[EL] ELB News and Commentary 7/29/19

[Rick Hasen]

“States Rush to Make Voting Systems More Secure as New Threats Emerge”<https://electionlawblog.org/?p=106658>
Posted on July 28, 2019 8:19 pm<https://electionlawblog.org/?p=106658> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/07/26/us/politics/states-voting-systems.html>:

Amid growing warnings<https://www.nytimes.com/2019/07/25/us/politics/russian-hacking-elections.html?module=inline> about the security of American voting systems, many states are rushing to address vulnerabilities exposed by the 2016 election, even as intelligence officials worry they are fighting the last battle and are not sufficiently focused on a new generation of threats headed into 2020.

Delaware has replaced its voting machines to assure paper backup that would provide a record in case of a breach. South Carolina’s State Election Commission said this month<https://www.scvotes.org/sec-statement-new-voting-system-software-updates> that it would introduce a paper-based voting system in January and planned to “build additional layers of security designed to harden the new system.”

Yet Florida, home of the United States’ best-known presidential balloting problems, like hanging chads in 2000 and still mysterious Russian activity in 2016, once again seems far behind.

And the fear among American intelligence officials is that the federal government and the 50 states may be making the classic mistake of believing their adversaries will use the same techniques again.


[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106658&title=%E2%80%9CStates%20Rush%20to%20Make%20Voting%20Systems%20More%20Secure%20as%20New%20Threats%20Emerge%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>


“How Fundraisers Convinced Conservatives to Donate $10 Million — Then Kept Almost All of It.”<https://electionlawblog.org/?p=106656>
Posted on July 28, 2019 8:10 pm<https://electionlawblog.org/?p=106656> by Rick Hasen<https://electionlawblog.org/?author=3>

ProPublica and Politico:<https://www.propublica.org/article/conservative-majority-fund-political-fundraising-pac-kelley-rogers>

After recruiting thousands of donors for the American Conservative Union — the powerful organization behind the annual CPAC conference — a Republican political operative pushed the same contributors to give millions to a PAC that promised to go after then-President Barack Obama, but then steered much of their donations to himself and his partners.

The PAC, called the Conservative Majority Fund, has raised nearly $10 million since mid-2012 and continues to solicit funds to this day, primarily from thousands of steadfast contributors to conservative causes, many of them senior citizens. But it has made just $48,400 in political contributions to candidates and committees. Public records indicate its main beneficiaries are the operative Kelley Rogers, who has a history of disputes over allegedly unethical fundraising, and one of the largest conservative fundraising companies, InfoCision Management Corp., which charged millions of dollars in fundraising fees.

The saga of how politically connected fundraisers used one of the nation’s leading conservative organizations as a springboard for fundraising that mainly benefited the fundraisers themselves sheds light on the growing problem of so-called scam PACs — organizations that take advantage of loosened campaign finance laws to reap windfalls for insiders while directing only a small portion of receipts to actual political advocacy.

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106656&title=%E2%80%9CHow%20Fundraisers%20Convinced%20Conservatives%20to%20Donate%20%2410%20Million%20%E2%80%94%20Then%20Kept%20Almost%20All%20of%20It.%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>


“Federal Inquiry of Trump Friend Focused on Foreign Lobbying”<https://electionlawblog.org/?p=106654>
Posted on July 28, 2019 6:13 pm<https://electionlawblog.org/?p=106654> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/07/28/us/politics/thomas-barrack-foreign-lobbying.html>

As Donald J. Trump was preparing to deliver an address on energy policy in May 2016, Paul Manafort, his campaign chairman, had a question about the speech’s contents for Thomas J. Barrack Jr., a top campaign fund-raiser and close friend of Mr. Trump.

“Are you running this by our friends?” Mr. Manafort asked in a previously undisclosed email to Mr. Barrack, whose real estate and investment firm does extensive business in the Middle East.

