[EL] ELB News and Commentary 4/29/19

Rick Hasen rhasen at law.uci.edu
Sun Apr 28 19:19:00 PDT 2019


Stacey Abrams Continues to Try to Have It Both Ways in Saying that She “Won” the Georgia Governor’s Race<https://electionlawblog.org/?p=104901>
Posted on April 28, 2019 7:05 pm<https://electionlawblog.org/?p=104901> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT interview:<https://www.nytimes.com/interactive/2019/04/28/magazine/stacey-abrams-election-georgia.html>

I saw that recently you said something like you’d won your election but you just didn’t get to have the job. Yes.
Is there any fear on your part that using that kind of language fans the same flames that President Trump has fanned about delegitimizing our elections? I see those as very different. Trump is alleging voter fraud, which suggests that people were trying to vote more than once. Trump offers no empirical evidence to meet his claims. I make my claims based on empirical evidence, on a demonstrated pattern of behavior that began with the fact that the person I was dealing with was running the election. If you look at my immediate reaction after the election, I
refused to concede6<https://www.nytimes.com/interactive/2019/04/28/magazine/stacey-abrams-election-georgia.html#tooltip-6>6After her attempts to force a runoff fell short, Abrams ended her campaign for governor with a speech in which she said, ‘‘So let’s be clear — this is not a speech of concession, because concession means to acknowledge an action is right, true or proper.’’ She added, ‘‘Democracy failed Georgians.’’
 It was largely because I could not prove what had happened, but I knew from the calls that we got that something happened. Now, I cannot say that everybody who tried to cast a ballot would’ve voted for me, but if you look at the totality of the information, it is sufficient to demonstrate that so many people were disenfranchised and disengaged by the very act of the person who won the election that I feel comfortable now saying, “I won.” My larger point is, look, I won because we transformed the electorate, we turned out people who had never voted, we outmatched every Democrat in Georgia history. But voter suppression is endemic, and it’s having a corrosive effect. If we do not resolve this problem, it will harm us all.
It’s one thing to say you lost that election unfairly, and it’s another to say you won because you increased voter turnout. But can you clarify for me exactly what you’re implying when you say you “won” that election? There are three things: No. 1, I legally acknowledge that Brian Kemp secured a sufficient number of votes under our existing system to become the governor of Georgia. I do not concede that the process was proper, nor do I condone that process. No. 2, I believe we won in that we transformed the electorate and achieved a dramatic increase in turnout. It was a systemic and, I think, sustainable change in the composition of the electorate and in the transformation of the narrative about Georgia and Georgia politics. Three, I have no empirical evidence that I would have achieved a higher number of votes. However, I have sufficient and I think legally sufficient doubt about the process to say that it was not a fair election.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


Remembrances of Judges Damon Keith, Who Just Passed Away, from Guy Charles and Sherrilyn Ifill<https://electionlawblog.org/?p=104899>
Posted on April 28, 2019 6:56 pm<https://electionlawblog.org/?p=104899> by Rick Hasen<https://electionlawblog.org/?author=3>

Guy Charles<https://twitter.com/ProfGuyCharles/status/1122536724150792192>:
[View image on Twitter]<https://twitter.com/ProfGuyCharles/status/1122536724150792192/photo/1>[View image on Twitter]<https://twitter.com/ProfGuyCharles/status/1122536724150792192/photo/1>
[https://pbs.twimg.com/profile_images/1510580486/charlesg_bigger.jpg]<https://twitter.com/ProfGuyCharles>
<https://twitter.com/ProfGuyCharles>
Guy-Uriel Charles at ProfGuyCharles<https://twitter.com/ProfGuyCharles>

