[EL] ELB News and Commentary 11/30/18

[Rick Hasen]

“Senator Tim Scott Sinks Thomas Farr’s Judicial Nomination Amid Racial Controversy”<https://electionlawblog.org/?p=102552>
Posted on November 29, 2018 8:18 pm<https://electionlawblog.org/?p=102552> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/11/29/us/politics/tim-scott-judicial-nominee-thomas-farr-race.html>

Tim Scott of South Carolina, the lone black Republican senator, said on Thursday that he would oppose the judicial nomination of Thomas A. Farr, a lawyer who defended a North Carolina voter identification law and a partisan gerrymander that a federal court said was drafted to suppress black votes “with surgical precision.”

Mr. Scott will join Senator Jeff Flake, Republican of Arizona, who has vowed to oppose every White House nominee unless the Senate votes on legislation to protect the special counsel, Robert S. Mueller III. With Democrats united against Mr. Farr, his nomination to a United States District Court appears doomed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Certification in limbo in N.C. House race as fraud investigation continues”<https://electionlawblog.org/?p=102550>
Posted on November 29, 2018 8:11 pm<https://electionlawblog.org/?p=102550> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/certification-in-limbo-in-nc-house-race-as-fraud-investigation-continues/2018/11/29/109209f6-f406-11e8-80d0-f7e1948d55f4_story.html?utm_term=.b4d129dca4a9>

Mounting evidence of voter fraud in North Carolina’s 9th Congressional District could indefinitely delay the certification of a winner, as state election officials investigate whether hundreds of absentee ballots were illegally cast or destroyed.

The North Carolina State Board of Elections and Ethics Enforcement has no plans to certify Republican Mark Harris’s 905-vote victory over Democrat Dan McCready, according to an agenda of a board meeting scheduled for Friday morning.

The board is collecting sworn statements from voters in rural Bladen and Robeson counties, near the South Carolina<https://www.washingtonpost.com/election-results/south-carolina/?tid=a_inl_auto> border, who described people coming to their doors and urging them to hand over their absentee ballots, sometimes without filling them out. Others described receiving absentee ballots by mail that they had not requested. It is illegal to take someone else’s ballot and turn it in.

Investigators are also scrutinizing unusually high numbers of absentee ballots cast in Bladen County, in both the general election and the May 8 primary, in which Harris defeated incumbent Rep. Robert Pittenger (R) by 828 votes. In the primary, Harris won 96 percent of all absentee ballots in Bladen, a far higher percentage than his win in the county overall — a statistic that this week is prompting fresh accusations of fraud.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Court ruling could force everyday Missourians to register as lobbyists, attorneys say”<https://electionlawblog.org/?p=102547>
Posted on November 29, 2018 8:06 pm<https://electionlawblog.org/?p=102547> by Rick Hasen<https://electionlawblog.org/?author=3>

KC Star:<https://www.kansascity.com/news/politics-government/article222359845.html>

Ron Calzone has been walking the hallways of the Missouri statehouse for years, meeting with lawmakers and their staffs, testifying before legislative committees and advocating for the conservative causes he holds dear.

But he swears he’s not a lobbyist.

True, he’s founder, director and sole officer of a nonprofit called Missouri First, a group that includes legislative lobbying to influence public policy in its charter.

Calzone never withholds his affiliation with the group when speaking with elected officials. But he is unpaid, never claims to be speaking on behalf of the organization and never gives legislators gifts of any kind.
Thus, he doesn’t believe he should have to register with the state ethics commission or submit reports detailing all of the ways in which he has attempted to influence legislation.

The United States Court of Appeals for the Eighth Circuit disagrees.

In a 2-1 ruling<http://media.ca8.uscourts.gov/opndir/18/11/172654P.pdf> on Wednesday, the court found that Calzone’s activity qualifies as lobbying, and the government’s interest in transparency means even an unpaid lobbyist must register and file lobbying reports.

