[EL] ELB News and Commentary 8/23/19

Fri Aug 23 08:32:37 PDT 2019

“Electoral College Members Can Defy Voters’ Wishes, Court Rules”<https://electionlawblog.org/?p=107047>
Posted on August 23, 2019 8:27 am<https://electionlawblog.org/?p=107047> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/08/22/us/politics/electoral-college-faithless-elector.html>:

Lawrence Lessig, a Harvard law professor who founded the group that brought the case, Equal Citizens<https://equalcitizens.us/>, said it was the first time a federal appeals court had ruled on whether electors could be bound in how they vote. Many states, including Colorado, have laws requiring electors to pledge that they will support the winner of the popular vote. The Constitution is mute on the subject. The appeals court noted that a handful of faithless electors have broken pledges to vote with their state’s majority since the presidential election of 1796.

Equal Citizens wants the Supreme Court to review the issue before the 2020 election. Because of hyper-partisanship and demographic changes pushing the country into near evenly divided camps, Mr. Lessig said, soon there very likely will be a presidential election that yields a tie or near tie in the Electoral College. Then, many more electors other than Mr. Baca may seek to influence the results, producing chaos.

“Whatever side you’re on, whether you think it’s a good or bad idea for electors to have freedom, the question ought to be resolved before there is a constitutional crisis,” Mr. Lessig said.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“FBI recovers ammo that went missing after Kobach left secretary of state’s office”<https://electionlawblog.org/?p=107045>
Posted on August 23, 2019 8:24 am<https://electionlawblog.org/?p=107045> by Rick Hasen<https://electionlawblog.org/?author=3>

KC Star<https://www.kansascity.com/news/politics-government/article234284892.html>:

The Kansas Secretary of State’s office received 218 rounds of ammunition for a handgun Thursday morning after the FBI conducted an investigation into bullets that went missing after Kris Kobach left the post in January.

Kobach’s GOP successor, Kansas Secretary of State Scott Schwab, requested the inquiry in July when his staff realized that 1,000 rounds of Winchester 9mm Luger ammunition were unaccounted for after a review of office accounts. The ammo was purchased with $174 in taxpayer funds by the office in 2017 during Kobach’s tenure….

Kobach became the only secretary of state in the nation with prosecutorial power <https://www.kansascity.com/news/state/kansas/article11083799.html> in 2015 when the Kansas Legislature empowered him to prosecute voter fraud and other election-related crimes.
Craig McCullah, the former assistant deputy secretary of state, said he was asked to become certified as a law enforcement officer to conduct interviews for Kobach’s investigations. Local police agencies had indicated they did not have the resources to work on election-related inquiries.

An infantry officer in the U.S. Army Reserve, McCullah said he never used the gun in the course of his job, but carried as part of his certification. He returned the remaining 218 rounds after getting a call from the FBI earlier this week.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Unanimous 11th Circuit Panel Affirms District Court Ruling Upholding Broward County, FL’s List Maintenance Rules Against NVRA Challenge Brought by ACRU<https://electionlawblog.org/?p=107043>
Posted on August 23, 2019 8:19 am<https://electionlawblog.org/?p=107043> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion in Bellitto v. American Civil Rights Union<http://media.ca11.uscourts.gov/opinions/pub/files/201811808.pdf>:

The National Voter Registration Act requires state election officials to make a reasonable effort to remove certain ineligible registrants from the voter rolls.

The American Civil Rights Union (“ACRU”) claims that Brenda Snipes, the former Broward County Supervisor of Elections, failed to satisfy her list-maintenance obligations. The district court, after a bench trial, concluded that the National Voter Registration Act (“NVRA”) requires a reasonable effort to remove only those voters who become ineligible because of death or change of address an that Snipes reasonably conducted a program to do just that. ACRU appeals from those determinations.

