[EL] ELB News and Commentary 10/25/18

Wed Oct 24 20:03:46 PDT 2018

“Pipe Bombs Sent to Hillary Clinton, Barack Obama and CNN Offices”<https://electionlawblog.org/?p=101722>
Posted on October 24, 2018 7:50 pm<https://electionlawblog.org/?p=101722> by Rick Hasen<https://electionlawblog.org/?author=3>

So troubling:<https://www.nytimes.com/2018/10/24/nyregion/clinton-obama-explosive-device.html?action=click&module=Top%20Stories&pgtype=Homepage>

Pipe bombs were sent to several prominent Democrats, including former President Barack Obama and former Secretary of State Hillary Clinton, setting off an intense investigation on Wednesday into whether figures vilified by the right were being targeted.

From Washington to New York to Florida to Los Angeles, the authorities intercepted a wave of crudely built devices that were contained in manila envelopes.

In the center of Manhattan, the Time Warner Center, an elegant office and shopping complex, was evacuated because of a pipe bomb<https://www.nytimes.com/2018/10/24/nyregion/cnn-time-warner-bomb-nyc.html?module=inline> sent to CNN, which has its New York offices there. It was addressed to John O. Brennan, a critic of President Trump who served as Mr. Obama’s C.I.A. director.

None of the devices harmed anyone, and it was not immediately clear whether any of them could have. One law enforcement official said investigators were examining the possibility that they were hoax devices that were constructed to look like bombs but would not have exploded.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Democracy itself is on the ballot this year”<https://electionlawblog.org/?p=101720>
Posted on October 24, 2018 6:09 pm<https://electionlawblog.org/?p=101720> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo oped:<https://www.washingtonpost.com/opinions/democracy-itself-is-on-the-ballot-this-year/2018/10/24/75dc588e-d7a5-11e8-83a2-d1c3da28d6b6_story.html?utm_term=.e4d951c0b44e>

The midterm elections have been marred by controversy over alleged voter suppression in Georgia<https://www.wabe.org/georgia-purged-about-107000-people-from-voter-rolls-report/>, North Dakota<https://www.npr.org/2018/10/13/657125819/many-native-ids-wont-be-accepted-at-north-dakota-polling-places> and elsewhere. Once again, partisans want to make it harder for fellow citizens to cast their ballots. It’s ugly.

But amid the dispiriting bid to curb voting, something else is happening: For the first time in years, citizens have responded with a robust push to expand democratic rights. Breakthrough ballot measures across the country would expand voting rights and improve representation. If enacted, they could add up to a democracy wave, regardless of which party prevails.
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Posted in direct democracy<https://electionlawblog.org/?cat=62>

“A new kind of voting faces Election Day test in Maine”<https://electionlawblog.org/?p=101718>
Posted on October 24, 2018 6:06 pm<https://electionlawblog.org/?p=101718> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/b63a5ad8e48044fc9893624106f48bc8>

A new way of voting in Maine allows people to rank candidates from best to worst with provisions for additional voting rounds, candidate eliminations and extra tabulations to ensure there’s a consensus winner who collects a majority of the votes.

The ranked-choice voting system will be used for the first time in history in U.S. House and Senate races in Maine on Election Day.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

“Federal judge to order Ga. counties to stop absentee ballot rejections” (Signature Match Case)<https://electionlawblog.org/?p=101716>
Posted on October 24, 2018 5:23 pm<https://electionlawblog.org/?p=101716> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/local-govt--politics/breaking-judge-proposes-injunction-absentee-ballot-rejections/drBFCpDG2Kmn1kJwQxItMJ/>

A federal judge intends to issue an injunction barring Georgia election officials from tossing certain absentee ballots without giving would-be voters advance notice and a chance to rectify any issues.

The implementation of the injunction — which U.S. District Court Judge Leigh Martin May plans to file Thursday — could complicate the work of election officials statewide, requiring the review of hundreds or thousands of ballot signatures with less than two weeks until Election Day. But civil rights groups whose lawsuits<https://www.ajc.com/news/local-govt--politics/federal-judge-mulling-action-over-georgia-absentee-ballots/JS3hXmCTp0wiI6ZOJui47L/> led to May’s decision have already declared victory in the battle, just one of many voting rights skirmishes to surface in what’s become a contentious Georgia election season.

You can find today’s court order here<https://www.aclu.org/legal-document/order-granting-temporary-restraining-order>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Vote. Otherwise, the Hackers Win”<https://electionlawblog.org/?p=101714>
Posted on October 24, 2018 5:09 pm<https://electionlawblog.org/?p=101714> by Rick Hasen<https://electionlawblog.org/?author=3>

John Fortier in Roll Call:<https://www.rollcall.com/news/opinion/vote-otherwise-hackers-win>

 Don’t let worries about election security keep you from going to the polls. The American voting system is in a better place than it has ever been, and added layers of protection ensure that votes can be cast and properly counted.

What are citizens to do when they hear the constant drumbeat of elections under siege and the potential that election results could be changed by malicious actors? The answer: vote.

