[EL] ELB News and Commentary 5/30/18

Wed May 30 08:22:59 PDT 2018

“For Supreme Court’s conservatives, it’s all about the letter of the law”<http://electionlawblog.org/?p=99239>
Posted on May 30, 2018 8:11 am<http://electionlawblog.org/?p=99239> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Wolf<https://www.usatoday.com/story/news/politics/2018/05/29/supreme-court-conservatives-winning-streak-letter-law/642832002/> for USA Today.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“Independent voters now outnumber Republicans in California”<http://electionlawblog.org/?p=99237>
Posted on May 30, 2018 8:09 am<http://electionlawblog.org/?p=99237> by Rick Hasen<http://electionlawblog.org/?author=3>

SacBee reports.<http://www.sacbee.com/news/politics-government/capitol-alert/article212139534.html>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“I’m in Prison for Practicing Politics: Under the legal arguments the prosecutors used to convict me, all fundraising can be viewed as bribery.”<http://electionlawblog.org/?p=99235>
Posted on May 30, 2018 8:07 am<http://electionlawblog.org/?p=99235> by Rick Hasen<http://electionlawblog.org/?author=3>

Rod Blagojevich WSJ oped. <https://www.wsj.com/articles/im-in-prison-for-practicing-politics-1527517322?shareToken=stf74c21b8a3f14868b77bc80bd98b9f27&ref=article_email_share>
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Posted in bribery<http://electionlawblog.org/?cat=54>, chicanery<http://electionlawblog.org/?cat=12>

“Exhaustive investigation reveals little evidence of possible voter fraud in NH”<http://electionlawblog.org/?p=99233>
Posted on May 30, 2018 7:37 am<http://electionlawblog.org/?p=99233> by Rick Hasen<http://electionlawblog.org/?author=3>

WMUR:<http://www.wmur.com/article/exhaustive-investigation-reveals-little-evidence-of-possible-voter-fraud-in-nh/20955267>

An exhaustive review by state election officials, including a first-time comparison of voter information shared with 27 other states, has turned up virtually no evidence of possible voter fraud in New Hampshire, those officials said Tuesday….The key results were:

— Out of more than 94,000 names of people with the same first and last names and dates of birth who voted in New Hampshire and at least one of the other 27 states in the Interstate Voter Registration Crosscheck program, all but 142 were accounted for as being different voters in each state

— In New Hampshire, out of 86,952 people who registered to vote on state primary or general election day in 2016, a total 6,033 did not present photo IDs and as a result signed affidavits swearing that a New Hampshire community was their domicile.

— The secretary of state’s office verified that all but 458 cases were legitimate New Hampshire voters, and referred those 458 cases to the attorney general’s office. The attorney general’s office was able to verify that 392 of those voters were in fact domiciled in New Hampshire and registered and voted properly.

— The attorney general’s office was unable to verify the domiciles of the remaining 66 after exhausting all investigative resources, but a top attorney in the office said it does not mean an unlawful vote was cast in any of those 66 cases.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

“What Happened to Jill Stein’s Recount Millions?”<http://electionlawblog.org/?p=99231>
Posted on May 30, 2018 7:35 am<http://electionlawblog.org/?p=99231> by Rick Hasen<http://electionlawblog.org/?author=3>

Daily Beast:<https://www.thedailybeast.com/what-happened-to-jill-steins-recount-millions>

But the opacity surrounding the expenditure of money—combined with the fact that a good chunk of the spending has come after all efforts to recount the vote were terminated—has fed criticism that Stein was more interested in boosting her political operations than in recounting votes. It’s also drawn the ire of regulators. In a May 7, 2018 letter<http://docquery.fec.gov/pdf/665/201805070300009665/201805070300009665.pdf#navpanes=0>, the FEC warned Stein campaign treasurer Steven Welzer that he was violating federal law by not accounting for half a year of spending.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Third Annual State of Voting Rights”—July 12<http://electionlawblog.org/?p=99229>
Posted on May 30, 2018 7:32 am<http://electionlawblog.org/?p=99229> by Rick Hasen<http://electionlawblog.org/?author=3>

This looks good:<https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=328329283>

When:

Thursday, July 12, 2018
11:30 a.m. – 1:30 p.m.