<https://twitter.com/ProfGuyCharles/status/1122536724150792192>


As some may have heard, Judge Damon J.Keith, who was a federal judge on the 6th Circuit & prior to that a district court judge, has died. Judge Keith was a civil rights icon. I clerked for Judge Keith and I learned a lot from him. I'll share a couple of those lessons here. 1/11
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9:23 AM - Apr 28, 2019<https://twitter.com/ProfGuyCharles/status/1122536724150792192>
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112 people are talking about this<https://twitter.com/ProfGuyCharles/status/1122536724150792192>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

Sherrilyn Ifill:<https://twitter.com/Sifill_LDF/status/1122540788544622592>
[https://pbs.twimg.com/profile_images/953037859430084608/MNTVkQGM_bigger.jpg]<https://twitter.com/Sifill_LDF>
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Sherrilyn Ifill<https://twitter.com/Sifill_LDF>
✔@Sifill_LDF<https://twitter.com/Sifill_LDF>

<https://twitter.com/Sifill_LDF/status/1122540788544622592>


Much can & should be said about the long & illustrious career of #JudgeDamonKeith<https://twitter.com/hashtag/JudgeDamonKeith?src=hash> who passed away this morning. But I am thinking right now abt the extraordinary dissent he wrote at age 93 from the 6th Circuit’s 2016 voter purge decision in Husted v A. Phillip Randolph Institute.
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9:39 AM - Apr 28, 2019<https://twitter.com/Sifill_LDF/status/1122540788544622592>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in election law biz<https://electionlawblog.org/?cat=51>


“Texas Ends Review That Questioned Citizenship of Almost 100,000 Voters”<https://electionlawblog.org/?p=104897>
Posted on April 28, 2019 5:11 pm<https://electionlawblog.org/?p=104897> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/04/26/us/texas-voting.html>:

The Texas secretary of state agreed Friday to rescind an advisory issued by his office in January that questioned the citizenship status<https://www.nytimes.com/2019/01/25/us/noncitizens-voting-texas.html?module=inline> of almost 100,000 registered voters. The agreement will formally end a review of the voter rolls that a federal judge said unfairly targeted naturalized American citizens.

The announcement by the secretary of state, David Whitley, about the review, which was halted by a federal judge<https://www.nytimes.com/2019/02/28/us/texas-voter-rolls.html?module=inline> in February, came as part of a legal settlement that will end three lawsuits brought by civil rights groups and naturalized citizens against Texas officials. Mr. Whitley also unveiled a new review process<https://www.sos.state.tx.us/about/newsreleases/2019/042619.shtml> that litigants said they hoped would not unduly burden foreign-born citizens….

Mr. Whitley will have five days to rescind the advisory once the agreement has been approved by the judge overseeing the case. The state also agreed to pay $450,000 for the plaintiffs’ legal fees.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


“Bernie Sanders Opens Space for Debate on Voting Rights for Incarcerated People”<https://electionlawblog.org/?p=104895>
Posted on April 28, 2019 9:56 am<https://electionlawblog.org/?p=104895> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/04/27/us/politics/bernie-sanders-prison-voting.html>:

The question was stark: Would you support enfranchising incarcerated people like the Boston Marathon bomber or convicted rapists?
The answer Senator Bernie Sanders of Vermont gave was starker: Yes.
“I think the right to vote is inherent to our democracy,” Mr. Sanders said during a town hall-style event<https://www.nytimes.com/2019/04/22/us/politics/cnn-town-hall-highlights.html?rref=collection%2Ftimestopic%2FSanders%2C%20Bernard&action=click&contentCollection=timestopics&region=stream&module=inline&version=latest&contentPlacement=6&pgtype=collection> on CNN this past week. “Yes, even for terrible people.”

It was a response that seemed designed to appeal to criminal justice advocates, to say nothing of people of color, who are disproportionately incarcerated.

