[EL] ELB News and Commentary 12/23/19

[Rick Hasen]

Today’s Must-Read: “Fear and Loyalty: How Donald Trump Took Over the Republican Party”<https://electionlawblog.org/?p=108525>
Posted on December 23, 2019 10:07 am<https://electionlawblog.org/?p=108525> by Rick Hasen<https://electionlawblog.org/?author=3>

Remarkable look<https://www.nytimes.com/2019/12/21/us/politics/trump-impeachment-republicans.html> in the NYT at the transformation of the Republican Party.
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Posted in political parties<https://electionlawblog.org/?cat=25>, political polarization<https://electionlawblog.org/?cat=68>


Steve Bainbridge on Delaware Judges’ Case at U.S. Supreme Court<https://electionlawblog.org/?p=108523>
Posted on December 23, 2019 9:45 am<https://electionlawblog.org/?p=108523> by Rick Hasen<https://electionlawblog.org/?author=3>

WLF<https://www.wlf.org/2019/12/13/wlf-legal-pulse/delawares-judiciary-in-the-u-s-supreme-court/>:

What is the judicial role? Are judges mere umpires who call balls and strikes based solely on rules made by others? Or are judges lawmakers in their own right, creating laws and making public policy? The U.S. Supreme Court has just agreed to hear a case in which those questions could play a determinative role. In addition to being of great jurisprudential interest, however, the case will attract great attention from corporate lawyers, because it may call into question the validity of the judiciary of the state that dominates corporate law.
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Posted in judicial elections<https://electionlawblog.org/?cat=19>, Supreme Court<https://electionlawblog.org/?cat=29>


“Fourth Circuit Reinstates Suit Over Census Preparations”<https://electionlawblog.org/?p=108521>
Posted on December 23, 2019 9:41 am<https://electionlawblog.org/?p=108521> by Rick Hasen<https://electionlawblog.org/?author=3>

Courthouse News Service<https://www.courthousenews.com/fourth-circuit-reinstates-naacp-suit-over-census-preparations/>:

Siding with the NAACP, the Fourth Circuit on Thursday revived<http://www.courthousenews.com/wp-content/uploads/2019/12/census-ca4.pdf> claims that the Trump administration is not ready for the 2020 census and is at risk of undercounting minority communities.

One of several court challenges involving the once-a-decade count, the civil rights group argues the alleged underfunding of outreach programs could result in an underrepresentation of minority and historically disadvantaged populations.

The NAACP and Prince George’s County, Maryland, first filed their lawsuit in March 2018, but a federal judge dismissed the case after finding the plaintiffs lacked standing because they had not suffered a concrete injury.

While a three-judge panel of the Richmond-based appeals court upheld the dismissal of the NAACP’s claims under the Administrative Procedures Act, the judges remanded the case for further consideration of claims made under the Constitution’s enumeration clause, which calls for a census once every 10 years.
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Posted in census litigation<https://electionlawblog.org/?cat=125>


Arizona (So This May Have National Implications for 2020): “Libertarian Party tells Supreme Court state law keeps its candidates off ballot”<https://electionlawblog.org/?p=108518>
Posted on December 23, 2019 9:37 am<https://electionlawblog.org/?p=108518> by Rick Hasen<https://electionlawblog.org/?author=3>

Tuscon.com<https://tucson.com/news/arizona_news/libertarian-party-tells-supreme-court-state-law-keeps-its-candidates/article_d6f9288e-2251-5639-9c4a-9af705e75e0c.html>:

The Arizona Libertarian Party is making a last-ditch effort to quash a state statute that it says was designed to keep its candidates off the ballot.

In filings with the U.S. Supreme Court, attorney Oliver Hall from the Center for Competitive Democracy said the law pushed through the Republican-controlled Legislature in 2015 sharply increased — sometimes by a factor of 30 — the number of signatures needed for Libertarian candidates to qualify for the ballot.

