[EL] ELB News and Commentary 9/15/18

[Rick Hasen]

Brad Smith Also Rejects Claim That Fundraising Against Collins Should She Vote for Kavanaugh is Bribery, But He Has Another Concern<https://electionlawblog.org/?p=101169>
Posted on September 15, 2018 6:27 am<https://electionlawblog.org/?p=101169> by Rick Hasen<https://electionlawblog.org/?author=3>

Smith in WaPo:<https://www.washingtonpost.com/opinions/is-attempting-to-sway-susan-collinss-vote-breaking-the-law-its-hard-to-tell/2018/09/13/363cf150-b78b-11e8-a7b5-adaaa5b2a57f_story.html?utm_term=.ec0b05437532>

The first relevant statute is 18 U.S.C. 201, which prohibits any person from “corruptly” offering “anything of value to any public official . . . with intent to influence any official act.” The organizers and donors here clearly want to influence an official act — Collins’s vote on Kavanaugh. But are they doing so “corruptly”?

Others have suggested the statute doesn’t apply because the funders are not offering anything to Collins — they’ll be giving it to someone else. Is it a “thing of value” to not give money to a candidate’s opponent?

I think the answer to each of these questions is a clear “no.” Few would consider it an illegal bribe, for example, if an advocacy group threatened to turn out 100,000 opposition voters unless the officeholder went the right way on a crucial issue. But could an ambitious U.S. attorney get an indictment or a plea bargain on the theory that this is a corrupt offer of “anything of value”? I’m guessing probably yes. Whether a jury would convict is another question.

Smith does raise another concern, which I had not focused on before:

Then there is the Maine People’s Alliance<https://www.mainepeoplesalliance.org/>, which is also an incorporated entity. Thanks to the Supreme Court’s Citizens United v. Federal Election Commission decision<https://www.oyez.org/cases/2008/08-205>, the group can spend money urging votes for or against a candidate. But it is still prohibited by law from using its corporate resources to raise funds for a candidate’s campaign, meaning the Alliance may have run afoul of the law. It wants to overturn<https://www.mainepeoplesalliance.org/content/overturn-citizens-united> Citizens United but, perhaps, it should be calling to expand it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Serious design flaw in ESS ExpressVote touchscreen: ‘permission to cheat'”<https://electionlawblog.org/?p=101167>
Posted on September 15, 2018 6:20 am<https://electionlawblog.org/?p=101167> by Rick Hasen<https://electionlawblog.org/?author=3>

Andrew Appel blogs. <https://freedom-to-tinker.com/2018/09/14/serious-design-flaw-in-ess-expressvote-touchscreen-permission-to-cheat/>
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Posted in voting technology<https://electionlawblog.org/?cat=40>


The State of Play in North Carolina and Wisconsin<https://electionlawblog.org/?p=101165>
Posted on September 14, 2018 12:39 pm<https://electionlawblog.org/?p=101165> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

I wanted to flag for the blog’s readers some significant developments that took place this week in the North Carolina and Wisconsin partisan gerrymandering cases. In North Carolina, the trial court agreed<https://www.brennancenter.org/sites/default/files/legal-work/2018-09-12-155-Order.pdf> to stay the remedial process on the condition that the defendants file their jurisdictional statement with the Supreme Court by October 1. With a J.S. filed that soon, it’s highly likely that the Court will hear and decide the case in its upcoming term. So after last term’s anticlimactic cases, this term may well include a decision that does get to the merits of gerrymandering.

In Wisconsin, two complaints were filed today. The Whitford plaintiffs submitted an amended complaint<https://campaignlegal.org/sites/default/files/2018-09/Whitford%20Amended%20Complaint%20%28Dkt.%20201%29.pdf> that makes a few focused changes to their original filing: (1) The new document adds a couple dozen more Democratic voters as plaintiffs. (2) It explains why each plaintiff has standing under the standard set by the Supreme Court in Gill v. Whitford. Each plaintiff lives in a district that iscracked or packed, but that did not have to be cracked or packed, as demonstrated by a fair alternative map that beats the enacted plan on every nonpartisan criterion. (3) The amended complaint further asserts a distinct associational claim, alleging that the enacted plan hinders the plaintiffs’ ability to associate with likeminded Democrats.

