[EL] Supreme Court grants cert in Delaware judges case; more news

Fri Dec 6 11:09:40 PST 2019

Supreme Court Has Agreed to Hear Dispute over Constitutionality of Delaware Law Requiring Partisan Balance on Some State Courts<https://electionlawblog.org/?p=108314>
Posted on December 6, 2019 11:05 am<https://electionlawblog.org/?p=108314> by Rick Hasen<https://electionlawblog.org/?author=3>

The Court’s order<https://www.supremecourt.gov/orders/courtorders/120619zr_3e04.pdf> added a question about standing. The questions presented <https://www.supremecourt.gov/DocketPDF/19/19-309/114662/20190904153549462_Govenor%20of%20Delaware%20v%20Adams%20Petition%20for%20a%20Writ%20of%20Certiorari.pdf> are:
1.      Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
2.      Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

4th Circuit Unanimously Holds Maryland Law Requiring Online Platforms to Post Information About Political Advertisers Violates the First Amendment<https://electionlawblog.org/?p=108312>
Posted on December 6, 2019 10:40 am<https://electionlawblog.org/?p=108312> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the opinion here.<https://www.ifs.org/wp-content/uploads/2019/12/McManus_12.6.pdf> Importantly, the lawsuit did not challenge that part of the law requiring the purchasers of online advertising to make certain disclosures and disclaimers. The lawsuit challenged only the portion putting obligations on “online platforms” (such as Facebook and the Washington Post) to publish information about the purchasers of the advertising.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

Hoffeler’s Daughter Says She Will Publicly Post All of His Redistricting Etc. Files by Monday<https://electionlawblog.org/?p=108310>
Posted on December 6, 2019 10:04 am<https://electionlawblog.org/?p=108310> by Rick Hasen<https://electionlawblog.org/?author=3>
[cid:image002.jpg at 01D5AC25.A7905880]<https://twitter.com/srl>
<https://twitter.com/srl>
Sam Levine<https://twitter.com/srl>
✔@srl<https://twitter.com/srl>

<https://twitter.com/srl/status/1202956925123604486>

News: The daughter of one of the GOP's top gerrymandering experts says she will upload a tranche of her late father's files by Monday. Republicans sought to keep these documents private in court: https://thehofellerfiles.com/ <https://t.co/uSLgnORPZ0> https://twitter.com/SHofeller/status/1202938238681407488 …<https://t.co/ykI7XMR5Gl>
<https://t.co/uSLgnORPZ0>
[The Revolution Will Not Be Organized!]<https://t.co/uSLgnORPZ0>
The Revolution Will Not Be Organized!<https://t.co/uSLgnORPZ0>

Steph's Copy of The Hofeller Files<https://t.co/uSLgnORPZ0>
thehofellerfiles.com<https://t.co/uSLgnORPZ0>

<https://twitter.com/SHofeller/status/1202938238681407488>
Stephanie Hofeller at SHofeller<https://twitter.com/SHofeller/status/1202938238681407488>

Once you give it up (Dad said of discovery) don't expect to get it back. Of course I made fucking copies before I FedEx'd #thehofellerfiles to Arnold Porter.
Barring the unexpected (or a petulant malaise) my copies will be uploaded to http://thehofellerfiles.com  by Monday...<https://twitter.com/SHofeller/status/1202938238681407488>

<https://twitter.com/intent/like?tweet_id=1202956925123604486>
3,414<https://twitter.com/intent/like?tweet_id=1202956925123604486>
6:24 AM - Dec 6, 2019<https://twitter.com/srl/status/1202956925123604486>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/srl/status/1202956925123604486>
1,679 people are talking about this<https://twitter.com/srl/status/1202956925123604486>

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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“House Votes to Restore the Voting Rights Act”<https://electionlawblog.org/?p=108307>
Posted on December 6, 2019 10:03 am<https://electionlawblog.org/?p=108307> by Rick Hasen<https://electionlawblog.org/?author=3>

Ari Berman:<https://www.motherjones.com/politics/2019/12/house-votes-to-restore-the-voting-rights-act/>

The House Judiciary Committee and the House Administration Committee held extensive hearings<https://cha.house.gov/report-voting-rights-and-election-administration-united-states-america>, including in states like Georgia and Texas, to document the need for a renewed Voting Rights Act. The bill passed the House on a largely party-line vote<http://clerk.house.gov/evs/2019/roll654.xml>, 228 to 187. Unlike in 2006, when the reauthorization of the Voting Rights Act passed the House by a vote of 390-33, only one House Republican, Brian Fitzpatrick (R-Pa.) voted for the new bill. Senate Majority Leader Mitch McConnell has already declared his opposition<https://www.usatoday.com/story/news/politics/2016/06/01/sen-mitch-mcconnell-lauds-voting-rights-law-memoir-opposes-update/85238536/>. (McConnell also called a sweeping democracy reform bill<https://www.motherjones.com/politics/2019/03/house-passes-the-most-significant-democracy-reform-bill-in-a-generation/> passed by House Democrats in March a “power grab” by Democrats.)