Where:

Room to be announced
Steptoe & Johnson LLP
1330 Connecticut Ave NW
Washington, D.C. 20036

And via webinar<https://attendee.gotowebinar.com/register/8223792113153434369>

Registration:

This event is free and open to the public, but registration is required.

CLICK HERE TO REGISTER FOR THE LIVE-STREAM<https://attendee.gotowebinar.com/register/8223792113153434369>

Webinar information will be emailed one business day prior to the event.

All times noted are Eastern Time. There is no CLE credit available for this session.

NOTE: All registrants for ABA events need to have an ABA “account.” When you click on the above Register Here link, you will be asked to log in.

While creating this account does not confer membership, it will allow you to register for this and future ABA events.

Sponsors:

This program is co-sponsored by the ABA Section of Civil Rights and Social Justice and Steptoe & Johnson LLP

Description:

This panel will address the current state of voting rights and analyze new state laws and attempts to restrict the right to vote.  Panelists will address ongoing voting rights litigation, the disbanded “voter fraud” commission, and prospective issues surrounding the 2018 midterm election.

Panelists:

MODERATOR – Jason Abel, Of Counsel, Steptoe & Johnson LLP

Todd A. Cox<http://www.naacpldf.org/todd-cox>, Director of Policy, NAACP Legal Defense and Educational Fund, Inc.

Orion Danjuma<https://www.aclu.org/bio/orion-danjuma>, Staff Attorney, ACLU Racial Justice Program

Marc E. Elias<https://www.perkinscoie.com/en/professionals/marc-e-elias.html>, Partner, Perkins Coie LLP

Julie Houk<https://lawyerscommittee.org/staff/julie-houk/>, Special Senior Counsel, Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>

Fishkin: Alabama Sues Census to Try to Stop “Illegal Aliens” from Being Counted as “Persons”<http://electionlawblog.org/?p=99227>
Posted on May 29, 2018 8:24 am<http://electionlawblog.org/?p=99227> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is a guest post by Joseph Fishkin:

The State of Alabama, along with U.S. Rep. Mo Brooks (R-Huntsville), filed an unusual lawsuit<https://www.al.com/news/index.ssf/2018/05/ag_steve_marshall_rep_mo_brook.html> last week against the Census Bureau. The suit demands that the census bureau stop counting “illegal aliens” in the Census.

This claim is related to, but far bolder and wilder than, the claim some conservative activists pushed all the way to the Supreme Court in the 2016 case of Evenwel v. Abbott. In Evenwel, the plaintiffs’ claim was that only voters, rather than all persons, should count for purposes of districting (at the state level). Some places have relatively more children, non-citizens, and others ineligible to vote than other places; the plaintiffs in Evenwel wanted each district to contain the same number of voters, instead of the current practice of having each district contain the same number of people. The difference has considerable partisan stakes: if the Evenwel plaintiffs had succeeded, the effect would be to shift representation and political power away from places with lots of children and/or lots of immigrants and toward areas that are older, whiter, and often more Republican. Still, Evenwel did not aim to mess with the Census count itself. Alabama’s new claim is bolder because it argues that the Bureau should simply not count certain non-citizens at all–for any purpose. (It’s not entirely clear which non-citizens Alabama wants the Census to not count. In a footnote on page one, the complaint defines the term “illegal alien” to include anyone who has overstayed a visa, or anyone who originally entered illegally, apparently regardless of their current visa status. This strikes me as likely an error, but it’s hard to know. Where Alabama’s counting rule would leave the many people whose current status is pending before a court, and where it would leave the many U.S. citizen children living in households with their “illegal alien” parents, I also do not know.)

Under current settled constitutional law, this lawsuit is borderline frivolous. The reason is straightforward. The text of the U.S. Constitution, as amended, states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State,” Amend. XIV § 2; “The enumeration [of these persons] shall be made . . . within every subsequent term of ten years.” Art. I. § 2. (That’s the Census.)  Note that the Constitution does not say, for instance, the whole number of citizens, the whole number of lawful residents, the whole number of adults, or anything of that sort. It says “the whole number of persons” (before the Fourteenth Amendment it said, free persons) and accordingly, every single Census since the dawn of the Republic has counted people in the Census regardless of their citizenship status, eligibility to vote, lawful visa status or lack thereof, etc. This clause is—one might have thought—part of what Sandy Levinson calls the hard-wired constitution of settlement. Counting all “persons” is simply the rule, for better or worse; to argue otherwise is like arguing that someone should be able to be President who is under 35. But Alabama’s claim is that it is an actionable abuse of administrative discretion for the Census Bureau to continue to follow this plain constitutional command. That’s why I call Alabama’s claim bold, wild, and borderline frivolous.  And yet, ignoring this lawsuit might be a big mistake, for reasons I’ll discuss.

