[EL] ELB News and Commentary 3/30/19

Sat Mar 30 12:47:39 PDT 2019

This entire exchange highlights the problem of policy masquerading as law, to which, in the area of First Amendment law, even the great Justice Scalia occasionally succumbed. Given the morass of First Amendment precedents, it’s hard not to.

Sent from my iPhone

On Mar 30, 2019, at 3:30 PM, Elias, Marc (Perkins Coie) <MElias at perkinscoie.com<mailto:MElias at perkinscoie.com>> wrote:

Your hero, Justice Scalia, dissented there as well:

“But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debate which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers of the past few national elections have expressed concern about the increase of character assassination-"mudslinging" is the colloquial term-engaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office.
Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for "dirty tricks." It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents' supporters (a violation of election laws) in order to attract or alienate certain interest groups. See, e. g., B. Felknor, Political Mischief: Smear, Sabotage, and Reform in U. S. Elections 111-112 (1992) (fake United Mine Workers' newspaper assembled by the National Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the "Action Committee for the Liberal Party" sent by Republicans). How much easier-and sanction free-it would be to circulate anonymous material (for example, a really tasteless, though not actionably false, attack upon one's own candidate) with the hope and expectation that it will be attributed to, and held against, the other side.”

--
Marc E. Elias
Perkins Coie LLP
700 13th St, NW
Washington, DC 20005
202-434-1609
melias at perkinscoie.com<mailto:melias at perkinscoie.com>
@marceelias<https://twitter.com/marceelias>

For scheduling assistance, or if its urgent, contact Allie Rothenberg: ARothenberg at perkinscoie.com<mailto:ARothenberg at perkinscoie.com> or 908-377-7531.

From: Benjamin Barr <benjamin.barr at gmail.com<mailto:benjamin.barr at gmail.com>>
Date: Saturday, March 30, 2019 at 3:22 PM
To: Marc Elias <MElias at perkinscoie.com<mailto:MElias at perkinscoie.com>>
Cc: "Smith, Brad" <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>, Richard Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] ELB News and Commentary 3/30/19

Marc,

“Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill, On Liberty, in On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed.)” McIntyre v. Ohio Elections Commission.

Forward,

Benjamin Barr
Sent from my iPhone

On Mar 30, 2019, at 2:08 PM, Elias, Marc (Perkins Coie) <MElias at perkinscoie.com<mailto:MElias at perkinscoie.com>> wrote:
“There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
--Doe v. Reed, (Scalia, J. concurring).

--
Marc E. Elias
Perkins Coie LLP
700 13th St, NW
Washington, DC 20005
202-434-1609
melias at perkinscoie.com<mailto:melias at perkinscoie.com>
@marceelias<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_marceelias&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=gX7P3v7F-P9nJqlUqTnZMGqfgmvhgUPyjZgB0vhWtH4&s=Rx8H8wzuCj4fGUzvPwpM8RMvVnLNLSa6Nr00hYehf-k&e=>

For scheduling assistance, or if its urgent, contact Allie Rothenberg: ARothenberg at perkinscoie.com<mailto:ARothenberg at perkinscoie.com> or 908-377-7531.

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Smith, Brad" <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Date: Saturday, March 30, 2019 at 3:05 PM
To: Richard Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] ELB News and Commentary 3/30/19

This is all very reassuring to those who care about actually keeping their privacy in a world of growing political harassment.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx<https://urldefense.proofpoint.com/v2/url?u=http-3A__law.capital.edu_faculty_bios_bsmith.aspx&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=K9h-VlL37GFGY_t1CfemD7kgi3pltYjFNqX8QSzVpKM&e=>

________________________________
From: Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Saturday, March 30, 2019 2:06 PM
To: Smith, Brad; Election Law Listserv
Subject: Re: [EL] ELB News and Commentary 3/30/19
I think the headline is completely fair because the HOLDING of the court is about the right of California to collect information in Schedule B’s NOT for public disclosure.

Here’s what the dissenters said on the question of inadvertent disclosure:

First, the district court held that disclosure of the Schedule B information to the state could result in the names of the Foundation’s donors being released to the public. See Ams. for Prosperity Found., 182 F. Supp. 3d at 1057. The district court squarely rejected the state’s argument that no AFP V. BECERRA 19 donor information disclosed to the state would be publicly disclosed because it would remain confidential on the state’s servers. See id. The evidence produced at trial in this case provided overwhelming support for the court’s findings. There was ample evidence of human error in the operation of the state’s system. State employees were shown to have an established history of disclosing confidential information inadvertently, usually by incorrectly uploading confidential documents to the state website such that they were publicly posted. Such mistakes resulted in the public posting of around 1,800 confidential Schedule Bs, left clickable for anyone who stumbled upon them. AFPF II, 903 F.3d at 1018. And the public did find them. For instance, in 2012 Planned Parenthood become aware that a complete Schedule B for Planned Parenthood Affiliates of California, Inc., for the 2009 fiscal year was publicly posted; the document included the names and addresses of hundreds of donors. There was also substantial evidence that California’s computerized registry of charitable corporations was shown to be an open door for hackers. In preparation for trial, the plaintiff asked its expert to test the security of the registry. He was readily able to access every confidential document in the registry—more than 350,000 confidential documents—merely by changing a single digit at the end of the website’s URL. See AFPF II, 903 F.3d at 1018. When the plaintiff alerted California to this vulnerability, its experts tried to fix this hole in its system. Yet when the expert used the exact same method the week before trial to test the registry, he was able to find 40 more Schedule Bs that should have been confidential