It also immediately touched off the latest policy debate of the Democratic primary: Among the candidates asked about the issue recently were Senator Elizabeth Warren of Massachusetts, Senator Kamala Harris of California and Mayor Pete Buttigieg of South Bend, Ind., all of whom signaled, with varying levels of intensity, that they did not agree with Mr. Sanders.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


“Public Records: Personal Information on New York City Voters Is Now Available for All to See”<https://electionlawblog.org/?p=104893>
Posted on April 28, 2019 9:46 am<https://electionlawblog.org/?p=104893> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/04/26/nyregion/voter-registration-nyc-online.html>:

Are you registered to vote in New York City? If so, then anyone can find out your party affiliation, full name and home address down to the apartment number — all with a few mouse clicks.

The city’s Board of Elections recently posted its voter enrollment lists to its website<https://www.vote.nyc.ny.us/html/forms/enrollment.shtml>, a massive upload of thousands of pages, covered in tiny all-caps letters, that offer a district-by-district breakdown of voters sorted by party and street name — one line for each of the 4.6 million active registered voters.

City officials said that the information was already public record, and that a new forum did not change its availability. But the move raised alarms among privacy advocates and some election experts, who said the ease of access could play into the hands of mail scammers, internet trolls and domestic violence perpetrators.
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Posted in election administration<https://electionlawblog.org/?cat=18>


“The Republican War on Democracy; If you can’t win playing by the rules, you change them.”<https://electionlawblog.org/?p=104891>
Posted on April 27, 2019 6:17 pm<https://electionlawblog.org/?p=104891> by Rick Hasen<https://electionlawblog.org/?author=3>

Jamelle Bouie NYT column<https://www.nytimes.com/2019/04/27/opinion/sunday/the-republican-war-on-democracy.html?action=click&module=Opinion&pgtype=Homepage>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


The Emerging Consensus of the Lower Courts<https://electionlawblog.org/?p=104888>
Posted on April 27, 2019 10:08 am<https://electionlawblog.org/?p=104888> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Last week, a three-judge district court unanimously held<https://electionlawblog.org/wp-content/uploads/michigan-gerrymandering.pdf> that twenty-seven Michigan state house, state senate, and congressional districts are unconstitutional partisan gerrymanders. The consequences of the decision are important. If it’s upheld, Michigan will have fair district maps in 2020 for the first time in two decades. Just as striking as the decision’s effects, though, is the familiarity of its reasoning. In almost every respect, the decision echoes earlier court rulings striking down districts in Maryland, North Carolina, Pennsylvania, and Wisconsin. The decision is thus further proof that, while the Supreme Court continues to debate the issue, the lower courts have found a way to identify—and invalidate—extreme gerrymanders.

Take the “three-part framework” endorsed by the Michigan court, which requires showings of “(1) discriminatory partisan intent, (2) discriminatory partisan effects, and (3) causation and/or a lack of justification.” This is the same test adopted by three previous federal courts. As the Michigan court noted (quoting an earlier opinion by an Ohio court), “federal courts have ‘converged considerably on common ground in establishing standards for determining whether a partisan gerrymander is unconstitutional.’”

Or consider the district-specific evidence the Michigan court analyzed. In its decision<https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf> last year in Gill v. Whitford, the Supreme Court held that a plaintiff bringing a claim of partisan vote dilution must show that her own district was unnecessarily cracked or packed. A fair inference from the Court’s decision is that, to establish liability, a plaintiff must also prove that her district was intentionallycracked or packed. Consistent with both Whitford’s holding and its implication, the Michigan court carefully explained that twenty-seven districts cracked or packed Democratic voters, that they did so deliberately, and that this cracking or packing could have been avoided. The Michigan court also ruled that plaintiffs lacked standing in seven challenged districts because their votes continued to be diluted in the alternative maps they presented. And again, this meticulous district-by-district examination is exactly the same as that conducted by other federal courts: most notably, by the North Carolina court in a case<https://www.scotusblog.com/case-files/cases/rucho-v-common-cause-2/> now pending before the Supreme Court.