The other Wisconsin complaint was filed by the Wisconsin Assembly Democratic Campaign Committee (ADCC<https://www.assemblydemocrats.com/gerrymandering/>), which is made up of the Democratic members of the State Assembly. According to Justice Kagan’s concurrence in Gill, a party entity like the ADCC is ideally situated to bring an associational claim against a partisan gerrymander. And indeed, that is the only claim the ADCC raises; it does not allege vote dilution. In its complaint, the ADCC maintains that the enacted plan has inhibited its ability to perform associational functions including candidate recruitment, fundraising, and voter mobilization. The ADCC also seeks to consolidate its suit with Whitford so that the cases may proceed in tandem.

The timetable for the Wisconsin litigation is still unclear. It’s virtually certain, though, that it won’t make it back to the Supreme Court in the coming term. Instead, it’s more likely that Whitford (along with ongoing gerrymandering cases in Michigan and Ohio) will reach the Court in its 2019 term.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Crum: The Prospect of Bailing-in Texas: Recent Bail-in Litigation (2)<https://electionlawblog.org/?p=101137>
Posted on September 14, 2018 9:39 am<https://electionlawblog.org/?p=101137> by Rick Hasen<https://electionlawblog.org/?author=3>

This is the second in a series<https://electionlawblog.org/?p=101135> of guest posts by Travis Crum:

In this series of posts, I’m addressing the statutory, constitutional, and strategic issues surrounding a potential bail-in of Texas. But before we dive into this ongoing redistricting litigation, I’ll begin by discussing recent bail-in cases that will influence how this litigation will proceed.

In the past few years, a wave of Section 3(c) bail-in suits have been filed across the country. So far, the municipalities of Evergreen<https://www.nytimes.com/2014/01/15/us/judge-reinstates-federal-oversight-of-voting-practices-for-alabama-city.html>, Alabama, and Pasadena<https://www.texastribune.org/2017/10/03/pasadena-remain-under-federal-oversight-election-laws/>, Texas, have been bailed-in, and other bail-in suits remain pending. But two circuit court decisions have stymied efforts to bail-in entire States.

In North Carolina State Conference of the NAACP v. McCrory,<https://www.justice.gov/sites/default/files/crt/legacy/2014/10/09/ncnaacpmccroryopinion.pdf> the Fourth Circuit invalidated North Carolina’s notorious post-Shelby County voter suppression law. Specifically, the Fourth Circuit found that the law had been adopted with a discriminatory purpose and, in so holding, avoided deciding whether the law had a discriminatory effect. Despite finding a constitutional violation, the Fourth Circuit relegated Section 3(c) to a single paragraph and declined to impose bail-in on the grounds that such remedies are “rarely used” and unnecessary in light of a permanent injunction.

The Fourth Circuit’s cursory rejection of bail-in is perhaps best viewed as a strategicdecision to make the case less cert-worthy. After all, the Fourth Circuit had already avoided a contentious legal question—the appropriate standard under Section 2 for showing discriminatory effects in vote-denial litigation<https://electionlawblog.org/?p=100653>—by making an inherently fact-bound discriminatory-intent finding. In not granting bail-in, the Fourth Circuit took a significant legal issue of first impression off the table and reduced the stakes of the plaintiffs’ victory.

That said, the prospect of bail-in likely drove the plaintiffs to emphasize and build record evidence for their intentional-discrimination argument, as many plaintiffs in the pre-Shelby County era often relied solely—or primarily—on discriminatory-effects claims. In other words, even though North Carolina was not bailed-in, the request for Section 3(c) relief likely had a significant impact on the litigation.

