[EL] ELB News and Commentary 4/22/19

Mon Apr 22 07:41:58 PDT 2019

“After Democrats Surged In 2018, Republican-Run States Eye New Curbs On Voting”<https://electionlawblog.org/?p=104783>
Posted on April 22, 2019 7:39 am<https://electionlawblog.org/?p=104783> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR<https://www.npr.org/2019/04/22/714950127/after-democrats-surged-in-2018-republican-run-states-eye-new-curbs-on-voting>:

After high turnout in last year’s midterm elections propelled Democrats to a new House majority and big gains in the states, several Republican-controlled state legislatures are attempting to change voting-related rules in ways that might reduce future voter turnout.

In Texas, state lawmakers are considering adding criminal penalties for people who improperly fill out voter registration forms. Arizona Republicans are proposing new voting rules that could make it more complicated to cast an early ballot. In Tennessee, GOP lawmakers are considering a bill that would fine groups involved in voter registration drives that submit incomplete forms.

Republican lawmakers in those states say new laws are needed to maintain the integrity of voter rolls and prevent fraud. Voting rights advocates and Democrats dismiss those claims and argue that the policies are designed to dampen turnout among younger, nonwhite and poorer voters, who are less likely to back Republicans.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, Uncategorized<https://electionlawblog.org/?cat=1>

“Accuracy at core of Supreme Court case over census question”<https://electionlawblog.org/?p=104781>
Posted on April 22, 2019 7:29 am<https://electionlawblog.org/?p=104781> by Rick Hasen<https://electionlawblog.org/?author=3>

Mark Sherman<https://apnews.com/f5125cff266f410686d881afe20c849e> for the AP.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“New research shows just how badly a citizenship question would hurt the 2020 Census”<https://electionlawblog.org/?p=104779>
Posted on April 22, 2019 7:27 am<https://electionlawblog.org/?p=104779> by Rick Hasen<https://electionlawblog.org/?author=3>

Matt Barreto ,Chris Warshaw ,Matthew A. Baum ,Bryce J. Dietrich ,Rebecca Goldstein and Maya Sen in the Monkey Cage:<https://www.washingtonpost.com/politics/2019/04/22/new-research-shows-just-how-badly-citizenship-question-would-hurt-census/?utm_term=.f56d4e5d8c3b>

The Trump administration’s attempt to add a citizenship question to the 2020 Census reaches the Supreme Court on Tuesday. Thus far, three federal judges have ruled against the Trump administration, most recently in Maryland<https://www.washingtonpost.com/local/social-issues/federal-judge-in-maryland-blocks-trumps-administration-plan-to-add-citizenship-question-to-2020-census/2019/04/05/3db89fb0-57c7-11e9-9136-f8e636f1f6df_story.html?utm_term=.373eabfd7b16>. The Supreme Court will consider<https://www.scotusblog.com/2019/03/justices-add-constitutional-question-to-citizenship-case/> not only whether the administration violated administrative law, but also whether its attempt violated the Constitution.

A crucial issue in the case is whether adding this question for the first time since 1950 will hurt the ability of the census to accurately count the American population. In particular, critics of the administration fear the question will dissuade some U.S. residents, especially immigrants, from answering the census.

Research suggests these fears are justified. Working separately, we have used surveys and experiments to show that the citizenship question would make people less likely to respond to the census and provide complete information if they do respond. This is particularly true for Latinos and immigrants.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Trump wins over big donors who snubbed him in 2016”<https://electionlawblog.org/?p=104777>
Posted on April 22, 2019 7:22 am<https://electionlawblog.org/?p=104777> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/04/22/trump-campaign-donors-1283459?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=630318>:

Deep-pocketed Republicans who snubbed Donald Trump in 2016 are going all in for him in 2020, throwing their weight behind a newly created fundraising drive that’s expected to dump tens of millions into his reelection coffers.

The effort involves scores of high-powered businessmen, lobbyists and former ambassadors who raised big money for George W. Bush, John McCain and Mitt Romney — and who are now preparing to tap their expansive networks for Trump after rebuffing his first presidential bid.

