[EL] ELB News and Commentary 11/20/18

[Rick Hasen]

“Judge rebukes Trump officials over bid to stop census trial”<https://electionlawblog.org/?p=102432>
Posted on November 20, 2018 8:14 pm<https://electionlawblog.org/?p=102432> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://www.heraldmailmedia.com/news/nation/judge-rebukes-trump-officials-over-bid-to-stop-census-trial/article_2feff199-919c-5ffe-adf9-c51dbfd9298b.html>

A federal judge in New York chastised the Justice Department for seeking an emergency halt to a trial over the Trump administration’s plan to add a question about citizenship to the 2020 census, saying its efforts were “puzzling, if not sanctionable.”

U.S. District Judge Jesse Furman, who heard testimony in the case in Manhattan earlier this month, rejected the government’s latest bid to derail the case, noting it was one of a dozen such requests. Furman said the government’s claims that it would suffer harm unless he put the case on hold “makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether.”

Referring to a “sanctionable line,” Furman said the Justice Department’s filing “would sure seem to cross it.” He said the government’s repeated requests about the case before him, made to different courts, have shown an “extraordinary lack of respect” for judicial norms.

Here is the opinion<https://assets.documentcloud.org/documents/5205225/Nov-20-2018-Memorandum-Opinion-and-Order-18-CV.pdf>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Stacey Abrams Says She Was Almost Blocked From Voting In Georgia Election”<https://electionlawblog.org/?p=102430>
Posted on November 20, 2018 8:12 pm<https://electionlawblog.org/?p=102430> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR reports. <https://www.npr.org/2018/11/20/669280353/stacey-abrams-says-she-was-almost-blocked-from-voting-in-georgia-election>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Acting AG Whitaker May Have Violated Hatch Act for Taking Campaign Contribution While a DOJ Official; and May Know Identity of Undisclosed Donors Paying Him $1.2 Million Salary as Talking Head<https://electionlawblog.org/?p=102428>
Posted on November 20, 2018 7:54 pm<https://electionlawblog.org/?p=102428> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/20/us/politics/matthew-whitaker-finances.html?action=click&module=Top%20Stories&pgtype=Homepage>

Matthew G. Whitaker, the acting attorney general, was paid more than $1.2 million in the past few years by a group active in conservative politics that does not reveal its donors, according to financial disclosure statements released Tuesday and other documents.

The disclosure raised questions about who Mr. Whitaker’s financial patrons had been before he joined the Justice Department last year and whether he might have any undisclosed conflicts of interest. And it highlighted the prominence of so-called dark money groups that pursue political agendas and employ members of both parties without being required to make public the source of their funding.

Mr. Whitaker worked for nearly four years as the executive director of the group, the Foundation for Accountability and Civic Trust, also known as FACT, before being tapped as chief of staff for Jeff Sessions, then the attorney general, in September 2017. Mr. Whitaker became acting attorney general this month after Mr. Sessions was forced out<https://www.nytimes.com/2018/11/07/us/politics/sessions-resigns.html?action=click&module=inline&pgtype=Homepage>….

The group provided the overwhelming majority of his income since at least 2016, according to the fi\

Mr. Whitaker also faced new questions on Tuesday about donations to his unsuccessful 2014 campaign for a United States Senate seat in Iowa. Mr. Whitaker’s campaign committee received four donations totaling $8,800 this year, a few months after he joined the Justice Department, records show.

Executive branch officials are generally prohibited by a federal law, the Hatch Act, from knowingly soliciting or accepting campaign donations….

