[EL] ELB News and Commentary 10/3/18

Tue Oct 2 22:19:22 PDT 2018

Big: More States Have Major Problems with Overseas Voters Reaching State Websites to Access Absentee Ballots<https://electionlawblog.org/?p=101360>
Posted on October 2, 2018 4:59 pm<https://electionlawblog.org/?p=101360> by Rick Hasen<https://electionlawblog.org/?author=3>

Jonathan Lai<http://www2.philly.com/philly/news/pa-uocava-voters-unable-access-absentee-ballot-site-20181002.html> for the Philly Inquirer:

Thousands of registered Pennsylvania voters who live outside the United States are being blocked from accessing absentee ballots on the state’s website in a move intended to beef up election security.

Several other states, including New Mexico, Tennessee, Georgia, and Vermont, also appear to be blocking foreign access to their election sites.

“This should be a red flashing light issue in the state of Pennsylvania right now. They need to solve it — today,” said Susan Dzieduszycka-Suinat, president and CEO of the nonprofit U.S. Vote Foundation. “Because they are actually suppressing votes if this is how it is right now.”
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>

“Corporations Are Striking Back On Ballot Initiatives”<https://electionlawblog.org/?p=101358>
Posted on October 2, 2018 1:40 pm<https://electionlawblog.org/?p=101358> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost:<https://www.huffingtonpost.com/entry/corporations-are-striking-back-on-ballot-initiatives_us_5bb28bf6e4b0d1ebe0e3f1d0>

Ballot measures have produced a wave of ambitious progressive reforms in recent years, from legalizing marijuana to expanding voting rights to granting paid family leave. This year, corporations have become equally ambitious in fighting them ― and experts say they’re hitting new levels of audacity in doing so.

Dialysis companies, for example, have raised $53 million<https://ballotpedia.org/California_Proposition_8,_Limits_on_Dialysis_Clinics%27_Revenue_and_Required_Refunds_Initiative_(2018)> to fight a Californiaproposition<https://www.sacbee.com/news/politics-government/capitol-alert/article217486395.html> that would cap their profits at 15 percent. In Florida, Disney has teamed up with the Seminole tribe to make competition<https://www.orlandosentinel.com/opinion/os-casino-ban-florida-disney-seminoles-scott-maxwell-20180813-story.html> in the casino sector illegal. Mining companies in Alaska are working to defeat<https://www.adn.com/politics/2018/02/13/mining-companies-donate-1-million-to-campaign-against-alaska-fish-habitat-initiative/> an effort to protect salmon habitats. And Coca-Cola and Pepsi are trying to persuade<https://www.kiro7.com/news/local/anti-grocery-tax-measure-funded-by-big-soda-companies/826449493> Washington and Oregon voters to prohibit any tax on groceries — a category that just so happens to include sodas.
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Posted in direct democracy<https://electionlawblog.org/?cat=62>

“Commissioner Gail Heriot Statement and Rebuttal in the U.S. Commission on Civil Rights’ An Assessment of Minority Voting Rights Access in the United States”<https://electionlawblog.org/?p=101356>
Posted on October 2, 2018 9:58 am<https://electionlawblog.org/?p=101356> by Rick Hasen<https://electionlawblog.org/?author=3>

New on SSRN:<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3249121>

On September 12, 2018, the U.S. Commission on Civil Rights published a report entitled “An Assessment of Minority Voting Rights Access in the United States.” This Statement was part of that report. It argues, among other things, that the Commission’s report is too one-sided and fails to recognized tradeoffs between encouraging the participation of voters and discouraging voting by individuals who are not entitled to vote.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>

“Citizenship and the Census”<https://electionlawblog.org/?p=101354>
Posted on October 2, 2018 9:56 am<https://electionlawblog.org/?p=101354> by Rick Hasen<https://electionlawblog.org/?author=3>

Justin Levitt has posted this timely draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3250265> on SSRN (forthcoming Columbia Law Review). Here is the abstract:

On March 26, 2018, Secretary of Commerce Wilbur Ross determined that the federal government would use the 2020 decennial Census to ask every person in the country about their citizenship status. The decision was enormously controversial. The decennial Census appears in the sixth sentence of the Constitution, as the very first responsibility of the new federal government; many believed that the decision to add a question on citizenship, in this climate, could put the enumeration itself in jeopardy.

This piece is the first to interrogate the legal and political rationale of that decision, and its consequences for the theoretical basis of American representative democracy and for the tangible distribution of clout and cash. In Part I, it explores the likely impact of the decision, demonstrating that Secretary Ross’s eleventh-hour intervention presents risks for the decennial enumeration that the Census Bureau itself had previously deemed intolerable, and which have only intensified in the current political climate. Part II turns to the proffered basis for this upheaval. It finds the decision essentially unjustified by the public rationale offered, and probes alternative rationales beyond the pretext that might better explain why the decision was made. Several of these alternatives concern the allocation of political power in the decennial apportionment and redistricting cycle to come; the piece closes by examining the decision’s likely roots in a long-simmering and hotly contested fight over the nature of representation, quite likely to reemerge in the years ahead.

