[EL] ELB News and Commentary 3/19/19

Tue Mar 19 07:42:56 PDT 2019

“Lobbying Case Against Democrat With Ties to Manafort Reaches Key Stage”<https://electionlawblog.org/?p=104261>
Posted on March 19, 2019 7:35 am<https://electionlawblog.org/?p=104261> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/03/18/us/politics/foreign-lobbying-gregory-craig-manafort.html>

A long-running federal investigation into a former White House counsel in the Obama administration is reaching a critical stage, presenting the Justice Department with a decision about whether to charge a prominent Democrat as part of a more aggressive crackdown on illegal foreign lobbying.

The case involving the lawyer, Gregory B. Craig, was transferred in January from federal prosecutors in New York to those in Washington. The previously undisclosed move was driven by Justice Department officials in Washington, and reflects an eagerness within the department to prosecute violations of lobbying laws after the special counsel, Robert S. Mueller III, focused on foreign influence in his investigations.

A decision about whether to prosecute Mr. Craig, who was White House counsel for President Barack Obama during his first year in office<https://thecaucus.blogs.nytimes.com/2009/11/13/craig-resigns-as-white-house-counsel/>, is expected in the coming weeks, people familiar with the case said. The investigation centers on whether Mr. Craig should have disclosed work he did in 2012 — while he was a partner at Skadden, Arps, Slate, Meagher & Flom — on behalf of the Russia-aligned government of Viktor F. Yanukovych, then the president of Ukraine.
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Posted in lobbying<https://electionlawblog.org/?cat=28>

“Elizabeth Warren wants to kill the electoral college”<https://electionlawblog.org/?p=104259>
Posted on March 19, 2019 7:32 am<https://electionlawblog.org/?p=104259> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/2019/03/19/elizabeth-warren-wants-kill-electoral-college/?utm_term=.f47d73068b06>

Sen. Elizabeth Warren (D-Mass.) on Monday endorsed ending the electoral college, arguing for a system where “every vote matters.”
Many Democrats, including Warren, have disparaged the electoral college following the presidential election results in 2000 and 2016, when Al Gore and Hillary Clinton both won the national popular vote, yet lost the electoral college vote and, as a result, the presidency

.
The announcement from Warren, a candidate for the Democratic presidential nomination, came during an hour-long town hall at Mississippi’s Jackson State University and amid a wave of (blue-leaning) state action to do the same.
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Posted in electoral college<https://electionlawblog.org/?cat=44>

“How Executives Vote With Their Wallets”<https://electionlawblog.org/?p=104256>
Posted on March 19, 2019 7:29 am<https://electionlawblog.org/?p=104256> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT Dealbook<https://www.nytimes.com/2019/03/19/business/dealbook/executives-political-contributions.html>:

So a team of Harvard professors set out to find the political inclinations of top executives — not just the 200 who make up the Business Roundtable, but all the executives of the S&P 1500, a stock index that covers 90 percent of the United States’ market capitalization.

Rather than look at party affiliation or public statements, the researchers — Alma Cohen, Moshe Hazan, Roberto Tallarita and David Weiss — looked at the truest measure of political leanings: They followed the money.

For the study, to be released Tuesday, they tracked personal political contributions for more than 3,500 chief executives that occupied the corner office anytime from 2000 to 2017. The period covers a two-term Republican presidency, a two-term Democratic presidency and the start of President Trump’s time in office — after he lost the popular vote but won the Electoral College. In other words, on the whole, voters have been pretty evenly divided between the parties in that time.

But just 18.4 percent of the executives studied were designated as Democrats. The clear majority — 57.7 percent — demonstrated their affiliation through donations to the Republican Party. Indeed, 75 percent of donations from the median chief executive were directed to Republicans.

To be counted a supporter of Republicans or Democrats, executives had to direct at least two-thirds of their donations to candidates affiliated with one party. More than a quarter of the executives studied gave enough to both parties to be classified as “neutral.” This was the landing spot of Tim Cook, the chief executive of Apple. Despite his public support for Hillary Clinton in the last election and his backing of a number of progressive causes, he frequently gave money to candidates on both sides of the aisle.