“I don’t see Matt Whitaker ever playing the role of anybody’s bag man or errand boy,” Mr. Gustoff said. He said that Mr. Whitaker “might possibly” know the identities of FACT’s donors, but added that Mr. Whitaker “would do what he thinks is right regardless of whether somebody funded an activity he was involved in or not.”
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Posted in comparative election law<https://electionlawblog.org/?cat=107>, ethics investigations<https://electionlawblog.org/?cat=42>


“Mail ballots promised to make Florida elections easier. They only made it worse.”<https://electionlawblog.org/?p=102426>
Posted on November 20, 2018 7:51 pm<https://electionlawblog.org/?p=102426> by Rick Hasen<https://electionlawblog.org/?author=3>

Orlando Sentinel:<https://www.orlandosentinel.com/news/politics/political-pulse/os-ne-signature-mismatch-florida-laws-20181120-story.html>

The furor over rejected ballots has led elections officials and analysts to question why Florida has such strict rules for voting by mail compared with other states – including some states where all voting is done by mail – and to call for the Legislature to take up the issue before the next election in 2020.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Reliving the 2000 Election — and Learning the Wrong Lessons”<https://electionlawblog.org/?p=102424>
Posted on November 20, 2018 7:48 pm<https://electionlawblog.org/?p=102424> by Rick Hasen<https://electionlawblog.org/?author=3>

Justin Levitt<https://blog.harvardlawreview.org/reliving-the-2000-election-and-learning-the-wrong-lessons/> for the HLR Blog.
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Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, The Voting Wars<https://electionlawblog.org/?cat=60>


“NC Republicans reveal their voter ID proposal”<https://electionlawblog.org/?p=102422>
Posted on November 20, 2018 7:40 pm<https://electionlawblog.org/?p=102422> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer:<https://www.newsobserver.com/news/politics-government/article221979885.html>

  Boards of elections would provide registration cards with photos, and students at North Carolina’s public universities would be able to use their school IDs to vote under a draft voter ID bill that Republican legislators released Tuesday.

Voters decided this month to add a voter ID requirement to the state constitution. The legislature is returning next week to pass a law to implement the constitutional change.

The draft bill includes other photo IDs, such as driver’s licenses, tribal IDs, military and veteran ID cards, and state ID cards the state DMV provides to non-drivers.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>


Tokaji: A Grand Election Bargain That Everyone Should Support<https://electionlawblog.org/?p=102418>
Posted on November 20, 2018 12:21 pm<https://electionlawblog.org/?p=102418> by Dan Tokaji<https://electionlawblog.org/?author=5>

In collaboration with Take Care<http://takecareblog.com/>, Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Election reform is back on Congress’s agenda.  Having won control of the U.S. House, Democratic leaders have said that their first item of business<https://www.npr.org/2018/11/12/665635832/democrats-say-their-first-bill-will-focus-on-strengthening-democracy-at-home> will be a bill that removes obstacles to voting and otherwise improves the electoral process.   H.R. 1 would reportedly include liberalized voting rules, redistricting reform, enhanced disclosure of campaign money, public financing, and ethics reform.

These are all worthy proposals.  Given the unfortunate efforts to make voting more difficult in the just-completed election cycle – most conspicuously in Georgia<https://www.vox.com/policy-and-politics/2018/10/26/18024468/georgia-voter-suppression-stacey-abrams-brian-kemp-voting-rights> – it’s an opportune time for Congress to take action. But if Democrats are serious about protecting the right to vote, their next item of business should be a bill that has a realistic chance of passage.  With Republicans still in control of both the White House and U.S. Senate, a bill that’s nothing more than a Democratic wish-list of reforms has zero possibility of being enacted into law.  Compromise will be necessary.

What would a reasonable compromise look like?   The short answer is a bill that reforms voter registration while imposing reasonable voter identification requirements in federal elections.   A few years ago, I suggested precisely such a “Grand Election Bargain” in the pages of the Harvard Law & Policy Review<http://harvardlpr.com/wp-content/uploads/2014/03/Tokaji.pdf>.  Perhaps Democrats’ real goal is messaging rather than legislating, as Rick Pildes suggests<https://takecareblog.com/blog/new-directions-for-election-law-reform> in his post for this series.  But with a divided Congress and a President who should be hungry for an actual legislative accomplishment, now would be the perfect time to try working out a deal that would improve voting for everyone.

