[EL] ELB News and Commentary 12/2/19

[Rick Hasen]

Top Recent Downloads in Election Law on SSRN<https://electionlawblog.org/?p=108242>
Posted on December 2, 2019 7:47 am<https://electionlawblog.org/?p=108242> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:

LSN: Election Law & Voting Rights (Topic)

Recent Top Papers (60 days)

As of: 03 Oct 2019 – 02 Dec 2019
Rank
Paper
Downloads
1.
Why Trump Does Not Need the Popular Vote to Retain the White House in 2020<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3462812>
Christopher Zambakari<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1847536>
The Zambakari Advisory, LLCDate Posted: 14 Oct 2019
Last Revised: 14 Oct 2019
730
2.
Hardball and/as Anti-Hardball<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3470457>
David Pozen<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=346717>
Columbia University – Law SchoolDate Posted: 27 Oct 2019
Last Revised: 27 Nov 2019
178
3.
Why the Nineteenth Amendment Matters Today: A Citizen’s Guide for the Centennial<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3461919>
Neil Siegel<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=548914>
Duke University School of LawDate Posted: 02 Oct 2019
Last Revised: 24 Nov 2019
109
4.
Our Campaign Finance Nationalism<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3481153>
Eugene D. Mazo<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=568726>
Rutgers Law SchoolDate Posted: 08 Nov 2019
Last Revised: 08 Nov 2019
54
5.
The Signature of Gerrymandering in Rucho v. Common Cause<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3477091>
Andrew Chin<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332149>, Gregory Herschlag<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3815100> and Jonathan Mattingly<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3815106>
University of North Carolina School of Law, Duke University and Duke UniversityDate Posted: 08 Nov 2019
Last Revised: 08 Nov 2019
47
6.
Dirty Thinking about Law & Democracy in Rucho v. Common Cause<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3462697>
Guy-Uriel E. Charles<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=282370> and Luis E. Fuentes-Rohwer<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=282368>
Duke University School of Law and Indiana University Maurer School of LawDate Posted: 14 Oct 2019
Last Revised: 14 Nov 2019
42
7.
Foreign Corruption of the Political Process Through Social Welfare Organizations<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3465562>
Norman I. Silber<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=279189>
Hofstra University School of LawDate Posted: 08 Oct 2019
Last Revised: 20 Nov 2019
38
8.
Court-Packing and Democratic Erosion<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476889>
Thomas M. Keck<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1512093>
Syracuse University – Maxwell School of Citizenship and Public AffairsDate Posted: 13 Nov 2019
Last Revised: 13 Nov 2019
38
9.
First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3475526>
Lori A. Ringhand<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414>
University of Georgia School of LawDate Posted: 28 Oct 2019
Last Revised: 05 Nov 2019
37
10.
A Tax Lesson for Election Law<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476818>
Ellen P. Aprill<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=231928>
Loyola Law School Los AngelesDate Posted: 28 Oct 2019
Last Revised: 28 Oct 2019
37


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Posted in pedagogy<https://electionlawblog.org/?cat=23>


“A Census Whodunit: Why Was the Citizenship Question Added?”<https://electionlawblog.org/?p=108239>
Posted on December 2, 2019 7:42 am<https://electionlawblog.org/?p=108239> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/11/30/us/census-citizenship-question-hofeller.html>

But five months after the Supreme Court blocked the question, <https://www.nytimes.com/2019/06/27/us/politics/census-citizenship-question-supreme-court.html> a steady trickle of new disclosures in the case this past month has sharpened questions about whether Republican Party politics drove the effort to add the question to the head count — and whether the Trump administration tried to conceal that in court.

The disclosures, in a House of Representatives inquiry and a New York lawsuit, bolster existing evidence that a Republican political strategist, Thomas B. Hofeller, <https://www.nytimes.com/2018/08/21/obituaries/thomas-hofeller-republican-master-of-political-maps-dies-at-75.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer> played at least an indirect role in crafting a legal rationale for adding the question to the census. They also indicate that a senior Census Bureau official and friend of Mr. Hofeller, Christa Jones, helped draft an explanation of that rationale, apparently for publication had the question been approved.