Digging into the complaint, the state’s argument uses a combination of gauzy political theory claims and lightly-sourced “original understanding” claims to try to undercut a very clear piece of constitutional text. The complaint’s core argument is basically that “persons” doesn’t mean what one might expect it means, because (a) unlike lawfully present aliens, “illegal aliens” are “not members of the political community constituted by the Constitution,” and (b) in 1789 and/or 1868, when they said “persons,” they actually didn’t mean to include illegal aliens. The only support for (a) in the complaint is a citation on page 21 to something the Court said in District of Columbia v. Heller. The only support for (b) in the complaint is a short stack of highly conclusory assertions buried on pages 23-24, in which it is claimed that the word “inhabitants” in an early draft of the Constitution, later changed to “persons,” referred specifically to a legal status of “inhabitancy,” which in turn “depended upon permission to settle granted by the sovereign nation.” One clue that this may not be exactly a knock-down argument comes from the fact that there were no immigration restrictions in the United States in 1789, or for that matter 1868, when the relevant constitutional text was in fact written, so there was literally nobody who any of these drafters or ratifiers could conceivably have been intending to exclude from the count on grounds of lack of “permission to settle” or for any other reason. In 1789 and 1868 they intended to count, and in fact did count, every immigrant who just got off the boat yesterday from anywhere, a practice that has continued ever since.  But according to the State of Alabama we are to believe that something about the way they intended to count everybody there at the time in 1789 and 1868 means that they intended to exclude from the category of “persons” the not-yet-existent legal category of “illegal aliens.”

This is pretty chutzpadik stuff. But if I have learned anything lately about how constitutional politics works, I have learned that even the wildest argument, with the most gossamer basis in any of the standard modalities of constitutional interpretation, can sometimes move from “off the wall” to “on the wall,” as Jack Balkin says, in short order. (I’m looking at you, activity/inactivity distinction.) Alabama’s claim here is deeply consonant with a certain brand of nativist politics that recently helped elect a President. The state’s claim also has huge and immediate implications in “low politics,” which the complaint explains at length and in extremely specific detail. Basically Alabama is worried that it has done such a good job persuading certain people (or rather, not people, “illegal aliens”) to leave the state that it’s now likely to lose a congressional seat to California. The level of detail the complaint repeatedly lavishes on these political effects at first just seems odd. It greatly exceeds anything that a lawyer might have thought relevant to the question of the state’s injury for standing purposes. But it’s less odd to the extent that this lawsuit is a kind of political document, aimed not at squarely stating a valid constitutional claim but rather at moving our constitutional politics further along in the general direction of excluding some immigrants from the Census and/or from the process of reapportionment and redistricting. The Census Bureau itself may be a defendant whose current leadership is somewhat similarly inclined: The Bureau’s own indefensible<https://balkin.blogspot.com/2018/03/the-administration-is-lying-about-census.html> last-minute decision to add a citizenship question to the Census is likely to distort the count in a way that nudges it in the general direction Alabama would like.

In the end, this lawsuit is worrying for two reasons. First, what if it settles? Although I think it is vanishingly unlikely that the Bureau would attempt to do the Census Alabama’s way, we do face the unusual and problematic situation where the plaintiff and the (political appointees in charge of) the defendant share a political interest in finding ways to somehow undercut or muddy the Constitution’s clear command. Any settlement terms between these parties would likely do some sort of damage to the constitutional integrity of the count. Second, even if it fails completely as litigation, this lawsuit could help inject into conservative legal culture, and eventually into general American legal culture, the currently-off-the-wall idea that “illegal aliens” are not “persons” for constitutional purposes. That idea is somewhat chilling. But our current system of counting all persons for purposes of representation rests on a foundation in political theory that has become hard for most Americans to grasp. The idea that we need representatives to represent everyone who lives here—child and adult, voter and non-voter, Mayflower descendant and immigrant who arrived yesterday—is an old idea, and one that frankly seemed completely straightforward in both 1789 and 1868. But it’s one that today requires some reinforcement, as I discuss in this just-published essay<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3118775>.