(Unfortunately, the researchers have not disclosed how they classified each executive, saying they wanted to focus on the whole, and not the parts. When I asked for an example, they provided me with Mr. Cook.)

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

“Ross’s census sabotage was ‘arbitrary,’ ‘capricious’ and ‘cynical,’ says a federal judge”<https://electionlawblog.org/?p=104254>
Posted on March 19, 2019 7:26 am<https://electionlawblog.org/?p=104254> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo editorial.<https://www.washingtonpost.com/opinions/rosss-census-sabotage-was-arbitrary-capricious-and-cynical-says-a-federal-judge/2019/03/18/086513d4-41bf-11e9-9361-301ffb5bd5e6_story.html?utm_term=.20b6deb40653&wpmk=MK0000200>
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Posted in census litigation<https://electionlawblog.org/?cat=125>

“New Report Surveys Speech-Chilling Statutes Across the Country”<https://electionlawblog.org/?p=104252>
Posted on March 19, 2019 7:25 am<https://electionlawblog.org/?p=104252> by Rick Hasen<https://electionlawblog.org/?author=3>

IFS<https://www.ifs.org/news/new-report-surveys-speech-chilling-statutes-across-the-country/>:

The Institute for Free Speech today published a first-of-its-kind survey of campaign speech regulations and grassroots lobbying laws that implicate First Amendment freedoms.

The survey looks at state laws in twelve distinct policy areas, ranging from electioneering communications statutes to disclaimer rules to false statement laws. These statutes all have the potential effect of chilling speech and association.

“States regulate speech about government through a labyrinth of laws that often make it nearly impossible for average citizens to participate,” said Institute for Free Speech Senior Fellow and survey author Eric Wang.” This document is the first of its kind to attempt to pierce that veil. Would-be speakers will now at least be aware of the pitfalls they face.”

By illuminating the many ways states regulate activity related to speech and association, the Institute for Free Speech hopes to give policymakers a guide to the obstacles facing First Amendment-friendly policies.
“We hope this survey will be a useful resource for public policy advocates, litigators, and legislators,” said IFS Research Director Scott Blackburn.” When defending your First Amendment rights, the first step is knowing the current state of the law.”

To read the introduction to the survey, click here<https://www.ifs.org/research/a-survey-of-campaign-finance-and-lobbying-laws-in-the-50-states-district-of-columbia-new-york-city-and-seattle/>. To receive the full survey, please fill out the brief form at the bottom of the page.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, lobbying<https://electionlawblog.org/?cat=28>

Tenth Circuit Panel in Oral Argument in Fish v. Schwab (was: Fish v. Kobach) Seems Skeptical of Kansas’s Attempt to Reverse District Court’s Block of Kansas’s Documentary Proof of Citizenship Law<https://electionlawblog.org/?p=104246>
Posted on March 18, 2019 5:12 pm<https://electionlawblog.org/?p=104246> by Rick Hasen<https://electionlawblog.org/?author=3>

You can listen to the oral argument here<https://www.ca10.uscourts.gov/oralarguments/18/18-3133.MP3>.

With the caveat that one never knows how to read oral argument, and judges can change their minds before issuing an opinion, here are some thoughts:

The judges seemed to believe that the law provided a great burden on the plaintiffs without any good reason put forward by Kansas. Judge Holmes seemed somewhat skeptical of the evidence of the burden proven on the plaintiffs as well as standing on the constitutional claim. He thought some of the burden came from Kansas’s bureaucratic bungling, and not from the law itself. But it was not clear exactly where he stood on the constitutional question.

(The discussion of bureaucratic bungling reminded me of what happened with Pennsylvania’s voter id law. The state was so bad at using its motor vehicle department to get people id, the courts found Pennsylvania inadequately did its job, and Pa. eventually gave up trying to defend and implement its law.)