This appeal requires us to answer three related legal questions. First, is the NVRA’s list-maintenance mandate confined to removing voters who become ineligible because they moved or died, or does the mandate extend to other bases of ineligibility as well, such as mental incapacity or criminal conviction? Second, does anything in the Help America Vote Act (“HAVA”) broaden the NVRA’s listmaintenance obligations? And finally, does the National Change of Address procedure outlined in the NVRA create a safe harbor for reasonable list maintenance regarding voters who have moved? As for the first question, the statute could not be clearer: the states and their subsidiaries are required to conduct a general program of list maintenance that makes a reasonable effort to remove voters who become ineligible on account of death or change of residence, and only on those two accounts. And nothing found in HAVA — the latest congressional codification addressing voter registration — changes what is required by the NVRA; indeed, HAVA repeatedly references compliance with the NVRA’s list-maintenance mandates. Finally, the NVRA sets forth an explicit safe-harbor procedure by which the states may fulfill their list-maintenance obligations as t voters who move.
Moreover, after thoroughly reviewing this record and having taken oral argument, we can discern no clear error in the district court’s factua findings. As the trial court found, Snipes employed the statute’s safe-harbor provision when she examined who may have changed his or her address in Broward County, and sh also utilized reliable death records from the Florida Department of Health and the Social Security administration to identify and regularly remove deceased voters.
The NVRA requires a reasonable effort to remove only those voters who become ineligible because of death or change of address. Based on the record developed in the five-day bench trial, the district court did not clearly err in finding that Broward’s Election Supervisor conducted a program reasonably designed to accomplish these tasks. Accordingly, we affirm the judgment of the district court.

I’ve watched this case, and my impression is that the key to winning this case was the expert testimony U. Fl. Prof. Dan Smith, who was able to point out the flaws in the methodology of ACRU’s expert, Steven Camarota. See pages 32-38.
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Posted in NVRA (motor voter)<https://electionlawblog.org/?cat=33>, voter registration<https://electionlawblog.org/?cat=37>

“John Roberts said we need to rely on states to solve gerrymandering. That’s not going so well.<https://electionlawblog.org/?p=107041>
Posted on August 23, 2019 7:47 am<https://electionlawblog.org/?p=107041> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas WaPo oped<https://www.washingtonpost.com/opinions/2019/08/23/john-roberts-said-we-need-rely-states-solve-gerrymandering-thats-not-going-so-well/>:

The Supreme Court ruled<https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf> in June that federal courts are closed to claims of partisan gerrymandering. But never fear, Chief Justice John G. Roberts Jr. wrote for the majority: “numerous [states] are restricting partisan considerations in districting through legislation,” either by legislative enactment or ballot initiative.

That alternative method to solve the problem is no saving grace. Many states simply do not allow ballot initiatives<https://ballotpedia.org/States_with_initiative_or_referendum>. In others, entrenched politicians will not give up their power easily.

Consider what happened this month in New Hampshire. The New Hampshire legislature passed a bipartisan<https://legiscan.com/NH/text/HB706/2019>bill<https://legiscan.com/NH/bill/HB706/2019> that would have created an independent redistricting commission<https://www.brennancenter.org/analysis/overview-new-hampshire-advisory-commission-hb706> for that state. But Gov. Chris Sununu, a Republican, vetoed<https://twitter.com/AdamSextonWMUR/status/1159904189654405121> the bill, an act that was fundamentally anti-democracy. Instead of agreeing with most New Hampshire voters and legislators that gerrymandering harms our democracy, Sununu instead chose to keep the power to gerrymander with self-interested politicians.
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Posted in redistricting<https://electionlawblog.org/?cat=6>

“In the Trump Era, a Family’s Fight With Google and Facebook Over Disinformation”<https://electionlawblog.org/?p=107039>
Posted on August 22, 2019 1:13 pm<https://electionlawblog.org/?p=107039> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/08/21/us/facebook-disinformation-floyd-brown.html?action=click&module=Top%20Stories&pgtype=Homepage>:

Each day, in an office outside Phoenix, a team of young writers and editors curates reality.
In the America presented on their news and opinion website, WesternJournal.com, tradition-minded patriots face ceaseless assault by anti-Christian bigots<https://www.westernjournal.com/anti-christian-crowd-already-trying-ruin-one-best-upsets-ncaa-tourney/>, diseased migrants<https://www.westernjournal.com/thousands-ice-custody-quarantined-infectious-diseases/?utm_source=Email&utm_medium=newsletter-WJ&utm_campaign=dailyam&utm_content=western-journal> and race hustlers concocting<https://www.westernjournal.com/list-two-years-hate-crime-hoaxes-blamed-trump-supporters/> hate crimes. Danger and outrages loom. A Mexican politician threatens the “takeover”<https://www.westernjournal.com/ct/mexican-senator-threatens-takeover-us-states/?utm_source=facebook&utm_medium=westernjournalism&utm_content=2019-06-05&utm_campaign=manualpost> of several American states. Police officers are kicked out of an Arizona Starbucks<https://www.westernjournal.com/report-starbucks-forces-six-police-officers-door-customer-complains-feeling-unsafe/?utm_source=facebook&utm_medium=westernjournalism&utm_content=2019-07-06&utm_campaign=manualpost>. Kamala Harris, the Democratic presidential candidate, proposes<https://www.westernjournal.com/ct/kamala-proposes-100-billion-handout-black-families/> a “$100 billion handout” for black families.
The Western Journal is not quite a household name. Until recently, some of its most prolific writers used pseudonyms. Though it publishes scores of stories each week about national politics, the company has no Washington bureau, or any other bureaus. Indeed, it rarely dispatches reporters into the world to gather news firsthand.
In the parallel universe of Facebook, though, The Western Journal has been among the most popular and influential publications in America, shaping the political beliefs of more than 36 million deeply loyal readers and followers. In the three years ending in March, according to a New York Times analysis, Western Journal’s Facebook posts earned three-quarters of a billion shares, likes and comments, almost as many as the combined tally of 10 leading American news organizations that together employ thousands of reporters and editors.
But in the last year, as Facebook<https://newsroom.fb.com/news/2019/04/people-publishers-the-community/> and Google tried to rein in their own freewheeling, largely unregulated information ecosystems, The Western Journal’s publishers have been thrust into a high-stakes clash between the tech industry and Washington.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, social media and social protests<https://electionlawblog.org/?cat=58>

“Making every vote count: An alternative plan for fixing our presidential election mess”<https://electionlawblog.org/?p=107037>
Posted on August 22, 2019 1:11 pm<https://electionlawblog.org/?p=107037> by Rick Hasen<https://electionlawblog.org/?author=3>

Kevin Johnson looks<https://thefulcrum.us/voting/national-popular-vote-ranked-choice> at alternatives to the National Popular Vote plan for reforming the electoral college.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

FEC Deadlocks Over Advisory Opinion on Tom Price Attempt to Transfer Congressional Funds to Political 501(c)(4)<https://electionlawblog.org/?p=107035>
Posted on August 22, 2019 1:08 pm<https://electionlawblog.org/?p=107035> by Rick Hasen<https://electionlawblog.org/?author=3>

FEC<https://www.fec.gov/updates/aor-2019-10/>:

August 22, 2019
On August 22, 2019, the Commission considered an advisory opinion request (AOR) from Price for Congress, the principal campaign committee of former Rep. Dr. Thomas Price. The request asked if the committee could contribute funds to establish and operate a 501(c)(4) organization that would publish research, presentations, and other publications concerning health and budget policy matters under Price’s name. The Commission was unable to render an opinion by the required four affirmative votes and concluded its consideration of the request.
Resources
AOR 2019-10<https://www.fec.gov/data/legal/advisory-opinions/2019-10/>
Commission consideration of AOR 2019-10<https://www.fec.gov/updates/august-22-2019-open-meeting/>

Price can now go ahead and try to do this anyway, but he cannot claim he relied upon a green light from the FEC. (Many more aggressive political folks use FEC deadlock as a green light.)

If Price goes ahead, there could be an FEC complaint and lawsuits. But those will take a long time to resolve and Price might treat it as the cost of doing business.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, tax law and election law<https://electionlawblog.org/?cat=22>

“Perspective: State of the Military Voter in 2019 and Beyond”<https://electionlawblog.org/?p=107033>
Posted on August 22, 2019 1:04 pm<https://electionlawblog.org/?p=107033> by Rick Hasen<https://electionlawblog.org/?author=3>

David Beirne, director of the Federal Voting Assistance Program, at Electionline<https://electionline.org/electionline-weekly/#tab-1>.
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Posted in military voting<https://electionlawblog.org/?cat=48>

Michigan Republican Party Files Lawsuit Against New Independent Redistricting Commission, Raising Same Political Party First Amendment Association Theories<https://electionlawblog.org/?p=107029>
Posted on August 22, 2019 1:01 pm<https://electionlawblog.org/?p=107029> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News story<https://www.detroitnews.com/story/news/politics/2019/08/22/michigan-republican-party-sues-stop-independent-redistricting-commission/2082305001/>.

Complaint<https://t.co/EJRPmgvMnb>.

(My coverage of the first lawsuit<https://electionlawblog.org/?p=106683>.)
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Posted in redistricting<https://electionlawblog.org/?cat=6>

--
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>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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