[EL] ELB News and Commentary 5/1/19

[Rick Hasen]

DOJ’s John Gore and Maureen Riordan Must Search Private Email Accounts for Emails Related to Trump’s Now-Defunct Voter Fraud Commission<https://electionlawblog.org/?p=104955>
Posted on May 1, 2019 7:44 am<https://electionlawblog.org/?p=104955> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center FOIA lawsui<https://www.courtlistener.com/recap/gov.uscourts.nysd.479378/gov.uscourts.nysd.479378.99.0.pdf>t (via Sam Levine<https://twitter.com/srl/status/1123365633842978816>).
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Posted in Department of Justice<https://electionlawblog.org/?cat=26>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“After Backlash, Personal Voter Information Is Removed by New York City”<https://electionlawblog.org/?p=104953>
Posted on May 1, 2019 7:37 am<https://electionlawblog.org/?p=104953> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/04/30/nyregion/nyc-personal-voter-information-election-board.html>:

Bowing to fierce criticism from elected officials and privacy advocates, the New York City Board of Elections has removed the voter enrollment books that it had posted online<https://www.nytimes.com/2019/04/26/nyregion/voter-registration-nyc-online.html?module=inline>, which had included every registered voter’s full name, party affiliation and home address.

The books, spanning thousands of pages in searchable PDF format, were quietly posted in February, the first time they had been available on the Board of Elections website. Officials said the online publication was necessary given changes to election law at the state level.

But after a series of news reports regarding the decision, some election and privacy experts warned that it could make sensitive personal information too readily available. And officials including Gov. Andrew M. Cuomo, Mayor Bill de Blasio and the New York City Council speaker, Corey Johnson, warned that the decision to publish the books could undermine public trust in the electoral process and jeopardize the security of voter information.

By Tuesday, the voter rolls had been removed from the Board of Elections’ website. Michael Ryan, the board’s executive director, said the board had made the decision during a conference call on Monday, partly in response to public outrage following the media reports.

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Posted in election administration<https://electionlawblog.org/?cat=18>


Gillibrand Endorses Campaign Finance Vouchers<https://electionlawblog.org/?p=104951>
Posted on May 1, 2019 7:34 am<https://electionlawblog.org/?p=104951> by Rick Hasen<https://electionlawblog.org/?author=3>

My former law school classmate and presidential candidate Kirsten Gillibrand has endorsed the concept<https://www.nbcnews.com/politics/2020-election/democracy-dollars-gillibrand-s-plan-give-every-voter-600-donate-n1000381> of campaign finance vouchers.

I wonder if she ever read my 1996 California Law Review article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1961263> laying out the argument for them.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


“GOP appeals Michigan gerrymandering ruling to Supreme Court”<https://electionlawblog.org/?p=104949>
Posted on April 30, 2019 2:26 pm<https://electionlawblog.org/?p=104949> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/local/michigan/2019/04/30/gop-appeals-michigan-gerrymandering-ruling-to-supreme-court/3629983002/>

Michigan legislative and congressional Republicans are asking the U.S. Supreme Court to reverse a blockbuster ruling<https://www.detroitnews.com/story/news/politics/2019/04/25/michigan-gerrymandering/3576663002/> that the state’s political maps must be redrawn because of an unconstitutional gerrymander of “historical proportions.”

Attorneys for GOP lawmakers on Tuesday filed notices of appeal with the U.S. District Court in Detroit, where a three-judge panel last week ordered officials to create new boundaries for at least 34 state House, Senate and congressional districts.

The brief notices did not include arguments for the appeal, which would be filed separately with the U.S. Supreme Court. Attorneys are also expected to seek a “stay” delaying the panel ruling while the nation’s highest court considers separate gerrymandering cases out of North Carolina and Maryland.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


“GOP Advances Bill That Could Let Missouri Exclude Non-Citizens From Redistricting”<https://electionlawblog.org/?p=104947>
Posted on April 30, 2019 2:02 pm<https://electionlawblog.org/?p=104947> by Rick Hasen<https://electionlawblog.org/?author=3>

TPM<https://talkingpointsmemo.com/muckraker/gop-advances-bill-that-could-let-missouri-exclude-non-citizens-from-redistricting>:

The Missouri legislature moved one step closer on Monday<http://www.newstribune.com/news/local/story/2019/apr/30/house-endorses-constitutional-amendment-to-undo-part-of-clean-missouri/776619/> to putting on the ballot a measure that would gut an anti-gerrymandering initiative passed by voters last year. The proposal, if it becomes law, would set the stage for the state to exclude non-citizens from its redistricting process, kicking off a major legal battle over who deserves political representation in the country.


