[EL] ELB News and Commentary 4/23/19

Tue Apr 23 08:43:45 PDT 2019

“Supreme Court conservatives sympathetic toward Trump census citizenship query”<https://electionlawblog.org/?p=104808>
Posted on April 23, 2019 8:36 am<https://electionlawblog.org/?p=104808> by Rick Hasen<https://electionlawblog.org/?author=3>

Reuters<https://www.reuters.com/article/us-usa-court-census/supreme-court-conservatives-sympathetic-toward-trump-census-citizenship-query-idUSKCN1RZ0X9> with an early report from today’s oral argument:

During an extended, 80-minute argument session, the court’s liberal justices voiced skepticism over the need for the question to enforce a federal voting rights law – the administration’s stated justification.
Lower courts have blocked the question, ruling that the administration violated federal law and the U.S. Constitution in seeking to include it on the census form.
The court has a 5-4 conservative majority, and conservative justices signaled support toward the administration’s stance.
Chief Justice John Roberts challenged New York Solicitor General Barbara Underwood, whose state sued the administration over the plan to add the question, saying citizenship is critical information for enforcing the Voting Rights Act.

Experts in fact have said that the citizenship question is unnecessary for enforcement of the Voting Rights Act. And it is undisputed in the record in these cases that the VRA was just a pretext for Secretary Ross to add the question to the census (likely it was for political reasons). He had to reach out to DOJ to get DOJ to request the citizenship question.

As I wrote<https://slate.com/news-and-politics/2019/03/john-roberts-supreme-court-gerrymandering-cases.html> at Slate a few weeks ago:

So too are political lines apparent in the census case. The U.S. government is defending the inclusion of a question about citizenship for the first time since the 1950 census as needed to provide accurate demographic information to the Department of Justice to help it protect Latinos in Voting Rights Act lawsuits. But two courts have already found that Commerce Secretary Wilbur Ross insisted on including the citizenship question for undisclosed reasons, and that the DOJ voting rights claim was a mere pretext. Republicans have again lined up in favor<https://www.supremecourt.gov/DocketPDF/18/18-966/90980/20190306164613874_18-966%20Amicus%20Brief%20Republican%20National%20Comm%20et%20al.pdf> of including the question, which Democrats oppose as likely to inhibit a complete and accurate count of all persons in the United States, leading to lower representation in Democratic-leaning areas and fewer federal resources based on population….

The census case is jurisprudentially easier. The Commerce Department’s decision to include the citizenship question is a textbook example of arbitrary and capricious action<https://slate.com/news-and-politics/2019/01/federal-judge-census-ruling-wilbur-ross-trump.html> in violation of the Administrative Procedure Act. The only justification that the department has offered for including the question—helping DOJ help Latinos in voting rights cases—has indisputably been found to be a pretext. Whether Ross was actually motivated by partisan considerations is beside the point. And yet conservative Justices Neil Gorsuch and Clarence Thomas were so put off<https://slate.com/news-and-politics/2018/10/neil-gorsuch-trump-census-lawsuit.html> by this lawsuit that they were willing to stop the trial<https://www.scotusblog.com/wp-content/uploads/2018/10/18A375-In-Re-Department-of-Commerce.pdf> in the case even before judgment. The court’s other conservatives too might be swayed by the strong political valence of the case.
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“NC, SC would have to OK election law changes with feds under updated Voting Rights Act”<https://electionlawblog.org/?p=104806>
Posted on April 23, 2019 8:22 am<https://electionlawblog.org/?p=104806> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer<https://www.newsobserver.com/news/politics-government/article229328144.html>:

North Carolina and South Carolina would face federal oversight of election law changes if a new Democratic bill to update the Voting Rights Act passes — and the U.S. House of Representatives held a field hearing in North Carolina’s Halifax County last week to help build the case for passage.

