[EL] ELB News and Commentary 5/9/18

[Rick Hasen]

DOJ’s John Gore, Architect of the New Census Question on Citizenship, a No-Show at House Oversight Hearing on the Census: Rep. Gowdy May Subpoena<http://electionlawblog.org/?p=99024>
Posted on May 9, 2018 7:45 am<http://electionlawblog.org/?p=99024> by Rick Hasen<http://electionlawblog.org/?author=3>

Sam Levine for HuffPo:<https://www.huffingtonpost.com/entry/trey-gowdy-john-gore_us_5af1fab2e4b0c4f19327ccab?grh>

A top House Republican said he was willing to subpoena one of President Donald Trump’s Justice Department appointees to appear before Congress and answer questions about the department’s controversial request to add a question about citizenship<https://www.huffingtonpost.com/entry/census-citizenship-question_us_5ab9ae1be4b054d118e61c8d> to the 2020 census.

Rep. Trey Gowdy (R-S.C.), chairman of the Committee on Oversight and Government Reform, made the comments Tuesday after John Gore, the acting attorney general for civil rights, failed to appear at a committee hearing on preparations for the 2020 census. Gowdy said he was “disappointed, to say the least,” that Gore failed to appear before the committee. He then indicated he was willing to issue a subpoena.

Gore’s testimony is significant because ProPublica reported <https://www.propublica.org/article/john-gore-trump-appointee-citizenship-question-census> he was behind the Department of Justice’s request to the Census Bureau to add a citizenship question. In a December letter<https://www.propublica.org/article/trump-justice-department-pushes-for-citizenship-question-on-census-alarming-experts> to the Bureau, the Justice Department requested that the 2020 census add a citizenship question so that the department could better enforce the Voting Rights Act. The Commerce Department, which oversees the Census Bureau, announced in March that it would accept the Justice Department’s request and add the question.

“He’s coming to talk, at some point or another, whether he wants to or not,” Gowdy said of Gore. “I’m happy to issue a subpoena.” He said the panel would convene on May 18 to hear from Gore “whether voluntarily or otherwise.”
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>


“Ohio Voters Pass Gerrymandering Reform Measure”<http://electionlawblog.org/?p=99022>
Posted on May 9, 2018 7:42 am<http://electionlawblog.org/?p=99022> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPost:<https://www.huffingtonpost.com/entry/ohio-gerrymandering-reform_us_5af1a93ee4b0ab5c3d6a0bd2?qvm>

Ohio voters approved a ballot measure on Tuesday that changes the congressional mapmaking process<https://www.huffingtonpost.com/entry/ohio-issue-1_us_5aecb9f0e4b0c4f193228103>, a move proponents say will rein in excessive partisan gerrymandering.

By passing the ballot measure, called Issue 1, Ohioans amended their state Constitution to create four different pathways to draw congressional districts. The new process will go into effect in 2021, when the next round of redistricting takes place.

The complex process still leaves redistricting primarily in the hands of lawmakers, but it also builds in significant safeguards intended to prevent one party from shutting the other out of the process and drawing a severely unfair map….

However, some in the state were uncomfortable with the recently passed ballot proposal, saying it would still allow lawmakers complete control of the redistricting process. The Ohio chapter of the American Civil Liberties Union, for example, did not take a position on the ballot measure<https://www.acluohio.org/archives/blog-posts/our-position-on-state-issue-1-faq>, and its senior policy director expressed concern the process would encourage deals that are advantageous to politicians but not in the best interests of their constituents.

