[EL] ELB News and Commentary 6/20 and 6/21/19

[Rick Hasen]

I Testified at House Judiciary Committee on Foreign Interference in the 2016 and 2020 Elections, and the Implications of the Mueller Report and President Trump’s Statements Welcoming 2020 Foreign Help<https://electionlawblog.org/?p=105703>
Posted on June 20, 2019 5:37 pm<https://electionlawblog.org/?p=105703> by Rick Hasen<https://electionlawblog.org/?author=3>

My Written Testimony <https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/Hasen%20Testimony.pdf> begins:

Thank you for the opportunity to appear before you today to speak about a matter that is among the greatest concerns I have had in twenty-five years of researching and teaching about American election law and campaign finance issues: the potential for continued illegal foreig interference in United States elections and a United States president’s unprecedented and illa-dvised encouragement of foreign governments to meddle in our elections.

From founding fathers George Washington1 and Alexander Hamilton2 to former Supreme Court Justice John Paul Stevens3 and current Supreme Court Justice Brett Kavanaugh, America leaders have recognized that hostile foreign nations—with, as Justice Stevens put it, “no basic investment in the well-being of the country”—may attempt to interfere in American elections in order to manipulate an election’s outcome or to curry favor with the winner.

As Justice Kavanaugh wrote in the 2011 case, Bluman v. Federal Election Commission, “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.” In Bluman, then-D.C. Circuit Court Judge Kavanaugh’s opinion for a unanimous three-judge district court upheld the federal ban on foreign contributions and expenditures in American elections. The Supreme Court thought this conclusion was so self-evident that it summarily affirmed the ruling without even scheduling oral argument and issuing its own opinion.

Indeed, until President Trump came along, there was broad bipartisan consensus that foreign interference in American elections undermines the idea that “we the people,” and not outsiders—and especially not outsiders from foreign governments with interests adverse to the United States—get to choose American leaders and make the case to our fellow citizens as to who deserves to be elected and why.

Video of hearing<https://youtu.be/Vy1aCS79RNA>:
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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>


As 4th Circuit Contemplates Additional Hearing on Race Discrimination in Adding Citizenship Question to Census, DOJ Files SCOTUS Brief Trying to Preempt Such Consideration<https://electionlawblog.org/?p=105698>
Posted on June 20, 2019 5:27 pm<https://electionlawblog.org/?p=105698> by Rick Hasen<https://electionlawblog.org/?author=3>

Hansi Lo Wang:<https://twitter.com/hansilowang/status/1141793751079239680>
[View image on Twitter]<https://twitter.com/hansilowang/status/1141793751079239680/photo/1>[View image on Twitter]<https://twitter.com/hansilowang/status/1141793751079239680/photo/1>[View image on Twitter]<https://twitter.com/hansilowang/status/1141793751079239680/photo/1>
[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>

<https://twitter.com/hansilowang/status/1141793751079239680>


NEW: The 4th Circuit has set June 24 as the deadline for Trump admin to respond to request by @MALDEF<https://twitter.com/MALDEF> @AAAJ_AAJC<https://twitter.com/AAAJ_AAJC> to send #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> lawsuits in Maryland back to the trial court, where U.S. District Judge George Hazel has said he's willing to revisit discrimination claim
<https://twitter.com/intent/like?tweet_id=1141793751079239680>
33<https://twitter.com/intent/like?tweet_id=1141793751079239680>
12:43 PM - Jun 20, 2019<https://twitter.com/hansilowang/status/1141793751079239680>
<https://twitter.com/hansilowang/status/1141793751079239680>
27 people are talking about this<https://twitter.com/hansilowang/status/1141793751079239680>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

Tierney Sneed:<https://talkingpointsmemo.com/news/justice-department-response-census-delay-request>

The Justice Department, not surprisingly, told the Supreme Court Thursday it should not delay<https://talkingpointsmemo.com/news/muckraker/aclu-supreme-court-delay-census-citizenship-case> its decision in the census citizenship case so that a trial court could consider new evidence<https://talkingpointsmemo.com/muckraker/census-citizenship-redistricting-study-case-bombshel> about the citizenship question’s origins.

The Trump administration also sought to head off any additional litigation, after the Supreme Court hands down its decision, on the issue currently percolating<https://talkingpointsmemo.com/news/census-citizenship-question-george-hazel> in Maryland over whether the move to add the question was racially discriminatory….