The Carolinas are among 11 states are expected to meet a formula for federal oversight in the Voting Rights Advancement Act<https://sewell.house.gov/sites/sewell.house.gov/files/Voting%20Rights%20Advancement%20Act%20of%202019.pdf>, according to the bill’s sponsor. Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, Texas and Virginia are the other states.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>, VRAA<https://electionlawblog.org/?cat=81>

“Is foreign election interference being normalized after Mueller report?” (Video of My Appearance on Meet the Press Daily)<https://electionlawblog.org/?p=104804>
Posted on April 23, 2019 8:18 am<https://electionlawblog.org/?p=104804> by Rick Hasen<https://electionlawblog.org/?author=3>

You can watch here<http://www.msnbc.com/mtp-daily/watch/is-foreign-election-interference-being-normalized-after-mueller-report-1502375491639>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>

“Busted & Broke: Why the Federal Election Commission doesn’t work”<https://electionlawblog.org/?p=104801>
Posted on April 23, 2019 8:08 am<https://electionlawblog.org/?p=104801> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.issueone.org/busted-broke-why-the-federal-election-commission-doesnt-work/>:

Issue One’s latest report, “Busted & Broke: Why the Federal Election Commission doesn’t work,<https://www.issueone.org/wp-content/uploads/2019/04/FEC-REPORT-2019.pdf>” reveals why the FEC is dysfunctional and how the agency lacks the budget, staff, and teeth it needs to enforce the country’s campaign finance laws as the 2020 elections unfold.
While it is common knowledge that the FEC gridlocks frequently, it is less known that the agency is severely understaffed and underfunded. The lack of resources is crippling the enforcement of existing election and anti-corruption laws….

New research<https://www.issueone.org/wp-content/uploads/2019/04/FEC-REPORT-2019.pdf> by Issue One shows:

There has been a dramatic decline in fines issued by the FEC. During the past five years, the median amount of fines issued by the FEC annually was just $825,000 (in 2018 dollars), compared to $4.6 million (adjusted for inflation) in the five years following the Bipartisan Campaign Finance Reform Act of 2002.

If one more commissioner leaves the FEC, the agency will cease to function. There are currently two vacancies on the six-member commission, and four votes are required to take action. The FEC currently needs unanimous consent to take action on anything. Additionally, each sitting commissioner is serving on a well-expired term, including Chair Ellen Weintraub, who has been at the agency for more than 16 years. (Each FEC commissioner’s term is supposed to be six years.) The last two commissioners — Republican Lee Goodman and Democrat Ann Ravel — both left the agency before serving a full six years.

The FEC suffers from ongoing, crippling brain drain and low morale. The FEC has lost 24 employees during the past three years without replacing them. Over the past 16 years, roughly one in five employees has left the FEC without being replaced — including a pair of commissioners and numerous high-level officials.

The FEC’s budget has stagnated — but its oversight responsibilities have not. The agency’s enforcement division has shrunk to just 41 employees — down from 59 in 2010 — while the case backlog continues to grow (from 100 cases in 2010 to 329 in 2018).
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Posted in federal election commission<https://electionlawblog.org/?cat=24>

“‘They think they are above the law’: the firms that own America’s voting system”<https://electionlawblog.org/?p=104799>
Posted on April 23, 2019 8:06 am<https://electionlawblog.org/?p=104799> by Rick Hasen<https://electionlawblog.org/?author=3>

The Guardian:<https://www.theguardian.com/us-news/2019/apr/22/us-voting-machine-private-companies-voter-registration>

Maryland congressman Jamie Raskin is a newcomer to the cause of reforming America’s vote-counting machines, welcomed through baptism by fire. In 2015, Maryland’s main election system vendor was bought by a parent company with ties to a Russian oligarch. The state’s election officials did not know about the purchase until July 2018, when the FBI notified <https://elections.maryland.gov/press_room/documents/July%2013%20Press%20Statement.pdf> them of the potential conflict.

The FBI investigated<https://elections.maryland.gov/about/documents/HIRT_Engagement_Report_Maryland_State_Board_of_Elections_FINAL.pdf> and did not find any evidence of tampering or sharing of voter data. But the incident was a giant red flag as to the potential vulnerabilities of American democracy – especially as many states have outsourced vote-counting to the private sector. After all, the purchase happened while Russian agents were mounting multiple disinformation and cybersecurity campaigns to interfere with America’s 2016 general election.

“To say that they don’t have any evidence of any wrongdoing is not to say that nothing untoward happened,” Raskin said. “It’s simply to say that we don’t have the evidence of it.”

The fact is that democracy in the United States is now largely a secretive and privately-run affair conducted out of the public eye with little oversight. The corporations that run every aspect of American elections, from voter registration to casting and counting votes by machine, are subject to limited state and federal regulation.

