[EL] ELB News and Commentary 12/14/19

[Rick Hasen]

“Judge orders state to purge more than 200,000 Wisconsin voters from the rolls”<https://electionlawblog.org/?p=108406>
Posted on December 13, 2019 7:53 pm<https://electionlawblog.org/?p=108406> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2019/12/13/judge-orders-wisconsin-purge-more-than-200-000-voters-list/4412776002/>

An Ozaukee County judge on Friday ordered the state to remove hundreds of thousands of people from Wisconsin’s voter rolls because they may have moved.

The case is being closely watched because of the state’s critical role in next year’s presidential race. Circuit Judge Paul Malloy also denied the League of Women Voters of Wisconsin’s petition to intervene.

Lawyers for the League and for the Wisconsin Elections Commission indicated they will appeal and asked Malloy to stay his ruling pending those appeals, but he declined.

At issue is a letter the state Elections Commission sent in October to about 234,000 voters who it believes may have moved. The letter asked the voters to update their voter registrations if they had moved or alert election officials if they were still at their same address.

The commission planned to remove the letter’s recipients from the voter rolls in 2021 if it hadn’t heard from them. But Malloy’s decision would kick them off the rolls much sooner, and well before the 2020 presidential election….

Three voters sued the commission last month<https://www.jsonline.com/story/news/politics/2019/11/13/lawsuit-seeks-force-removal-some-people-voter-rolls/2577747001/> with the help of the conservative Wisconsin Institute for Law & Liberty. They argued election officials were required to remove voters from the rolls 30 days after sending the letters if they hadn’t heard from them.

They asked Malloy to issue an injunction that would require election officials to purge their rolls. Kaul, commissioners and others say that would lead to some people getting knocked off the rolls who shouldn’t be.

But Malloy went further than issuing an injunction. In granting a writ of mandamus — essentially a court order that a government official or agency do its job — he said he was convinced the commission had a clear, positive, plain legal duty to purge the voter rolls within 30 days.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>


“A Great Big Gift Not on Trump’s Disclosure Form: Giuliani’s Legal Advice”<https://electionlawblog.org/?p=108404>
Posted on December 13, 2019 7:46 pm<https://electionlawblog.org/?p=108404> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/12/13/us/politics/giuliani-trump-financial-disclosure.html>

For the past 20 months, President Trump has received free personal legal services from one of America’s highest-paid lawyers, who has traveled around the country and across the ocean to defend him in the special counsel’s inquiry and press Ukraine to investigate a political rival and unfounded conspiracy theories.

The lawyer, of course, is Rudolph W. Giuliani, but Mr. Trump did not mention Mr. Giuliani or his unpaid labor on the annual financial disclosure he filed in May<https://www.documentcloud.org/documents/6541102-Trump-Disclosures-2015-2019-Combined.html#document/p387/a534891>, which requires that the value and source of gifts — including free legal work — be publicly listed.

That requirement is cut and dried, said Kathleen Clark, a law professor at Washington University in St. Louis. She cited guidance from the Office of Government Ethics, issued in November 2017, that states federal officials must disclose “gifts of legal defenses — in kind or by payment of the fees.”

“The purpose is to ensure the public has an opportunity to see whether there is any kind of corrupting influence,” said Ms. Clark, who has written<http://bit.ly/35gYUq7> on ethics issues involving government employees in need of lawyers….

Under federal campaign finance law, if an individual lawyer provides legal advice to a candidate without compensation, “the work is considered personal volunteer activity<https://fec-prod-proxy.app.cloud.gov/help-candidates-and-committees/candidate-taking-receipts/volunteer-activity/>,” the Federal Election Commission says.

But the law limits any unpaid travel expenses associated with the free legal services — meaning a trip to Europe by Mr. Giuliani as part of this work would turn into an illegal contribution to Mr. Trump, unless the expense was reimbursed by the campaign.

“It kind of puts him in a box,” said Matthew T. Sanderson, a campaign finance lawyer who has advised several Republican presidential hopefuls, including Senator Rand Paul of Kentucky and Rick Perry, the former Texas governor and energy secretary.