In an apparent effort to head off any additional litigation of the discriminatory intent claim — which is currently being considered by the 4th U.S. Circuit Court of Appeals —  the Justice Department asked the Supreme Court to resolve it in the decision it hands down in the next week or two.

“[T]o avoid addressing the issue in an emergency posture,” the Justice Department said, “the Court may wish to address the equal-protection claim in its opinion to make clear that neither respondents’ original evidence nor the Hofeller files demonstrate any racial animus on the part of Secretary Ross.”

“Indeed, a finding that the Secretary’s decision cannot be set aside as pretextual …
necessarily forecloses a claim that it may be set aside as pretextual for a discriminatory reason,” the Justice Department said.


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Posted in census litigation<https://electionlawblog.org/?cat=125>, Supreme Court<https://electionlawblog.org/?cat=29>


“Security of Voting Machines in Question, Government Watchdogs Sue for Access to Information”<https://electionlawblog.org/?p=105695>
Posted on June 20, 2019 5:05 pm<https://electionlawblog.org/?p=105695> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

Free Speech For People has filed a lawsuit on behalf of the National Election Defense Coalition (NEDC) to uncover communications about election security to and from the National Association of Secretaries of State. The lawsuit under the Indiana Access to Public Records Act charges the Indiana Secretary of State, Connie Lawson, with unlawfully denying access to public records regarding the reliability and security of voting machines. The Secretary has twenty days to respond.

“There has been worryingly little meaningful reform to secure our election systems in the wake of the revelations that foreign agents are trying to hack our elections. There is a through-line that directly connects the mis-information from NASS and Secretary Lawson to local officials’ resistance to adopting essential security policies for our voting process,” says Susan Greenhalgh, Policy Director for the National Election Defense Coalition. “We need to know why NASS and Secretary Lawson have repeated mis-information about voting system security that seems to originate from the voting system vendors.”

“After nine months of fruitless exchanges and Secretary Lawson’s repeatedly evolving explanations for denial and delay, NEDC still hasn’t received the vast majority of public records that it requested from the Secretary,” says Ron Fein, Legal Director of Free Speech For People. “It’s unfortunate that we need to sue to compel the Secretary to turn over these emails, but her delays have left us no choice.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Room for Improvement in Colorado Pre-registration Rates”<https://electionlawblog.org/?p=105693>
Posted on June 20, 2019 4:55 pm<https://electionlawblog.org/?p=105693> by Rick Hasen<https://electionlawblog.org/?author=3>

Civics Center report.<https://thecivicscenter.org/blog/2019/6/20/room-for-improvement-in-colorado-pre-registration-rates>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“How Republicans Stopped Worrying About The Right To Vote”<https://electionlawblog.org/?p=105691>
Posted on June 20, 2019 4:38 pm<https://electionlawblog.org/?p=105691> by Rick Hasen<https://electionlawblog.org/?author=3>

Timothy Smith <https://talkingpointsmemo.com/cafe/republican-decade-voter-suppression-efforts> for TPM Cafe.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>


“Phone and Online Voting for Democrats in the 2020 Caucuses? DNC Is at a Major Crossroads”<https://electionlawblog.org/?p=105689>
Posted on June 20, 2019 4:24 pm<https://electionlawblog.org/?p=105689> by Rick Hasen<https://electionlawblog.org/?author=3>

Steven Rosenfeld:<https://www.commondreams.org/views/2019/06/18/phone-and-online-voting-democrats-2020-caucuses-dnc-major-crossroads>

The Independent Media Institute’s Voting Booth project obtained a copy of Iowa’s RFP and asked industry and academic experts in remote voting and election cyber-security to assess Iowa’s envisioned telephone-based system. The experts’ top concerns—based on observing similar voting systems used in Canada and abroad, Utah’s Republican caucuses in 2016 and 2018, and in private-sector elections—were, surprisingly, not a reprise of 2016’s Russian hacking. Instead, the experts cited other likely problems that could mar the caucus’s credibility….

The top red flags concerned potentially thousands of older people having trouble with using a new and unfamiliar telephone system. Specifically, the experts cited voters having to be authenticated by entering serial numbers on their government ID cards and a PIN sent by email (after registering weeks before), and then having to rank the five top candidates in a lengthy and possibly clumsy process.

