[EL] ELB News and Commentary 6/6/19

Thu Jun 6 09:43:53 PDT 2019

“Dems fear report on Russia probe could kill their oversight momentum”<https://electionlawblog.org/?p=105499>
Posted on June 6, 2019 9:39 am<https://electionlawblog.org/?p=105499> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/story/2019/06/06/russia-investigation-probe-justice-trump-1355524>

Democrats lurching toward potential impeachment and ramping up their probes of President Donald Trump are becoming increasingly worried that the Justice Department will subvert their efforts.

An internal DOJ watchdog report<https://www.politico.com/story/2018/06/19/fbi-watchdog-republicans-respond-653544> on the origins of the Russia probe is expected to spotlight potential political bias by FBI agents at the heart of the Russia probe. The report, due out as soon as this month and as late as October, could raise pointed questions<https://www.politico.com/story/2019/04/17/mueller-report-steele-justice-department-1280578> about the FBI’s decision-making at the time — handing Trump a bludgeon in his long-running campaign to accuse the bureau of mounting a “coup” against him.

They fear the report, by DOJ Inspector General Michael Horowitz, who is respected by lawmakers from both parties, will diminish any momentum Democrats are seeking in their efforts to convince Americans that Trump obstructed the Russia investigation, later taken over by special counsel Robert Mueller.
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Posted in chicanery<https://electionlawblog.org/?cat=12>

“The Supreme Court Nixes Corporate Contributions for the 2020 Campaign”<https://electionlawblog.org/?p=105497>
Posted on June 6, 2019 9:25 am<https://electionlawblog.org/?p=105497> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.brennancenter.org/blog/supreme-court-nixes-corporate-contributions-2020-campaign>:

A few weeks ago, the Supreme Court delivered a surprising rebuke to those who think corporations just don’t have enough influence on U.S.  elections. In declining to hear the case of 1A Auto, Inc. vs. Sullivan, the court essentially guaranteed that corporations will be sidelined for at least the next election cycle.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>

“Who Cares About the Supreme Court’s Legitimacy?”<https://electionlawblog.org/?p=105495>
Posted on June 6, 2019 9:23 am<https://electionlawblog.org/?p=105495> by Rick Hasen<https://electionlawblog.org/?author=3>

Linda Greenhouse<https://www.nytimes.com/2019/06/06/opinion/supreme-court-census-roberts.html> in the NYT:

What changed my mind about writing about this issue again was the administration’s response to the request by the plaintiffs, a coalition of immigrant rights groups, to Judge Furman for “sanctions or other appropriate relief”<https://www.supremecourt.gov/DocketPDF/18/18-966/101439/20190530142417722_2019.05.30%20NYIC%20Respondents%20Notice%20of%20Filing%20--%20Final.pdf> against a Justice Department official and an expert administration witness who, the newly revealed documents indicated, testified untruthfully about the origin of the citizenship question. The plaintiffs have lodged a copy of their District Court filing with the Supreme Court.

The administration’s response<https://www.supremecourt.gov/DocketPDF/18/18-966/101857/20190603200023489_Letter%2018-966%206-3-19.pdf>, a copy of which was also sent to the Supreme Court, was in most respects unsurprising. It described the new material as unauthenticated and inadmissible hearsay, and it insists that the plaintiffs’ interpretation of the citizenship question’s origin is “not only false, but legally irrelevant as both a procedural and substantive matter.”

(In a hearing Thursday, Judge Furman deferred until after the Supreme Court’s expected ruling any decision on imposing sanctions. or conducting further discovery.)

What got my attention was the anti-media theme running through the administration’s five-page filing. The Justice Department lawyers who signed the cover letter to Judge Furman complained that along with the plaintiffs’ motion for sanctions was the “near-simultaneous publication of an accompanying article in The New York Times” — as if news coverage of a public court filing cast a cloud over the propriety of the filing, rather than the documents’ revelations casting a cloud over the propriety of the administration’s litigating position. The administration lawyers complained further that the plaintiffs “appear to have spent more time coordinating with the media — the detailed Times article was posted online less than an hour after the E.C.F. filing notice — than performing the requisite investigation.” (E.C.F. stands for electronic court filing.)…

Yet the steady flow of right-wing commentary mocking concerns about the Supreme Court’s legitimacy (and I readily admit to having added my voice to those concerns) leaves me with this thought: What about the other justices? Why is it assumed on the right that Chief Justice Roberts is the only conservative on the court who has its welfare in view and who worries about the loss of public confidence if the justices come to be seen as mere politicians in robes?