The project, which is closely modeled after the famed Pioneers network that helped to fuel Bush’s 2000 campaign, is slated to be formally unveiled on May 7, when well-connected Republican fundraisers from around the country descend on Washington for a closed-door event with Trump 2020 aides. Under the plan, which was described by more than a half-dozen party officials, high-performing bundlers who collect at least $25,000 for Trump Victory, a joint Trump 2020-Republican National Committee fundraising vehicle, will earn rewards like invitations to campaign-sponsored retreats, briefings and dinners.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Mum’s the word: Some Democratic presidential hopefuls won’t discuss their big-dollar ‘bundlers’”<https://electionlawblog.org/?p=104775>
Posted on April 22, 2019 7:20 am<https://electionlawblog.org/?p=104775> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI reports<https://publicintegrity.org/federal-politics/elections/bundlers-president-election-2020/>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Academic highlight: Levitt on the collateral consequences of Department of Commerce v. New York”<https://electionlawblog.org/?p=104773>
Posted on April 22, 2019 7:17 am<https://electionlawblog.org/?p=104773> by Rick Hasen<https://electionlawblog.org/?author=3>

Amanda Frost <https://www.scotusblog.com/2019/04/academic-highlight-levitt-on-the-collateral-consequences-of-department-of-commerce-v-new-york/#more-284990> at SCOTUSBlog:

On its face, Department of Commerce v. New York<https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/> asks whether the government may add a question about citizenship status to the 2020 decennial census. But as Professor Justin Levitt explains in a forthcoming essay<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3250265>, if the government wins, the citizenship data could influence the allocation of representation in the state legislatures, raising a whole new set of constitutional questions left unresolved by the Supreme Court’s 2016 decision in Evenwel v. Abbott<https://casetext.com/case/evenwel-v-abbott-1>.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Is California’s new voting system a success? We may not know until 2020”<https://electionlawblog.org/?p=104771>
Posted on April 22, 2019 7:14 am<https://electionlawblog.org/?p=104771> by Rick Hasen<https://electionlawblog.org/?author=3>

John Myers<https://www.latimes.com/politics/la-pol-ca-road-map-vote-centers-california-mail-ballots-election-20190421-story.html> for the LAT.
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Posted in election administration<https://electionlawblog.org/?cat=18>

What is Mike Roman, A Trump Fixer, Doing for the RNC for $20,000 a Month?<https://electionlawblog.org/?p=104769>
Posted on April 21, 2019 4:19 pm<https://electionlawblog.org/?p=104769> by Rick Hasen<https://electionlawblog.org/?author=3>

I’ve linked earlier to a Politico story about Mike Roman, The mysterious oppo researcher working in the White House lawyer’s office<https://www.politico.com/story/2018/02/11/trump-oppo-researcher-roman-403138>. It wasn’t clear what the opposition researcher was doing in the White House working for Don McGahn. (On Roman’s history promoting the New Black Panthers voter intimidation hysteria, see here<https://electionlawblog.org/?p=92385>.)

Now he’s working for the RNC doing something (we don’t know what), and an #ELB reader notes from FEC documents that the RNC was paying Roman <http://docquery.fec.gov/cgi-bin/forms/C00003418/1299586/sb/29> $15,000 per month for “legal and compliance services.” The RNC is now paying<http://docquery.fec.gov/cgi-bin/forms/C00003418/1328216/sb/29> “MR&A LLC” at the same address that Roman used $20,000 per month. (“MR&A” must be Mike Roman and Associates.) Wonder what he did to deserve the raise.

