[EL] ELB News and Commentary 4/25/19

[Rick Hasen]

“Mulvaney: ‘I don’t recall’ telling staffers not to mention election security to Trump”<https://electionlawblog.org/?p=104858>
Posted on April 25, 2019 7:40 am<https://electionlawblog.org/?p=104858> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/04/24/mulvney-election-security-trump-1289380>:

Acting White House chief of staff Mick Mulvaney said Wednesday he doesn’t recall instructing aides to keep discussions about election security off President Donald Trump’s radar, after The New York Times reported Mulvaney had said the topic “should be kept below his level.”

The Times reported<https://www.nytimes.com/2019/04/24/us/politics/russia-2020-election-trump.html?action=click&module=Top%20Stories&pgtype=Homepage&login=email&auth=login-email> that the subject of Russian election meddling was such a sensitive subject for the president that in one meeting involving former Homeland Security Secretary Kirstjen Nielsen the acting chief “made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory.”

A senior administration official told the Times that Mulvaney said discussing efforts to secure the 2020 presidential election with Trump “wasn’t a great subject and should be kept below his level.”

“I don’t recall anything along those lines happening in any meeting,” Mulvaney said in a statement Wednesday, and he said the White House is working to ensure neither Russia nor any other foreign adversary interferes in the 2020 vote.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Disparate Impact, Unified Law”<https://electionlawblog.org/?p=104853>
Posted on April 25, 2019 7:35 am<https://electionlawblog.org/?p=104853> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

My article<https://poseidon01.ssrn.com/delivery.php?ID=335074111074014070110110121086105073109017024072035030106079024111120083009064094107037033035060058099112004011098021103112108062066043049061123117118001089103023029066031065121127092100090113068107099020083020021106121113083094073008110001030117009&EXT=pdf> on unifying disparate impact law has just come out in the Yale Law Journal. Here’s the abstract:

The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response to this array of limits, lower courts have recently converged on a two-part test under section 2 of the Voting Rights Act. This test asks if an electoral practice (1) causes a disparate racial impact (2) through its interaction with social and historical discrimination. Unfortunately, the apparent judicial consensus is only skin-deep. Courts bitterly disagree over basic questions like whether the test applies to specific policies or systems of election administration; whether it is violated by all, or only substantial, disparities; and whether disparities refer to citizens’ compliance with a requirement or to their turnout at the polls. The test also sits on thin constitutional ice. It comes close to finding fault whenever a measure produces a disparate impact and so coexists uneasily with Fourteenth Amendment norms about colorblindness and Congress’s remedial authority.

The section 2 status quo, then, is untenable. To fix it, this Article proposes to look beyond election law to the statutes that govern disparate impact liability in employment law, housing law, and other areas. Under these statutes, breaches are not determined using the two-part section 2 test. Instead, courts employ a burden-shifting framework that first requires the plaintiff to prove that a particular practice causes a significant racial disparity and then gives the defendant the opportunity to show that the practice is necessary to achieve a substantial interest. This framework, the Article argues, would answer the questions that have vexed courts in section 2 cases. The framework would also bolster section 2’s constitutionality by allowing jurisdictions to justify their challenged policies. Accordingly, the solution to section 2’s woes would not require any leaps of doctrinal innovation. It would only take the unification of disparate impact law.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Justice Department refuses to comply with congressional subpoena for testimony on citizenship question and 2020 Census”<https://electionlawblog.org/?p=104854>
Posted on April 25, 2019 7:32 am<https://electionlawblog.org/?p=104854> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/powerpost/justice-department-refuses-to-comply-with-congressional-subpoena-for-testimony-on-citizenship-question-and-2020-census/2019/04/24/d132996a-66a6-11e9-a1b6-b29b90efa879_story.html?utm_term=.4ea1ba0887bc>:

The Justice Department said Wednesday that it will not comply with a congressional subpoena for a Trump administration official to testify in a House panel’s investigation of the addition of a citizenship question to the 2020 Census.

In a letter to the House Oversight and Reform Committee, Assistant Attorney General Stephen E. Boyd informed the panel that John Gore, the principal deputy assistant attorney general for the Justice Department’s civil rights division, will not give a deposition.