The remarkable judicial convergence extends to the plan-wide evidence accepted by the Michigan court. The court found that all three Michigan plans have exhibited staggering levels of partisan asymmetry. The congressional map, for example, has been “more extreme than 95% of previous plans in states with more than six seats over the past 45 years.” The court also found that these biases are highly durable. Under each map, “it would take an extraordinarily strong showing by Democrats to unseat the Republican majority.” The court found as well that all three plans are more skewed than thousands of alternative maps generated randomly by a computer algorithm without using election results. For instance, the actual congressional plan has nine Republican-leaning districts, while “the vast majority of [simulated congressional maps] created 7 Republican congressional districts and 7 Democratic congressional districts.”

Once more, this is precisely the same plan-wide evidence—bearing on precisely the same elements of discriminatory effect and lack of justification—considered by earlier federal courts. And once more, the Michigan court clarified that it was not constitutionalizing the plan-wide methods and metrics on which it relied. Rather, the “robust social science” was simply “evidence” that helped to prove the plaintiffs’ “allegation that the Enacted Plan violated their constitutional rights.”

The Michigan court added one more notable comment. Before it began its analysis, it remarked that “judges—and justices—must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering.” Federal judges are increasingly complying with this duty, based on the same legal framework and the same factual evidence. The question now is whether the justices will follow the judges’ lead.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Pete Buttigieg Swears Off the Lobbyist Money He Once Accepted”<https://electionlawblog.org/?p=104886>
Posted on April 26, 2019 8:55 pm<https://electionlawblog.org/?p=104886> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<http://%20%20%20%20https/www.nytimes.com/2019/04/26/us/politics/pete-buttigieg-fundraising-lobbyists.html>:

Pete Buttigieg, whose upstart presidential campaign has benefited from an early surge of donations and national attention, will no longer accept contributions from federal lobbyists, his campaign said Friday, bowing to pressure from fellow Democrats who want to reform the way campaigns raise money.

Mr. Buttigieg, the mayor of South Bend, Ind., was somewhat isolated among his rivals for the 2020 Democratic nomination because he initially accepted lobbyist money, putting him at odds with the more progressive wing of his party and its increasing demands to take big money out of politics.

He will return the contributions he had already accepted from lobbyists, which his campaign said totaled $30,250 from 39 individuals
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Posted in lobbying<https://electionlawblog.org/?cat=28>


“The Dark Side of Sunlight: How Transparency Helps Lobbyists and Hurts the Public”<https://electionlawblog.org/?p=104884>
Posted on April 26, 2019 8:50 pm<https://electionlawblog.org/?p=104884> by Rick Hasen<https://electionlawblog.org/?author=3>

James D’Angelo<https://www.foreignaffairs.com/authors/james-dangelo> and Brent Ranalli<https://www.foreignaffairs.com/authors/brent-ranalli>write in Foreign Affairs.<https://www.foreignaffairs.com/articles/united-states/2019-04-16/dark-side-sunlight>
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>


“Russian Hackers Were ‘In a Position’ to Access Florida Voter Rolls, Rubio Confirms”<https://electionlawblog.org/?p=104882>
Posted on April 26, 2019 8:13 pm<https://electionlawblog.org/?p=104882> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/04/26/us/florida-russia-hacking-election.html>:

But, it now appears, someone did.

Slipped into the long-anticipated special counsel report on Russian interference in the 2016 election last week was a single sentence that caused a stir throughout the state<https://www.nytimes.com/2019/04/18/us/florida-russia-2016-election-hacking.html?searchResultPosition=2&module=inline> and raised new questions about the vulnerability of the nation’s electoral systems.

Although the spearphishing attempt in Florida had first been brought to light nearly two years ago when The Intercept<https://theintercept.com/2017/06/05/top-secret-nsa-report-details-russian-hacking-effort-days-before-2016-election/> cited a secret National Security Agency report, state officials said they were certain no elections computers had been compromised. The Mueller report<https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html?searchResultPosition=2&module=inline>turned that assertion on its head. “The F.B.I.,” it said, “believes that this operation enabled the G.R.U. to gain access to the network of at least one Florida county government.”