Importantly, the court focused its argument on the constitutional question, rather than on whether the Kansas law was preempted by the federal NVRA law. There was little discussion of the statutory claim, which suggests to me that plaintiffs are likely to win on at least that claim (which they won on in the court below). There was no discussion, for example, of the trial court’s conclusion that non-citizen voting and voter fraud was a minuscule problem in Kansas, and that DPOC would not be justified then to allow Kansas to enforce its voter qualification grounds.

At the very end, Judge Holmes asked about the difference between striking down the law on constitutional grounds versus NVRA grounds. The state lawyer suggested that striking it down on constitutional grounds, it would cover everyone in Kansas as well as for federal and purely state grounds. An NVRA holding might not cover everyone and would not apply to state elections.

So it may be that the court will decide this on constitutional grounds and not even reach the NVRA issue (if it sides with plaintiffs.) Judges Holmes and Briscoe were on the original panel<https://www.ca10.uscourts.gov/opinions/16/16-3147.pdf> finding a likely violation of the NVRA.

Note: This post has been updated and corrected.
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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>

DOJ Wants Supreme Court to Grant and Hold the CA Census Citizenship Question Case Pending Outcome of the New York Case<https://electionlawblog.org/?p=104244>
Posted on March 18, 2019 4:31 pm<https://electionlawblog.org/?p=104244> by Rick Hasen<https://electionlawblog.org/?author=3>

If the Supreme Court agreed, this would mean the the Enumerations Clause issue, which was not reached in the NY case but was decided in the CA case, would be decided in the NY case only. That would mean no new set of briefing on the issue in the CA case. (Presumably parties in the CA case could file amicus briefs on the issue in the NY case.) In the alternative, DOJ wants the case set for a hearing. What it doesn’t want is for the case to go to the Ninth Circuit.
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<https://twitter.com/hansilowang/status/1107757902322978816>

UPDATE: Trump admin formally asks #SCOTUS<https://twitter.com/hashtag/SCOTUS?src=hash> for sped-up review of #2020Census<https://twitter.com/hashtag/2020Census?src=hash> #CitizenshipQuestion<https://twitter.com/hashtag/CitizenshipQuestion?src=hash> ruling out of CA that bypasses 9th Circuit. SCOTUS to hear arguments on NY ruling & constitutional issue on April 23. DOJ says SCOTUS can combine CA & NY cases or review CA after NY[👇]
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Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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Posted in census litigation<https://electionlawblog.org/?cat=125>, Department of Justice<https://electionlawblog.org/?cat=26>, Supreme Court<https://electionlawblog.org/?cat=29>

Florida: “Amendment 4 advocates criticize Florida House bill that adds restrictions to felon voting rights”<https://electionlawblog.org/?p=104242>
Posted on March 18, 2019 2:27 pm<https://electionlawblog.org/?p=104242> by Rick Hasen<https://electionlawblog.org/?author=3>

Orlando Sentinel:<https://www.orlandosentinel.com/news/politics/political-pulse/os-ne-amendment-4-implementation-bill-20190318-story.html>

A bill to be considered Tuesday in a Florida House committee would create new obstacles to restoring ex-felons’ voting rights mandated by Amendment 4, activists said Monday.

The House Criminal Justice Committee’s bill<https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3023&Session=2019&DocumentType=Proposed%20Committee%20Bills%20(PCBs)&FileName=PCB%20CRJ%2019-03.pdf> is the culmination of months of arguments about whether Amendment 4, which passed in November with almost 65 percent of the vote, would be watered down by the Legislature – or even whether lawmakers needed to pass any implementation bill at all.

The bill “is an affront to Florida voters,” said Kirk Bailey, political director for the ACLU of Florida, who said it was “overbroad, vague, [and] thwarts the will of the people … This is exactly what we were worried about from the beginning.”

Advocates’ worries began after Gov. Ron DeSantis said in December that the amendment shouldn’t take effect until the Legislature clarified some of its language. The ACLU and the Florida Rights Restoration Commission, the Orlando-based group that led the push for the amendment, have both argued the amendment was self-implementing and needed no such law.