The ACLU worries that the minority party can still be coerced into agreeing to a map that egregiously benefits the party in power, despite this complex process.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, referendum<http://electionlawblog.org/?cat=56>


Today’s Must-Read: Justin Levitt’s Testimony on the Census Adding the Citizenship Question<http://electionlawblog.org/?p=99020>
Posted on May 9, 2018 7:39 am<http://electionlawblog.org/?p=99020> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find Justin’s testimony here<https://oversight.house.gov/wp-content/uploads/2018/05/Levitt-Testimony-2020-Census-Hearing-05082018.pdf>, from yesterday’s House Oversight hearing<https://oversight.house.gov/hearing/progress-report-on-the-2020-census/>. From Justin’s testimony:

The testimony above demonstrates that existing data have been largely sufficient to enforce the Voting Rights Act. But — contrary to what we know from past practice — even if there were many marginal cases, and even if ACS survey data were not up to the task, and even if other means of establishing the electorate like SSRV data were unable to compensate, it is still extremely unlikely that adding a question on citizenship to the decennial enumeration in this climate would improve any entity’s ability to enforce the Voting Rights Act. Adding a question to the decennial enumeration may give the illusion of increased precision and greater statistical power. But in this climate, that illusion likely arrives with a far greater cost. There are known statistical means of compensating for the low response rates in a survey like the ACS, to account for those who refuse to participate. In contrast, there are few permissible means to compensate for low response rates in the enumeration.88 If a question on citizenship in the enumeration causes response rates to drop, that loss cannot be repaired. And in addition to the impact on overall census enumeration mentioned above — that is, in addition to the impact on the Census Bureau’s one inviolate constitutional duty — the inaccuracy produced by refusal to participate directly impacts the ability to enforce the Voting Rights Act. At the moment, the ACS data arrive with a minor margin of error. In the ostensible name of reducing that margin of error, adding a citizen question to the decennial enumeration may create a far larger one, by driving an even greater nonresponse rate. As explained above, vulnerable communities — including minority communities who might otherwise be seeking protection from the Voting Rights Act — are already chronically undercounted, and with the addition of a citizenship question, will be that much more likely to go untallied. 89 Which means that the enumeration is likely to systematically undercount precisely the people who most need the VRA. If the problem with the ACS survey is that it occasionally leaves doubt whether a population is sufficiently sizable to merit VRA protection, asking the question on the decennial enumeration will likely drive down participation so that it appears certain that the population is not sufficiently sizable to merit VRA protection. And because of the undercount, that certainty will be false. Adding the citizenship question to the decennial enumeration in this climate is likely to lead to an undercount of the true Latino citizen population of jurisdictions like Farmers Branch, and others on the cusp of VRA protection. And this predictable undercount means that, contrary to the Department of Justice’s assertions, adding the question in this climate is not likely to increase any entity’s real enforcement capacity. An ostensible performance-enhancing drug that cripples the patient does not enhance performance.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Federal Court Rejects DNC Voting Rights Act Challenge to Arizona Rules About Counting Ballots Cast in Wrong Precinct, Prohibiting Most Collection of Absentee Ballots<http://electionlawblog.org/?p=99016>
Posted on May 9, 2018 7:28 am<http://electionlawblog.org/?p=99016> by Rick Hasen<http://electionlawblog.org/?author=3>

You can find the 83-page opinion at this link.<http://electionlawblog.org/wp-content/uploads/feldman.pdf>

Near the end of the opinion, the court rejects treating race as party proxy argument:

Based on the totality of the circumstances, Plaintiffs have not shown that the legislature enacted H.B. 2023 with the intent to suppress minority votes. Rather, some  individual legislators and proponents were motivated in part by partisan interests. Shooter, for example, first raised concerns about ballot collection after winning a close election. In addition to raising concerns about ballot collectors impersonating election workers, Johnson complained that ballot collection put candidates “who don’t have accessibility to large groups to go out and collect those ballots” at a disadvantage.

Likewise, Richard Hopkins, a proponent of the bill and a 2014 Republican candidate for the Arizona House of Representatives, claimed that he lost his election because of “ballot harvesting.” (Ex. 17 at 17, 45-49.) In opposing ballot collection restrictions, Democratic Senator Steve Farley stated “[t]he problem we’re solving is that one party is better at collecting ballots than the other one.” (Ex. 25 at 35.)