The Missouri House passed the ballot measure<http://www.newstribune.com/news/local/story/2019/apr/30/house-endorses-constitutional-amendment-to-undo-part-of-clean-missouri/776619/> out of its chamber Monday. The vote was  104-49, with eight Republicans opposing.
It moves now to the state Senate, and if passed there, it will need final approval from voters in the 2020 election.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Thoughtful Review of My Scalia Book by Christopher Krewson in the Law and Politics Book Review<https://electionlawblog.org/?p=104945>
Posted on April 30, 2019 1:15 pm<https://electionlawblog.org/?p=104945> by Rick Hasen<https://electionlawblog.org/?author=3>


THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION<http://www.lpbr.net/2019/04/the-justice-of-contradictions-antonin.html>, by Richard L. Hasen.

Reviewed by Christopher N. Krewson, Claremont Graduate University.
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Posted in Scalia<https://electionlawblog.org/?cat=123>
“Does State Online Voter Registration Increase Voter Turnout?”<https://electionlawblog.org/?p=104943>
Posted on April 30, 2019 1:03 pm<https://electionlawblog.org/?p=104943> by Rick Hasen<https://electionlawblog.org/?author=3>

Jinhai Yu<https://onlinelibrary.wiley.com/doi/10.1111/ssqu.12598#.XMihPlFCjcA.email> writes for Social Science Quarterly. From the abstract:

The results of this study demonstrate that state online voter registration increases voter turnout. The difference‐in‐difference analysis shows that the states’ implementation of online voter registration increases the turnout of young voters by about 3 percentage points in presidential election years. The instrumental variable analysis shows that the usage of online registration by voters increases their turnout by about 18 to 20 percentage points.
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Posted in voter registration<https://electionlawblog.org/?cat=37>


New Jersey: “Bergen election officials ignored notice of voter fraud”<https://electionlawblog.org/?p=104941>
Posted on April 30, 2019 10:09 am<https://electionlawblog.org/?p=104941> by Rick Hasen<https://electionlawblog.org/?author=3>

NJ Globe:<https://newjerseyglobe.com/local/bergen-election-officials-ignored-notice-of-voter-fraud/>

County election officials were told about allegations of vote-by-mail improprieties in Elmwood Park two months before the November 2018 general election but did nothing to investigate at the time, the New Jersey Globe has learned.

“I have become aware of serious concerns regarding alleged improper actions in the handling of Vote-by-Mail applications, voter certifications and completed ballots, during the 2017 elections,” John J. Piserchia, an attorney for the Republican borough council candidates, wrote to mayor Francisco Caramagna on September 6, 2018, putting him on notice as to the legal requirements of mail-in ballot applications.

Piserchia sent copies of his letter to the Bergen County Board of Elections and the director of the state Division of Elections.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Gerrymandering lawsuit stunner: Daughter of deceased GOP mapmaker turns over his documents to Common Cause”<https://electionlawblog.org/?p=104939>
Posted on April 30, 2019 10:07 am<https://electionlawblog.org/?p=104939> by Rick Hasen<https://electionlawblog.org/?author=3>

NC Policy Watch:<http://www.ncpolicywatch.com/2019/04/30/gerrymandering-lawsuit-stunner-daughter-of-deceased-gop-mapmaker-turns-over-his-documents-to-common-cause/>

The daughter of late GOP mapmaker Thomas Hofeller – the man responsible for some of North Carolina’s most infamous gerrymanders – turned over four of his external hard drives and 18 thumb drives after his death to the plaintiffs suing North Carolina lawmakers.
Stephanie Hofeller Lizon gave the documents to attorneys in March, a month after she was issued a subpoena in the state partisan gerrymandering case Common Cause v. Lewis<https://www.commoncause.org/north-carolina/resource/common-cause-v-lewis/>. No one objected to the subpoena initially, but Phil Strach, who represents the lawmakers in the case, is objecting to the plaintiffs’ decision to refrain from opening Hofeller’s sensitive tax and medical documents and to withhold them from the other parties to the litigation.

A three-judge Superior Court panel assigned to the case (Judges Paul Ridgeway, Joseph Crosswhite and Alma Hinton) will consider questions today related to civil procedure and subpoenas to determine whether the legislative defendants can have access to all of the documents Lizon turned over or just the ones that don’t contain confidential information about things unrelated to mapmaking.