Gore’s refusal to appear before the committee is at the direction of Attorney General William P. Barr, according to the letter, escalating the already explosive fight between the executive and legislative branch.
Boyd said the reason Gore would not appear stemmed from the panel’s refusal to allow a department attorney to join him for the deposition.

Rep. Elijah E. Cummings (D-Md.), chairman of the committee, has threatened to hold Gore in contempt if he does not show.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Department of Justice<https://electionlawblog.org/?cat=26>


“The Cybersecurity 202: Cybersecurity proposal pits cyber pros against campaign finance hawks”<https://electionlawblog.org/?p=104850>
Posted on April 25, 2019 7:29 am<https://electionlawblog.org/?p=104850> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/04/25/the-cybersecurity-202-cybersecurity-proposal-pits-cyber-pros-against-campaign-finance-hawks/5cc10e35a7a0a46fd9222b21/?utm_term=.4be6b8a54ff8>:

The Federal Election Commission could decide today whether nonpartisan groups can offer political campaigns free cybersecurity services, an issue that has made bedfellows of Republicans and Democrats but divided cyber pros and campaign finance hawks.

The proposal’s authors, Hillary Clinton’s 2016 campaign manager Robby Mook and Mitt Romney’s 2012 campaign manager Matt Rhoades, come to the issue from bitter experience. The Romney campaign was targeted by Chinese hackers, and Clinton’s campaign was upended by a Russian hacking and disinformation operation aimed at helping  Donald Trump.

The bipartisan duo want to help presidential and congressional campaigns steer clear of similar hacking operations by allowing nonprofits to provide cybersecurity free of charge. But first they need the FEC to say those services don’t amount to an illegal campaign contribution….

The plan is a hit with many cybersecurity pros who say campaigns aren’t equipped to defend themselves against sophisticated, government-backed hacking operations from Russia and China, and think this might level the playing field.

Good-government advocates, however, say the proposal creates a loophole for cybersecurity and tech companies — or other nonprofit groups — to secretly curry favor with politicians. It’s not just the bipartisan group that could offer protections for free, but any nonprofit that wants to.
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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>, federal election commission<https://electionlawblog.org/?cat=24>


“Mueller report shows Trump campaign left itself wide open to Russians, officials say”<https://electionlawblog.org/?p=104848>
Posted on April 25, 2019 7:23 am<https://electionlawblog.org/?p=104848> by Rick Hasen<https://electionlawblog.org/?author=3>

NBC News<https://www.nbcnews.com/politics/national-security/mueller-report-shows-trump-campaign-left-itself-wide-open-russians-n997716>:

The Mueller report’s narrative of secret meetings between members of Donald Trump’s orbit and Russian operatives — contacts that occurred both before and after the 2016 election — portrays a political campaign that left itself open to a covert Russian influence operation, former intelligence officials and other experts say.

While finding no criminal conspiracy, the report<https://www.nbcnews.com/politics/politics-news/read-text-full-mueller-report-n994551> shows that Trump associates met with Russians after the intelligence community said in October 2016 that Russia was interfering in the presidential election, and even after the Obama administration announced a set of post-election sanctions to punish Russia for that behavior.

The 448-page report, written as a prosecutorial document, was not meant to assess, and does not say, whether U.S. national security was put at risk<https://www.nbcnews.com/politics/congress/schiff-real-question-if-trump-under-influence-foreign-power-n984911> through those contacts. But former FBI and CIA officials and people who study Russian intelligence say the report describes a counterintelligence minefield<https://www.nbcnews.com/politics/national-security/counterintelligence-investigation-trump-team-russia-hasn-t-stopped-n996486> — senior members of a presidential campaign and transition holding secret talks with a sophisticated foreign adversary, without the benefit of State Department and intelligence community counsel.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“This Could Be One of Trump’s Biggest Political Victories”<https://electionlawblog.org/?p=104846>
Posted on April 25, 2019 7:19 am<https://electionlawblog.org/?p=104846> by Rick Hasen<https://electionlawblog.org/?author=3>

Cristian Farias<https://www.nytimes.com/2019/04/24/opinion/citizenship-census-supreme-court-arguments.html?action=click&module=Opinion&pgtype=Homepage> in the NYT:

For all his talk about judges not being political actors beholden to a president<https://www.nytimes.com/2018/11/21/us/politics/trump-chief-justice-roberts-rebuke.html?module=inline>, Chief Justice John Roberts Jr. and his conservative colleagues on the Supreme Court may hand President Trump one of the biggest political victories of his administration: the addition of a citizenship question to the 2020 census.