Mr. Giuliani, other campaign finance lawyers said, might have a hard time defending the assertion that all of his legal advice to Mr. Trump relates to his status as a candidate, given that much of the effort involves actions Mr. Trump has taken while serving as president. It also would add weight to the argument that the work Mr. Giuliani was doing on Ukraine was related to Mr. Trump’s re-election effort, two of the lawyers said

“If what he is doing for the president is for the campaign, how does he argue that the Ukraine corruption issue is not about the election?” asked Larry Noble, the F.E.C.’s former general counsel. “They are inconsistent arguments.”
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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>


“Washington pulled apart by partisan divide over ‘facts'”<https://electionlawblog.org/?p=108401>
Posted on December 13, 2019 7:37 pm<https://electionlawblog.org/?p=108401> by Rick Hasen<https://electionlawblog.org/?author=3>

AFP:<https://www.france24.com/en/20191214-washington-pulled-apart-by-partisan-divide-over-facts>

“There’s always been a divide between liberals and conservatives in the United States over opinions,” said Richard Hasen, a professor of law and political science at University of California, Irvine.

“Where things have changed is that there’s now much more disagreement along party lines as to basic facts.”

Democrats and Republicans tend to diverge on more and more subjects including, for example, whether climate change is real and whether Russia or Ukraine interfered with the 2016 US presidential election.

“On each of these things polling shows a divide between Republicans and Democrats as to what the state of the world is,” said Hasen, author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”

“That’s why some of us think of this as kind of a post-truth era.”
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>


New Lawsuit Against Voting Machines in Pennsylvania<https://electionlawblog.org/?p=108398>
Posted on December 13, 2019 7:25 pm<https://electionlawblog.org/?p=108398> by Rick Hasen<https://electionlawblog.org/?author=3>

Free Speech for People:<https://freespeechforpeople.org/nedc-v-boockvar/>

Free Speech For People has filed a lawsuit in Pennsylvania state court challenging the use of the insecure, unreliable ExpressVote XL voting machines. The lawsuit, filed against Secretary of the Commonwealth Kathy Boockvar with the pro bono assistance of the law firm Baker Hostetler LLP, argues that the ExpressVote XL does not meet legal requirements for voting machines under the Pennsylvania Election Code, and use of it violates voting rights under the Pennsylvania Constitution. The plaintiffs are the National Election Defense Coalition, the Pennsylvania-based Citizens for Better Elections, and a group of individual Pennsylvania voters.

More here.<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/12/13/the-cybersecurity-202-lawsuit-seeks-to-force-pennsylvania-to-scrap-these-electronic-voting-machines-over-hacking-fears/5df27a70602ff125ce5b2fec/>
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“Two experts quit election accountability group over claims it has been endorsing untrustworthy machines”<https://electionlawblog.org/?p=108396>
Posted on December 13, 2019 7:22 pm<https://electionlawblog.org/?p=108396> by Rick Hasen<https://electionlawblog.org/?author=3>

Fast Company:<https://www.fastcompany.com/90441559/two-experts-quit-election-accountability-group-over-claims-it-has-been-endorsing-untrustworthy-machines>

Amid heightened concerns about the integrity of the voting process in the run-up to the 2020 presidential election, two election security experts recently quit Verified Voting<https://www.verifiedvoting.org/>, a respected election accountability group, in protest. They claim that it has been downplaying security risks in popular voting machines.

Richard DeMillo<https://www.cc.gatech.edu/people/richard-demillo>, a Georgia Tech professor who sat on Verified Voter’s advisory board, just left the group, soon after the departure of UC Berkeley mathematics professor Philip Stark<https://www.stat.berkeley.edu/~stark/>, a board member who sent a fiery letter<https://www.stat.berkeley.edu/~stark/Preprints/vv-resign-19.pdf> of resignation on November 21st. Stark and DeMillo believe that Verified Voting has been giving election officials false confidence in their voting machines and providing cover for the companies that make and sell the machines.

The accountability group wields a lot of clout, since public officials rely on its recommendations when purchasing expensive voting systems. DeMillo, a professor at Georgia Tech University, has been deeply involved in trying to fix the voting systems in Georgia that saw widespread problems during the razor-thin gubernatorial election of 2018. And Stark designed a vote-verification tool that has been adopted by many states and endorsed by Verified Voting.

Part of the reason Verified Voting is such a trusted organization is that its members are respected scientists and researchers from academia. But both Stark and DeMillo believe that the leadership of the organization, including its president Marian Schneider, has its own agenda and has begun making public statements about elections and voting machines that aren’t backed up by science.

In his resignation letter, Stark accused the group of being on the “wrong side” by approving pricey new voting systems that replace hand-marked ballots with computer-printed ballot summary cards [BMD], the accuracy of which he questions since they depend on potentially insecure software.
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Posted in voting technology<https://electionlawblog.org/?cat=40>


“US should recognize American Samoans as citizens, judge says”<https://electionlawblog.org/?p=108393>
Posted on December 13, 2019 7:15 pm<https://electionlawblog.org/?p=108393> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://www.detroitnews.com/story/news/nation/2019/12/13/american-samoa-citizenship/40813281/>

People born in the territory of American Samoa should be recognized as U.S. citizens, a federal judge in Utah decided Thursday in a case filed amid more than a century of legal limbo but whose eventual impact remains to be seen.

