[EL] ELB News and Commentary 3/19/18

Rick Hasen rhasen at law.uci.edu
Mon Mar 19 07:41:49 PDT 2018


Redacted Kobach Deposition Transcript and von Spakovsky Cross Examination Transcript Now Available, Includes Discussion of False Claim of Somali American Voter Fraud<http://electionlawblog.org/?p=98194>
Posted on March 19, 2018 7:31 am<http://electionlawblog.org/?p=98194> by Rick Hasen<http://electionlawblog.org/?author=3>

This trial is going to go down in the history books. It is the first time the Fraudulent Fraud Squad’s spurious claims of massive voter fraud literally have been put to trial and cross examination. It is not going well for them.

(Redacted) transcript<https://www.scribd.com/document/374264603/Kris-Kobach-Fish-v-Kobach-Redacted-Deposition> of Kobach deposition.

von Spakovsky<http://electionlawblog.org/wp-content/uploads/2018.03.09_FishTrial_Day4_PM.pdf> examination and cross-examination.  Some excerpts from Dale Ho cross examination:

Q. You have not published any peer-reviewed research as an historian. Correct?
A. That’s correct.
Q. Now, you would say that outside of this case you’ve written extensively about the issue of vote
fraud. Correct?
A. Yes.
Q. And some of that extensive writing you’ve doneaddresses the issue of non-citizen registration.
Correct?
A. Yes.
Q. And as an example of that, you would point to your 2012 book co-written with John Fund called “Who’s? How Fraudsters and Bureaucrats Put Your Vote At Risk.” Correct?

A. Correct.
Q. That book was not published by a universitypress. Correct?
A. That’s correct.
Q. It was published by a company called Encounter Books. Correct?
A. That’s correct.
Q. That book was not peer-reviewed. Correct?
A. No.
Q. In fact, you have published no peer-reviewed research on voter fraud. Correct?
A. I’m not in academics so I don’t use the peer-review process.
Q. So my question was: You have published no peer-reviewed research on the issue of voter fraud.
Correct?
A. Yeah, I’m not in academics so I don’t use the peer-review process….

Q. Okay. Not talking about your expert report. I just want to talk about that op-ed for a second. You wrote that op-ed claiming that 50 non-citizens from Somalia voted in an election in Missouri, despite the fact that a month earlier there had been an election challenge– there had been an election contest in that case and a state court in Missouri issued an opinion, Royster versus Rizzo, finding that no fraud had taken place in that election.
Correct?
A. I don’t know when that opinion was issued. I wasn’t aware of that when I wrote the piece, which was based on other reports.
Q. You’re aware of that now, right, Mr. von Spakovsky?
A. I’m aware of that now.
Q. You never published a written retraction of your assertion about Somalia voters illegally participating in that election, right, Mr. von Spakovsky?
A. I don’t believe so, but I don’t recall when I discovered that.



I can shed some light on this last incident. I flagged his error THE DAY his oped was published<http://electionlawblog.org/?p=21016>:

I Guess von Spakovsky Reads My Blog
Posted on July 28, 2011 8:03 pm<http://electionlawblog.org/?p=21016> by Rick Hasen<http://electionlawblog.org/?author=3>

Now with his oped <http://www.statesman.com/opinion/spakovsky-voter-id-is-a-sensible-precaution-1667416.html> reprinted in tomorrow’s Austin American Statesman, he’s corrected the Kansas-for-Missouri <http://electionlawblog.org/?p=20953> error.  But not the substance of his erroneous claim about “50 votes cast illegally by citizens of Somalia.”  Doesn’t McClatchy have an obligation to correct the record on this?

And this:<http://electionlawblog.org/?p=20953>

More Hans v. Reality
Posted on July 28, 2011 8:20 am<http://electionlawblog.org/?p=20953> by Rick Hasen<http://electionlawblog.org/?author=3>

Hans<http://www.kansascity.com/2011/07/28/3042107/voter-id-is-a-sensible-precaution.html>: “A 2010 election in Kansas that ended in a one-vote margin of victory included 50 votes cast illegally by citizens of Somalia.”