Maybe the question answers itself. (Speaking of election law, it was Justice Clarence Thomas who wrote in a separate opinion<https://www.supremecourt.gov/opinions/15pdf/14-940_ed9g.pdf> three years ago that he regarded the court’s “one person, one vote” jurisprudence as lacking a “sound basis.”) Justice Samuel Alito? The new justices, Neil Gorsuch and Brett Kavanaugh? Shouldn’t we assume that they care too? And if not, why not? As the clock ticks toward the 2020 census, just asking.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Michigan agrees to make it easier for college students to vote”<https://electionlawblog.org/?p=105493>
Posted on June 6, 2019 9:18 am<https://electionlawblog.org/?p=105493> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/michigan-agrees-to-make-it-easier-for-college-students-to-vote/2019/06/05/5a5a24c8-87c3-11e9-a870-b9c411dc4312_story.html?utm_term=.7dc6dc1708e8&wpmk=MK0000200>
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Posted in voting<https://electionlawblog.org/?cat=31>

“The Cybersecurity 202: Stanford group calls for major overhaul on election security. Here are their recommendations”<https://electionlawblog.org/?p=105491>
Posted on June 6, 2019 9:15 am<https://electionlawblog.org/?p=105491> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Post:<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/06/06/the-cybersecurity-202-stanford-group-calls-for-major-overhaul-on-election-security-here-are-their-recommendations/5cf80e6d1ad2e5122b87c4d2/?utm_term=.310158584cc3>

A plan released this week by a Stanford University group that includes former top government and tech industry officials aims to be the equivalent of the 9/11 Commission report for election security.

Like the 9/11 report, which fundamentally reorganized the nation’s homeland security and intelligence structure after the Sept. 11, 2001, terrorist attacks, “Securing American Elections<https://cyber.fsi.stanford.edu/securing-our-cyber-future>” aims big. It argues Russia’s 2016 election interference operation was an attack on fundamental American values, and should provoke the government and private sector to step up “defenses against efforts to erode confidence in democracy.”

The report’s 108 pages include 45 recommendations ranging from securing voting systems and combating online disinformation campaigns to negotiating major election security norms with allies and punishing adversaries who violate them.

Like the 9/11 commission leaders who spent years pushing the government to fully implement their reforms amid partisan bickering, this group is preparing for a fierce lobbying campaign to turn its recommendations into reality,said Nate Persily, a report author and director of Stanford’s Cyber Policy Center.

That will be an uphill climb. “We’re not naive. We recognize that the topic of Russian intervention in the 2016 election provokes a partisan reaction and there’s a partisan allergy to some types of recommendations,” Persily told me. “But we believe Democrats and Republicans can unite around what are some common-sense reforms.”
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Arizona SoS, Legislature Tussle Over Election Funding”<https://electionlawblog.org/?p=105489>
Posted on June 6, 2019 9:13 am<https://electionlawblog.org/?p=105489> by Rick Hasen<https://electionlawblog.org/?author=3>

Doug Chapin blogs<https://editions.lib.umn.edu/electionacademy/2019/06/06/arizona-sos-legislature-tussle-over-election-funding/>.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Oregon joins interstate pact to ignore Electoral College”<https://electionlawblog.org/?p=105487>
Posted on June 6, 2019 9:09 am<https://electionlawblog.org/?p=105487> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://www.washingtonpost.com/politics/oregon-joins-interstate-pact-to-ignore-electoral-college/2019/06/05/63444656-87f8-11e9-9d73-e2ba6bbf1b9b_story.html?utm_term=.c5e339c06265>
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Posted in electoral college<https://electionlawblog.org/?cat=44>

7th Circuit, In Brief, Unanimous Opinion, Rejects Challenge to Cook County, Illinois Ballot Access Requirements<https://electionlawblog.org/?p=105485>
Posted on June 5, 2019 4:43 pm<https://electionlawblog.org/?p=105485> by Rick Hasen<https://electionlawblog.org/?author=3>

Opinion by Judge Barrett.<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D06-05/C:18-2979:J:Barrett:aut:T:fnOp:N:2350667:S:0>
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Posted in ballot access<https://electionlawblog.org/?cat=46>, third parties<https://electionlawblog.org/?cat=47>

Federal District Court in Census Citizenship Question Case Won’t Decide If DOJ Officials Lied About Purpose of Question—Until After the Supreme Court is Expected to Rule.<https://electionlawblog.org/?p=105483>
Posted on June 5, 2019 2:45 pm<https://electionlawblog.org/?p=105483> by Rick Hasen<https://electionlawblog.org/?author=3>