The central idea of my proposed Grand Election Bargain is simple:  improve voter registration (a priority for Democrats) while requiring reasonable voter ID (a priority for Republicans).  Insofar as these requirements would apply to federal elections, they fall squarely within Congress’s power under the Elections Clause.  The basic outline of the Grand Election Bargain would be the same as that which my Harvard Law & Policy Review article proposed, with modifications to account for recent developments.

There’s good reason for making voter registration a centerpiece of a reform package.  A body of empirical research shows that voter registration matters<https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1027&context=wmborj>, probably more than any other aspect of election administration.   Though early voting and voter ID tend to get more attention, voter registration has the most impact on who votes and who doesn’t.  Liberalizing voter registration would help improve voter turnout.  Even more important, it would help make the electorate more representative of the citizenry as a whole.  Although we’ve made great strides in improving access to the ballot, significant turnout disparities remain<https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20-580.html>.  Latino and Asian Americans still vote at much lower rates than other eligible citizens.  And there are big gaps when it comes to age, education, and income, with younger, less educated, and lower income citizens less likely to vote.

Voter registration reform would increase both turnout and representativeness.  It should be national in scope, thus having a broader impact than the preclearance regime that the Supreme Court effectively invalidated in Shelby County v. Holder<https://www.law.cornell.edu/supremecourt/text/12-96>.  Preclearance under the Voting Right Act was geographically limited, applicable only to covered jurisdictions, most of them places with the worst voting problems over a half-century ago.  That formula made sense in the 1960s, but not today.  Many of the most serious voting access issues are in places outside the South, including states like Indiana, Ohio, and Wisconsin which were never included in the coverage formula.  To make a real difference, federal voting legislation should lift all votes, not just those of people who live in places with the ugliest histories of race discrimination.

What should voter registration reform look like? One important step, which Democrats on the Hill are already considering, is automatic voter registration.  One of the great flaws in the U.S. system of voter registration is that it puts the onus of registering on the voter.  The government plays a less active role in registration, compared with other democratic countries.  In Canada, for example, a national agency (Elections Canada) is charged with putting together voting lists from a variety of sources.  Congress would do well to borrow from this example, as well as the many states here – fifteen plus the District of Columbia, according to the Brennan Center<https://www.brennancenter.org/analysis/automatic-voter-registration> –  that have adopted some form of automatic registration.

Even more important, Congress should require same-day registration.  Allowing voters to register and vote at the same time has a track record of increasing turnout<https://www.demos.org/publication/what-same-day-registration-where-it-available>, more so than any other election administration practice.  It’s not hard to understand why:  such one-stop shopping lowers the costs of voting, especially for first-time voters.  And once people vote for the first time, they’re more likely to keep voting.  The National Conference of State Legislatures<http://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx> reports that same-day registration has already been adopted in seventeen states and D.C..  Especially beneficial is Election Day Registration – allowing voters to register and voting up until the day of the election – which fifteen of those states have adopted, according to NCSL.

Congress should also require online voter registration, allowing peoples to register and update their information more easily.  Most states already have some form of online registration – 37 according to NCSL<http://www.ncsl.org/research/elections-and-campaigns/electronic-or-online-voter-registration.aspx> – which can save money while improving accuracy.  Congress could help by adopting a carrot-and-stick approach, requiring the remaining states to adopt online registration while providing all states with funding to improve their registration systems.  And it should address the list maintenanceproblems that keep eligible voters off the rolls, as happened in Georgia<https://www.npr.org/2018/10/22/659591998/6-takeaways-from-georgias-use-it-or-lose-it-voter-purge-investigation> this cycle under Secretary of State (now Governor-Elect) Brian Kemp.  Congress should prohibit “exact match” requirements like the one that reportedly kept  53,000  Georgians<https://www.politifact.com/georgia/article/2018/oct/19/georgias-exact-match-law-and-its-impact-voters-gov/> off the rolls, and voter purges that the state used to remove hundreds of thousands<https://www.ajc.com/news/local-govt--politics/georgia-cancels-fewer-voter-registrations-after-surge-last-year/fqT1bcSzGu33UEpTMDzMVK/> from the rolls.  Most distressing is the practice of initiating the removal process for not voting, a practice the Supreme Court regrettably approved in Husted v. APRI.  (Disclosure:  I was co-counsel for plaintiffs in that case.)   Registration reform should prohibit using the failure to vote as the basis for starting the removal process, updating the National Voter Registration Act (NVRA) to conform to Congress’s original intent and to address present-day problems.