Howard notes<https://howappealing.abovethelaw.com/2018/11/29/#84476> Judge David Stras’s very interesting dissent<http://media.ca8.uscourts.gov/opndir/18/11/172654P.pdf#page=16>, raising First Amendment arguments against compelled disclosure and registration.
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Posted in lobbying<https://electionlawblog.org/?cat=28>


“Mystery ballot could sway control of Alaska state government”<https://electionlawblog.org/?p=102544>
Posted on November 29, 2018 7:54 pm<https://electionlawblog.org/?p=102544> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.seattletimes.com/nation-world/mystery-ballot-could-sway-control-of-alaska-state-government/>:

It’s a sign that every vote does count.

A single mystery ballot found on a precinct table on Election Day but not counted then could decide a tied Alaska state House race and thwart Republican efforts to control the chamber and all of state government.

The ballot arrived in Juneau last Friday in a secrecy sleeve in a bin with other ballot materials. Officials were investigating its origins and handling before deciding whether to tally it.

“People kept calling it close,” Democrat candidate Kathryn Dodge said of the race for the House seat in Fairbanks. “I just didn’t know it was going to be squeaky.”
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Posted in recounts<https://electionlawblog.org/?cat=50>


“California’s late votes broke big for Democrats. Here’s why GOP was surprised”<https://electionlawblog.org/?p=102542>
Posted on November 29, 2018 7:52 pm<https://electionlawblog.org/?p=102542> by Rick Hasen<https://electionlawblog.org/?author=3>

SF Chronicle<https://www.sfchronicle.com/politics/article/California-s-late-votes-broke-big-for-13432727.php?utm_campaign=email-premium&utm_source=CMS%20Sharing%20Button&utm_medium=social>:

California Democrats took advantage of seemingly minor changes in a 2016 law to score their stunningly successful midterm election results, providing a target for GOP unhappiness that is tinged with a bit of admiration.

Some Republicans have cast a skeptical eye on Democrats’ use of “ballot harvesting” to boost their support. The idea’s backers say it’s just one of several steps California has taken to enable more people to vote.<https://www.sfchronicle.com/politics/article/California-s-vote-count-takes-a-very-long-time-13379912.php>

Few people noticed when Gov. Jerry Brown signed the changes in AB1921 into law two years ago. <https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1921> In the past, California allowed only relatives or people living in the same household to drop off mail ballots for another voter. The new law allowed anyone, even a paid political campaign worker, to collect and return ballots — “harvesting” them, in political slang.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“New clues link $1 million Trump inauguration mystery money to secretive ‘dark money’ network”<https://electionlawblog.org/?p=102540>
Posted on November 29, 2018 3:45 pm<https://electionlawblog.org/?p=102540> by Rick Hasen<https://electionlawblog.org/?author=3>

Open Secrets<https://www.opensecrets.org/news/2018/11/trump-inauguration-money-links-secretive-dark-money/?utm_source=CRP+Mail+List&utm_campaign=290cd20f98-EMAIL_CAMPAIGN_2018_11_29_03_53&utm_medium=email&utm_term=0_9df8578d78-290cd20f98-206469445#utm_source=newsletter&utm_medium=email&utm_campaign=newsletter-trump-inauguration-darkmon-112918>:

Notorious “dark money” conduit Wellspring Committee<https://www.opensecrets.org/news/tag/wellspring-committee/> gave $14.8 million to the primary spender on Supreme Court Justice Brett Kavanaugh’s confirmation and paid $919,900 to the mysterious LLC that made a $1 million donation to President Donald Trump’s inaugural committee, according to a new tax return<https://www.documentcloud.org/documents/5299825-Wellspring-2017-990.html> obtained Nov. 27 by the Center for Responsive Politics.

Wellspring has acted as a conduit for large contributions from secretive donors since it was set up, effectively laundering multi-million dollar donations with no substantive disclosure or accountability.

Despite operating behind the scenes with a name unknown to most of the American public, Wellspring is at the crux of Ann and Neil Corkery’s network of politically active dark money groups, funneling millions from anonymous financiers to political causes they don’t want their names attached to — and doing ostensibly little else.

Wellspring has continued to be the chief financier of the Judicial Crisis Network<https://www.opensecrets.org/orgs/summary.php?id=D000026924> (JCN), with a $14,814,998 contribution last year…

The only contractor paid by Wellspring last year was BH Group, the mysterious LLC created four months to the day before it made a $1 million donation to the Trump inaugural committee on Dec. 22, 2016.