“Twenty-three<https://www.nytimes.com/interactive/2019/us/politics/2020-presidential-candidates.html> candidates? Do you know how long that will take to listen to have that list read out?” said Aleksander Essex<https://www.eng.uwo.ca/electrical/faculty/essex_a/index.html>, a cybersecurity and cryptography expert who focuses on telephone and online systems and runs the Western Information Security and Privacy Research Laboratory<https://whisperlab.org/> at Ontario’s Western University. “‘If you want candidate one, press one… If you want candidate two, press two…’ That’s the problem with telephone voting from a usability perspective, aside from everything else. You have to sit there.”

The “everything else” that Essex and other experts alluded to also begins at the starting line of the remote voting process, such as people other than the voter trying to access and submit their ballots. The concerns continue with cracks in the layers of technology that lie below the surface of any phone, web or app-based interface, and possibly could be exploited. And there’s any accusation, factual or not, that casts doubt on the outcome.
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Posted in election administration<https://electionlawblog.org/?cat=18>, political parties<https://electionlawblog.org/?cat=25>, primaries<https://electionlawblog.org/?cat=32>


“Trump said it’s OK to take campaign dirt from foreign powers. Is it legal?”<https://electionlawblog.org/?p=105686>
Posted on June 20, 2019 4:20 pm<https://electionlawblog.org/?p=105686> by Rick Hasen<https://electionlawblog.org/?author=3>

LAT<https://www.latimes.com/politics/la-na-pol-2020-trump-foreign-election-interference-20190615-story.html>:

Does receiving ‘dirt’ on an opponent count?

Daniel P. Tokaji, a law professor at Ohio State University, said he did not believe so.

“My view is that an in-kind contribution has to have some determinate economic value,” he said.

Brad Smith, a law professor at Capital University in Ohio and a former FEC chairman, agreed, saying that conversations with foreign nationals are not unlawful. But if those talks involve a foreign government agent going out and spending money to compile information on a candidate’s behalf, it could be, he said….

Nonetheless, Smith found Trump’s remarks troubling.

“I think it’s legitimate for Americans to be concerned that the president is perhaps too cavalier about foreign sources,” he said.

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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>


“The Historical Development of the U.S. Presidential Nominations Process”<https://electionlawblog.org/?p=105684>
Posted on June 20, 2019 4:14 pm<https://electionlawblog.org/?p=105684> by Rick Hasen<https://electionlawblog.org/?author=3>

Rick Pildes has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3393883&dgcid=ejournal_htmlemail_law:positive:political:theory:ejournal_abstractlink> on SSRN (Forthcoming in The Best Candidate: Presidential Nomination in Polarized Times (E. Mazo ed.)) Here is the abstract:

The presidential-candidate nomination process is increasingly a train wreck. Voters are now asked to sort through 15 -25 candidates. Celebrity and prior name recognition are just as important or moreso than high-level experience in government. The ability to raise small donations from 65,000 donors, mainly through the internet, has become a factor one party is now using in deciding which candidates are “serious” enough to be eligible to participate in the key candidate debates. The ability to achieve early success in a few (not particularly representative) states has dramatic affects on a candidate’s prospects.

How did we get to this point? This piece looks at the development of the contemporary presidential nominations process. We now take for granted that this is how we select nominees for the presidential election, but we have actually been using our current system only since the 1970s. This piece explores the context and reasons for those changes in the 1970s, and shows how much the current system came about almost as a matter of accident, rather than as the conscious plan of those who re-designed the selection process. This work also contrasts the current system with the way the nominations process had been designed until the 1970s — the system of political conventions. Seeking to rehabilitate the understanding of how that prior system worked, this piece illuminates the greater complexity and positive aspects of the convention nominating process.