The companies are privately-owned and closely held, making information about ownership and financial stability difficult to obtain. The software source code and hardware design of their systems are kept as trade secrets and therefore difficult to study or investigate.
The market for election vendors is small and the “customer base” mostly limited to North America and centered on the US, meaning that competition is fierce. The result is a small network of companies that have near-monopolies on election services, such as building voting machines<https://publicpolicy.wharton.upenn.edu/live/files/270-the-business-of-votin>. Across the spectrum, private vendors have long histories of errors that affected elections, of obstructing politicians and the public from seeking information, of corruption, suspect foreign influence, false statements of security and business dishonesty.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

“John Roberts faces another test with census case”<https://electionlawblog.org/?p=104797>
Posted on April 22, 2019 4:08 pm<https://electionlawblog.org/?p=104797> by Rick Hasen<https://electionlawblog.org/?author=3>

Joan Biskupic<https://www.cnn.com/2019/04/22/politics/john-roberts-census/index.html> for CNN.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Florida lawmakers say they want to cure election woes. Here’s what they’re doing about it.”<https://electionlawblog.org/?p=104795>
Posted on April 22, 2019 4:00 pm<https://electionlawblog.org/?p=104795> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports<https://www.tampabay.com/florida-politics/2019/04/22/florida-lawmakers-say-they-want-to-cure-election-woes-heres-what-theyre-doing-about-it/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“It is wrong to say ‘no collusion'”<https://electionlawblog.org/?p=104791>
Posted on April 22, 2019 12:56 pm<https://electionlawblog.org/?p=104791> by Rick Hasen<https://electionlawblog.org/?author=3>

Trevor Potter oped:<https://thehill.com/opinion/judiciary/439975-it-is-wrong-to-say-no-collusion>

The openness of the Trump campaign to obtain help from the Russian government is most clearly illustrated by communications of Trump Jr. regarding the June 2016 meeting at Trump Tower. He was told a “Russian government attorney” wanted to meet to “provide the Trump campaign with some official documents and information that would incriminate Hillary,” provided as Russian government support for Trump. Rather than going to the FBI, Trump Jr. replied, “I love it, then told senior campaign staff, and brought Manafort and Kushner to the meeting itself. The report found that the conduct of Trump Jr. implicates the ban on soliciting a contribution from an individual that he knew was a foreign national.

Yet, Trump Jr. was not charged. Although the courts have not squarely addressed the issue, the report acknowledged that opposition research should be treated as an in-kind contribution that is subject to the foreign national ban. As Mueller notes, a foreign government that directed its intelligence apparatus towards digging up dirt on American political candidates and “provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.”

However, the main reason Mueller did not charge Trump Jr. is because he could not establish that the violation was done “willfully,” meaning that he could not prove that Trump Jr. knew that asking the Russian government for “dirt” on an opponent was illegal. Notably, Mueller had never called Trump Jr. before the grand jury to press him on his knowledge of the law.

Establishing willfulness is only necessary for criminal campaign finance violations. For the Federal Election Commission to seek civil penalties, it simply needs to find that Trump Jr. solicited a contribution from a person he knew was a foreign national. As the July 2017 federal complaint<https://www.campaignlegal.org/document/fec-complaint-requesting-investigation-donald-trump-jr-foreign-national-contribution> by the Campaign Legal Center, filed with Common Cause and Democracy 21, alleged, and as Mueller has demonstrated, that has been established.

The Federal Election Commission should take action on this pending complaint, but the problem extends much wider. The special counsel report described the wide ranging digital Russian electioneering efforts, which should prompt Congress to update campaign finance laws for the 21st century. Finally, we should all be demanding that candidates who are vying to represent us pledge not to accept help from foreign powers.

See also Brendan Fischer, What the Mueller Report Tells Us About Campaign Finance Law and Foreign Interference.<https://readsludge.com/2019/04/20/what-the-mueller-report-tells-us-about-campaign-finance-law-and-foreign-interference/>
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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>

“The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well”<https://electionlawblog.org/?p=104789>
Posted on April 22, 2019 9:35 am<https://electionlawblog.org/?p=104789> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/04/mueller-report-hush-money-stormy-daniels-trump-cohen-sdny.html> for Slate. It begins:

Since the announcement of special counsel Robert Mueller’s decision to not indict President Donald Trump for obstruction of justice or any members of Trump’s family, critics of Trump who still feel some of his actions may have amounted to crimes seem to have put all their eggs in a new basket: the Southern District of New York. These Trump opponents now seem to be hoping that the Justice Department’s branch in the SDNY, which secured a plea deal from Trump’s former personal lawyer Michael Cohen, will come after Trump’s family for financial improprieties and perhaps Trump himself for potential campaign finance violations. But based on what we have learned from the Mueller report, which was released on Thursday, and how it has been handled by Attorney General William Barr, it is time to lower expectations for the SDNY to act, at least as it pertains to the president’s potential criminal liability while in office….