And in Veasey v. Abbott<http://electionlawblog.org/wp-content/uploads/vease-opinion.pdf>, a split panel of the Fifth Circuit brought an ignominious end to the Texas voter ID litigation. Back in 2011, Texas enacted a voter ID law that imposed strict photo-ID requirements on casting an in-person ballot. In May 2017, after years of litigation and a district court finding that the law was enacted with discriminatory intent, Texas enacted a revised, less stringent voter ID law. The district court subsequently enjoined both voter ID laws and ordered a bail-in hearing.

In its April 2018 decision, the Fifth Circuit reversed the injunction and further held that Texas’s revised voter ID law meant that “there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c),” even though the district court had not yet made that determination. As Rick Hasen<https://electionlawblog.org/?p=98859> and Justin Levitt<https://electionlawblog.org/?p=98873> have pointed out, the Fifth Circuit’s reasoning is deeply flawed: even if Texas’s second voter ID law was not enacted with discriminatory intent, its original voter ID law had been found to be enacted with an unconstitutional purpose and that alone is sufficient for bail-in. The Fifth Circuit’s decision in Veasey elides this key distinction and encourages the very gamesmanship that preclearance was designed to combat.

As I’ll discuss in a subsequent post, Veasey casts a shadow over the prospect of bail-in in this litigation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Democrats revive their lawsuit over Wisconsin gerrymandering in hopes of blocking election maps in 2020”<https://electionlawblog.org/?p=101162>
Posted on September 14, 2018 9:24 am<https://electionlawblog.org/?p=101162> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/elections/2018/09/14/democrats-revive-redistricting-lawsuit-block-election-maps-2020/1301898002/>

Democrats are renewing their lawsuit over election maps that have helped Republicans maintain big margins in the state Assembly.

An expanded group of Democratic voters filed a new version of their long-running lawsuit on Friday, three months after the U.S. Supreme Court unanimously found the plaintiffs lacked legal standing to bring an earlier version of their suit.

The new filing, submitted to a three-judge court in Madison, tried to address that legal flaw by adding far more voters to the case who contend their rights were violated because of the way the Assembly districts they live in were drawn.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“Koch-funded group supports voting rights for felons in Florida”<https://electionlawblog.org/?p=101160>
Posted on September 14, 2018 9:00 am<https://electionlawblog.org/?p=101160> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times:<http://www.tampabay.com/florida-politics/buzz/2018/09/13/koch-funded-group-supports-voting-rights-for-felons-in-florida/>
A national group with close ties to the Koch Brothers, Freedom Partners, has thrown its support behind Amendment 4 on the Florida ballot — the proposal to restore voting rights to most convicted felons without hearings or delays.
Formally known as the Freedom Partners Chamber of Commerce, the Virginia-based group describes its mission as “more freedom, more opportunity.”
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“The Overlooked Weak Link in Election Security”<https://electionlawblog.org/?p=101158>
Posted on September 14, 2018 7:10 am<https://electionlawblog.org/?p=101158> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica:<https://www.propublica.org/article/the-overlooked-weak-link-in-election-security>

More than one-third of counties that are overseeing elections in some of the most contested congressional races this November run email systems that could make it easy for hackers to log in and steal potentially sensitive information.

A ProPublica survey found that official email accounts used by 11 county election offices, which are in charge of tallying votes in 12 key U.S. House of Representatives races from California to Ohio, could be breached with only a user name and password — potentially allowing hackers to vacuum up confidential communications or impersonate election administrators. Cybersecurity experts recommend having a second means of verifying a user’s identity, such as typing in an additional code from a smartphone or card, to thwart intruders who have gained someone’s login credentials through trickery or theft. This system, known as two-factor verification<https://authy.com/what-is-2fa/>, is available on many commercial email services.

“Humans are horrific at creating passwords, which is why ‘password’ is the most commonly used password,” said Joseph Lorenzo Hall, the chief technologist at the Center for Democracy and Technology in Washington, D.C., who has pushed for security fixes in the voting process. This means increasingly we need something other than passwords to secure access to our accounts, especially email, which tends to undergird all our other accounts.”
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Posted in election administration<https://electionlawblog.org/?cat=18>


--
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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