It also happens to be a coup with profound implications<https://www.nytimes.com/2019/04/23/us/noncitizens-census-political-maps.html?module=inline> for American democracy.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


“2020 Democrats confronting debate over letting felons vote”<https://electionlawblog.org/?p=104844>
Posted on April 25, 2019 7:10 am<https://electionlawblog.org/?p=104844> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.seattletimes.com/nation-world/nation/2020-democrats-confronting-debate-over-letting-felons-vote/>
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Posted in felon voting<https://electionlawblog.org/?cat=66>


E.J. Dionne: “Will Trump and the Supreme Court tear our democracy apart?”<https://electionlawblog.org/?p=104842>
Posted on April 24, 2019 6:26 pm<https://electionlawblog.org/?p=104842> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo column<https://www.washingtonpost.com/opinions/will-trump-and-the-supreme-court-tear-our-democracy-apart/2019/04/24/c640294a-66ca-11e9-a1b6-b29b90efa879_story.html?utm_term=.fc1824f11242>:

Our nation faces a constitutional conflagration, and President Trump is not the only actor willing to put personal and partisan interests above the preservation of our system of self-rule.

Five conservative justices on the Supreme Court signaled clearly on Tuesday that they are willing to allow the administration to act lawlessly in distorting the 2020 Census and thus representation in Congress to benefit the party that placed them on the court.

Trump’s brazen attacks on U.S. institutions and the court’s partisanship are not separate stories. They are the product of a radicalization of American conservatism. Republicans and conservative ideologues — including the ones wearing the robes of justice — are destabilizing our institutions in pursuit of power.

The apparent willingness of the court’s five conservatives to go along with the Trump administration on the census is of a piece with earlier rulings gutting the Voting Rights Act<https://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html>and increasing the power of big money in politics. All tilt the workings of our democratic republic in favor of conservative candidates, conservative causes and the appointment of conservative judges just like them.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“Unleashed by Citizens United: Energy, Utility Giants Poured $60 Million Into 2017 Campaigns”<https://electionlawblog.org/?p=104840>
Posted on April 24, 2019 6:19 pm<https://electionlawblog.org/?p=104840> by Rick Hasen<https://electionlawblog.org/?author=3>

Maplight<https://maplight.org/story/unleashed-by-citizens-united-energy-utility-giants-poured-60-million-into-2017-campaigns/>:

Unleashed by a 2010 Supreme Court decision allowing corporations to make unlimited political contributions, about three dozen of the nation’s largest energy and utility companies pumped almost $60 million into campaign committees, ballot measures, trade associations, and nonprofits during 2017, according to a MapLight analysis.

The analysis of data compiled by the Center for Political Accountability found the corporations gave at least $31.4 million, or more than half of their 2017 contributions, to politically powerful trade organizations that included the American Petroleum Institute, U.S. Chamber of Commerce, and Edison Electric Institute.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Lawsuit: NRA Illegally Coordinated Up to $35 Million in Campaign Spending”<https://electionlawblog.org/?p=104838>
Posted on April 24, 2019 6:17 pm<https://electionlawblog.org/?p=104838> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:<https://campaignlegal.org/press-releases/lawsuit-nra-illegally-coordinated-35-million-campaign-spending>

Today, Campaign Legal Center Action (CLC Action) filed suit<https://campaignlegal.org/document/giffords-v-federal-election-commission-us-district-court-district-columbia-lawsuit> on behalf of Giffords against the Federal Election Commission (FEC) for failing to announce any action against the National Rifle Association (NRA) for using shell corporations to coordinate campaign spending with seven federal candidates spanning three election cycles from 2014-2018. The lawsuit was filed two days before President Trump addresses the NRA’s annual convention for the third year in a row – the only time in American history a president has done so.