But partisan motives are not necessarily racial in nature, even though racially polarized voting can sometimes blur the lines. Importantly, both the Fifteenth Amendment and § 2 of the VRA—upon which Plaintiffs’ intentional discrimination claims are based—address racial discrimination, not partisan discrimination. That some legislators and proponents harbored partisan interests, rather than racially discriminatory motives, is consistent with Arizona’s history of advancing partisan objectives with the unintended consequence of ignoring minority interests. (Ex. 90 at 8.)

Moreover, partisan motives did not permeate the entire legislative process. Instead, many proponents acted to advance facially important interests in bringing early mail ballot security in line with in-person voting security, notwithstanding the lack of direct evidence that ballot collection fraud was occurring. Though Plaintiffs might disagree with the manner in which the legislature chose to address its concerns about early ballot security, “the propriety of doing so is perfectly clear,” and the legislature need not wait until a problem occurs to take proactive steps it deems appropriate. Crawford, 553 U.S. at 196; see also Lee, 188 F. Supp. 3d at 609.

The Court therefore finds that the legislature that enacted H.B. 2023 was not motivated by a desire to suppress minority voters. The legislature was motivated by a misinformed belief that ballot collection fraud was occurring, but a sincere belief that mail-in ballots lacked adequate prophylactic safeguards as compared to in-person voting. Some proponents also harbored partisan motives. But, in the end, the legislature acted in spite of opponents’ concerns that the law would prohibit an effective GOTV strategy in low-efficacy minority communities, not because it intended to suppress those votes.
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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>


“Russia Tried to Undermine Confidence in Voting Systems, Senators Say”<http://electionlawblog.org/?p=99014>
Posted on May 9, 2018 7:17 am<http://electionlawblog.org/?p=99014> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/05/08/us/politics/russia-2016-election-hackers.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=sectionfront>

Russia was preparing to undermine confidence in the United States’ voting process when its hackers surveilled around 20 state election systems in the run-up to the 2016 elections, the Senate Intelligence Committee concluded in a brief report released on Tuesday<https://www.burr.senate.gov/imo/media/doc/RussRptInstlmt1-%20ElecSec%20Findings,Recs2.pdf>.

But the committee said it saw no evidence that the Russians had ultimately changed vote tallies or voter registration information. In a few states, however, Russian hackers were “in a position to, at a minimum, alter or delete voter registration data,” the committee said.

“These activities began at least as early as 2014, continued through Election Day 2016, and included traditional information-gathering efforts as well as operations likely aimed at preparing to discredit the integrity of the U.S. voting process and election results,” the senators wrote.

The Intelligence Committee has been investigating Russia’s election interference campaign for well over a year now. The findings and earlier recommendations related to election security amount to its first public conclusions based on that work.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>


“Don Blankenship Loses West Virginia Republican Primary for Senate”<http://electionlawblog.org/?p=99012>
Posted on May 9, 2018 7:16 am<http://electionlawblog.org/?p=99012> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/05/08/us/politics/blankenship-west-virginia.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=sectionfront>

Don Blankenship, a former coal baron who went to prison for his role in a deadly mine disaster, was soundly defeated in the West Virginia Republican Senate primary on Tuesday, according to The Associated Press, after President Trump and other Republicans urged<https://www.nytimes.com/2018/05/07/us/politics/don-blankenship-trump-west-virginia.html>voters to reject him….

Mr. Blankenship, raised in poverty in Mingo County, W.Va., now lives principally outside Las Vegas, in a $2.4 million villa, where he is under supervised release from his prison sentence. He failed to file a personal financial disclosure with the Senate Select Committee on Ethics, as required. Mr. Blankenship told The New York Times last month<https://www.nytimes.com/2018/04/25/us/politics/don-blankenship-china-west-virginia.html> that he felt no pressure to file the disclosure because there isn’t “much of a penalty.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Firm Tied to Russian Oligarch Made Payments to Michael Cohen”<http://electionlawblog.org/?p=99010>
Posted on May 9, 2018 7:13 am<http://electionlawblog.org/?p=99010> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/05/08/us/politics/michael-cohen-shell-company-payments.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront>

A shell company that Michael D. Cohen used to pay hush money to a pornographic film actress received payments totaling more than $1 million from an American company linked to a Russian oligarch and several corporations with business before the Trump administration, according to documents and interviews.