So far, I’ve focused on registration reforms.  While some of these proposals would enhance the integrity of the electoral process, a central issue for Republicans, they have more appeal for Democrats.  But to have even a glimmer of hope of passing, any elections bill will have to do more on electoral integrity.

Toward this end, my proposed Grand Election Bargain would include a reasonable voter identification requirement, one that would provide a uniform rule for federal elections replacing the patchwork of different requirements<http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx> that now exist across the states.  In a nutshell, it would require voters to provide some form of identification, not limited to the government-issued photo ID required in a handful of states (including Georgia, Indiana, and Wisconsin).  I have long been skeptical that voter impersonation is the serious problem that some people contend it is.  There is precious little evidence of people going to the polls pretending to be someone else.  Perhaps the strongest argument for such laws is that they would give people greater confidence that elections are being conducted fairly, though even that is doubtful<https://harvardlawreview.org/2008/05/vote-fraud-in-the-eye-of-the-beholder-the-role-of-public-opinion-in-the-challenge-to-voter-identification-requirements/>.

With those caveats, there are good reasons for Democrats to support a reasonable federal voter ID requirement as the price for voter registration reform.  Non-photo ID requirements have been implemented in many states.  Because almost all voters have this form of ID – for example, a utility bill, bank statement, or government document with the voter’s name and current address – they’re not likely to have a major effect on turnout.  And as a fail-safe, a federal voter ID requirement should allow voters to cast provisional ballots if they lack any required form of voter ID, verifying their identity and place of residence (if any) under penalty of perjury.  Those ballots would be counted unless there is contrary evidence.  Most important, a federal voter ID law would not just serve as a floor that all voters must meet; it would also be a ceiling, precluding more stringent voter ID requirements in federal elections.

If Democrats were to propose a Grand Election Bargain of voter registration reform for reasonable voter identification, it would show that they’re serious about making real change rather than just showboating.  The more difficult question is why Republicans should support such a deal.   For those who are genuinely concerned with electoral integrity, a non-photo ID requirement gives them everything they could reasonably ask for.  The one I’ve proposed is similar to the version of South Carolina’s voter ID law that was ultimately upheld by a three-judge panel, in an opinion by Brett Kavanaugh<https://www.leagle.com/decision/infdco20121011959> (then a D.C. Circuit judge, now a U.S. Supreme Court Justice).  It would be more than sufficient to address concerns with preventing voter fraud, promoting voter confidence, and modernizing the election system, the concerns that led the Supreme Court to uphold Indiana’s more stringent photo ID requirement in Crawford v. Marion County<https://www.law.cornell.edu/supct/html/07-21.ZS.html>.

Of course, there are some Republicans who’ve thought that it’s good politics to make voting more difficult.  The leading example is Kris Kobach<https://newrepublic.com/minutes/152097/kris-kobach-face-voter-suppression-loses-governors-race-kansas>, who staked his career on stoking fears of voting fraud and pressing for ever-more stringent voting restrictions. His fate in this year’s election – losing the Governor’s race in deep-red Kansas – should be a lesson for any Republican who thinks that vote suppression is smart politics.  Making it more difficult for some people to vote may have some short-term benefits.  But in the long run, it’s likely to trigger a backlash, especially among groups of voters whose share of the electorate is increasing.   Democrats already use the threat of vote suppression as a means by which to raise money and motivate their base.  Agreeing to reasonable voting legislation would help Republicans show that they care about both access and integrity, making it more difficult for Democrats to use the Voting Wars<https://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300198248> (as Rick Hasen calls them) to their electoral advantage.