Reality<http://electionlawblog.org/wp-content/uploads/royster.pdf> (Missouri Court of Appeals, affirming the following findings of the trial court) (note that this happened in Missouri not Kansas, as Hans stated):
Contestant Royster alleged that interpreters improperly assisted several Somali voters by handling the ballots, completing ballots, and providing instructions to the voters, at the Garfield Elementary School and the Kansas City Museum polling locations. Under the plain language of the statute, if Somali voters were unable to read or write, blind, or physically disabled, they were legally permitted to request assistance in voting. The only potential violations revealed in the evidence were that voters who needed assistance may not have been asked to make a declaration under oath, or that the interpreter helped more than one person to whom he/she was not related. There was testimony that at least one of the Somali men who was assisting persons was related to those persons. It would be proper for such assistance to be provided under the law. The evidence indicates that the election judges did not request an oath in these situations, and it was therefore a mistake of the election officials that no cards with proper oaths were obtained. There is no evidence that the failure of the election officials to obtain the cards interfered with the ability of the voters to cast the vote of their choice. Because [Section 115.445.3] does not automatically result in the invalidation of such a vote, the affect of these violations must be assessed. The key issue is whether the interpreter cast fraudulent ballots for voters or whether he voted as directed by qualified voters. . . . .
Based on the totality of the evidence, including the Court‟s determination of the credibility and bias of the witnesses, the evidence demonstrated that, although one or more individuals may have engaged in suspicious conduct at the Ward 11, Precincts 3 and 4 polling place in the East hall of the Garfield Elementary School, and the election judges may have made mistakes in administering certain election requirements, such as not offering or administering an oath to persons requiring assistance . . . the evidence does not establish that the conduct was fraudulent, that any person who was not registered to vote voted, or that any registered voter was prevented from casting their ballot as they intended.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>


“Facebook’s Role in Data Misuse Sets Off a Storm on Two Continents”<http://electionlawblog.org/?p=98192>
Posted on March 18, 2018 8:19 pm<http://electionlawblog.org/?p=98192> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/03/18/us/cambridge-analytica-facebook-privacy-data.html>

American and British lawmakers demanded on Sunday that Facebook explain how a political data firm with links to President Trump’s 2016 campaign was able to harvest private information from more than 50 million Facebook profiles without the social network’s alerting users. The backlash forced Facebook to once again defend the way it protects user data.

Senator Amy Klobuchar of Minnesota, a Democratic member of the Senate Judiciary Committee, went so far as to press for Mark Zuckerberg, Facebook’s chief executive, to appear before the panel to explain what the social network knew about the misuse of its data “to target political advertising and manipulate voters.”

The calls for greater scrutiny followed reports<https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news> on Saturday in The New York Times and The Observer <https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook-influence-us-election> of London that Cambridge Analytica, a political data firm founded by Stephen K. Bannon and Robert Mercer, the wealthy Republican donor, had used the Facebook data to develop methods that it claimed could identify the personalities of individual American voters and influence their behavior. The firm’s so-called psychographic modeling underpinned its work for the Trump campaign in 2016, though many have questioned the effectiveness of its techniques.

But Facebook did not inform users whose data had been harvested. The lack of disclosure could violate laws in Britain and in many American states.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


Foley: Benisek, Congressional Gerrymanders & the Elections Clause<http://electionlawblog.org/?p=98187>
Posted on March 18, 2018 8:01 pm<http://electionlawblog.org/?p=98187> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is the first in a series of guest posts on Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/?wpmp_switcher=desktop> by Ohio State’s Ned Foley<http://moritzlaw.osu.edu/faculty/professor/edward-b-foley/>.

Edward B. Foley

This blog essay is derived from a forthcoming contribution<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3128936> to a University of Georgia Law Review symposium.

On March 28, the Supreme Court will hear argument in Benisek v. Lamone<http://www.scotusblog.com/case-files/cases/benisek-v-lamone/>, the case from Maryland about partisan gerrymandering.  Last October, the Court already heard argument in Gill v. Whitford<http://www.scotusblog.com/case-files/cases/gill-v-whitford/>, the Wisconsin case on partisan gerrymandering. When the Court accepted Benisek for argument, many wondered what of value it would add for the Court beyond Gill itself.

