[EL] ELB News and Commentary 9/6/18

Rick Hasen rhasen at law.uci.edu
Thu Sep 6 08:01:08 PDT 2018 

TODAY! ABA Webinar September 6: Gerrymandering and the New Supreme Court: Where Do We Go From Here?<https://electionlawblog.org/?p=100880>
Posted on September 6, 2018 7:57 am<https://electionlawblog.org/?p=100880> by Rick Hasen<https://electionlawblog.org/?author=3>

[Bumping to the top]

Looking forward to doing this<https://register.gotowebinar.com/register/5234858815652352515>:
Gerrymandering and the New Supreme Court: Where Do We Go From Here?<http://maestro.abanet.org/trk/click?ref=z11aidwdq5_0-39a2dx385333x027728&>

Date: Thursday, September 6, 2018
Time: 1:00 p.m. – 2:00 p.m. ET
Format: Webinar

DESCRIPTION: The webinar will discuss the two most recent Supreme Court decisions on gerrymandering, Gill v. Whitford and Benisek v. Lamone, the impact of Justice Kennedy’s retirement on challenges to gerrymandering, and where community and political activism challenging gerrymandering will go from here.

SPEAKERS:
– Kathay Feng, Executive Director, California Common Cause
– Rick Hasen, Professor, University of California at Irvine

MODERATORS:
– Lin Y. Chan, 2018-19 Co-Chair, ABA CRSJ Fair and Impartial Courts Committee
– James M. Perez, 2018-19 Co-Chair, ABA CRSJ Fair and Impartial Courts Committee



Register Here →<http://maestro.abanet.org/trk/click?ref=z11aidwdq5_0-39a2dx385336x027728&>



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


“Brett Kavanaugh gave a troubling answer to Sen. Kamala Harris’ question on the Voting Rights Act”<https://electionlawblog.org/?p=101001>
Posted on September 6, 2018 7:53 am<https://electionlawblog.org/?p=101001> by Rick Hasen<https://electionlawblog.org/?author=3>

Think Progress:<https://thinkprogress.org/brett-kavanaugh-kamala-harris-voting-rights-act-84f74cc00212/>

Kavanaugh, for his part, tried to downplay the significance of Shelby County. “There is still, of course, Section 2 of the Voting Rights Act,” the nominee explained. That provision “allows litigation brought by plaintiffs to challenge voter restrictions that are enacted with discriminatory intent or discriminatory effects.”

Thus, so long as Section 2 remains good law, a voting rights plaintiff can prevail if they show that a state law has a disproportionate effect on voters of color, even if that plaintiff cannot prove that lawmakers acted with racist intent when they voted for the law. This disparate effects test is especially important after the Supreme Court’s decision last June in Abbott v. Perez<https://thinkprogress.org/scotus-presumption-of-white-racial-innocence-gerrymandering-7ad4fdfc82a5/>, which made it nearly impossible to prove that the lawmakers who passed a voting restriction acted with racist intent.

Abbott, like Shelby County, was a 5-4 decision with all five Republican members of the Court in the majority and all four Democrats in dissent.

After Kavanaugh brought up Section 2, Harris asked Kavanaugh a pointed question — “do you believe that Section 2 is constitutional?” The nominee’s answer was non-committal at best.

Judge Kavanaugh initially refused to answer the question because he deemed it a “hypothetical,” adding that “as a general matter, I don’t want to pre-commit on any statute.”
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Posted in Supreme Court<https://electionlawblog.org/?cat=29>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“Democrats Outperforming Republicans in Small Donations”<https://electionlawblog.org/?p=100999>
Posted on September 6, 2018 7:45 am<https://electionlawblog.org/?p=100999> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ:<https://www.wsj.com/articles/democrats-outperforming-republicans-in-small-donations-1536139801?emailToken=0e77d2c35a5546f1abf3b6986d18ebc9z2e7SP68igbhCEDJdQ2xbj1A4hmuoUu1J/CE9RPsKRmiiQ3nRxPOmwyVEMJdjh3Yj68Ay7FticaHg7ZXaeLm3gQk4AxA7/NE3+U7cL2IWpMF9sxA8RE1jWsSk20IaONS&reflink=article_email_share>