Those developments could help efforts by critics to definitively pin down how the citizenship question became a Trump administration priority and whether Justice Department officials should be sanctioned for withholding evidence relating to it. Federal judges are hearing demands by the House Oversight and Reform Committee and by plaintiffs in the census lawsuit filed in New York to unseal a trove of census-related documents that the administration has refused to turn over.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, chicanery<https://electionlawblog.org/?cat=12>


“Campaign finance system and election overhaul coming to New York”<https://electionlawblog.org/?p=108237>
Posted on December 2, 2019 7:38 am<https://electionlawblog.org/?p=108237> by Rick Hasen<https://electionlawblog.org/?author=3>

NYDN:<https://www.nydailynews.com/news/politics/ny-public-matching-funds-system-elections-20191202-2n5tjw55lbfqzbxrcafj3o3y3m-story.html>

The panel tasked with overhauling New York’s campaign finance laws and creating a public matching funds system from scratch released its final report Sunday evening — a day before it was due.

The report from the nine-member Public Campaign Financing Commission, created as part of the state budget after lawmakers failed to reach an agreement on the issue, offers an unprecedented revamping of the state’s election laws.

The commission chose to create an oversight committee under the umbrella of the state Board of Elections and to cap contributions for statewide races at $18,000, down from the $70,000 allowed under current law.
Donations for Assembly race will be capped at $5,000 and Senate races at $10,000.

For all races, only in-district donations of $250 or less will be matched. Candidates must return all matching funds from any donor who exceeds $250 in any election cycle. For statewide races, the match ratio is 6:1. For legislative races, the first $50 will be matched at a 12:1 ratio, the next $100 at 9:1 and the final $50 at 8:1.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Sen. Kennedy says both Ukraine and Russia interfered in 2016 election, despite intelligence community’s assessment”<https://electionlawblog.org/?p=108235>
Posted on December 2, 2019 7:33 am<https://electionlawblog.org/?p=108235> by Rick Hasen<https://electionlawblog.org/?author=3>

Inexcusable.<https://www.washingtonpost.com/politics/sen-kennedy-says-both-ukraine-and-russia-interfered-in-2016-election-despite-intelligence-communitys-assessment/2019/12/01/09652dd8-1459-11ea-9110-3b34ce1d92b1_story.html>
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“300+ Trump Ads Taken Down by Google, YouTube”<https://electionlawblog.org/?p=108233>
Posted on December 2, 2019 7:28 am<https://electionlawblog.org/?p=108233> by Rick Hasen<https://electionlawblog.org/?author=3>

60 Minutes reports.<https://www.cbsnews.com/news/300-trump-ads-taken-down-by-google-youtube-60-minutes-2019-12-01/?ftag=CNM-00-10aab5j&linkId=78042327>
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Posted in campaigns<https://electionlawblog.org/?cat=59>


“The Cybersecurity 202: Pennsylvania voting debacle gives ammunition to paper ballot push”<https://electionlawblog.org/?p=108231>
Posted on December 2, 2019 7:13 am<https://electionlawblog.org/?p=108231> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/12/02/the-cybersecurity-202-pennsylvania-voting-debacle-gives-ammunition-to-paper-ballot-push/5de3fe8b602ff1181f2641e5/>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


Today’s Must-Read: “A Pennsylvania County’s Election Day Nightmare Underscores Voting Machine Concerns”<https://electionlawblog.org/?p=108229>
Posted on November 30, 2019 4:08 pm<https://electionlawblog.org/?p=108229> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/11/30/us/politics/pennsylvania-voting-machines.html>

It was a few minutes after the polls closed here on Election Day when panic began to spread through the county election offices.
Vote totals in a Northampton County judge’s race showed one candidate, Abe Kassis, a Democrat, had just 164 votes out of 55,000 ballots across more than 100 precincts. Some machines reported zero votes for him. In a county with the ability to vote for a straight-party ticket, one candidate’s zero votes was a near statistical impossibility. Something had gone quite wrong.

Lee Snover, the chairwoman of the county Republicans, said her anxiety began to pick up at 9:30 p.m. on Nov. 5. She had trouble getting someone from the election office on the phone. When she eventually got through, she said: “I’m coming down there and you better let me in.”

With clearly faulty results in at least the judge’s election, officials began counting the paper backup ballots generated by the same machines. The paper ballots showed Mr. Kassis winning narrowly, 26,142 to 25,137, over his opponent, the Republican Victor Scomillio.