Most observers focused on two features of Benisek.  First, the specific claim in the case concerned a First Amendment theory not advocated in Gill.  The Benisek theory challenges each gerrymandered district one-at-a-time, whereas the Gill claim attacks a gerrymandered map as a whole.  Second, Benisek challenges partisan gerrymandering perpetrated by Democrats, while Gill involves a Republican-perpetrated gerrymander.  Commentators (including the custodian of this Election Law blog, Rick Hasen himself<http://www.latimes.com/opinion/op-ed/la-oe-hasen-gerrymandering-maryland-20171211-story.html>), noted that if the Court scrupulously applied the same constitutional standard to both, then the public would not perceive the Court engaged in its own form of partisan favoritism.  (At the oral argument in Gill, Chief Justice Roberts pointedly expressed concern that the public might have this perception.)

These two distinctive features of Benisek are not unimportant.  But there is a third difference between the two cases that is even more fundamental.  Benisek involves congressional districts, whereas Gill concerns seats in a state’s own legislature.  To be sure, both cases have been litigated as if this distinction does not matter.  If the Equal Protection Clause condemns partisan gerrymandering according to the theory espoused by the plaintiffs in Gill, then that Equal Protection constraint applies as much to congressional districts as to seats in the state’s legislature. Conversely, if the First Amendment bars partisan gerrymanders according to the principle articulated by the Benisekplaintiffs, then this First Amendment prohibition applies as much to a state’s own legislative districts as to congressional seats.

But there is an additional argument applicable to congressional gerrymanders that does not apply to the gerrymandering of state legislatures.  It is an argument rooted in the Elections Clause of the federal Constitution.  This clause, found in section 4 of Article I, lets state legislatures adopt rules for the “Times, Places, and Manner” of congressional elections unless and until Congress choose to “make or alter such Regulations” itself.  This Elections Clause, moreover, must be read in conjunction with section 2 of Article I, which requires that “Members” of the federal “House of Representatives” be “chosen every second Year by the People of the several States.”  Putting the two provisions together, state laws purporting to set the procedures for congressional elections cannot undermine the basic obligation that these elections be responsive to the periodically changing will of the “People” in the state.  In contrast to elections for the Senate and the presidency, which the original Constitution did not entrust to the “People” directly and which the Founders did not want to be so immediately susceptible to changing public opinion (setting the terms for senators and the president at six and four years, respectively), the House of Representatives was to be the one part of the federal government directly accountable to popular sentiment, and this sentiment was entitled to make itself known at biennial intervals in order to reflect the right of the “People” to update its political preferences in light of new circumstances.  If the gerrymandering of a state’s congressional districts by the state’s legislature prevents congressional elections from being responsive to the will of the “People” in the state (contrary to what section two of Article I requires), then the state legislature has breached the trust conditionally reposed in it by the Elections Clause to make procedural rules for the holding of congressional elections in the state.

Continue reading →<http://electionlawblog.org/?p=98187#more-98187>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Texas AG Ken Paxton ramps up fight against schools’ ‘illegal electioneering'”<http://electionlawblog.org/?p=98185>
Posted on March 18, 2018 6:22 pm<http://electionlawblog.org/?p=98185> by Rick Hasen<http://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2018/03/16/texas-ken-paxton-illegal-electioneering-school-districts/>

Dyes suspects that it was his Twitter presence, where he often retweets educators pledging to “#blockvote” in favor of pro-public education candidates, and that of the district, that drew Paxton’s attention.

Dyes was one of more than a dozen administrators whose districts were hit last month with open records requests from the Texas Attorney General’s Office seeking district communications about Texas primaries, voting and certain candidates and races, documents obtained by The Texas Tribune in a records request show.

And he was one of a smaller group of educators whose district also received a cease-and-desist letter from Paxton, the state’s top lawyer. After sending three letters<https://www.texastribune.org/2018/02/14/texas-attorney-general-paxton-warns-three-school-districts-cease-and-d/> last month, Paxton’s office sent two more Friday morning — to Elgin ISD and Galena Park ISD, both districts that had received records requests — asking administrators to stop using taxpayer money to advocate for political candidates.