After Lizon mailed the documents to the plaintiffs’ attorneys, they sent them immediately to a third-party vendor for processing, according to court documents. During that process, it became apparent to the vendor from file and folder names that those materials may have included personal information, such as tax returns and medical and family information.
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Posted in redistricting<https://electionlawblog.org/?cat=6>


“Mueller Report Opens Door for Civil Enforcement by FEC”<https://electionlawblog.org/?p=104937>
Posted on April 30, 2019 9:46 am<https://electionlawblog.org/?p=104937> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.commoncause.org/press-release/mueller-report-opens-door-for-civil-enforcement-by-fec/>:

Today, Common Cause, the Campaign Legal Center, and Democracy 21 filed a supplement<https://www.commoncause.org/wp-content/uploads/2019/04/04-30-19-FEC-Don.-Jr-supplement-MUR-7266.pdf>to a complaint filed in July 2017<https://www.commoncause.org/wp-content/uploads/2019/04/CC-v.-Trump_signed_notarized_DOJ-cover_7.10.17.pdf> against President Donald Trump’s 2016 presidential campaign committee for soliciting contributions from foreign nationals in the form of opposition research offered by Russians. Although Special Counsel Robert Mueller declined to bring criminal charges against Donald Trump Jr., Mueller provided a roadmap by which the Federal Election Commission (FEC) could pursue civil penalties.

Mueller concluded that Donald Trump Jr. setting up a meeting to accept “high level and sensitive” opposition research from a foreign government could violate federal law’s prohibition on soliciting a contribution from a person he knew was a foreign national. Mueller declined to bring criminal charges because he believed he could not meet the high prosecutorial standard for proving Trump Jr. acted “willfully,” and because of challenges in calculating the value of the promised documents—but this has no bearing on the FEC’s pursuit of civil penalties.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>, federal election commission<https://electionlawblog.org/?cat=24>


“New Findings: FEC Stonewalling Candidates, Parties, Seeking Guidance About Super PACs, Other Substantive Issues”<https://electionlawblog.org/?p=104935>
Posted on April 30, 2019 7:17 am<https://electionlawblog.org/?p=104935> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.brennancenter.org/press-release/new-findings-candidates-parties-stonewalled-fec-when-seeking-guidance-about-super-pacs>:

New data and analysis from the Brennan Center show that the deadlocked Federal Election Commission has failed to provide guidance to candidates, parties, and others seeking to understand their legal obligations; update regulations to reflect changes in the law; or investigate allegations of serious legal violations. Fixing the FEC: An Agenda for Reform <https://www.brennancenter.org/publication/fixing-fec-agenda-reform> demonstrates that the commission’s breakdown has left American elections more vulnerable to foreign interference and otherwise exacerbated the effects of the Citizens United decision. The report pinpoints the causes of the FEC’s dysfunction — an organizational structure that creates partisan deadlocks and a lack of accountability for key management decisions — and makes recommendations for reform.

“FEC paralysis has made the impact of Citizens United worse than it should have been, endangering American sovereignty,” said Daniel Weiner<https://www.brennancenter.org/expert/daniel-i-weiner>, author of Fixing the FEC<https://www.brennancenter.org/publication/fixing-fec-agenda-reform>, a former senior staffer at the Federal Election Commission, and senior counsel at the Brennan Center for Justice at NYU Law.

“Due in large part to the commission’s inaction, more than $1 billion in dark money has poured into federal elections — one of many avenues that a foreign government can use to meddle in our campaigns. Citizens United greenlit unlimited corporate spending on campaigns, but the court assumed that the sources of this spending would be fully disclosed to the public. For that to happen, the FEC would need to update its disclosure rules and enforce those on the books. Nine years later, the commission has done neither.”

In Fixing the FEC<https://www.brennancenter.org/publication/fixing-fec-agenda-reform>, the Brennan Center provides new data on the impact of partisan gridlock on the commission’s responsiveness to candidates, parties, and other political actors seeking guidance about their legal obligations through the advisory opinion process.

In a review of all 1,996 requests for advisory opinions the commission received between 1975 and 2018, the Brennan Center report found a steep decline in responsiveness. In the first 32 years of its existence (1975-2007), the commission deadlocked — that is, failed to respond to at least one question — on 4.9 percent of requests per year, with a number of years featuring no deadlocks. Since 2008, the annual deadlock rate has jumped to 24.1 percent. While the FEC has been able to produce advisory opinions on straightforward and routine matters, requests stuck in deadlock cover novel or controversial issues, such as whether candidates can appear in super PAC ads and how political action committees can use Twitter.