Mr. Barrack was, in fact, coordinating the language in a draft of the speech with Persian Gulf contacts including Rashid al-Malik, an Emirati businessman who is close to the rulers of the United Arab Emirates.
The exchanges about Mr. Trump’s energy speech are among a series of interactions that have come under scrutiny by federal prosecutors looking at foreign influence over his campaign, his transition and the early stages of his administration, according to documents and interviews with people familiar with the case.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106654&title=%E2%80%9CFederal%20Inquiry%20of%20Trump%20Friend%20Focused%20on%20Foreign%20Lobbying%E2%80%9D>
Posted in lobbying<https://electionlawblog.org/?cat=28>


“Has Congress already missed its chance to strengthen election security ahead of 2020?”<https://electionlawblog.org/?p=106652>
Posted on July 28, 2019 4:13 pm<https://electionlawblog.org/?p=106652> by Rick Hasen<https://electionlawblog.org/?author=3>

KC Star:<https://www.kansascity.com/news/politics-government/article233180211.html>

GOP leadership said Mueller’s testimony<https://www.miamiherald.com/news/nation-world/national/article233067217.html> did little to persuade them of the need for legislation. Moreover, one of the only GOP lawmakers pushing election security reforms on Capitol Hill said states have effectively run out of time to implement changes ahead of the next presidential election.
<javascript:void(0)>
Sen. James Lankford, R-Oklahoma, told reporters Thursday that Congress should shift its focus to the 2022 mid-term election.

“I’ve had folks say we need to hurry and get money out the door so they can buy new systems, that’s not going to happen for 2020. There’s no way to do it for 2020 because you can’t buy the equipment, get it in, test it, evaluate it, train your volunteers on it when the first primary is six months away,” Lankford said.

“The discussion now is not about 2020. That’s already resolved. They’re not going to add new stuff unless it’s already currently in the pipeline. It’s really 2022 at this point.”

Bipartisan election security legislation that Lankford drafted with Sen. Amy Klobuchar, a Minnesota Democrat and presidential candidate, died in the Senate Rules Committee last year in the face of Republican opposition.

Lankford has promised for months that he and Klobuchar are working on changes to achieve a bipartisan consensus. But Sen. Roy Blunt<https://www.mcclatchydc.com/news/politics-government/congress/article228088259.html>, the Missouri Republican and Rules chairman, said the legislation is unlikely to advance.<https://www.mcclatchydc.com/latest-news/article229016119.html>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106652&title=%E2%80%9CHas%20Congress%20already%20missed%20its%20chance%20to%20strengthen%20election%20security%20ahead%20of%202020%3F%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>


“Lawyers in Paper Ballot Case Accuse Georgia Officials of Destroying Evidence”<https://electionlawblog.org/?p=106650>
Posted on July 28, 2019 4:09 pm<https://electionlawblog.org/?p=106650> by Rick Hasen<https://electionlawblog.org/?author=3>

Law.com<https://www.law.com/dailyreportonline/2019/07/25/lawyers-in-paper-ballot-case-accuse-georgia-officials-of-destroying-evidence/?cmp=share_twitter>:

A group of Georgia voters and a nonprofit election integrity organization seeking to force the state to use paper rather than electronic ballots in future elections have accused the secretary of state and governor of destroying evidence in the case.

The spoliation claim accuses the office of Secretary of State Brian Raffensperger and Gov. Brian Kemp, who was the secretary of state prior to his election as governor, of destroying computer servers from Kennesaw State University’s Center for Election Services, according to a brief filed Thursday. The brief was filed by attorneys representing the Coalition for Good Government and several Georgia voters.

Coalition lawyers allege in the brief that evidence was willfully destroyed despite numerous requests, notifications and discussions emphasizing the need for preservation.

The brief also claims that state officials and government lawyers failed to preserve memory cards used to program the state’s individual electronic voting machines or make forensic images of them before reusing them. It also claims that the secretary of state’s office under both Raffensperger and Kemp failed to preserve electronic data contained in the internal memories of the electronic voting machines before redeploying them.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106650&title=%E2%80%9CLawyers%20in%20Paper%20Ballot%20Case%20Accuse%20Georgia%20Officials%20of%20Destroying%20Evidence%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>


“Senate intelligence report adds to confusion over Russian elections hacking in Florida”<https://electionlawblog.org/?p=106648>
Posted on July 28, 2019 4:07 pm<https://electionlawblog.org/?p=106648> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald:<https://www.miamiherald.com/news/politics-government/state-politics/article233139306.html>

Three months after Florida’s state government was blindsided<https://www.miamiherald.com/news/politics-government/state-politics/article229565039.html> by the release of previously classified information that two local elections offices were hacked ahead of the 2016 presidential elections, Gov. Ron DeSantis and members of Congress have been caught off-guard once again by a newly released intelligence report on Russian elections interference.

On Thursday, the U.S. Senate Select Committee on Intelligence released a heavily redacted 67-page report<https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume1.pdf> that appears to include new information about efforts by Russian hackers to probe and target elections networks in Florida — including the FBI’s suspicions in 2018 that, in fact, four county elections systems had been hacked rather than two.