The newly discovered payment for “public relations” follows a $750,000 payment<https://www.opensecrets.org/news/2018/05/group-that-spent-millions-to-boost-gorsuch-also-paid-mysterious-inaugural-donor/> to the newly minted BH Group the prior year as well as $947,000<https://www.documentcloud.org/documents/4463990-Judicial-Crisis-Network-990-2016-2017.html> from JCN to the BH Group around when the LLC made its inaugural donation.

While it initially appeared that BH Group was merely a shell company created solely for the purpose of laundering money into the Trump inaugural committee, more information about the LLC has only added to its mystery.

New tax returns<https://www.documentcloud.org/documents/5188744-Judicial-Education-Project-2017-990.html> reviewed by CRP reveal that Judicial Education Project, JCN’s sister 501(c)(3) nonprofit organization, also paid an additional $1.3 million to BH Group LLC last year. Judicial Education Fund keeps its donors anonymous but CRP tracked the bulk of the group’s recent funding to DonorsTrust, which accounted for more than 99 percent of its money last year. Like JCN, Judicial Education Fund has also been funded by Wellspring in prior years.

One name that CRP has tied<https://www.mcclatchydc.com/latest-news/article210176219.html> to the mysterious LLC is Leonard Leo, the executive vice president at the Federalist Society, an influential conservative and libertarian legal organization, who listed “BH Group” as his employer in a campaign finance filing reported to the Federal Election Commission.

Leo’s more widely known affiliation with the Federalist Society has gained attention after reports that it played a substantial role guiding the hand of Trump’s White House in its judicial nomination process, including in the selection of Supreme Court justices.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Pennsylvania Settles Green Party Lawsuit, Pledges to Use Paper Ballots and Verified Vote Counts”<https://electionlawblog.org/?p=102538>
Posted on November 29, 2018 3:34 pm<https://electionlawblog.org/?p=102538> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld:<https://www.dailykos.com/stories/2018/11/29/1816061/-Why-It-Could-Be-Much-Harder-to-Steal-the-Vote-in-Swing-State-Pennsylvania-by-Steven-Rosenfeld>

Pennsylvania, the 2016 battleground state where many counties refused to conduct a presidential recount, has settled<https://d3n8a8pro7vhmx.cloudfront.net/jillstein/pages/29165/attachments/original/1543446617/Stein._Letter_to_the_Court_with_Settlement_Agreement__dkt_108__11-28-18_%2800356071x9CCC2%29.pdf?1543446617> a lawsuit with Green Party candidate Jill Stein and state residents, agreeing to have paper ballot-based voting in place by 2020 and a new audit process to verify vote counts before election results become official by 2022.
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Posted in election administration<https://electionlawblog.org/?cat=18>
Paul Ryan Suggests Without Evidence, But Does Not Directly Say, There’s Wrongdoing in California’s Late Vote Counting<https://electionlawblog.org/?p=102535>
Posted on November 29, 2018 12:23 pm<https://electionlawblog.org/?p=102535> by Rick Hasen<https://electionlawblog.org/?author=3>

The Fix:<https://www.washingtonpost.com/politics/2018/11/29/paul-ryan-isnt-saying-there-was-voter-fraud-california/?utm_term=.0c65212227d7>

Outgoing Speaker of House Paul D. Ryan suggested Thursday that the stream of post-Election Day Republican losses in California<https://www.washingtonpost.com/election-results/california/?tid=a_inl_auto> were suspect at best, piling on to growing claims from the right that the way the state counts ballots is somehow improper.

“It defies logic to me,” Ryan said in a wide-ranging interview with Washington Post reporter Paul Kane. “We had a lot of wins that night and three weeks later we lost basically every contested California race. This election system they have, I can’t begin to understand what ballot harvesting is.”

Ryan stopped short of accusing the state of any wrongdoing, but called the system there “bizarre.”

“I just think it’s weird,” he said when pressed by Kane at a Washington Post Live event.