The NRA’s complicated scheme had the effect of evading campaign contribution limits and shielding millions of dollars of political spending – including up to $25 million coordinated with Donald Trump’s presidential campaign – from public scrutiny.

Campaign Legal Center (CLC) and Giffords filed four complaints with the FEC to address these violations. The FEC is the independent regulatory agency tasked with enforcing campaign finance laws in federal elections, the agency routinely deadlocks and fails to reach the required four votes necessary to open an investigation. Today, Giffords is asserting its right of action in the U.S. District Court for the District of Columbia after the 120-day period expired in which the FEC was legally required to respond.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>


Ohio: “Secretary of State Frank LaRose, lawmakers to seek automated voter registration, other election reforms”<https://electionlawblog.org/?p=104836>
Posted on April 24, 2019 6:14 pm<https://electionlawblog.org/?p=104836> by Rick Hasen<https://electionlawblog.org/?author=3>

Cleveland Plain Dealer:<https://www.cleveland.com/politics/2019/04/secretary-of-state-frank-larose-lawmakers-to-seek-automate-voter-registration-other-election-reforms.html#main>

Secretary of State Frank LaRose and state lawmakers on Tuesday said they’re working on legislation to reform the state’s voting system – including automated voter registration and increasing the sharing of information between agencies to avoid voter purges.

LaRose, a Hudson Republican, said during a Statehouse news conference that he hopes within the next few months to hammer out a final proposal to the state legislature that would also contain additional measures to “modernize” Ohio’s voting process.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“Blockchain ballots? Pilot project in Denver will permit independent audit”<https://electionlawblog.org/?p=104834>
Posted on April 24, 2019 6:12 pm<https://electionlawblog.org/?p=104834> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld reports.<https://www.alternet.org/2019/04/blockchain-ballots-pilot-project-in-denver-will-permit-independent-audit/>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


“The Census Case Will Define the Roberts Court”<https://electionlawblog.org/?p=104832>
Posted on April 24, 2019 6:07 pm<https://electionlawblog.org/?p=104832> by Rick Hasen<https://electionlawblog.org/?author=3>

David Gans<https://slate.com/news-and-politics/2019/04/census-case-roberts-court-legacy.html> for Slate.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


DHS Looking at the Security of Ballot Marking Devices (BMDs)<https://electionlawblog.org/?p=104830>
Posted on April 24, 2019 6:05 pm<https://electionlawblog.org/?p=104830> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/newsletters/morning-cybersecurity>

DHS ON BMDs: DHS is scrutinizing the reliability of ballot-marking devices following a study<https://www.politico.com/newsletters/morning-cybersecurity/2019/04/23/pentagons-swat-team-of-nerds-gets-new-leadership-593693> from experts concluding that they cannot be reliably audited, Krebs also said Tuesday, but the department hasn’t come to a firm conclusion. “It’s part of the conversation to look at what the next generation of technology looks like,” he told reporters, given a debate over the importance of using hand-marked paper ballots and “whether the risk of BMDs can be managed.” But Krebs, who said he hadn’t finished reading the study yet, said it’s part of a larger approach. “I think where we want to go is in the development pipeline for a lot of these companies as they’re putting the next technology into market,” he said.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


“Tennessee’s Vengeful Lawmakers: After enormous black turnout in the 2018 midterms, Republicans are advancing a bill that would penalize voter registration drives.”<https://electionlawblog.org/?p=104828>
Posted on April 24, 2019 11:45 am<https://electionlawblog.org/?p=104828> by Rick Hasen<https://electionlawblog.org/?author=3>

Cliff Albright NYT ope<https://www.nytimes.com/2019/04/24/opinion/tennessees-voter-registration-drives.html>d.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Michael Cohen Claims He Pled Guilty on Tax and Fraud Changes Because Prosecutors “Had [Him] on Campaign Finance”; Did His Lawyers Give Him Bad Advice?<https://electionlawblog.org/?p=104826>
Posted on April 24, 2019 10:19 am<https://electionlawblog.org/?p=104826> by Rick Hasen<https://electionlawblog.org/?author=3>

In a recent <https://slate.com/news-and-politics/2019/04/mueller-report-hush-money-stormy-daniels-trump-cohen-sdny.html> Slate<https://slate.com/news-and-politics/2019/04/mueller-report-hush-money-stormy-daniels-trump-cohen-sdny.html> piece<https://slate.com/news-and-politics/2019/04/mueller-report-hush-money-stormy-daniels-trump-cohen-sdny.html>, I noted some of the issues with going after President Trump on campaign finance charges related to hush money payments, charges to which Trump’s former attorney Michael Cohen pleaded guilty. I added: “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.”

