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

[Rick Hasen]

“Your Questions About Trump Jr.’s Foreign Campaign Meetings, Answered”<http://electionlawblog.org/?p=99160>
Posted on May 22, 2018 7:29 pm<http://electionlawblog.org/?p=99160> by Rick Hasen<http://electionlawblog.org/?author=3>

Bill Allison<https://www.bloomberg.com/news/articles/2018-05-22/trump-jr-meetings-test-laws-on-foreigners-campaigns-quicktake> for Bloomberg.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Nonprofit Spending Millions of Dollars to Influence Federal Elections Asks D.C Circuit for Right to Do So Anonymously<http://electionlawblog.org/?p=99158>
Posted on May 22, 2018 7:21 pm<http://electionlawblog.org/?p=99158> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA:<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=134705963&vname=mpebulallissues&jd=000001638861d394ad63d96335570002&split=0>

A nonprofit that is spending millions of dollars supporting Republicans in the midterm elections is the latest group to ask a federal appeals court to help keep its donors secret.

Three cases before the U.S. Court of Appeals for the District of Columbia Circuit have the same central question: Does the public have a right to know who’s footing the bill to influence their votes?

A decision demanding that nonprofit groups disclose donor identities could lead to a U.S. Supreme Court case with wide impact on future election campaigns.

It’s a question for the courts because the Federal Election Commission has been stymied by partisan, deadlocked votes.


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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>


Giuliani: Russian Emails Helping Trump Campaign “Sort of Like a Gift”; But Campaign Acceptance of Things of Value from Foreign Nationals is Illegal<http://electionlawblog.org/?p=99156>
Posted on May 22, 2018 7:13 pm<http://electionlawblog.org/?p=99156> by Rick Hasen<http://electionlawblog.org/?author=3>

Oh my:<https://www.huffingtonpost.com/entry/trump-giuliani-collusion_us_5b0487f8e4b05f0fc8429767>

In a recent interview with HuffPost, Giuliani initially disputed the notion that Trump’s daily citing, in the final month of his campaign, of Russian-aligned WikiLeaks and its release of Russian-stolen emails constituted “colluding” with Russia.

“It is not,” Giuliani said.

Then he switched tacks.

“OK, and if it is, it isn’t illegal… It was sort of like a gift,” he said. “And you’re not involved in the illegality of getting it.”

Federal law<https://www.law.cornell.edu/cfr/text/11/110.20> bars solicitation and acceptance  of things of value<https://www.theatlantic.com/politics/archive/2017/11/donald-trump-jrs-messages-with-wikileaks-point-to-campaign-finance-violations/545903/> from foreign nationals: “No person shall knowingly solicit, accept, or receive from a foreign national any contribution or donation prohibited by paragraphs (b) through (d) of this section.” The contribution again can be considered “anything of value.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


“Florida’s early voting ban on campus challenged in court”<http://electionlawblog.org/?p=99153>
Posted on May 22, 2018 5:04 pm<http://electionlawblog.org/?p=99153> by Rick Hasen<http://electionlawblog.org/?author=3>

Tampa Bay Times:<http://www.tampabay.com/florida-politics/buzz/2018/05/22/floridas-early-voting-ban-on-campuses-challenged-in-court/>

A new lawsuit accuses Gov. Rick Scott’s administration of making it more difficult for young people to vote by preventing early voting at public buildings on state university campuses.

The election-year complaint filed Tuesday by the League of Women Voters seeks to strike down a four-year-old interpretation of Florida’s early voting laws by Scott’s chief elections officer, Secretary of State Ken Detzner.

Detzner’s office issued an opinion in 2014 that the Legislature’s expansion of early voting sites to include “government-owned community centers” does not include the student union building on the University of Florida campus in Gainesville.

You can find the complaint in League of Women Voters v. Detzner at this link<http://electionlawblog.org/wp-content/uploads/Early-Vote-Complaint.pdf>.
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Posted in election administration<http://electionlawblog.org/?cat=18>


“The Cybersecurity 202: Georgia is voting on insecure machines in today’s primary. This group is suing”<http://electionlawblog.org/?p=99151>
Posted on May 22, 2018 4:51 pm<http://electionlawblog.org/?p=99151> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/05/22/the-cybersecurity-202-georgia-is-voting-on-insecure-machines-in-today-s-primary-this-group-is-suing/5b030aa81b326b492dd07dd5/?utm_term=.229ebeb2b237>
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Posted in election administration<http://electionlawblog.org/?cat=18>


“Appeals Court Bats Down Kobach Request To Overturn Contempt Finding”<http://electionlawblog.org/?p=99149>
Posted on May 22, 2018 4:47 pm<http://electionlawblog.org/?p=99149> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/kobach-appeals-court-contempt-finding>

An appeals court dismissed Tuesday a request by Kansas Secretary of State Kris Kobach to overturn a federal judge’s finding that he was in contempt of court. The three-judge panel of the 10th U.S. Circuit Court of Appeals said in its dismissal that Kobach had appealed the contempt finding prematurely.