Although the VRAA has no chance of becoming law this year, the passage of the bill lays the groundwork for Democrats to make voting rights a major legislative priority should they recapture the Senate and the White House in 2020.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>, VRAA<https://electionlawblog.org/?cat=81>

Is Mike Bloomberg Breaking the Law by Continuing to Control Bloomberg News While a Presidential Candidate?[UPDATE: Probably Not]<https://electionlawblog.org/?p=108304>
Posted on December 5, 2019 8:55 pm<https://electionlawblog.org/?p=108304> by Rick Hasen<https://electionlawblog.org/?author=3>

News item:<https://www.theverge.com/2019/12/5/20997567/bloomberg-terminal-redirect-promote-michael-presidential-candidate-campaign>

Michael Bloomberg temporarily had a tiny but extremely questionable advantage in the 2020 presidential race: if you typed “Mike” into one of his company’s roughly 325,000 news terminals around the globe, you were redirected to his campaign site, reported the Financial Times<https://www.ft.com/content/884c6aca-177a-11ea-8d73-6303645ac406?accessToken=zwAAAW7X2e3wkdOITGrKF3oR6tONc2MDZFrEBg.MEUCIQD1SaOVZ1z9WxyOpMyZGJCByQpbSmhJt9ww826OzNFddgIgYS7VfNYnlPqF2mvspl_B0umilpdmWNIYK2V8VoRqgto&sharetype=gift?token=a5ad4100-c5d3-4120-81b9-e5679a0e84de>.

Federal regulations<https://www.govinfo.gov/content/pkg/USCODE-2017-title52/pdf/USCODE-2017-title52-subtitleIII-chap301.pdf> generally exempt the press from having to report what would otherwise count as campaign expenditures or electioneering communications. So, for example, here is an exemption for press activities from the FEC definition of “expenditure:” “(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.” (My emphasis.)

While Bloomberg has put limits on what Bloomberg News can cover, the news organization is still writing about presidential candidates. As I type this, I can find the following article on Bloomberg News’s site: Joe Biden Calls Iowa Man ‘Damn Liar’ for Raising Ukraine Issue<https://www.bloomberg.com/news/articles/2019-12-05/joe-biden-calls-iowa-man-damn-liar-for-raising-ukraine-issue?srnd=politics-vp>.

But the law only exempts when the press makes expenditures (which would be express advocacy, like “Vote for Mike”) and electioneering communications, which include TV and radio (but not online) news and commentary broadcast 30 days before a primary or 60 days before the general election. Bloomberg News can easily avoid express advocacy, but it has TV and radio coverage in addition to its online coverage, which raises a more serious question as we approach the first 30-day window before the first presidential primaries and caucuses.

Brad Smith in an article<https://dailycaller.com/2019/11/26/bloomberg-news-campaign-finance-concerns/> in the Daily Caller makes the following argument:

Former FEC Chairman Bradley Smith told the DCNF that the key factor to determining whether Bloomberg News’s editorial policy puts its press exemption at risk is whether the commission determines that Trump is Michael Bloomberg’s opponent at this stage of the Democratic primary.

“A good argument nonetheless could be made that the press exemption should not apply here, given Bloomberg’s own declaration, ‘I’m running for president to defeat Donald Trump and rebuild America,’” Smith said, citing Michael Bloomberg’s campaign website<https://www.mikebloomberg.com/?gclid=EAIaIQobChMIv42XhbOI5gIVzZyzCh3nqwG1EAAYASAAEgKV-fD_BwE>.

However, Smith said he believes the better argument is that Michael Bloomberg<https://dailycaller.com/2019/11/08/michael-bloomberg-height/> and Trump aren’t officially considered opponents from a campaign finance perspective until they have secured their respective parties’ nominations.

“I don’t believe that the FEC or a court have ever ruled on this type of situation, so I suppose it’s an open question,” Smith said. “Certainly, it reveals the flaws of having a regime in which some very large, influential corporations (those designated ‘press’) have a freedom that other Americans do not.”

Brendan Fischer of the Campaign Legal Center told the Daily Caller: “Bloomberg News declining to cover any Democratic presidential hopeful means that they are giving equal coverage to all opposing candidates in the primary, but President Trump will be the Democratic nominee’s opponent in the general.” “Fischer said it would be appropriate for the FEC to weigh in on the legality of Bloomberg News’s editorial policy, but the commission is currently unable<https://dailycaller.com/2019/11/18/federal-election-commission-poll/> to take any official actions as it has only three active commissioners on its six-member board, rendering the agency incapable of meeting its four-member quorum”

I’m not sure that the Trump/Democratic rivals issue is the right question. Instead, it is about whether Bloomberg News can continue to keep its press exemption even during the primary period if it is broadcasting on TV and Radio and covering the candidates. Seems to me this is a question that deserves more scrutiny. I welcome the thoughts of others.

UPDATE: Brad Smith points me to 11 c.f.r. 100.132, which creates a further exemption for:

“… a news story (a) That represents a bona fide news account communicated in a publication of general circulation or on a licensed broadcast facility; and (b) That is part of a general pattern of campaign-related news account that give [sic] reasonably equal coverage to all opposing candidates in the circulation or listening area, is not an expenditure.”

This regulation strikes me as inconsistent with the text of the statute, but given that it exists and there is no working FEC, this is probably enough to give Bloomberg a safe harbor to do what he’s doing.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

--
Rick Hasen
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UC Irvine School of Law
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