The report, which mentions that hackers may have carried out cyber reconnaissance missions across all 50 states, details attempts by the Russian intelligence GRU syndicate to probe elections systems in Illinois and 20 other unnamed states. It specifically discusses those efforts in Illinois and an unnamed “State 2,” where details about meetings and cybersecurity efforts appear to mostly jibe with what’s previously been disclosed about the election system hacking attempts in Florida.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106648&title=%E2%80%9CSenate%20intelligence%20report%20adds%20to%20confusion%20over%20Russian%20elections%20hacking%20in%20Florida%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Finland is winning the war on fake news. What it’s learned may be crucial to Western democracy”<https://electionlawblog.org/?p=106646>
Posted on July 28, 2019 4:04 pm<https://electionlawblog.org/?p=106646> by Rick Hasen<https://electionlawblog.org/?author=3>

CNN reports.<https://www.cnn.com/interactive/2019/05/europe/finland-fake-news-intl/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106646&title=%E2%80%9CFinland%20is%20winning%20the%20war%20on%20fake%20news.%20What%20it%E2%80%99s%20learned%20may%20be%20crucial%20to%20Western%20democracy%E2%80%9D>
Posted in social media and social protests<https://electionlawblog.org/?cat=58>


“Notice, Due Process, and Voter Registration Purges”<https://electionlawblog.org/?p=106644>
Posted on July 28, 2019 1:03 pm<https://electionlawblog.org/?p=106644> by Rick Hasen<https://electionlawblog.org/?author=3>

Anthony Gaughan has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3416791> on SSRN (forthcoming, Cleveland State Law Review). Here is the abstract:

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority held that the Ohio law complied with the National Voter Registration Act of 1993 (“NVRA”) as amended by the Help America Vote Act of 2002 (“HAVA”).

This Article contends that the controlling federal law — the NVRA and the HAVA — gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues that the Ohio procedure fails to constitute good public policy even though it complies with federal law. At a time when email and junk mail have marginalized the U.S. Postal Service as a communication platform, Ohio’s policy of sending a single postcard mailer to inactive voters provides inadequate notice that they face removal from the state’s voter registration lists.

Accordingly, this Article proposes a set of reforms to the notification process used in the states’ list maintenance procedures. Federal law should require states to do far more than send a single postcard warning to inactive voters. In addition, in the aftermath of the Husted ruling, plaintiffs challenging voter registration purges should consider bringing constitutional claims under the due process clause.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106644&title=%E2%80%9CNotice%2C%20Due%20Process%2C%20and%20Voter%20Registration%20Purges%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A Republican Wants Old Campaign Cash to Fund His Nonprofit. A Democrat Might Show the Way.”<https://electionlawblog.org/?p=106639>
Posted on July 26, 2019 5:11 pm<https://electionlawblog.org/?p=106639> by Rick Hasen<https://electionlawblog.org/?author=3>

CPI reports.<https://publicintegrity.org/federal-politics/a-republican-wants-old-campaign-cash-to-fund-his-nonprofit-a-democrat-might-show-the-way/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106639&title=%E2%80%9CA%20Republican%20Wants%20Old%20Campaign%20Cash%20to%20Fund%20His%20Nonprofit.%20A%20Democrat%20Might%20Show%20the%20Way.%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>


“LDF Applauds Federal Court Remedy Ensuring Voting Rights in Louisiana”<https://electionlawblog.org/?p=106637>
Posted on July 26, 2019 5:09 pm<https://electionlawblog.org/?p=106637> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.naacpldf.org/press-release/ldf-applauds-federal-court-remedy-ensuring-voting-rights-in-louisiana/>:

Nearly two years after a federal trial court found that Louisiana’s use of at-large voting for electing five judges to a state court with jurisdiction over Terrebonne Parish violates the Voting Rights Act and the U.S. Constitution<https://www.naacpldf.org/wp-content/uploads/0416-Ruling-adopting-plan-2.pdf>, the NAACP Legal Defense and Educational Fund, Inc. (LDF) applauds the court for ordering a remedy that serves as long-awaited relief for Black voters.