“School districts violate the Texas Election and Education codes when they exhort faculty or others to vote for a particular person or ballot measure,” Paxton said in a statement Friday. “Spending taxpayer dollars on advocating for or against political candidates is unacceptable.”

The letters are just the latest salvo in an ongoing battle over the role Texas public schools play in elections. Long-standing civic engagement initiatives aimed at getting more Texas teachers out to vote have come under fresh attack<https://www.texastribune.org/2018/02/09/texas-teachers-take-twitter-over-empower-texans-whistleblower-callout/>this election cycle, with conservative groups and Paxton himself warning that some efforts constitute “illegal electioneering.” A January ruling<https://www.texastribune.org/2018/01/17/texas-attorney-general-says-using-school-buses-drive-kids-polling-plac/> from his office advised districts that busing teachers and voting-age students to polling places is illegal unless such trips serve an “educational purpose.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Kris Kobach’s Voting Sham Gets Exposed in Court”<http://electionlawblog.org/?p=98183>
Posted on March 18, 2018 5:24 pm<http://electionlawblog.org/?p=98183> by Rick Hasen<http://electionlawblog.org/?author=3>

Lead Sunday NYT editorial.<https://www.nytimes.com/2018/03/17/opinion/sunday/kris-kobachs-voting-sham-gets-exposed-in-court.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Before he died last week, this man changed how we vote in California. Do you know him?”<http://electionlawblog.org/?p=98181>
Posted on March 18, 2018 5:22 pm<http://electionlawblog.org/?p=98181> by Rick Hasen<http://electionlawblog.org/?author=3>

Tribute to Joaquin Avila<http://www.sacbee.com/news/local/news-columns-blogs/marcos-breton/article205223534.html#emlnl=Morning_Newsletter> by Marcus Breton in the Sacramento Bee, including these comments from Morgan Kousser:

CVRA simplified winning voting-rights cases,” Kousser said. “In federal law, there are great many factors you need to prove before filing a voter rights case. With CVRA, you only need to show racially polarized voting and that minority candidates usually lose.” If CVRA is challenged, the cities and counties that lose pay big judgments.

Since 2007, school boards across California have seen a significant number of Latinos elected, Kousser said. Those school board members are likely to become future city council members, mayors, state legislators or more.

“Joaquin worked to integrate Latinos into the power structure and to give Latino voters a sense that government was responsive to them,” Kousser said. “We’ve already seen the effects of his work, and in 10 more years, we will see even more effects.”
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Posted in election law biz<http://electionlawblog.org/?cat=51>


“Drawing lines and positions on the ‘Voting Wars’”<http://electionlawblog.org/?p=98179>
Posted on March 18, 2018 5:19 pm<http://electionlawblog.org/?p=98179> by Rick Hasen<http://electionlawblog.org/?author=3>

Frank Askin oped.<https://www.northjersey.com/story/opinion/contributors/2018/03/17/opinion-drawing-lines-and-positions-voting-wars/429667002/>
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


New Mexico: “Voters in survey approve of ranked-choice system”<http://electionlawblog.org/?p=98177>
Posted on March 17, 2018 5:11 pm<http://electionlawblog.org/?p=98177> by Rick Hasen<http://electionlawblog.org/?author=3>

Albuquerque Journal reports.<https://www.abqjournal.com/1146696/voters-in-survey-approve-of-ranked-choice-system.html>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


Today’s Must-Read: “How Trump Consultants Exploited the Facebook Data of Millions”<http://electionlawblog.org/?p=98175>
Posted on March 17, 2018 2:20 pm<http://electionlawblog.org/?p=98175> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html>

As the upstart voter-profiling company Cambridge Analytica prepared to wade into the 2014 American midterm elections, it had a problem.

The firm had secured a $15 million investment from Robert Mercer<https://www.nytimes.com/2016/08/19/us/politics/robert-mercer-donald-trump-donor.html>, the wealthy Republican donor, and wooed his political adviser, Stephen K. Bannon, with the promise of tools that could identify the personalities of American voters and influence their behavior. But it did not have the data to make its new products work.