The report has sent Florida officials scurrying once again for specifics. Which county? Could there have been more than one?

“They won’t tell us which county it was. Are you kidding me?” an exasperated Ron DeSantis, Florida’s Republican governor, said at a news conference in Miami on Thursday. “Why would you have not said something immediately?”

The Florida Secretary of State’s office in Tallahassee said it had been unable to learn which county it was. “The department reached out to the F.B.I. and they declined to share that information with us,” said Sarah Revell, a department spokeswoman. “No county has come forward.” The secretary of state who was running the department at the time, Ken Detzner, did not respond to requests for comment.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Online voter registration spikes in PA, outpaces paper by 50 percent”<https://electionlawblog.org/?p=104880>
Posted on April 26, 2019 3:16 pm<https://electionlawblog.org/?p=104880> by Rick Hasen<https://electionlawblog.org/?author=3>

Billy Penn reports<https://billypenn.com/2019/04/26/online-voter-registration-spikes-in-pa-outpaces-paper-by-50-percent/>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“F.B.I. Warns of Russian Interference in 2020 Race and Boosts Counterintelligence Operations”<https://electionlawblog.org/?p=104878>
Posted on April 26, 2019 3:04 pm<https://electionlawblog.org/?p=104878> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/04/26/us/politics/fbi-russian-election-interference.html?smid=tw-nytimes&smtyp=cur>

The F.B.I. director warned anew on Friday about Russia’s continued meddling in American elections, calling it a “significant counterintelligence threat.” The bureau has shifted additional agents and analysts to shore up defenses against foreign interference, according to a senior F.B.I. official.

The Trump administration has come to see that Russia’s influence operations have morphed into a persistent threat. The F.B.I., the intelligence agencies and the Department of Homeland Security have made permanent the task forces they created to confront 2018 midterm election interference, senior American national security officials said.

“We recognize that our adversaries are going to keep adapting and upping their game,” Christopher A. Wray, the F.B.I. director, said Friday in a speech in Washington, citing the presence of Russian intelligence officers in the United States and the Kremlin’s record of malign influence operations.

“So we are very much viewing 2018 as just kind of a dress rehearsal for the big show in 2020,” he said.

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


“Settlement Reached to End Texas Voter Purge and Protect Voting Rights”<https://electionlawblog.org/?p=104876>
Posted on April 26, 2019 3:01 pm<https://electionlawblog.org/?p=104876> by Rick Hasen<https://electionlawblog.org/?author=3>

Release:

A group of civil rights organizations reached an agreement today with Texas state officials to settle a lawsuit challenging the creation and rollout of a flawed voter purge list that discriminated against naturalized citizens. The American Civil Liberties Union of Texas, the national ACLU Voting Rights Project, the Texas Civil Rights Project, Demos, and the Lawyers’ Committee for Civil Rights Under Law filed the lawsuit against Texas Secretary of State David Whitley and Director of Elections Keith Ingram, as well as local elections officials in eight counties.

According to the terms of the settlement<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.aclutx.org_sites_default_files_4-2D25-2D10-5Fvoter-5Fpurge-5Fsettlement-5Fagreement.pdf&d=DwMF-g&c=_LAjAGye_IIiKN_ovTDKew&r=12xINLgBrWYYwa9x74kL4g3uFRYnJ-KqPy4b3BUIO3k&m=ElOj4RkS7dFnT2RoEk0OoHmjFy7402QNxhaPSU_G3EQ&s=QPkZOgszQ4u8yxGKW4gdelXvo37jtg3n8iYN9cQyw3o&e=>, the state will rescind its original advisory announcing the purge effort and agree to a new voter database maintenance process that is much more limited in scope. The state has also agreed to provide and maintain information regarding the implementation of the process. The plaintiffs will also retain the right to bring another challenge to the process if the state continues to discriminate or violate protected rights.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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