The main aim of this work is to destabilize the notion that there is anything “natural” or inherent to democracy about the way we currently select nominees of the major parties for the presidency. This work is a chapter in a forthcoming 2020 book entitled The Best Candidate: Presidential Nomination in Polarized Times. The book reflects current unease with the nominations process and ideas about how critical element in our elections might be better designed.
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Posted in political parties<https://electionlawblog.org/?cat=25>, political polarization<https://electionlawblog.org/?cat=68>, primaries<https://electionlawblog.org/?cat=32>


“Are Republicans, DeSantis making campus early voting in Florida impossible?”<https://electionlawblog.org/?p=105682>
Posted on June 20, 2019 4:10 pm<https://electionlawblog.org/?p=105682> by Rick Hasen<https://electionlawblog.org/?author=3>

The Tampa Bay Times reports.<https://www.tampabay.com/florida-politics/buzz/2019/06/19/are-republicans-desantis-making-campus-early-voting-in-florida-impossible/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Three-Judge District Court Unanimously and Unsurprisingly Rejects Case Claiming House of Representatives Must Be Expanded to Almost 6,000 Representatives Because of Secret Amendment to the Constitution<https://electionlawblog.org/?p=105679>
Posted on June 20, 2019 4:07 pm<https://electionlawblog.org/?p=105679> by Rick Hasen<https://electionlawblog.org/?author=3>

See Lavergne v. U.S. House of Representatives<https://electionlawblog.org/wp-content/uploads/LaVergne.pdf>.

See my earlier coverage: Litigating to a Larger House of Representatives Based on a Secretly Ratified Constitutional Amendment?<https://electionlawblog.org/?p=99364>
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>


Gundy and Faulty Accountability Claims<https://electionlawblog.org/?p=105675>
Posted on June 20, 2019 8:26 am<https://electionlawblog.org/?p=105675> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

In his dissent in today’s decision in Gundy v. United States<https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf>, Justice Gorsuch repeatedly claims that excessive congressional delegation to agencies threatens to undermine congressional accountability. “[B]y directing that legislating be done only by elected representatives in a public process, the Constitution sought to ensure that the lines of accountability would be clear,” Justice Gorsuch writes. He adds that “[a]ccountability would suffer” if “Congress could pass off its legislative power to the executive branch.” Turning to the statute at issue, “[t]hen, too, there is the question of accountability.” “In passing this statute, Congress was able to claim credit for ‘comprehensively’ addressing the problem . . . while in fact leaving the Attorney General to sort it out.”

As I explained in a recent article<https://poseidon01.ssrn.com/delivery.php?ID=039009127112023125071113126080126006004043010035052042110121124108112109002006017026011054008027021002125018023084012015090090001043025043093124120089113095082064036048021085127075086089116115013113093020010112099108066001088025064007094102023106092&EXT=pdf>, these kinds of accountability claims–not only in the nondelegation context but also in cases about the President’s removal power, federal “commandeering” of state governments, and campaign spending–are unpersuasive. Their common flaw is that they assume that governmental actors are highly accountable to begin with, and that this accountability can be significantly affected (up or down) by the institutional arrangement that is adopted. The empirical evidence, though, is mostly to the contrary. Elected officials are never very accountable, as a result of voter ignorance, biased voter judgments, flawed voter attributions, and non-retrospective decision-making by voters. This modest quantum of accountability is also not particularly sensitive to the institutional configurations that are litigated in constitutional cases.

Take the sex offender statute at issue in Gundy. No matter what the law says, it is implausible that members of Congress are more than trivially accountable for its content. How many voters know about the provision? What proportion of them evaluate the measure impartially, unskewed by their general partisan leanings? What fraction are correctly able to attribute responsibility for the statute’s drafting and enactment? And what share are actually willing to cast their votes on this basis — as opposed to partisanship, personality, or the state of the economy? These questions answer themselves.

Assume, also, that the law avoided the nondelegation issue by including more definite guidelines for the Attorney General to use in registering sex offenders. It is hard to see how congressional accountability would be much higher. Most voters still (1) would not know about the provision; (2) would assess it in a biased manner based on their partisan priors; (3) would incorrectly attribute responsibility for its enactment; and (4) would vote for other reasons anyway. The point is that whatever drives congressional accountability, it’s not the specificity of the language that Congress uses in its legislation.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


No Census or redistricting cases from SCOTUS today<https://electionlawblog.org/?p=105676>
Posted on June 20, 2019 7:45 am<https://electionlawblog.org/?p=105676> by Justin Levitt<https://electionlawblog.org/?author=4>

Rick is otherwise engaged<https://judiciary.house.gov/legislation/hearings/lessons-mueller-report-part-ii-bipartisan-perspectives> at the moment, so I thought I’d send word: four opinions from SCOTUS this morning<https://www.scotusblog.com/>, but not the Census or redistricting cases. More opinions coming at 10am ET tomorrow.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, 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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