael Cohen<https://www.nbcnews.com/news/us-news/trump-lawyer-michael-cohen-tries-silence-stormy-daniels-n854646> paid his own money “and he intended it to help the campaign then it’s an excessive contribution and it’s illegal,” Hasen said. Same goes for President Trump’s company, the Trump Organization.

Actually if it is from the corporation or facilitated using corporate resources for campaign purposes, it is forbidden in any amount.  The key question is about intent.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


“Kris Kobach’s Spectacular Voter-Fraud Failure Is on Trial”<http://electionlawblog.org/?p=98075>
Posted on March 9, 2018 8:44 am<http://electionlawblog.org/?p=98075> by Rick Hasen<http://electionlawblog.org/?author=3>

Sharp Frank Wilkinson<https://www.bloomberg.com/view/articles/2018-03-09/kris-kobach-s-voter-fraud-failure-is-on-trial-in-kansas> for Bloomberg View:

When Kobach ran for office in 2010, he condemned the thousands of dead people and illegal aliens who were poisoning his state’s ballot box with their fraudulent votes. But in his seven years as secretary of state, with powerful tools to investigate<https://www.bloomberg.com/view/articles/2017-01-31/the-kansas-model-for-voter-fraud-bluffing> voter fraud, Kobach hasn’t done much to stem the invisible tide of zombie voters. He has filed<http://www.kansascity.com/news/politics-government/article193012809.html>charges against only 15 people since gaining prosecutorial power in 2015. Many of those charged, including Republicans, seemed more confused than menacing.

Kobach told the federal court this week that Kansas’s voter-registration law had prevented between 1,000 and 18,000 non-citizens from voting. That factor of 18 in the estimate does seem curiously large, doesn’t it? But Kobach quantifies voter fraud with the kind of attention to detail that Joe McCarthy once applied to counting communists in the State Department…..

An ACLU attorney responded<https://www.aclu.org/blog/voting-rights/trial-against-kobach-kicks-heres-what-you-should-know> that of the 127 improper registration cases since 2000, 43 people appeared to have registered successfully and only 11 appeared to have actually voted, most through clerical errors or confusion. So the tally is 11 voters over 18 years in a state with 1.8 million registered voters.

Kobach surely knows that a lack of evidence – 127, 129, whatever — won’t undermine his good standing with the likes of “Jim from Iowa.” Because their joint cause<https://www.brennancenter.org/blog/uncovering-kris-kobach%E2%80%99s-anti-voting-history#_ftn25> runs on resentment<http://journals.sagepub.com/doi/abs/10.1177/1532673X17722988> and racial paranoia<http://www.kansascity.com/news/politics-government/article12610361.html>, not facts or evidence.

“The 129 is just the tip of the iceberg,” Kobach said. “We know the iceberg is much larger.” Yes, much larger. Huge, even. In his eighth year in office, Kobach’s getting ready to buckle down, roll up his sleeves and get to work finding that iceberg. Just as soon as he gets back to work.


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



--
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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