Like the situation with Trump Jr., there might be questions about the president’s willfulness to violate campaign finance laws. Although Trump had tweeted <https://twitter.com/realDonaldTrump/status/195584554290003969> about the similar John Edwards case at the time Edwards was on trial, that might not be enough for prosecutors to conclude that they might be able to prove to a jury beyond a reasonable doubt that Trump knew he was violating the law by making payments to a mistress during a campaign without reporting it. And just as Mueller’s team did not call Trump Jr. to the grand jury, it did not get to personally interview the president or get him before the grand jury. It relied on written answers from Trump, vetted through his lawyers. So it may be very hard to prove willfulness without getting more from the president himself.

And as with the foreign opposition research case against Trump Jr., the hush money payments case against Cohen—and thus Trump—relies upon a contested legal theory. It is true that the Edwards case is precedent for prosecuting this as a crime, but there is a reasonable counterargument that these payments should be treated as personal, and not campaign-related. Cohen might have pleaded guilty to these crimes rather than fight them raising these potential defenses because he was already pleading to other charges and saw no point in contesting these, which allowed him to attack the president as a co-conspirator in a criminal enterprise. At the very least, there is an argument that to avoid the problem of overzealous prosecutors, the better course<https://electionlawblog.org/?p=102839> is to leave criminal prosecutions of politicians in political cases to the most clear-cut cases of criminal liability.
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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>

“Ballot-Marking devices (BMDs) cannot assure the will of the voters”<https://electionlawblog.org/?p=104787>
Posted on April 22, 2019 8:01 am<https://electionlawblog.org/?p=104787> by Rick Hasen<https://electionlawblog.org/?author=3>

Important new paper<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3375755> from Andrew Appel, Richard DeMillo, and Philip Stark on the controversy over the new type of ballot printing machinery which uses barcodes:

Computers, including all modern voting systems, can be hacked and misprogrammed. The scale and complexity of U.S. elections may require the use of computers to count ballots, but election integrity requires a paper-ballot voting system in which, regardless of how they are initially counted, ballots can be re- counted by hand to check whether election outcomes have been altered by buggy or hacked software. Furthermore, secure voting systems must be able to recover from any errors that might have occurred.

However, paper ballots provide no assurance unless they accurately record the vote as the voter expresses it. Voters can express their intent by hand-marking a ballot with a pen, or using a computer called a ballot-marking device (BMD), which generally has a touchscreen and assistive interfaces. Voters can make mistakes in expressing their intent in either technology, but only the BMD is also subject to systematic error from computer hacking or bugs in the process of recording the vote on paper, after the voter has expressed it. A hacked BMD can print a vote on the paper ballot that differs from what the voter expressed, or can omit a vote that the voter expressed.

It is not easy to check whether BMD output accurately reflects how one voted in every contest. Research shows that most voters do not review paper ballots printed by BMDs, even when clearly instructed to check for errors. Furthermore, most voters who do review their ballots do not check carefully enough to notice errors that would change how their votes were counted. Finally, voters who detect BMD errors before casting their ballots, can correct only their own ballots, not systematic errors, bugs, or hacking. There is no action that a voter can take to demonstrate to election officials that a BMD altered their expressed votes, and thus no way voters can help deter, detect, contain, and correct computer hacking in elections. That is, not only is it inappropriate to rely on voters to check whether BMDs alter expressed votes, it doesn’t work.

Risk-limiting audits of a trustworthy paper trail can check whether errors in tabulating the votes as recorded altered election outcomes, but there is no way to check whether errors in how BMDs record expressed votes altered election out- comes. The outcomes of elections conducted on current BMDs therefore cannot be confirmed by audits. This paper identifies two properties of voting systems, contestability and defensibility, that are necessary conditions for any audit to con- firm election outcomes. No commercially available EAC-certified BMD is contestable or defensible.

To reduce the risk that computers undetectably alter election results by printing erroneous votes on the official paper audit trail, the use of BMDs should be limited to voters who require assistive technology to vote independently.

I’m sure this is not the last word, and I look forward to hearing responses to this critique of what is the next wave of voting technology.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

--
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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