Sitting out the election does nothing to promote election security. Voter turnout in midterm elections typically hovers around 40 percent of eligible voters, which is already too low. Better information about the strength and resiliency of the voting system should reassure worried voters.
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Posted in voting technology<https://electionlawblog.org/?cat=40>

“Meet The Kansas Woman Who Exposed Security Flaws In Kris Kobach’s Voter Fraud Tool”<https://electionlawblog.org/?p=101712>
Posted on October 24, 2018 5:04 pm<https://electionlawblog.org/?p=101712> by Rick Hasen<https://electionlawblog.org/?author=3>

KCUR<http://www.kcur.org/post/meet-kansas-woman-who-exposed-security-flaws-kris-kobachs-voter-fraud-tool?fbclid=IwAR3_Mip46-J5BDv-M-chW1tu3vGocQnWdWbNnS5EeLpw0unvz_Yf73Z8QWM#stream/0>:

Come in and sit down at Anita Parsa’s kitchen table. Help yourself to the chocolate chip cookies and she’ll get you an iced tea. Might as well make yourself comfortable.

Because for the next hour, she’s going to school you on a massive voter-tracking program run by Kansas Secretary of State Kris Kobach.

“I like to figure out puzzles,” Parsa says. “I like to crack things, and that’s what this is all about.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Read This Thread from NYT Reporter Astor on the Challenge of Getting Residential Addresses for Voters in North Dakota on Native American Land<https://electionlawblog.org/?p=101710>
Posted on October 24, 2018 5:03 pm<https://electionlawblog.org/?p=101710> by Rick Hasen<https://electionlawblog.org/?author=3>

Read this thread from NY Times reporter Maggie Astor on the ground in North Dakota<https://twitter.com/MaggieAstor/status/1055138652618141697>:
[https://pbs.twimg.com/profile_images/968762584567615488/pmFo0Sfd_bigger.jpg]<https://twitter.com/MaggieAstor>
<https://twitter.com/MaggieAstor>
Maggie Astor<https://twitter.com/MaggieAstor>
✔@MaggieAstor<https://twitter.com/MaggieAstor>

<https://twitter.com/MaggieAstor/status/1055138652618141697>

Waiting for my flight in Bismarck, so it's story time. I've spent the past three days in North Dakota reporting on the voter ID law here, which requires residential addresses. Many Native Americans, especially those living on reservations, don't have residential addresses. 1/
9:47 AM - Oct 24, 2018<https://twitter.com/MaggieAstor/status/1055138652618141697>

·         <https://twitter.com/intent/like?tweet_id=1055138652618141697>

6,870<https://twitter.com/intent/like?tweet_id=1055138652618141697>

·         <https://twitter.com/MaggieAstor/status/1055138652618141697>

4,374 people are talking about this<https://twitter.com/MaggieAstor/status/1055138652618141697>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Seizing On Supreme Court Order, DOJ Tries To Delay Census Citizenship Trial”<https://electionlawblog.org/?p=101708>
Posted on October 24, 2018 7:55 am<https://electionlawblog.org/?p=101708> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/muckraker/doj-tries-to-delay-census-citizenship-trial>

Having secured only a partial victory<https://talkingpointsmemo.com/muckraker/scotus-halts-ross-depo-in-census-case-will-let-doj-official-be-deposed> at the Supreme Court in blocking certain depositions and discovery in the census citizenship question case, the Justice Department is asking a federal judge in Manhattan to delay the start of trial next month, so that the administration can have another go at getting the Supreme Court to intervene.
The request, filed Tuesday evening, asks U.S. District Judge Jesse Furman to put the trial on hold, and to also delay the pretrial proceedings he had scheduled, which include pretrial filings due this week.

It comes after the Supreme Court issued an order Monday night<https://talkingpointsmemo.com/muckraker/scotus-halts-ross-depo-in-census-case-will-let-doj-official-be-deposed> halting plans to depose Commerce Secretary Wilbur Ross, but denying DOJ requests to put on hold another deposition and as well as additional discovery ordered by the lower court judge.

The Trump administration has argued that the lower court’s finding that Ross acted in “bad faith,” which was used to justify the depositions and discovery, was incorrect.
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>

“Georgia NAACP Files Voter Complaint Against Secretary of State Brian Kemp Over Voting Machine Irregularities”<https://electionlawblog.org/?p=101706>
Posted on October 24, 2018 7:09 am<https://electionlawblog.org/?p=101706> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

The NAACP Georgia State Conference President Phyllis T. Blake filed complaints with the State Board of Elections for possible voter suppression tactics regarding malfunctions of the touch screen machines inBartow,Cobb, Henry and Dodge Counties.

The Georgia NAACP has received complaints from several voters on touch screen irregularities when attempting to select Stacey Abrams as their choice for governor – the machines instead chose Secretary of State Brian Kemp. In other instances, machines showed ballots being cast before any the person actually voted.