The cluster of Pacific islands southwest of Hawaii is the only place in the country without an automatic claim to citizenship. People born there are labeled U.S. nationals, meaning they pay taxes but cannot vote, run for office or apply for certain government jobs.

John Fitisemanu, an American Samoan and the lead plaintiff in a lawsuit against the United States seeking full U.S. citizenship. (Photo: Katrina Keil Youd, Equally American)

U.S. District Judge Clark Waddoups sided with three people from American Samoa who sued to be recognized as citizens. He ruled that the Utah residents are entitled to birthright citizenship under the 14th Amendment to the Constitution and ordered the government to issue them new passports.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Must-Read: “Precinct closures harm voter turnout in Georgia, AJC analysis finds”<https://electionlawblog.org/?p=108391>
Posted on December 13, 2019 7:11 pm<https://electionlawblog.org/?p=108391> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/state--regional-govt--politics/precinct-closures-harm-voter-turnout-georgia-ajc-analysis-finds/11sVcLyQCHuQRC8qtZ6lYP/>

Amid widespread voter distrust of government oversight of elections and questions about ballot access, The Atlanta Journal-Constitution conducted a unique statistical analysis to learn how precinct closures and distance to the polls impact voting.

The AJC mapped Georgia’s 7 million registered voters and compared how distance to their local precincts increased or decreased from 2012 to 2018. During that time, county election officials shut down<https://www.ajc.com/news/state--regional-govt--politics/voting-precincts-closed-across-georgia-since-election-oversight-lifted/bBkHxptlim0Gp9pKu7dfrN/> 8% of Georgia’s polling places and relocated nearly 40% of the state’s precincts.

Most of the precinct closures and relocations occurred after the U.S. Supreme Court in 2013 ended federal oversight<https://www.ajc.com/news/state--regional-govt--politics/voting-rights-decision-why-important/TsONpU8PqViT3RIBcYMXNK/> of local election decisions under the Voting Rights Act.

The AJC’s analysis, vetted by two nonpartisan statistics experts, showed a clear link between turnout and reduced voting access. The farther voters live from their precincts, the less likely they are to cast a ballot.

Precinct closures and longer distances likely prevented an estimated 54,000 to 85,000 voters from casting ballots on Election Day last year, according to the AJC’s findings.

And the impact was greater on black voters than white ones, the AJC found. Black voters were 20% more likely to miss elections because of long distances.

Without those precinct relocations, overall Election Day turnout in last year’s midterm election likely would have been between 1.2% and 1.8% higher, the AJC estimated.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Voting Rights Act<https://electionlawblog.org/?cat=15>


“The Loch Ness Monster, Haggis, and a Lower Voting Age: What America Can Learn from Scotland”<https://electionlawblog.org/?p=108389>
Posted on December 13, 2019 7:09 pm<https://electionlawblog.org/?p=108389> by Rick Hasen<https://electionlawblog.org/?author=3>

Josh Douglas<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3503437> has posted this draft on SSRN. Here is the abstract:

This article, prepared for an American University Law Review symposium, explores what the United States can learn from the Scottish experience in lowering the voting age to sixteen. The minimum voting age in American elections seems firmly entrenched at eighteen, based in part on the Twenty-Sixth Amendment, which prohibits states from denying the right to vote to anyone aged eighteen or older. Yet the conversation about lowering the voting age to sixteen, at least for local elections, has gained steam in recent years. The debate in America, however, is nascent compared to the progress in Scotland, which lowered the voting age to sixteen for the independence referendum in 2014 and for all elections nationwide in 2015. Using original research from interviews I conducted in Scotland, the article offers three main takeaways for American jurisdictions considering this reform: the Scottish experience in lowering the voting age has been successful because advocates (1) went into schools to register students to vote and encourage them to participate, (2) offered meaningful civics education, and (3) created a bipartisan coalition of policymakers who supported the change. As the debate on the voting age in the United States expands, advocates should draw upon these lessons from Scotland.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Hundreds of California voters are being registered with the wrong party. Is DMV to blame?”<https://electionlawblog.org/?p=108387>
Posted on December 13, 2019 7:03 pm<https://electionlawblog.org/?p=108387> by Rick Hasen<https://electionlawblog.org/?author=3>

SacBee:<https://www.sacbee.com/news/politics-government/capitol-alert/article238302243.html>

At least 600 Californians, including lifelong Republicans and Democrats, have had their voter registration unexpectedly changed, and several county elections officials are pinning much of the blame on the state’s Department of Motor Vehicles.