Here was the panel’s response to this point:

Ultimately, because California, like the federal government and other states, requires only the nonpublic disclosure of Schedule B information, we did not need to decide whether, in the event of public disclosure of the Schedule B information, the plaintiffs’ Schedule B contributors were likely to encounter threats, harassment or reprisals. See id. at 1017. We acknowledged the risk of inadvertent public disclosure based on past confidentiality lapses by the state. See id. at 1018. We explained, however, that “[t]he state’s past confidentiality lapses [were] of two varieties: first, human error when Registry staff miscoded Schedule B forms during uploading; and second, a software vulnerability that failed to block access to a plaintiff’s expert as he probed the Registry’s servers for flaws during this litigation.” Id. at 1018. We explained that the software problem stemmed from a third-party vendor, had been “quickly remedied” and was not “likely to recur.” Id. With respect to the problem of human error, we explained that the Registry Unit has implemented stronger protocols to prevent human error. It has implemented “procedural quality checks . . . to sample work as it [is] being performed” and to ensure it is “in accordance with procedures on handling documents and [indexing them] prior to uploading.” It has further implemented a system of text-searching batch uploads before they are scanned to the Registry site to ensure none contains Schedule B keywords. At the time of trial in 2016, the Registry Unit had halted batch uploads altogether in favor of loading each document individually, as it was refining the text-search system. After forms are loaded to the Registry, the Charitable Trusts Section runs an automated weekly script to identify and remove any documents that it had inadvertently misclassified as public. There is also no dispute that the Registry Unit immediately removes any information that an organization identifies as having been misclassified for public access. Id. There was no evidence that these “cybersecurity protocols are deficient or substandard as compared to either the industry or the IRS, which maintains the same confidential information.” Id. at 1019. We also emphasized that we were addressing an as-applied challenge. See id. The key question, therefore, was not whether there was a “risk of inadvertent disclosure of any Schedule B information in the future,” but rather whether there was a significant “risk of inadvertent disclosure of the plaintiffs’ Schedule B information in particular.” Id. There can be no question that this risk – which the district court failed to consider – is exceedingly small, so the plaintiffs did not show “a reasonable probability that the compelled disclosure of [their major] contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Buckley, 424 U.S. at 74. The state’s interest in obtaining the plaintiffs’ Schedule B information therefore was sufficient under Doe to justify the modest burden on First Amendment rights. See AFPF II, 903 F.3d at 1019.

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Smith, Brad" <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Date: Saturday, March 30, 2019 at 10:28 AM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] ELB News and Commentary 3/30/19

The headline below is very misleading, because as the lower court found--and this is undisputed--in fact thousands of non-profits had this information made public thorugh those "California Regulators." Their is no penalty under state law even for intentional release of the information, let alone negligent release, and no way to collect damages from the state for release of the information.

A problem headline would have stated "
(Information MADE Public)<https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252felectionlawblog.org-252f-253fp-253d104451-26c-3DE-2C1-2Cvk0L2QWK4c6CZxD8p1sed2NBCNzZFUw0VLqV2f2CoSl4y97Pf-5F7No8kMRKKTWy2UykzvW5tzjhI56vjqfnNYBjElXVMSwID2T8g9VEukM1wnQw0rsq8adt-2DBEQ-2C-2C-26typo-3D1&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=Q3wdMW8CbnY_114ePKJCLIYz9FOJlQjtW2FcIaMUH5o&e=>"

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx<https://urldefense.proofpoint.com/v2/url?u=http-3A__law.capital.edu_faculty_bios_bsmith.aspx&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=K9h-VlL37GFGY_t1CfemD7kgi3pltYjFNqX8QSzVpKM&e=>