That wasn’t by accident. In fact the record shows that J.D. Mesnard, then a GOP representative from Chandler and now a state senator, told colleagues that Republicans would have been elected to two congressional seats had it not been for what he said were Libertarian candidates in the same race siphoning votes that otherwise would have gone to the GOP contenders….
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Posted in ballot access<https://electionlawblog.org/?cat=46>, third parties<https://electionlawblog.org/?cat=47>


“Are States Purging Or Cleaning Voter Registration Rolls?”<https://electionlawblog.org/?p=108516>
Posted on December 23, 2019 9:30 am<https://electionlawblog.org/?p=108516> by Rick Hasen<https://electionlawblog.org/?author=3>

NPR’s Pam Fessler.<https://www.npr.org/2019/12/20/790319853/are-states-purging-or-cleaning-voter-registration-rolls>
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Posted in election administration<https://electionlawblog.org/?cat=18>, NVRA (motor voter)<https://electionlawblog.org/?cat=33>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>


“We May Never See All The Emails About Trump’s Bogus Voter Fraud Panel”<https://electionlawblog.org/?p=108512>
Posted on December 20, 2019 5:04 pm<https://electionlawblog.org/?p=108512> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM:<https://talkingpointsmemo.com/news/dunlap-appeals-court-voter-fraud-commission-email-opinion>

A set of potentially juicy emails from President Trump’s disbanded voter fraud commission will likely never see the light of day, due to an appeals court decision<https://drive.google.com/file/d/1CEC_wdC8MMqNcYcNDPu3mp5ppQ7yVwOQ/view> issued Friday.

The Trump administration is not required to turn over certain emails from the defunct commission to a Democratic commissioner who sued for them, an appeals court said.

While the commissioner’s lawsuit has largely been successful in getting him access to the documents and commission work he said was withheld from him, there has continued to be a dispute over a set of those emails.<https://talkingpointsmemo.com/news/dunlap-lawsuit-trump-voter-fraud-commission-appeal>

Specifically, the administration has resisted handing over to the ex-commissioner, Maine Secretary of State Matt Dunlap, emails other members of the panel sent to the administration staff organizing the panel about potential commissioners.

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit reversed the decision of a district judge ordering that those emails be produced.

“Private emails between Executive Branch officials and individuals who served as commissioners about potential additional commissioners are quite distinct from these examples of documents about the Commission’s ongoing, substantive work,” the appellate court said.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


Must-Read: Trump Advisor in Wisconsin Says “Traditionally it’s always been Republicans suppressing votes in places,” Promises More Aggressive Poll Watching Following Expiration of Consent Decree Against RNC Activities [Now updated with audio]<https://electionlawblog.org/?p=108510>
Posted on December 20, 2019 2:04 pm<https://electionlawblog.org/?p=108510> by Rick Hasen<https://electionlawblog.org/?author=3>

AP:<https://apnews.com/af2f0ede054d8baebbe1bb6ca47b4895>

One of President Donald Trump’s top re-election advisers told influential Republicans in swing state Wisconsin that the party has “traditionally” relied on voter suppression to compete in battleground states but will be able to “start playing offense” in 2020 due to relaxed Election Day rules, according to an audio recording of a private event obtained by The Associated Press.

“Traditionally it’s always been Republicans suppressing votes in places,” Justin Clark, a senior political adviser and senior counsel to Trump’s re-election campaign, said at the event. “Let’s start protecting our voters. We know where they are. … Let’s start playing offense a little bit. That’s what you’re going to see in 2020. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program.”

Asked about the remarks by AP, Clark said he was referring to false accusations that the GOP engages in voter suppression.

“As should be clear from the context of my remarks, my point was that Republicans historically have been falsely accused of voter suppression and that it is time we stood up to defend our own voters,” Clark said. “Neither I nor anyone I know or work with would condone anyone’s vote being threatened or diluted and our efforts will be focused on preventing just that.”..

Republican officials publicly signaled plans to step up their Election Day monitoring after a judge in 2018 lifted a consent degree in place since 1982 that barred the Republican National Committee from voter verification and other “ballot security” efforts. Critics have argued the tactics amount to voter intimidation.

It would be nice to have access to the recording to hear the remarks in context.

I write about the significance of the expiration of the RNC consent decree in my upcoming book, Election Meltdown.<https://www.amazon.com/Election-Meltdown-Distrust-American-Democracy/dp/0300248199/ref=sr_1_1?keywords=hasen+election+meltdown&qid=1565015345&s=digital-text&sr=1-1-catcorr>

UPDATE: You can listen to the audio here<https://www.youtube.com/watch?time_continue=1166&v=am0egba-KNQ&feature=emb_logo>. You can hear about the demise of the RNC consent decree at around 12:20 and you can hear the remark about Republicans suppressing the vote at around 19:16. It is clear that Mr. Clark is stating the view that Democrats cheat at voting, but it does not sound like he was saying that Republicans have been falsely accused of suppressing the vote. But you can listen for yourself to the context of the comments.
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Posted in election administration<https://electionlawblog.org/?cat=18>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


--
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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