Thanks to the #ELB reader for the tip!
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Posted in election law biz<https://electionlawblog.org/?cat=51>

“No, Republicans, It’s Not a Plot; Despite assertions otherwise, ranked choice voting wouldn’t benefit one party over another. But it would benefit democracy.”<https://electionlawblog.org/?p=104767>
Posted on April 21, 2019 4:10 pm<https://electionlawblog.org/?p=104767> by Rick Hasen<https://electionlawblog.org/?author=3>

David Daley<https://democracyjournal.org/arguments/no-republicans-its-not-a-plot/> for Democracy.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

“‘Nothing wrong’ with campaign accepting information from Russians, Giuliani says”<https://electionlawblog.org/?p=104765>
Posted on April 21, 2019 2:23 pm<https://electionlawblog.org/?p=104765> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/nothing-wrong-with-campaign-accepting-information-from-russians-giuliani-says/2019/04/21/9ee60266-644a-11e9-82ba-fcfeff232e8f_story.html?utm_term=.6400e66f4b27>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>

George Will Column Gives Many Reasons Why Decision to Include Citizenship Question on Census Was Pretextual, But Concludes Supreme Court May Allow It Anyway<https://electionlawblog.org/?p=104763>
Posted on April 21, 2019 2:21 pm<https://electionlawblog.org/?p=104763> by Rick Hasen<https://electionlawblog.org/?author=3>

I really understood what Will was saying in this column<https://www.washingtonpost.com/opinions/wilbur-ross-acted-wretchedly-but-his-census-decision-may-be-legal/2019/04/19/e0c4a708-61fe-11e9-9ff2-abc984dc9eec_story.html?utm_term=.2ec2900e95a9> until the last paragraph, which doesn’t seem to follow.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Mueller report highlights scope of election security challenge”<https://electionlawblog.org/?p=104761>
Posted on April 21, 2019 10:31 am<https://electionlawblog.org/?p=104761> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/world/national-security/mueller-report-highlights-scope-of-election-security-challenge/2019/04/20/4b256304-62bc-11e9-9ff2-abc984dc9eec_story.html?utm_term=.13dbe90a53f0>:

Special counsel Robert S. Mueller III’s investigation of the “sweeping and systematic fashion” in which Russia interfered in the 2016 election highlights the breadth and complexity of the U.S. voting infrastructure that needs protecting.

From voter registration to the vote itself to election night tabulation, there are countless computers and databases that offer avenues for foreign adversaries to try to create havoc and undermine trust in the democratic process.

In addition to targeting the Democratic Party and Clinton campaign in 2016, Mueller noted in his report<https://assets.documentcloud.org/documents/5955379/Redacted-Mueller-Report.pdf>, Russian hackers also went after election technology firms and county officials who administer the vote — officials often without the resources to hire information technology staffs.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>

Rudy Giuliani Says “There’s Nothing Wrong” with Taking Things of Value from Foreign Governments<https://electionlawblog.org/?p=104759>
Posted on April 21, 2019 10:14 am<https://electionlawblog.org/?p=104759> by Rick Hasen<https://electionlawblog.org/?author=3>

I ended my recent <https://slate.com/news-and-politics/2019/04/donald-trump-jr-mueller-report-campaign-finance.html> Slate<https://slate.com/news-and-politics/2019/04/donald-trump-jr-mueller-report-campaign-finance.html> piec<https://slate.com/news-and-politics/2019/04/donald-trump-jr-mueller-report-campaign-finance.html>e on Mueller’s decision not to prosecute Donald Trump Jr. for campaign finance violations with this statement:

Further, even if Mueller believed there were First Amendment questions in play, he should have left that for the courts to decide given the strong national security interests at stake here. Mueller offered no First Amendment argument in his report. He merely flagged the issue and never provided any analysis to back up the First Amendment claim.

I’m afraid that this flagging of the issue does more harm than good. Mueller has now given campaigns credible reason to believe they can accept help from foreign governments because they may have a constitutional right to do so. That’s even more troubling for what it says about 2020 than what it says about 2016

Well now Giuliani goes there:<https://www.cnn.com/2019/04/21/politics/rudy-giuliani-trump-russia-cnntv/index.html>

President Donald Trump’s attorney Rudy Giuliani said while he would have advised the Trump campaign to avoid Russian help, he thought there was nothing wrong with a campaign taking information from Russia.

“There’s nothing wrong with taking information from Russians,” Giuliani said Sunday on CNN’s “State of the Union.”

Asked by CNN’s Jake Tapper if he would have taken information from a foreign source, Giuliani said, “I probably wouldn’t.”