A spotlight on the people reshaping our politics. A conversation with voters across the country. And a guiding hand through the endless news cycle, telling you what you really need to know.
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


Native American Voting Rights Group Settles with Arizona Over Ballot Litigation<https://electionlawblog.org/?p=108227>
Posted on November 30, 2019 3:57 pm<https://electionlawblog.org/?p=108227> by Rick Hasen<https://electionlawblog.org/?author=3>

Turtle Talk:<https://turtletalk.blog/2019/11/27/materials-in-navajo-nation-et-al-v-reagan-voting-rights-litigation/>

Here are the materials in Navajo Nation, et al. v. Reagan, et al. No. CV-18-08329-PCT-DWL (Ariz. D. Ct. 2019).
The Amended Complaint<https://turtletalk.files.wordpress.com/2019/11/amended-complaint.pdf> sought:
[D]eclaratory and injunctive relief, compelling the Defendants to (a) allow early voters who do not sign their ballot affidavit to have the same opportunity to cure the ballot deficiency that is provided to voters with a mismatched signature, (b) allow early voters who do not sign their ballot affidavit to have the same chance to cure their ballot as voters who vote by conditional provisional ballots, (c) provide translators certified as proficient in the Navajo language for all future early voting and election-day polling sites, (d) provide translation of instructions for casting an early ballot in Navajo over the radio for the 30 days leading up to an election, (e) establish additional in-person voter registration sites, and (f) establish additional early voting sites on the Reservation for all future elections that are open for consistent hours (at a minimum, each Monday through Friday from 8 a.m. until 6 p.m. with no interruption during the lunch hour) during the 30 days leading up to the election. This relief is sought on the grounds that failure to provide the requested relief is a denial of the equal right to vote.
The lawsuit was settled, and the Settlements can be seen here:
Order and Apache County Settlement<https://turtletalk.files.wordpress.com/2019/11/order-and-apache-county-settlement.pdf>
Order and Secretary of State Settlement<https://turtletalk.files.wordpress.com/2019/11/order-and-secretary-of-state-settlement.pdf>
Order and Coconino County Settlement<https://turtletalk.files.wordpress.com/2019/11/order-and-coconino-county-settlement.pdf>
Order and Navajo County Settlement<https://turtletalk.files.wordpress.com/2019/11/order-and-navajo-county-settlement.pdf>
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“McCrory allies wrongly accused voters of fraud, but does the law protect them?”<https://electionlawblog.org/?p=108225>
Posted on November 27, 2019 4:26 pm<https://electionlawblog.org/?p=108225> by Rick Hasen<https://electionlawblog.org/?author=3>

News & Observer:<https://www.newsobserver.com/news/politics-government/election/article237588659.html>

McCrory is not one of the people being sued for libel.

The case is against some of his 2016 supporters. They falsely accused several dozen North Carolinians of voting illegally, although only a handful of those voters are suing.

The lawsuit targets the Washington, D.C., law firm Holtzman Vogel Josefiak Torchinsky<https://www.hvjt.law/> and its lawyers who worked on McCrory’s post-election push. Also being sued are McCrory’s legal defense fund — which records show<https://cf.ncsbe.gov/CFOrgLkup/DocumentGeneralResult/?SID=STA-AIYGP3-F-001&OGID=33855> has just $2,000 left in the bank — that allowed him to raise and spend money on the complaints separately from his campaign fund, and William Clark Porter IV, a Republican official from Guilford County where most of the plaintiffs in the lawsuit also live.
The voters have said they will leave it up to a trial to determine exactly how much money they should be paid by the various defendants, but they believe it should be more than $25,000. Meanwhile, their accusers say there’s no proof they committed libel or engaged in any sort of conspiracy.

Neither side in the 2016 libel case disputes the central fact that the voters were indeed wrongfully accused. Those false accusations were that they illegally voted multiple times, or illegally voted as a felon.

The main arguments in this case, then, are legal ones: Does the law allow voters to win damages from people who wrongfully accused them of voting illegally? Or does the law protect their accusers, since they sent the claims to state officials whose job it is to investigate such allegations? And aside from the libel claims, how much evidence do you need to prove anyone conspired against the voters who were falsely accused?
“A conspiracy cannot be based solely on suspicion and conjecture, and that’s all they offer in terms of their arguments,” said Craig Schauer, one of the attorneys for the defendants, in court Wednesday.