In 28 of the 30 most competitive House races and five of eight tossup Senate races, as rated by the nonpartisan Cook Political Report, the Democratic candidates have outraised the Republicans in donations of less than $200, the Journal’s review found. In all, the Democrats in those 38 races have collected about $35 million in small donations, quadruple the Republicans’ small-money haul.

The wave of small contributions can signal enthusiasm among voters, and the Democratic base’s aversion to Mr. Trump is ramping up their activity. These contributors, who often send sums of $25 or $50, are also a valuable resource because candidates can keep encouraging them to give again and again until they reach the $2,700-per-election maximum contribution limit.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Sixth Circuit Removes Straight-Ticket Device from 2018 Michigan Ballots”<https://electionlawblog.org/?p=100997>
Posted on September 6, 2018 7:44 am<https://electionlawblog.org/?p=100997> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN:<http://ballot-access.org/2018/09/05/sixth-circuit-removes-straight-ticket-device-from-2018-michigan-ballots/>

On September 5, the Sixth Circuit issued an order<http://ballot-access.org/wp-content/uploads/2018/09/Document30.pdf> that permits Michigan to remove the straight-ticket device from 2018 ballots. Michigan State A. Philip Randolph Institute v Johnson, 18-1910. The state legislature had repealed the authorization for the device in early 2016, but then supporters of the device had filed a lawsuit later that year, arguing that removing the device discriminated against African-American voters. The U.S. District Court had restored the device for the 2016 election, and earlier this year, made that permanent and told Michigan to use the device again in 2018.

Seems a little close to the election to make this change, but with a 4-4 Supreme Court, this is likely to stand.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Kavanaugh’s Campaign Finance Record Shows an Atrocious Disregard for Precedent”<https://electionlawblog.org/?p=100995>
Posted on September 6, 2018 7:42 am<https://electionlawblog.org/?p=100995> by Rick Hasen<https://electionlawblog.org/?author=3>

Stephen Weissman<https://slate.com/news-and-politics/2018/09/kavanaugh-confirmation-hearings-the-judges-disastrous-record-on-campaign-finance.html> for Slate.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Justice Dept. Demands Millions of North Carolina Voter Records, Confounding Elections Officials”<https://electionlawblog.org/?p=100993>
Posted on September 6, 2018 7:41 am<https://electionlawblog.org/?p=100993> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/09/05/us/north-carolina-voting.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=10&pgtype=sectionfront>

Federal prosecutors have issued sweeping subpoenas demanding that millions of North Carolina voter records be turned over to immigration authorities by Sept. 25.

With just two months to go before the midterms, the subpoenas threatened to sow chaos in the state’s election machinery, while renewing the Trump administration’s repeatedly discredited claims of widespread voting by illegal immigrants.

The unsealed grand jury subpoenas were sent to the state elections board and to 44 county elections boards in eastern North Carolina. Their existence became widely known after Marc E. Elias, a voting rights lawyer aligned with the Democratic Party, mentioned them on Twitter.<https://twitter.com/marceelias/status/1037130730697109504>

Though the nature, scope and impetus of the federal investigation that generated the subpoenas remain shrouded in mystery, the move appeared to be part of an effort to find and crack down on any unauthorized voting by noncitizens….

Some critics also speculated that the Trump administration was looking to continue the work of its much-maligned voter fraud commission, which was disbanded in January in a blizzard of complaints and litigation after finding no evidence of significant fraud or a corrupt voting system.