Financial records reviewed by The New York Times show that Mr. Cohen, President Trump’s personal lawyer and longtime fixer, used the shell company, Essential Consultants L.L.C., for an array of business activities that went far beyond what was publicly known. Transactions adding up to at least $4.4 million flowed through Essential Consultants starting shortly before Mr. Trump was elected president and continuing to this January, the records show.

Among the previously unreported transactions were payments last year of about $500,000 from Columbus Nova, an investment firm in New York whose biggest client is a company controlled by Viktor Vekselberg, the Russian oligarch. A lawyer for Columbus Nova, in a statement on Tuesday, described the money as a consulting fee that had nothing to do with Mr. Vekselberg.

Other transactions described in the financial records include hundreds of thousands of dollars Mr. Cohen received from Fortune 500 companies with business before the Trump administration, as well as smaller amounts he paid for luxury expenses like a Mercedes-Benz and private club dues.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


CFI will become part of the National Institute on Money in Politics<http://electionlawblog.org/?p=99008>
Posted on May 8, 2018 11:17 am<http://electionlawblog.org/?p=99008> by Rick Hasen<http://electionlawblog.org/?author=3>

Big and exciting news<http://cfinst.org/Press/PReleases/18-05-08/The_Campaign_Finance_Institute_Is_Moving_to_the_National_Institute_on_Money_in_State_Politics.aspx> in the election law biz, combining two very important organizations collecting and analyzing campaign finance data:

The National Institute on Money in State Politics (National Institute) and the Campaign Finance Institute (CFI) jointly announced today that they have reached an agreement that will strengthen our democracy’s infrastructure.

CFI will go out of business as a separate organization in early July and reemerge as a division within the National Institute.1 The National Institute will drop the word “State” from its name to become known as the “National Institute on Money in Politics” (NIMP). Edwin Bender will remain NIMP’s executive director. Michael J. Malbin, currently the executive director of CFI, will be director of the CFI division within NIMP.

“Years ago, we recognized CFI as a unique leader in producing high-quality analyses of our campaign-finance systems. They excel at using data to ground the reform debates in reality,” Bender said. “CFI’s Citizens Policy Analyst tool was visionary in how it lets everyday citizens see how small-dollar donor policies can shift the incentives to encourage more candidate-to-voter interactions. We’re excited and humbled that CFI is joining us as we work to increase transparency in our elections and public policy processes, and to build a strong data-focused foundation for the healthy evolution of our democracy.”

Malbin, who is also a professor of political science at the University at Albany (SUNY), added: “CFI has been collaborating with NIMP for years, starting with CFI’s groundbreaking research on small donors, which was often built up from NIMP’s data. During that time we both realized how much more we could do if we integrated our data, experience, knowledge, and skills. The synergies are obvious to those of us who have worked together. CFI’s becoming part of NIMP offers huge opportunities for advancing the field – well beyond anything we at CFI could have imagined if we continued trying to do it all on our own.”

NIMP has been promoting an accountable democracy for nearly two decades by compiling and standardizing comprehensive campaign-donor, lobbyist, and other information from all fifty states and the federal government. CFI has also been at work for nearly two decades, earning a reputation as the nation’s preeminent think tank on money in politics.

Nesting CFI within NIMP raises this collaboration to a new level. Each organization has done valuable work separately by using the differences among states to help understand the effects of federal, state, and local campaign laws. The expanded NIMP will have the resources and skills not only to continue, but to look at more jurisdictions and more programs more deeply. It will bring new data and new research to produce new insights. The results will continue to inform scholars and journalists. It will also guide agencies, lawmakers, activists, and others to develop more effective policies. Our democracy will be the better for it.

1 NOTE: CFI will maintain its separate website (www.cfinst.org<http://www.cfinst.org/>) through 2018.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, 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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