These developments<https://twitter.com/hansilowang/status/1136373297371856897> make it much harder for plaintiffs to get any new factual findings before the Supreme Court rules in the census case.
[https://pbs.twimg.com/profile_images/957796956906115073/8uFCZbZd_bigger.jpg]<https://twitter.com/hansilowang>
<https://twitter.com/hansilowang>
Hansi Lo Wang<https://twitter.com/hansilowang>
✔@hansilowang<https://twitter.com/hansilowang>

 · 21h<https://twitter.com/hansilowang/status/1136349663668461569>
<https://twitter.com/hansilowang/status/1136349663668461569>

Replying to @hansilowang and 6 others<https://twitter.com/_/status/1136348943959412737>

15. Judge Furman says he's "acutely mindful" that the #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> case is before the Supreme Court. He says the issues of today's hearing are "collateral" to merits of issue before #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash>.
[https://pbs.twimg.com/profile_images/957796956906115073/8uFCZbZd_bigger.jpg]<https://twitter.com/hansilowang>
<https://twitter.com/hansilowang>
Hansi Lo Wang<https://twitter.com/hansilowang>
✔@hansilowang<https://twitter.com/hansilowang>

16. Judge Furman says he sees "no reason to rush this process" before #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash> reaches it decision in #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> case.

"I don't want to do anything that would cross the line or be seen to cross the line," Furman says.
<https://twitter.com/intent/like?tweet_id=1136350052383952899>
9<https://twitter.com/intent/like?tweet_id=1136350052383952899>
12:12 PM - Jun 5, 2019<https://twitter.com/hansilowang/status/1136350052383952899>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/hansilowang>
See Hansi Lo Wang's other Tweets<https://twitter.com/hansilowang>

https://twitter.com/hansilowang/status/1136373297371856897
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105483&title=Federal%20District%20Court%20in%20Census%20Citizenship%20Question%20Case%20Won%E2%80%99t%20Decide%20If%20DOJ%20Officials%20Lied%20About%20Purpose%20of%20Question%E2%80%94Until%20After%20the%20Supreme%20Court%20is%20Expected%20to%20Rule.>
Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

“Texas ditched its botched voter roll review but has signaled it hasn’t closed its criminal inquiry”<https://electionlawblog.org/?p=105481>
Posted on June 5, 2019 9:54 am<https://electionlawblog.org/?p=105481> by Rick Hasen<https://electionlawblog.org/?author=3>

Alexa Ura<https://www.texastribune.org/2019/06/05/texas-indicates-criminal-inquiry-over-voter-roll-review-isnt-closed/> for the Texas Tribune:

When former Secretary of State David Whitley launched a review of the Texas voter rolls for supposed noncitizens, his office marked almost 100,000 voters for two reviews — one by county officials to question their voter eligibility and another by the Texas attorney general’s office for possible criminal prosecution.

The counties halted their work — though some never actually started — after a federal judge put the review on hold over questions of constitutionality raised in three federal lawsuits. But it appears that the state’s top prosecutor, who boasted his office would “spare no effort in assisting with these troubling cases,” has not.

More than a month after a legal settlement was reached to scrap the review, Paxton’s office has indicated it is keeping open the criminal investigation file itinitiated based on the secretary of state’s referral. That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>

ACLU Files Sharp Letter in District Court (with Copy to Supreme Court) Responding in Census Citizenship Case<https://electionlawblog.org/?p=105476>
Posted on June 5, 2019 9:01 am<https://electionlawblog.org/?p=105476> by Rick Hasen<https://electionlawblog.org/?author=3>

Letter<https://www.supremecourt.gov/DocketPDF/18/18-966/102059/20190605110541663_NYIC%20Respondents%20Letter%20Notice%20of%20Reply%20v2%20FINAL.pdf>:
[https://electionlawblog.org/wp-content/uploads/Screen-Shot-2019-06-05-at-8.59.29-AM-1024x968.png][https://electionlawblog.org/wp-content/uploads/Screen-Shot-2019-06-05-at-8.59.37-AM-840x1024.png][https://electionlawblog.org/wp-content/uploads/Screen-Shot-2019-06-05-at-8.59.48-AM-813x1024.png]

The link will bring you to the rest of the letter.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>

Today’s Must Read: “Federal investigators to examine equipment from 2016 N.C. election amid renewed fears of Russian hacking”<https://electionlawblog.org/?p=105474>
Posted on June 5, 2019 7:20 am<https://electionlawblog.org/?p=105474> by Rick Hasen<https://electionlawblog.org/?author=3>

Washington Post:<https://www.washingtonpost.com/investigations/federal-investigators-to-examine-equipment-from-2016-north-carolina-election-amid-renewed-fears-of-russian-hacking/2019/06/05/b70402e6-7816-11e9-b7ae-390de4259661_story.html?utm_term=.9dbccbfbcf2b>

It was a single phrase, offered without elaboration, in special counsel Robert S. Mueller III’s report: In August 2016, hackers working for Russian military intelligence “installed malware on the company network” of an unnamed voter registration technology vendor in the United States.