It was the latest in a series of controversies surrounding the question of voter fraud, and whether Republican-backed efforts to combat it mask an effort to actually suppress voter turnout.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Beto O’Rourke Campaign Says Texts About Illegal Voting Were Sent by an ‘Impostor’”<https://electionlawblog.org/?p=100991>
Posted on September 6, 2018 7:40 am<https://electionlawblog.org/?p=100991> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/09/05/us/politics/beto-orourke-texts-voting-texas.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=sectionfront>

Voters in Texas received a mysterious text message on Wednesday, one that purported to be from a campaign volunteer for Beto O’Rourke, the Democrat who is running against Ted Cruz <https://www.nytimes.com/2018/08/31/us/politics/beto-orourke-dreams-of-one-texas-ted-cruz-sees-another-clearly.html> for Senate this fall.

“We are in search of volunteers to help transport undocumented immigrants to polling booths so that they will be able to vote,” read the message, which claimed to be from an O’Rourke volunteer named Patsy. “Would you be able to support this grassroots effort?”

Screenshots of the text messages<https://twitter.com/jerryochoa/status/1037451693078790150> circulated on Twitter on Wednesday. Mr. O’Rourke’s campaign confirmed that the messages were authentic, but a spokesman said they came from an “impostor.”

“That was not an approved message by the campaign,” said Chris Evans, a spokesman for Mr. O’Rourke. Mr. Evans added that the campaign was looking into how the unauthorized message was sent. The person who sent the text was “not a Beto volunteer,” Mr. Evans said.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Behind $250 million State Farm settlement, a wild tale of dark money in judicial elections”<https://electionlawblog.org/?p=100989>
Posted on September 6, 2018 7:38 am<https://electionlawblog.org/?p=100989> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/legal-us-otc-darkmoney/behind-250-million-state-farm-settlement-a-wild-tale-of-dark-money-in-judicial-elections-idUSKCN1LL2ZQ>

The biggest difference between a John Grisham novel and the allegations in a racketeering class action State Farm settled<https://static.reuters.com/resources/media/editorial/20180905/halevstatefarm--settlementagreement.pdf> Tuesday for $250 million is that Grisham would have had the insurance company buy off a state Supreme Court candidate with a briefcase full of cash.

By contrast, the amended complaint<https://static.reuters.com/resources/media/editorial/20180905/halevstatefarm--amendedcomplaint.pdf> attached as an exhibit to the State Farm settlement agreement alleges that the insurer installed a hand-picked justice on the Illinois Supreme Court by leveraging its influence over – and financial contributions to – nonprofits like the U.S. Chamber and the Illinois Civil Justice League, which, in turn, pushed Lloyd Karmeier to a seat on the state high court in 2004. The following year, Justice Karmeier sided with four other state justices to overturn<https://static.reuters.com/resources/media/editorial/20180905/Avery%20v%20State%20Farm%20Mut%20Auto%20Ins%20Co.pdf> a billion-dollar judgment against State Farm. The RICO complaint alleges a quid pro quo between the justice and his insurance-company patrons.
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Posted in judicial elections<https://electionlawblog.org/?cat=19>


Quote of the Day<https://electionlawblog.org/?p=100987>
Posted on September 6, 2018 7:30 am<https://electionlawblog.org/?p=100987> by Rick Hasen<https://electionlawblog.org/?author=3>
[https://pbs.twimg.com/profile_images/414129527766253569/VXVX-Xbi_bigger.jpeg]<https://twitter.com/adamliptak>
<https://twitter.com/adamliptak>
Adam Liptak<https://twitter.com/adamliptak>
✔@adamliptak<https://twitter.com/adamliptak>

<https://twitter.com/adamliptak/status/1037517441360977920>


“I do follow election law blogs,” Judge Kavanaugh says in silent h/t to @rickhasen<https://twitter.com/rickhasen>
6:46 PM - Sep 5, 2018<https://twitter.com/adamliptak/status/1037517441360977920>