One of the legal questions boils down to just how serious it is for a person to be accused of voter fraud. The voters say they suffered sleepless nights, ridicule in their communities and damage to their reputations.
And voter fraud is certainly a crime. But is it an “infamous” crime? They’re trying to prove that, and one of the arguments from the GOP side is that “infamous” crimes refer to much more serious offenses, like murder or treason.

There’s also disagreement over how relevant or necessary the statements from McCrory’s recount team were to the state’s investigation of the election complaints. Millen said the McCrory team made at least five false statements about his clients, none of which were actually necessary to file an election protest, “yet they’re all there.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“National Democratic groups sue Minnesota over ballot rules”<https://electionlawblog.org/?p=108222>
Posted on November 27, 2019 1:35 pm<https://electionlawblog.org/?p=108222> by Rick Hasen<https://electionlawblog.org/?author=3>

Star Tribune:<http://www.startribune.com/national-democratic-groups-sue-minnesota-over-ballot-rules/565544242/>

Two national campaign committees supporting congressional Democrats have filed a federal lawsuit challenging ballot order rules that will list DFL candidates in Minnesota beneath their major-party rivals in the 2020 general election.
The complaint, filed in U.S. District Court Wednesday by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and two state voters, argues that the current system “creates an unlevel playing field in Minnesota’s elections by arbitrarily favoring” candidates based on their political affiliation.
“No party should benefit from an unfair advantage or be penalized because of a systemic disadvantage in our elections,” Sen. Catherine Cortez Masto, a Nevada Democrat who chairs the DSCC, said in a statement.
Under current law<https://www.sos.state.mn.us/elections-voting/how-elections-work/order-of-names-and-offices-on-the-ballot/>, major party candidates for partisan races are listed on the ballot based on the average number of votes their party won in the last election, with nominees from the party that received the most votes appearing last.
In the past, those rules meant only that the DFL and the Minnesota Republican Party rotated in the two top slots. But two new political affiliations — the Grassroots-Legalize Cannabis Party and Legal Marijuana Now Party — secured “major party” status after winning 5% of the vote in statewide races in 2018. Because their candidates received far fewer votes than the DFL or Republican nominees, state ballots are set to list their nominees first next year.
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Posted in ballot access<https://electionlawblog.org/?cat=46>, third parties<https://electionlawblog.org/?cat=47>


“House Committee Sues Barr and Ross Over 2020 Census Documents”<https://electionlawblog.org/?p=108220>
Posted on November 26, 2019 8:37 pm<https://electionlawblog.org/?p=108220> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/11/26/us/politics/census-barr-ross.html>

The House Oversight and Reform Committee on Tuesday sued William P. Barr, the attorney general, and Wilbur L. Ross Jr., the commerce secretary, for refusing to produce subpoenaed documents regarding President Trump’s failed attempt to add a citizenship question to the 2020 census.

The lawsuit<https://oversight.house.gov/sites/democrats.oversight.house.gov/files/File%20stamped%20Complaint.pdf>, filed in the United States District Court for the District of Columbia, is an escalation of a monthslong dispute<https://www.nytimes.com/2019/06/12/us/politics/us-census-2020-trump.html> over the panel’s efforts to investigate the Trump administration’s effort to alter the decennial survey to ask 2020 respondents whether they are citizens. The government abandoned that effort after the Supreme Court in June blocked the question<https://www.nytimes.com/2019/06/27/us/politics/census-citizenship-question-supreme-court.html> from being added, rejecting the administration’s stated reason for the effort as “contrived.”…

House Democrats have continued to investigate the census matter, arguing that they need to determine whether Congress should enact legislation to prevent the administration from employing similar tactics in the future. Democrats believe that the documents will show that the administration’s stated rationale for collecting the data — to better enforce the Voting Rights Act — was a cover story invented to mask a politically motivated attempt to diminish Democratic power by discouraging noncitizens from completing the survey. States rely on raw population data, rather than eligible voters, to draw House districts and to determine access to federal social welfare programs.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


--
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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