So the firm harvested private information from the Facebook profiles of more than 50 million users without their permission, according to former Cambridge employees, associates and documents, making it one of the largest data leaks in the social network’s history. The breach allowed the company to exploit the private social media activity of a huge swath of the American electorate, developing techniques that underpinned its work on President Trump’s campaign in 2016.

An examination by The New York Times and The Observer of London reveals how Cambridge Analytica’s drive to bring to market a potentially powerful new weapon put the firm — and wealthy conservative investors seeking to reshape politics — under scrutiny from investigators and lawmakers on both sides of the Atlantic.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Lack of court action on new Pa. voting map causing concern”<http://electionlawblog.org/?p=98173>
Posted on March 17, 2018 2:19 pm<http://electionlawblog.org/?p=98173> by Rick Hasen<http://electionlawblog.org/?author=3>

Pittsburgh Post-Gazette:<http://www.post-gazette.com/news/politics-state/2018/03/16/pennsylvania-gerrymandering-congressional-districts-supreme-court-district-map-consitiution/stories/201803160186>

With Tuesday’s deadline for filing nominating petitions imminent, prospective candidates waiting for courts to take action on Pennsylvania’s radically reconfigured congressional map learned Friday that the wait will continue.

By day’s end Friday, neither the U.S. Supreme Court nor the U.S. District Court here had decided whether to grant requests from Republican lawmakers who want them to overturn the new congressional map put in place by the Pennsylvania Supreme Court, which ruled that lines drawn in 2011 represented an unconstitutional partisan gerrymander favoring Republicans.

Members of both parties and outside experts appeared to be at a loss to explain the courts’ inaction. The delay, at least on the U.S. Supreme Court side, is “quite unusual,” said Richard L. Hasen, a law and political science professor at the University of California, Irvine.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“The Supreme Court’s Pennsylvania vote puzzle”<http://electionlawblog.org/?p=98171>
Posted on March 17, 2018 11:36 am<http://electionlawblog.org/?p=98171> by Rick Hasen<http://electionlawblog.org/?author=3>

Lyle Denniston ponders.<http://lyldenlawnews.com/2018/03/16/supreme-courts-pennsylvania-vote-puzzle/>


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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Georgia Republicans are trying to eliminate Sunday voting to suppress black turnout”<http://electionlawblog.org/?p=98169>
Posted on March 16, 2018 12:34 pm<http://electionlawblog.org/?p=98169> by Rick Hasen<http://electionlawblog.org/?author=3>

Kira Lerner:<https://thinkprogress.org/georgia-sunday-voting-cut-9c1c2ffafd18/>

Georgia Republicans are advancing a bill through the state legislature<https://politics.myajc.com/news/state--regional-govt--politics/bill-shorten-atlanta-voting-hours-and-curtail-sunday-voting-passes-committee/seqRoqhMT3y2p49BAcAt2L/> that would suppress African-American turnout by eliminating Sunday voting and cutting the hours that polls are open in Atlanta.

The bill, SB 363, would force polls in the majority AfricanAmerican city of Atlanta to close an hour earlier — 7 p.m. instead of 8 p.m. — and would eliminate early voting on the Sunday before Election Day. That Sunday is often a high-turnout day for AfricanAmerican voters because of Souls to the Polls events<https://politics.myajc.com/blog/politics/georgia-democrats-push-souls-the-polls-with-sunday-voting/y1mEvfuULsYpl5oWAgZmIM/> that encourage people to cast ballots early after attending church….

If this legislation does pass and Republicans continue to be overt about their intention to suppress black voters, the bill would violate the U.S. Constitution. Democrats and voting advocates are also likely to raise objections under the Voting Rights Act, although the U.S. Supreme Court significantly weakened the power of that landmark legislation in 2013 when it ruled that states and jurisdictions with a history of racial discrimination<https://www.justice.gov/crt/jurisdictions-previously-covered-section-5>, like Georgia, no longer need to preclear changes to their voting law with the Department of Justice.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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