Among those affected: the daughter of the California Senate’s GOP leader….

Elections officials across the state are linking many of the reported complaints to the state’s new Motor Voter program<https://www.dmv.ca.gov/portal/dmv/detail/dl/motorvoter>, which launched ahead of the 2018 midterms<https://www.sacbee.com/news/politics-government/capitol-alert/article224696945.html> to automatically register eligible voters when they visit the DMV. The 2015 law was designed to help boost participation, but a rushed launch prompted 105,000 registration errors to occur following its roll-out.

Janna Haynes, public information officer for Sacramento County Voter Registration & Elections, said the department has received “close to 200 calls from people saying they don’t think they were registered NPP” after the county recently sent out postcards to about 200,000 other people earlier this month.

Haynes noted two-thirds of the 200 complaints the department received came from people who have recently done business with the DMV.

While it’s unclear what happened to the people who didn’t visit the DMV, other errors may have occurred from voters wrongly filling out government documents or election workers inaccurately entering voter data.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Wisconsin: “Voter-roll purge would hit Democrat-leaning areas hardest”<https://electionlawblog.org/?p=108384>
Posted on December 12, 2019 7:59 pm<https://electionlawblog.org/?p=108384> by Rick Hasen<https://electionlawblog.org/?author=3>

Milwaukee Journal Sentinel:<https://www.jsonline.com/story/news/politics/2019/12/12/wisconsin-voter-roll-purge-would-hit-democrat-leaning-areas/4388832002/>

Ten percent or more of registered voters in dozens of communities could be removed from the voter rolls if a lawsuit against the state succeeds.

Some of the highest dropoff would occur in Wisconsin’s two largest cities and areas with college campuses — the epicenters for Democratic support. But the effect would also ripple through rural areas that backed President Donald Trump in 2016, a review of state data by the Milwaukee Journal Sentinel shows.

In all, tens of thousands of voters could come off the rolls.

The lawsuit, brought last month<https://www.jsonline.com/story/news/politics/2019/11/13/lawsuit-seeks-force-removal-some-people-voter-rolls/2577747001/> by three voters with the help of the conservative Wisconsin Institute for Law & Liberty, seeks to purge the voter rolls of people who might have moved. State officials want to put off forcing people off the rolls until 2021 because they suspect some of the voters have not actually moved.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“How to Ensure Fair Voting Maps for the Next Decade and Beyond”<https://electionlawblog.org/?p=108382>
Posted on December 12, 2019 7:47 pm<https://electionlawblog.org/?p=108382> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center:<https://www.brennancenter.org/our-work/analysis-opinion/how-ensure-fair-voting-maps-next-decade-and-beyond>

The Brennan Center has studied best practices and developed a guide and model language<https://www.brennancenter.org/our-work/policy-solutions/better-way-draw-districts> for creating commissions that put community interests above partisan considerations, promote transparency, and bolster public accountability. We incorporated feedback from our partners that represent constituencies of color to ensure that our recommendations protect and promote minority group representation. While state redistricting needs vary, our guide and model language provide a template that states can use and adapt to fix broken processes that lead to unfair maps.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Fraudsters Use Political Action Committees to Rip Off Older Americans”<https://electionlawblog.org/?p=108380>
Posted on December 12, 2019 7:44 pm<https://electionlawblog.org/?p=108380> by Rick Hasen<https://electionlawblog.org/?author=3>

AARP:<https://www.aarp.org/money/scams-fraud/info-2019/scam-pacs.html>

Five Tips to Avoid Scam Political Action Committees

1. Visit the Federal Election Commission’s website, fec.gov<https://www.fec.gov/>, to check out a PAC and how it spends its money. The Center for Responsive Politics also has information about PACs, at opensecrets.org<http://www.opensecrets.org/>.

2. Beware of a PAC if its website doesn’t have the names of the people running it and contact information.

3. Be suspicious if a PAC collects money through harder-to-trace payment sites like PayPal<https://www.aarp.org/money/scams-fraud/info-2019/p2p-money-transfer.html> or requests checks mailed to a post office box.

4. Avoid a PAC that doesn’t ask donors to confirm, as required, that they are at least 21 years old and not a foreign national.

5. Be skeptical of a group that sounds like a charity but is regulated by the FEC, since PACs are intended for political activity.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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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