Despite DeSantis’s comments, former felons have been registering to vote since the amendment took effect on Jan. 8.
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Posted in felon voting<https://electionlawblog.org/?cat=66>

“US Supreme Court denies hearing Ron Paul 2012 aides’ appeal”<https://electionlawblog.org/?p=104240>
Posted on March 18, 2019 12:49 pm<https://electionlawblog.org/?p=104240> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://www.washingtonpost.com/national/us-supreme-court-denies-hearing-ron-paul-2012-aides-appeal/2019/03/18/b65d3a58-49ac-11e9-8cfc-2c5d0999c21e_story.html?utm_term=.2fcab7202e6e>:

The U.S. Supreme Court has declined to hear an appeal of the felony convictions of three top staffers on Ron Paul’s 2012 presidential campaign.

Campaign chairman Jesse Benton, campaign manager John Tate and deputy campaign manager Dimitri Kesari were convicted in 2016 of causing false records and campaign expenditure reports to be filed to the Federal Election Commission.

Prosecutors say the trio tried to hide $73,000 in payments to former Iowa Sen. Kent Sorenson for his endorsement of Paul.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>

“Supreme Court Weighs Race Challenge to Virginia Voting Map”<https://electionlawblog.org/?p=104238>
Posted on March 18, 2019 11:48 am<https://electionlawblog.org/?p=104238> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT reports<https://www.nytimes.com/2019/03/18/us/politics/supreme-court-virginia-voting-map.html> on today’s Bethune-Hill II oral argument.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

Supreme Court Posts Transcript of Argument in Today’s Bethune-Hill Case (Va. Racial Gerrymandering)<https://electionlawblog.org/?p=104236>
Posted on March 18, 2019 10:14 am<https://electionlawblog.org/?p=104236> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the transcript here<https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-281_197d.pdf>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

Government Must Reveal Names of People Mentioned in Partially Redacted von Spakovsky Email on Voter Fraud Commission; Some Speculation<https://electionlawblog.org/?p=104234>
Posted on March 18, 2019 10:12 am<https://electionlawblog.org/?p=104234> by Rick Hasen<https://electionlawblog.org/?author=3>

The court’s order and opinion is here<https://campaignlegal.org/sites/default/files/2019-03/CLC%20v.%20DOJ%20-%20Decision%20%26%20Opinion%20Memo_0.pdf>.

I expect two of the three names released on this email will be Christian Adams and Donald Palmer (now on the EAC).

We’ll see soon enough if that’s correct.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>

“Kansas hopes to resurrect proof-of-citizenship voting law championed by Kobach”<https://electionlawblog.org/?p=104231>
Posted on March 18, 2019 8:21 am<https://electionlawblog.org/?p=104231> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<http://www2.ljworld.com/news/state-government/2019/mar/18/kansas-hopes-to-resurrect-proof-of-citizenship-voting-law-championed-by-kobach/>:

A federal appeals court will hear arguments Monday over the constitutionality of a struck-down Kansas law that required people to provide documents proving their U.S. citizenship before they could register to vote.

In a case with national implications for voting rights, Kansas faces an uphill battle to resurrect the law once championed by former Kansas Secretary of State Kris Kobach , who led President Donald Trump’s now-defunct voter fraud commission.

A three-judge panel of the 10th Circuit Court of Appeals temporarily blocked Kobach in 2016 from fully enforcing the law, calling it “a mass denial of a fundamental constitutional right.” The issue is back before the appellate court after U.S. District Judge Julie Robinson struck it down last year and made permanent the earlier injunction.

“Kansas was the tip of the spear of an effort to make it harder for people to register under the guise of protecting elections from a nonexistent epidemic of noncitizen voting. Those efforts haven’t stopped as this case illustrates, and I think this case will be closely watched,” said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter registration<https://electionlawblog.org/?cat=37>

“Partisan Gerrymandering Returns to a Transformed Supreme Court”<https://electionlawblog.org/?p=104229>
Posted on March 18, 2019 8:04 am<https://electionlawblog.org/?p=104229> by Rick Hasen<https://electionlawblog.org/?author=3>

Adam Liptak NYT Sidebar column<https://www.nytimes.com/2019/03/18/us/politics/gerrymandering-supreme-court.html>.
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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
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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