“Although the district court stated that it was imposing sanctions, specific sanctions
have not yet been imposed,” the judges wrote. “Here, not only has the district court not issued findings of fact and conclusions of law or final judgment, the district court has not determined a discernable amount of sanctions.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>


“Dem Super PAC Spending To Elevate GOP Hardliner In California House Race”<http://electionlawblog.org/?p=99147>
Posted on May 22, 2018 4:45 pm<http://electionlawblog.org/?p=99147> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM reports.<https://talkingpointsmemo.com/dc/dem-super-pac-spending-to-elevate-gop-hardliner-in-california-house-race>
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Posted in campaigns<http://electionlawblog.org/?cat=59>


“An Ohio legislator defied FirstEnergy lobbyists. Then a ‘dark money’ group helped sink her bid for Congress”<http://electionlawblog.org/?p=99145>
Posted on May 22, 2018 7:13 am<http://electionlawblog.org/?p=99145> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports.<https://www.publicintegrity.org/2018/05/22/21778/ohio-legislator-defied-firstenergy-lobbyists-then-dark-money-group-helped-sink-her>


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Posted in campaign finance<http://electionlawblog.org/?cat=10>, lobbying<http://electionlawblog.org/?cat=28>


A Decision on Standing and Its Aftermath<http://electionlawblog.org/?p=99143>
Posted on May 21, 2018 10:04 pm<http://electionlawblog.org/?p=99143> by Nicholas Stephanopoulos<http://electionlawblog.org/?author=12>

Reading the tea leaves, Rick Pildes<http://electionlawblog.org/?p=99131> and others have speculated that the Court may decide Whitfordon standing grounds. I’ve previously<https://electionlawblog.org/?p=98481> explained why this would be a bad idea. But here I want to make two other points about the standing issue. One is that, if the Court holds that the Whitford plaintiffs lack standing, a great deal hinges on why the Court reaches this conclusion. The other is that, if the Court compels partisan gerrymandering litigants to bring district-specific claims, it may actually make their suits more rather than less disruptive.

Start with the first point. There are two possible reasons the Court could give for denying standing to the Whitford plaintiffs. One is that they aren’t properly situated to allege a statewide claim while otherparties (like statewide organizations with statewide members and interests) are. This sort of standing ruling would have quite modest consequences. The Whitford litigants would seek leave to amend their complaint in order to add the requisite parties with statewide standing. And litigants in other cases would make sure to include the right parties from the outset.

More broadly, the Court could hold that the Whitford plaintiffs lack standing because no one has standing to bring a statewide claim—not statewide organizations, not voters residing in every district in a plan, not anybody. Notwithstanding its label, this kind of decision wouldn’t actually be about standing. Rather, it would be a sub silentio holding that statewide partisan gerrymandering claims are nonjusticiable. After all, a legal theory that no one can litigate isn’t really a theory at all. This kind of decision would also consign future litigants to challenging districts one by one. (If, that is, they could challenge districts in the first place.) No matter whom the litigants included as plaintiffs, they would be limited to district-specific claims.

This brings me to my second point. Perhaps because Benisek involves only a single district while Whitford implicates an entire district map, there is a tendency to view district-specific claims as more modest, less disruptive—and ultimately better for defendants—than statewide claims. The reality, though, may be quite different. Depending on what legal standard applies to district-specific claims, they may be both easier to win and more radical in their implications than statewide claims.

District-specific claims may be easier to win because litigants could (presumably) prevail in them even when plans as a whole are balanced. Consider my state of Illinois. Its current maps have all exhibited<https://planscore.org/illinois/#!2016-plan-ushouse-eg> low levels of partisan asymmetry, thus preventing any statewide claims from getting off the ground. But litigants could surely identify many districts that were crafted with the aim of helping Democrats, that disregard traditional criteria, and that crack or pack Republican voters. These seats, all insulated from statewide attack, would be juicy targets for district-specific litigation.

District-specific claims may also be more radical in their implications because they have no obvious stopping point. As long as litigants can keep locating districts that were deliberately drawn to benefit the mapmaking party, they (presumably) can keep getting these districts struck down—even if the end result is to tilt the plan in the litigants’ favor. Take the ninety-nine Wisconsin state house districts at issue in Whitford. Republicans control about ten<https://planscore.org/wisconsin/#!2014-plan-statehouse-eg> more of them than they would under a balanced map. Flipping these ten seats is thus the most that litigants could hope for under a statewide theory. But many more than ten districts were intentionally designed to aid Republicans and handicap Democrats. If litigants could invalidate most or all of them based on district-specific claims, they wouldn’t just erase the Republicans’ advantage. Rather, they would replace it with one in a Democratic direction.

Of course, these theoretical gains for litigants might not materialize in practice. District-specific claims would be a royal mess to develop, requiring factual discovery and expert analysis for scores of districts instead of a single plan. Litigants might thus be unable to substantiate many claims that appear strong in the abstract. Nevertheless, if the Court is drawn to district-specific claims because of their seemingly less expansive reach, it should be careful what it wishes for. It may well find that in its effort to cabin partisan gerrymandering litigation, it has done exactly the opposite.
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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/>


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