And yet now in a secretly recorded phone conversation with actor Tom Arnold, Cohen said the opposite. According to the WSJ<https://www.wsj.com/articles/michael-cohen-in-recorded-phone-call-walks-back-parts-of-guilty-plea-11556121974>, which got to hear the recording, “Speaking privately with Mr. Arnold, Mr. Cohen said he had pleaded guilty to the charges in August<https://www.wsj.com/articles/why-michael-cohen-agreed-to-plead-guiltyand-implicate-the-president-1534987372?mod=ig_michaelcohen&mod=article_inline> because ‘they had me on campaign finance’ and prosecutors were targeting his wife. Mr. Cohen had failed to disclose to the Internal Revenue Service more than $2.4 million in interest payments he had received from loans, some of which were deposited in an account under his wife’s name, New York federal prosecutors wrote in a court filing. Mr. Cohen’s wife declined to comment.”

Given the legal questions about the campaign finance charges, I wonder about the legal advice Cohen has received.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>


“For Campaign Finance Violators, Crime Pays”<https://electionlawblog.org/?p=104824>
Posted on April 24, 2019 10:07 am<https://electionlawblog.org/?p=104824> by Rick Hasen<https://electionlawblog.org/?author=3>

Mike Gilbert and Samir Sheth<https://takecareblog.com/blog/for-campaign-finance-violators-crime-pays>:

he Federal Election Commission (FEC) recently levied a record-breaking fine<https://www.cnn.com/2019/03/11/politics/fec-fines-foreign-interference-election/index.html> against Right to Rise, a Jeb Bush-connected super PAC, for soliciting an illegal contribution from a foreign national.  The fine brought cheers for the FEC<https://twitter.com/EllenLWeintraub/status/1105919530935607296>, an agency infamous for deadlock, and heartened people on both sides of the aisle who want better enforcement of campaign finance laws.  There’s just one catch:  Right to Rise came out ahead.  Newly-released documents<https://www.fec.gov/data/legal/matter-under-review/7122/> tell the tale.  In exchange for a $1.3 million contribution, the super PAC paid a $390,000 fine.  The difference—$910,000 in illegal money—is the super PAC’s to keep.

So much for the cheers.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>


“In Push for 2020 Election Security, Top Official Was Warned: Don’t Tell Trump”<https://electionlawblog.org/?p=104822>
Posted on April 24, 2019 6:47 am<https://electionlawblog.org/?p=104822> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/04/24/us/politics/russia-2020-election-trump.html>:

In the months before Kirstjen Nielsen was forced to resign, she tried to focus the White House on one of her highest priorities as homeland security secretary: preparing for new and different Russian forms of interference in the 2020 election.

President Trump’s chief of staff told her not to bring it up in front of the president.

Ms. Nielsen left the Department of Homeland Security early this month after a tumultuous 16-month tenure and tensions with the White House. Officials said she had become increasingly concerned about Russia’s continued activity in the United States during and after the 2018 midterm elections — ranging from its search for new techniques to divide Americans using social media, to experiments by hackers, to rerouting internet traffic and infiltrating power grids.

But in a meeting this year, Mick Mulvaney, the White House chief of staff, made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory. According to one senior administration official, Mr. Mulvaney said it “wasn’t a great subject and should be kept below his level.”

Even though the Department of Homeland Security has primary responsibility for civilian cyberdefense, Ms. Nielsen eventually gave up on her effort to organize a White House meeting of cabinet secretaries to coordinate a strategy to protect next year’s elections.

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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>, voting technology<https://electionlawblog.org/?cat=40>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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