Finally, Republicans should support election reform because it will help their voters vote too.  The conventional wisdom has long been that higher turnout helps Democrats.  That’s mainly because groups that vote less consistently – especially people of lower socioeconomic status – tend to support Democratic candidates.  It’s still generally true that low-income voters are more likely to identify as Democrats <https://www.cnn.com/election/2018/exit-polls> than high-income voters.  But the demographics of the two parties has shifted and there’s a good chance that will continue. Wealthy neighborhoods are trending Democratic, while less affluent districts (those with median incomes under $50,000) were more closely divided<https://www.washingtonpost.com/graphics/2018/politics/midterm-election-precinct-results/?utm_term=.b8d7f46acb3b>.  College graduates continue to shift toward the Democratic Party, while those who haven’t attended college are roughly divided<http://www.people-press.org/2018/03/20/1-trends-in-party-affiliation-among-demographic-groups/> between the two parties.  We can’t know for sure what the future holds, but if these demographic trends continue, then the Republican Party will increasingly depend on votes from people with lower education and income levels – demographic groups that are most likely to be helped by liberalized voter registration and hurt by stringent voter ID rules.

No one can deny that passing any voting legislation is a longshot in our hyperpolarized political environment.  Cynics will call any Grand Election Bargain naïve and argue that there’s no point in even trying to craft compromise legislation.  But I think we should aspire to more than empty political posturing, or placeholders for legislation that we might dream of becoming law when our idealized Congress is finally elected.   The reality is that both Democrats and Republicans in Congress have an incentive to get something done.  So should our President, who loves to portray himself as a dealmaker.  There’s no area where a real deal could make more of a difference than election reform.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>, voter id<https://electionlawblog.org/?cat=9>, voter registration<https://electionlawblog.org/?cat=37>


Stacey Abrams Responds on Chris Hayes’s Show to My Slate Piece About Dangers of Referring to Georgia Election as Stolen<https://electionlawblog.org/?p=102415>
Posted on November 20, 2018 11:26 am<https://electionlawblog.org/?p=102415> by Rick Hasen<https://electionlawblog.org/?author=3>

Watch at the 2:40 mark:

https://youtu.be/zh-EDWz-V_Y




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


“Democrats plan ‘aggressive’ oversight of Federal Election Commission”<https://electionlawblog.org/?p=102413>
Posted on November 20, 2018 7:41 am<https://electionlawblog.org/?p=102413> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI:<https://www.publicintegrity.org/2018/11/20/22499/democrats-plan-aggressive-oversight-federal-election-commission>

For most of this decade, Congress has all but ignored the perpetually gridlocked Federal Election Commission, which exists to enforce and regulate the nation’s campaign finance laws.

No longer, two Democratic congressional representatives tell the Center for Public Integrity<https://www.publicintegrity.org/politics>. The bipartisan FEC is broken and needs fixing, they argue.

“In the next Congress, we will be conducting aggressive oversight and pursuing legislative reform so we can finally have an FEC that’s fulfilling its mission of fighting corruption,” said Rep. Zoe Lofgren<https://twitter.com/RepZoeLofgren>, D-Calif., a member and potential chairwoman next year of the Committee on House Administration, which has jurisdiction over the FEC.

Rep. Jamie Raskin<https://twitter.com/jamie_raskin>, D-Md., concurred.

“We clearly need to have an oversight hearing on the FEC,” said Raskin, also a member of the Committee on House Administration. “We need to shine a spotlight on dysfunction at the FEC.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>


--
Rick Hasen
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UC Irvine School of Law
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