·         <https://twitter.com/intent/like?tweet_id=1037517441360977920>

123<https://twitter.com/intent/like?tweet_id=1037517441360977920>

·         <https://twitter.com/adamliptak/status/1037517441360977920>

38 people are talking about this<https://twitter.com/adamliptak/status/1037517441360977920>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


In 2003, Judge Kavanaugh Called Lower Court Decision in the McCain-Feingold Case to Uphold the Rules Limiting Corporate and Union Spending in Elections Strange and Dangerous<https://electionlawblog.org/?p=100985>
Posted on September 6, 2018 7:29 am<https://electionlawblog.org/?p=100985> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the leaked document here<https://int.nyt.com/data/documenthelper/270-brett-kavanaugh-email-campaign/e6dbbda94dd204fe02af/optimized/full.pdf#page=1> (via the NYT<https://www.nytimes.com/2018/09/06/us/politics/kavanaugh-leaked-documents.html>). He also correctly predicted that the case would come down the votes of CJ Rehnquist and Justice O’Connor (both in the end switched sides from their earrlier positions on this issue).

There’s little question where Judge Kavanaugh stands on campaign finance. He’s likely to vote<https://slate.com/news-and-politics/2018/09/brett-kavanaughs-supreme-court-tenure-could-mean-the-end-of-all-campaign-finance-limits.html> to strike down even individual contribution limits, and already created a gaping hole<https://electionlawblog.org/?p=100969> in the rules meant to limit foreign money in U.S. elections.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“Company using foreign workers botches U.S. Senate campaign finance records”<https://electionlawblog.org/?p=100983>
Posted on September 5, 2018 1:22 pm<https://electionlawblog.org/?p=100983> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI:<https://www.publicintegrity.org/2018/09/04/22214/company-using-foreign-workers-botches-us-senate-campaign-finance-records>

In September 2016, Bill Bledsoe pulled into a gas station in Spartanburg, South Carolina, and filled a Chevy Express van with $613,638 of gasoline — enough fuel to drive him to the moon and back more than 10 times.

One week later, the Libertarian U.S. Senate candidate spent another $613,638 on gasoline at a station in Lamar, South Carolina.

At least, that’s the story told by public disclosures published on the Federal Election Commission’s website.

This sounds unbelievable because it’s wrong. Bledsoe spent less than $2,000 on his entire campaign.

The culprit? Bad data entry. Unlike those running for the presidency and U.S. House, U.S. Senate candidates don’t file campaign finance reports electronically — they file on paper, which must then be converted to electronic documents in a process that involves two government agencies, three private companies and countless low-paid workers, many of them overseas, and some who may be hostile toward U.S. interests.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Judge orders independent candidate off the ballot in Va. congressional race, citing ‘out and out fraud”<https://electionlawblog.org/?p=100981>
Posted on September 5, 2018 1:20 pm<https://electionlawblog.org/?p=100981> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/virginia-politics/judge-orders-independent-candidate-brown-off-the-ballot-in-va-congressional-race/2018/09/05/222b427c-b11c-11e8-aed9-001309990777_story.html?utm_term=.468675275341>

A Richmond Circuit Court judge on Wednesday ordered independent candidate Shaun Brown removed from the ballot in Virginia’s 2nd District congressional race, finding that her qualifying petition was tainted by “forgery” and “out and out fraud.”

Many of those signatures were gathered by staffers working for the incumbent Republican, Scott Taylor, who is seeking a second term. Five current or former staffers for the congressman declined to answer questions in court, pleading the Fifth Amendment against self-incrimination. A separate criminal probe into the matter is ongoing and a state police investigator attended the civil hearing.

The Democratic Party of Virginia, which brought the civil suit against the State Board of Elections, submitted 41 affidavits from people who said their signatures were forged on petitions to get Brown qualified for the ballot. A handwriting expert testified Wednesday that of some 377 signatures collected by Taylor’s staffers, at least 146 appeared to be false.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, 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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