“This voting rights remedy will bring a 50-year old discriminatory voting practice in Louisiana to an end,” said LDF Deputy Director of Litigation Leah Aden<https://www.naacpldf.org/about-us/staff/leah-c-aden/>. “Black voters in Terrebonne Parish, Louisiana have been denied an equal opportunity to elect their preferred judicial candidates for far too long – first through Louisiana’s political process, which continues to fail them, and then through the Governor and Attorney General’s defense of this discriminatory system in court since plaintiffs filed this case in 2014. Black voters in Terrebonne will continue to fight to ensure that the court order is implemented for the next state court election for all five judicial seats in 2020 and push Louisiana state officials to ensure fair electoral opportunity in Louisiana.”

Learn more about Terrebonne Parish Branch NAACP, et al. v. Edwards, et al. here<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.naacpldf.org%2Fcase-issue%2Fterrebonne-parish-branch-naacp-et-al-v-jindal-et-al&data=02%7C01%7Claden%40naacpldf.org%7C62774e6490914822420f08d7114fa76f%7C2967f4d227ee48cd99a70b94ea66a705%7C0%7C0%7C636996906139195880&sdata=6EN2AiL7H%2FPLLFMiKf00htkCiLnh0Bt%2Fs1ISPhwF7ME%3D&reserved=0>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106637&title=%E2%80%9CLDF%20Applauds%20Federal%20Court%20Remedy%20Ensuring%20Voting%20Rights%20in%20Louisiana%E2%80%9D>
Posted in judicial elections<https://electionlawblog.org/?cat=19>


“Unlimited Donations to Candidates, Coming Soon? Former Solicitor General Paul Clement may get the Supreme Court closer to killing what’s left of campaign-finance limits.”<https://electionlawblog.org/?p=106634>
Posted on July 26, 2019 6:17 am<https://electionlawblog.org/?p=106634> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece <https://www.theatlantic.com/ideas/archive/2019/07/campaign-finance-supreme-court/594751/> for The Atlantic. It begins:

During the George W. Bush administration, then–Solicitor General Paul Clement successfully defended the constitutionality of the 2002 McCain-Feingold law, which tightened electioneering and fundraising regulations. Can Clement now get traction on a new case that could partially reverse that earlier victory and help lead to more big money in politics? It seems possible, if not likely, that he will get the Supreme Court closer to killing what’s left of campaign-finance limits….

And so it is somewhat of a mystery why the Court has not taken more campaign-finance cases as vehicles to free up more big money in politics. The Court turned down numerous challenges to the soft-money portion of McConnell, which still stands. It has repeatedly turned down an attempt to reverse a 2003 case, which held that corporations cannot contribute money directly to candidates. (Citizens United concerned only corporate spending independent of candidates.) And just this past term, the Court turned down a case from the Ninth Circuit upholding strict Montana contribution limits, and another from the Fifth Circuit, upholding low contribution limits in Austin, Texas. The latter case garnered a scathing dissenting opinion from Fifth Circuit Judge (and former Thomas clerk) James Ho, who said that if people don’t like too much money in politics, the solution was to shrink the size of government.

Perhaps the justices did not take these cases because they did not see them as ideal for overturning more precedent. Perhaps the Court is gun-shy about taking on more controversial issues that it could choose to avoid, when cases about guns, abortion, and LGBTQ rights wait in the wings.


Maybe Paul Clement can change that. He has just filed a petition <http://www.adfmedia.org/files/ThompsonCertPetition.pdf> on behalf of a conservative group, the Alliance Defending Freedom, asking the Court to review a Ninth Circuit decision upholding Alaska’s $500 contribution limits in candidate elections. The petition argues that the limits are too low under existing precedent, but Clement also drops a footnote suggesting that if existing precedent would allow such low limits, the Court should consider overturning such precedent. He hammers home the point, which Roberts reiterated in McCutcheon, that ingratiation and access are not a form of corruption.

Clement’s petition will be noticed at the Court, and not only because he argued the other side of these issues in the McConnell case, defending McCain-Feingold. A new study finds that repeat players have much greater success at the Supreme Court than novices, and Clement is one of the most talented lawyers I have ever seen argue a case. He argues without notes and has a casual, direct, conversational style with the justices. It is pretty remarkable.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D106634&title=%E2%80%9CUnlimited%20Donations%20to%20Candidates%2C%20Coming%20Soon%3F%20Former%20Solicitor%20General%20Paul%20Clement%20may%20get%20the%20Supreme%20Court%20closer%20to%20killing%20what%E2%80%99s%20left%20of%20campaign-finance%20limits.%E2%80%9D>
Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


--
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/>
[signature_946722519]


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190729/826f3b3a/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190729/826f3b3a/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 92163 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190729/826f3b3a/attachment-0001.png>