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

Sat Sep 15 06:45:39 PDT 2018

FYI:

I will have an op-ed appearing in the Bangor Daily News Sunday or Monday.
 I cannot publish in advance the entire op-ed but here is an excerpt.

*Raising money for a Collins’ opponent is not a bribe, but it may be
ineffective Threatening to crowdfund money to support a candidate to run
against Sen. Susan Collins were she to vote to confirm Brett Kavanaugh as a
Supreme Court Justice is not bribery
<http://stateandcapitol.bangordailynews.com/2018/09/11/collins-calls-anti-kavanaugh-crowdfunding-effort-a-bribe/?_ga=2.68005649.1288460456.1536584020-2004970634.1487792558>,
as the senator called it. Federal  law is clear on that. The real question
is whether it can it actually impact Collins’ decision. The simple answer
is that it depends.Federal law, such as United States Code Title 18,
Section 201 <https://www.law.cornell.edu/uscode/text/18/201>, requires
several conditions to be met for something to be bribery. Plainly speaking,
there must be a quid pro quo. That is, there must be a giving of money to a
public official in return for the performance of an official act. Second,
there must be corrupt intent on the part of the giver. Corrupt intent may
be getting a special favor or benefit, not simply trying to persuade
someone to vote a specific way. None of these conditions exist with this
threat
<https://www.crowdpac.com/campaigns/387413/either-sen-collins-votes-no-on-kavanaugh-or-we-fund-her-future-opponent?ref_code=explore>
from Mainers for Accountable Leadership and the Maine People’s Alliance,
which has raised nearly $1.3 million. There is no giving on money to a
public official. No public official is being asked to perform an official
act in return for money. There is no corrupt intent on the part of the
 initiators of the crowdfund plan or potential donors. There is no quid,
pro, or quo. What is this threat? It is no more than the time-honored
political act of telling an elected official that if you take a position I
oppose I will support a candidate to run against you. That is exactly how
our American election system is supposed to work. Telling officials you
want them to vote a specific way and threaten support of someone else is
how we hold officials accountable. If this were bribery, then this would
mean that all political donors who gave money with the hope that their
political preference would be supported by a candidate would be violating
the law
<https://slate.com/news-and-politics/2018/09/susan-collins-complains-of-bribery-after-nonbillionaires-try-to-influence-her-kavanaugh-vote.html>.
*

On Sat, Sep 15, 2018 at 8:30 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101169&title=Brad%20Smith%20Also%20Rejects%20Claim%20That%20Fundraising%20Against%20Collins%20Should%20She%20Vote%20for%20Kavanaugh%20is%20Bribery%2C%20But%20He%20Has%20Another%20Concern>
>
> 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/>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101167&title=%E2%80%9CSerious%20design%20flaw%20in%20ESS%20ExpressVote%20touchscreen%3A%20%E2%80%98permission%20to%20cheat%27%E2%80%9D>
>
> 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 *is*cracked
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101165&title=The%20State%20of%20Play%20in%20North%20Carolina%20and%20Wisconsin>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101137&title=Crum%3A%20The%20Prospect%20of%20Bailing-in%20Texas%3A%20Recent%20Bail-in%20Litigation%20(2)>
>
> 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.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101162&title=%E2%80%9CDemocrats%20revive%20their%20lawsuit%20over%20Wisconsin%20gerrymandering%20in%20hopes%20of%20blocking%20election%20maps%20in%202020%E2%80%9D>
>
> 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.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101160&title=%E2%80%9CKoch-funded%20group%20supports%20voting%20rights%20for%20felons%20in%20Florida%E2%80%9D>
>
> 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.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101158&title=%E2%80%9CThe%20Overlooked%20Weak%20Link%20in%20Election%20Security%E2%80%9D>
>
> 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> [image: signature_1325876297]
>
>
>
>
>
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-- 
David Schultz, Professor
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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