Can’t wait to read this!
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Don’t forget about Kavanaugh’s troubling legal philosophy”<https://electionlawblog.org/?p=101352>
Posted on October 2, 2018 9:52 am<https://electionlawblog.org/?p=101352> by Rick Hasen<https://electionlawblog.org/?author=3>

George Thomas<https://www.washingtonpost.com/opinions/dont-forget-about-kavanaughs-troubling-legal-philosophy/2018/10/02/f4d25664-c5af-11e8-9158-09630a6d8725_story.html?utm_term=.e63472c7b7fc> WaPo oped:

As the FBI conducts its investigations<https://www.washingtonpost.com/politics/trump-adds-to-confusion-over-scope-of-fbi-investigation-of-kavanaugh-accusations/2018/10/01/1aa5e922-c561-11e8-b1ed-1d2d65b86d0c_story.html?utm_term=.019bee7cc537> into the sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh, just about everyone has been distracted from questions about his legal philosophy. But let’s not forget, as Justice Neil M. Gorsuch put it in somewhat different circumstances, to talk about the arcane matter<https://www.cnn.com/2017/10/08/politics/neil-gorsuch-john-roberts-rivalry/index.html> of the Constitution. There are unanswered questions here, too.

Kavanaugh insists<https://scholarship.law.nd.edu/ndlr/vol89/iss5/1/> that one factor “matters above all in constitutional interpretation”: understanding the “precise wording of the constitutional text.” During his confirmation hearings, he frequently turned to his well-thumbed pocket Constitution to highlight this point.

Yet text does not always speak for itself. How we interpret constitutional text depends on our larger understanding of what kind of government the Constitution brought into being, as well as our understanding of more specific concepts such as “the executive power” or “equal protection of the laws.” Here text is helpful, but only suggestive.
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Posted in statutory interpretation<https://electionlawblog.org/?cat=21>, Supreme Court<https://electionlawblog.org/?cat=29>

“Trump Directed Legal Action to Enforce Stormy Daniels’s Hush Agreement”<https://electionlawblog.org/?p=101350>
Posted on October 2, 2018 7:41 am<https://electionlawblog.org/?p=101350> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ<https://www.wsj.com/articles/trump-directed-legal-action-to-enforce-stormy-danielss-hush-agreement-1538478000>:

President Trump personally directed an effort in February to stop Stormy Daniels from publicly describing an alleged sexual encounter with Mr. Trump, people familiar with the events say….

Mr. Trump told Mr. Cohen to coordinate the legal response with Eric Trump, one of the president’s sons, and another outside lawyer who had represented Mr. Trump and the Trump Organization in other matters, the people said. Eric Trump, who is running the company with his brother in Mr. Trump’s absence, then tasked a Trump Organization staff attorney in California with signing off on the arbitration paperwork, these people said.
Direct involvement of the president and his son in the effort to silence Ms. Clifford hasn’t previously been reported. The accounts of that effort recently provided to The Wall Street Journal suggest that the president’s ties to his company continued into this year and contradict public statements made at the time by the Trump Organization, the White House and Mr. Cohen.
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Posted in conflict of interest laws<https://electionlawblog.org/?cat=20>

“Despite Strong Headwinds, 2018 CPA-Zicklin Index Finds Company Political Disclosure Holds Steady”<https://electionlawblog.org/?p=101348>
Posted on October 2, 2018 7:39 am<https://electionlawblog.org/?p=101348> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

Public corporations embracing disclosure and accountability of their political spending are holding fast despite countervailing pressures from Washington.

That’s the chief finding to emerge from a non-partisan study released today<https://politicalaccountability.us7.list-manage.com/track/click?u=40bf5e49b86aa2f0454aafef6&id=9c0996ec79&e=496938447c> by the Center for Political Accountability (CPA) and the Zicklin Center for Business Ethics Research at The Wharton School at the University of Pennsylvania.

Released in the run-up to the high-stakes 2018 midterm election, this year’s index is the first to examine these trends during an entire year of the Trump Administration and a Republican majority Congress.

It finds a pattern of large public companies holding steady in accepting and practicing disclosure and accountability with regard to their election-related spending. In several key categories, more companies are letting in sunlight or strengthening their related practices.

Data reflecting these trends are found in the 8th annual CPA-Zicklin Index of Corporate Political Disclosure and Accountability, issued by CPA in conjunction with the Carol and Lawrence Zicklin Center at The Wharton School.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“Bipartisan Task Force Unveils Proposals to Strengthen Government Ethics, Rule of Law”<https://electionlawblog.org/?p=101346>
Posted on October 2, 2018 7:37 am<https://electionlawblog.org/?p=101346> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center<http://www.brennancenter.org/press-release/bipartisan-task-force-unveils-proposals-strengthen-government-ethics-rule-law>:

The National Task Force on Rule of Law and Democracy<https://www.democracytaskforce.org/> – a group of former public servants and policy experts housed at the Brennan Center for Justice at NYU Law<http://brennancenter.org/> – today laid out a vision for strengthening government ethics and the rule of law. Their first report<https://www.brennancenter.org/taskforce> includes specific proposals, such as requiring presidential candidates to disclose tax returns and creating a stronger enforcement mechanism for ethical breaches. The report was launched today at an event at the National Press Club in Washington, DC.

The Task Force, chaired by former U.S. Attorney Preet Bharara and former New Jersey Governor Christine Todd Whitman, outlines these proposals as part of an effort to turn what have traditionally been unwritten rules and norms of government behavior into commonsense, bipartisan laws.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Today’s Must Watch: Gerrymander Jewelry Ad<https://electionlawblog.org/?p=101344>
Posted on October 2, 2018 7:29 am<https://electionlawblog.org/?p=101344> by Rick Hasen<https://electionlawblog.org/?author=3>

Too funny<https://www.youtube.com/watch?v=MWjLFZdWz9E>:
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Posted in redistricting<https://electionlawblog.org/?cat=6>

--
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>
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http://electionlawblog.org<http://electionlawblog.org/>
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