Alex Padilla, California’s secretary of state, tweeted<https://twitter.com/AlexPadilla4CA/status/1068203158902583296> Thursday afternoon to rebuke Ryan…

Since those votes were counted, Democrats flipped six seats and appear on their way to taking a seventh. One of those losing Republicans, Rep. Jeff Denham, told MSNBC’s “Morning Joe” this week that California needed to revisit its election laws because it’s “statistically impossible” that all six seats that Republicans were winning on Election Night flipped weeks later once provisional ballots were counted.

In California, most of the outstanding ballots in question were ones sent by mail and received on or after Election Day. But there were also many so-called “provisional ballots,” which are ones submitted when voters show up at the wrong polling place or their name isn’t on the rolls and are allowed to still fill out a ballot to be counted later. California also allows for same-day registration, which means a lot of back-end verification that takes time.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“AZ LAW UNCONSTITUTIONAL? A Special Election To Replace Senator McCain Must Be Held In 6 Months, Claims New Lawsuit”<https://electionlawblog.org/?p=102533>
Posted on November 29, 2018 12:17 pm<https://electionlawblog.org/?p=102533> by Rick Hasen<https://electionlawblog.org/?author=3>

 Arizona’s Politics reports. <https://arizonaspolitics.blogspot.com/2018/11/az-law-unconstitutional-special.html>
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>


Evidence of Absentee Ballot Fraud Emerging in North Carolina Congressional Race, But Scale Uncertain<https://electionlawblog.org/?p=102530>
Posted on November 29, 2018 12:14 pm<https://electionlawblog.org/?p=102530> by Rick Hasen<https://electionlawblog.org/?author=3>
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<https://twitter.com/jimmorrill/status/1068226208738017290>


Here's another affidavit from a Bladen absentee voter. One reason why state officials apparently looking into such cases. #ncpol<https://twitter.com/hashtag/ncpol?src=hash> #nc9<https://twitter.com/hashtag/nc9?src=hash> #ncga<https://twitter.com/hashtag/ncga?src=hash>
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Charlotte Observer editorial: Aha! NC voter fraud does exist. (Just not the kind you think)<https://www.charlotteobserver.com/opinion/editorials/article222362650.html>:

First, what we’ve said: Voter ID laws primarily deal with protecting elections from in-person voter fraud, meaning someone going to a precinct and attempting to vote as someone else. That kind of voter fraud is rare — in 2016, the state Board of Elections found that 4,769,640 votes were cast in November and that one (1) would probably have been avoided with a voter ID law<https://www.charlotteobserver.com/opinion/editorials/article146486019.html>.

What may have happened in the 9th District — and specifically Bladen County — is a different kind of fraud. There, according to two editorial board sources,<https://www.charlotteobserver.com/opinion/editorials/article222294350.html> the board of elections is investigating whether an individual gained access to absentee ballots for the November election, perhaps through voters who requested them from the county or state. Those ballots were filled out for Mark Harris, who defeated Democrat Dan McCready by 905 votes. The number of absentee ballots cast in Bladen was less than Harris’ overall margin of victory.

Sources say that same individual was investigated two years ago for similar allegations, and as WFAE’s Steve Harrison reports<http://www.wfae.org/post/harris-pittenger-race-unusual-bladen-county-absentee-mail-votes-poured-harris#stream/0>, Harris won a startling 96 percent of the Bladen absentee vote in his 2018 primary victory over then incumbent Robert Pittenger. There are several questions to be answered about what happened there, including whether the Harris campaign knew of the work potentially being done on its behalf.

This much we do know about absentee voter fraud: Experts say<http://blogs.reuters.com/great-debate/2014/04/30/exorcising-the-voter-fraud-ghost/> it’s a far easier and more frequent way to compromise the integrity of elections. One exhaustive study<https://votingwars.news21.com/voter-fraud-is-not-a-persistent-problem/> of 12 years of elections in five states found only 10 cases of alleged voter impersonation, but 491 prosecutions for absentee ballot fraud. That’s also not a terribly large number given the hundreds of millions of votes cast in that time period, but it does show that if lawmakers want to attack voter fraud, they’re aiming at the wrong kind.


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Posted in chicanery<https://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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