The claim amounts to one of the first indications that Russians successfully executed a cyberattack against a private company supporting American election infrastructure. And it has set off a scramble for answers in North Carolina, where officials have long been concerned about the security of a voting technology company called VR Systems — so much so that the state tried to halt the use of its electronic poll books, equipment used to check in voters.

Problems checking in voters on Election Day 2016 in Durham County made national headlines. Later, leaked documents revealed that Russians had tried to hack VR Systems shortly before the election. After the Mueller report, state officials wanted to know: Was VR Systems the company referenced? What effect, if any, did the malware have? And how could they prevent it from happening in 2020?

An examination of North Carolina’s struggle to answer those questions, detailed in court records and a dozen interviews, hints at the difficulties state officials face in shoring up security ahead of next year’s elections — a lack of technical expertise, poor communication between state and federal officials, and the apparent unwillingness, in this instance, of the federal agency involved to share information. Russian hackers targeted elections infrastructure in at least 21 states, and likely more, in 2016, federal officials have said.

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Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

“Russia’s manipulation of Twitter was far vaster than believed”<https://electionlawblog.org/?p=105471>
Posted on June 5, 2019 7:07 am<https://electionlawblog.org/?p=105471> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/story/2019/06/05/study-russia-cybersecurity-twitter-1353543>:

Russia’s infamous troll farm conducted a campaign on Twitter before the 2016 elections that was larger, more coordinated and more effective than previously known, research<https://www.symantec.com/blogs/threat-intelligence/twitterbots-propaganda-disinformation> from cybersecurity firm Symantec out Wednesday concluded.

The Internet Research Agency campaign may not only have had more sway — reaching large numbers of real users — than previously thought, it also demonstrated ample patience and might have generated income for some of the phony accounts, Symantec found.

The company analyzed a massive data set Twitter released in October 2018 on nearly 3,900 accounts and 10 million tweets.

The research discovered that the average lag between account creation and first tweet was 177 days. The most retweeted account garnered 6 million retweets, and less than 2,000 of those came from within the IRA-linked network of accounts. The huge delay points to a lot of patient preparation, and the retweets indicate that a lot of unaffiliated Twitter users were amplifying the IRA’s message.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>, social media and social protests<https://electionlawblog.org/?cat=58>

“Hyperpartisan Gerrymandering”<https://electionlawblog.org/?p=105469>
Posted on June 5, 2019 6:53 am<https://electionlawblog.org/?p=105469> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Kang has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3396178> on SSRN (forthcoming, Boston College Law Review). Here is the abstract:

We live in hyperpartisan times. Democrats and Republicans have not been so bitterly divided along partisan lines since Reconstruction, nor so aggressively hostile to each other in the history of the two major parties. For almost anyone today, our current era seems like historically extreme, even bizarrely partisan. By comparison, the preceding era of the Cold War was far less partisan and far less ideologically polarized. For modern critics, this earlier era of bipartisanship, spanning roughly from World War II through the 1980s, offers a hopeful model for a better, less partisan American politics. However, this historical baseline is salient but badly misleading. The bipartisanship of the Cold War, not today’s hyperpartisanship, is actually the dramatic outlier in American history. Congressional partisanship for most of American history was comparable to today’s hyperpartisanship. And the process of legislative redistricting, for most of American history, was just as intensely partisan as the rest of American politics.

The Article introduces to the legal scholarship this history of redistricting. Understanding this forgotten history reveals that it is actually today’s hyperpartisanship, and today’s hyperpartisan gerrymandering, that are closer to historical norm than our Cold War expectations. However, it was precisely during the Cold War era of partisan peace that courts inaugurated election law and began overseeing the redistricting process. The development of redistricting law, and indeed most of election law, therefore occurred during an odd circumstance of minimal, historically low partisanship where partisan complications largely receded from judicial attention. As a result, the law of redistricting developed by courts during the Cold War era is fundamentally mismatched to today’s hyperpartisanship and the intensity of hyperpartisan gerrymandering. The ensuing law of redistricting has thus grown up during an era, shaped by judges and lawyers of the same experience, when partisanship and gerrymandering were least prevalent in American history. Saddled by outdated empirical understandings, the Supreme Court underestimates the impressive effectiveness, durability, and scope of today’s hyperpartisan gerrymandering, as the Article details.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, 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/>
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