According to reports from eye witnesses to NAACP officials, this has occurred in at least four counties in Georgia including Bartow, Dodge, Cobb, and Henry Counties. Yesterday the NAACP filed complaints with both Bartow and Dodge County’s Board of Elections and this morning filed complaints in both Cobb, and Henry counties. The NAACP is a non-partisan organization, and we want to ensure that each voter is able to cast their ballot for their candidate of choice….
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Foley and Huefner: The ALI Tackles Election Law Just in Time<https://electionlawblog.org/?p=101704>
Posted on October 24, 2018 7:07 am<https://electionlawblog.org/?p=101704> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Ned Foley and Steve Huefner. We all owe them a great deal of gratitude for the job they did. It is extremely hard to forge bipartisan consensus among a group of election lawyers and law professors, and they did their job with extreme thought, care, and balance:

Most lawyers know about the American Law Institute.  As first-year law students, they encounter the ALI’s Restatements of Contracts, Torts, Property, and other basic subjects—efforts by ALI to glean from existing judicial precedents the essence of those common-law subjects, a process of distillation that is understood to point those fields of law in the right direction (normatively speaking), even as the Restatements endeavor to be faithful descriptions of the law as it actually is.

First-years also know the ALI’s Model Penal Code, a monumental undertaking designed (as its title implies) to provide an idealized conception of what basic criminal law should be.  Judges and attorneys all around the country routinely use the Restatements, the Model Penal Code, the Uniform Commercial Code (produced jointly with the Uniform Law Commission) and the ALI’s other work product in an effort to better understand a field of law and to apply its articulated principles to whatever particular facts might be at hand and require some sort of resolution in our legal system.

In its 95 years of existence—the ALI<https://www.ali.org/about-ali/> was founded in 1923 by such luminaries as Chief Justices William Howard Taft and Charles Evans Hughes, Justice Benjamin Cardozo, and Judge Learned Hand—the ALI never pronounced its views on the topic of election law.  It covered such fields as employment law, and family law, and foreign relations law.  But not election law.

Until now.  The ALI just announced the publication of its new statement of principles, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes<https://www.ali.org/publications/show/resolution-election-disputes/>.

This publication had its genesis in the emergence of the “voting wars”<https://www.amazon.com/dp/B008MXQCPY/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1> that occurred in the aftermath of the 2000 election, as underscored in 2008 first by the voter ID litigation that culminated in Crawford v. Marion County and then the litigation over the outcome of the U.S. Senate election in Minnesota that year.  The goal was to employ ALI’s tested method of nonpartisan and rigorous analysis to election law topics especially fraught with contentiousness.  The leading attorneys on both sides of the Minnesota dispute, among many other election lawyers known for representing both political parties and their candidates, advised the ALI on both the contours and the content of this project.

Early on, based on this bipartisan advice, it was decided that the ALI’s first foray into the field of election law should be limited to two discrete topics: (1) the rapidly emerging domain of nontraditional methods of voting, specifically “no excuse” absentee voting and “early” voting in advance of the traditional election day; and (2) the domain of recounts and other post-voting procedures for resolving disputes over the outcome of elections.  The reason for tackling the first topic was that, being novel, it was particularly in need of attention—and one in which partisan positions had not yet become deeply entrenched.  This area of election law also was becoming an increasing source of disputation in contested elections.  The reason for tackling the second topic was that, in addition to being especially consequential (determining as it does who wins and who loses the closest and most contentious of contests), it ironically offers the best chance for bipartisan consensus.  How so? Because what candidates care most about in the context of post-voting disputes is whether they are ahead or behind in the count; they will make whatever argument is most advantageous depending upon this relative position, regardless of ideology or party affiliation.  As a result, if bipartisan rules can be agreed upon in advance of any particular election, before candidates know whether they will be ahead or behind once votes are preliminarily counted, those rules will be intrinsically fair to both sides.

The two of us have been honored to serve as “reporters” for this project. In this role, we have shepherded drafts through the ALI’s advisory committees, which included prominent scholars familiar to readers of this blog, federal and state judges, as well as the aforementioned bipartisan representation of leading election law practitioners. These drafts then went before the ALI’s governing council<https://www.ali.org/about-ali/governance/officers-council/list-council-members/> and ultimately its entire membership.  The now-released publication<https://www.ali.org/publications/show/resolution-election-disputes/> is the result of this extensive—and intensive—deliberative process.

The goal of the publication is to be useful to resolving the kind of controversies that could occur in this year’s elections.  Without considering the specific facts of any particular controversy, and without endeavoring to determine how the now-published ALI principles would line up with respect to those specific facts, there is no way of knowing in advance whether the ALI principles would favor one candidate or party in the context of that particular dispute.  But that’s the beauty of the ALI project.  Adopted far in advance of any particular election, behind the proverbial “veil of ignorance,” by a nonpartisan process committed to the ideal of fair and impartial rules for governing democratic competition between candidates, these ALI principles offer the most neutral way to resolve any controversy that might actually arise.  No one can reasonably accuse the ALI principles to have been drafted to favor any one candidate in any particular dispute that might occur this—or any other—year.

Thus, if any particular election this year turns out to be mired in litigation—as seems plausible in light of the significant pre-election skirmishing that already has developed—it is hoped that the adjudicators of those disputes (whether they be courts, or administrative bodies, or even legislative chambers charged with judging the elections of their members) will turn to these ALI principles for guidance concerning a fair and impartial method for resolving those disputes.

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Posted in Uncategorized<https://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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