“I wasn’t asked,” Giuliani said. “I would have advised, just out of excess of caution, don’t do it.”

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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Luckily for the Trumps, Some Laws Are Hard to Break; There’s a reason Mueller shied away from prosecuting Jared Kushner and Donald Trump Jr. “<https://electionlawblog.org/?p=104757>
Posted on April 21, 2019 10:09 am<https://electionlawblog.org/?p=104757> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.theatlantic.com/ideas/archive/2019/04/campaign-finance-loopholes-helped-trump-team/587671/> for The Atlantic.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Florida lawmakers seek to purge undocumented immigrants from voter rolls”<https://electionlawblog.org/?p=104755>
Posted on April 20, 2019 10:46 am<https://electionlawblog.org/?p=104755> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports.<https://www.tampabay.com/florida-politics/2019/04/18/florida-lawmakers-seek-to-purge-undocumented-immigrants-from-voter-rolls/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“It will get harder to amend Florida’s constitution if this bill passes”<https://electionlawblog.org/?p=104752>
Posted on April 20, 2019 10:45 am<https://electionlawblog.org/?p=104752> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports<https://www.tampabay.com/florida-politics/2019/04/18/it-will-get-harder-to-amend-floridas-constitution-if-this-bill-passes/>.
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Posted in direct democracy<https://electionlawblog.org/?cat=62>

“Trump campaign punishes Don McGahn’s law firm”<https://electionlawblog.org/?p=104750>
Posted on April 19, 2019 3:28 pm<https://electionlawblog.org/?p=104750> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/04/19/trump-campaign-mcgahn-1283545>:

The Trump campaign has hired its own in-house attorney for its 2020 reelection bid — shifting future business away from Jones Day, the law firm, that has represented Trump since his first run for president.
Campaign officials and advisers cast the decision to hire Nathan Groth<https://www.linkedin.com/in/nathan-groth-wi/> — a former lawyer for the Republican National Committee and Wisconsin Gov. Scott Walker — as a money-saving move, supported by the businessman-turned-president who loves to cut costs.

But close Trump advisers say the decision also stems from disappointment with the White House’s former top attorney and current Jones Day partner, Don McGahn, whose behavior has irked the president and some of his family members.

Taking business away from Jones Day is payback, these advisers say, for McGahn’s soured relationship with the Trump family and a handful articles in high-profile newspapers that the family blames, unfairly or not, on the former White House counsel.
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Posted in election law biz<https://electionlawblog.org/?cat=51>

“Trump again jokes about staying on as president for more than two terms”<https://electionlawblog.org/?p=104748>
Posted on April 19, 2019 3:04 pm<https://electionlawblog.org/?p=104748> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Post<https://www.washingtonpost.com/politics/trump-again-jokes-about-staying-on-as-president-for-more-than-two-terms/2019/04/18/05a5afce-6207-11e9-9ff2-abc984dc9eec_story.html?utm_term=.10786ad2fe3a>:

President Trump on Thursday joked about serving more than two terms as president, telling a crowd that he might remain in the Oval Office “at least for 10 or 14 years.”

Trump made the comments on the same day that special counsel Robert S. Mueller III’s report was released to the public<https://www.washingtonpost.com/world/national-security/attorney-general-to-provide-overview-of-mueller-report-at-news-conference-before-its-release/2019/04/17/8dcc9440-54b9-11e9-814f-e2f46684196e_story.html?utm_term=.de5803dbfc32>.

At an event for the Wounded Warrior Project, Lt. Gen. Michael S. Linnington, chief executive of the veterans charity, gave Trump a trophy to thank him for his support.

“Well, this is really beautiful,” Trump told the crowd in the East Room of the White House. “This will find a permanent place, at least for six years, in the Oval Office. Is that okay?”