________________________________

Ninth Circuit, with 5 Dissents, Declines Rehearing en Banc in Case Where Koch Brothers’ AFP Tried to Block Donor Information from California Regulators (Information NOT Made Public)<https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252felectionlawblog.org-252f-253fp-253d104451-26c-3DE-2C1-2Cvk0L2QWK4c6CZxD8p1sed2NBCNzZFUw0VLqV2f2CoSl4y97Pf-5F7No8kMRKKTWy2UykzvW5tzjhI56vjqfnNYBjElXVMSwID2T8g9VEukM1wnQw0rsq8adt-2DBEQ-2C-2C-26typo-3D1&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=Q3wdMW8CbnY_114ePKJCLIYz9FOJlQjtW2FcIaMUH5o&e=>
Posted on March 29, 2019 1:20 pm<https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252felectionlawblog.org-252f-253fp-253d104451-26c-3DE-2C1-2CUVRblEYJolGYmu54kVfTlbq0qkFa-5FYG64hRXBC8xPR0YGeLvJ1UaHzz-5FsTs4lWc3pQAIOoITrjtzZm623Lh6XV3BaFVmwdDcgUgxUyWkCc8l9TwLeGe4hrZXY-5FQ9-26typo-3D1&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=2lPMKFySh718V0HnEf7w2caV63oXCqQg_38_BYV83zM&e=> by Rick Hasen<https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252felectionlawblog.org-252f-253fauthor-253d3-26c-3DE-2C1-2CafWlUBQYg7zreH8zWIgeKdh-5FxzIY586xRR0tofhezUtJtmdC0N4LM-2Drn3NGjeeNy3LkAnS1kjLomKxZv8RXA5a1aMjycJ4P85Tb-2DIZ-5FoCT4-2C-26typo-3D1&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=cLWBulfIeCk5wLar4llgZak-bL_920wCkz6QhSbNXJc&e=>

Judge Ikuta’s dissent and a response from the panel majority are available at this link<https://urldefense.proofpoint.com/v2/url?u=http-3A__cdn.ca9.uscourts.gov_datastore_opinions_2019_03_29_16-2D55727.pdf&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=lCOV4hnhrv5Z8LR7gfYT-9PS2-5e-g_iA_SEFJDUT3Y&e=>.

I have little doubt that AFP will try next at the Supreme Court.

(via Bloomberg USLW<https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252fwww.bloomberglaw.com-252fexp-252feyJjdHh0IjoiTFdOVyIsImlkIjoiMDAwMDAxNjktY2E4Ni1kOWZhLWEzNmItY2ZmZmE5MzEwMDAyIiwic2lnIjoiYkhRQjF2L0F5VVErUy9aRWthcWdWa08rSncwPSIsInRpbWUiOiIxNTUzODkwMDA1IiwidXVpZCI6Ik5VQTNJOUFVbldDSDRydnBmU2Z0OXc9PXFialViOEtBRnZ3M1BhaU9sVlU2V0E9PSIsInYiOiIxIn0-253d-253fusertype-253dExternal-2526bwid-253d00000169-2Dca86-2Dd9fa-2Da36b-2Dcfffa9310002-2526qid-253d6334164-2526cti-253dLSCH-2526uc-253d1320041183-2526et-253dCURATED-5FHIGHLIGHTS-2526emc-253dblwnw-5Fhlt-253a8-2526context-253demail-2526email-253d00000169-2Dc996-2Dd33f-2Dabeb-2De9f6668a0001-26c-3DE-2C1-2CGSK8G7sk9iXDd3nwNFEVlqsks2dULObObIIsObiT8RJ16QWtGLhoDOlpcBzuLA8Rxru0T9GizdyrhTPji-2DYOSvKbEibgVKW0Bq6rpvufpw-2C-2C-26typo-3D1&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=fP9GrwZXJ7We18s6M3Wo1uwirdZLLIcb065d_UFhxi4&e=>).
<image001.png><https://urldefense.proofpoint.com/v2/url?u=https-3A__www.addtoany.com_share-23url-3Dhttps-253A-252F-252Felectionlawblog.org-252F-253Fp-253D104451-26title-3DNinth-2520Circuit-252C-2520with-25205-2520Dissents-252C-2520Declines-2520Rehearing-2520en-2520Banc-2520in-2520Case-2520Where-2520Koch-2520Brothers-25E2-2580-2599-2520AFP-2520Tried-2520to-2520Block-2520Donor-2520Information-2520from-2520California-2520Regulators-2520-28Information-2520NOT-2520Made-2520Public-29&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=b0wIEP4TDSH7CFaREuD_9Y2qoPRca1zrOPw1v3HkFFc&e=>
Posted in campaign finance<https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-253a-252f-252felectionlawblog.org-252f-253fcat-253d10-26c-3DE-2C1-2CRyFm5OnM3WxHOl0fKD7gtd02E2hok73bmDfizFckGkjal7xAHjHBHumfXsXAyYRtCfSPqbkQEhA2mhQ-5Ffqg2Xxqb8imf5I4zDCKidXB5f9OrbQ-2C-2C-26typo-3D1&d=DwMF-g&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=FhWavJ54tjUNlxVaXtTLrX4rFi2YmMC-Rqi2eWx7aUA&s=NMHdryjL4qPFiOirWDss1oAvpjAPw-ekl5CMW_DTxNg&e=>

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