Cross-posted at Balkinization

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Voter ID, MAGA hats and timber larceny: My poll worker training for Mississippi elections”<http://electionlawblog.org/?p=99225>
Posted on May 29, 2018 7:18 am<http://electionlawblog.org/?p=99225> by Rick Hasen<http://electionlawblog.org/?author=3>

Margaret McCullan oped for USA Today.<https://www.usatoday.com/story/opinion/2018/05/29/voter-id-maga-hats-mississippi-poll-worker-training-column/649461002/>
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Posted in election administration<http://electionlawblog.org/?cat=18>

“What Facebook’s New Political Ad System Misses”<http://electionlawblog.org/?p=99223>
Posted on May 29, 2018 7:16 am<http://electionlawblog.org/?p=99223> by Rick Hasen<http://electionlawblog.org/?author=3>

ProPublica has this report<https://www.propublica.org/article/what-facebooks-new-political-ad-system-misses>, with the subhead: “Facebook announced a new system to make political ads more transparent. It’s got holes”

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Posted in campaigns<http://electionlawblog.org/?cat=59>

Today’s Must Read: “Inside the Pro-Trump Effort to Keep Black Voters From the Polls”<http://electionlawblog.org/?p=99221>
Posted on May 29, 2018 6:46 am<http://electionlawblog.org/?p=99221> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg:<https://www.bloomberg.com/news/features/2018-05-29/inside-the-pro-trump-effort-to-keep-black-voters-from-the-polls>

Breitbart News landed an election scoop<http://www.breitbart.com/big-government/2016/08/26/black-men-for-bernie-founder-end-democrat-political-slavery-of-minorities/> that went viral in August 2016: “Exclusive: ‘Black Men for Bernie’ Founder to End Democrat ‘Political Slavery’ of Minority Voters… by Campaigning for Trump.”

If the splashy, counterintuitive story, which circulated on such conservative websites as Truthfeed and Infowars, wasn’t exactly fake news, it was carefully orchestrated.

The story’s writer—an employee of the conservative website run by Steve Bannon before he took over Donald Trump’s campaign—spent weeks courting activist Bruce Carter to join Trump’s cause. He approached Carter under the guise of interviewing him. The writer eventually dropped the pretense altogether, signing Carter up for a 10-week blitz aimed at convincing black voters in key states to support the Republican real estate mogul, or simply sit out the election. Trump’s narrow path to victory tightened further if Hillary Clinton could attract a Barack Obama-level turnout.
Bannon’s deployment of the psychological-operations firm Cambridge Analytica<https://www.bloomberg.com/quote/1584842D:LN> in the 2016 campaign drew fresh attention this month, when a former Cambridge employee told a U.S. Senate panel that Bannon tried to use the company to suppress the black vote in key states. Carter’s story shows for the first time how an employee at Bannon’s former news site worked as an off-the-books political operative in the service of a similar goal.

Carter’s recollections and correspondence, which he shared after a falling-out with his fellow Trump supporters, provide a rare look inside the no-holds-barred nature of the Republican’s campaign and how it explored new ways to achieve an age-old political aim: getting the right voters to the polls—and keeping the wrong ones away.

“If you can’t stomach Trump, just don’t vote for the other people and don’t vote at all,” Carter, 47, recalls telling black voters. It’s the message he says the Trump campaign wanted him to deliver. “That’s what they wanted, that’s what they got.”

The work Carter says he did, and the funds he was given to do it, also raise questions as to whether campaign finance laws were broken.

The group Carter founded, Trump for Urban Communities<https://www.facebook.com/trumpforurbancommunities/>, never disclosed its spending to the Federal Election Commission—a possible violation of election law. In hindsight, Carter says, he believed he was working for the campaign so he wouldn’t have been responsible for reporting the spending.

His descriptions of the operation suggest possible coordination between Trump’s campaign and his nominally independent efforts. If there was coordination, election law<https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/contribution-limits-candidates/> dictates that any contributions to groups such as his must fall within individual limits: no more than $2,700 for a candidate. One supporter far exceeded that cap, giving about $100,000 to Carter’s efforts.
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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>

--
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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