After some laughter from the crowd, Trump continued: “I was going to joke, General, and say at least for 10 or 14 years, but we would cause bedlam if I said that, so we’ll say six.”
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“How the IRS Gave Up Fighting Political Dark Money Groups”<https://electionlawblog.org/?p=104746>
Posted on April 19, 2019 3:02 pm<https://electionlawblog.org/?p=104746> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica<https://www.propublica.org/article/irs-political-dark-money-groups-501c4-tax-regulation> has this report, with the subhead: “Six years after it was excoriated for allegedly targeting conservative organizations, the agency has largely given up on regulating an entire category of nonprofits. The result: More dark money gushes into the political system.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, tax law and election law<https://electionlawblog.org/?cat=22>

FEC Asks North Carolina Republican Party If It Spent Too Much in Coordinated Spending Supporting Mark Meadows for Congress<https://electionlawblog.org/?p=104744>
Posted on April 19, 2019 2:57 pm<https://electionlawblog.org/?p=104744> by Rick Hasen<https://electionlawblog.org/?author=3>

Letter<http://docquery.fec.gov/pdf/595/201904180300037595/201904180300037595.pdf>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

The Hole in the Mueller Report<https://electionlawblog.org/?p=104740>
Posted on April 19, 2019 12:05 pm<https://electionlawblog.org/?p=104740> by Richard Pildes<https://electionlawblog.org/?author=7>

The Mueller report makes one legal judgment, in particular, that I find extremely puzzling. I think this judgment is going to cause endless confusion in the public and political debate about the report, and indeed, is doing so already. I explained this issue in a piece for Politico, among a series of essays<https://www.politico.com/magazine/story/2019/04/19/mueller-report-analysis-legal-experts-226662>from legal experts on the report. Here is what I wrote there:

On the obstruction issue, the Mueller Report is, to my surprise, deeply confused and confusing about the fundamental issue of what the report means to be telling us.

The obstruction analysis begins with a statement of four principles that governed the analysis. The most consequential of these will come as a stunner to most people: “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes” (emphasis added). In other words, the report was never going to reach a judgment about whether the president had committed a crime. No matter what the facts showed, the special counsel determined at the outset, as a matter of principle, that it would be inappropriate to conclude that the president had committed a crime.

I assume most people would have thought the entire point of the special counsel investigation on obstruction was precisely to determine whether the president had committed any crimes. But the report concludes that because the president cannot be indicted while in office, it would be “unfair” in principle to conclude he had committed a crime, since unlike the ordinary criminal defendant, he would not soon have a trial in which he could clear his name. In other words: Since the president cannot be indicted while in office, he also can’t be found by the Justice Department to have committed a crime while in office.

So what was the point of the obstruction phase of the investigation? Merely to “preserve the evidence when memories were fresh and documentary materials available.”

The report states that if the evidence had left the special counsel convinced the president had not committed a crime, the report would be able to tell us that. Thus, we are told both that the special counsel would not be able to say if he’d concluded the president had committed a crime, and that the special counsel was able to say that he cannot conclude the president did not commit a crime. But if these considerations of “fairness” to the president are correct, they would presumably also prohibit the attorney general from publicly concluding that the president had committed a crime.

If the report had at least been clear and explicit throughout about how narrowly Mueller conceived his role, it could have expressly said things like, “We believe only Congress can decide whether a president has committed a crime while in office” or “We will only present you with our factual findings and our view of the general legal principles involved.” That would at least have left clear the limited role the special counsel believed the Department of Justice can play in evaluating potential presidential criminal liability.

But instead, the report assessed whether each event it examined could be considered obstructive. This leaves the impression that the special counsel evaluated each event and concluded that one could argue either way about whether it could be part of an obstruction crime. There is a large difference between saying (1) it is not our role, it is only for Congress to decide whether a crime has been committed, and (2) we are indeed evaluating the merits and we conclude the case could go either way.

I am afraid Mueller’s report muddies the difference between these two positions. The result is that partisans will have plausible bases for reading the obstruction analysis consistent with their prior partisan preferences.

[This is one issue on which Alan Dershowitz and I apparently agree<https://www.politico.com/magazine/story/2019/04/19/mueller-report-analysis-legal-experts-226662>].
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Rick Hasen
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UC Irvine School of Law
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