Like the advisory opinion process, the commission’s rulemaking has also ground to a halt, as Fixing the FEC <https://www.brennancenter.org/publication/fixing-fec-agenda-reform> explains. For instance, a routine proceeding to update disclaimer rules for types of ads used by Russia to meddle in the 2016 presidential race remains stalled. More than nine years after Citizens United, the FEC hasn’t amended its regulations to account for super PACs. In fact, the term “super PAC” doesn’t appear in any of the commission’s rules.

“The FEC, in its current state, is doing the opposite of what our democracy requires. Its dysfunction hurts those who are trying to follow campaign finance law while making it easier for those who would rather ignore it,” said Weiner.

The FEC’s deadlocks have also prevented investigations of numerous alleged campaign finance law violations. According to 2017 findings by then-Commissioner Ann Ravel, the annual percentage of enforcement cases in which the commissioners deadlocked on at least one alleged violation increased to 37.5 percent in 2016 from 4.2 percent in 2006. In that period, the money collected by the FEC for civil penalties fell from $5.6 million to $595,000.

The Brennan Center’s Fixing the FEC <https://www.brennancenter.org/publication/fixing-fec-agenda-reform> proposes reforms to stop the deadlocks and create accountability for management decisions. In the current structure, the commission can’t issue an advisory opinion, enact a regulation, start an investigation, or take any other substantive action without four votes among its six commissioners. The six commissioners are evenly divided between the two major political parties and repeatedly deadlock along party lines. Fixing the FEC recommends such reforms as:
Change the composition of the FEC to an odd number of commissioners, with at least one political independent;
Redesign the role of the FEC chairperson to become the commission’s chief administrative officer and establish accountability for management decisions;
Overhaul the agency’s civil enforcement process to make it timelier and to provide an effective legal remedy for complainants and alleged violators to obtain legal clarity if the commission fails to act on an enforcement complaint within one year;
And end the practice of allowing commissioners to remain in office indefinitely after their terms expire.

Several of the reforms outlined in Fixing the FEC <https://www.brennancenter.org/publication/fixing-fec-agenda-reform> are part of the For the People Act, an omnibus democracy reform package passed in March by the House of Representatives as H.R. 1 and introduced later that month in the Senate as S. 949.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>


“Misdemeanor Disenfranchisement? The Demobilizing Effects of Brief Jail Spells on Potential Voters”<https://electionlawblog.org/?p=104933>
Posted on April 30, 2019 7:15 am<https://electionlawblog.org/?p=104933> by Rick Hasen<https://electionlawblog.org/?author=3>

Ariel White for the APSR<https://www.cambridge.org/core/journals/american-political-science-review/article/misdemeanor-disenfranchisement-the-demobilizing-effects-of-brief-jail-spells-on-potential-voters/2FEDEE197EA55768312586DA2FEFB8F9>. Here is the abstract:

This paper presents new causal estimates of incarceration’s effect on voting, using administrative data on criminal sentencing and voter turnout. I use the random case assignment process of a major county court system as a source of exogenous variation in the sentencing of misdemeanor cases. Focusing on misdemeanor defendants allows for generalization to a large population, as such cases are very common. Among first-time misdemeanor defendants, I find evidence that receiving a short jail sentence decreases voting in the next election by several percentage points. Results differ starkly by race. White defendants show no demobilization, while Black defendants show substantial turnout decreases due to jail time. Evidence from pre-arrest voter histories suggest that this difference could be due to racial differences in exposure to arrest. These results paint a picture of large-scale, racially-disparate voter demobilization in the wake of incarceration.
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Posted in felon voting<https://electionlawblog.org/?cat=66>


New Jersey: “Elmwood Park Mayor Resigns After Allegations of Interfering with Election Secrecy”<https://electionlawblog.org/?p=104931>
Posted on April 30, 2019 7:11 am<https://electionlawblog.org/?p=104931> by Rick Hasen<https://electionlawblog.org/?author=3>

TapInto reports.<https://www.tapinto.net/towns/hawthorne/articles/elmwood-park-mayor-resigns-after-allegations-of-interfering-with-election-secrecy-2>
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Will the Supreme Court Go Nativist?”<https://electionlawblog.org/?p=104929>
Posted on April 30, 2019 7:08 am<https://electionlawblog.org/?p=104929> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy<https://www.brennancenter.org/blog/will-supreme-court-go-nativist> on the census litigation.
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Posted in census litigation<https://electionlawblog.org/?cat=125>, 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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